McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 284 of 284 results

Chapter: 37.2
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) Partnership Ltd., Civ. No. 3:16-CV-621, 2018 (M.D. Pa. April 5, 2018)
("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.")

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 37.3
Case Name: Doe v. Baylor University, 2017 U.S. Dist. LEXIS 127509 (W.D. Tex. Aug. 11, 2017)
(holding that Pepper Hamilton's internal investigation into Baylor's Title IX compliance issues deserved privilege protection, but that the client waived that privilege, and deserved work product protection which Baylor did not waive and which plaintiffs could not overcome; not explaining in detail what communications or documents would be protected only by the privilege and not also by the work product doctrine, and therefore discoverable; noting that work product protection does not depend on public statements about possible litigation; explaining among other things that a Baylor football player had been convicted of rape; "Plaintiffs argue that because Baylor's public statements about the Pepper Hamilton investigation did not mention potential litigation, such litigation could not have been the primary reason Pepper Hamilton was engaged. As with the attorney-client privilege, however, there are no magic words a party must use to invoke the work-product privilege. Further, it is reasonable that a party would not want to announce that it anticipated litigation when engaging outside counsel for fear that doing so might encourage that very litigation."; "[T]he evidence suggests that Baylor would not have engaged Pepper Hamilton to conduct the investigation in question absent the threat of Title IX litigation. The work-product arising out of the Pepper Hamilton investigation is therefore protected."; identifying work product – protected information; "[T]he Court concludes that interview memoranda, notes, emails, presentations, and other 'documents and tangible things that [were] prepared' as part of Pepper Hamilton's investigation, and have not been released, are protected. Additionally, questions that directly seek the mental impressions of Baylor's counsel need not be answered. For example, Baylor did not name specific individuals and data sources in its Findings of Fact or Recommendations and thus need not reveal which documents and interviews formed the bases for those documents. In addition, the documents selected by Pepper Hamilton to be used in an interview, recordings of interviews conducted by Pepper Hamilton, and interview notes made by Pepper Hamilton need not be produced.") (emphases added)

Case Date Jurisdiction State Cite Checked
2017-08-11 Federal TX

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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)
("[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 Jurisdiction 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)
(The first prong requires an objective examination of the facts with consideration being given to outward manifestations that indicate litigation is imminent.")

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

key case


Chapter: 37.4
Case Name: NRDC, Inc. v. Ill. Power Res. Generating, LLC, No. 13-CV-1181, 2018 U.S. Dist. LEXIS 9854 (C.D. Ill. Jan. 22, 2018)
(finding that a Rule 30(b)(6) witness would decline to answer questions based on the work product protection; "The Questions ask when did Illinois Power last consider certain changes to the Plant's pollution control equipment, such as adding a baghouse; and what changes did Illinois Power consider making that are reflected in the Line Items. Illinois Power's counsel has shown that Illinois Power considered the changes responsive to the Questions as part of its settlement strategy in 2015 and 2016, and the changes were made because settlement was not reached. The details of settlement strategy are exactly the kind of attorney mental impressions and opinions that the work product privilege is designed to protect. The Loctite case does not apply. The information sought by the Questions is protected attorney work product.")

Case Date Jurisdiction State Cite Checked
2018-01-22 Federal IL
Comment:

key case


Chapter: 37.4
Case Name: Albin Family Recovable Living Trust v. Halliburton Energy Servs., Case No. CIV-16-910-M, 2018 U.S. Dist. LEXIS 5192 (W.D. Okla. Jan. 11, 2018)
(finding that an Oklahoma Department of Environmental Quality proceeding did not count as "litigation" for work product protection purposes; "[T]he Court finds that defendant has not established that the ODEQ proceedings for which these documents were prepared are adversarial proceedings. The ODEQ proceedings consist of defendant submitting a self-disclosure letter, the negotiation and execution of a Consent Order between ODEQ and defendant to investigate and remediate potential environmental impacts from the site, and defendant's investigation and remediation of the site under the terms of the Consent Order. The Court finds these proceedings have none of the hallmarks of adversarial proceedings but are more in the nature of ex parte proceedings. Further, the Court finds defendant's contention that the ODEQ proceedings are adversarial because ODEQ has the ability to impose monetary sanctions and penalties and to enforce the Consent Order in a state district court in Oklahoma or in an administrative tribunal should defendant violate the Consent Order is too broad. Defendant's contention relies on the assumption that defendant knew that it would (or that it intended to) fail in its efforts under the Consent Order; that is, that it would ultimately be in violation of the terms of the Consent Order or some environmental act or policy, which would allow the ODEQ to pursue them. The Court finds the documents at issue were created to avoid litigation, not in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2018-01-11 Federal OK
Comment:

key case


Chapter: 37.4
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2018 U.S. Dist. 3073 (S.D.N.Y. Jan. 5, 2018)
("[E]ven if the document is viewed as relating to 'negotiation strategy,' this phrase suggests that the document concerns negotiations, rather than litigation, undermining Defendants' claim that it constitutes work product.")

Case Date Jurisdiction State Cite Checked
2018-01-05 Federal NY

Chapter: 37.4
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Defendants have claimed that many of the withheld documents are covered by work product immunity because they were prepared in connection with various attempts to renegotiate the exclusive licensing agreement. . . . These negotiations purportedly took place because Uretek raised concerns that Defendants were not complying with the exclusive licensing agreement. . . . But according to Defendants, similar contractual negotiations with Uretek occurred again and again -- in 2006, 2009, 2011, and 2013 -- and litigation never ensued after those negotiations failed. . . . Thus, Defendants have not demonstrated that there was a sufficiently real possibility of litigation such that documents prepared in connection with the licensing agreement negotiations are covered by work product immunity.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY
Comment:

key case


Chapter: 37.4
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entry 658 is a memorandum drafted by general counsel Koven and addressed to eight Kos executives. There were four documents attached to the memorandum relating to the ongoing Kos-Barr settlement negotiations. Much of the memorandum consisted of Koven's legal advice to specific executives relating to that settlement. The memorandum and the attachments were plainly created for the purposes of resolving litigation.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2001-01-01 State VA B 3/16
Comment:

key case


Chapter: 37.6
Case Name: Nottke v. Norfolk S. Ry. Co., Case No. 3:17CV544, 2018 U.S. Dist. LEXIS 118074 (N.D. Ohio July 16, 2018)
(finding that a neighbor's complaint about noise did not trigger a reasonable anticipation of litigation; "In Roxworthy [U.S. v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006)], the court gave clear guidance as to how a party can best makes its work product claim: 'We have stated that a party may satisfy its burden of showing anticipation of litigation 'in any of the traditional ways in which proof is produced in pretrial proceedings such as affidavits made on personal knowledge, depositions, or answers to interrogatories,' and that the showing 'can be opposed or controverted in the same manner.'"; "Subsequently, the Circuit and lower courts in our Circuit have noted the lack of affidavits in the course of ruling against parties who have asserted the work product doctrine."; "Even where a claimant submits affidavits, simple conclusory assertions are not enough."; "As already noted, NS submitted no affidavits with its motion for protective order. It has, as also noted, included a lot of possibly pertinent information in its motions. But 'an attorney's statement in a brief is not evidence.'"; "Since Roxworthy, lower courts consistently have required claimants to provide admissible evidence 'that, in fact, the anticipation of litigation was the motivating factor behind the preparation of the documents.")

Case Date Jurisdiction State Cite Checked
2018-07-16 Federal OH
Comment:

key case


Chapter: 37.6
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
("The probability of litigation must be substantial and imminent, or fairly foreseeable at the time the document was prepared. . . . Opinion work product contains an attorney's mental impressions, conclusions, opinions, or legal theories. Better Gov't Bureau Inc. v. McGraw (In re Allen), 106 F.3d 582, 607 (4th Cir. 1997). Fact work product, which consists of documents that do not contain the attorney's mental impressions, is not entitled to absolute protection.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 37.6
Case Name: Doe v. SeaDream Yacht Club Ltd., Case No. 17-20709-CIV-MORENO, 2017 U.S. Dist. LEXIS 191933 (S.D. Fla. Nov. 16, 2017)
(analyzing an investigation into an assault on a ship; "Work product privilege shields reports when they are prepared in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). While litigation need not be imminent, the document is only privileged if it was created with the primary motivating purpose of aiding in future litigation. . . . The mere fact that a document is prepared in response to an injury onboard does not mean that the report was prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal FL

Chapter: 37.6
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Defendants have claimed that many of the withheld documents are covered by work product immunity because they were prepared in connection with various attempts to renegotiate the exclusive licensing agreement. . . . These negotiations purportedly took place because Uretek raised concerns that Defendants were not complying with the exclusive licensing agreement. . . . But according to Defendants, similar contractual negotiations with Uretek occurred again and again -- in 2006, 2009, 2011, and 2013 -- and litigation never ensued after those negotiations failed. . . . Thus, Defendants have not demonstrated that there was a sufficiently real possibility of litigation such that documents prepared in connection with the licensing agreement negotiations are covered by work product immunity.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY
Comment:

key case


Chapter: 37.6
Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
(in a third party insurance case, the work product doctrine can protect some documents in the insurance company's files; "To be protected, the documents must have been prepared after a 'specific threat' of litigation became 'palpable.' That litigation was 'merely a possibility' is insufficient.")

Case Date Jurisdiction State Cite Checked
2017-09-11 Federal MO
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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-01-01 Federal WA B 5/14

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-01-01 State TX B 4/14

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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 *3-4 (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 Jurisdiction 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 (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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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, 175-76 (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 Jurisdiction State Cite Checked
2005-01-01 State VA
Comment:

key case


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 Jurisdiction State Cite Checked
2005-01-01 State VA B 3/16

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1988-01-01 State VA

Chapter: 37.502
Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
("The evidence provided is insufficient to demonstrate that the memorandum is work product. For a document to have been created in anticipation of litigation, a party must have been 'fac[ing] an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation.'. . . Martorello has provided no information about what pending or imminent litigation prompted Hackett to create the memorandum, and the vague, inchoate threat of future litigation based on the complicated sale of Bellicose is not enough. The memorandum appears to contain an assessment of general litigation risks related to the sale, which would be called for with any complex transaction. Accordingly, the memorandum is a document prepared in the ordinary course of business, since it would have been created in the same form with or without the prospect of litigation. . . . As a result, the documents in question cannot be withheld as work product.")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA
Comment:

key case


Chapter: 37.502
Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
(in a third party insurance case, the work product doctrine can protect some documents in the insurance company's files; "To be protected, the documents must have been prepared after a 'specific threat' of litigation became 'palpable.' That litigation was 'merely a possibility' is insufficient.")

Case Date Jurisdiction State Cite Checked
2017-09-11 Federal MO
Comment:

key case


Chapter: 37.502
Case Name: Portland Pipe Line Corporation v. City of South Portland, 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704 (D. Me. Aug. 14, 2017)
(holding that the work product doctrine did not protect documents created in anticipation of a tax abatement application (because it was not "litigation," but that the work product doctrine protected certain changes in documents abated by federal litigation; "The Court's work product inquiry is not complete, however, because the edits contained in the Document do not just relate to the tax abatement application. Rather, it appears that a Pierce Atwood attorney made at least one edit and drafted a comment in the Document with an eye toward the present federal litigation. Specifically, a Pierce Atwood attorney crossed out Mr. Lloyd's opinion that '[c]onsidering the level of environmental opposition to it is unlikely, even if [PPLC] wins [the federal litigation], that the Portland-Montreal Pipeline will be reversed.'. . . The attorney noted in the margin that in this case, the Defendants are arguing that the matter is not ripe, and the attorney expresses concern that the Defendants might use Mr. Lloyd's opinion to support that argument."; "The Court resolves that work product protections do extend to this portion of the Document because these annotations 'can be fairly said to have been prepared or obtained because of the prospect of litigation' -- namely, this litigation.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal ME

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 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 Jurisdiction 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 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1993-01-01 State VA B 12/09
Comment:

key case


Chapter: 37.702
Case Name: SEC v. Navellier & Associates, Inc., Civ. A. No. 17-11633-DJC, 2018 U.S. Dist. LEXIS 215003, at *2 (D. Mass. Dec. 21, 2018)
March 6, 2019 (PRIVILEGE POINTS)

"Another Court Rejects Privilege Protection for a Corporation's Outside Consultant"

Perhaps corporate executives' most common and dangerous privilege misperception is that they may safely disclose privileged communications to their outside consultants without waiving that protection. And perhaps their lawyers' greatest misperception is that the lawyers can rescue the privilege protection by claiming that the consultants were helping the lawyers provide legal advice.

In SEC v. Navellier & Associates, Inc., Civ. A. No. 17-11633-DJC, 2018 U.S. Dist. LEXIS 215003, at *2 (D. Mass. Dec. 21, 2018), defendant NAI had retained outside consultant ACA Compliance Group "to conduct a compliance review of NAI's marketing materials." NAI claimed privilege and work product protection for ACA-related communications and documents when the SEC sought them. The court rejected the privilege claim, holding that: (1) ACA could not satisfy the client consultant privilege standard, which applies only if the consultants' involvement is "nearly indispensable or serve[s] some specialized purpose in facilitating the attorney-client communications" (id. at *6), and (2) ACA could not satisfy the lawyer consultant privilege standard because it "was not serving an interpretive role and was not 'necessary, or at least highly useful' to defendants' counsel in providing legal advice to defendants." Id. at *9 (citation omitted). Significantly, contemporaneous documents showed that NAI's president communicated with ACA "without any mention of counsel." The court bluntly said that it "discounts" NAI's lawyer's affidavit stating that "ACA was retained . . . to assist [him] in providing legal advice to NAI in anticipation of possible litigation." Id. at *3-4 (alterations in original). The court also rejected NAI's work product claim, noting that "the SEC did not commence an investigation into NAI until more than two years after the end date of the time period for documents sought in the subpoena." Id. at *11.

The privilege rarely protects communications with corporate clients' outside consultants. Lawyers may claim privilege protection for communications with their consultants, but only if they can support a bona fide argument that they needed the consultant.

Case Date Jurisdiction State Cite Checked
2018-12-21 Federal MA
Comment:

key case


Chapter: 37.702
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "In line with this view, Wirt had sent a letter many days earlier, on May 15, 2016, to The Chicago Trust Company asserting that the WOB Parties "breached the WBC Championship Bout Agreement . . . with DBE and Mr. Wilder as a result of Mr. Povetkin having tested positive for Meldonium' and 'demand[ing] that [The Chicago Trust Company] not disburse any of the Escrow Property unless and until [it] receives joint instruction from the parties or a non-appealable order from a court of competent jurisdiction.'. . . The reference to a future 'order from a court' obviously points to the anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal NY

Chapter: 37.702
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "Testimony about DiBella's state of mind on May 13, 2016, however, is not dispositive of his state of mind on May 25, 2016, given that the WBC did not announce that the fight was postponed until May 15, 2016.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal NY

Chapter: 37.702
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "The WOB Parties also argue that the Wilder Parties have not provided competent evidence showing that, even if the Wilder camp anticipated litigation, the May 25 emails were sent 'because of' the prospect of litigation. . . . The determination we must make on this point is a factual one: would these emails have been generated had the exact same chain of events unfolded but if the parties had not anticipated any ensuing litigation?"; "The WOB Parties fault the Wilder Parties for not providing an affidavit specifically addressing what 'would have' happened had there been no anticipation of litigation. . . . While we agree that it would have been better had such an affidavit been supplied, in this instance we have ample reason to find that the Wirt Email and the subsequent discussions were not something that would have occurred absent the potential for litigation. Wirt's recommendation in the Wirt Email and the ensuing discussion would have been unnecessary had it not been for the Wilder Parties' effort to stop the escrow agent from making any payments from the escrow account to the WOB Parties. As the circumstances make clear, Wirt made his recommendation in order to shore up Wilder's position for the purpose of staking out an adversarial position against the WOB Parties. The Wirt Email must also be viewed in light of Wirt's previous letter to the escrow agent suggesting that Wilder might potentially seek a court order to obtain the money in escrow, and the fact that the Wilder Parties could not reasonably have expected that the WOB Parties would have allowed release of the escrow absent litigation. For these reasons, and given that Wilder's job is to be a boxer and not an investigator of doping by adversaries, the Wilder Parties have met their burden of showing it was not part of the 'ordinary course' of their business to have the discussion that is the subject of the emails at issue and that these discussions would not have occurred absent the potential for litigation.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal NY
Comment:

key case


Chapter: 37.702
Case Name: Audi of America, Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2018 U.S. Dist. LEXIS 6254 (M.D. Pa. Jan. 16, 2018)
("Our in camera review of these documents reveals that they were directly related to the dispute regarding this asset purchase agreement which blossomed into the instant litigation. This review further discloses that these emails and attachments were all prepared on or after September 15, 2016, during the time frame when we have previously found that the adversarial positions of the parties had sufficiently crystallized to justify invoking the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2018-01-16 Federal PA

Chapter: 37.702
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
(holding that neither the work product protection nor the attorney-client privilege protected from discovery the one witness interview memoranda prepared by the Cadwalader law firm during its internal investigation of self-dealing at the Washington Metropolitan Area Transit Authority; concluding that the work product doctrine did not apply because the investigation was undertaken for business rather than litigation purposes, and that the privilege did not apply because WMATA disclosed the interview excerpts when it publicly revealed the Cadwalader report, and also relied on the report to defend itself in the litigation; "Banneker also notes that WMATA's internal documents discussing the hiring of Cadwalader and release of the Bondi Report, as well as counsel's statements during depositions, indicate that the investigation conducted by Cadwalader was for internal WMATA business purposes. Specifically, the purpose of the investigation was to determine if Board Members were complying with their mandate or if additional procedures and rules needed to be put in place, and to respond to public outcry for accountability. . . . WMATA Board Resolution 2012-26 . . . (stating that Cadwalader's investigation 'reveal[ed] the need for additional examination, clarifying and strengthening of the Standards of Conduct policies governing the Board, as well as other matters of policy, procedure and agency conduct"); id., Ex. L, Cadwalader Recommendations to the WMATA Board Concerning Governance and the Code of Ethics . . . (explaining Cadwalader was engaged 'to provide general governance recommendations, and to evaluate the Code of Ethics for Members of the WMATA Board of Directors'); WMATA Board Resolution 2012-25 (authorizing public release of the Bondi Report)."; "While there is no standard or rule regarding how close in time potential litigation must be, after considering the specific sequence of events in this case, the Court determines the timing of the Cadwalader interviews suggests they were not conducted when litigation was anticipated. WMATA argues that the Bolden Letter triggered anticipation of litigation, which the Court does not question. At the time WMATA received the Bolden Letter it was reasonable to anticipate litigation. What the Court finds troubling is the length of time that passed from receipt of the Bolden Letter to retention of Cadwalader and the lack of any action indicating anticipation of litigation in the years between those two events. Without evidence of intervening action by WMATA with respect to the Bolden Letter, the Court finds that the Cadwalader investigation cannot be reasonably linked to the anticipation of litigation initiated by the Bolden Letter. The fact that litigation resulted shortly after the public disclosure of the Bondi Report does not show that WMATA retained Cadwalader in reasonable anticipation of that litigation. The Court finds the timing does not support a finding of work product."; "The evidence presented supports a finding that absent any anticipated litigation, WMATA would have conducted the same investigation to evaluate its business practices and revise the Standards of Conduct for the Board of Directors. The Board specifically noted that the investigation was aimed at 'formulat[ing] and recommend[ing]' changes to the 'policies, standards and procedures' of the Board of Directors, a business -- not litigation -- goal. WMATA Board Resolution 2012-26 at 1. The Court acknowledges Ms. Rockwood's declaration that states that she 'was aware of the possibility of litigation' and that the memoranda 'were intended to be internal work product for use by the Cadwalader legal team,'. . . however, the contemporaneous statements made by WMATA regarding the investigation do not indicate that the investigation was conducted as a result of anticipated litigation, but instead to determine if changes were necessary to the Board of Directors' Standards of Conduct. This factor too compels the conclusion that the investigative report and supporting memoranda are not covered by work-product protection.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC
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 Jurisdiction 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)
(analyzing work product issues in a first party coverage dispute; "In analyzing Sun Capital's assertion of work product privilege, the Court believes that November 2, 2012 -- the date that Sun Capital received the final denial letter from Twin City -- is also the date that Sun Capital reasonably anticipated litigation. Up until that date, the parties were negotiating and attempting to resolve their differences in the normal course of business. Once that final denial letter was sent and received on November 2, 2012, the battle lines were drawn and it was clear that both parties reasonably anticipated litigation on that date. The date of November 2, 2012 is a fair, common sense and objectively reasonable work product date that is applicable to both Sun Capital and Twin City in this case.").

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

Chapter: 37.702
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "During oral argument, the court asked Mechel's counsel when Mechel began anticipating litigation. Mechel's counsel represented that September 7, 2011, the date of the Weir Letter, was when Mechel began anticipating litigation. This date makes sense because Mechel's challenges to the Weir Letter form the basis for this case."; "Because Mechel began anticipating litigation on September 7, 2011, Mechel cannot claim work product protection for documents prepared before that date. Any assertions of work product protection for earlier documents are overruled. If work product protection was the only basis for withholding any document dated before September 7, 2011, then those documents will be produced.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 37.702
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 Jurisdiction State Cite Checked
2014-01-21 Federal NY
Comment:

key case


Chapter: 37.702
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 Jurisdiction State Cite Checked
2014-01-17 Federal IN
Comment:

key case


Chapter: 37.702
Case Name: Progressive Cas. Ins. Co. v. FDIC, 298 F.R.D. 417, 426 (N.D. Iowa 2014)
("FDIC-R [receiver of closed bank] sent letters to the Bank's former officers and directors on May 7, 2010, demanding reimbursement in the amount of at least $82 million. Progressive, having issued a Policy that at least arguably might provide coverage for some part of that claim, retained counsel four days later to advise it concerning FDIC-R's claim. I find that it was easily foreseeable, at that point, that litigation would eventually ensue. Progressive, through the declaration of its counsel, has met its burden of showing that its internal reserve information created on or after May 11, 2010, was prepared in anticipation of that litigation and, thus, is protected from disclosure. However, to the extent that Progressive generated reserve information concerning FDIC-R's claims against the Bank's officers and directors prior to May 11, 2010, Progressive has not shown that any privilege would apply. As such, Progressive will be ordered to produce documents responsive to FDIC-R's document request numbers 21 and 22, but only to the extent that those documents were generated prior to May 11, 2010. Progressive shall produce any such documents on or before April 21, 2014.")

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

Chapter: 37.702
Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *10 (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; "The affidavit of Aramark's in-house counsel, Stephanie Walter, Esq., likewise fails to identify the date when Aramark first subjectively anticipated litigation.")

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

Chapter: 37.702
Case Name: Welland v. Trainer, No. 00 Civ. 0738 (JSM), 2001 U.S. Dist. LEXIS 15556, at *6 (S.D.N.Y. Sept. 28, 2001)
(denying work product protection for documents a company created during an investigation into its executive's possible unethical practices, but acknowledging that the work product doctrine applied to documents created during an investigation after he left the company; "The investigation of Plaintiff was initiated because of an anonymous letter alleging some impropriety on Plaintiff's part and not because Defendants were concerned about the prospect of litigation with Plaintiff. The investigator states that it was unusual to involve the corporation's attorneys in an investigation, but it is clear that the investigation of an employee accused of unethical practices would occur in the ordinary course of business to determine whether or not to terminate that employee. Although Plaintiff retained an attorney before he was terminated, the investigation continued because of the allegations against Plaintiff and not because there was an increased threat of litigation. Therefore, the investigation documents that were produced before November 23, 1999 are not protected by the work product privilege. However, the investigation focus changed once Plaintiff was terminated. At that point, the investigation continued because of the need to prepare for the likelihood of litigation. Thus, the documents produced on or after November 23, 1999, Documents 15-48, are protected by the work product privilege. There are several documents listed as undated in the privilege log. Since the burden is on Defendants to prove that a privilege exists, Defendants will have to clarify if those documents were prepared before or after Plaintiff's termination.") (emphases added)

Case Date Jurisdiction State Cite Checked
2001-09-28 Federal NY
Comment:

key case


Chapter: 37.703
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
(holding that neither the work product protection nor the attorney-client privilege protected from discovery the one witness interview memoranda prepared by the Cadwalader law firm during its internal investigation of self-dealing at the Washington Metropolitan Area Transit Authority; concluding that the work product doctrine did not apply because the investigation was undertaken for business rather than litigation purposes, and that the privilege did not apply because WMATA disclosed the interview excerpts when it publicly revealed the Cadwalader report, and also relied on the report to defend itself in the litigation; "Banneker also notes that WMATA's internal documents discussing the hiring of Cadwalader and release of the Bondi Report, as well as counsel's statements during depositions, indicate that the investigation conducted by Cadwalader was for internal WMATA business purposes. Specifically, the purpose of the investigation was to determine if Board Members were complying with their mandate or if additional procedures and rules needed to be put in place, and to respond to public outcry for accountability. . . . WMATA Board Resolution 2012-26 . . . (stating that Cadwalader's investigation 'reveal[ed] the need for additional examination, clarifying and strengthening of the Standards of Conduct policies governing the Board, as well as other matters of policy, procedure and agency conduct"); id., Ex. L, Cadwalader Recommendations to the WMATA Board Concerning Governance and the Code of Ethics . . . (explaining Cadwalader was engaged 'to provide general governance recommendations, and to evaluate the Code of Ethics for Members of the WMATA Board of Directors'); WMATA Board Resolution 2012-25 (authorizing public release of the Bondi Report)."; "While there is no standard or rule regarding how close in time potential litigation must be, after considering the specific sequence of events in this case, the Court determines the timing of the Cadwalader interviews suggests they were not conducted when litigation was anticipated. WMATA argues that the Bolden Letter triggered anticipation of litigation, which the Court does not question. At the time WMATA received the Bolden Letter it was reasonable to anticipate litigation. What the Court finds troubling is the length of time that passed from receipt of the Bolden Letter to retention of Cadwalader and the lack of any action indicating anticipation of litigation in the years between those two events. Without evidence of intervening action by WMATA with respect to the Bolden Letter, the Court finds that the Cadwalader investigation cannot be reasonably linked to the anticipation of litigation initiated by the Bolden Letter. The fact that litigation resulted shortly after the public disclosure of the Bondi Report does not show that WMATA retained Cadwalader in reasonable anticipation of that litigation. The Court finds the timing does not support a finding of work product."; "The evidence presented supports a finding that absent any anticipated litigation, WMATA would have conducted the same investigation to evaluate its business practices and revise the Standards of Conduct for the Board of Directors. The Board specifically noted that the investigation was aimed at 'formulat[ing] and recommend[ing]' changes to the 'policies, standards and procedures' of the Board of Directors, a business -- not litigation -- goal. WMATA Board Resolution 2012-26 at 1. The Court acknowledges Ms. Rockwood's declaration that states that she 'was aware of the possibility of litigation' and that the memoranda 'were intended to be internal work product for use by the Cadwalader legal team,'. . . however, the contemporaneous statements made by WMATA regarding the investigation do not indicate that the investigation was conducted as a result of anticipated litigation, but instead to determine if changes were necessary to the Board of Directors' Standards of Conduct. This factor too compels the conclusion that the investigative report and supporting memoranda are not covered by work-product protection.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC
Comment:

key case


Chapter: 37.703
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 Jurisdiction State Cite Checked
2015-01-08 Federal CA

Chapter: 37.703
Case Name: U.S. Nutraceuticals LLC v. Cyanotech Corp., Case No. 5:12-cv-366-Oc-10PRL, 2014 U.S. Dist. LEXIS 22739, at *7 (M.D. Fla. Feb. 19, 2014)
("Plaintiffs offer nothing to contradict Mr. Cysewski's [defendant's Chief Science Officer] affidavit. Rather, Plaintiffs merely argue that the timing of the 2009 opinion is inconsistent with it being prepared in anticipation of this litigation, which commenced in June 2012. The Court finds that argument unpersuasive. The documents relied upon by Plaintiffs in support of their motion, namely the Paladin Memo dated November 5, 2009, specifically reference Defendants' concerns over litigation. . . . Moreover, Defendants could not be expected to anticipate precisely whether or when Plaintiffs might initiate litigation.")

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

Chapter: 37.703
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *12 n.4 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "It makes no difference that the anticipated litigation is expected to occur well into the future. Indeed, it is not unusual that lawyers start to work on defending or preparing for anticipated litigation long before the litigation actually occurs. The key is whether litigation, no matter how distant, reasonably can be expected to occur.")

Case Date Jurisdiction State Cite Checked
2010-04-13 Federal VA

Chapter: 37.703
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *11 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "The realistic likelihood of litigation, even if the litigation is apt to occur well into the future, must be shown if the protection is to apply. And, a document that would have been developed anyway, even if the litigation had not been anticipated, is not protected from disclosure.")

Case Date Jurisdiction State Cite Checked
2010-04-13 Federal VA

Chapter: 37.802
Case Name: Nottke v. Norfolk S. Ry. Co., Case No. 3:17CV544, 2018 U.S. Dist. LEXIS 118074 (N.D. Ohio July 16, 2018)
(finding that a neighbor's complaint about noise did not trigger a reasonable anticipation of litigation; "After the reference reported in Ms. Knight's [NS law department secretary] email to Mr. Wells [NS executive] to 'going out and get an attorney to handle things,' there was no mention in the two subsequent communications, which came after a gap of roughly three and four months later, to an attorney. The only reference to an attorney was in the first call. And, as Ms. Knight reported to Mr. Wells, the message was in essence a request for a response to the problem before Mr. Leonard [Neighbor] was 'going out to get an attorney to handle things.' NS has cited no case in which such an opaque statement, much less one transmitted second-hand, from a private citizen to a corporation, has led to successful invocation of the work product doctrine."; "The issue here is one of proximate cause: does the evidence show that Mr. Leonard's call created an anticipation (not a mere apprehension) of forthcoming litigation that it motivated and caused it to retain EHSS?"; "What I have before me lacks sufficient evidentiary weight to find that it is more likely so than not so that the call was the motivation and cause for the studies. The greater weight of the evidence -- including NS's shifting statements as to the testing's purposes -- shows that it had business reasons for obtaining the studies."; "I find that this one statement from Mr. Leonard, with no follow-up in the record for about three months, at which time NS had already commissioned EHHS to conduct its study, standing alone, simply did not, in fact, engender a bona fide anticipation that Mr. Leonard, or anybody else, was going to seek legal redress. The railroad's contention that its decision to have the testing done because of the call, or that that decision was motivated by the call, is, absent any other supporting evidence, implausible."; "It is, rather, more likely that NS had other business purposes in mind, whether FELA- or FRA-related, in mind.")

Case Date Jurisdiction State Cite Checked
2018-07-16 Federal OH

Chapter: 37.802
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson of an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "In addition, the Court finds that the notes taken at the May 7 meeting are also protected by the work product doctrine. These notes memorialize a discussion of Martinez's refusal to sign a release waiver and defendant's concern that Martinez would sue. The notes were taken on the day of Martinez's termination and after he had been terminated. Both the timing and the text of the notes suggest that they were prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY

Chapter: 37.802
Case Name: United States v. Microsoft Corporation, Case No. C15-102RSM, 2017 U.S. Dist. LEXIS 69223 (W.D. Wash. May 5, 2017)
(holding that Microsoft could reasonably have anticipated litigation based on various factors; and ordering an in camera review of withheld documents; "Microsoft has demonstrated that it reasonably anticipated litigation when it consulted with accountants regarding its transfer pricing agreements. Microsoft's prior tax disputes with the IRS, the size of Microsoft's cost sharing agreements, the complexity of the law that applies to cost sharing agreements, along with the IRS's treatment of transfer pricing issues all support the Court's conclusion. However the government has raised a sufficient factual basis to question whether the documents on Microsoft's four privilege logs are dual-purpose documents not created 'because of' anticipated litigation."; "If the documents asserting the work product protection served both a litigation and a business purpose, the Court must determine whether these documents 'appear to reflect or [are] borne out of reasoning about strategies or analyses for litigation,' in which case the work production protection would apply. . . . On the other hand, if the documents 'appear only to reflect the logistics or mechanics of implementing business concepts,' then the work product doctrine will most likely not apply as these documents 'would have been created in essentially similar form irrespective of the litigation.' Id. In camera review of the documents asserting the work product protection will allow the Court to make this determination.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal WA
Comment:

key case


Chapter: 37.802
Case Name: Cave Consulting Group, Inc. v. Optuminsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 147900 (N.D. Cal. Oct. 25, 2016)
("Certain types of patent proceedings can themselves trigger work product protection. Several courts have held that interferences, for example, sufficiently approximate adversarial litigation to warrant such protection.")

Case Date Jurisdiction State Cite Checked
2016-10-25 Federal CA

Chapter: 37.802
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; "Documents confirm that, beginning in early 2004, Bard and its legal counsel began receiving notices that the Recovery Filter was associated with adverse events, including several deaths."; "Ms. Passero [Defendant's in-house counsel] stated in an affidavit and during her testimony in Alexander [lawsuit against the defendant] that these events caused the Law Department to retain Dr. Lehmann as a consultant to conduct a broad risk assessment.")

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

Chapter: 37.802
Case Name: Foti v. City of Jamestown Board of Public Utilities, 10CV575A, 2014 U.S. Dist. LEXIS 108376 (W.D.N.Y. Aug. 5, 2014)
(finding that the work product protection covered documents prepared by the consultant defendant hired to help it comply with a consent order; "While the Court recognized that typically all documents created after the commencement of litigation would be created 'because of' that litigation, the Court rejected the defendant's argument that a privilege log was not needed because of the time lapse between the underlying incident and the commencement of litigation."; "While the Hacker Letter does not specifically refer to this litigation, it does discuss the overflow incidents in June and August of 2009 which underlie the plaintiffs' claims. . . . Thus, it appears likely that the Hacker Letter was created because of the instant litigation. Whether E&M would have been required to provide this information to the defendants in an essentially similar form absent the instant litigation is unclear based upon this record.")

Case Date Jurisdiction State Cite Checked
2014-08-05 Federal NY

Chapter: 37.802
Case Name: Bowling v. Appalachian Elec. Supply, Inc., Case No. 3:13-cv-27347, 2014 U.S. LEXIS 49531 (S.D.W. Va. April 10, 2014)
(analyzing work product issues in a third party insurance context; "Regarding the next factor, the circumstances of this case do not favor a finding of work product. First, there was nothing extraordinary about the accident itself. The parties agree that the accident was a rear-end collision that occurred on a rainy day when the pavement was wet. Fortunately, there were no mortalities, and the accident was promptly investigated by the State Police and witnessed by at least two independent witnesses. None of the adults involved in the accident was seriously injured. While a child was hurt, the extent of his injuries was not initially known. No one apparently rushed out and hired an attorney, and the drivers of both vehicles cooperated with the police and the insurance company's adjuster. No one was arrested, charged with a crime, or put in jail. In fact, Travelers was not even notified of the accident until five days after it occurred. Certainly these facts do not raise any red flags, or immediately signify impending litigation.")

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal WV

Chapter: 37.802
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *15 (D. Del. Oct. 25, 2013)
("The Taxpayer's expectation of litigation was objectively reasonable, particularly given the sheer size of the deduction -- $4.5 billion -- and the fact that the Taxpayer was already under audit by the IRS for its prior year returns.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.802
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *16 (D. Del. Oct. 25, 2013)
("Documents being withheld by the Taxpayer support these conclusions. For example, memoranda from the Taxpayer's general counsel and outside counsel identify not only that the Taxpayer expected the transaction would come under scrutiny by the IRS, but also specifically remark on the importance of the role of the independent valuation report from XRoads [valuation firm] in any potential litigation. . . . Communications among the Taxpayer, outside counsel, and its consultants indicate that the valuation reports were a foundational part of a strategy to resist an IRS audit. . . . Indeed, the records corroborate the Taxpayer's narrative that it decided in early 2006 that a conversion of WASCO [company purchased by defendant] to an LLC was feasible and took steps over the ensuing months to bolster its legal position in an anticipated dispute with the IRS.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.802
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *17 (D. Del. Oct. 25, 2013)
("Importantly, there is no evidence that the specific transaction at issue -- that is, the conversion of WASCO [company purchased by defendant] to a Delaware LLC -- was undertaken for any purpose other than to enable to Taxpayer to recognize a $4.5 billion loss on its tax return and then litigate with the IRS over the legitimacy of that deduction.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.802
Case Name: Ex parte USA Water Ski, Inc. v. Col. Biggs Water Ski Show Team, No. 1120744, 2013 Ala. LEXIS 67, at *12-13 (Ala. June 21, 2013)
(granting a petition for writ of mandamus, and reversing an order requiring production of a report following a skiing accident; extensively quoting an affidavit supporting the work product claim; "Wilson's [USA Water Ski member] affidavit adequately establishes that Neuberger's [Chief Driver Examiner, USA Water Ski's Nat'l Show Ski Ass'n, southern region] post-incident report was prepared in anticipation of litigation against USA Water Ski. In his affidavit, Wilson explained his role and Neuberger's role in the USA Water Ski organization, explained that the accident occurred during a practice for a USA Water Ski show, and explained that, although he 'did not believe USA Water Ski, the National Show Ski Association or Colonel Bigg's [sic] Water Ski Show Team had done anything improper,' he believed litigation was likely and that the report would be helpful to the defense. Although Wilson does not specifically state in his affidavit that he anticipated litigation to be initiated against USA Water Ski, that is a fair inference from a reading of his affidavit. Therefore, USA Water Ski adequately established that Neuberger's post-incident report was created in anticipation of litigation against it.")

Case Date Jurisdiction State Cite Checked
2013-06-21 State AL B 4/14

Chapter: 37.802
Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *8 (E.D. Va. Feb. 14, 2013)
(finding that a bank could reasonably anticipate litigation upon receiving an obviously fake email vouching for one of its borrowers; "The Court finds that, as a result of the August 19th e-mail, the Bank was faced with the prospect of litigation on a number of fronts.")

Case Date Jurisdiction State Cite Checked
2013-02-14 Federal VA B 2/14

Chapter: 37.802
Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *8 (E.D. Va. Feb. 14, 2013)
("The e mail was obviously a fake. The Court finds that, as a result of the August 19th e mail, the Bank was faced with the prospect of litigation on a number of fronts.")

Case Date Jurisdiction State Cite Checked
2013-02-14 Federal VA

Chapter: 37.802
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *10 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "It is the burden of the party asserting work product privilege to show that the privilege applies, and to meet this burden, the party asserting privilege must show, 'as to each document, that the work product in question was: (1) prepared by, or under the discretion of, an attorney and, (2) was prepared in anticipation of litigation.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004) (citing Hickman, 329 U.S. at 495; In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996))")

Case Date Jurisdiction State Cite Checked
2010-04-13 Federal VA

Chapter: 37.802
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 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 Jurisdiction State Cite Checked
2005-01-01 State VA B 5/16

Chapter: 37.802
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 Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 37.803
Case Name: SEC v. Navellier & Associates, Inc., Civ. A. No. 17-11633-DJC, 2018 U.S. Dist. LEXIS 215003, at *2 (D. Mass. Dec. 21, 2018)
March 6, 2019 (PRIVILEGE POINTS)

"Another Court Rejects Privilege Protection for a Corporation's Outside Consultant"

Perhaps corporate executives' most common and dangerous privilege misperception is that they may safely disclose privileged communications to their outside consultants without waiving that protection. And perhaps their lawyers' greatest misperception is that the lawyers can rescue the privilege protection by claiming that the consultants were helping the lawyers provide legal advice.

In SEC v. Navellier & Associates, Inc., Civ. A. No. 17-11633-DJC, 2018 U.S. Dist. LEXIS 215003, at *2 (D. Mass. Dec. 21, 2018), defendant NAI had retained outside consultant ACA Compliance Group "to conduct a compliance review of NAI's marketing materials." NAI claimed privilege and work product protection for ACA-related communications and documents when the SEC sought them. The court rejected the privilege claim, holding that: (1) ACA could not satisfy the client consultant privilege standard, which applies only if the consultants' involvement is "nearly indispensable or serve[s] some specialized purpose in facilitating the attorney-client communications" (id. at *6), and (2) ACA could not satisfy the lawyer consultant privilege standard because it "was not serving an interpretive role and was not 'necessary, or at least highly useful' to defendants' counsel in providing legal advice to defendants." Id. at *9 (citation omitted). Significantly, contemporaneous documents showed that NAI's president communicated with ACA "without any mention of counsel." The court bluntly said that it "discounts" NAI's lawyer's affidavit stating that "ACA was retained . . . to assist [him] in providing legal advice to NAI in anticipation of possible litigation." Id. at *3-4 (alterations in original). The court also rejected NAI's work product claim, noting that "the SEC did not commence an investigation into NAI until more than two years after the end date of the time period for documents sought in the subpoena." Id. at *11.

The privilege rarely protects communications with corporate clients' outside consultants. Lawyers may claim privilege protection for communications with their consultants, but only if they can support a bona fide argument that they needed the consultant.

Case Date Jurisdiction State Cite Checked
2018-12-21 Federal MA
Comment:

key case


Chapter: 37.803
Case Name: Cooper v. Richland County Recreation Comm., Civ. A. No. 3:16-cv-1606-MGL-TER, 2018 U.S. Dist. LEXIS 163788 (D.S.C. Sept. 25, 2018)
(advising work product protection for an investigation into sexual harassment allegations; "Even though Edwards [Lawyer] was retained prior to receiving counsel's letter, she did not begin her interviews until the week of December 14, 2015. At that point, RCRC faced a real likelihood of litigation following allegations of sexual harassment (i.e., an actual event that reasonably could result in litigation) rather than the mere possibility. However, Plaintiff argues that Edwards' interview notes and memorandum were created in the ordinary course of business because they were for the purpose of conducting an internal investigation, RCRC's harassment policy requires that reports of sexual harassment be investigated, and someone from HR could have conducted such an investigation."; "In the present case, the nature of the documents includes notes taken by Edwards, an attorney during an investigation into James's internal complaint regarding Brown, and a memorandum prepared by Edwards following her investigation. The James Litigation, of which both RCRC and Edwards became aware prior to Edwards beginning her investigation, arises from the same or substantially the same facts as the matter investigated by Edwards. Further, Edwards was asked by both Springer and RCRC's present counsel, Richard Morgan, to conduct the investigation into James's complaint. 'Involvement of an attorney is a highly relevant but not necessarily controlling factor.'. . . Although Edwards indicated to counsel for James that her only involvement was to interview witnesses and report her findings to Springer and Morgan, this does not mean that her interviews were not done in anticipation of litigation, especially since she was notified of the likelihood of litigation before she even began the interviews."; "In the human resources context, courts are split as to whether documents created during an internal investigation of a harassment complaint are created in the ordinary course of business or in anticipation of litigation."; "The facts in the present case are more akin to those in cases where the court found the work product doctrine applicable. After receiving James's complaint, rather than having someone within the human resources department conduct an investigation, Morgan retained Edwards, an outside attorney, and directed her to conduct an investigation of the claims. Counsel for James notified Edwards that James intended to file a lawsuit, if necessary, prior to Edwards beginning her investigation. Edward reported her findings to Morgan, counsel for RCRC, then prepared a report entitled 'Attorney Work Product Confidential Memorandum,' and met with the RCRC Board to give 'them [her] legal opinion of legal risks based on the legal work [she] had performed.'. . . While the driving force for the initial engagement of Edwards's services may be less clear, considering the totality of the circumstances, including that James retained an attorney at the same time or immediately following her complaint to RCRC, Edwards is an attorney and was hired to conduct the investigation by counsel for RCRC, the letter sent from James's counsel to Edwards had a threat-of-litigation tone, James filed her a charge of discrimination with the EEOC, and Edwards prepared a memorandum entitled 'Attorney Work Product Confidential Memorandum,' the documents sought by Plaintiff were created by Edwards in anticipation of litigation and, thus, are protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal SC
Comment:

Key Case


Chapter: 37.803
Case Name: Martin v. Cincinnati Ins. Co., No. 4:17CV142 RLW, 2018 U.S. Dist. LEXIS 116927 (E.D. Miss. July 13, 2018)
(identifying a specific date on which defendants began to reasonably anticipate litigation; "Defendant has designated claim notes, and notes regarding reserves in particular, as protected by the work product doctrine. The Court has reviewed the responsive documents in camera and finds that the threat of litigation became palpable on November 20, 2015, when Defendant acknowledged that Plaintiff had attorney representation. Anything on or after that date is work product. While many of the entries in the claim file appear to be made by a non-attorney, the Court finds that these reserve amounts relate to Plaintiff's particular claim and were prepared for litigation.")

Case Date Jurisdiction State Cite Checked
2018-07-13 Federal MS

Chapter: 37.803
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146, at *11 (W.D. Va. Apr. 18, 2018)
June 13, 2018 (PRIVILEGE POINT)

"What Can Trigger a Reasonable Anticipation of Litigation Sufficient to Support a Work Product Claim? Part I"

Establishing work product protection requires: (1) litigation (normally civil or criminal litigation, but sometimes adversarial administrative or ADR settings); (2) anticipation (ranging from "imminent" in some courts to "possible" in other courts); and (3) motivation (which requires the litigant to show that the document's creation was motivated by anticipated litigation rather than by something else). As part of the "anticipation" element, courts normally look for what might be called a "trigger" event – which caused the requisite "anticipation." In essence, a litigant claiming work product must be prepared to prove that the moment before such a trigger event she did not anticipate litigation, but the moment afterwards she did.

There are three possible types of trigger events. First, in some unusual circumstances, courts point to an external event such as a refinery explosion, which everyone realizes will trigger litigation. Second, by far the most common trigger event is some step the adversary takes. In Colley v. Dickenson County School Board, the court pointed to plaintiff's "formal letter" to the school board requesting that it correct alleged pay disparity, and warning that she had retained a lawyer. Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146, at *11 (W.D. Va. Apr. 18, 2018). So an adversary's threat can clearly trigger an objectively and subjectively reasonable anticipation of litigation.

The third type of "trigger" event involves the litigant's own actions. Courts understandably take a work product claim based on such self-action with a large grain of salt. But next week's Privilege Point will describe a case in which the court accepted that argument.

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA
Comment:

key case


Chapter: 37.803
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "From at least April, it was clear to the School Board and Mullins [School Board lawyer] that Colley was asserting a claim against the School Board. She had written a formal letter to Robinson requesting that the School Board correct the alleged pay disparity. She had retained an attorney and 'attended a [School Board] meeting on the issue with her lawyer present,'. . . which certainly must have indicated that litigation was fairly foreseeable. Accordingly, I believe that the documents include protected work product prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 37.803
Case Name: Nottke v. Norfolk Southern Railway Co., Case No. 3:17CV544, 2018 U.S. Dist. LEXIS 60670 (N.D. Ohio April 10, 2018)
(acknowledging that defendant conducted noise surveys after a neighbor complained of noise from a rail facility, but rejecting a work product claim because the defendant did not present any evidence that the complaint motivated the studies; "NS presents no affidavits, correspondence, whether emails, e-mail chains, or other communications, statements, or memoranda indicating, inter alia, when Ms. Knight's [a secretary who conveyed the neighbor's complaint] email to Mr. Wells [recipient of the notice] came to the attention of a member of the Law Department or what such person or persons did or did not do upon its receipt, and what happened thereafter. Similarly, there is no correspondence, by email, letter, memo, or otherwise, indicating who made the decision to retain EHSS, why that retention occurred, or why, without cc to the Law Department, the test reports were addressed to the NS Director of Industrial Hygiene."; "After May 19, 2015, when notice of Mr. Leonard's call went out to Mr. Wells, there is nothing in the record to connect the EHSS tests to anyone's apprehension that litigation might be in the offing."; "Conclusory assertions regarding a putative anticipation of litigation are not enough to invoke the work product doctrine."; "NS simply ignores the bedrock proposition that conclusory allegations about anticipated litigation do not adequately undergird a work product claim."; "Well-padded with citations, the NS briefs, stripped of those layers, are bare of factual substance. Read in toto, what Mr. Leonard wanted was simply to hear from, and to voice his concerns to, someone at NS; that's what mattered, not getting an attorney, much less filing a lawsuit. But NS responded with silence, as it did to the Trustees Resolution and the neighbors' petition. Read together, all Mr. Leonard and they wanted was some response to their plight."; "Deaf ear then, silence now: even if affidavits, depositions, and the like are not required -- though generally expected and offered -- and even if other kinds of evidence might, as it probably could, make out a valid and adequate work product claim, NS presents no evidence other than the Leonard May-day call three and four months before the EHSS tests. Here, as in Univ. Hosps. Health Sys. v. Pohl Inc. of Am., 2018 U.S. Dist. LEXIS 48592, 2018 WL 1474368, *3 (N.D. Ohio), 'nowhere . . . is there any mention of litigation or even the potential of litigation' in any communications. Indeed, here NS offers none of its own communications at all. The case law makes compellingly clear that something more is needed to give rise to an actual and a reasonable anticipation that litigation might arise. There is no evidence on either score in this record."; "Instead, NS, by its persistent lack of response, communicated an unstated message to its neighbors that it did not care, that it could and would continue to do as it wanted, and that it had nothing to fear, no matter how many voices sought to be heard.")

Case Date Jurisdiction State Cite Checked
2018-04-10 Federal OH
Comment:

key case


Chapter: 37.803
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "In line with this view, Wirt had sent a letter many days earlier, on May 15, 2016, to The Chicago Trust Company asserting that the WOB Parties "breached the WBC Championship Bout Agreement . . . with DBE and Mr. Wilder as a result of Mr. Povetkin having tested positive for Meldonium' and 'demand[ing] that [The Chicago Trust Company] not disburse any of the Escrow Property unless and until [it] receives joint instruction from the parties or a non-appealable order from a court of competent jurisdiction.'. . . The reference to a future 'order from a court' obviously points to the anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal NY

Chapter: 37.803
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(analyzing protection for a defendant's human resource representative's interview notes of a plaintiff, taken as part of an investigation into racial discrimination; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "For the notes Lauber [University assistant HR director] took during the interviews and meetings with the Hales, the Court finds that ESU has demonstrated Lauber's creation of these notes would have been both for the purpose of investigating the racial slur incident and also in anticipation of litigation brought by the Hales. Lauber's primary purpose in preparing these notes would have been in anticipation of litigation with the Hales since they indicated around the early June 2015 timeframe they had retained counsel and were acting upon the advice of an attorney. ESU has shown an underlying nexus between the preparation of Lauber's notes from interviews and meetings with the Hales and this specific litigation. The Court also finds that because one or both of the Hales were present during these meetings and interviews with Lauber, and apparently also have audio recordings of some meetings, they would be aware of the substance of those meetings. Plaintiff therefore cannot show that she has substantial need for the Lauber's interview notes and cannot obtain their substantial equivalent by other means. In addition, the Court finds that Lauber's interview notes would likely contain his mental impressions and opinions in his role as a representative of ESU's general counsel. Under Fed. R. Civ. P. 26(b)(3)(B), the Court is required to 'protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.' The Court concludes Lauber's notes from interviews and meetings with the Hales are not discoverable.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 37.803
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(holding that investigation-related documents deserved work product protection because they were primarily motivated by anticipated litigation, even though they also seemed to have been required by internal university policies; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "The parties dispute whether the interview notes taken by the Assistant Director of Human Resources as part of ESU's internal investigation into the racial slur incident at SLIM were prepared in anticipation of litigation, or were created primarily for a non-litigation purpose, such as contemplated by ESU's own policies for investigating racial harassment and discrimination complaints. ESU contends that the primary motivating purpose of the documents was to conduct a thorough investigation of the events in question based on ESU's potential liability. In contrast, Plaintiff contends the primary purpose of the investigation documents was to comply with ESU's institutional policy 3D.0106.05(A)(2). She points to Vietti's September 9, 2015 letter to ESU faculty, staff, and students, which states, "On July 10, 2015, I directed that an internal investigation be conducted by ESU Human Resources into an alleged hate crime and a concern over potential discrimination or harassment in the School of Library and Information Management. This investigation was conducted as outlined in the University Policy Manual [3D.0106.05(A)(2)].'"; "ESU has the burden to prove it is entitled to work-product protection. ESU has provided an affidavit from its general counsel, Kevin Johnson, wherein he states that '[d]uring July 2015, the Hales indicated they had retained counsel and were acting upon the advice of an attorney.' Johnson further states in his Affidavit that by July 10, 2015, it became apparent the Hales were refusing to file a grievance with ESU regarding their perception of discrimination and harassment in the SLIM department, and he recommended that ESU President Vietti initiate a request for an investigation into the Hales' allegations. Based upon these sworn statements by Johnson, the Court concludes that as of July 10, 2015, ESU was on reasonable notice that Plaintiff intended legal action against ESU and that it reasonably anticipated litigation as of at least that date."; "ESU must also show that Lauber's [University assistant HR director] purpose in preparing the witness interview notes was in anticipation of litigation, and not for some other non-litigation purpose. Notwithstanding the public statements made by ESU's Interim President Vietti regarding ESU's investigation, which might suggest the investigation was for purposes of a more general university investigation into discrimination and harassment in the SLIM department, the Court finds Lauber conducted the witness interviews at the direction of Vietti, who was acting upon Johnson's advice and recommendation that an investigation be initiated into the Hales' allegations."; "In this district, courts look to the 'primary motivating purpose behind the creation of the document to determine whether it constitutes work product.' After conducting an in camera review of a sampling of the withheld witness notes, the Court concludes that Lauber's primary purpose behind the creation of these interview notes was in anticipation of litigation with the Hales and not for purposes of conducting an investigation under university policies. The privilege log lists many of Lauber's interview notes as undated so the Court cannot tell when Lauber interviewed each person or prepared the notes. However, to the extent the privilege log lists dates for Lauber's interview notes, they are all dated after July 10, 2015, and a review of the undated interview notes indicates it is very likely Lauber also conducted those interviews or prepared those interview notes after July 10, 2015. Plaintiff's motion is therefore DENIED with respect to these documents.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 37.803
Case Name: Audi of America, Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2018 U.S. Dist. LEXIS 6254 (M.D. Pa. Jan. 16, 2018)
("Our in camera review of these documents reveals that they were directly related to the dispute regarding this asset purchase agreement which blossomed into the instant litigation. This review further discloses that these emails and attachments were all prepared on or after September 15, 2016, during the time frame when we have previously found that the adversarial positions of the parties had sufficiently crystallized to justify invoking the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2018-01-16 Federal PA

Chapter: 37.803
Case Name: Chartraw v. City of Shawano, Case No. 16-C-807, 2017 U.S. Dist. LEXIS 187590 (E.D. Wi. Nov. 14, 2017)
(analyzing work product protection for a hostile work environment investigation; pointing to a consultant's retainer letter, and finding that the interviews deserved work product protection, and that the defendant was not relying on the investigation and therefore did not trigger and Faragher-Ellerth waiver; "While that may be the case for the Chartraw investigation, the same cannot be said for the Hoffmann investigation. Chartraw followed the procedures established by the City's Employee Personnel Policy and filed a formal complaint with the City. Conversely, Attorney Kalny initiated the Hoffmann investigation not in the ordinary course of business but with an eye toward litigation. During the course of the investigation, Kalny drafted interview questions for Chief Kohl and retained notes from the interviews of Chief Kohl and Lieutenant Mauel. Shortly after she made her claims in the March 2, 2016 interview with Kalny, Hoffmann retained counsel and less than three weeks later, made a six-figure demand on the City under threat of litigation.")

Case Date Jurisdiction State Cite Checked
2017-11-14 Federal WI

Chapter: 37.803
Case Name: Chartraw v. City of Shawano, Case No. 16-C-807, 2017 U.S. Dist. LEXIS 187590 (E.D. Wi. Nov. 14, 2017)
(analyzing work product protection for a hostile work environment investigation; agreeing to a consultant's retainer letter, and finding that the interviews deserved work product protection, and that the defendant was not relying on the investigation and therefore did not trigger and Faragher-Ellerth waiver; "While that may be the case for the Chartraw investigation, the same cannot be said for the Hoffmann investigation. Chartraw followed the procedures established by the City's Employee Personnel Policy and filed a formal complaint with the City. Conversely, Attorney Kalny initiated the Hoffmann investigation not in the ordinary course of business but with an eye toward litigation. During the course of the investigation, Kalny drafted interview questions for Chief Kohl and retained notes from the interviews of Chief Kohl and Lieutenant Mauel. Shortly after she made her claims in the March 2, 2016 interview with Kalny, Hoffmann retained counsel and less than three weeks later, made a six-figure demand on the City under threat of litigation.")

Case Date Jurisdiction State Cite Checked
2017-11-14 Federal WI
Comment:

key case


Chapter: 37.803
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
(holding that neither the work product protection nor the attorney-client privilege protected from discovery the one witness interview memoranda prepared by the Cadwalader law firm during its internal investigation of self-dealing at the Washington Metropolitan Area Transit Authority; concluding that the work product doctrine did not apply because the investigation was undertaken for business rather than litigation purposes, and that the privilege did not apply because WMATA disclosed the interview excerpts when it publicly revealed the Cadwalader report, and also relied on the report to defend itself in the litigation; "Banneker also notes that WMATA's internal documents discussing the hiring of Cadwalader and release of the Bondi Report, as well as counsel's statements during depositions, indicate that the investigation conducted by Cadwalader was for internal WMATA business purposes. Specifically, the purpose of the investigation was to determine if Board Members were complying with their mandate or if additional procedures and rules needed to be put in place, and to respond to public outcry for accountability. . . . WMATA Board Resolution 2012-26 . . . (stating that Cadwalader's investigation 'reveal[ed] the need for additional examination, clarifying and strengthening of the Standards of Conduct policies governing the Board, as well as other matters of policy, procedure and agency conduct"); id., Ex. L, Cadwalader Recommendations to the WMATA Board Concerning Governance and the Code of Ethics . . . (explaining Cadwalader was engaged 'to provide general governance recommendations, and to evaluate the Code of Ethics for Members of the WMATA Board of Directors'); WMATA Board Resolution 2012-25 (authorizing public release of the Bondi Report)."; "While there is no standard or rule regarding how close in time potential litigation must be, after considering the specific sequence of events in this case, the Court determines the timing of the Cadwalader interviews suggests they were not conducted when litigation was anticipated. WMATA argues that the Bolden Letter triggered anticipation of litigation, which the Court does not question. At the time WMATA received the Bolden Letter it was reasonable to anticipate litigation. What the Court finds troubling is the length of time that passed from receipt of the Bolden Letter to retention of Cadwalader and the lack of any action indicating anticipation of litigation in the years between those two events. Without evidence of intervening action by WMATA with respect to the Bolden Letter, the Court finds that the Cadwalader investigation cannot be reasonably linked to the anticipation of litigation initiated by the Bolden Letter. The fact that litigation resulted shortly after the public disclosure of the Bondi Report does not show that WMATA retained Cadwalader in reasonable anticipation of that litigation. The Court finds the timing does not support a finding of work product."; "The evidence presented supports a finding that absent any anticipated litigation, WMATA would have conducted the same investigation to evaluate its business practices and revise the Standards of Conduct for the Board of Directors. The Board specifically noted that the investigation was aimed at 'formulat[ing] and recommend[ing]' changes to the 'policies, standards and procedures' of the Board of Directors, a business -- not litigation -- goal. WMATA Board Resolution 2012-26 at 1. The Court acknowledges Ms. Rockwood's declaration that states that she 'was aware of the possibility of litigation' and that the memoranda 'were intended to be internal work product for use by the Cadwalader legal team,'. . . however, the contemporaneous statements made by WMATA regarding the investigation do not indicate that the investigation was conducted as a result of anticipated litigation, but instead to determine if changes were necessary to the Board of Directors' Standards of Conduct. This factor too compels the conclusion that the investigative report and supporting memoranda are not covered by work-product protection.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC
Comment:

key case


Chapter: 37.803
Case Name: Valley Force Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 U.S. Dist. LEXIS 57370 (N.D. Ind. April 14, 2017)
(holding that the environmental consultant was outside privilege protection, but could create protected work product; "Valley Forge's attempted parsing of Hartford Iron's environmental remediation efforts from its litigation purposes is unpersuasive. The record suggests that the threat of litigation with IDEM and the EPA 'was the motivating factor which moved [Hartford Iron] to complete the clean up of the [Hartford Iron] facility.'"; "In that regard, all of the emails with Keramida [Environmental contractor] and CH2M [Environmental contractor] were created after the parties became aware of the IDEM and EPA claims and after this lawsuit was filed."; "Having said that, the fact that the communications were prepared in the midst of litigation is not necessarily determinative, as the work-product privilege 'requires causation in the sense of the purpose or motivation for the creation of documents -- i.e., the intended use to which the documents were to be put -- not causation in the sense of a 'but for' sequence of events or influences.'"; "Accordingly, some categories of documents generally fall outside the scope of the work-product privilege. One example is mere transmittal communications."; "Another category of documents outside the scope of the work-product doctrine are communications dealing with merely administrative, logistical, or scheduling matters. . . . Here, as concluded infra, many of the emails reviewed in camera by the Court merely pertain to administrative, logistical, or scheduling matters, and thus, are not protected work product.")

Case Date Jurisdiction State Cite Checked
2017-04-14 Federal IN

Chapter: 37.803
Case Name: Breslow v. American Security Insurance Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133 (S.D. Fla. Feb. 19, 2016)
(analyzing privilege protection in a first party insurance situation; finding the work product doctrine did not apply at a time plaintiff's lawyer sought a resolution of the dispute without resorting to litigation; "[I]n a September 19, 2014 email, Breslow's counsel wrote again to ASIC's adjuster and noted his disagreement over the carrier's assessment of both the scope and amount of loss. He attached an independently prepared estimate of damages of almost $400,000. It said: 'If ASIC desires to discuss a potential resolution of this matter without the necessity of litigation, then this rather large claim merits further consideration, and, to that end, I ask that you contact me once you've had an opportunity to review the attached, so that we may discuss ASIC's reconsideration of its adjustment of the damages to covered property sustained in connection with the construction vibrations and plumbing break that are the subject of this claim.'"; "The September 19, 2014 letter is the first one in which Breslow mentions litigation. Even then, the letter did not actually and overtly threaten litigation; it merely noted that the carrier should contact counsel if it wanted to explore further discussions and reconsideration without litigation."; "To be sure, an earlier April 28, 2014 letter from Breslow's counsel advised the carrier to communicate directly with him (and not to his client), but this is hardly a basis upon which to conclude that litigation would be forthcoming. In fact, district courts in Florida have rejected work product claims based on events significantly more hostile than a directive to communicate directly with counsel.")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal FL
Comment:

key case


Chapter: 37.803
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)
("The open case file, settlement discussions, and involvement of U.S. Attorney Fowler show it can be 'fairly said' that the Reports of Interview were prepared in anticipation of litigation. . . . Further, beginning in 2007 when the civil case file was opened, litigation was 'fairly foreseeable.'")

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

Chapter: 37.803
Case Name: Laco v. Sam's East, Inc., Civ. A. No. 14-1169, 2015 U.S. Dist. LEXIS 66466 (W.D. Pa. May 21, 2015)
(holding that the work product doctrine protected the defendant's claims filed after defendant received a letter from plaintiff's lawyer)

Case Date Jurisdiction State Cite Checked
2015-05-21 Federal PA

Chapter: 37.803
Case Name: BASF Corp. Man Diesel & Turbo N.A., Inc., Civ. A. No. 13-42-JWD-RLB, 2015 U.S. Dist. LEXIS 15615 (M.D. La. Feb. 10, 2015)
(holding that a disbarred lawyer can create work product; "Having reviewed the documents submitted for in camera inspection, the Court finds that they constitute protected work product. These contain emails made between August 22, 2012 and August 28, 2012 primarily involving executives of Man Diesel discussing their plans and strategies with regard to responding to the draft Petition and settlement demand letter send by counsel for BASF, including preparation for settlement negotiations and potential mediation. Although Mr. Porrier is a disbarred attorney, he is acting as point person in these communications with opposing counsel for the benefit of Man Diesel's counsel. These communications are in the context of having received a draft petition from counsel for BASF as well as having received BASF's offer to pursue settlement of this dispute through alternative dispute resolution.")

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal LA

Chapter: 37.803
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "During oral argument, the court asked Mechel's counsel when Mechel began anticipating litigation. Mechel's counsel represented that September 7, 2011, the date of the Weir Letter, was when Mechel began anticipating litigation. This date makes sense because Mechel's challenges to the Weir Letter form the basis for this case."; "Because Mechel began anticipating litigation on September 7, 2011, Mechel cannot claim work product protection for documents prepared before that date. Any assertions of work product protection for earlier documents are overruled. If work product protection was the only basis for withholding any document dated before September 7, 2011, then those documents will be produced.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 37.803
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("Counsel has attested that once the subpoena arrived from the U.S. Attorneys Office, litigation was anticipated, although the precise source of the litigation (e.g., TAG-managed account holders, TAG, the government, etc.) was unknown. . . . These allegations are sufficient to establish that the work was done in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 37.803
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)
("Total had ceased the payments of the overriding royalties, and Statoil had never paid them. Moreover, Statoil had rescinded its original division order and had attempted to replace it with an amended division order that informed claimants that it would pay them but, if Statoil won in a lawsuit, claimants would have to reimburse it with interest. . . . The Court finds this evidence sufficient to demonstrate that litigation could be expected, and claimants created the respective e-mails in anticipation of and during the litigation here.")

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

Chapter: 37.803
Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 79281, at *9 (N.D. Ill. June 11, 2014)
(analyzing defendant's investigation of possible sexual harassment; holding that the investigation-related documents deserved privilege protection and work product protection; holding that the defendant could refer to remedial steps and the investigation, but would waive any protection by using investigation-related documents at the trial; "This Court has no reason to disbelieve FOP when it asserts that it called D'Alba 'in response to a complaint of sexual harassment by an employee . . . . After receiving the sexual harassment complaint, Defendant's President contacted the law firm . . . Due to the prospect of litigation.'")

Case Date Jurisdiction State Cite Checked
2014-06-11 Federal IL

Chapter: 37.803
Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("Although these documents may have been created when litigation was 'in the air,' Plaintiffs themselves acknowledge that as of August 2010 they still hoped to resolve their issues with the Defendants amicably. . . . At that point litigation was only a 'contingency plan,' not a substantial and significant threat.")

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

Chapter: 37.803
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 Jurisdiction State Cite Checked
2014-05-20 Federal CA

Chapter: 37.803
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; "The County argues that because the report was completed as a result of the anonymous complaint, and not in the routine course of business, it is necessarily work product. The County also contends that the report 'necessarily discloses County Counsel's strategy and legal theories pertaining to the matter' and is therefore protected."; "It is not necessarily true, or even probable, that litigation would have been anticipated from one anonymous complaint. The report could have been sought to remedy the matter internally as part of the County's own employment procedures to improve its weaknesses, for example. The County has not shown otherwise. In fact, the timeline of this case is persuasive in indicating that the County did not anticipate this litigation.")

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

Chapter: 37.803
Case Name: Love v. Sears, Roebuck & Co., Civ. A. No. 3:13-CV-402-S, 2014 U.S. Dist. LEXIS 33141, at *2, *5-6 (W.D. Ky. Mar. 14, 2014)
("The plaintiff alleges she was injured when a clothing rack fell on her. The defendant's store manager, Bryan Moody, testifies, by affidavit, that he was called to the scene, that he investigated the incident, and that he prepared the incident report after the plaintiff returned to the store two days later. He also called the incident into the claims handling department, where a claim number was assigned and a file created for future use by Sears and defense counsel during subsequent litigation."; "The defendant argues, however, that it anticipated litigation, in addition to reasons for its incident-report policy, because the plaintiff returned to the store and requested a copy of the incident report. Indeed, a document may have a dual purpose and meet the Roxworthy [United States v. Roxworthy, 457 F.3d 590 (6th Cir. 2006)] test. . . . The magistrate judge concludes, however, that the incident report cannot be said to have been prepared 'because of' litigation in addition to a business purpose. There is no dispute that the plaintiff did not threaten to sue or mention litigation. Moreover, the plaintiff argues that she testified by deposition that she cooperated in providing information to a Sears representative because she was assured she would be provided a copy of the incident report. Moody's affidavit does not mention this topic or otherwise dispute the plaintiff's testimony. Under principles of equitable estoppel, the magistrate judge is not persuaded by the defense argument that the plaintiff's return to the store signaled an intention to sue.")

Case Date Jurisdiction State Cite Checked
2014-03-14 Federal KY B 8/14

Chapter: 37.803
Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 443-44 (N.D. Iowa 2014)
(analyzing work product issues in a first party insurance bad faith context; "I find that litigation was reasonably foreseeable on March 13, 2012, when Armstrong first accused TransGuard of acting in bad faith. However, that is not to say that all documents created after that date are privileged, as some may reflect work performed in the ordinary course of business, not in anticipation of litigation.")

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

Chapter: 37.803
Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *18 (E.D. Cal. Dec. 27, 2013)
("While Plaintiff contends that the work product doctrine does not apply because it cannot reasonably be said that the documents were prepared in anticipation of litigation, it was the FDIC's letter threatening litigation that caused Defendant to retain Hinshaw & Culbertson to protect their interests. . . . Clearly, litigation was anticipated during Hinshaw & Culbertson's representation of BancInsure.")

Case Date Jurisdiction State Cite Checked
2013-12-27 Federal CA B 5/14

Chapter: 37.803
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *16 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "Documents 37 and 42 both relate to the preparation of a litigation budget, the final version of which was ultimately sent to FFIC. While it may be the rare litigation budget that is prepared, drafted, and discussed by lawyers 'in anticipation of litigation,' Feld has a plausible basis here to assert the work-product privilege: the ongoing dispute over whether FFIC would reimburse Feld for his litigation expenses. These documents were created in late October 2009, well after the parties had exchanged testy letters regarding their respective positions on the requirements of Feld's insurance policies.")

Case Date Jurisdiction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 37.803
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *13-14 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "At least as to the issue of insurance coverage, Feld is correct that the parties 'were adverse from the very beginning' . . . This much is demonstrated by the tense letter-writing campaign, which had all the hallmarks of a pre-litigation dispute, including thinly veiled threats to sue in the form of the 'reservations of rights' clauses at the end of each letter. The D.C. Circuit has held that 'a document can contain work-product material even if it serves multiple purposes, so long as the protected material was prepared because of the prospect of litigation.' . . . That holding controls here. Feld's privilege log, when considered in the surrounding context of the parties' insurance-coverage dispute, provides enough information for the Court to be confident that the withheld documents were prepared with an eye toward the possibility of litigation. Hence, they are attorney work product.")

Case Date Jurisdiction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 37.803
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *14 n.6 (D. Del. Oct. 25, 2013)
("'The government observes that the Taxpayer, in its PFA request, stated its belief that 'the issue that is subject to this PFA request can reasonably be resolved' before the time the Taxpayer intended to file its 2006 return. . . . The Court does not agree with the government that the facts relating to the PFA 'undermine[]' the Taxpayer's contention that it anticipated litigation in 2006 and 2007. . . . Instead, in the Court's view, the Taxpayer's participation in the PFA in 2007 corroborates the Taxpayer's contention that, by March 2006, it knew it was provoking a battle with the IRS, and was therefore looking for avenues in which to resolve the all-but-inevitable dispute it would have with the IRS.'")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.803
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *15 n.7 (D. Del. Oct. 25, 2013)
("The government does not appear to dispute that anticipation of an audit satisfies the requirement of anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.803
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *15 (D. Del. Oct. 25, 2013)
("The Taxpayer's expectation of litigation was objectively reasonable, particularly given the sheer size of the deduction -- $4.5 billion -- and the fact that the Taxpayer was already under audit by the IRS for its prior year returns.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.803
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *16 (D. Del. Oct. 25, 2013)
("Documents being withheld by the Taxpayer support these conclusions. For example, memoranda from the Taxpayer's general counsel and outside counsel identify not only that the Taxpayer expected the transaction would come under scrutiny by the IRS, but also specifically remark on the importance of the role of the independent valuation report from XRoads [valuation firm] in any potential litigation. . . . Communications among the Taxpayer, outside counsel, and its consultants indicate that the valuation reports were a foundational part of a strategy to resist an IRS audit. . . . Indeed, the records corroborate the Taxpayer's narrative that it decided in early 2006 that a conversion of WASCO [company purchased by defendant] to an LLC was feasible and took steps over the ensuing months to bolster its legal position in an anticipated dispute with the IRS.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.803
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 108637, at *8 (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; "[I]t is almost always when the coverage is denied that a party reasonably anticipates litigation and thus can avail itself of work-product protection. . . . Documents created before then are considered to be in the ordinary course of business and not work-product.")

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

Chapter: 37.803
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *37 (E.D. Wis. July 10, 2013)
("[A]s the document appears to have been related to the government's investigation and in anticipation of further government proceedings, the document qualifies for work product protection regarding what Furr [defendant] and his counsel said. Regardless of whether particular 'historical facts' may be within the government's knowledge, what Furr and his counsel focused on and the issues they discussed concerning those historical facts are not subject to disclosure to the government.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 37.803
Case Name: JCP Merger Sub LLC v. Baker Eng'g & Risk Consultants, Inc., Civ. A. No. 12-2825 (MAS), 2013 U.S. Dist. LEXIS 84979, at *8 (D.N.J. June 18, 2013)
(holding a consultant's report about a defective architectural wall panel was prepared after a work product trigger date, but was not motivated by the anticipated litigation; "JPC certainly anticipated litigation, as evidenced by the Notice of Claim it sent to BakerRisk [defendant] on August 25, 2010.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NJ B 4/14

Chapter: 37.803
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 Jurisdiction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 37.803
Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *113 n.50 (D. Minn. June 4, 2013)
("[T]he IRS examination process is not, in and of itself, litigation and will not necessarily lead to litigation.")

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

Chapter: 37.803
Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *106-07, *108-09, *112, *113 (D. Minn. June 4, 2013)
(holding that a bank's tax information documents did not deserve work product protection, but that the bank's analysis of the issues did deserve protection; "[T]he Court finds it unlikely that Wells Fargo anticipated that the IRS would challenge -- much less litigate -- each UTP ["uncertain tax positions"]. Furthermore, Wells Fargo and the IRS do not litigate over every UTP." (footnote omitted); "Wells Fargo has made no attempt to argue that it anticipated litigation regarding select UTPs as soon as they were identified; instead, it makes a far-reaching claim that it anticipated and prepared for litigation regarding all of its UTPs from the moment of their identification. The Court is thus unable to conduct a fact-specific inquiry into each UTP to determine if Wells Fargo anticipated litigation at the time of its identification. . . . Wells Fargo has the burden of establishing the existence of the privilege; accordingly, the Court finds that Wells Fargo has not established that it was preparing for anticipated litigation when it identified its UTPs." (footnote omitted); "Unlike Wells Fargo's identification of UTPs, Wells Fargo has established that the recognition and measurement analysis reflected in its TAWs ["tax accrual work papers"] was prepared in anticipated of litigation."; "The recognition and measurement analysis in the TAWs appears to have been created while Wells Fargo anticipated litigation, instead of created at the very beginning of transactions, because the analysis references items such as challenges by the IRS and developments in possible litigation. Furthermore, this analysis appears to be pre-existing and not merely created for FIN 48[Financial Accounting Standards Board Intrepretation Number 48]; it includes settlement figures, the strengths and weaknesses of Wells Fargo's case, and assessments of Wells Fargo's chances of prevailing in litigation[,] that were prepared in anticipation of litigation.")

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

Chapter: 37.803
Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *41-42, *44 (D. Ariz. Apr. 29, 2013)
("Defendants argue that the timing of these events -- the prior denial of coverage in 2009, the City's two years of silence during the Valley Aviation litigation, the significant judgment entered against the City, and the August 26, 2011 letter from the City's coverage counsel -- establish that they anticipated litigation in August 2011 when the City contacted them again."; "Although Defendants may have contacted outside counsel in August 2011 in part to review an insurance claim, the facts surrounding the City's renewed request for coverage, the $2,275,642.32 judgment against the City, and the degree of adversity between the parties establish that Defendants were also acting in anticipation of litigation. . . . Therefore, even if Defendants were acting with a dual purpose, there were critical factors in August 2011 that made Defendants act differently toward the City and the documents in the Berger Kahn and CKGH files, dated after August 15, 2011, were created 'because of' anticipated litigation and are work product.")

Case Date Jurisdiction State Cite Checked
2013-04-29 Federal AZ B 7/13

Chapter: 37.803
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *25 (D. Ariz. Apr. 17, 2013)
("The second redacted e-mail in document 111 is a communication by one Lockheed employee to other Lockheed employees. As a communication between non-lawyer employees, the e-mail is not protected by the attorney-client privilege. See Bickler [Bickler v. Senior Lifestyle Corp., 266 F.R.D. 379 (D. Ariz. 2010)]. But the e-mail does qualify for work-product protection. The e-mail concerns responding to SGD's e-mail threatening litigation and is in furtherance of preparing a response or approach to SGD's litigation threat on which Lockheed's employees had requested Mr. Hennegan's legal advice.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 37.803
Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *18 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "There is no dispute that the prospect of litigation became real when Walker [deceased employee's husband] retained counsel, but there are no documents in the in camera submission, and no other evidence in the record, suggesting that any change in the focus of the investigation altered the form or nature of, or the documents generated by, the investigation. Attorney Moore's [outside lawyer] involvement, per se, did not convert the Policy-driven investigation into a trial preparation project, and nothing in the documents themselves suggests that the documents assumed a different form or purpose because of the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 37.803
Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 725 (E.D. Pa. 2013)
("By February 2009 the MSA [management services agreement] had terminated and the Debtor was forced to obtain loans and to contribute capital to meet current expenses. The Debtor maintains that the Defendants have failed to remit monies it collected since February 2009 for services rendered by the Debtor prior that date. . . . Accordingly, the Court finds that as of February 2009 the Plaintiff would have reasonably expected that its dispute with the Defendants would be litigated.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 37.803
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 649 (D. Nev. 2013)
("By November 2004, it [the defendant] had received multiple product liability claims concerning its filter. . . . According to Ms. Passero's [defendant's assistant G.C.] affidavit, Dr. Lehmann was retained by the Law Department at the beginning of November 2004 to provide outside consultation services regarding anticipated and ongoing product liability litigation.")

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

Chapter: 37.803
Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *5-6, *6 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved protection, because the consultant was working as the lawyer's agent; "Pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure, any materials Bernard [EEO consultant working under supervision of defendant's legal department] produced to document her communications with the Wells Fargo employees may be protected under the work product doctrine if the investigation was conducted in anticipation of litigation. . . . It is undisputed that Bernard commenced her internal investigation only in response to the EEOC charge.'; "Given Farzan's threat of litigation and his filing with the EEOC, Wells Fargo justifiably anticipated litigation at the time of Bernard's investigation.")

Case Date Jurisdiction State Cite Checked
2012-12-28 Federal NY B 5/13

Chapter: 37.803
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *9-10 (E.D. Va. July 18, 2011)
("Here, Rexam anticipated litigation because MWV warned Rexam in 2007 when it sent 'threat letters to Rexam's parent company and Rexam's customers. . . . MWV's threat letters included specific threats regarding damages available to patent owners.' . . . As a result of these letters, Rexam's counsel proceeded to hire UMinn and Bruker to prepare crystallinity testing. . . . Therefore, these experts generated data, test results, and protocols after Defendant was on notice that litigation may arise.")

Case Date Jurisdiction State Cite Checked
2011-07-15 Federal VA B 3/13

Chapter: 37.803
Case Name: Cranley v. BMC, 78 Va. Cir. 353, 355, 355, 355, 355, 356 (Va. Cir. Ct. 2009)
(assessing a situation in which a golf club management company prepared documents after an "incident" which "led to the termination of the Plaintiffs as members of the Golf Club, which lead to this litigation"; "All the requested documents concern what management considered 'a very serious matter' . . . or a 'severe incident' . . . that could lead to suspension or revocation of Golf Club memberships."; noting that "[a]t the time of the incident BMC had in place a policy that if there was an incident its security officers would investigate and prepare a written report. Mr. Rook testified that the policy existed to protect from litigation."; nevertheless finding that the materials deserved work product protection despite the policy requiring their preparation; "I think that considering the nature of the incident as alleged in the second amended complaints, it would have been reasonably foreseeable right after the incident that litigation would arise not only against BMC, but also by BMC. The Plaintiffs allege in their second amended complaints (see paragraph 42 of Cranley's and paragraph 46 of Vandegrift's) that all the acts taken by BMC were done because of the fear of litigation by the Plaintiffs."; "We live in very litigious times. Persons bring suit now for almost anything, and large companies with deep pockets are especially vulnerable to litigation. Hence, such companies need to do whatever is necessary to protect themselves if sued. This is exactly what BMC did here."; also pointing to a specific communication that the Golf Club's Director of Operations received (apparently from one of the plaintiffs); "If there is any doubt about when work product protection may have arisen, then it certainly arose when Mr. Rock received an email on September 17, 2007, stating '. . ., I will keep my legal options opened, as I was assaulted by the resort guests in question.' See Defendant's Exhibit 1. I find all the 23 requested documents to be nondiscoverable. The documents provided by Mr. DiNucci for in camera review will remain in chambers and not placed in the case file pending further order of the Court.")

Case Date Jurisdiction State Cite Checked
2009-01-01 State VA

Chapter: 37.803
Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *16-17 (W.D. Va. Apr. 15, 2008)
(finding that the work product protection covered documents created after the plaintiff filed a notice of a tort claim with the VA; "The timing of these peer reviews confirms the applicability of work product protection. Plaintiff filed notice of the tort claim with the VA on October 12, 2006. The physician peer review was created January 12-19, 2007 and the nursing peer review was created sometime after December 18, 2006, . . . which establishes that both documents were created after plaintiff filed the administrative notice.")

Case Date Jurisdiction State Cite Checked
2008-04-15 Federal VA B 5/09

Chapter: 37.803
Case Name: Hawkins v. Vann, 74 Va. Cir. 263, 264 (Va. Cir. Ct. 2007)
(holding that the work product doctrine protected an insurance adjuster's claim report because "the defendants had received notice from plaintiff's counsel of their representation and his damage claim," so "it was only reasonable to assume that the future would bring such an event")

Case Date Jurisdiction State Cite Checked
2007-01-01 State VA

Chapter: 37.803
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that WilmerHale's documents deserved work product protection; "The WilmerHale documents and communications are also protected by the work product privilege. Household's Audit Committee retained WilmerHale because of the prospect of litigation; i.e., Markell's threatened lawsuit and the SEC's format investigation. . . . In addition, as explained earlier, WilmerHale provided Household with legal advice and analysis. The fact that Household was also being represented by other counsel in those actions does not alter the court's assessment. Nor does Household's use of the Restructuring Report to assist in consummating a merger with HSBC Holdings plc. The court remains satisfied that the report was prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 37.803
Case Name: Graves v. Southland Corp., No. 4:99CV00036, VLW 099-3-155 (E.D. Va. July 14, 1999)
(defendant Southland voluntarily provided plaintiff with a recorded statement of one Southland employee that was taken before Southland received plaintiff's notice that she had retained counsel, but objected to producing copies of recorded statements of other Southland employees taken after Southland received the notice; holding that Southland did not have to produce the statements; "First, Dunn and Nottingham are susceptible to being deposed, though neither has been deposed since September 13, 1993, a period of almost six years. Thus, information readily available to plaintiff has not been pursued by plaintiff in timely fashion. Second, Dunn and Nottingham's statements were not obtained by plaintiff's insurance representative until after plaintiff had furnished notice that she had retained an attorney to protect her interests. Defendant had every right to anticipate that this matter would result in litigation, making the ability of defendant, through its 'insurer, or agent,' to be informed of relevant facts all the more significant. . . . Dunn and Nottingham's statements are not comparable to the normal and ordinary accident report routinely filed in a slip and fall case or an estimate of damage when a shopping cart hits a car in a parking lot. They are, in fact, statements taken by defendant's risk management company after having been placed on notice that plaintiff, injured in a fall, has sought the advice of counsel in order to protect her rights."; noting that Kemper Insurance "must know what has occurred, necessitating investigation. That it is done in the ordinary course of the business of protecting the interests of the insured does not make it any less in anticipation of litigation than if it was done for some other less obvious reason. The fact remains that the carrier, in order to assess its legal position with regard to the merit of a claim and/or the existence of any defenses, must be able to deal, at some point, with its insured openly, candidly, and free from discovery. This is no different than the initial statement given by a claimant to plaintiff's counsel so plaintiff's counsel may institute a cause of action on behalf of an individual. In each instance, the party making the statement is either seeking or conveying facts upon which someone must make a decision, whether a private counsel instituting an action on plaintiff's behalf or an insurance company claims manager or attorney determining whether to retain outside counsel for the defense of what is reasonably anticipated to be a future law suit.")

Case Date Jurisdiction State Cite Checked
1999-07-14 Federal VA

Chapter: 37.803
Case Name: McMillan v. Renal Treatment Ctr., 45 Va. Cir. 395, 396, 396-97, 397 (Va. Cir. Ct. 1998)
(addressing work product protection for a post-incident report at a medical facility; ultimately finding that the report did not deserve work product protection, and that plaintiff could overcome the protection even if it applied; "The facts in Mr. Charters' [defendant's lawyer] April 14 letter are that the 'incident report' was prepared by the nurse who is alleged to have been involved in the incident in question, with the nurse manager adding 'comments and signature' at the bottom. The enclosed incident report, based on the court's in camera inspection, is on a form for Renal Treatment Centers, the form apparently being used at least region wide, as the name of the facility is filled in as 'Norfolk;' nothing on the form itself indicates it is prepared in anticipation of litigation. Mr. Charter's letter acknowledges that no initial contact had been made with their respective counsel by either the plaintiff or the defendant at the time of the preparation of the report."; "Nothing written in the report itself gives any indication that Mrs. McMillan was making any claim against Mrs. Johnson [apparently the defendant's employee involved in the incident], although the report sets out that Mrs. Johnson 'denied' what Mrs. McMillan told the doctor as to what Mrs. Johnson had done. The report further states that Mrs. Johnson did not accept responsibility for the incident. Those facts, however -- denial of the facts and a refusal to accept responsibility by the nurse -- are facts setting forth the nurse, Mrs. Johnson's[,] perspective. They state nothing of any claim or demand by Mrs. McMillan, the patient, and thus fall far short of suggesting what Mr. Charters argues, to wit, that before the incident report was prepared, it had become 'clear that Mrs. McMillan was making a claim of negligence against Mrs. Johnson.' Mrs. McMillan apparently had stated certain facts as to what Mrs. Johnson had done, which facts Mrs. Johnson was denying. That denial by Mrs. Johnson does not signify, however, that Mrs. McMillan was making the type of claim of negligence that, under the relevant case law, would transform an incident report into one prepared 'in anticipation of litigation.'"; "Mr. Bennett's [plaintiff's lawyer] statement, unrebutted by Mr. Charters, is that, at the time the incident report was prepared by the defendant, there had been no contact by Mrs. McMillan or anyone else on her behalf with the Renal Treatment Center. Mrs. McMillan may have expressed displeasure with her treatment and gone to the hospital to remedy the situation, but at the time the report was prepared, she had not yet contacted an attorney or stated to anyone that she would be making a claim.")

Case Date Jurisdiction State Cite Checked
1998-01-01 State VA B 12/09

Chapter: 37.804
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sign.) Partnership Ltd., Civ. No. 3:16-CV-621, 2018 (M.D. Pa. April 5, 2018)
(finding that a litigant's own behind-the-scenes actions demonstrated a reasonable anticipation of litigation with a transactional adversary; "Jeddo insists that Rio Tinto could not possibly have reasonably anticipated litigation prior to February 18, 2016, since it was only then that Jeddo had raised the prospect of litigation. Jeddo maintains that prior to that time, and as reflected in a letter from Rio Tinto to Jeddo dated December 18, 2015, the parties had engaged in nothing more than an invitation to discuss revisions to the existing contract. In short, Jeddo urges the Court to find that prior to February 18, 2016, Rio Tinto was simply engaged in business negotiations and was endeavoring to persuade Jeddo to consider making concessions to the existing contract. Rio Tinto disagrees, noting that in the months leading up to February 18, 2016, Rio Tinto's business team and lawyers were engaged in strategic planning regarding not merely business matters, but what they anticipated – correctly -- was likely to be litigation if Rio Tinto rejected their proposal."; "Upon consideration, the Court finds that Rio Tinto has persuasively shown that in the months shortly preceding Jeddo's letter raising the prospect of litigation, the company was working with its in-house lawyers to prepare for a potential lawsuit in light of the decisions it was faced with in terms of a contract that had become unfavorable. . . . Although Jeddo is right that litigation was plainly foreseeable as of February 18, 2016, since litigation was actually raised as a possibility in that letter, this does not mean that Rio Tinto was unreasonable in anticipating litigation could arise prior to that time given the decisions it was facing.")

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA
Comment:

key case


Chapter: 37.804
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTE Ltd., Civ. No. 3:-16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *17 (M.D. Pa. Apr. 5, 2018)
June 20, 2018 (PRIVILEGE POINT)

"What Can Trigger a Reasonable Anticipation of Litigation Sufficient to Support a Work Product Claim? Part II"

Last week's Privilege Point described two of three possible "trigger" events that can create an objectively and subjectively reasonable "anticipation" of litigation: (1) an outside event certain to generate litigation; and (2) the adversary's explicit threat.

Third, in rare situations, the litigant's own internal actions can support a work product "anticipation" argument. Courts are understandably suspicious of such arguments, but sometimes they succeed. In Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTE Ltd. , plaintiff "Jeddo insists that Rio Tinto could not possibly have reasonably anticipated litigation prior to February 18, 2016, since it was only then that Jeddo had raised the prospect of litigation." Civ. No. 3:-16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *17 (M.D. Pa. Apr. 5, 2018). Of course, that was the classic example of an adversary's action triggering anticipated litigation. But Rio Tinto "disagrees, noting that in the months leading up to February 18, 2016, Rio Tinto's business team and lawyers were engaged in strategic planning regarding not merely business matters, but what they anticipated – correctly – was likely to be litigation if Rio Tinto rejected [Jeddo's] proposal." Id. at *18. The court agreed with Rio Tinto. Although acknowledging that "Jeddo is right that litigation was plainly foreseeable as of February 18, 2016" when Jeddo threatened litigation, the court explained that "this does not mean that Rio Tinto was unreasonable in anticipating litigation that could arise prior to that time given the decisions it was facing." Id. at *19.

Corporations should not count on such a favorable view, but in some circumstances might successfully claim work product protection based on their own internal steps.

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA
Comment:

key case


Chapter: 37.804
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; "Sun Capital did not hire litigation counsel until December 17, 2012. The involvement of counsel is indeed an important factor in the work product analysis. . . . The hiring of coverage counsel does not mean that Sun Capital reasonably anticipated litigation at that time; rather, it establishes that Sun Capital, a large and sophisticated company, wanted expert advice on its rights and obligations under the contract.").

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

Chapter: 37.804
Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
("Here, the documents submitted for my in camera review make clear that Plaza, NARS and outside counsel were not anticipating litigation as of November 2013, given that the Treece Firm submitted a 'budget [that] does not consider costs if [the] case were to go into suit.'")

Case Date Jurisdiction State Cite Checked
2015-06-04 Federal DC

Chapter: 37.804
Case Name: United States v. Sanmina Corp., Case No.: 5-15-cv-00092-PSG, 2015 U.S. Dist. LEXIS 66123 (N.D. Cal. May 20, 2015)
(rejecting the IRS's discovery of two documents mentioned in a report that DLA Piper sent to the IRS on behalf of its client; "The size of the worthless stock deduction [$503,000,000] meant that Sanmina could reasonably have anticipated that the IRS would scrutinize and challenge Sanmina's tax treatment of its holdings in Sanmina International AG, as the IRS has here.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal CA

Chapter: 37.804
Case Name: Hamdan v. Ind. Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *16 (S.D. Ind. June 24, 2014)
August 20, 2014 (PRIVILEGE POINT)

"Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part II"

Last week's Privilege Point noted that many courts look for evidence of privilege protection on the face of withheld documents. The same is true in the work product context.

In Schaeffler v. United States, Judge Gorenstein rejected a taxpayer's work product claim for an Ernst & Young memorandum proposing refinancing and restructuring steps — because "the memorandum does not specifically refer to litigation." No. 13 Civ. 4864 (GWG), 2014 U.S. Dist. LEXIS 72710, at *46 (S.D.N.Y. May 28, 2014). About one month later, another court rejected a litigant's work product claim, noting both that lawyers only received copies of the withheld emails and that "within the emails themselves there is not a single mention of a forthcoming tribunal." Hamdan v. Ind. Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *16 (S.D. Ind. June 24, 2014).

Both in the attorney-client privilege and work product contexts, lawyers should train their clients, and discipline themselves, to articulate on the face of their emails the "primary purpose" for their communications: legal advice in the privilege context and litigation preparation in the work product context.

Case Date Jurisdiction State Cite Checked
2014-06-24 Federal IN
Comment:

key case


Chapter: 37.804
Case Name: Reid v. Transocean Offshore Deepwater Drilling, Inc., Civil Action No. 13-6080 SECTION "I" (2), 2014 U.S. Dist. LEXIS 83045, *8-9 (E.D. La. June 17, 2014)
(holding that a company's investigation by a third-party adjusting firm did not deserve work product protection, because the post-accident investigation was undertaken in the ordinary course of business after a plaintiff was injured; "Although retention of counsel is one factor to consider, it is not conclusive of whether defendant reasonably anticipated litigation at that time. The materials reviewed in camera indicate that Reid cooperated with the medical care arranged and monitored by Shuman. There is no indication that Reid threatened to hire an attorney or to litigate his claim at any time. The witnesses whom Shuman interviewed stated that no one else had contacted them to discuss plaintiff's accident. Rather than taking an adversarial posture, Reid sought cash advances from Transocean while he was unable to work, which were granted, and he expressed his desire to return to work, which he did as soon as his doctor released him. It appears that the investigation was conducted in the ordinary course of Transocean's business 'to find out everything possible, as soon as possible, after the accident'")

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

Chapter: 37.804
Case Name: United States v. Veolia Environment North America Operations, Inc., Civ. No. 13-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013)
November 27, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part I"

The work product doctrine varies dramatically from the attorney-client privilege in many important respects. Because the protections have different strengths and weaknesses, clients and their lawyers normally should consider both protections when withholding communications or documents.

The attorney-client privilege can apply whenever clients and their lawyers communicate about the former's request for legal advice – even in the absence of litigation or anticipated litigation. In contrast, the work product doctrine applies only when clients are in or anticipate litigation. In United States v. Veolia Environment North America Operations, Inc., Civ. No. 13-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013), the court assessed work product protection for documents a corporation created in connection with its $4.5 billion worthless stock deduction. Although companies obviously prepare tax returns in the ordinary course of their business, the court pointed to the following factors (among others) in extending work product protection to the documents: the "sheer size" of the deduction; the "fact that the Taxpayer was already under audit by the IRS for its prior year returns"; the company's retention of "outside counsel Cleary Gottlieb"; the company's request for a private letter ruling interpreting pertinent regulations; and the company's application to participate in the "IRS PFA program" which is intended "to address 'issues that are likely to be disputed in post-filing audits.'" Id. At 14-15 (citation omitted).

Companies and their lawyers should remember that the work product doctrine can only apply at certain times, in contrast to the attorney-client privilege. Next week's Privilege Point will describe two other ways in which the work product doctrine provides less protection than the attorney-client privilege.

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE
Comment:

key case


Chapter: 37.805
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTE Ltd., Civ. No. 3:-16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *17 (M.D. Pa. Apr. 5, 2018)
June 20, 2018 (PRIVILEGE POINT)

"What Can Trigger a Reasonable Anticipation of Litigation Sufficient to Support a Work Product Claim? Part II"

Last week's Privilege Point described two of three possible "trigger" events that can create an objectively and subjectively reasonable "anticipation" of litigation: (1) an outside event certain to generate litigation; and (2) the adversary's explicit threat.

Third, in rare situations, the litigant's own internal actions can support a work product "anticipation" argument. Courts are understandably suspicious of such arguments, but sometimes they succeed. In Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTE Ltd. , plaintiff "Jeddo insists that Rio Tinto could not possibly have reasonably anticipated litigation prior to February 18, 2016, since it was only then that Jeddo had raised the prospect of litigation." Civ. No. 3:-16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *17 (M.D. Pa. Apr. 5, 2018). Of course, that was the classic example of an adversary's action triggering anticipated litigation. But Rio Tinto "disagrees, noting that in the months leading up to February 18, 2016, Rio Tinto's business team and lawyers were engaged in strategic planning regarding not merely business matters, but what they anticipated – correctly – was likely to be litigation if Rio Tinto rejected [Jeddo's] proposal." Id. at *18. The court agreed with Rio Tinto. Although acknowledging that "Jeddo is right that litigation was plainly foreseeable as of February 18, 2016" when Jeddo threatened litigation, the court explained that "this does not mean that Rio Tinto was unreasonable in anticipating litigation that could arise prior to that time given the decisions it was facing." Id. at *19.

Corporations should not count on such a favorable view, but in some circumstances might successfully claim work product protection based on their own internal steps.

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA
Comment:

key case


Chapter: 37.805
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sign.) Partnership Ltd., Civ. No. 3:16-CV-621, 2018 (M.D. Pa. April 5, 2018)
(finding that a litigant's own behind-the-scenes actions demonstrated a reasonable anticipation of litigation with a transactional adversary; "Jeddo insists that Rio Tinto could not possibly have reasonably anticipated litigation prior to February 18, 2016, since it was only then that Jeddo had raised the prospect of litigation. Jeddo maintains that prior to that time, and as reflected in a letter from Rio Tinto to Jeddo dated December 18, 2015, the parties had engaged in nothing more than an invitation to discuss revisions to the existing contract. In short, Jeddo urges the Court to find that prior to February 18, 2016, Rio Tinto was simply engaged in business negotiations and was endeavoring to persuade Jeddo to consider making concessions to the existing contract. Rio Tinto disagrees, noting that in the months leading up to February 18, 2016, Rio Tinto's business team and lawyers were engaged in strategic planning regarding not merely business matters, but what they anticipated – correctly -- was likely to be litigation if Rio Tinto rejected their proposal."; "Upon consideration, the Court finds that Rio Tinto has persuasively shown that in the months shortly preceding Jeddo's letter raising the prospect of litigation, the company was working with its in-house lawyers to prepare for a potential lawsuit in light of the decisions it was faced with in terms of a contract that had become unfavorable. . . . Although Jeddo is right that litigation was plainly foreseeable as of February 18, 2016, since litigation was actually raised as a possibility in that letter, this does not mean that Rio Tinto was unreasonable in anticipating litigation could arise prior to that time given the decisions it was facing.")

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA
Comment:

key case


Chapter: 37.805
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Fluidmaster argues that this document was prepared in anticipation of litigation because counsel was involved, there was little chance to settle the relevant claim at the time, and the filing of a lawsuit or arbitration was imminent. . . . The relevant privilege log entry describes the email as: 'Information gathered at the request of counsel re: draft proposal and claim statistics for settlement.'. . . If that is in fact the context under which this document was created, then it is covered by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 37.805
Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
("Here, Defendants certainly anticipated litigation with Plaintiffs in January 2014, as evidenced by their counsel's letter in that regard. The Court accepts Defendants' representation that the February 2014 emails were drafted in connection with that potential litigation and therefore constitute protected work product.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal IL

Chapter: 37.805
Case Name: Beachfront North Condominium Assoc., Inc. v. Lexington Ins. Co., Civ. No. 14-6706 (RBK/JS), 2015 U.S. Dist. LEXIS 102917 (D.N.J. Aug. 5, 2015)
(analyzing work product issues in a first party insurance context; "Given the present record the Court finds that BNCA [Condominium association] has not satisfied its burden of proving that it anticipated litigation as of January 29, 2013, the date BNCA retained counsel. The Court does not accept the notion that simply because BNCA hired an attorney it anticipated litigation. . . . Nor is the Court persuaded by Ms. Whiteley's [Plaintiff's lawyer] Certification that resolution of a claim 'often' requires litigation."; "Given that BNCA did not satisfy its burden to show plaintiff anticipated litigation as of January 29, 2013, the Court must decide the applicable trigger date for the work-product doctrine. The Court concludes that the date BNCA anticipated litigation was September 11, 2014, the date Lexington denied BNCA's claim. Before that date the actions of BNCA and its counsel were geared toward the presentment and evaluation of BNCA's insurance claim. The Court concludes that for the purpose of applying the work-product doctrine BNCA did not anticipate litigation until its insurance claim was denied on September 11, 2014. As noted, a 'remote prospect' or 'inchoate possibility' of litigation does not trigger the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2015-08-05 Federal NJ

Chapter: 37.805
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; "Factors that courts rely on to determine the primary motivation for the creation of a document include the retention of counsel and his involvement in the generation of the document . . . And whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance. . . . If the document would have been created regardless of whether litigation was also expected to ensue, the document is deemed to be created in the ordinary course of business and not in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2014-12-22 Federal LA

Chapter: 37.805
Case Name: Lindon v. Kakavand, Civ. A. No. 5:13-026-DCR, 2014 U.S. Dist. LEXIS 113304 (E.D. Ky. Aug. 15, 2014)
("Through that letter, Ruth E. Booher, then Senior Associate General Counsel of the University of Kentucky ('UK' or 'the University') and member of the UK HealthCare Risk Management Committee, communicated to other hospital and University officials3 that, based on the circumstances surrounding MJL's procedure and the nature of his complications, the University considered litigation a distinct possibility. . . . The letter further stated that the investigation into the procedure was undertaken in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2014-08-15 Federal KY

Chapter: 37.805
Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *18 (E.D. Cal. Dec. 27, 2013)
("While Plaintiff contends that the work product doctrine does not apply because it cannot reasonably be said that the documents were prepared in anticipation of litigation, it was the FDIC's letter threatening litigation that caused Defendant to retain Hinshaw & Culbertson to protect their interests. . . . Clearly, litigation was anticipated during Hinshaw & Culbertson's representation of BancInsure.")

Case Date Jurisdiction State Cite Checked
2013-12-27 Federal CA B 5/14

Chapter: 37.805
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *14 (D. Del. Oct. 25, 2013)
("On this issue the Court finds that the Taxpayer has met its burden to prove that it anticipated litigation at least as early as March 2006. The record shows that the Taxpayer sought the valuation reports because of the prospect of litigation with the IRS, believing that an IRS audit was probable. This was also the reason the Taxpayer retained outside counsel Cleary Gottlieb and chose to seek -- and obtained -- a private letter ruling from the IRS interpreting Section 165(g). It was further the reason the Taxpayer applied to participate in the IRS PFA program, a program intended to address 'issues that are likely to be disputed in post-filing audits.' . . . (emphasis added). Thus, the Taxpayer subjectively anticipated litigation." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 37.805
Case Name: United States v. Veolia Environment North America Operations, Inc., Civ. No. 13-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013)
November 27, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part I"

The work product doctrine varies dramatically from the attorney-client privilege in many important respects. Because the protections have different strengths and weaknesses, clients and their lawyers normally should consider both protections when withholding communications or documents.

The attorney-client privilege can apply whenever clients and their lawyers communicate about the former's request for legal advice – even in the absence of litigation or anticipated litigation. In contrast, the work product doctrine applies only when clients are in or anticipate litigation. In United States v. Veolia Environment North America Operations, Inc., Civ. No. 13-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013), the court assessed work product protection for documents a corporation created in connection with its $4.5 billion worthless stock deduction. Although companies obviously prepare tax returns in the ordinary course of their business, the court pointed to the following factors (among others) in extending work product protection to the documents: the "sheer size" of the deduction; the "fact that the Taxpayer was already under audit by the IRS for its prior year returns"; the company's retention of "outside counsel Cleary Gottlieb"; the company's request for a private letter ruling interpreting pertinent regulations; and the company's application to participate in the "IRS PFA program" which is intended "to address 'issues that are likely to be disputed in post-filing audits.'" Id. At 14-15 (citation omitted).

Companies and their lawyers should remember that the work product doctrine can only apply at certain times, in contrast to the attorney-client privilege. Next week's Privilege Point will describe two other ways in which the work product doctrine provides less protection than the attorney-client privilege.

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE
Comment:

key case


Chapter: 37.805
Case Name: Bishop Rink Holdings, LLC v. CIMCO Refrigeration, Inc., Case No. 12-2715-JAR-KGG, 2013 U.S. Dist. LEXIS 112257, at *4-5 (D. Kan. Aug. 9, 2013)
(holding that a party can anticipate litigation against a company with which it is still doing business; "Plaintiff has asserted work product doctrine for emails dated 7/23/2010 through 9/11/2011. Defendant challenges the assertion with the argument that because these emails were created ten months to nearly two years before this lawsuit was filed, the threat of litigation was not 'real or imminent.'. . . Plaintiff asserts, however, that it hired its 'previous counsel, who began providing legal advice regarding its claims on or before September 10, 2010' -- less than two months after the first allegedly negligent act occurred on July 12, 2010. . . . Communications prior to hiring counsel pertained to legal claims against Defendant and how to move forward in pursuing legal action. This indicates that there was more than a possibility of litigation and that the threat of litigation was real and imminent. Defendant also argues that the communication on March 11, 2011, indicating that Plaintiff considered Defendant to be the leading candidate for future work on the rink is evidence that there was no imminent threat of litigation. This correspondence is not convincing evidence that the threat of litigation was not imminent because impending litigation does not necessarily preclude two companies from continuing business relations.")

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal KS B 4/14

Chapter: 37.805
Case Name: JCP Merger Sub LLC v. Baker Eng'g & Risk Consultants, Inc., Civ. A. No. 12-2825 (MAS), 2013 U.S. Dist. LEXIS 84979, at *8 (D.N.J. June 18, 2013)
(holding a consultant's report about a defective architectural wall panel was prepared after a work product trigger date, but was not motivated by the anticipated litigation; "[A]s of the date of the SGH [outside engineering firm] Report, it would have been reasonable to anticipate litigation. SEW [general contractor that hired plaintiff for project] could have reasonably anticipated litigation based simply on the fact that it retained SGH.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NJ B 4/14

Chapter: 37.805
Case Name: McKenzie v. Walgreen Co., No. 2:12-cv-0044-KJD-NJK, 2013 U.S. Dist. LEXIS 22963, at *4, *708, *8, *9, *10 (D. Nev. Feb. 19, 2013)
(finding that defendant Walgreen reasonably anticipated litigation after a serious slip and fall, and that the work product doctrine protected documents created during Walgreen's investigation of the accident; "At issue is whether documents created by Sedgwick [Walgreen's third-party investigator] prior to McKenzie retaining counsel were created in anticipation of litigation. Sedgwick's involvement in the case began on January 26, 2010, the date McKenzie slipped and fell. The store employees contacted Segwick to report the incident. Segwick then 'gathered information and generated an incident report. The store employees also sent certain materials to Sedgwick.'. . . The incident report and gathered information has all been produced. . . . On January 27, 2010, Sedgwick informed Walgreens' in-house attorney, Michael Freeman, of the incident by email. . . . Freeman responded the same day with an email that stated he anticipated litigation as a result of the incident and he would like Sedgwick's assistance in conducting an investigation of the incident. . . . Sedgwick then began an investigation."; "McKenzie's fall and subsequent ambulance assistance and hospital visit virtually necessitated legal representation. The fact that Sedgwick's first step after collecting information on the incident was to contact in-house counsel supports this conclusion. Indeed, based on information Sedgwick provided about McKenzie's fall, Walgreens determined that it was likely going to be sued, and requested a continued investigation."; "Next, although McKenzie did not retain counsel for 10 days, McKenzie claims that, during that time, she was severely injured and in the hospital. It is thus both understandable and expected that she may take a few days to retain counsel. The 10-day delay does not, however, indicate that she had no intention of suing Walgreens or that Walgreens did not expect to be sued."; "Indeed, Walgreens counsel went so far as to explicitly state in an email to Sedgwick that it would like an investigation to be conducted because it anticipated a lawsuit."; "[A]s to McKenzie's allegation that Sedgwick would have conducted an investigation regardless of Walgreens' in-house counsel's instruction to do so, the Court disagrees. It is clear from the facts that Sedgwick's job is to conduct preliminary investigations when notified of incidents by Walgreens' employees. Sedgwick then approaches in-house counsel with information about incidents and in-house counsel decides whether a continued investigation is necessary.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal NV B 2/14

Chapter: 37.805
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 867 (Tex. Ct. App. 2013)
("A party may reasonably anticipate suit being filed and prepare for the expected litigation before anyone manifests an intent to sue.")

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

Chapter: 37.805
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 Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 37.805
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *83 (S.D. Ohio Nov. 13, 2012)
("In response to the OEPA's [Ohio Environmental Protection Agency] July 17, 2009 NOV [Notice of Violation], defendants elicited the assistance of outside counsel to formulate a response. The participation of counsel is one factor that weighs in favor of a finding that a document is work product.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 37.805
Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *27 28 (D. Kan. Nov. 13, 2012)
("Opposing the motion, Defendant focuses on when it reasonably anticipated litigation. It argues that its retention of counsel on July 25, 2011, shows it anticipated litigation at that time. But merely retaining counsel does not make documents thereafter prepared protectable under the work product doctrine. Retaining counsel to assist with an investigation and evaluation of insured property five days after its collapse hardly provides reason to find that Defendant has already shifted from its ordinary course of business in investigating a loss to now acting in anticipation of litigation." (footnote omitted))

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

Chapter: 37.805
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 686 (N.D. Ga. 2012)
("The Court finds that Plaintiff's counsel's anticipation that litigation would ensue when he retained Messrs. Ramos and Hercules to investigate the condition of the property was objectively reasonable. Pike had begun copying its lawyers on emails between the parties' representatives and sent the 'Too Bad' email on August 19, 2011, threatening that a 'federal bankruptcy judge' would sort out the parties' dispute 'so told by [its] attorney.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 7/13

Chapter: 37.805
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *17-18 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; finding the work product doctrine applicable; "On May 21, 2007, DuPont 'engaged' the law firm that now represents it in this action. DuPont reports that the government investigation began immediately thereupon in May 2007, and that DuPont delayed filing the present action in deference in this investigation."; "The record establishes that, by May 21, 2007, DuPont anticipated litigation with Mitchell and/or Kolon over the trade secrets and confidential information which DuPont thought Mitchell had supplied to Kolon.")

Case Date Jurisdiction State Cite Checked
2010-04-13 Federal VA

Chapter: 37.805
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 176 (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, Donnelly, testified that on the morning plaintiff's injury came to his attention as a result of the 'morning report' which was within a day or so of the incident itself he followed his normal practice involving employee injuries and telephoned NPBL's General Counsel. The fact that NPBL normally telephoned its General Counsel when it learned of any injury incident supports its contention that other activities such as preparing the memorandum are done with an eye toward litigation. Furthermore, with reference to this specific case, the fact that NPBL telephoned its attorney when this incident came to its attention within a day or so of the incident also suggests that the various entries on the memorandum were placed there based upon NPBL reasonably foreseeing litigation.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 37.805
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 174, 176, 177, 178 (Va. Cir. Ct. 2005)
(analyzing work product doctrine protection for a post-accident investigation report prepared by a railroad; ultimately concluding that the work product doctrine protection applied, and that the plaintiff could not overcome the work product protection; "This Court agrees that a case-by-case approach is more sound than the Thomas Organ approach, and it is more sound than the approach holding that any document prepared after an accident is automatically covered by the work product privilege. Adopting a case-by-case approach permits the Court to analyze the applicable factors in the context of each individual case. Such an examination should be encouraged since it promotes the policies behind the work product doctrine. Adoption of a bright line rule, on the other hand, results in a potentially arbitrary application of the work product doctrine. Several other Virginia Circuit Courts have adopted this case-by-case approach in varying degrees. See Lopez v. Woolever, 62 Va. Cir. 198, 203 (Fairfax County 2003) (rejecting bright-line rule and adopting case-by-case analysis in insurance context), Larson v. McGuire, 42 Va. Cir. 40, 45 (Loudoun County 1997) (implicitly adopting case-by-case analysis in insurance context)."; concluding that the work product doctrine protects the railroad's memorandum, prepared the day of the accident; noting that a railroad employee testified "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."; "[T]he fact that NPBL telephoned its attorney when this incident came to its attention -- within a day or so of the incident -- also suggests that the various entries on the memorandum were placed there based on NPBL reasonably foreseeing litigation."; "The fact that basic incident information was recorded on documents that were prepared ostensibly in the ordinary course of business tends to suggest that other documents with duplicative information might have another purpose -- such as litigation preparation."; "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."; also finding that the work product doctrine protected the railroad's "Personal Injury Summary Report"; "NPBL's policy was to treat such incidents as if they would lead to litigation because 95% of all incident reports results in claims. . . . NPBL had spoken to its attorney, about this incident, before October 31, 2003.")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA B 12/09

Chapter: 37.805
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 Jurisdiction State Cite Checked
1999-01-01 State VA B 12/09

Chapter: 37.902
Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 21, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part II"

Last week's Privilege Point described a court's rejection of a work product claim based, in part, on an in-house lawyer's lack of involvement in creating the withheld documents. Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016). The court also pointed to three other factors in denying Phoenix's work product claim.

First, two days before the date Phoenix claimed that it anticipated litigation, the company "was still internally referring to the dispute [with VMware] as employing the 'same process'" as used in another negotiation. Id. at *27. Second, one day later "Phoenix's Vice President of Sales communicated with VMware, seeking data and noting that VMware legal had agreed to 'move forward on resolving this licensing situation amicably.'" Id. Third, "Phoenix did not issue a litigation hold notice until February 17, 2015" — thirteen days after the company claimed it anticipated litigation. Id. The court pointed to these factors (and the lack of the in-house lawyers' involvement) as tending to show "that Phoenix did not reasonably anticipate that this matter would result in a lawsuit until after the date of the disputed documents." Id. at *27-28.

The Phoenix case provides several good lessons. Corporations anticipating litigation should (1) involve their lawyers, which tends to show that they were not acting in the ordinary course of business; (2) alert their business folks about the possible litigation, so that their internal communications do not undercut a later work product claim if the court reviews them in camera; and (3) quickly put a litigation hold in place. However, it seems wrong for courts to rely on external communications' laudable cordiality as evidence that the sender did not anticipate litigation.

Case Date Jurisdiction State Cite Checked
2016-07-01 Federal CA
Comment:

key case


Chapter: 37.903
Case Name: Bagley v. Yale University, Civ. A. No. 3:13-CV-1890 (CSH), 2016 U.S. Dist. LEXIS 177220 (D. Conn. Dec. 22, 2016)
(holding that new Rule 37(e) did not on its face apply to hard copy documents; "In Thomas v. Butkiewicus, No. 3:13-cv-747, 2016 U.S. Dist. LEXIS 57163, 2016 WL 1718368, at *7 (D. Conn. April 29, 2016), Chief Judge Hall said that 'the new Rule 37(e) overrules Second Circuit precedent on the question of what state of mind is sufficiently culpable to warrant an adverse inference when electronically stored evidence is missing.'"; "[N]ew Rule 37(e)(2) applies by its own terms only to 'electronically stored information that should have been preserved in the anticipation or conduct of litigation' and is lost. The amended rule would seem not to apply at all to more old-fashioned documentary evidence."; "When a litigation hold notice becomes the subject of a trial judge's opinion, it is invariably because one party is charging or contemplating charging another party with spoliation of evidence."; "In the case at bar, I am unable to accept Yale's argument that the litigation hold notices it issued about Bagley and the recipients' responses to the notices are immune from discovery because (in the absence of proof that spoliation had in fact occurred) such documents 'are subject to the attorney-client and to work product privileges,'. . . That contention is something of a stretch. . . . Assuming that all of Clune's litigation hold notices were sent to employees of Yale, Clune was in effect communicating with his client. However, the predominant purpose of that communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do."; "On April 28, 2012, at 4:51 p.m., Rosenbluth e-mailed Salovey: 'Ted Snyder and Andrew Metrick are not sure about wanting to renew Connie Bagley as Professor in the Practice, and she is getting panicky.' Salovey replied at 4:55 p.m.: 'Is there a problem?' Rosenbluth answered at 4:56 p.m.: 'Long story short, there wasn't until she started worrying and threatening legal action. Now they think she's a little off kilter.'"; "It is in these circumstances that Yale's first batch of litigation hold notices were sent to the first nine recipients on March 1, 2013: at least eleven months after Bagley began 'threatening legal action,' ten months after Snyder told Bagley she would not be reappointed, and nine months after she lodged her first internal discrimination claim with the University (which ultimately rejected the claim)."; "What happened in this case is that Yale identified 65 individuals who might have evidence relevant to Bagley's denial of reappointment, and issued them litigation hold notices in eight separate batches, a process that took a considerable amount of time. The first nine notices were sent nine months after Snyder told Bagley she would not be reappointed. The last was sent eight months after Bagley filed this action. To characterize the pace of this notification process as culpable or even negligent would be premature on the present record, but it is fair to say that it was leisurely, to an extent making it impossible to dismiss as frivolous Bagley's suggestion that she might move for a spoliation sanction."; "'Courts have recognized the need for plaintiffs to obtain information relating to litigation hold notices, such as whether a notice was actually issued and what steps were thereafter taken to collect and preserve relevant documents and data. See, e.g., In re eBay Seller Antitrust Litig., No. C 07 01882 JF (RS), 2007 U.S. Dist. LEXIS 75498, 2007 WL 2852364, at *2 (N.D. Cal. Oct. 2, 2007) (regardless of whether litigation hold notices may have contained some material protected under attorney client privilege and/or work product doctrine, court held 'plaintiffs [were] entitled to know what kinds and categories of ESI [defendant's] employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end').'"; "Therefore I conclude that in the circumstances of this case, Bagley's 'Motion to Compel'. . . is GRANTED. Bagley is entitled to examine the litigation hold notices issued by Yale, and the responsive survey forms that notice recipients returned to Yale. These documents bear directly upon the questions courts identify as dispositive in spoliation cases. Bagley is entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim. To the extent that Yale objects to production of these documents on the grounds of privilege or the work product doctrine, the objections are OVERRULED."; "'While Yale may not welcome the measurement of its obligations in the case at bar by these principles, it is worth recalling that the treatise's principal initial author, James Wm. Moore, was a towering figure on the faculty of Yale Law School. In his preface to the first edition (1938), Professor Moore referred to his effort 'at all times to accord to the Rules the interpretation which is most likely to attain the general objective of the new practice: the settlement of litigation on the merits.' That is the interpretation this Ruling attempts to adopt.'")

Case Date Jurisdiction State Cite Checked
2016-12-22 Federal CT
Comment:

key case


Chapter: 37.903
Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 21, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part II"

Last week's Privilege Point described a court's rejection of a work product claim based, in part, on an in-house lawyer's lack of involvement in creating the withheld documents. Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016). The court also pointed to three other factors in denying Phoenix's work product claim.

First, two days before the date Phoenix claimed that it anticipated litigation, the company "was still internally referring to the dispute [with VMware] as employing the 'same process'" as used in another negotiation. Id. at *27. Second, one day later "Phoenix's Vice President of Sales communicated with VMware, seeking data and noting that VMware legal had agreed to 'move forward on resolving this licensing situation amicably.'" Id. Third, "Phoenix did not issue a litigation hold notice until February 17, 2015" — thirteen days after the company claimed it anticipated litigation. Id. The court pointed to these factors (and the lack of the in-house lawyers' involvement) as tending to show "that Phoenix did not reasonably anticipate that this matter would result in a lawsuit until after the date of the disputed documents." Id. at *27-28.

The Phoenix case provides several good lessons. Corporations anticipating litigation should (1) involve their lawyers, which tends to show that they were not acting in the ordinary course of business; (2) alert their business folks about the possible litigation, so that their internal communications do not undercut a later work product claim if the court reviews them in camera; and (3) quickly put a litigation hold in place. However, it seems wrong for courts to rely on external communications' laudable cordiality as evidence that the sender did not anticipate litigation.

Case Date Jurisdiction State Cite Checked
2016-07-01 Federal CA
Comment:

key case


Chapter: 37.903
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; "Plaintiff claims that if documents created before Plaintiff's termination are work product, as Defendant elsewhere argues, then Defendant must have anticipated litigation at the time of the documents' creation, so deletion of Plaintiff's and witnesses' emails violated Defendant's obligation to preserve evidence. . . . Plaintiff also claims that Defendant has provided no evidence to show that it properly deleted Plaintiff's emails in the course of business, and seeks additional information relating to Defendant's preservation policies and efforts."; "As discussed in the previous section, it appears that Defendant was formally on notice of this litigation as of April 25, 2013. Defendant has supplemented its responses by articulating its general preservation policies. . . . However, only one of the policies provided was in effect at the time of Plaintiff's termination. . . . Since Defendant claims that it deleted the relevant email accounts during the ordinary course of business . . . Defendant should provide the relevant policies it operated under at the time it deleted those accounts, specifically, the Records Retention Schedule and Legal Hold, as defined in the Records Management Policy . . . . Beyond any policies in place, Defendant should also provide Plaintiff with the actual date of email account deletion, and the person who made the deletion or the process of deletion, if known.")

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

Chapter: 37.903
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 also argue that Bard did not reasonably anticipate litigation when it retained Dr. Lehmann because Bard had not yet implemented a litigation hold on documents and electronically stored information. But even if Bard failed to implement a timely litigation hold as Plaintiffs contend -- an issue the Court does not decide at this time -- that fact would not prove that litigation was not reasonably anticipated. Parties can fail to comply with preservation obligations in the face of reasonably anticipated litigation. Plaintiffs do not dispute that deaths and injuries from the Recovery Filter had been reported in 2004, that Bard had received demands for compensation, or that Bard had put its insurance carrier on notice of possible claims. The totality of the circumstances clearly shows that litigation was reasonably anticipated.")

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

Chapter: 37.903
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
(holding that defendant Carnival had not acted in bad faith; although it deleted emails to and from employees involved in a matter for which it later claimed work product protection; "Plaintiff also requests spoliation sanctions or instructions given Carnival's admitted destruction of computer files belonging to Morales and Hernandez."; "Carnival acknowledges deleting the computer files belonging to Morales and Hernandez consistent with its routine business practices of deleting files 30 days following the termination of employment with Carnival. . . . Hernandez left Carnival in September 2011 and Morales in October 2011. . . . The RMG investigation concluded in July 2011. Thus, as Carnival asserts, 'at the time of their respective departures from the company, Carnival had completed its investigation of RMG and did not anticipate any imminent litigation against the travel agency.'"; "Nevertheless, Plaintiff argues that Carnival cannot on the one hand contend that certain documents authored by Morales and Hernandez were 'work product' created in 'anticipation of litigation' and on the other hand assert that it routinely deleted their computer files because it did not 'anticipate any imminent litigation.'. . . But work product is exempt from mandatory disclosure regardless of the status of the anticipated litigation. . . . Work-product protection continues even after the prospect of anticipated litigation disappears. . . . Thus, although Carnival was free to delete Morales's and Hernandez's files in September and October 2011 because there was no reasonably foreseeable litigation at that time, their emails prepared as part of the RMG investigation remain privileged."; "In any event, Plaintiff has not provided any evidence that Carnival acted in bad faith.")

Case Date Jurisdiction State Cite Checked
2015-07-01 Federal IL

Chapter: 37.903
Case Name: Kettler Int'l, Inc. v. Starbucks Corp., 96 F. Supp. 3d 563, 566, 567, 572 (E.D. Va. 2015)
(sanctioning Starbucks for destroying several thousand chairs manufactured by plaintiff Kettler, despite claiming work product protection for its investigation of possible design or manufacturing defects in the chairs, and despite Kettler's warning that Starbucks should preserve the chairs; noting that Starbucks had purchased 13,870 chairs from Kettler, and had tested the chairs after several reported accidents; explaining that Starbuck's law department arranged for a consultant's investigation of the chairs, and ultimately asked the consultant to preserve 200 of the chairs, although there were over 7,000 left when the incidents occurred; explaining that on May 2, 2014, Kettler responded to Starbuck's warranty claim (based on its purchase of all of the chairs) with a reminder of Starbuck's obligation to save "every chair upon which a claim is being made"; further explaining that on the same day Kettler filed a declaratory judgment action against Starbucks; "According to Plaintiff, 'Starbucks destroyed 1,584 chairs after KETTLER demanded Starbucks preserve them and 489 chairs after KETTLER served this lawsuit on Starbucks.'" (internal citation omitted);"This Court found that Starbucks' 'duty to preserve started in October 2013,' yet from that point forward Starbucks Legal directed the destruction of over 7,000 Carlo chairs. . . . This action is compounded by the fact that on April 10, 2014, Kettler demanded Starbuck' [sic] preserve any chairs it claimed were defective, but Starbucks destroyed an additional 1,584 chairs between April 10, 2014 and May 7, 2014 when the complaint was served, . . . and then another 489 chairs after it was served with the present lawsuit. . . . Such conduct was not the result of mere negligence."; "Starbucks is seeking damages to 'all Carlo chairs' purchased within the course of its business relationship with Kettler, but it has destroyed almost ninety-nine (99) percent of them."; "The only relevant alternative remedy to dismissing the action is the remedy Plaintiff has requested, which is limiting Starbucks' damages to the remaining 200 chair sample. This would severely limit the amount of damages Starbucks can potentially recover if it succeeds on the merits; therefore, the Court will exercise its discretion and not award Kettler its reasonable attorney's fees and expenses incurred in the prosecution of its spoliation motion.")

Case Date Jurisdiction State Cite Checked
2015-04-07 Federal VA B 6/15, 3/16

Chapter: 37.903
Case Name: Kettler Int’l, Inc. v. Starbucks Corp., 81 F. Supp. 3d 495, 501 (E.D. Va. 2015)
(although not deciding on the appropriate sanction, holding that Starbucks was obligated to preserve pertinent documents relating to testing of allegedly defective chairs, because Starbucks had claimed work product protection for its analysis of the chairs; "The Court found that the duty to preserve started in October 2013, when Starbucks contracted with SGS to test the Carlo chair for defects. Starbucks asserted the work product doctrine as a defense to production of the test results. Federal Rule of Civil Procedure 26(b)(3) limits application of the work product doctrine to documents 'prepared in anticipation of litigation[.]'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2015-01-28 Federal VA B 3/16 B 6/15

Chapter: 37.903
Case Name: Sanofi-Aventis Deutschland GMBH v. Glenmark Pharmaceuticals Inc., 2012-1489, 2014 U.S. App. LEXIS 7392 (Fed. Cir. App. April 21, 2014)
(upholding a 2011 approximately $16,000,000 verdict against defendant for patent infringement, and the district court's adverse inference instructions based on spoliation; "The district court found that litigation became 'reasonably foreseeable' to Glenmark no later than the date asserted for 'work product' in its privilege log. Spoliation Op. at 9. The privilege log contained entries for 'work product' as early as February 2006. The court observed that '[a] party claiming work-product immunity bears the burden of showing that the materials in question were 'prepared in the course of preparation for possible litigation.' Id. (quoting Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000))."; "The district court exercised its discretion, and gave the jury a permissive instruction, as follows: 'You may make an adverse inference in this case against Glenmark. In this case, I have determined that Glenmark systematically overwrote the emails on its email server between February 23, 2006 and mid-2007 and that some of these documents were relevant to the claims in suit.'"; "'An adverse inference permits you, the jury, to infer that the destroyed emails and attached documents might or would have been unfavorable to the position of Glenmark. However, you are not required to draw such an inference, and the weight to be given such an inference is your decision.'"; "The destroyed records were from the period that was acknowledged to include discussion of the generic drug, marketing in the United States, preparation of the ANDA, and the Paragraph IV Certification challenging the patent. Glenmark did not negate the reasonable inference that the destroyed emails related to relevant issues."; "Although the district court declined to impose the sanction of forfeiture as requested by Plaintiffs, the court was well within its discretion in informing the jury that it may draw an inference that the destroyed documents may have been unfavorable to Glenmark.")

Case Date Jurisdiction State Cite Checked
2014-04-21 Federal
Comment:

key case


Chapter: 37.903
Case Name: Sanofi-Aventis Deutschland GMBH v. Glenmark Pharms., Inc., 748 F.3d 1354, 1362, 1362-63, 1363 (Fed. Cir. 2014)
(upholding a 2011 approximately $16,000,000 verdict against defendant for patent infringement, and the district court's adverse inference instructions based on spoliation; "The district court found that litigation became 'reasonably foreseeable' to Glenmark no later than the date asserted for 'work product' in its privilege log. . . . The privilege log contained entries for 'work product' as early as February 2006. The court observed that '[a] party claiming work-product immunity bears the burden of showing that the materials in question were 'prepared in the course of preparation for possible litigation.' . . . (quoting Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000))."; "The district court exercised its discretion, and gave the jury a permissive instruction, as follows: 'You may make an adverse inference in this case against Glenmark. In this case, I have determined that Glenmark systematically overwrote the emails on its email server between February 23, 2006 and mid-2007 and that some of these documents were relevant to the claims in suit.'" (citation omitted); "'An adverse inference permits you, the jury, to infer that the destroyed emails and attached documents might or would have been unfavorable to the position of Glenmark. However, you are not required to draw such an inference, and the weight to be given such an inference is your decision.'" (citation omitted); "The destroyed records were from the period that was acknowledged to include discussion of the generic drug, marketing in the United States, preparation of the ANDA, and the Paragraph IV Certification challenging the patent. Glenmark did not negate the reasonable inference that the destroyed emails related to relevant issues."; "Although the district court declined to impose the sanction of forfeiture as requested by Plaintiffs, the court was well within its discretion in informing the jury that it may draw an inference that the destroyed documents may have been unfavorable to Glenmark.")

37.903 – added

key case


B 2/17

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 2/17
Comment:

key case


Chapter: 37.903
Case Name: Lesh v. EV3, Inc., C.A. No. 05C-05-218 CLS, 2013 Del. Super. LEXIS 221, at *1, *7-8 (Del. Apr. 16, 2013)
(denying plaintiffs' request for an adverse inference based on defendant's failure to preserve documents at a time when it anticipated litigation; finding that a defendant's "work product" label on some documents did not automatically mean that the company anticipated litigation; "Plaintiffs bring this motion for an adverse inference jury instruction on the grounds that ev3 has likely destroyed critical evidence by failing to suspend the auto-deletion of e-mails and documents of former employees until three years after its duty to preserve documents arose and eighteen months after it issued a legal hold. Plaintiffs assert that ev3 anticipated litigation as early as October 9, 2003 and, thus, ev3 was under a duty to preserve evidence at that time. ev3 argues that it was under no duty to preserve evidence until the suit was filed in May 2005 since no evidence has been [offered that] plaintiffs threatened litigation or that the circumstances suggested imminent threat of litigation."; "Plaintiffs' argument based on the slides labeled as 'Attorney Client Privileged-Protected Work Product,' dated October 29, 2003, is also unconvincing. The label presents the issue of whether the facts suggest that ev3 actually anticipated litigation on October 29, 2003, not whether the slides were actually prepared in anticipation of litigation and, as such, protected by the work-product privilege. Plaintiffs have proffered no legal support that the mere labeling of something as 'Work Product' indicates that a party had reason to anticipate litigation which would require that party to preserve evidence. In addition, there are insufficient facts presented at this time to show that ev3 was anticipating litigation at the time that the document was labeled.")

Case Date Jurisdiction State Cite Checked
2013-04-16 State DE B 4/14

Chapter: 37.903
Case Name: Sanofi-Aventis Deutschland GMBH v. Glenmark Pharms. Inc., 748 F.3d 1354, 1361, 1362, 1363 (Fed. Cir. 2014)
(affirming a jury damage award of over $16 million following an adverse inference instruction based on defendant's spoilation; finding that defendant's duty to preserve pertinents documents begin on the date first mention in its privilege log; "The district court concluded that Glenmark had violated its duty to preserve relevant evidence when litigation is planned or reasonably foreseen. The court denied the Plaintiffs' motion for default, but instructed the jury that it was permitted to draw an adverse inference that the electronic documents that Glenmark deleted in 2005 and 2006 would have been unfavorable."; "The district court found that litigation became 'reasonably foreseeable' to Glenmark no later than the date asserted for 'work product' in its privilege log. . . . The privilege log contained entries for 'work product' as early as February 2006."; noting that the trial court had given the jury an adverse inference instruction; "The district court exercised its discretion, and gave the jury a permissive instruction, as follows: 'You may make an adverse inference in this case against Glenmark. In this case, I have determined that Glenmark systematically overwrote the emails on its email server between February 23, 2006 and mid-2007 and that some of these documents were relevant to the claims in suit.' 'An adverse inference permits you, the jury, to infer that the destroyed emails and attached documents might or would have been unfavorable to the position of Glenmark. However, you are not required to draw such an inference, and the weight to be given such an inference is your decision.'"; "Although the district court declined to impose the sanction of forfeiture as requested by Plaintiffs, the court was well within its discretion in informing the jury that it may draw an inference that the destroyed documents may have been unfavorable to Glenmark. The courts are not required to tolerate acts in derogation of the integrity of judicial process. . . . The destruction of documents in the course of preparation for litigation has no entitlement to judicial protection, and need not be concealed from the jury. A new trial on this ground is not warranted.")

Case Date Jurisdiction State Cite Checked
2010-07-01 Federal NJ

Chapter: 37.903
Case Name: Samsung Elec. Co., Ltd., v. Rambus Inc. 439 F. Supp. 2d 524, 542 (E.D. Va. 2006)
("While the work product definition of when a party anticipates litigation is not helpful with respect to negligent spoliation, by virtue of its causal element, it nevertheless provides a helpful guide when assessing intentional spoliation: at the very least, a party has anticipated litigation when it destroys relevant evidence because of the prospect of litigation on an actual or potential claim.")

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA

Chapter: 37.1403
Case Name: J.N. and J.N. v. South Western School Dist., Civ. No. 1:14-CV-0974, 2014 U.S. Dist. LEXIS 134346 (M.D. Pa. Sept. 24, 2014)
(holding that an inadvertent production of a privileged document did not result in a waiver; "In terms of the steps taken to rectify the inadvertent disclosure, the District first requested that plaintiffs destroy the privileged communications approximately four days after the disclosure and memorialized its position via letter several weeks thereafter. . . . The District submitted a motion in limine to prevent the introduction of Dr. Renehan's email at the due process hearing and consistently objected to any use of the privileged portion of the email exchange during the hearing. This factor favors the District.")

Case Date Jurisdiction State Cite Checked
2014-09-24 Federal PA