Showing 429 of 429 results

Chapter: 38.2

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 166 (Pa. Super. Ct. March 13, 2017)
("The work product protection 'shelters the mental processes of the attorney' so that the lawyer can 'analyze and prepare his client's case.'. . . It is an 'intensely practical' privilege and not all written materials prepared by counsel with litigation in mind are free from discovery.")

Case Date Jurisidction State Cite Checked
2017-03-13 State PA

Chapter: 38.2

Case Name: Motion Industries, Inc. v. Superior Derrick Services, LLC, Civ. A. No. 15-1958 Section: "H"(5), 2016 U.S. Dist. LEXIS 23826 (E.D. La. Feb. 26, 2016)
(analyzing an internal corporate investigation into possibly improper transactions; holding that in the Fifth Circuit litigation need not be imminent to trigger the work product doctrine protection; "[T]he mere fact that a defendant anticipates litigation resulting from an incident does not automatically insulate investigative reports from discovery as work-product.")

Case Date Jurisidction State Cite Checked
2016-02-26 Federal LA

Chapter: 38.2

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; "[T]he case law is clear that while a document created before a complaint is filed does not exempt it from work-product protection, the converse is also true. The mere fact that litigation is pending does not transform everything done by or for a party into work product worthy of protection. . . . Instead, the key to determining work-product protection is the primary motivating purpose behind the creation of the document.")

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

Chapter: 38.2

Case Name: Bank of America, N.A. v. Georgia Farm Bureau Mut. Inc. Co., No. 3:12-CV-155 (CAR), 2014 U.S. Dist. LEXIS 136914, at *16 (M.D. Ga. Sept. 29, 2014)
("Although GFB anticipated litigation with Enslen during this time, GFB has failed to demonstrate how anticipating litigation with Enslen makes the requested documents work product as to BANA. It is GFB's burden to demonstrate that the requested discovery is work product.")

Case Date Jurisidction State Cite Checked
2014-09-29 Federal GA

Chapter: 38.2

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 Jurisidction State Cite Checked
2014-08-05 Federal NY

Chapter: 38.2

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

"Courts Confirm Basic Work Product Principles"

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

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

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

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

key case


Chapter: 38.2

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

"Courts Confirm Basic Work Product Principles"

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

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

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

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

key case


Chapter: 38.2

Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *7 n.2 (S.D.N.Y. Feb. 5, 2013)
("'The Court does note that the timing of the litigation hold is sufficiently close and intertwined with the events at this time that work product may well have been created on or near December 28, 2011.")

Case Date Jurisidction State Cite Checked
2013-02-05 Federal NY B 2/14

Chapter: 38.2

Case Name: Quality Time, Inc. v. West Bend Mutual Insurance Co., Case No. 12-1008-JTM-GLR, 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012)
January 30, 2013 (PRIVILEGE POINT)

"Litigants Must Address the "Motivation" Work Product Element"

The work product doctrine rests on three basic elements: (1) there must be some "litigation" (this element normally includes arbitrations and adversarial government hearings, but not government investigations); (2) the litigant must be in such litigation or have reasonably "anticipated" it; and (3) the withheld document must have been "motivated" by that litigation. Some litigants forget the third element.

In Quality Time, Inc. v. West Bend Mutual Insurance Co., Case No. 12-1008-JTM-GLR, 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012), the court addressed a work product claim in a first party insurance case. The defendant insurance company argued that the work product doctrine protected documents created after related state court litigation began. The court rejected the work product claim – explaining that even after litigation begins the work product doctrine "applies . . . To protect only those documents created because of the litigation." Id. At *31. The court noted that the defendant "does not address this equally important component of the work product doctrine." Id. As the court explained, "the ordinary course of business does not end with the commencement of litigation," and "the party resisting discovery on grounds of work product must show more than the creation of a document after commencement of litigation." Id. At *32.

Every court takes the same approach, but few articulate as bluntly the key "motivation" element of the work product doctrine protection.

Case Date Jurisidction State Cite Checked
2012-11-13 Federal KS
Comment:

key case


Chapter: 38.2

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 107 (D.D.C. 2012)
("[T]he Rule's emphasis on documents prepared 'in anticipation of litigation' contains two separate, yet related concepts -- one temporal, the other motivational.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 38.2

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *6, *7 (W.D. Va. June 15, 2011)
("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) (quotation omitted)."; "This 'because of' standard was 'designed to help district courts determine the driving force behind the preparation of the work product' and distinguish between that which is created in anticipation of litigation and that which is created in the ordinary course of business. RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 746-47 (E.D. Va. 2007).")

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

Chapter: 38.2

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)
("Unless documents are created 'because of the prospect of litigation,' id. (quoting National Union, 967 F.2d at 984), work product protection does not apply. Id. at 747. [RLI Insurance Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 746 (E.D. Va. 2007)]")

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

Chapter: 38.2

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 604-605 (E.D. Va. 2010)
("It does not cover documents created in the ordinary course of business that later serve a litigation-related purpose. 2010 U.S. Dist. LEXIS 36530, [WL] at *3-4 [E.I. Du Pont de Nemours and Co. v. Kolon Industries, Inc., No. 3:09CV58, 2010 U.S. Dist. LEXIS 36530, 2010 WL 1489966 (E.D. Va. Apr. 13, 2010)].")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal VA

Chapter: 38.2

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

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

Chapter: 38.2

Case Name: National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)
("Following any industrial accident, it can be expected that designated personnel will conduct investigations, not only out of a concern for future litigation, but also to prevent reoccurrences, to improve safety and efficiency in the facility, and to respond to regulatory obligations. Determining the driving force behind the preparation of each requested document is therefore required in resolving a work product immunity question.")

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

Chapter: 38.3

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

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

key case


Chapter: 38.3

Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "To start off, we accept BOC's contention that BOC's receipt of the Demand Letter triggered the investigation and that BOC anticipated the potential for litigation as a result of the threat in the Demand Letter. BOC goes on to argue that had it not been for the Demand Letter, BOC 'would have undertaken no investigation at all.'. . . Notably, there is no record citation for this contention. In any event, it is unclear what BOC means by this assertion. If BOC means to say merely that the Demand Letter was a 'but for' cause of the investigation, this does not address the issue of whether it has shown the materials were prepared 'because' of its anticipation of litigation -- that is, that the materials would not have been created 'in essentially similar form irrespective of the litigation.'"; "The question is essentially a factual one: would BOC have generated the materials listed on the privilege log in similar form had it not anticipated litigation? Answering this question 'requires us to consider what 'would have' happened had there been no litigation threat -- that is, whether [BOC] 'would have' generated these documents if it were acting solely for its' non-litigation purposes. Allied Irish Banks, 240 F.R.D. at 106. We note that this hypothetical circumstance does not involve imagining what BOC would have done had no one told it that the Shurafa accounts merited scrutiny. Rather, we imagine a hypothetical situation where BOC is made aware of all facts contained in the Demand Letter but sees no threat of actual litigation itself -- for example, if BOC were to learn of the facts surrounding the Shurafa accounts from its own internal mechanisms for detecting counter-terrorism and anti-money laundering, or from an outside source unlikely to institute litigation such as a foreign law enforcement agency or a newspaper reporter. In other words, we look at the question as follows: had BOC been presented with the identical facts about Shurafa in circumstances in which it did not foresee litigation, would it have generated essentially the same documents sought by plaintiffs on this motion?"; "For its part, BOC has provided virtually no evidence on the question of what BOC 'would have' done had it learned of the Shurafa allegations under circumstances where the knowledge was not coupled with the threat of litigation. It has not even made this showing for materials generated after the filing of the complaint. For this reason alone, BOC has not met its burden of showing that the materials are protectable as work product."; "[T]hat BOC had good reason to investigate the allegations about improprieties in the Shurafa accounts absent the threat of litigation. Of course, it is BOC's burden to prove that it would not have undertaken this investigation and, more specifically, that it would not have generated the documents on the privilege log had they not anticipated litigation. As already stated, BOC has provided essentially no evidence to support this conclusion.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal NY
Comment:

key case


Chapter: 38.3

Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197, 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
(holding that neither the attorney-client privilege nor the work product doctrine protected Chevron's "legally chartered" "root cause analysis" of a fatal pipeline accident, although in-house lawyer's affidavit explained that Chevron anticipated litigation, and as such "legally chartered root cause investigations are not routine"; "Settoon [Plaintiff] points to the testimony of Denise Boihem, a Chevron engineer who supervised the repair of the VP-01 pipeline, who agreed in her deposition that the 'primary purpose of a root cause analysis' is to 'prevent a similar accident from happening again in the future.'. . . Additionally, Settoon stresses that Boihem testified that it is 'part of the Chevron ordinary course of business to conduct a root cause analysis' after an incident."; "Settoon directs the Court's attention to the statement of Randy Curry ('Curry'), identified by Chevron as the president of Chevron Pipeline, in a 'Newsletter from Randy Curry to Fellow Employees': "'. . . We are conducting root cause analyses of both incidents and will apply lessons learned. Our ultimate goals remains the same -- an incident and injury-free workplace.'"; "The evidence and testimony before the Court establish that root cause analyses are routinely conducted by Chevron after incidents such as these and that the purpose of such analyses is to determine the root cause of said incidents in order to prevent similar accidents from re-occurring. Chevron does not dispute this, as even Youngblood acknowledged in his declaration that such investigations are routinely undertaken 'to identify improvements to procedures or equipment.'"; "The salient question is whether 'legally chartered' root cause analyses are different in kind than those 'other' root cause analyses routinely conducted by Chevron. Chevron argues that they are, essentially because its in-house counsel says they are: 'Within Chevron, legally chartered root cause investigations are not routine.' (Id.). The problem with this conclusory and self-serving statement is that it is undermined by the testimony and evidence before the Court, including the documents themselves.")

Case Date Jurisidction State Cite Checked
2015-01-05 Federal LA
Comment:

key case


Chapter: 38.3

Case Name: In re: Fundamental Long Term Care, Inc. v. GECC, Case No. 8:11-bk-22258-MGW, Ch. 7, Adv. No. 8:13-ap-00893-MGW, 2014 Bankr. LEXIS 1945 (M.D. Fla. Apr. 30, 2014)
("FAS cannot overcome the failure to meet its privilege burden by simply claiming that some (or all) of the communications even if not made for the purpose of securing legal advice convey the in-house lawyers' mental impressions. Perhaps they do. And the work product doctrine, while ordinarily protecting materials prepared by or at the direction of a lawyer, has been construed to protect communications. But a lawyer's mental impressions are not protected work product unless they were made in anticipation of litigation. Once again, the record is completely devoid of any evidence that the mental impressions were formulated or conveyed in anticipation of litigation, and as a consequence, FAS is not entitled to invoke the work product doctrine to prohibit disclosure of Anderson's testimony.")

Case Date Jurisidction State Cite Checked
2014-04-30 Federal FL

Chapter: 38.3

Case Name: Judicial Watch, Inc. United States Dep't of Homeland Sec., 926 F. Supp. 2d 121, 139, 142-43 (D.D.C. 2013)
("In its opposition to DHS's first summary judgment motion, Judicial Watch argued, inter alia, that because the information in the spreadsheets was gathered to decide whether to terminate litigation, the information could not have been prepared 'in anticipation in litigation' as is required under the work-product doctrine. The Court found this argument without merit, reasoning that '[m]aterial may still be prepared 'in anticipation of litigation' even when an attorney is deciding whether or not to pursue a case, including under circumstances analogous to those presented here.'" (citation omitted); "[T]he documents at issue here appear to the Court to have been promulgated as 'general standards' to instruct ICE staff attorneys in determining whether to exercise prosecutorial discretion in specific categories of cases. For example, DHS0010 is a page from Goldman's August 12, 2010 Memorandum to attorneys within OCC Houston, which DHS itself describes in its briefing as 'instruct[ions] . . . about how to handle (and in some factual circumstances, exercise prosecutorial discretion by moving to dismiss) cases falling into priorities one, two and three.'. . . The Second Vaughn [referring to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973] Index asserts protection under the work-product privilege due to the fact that the memorandum reflects advice and direction on how to handle 'cases of the type specifically contemplated' therein, which was 'intended to be applied to the attorneys' then current caseload.'. . . But this is not enough to invoke the privilege. While the memorandum may be, in a literal sense, 'in anticipation of litigation' - it simply does not anticipate litigation in the way the work-product doctrine demands, as there is no indication that the document includes the mental impressions, conclusions, opinions, or legal theories of Goldman, or any other agency attorney, relevant to any specific, ongoing or prospective case or cases.")

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

Chapter: 38.3

Case Name: Columbia Data Prods., Inc. v. Autonomy Corp., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *39 (D. Mass. Dec. 12, 2012)
(concluding that an audit prepared by PWC for plaintiff CDP did not deserve privilege or work product protection, although CDP's law firm Greenberg Traurig retained PWC; "Although CDP may have believed that litigation was a real possibility, and its decision to retain litigation counsel stemmed from that belief, the record demonstrates that the audit was conducted to determine how much, if anything, Iron Mountain owed under the License Agreement, not for litigation purposes.")

Case Date Jurisidction State Cite Checked
2012-12-12 Federal MA B 8/13

Chapter: 38.3

Case Name: Quality Time, Inc. v. West Bend Mutual Insurance Co., Case No. 12-1008-JTM-GLR, 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012)
January 30, 2013 (PRIVILEGE POINT)

"Litigants Must Address the "Motivation" Work Product Element"

The work product doctrine rests on three basic elements: (1) there must be some "litigation" (this element normally includes arbitrations and adversarial government hearings, but not government investigations); (2) the litigant must be in such litigation or have reasonably "anticipated" it; and (3) the withheld document must have been "motivated" by that litigation. Some litigants forget the third element.

In Quality Time, Inc. v. West Bend Mutual Insurance Co., Case No. 12-1008-JTM-GLR, 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012), the court addressed a work product claim in a first party insurance case. The defendant insurance company argued that the work product doctrine protected documents created after related state court litigation began. The court rejected the work product claim – explaining that even after litigation begins the work product doctrine "applies . . . To protect only those documents created because of the litigation." Id. At *31. The court noted that the defendant "does not address this equally important component of the work product doctrine." Id. As the court explained, "the ordinary course of business does not end with the commencement of litigation," and "the party resisting discovery on grounds of work product must show more than the creation of a document after commencement of litigation." Id. At *32.

Every court takes the same approach, but few articulate as bluntly the key "motivation" element of the work product doctrine protection.

Case Date Jurisidction State Cite Checked
2012-11-13 Federal KS
Comment:

key case


Chapter: 38.3

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *93 (S.D. Ohio Nov. 13, 2012)
("The documents found at Tabs 51, 52, and 60 were created to respond to the USEPA's Section 114 request for specific, factual information about emissions from HNCC. Although the Graff litigation had already been filed, the driving force behind the communications was for business and regulatory purposes, and the documents would have been prepared regardless of whether the plaintiffs had filed suit. In the normal course of business, HNCC, like other owners or operators of an emission source, is required to periodically answer specific questions and/or provide information to the USEPA about emissions pursuant to federal regulations. Thus, the responses to the Section 114 requests would have been 'prepared in substantially the same manner irrespective of' the Graff or any other anticipated litigation." (citation omitted))

Case Date Jurisidction State Cite Checked
2012-11-13 Federal OH B 7/13
Comment:

key case


Chapter: 38.3

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson has not established that the work of the lawyers was in anticipation of litigation even though it was done during litigation.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA

Chapter: 38.3

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 Jurisidction State Cite Checked
2010-04-13 Federal SC

Chapter: 38.3

Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 226, 227 (Va. Cir. Ct. 2010)
("[T]he Defendant in this case has not carried the burden of proof of establishing that the memorandum from the superintendent to the general manager was prepared because of the prospect of litigation rather than because of some other non-litigation purpose. In its brief to the Court, the Defendant 'maintains that the diagrams and memorandum at issue in Plaintiff's Motion to Compel are privileged because . . . it was reasonably foreseeable at the time these materials were prepared that the incident would result in litigation.' (Def. Mem. in Opp. p. 2.) All of that may be true. Indeed, the Court is inclined to think that litigation based on the incident here was reasonably foreseeable. But the fact that it was reasonably foreseeable that the incident would result in litigation does not automatically mean that this particular document was prepared in anticipation of litigation. . . . Because the Court believes the superintendent likely would have followed the company's reporting process and prepared a report in response to this incident even if it had resulted in a non-reportable injury, the Court sees his report on the objective facts of a reportable injury as a routine action, and not as something prepared in anticipation of litigation."; "The Court understands the Defendant's reluctance to produce what it considers in-house investigative documents, but, in this case, the internal memorandum and the two diagrams were not prepared in anticipation of litigation. They were prepared pursuant to the company's regular reporting process and simply provide objective documentation of the incident, which helps protect both parties.")

Case Date Jurisidction State Cite Checked
2010-01-01 State VA
Comment:

key case


Chapter: 38.3

Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *9 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "It is settled in the Fourth Circuit that a document must have been prepared 'because of' the potential for litigation in order to be protected by the work-product doctrine. . . . Materials that are prepared in the 'ordinary course of business' or for other non-litigation purposes are not considered to have been prepared in the anticipation of litigation, even if litigation is anticipated. . . . Finally, if a document is prepared in anticipation of litigation but does not contain mental impressions that document may be discoverable upon a demonstration of substantial need and an inability to obtain the information in the document without undue burden.")

Case Date Jurisidction State Cite Checked
2009-07-31 Federal VA

Chapter: 38.3

Case Name: Matthews v. Maryview Hosp., 74 Va. Cir. 283, 285 (Va. Cir. Ct. 2007)
(analyzing report made by hospital in the course of treating a plaintiff who later sued the hospital for malpractice; "Applying the case by case rule to our facts, we note the following: (1) the reports in question were made in the ordinary course of business; (2) no litigation was pending nor had any been threatened; (3) the 'Medication Quality Care Report' was generated for safety and improvement purposes. While an argument could be made that every event that endangers a patient as a result of possible negligent treatment may end in litigation, the opposite may also be true. Obviously it is important to preserve information for the future 'just in case,' but there are other good reasons to collect this information. Every health care provider should be concerned about the prevention of error and the development of management systems to facilitate that end. Indeed part of the data submitted for review has a quality control component. Balancing this 'business purpose' against the preparation of material in contemplation of litigation, the court is of the opinion that the material was prepared primarily for management purposes. In this matter, there was no litigation nor any lawyer threatening such at the time of preparation of the material. To find a 'work product doctrine' privilege requires the court to speculate. While we obviously now are involved in litigation, the use of 'hindsight' is not an appropriate method. Applying a 'reasonable person' test, I cannot come [sic] the conclusion that litigation was probable. Thus the material in question shall be subject to discovery.")

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

Chapter: 38.3

Case Name: Collins v. Mullins, 170 F.R.D. 132, 134 (W.D. Va. 1996)
(holding that the work product doctrine "applies only when the evidence is gathered because of the prospect of litigation")

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

Chapter: 38.3

Case Name: National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)
("Following any industrial accident, it can be expected that designated personnel will conduct investigations, not only out of a concern for future litigation, but also to prevent reoccurrences, to improve safety and efficiency in the facility, and to respond to regulatory obligations. Determining the driving force behind the preparation of each requested document is therefore required in resolving a work product immunity question.")

Case Date Jurisidction State Cite Checked
1992-01-01 Federal
Comment:

key case


Chapter: 38.4

Case Name: United Food and Commercial Workers Local 1776 v. Teikoku Pharma USA, Inc., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 151948 (N.D. Cal. Nov. 9, 2015)
(holding that a draft letter did not deserve privilege protection because they were primarily business-related, and that any privilege was waived when the company provided the draft letters to Deloitte; also rejecting work product protection for tax-related communications occurring after litigation ended; "The drafts are also not protected from disclosure under the work product doctrine. The drafts post-date the settlement with Watson and were created specifically to allow Endo to receive advice from the SEC about its accounting of that settlement, and not in anticipation of litigation. These drafts and the pre-clearance letter were not created 'because of' the prospect of litigation, therefore, and cannot be protected as work product."; "Endo argues that these 'mental impressions' reflect the legal analysis of its attorneys from the Watson litigation, and the mere fact that they were committed to paper after the end of that litigation does not strip them of their work product character. But this case is unlike the one relied on by Endo for that proposition. See eSpeed, Inc. v. Bd. Of Trade of City of Chicago, Inc., 2002 U.S. Dist. LEXIS 7918, 2002 WL 827099, at *2 (S.D.N.Y. May 1, 2002) (oral attorney opinion about pending patent litigation protected as work product even though not committed to writing until after conclusion of litigation). Endo has not shown that disclosure of the identified mental impressions will jeopardize Endo's ability to defend or settle similar litigation in the future.").

Case Date Jurisidction State Cite Checked
2015-11-09 Federal CA

Chapter: 38.4

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "The work-product doctrine protects materials if they were prepared for any litigation (even litigation which has terminated) as long as such materials were prepared for a party to the litigation in which the protection is being asserted.")

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

Chapter: 38.7

Case Name: Nalco Company LLC v. Pall Corporation, 16-cv-6755 (PKC), 2017 U.S. Dist. LEXIS 63122 (S.D.N.Y. April 13, 2017)
(holding that the work product doctrine did not protect documents required by a contract; "The terms of the parties' Agreement sheds much light on the subject. As noted, the Agreement, among other things, required Nalco to meet Year Two sales targets under pain of having its exclusive distributorship terminated. . . . The July 2016 Spreadsheet was an effort to comply with that requirement. . . . Thus, the July 2016 Spreadsheet was not a gratuitous piece of advocacy by Nalco; it was contractually required to send the report."; "Silberberg [a Dorsey & Whitney partner] asked Anderson to re-check the calculations in the July 2016 Spreadsheet, but he does not claim to have asked him to prepare a revised spreadsheet if errors were found. Nalco's submissions to this Court make it fairly plain that the December 2016 Spreadsheet was intended as a revised version of the July document. . . . In opposition to the motion to compel, Nalco now takes the position that it does not intend to make affirmative use of the document in its own case in chief . . . . However, this belated concession does not retroactively confirm the document as attorney work product at the time of creation. It is better understood as a 'correction' of a contractually-mandated document.")

Case Date Jurisidction State Cite Checked
2017-04-13 Federal NY

Chapter: 38.7

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; "It is true that the statutes and regulations impose on Bard certain obligations: to maintain complaint and adverse event files . . . investigate and report to the FDA certain product failures . . . undertake certain duties with respect to misbranded or adulterated devices . . . and perform quality audits . . . . But these laws do not impose an obligation to conduct the extensive and comparative statistical and bench testing data analyses undertaken by Dr. Lehmann and memorialized in the Report. Both Passero and Dr. Lehmann testified that the Report was an unusual undertaking, prepared in anticipation of litigation and unrelated to Bard's regulatory obligations. . . . Even considering and crediting Plaintiffs' evidence, the Court finds these assertions largely unrebutted. The Report was a more extensive and detailed analysis than Bard normally created. The evidence does not support Plaintiffs' assertion that the Report was prepared in the ordinary course of Bard's business. It supports a finding that the Report 'would not have been created in substantially similar form but for the prospect of litigation.'")