Showing 239 of 239 results

Chapter: 37.2

Case Name: Howard v. John Moore, L.P., Civ. A. H-13-1672, 2016 U.S. Dist. LEXIS 36760 (S.D. Tex. March 22, 2016)
("Moore has failed to satisfy its burden of establishing that the damages calculations prepared by Vera and Quest were 'prepared in anticipation of litigation.' To support its privilege claim, Moore relies on Alan Vera's affidavit, which reveals that Vera has been a marketing consultant for Moore since 2009, years prior to the DOL investigation. Therefore, Vera and Quest were not hired for the purpose of assisting in either the investigation or litigation."; "Although Vera's affidavit helps establish that the damages calculations were prepared in connection with the DOL investigation, it does not state that these documents were prepared in anticipation of the underlying lawsuit, which was not filed until June 7, 2013 . . . . Moore has not offered any evidence to demonstrate that, at the time the damages calculations were prepared by Vera and Quest, Moore had determined that litigation was a distinct possibility. The fact that an investigation was conducted or that litigation eventually ensued does not alone cloak materials prepared by or at the direction of an attorney with the protection of the qualified work-product privilege.")

Case Date Jurisidction State Cite Checked
2016-03-22 Federal TX

Chapter: 37.2

Case Name: Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Case No. 12-81397-CIV-Marra/Matthewman, 2015 U.S. Dist. LEXIS 170738 (S.D. Fla. Dec. 18, 2015)
(analyzing work product issues in a first party coverage dispute; "[L]itigation need not even actually occur, as long as it can be fairly said that the document was prepared or obtained in anticipation of litigation.").

Case Date Jurisidction State Cite Checked
2015-12-18 Federal FL

Chapter: 37.2

Case Name: Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *6 (W.D. Va. June 15, 2011)
(analyzing privilege and work product issues in a first party insurance case; "As the Fourth Circuit has explained, 'the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product immunity.' Nat'l Union Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992).")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA B 7/16

Chapter: 37.2

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 177 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "For the same reasons that this Court declines to adopt a bright-line rule granting work product protection to all documents prepared after the moment of a railroad incident, the Court also declines to adopt a bright-line rule refusing work product protection to all documents prepared before receipt of a formal claim and granting protection to documents prepared after receipt of a formal claim. Larson, 42 Va. Cir. at 45 (rejecting application of such bright-line tests). Such arbitrary bright-line rules fail to consider the myriad of factors that must be considered in a case-by-case analysis. While it is true that the absence of a formal claim in this matter is a factor to be considered, the other factors reviewed above outweigh the absence of a formal claim at the time the entries were made on the memorandum. For these reasons, the Court finds that a reasonable person in the shoes of NPBL, at the time the memorandum was produced, would have anticipated or reasonably foreseen litigation. Therefore, the court concludes that based upon the evidence presented in this matter, the memorandum was produced because of expected litigation and is entitled to the qualified work product privilege of Va. Sup. Ct. R. 4:1(b)(3). Smith, 22 Va.Cir. at 353, Gargano v. Metro-North, 222 F.R.D. 38, 40 (D.Conn. 2004), Ex Parte Norfolk Southern Railway Company, 897 So.2d 290, 294-5 (Ala. 2004), Fla. E. Coast Ry. v. Jones, 847 So. 2d 1118, 1119 (Fla.App. 2003), Eoppolo v. National Passenger Corp., 108 F.R.D. 292, 294 (E.D.Pa. 1985).")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA
Comment:

key case


Chapter: 37.2

Case Name: Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115, 116 (Va. Cir. Ct. 1999)
(addressing work product protection for statements prepared after an accident in a grocery store; ultimately concluding that the work product doctrine did not protect any statements taken before the defendant retained a lawyer; "Numerous courts have found that routine investigatory reports made and prepared without some minimal involvement of counsel are not protected by the work protect doctrine. See North and South Lines v. U.S. F. & G. Co., 46 Va. Cir. 294 (Rockingham 1998); Whetzel & McKee, 44 Va. Cir. 315 (Rockingham County 1998); Estabrook V. Conley, 42 Va. Cir. 512 (Rockingham 1997); Overton v. Dise, 35 Va. Cir. 177 (Fairfax 1994); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367 (Amherst 1992); Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477 (Botetourt 1979); but see Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995); Green v. Oakwood Mobile Homes, Inc., 37 Va. Cir. 137 (Essex 1995); McCullough v. Standard Pressing Machines Co., 39 Va. Cir. 191 (Fairfax 1996); Ring v. Mikris, Inc., 40 Va. Cir. 528 (Newport News 1996)."; "The Court is of opinion that statements taken prior to litigation are not taken in 'anticipation of litigation' pursuant to Rule 4:1(b)(3). Therefore, any statement taken prior to the date defense counsel was retained is discoverable.")

Case Date Jurisidction State Cite Checked
1999-01-01 State VA

Chapter: 37.2

Case Name: Collins v. Mullins, 170 F.R.D. 132, 136 (W.D. Va. 1996)
("the mere fact that litigation eventually occurs does not, by itself, cloak materials with work product immunity").

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 37.3

Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("[D]ocuments that Defendants have withheld on claim of attorney-client privilege or work product protection that were generated between March 29, 2002 and May 20, 2002, are subject to the fiduciary exception, and, therefore, should be produced. By contrast, the documents that Defendants have withheld that were generated on or after May 21, 2002 are subject to the attorney-client privilege and work product protection, but the fiduciary exception does not apply to these documents because Allmerica and the Plan administrator were no longer involved in acts of plan administration. Plaintiffs have referred to these documents as Group 2A. The Court has determined that numerous spread sheets PwC prepared, between May 21, 2002 and October 14, 2002, are subject to the work product protection because they were prepared at the direction of Allmerica's counsel, and that Allmerica had a subjective anticipation of Plan beneficiary litigation that was objectively reasonable.")

Case Date Jurisidction State Cite Checked
2016-10-17 Federal KY

Chapter: 37.3

Case Name: Electronic Privacy Information Center v. DEA, Civ. A. No. 14-317 (EGS), 2016 U.S. Dist. LEXIS 82351 (D.D.C. June 24, 2016)
("[T]he nature of the Hemisphere program, which clearly implicates controversial law-enforcement techniques and privacy rights as evidenced by this lawsuit, satisfies the Court that it is objectively reasonable for the government agencies involved to hold a subjective belief that litigation was and is a real possibility. The Court therefore concludes that the email at issue is protected by the work product doctrine because it was prepared in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-06-24 Federal DC

Chapter: 37.3

Case Name: Swoboda v. Manders, Civ. A. 14-19-EWD, 2016 U.S. Dist. LEXIS 657900 (M.D. La. May 19, 2016)
(holding that an investigation agency had to disclose facts it uncovered during an investigation of possible trademark infringement; "The Court finds that, based on H&K's previous and ongoing litigation with Mr. Swoboda related to other firearms, H&K 'had an objectively reasonable subjective belief that litigation was a real possibility' at the time it communicated with Continental regarding an investigation of possible intellectual property infringement related to the G36.")

Case Date Jurisidction State Cite Checked
2016-05-19 Federal LA

Chapter: 37.3

Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
("The Court has carefully reviewed the recorded statement and the affidavit of Amerisure's adjuster, Trevor Byram. The Court recognizes the existence of factors that weigh in favor of finding that the statement was prepared in anticipation of litigation. For example, there were four cars and a number of individuals involved in the motor vehicle accident, and it received at least some media attention on the day that it occurred. Additionally, Byram's sworn testimony is that on the day after the accident, Amerisure had a belief that the accident may result in litigation."; "Nonetheless, the Court finds that the evidence is insufficient to support a conclusion that the report was prepared in anticipation of litigation."; "Reviewing claims is the very nature of insurance companies' business. Neither Byram's affidavit nor the additional information set forth by Chapman in his response is sufficient to differentiate Amerisure's treatment of this investigation from any other potential or existing claim. Moreover, the police report in Amerisure's possession corroborated Chapman's account of the accident by stating that Young was at fault, which makes it less likely that Amerisure anticipated that Young would initiate litigation. Framing this issue in light of the Sixth Circuit's two-part Roxworthy [United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)] test, Chapman has not shown that Amerisure had a subjective anticipation of litigation; therefore, the Court cannot conclude that there was an objectively reasonable anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-04-28 Federal KY

Chapter: 37.3

Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
("The Court has carefully reviewed the recorded statement and the affidavit of Amerisure's adjuster, Trevor Byram. The Court recognizes the existence of factors that weigh in favor of finding that the statement was prepared in anticipation of litigation. For example, there were four cars and a number of individuals involved in the motor vehicle accident, and it received at least some media attention on the day that it occurred. Additionally, Byram's sworn testimony is that on the day after the accident, Amerisure had a belief that the accident may result in litigation."; "Nonetheless, the Court finds that the evidence is insufficient to support a conclusion that the report was prepared in anticipation of litigation."; "Reviewing claims is the very nature of insurance companies' business. Neither Byram's affidavit nor the additional information set forth by Chapman in his response is sufficient to differentiate Amerisure's treatment of this investigation from any other potential or existing claim. Moreover, the police report in Amerisure's possession corroborated Chapman's account of the accident by stating that Young was at fault, which makes it less likely that Amerisure anticipated that Young would initiate litigation. Framing this issue in light of the Sixth Circuit's two-part Roxworthy [United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)] test, Chapman has not shown that Amerisure had a subjective anticipation of litigation; therefore, the Court cannot conclude that there was an objectively reasonable anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-04-28 Federal KY

Chapter: 37.3

Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("The court considers the author's subjective state of mind and whether the anticipation of litigation is objectively reasonable.").

Case Date Jurisidction State Cite Checked
2015-12-14 Federal PA

Chapter: 37.3

Case Name: Agility Public Warehousing Company K.S.C. v. DOD, Civ. A. No. 14-1064 (JDB), 2015 U.S. Dist. LEXIS 81071 (D.D.C. June 23, 2015)
("Agility quibbles with this last point. It argues that some of the agency's redacted documents . . . Could not have been produced in anticipation of litigation in Pennsylvania, because DLA is not a party to that case. . . . But this misstates the rule. The work-product doctrine is not limited to those cases where litigation is a foregone conclusion. Instead, '[f]or a document to meet [the anticipation-of-litigation] standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.'. . . That standards is met here. Indeed, as Agility admits, DLA employees are already scheduled to participate in depositions as part of the Pennsylvania case . . . And Agility anticipates that these same employees will be 'fact witnesses . . . In the Pennsylvania litigation,'. . . Given the agency's starring role in that case, then, it was 'objectively reasonable' for DLA counsel to think that litigation was just around the corner.")

Case Date Jurisidction State Cite Checked
2015-06-23 Federal DC

Chapter: 37.3

Case Name: Largan Precision Co., Ltd. v. Genius Electronic Optical Co., Ltd., Case No. 13-cv-02502-JD, 2015 U.S. Dist. LEXIS 2072 (N.D. Cal. Jan. 8, 2015)
(in a patent case, finding that the absence of any lawyer involvement made it more difficult to claim work product; "The fact that Largan still has not filed suit on the patents named in the 2011 notice letter provides further evidence that if Genius in fact prepared the withheld emails because it anticipated litigation -- a claim the Court seriously doubts -- the anticipation of litigation was unreasonable.")

Case Date Jurisidction State Cite Checked
2015-01-08 Federal CA

Chapter: 37.3

Case Name: Reid v. Transocean Offshore Deepwater Drilling, Inc., Civil Action No. 13-6080 SECTION "I" (2), 2014 U.S. Dist. LEXIS 83045, at *7 (E.D. La. June 17, 2014)
("A party's subjective anticipation of litigation must have been objectively reasonable.")

Case Date Jurisidction State Cite Checked
2014-06-17 Federal LA

Chapter: 37.3

Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2014 U.S. Dist. LEXIS 31330, at *17-18 (S.D. Ohio Mar. 11, 2014)
("The content of these documents reveals that they were created because of pending or likely arbitration, which actually arose around the time the documents were created. Defendant therefore held a subjective anticipation of arbitration and its anticipation was objectively reasonable. Consequently, the work-product doctrine shields the documents from disclosure to Plaintiffs.")

Case Date Jurisidction State Cite Checked
2014-03-11 Federal OH B 8/14

Chapter: 37.3

Case Name: In re Baytown Nissan Inc. v. Gray, 451 S.W.3d 140, 148 (Tex. App. 2014)
("The 'anticipation of litigation' test is met when a reasonable person would have concluded from the totality of the circumstances that there was a substantial chance that litigation would ensue and the party asserting the work product privilege subjectively believed in good faith that there was a substantial chance that litigation would ensue.")

Case Date Jurisidction State Cite Checked
2014-01-01 State TX B 8/15

Chapter: 37.3

Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *11 n.3 (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation at the date the plaintiff alleged Aramark knew of contamination, because Aramark denied the allegations; "Even if Aramark had admitted these two allegations, neither allegation informs the Court of the precise date which Aramark first subjectively anticipated litigation resulting from the VOC contaminants on its property.")

Case Date Jurisidction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 37.3

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 867 (Tex. Ct. App. 2013)
(The first prong requires an objective examination of the facts with consideration being given to outward manifestations that indicate litigation is imminent.")

Case Date Jurisidction State Cite Checked
2013-01-01 State TX B 4/14

Chapter: 37.3

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 867 (Tex. Ct. App. 2013)
("[T]he trial court must determine whether a reasonable person in the party's position would have anticipated litigation and whether the party actually did anticipate litigation.")

Case Date Jurisidction State Cite Checked
2013-01-01 State TX B 4/14

Chapter: 37.3

Case Name: Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 478 (Va. Cir. Ct. 2009)
("[T]he Court utilized a 'reasonable person' standard, stating that anticipation of litigation 'does not mean that the litigation must be immediate, nor need there be knowledge that an attorney has been hired or has threatened suit.' Id. [Smith v. National R.R. Passenger Corp., 22 Va. Cir. 348, 352 (1991).]")

Case Date Jurisidction State Cite Checked
2009-01-01 State VA B 5/16
Comment:

key case


Chapter: 37.4

Case Name: Lobel v. Woodland Golf Club of Auburndale, Civ. A. No. 15-13803-FDS, 2016 U.S. Dist. LEXIS 177423 (D. Mass. Dec. 22, 2016)
(finding that the work product doctrine did not protect documents created at the time adversaries were attempting to compromise their dispute; "The July 17, 2014 email . . . prepared by Fishkin and made before any denial by the club of what Chervinsky described as a 'reasonable compromise' or resolution . . . was not made in anticipation of litigation and is therefore subject to production. During this time period, Chervinsky was attempting to reach a reasonable compromise with the club. Litigation was not anticipated and the documents Chervinsky created were not prepared in anticipation of litigation. Thus, although Chervinsky 'expected there would ultimately be legalities involved,' in July and August 2014 he simply 'wanted [plaintiff] to be able to play golf with [him] at Woodland' and Chervinsky engaged in his 'own effort at what [he] thought at the time' might 'be a reasonable compromise' with the club.")

Case Date Jurisidction State Cite Checked
2016-12-22 Federal MA

Chapter: 37.4

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
("Discussions of a settlement demand between a client and his attorney are clearly afforded work-product protection and not need to be produced.").

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE

Chapter: 37.4

Case Name: Albritton v. CVS Caremark Corp., Case No. 5:130-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236 (W.D. Ky. Nov. 10, 2015)
(holding that the work product doctrine did not necessarily apply to documents created in an effort to avoid litigation; "Defendants argue that they created the documents to avoid future litigation with the United States and therefore they created them in anticipation of litigation. If the Court accepted this argument as a subjective anticipation of litigation, then any document created to comply with any law, public or private, would be created in anticipation of litigation. Defendants' argument even based the possibility of future litigation on the past litigation and the potential of their breach. . . . Defendants did not demonstrate by evidence supporting the motion that they believed the United States would actually institute future litigation regarding pharmacy-technician licensing when they created the documents. Therefore they failed to meet their burden to demonstrate the subjective prong of the because-of test."; "Even assuming that Defendants had a subjective belief that further litigation with United States Attorneys was inevitable, they failed to demonstrate that that subjective anticipation of litigation was objectively reasonable. Defendants did not present any evidence or argument regarding any facts that demonstrate the United States had threatened further litigation regarding the licensing issue or even expressed concern with Defendants' reporting. In contrast, Defendants did not show that expected litigation was "'quite concrete' despite the absence of any overt indication by the government.". . . Defendants' argument that future litigation might arise if they breach a past agreement does not amount to a concrete expectation of litigation. To hold otherwise would result in the work-product doctrine becoming the discovery exception that swallows the rule.").

Case Date Jurisidction State Cite Checked
2015-11-10 Federal KY

Chapter: 37.4

Case Name: Albritton v. CVS Caremark Corp., Case No. 5:130-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236, at *13 (W.D. Ky. Nov. 10, 2015)
January 6, 2016 (PRIVILEGE POINT)

"Courts Analyze Work Product Doctrine Variations: Part II"

Last week's Privilege Point used two cases to address federal courts' surprising variations in the work product doctrine's "litigation" and "anticipation" elements. Courts also disagree about the doctrine's "motivation" element, and even about the content eligible for protection.

First, courts agree that the work product doctrine can protect documents motivated by settling ongoing litigation, but they disagree about the protection's applicability to documents motivated by clients' desire to avoid litigation. In Albritton v. CVS Caremark Corp., the court rejected the doctrine's applicability to documents intended to "avoid future litigation with the United States." Case No. 5:130-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236, at *13 (W.D. Ky. Nov. 10, 2015). Other courts take a different approach. Second, courts disagree about whether Fed. R. Civ. P. 26(b)(3)'s reference to "documents and tangible things" excludes from protection intangible work product such as testimony. In Ellis v. United States, the court pointed to the rule's explicit language in holding that the doctrine "cannot apply to the extent plaintiff was summoned to appear and testify" before an IRS Special Agent. Case No. 3:14-MC-00521-CWR-LRA, 2015 U.S. Dist. LEXIS 154464, at *21 (S.D. Miss. Nov. 16, 2015). Most courts take a more expansive view — recognizing a parallel federal common law work product protection for testimony that would deserve protection if written down.

The huge variation among federal courts applying the very same federal rule sentence can be especially worrisome for corporations likely to find themselves as defendants — because they ordinarily will not know where the litigation will begin, and therefore will not know which work product doctrine variation will govern.

Case Date Jurisidction State Cite Checked
2015-11-10 Federal KY
Comment:

key case


Chapter: 37.4

Case Name: Doehne v. EmpRes Healthcare Management, LLC, No. 46467-5-II, 2015 Wash. App. LEXIS 1909 (Wash. App. Aug. 11, 2015)
(holding that the attorney-client privilege and the work product doctrine protected a post-accident investigation following a slip and fall accident at a health facility; noting that the facility's in-house lawyers directed the investigation; "The purpose of EmpRes' risk management position 'is to act as a conduit between the legal department and insurers regarding liability issues, including workers' compensation and third-party liability, with the goal of avoiding litigation and minimizing liability.'. . . The record shows that Clarno's report was prepared to assist in-house counsel in addressing issues of liability and potential litigation.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal WA
Comment:

key case


Chapter: 37.4

Case Name: Largan Precision Co., Ltd. v. Genius Electronic Optical Co., Ltd., Case No. 13-cv-02502-JD, 2015 U.S. Dist. LEXIS 2072 (N.D. Cal. Jan. 8, 2015)
(in a patent case, finding that the absence of any lawyer involvement made it more difficult to claim work product; "The emails provided by Genius themselves indicate that after receiving the notice letters, the parties were focused on a business resolution of the dispute, rather than litigation. With respect to the emails following the 2011 notice letter, an August 31, 2011, email from Genius's Elmer Chang to Largan following face-to-face meetings between the companies indicates that Largan had said that it wanted to 'continue with the negotiation in the name of 'avoiding litigation.'")

Case Date Jurisidction State Cite Checked
2015-01-08 Federal CA

Chapter: 37.4

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *18 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "The fact that DuPont's consultation services continued well beyond the pendency of any then-existing claims leads the Undersigned to conclude that DuPont was not primarily engaged because of any specific pending litigation, but rather to curb against future litigation as a more general matter. Even if, to use Ms. Vazquez's words, 'the prospect of litigation against Carnival is always imminent' . . ., the work product doctrine does not apply 'to materials prepared simply because there is a "general possibility" that litigation will ensue in the future.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 37.4

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *5-6 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "Having heard from the parties and having reviewed the record, including the affidavit of Suzanne Brown Vazquez (Carnival's Director of Guest Claims and Litigation Counsel), I see no reason to reach a different conclusion in this case. As Ms. Vazquez's affidavit states, the incident reports are not prepared for every reported incident occurring on a Carnival vessel. Rather, they are only prepared '[w]hen a passenger reports an incident resulting in injury which requires treatment beyond basic first aid,' because, in Carnival's experience, those incidents typically result in litigation. . . . The incident reports are then provided to Carnival's counsel. . . . In this case, Ms. Vazquez explains, the incident report 'was created to assist Carnival Cruise Lines' claims department and defense counsel in anticipation of litigation,' because Carnival believed that litigation was likely to ensue '[i]n light of how the incident occurred and the nature of the medical care provided.'" (internal citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 37.4

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *17 n.9, *16-17 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "At the hearing, Carnival took the position that the work product doctrine does not necessarily need to be tied to a particular claim or lawsuit, but, instead, can apply to undertakings made in an overall general effort to curb or manage litigation in general."; "Carnival withdrew from the argument it made at the discovery hearing, and explained that its consultation with DuPont was both related to two then-existing lawsuits and also aimed at curbing future litigation. . . . Carnival advised that its counsel misspoke at the hearing when he advised that the DuPont work did not relate to specific litigation. Therefore, Carnival's post-hearing argument is that the work product doctrine 'most certainly applies.'")

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 37.4

Case Name: Sweredoski v. Alfa Laval, Inc., C.A. No. PC-2011-1544, 2014 R.I. Super. LEXIS 14, at *3-4 (R.I. Super. Ct. Jan. 30, 2014)
(finding that the work product doctrine did not cover a claims form an asbestos plaintiff filed with a bankruptcy trust; "[B]ecause Plaintiff's counsel prepared the claim forms for an administrative process that was meant to avoid litigation, the claim forms cannot qualify as factual work product.")

Case Date Jurisidction State Cite Checked
2014-01-30 State RI B 7/14

Chapter: 37.4

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *15-16, *17, *17 n.4, *18, *19-20 (E.D.N.Y. Jan. 21, 2014)
(not for publication) (upholding a Magistrate Judge's opinion that neither the attorney-client privilege nor the work product doctrine protected communications between a Duane Morris lawyer and a corporate client's human resource executive; finding the attorney-client privilege inapplicable because the advice was primarily business-related and not legal; finding the work product doctrine inapplicable for a number of reasons; "Based on its review of the Submitted Documents, the Court concurs with Judge Scanlon's assessment that the communications between Defendants and outside counsel related to human resources issues, e.g., the internal investigation related to Mr. Komoulis and responding to his complaints. Such advice would have been provided even absent the specter of litigation, and therefore do [sic] not constitute litigation-related work product."; "Defendants concede that 'LPL [defendant] ha[d] an obligation to investigate' Koumoulis's complaints about alleged discrimination and retaliation,' regardless of the potential for litigation. . . . The alleged motivation for which these documents were sought is not enough to overcome what appears on the face of the documents themselves."; "[E]ven assuming the internal investigation was conducted in anticipation of litigation, otherwise work-product privileged communications relating to the investigation would still be discoverable once Defendants assert a Faragher/Ellerth [Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)] defense. Indeed, Defendants acknowledged as much when they disclosed their in-house attorneys' notes and correspondence regarding the investigation. Defendants offer no justification for treating their outside counsel's communications regarding the investigation differently than their in-house counsel's communications on that topic."; "Defendants acknowledge that this advice was intended, in part, to prevent Plaintiff from bringing claims of retaliation. . . . Legal advice given for the purpose of preventing litigation is different than advice given in an anticipation of litigation."; "[S]imply declaring that something is prepared in 'anticipation of litigation' does not necessarily make it so. . . . [T]he contents of the communications directly contradict Defendants' privilege claim. These communications, on their face, relate to advice given by Ms. Bradley on how to prevent a lawsuit, not on how to defend one.")

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 37.4

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695 (E.D.N.Y. Jan. 21, 2014)
March 26, 2014 (PRIVILEGE POINT)

"Courts Confirm Basic Work Product Principles"

The work product doctrine does not automatically apply just because a party anticipates litigation. A number of other principles limit the protection's applicability.

In Telamon Corp. v. Charter Oak Fire Insurance Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583 (S.D. Ind. Jan. 17, 2014), the court found that neither the attorney-client privilege nor the work product doctrine protected materials created during a Barnes & Thornburg [plaintiff’s outside lawyers] internal investigation. Among other things, the court rejected the significance of the company's post-investigation meeting with the FBI – noting that the company "does not counter the fact that it was the results of its investigation that led [the investigator] and the lawyers to reach out to the FBI." Id. at *7. In other words, the company did not anticipate litigation at the beginning of the investigation, but rather at the end. Four days later, the Eastern District of New York affirmed a Magistrate Judge's earlier decision (reported in an earlier Privilege Point) denying privilege and work product protection for communications between a Duane Morris lawyer and her client's human resources employee. Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695 (E.D.N.Y. Jan. 21, 2014). Among other things, the court noted that "Defendants acknowledge that this advice was intended, in part, to prevent Plaintiff from bringing claims of retaliation." Id. at *18. The court then stated another basic work product principle: "Legal advice given for the purpose of preventing litigation is different than advice given in an anticipation of litigation." Id.

Corporate clients and their lawyers should familiarize themselves with the work product doctrine's nuances. They cannot change the underlying facts, but in some situations they can forfeit possible work product protection by inarticulately stating their positions.

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY
Comment:

key case


Chapter: 37.4

Case Name: Telamon Corp. v. Charter Oak Fire Insurance Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583 (S.D. Ind. Jan. 17, 2014)
March 26, 2014 (PRIVILEGE POINT)

"Courts Confirm Basic Work Product Principles"

The work product doctrine does not automatically apply just because a party anticipates litigation. A number of other principles limit the protection's applicability.

In Telamon Corp. v. Charter Oak Fire Insurance Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583 (S.D. Ind. Jan. 17, 2014), the court found that neither the attorney-client privilege nor the work product doctrine protected materials created during a Barnes & Thornburg [plaintiff’s outside lawyers] internal investigation. Among other things, the court rejected the significance of the company's post-investigation meeting with the FBI – noting that the company "does not counter the fact that it was the results of its investigation that led [the investigator] and the lawyers to reach out to the FBI." Id. at *7. In other words, the company did not anticipate litigation at the beginning of the investigation, but rather at the end. Four days later, the Eastern District of New York affirmed a Magistrate Judge's earlier decision (reported in an earlier Privilege Point) denying privilege and work product protection for communications between a Duane Morris lawyer and her client's human resources employee. Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695 (E.D.N.Y. Jan. 21, 2014). Among other things, the court noted that "Defendants acknowledge that this advice was intended, in part, to prevent Plaintiff from bringing claims of retaliation." Id. at *18. The court then stated another basic work product principle: "Legal advice given for the purpose of preventing litigation is different than advice given in an anticipation of litigation." Id.

Corporate clients and their lawyers should familiarize themselves with the work product doctrine's nuances. They cannot change the underlying facts, but in some situations they can forfeit possible work product protection by inarticulately stating their positions.

Case Date Jurisidction State Cite Checked
2014-01-17 Federal IN
Comment:

key case


Chapter: 37.4

Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 445 (N.D. Iowa 2014)
("As for the other documents and claims notes related to mediation or settlement, I find these documents are properly protected under the work product privilege as they were prepared in anticipation of litigation (or avoiding such litigation) after March 13, 2012.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal IA B 8/14

Chapter: 37.4

Case Name: Ford Motor Co. v. Mich. Consol. Gas Co., Civ. A. No. 08-CV-13503, 2013 U.S. Dist. LEXIS 138693, at *11-12 (E.D. Mich. Sept. 27, 2013)
(finding that plaintiff Ford could not assert a work product protection for a document prepared in an effort to avoid litigation; "With regard to the MDEQ/EPA [Mich. Dep't of Env./EPA] litigation, Plaintiffs' position relies on the assumption that Plaintiffs knew that they would (or that they intended to) fail in their efforts under the CACO [Corrective Action Consent Order]; that is, that they would ultimately be in violation of some environmental act or policy, which would allow the MDEQ or the EPA to pursue them. This is always a threat; the documents at issue were created to avoid litigation, not in anticipation of litigation. And with regard to the instant litigation, Plaintiffs' contention is circular. If Plaintiffs are to be believed, they created a mountain of paperwork in anticipation of a lawsuit in which their ultimate goal was to obtain payment for creation of the same mountain of paperwork. Therefore, the Court finds that the potential litigation with the EPA, the MDEQ, or Defendant is not a sufficient basis under which to assert work-product protection.")

Case Date Jurisidction State Cite Checked
2013-09-27 Federal MI B 4/14

Chapter: 37.4

Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *63 (S.D. Fla. Oct. 18, 2012)
("Many, if not all, of the documents are protected by the work product doctrine because they were developed in order to avoid, and eventually to defend against, threatened or anticipated litigation." [quoting Tyne. v. Time Warner Entm't Co., 212 F.R.D. 596, 601 (M.D. Fla. 2002)])

Case Date Jurisidction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 37.4

Case Name: COMPTEL v. FCC, 910 F. Supp. 2d 100, 120 (D.D.C. 2012)
("The privilege also applies to settlement discussions and work product prepared to avoid possible litigation.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 37.4

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *10 (W.D. Va. June 15, 2011)
("Ferguson appraisal plainly was obtained for the sole purpose of making a settlement offer because of the prospect of litigation. Review of the claim file notes reveals Donegal would not have sought a valuation by Ferguson if not for its desire to negotiate a settlement and avoid the risk and cost of litigation. It was not created in the ordinary course of business. Rather, it was created solely because of the impending litigation and is therefore protected by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA

Chapter: 37.4

Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 77 (Va. Cir. Ct. 2001)
(assessing the question of whether a limited partner is a "de facto client of the limited partnership's lawyer"; concluding that the limited partner was not a client of the partnership's lawyer and therefore was not automatically entitled to privilege or work product information; pointing to the affidavit filed by a partnership's lawyer establishing that the protected documents "were prepared in anticipation of, and in hopes of avoiding, imminent litigation"; concluding that the documents were "produced primarily because of the prospect of litigation" and therefore constituted protected work product)

Case Date Jurisidction State Cite Checked
2001-01-01 State VA nsvb 2/23/04

Chapter: 37.4

Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 76, 77 (Va. Cir. Ct. 2001)
("GBA, as the proponent of the privilege, has the burden of establishing that the challenged documents were in fact prepared in anticipation of litigation."; finding that GBA had met its burden by providing an affidavit from a lawyer in a firm that had represented GBA, which stated that "all of the documents listed on GBA's privilege log were prepared in anticipation of, and in hopes of avoiding, imminent litigation")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
("Riddell's work-product assertion is rejected because there is no evidence its documents were prepared because of impending litigation. It is true that many of Riddell's documents were prepared because of Congressional inquiries into concussions. However, no evidence exists to show this was likely to lead to litigation. As noted, the mere 'remote prospect' or 'inchoate possibility' of litigation does not satisfy the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ

Chapter: 37.6

Case Name: Swoboda v. Manders, Civ. A. 14-19-EWD, 2016 U.S. Dist. LEXIS 657900 (M.D. La. May 19, 2016)
(holding that an investigation agency had to disclose facts it uncovered during an investigation of possible trademark infringement; "The Court finds that, based on H&K's previous and ongoing litigation with Mr. Swoboda related to other firearms, H&K 'had an objectively reasonable subjective belief that litigation was a real possibility' at the time it communicated with Continental regarding an investigation of possible intellectual property infringement related to the G36.")

Case Date Jurisidction State Cite Checked
2016-05-19 Federal LA

Chapter: 37.6

Case Name: Welby, Brady & Greenblatt, LLP v. United States Dept. of Health and Human Services, No. 15-cv-195 (NSR), 2016 U.S. Dist. LEXIS 56605 (S.D.N.Y. April 27, 2016)
("The Second Circuit has noted that 'courts have taken a flexible approach in determining whether the work product doctrine is applicable, asking not whether litigation was a certainty, but whether the document was created 'with an eye toward litigation.'")

Case Date Jurisidction State Cite Checked
2016-04-27 Federal NY

Chapter: 37.6

Case Name: Ring v. Mikris, Inc., 40 Va. Cir. 528, 532-33 (Newport News 1996)
("a party asserting a document was prepared in anticipation of litigation must show the document was prepared because of the prospect of litigation, such that the preparer faces an actual claim or potential claim following an event that reasonably could result in litigation" (footnote omitted) (citing National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)).

Case Date Jurisidction State Cite Checked
2016-04-05 State VA B 5/16

Chapter: 37.6

Case Name: Howard v. John Moore, L.P., Civ. A. H-13-1672, 2016 U.S. Dist. LEXIS 36760 (S.D. Tex. March 22, 2016)
("Moore has failed to satisfy its burden of establishing that the damages calculations prepared by Vera and Quest were 'prepared in anticipation of litigation.' To support its privilege claim, Moore relies on Alan Vera's affidavit, which reveals that Vera has been a marketing consultant for Moore since 2009, years prior to the DOL investigation. Therefore, Vera and Quest were not hired for the purpose of assisting in either the investigation or litigation."; "Although Vera's affidavit helps establish that the damages calculations were prepared in connection with the DOL investigation, it does not state that these documents were prepared in anticipation of the underlying lawsuit, which was not filed until June 7, 2013 . . . . Moore has not offered any evidence to demonstrate that, at the time the damages calculations were prepared by Vera and Quest, Moore had determined that litigation was a distinct possibility. The fact that an investigation was conducted or that litigation eventually ensued does not alone cloak materials prepared by or at the direction of an attorney with the protection of the qualified work-product privilege.")

Case Date Jurisidction State Cite Checked
2016-03-22 Federal TX

Chapter: 37.6

Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910 (E.D. Tex. March 15, 2016)
("The Fifth Circuit has stated that the protection 'can apply where litigation is not imminent, 'as long as the primary motivating purpose behind the creation was to aid in possible future litigation.'")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal TX

Chapter: 37.6

Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Plaintiffs contend that the Report is not work product because litigation was not 'imminent.'. . . But Plaintiffs cite no authority for the proposition that work product protection applies only when litigation is imminent. The test is whether litigation was reasonably anticipated, and the adverse events and litigation threats of 2004 clearly satisfied this requirement.")

Case Date Jurisidction State Cite Checked
2016-02-11 Federal AZ

Chapter: 37.6

Case Name: CGC Holding Co., LLC v. Hutchens, Civ. A. No. 11-cv-01012-RBJ-KLM, 2016 U.S. Dist. LEXIS 6523, at *19 (D. Colo. Jan. 20, 2016)
(analyzing a situation in which plaintiff said that the defendant's law firm helped its client swindle the plaintiff; denying privilege and work product protection for communications between the law firm's investigator and the law firm's former client, despite a common interest claim; "Given the inapplicability of the attorney-client privilege to the documents listed on Privilege Log #538-3, they must qualify as work product to be protected by the 'joint defense privilege.' In order to be 'work product,' they must have been 'prepared in anticipation of litigation or for trial.' Fed. R. Civ. Pro. 26(b)(3)(A). Indeed, Courts in this district generally require a showing that the work at issue was prepared due to 'the real and imminent threat of litigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2016-01-20 Federal CO B 7/16

Chapter: 37.6

Case Name: Cedar Grove Composting Inc. v. Ironshore Specialty Ins. Co., Case No. C14-1443RAJ, 2015 U.S. Dist. LEXIS 171576 (W.D. Wash. Dec. 23, 2015)
("[L]itigation may not have been a certainty at the time the relationship began, there was a fair prospect of such litigation, particularly as Plaintiff had already brought suit against its predecessor insurer regarding similar issues.").

Case Date Jurisidction State Cite Checked
2015-12-23 Federal WA

Chapter: 37.6

Case Name: Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Case No. 12-81397-CIV-Marra/Matthewman, 2015 U.S. Dist. LEXIS 170738 (S.D. Fla. Dec. 18, 2015)
(analyzing work product issues in a first party coverage dispute; "The document need not have been created solely for the purpose of litigation, and litigation need not necessarily be imminent or certain when the document is created.").

Case Date Jurisidction State Cite Checked
2015-12-18 Federal FL

Chapter: 37.6

Case Name: Wellin v. Wellin, C.A. Nos. 2:13-CV-1831-, -3595-, & 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481, at *16-17 (D.S.C. Dec. 4, 2015)
(finding that neither the attorney-client privilege nor the work product doctrine protected a pre-existing client summary of events just because it was later sent to a lawyer; "I conclude that they have not carried their burden of establishing that these two documents are protected from disclosure by the attorney-client privilege. Both documents are summaries of events prepared by the Defendant, Peter Wellin, during the time that this Court has already determined there was only a general possibility of litigation, and thus, the notes and summaries in the hands of the client were not protected by the work product privilege.")

Case Date Jurisidction State Cite Checked
2015-12-04 Federal SC B 7/16

Chapter: 37.6

Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; "Ford simply has not carried its burden to establish that the materials sent by Mr. Engle to Mr. Logel, or Mr. Logel's edits, were prepared because of the prospect of litigation. Mere concern that a report or writing may have legal consequences in the future should litigation ensue is not the equivalent of preparing a report or writing for anticipated or pending litigation. Certainly, neither Mr. Engle nor Mr. Logel state that Mr. Engle's investigation was done for litigation purposes, rather than as a normal part of Ford's business. Likewise, they do not assert that the Chicago Transit Authority had lodged a claim against Ford or threated litigation, prompting Mr. Logel to request the investigation, or Mr. Engle to prepare the reports and materials he supplied to Mr. Logel for review. Finally, they do not suggest that litigation related to the Chicago Transit Authority's concern was pending at the time the documents were created. Consequently, there is nothing in the record to support a finding that the documents in Set One constitute work product."; finding that the work product doctrine did not protect the communications, because they were not motivated by litigation).

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV

Chapter: 37.6

Case Name: Enea v. Bloomberg L.P., 12cv4656-GBD-FM, 2015 U.S. Dist. LEXIS 111901 (S.D.N.Y. Aug. 20, 2015)
(initially concluding that there had been no implied waiver, but revisiting the issue and ordering an in camera review of documents that support defendant's good faith defense in an FLSA case; "A mere 'possibility' of litigation, however, is insufficient to obtain work product protection.")

Case Date Jurisidction State Cite Checked
2015-08-20 Federal NY

Chapter: 37.6

Case Name: Enea v. Bloomberg L.P., 12cv4656-GBD-FM, 2015 U.S. Dist. LEXIS 111901 (S.D.N.Y. Aug. 20, 2015)
("A mere 'possibility' of litigation, however, is insufficient to obtain work product protection.")

Case Date Jurisidction State Cite Checked
2015-08-20 Federal NY

Chapter: 37.6

Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("The first inquiry is the 'reasonable anticipation test,' which requires that the court determine whether 'litigation could reasonably have been anticipated.'. . . Although the litigation need not be imminent . . . 'there must be an identifiable specific claim of impending litigation.'")

Case Date Jurisidction State Cite Checked
2015-08-03 Federal NJ

Chapter: 37.6

Case Name: Shipyard Assocs., L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927, at *15 (D.N.J. Aug. 3, 2015)
October 7, 2015 (PRIVILEGE POINT)

"What Level of Litigation "Anticipation" Triggers Work Product Protection?"

One of the great ironies of work product protection involves federal courts' widely varying interpretation of the single sentence codifying the Federal Rules' work product protection. Fed. R. Civ. P. 26(b)(3)(A). Among many other things, federal courts disagree about the required level of litigation "anticipation" that can trigger protection.

In Tate & Lyle Americas, LLC v. Glatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265, at *6 (C.D. Ill. July 31, 2015), the court held that the protection can apply only when "'some articulable claim, likely to lead to litigation, [has] arisen.'" (Alteration in original; emphasis added; citation omitted.) Three days later, the District of New Jersey acknowledged that "litigation need not be imminent" for the work product doctrine to kick in, but that "'there must be an identifiable specific claim of impending litigation.'" Shipyard Assocs., L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927, at *15 (D.N.J. Aug. 3, 2015). In that case, the court did not articulate exactly where along the "anticipation" spectrum the work product doctrine could apply. This ambiguity is unfortunate, because federal courts' standards range from "imminent" to "some possibility" of litigation.

In their roles as defendants, corporations usually do not know where they will be sued — so they normally will not know in advance what degree of anticipation will satisfy the work product standard of the court in which they will find themselves litigating.

Case Date Jurisidction State Cite Checked
2015-08-03 Federal NJ
Comment:

key case


Chapter: 37.6

Case Name: Tate & Lyle Americas, LLC v. Glatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265, at *6 (C.D. Ill. July 31, 2015)
October 7, 2015 (PRIVILEGE POINT)

"What Level of Litigation "Anticipation" Triggers Work Product Protection?"

One of the great ironies of work product protection involves federal courts' widely varying interpretation of the single sentence codifying the Federal Rules' work product protection. Fed. R. Civ. P. 26(b)(3)(A). Among many other things, federal courts disagree about the required level of litigation "anticipation" that can trigger protection.

In Tate & Lyle Americas, LLC v. Glatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265, at *6 (C.D. Ill. July 31, 2015), the court held that the protection can apply only when "'some articulable claim, likely to lead to litigation, [has] arisen.'" (Alteration in original; emphasis added; citation omitted.) Three days later, the District of New Jersey acknowledged that "litigation need not be imminent" for the work product doctrine to kick in, but that "'there must be an identifiable specific claim of impending litigation.'" Shipyard Assocs., L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927, at *15 (D.N.J. Aug. 3, 2015). In that case, the court did not articulate exactly where along the "anticipation" spectrum the work product doctrine could apply. This ambiguity is unfortunate, because federal courts' standards range from "imminent" to "some possibility" of litigation.

In their roles as defendants, corporations usually do not know where they will be sued — so they normally will not know in advance what degree of anticipation will satisfy the work product standard of the court in which they will find themselves litigating.

Case Date Jurisidction State Cite Checked
2015-07-31 Federal IL
Comment:

key case


Chapter: 37.6

Case Name: Tate & Lyle Americas, LLC v. Gatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265 (C.D. Ill. July 31, 2015)
("Though documents prepared in the ordinary course of business that address matters with some prospect of litigation are not protected, documents prepared because 'at the very least some articulable claim, likely to lead to litigation, [has] arisen' are considered work product.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal IL

Chapter: 37.6

Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
("'[T]he document must be prepared under the 'substantial and imminent' or 'fairly foreseeable' threat of litigation.'")

Case Date Jurisidction State Cite Checked
2015-06-25 Federal NC

Chapter: 37.6

Case Name: Agility Public Warehousing Company K.S.C. v. DOD, Civ. A. No. 14-1064 (JDB), 2015 U.S. Dist. LEXIS 81071 (D.D.C. June 23, 2015)
("Agility quibbles with this last point. It argues that some of the agency's redacted documents . . . Could not have been produced in anticipation of litigation in Pennsylvania, because DLA is not a party to that case. . . . But this misstates the rule. The work-product doctrine is not limited to those cases where litigation is a foregone conclusion. Instead, '[f]or a document to meet [the anticipation-of-litigation] standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.'. . . That standards is met here. Indeed, as Agility admits, DLA employees are already scheduled to participate in depositions as part of the Pennsylvania case . . . And Agility anticipates that these same employees will be 'fact witnesses . . . In the Pennsylvania litigation,'. . . Given the agency's starring role in that case, then, it was 'objectively reasonable' for DLA counsel to think that litigation was just around the corner.")

Case Date Jurisidction State Cite Checked
2015-06-23 Federal DC

Chapter: 37.6

Case Name: Fieldwood Energy, L.L.C. v. Diamond Svcs. Corp., Civ. A. No. 14-650 Section "E" (3), 2015 U.S. Dist. LEXIS 39385 (E.D. La. March 27, 2015)
(holding that the privilege did not protect transcribed witness statements of an interview conducted by an adjuster; also finding that the work product did not apply because litigation was not imminent; "The information provided to the Court does not satisfy defendant's burden of demonstrating that the primary motivating purpose in securing the witness statements was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim. . . . The only evidence before the Court is Halverson's self-serving statement that he took the statements in anticipation of litigation. . . . No attorney aided in the preparation of the documents. And there is no indication that litigation was imminent, and no evidence that defendant had already retained counsel for the purpose of the allision. Indeed, this Court has recognized on numerous occasions that corporations such as defendant routinely conduct investigations into accidents to prevent reoccurrences and improve safety procedures.")

Case Date Jurisidction State Cite Checked
2015-03-27 Federal LA
Comment:

key case


Chapter: 37.6

Case Name: Largan Precision Co., Ltd. v. Genius Electronic Optical Co., Ltd., Case No. 13-cv-02502-JD, 2015 U.S. Dist. LEXIS 2072 (N.D. Cal. Jan. 8, 2015)
(in a patent case, finding that the absence of any lawyer involvement made it more difficult to claim work product; "[I]t is certainly true that a document need not be prepared personally by an attorney to qualify as work product. But attorney involvement -- or the lack thereof -- is far from irrelevant, as Genius [Defendant] suggests. The fact that the withheld documents do not involve any attorneys is a useful sign, in conjunction with other indicators, that they are not protected work product."; " [T]hat the involvement of attorneys should be considered as part of the 'anticipation of litigation' prong of the tests.")

Case Date Jurisidction State Cite Checked
2015-01-08 Federal CA

Chapter: 37.6

Case Name: Wheat v. M. Matt Durand, L.L.C., Civ. A. No. 13-5068 Section "J" (3), 2014 U.S. Dist. LEXIS 176282 (E.D. La. Dec. 22, 2014)
(finding that witness statements did not deserve work protection, because they were not substantially different from what the company would have prepared absent anticipated litigation; "Here, MMD provides the Court with only the following information: It took the statement of Riley six days after the accident and after it realized the extent of Wheat's injuries. MMD does not provide the Court with specific information as to who took the statement or whether whoever took the statement is routinely used by MMD to investigate and adjust on-scene accident claims. From the scant information provided, the Court, however, deduces that MMD takes similar statements as part of its routine business when it investigates accidents: Indeed, it took the statement of Hodges on the day that the accident occurred. MMD also does not provide the Court with any information as to the date counsel was formally retained."; "The information provided to the Court does not satisfy MMD's burden of demonstrating that the primary motivating purpose in securing Riley's statement was in furtherance of a sufficiently-identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim. . . . In this respect, Wheat's request to compel MMD to produce Riley's witness statement is granted.")

Case Date Jurisidction State Cite Checked
2014-12-22 Federal LA
Comment:

key case


Chapter: 37.6

Case Name: Pate v. Winn-Dixie Stores, Inc., CV 213-166, 2014 U.S. Dist. LEXIS 151914 (S.D. Ga. Oct. 27, 2014)
(analyzing a work product protection for a slip-and-fall injury incident report; "The legal standard the Magistrate Judge should have applied required Defendant to show that the handwritten and computer-written incident reports were prepared in anticipation of litigation and not in the ordinary course of business. Instead, the Magistrate Judge concluded that 'Defendant's employee who prepared the incident report arguably did so with an eye toward litigation.'. . . While Defendant's anticipation of litigation is certainly arguable -- and perhaps even probable -- in preparing an incident report after a slip-and-fall, it is incumbent on the Defendant to show that its agent's primary motivation in preparing the report was its possible use in future litigation. The Court finds that the Magistrate Judge's order is contrary to law, and proceeds by applying the correct legal standard to the documents at issue.")

Case Date Jurisidction State Cite Checked
2014-10-27 Federal GA

Chapter: 37.6

Case Name: Wartell v. Purdue University, Case No. 1:13-cv-00099RLM-APR, 2014 U.S. Dist. LEXIS 100855 (N.D. Ind. July 24, 2014)
(analyzing privilege for an investigation conducted by a lawyer acting as an "independent investigator" with the approval of a professor and the university; "Purdue has acknowledged that its ordinary course of action to respond to an employee complaint was to conduct an investigation as was performed by Trimble. Therefore, the report was not prepared solely because litigation was imminent, and the record is devoid of evidence that the report was done in preparation of litigation. This further is supported by the fact that a non-attorney employee usually conducted the investigation, in which case, there would not be any privilege. The only apparent reason Purdue varied from its ordinary procedure was because of the potential for conflict. For those reasons, the documents prepared by Trimble were not created in anticipation of litigation and are not protected by the work product privilege.")

Case Date Jurisidction State Cite Checked
2014-07-24 Federal IN

Chapter: 37.6

Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644C/W10-106 Ref: All Cases Section "N" (3), 2014 U.S. Dist. LEXIS 93881 (E.D. La. July 10, 2014)
("[T]he parties asserting the privilege must demonstrate that a substantial probability of litigation existed at the time the material sought to be protected was created.")

Case Date Jurisidction State Cite Checked
2014-07-10 Federal LA

Chapter: 37.6

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("A document created when litigation is only 'in the air' is not work product. . . . The mere fact that a party may have had a claim is also insufficient; a substantial and significant threat of litigation has to exist.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 37.6

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("Work-product protection does not apply if the prospect of future litigation was remote at the time the document was created.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 37.6

Case Name: Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 U.S. Dist. LEXIS 69257 (E.D. Cal. May 20, 2014)
(analyzing privilege and work product protection for a consultant's report following an anonymous complaint about discrimination; "Moreover, the draft report itself does not reflect the County's strategies or legal theories in any respect. Rather, it was created by the consulting firm which was tasked by County Counsel with conducting a preliminary investigation and presenting its findings."; "[T]he court finds that the Spectrum Consulting Report was not created in anticipation of litigation. The fact that there was one anonymous complaint is too general and amorphous to be considered a legitimate impetus for litigation. To be protected as work product, there must be a real possibility of litigation.")

Case Date Jurisidction State Cite Checked
2014-05-20 Federal CA

Chapter: 37.6

Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., Case No. 12-2350-SAC, 2014 U.S. Dist. LEXIS 25908, at *18, *19 (D. Kan. Feb. 28, 2014)
April 23, 2014 (PRIVILEGE POINT)

"Courts Disagree About Basic Work Product Principles: Part II"

Last week's Privilege Point described three different levels of protection three courts provided to opinion work product in about a three-week period. Courts also disagree about many other work product doctrine elements.

In U.S. Nutraceuticals LLC v. Cyanotech Corp., the court noted that federal courts defining the required "anticipation" element hold "that litigation need not be imminent, but rather a 'real possibility' at the time the documents in question are prepared." Case No. 5:12-cv-366-Oc-10PRL, 2014 U.S. Dist. LEXIS 22739, at *6 (M.D. Fla. Feb. 19, 2014) (citation omitted). Nine days later, another court articulated two different and internally inconsistent standards in the same paragraph: (1) "there was real and substantial probability that litigation will occur at the time of the document's creation," and (2) "the threat of litigation must be 'real' and 'imminent.'" Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., Case No. 12-2350-SAC, 2014 U.S. Dist. LEXIS 25908, at *18, *19 (D. Kan. Feb. 28, 2014) (citation omitted).

In addition to understanding the substantively different standards, lawyers should also recognize the risks of articulating the wrong standard. Clients contemporaneously noting in a document that they are facing the "real possibility" of litigation may have to explain that, at some later time, the litigation threat became "imminent."

Case Date Jurisidction State Cite Checked
2014-02-28 Federal KS
Comment:

key case


Chapter: 37.6

Case Name: U.S. Nutraceuticals LLC v. Cyanotech Corp., Case No. 5:12-cv-366-Oc-10PRL, 2014 U.S. Dist. LEXIS 22739, at *6 (M.D. Fla. Feb. 19, 2014)
April 23, 2014 (PRIVILEGE POINT)

"Courts Disagree About Basic Work Product Principles: Part II"

Last week's Privilege Point described three different levels of protection three courts provided to opinion work product in about a three-week period. Courts also disagree about many other work product doctrine elements.

In U.S. Nutraceuticals LLC v. Cyanotech Corp., the court noted that federal courts defining the required "anticipation" element hold "that litigation need not be imminent, but rather a 'real possibility' at the time the documents in question are prepared." Case No. 5:12-cv-366-Oc-10PRL, 2014 U.S. Dist. LEXIS 22739, at *6 (M.D. Fla. Feb. 19, 2014) (citation omitted). Nine days later, another court articulated two different and internally inconsistent standards in the same paragraph: (1) "there was real and substantial probability that litigation will occur at the time of the document's creation," and (2) "the threat of litigation must be 'real' and 'imminent.'" Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., Case No. 12-2350-SAC, 2014 U.S. Dist. LEXIS 25908, at *18, *19 (D. Kan. Feb. 28, 2014) (citation omitted).

In addition to understanding the substantively different standards, lawyers should also recognize the risks of articulating the wrong standard. Clients contemporaneously noting in a document that they are facing the "real possibility" of litigation may have to explain that, at some later time, the litigation threat became "imminent."

Case Date Jurisidction State Cite Checked
2014-02-19 Federal FL
Comment:

key case


Chapter: 37.6

Case Name: U.S. Nutraceuticals LLC v. Cyanotech Corp., Case No. 5:12-cv-366-Oc-10PRL, 2014 U.S. Dist. LEXIS 22739, at *6 (M.D. Fla. Feb. 19, 2014)
("Other federal courts have followed suit, articulating that litigation need not be imminent, but rather a 'real possibility' at the time the documents in question are prepared." (citation omitted))

Case Date Jurisidction State Cite Checked
2014-02-19 Federal FL B 7/14

Chapter: 37.6

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *18 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "The fact that DuPont's consultation services continued well beyond the pendency of any then-existing claims leads the Undersigned to conclude that DuPont was not primarily engaged because of any specific pending litigation, but rather to curb against future litigation as a more general matter. Even if, to use Ms. Vazquez's words, 'the prospect of litigation against Carnival is always imminent' . . ., the work product doctrine does not apply 'to materials prepared simply because there is a "general possibility" that litigation will ensue in the future.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 37.6

Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 617-18 (D. Kan. 2014)
("When determining whether a document was prepared in anticipation for litigation, the objecting party must show there was real and substantial probability that litigation will occur at the time of the document's creation. . . . [T]he threat of litigation must be 'real' and 'imminent.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 Federal KS B 8/14

Chapter: 37.6

Case Name: In re Baytown Nissan Inc. v. Gray, 451 S.W.3d 140, 148 (Tex. App. 2014)
("The 'anticipation of litigation' test is met when a reasonable person would have concluded from the totality of the circumstances that there was a substantial chance that litigation would ensue and the party asserting the work product privilege subjectively believed in good faith that there was a substantial chance that litigation would ensue.")

Case Date Jurisidction State Cite Checked
2014-01-01 State TX B 8/15

Chapter: 37.6

Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 108637, at *6 (S.D. Ind. Aug. 2, 2013)
(in a first party insurance context, deciding that the insurance company reasonably anticipated litigation two years after a denied coverage, when the insurance company and the insured entered into a tolling agreement; "For a party to reasonably anticipate litigation, it must demonstrate that: a claim, likely to lead to litigation, had arisen at the time those documents were prepared; litigation was probable and imminent; or there existed impending litigation when the materials were made.")

Case Date Jurisidction State Cite Checked
2013-08-02 Federal IN B 4/14

Chapter: 37.6

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *116 (D. Minn. June 4, 2013)
("A hypothetical assumption that litigation will occur, even in cases where there might be little to no actual possibility of litigation, is not equivalent with anticipating litigation.")

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 37.6

Case Name: Walter v. Travelers Pers. Ins. Co., Civ. No. 4:12-CV-346, 2013 U.S. Dist. LEXIS 72771, at *11 (M.D. Pa. May 22, 2013)
(in a first party insurance case, finding that insurance company documents deserved privilege and work product protection; "It is not necessary that litigation has been commenced or even threatened before a document can be found to have been prepared in anticipation of litigation. . . . However, documents will come within the scope of the work-product doctrine only where the documents were prepared primarily in anticipation of future litigation.")

Case Date Jurisidction State Cite Checked
2013-05-22 Federal PA B 4/14

Chapter: 37.6

Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 4 (W.D. Va. 2013)
("'[T]he mere prospect of litigation is not enough.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal WA B 5/14

Chapter: 37.6

Case Name: A.N.S.W.E.R. Coalition v. Jewell, 292 F.R.D. 44, 49 (D.D.C. 2013)
("The Court rejects ANSWER's contention that the documents cannot be protected as attorney work product simply because the present litigation had not yet commenced. Not only was such litigation 'fairly foreseeable,' but the possibility of litigation is explicitly discussed in these documents.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal DC B 3/14

Chapter: 37.6

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 635 (D. Nev. 2013)
("Most courts which have confronted the issue conclude that some remote prospect of litigation is not sufficient.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 37.6

Case Name: State ex rel. Toledo Blade Co. v. City of Toledo, 2013-Ohio-3094, at ¶ 12 (Ohio Ct. App. 2013)
("To be considered work product, however, a record must have been assembled in connection with an actual pending or highly probable criminal prosecution. . . . A criminal proceeding is considered probable or highly probable 'even where the police have not yet identified a suspect, as long as it is clear that a crime has in fact been committed.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 State OH B 4/14

Chapter: 37.6

Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 219 (N.D. Ill. 2013)
(holding that a bank's spreadsheets about low risk analysis did not deserve privilege or work product protection; "The Court assumes that sophisticated lenders such as RBS are always, to some extent, anticipating the possibility of foreclosure. . . . Thus, the Court must determine when the relationship transformed from a 'remote prospect of litigation' to an 'articulable claim, likely to lead to litigation.'. . . RBS alleges that it retained counsel in July 2008 'to evaluate how best to recover its loans to Defendants and resolve its relationship with Defendants,' and that at that point, 'litigation was anticipated.'. . . That Defendants defaulted on their loans in July 2008 is borne out by some of the disputed documents from July 2008, so the Court now turns to determining whether those documents would have been prepared if litigation was not anticipated.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 37.6

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 867 (Tex. Ct. App. 2013)
(The first prong requires an objective examination of the facts with consideration being given to outward manifestations that indicate litigation is imminent.")

Case Date Jurisidction State Cite Checked
2013-01-01 State TX B 4/14

Chapter: 37.6

Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *25 (D. Kan. Nov. 13, 2012)
("The doctrine only justifies protection when the threat of litigation is real and imminent.")

Case Date Jurisidction State Cite Checked
2012-11-13 Federal KS B 7/13

Chapter: 37.6

Case Name: Am. Immigration Council v. United States Dep't of Homeland Sec., 905 F Supp. 2d 206, 221 (D.D.C. 2012)
("[T]he 'mere possibility' of litigation is not enough." (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 37.6

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 135-36 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "In this Circuit, it is still somewhat unclear how specifically a party must anticipate litigation in order to invoke the work-product doctrine in the context of a corporate internal investigation. Thus far, the Circuit has employed two standards of specificity. In one line of cases, the Circuit has insisted that, in order for work-product protection to apply, 'the documents must at least have been prepared with a specific claim supported by concrete facts which would likely lead to litigation in mind.'. . . In another line of cases, however, the Circuit has eschewed a 'specific claim' requirement and has instead employed a more lenient standard, extending work-product protection to 'documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated.'" (citations omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 37.6

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012)
("West's affidavits also do not support the application of the work-product doctrine. West's affidavits confirm that many of the withheld emails were an effort to respond to Gilbert's inquiries. West states only that he coordinated the response to Gilbert's inquiries 'because the matter involved legal issues . . . and the potential for claims of litigation,' and 'EQT anticipated that litigation could ensue.'")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 37.6

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, *7 (W.D. Va. June 15, 2011)
("With respect to work product claims by insurance companies, '[t]he nature of the insurance business requires an investigation prior to the determination of the insured's claim.' State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984). Thus, there is no bright-line test for when work product protection applies for insurance companies, and instead courts must undertake a case-by-case analysis. Id. at 238. 'This approach realistically recognizes that at some point an insurance company shifts its activity from the ordinary course of business to anticipation of litigation.' Id. The 'pivotal point' is when the probability of litigation becomes 'substantial and imminent,' or stated otherwise, when litigation becomes 'fairly foreseeable.' Id.")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA
Comment:

key case


Chapter: 37.6

Case Name: Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *7-9 (W.D. Va. June 15, 2011)
("Donegal argues the pivotal date in this case was November 19, 2008 when it informed the Botkins that it was denying coverage for the two antique automobiles and the Botkins told Donegal they planned to contact an attorney. But a formal denial letter was not mailed to the Botkins until January, 2009. Still, it is clear from a review of the claim file notes that the decision to deny coverage was made and communicated to the Botkins in November, 2008. Donegal's position on the issue of coverage did not change after that point. It made no representation that its investigation was ongoing. Cf. Schwarz & Schwarz of Va. v. Certain Underwriters at Lloyd's, London, No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, 2009 WL 1043929, at *3 (W.D. Va. Apr. 17, 2009) (finding work product protection attached as of the date Lloyd's disclaimed coverage, because in camera review revealed investigation was ongoing prior to that date). Rather, Donegal clearly articulated the status of the Botkins' claim as regards the two antique automobiles coverage was denied. Given the particular facts of this case, the court finds November 19, 2008 to be the pivotal point at which the prospect of litigation became 'substantial and imminent,' or 'fairly foreseeable.' See Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 257 (W.D. Va. 1999) (finding litigation was not 'substantial and imminent' until the insurance carrier decided it was not going to pay this claim and notified the insured); see also [State Farm Fire & Cas. Co. v.] Perrigan, 102 F.R.D. [235,] 239 [(W.D. Va. 1984)] (determining that an insurance investigative report was discoverable, in part, because when it was created, the insurer 'was in the process of adjusting the claim . . . . [and] had not decided whether to pay the loss')." (footnote omitted))

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA B 3/16

Chapter: 37.6

Case Name: Yorktowne Shopping Ctr., LLC v. Nat'l Sur. Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *3 (E.D. Va. May 16, 2011)
("A document is prepared 'in anticipation of litigation' if it was created because of an event or series of events that could reasonably lead to litigation, and if it would not have been prepared in a substantially similar form but for the prospect of litigation. RLI Ins. Co. v. Conseco, Inc., 477 F.Supp. 2d 741, 746-48 (E.D. Va. 2007).")

Case Date Jurisidction State Cite Checked
2011-05-16 Federal VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: Yorktowne Shopping Ctr., LLC v. Nat'l Sur. Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *3-4 (E.D. Va. May 16, 2011)
(in a first-party insurance case, finding that the work product doctrine protected the documents prepared under the direction of the insured's lawyer by a public adjuster retained by the insured; "Upon in camera review of these documents, the Court finds that work product protection applies. First, each document in issue was created by or under the direction of Yorktowne's [insured] attorney, Mitchell Weitzman or Yorktowne's agent, Sill [public adjuster retained by Yorktowne]. Plaintiff hired Sill to maximize its coverage under the NSC policy, which required Sill and Yorktowne to work together with Attorney Weitzman, as representatives of Yorktowne. Reports and other analyses prepared by Sill were created to assist Mr. Weitzman in his representation of Yorktowne. Moreover, each communication identified on plaintiff's privilege log pertained to Mr. Weitzman's representation of Yorktowne, and included detailed legal analysis of Yorktowne's coverage objective. Also, plaintiff clearly anticipated imminent litigation between Yorktowne and Insurance Company if the claims were not settled amicably." (footnote omitted))

Case Date Jurisidction State Cite Checked
2011-05-16 Federal VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *11 (E.D. Va. Apr. 13, 2010)
("[T]o show that a document was produced 'because of' litigation, the party asserting the protection must show that: (1) the party faces an actual claim, or a potential claim that reasonably could result in litigation, and (2) 'the work product "would not have been prepared in substantially similar form but for the prospect of that litigation."' [RLI Insurance Co. v. Conseco, Inc., 477 F. Supp. 2d 741,] 748 [(E.D. Va. 2007)] (footnote omitted))")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: Atl. Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 478 (Va. Cir. Ct. 2009)
("[T]he Court utilized a 'reasonable person' standard, stating that anticipation of litigation 'does not mean that the litigation must be immediate, nor need there be knowledge that an attorney has been hired or has threatened suit.' [Smith v. Nat'l R.R. Passenger Corp., 22 Va. Cir. 348, 352 (1991).]")

Case Date Jurisidction State Cite Checked
2009-01-01 State VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007)
("The preparation of work merely because an attorney 'anticipates the contingency' of litigation is not sufficient to qualify the work for the protection afforded by the work product doctrine." (citation omitted)).

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA
Comment:

key case


Chapter: 37.6

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 177 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "For the same reasons that this Court declines to adopt a bright-line rule granting work product protection to all documents prepared after the moment of a railroad incident, the Court also declines to adopt a bright-line rule refusing work product protection to all documents prepared before receipt of a formal claim and granting protection to documents prepared after receipt of a formal claim. Larson [v. McGuire], 42 Va. Cir. [40,] 45 [(1997)] (rejecting application of such bright-line tests). Such arbitrary bright-line rules fail to consider the myriad of factors that must be considered in a case-by-case analysis. While it is true that the absence of a formal claim in this matter is a factor to be considered, the other factors reviewed above outweigh the absence of a formal claim at the time the entries were made on the memorandum. For these reasons, the Court finds that a reasonable person in the shoes of NPBL, at the time the memorandum was produced, would have anticipated or reasonably foreseen litigation. Therefore, the court concludes that based upon the evidence presented in this matter, the memorandum was produced because of expected litigation and is entitled to the qualified work product privilege of Va. Sup. Ct. R. 4:1(b)(3). Smith [v. Nat'l Passenger R.R. Corp.], 22 Va.Cir. ]34,] 353 [(1991)], Gargano v. Metro-North, 222 F.R.D. 38, 40 (D.Conn. 2004), Ex Parte Norfolk Southern Railway Company, 897 So.2d 290, 294-5 (Ala. 2004), Fla. E. Coast Ry. V. Jones, 847 So. 2d 1118, 1119 (Fla.App. 2003), Eoppolo v. National Passenger Corp., 108 F.R.D. 292, 294 (E.D.Pa. 1985).")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA B 5/16

Chapter: 37.6

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 175 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "[T]he plaintiff reported this incident to NPBL [railroad] on the day that it took place. NPBL responded immediately by inspecting the pole referenced by plaintiff and having it straightened. In determining whether NPBL could have reasonably foreseen litigation when the memorandum was prepared, the Court considers the fact that NPBL was aware of an alleged incident and possible injury and apparently confirmed the condition of the alleged injury mechanism a fence post/pole leaning toward the railroad tracks. Such knowledge of an incident, along with facts tending to corroborate the report of the incident (the pole was apparently leaning toward the tracks upon inspection after the incident), create the predicate for NPBL to reasonably foresee litigation.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA B 3/16

Chapter: 37.6

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 175-76 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "NPBL's Vice President testified that because of the unique liability scheme of the FELA, and because 95% of all incident reports to NPBL result in claims, it was company policy for supervisors of injured workers to prepare such memoranda when any incident occurs. The knowledge that 95% of all incident reports result in claims, combined with the unique negligence standard and law that applies to FELA claims, also tends to create a basis for NPBL to reasonably foresee litigation. NPBL's argument, that it reasonably foresaw litigation from the moment it learned of the incident, is reinforced by Donnelly's testimony that when he learned of plaintiff's incident he assumed, based in part on the fact that plaintiff was a union official, that plaintiff would file a claim.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA
Comment:

key case


Chapter: 37.6

Case Name: Gochenour v. Sears, Roebuck & Co., At Law No. 28405, 2003 Va. Cir. LEXIS 386, at *2, *2-3 (Va. Cir. Ct. June 10, 2003)
(assessing a work product protection claim for an incident report prepared by Sears in connection with an accident in which plaintiff was injured by a falling metal display rack; holding that "statements taken when litigation was 'reasonably foreseeable' are protected, even though taken during the ordinary course of business"; holding the "contemporaneous narrative of the events giving rise to the instant cause of action" had an "aura of reliability not found in historical narratives prepared months later"; explaining that "[b]ecause it is a contemporaneous narrative, it cannot be duplicated. It is of peculiar and substantial importance to counsel in evaluating, preparing, and presenting plaintiff's case. It is a potential wellspring to be used in responding to discovery, preparing for testimony, evaluating settlement offers, refreshing recollection, and impeachment. There is no substitute for such a document in the arsenal of discovery available to the plaintiff."; ordering the incident report produced)

Case Date Jurisidction State Cite Checked
2003-06-10 State VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: McCormick v. White, No. 4:97CV44, slip op. at 8-9 (E.D. Va. Aug. 14, 1997)
("Determining whether materials are prepared in anticipation of litigation is not an easy task 'because litigation is an ever-present possibility in American life.' To have been prepared in anticipation of litigation, '[t]he document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
1997-08-14 Federal VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 472 (Va. Cir. Ct. 1996)
("With regard to the statements made by Defendant's employees which were requested in the subpoena, Plaintiff was able to and did in fact depose said employees and therefore was not 'unable without undue hardship to obtain the substantial equivalent of the materials by other means.' Typically, such statements are only discoverable when made by witnesses to an event where the passage of a substantial period of time between the occurrence of the event and the plaintiff's opportunity to depose them may lead to an erosion of the fullness and accuracy of their testimony. This does not appear to be an issue of concern in this case. However, because those statements taken prior to the point at which the likelihood that litigation would ensue became 'substantial and imminent' do not qualify as work-product, they are discoverable.")

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 37.6

Case Name: Whitehurst v. Lloyd, 37 Va. Cir. 224, 224 (Va. Cir. Ct. 1995)
(applying the work product doctrine to a statement taken by the insurer four days after plaintiff's motor vehicle accident; "Under the facts of this case, it was reasonably foreseeable that litigation would ensue at the time the statement was taken.")

Case Date Jurisidction State Cite Checked
1995-01-01 State VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: Darnell v. McMurray, 141 F.R.D. 433, 435 (W.D. Va. 1992)
("'the probability of litigating the claim is substantial and imminent' or . . . 'litigation was fairly foreseeable at the time the memorand[um was] prepared'") (quoting State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 238 (W.D. Va. 1984)) (holding that a state police report was "instituted as part of the normal procedure following the discharge of weapons resulting in injury" and therefore was not protected by the work product doctrine because "the lawsuit was certainly not imminent" at the time it was prepared)

Case Date Jurisidction State Cite Checked
1992-01-01 Federal VA

Chapter: 37.6

Case Name: Ritzer v. Koons Pontiac, Olds, GMC Truck, Inc, 23 Va. Cir. 286, 287 (Va. Cir. Ct. 1991)
(". . . In the event a document is prepared under a substantial probability that litigation will occur and in anticipation of such litigation, it also may be a privileged [work product] and not subject to discovery.")

Case Date Jurisidction State Cite Checked
1991-01-01 State VA B 3/16
Comment:

key case


Chapter: 37.6

Case Name: Smith v. Nat'l R.R. Passenger Corp., 22 Va. Cir. 348, 349, 351-52, 352-53, 353 (Va. Cir. Ct. 1991)
(analyzing work product protection for a post-incident report prepared by a railroad; ultimately finding that the incident report deserved privilege protection, and that the plaintiff could not overcome the protection; "Here defendant conducted its investigation within a few days of the injury in accordance with its normal policy and procedure. It conducts investigations of job injuries for, among other reasons, settlement of claims, correction of safety defects, and for litigation if the case progresses to that point."; "Benson [W.T. Benson, Corporation and Institutional Accident Investigations as Work Product Pursuant to the Rules of the Supreme Court of Virginia, 17 U. Rich. L. Rev. 285, 309 (1983)] advocates that a 'reasonably foreseeable' test be applied by the circuit courts in Virginia to determine what constitutes materials prepared in anticipation of litigation. If a reasonable person in the shoes of the party resisting discovery would have anticipated or reasonably foreseen litigation at the time the material was produced, it should enjoy the qualified protection of Rule 4:1(b)(3). This court finds that test and Benson's rationale for it more consistent with the language and purpose of the rule than does the mechanical 'if it was prepared in the ordinary course of business, it is not protected' analysis found in McDougall. If that were the proper test, how would the investigations, analysis, etc., of the plaintiff's attorney be protected from discovery? Clearly this material is prepared in the usual course of the attorney's business."; concluding that the plaintiff could not overcome the railroad's work product protection; "Here plaintiff was injured while on the job. The evidence establishes that NRPC conducts an investigation of every reported employee injury as soon as possible after its occurrence for several reasons, one of which is that the matter may result in litigation. Applying a reasonably prudent person standard to these facts, the court finds that in the face of the event which gave rise to the motion for judgment, a reasonably prudent railroad employer could anticipate litigation as a result, making the reports which were produced from the investigations of the accident work product protected by Rule 4:1(b)(3)."; "He has been given the names of all persons having knowledge of the injury. His own investigation should produce substantially the same information he seeks from NRPC without undue hardship. What he seeks is the defense case without the effort of his own investigation. He has made no showing of circumstances which would meet those requirements for disclosure; therefore, his motion to compel the production of the investigative reports is overruled.")

Case Date Jurisidction State Cite Checked
1991-01-01 State VA

Chapter: 37.6

Case Name: Potter v. Hazel, 17 Va. Cir. 408, 409 (Va. Cir. Ct. 1989)
("Nothing before the Court supports the conclusion that the documents were requested or guided by an attorney, and the mere possibility that litigation would arise is insufficient to bar discovery of the documents requested in this case.")

Case Date Jurisidction State Cite Checked
1989-01-01 State VA

Chapter: 37.6

Case Name: Commonwealth v. Edwards, 235 Va. 499, 510, 370 S.E.2d 296, 302 (1988)
(finding that work product protection covers documents prepared "with an eye toward litigation").

Case Date Jurisidction State Cite Checked
1988-01-01 State VA

Chapter: 37.502

Case Name: Doe v. Tippecanoe School Corp., Cause No.: 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)
("The pages at issue here are part of a larger document that was created for the purpose of training TSC employees. The document's title and deposition testimony by TSC employees indicate that the training was meant to enable the employees to investigate and prevent inappropriate relationships between TSC's students and staff. Though the document may not have been created if the instant litigation had not been initiated, the primary motivating purpose behind the creation of the document was to train staff to identify or avoid future incidents, not for use in defending the instant lawsuit or any future theoretical lawsuit.")

Case Date Jurisidction State Cite Checked
2017-01-10 Federal ID
Comment:

key case


Chapter: 37.502

Case Name: Electronic Privacy Information Center v. DEA, Civ. A. No. 14-317 (EGS), 2016 U.S. Dist. LEXIS 82351 (D.D.C. June 24, 2016)
("While some articulable claim likely to lead to litigation must have arisen, the work product doctrine protects communications even if no specific claim is contemplated.")

Case Date Jurisidction State Cite Checked
2016-06-24 Federal DC
Comment:

key case


Chapter: 37.502

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
(finding that work product protection depended on a specific identifiable claim; "As for the policies and procedures governing interviews with confidential witnesses, Plaintiffs have not met their burden of proving that these materials are protected work product. According to Plaintiffs' counsel, the policies and procedures apply generally to the law firm's investigation of confidential witnesses. . . . Plaintiffs contend that because the policies were meant to be used when litigation is contemplated and imminent, the policies are subject to work-product protection."; "[T]here must be some identifiable prospect of litigation that led to the documents' creation. . . . In contrast, documents that merely set forth a general strategy or template that might relate to or be relevant to future litigation are not prepared in anticipation of a particular trial."; "Policies and procedures describing interviews with confidential witnesses constitute such general instructions to attorneys and investigators at Plaintiff's counsel's firm. Plaintiffs have not offered any evidence that demonstrates that these policies and procedures were developed in anticipation of specific litigation. Instead, they appear to concede that the policies were created for litigation generally, without reference to any particular claim. The mere possibility of future litigation is not enough. Nor is the fact that the policies were eventually applied to specific, anticipated or actual litigation. Accordingly, the policies themselves are not subject to work product protection.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA

Chapter: 37.502

Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "Here, PHL contends that the Report was prepared in anticipation of potential litigation, and that such litigation was actually filed. It cites only conclusory statements in two declarations that the Report was 'prepared' or 'drafted in anticipation of litigation' and that 'PHL pursued litigation on several policies discussed in the [R]eport after the [R]eport's delivery to PHL.'. . . The fact that the subject matter of the Report could conceivably be litigated and likely was litigated at some point is not determinative. The Report was prepared long before this action was filed, and PHL has not pointed to any particular litigation anticipated by the Report. Additionally, in reviewing the Report, the Court finds that it was not 'mapping litigation strategy.'. . . The Report is primarily a business planning document aimed at minimizing the economic risk of STOLI policies. Thus, the Court finds that the Report as a whole was not drafted in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-03-30 Federal MN

Chapter: 37.502

Case Name: Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Case No. 12-81397-CIV-Marra/Matthewman, 2015 U.S. Dist. LEXIS 170738 (S.D. Fla. Dec. 18, 2015)
(analyzing work product issues in a first party coverage dispute; "The District Judge found that the Milinazzo [Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691 (S.D. Fla. 2007)] and Harper [Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D. Ind. 1991)] rebuttable presumptions -- that all documents prepared before the final decision on an insured's claim are not work product, and that documents prepared after the final decision are work product -- should only be applied to insurance companies and not to an insured, such as Sun Capital."; "After engaging in a routine work product analysis unaffected by the Milinazzo and Harper rebuttable presumptions, the Court finds that Sun Capital has failed to meet its burden of demonstrating that the withheld documents were prepared in anticipation of litigation. The Court finds that Sun Capital has failed to establish that it reasonably anticipated litigation as of September 2, 2010, or alternatively as of February, 2011. Rather, the Court finds that Sun Capital reasonably anticipated litigation as of November 2, 2012.").

Case Date Jurisidction State Cite Checked
2015-12-18 Federal FL

Chapter: 37.502

Case Name: Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Case No. 12-81397-CIV-Marra/Matthewman, 2015 U.S. Dist. LEXIS 170738 (S.D. Fla. Dec. 18, 2015)
(analyzing work product issues in a first party coverage dispute; "The undersigned agrees that the results are the same when applying either test in this case. Indeed, applying either the 'because of litigation' test or the 'primary motivating purpose' test, the Court finds, without application of the Milinazzo [Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691 (S.D. Fla. 2007)] or Harper [Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D. Ind. 1991)] rebuttable presumptions, that Sun Capital did not reasonably anticipate litigation until November 2, 2012. There are many reasons for this finding.").

Case Date Jurisidction State Cite Checked
2015-12-18 Federal FL

Chapter: 37.502

Case Name: Smith v. Progressive Specialty Ins. Co., 2:15-cv-528, 2015 U.S. Dist. LEXIS 167618 (W.D. Pa. Dec. 15, 2015)
(analyzing protections in a bad faith insurance case, which the court analogized to a third party claim; "The Court instead finds that Defendant could not be said to have reasonably anticipated litigation -- i.e., to have shifted gears from adjusting the claim to preparing to litigate -- until January 27, 2015, at the absolute earliest. It was not until then that Defendant's position and Plaintiff's position as to the extent of Plaintiff's damages and lost wages appear to have really come to loggerheads. It was also not until this time that the claims representative contacted outside counsel for assistance in handling the claim. As a result, documents prepared before this date fall outside of the scope of the work product doctrine. The Court will order Defendant to produce all claims notes entries that predate January 27, 2015, to Plaintiff in un-redacted form on or before December 29, 2015.").

Case Date Jurisidction State Cite Checked
2015-12-15 Federal PA

Chapter: 37.502

Case Name: Smith v. Progressive Specialty Ins. Co., 2:15-cv-528, 2015 U.S. Dist. LEXIS 167618 (W.D. Pa. Dec. 15, 2015)
(analyzing protections in a bad faith insurance case, which the court analogized to a third party claim; "The Court disagrees. Just because a UIM claim is inherently adversarial does not mean that litigation is anticipated as soon as such a claim is asserted by an insured. . . . Borgia, Defendant 'has not pointed to anything in the record suggesting it actually anticipated litigation' whenever it was put on notice of the potential UIM claim in January 2014.").

Case Date Jurisidction State Cite Checked
2015-12-15 Federal PA

Chapter: 37.502

Case Name: Thompson v. DOJ, Civ. A. No. 14-1786 (JEB), 2015 U.S. Dist. LEXIS 156267 (D.D.C. Nov. 19, 2015)
(finding the documents deserved work product protection; noting that they involved a specific claim; "The second and third categories of documents listed above, while undeniably part of an attorney's work product, possess a partially administrative character. These documents include system logging notes indicating that OEO has received a request from a prosecutor for permission to apply for a Title III order and emails from ESU attorneys to AUSAs acknowledging receipt of Title III applications. Because these quasi-administrative records were compiled in anticipation of a specific criminal prosecution and are not generic agency records maintained for some conceivable future litigation, this Court joins several other courts in this District that have held that the work-product privilege protects them.").

Case Date Jurisidction State Cite Checked
2015-11-19 Federal DC

Chapter: 37.502

Case Name: Thompson v. U.S. Department of Justice, Civ. A. No. 14-1786 (JEB), 2015 U.S. Dist. LEXIS 156267, at *25 (D.D.C. Nov. 19, 2015)
December 30, 2015 (PRIVILEGE POINT)

"Courts Analyze Work Product Doctrine Variations: Part I"

Although the Federal Rules of Civil Procedure describe the work product doctrine in a single sentence, federal courts interpret that sentence in wildly varied ways. Four federal court decisions issued in just a nine-day stretch of November 2015 highlight a few of these enormous variations.

First, Fed. R. Civ. P. 26(b)(3) protects certain documents prepared in anticipation of "litigation." Regular civil or criminal litigation clearly meets that standard, but courts disagree about the doctrine's application in other settings – such as administrative hearings. In Tracy v. Telemetrix, Inc., No. 8:12CV359, 2015 U.S. Dist. LEXIS 153852, at *18-19 (D. Neb. Nov. 13, 2015), the court implicitly held that arbitration met this "litigation" standard. Courts disagree about the doctrine's applicability to less directly adverse events such as mediations. Second, courts disagree about whether the work product doctrine only applies when a specific identifiable claim might result in litigation. In Thompson v. U.S. Department of Justice, Civ. A. No. 14-1786 (JEB), 2015 U.S. Dist. LEXIS 156267, at *25 (D.D.C. Nov. 19, 2015), the court protected as work product government documents because the government prepared them "in anticipation of a specific criminal prosecution" – and because they were "not generic agency records maintained for some conceivable future litigation." Courts requiring a "specific claim" sometimes deny work product protection for corporations' process-related documents outlining how the corporation will respond to some future claim, etc. Other courts protect such logistical documents.

In addition to courts' disagreement about the initial "litigation" work product element, previous Privilege Points have noted the even wider gap in courts' application of the second work product element – the "anticipation" requirement. That variation ranges from requiring "imminent" litigation to merely "some possibility" of litigation. Next week's Privilege Point addresses two more variations.

Case Date Jurisidction State Cite Checked
2015-11-19 Federal DC
Comment:

key case


Chapter: 37.502

Case Name: National Assoc. of Crim. Defense Lawyers v. Exec. Ofc. for United States Attnys., Civ. A. No. 14-269 (CKK), 2014 U.S. Dist. LEXIS 175052 (D.D.C. Dec. 18, 2014)
(holding that a DOJ "Blue Book" deserved work product protection; "The Blue Book is a 'litigation manual' available only to DOJ personnel that 'advise[s] federal prosecutors on the legal sources of their discovery obligations as well as the types of discovery related claims and issues that they would confront in criminal investigations and prosecutions.'. . . As such, the Blue Book is most likely to fall into the second category of protected documents -- i.e. documents prepared in anticipation of foreseeable litigation against the agency -- and not the category of documents related to active investigation of potential wrongdoing that require specific claims.")

Case Date Jurisidction State Cite Checked
2014-12-18 Federal DC

Chapter: 37.502

Case Name: Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 U.S. Dist. LEXIS 69257 (E.D. Cal. May 20, 2014)
(analyzing privilege and work product protection for a consultant's report following an anonymous complaint about discrimination; "[T]he report is based on an anonymous complaint. This is not the situation where an employee who was terminated, and who had threatened litigation, made the complaint. There is no evidence that plaintiff made the complaint.")

Case Date Jurisidction State Cite Checked
2014-05-20 Federal CA

Chapter: 37.502

Case Name: Judicial Watch, Inc. v. United States Dep't of Housing & Urban Dev., Civ. A. No. 12-1785 (ESH), 2014 U.S. Dist. LEXIS 25882, at *21 (D.D.C. Feb. 28, 2014)
("The privilege 'extends [even] to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated.'")

Case Date Jurisidction State Cite Checked
2014-02-28 Federal DC B 8/14

Chapter: 37.502

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *17 n.9, *16-17 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "At the hearing, Carnival took the position that the work product doctrine does not necessarily need to be tied to a particular claim or lawsuit, but, instead, can apply to undertakings made in an overall general effort to curb or manage litigation in general."; "Carnival withdrew from the argument it made at the discovery hearing, and explained that its consultation with DuPont was both related to two then-existing lawsuits and also aimed at curbing future litigation. . . . Carnival advised that its counsel misspoke at the hearing when he advised that the DuPont work did not relate to specific litigation. Therefore, Carnival's post-hearing argument is that the work product doctrine 'most certainly applies.'")

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 37.502

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *18 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "The fact that DuPont's consultation services continued well beyond the pendency of any then-existing claims leads the Undersigned to conclude that DuPont was not primarily engaged because of any specific pending litigation, but rather to curb against future litigation as a more general matter. Even if, to use Ms. Vazquez's words, 'the prospect of litigation against Carnival is always imminent' . . ., the work product doctrine does not apply 'to materials prepared simply because there is a "general possibility" that litigation will ensue in the future.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 37.502

Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *11-12 (N.D. Cal. Dec. 17, 2013)
(holding that documents prepared by Ben & Jerry's parent Unilever did not deserve privilege or work product protection, because they were prepared in the ordinary course of business, and there was no "actual litigation" anticipated; "Declarations from Unilever employees that the purpose of the initiative was to ensure compliance with the law and address 'potential future litigation' cannot create a blanket work-product protection for every document related to a particular business venture. . . . The awareness that there might potentially be legal consequences to certain actions does not 'anticipate litigation' as required by the work-product doctrine. Defendant has not shown that it anticipated any actual lawsuit: it has not cited any demand letters or other threats of a lawsuit from anyone, much less an actual suit.")

Case Date Jurisidction State Cite Checked
2013-12-17 Federal CA B 5/14

Chapter: 37.502

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *95-96 (D. Minn. June 4, 2013)
("To establish that it anticipated litigation at the time that it created the work product, Wells Fargo need not demonstrate that litigation was already in progress. . . . On the other hand, 'the work product rule does not . . . come into play merely because there is a remote prospect of future litigation' or because an issue 'might ultimately result in litigation of some sort in the future.'. . . To receive work product protection, documents must be prepared after a 'specific threat' of litigation became 'palpable.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 37.502

Case Name: Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *53 (D.D.C. Feb. 28, 2013)
April 24, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Specific Case or Claim?"

Fed. R. Civ. P. 26(b)(3) provides protection for "documents and tangible things that are prepared in anticipation of litigation or for trial." Courts have debated whether the term "litigation" includes administrative proceedings, arbitrations, etc. Even in the context of traditional civil litigation, federal courts disagree about whether a litigant must point to a specific anticipated case or claim – rather than a general anticipation of litigation.

In Prowess, Inc. v. Raysearch Laboratories AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449 (D. Md. Feb. 11, 2013), the court rejected a litigant's work product claim for documents prepared in connection with a patent prosecution. The court pointed to deposition testimony by a patent attorney that he always prepares applications "with the mindset that there would be a potential for litigation." Id. At *24. The court concluded that "no specific litigation was anticipated when the document was created," and that "work product protection only extends to documents created because a specific litigation is anticipated." Id. At *23-24. A few weeks later, the District of Columbia district court reached the same conclusion about a Department of Homeland Security memorandum that "reflects advice and direction on how to handle 'cases of the types specifically contemplated.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *53 (D.D.C. Feb. 28, 2013) (internal citation omitted). The court acknowledged that "[w]hile the memorandum may be, in the literal sense, 'in anticipation of litigation' – it simply does not anticipate litigation in the way the work-product doctrine demands" – because it was not "relevant to any specific, ongoing or prospective case or cases." Id.

Courts sometimes rely on this doctrine to deny corporate litigants' work product claims for process-related documents, such as those describing how the company will handle future product liability or employment discrimination claims, etc. Lawyers should carefully review such documents, knowing that a court might not protect them.

Case Date Jurisidction State Cite Checked
2013-02-28 Federal DC
Comment:

key case


Chapter: 37.502

Case Name: Prowess, Inc. v. Raysearch Laboratories AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449 (D. Md. Feb. 11, 2013)
April 24, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Specific Case or Claim?"

Fed. R. Civ. P. 26(b)(3) provides protection for "documents and tangible things that are prepared in anticipation of litigation or for trial." Courts have debated whether the term "litigation" includes administrative proceedings, arbitrations, etc. Even in the context of traditional civil litigation, federal courts disagree about whether a litigant must point to a specific anticipated case or claim – rather than a general anticipation of litigation.

In Prowess, Inc. v. Raysearch Laboratories AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449 (D. Md. Feb. 11, 2013), the court rejected a litigant's work product claim for documents prepared in connection with a patent prosecution. The court pointed to deposition testimony by a patent attorney that he always prepares applications "with the mindset that there would be a potential for litigation." Id. At *24. The court concluded that "no specific litigation was anticipated when the document was created," and that "work product protection only extends to documents created because a specific litigation is anticipated." Id. At *23-24. A few weeks later, the District of Columbia district court reached the same conclusion about a Department of Homeland Security memorandum that "reflects advice and direction on how to handle 'cases of the types specifically contemplated.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *53 (D.D.C. Feb. 28, 2013) (internal citation omitted). The court acknowledged that "[w]hile the memorandum may be, in the literal sense, 'in anticipation of litigation' – it simply does not anticipate litigation in the way the work-product doctrine demands" – because it was not "relevant to any specific, ongoing or prospective case or cases." Id.

Courts sometimes rely on this doctrine to deny corporate litigants' work product claims for process-related documents, such as those describing how the company will handle future product liability or employment discrimination claims, etc. Lawyers should carefully review such documents, knowing that a court might not protect them.

Case Date Jurisidction State Cite Checked
2013-02-11 Federal MD
Comment:

key case


Chapter: 37.502

Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 4 (W.D. Va. 2013)
("Those facts must establish a 'nexus between the preparation of the document and . . . specific litigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal VA B 5/14

Chapter: 37.502

Case Name: State ex rel. Toledo Blade Co. v. City of Toledo, 2013-Ohio-3094, at ¶ 13 (Ohio Ct. App. 2013)
("The map in question was not created in connection with any particular case. Officer Noon testified that he created the map based on information gathered from confidential informants, surveillances, crime reports, field interviews, and felony crime logs during his ongoing investigation of criminal gangs within Toledo. Although Noon testified that he was investigating federal drug and firearms crimes within gang communities, he did not associate the map with any particular case. Rather, the map was created to be used as a tool or reference. It does not record actual crimes or note the addresses of locations believed to be associated with criminal activity. It has never been used as an exhibit or evidence in any case, although it was shown to a U.S. Attorney in connection with a case. In short, respondent has not established that the map was created 'in connection with an actual pending or highly probable criminal prosecution' as that phrase is defined by the Supreme Court of Ohio. As such, the map is not exempt from disclosure.")

Case Date Jurisidction State Cite Checked
2013-01-01 State OH B 4/14

Chapter: 37.502

Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 553 (S.D.N.Y. 2013)
(in an opinion by Magistrate Judge James Francis, holding that an employment database deserved privilege but not work product protection; "While legal risks may ripen into litigation, not all risk management qualifies as anticipation of litigation. Generalized steps to avoid non-specific litigation are not accorded work product protection."; "[T]here is at a minimum an identifiable potential adversary and a defined legal claim.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 37.502

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 136 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "In reconciling these two lines of cases, the Court in In re Sealed Case [In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982)] explained that the specific-claim requirement only applies when the documents at issue have been prepared 'in connection with active investigations of potential wrongdoing' and the attorney (or agent thereof) preparing the document acted 'as [a] prosecutor[] or investigator[] of suspected wrongdoers.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 37.502

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 135-36 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "In this Circuit, it is still somewhat unclear how specifically a party must anticipate litigation in order to invoke the work-product doctrine in the context of a corporate internal investigation. Thus far, the Circuit has employed two standards of specificity. In one line of cases, the Circuit has insisted that, in order for work-product protection to apply, 'the documents must at least have been prepared with a specific claim supported by concrete facts which would likely lead to litigation in mind.'. . . In another line of cases, however, the Circuit has eschewed a 'specific claim' requirement and has instead employed a more lenient standard, extending work-product protection to 'documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated.'" (citations omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 37.502

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012)
("Those facts must establish a 'nexus between the preparation of the document and . . . specific litigation.' Burton ]v. R.J. Reynolds Tobacco Co.], 175 F.R.D. [321,] 327 [(D. Kan. 1997)]" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 37.502

Case Name: Schwarz & Schwarz v. Certain Underwriters At Lloyd's, Civ. A. No. 6:07cv042, 2009 U.S. Dist. LEXIS 56912, at *6 (W.D. Va. July 1, 2009)
(analyzing protection for notes taken by in insured's corporate representative at depositions in a first party insurance case; finding that the notes deserve work product protection; "Although Underwriters asserts that Stanley's notes were not shared with counsel, counsel for Schwarz [insured] represented that they were taken at his direction. As the notes were created during the litigation process by a party representative, they are plainly subject to work product protection. The fact that Staley [insured's corporate representative] did not share them with counsel is not controlling. See Pete Rinaldi's Fast Foods, Inc. v. Great American Ins. Cos., 123 F.R.D. 198, 202 (M.D.N.C. 1988) (holding that the '[i]nvolvement of an attorney is a highly relevant but not necessarily controlling factor'). Underwriters made no showing of substantial need, indeed, it deposed Staley. As such, the notes are not subject to discovery.")

Case Date Jurisidction State Cite Checked
2009-07-01 Federal VA

Chapter: 37.502

Case Name: In re S<3> Ltd., 252 B.R. 355, 363 (Bankr. E.D. Va. 2000)
("In order to be prepared in anticipation of litigation, the document must be prepared because of the prospect of litigation when the preparer, or its representative, faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation."; finding that a non-testifying expert's report was prepared in anticipation of litigation)

Case Date Jurisidction State Cite Checked
2000-08-10 Federal VA B 3/16
Comment:

key case


Chapter: 37.502

Case Name: Ring v. Mikris, Inc., 40 Va. Cir. 528, 532-33 (Va. Cir. Ct. 1996)
("a party asserting a document was prepared in anticipation of litigation must show the document was prepared because of the prospect of litigation, such that the preparer faces an actual claim or potential claim following an event that reasonably could result in litigation" (footnote omitted) (citing Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992))

Case Date Jurisidction State Cite Checked
1996-01-01 State VA B 3/16
Comment:

key case


Chapter: 37.502

Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55-56, 56 (Vir. Cir. Ct. 1993)
(analyzing work product protection for a K Mart document containing instructions about how K Mart employees should prepare post-accident incident reports; "The second aspect of the motion to compel relates to K Mart manuals that purport to instruct employees how to complete the incident form and how to conduct an investigation of an accident that occurs in a K Mart store. K Mart represents that the policy manual was also prepared in anticipation of litigation. In contrast to the incident report which is prepared following a particular accident, the litigation that K Mart anticipates in the context of the manuals is litigation of a general nature that may arise out of accidents that occur in K Mart stores."; "I do not see a valid distinction to draw between the preparation of a specific incident report and a policy manual that is prepared in anticipation of law suits [sic] and instructs K Mart store employees on how to conduct accident investigations and how to prepare an incident report. Thus, to extent that the policy manual(s) instructs managers on how to investigate accidents in anticipation of litigation, then the policy manual need not be produced in the absence of a showing by the plaintiff that he has a substantial need of the manuals and that he is unable without undue hardship to obtain their equivalent."; "To the extent that portions of the manual(s) in question do not relate to instructions on preparation of the incident report or how to investigate accidents, then the other portions should be produced if they come within the parameters of the plaintiff's motion to request production of documents.")

Case Date Jurisidction State Cite Checked
1993-01-01 State VA B 12/09
Comment:

key case


Chapter: 37.702

Case Name: Moore v. Lowe's Home Centers, LLC, Case No. 14-1459 RJB, 2016 U.S. Dist. LEXIS 20630 (W.D. Wash. Feb. 19, 2016)
(analyzing work product protection for an employment discrimination investigation; "Defendant states that it anticipated litigation as of April 25, 2013. . . . Therefore, documents created prior to that date are not work product.")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal WA

Chapter: 37.702

Case Name: Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Case No. 12-81397-CIV-Marra/Matthewman, 2015 U.S. Dist. LEXIS 170738 (S.D. Fla. Dec. 18, 2015)