McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 545 of 545 results

Chapter: 38.2
Case Name: Toranto v. Jaffurs, Case No. 16cv1709-JAH (NLS), 2018 U.S. Dist. LEXIS 123885 (S.D. Cal. July 24, 2018)
("[T]he retention of the third party reviewer was for the primary purpose of evaluating the soundness of Dr. Toranto's treatment history and Rady has put forth no evidence that the review and/or report would have been conducted or written any differently if not for the litigation.")

Case Date Jurisdiction State Cite Checked
2018-07-24 Federal CA

Chapter: 38.2
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "The document is a summary of a conversation that Dr. Brady [Zoo CEO] had with Dr. Terrell during a performance review and his personal thoughts regarding what was discussed during the review. There is no indication in the document or the email to which it is attached that the document was made for any purpose other than a business purpose. Although Memphis Zoo points out that, at this point in time, there was a looming possibility of litigation, timing alone does not automatically grant a document the protection of the work-product doctrine. See In re Professionals Direct, 578 F.3d at 438-39 ('The fact that [the party] reasonably anticipated litigation at this point does not answer whether it prepared the disputed documents 'because of' litigation or not.'). Because an ordinary business purpose was the driving force behind creation of this document, see id., Dr. Terrell's motion to compel the disclosure of this document is GRANTED.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TX

Chapter: 38.2
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "Having reviewed these documents, the court notes that, aside from the timing of the documents' creation, there is no indication that these documents were prepared in anticipation of litigation. Instead, the emails are intended to aid decision makers assessing whether to terminate Dr. Terrell's employment — a business purpose. Thus, the court finds that these documents are not protected by the work-product doctrine and are discoverable. Dr. Terrell's motion to compel the disclosure of these documents is GRANTED.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.2
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "[T]hese emails contain information indicating that the anticipation of litigation was the driving force behind their creation. The emails discuss how to approach settlement negotiations, how Memphis Zoo should utilize its attorney's services, and broader litigation tactics. Although Dr. Terrell repeats her argument that these emails are discoverable because they were not prepared by or for an attorney, a document need not be prepared by or for an attorney in order for the work-product doctrine to apply.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.2
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "The emails with Bates Nos. 1306, 1311, 1313, and 1318-20 are described in Memphis Zoo's privilege log as notes of a board meeting that occurred on November 22, 2017, that are protected by the work-product doctrine. . . . This meeting was the telephone conference at which members of the board voted to terminate Dr. Terrell. Dr. Terrell argues that these notes are not protected by the work-product doctrine because the notes were mandatory under Memphis Zoo's bylaws and made in the normal course of business. Memphis Zoo argues that these emails are protected because, but for its reasonable expectation of litigation, the meeting would never have occurred."; "Without the likelihood of litigation, these emails may never have been created, but that fact does not place the emails under the protection of the work-product doctrine. For the doctrine to apply, the anticipation of litigation must have been the driving force behind the preparation of the emails. . . . Here, the emails at issue were primarily created, not in anticipation of litigation, but to record the board's discussion at a meeting dealing with whether to terminate an employee -- a business purpose. Therefore, the court finds that the documents are not protected by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.2
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: 38.2
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: 38.2
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: 38.2
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
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1992-01-01 Federal

Chapter: 38.3
Case Name: Montagano v. Safeco Insurance Co. of America, Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018)
October 17, 2018 (PRIVILEGE POINT)

Court Analyzing the Work Product Doctrine Explains the "Ordinary Course of Business" Concept

Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a more subtle analysis.

In Montagano v. Safeco Insurance Co. of America, the court correctly recognized that defendant "misses the point" by arguing that the work product doctrine applied because "the disputed documents were not created in the ordinary course of business." Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018). As the court explained, "[t]he critical inquiry here is not whether the materials at issue were created in the ordinary course of Defendant's business, it is whether Defendant prepared the materials in anticipation of litigation." Id. The court found that defendant had not.

To be sure, documents created in the "ordinary course of business" generally do not deserve work product protection. But even documents created in extraordinary circumstances do not deserve work product protection -- unless they were motivated by litigation or anticipated litigation. For instance, the Southern District of New York rejected a lender's work product claim for documents it created after the unique September 11 World Trade Center attack – holding that business rather than litigation concerns motivated the documents' creation.

Case Date Jurisdiction State Cite Checked
2018-08-14 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2012-12-12 Federal MA B 8/13

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 Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13
Comment:

key case


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 Jurisdiction State Cite Checked
2012-11-13 Federal KS
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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 38.7
Case Name: Haynes v. Indiana Univ., No. 1:15-cv-01717-LJM-DKL, 2017 U.S. Dist. LEXIS 104991 (S.D. Ind. July 7, 2017)
("Defendants only describe the chain; they do not provide any argument showing how content in the chain satisfies the elements of either privilege. Without a showing, or even assertion, that the e-mail communicants reasonably anticipated litigation when they received Dr. Haynes' open-records request, that they generate the e-mails in order to prepare for that litigation, or that the e-mails would not have been generated but for the anticipated litigation, the Court cannot conclude that the e-mails constitute protectable work product. Therefore, it appears that the e-mails would have been generated regardless of any reasonably anticipated litigation in order to fulfill the University's statutory obligation to response to the open-records request. In addition, the e-mails consist of technical questions about obtaining any notifications that were generated when material was added to Dr. Haynes' eDossier, in order to respond to the open-records request. There are no requests or communications of legal advice."; "The University has an independent statutory obligation to respond to open-records requests, regardless of whether litigation is reasonably anticipated or not. If counsel would have made his request, and these –emails would have ensued, regardless of any anticipated litigation, then they would not qualify as work product.")

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal IN

Chapter: 38.7
Case Name: Haynes v. Indiana Univ., No. 1:15-cv-01717-LJM-DKL, 2017 U.S. Dist. LEXIS 104991 (S.D. Ind. July 7, 2017)
("These e-mails do not qualify for protection under either the attorney-client privilege or the work-product doctrine. The mere fact that an author of a communication is an attorney, that recipients (direct or copied) are attorneys, or that the communication addresses a subject that is or later became the subject of an attorney's legal advice, do not qualify a communication as privileged. These e-mails do not communicate legal advice from an attorney to a client or information from a client to an attorney for the purpose of obtaining legal advice. Their disclosure would not tend to reveal any confidential attorney-client communications. Likewise, the e-mails do not qualify as work product because there is no indication that they were generated in anticipation of litigation (as opposed to, for example, fulfilling the statutory duty to respond to a public records request) or that they were developed in order to prepare for litigation.")

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal IN
Comment:

key case


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 Jurisdiction 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.'")

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

key case


Chapter: 38.7
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "In contrast, WMC was obligated by its contracts with DBNTC to respond to DBNTC's requests that WMC repurchase troubled underlying mortgages. . . . The Poetzel, Nguyencuu and Berkowitz declarations show that a principal service the Jenner & Block firm rendered to WMC was to advise WMC about how to respond to repurchase requests. That is, in practical effect, giving WMC advice about how to conduct the ordinary course of its business.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.7
Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
(rejecting defendant's claims that a billing audit was motivated by litigation and therefore deserved work product protection, and that the auditor was protected by the Kovel doctrine; "Bublitz's explanation leaves no doubt that Pharmasan/NeuroScience hired CodeMap for business reasons, namely, to review its billing system to ensure compliance with federal rules and regulations governing laboratories.")

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

Chapter: 38.7
Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
(rejecting defendant's claims that a billing audit was motivated by litigation and therefore deserved work product protection, and that the auditor was protected by the Kovel doctrine; "[R]espondents point out that AHDN 'used' information gained from the CodeMap audit to provide legal advice to Pharmasan/NeuroScience. However, the tests for attorney-client privilege and work product privilege do not examine how a particular communication later was used. Rather, the focus is on the circumstances of the communication at the time it was made. Here, respondents have failed to show that the driving force behind the 2012 CodeMap audit was to prepare for litigation. Rather, CodeMap conducted the audit at Pharmasan/NeuroScience's request for the business purpose of ensuring they were following the billing practices recommended by the Office of Inspector General and were using the proper CT codes. Merely because AHDN used some of this otherwise unprivileged information to advise its client does not establish that the materials were prepared 'because of' litigation.")

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

Chapter: 38.7
Case Name: In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY
Comment:

key case


Chapter: 38.7
Case Name: Lindon v. Kakavand, Civ. A. No. 5:13-026-DCR, 2014 U.S. Dist. LEXIS 113304 (E.D. Ky. Aug. 15, 2014)
("[T]he plaintiff's reliance on the cited Kentucky Administrative Regulations is overstated. She again fails to identify any regulation that either: (i) sets forth criteria for the preparation of an incident investigation report and not in the form as the Bradley report and attendant investigation; or (ii) affirmatively requires UKMC to prepare such incident reports for cases like MJL's.")

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

Chapter: 38.7
Case Name: Home Equity Mortgage Trust Series 2006-1 v. DLJ Mortgage Capital, Inc., Index No. 156016/2012, Index No. 653787/2012, 2014 N.Y. Misc. LEXIS 3282 (N.Y. Sup. Ct. July 16, 2014)
(holding that an investigation and analysis prepared by the Orrick law firm did not deserve privilege or work product protection, because the analysis was contractually required; "In 2011, DLJ received the first of several letters from plaintiffs requesting that DLJ repurchase loans from the HEMT Trusts. The letter accused DLJ of breaching several representations and warranties with respect to the loans at issue. DLJ retained Orrick, Herrington & Sutcliffe LLP (Orrick) to handle the repurchase demands made by plaintiffs and advise DLJ of any legal liability that may result. Orrick performed a repurchase analysis in relation to plaintiffs' demands in order to advise DLJ whether it should repurchase the loans. After performing the analysis, Orrick advised DLJ that it should not repurchase the loans. DLJ followed Orrick's advice. Shortly after, plaintiffs instituted the above-captioned actions."; "Although DLJ anticipated litigation and retained counsel to perform the repurchase analysis, DLJ was still 'contractually obligated to conduct repurchase reviews' and such analysis 'would have been performed even had there been no threat of litigation.' Immunity does not attach to Orrick's repurchase analysis merely because it anticipated litigation. It attaches only to analyses that were created 'primarily, if not solely, in anticipation of litigation.'"; "[T]he fact that members of defendants' due diligence department, who are not attorneys, were capable of performing repurchase analyses highlights that these analyses are not legal in nature. Such analyses do not become privileged 'merely because an investigation was conducted by an attorney.' Brooklyn Union Gas Co., 23 AD3d at 191. The court holds that any repurchase analysis conducted by Orrick as a result of the repurchase demand made by plaintiffs is not immune from disclosure.")

Case Date Jurisdiction State Cite Checked
2014-07-16 State NY

Chapter: 38.7
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
July 16, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part II"

Last week's Privilege Point described the legal standard and some of the factual bases for the District of Columbia District Court's denial of privilege protection for Kellogg Brown & Root's (KBR) internal corporate investigation. This week’s privilege point tells the good news -- when about three months later, the D.C. Circuit Court of Appeals issued a writ of mandamus reversing the District Court's holding. In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014).

The District of Columbia federal appellate court first rejected the district court's legal standard, holding that the privilege could protect a company's investigation if its need for legal advice was one of the "primary" or "significant" motivating purposes – even if not the only purpose, or the primary purpose. Id. at *13-14. The appeals court also explicitly addressed several factual indicia the district court relied on, holding that (1) KBR's requirement under government regulations to investigate alleged fraud did not preclude KBR's argument that another "significant purpose[]" was seeking legal advice; (2) nonlawyers could conduct privileged employee interviews while "serving as agents of attorneys"; (3) the absence of Upjohn warnings did not prevent privilege protection, because "nothing in Upjohn requires a company to use magic words"; and (4) although the employees' confidentiality agreements did not "expressly" mention KBR's need for legal advice, employees knew the law department was conducting a "sensitive" investigation and were warned not to discuss their interviews without KBR's General Counsel's authorization. Id. at *8-10.

The appeals court's legal standard represents a much more privilege-friendly approach than most courts apply. The standard permits companies to claim privilege protection even for investigations they must undertake pursuant to external requirements -- rather than having to initiate parallel or successive investigations to gain the protection. And the court's analysis of the factual issues provides a much more lenient standard for claiming privilege than most courts would apply. Next week's Privilege Point will discuss what the D.C. Circuit Court of Appeals' decision did not address.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 38.7
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
("[T]he Court finds that Defendants have not met their burden to prove that they commissioned the Lehmann Report primarily in anticipation of litigation. Rather, the Court concludes that the Lehmann Report served primarily general business and regulatory compliance functions. The fact that Defendants used their legal department to serve as an intermediary between Dr. Lehmann and their other employees does not alter this conclusion.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.7
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(holding that a company's Action Plan dealing with alleged failures of its medical device did not deserve work product protection; "The Plan itself contains no legal analysis and makes no mention of ongoing or anticipated litigation. Rather, the Plan is designed to satisfy regulatory requirements and to assist corporate officers in deciding how to respond to potential issues with the Recovery Filter.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.7
Case Name: United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal DC
Comment:

key case


Chapter: 38.7
Case Name: United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal DC
Comment:

key case


Chapter: 38.7
Case Name: In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal
Comment:

key case


Chapter: 38.7
Case Name: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., Nos. 12 Civ. 1579 & 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 41785, at *22, *23-23, *26 (S.D.N.Y. Mar. 25, 2013)
(in an opinion by Magistrate Judge Francis, holding that the work product doctrine did not protect defendant UBS's review of files, because it was contractually required; "[T]he fact that UBS reasonably anticipated litigation and retained Williams & Connolly does not automatically bring these documents within the scope of work product doctrine. . . . If the materials at issue 'would have been prepared in substantially similar form regardless of [] litigation,' they are not afforded the protection." (citation omitted); "Here, UBS was 'contractually obligated to conduct repurchase reviews' under the PSAs [Pooling & Servicing Agreements] governing the Transactions. . . . Thus, UBS would have performed the repurchase analyses even had there been no threat of litigation."; "The fact that these repurchase demands were 'unprecedented' in size and scope does not place these materials outside the ordinary course of business for the purposes of work product protection. What is dispositive is that UBS would have prepared these analyses absent any threat of litigation because they were obligated to do so as part of their ordinary business, pursuant to a contract.")

Case Date Jurisdiction State Cite Checked
2013-03-25 Federal NY B 3/14

Chapter: 38.7
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *40-41, *41 (S.D. Ohio Feb. 19, 2013)
(finding that the work product doctrine did not protect documents created by an association's general manager; "Little Hocking has not persuaded the Court that Mr. Griffin's notes - taken at public meetings -- 'are not general water quality records created for a business purpose' or that 'it is actually inconsistent with Little Hocking's normal business purpose to create documents about a chemical that Little Hocking is not required to monitor[.]' . . . Not only has Little Hocking provided no evidence to support its assertion in this regard, but the record establishes that Little Hocking believes that it was legally required to report, and therefore presumably to monitor, the presence of C8 [common name for Perfluorooctanoic acid, or PFOA] and related compounds. . . . In other words, Mr. Griffin took notes at public meetings primarily for business, rather than legal, purposes. Therefore, Mr. Griffin's notes taken at public meetings "'"would have been created in essentially similar form irrespective of the litigation."'" (citation omitted); "In reaching this conclusion, the Court recognizes that Little Hocking offers declarations asserting that Mr. Griffin created these notes in order to prepare for PFOA-related litigation, which Little Hocking has allegedly anticipated since 2002. . . . However, the allegations in the Amended Complaint controvert, or at the very least, undermine the representations in those declarations.")

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

Chapter: 38.7
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 *16 (E.D. Va. Feb. 14, 2013)
("The Court finds that in this case, the Trustee's argument is too all-encompassing and would result in the loss of work product protection whenever there is a parallel, non-litigation need to conduct an internal investigation. In the case of regulated institutions such as banks, which are always required to conduct investigations into possible money laundering and suspicious activities where such facts arise, this necessarily would mean that banks could never have the protection of the work product doctrine. The Court views the more lenient 'because of' test as being capable of accommodating the need for mandatory internal investigations, while at the same time maintaining work product protection where applicable.")

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

key case


Chapter: 38.7
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *13 14, *15 16 (S.D. Ohio Nov. 13, 2012)
(holding that a 2008 audit conducted by a third party consultant did not deserve work product protection; "Defendants hired URS to conduct an audit of HNCC's facility on August 13 and 15, 2008. Defendants assert the purpose of the audit was to obtain a 'legal' audit of HNCC and to provide outside counsel (Anthony Sullivan of Barnes & Thornburg) with opinions about HNCC's compliance with regulations and laws."; "These events, in themselves, do not indicate that a threat of litigation was the driving force behind the request for the audit when viewed in the context of the July 25, 2008 memorandum by SunCoke's President requesting the audit, the scope of the audit, and the subsequent use of the audit by defendants. The memorandum indicates the purpose of the audit was to assess general compliance with regulatory requirements and company policies, which are primarily business concerns for a regulated entity like HNCC, and not because of a threat of Clean Air Act litigation. The memo does not indicate a concern over a threatened enforcement action by any governmental entity or a concern over litigation. In addition, the 'mid-2008' events cited by defendants in support of their contention occurred after the request for the audit had already been made by SunCoke's President and could not have motivated defendants to seek the URS audit out of a fear of litigation. . . . Additionally, the scope of the audit exceeds that which would be anticipated if the driving force behind the audit was litigation. The audit was described as 'generic' by the Director of Corporate HES and covered all aspects of the facility bolstering the conclusion that the purpose of the audit was to assess regulatory compliance in the ordinary course of business, and not because of the threat of litigation." (footnote omitted))

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

key case


Chapter: 38.7
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *16 n.6 (S.D. Ohio Nov. 13, 2012)
(holding that a 2008 audit conducted by a third party consultant did not deserve work product protection; "[T]he memo requesting the audit in the instant case expresses concern that HNCC operate in compliance with applicable law and Company policy and was not commissioned in response to any particular inquiries from a governmental agency or citizen complaint nor in response to any concern of litigation.")

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

Chapter: 38.7
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 Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13
Comment:

key case


Chapter: 38.7
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *79 (S.D. Fla. Oct. 18, 2012)
("[W]hile the Plaintiffs are correct that advice from counsel related to the business determinations for purposes of ensuring regulatory compliance likely would not be protected by either the attorney-client or work product doctrine, when that advice is dispensed, not in the regular course of business, but in response and/or in contemplation of litigation, the protection may apply. Such a conclusion is wholly consistent with the holdings in Seroquel [In re Seroquel Prods. Liab. Litig., Case No. 06-md-1769-Orl-22DAB, 2008 U.S. Dist. LEXIS 39467 (M.D. Fla. May 7, 2008)] and Vioxx." [In re Vioxx, 501 F. Supp. 2d 789 (E.D. La. 2007)])

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

Chapter: 38.7
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: 38.7
Case Name: Collins v. Mullins, 170 F.R.D. 132, 135 (W.D. Va. 1996)
("evidence gathered in the course of an internal police investigation resulting from alleged use of misconduct [is] discoverable" because police departments have "an affirmative duty, in the normal course of serving their public function, to investigate alleged misconduct"; ordering witness statements relating to allegations of police conduct to be produced)

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

Chapter: 38.7
Case Name: National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)
("The 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. . . . [M]aterials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of Rule 26(b)(3).")

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

key case


Chapter: 38.7
Case Name: Upjohn v. United States, 449 U.S. 383, 394 (1981)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
1981-01-01 Federal
Comment:

key case


Chapter: 38.8
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *12-13, *14-15 (D. Ore. Feb. 4, 2013)
("Courts consistently hold that evidence gathered in the course of an internal police investigation is discoverable and not protected by the work-product qualified immunity. . . . This is because police departments are under an 'affirmative duty, in the normal course of serving their public function' to investigate allegations of police misconduct and thus such investigations are generally not prepared primarily in anticipation of litigation and the policies that underlie the work product doctrine are inapplicable."; "Stoelk was hired by the City Attorney in response to the tort claims notice submitted by Plaintiff, and Stoelk's investigation was not a 'routine' internal police investigation. Stoelk is an outside investigator hired by the City Attorney to ascertain the veracity of Plaintiff's claims and to determine whether there were additional instances of alleged coercion to change police reports or other, similar, misconduct. . . . In fact, until litigation was threatened and the City Attorney got involved, it does not appear that there was much of an investigation into Plaintiff's allegations at all. Accordingly, because the Stoelk investigation would not have happened 'but for' the threat of litigation, the original Stoelk investigation and the First Stoelk Report are subject to the qualified immunity of the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR B 2/14

Chapter: 38.10
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
(analyzing a hospital's investigation after an allegedly botched surgery; "Despite Ms. Vanhook's [Hospital Risk Manager] conclusions in her affidavit that this email from Ms. Roskind [Hospital's Bariatric Program Director] to her was an investigative communication . . . Ms. Roskind, the author of the email, provided no affidavit suggesting that she created this email in anticipation of litigation. In fact, Ms. Vanhook's response, indicating she would let the 'administrative team' know about the conversation Ms. Roskind memorialized -- as opposed to in-house counsel or outside counsel --suggests that at the time of the creation of the emails, neither party crafted their emails 'in anticipation of litigation.' For these reasons, the Hospital's objections are overruled, and the Court affirms the Magistrate Judge's Order . . . concluding that these emails are not protected from discovery.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 38.10
Case Name: FTC v. Innovative Designs, Inc., Civ. A. No. 16-1669, 2017 U.S. Dist. LEXIS 162222 (W.D. Pa. Sept. 28, 2017)
("While the Manni Emails make no explicit mention of preparation for litigation, and do not include any explicit legal analysis or guidance, as already noted, the March 7, 2016, emails clearly make reference to Attorney Rosenfeld's concern with the need to 'rule things out,' and a possibility that 'conversion materials' were being applied 'incorrectly.' In light of the backdrop of this case -- that Defendant allegedly failed to properly represent the R-value of Insultex -- it would appear that the emails initiated by Defendant's attorneys on March 7, 2016 during an FTC investigation pertaining to and discussing the adequacy of product testing constitute attorney work-product created in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-09-28 Federal PA

Chapter: 38.10
Case Name: Boltz v. United Process Controls, Civ. A. No. 1:16-cv-703, 2017 U.S. Dist. LEXIS 102913 (S.D. Ohio June 23, 2017)
(in connection with employees claim that he was wrongfully terminated, finding that the communications did not deserve work product protection; "However, a review of the documents submitted in camera to the Court does not convince the undersigned that a threat of litigation was the driving force behind communication between Morawski [President of the employers sister company] and Oleszkiewicz [Employer's President]. . . . whether a party reasonably anticipated litigation at a particular point in time does not answer the question of whether a disputed document was prepared 'because of' litigation or not. . . . If the document was created as part of the ordinary business of a party and the ordinary business purpose was the 'driving force' or impetus for creation of the document, then it is not protected by the work product doctrine."; "[T]he emails from UPC's President and Plaintiff Eric Boltz's former boss, Chris Morawski, a shareholder of UPC and an executive with an affiliated company of Defendants is better characterized as a discussion between two executives about the how to handle the further employment and/or termination of Mr. Boltz based on the relevant facts. There is no indication that impending litigation was the 'driving force' of this communication.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal OH

Chapter: 38.10
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: 38.10
Case Name: Goff v. United Rentals, Case No. 2:16-cv-608, 2017 U.S. Dist. LEXIS 46588 (E.D. Va. March 28, 2017)
(after an in camera review, concluding that documents held as work product were created in the ordinary course of business after a workplace injury; "The emails, which concern and discuss events at or near the time of the accident at issue, are relevant to both Plaintiff's claims and United Rentals' defense, and United Rentals does not claim otherwise. Moreover, production of these emails is not burdensome and no contention has been made that the request for them is not proportional to the needs of the case. United Rentals does not rest its claim of work product on the 'opinion work product' prong of the immunity. Instead, it claims the emails are protected from disclosure because they were exchanged between themselves and their third party insurance administrator in anticipation of litigation. . . . District courts within the Fourth Circuit have stated that work done as part of the 'insurer's ordinary course of business' is not protected work product. . . . ('Unlike files generated while investigating whether to deny a first-party claim, which are generally not considered to have been prepared in anticipation of litigation, insurance claim files generated in relation to investigating and defending against third-party claims are generally considered work-product because they were clearly prepared for the purposes of the underlying litigation, rather than in the insurer's ordinary course of business.'"); see also, Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 332 (N.D.W.Va. 2006); Ring v. Commercial Union Ins. Co., 159 F.R.D. 653, 660 (M.D.N.C. 1995) ('[T]he general rule is that a reasonable possibility of litigation only arises after an insurance company has made a decision with respect to the claim of its insured. Therefore, and in general, only documents accumulated after the claim denial will be done in anticipation of litigation')."; "Upon in camera review of the emails, the undersigned FINDS that the materials do not constitute protected work product prepared in anticipation of litigation. The emails between United Rentals and Liberty Mutual were sent in the ordinary course of business immediately following an industrial accident, and were ordinary communications between an insured and an insurer concerning the circumstances of the accident. Indeed, '[f]ollowing any industrial accident, it can be expected that designated personnel will conduct an investigation, not only out of concern for future litigation, but also to prevent reocurrences, to improve safety and efficiency in the facility, and to respond to regulatory obligations.' Nat'l Union Fire Ins. Co., 967 F.2d at 984."; "'Although Liberty Mutual apparently is United Rentals' third party insurance administrator and not its direct insurer, this distinction makes no practical difference to the legal analysis of the work product immunity doctrine.'")

Case Date Jurisdiction State Cite Checked
2017-03-28 Federal VA

Chapter: 38.10
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: 38.10
Case Name: Thomas v. Kellogg Company, Case No. C13-5136-RBL, 2016 U.S. Dist. LEXIS 66881 (W.D. Wash. May 20, 2016)
("Nor is the Report work product. The only evidence that it was prepared 'because of' the litigation is that it was commissioned after the litigation commenced. But it does not reference the litigation at all. Willard Bishop's own articulation of what it does for its clients generally, and what it did for Kellogg here, deal with business efficiency, not legal issues. Its Report focuses on efficiency and productivity issues, exclusively.")

Case Date Jurisdiction State Cite Checked
2016-05-20 Federal WA

Chapter: 38.10
Case Name: Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kansas Feb. 24, 2016)
(finding that defendant prepared a post-accident report about a slip and fall in the ordinary course of his business, so that the report did not deserve work product; allowing the redaction of one sentence; "Defendant argues counsel became involved only two hours after Plaintiff's fall and the Summary was not created until the following day. It claims the document was created under the direction of counsel, constitutes attorney work product, and must be protected from disclosure."; "Defendant has not satisfied its burden to demonstrate the work product protection applies to bar production of the entire Summary. Plaintiff cites the deposition testimony of Ms. Klaverweiden, the hospital employee who created the incident report, which demonstrates she prepared the report immediately after taking Plaintiff to the emergency room, before talking with a risk manager or attorney. Because 'materials prepared in the ordinary course of business or for nonlitigation purposes are not protected by work product doctrine,' and the evidence provided to the Court reveals Ms. Klaverweiden prepared her portion of the report in the usual course of business, the incident report itself does not constitute work product and the Summary is not entirely protected from disclosure by the work product privilege."; "At hearing, Defendant offered, and the Court accepted, the entire Summary for in camera review. In its review, the Court noted one instance on page 9 of the report which includes advice from Karen Vogt, Defendant's in-house counsel, and therefore constitutes attorney-client/work product information. That portion of the Summary is ordered redacted.")

Case Date Jurisdiction State Cite Checked
2016-02-24 Federal KS
Comment:

key case


Chapter: 38.10
Case Name: Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kan. Feb. 24, 2016)
April 13, 2016 (PRIVILEGE POINT)

"How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part I)"

Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a post-accident investigation was motivated by anticipated litigation rather than conducted in the ordinary course of their business?

In Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kan. Feb. 24, 2016), the court denied work product protection for defendant's incident report following a slip and fall accident. The court cited the incident report's author, who admitted preparing the report "before talking with a risk manager or attorney" – thus demonstrating that she "prepared her portion of the report in the usual course of business." Id. At *7. The court also reviewed the incident report in camera before denying defendant's work product assertion.

Courts assessing post-accident investigations usually examine their context (described in testimony or affidavits) – and sometimes read the withheld documents in camera. The next Privilege Point focuses on a medical device company's successful work product assertion for a post-accident investigation.

Case Date Jurisdiction State Cite Checked
2016-02-24 Federal KS
Comment:

key case


Chapter: 38.10
Case Name: In re Bard IVC Filters Products Liability Litigation, MDL No. 2641, 2016 U.S. Dist. LEXIS 17583 (D. Ariz. Feb. 11, 2016)
April 20, 2016 (PRIVILEGE PONT)

"How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part II)"

Last week's Privilege Point discussed a court's rejection of a work product claim for a routine post-accident incident report. That defendant did not establish that the report was different from reports following accidents not likely to result in litigation.

In In re Bard IVC Filters Products Liability Litigation, MDL No. 2641, 2016 U.S. Dist. LEXIS 17583 (D. Ariz. Feb. 11, 2016), a medical device company's lawyer hired a former employee as a consultant to investigate several patient deaths allegedly associated with the company's device. Plaintiffs argued "that the Report was prepared in the ordinary course of business" — but the court disagreed. Id. At *79. It pointed to the defendant's in-house lawyer's and the consultant's testimony "that the Report was an unusual undertaking," was "a more extensive, detailed analysis than [the company] normally created," and "was substantially different" from other reports. Id. At *80, *86. Although acknowledging that "there are some similarities" between the Report and the defendant's ordinary product investigations (called "health hazard evaluations"), the court cited the consultant's testimony about numerous specific differences between the Report and those ordinary evaluations. Id. At *90, *72. Significantly, the court also reviewed in camera both ordinary evaluations and the withheld Report — concluding that the court's "close review of the [health hazard evaluations] and the Report confirms these distinctions." Id. At *87.

Companies motivated by anticipated litigation to conduct post-accident investigations normally must establish such investigations' differences from other ordinary and routine incident reports — remembering that courts may well read both types of documents in camera.

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

key case


Chapter: 38.10
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.'")

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

key case


Chapter: 38.10
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 argue that the Report was prepared in the ordinary course of business because 'Dr. Lehmann's work was well underway long before he was given a contract with the Law Department.'. . . Dr. Lehmann also testified that the work he performed as acting medical director was substantially different from the work done to produce the Report."; "Dr. Lehmann's testimony directly addressed the differences between these HHEs [Health Hazard Evaluation] and the Report. Dr. Lehmann testified that: HHEs were prepared pursuant to Bard's regulatory obligations, while the Report was not; the purpose of HHEs was to 'guide potential market actions or corrections,' while the purpose of the Report was to provide guidance on Bard's risk and overall exposure from adverse events associated with the Recovery Filter; HHEs considered a product's risks and benefits, while the Report considered only the Recovery Filter's risks; HHEs each focused on a single adverse event involving migration, while the Report dealt with all adverse events associated with the Recovery Filter; and the Report involved detailed statistical analysis personally performed by Dr. Lehmann, while HHEs did not. . . . The Court's close review of the HHEs and the Report confirms these distinctions."; "True, there are some similarities between the HHEs and the Report, but the documents clearly serve different purposes and their substantial differences corroborate Dr. Lehmann's testimony that the Report was a different undertaking than the work he did as acting medical director."; "In summary, the Court finds that the clear threat of litigation in 2004, Dr. Lehmann's retention by the Law Department in November of that year, the contract he signed with Bard's general counsel, the scope of work be performed under the contract, and the clear labeling of the Report as work product all support a finding that the Report was prepared because of anticipated litigation. Dr. Lehmann testified that his work in late 2003 and early 2004 as acting medical director was different than the work he did under the contract, and the documents cited by Plaintiffs do not undercut that testimony. To be sure, there are some general similarities between the HHEs and the Report, and the Report was used for some business purposes, but these facts do not contradict the clear evidence that the Report 'would not have been created in substantially similar form but for the prospect of litigation.'")

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

key case


Chapter: 38.10
Case Name: Gillespie v. Charter Communications, Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185 (E.D. Mo. Sept. 24, 2015)
(finding that an investigation into alleged racial discrimination did not deserve privilege or work product protection; "In this case, it is undisputed that the incident report contains no opinions or mental impressions of Charter's attorneys. And as discussed above, it appears to the Court, based on the record before it, that the documents in question were not prepared in anticipation of litigation, but were rather generated in the ordinary course of Charter's business. Indeed, Charter makes clear that the EthicsPoint reporting system, and the process of investigating claims made within this system, were part of an ongoing compliance program instituted by Charter. Though it is always possible that internal corporate complaints may result in litigation, such speculative possibilities are insufficient to establish that the documents were prepared in anticipation of litigation.").

Case Date Jurisdiction State Cite Checked
2015-09-24 Federal MO

Chapter: 38.10
Case Name: Moore v. Plains All American GP, LLC, Civ. A. No. 14-4666, 2015 U.S. Dist. LEXIS 124794 (E.D. Pa. Sept. 18, 2015)
(holding that an EEOC charge did not necessarily trigger a reasonable anticipation of litigation; "My in camera review of the disputed emails does not fully convince me that they were created with the primary aim of aiding future litigation, as opposed to being created in the ordinary course of business. While Defendant was aware of Plaintiff's EEOC charge at the time the emails were written, the emails largely discuss Plaintiff's request for an accommodation for his religious beliefs. This email exchange would have occurred regardless of whether Plaintiff had filed his complaint, and is part of an employer's duty in the regular course of business. . . . Indeed, the contents of these emails do not differ substantially from emails already produced to Plaintiff. While the emails do reference having a discussion with counsel at some point in the future, both Graham and Smith indicated during deposition that they never spoke to counsel about Plaintiff's request for accommodation.").

Case Date Jurisdiction State Cite Checked
2015-09-18 Federal PA
Comment:

key case


Chapter: 38.10
Case Name: Pemberton v. Republic Sers., Inc., 308 F.R.D. 195, 202 (E.D. Mo. 2015)
(holding a public relations consultant was not inside privilege protection, but was inside work product protection; "The Court finds, however, that the disputed documents and videos are protected by the work product doctrine. All the materials were created by a party and its attorney or an agent of the attorney, and would not have been prepared in substantially similar form but for the prospect of litigation. The Court's review of the documents shows that counsel, their clients, and Pelopidas ["non-party public relations company hired by Defendants' attorney"] worked closely together in discussing the information to be provided to the public, all with a view to the impact on future litigation. All of the materials in question were created in an effort to foster a public environment that was less likely to lead to further litigation involving the Landfill. As stated in Mr. Beck's amended declaration, defense counsel retained Pelopidas as a consultant 'to provide public relations advice related to the litigation already occurring and the litigation we believed was coming.'. . . As further stated by Ms. Merrigan, all the materials created by Pelopidas were 'created at the direction of counsel, in anticipation of litigation.'. . . Upon review of the materials, the Court is persuaded that this was indeed the case. The prospect of litigation was very real, as demonstrated by the quick proliferation of lawsuits against Defendants, beginning in 2013 and continuing to the present. Trying to address the media climate in which defense counsel was operating while attempting to provide information to the public was a legitimate activity, and within the scope of proper litigation strategy. Other courts have extended work product protection to public relations work in similar situations.")

Case Date Jurisdiction State Cite Checked
2015-06-23 Federal MO B 8/16
Comment:

key case


Chapter: 38.10
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
("Upon in camera review, the Court finds that both the email exchange and the computer entry were made because of the prospect of litigation against plaintiff. The affidavit in question was prepared solely to accompany the complaint in a lawsuit against plaintiff. The affidavit, and any documents discussing it, would not have been created at all if the suit was not forthcoming. As such, these documents concerning the affidavit would not have been prepared in substantially similar form and had litigation not been imminent.")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 38.10
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: 38.10
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "[T]he record reveals that any litigation purpose is eclipsed by the 'true independent purpose' of fostering the safety of Defendant's operations. The SMS Manual explains that the EIS system 'is an essential program that helps create a safe operating environment for [Defendant] by fostering a process to understand what happened in an incident, why it happened and how to prevent it from occurring again.'. . . It also provides that '[t]he most valuable aspect of doing the investigations is the corrective actions and lessons learned that can be gleaned from the incident.'. . . While the SMS Manual does note that an EIS Report should be sent to Defendant's claims department and Defendant's insurer, this is for 'record keeping and documentation purposes,' and there is no mention of litigation purposes. . . . The Court finds that the dual purposes of operational safety and anticipation of litigation are not so 'profoundly interconnected' that it can be said the documents were created 'because of' the litigation.")

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

Chapter: 38.10
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(holding that a company's Action Plan dealing with alleged failures of its medical device did not deserve work product protection; "The Plan itself contains no legal analysis and makes no mention of ongoing or anticipated litigation. Rather, the Plan is designed to satisfy regulatory requirements and to assist corporate officers in deciding how to respond to potential issues with the Recovery Filter.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.10
Case Name: McNamme v. Clemens, No. 09 CV 1647 (SJ), 2013 U.S. Dist. LEXIS 179763, at *25-26 (E.D.N.Y. Sept. 18, 2013)
(finding that the privilege did not protect communications between Roger Clemens and his lawyer Rusty Hardin and public relations consultant (Householder) retained by Hardin or sports agent Hendricks, who Clemens retained; in addition to finding Clemens' failure to timely submit a privilege log resulted in his waiver of privilege; concluding that neither the public relations consultant nor the sports agent were necessary for Hardin's representation of Clemens; finding the work product doctrine inapplicable; "Defendant has failed to show that the work-product doctrine protects the documents at issue here. Based on the Court's in camera review of the records, the topic of litigation strategy is rarely mentioned and in the rare instances when it is brought up, it is often contained within communications predominately focused on public relations and media strategy. Although the communications sought may have ultimately 'played an important role' in Rusty Hardin's litigation strategy, 'as a general matter public relations advice, even if it bears on anticipated litigation, falls outside the ambit of protection of the so-called 'work product' doctrine. . . . That is because the purpose of the rule is to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.'. . . The Court's review of the withheld documents reveal that they deal almost exclusively with the latter.")

Case Date Jurisdiction State Cite Checked
2013-09-18 Federal NY B 2/14

Chapter: 38.10
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: 38.10
Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 725 (E.D. Pa. 2013)
("[O]f the 220 documents withheld as 'work product,' the only entries specifically referencing litigation are ## 107 - 109 (8/25/2010) and # 319 (July 29, 2010)."; finding that the documents did not deserve work product protection)

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

Chapter: 38.10
Case Name: Graff v. Haverhill North Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013 (S.D. Ohio Nov. 13, 2012)
January 23, 2013 (PRIVILEGE POINT)

"Where Do Courts Look When Determining Whether a Litigant has Proven Attorney Client Privilege or Work Product Protection?: Part III"

The last two Privilege Points noted that some courts assess a privilege or work product claim by relying on extrinsic evidence such as affidavits, while other courts look primarily or exclusively at the withheld documents themselves. Most courts examine both the documents and extrinsic evidence.

In Graff v. Haverhill North Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013 (S.D. Ohio Nov. 13, 2012), a litigant claimed work product and privilege protection for documents created during a consultant's audit. In rejecting the work product claim for one audit, the court pointed to the documents themselves. Among other things, the company president's memorandum requesting the audit indicated that "the purpose of the audit was to assess general compliance with regulatory requirements and company policies." Id. At *15. Another company executive described the audit as "generic." Id. At *16. Thus, the documents themselves undercut the work product claim. In contrast, the court found that many of the documents deserved attorney-client privilege protection. Among other things, the court noted that the same executive who described the audit as "generic" had submitted an affidavit which "confirms that the audit was prepared to assist counsel with providing legal advice" to the company. Id. At *28.

Lawyers should always teach their clients to articulate the basis for a protection claim on the face of protected documents. Companies involved in litigation should also determine what a pertinent court will examine in assessing the company's withholding of protected documents. Most courts expect an affidavit or other extrinsic evidence.

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH
Comment:

key case


Chapter: 38.10
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("While document one is addressed to Cintas' [seller of real estate] counsel and labeled 'CONFIDENTIAL WORK PRODUCT', it appears to have been prepared by one of Cintas' administrators, there is absolutely nothing to indicate that it was prepared at the request of Cintas' counsel, and in addition to the attorney it is also addressed to two employees of Environ [Cintas' "environmental remediation contractor"]. The subject does not appear to be litigation, and Cintas has not addressed why they would be sharing litigation or trial preparation materials with another company. Document two is addressed to two of Cintas' attorneys, but it is also addressed to an Environ employee, and although it suggests litigation there is nothing to indicate that it was prepared in anticipation of litigation. Rather the subject appears to be the ongoing environmental remediation work, and when that work might be complete.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA

Chapter: 38.11
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not follow the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "Rowen's affidavit states that he was serving as counsel for Celanese Corporation, not relator Celanese Ltd., and that he requested that an investigative team provide the Celanese Law Department with the information needed to assess liability in potential litigation. Because the investigation was requested by counsel employed by Celanese Corporation, the investigation was for the benefit of not just relator Celanese Ltd., but also for Celanese Corporation which could anticipate litigation and who Plaintiffs have, in fact, sued in this court proceeding.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX
Comment:

key case


Chapter: 38.11
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not following the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "According to Rowen [Celanese's corporation's in-house lawyer], the primary purpose for the investigation and creation of documents and communications therefrom was to aid Celanese in preparing to defend itself in anticipated litigation. As a secondary concern, the information communicated from the investigative team to the legal department was necessary for the legal department to provide Celanese with business and legal advice with respect to the potential termination of employees involved in the accident. The team members were immediately informed that the investigation was for the purpose of assisting counsel and that all communications and documents generated during their investigation must be kept confidential and marked as 'Privileged and Confidential' or 'Attorney-Client Privilege -- Attorney Work Product.' The investigative team conducted interviews and site inspections and communicated their findings to the Celanese Law Department. They prepared a root cause analysis which was necessary for the Celanese Law Department to evaluate liability and begin developing a strategy for defending itself in likely civil and regulatory litigation. Rowen states, 'All of the communications withheld by Celanese were communications between Celanese in-house and outside counsel and their representatives made for the purposes of providing and communicating legal advice or otherwise facilitating or providing professional legal services.'"; "Plaintiffs cite no Texas authority for their position that the communication must have been made for the primary purpose of soliciting legal, rather than business advice. And the federal decisions supporting Plaintiffs' position are not binding on our court. More important, the language of Rule 503(b) does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX
Comment:

key case


Chapter: 38.11
Case Name: Bloomingburg Jewish Education Center v. Village of Bloomingburg, 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192 (S.D.N.Y. March 18, 2016)
(finding that defendant Town had not presented sufficient evidence to support privilege or work product protection for a communications between the Town and West End, described as "a public relations and communications strategy firm"; "The Town Defendants support their broad assertions of privilege solely with the following representations. In their opposition letter, the Town Defendants represent that West End was hired at the behest of counsel in the Lamm action to assist in litigation strategy after counsel 'determined a public relations firm would be useful in preparing for the litigation.' As an exhibit to their letter, the Town Defendants also provided the Court with an attorney declaration dated October 6, 2015 from David C. Holland, Esq., who served as their counsel in the Lamm action. . . . This declaration, which is just over two pages, is the Town Defendants' only factual support for their invocation of privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-18 Federal NY

Chapter: 38.11
Case Name: Brown v. NCL (Bahamas), Ltd., Case No. 15-21732-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 165346 (S.D. Fla. Dec. 9, 2015)
(analyzing work product issues in connection with a post-accident investigation of an assault on a cruise ship; presenting the factual scenario and finding work product protection for the alleged assailant's statement; "In response to a discovery request, NCL identified on a privilege log a statement from the alleged attacker. To support its privilege claim (and in response to a Court order . . . Requiring a sworn explanation of the circumstances surrounding the statement's preparation), NCL submitted an affidavit . . . From Jeffrey N. Anderson, its Vice President and Assistant General Counsel, Claims. In that affidavit, Mr. Anderson explained that NCL's counsel has provided standing advice requiring on-board staff to prepare an accident/incident report whenever a passenger reports an injury. Counsel's advice is that NCL conduct an investigation, which includes the taking of witness statements. The completed incident reports, including any witness statements taken at or near the time of the accident or incident, are confidential and are made available only to counsel and/or NCL's claims department."; "Plaintiff challenges the work-product status of the statement, not the arguable waiver created from the disclosure. Her reply memorandum . . . Argues that NCL took the statement in the ordinary course of business because its policies require ship security officers to investigate and prepare a report following the discovery of a potential criminal event onboard a vessel or at sea -- and to take relevant statements."; "The Undersigned appreciates Plaintiff's point, but Anderson's affidavit is persuasive and convinces me that the statement is in fact entitled to work-product protection.").

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal FL

Chapter: 38.11
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *17 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "[T]he fact that there are legal implications to a decision is not enough to give rise to attorney-client privilege where no legal advice is sought or provided, and not enough to give rise to work-product protection where there is no evidence the document was prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 38.11
Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *12-13 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "MDM has met its burden in this case based on Mr. Resnick's [Great Am. Ins. Co. claims specialist] affidavit. Mr. Resnick stated that it was not the insurer's policy to obtain witness statements for every claim, but he decided to obtain the witness statements in order to assist the attorneys that he would eventually retain. . . . He based his decision on his review of the case, conversations with MDM, the fact that Ms. Cera had already retained counsel, his opinion as to MDM's liability, and his opinion that because this was a maritime claim, the vessel's owner was likely to proactively file an action for exoneration. . . . Importantly, he stated that he decided to obtain the two statements 'purely in anticipation of likely litigation.'. . . (emphasis added). As in Hamilton [v. Great Lakes Dredge & Dock Co., No. 05 Civ. 3862 (DGT), 2006 U.S. Dist. LEXIS 50760 (E.D.N.Y. July 25, 2006)], Claimant offers no evidence to dispute Mr. Resnick's sworn testimony, and the Court has no reason to doubt his credibility. Thus, MDM has met its burden of establishing that the witness statements are privileged work-product.")

Case Date Jurisdiction State Cite Checked
2013-12-18 Federal NY B 5/14

Chapter: 38.11
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: 38.11
Case Name: Sher v. Barclays Capital, Inc., Civ. No. ELH-11-1982, 2013 U.S. Dist. LEXIS 89482, at *9 (D. Md. June 26, 2013)
(recognizing the "because of" standard for work product protection; "The spreadsheet has a header containing the phrase 'At the Request of Counsel.'. . . When Petrush [debtor's employee] emailed the completed document to TMST's [debtor] CFO, his email was titled 'At the Request of Counsel,' and the CFO, within ten minutes of receiving this email, forwarded it to the TMST's retained Outside Counsel.")

Case Date Jurisdiction State Cite Checked
2013-06-26 Federal MD B 4/14

Chapter: 38.11
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: 38.11
Case Name: Gruss v. Zwirn, 296 F.R.D. 224, 231 (S.D.N.Y. 2013)
(analyzing the ability of Gibson Dunn to withhold its opinion work product prepared during an internal corporate investigation; explaining that Gibson Dunn had undertaken a corporate investigation that essentially blamed a CFO for a company's problems, after which the CFO sued the company for defamation; ordering Gibson Dunn to turn its opinion work product over to its client, the company; "Contrary to Gibson Dunn's argument, this Court is not required to accept the declaration of one of its partners that the notes in question constitute -- in their entirety -- opinion work product."; "While courts in this District have, on occasion, accepted counsel's representations regarding the contents of allegedly privileged materials, they have typically done so where the representations were unchallenged."; "[A]ttorney representations regarding the content of allegedly privileged materials do not preclude a court from conducting an in camera review of such materials. Courts have discretion to determine whether in camera review is appropriate, based in part on the specificity of counsel's representations. . . . Here, Gibson Dunn's representation that every word in the interview memos constitutes 'core opinion work product' is not credible. . . . Under such circumstances, in camera review is appropriate.")

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

Chapter: 38.11
Case Name: Tudor Ins. Co. v. Stay Secure Constr. Corp., 390 F.R.D. 37, 40-41 (S.D.N.Y. 2013)
(in a first party insurance case, finding that the litigant had not supplied an affidavit supporting the "because of" work product standard; "By seeking to protect certain portions of Hannon's [investigator hired by insurance company's lawyer] investigation, Tudor is apparently arguing that these particular portions were prepared in 'anticipation of litigation' while at the same time conceding that the remaining parts of the investigatory reports were not. . . . But Tudor has provided no competent evidence to support its implicit factual argument that the Hannon reports would not have been prepared 'in essentially similar form,'. . . had the personal injury actions not already been filed. Indeed, Tudor submits not a single affidavit from anyone at Hannon, the Congdon, Flaherty firm [plaintiff's lawyer], or Tudor on this question. Because Tudor bears the burden of proof on this issue, . . . its effort to protect the redacted portions necessarily fails simply based on this lack of proof.")

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

Chapter: 38.12
Case Name: Toranto v. Jaffurs, Case No. 16cv1709-JAH (NLS), 2018 U.S. Dist. LEXIS 123885 (S.D. Cal. July 24, 2018)
("[T]he retention of the third party reviewer was for the primary purpose of evaluating the soundness of Dr. Toranto's treatment history and Rady has put forth no evidence that the review and/or report would have been conducted or written any differently if not for the litigation.")

Case Date Jurisdiction State Cite Checked
2018-07-24 Federal CA

Chapter: 38.12
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "The emails with Bates Nos. 1306, 1311, 1313, and 1318-20 are described in Memphis Zoo's privilege log as notes of a board meeting that occurred on November 22, 2017, that are protected by the work-product doctrine. . . . This meeting was the telephone conference at which members of the board voted to terminate Dr. Terrell. Dr. Terrell argues that these notes are not protected by the work-product doctrine because the notes were mandatory under Memphis Zoo's bylaws and made in the normal course of business. Memphis Zoo argues that these emails are protected because, but for its reasonable expectation of litigation, the meeting would never have occurred."; "Without the likelihood of litigation, these emails may never have been created, but that fact does not place the emails under the protection of the work-product doctrine. For the doctrine to apply, the anticipation of litigation must have been the driving force behind the preparation of the emails. . . . Here, the emails at issue were primarily created, not in anticipation of litigation, but to record the board's discussion at a meeting dealing with whether to terminate an employee -- a business purpose. Therefore, the court finds that the documents are not protected by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.12
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "[T]hese emails contain information indicating that the anticipation of litigation was the driving force behind their creation. The emails discuss how to approach settlement negotiations, how Memphis Zoo should utilize its attorney's services, and broader litigation tactics. Although Dr. Terrell repeats her argument that these emails are discoverable because they were not prepared by or for an attorney, a document need not be prepared by or for an attorney in order for the work-product doctrine to apply.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.12
Case Name: Goosby v. BB&T, Case No. 17-23419-CIV-ALTONAGA/GOODMAN, 2018 U.S. Dist. LEXIS 64367 (S.D. Fla. April 17, 2018)
(analyzing work product protection for a bank's Suspicious Incident Report; finding the bank's SIR deserved work product protection because it differed from an ordinary SIR; "In the classic novella Animal Farm, written by George Orwell (1903-1950) and first published in 1945, the pigs who control the Manor Farm famously amended 'The Seven Commandments of Animalism' and changed the commandment that 'all animals are equal' to proclaim that 'all animals are equal but some animals are more equal than others.'"; "In the litigation context, and especially when evaluating a work product claim, it is sometimes important to consider an Animal Farm-like maxim: there are reports, and then there are reports. In other words, all reports may not always be equal."; "[T]he Undersigned sustains the Bank's work product claim (and confirms my earlier ruling). In short, the SIR at issue is, similar to some of the fictional Animal Farm animals, not equal to other Bank-prepared SIRs. Though required (like all other SIRs), this particular SIR is significantly more focused on litigation-related issues than the other samples."; "The Bank takes the position that the SIR is entitled to work product protection regardless of whether the primary purpose or dual-purpose test is used. It says protection is appropriate 'because the manner in which it was completed was informed by the threat of litigation, and the authors included more details than usual for litigation purposes.'"; "Given this dynamic, the Undersigned required the Bank to submit ten representative SIRs, to gauge whether the SIR here is unusually detailed and substantially more litigation-focused than a more-routine SIR. The Bank submitted the other SIRS, along with a declaration from Daniel Mendez, confirming that they are fair and representative samples."; "These ten reports are significantly different than the SIR prepared on the Goosby incident. They are considerably shorter. In some cases, they are only a few sentences. For the most part, they are comparatively conclusory. They do not provide substantial detail."; "These garden-variety SIR reports are significantly and substantively different than the SIR at issue here."; "Under the primary purpose test, a document is deserving of work product protection 'as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.'"; "Under the dual purpose test, dual-purpose documents are protected from disclosure 'if, 'taking into account the facts surrounding their creation, their litigation purpose so permeates any non-litigation purpose that the two purposes cannot be discretely separated from the factual nexus as a whole.'"; "In addition to using the primary purpose and dual-purpose tests, other courts have sometimes used other tests, such as the 'because of' test. Under that test, material used for business purposes does not lose work product protection if it 'was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation.'"; "The Undersigned will begin by asking a question similar (but not an identical one) to the one the court asked in Adams [Adams v. City of Montgomery, 282 F.R.D. 627, 634 (M.D. Ala. 2012)]: 'What, if anything, then separates the Adams investigation from the routine investigation?'. . . In Adams, the court was grappling with reports prepared with a dual purpose: pursuant to the city's policy of investigation (i.e., in the ordinary course of business) and 'specifically, with an eye to this anticipated litigation.'. . . Thus, the question here is: how is the Goosby SIR different from the garden-variety SIRs, and is that difference legally meaningful when analyzing the Bank's work product claim?"; "The Goosby SIR is different than the other SIRs. In fact, it is unquestionably different. Even a non-lawyer comparing the Goosby SIR with the ten sample SIRs would quickly realize that the one SIR is unlike all of the others. It discusses the threat of litigation. It contains detailed summaries of what the bankers said to Goosby and what he said to them. It discusses comments from a police officer. It was drafted through the filter of likely litigation."; "Phrased differently, the SIR, though on a standard form, would not have been prepared in the way it was prepared but for the anticipation of litigation. Thus, a substantial motivating purpose for this specific SIR was to prepare for litigation -- which was not merely anticipated in an abstract sense, but which was threatened directly. This substantial motivation is what distinguishes the SIR from the others."; "So regardless of whether this approach is called the dual-purpose approach, substantial-motivating-factor approach, at-least-one-of-the-primary-purposes approach, the because-of approach, or the not-prepared-in-substantially-similar-form-but-for-the-prospect-of-litigation exception to the ordinary business document exemption from work product protection, the conclusion is that the work product doctrine protects this document under the special and fact-specific circumstances presented here.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal FL
Comment:

key case


Chapter: 38.12
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: 38.12
Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "The Court carefully inspected the documents submitted for in camera review to determine whether they were prepared because of anticipated litigation or would have been prepared in substantially similar form regardless. The communications between PJI and Motus [Client agent/consultant] do not contain legal analyses or litigation strategies; they are generally business strategy documents addressing, for example, cost calculations and data, not anticipated litigation. . . . The Court finds that the communications at issue would have occurred in essentially similar form even if PJI had not anticipated litigation. Accordingly, PJI has not met its burden to establish that the communications are entitled to protection under the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 38.12
Case Name: Bozza v. Port Auth. Trans Hudson Corp., 17-CV-2103 (LAK) (JLC), 2017 U.S. Dist. LEXIS 203358 (S.D.N.Y. Dec. 11, 2017)
(holding that a post-accident investigation (including related witness statements) deserved work product protection because they were not created in the ordinary course of the defendant's business; "Here, Lunan attests that 'the Claims Division investigated the alleged injury of Dean Bozza in order to prepare for a subsequent claim,' that the witness statements 'were obtained in anticipation of litigation in this matter,' and that the statements 'were not obtained by PATH in the normal course of business since the Claims Division is not a division of PATH'. . . . As such, per Lunan's sworn affidavit, the witness statements fall within the protections of the work product doctrine and are not discoverable."; "Bozza also contends that even if the witness statements were obtained 'in anticipation of litigation,' they were obtained as part of an investigation that was performed pursuant to 49 U.S.C. § 20901, and 'statements taken as a result of any such investigation are considered to be documents prepared in the normal course of business and are therefore discoverable'. . . . However, PATH convincingly explains -- supported by Lunan's sworn affidavit -- that the witness statements were not obtained as part of PATH's statutory investigation under Section 20901, and thus should not be considered to have been prepared in the ordinary course of its business.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal NY

Chapter: 38.12
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: 38.12
Case Name: Haynes v. Indiana Univ., No. 1:15-cv-01717-LJM-DKL, 2017 U.S. Dist. LEXIS 104991 (S.D. Ind. July 7, 2017)
("Defendants only describe the chain; they do not provide any argument showing how content in the chain satisfies the elements of either privilege. Without a showing, or even assertion, that the e-mail communicants reasonably anticipated litigation when they received Dr. Haynes' open-records request, that they generate the e-mails in order to prepare for that litigation, or that the e-mails would not have been generated but for the anticipated litigation, the Court cannot conclude that the e-mails constitute protectable work product. Therefore, it appears that the e-mails would have been generated regardless of any reasonably anticipated litigation in order to fulfill the University's statutory obligation to response to the open-records request. In addition, the e-mails consist of technical questions about obtaining any notifications that were generated when material was added to Dr. Haynes' eDossier, in order to respond to the open-records request. There are no requests or communications of legal advice."; "The University has an independent statutory obligation to respond to open-records requests, regardless of whether litigation is reasonably anticipated or not. If counsel would have made his request, and these –emails would have ensued, regardless of any anticipated litigation, then they would not qualify as work product.")

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal IN

Chapter: 38.12
Case Name: In re Experian Data Breach Litig., SACV 15-01592 AG (DFMx), Slip Op. at 2, 3, 4, 4-5 (C.D. Cal. May 18, 2017)
(finding that the work product doctrine protected materials created by a forensic consultant hired by Jones Day to investigate Experian's data breach, making it unnecessary to analyze possible privilege protection; holding that (1) the work product doctrine protected the documents; (2) plaintiffs could not overcome the work product protection; and (3) Experian did not waive the work product protection by disclosing the forensic consultant's report internally and to fellow common interest participant T-Mobile (Experian's client); explaining that "in this circuit, a 'because-of' test is used to determine whether a document was prepared in anticipation of litigation, which means that a document doesn't need to be prepared exclusively for use in litigation."; in supporting its conclusion (1), explaining as follows: "Some background is helpful for this analysis. In September 2015, Experian learned that one of its systems was breached by an unauthorized third party. Experian immediately retained Jones Day, its outside litigation counsel, for legal advice regarding the attack. Jones Day then hired Mandiant to conduct an expert report analysis of the attack. And according to Experian, the only purpose of that report is to help Jones Day provide legal advice to Experian regarding the attack."; "On October 1, 2015, Experian announced its data breach. One day later, the first complaint was filed alleging claims related to the data breach. That complaint was then consolidated with over forty other consumer complaints, which created the pending litigation. Mandiant finished its report by the end of October 2015 and gave it to Jones Day. Then Jones Day gave the report to Experian's in-house counsel. The report has several components and includes an individual sub-report for each server image that Mandian investigated. Jones Day and Experian's in-house counsel have used and continue to use the report to develop their legal strategy."; acknowledging that "Experian . . . had duties under the law to investigate data breaches and under its contract [with] T-Mobile, Experian had the duty to remedy, investigate, and remediate any data breach. But the record before the Court makes it clear that Mandiant conducted the investigation and prepared its report for Jones Day in anticipation of litigation, even if that wasn't Mandiant's only purpose."; "Mandiant was hired by Jones Day to assist Jones Day in providing legal advice in anticipation of litigation. This is supported by declarations as well as the fact that Mandiant's full report wasn't given to Experian's Incident Response Team. If the report was more relevant to Experian's internal investigation or remediation efforts, as opposed to being relevant to defense of this litigation, then the full report would have been given to that team. The evidence here establish that Jones Day instructed Mandiant to do the investigation and, but for the anticipated litigation, the report wouldn't have been prepared in substantially the same form or with the same content."; acknowledging that Mandiant had worked previously for Experian, but finding that such earlier work did not destroy work product protection for its post-data breach work; "Plaintiffs argue that since Mandiant had previously worked for Experian, that's proof that Mandiant was just again doing work in the course of ordinary business for Experian when it created the report. But that argument isn't convincing in part because Mandiant's previous work for Experian was separate from the work it did for Experian regarding this particular data breach. . . . [T]he Court is not concluding that Mandiant's 2013 report is privileged. The Court also is not concluding that any work done by Experian or Mandiant regarding the breach before Jones Day was hired is privileged." (emphases added))

Case Date Jurisdiction State Cite Checked
2017-05-18 Federal CA
Comment:

key case


Chapter: 38.12
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: 38.12
Case Name: Buck v. Indian Mountain School, 15 CV 123 (JBA), 2017 U.S. Dist. LEXIS 13348 (D. Conn. Jan. 31, 2017)
(analyzing work product protection for an investigation into alleged sexual abuse at a school; holding that witness interview notes and memorandum deserve work product protection; holding that the investigating law firm's document deserved work product protection; "[T]he court must examine the role of the Shipman & Goodwin [law firm hired to investigate the abuse claims] attorneys in this case, considering the duties they performed, and must determine whether they were providing legal advice or were serving as independent investigators."; "This case, however, differs from Zimmerman [Zimmerman v. Poly Prep Country Day Sch., No. 09-CV-4586(FB), 2011 U.S. Dist. LEXIS 40704, 2011 WL 1429221 (E.D.N.Y. Apr. 13, 2011)] in at least four important respects. In this case, Shipman & Goodwin was retained in October 2014 'by a Special Committee on the Board of Trustees of IMS to conduct a comprehensive investigation of allegations of sexual molestation against the school[.]'"; "First, Attorney Sheridan's [lawyer retained to investigate alleged abuse in the Zimmerman case] role was limited merely to fact-finding, without any indication that he was going to make any recommendations, legal or otherwise, to the defendant school, unlike Shipman & Goodwin, whose retention included advising defendant IMS 'how best to respect and support any alumni who may have been harmed[,]' and which law firm specifically was retained in connection with ongoing and anticipated litigation. Second, Attorney Sheridan apparently did not reveal to the people that he interviewed that he was an attorney, nor he did indicate that he was there for the purpose of trying to defend the school in future litigation, whereas the alumni notice in this case clearly spells out that Ruekert and Bergenn are attorneys. At the time the letter was sent to the IMS community, defendant had been defending lawsuit for twenty-one years, from 1993 through 2014, so that litigation clearly was anticipated. Third, there apparently was no expectation of privacy or confidentiality in the fact-gathering interviews conducted by Attorney Sheridan; while the words 'privacy' or 'confidentiality' do not appear in the November 5, 2014 mass mailing, the insertion of the words 'integrity' and 'sensitivity' in describing Attorneys Ruekert and Bergenn's experience to this field the same impression that the communications to them will not be revealed. And lastly, the people interviewed by Attorney Sheridan were all prominent representatives of the defendant school, individuals who clearly were going to be deposed in the anticipated litigation in Zimmerman and whose alleged failure to respond was apparent, or soon would be, and whose credibility was going to loom large at trial, whereas the individuals targeted here for interview were other potential victims, or witnesses, that is, people whose identities had not yet been revealed in the anticipated litigation."; "There are multiple parallels between this lawsuit and Sandra T.E. [Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 619 (7th Cir. 2010)]. The communications in the instant case between the Head of School and the Shipman & Goldwin attorneys were confidential, as were the communications with the alumna and alumnus who responded to defendant's letter. Second, in both cases, the law firms were retained specifically to develop the defendants' response to the claims of sexual abuse. Third, the attorneys were retained in the midst of ongoing litigation. At the time the letter was sent to the IMS Community, defendant was aware, and 'deeply concerned[,] with allegations of sexual abuse brought forth by alumni[,]'. . . and as defendant notes in its brief in opposition, IMS has been defending these suits since 1993. . . . Additionally, the fact that defendant had retained different litigation counsel 'is not dispositive[,]' and 'does not remove the investigation from the protection of the work product doctrine.'. . .'")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal CT
Comment:

key case


Chapter: 38.12
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not follow the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "Rowen's affidavit states that he was serving as counsel for Celanese Corporation, not relator Celanese Ltd., and that he requested that an investigative team provide the Celanese Law Department with the information needed to assess liability in potential litigation. Because the investigation was requested by counsel employed by Celanese Corporation, the investigation was for the benefit of not just relator Celanese Ltd., but also for Celanese Corporation which could anticipate litigation and who Plaintiffs have, in fact, sued in this court proceeding.")

Case Date Jurisdiction State Cite Checked
2017-01-31 State TX
Comment:

key case


Chapter: 38.12
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not following the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "According to Rowen [Celanese's corporation's in-house lawyer], the primary purpose for the investigation and creation of documents and communications therefrom was to aid Celanese in preparing to defend itself in anticipated litigation. As a secondary concern, the information communicated from the investigative team to the legal department was necessary for the legal department to provide Celanese with business and legal advice with respect to the potential termination of employees involved in the accident. The team members were immediately informed that the investigation was for the purpose of assisting counsel and that all communications and documents generated during their investigation must be kept confidential and marked as 'Privileged and Confidential' or 'Attorney-Client Privilege -- Attorney Work Product.' The investigative team conducted interviews and site inspections and communicated their findings to the Celanese Law Department. They prepared a root cause analysis which was necessary for the Celanese Law Department to evaluate liability and begin developing a strategy for defending itself in likely civil and regulatory litigation. Rowen states, 'All of the communications withheld by Celanese were communications between Celanese in-house and outside counsel and their representatives made for the purposes of providing and communicating legal advice or otherwise facilitating or providing professional legal services.'"; "Plaintiffs cite no Texas authority for their position that the communication must have been made for the primary purpose of soliciting legal, rather than business advice. And the federal decisions supporting Plaintiffs' position are not binding on our court. More important, the language of Rule 503(b) does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX
Comment:

key case


Chapter: 38.12
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

Chapter: 38.12
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: 38.12
Case Name: Patel v. Kensol-Franklin, Inc., Civ. A. No. 3:14-1439, 2016 U.S. Dist. LEXIS 36684 (M.D. Pa. March 22, 2016)
(in a bad faith insurance case, analyzing privilege and work product protection for a post-accident investigation; finding that both protections applied; "The court finds that this report was not complied in the ordinary course of business since it was intended to assist attorney Michael with an OSHA investigation as well as to implement post-accident modifications. It makes no difference that Hunter [Employee] prepared the report since the work-product doctrine also protects 'materials prepared by an attorney's agent.'. . . The report and the referenced communications involving the accident investigation performed at the direction of attorney Michael also are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal PA

Chapter: 38.12
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 argue that the Report was prepared in the ordinary course of business because 'Dr. Lehmann's work was well underway long before he was given a contract with the Law Department.'. . . Dr. Lehmann also testified that the work he performed as acting medical director was substantially different from the work done to produce the Report."; "Dr. Lehmann's testimony directly addressed the differences between these HHEs [Health Hazard Evaluation] and the Report. Dr. Lehmann testified that: HHEs were prepared pursuant to Bard's regulatory obligations, while the Report was not; the purpose of HHEs was to 'guide potential market actions or corrections,' while the purpose of the Report was to provide guidance on Bard's risk and overall exposure from adverse events associated with the Recovery Filter; HHEs considered a product's risks and benefits, while the Report considered only the Recovery Filter's risks; HHEs each focused on a single adverse event involving migration, while the Report dealt with all adverse events associated with the Recovery Filter; and the Report involved detailed statistical analysis personally performed by Dr. Lehmann, while HHEs did not. . . . The Court's close review of the HHEs and the Report confirms these distinctions."; "True, there are some similarities between the HHEs and the Report, but the documents clearly serve different purposes and their substantial differences corroborate Dr. Lehmann's testimony that the Report was a different undertaking than the work he did as acting medical director."; "In summary, the Court finds that the clear threat of litigation in 2004, Dr. Lehmann's retention by the Law Department in November of that year, the contract he signed with Bard's general counsel, the scope of work be performed under the contract, and the clear labeling of the Report as work product all support a finding that the Report was prepared because of anticipated litigation. Dr. Lehmann testified that his work in late 2003 and early 2004 as acting medical director was different than the work he did under the contract, and the documents cited by Plaintiffs do not undercut that testimony. To be sure, there are some general similarities between the HHEs and the Report, and the Report was used for some business purposes, but these facts do not contradict the clear evidence that the Report 'would not have been created in substantially similar form but for the prospect of litigation.'")

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

key case


Chapter: 38.12
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.'")

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

key case


Chapter: 38.12
Case Name: Brown v. NCL (Bahamas), Ltd., Case No. 15-21732-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 165346 (S.D. Fla. Dec. 9, 2015)
(analyzing work product issues in connection with a post-accident investigation of an assault on a cruise ship; presenting the factual scenario and finding work product protection for the alleged assailant's statement; "In response to a discovery request, NCL identified on a privilege log a statement from the alleged attacker. To support its privilege claim (and in response to a Court order . . . requiring a sworn explanation of the circumstances surrounding the statement's preparation), NCL submitted an affidavit . . . from Jeffrey N. Anderson, its Vice President and Assistant General Counsel, Claims. In that affidavit, Mr. Anderson explained that NCL's counsel has provided standing advice requiring on-board staff to prepare an accident/incident report whenever a passenger reports an injury. Counsel's advice is that NCL conduct an investigation, which includes the taking of witness statements. The completed incident reports, including any witness statements taken at or near the time of the accident or incident, are confidential and are made available only to counsel and/or NCL's claims department."; "Plaintiff challenges the work-product status of the statement, not the arguable waiver created from the disclosure. Her reply memorandum . . . argues that NCL took the statement in the ordinary course of business because its policies require ship security officers to investigate and prepare a report following the discovery of a potential criminal event onboard a vessel or at sea -- and to take relevant statements."; "The Undersigned appreciates Plaintiff's point, but Anderson's affidavit is persuasive and convinces me that the statement is in fact entitled to work-product protection.").

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal FL

Chapter: 38.12
Case Name: In Schaeffler v. United States, 806 F.3d 34 (2d Cir. Nov. 10, 2015)
January 13, 2016 (PRIVILEGE POINT)

"Second Circuit Offers Bad News, Good News and No News"

When the Second Circuit speaks, people listen. That court recently dealt with privilege and work product issues.

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and (2) the work product doctrine did not protect documents the taxpayer prepared in anticipation of IRS litigation. First, the Second Circuit offered bad news on the privilege front — explaining that for privilege to apply "the purpose of the communications must be solely for the obtaining or providing of legal advice." Id. At 40 (emphasis added) This is a narrower approach than the majority "primary purpose" standard, and much narrower than the D.C. Circuit's one "significant" purpose standard. See In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163 (2015). Second, in discussing the common interest doctrine, the Second Circuit offered good news — acknowledging that the taxpayer and his lenders shared a common legal interest rather than just a common financial interest. Schaeffler, 806 F.3d at 42. Third, the Second Circuit also offered good news on the work product front — essentially rejecting the district court's "construct of a hypothetical scenario" in which the taxpayer and his lenders faced the same business issues without a litigation threat. Id. At 44. The court explained that the enormous financial stakes and business complexity meant that the lower court's hypothetical was "at odds with reality." Id. This meant that the taxpayer by definition would not have created his documents in the same form absent an IRS litigation threat. Fourth, the Second Circuit offered no news on a key issue — whether the common interest doctrine can apply in the absence of anticipated litigation. The court acknowledged that "[p]arties may share a 'common legal interest' even if they are not parties in ongoing litigation," but did not take a position either way on the doctrine's applicability in a purely transactional setting. Id. At 40 (citation omitted).

The Second Circuit's off-handed description of the privilege standard may not represent a legal shift, so overall the Schaeffler decision represents primarily good news — on the common interest and work product fronts.

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

key case


Chapter: 38.12
Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
("[A]lthough generally documents created in the ordinary course of business do not enjoy work product protection because they are not prepared in anticipation of litigation, there is no evidence that the Report was created for any reason other than in anticipation of litigation. There is absolutely no evidence that the M/Y Claire regularly hired marine surveyors to evaluate work performed on the vessel as part of its ordinary course of business. As such, the undersigned concludes that Mr. Clifford's report is protected from disclosure under the work product doctrine because it was created in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2015-07-15 Federal FL

Chapter: 38.12
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
(analyzing work product protection for documents created in connection with the companies' litigation settlement that resulted in a "co-promotion agreement"; finding that the work product protection is a business arrangement that was part of a settlement, in remanding to the trial court to review post-settlement documents; "When considering whether a document is prepared 'in anticipation of litigation,' this Court employs a 'because of' test, inquiring 'whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'. . . Where a document would have been created 'in substantially similar form' regardless of the litigation, work product protection is not available.")

Case Date Jurisdiction State Cite Checked
2015-02-20 Federal DC

Chapter: 38.12
Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
(rejecting defendant's claims that a billing audit was motivated by litigation and therefore deserved work product protection, and that the auditor was protected by the Kovel doctrine; "The fact that CodeMap, NeuroScience and counsel arranged -- after Charles Root had completed his coding review and Bublitz had engaged CodeMap for its standard, full-service audit -- to shelter CodeMap's work behind counsel's coattails does not change this conclusion. Respondent's submissions make clear that this was a tactic designed solely to cloak the audit documents with the protection of the work product or attorney-client privileges. . . . In spite of counsel's nominal involvement, respondents have presented no evidence to show that CodeMap changed the focus of its audit or conducted it any differently after it was agreed that the Services Proposal should be routed through counsel. Indeed, notwithstanding the language of the Services Proposal which indicated that AHDN was 'directing' the audit, AHDN in fact provided no direction at all. As noted above, counsel left CodeMap to 'do that [it] saw fit' and to conduct the audit just as it would have in the absence of counsel. Respondents' contention that CodeMap was retained by counsel because of anticipated litigation is utterly unpersuasive.")

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal WI
Comment:

key case


Chapter: 38.12
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; adopting the "because of" work product standard; "Rule 26(b)(3) provides an independent basis for New GM to withhold the Interview Materials. The materials at issue were produced in a situation far from the 'ordinary course of business'; the interviews were conducted -- and the Interview Materials were prepared -- in light of the pending DOJ investigation and the anticipation of civil litigation. . . . Further, in light of the nature of the documents at issue and the factual situation in this case, it can 'fairly be said 'that the Interview Materials would not have been created in 'essentially similar form' had New GM not been faced with the inevitability of such litigation.")

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY

Chapter: 38.12
Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197 SECTION: "A"(5), 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
March 4, 2015 (PRIVILEGE POINT)

“Courts Focus on the Work Product Doctrine's "Motivation" Element”

The work product doctrine protection rests on three elements: (1) litigation; (2) anticipation; (3) motivation. In normal civil or criminal litigation, the first element presents an easy analysis. Most lawyers' attention focuses on the second element — whether their clients reasonably anticipate litigation. But the third element represents the real key to work product protection.

Even if the client is in the midst of litigation, or reasonably anticipates litigation, the work product doctrine only protects documents motivated by that litigation. In Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197 SECTION: "A"(5), 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015), Chevron in-house lawyers initiated and directed what they labeled a "legally chartered" root cause investigation after a fatal pipeline explosion. In analyzing the motivation element the court described as the "salient question" whether "'legally chartered' root cause analyses are different in kind than those 'other' root cause analyses routinely conducted by Chevron." Id. at *28. The court ultimately rejected Chevron's work product claim, pointing to: (1) deposition testimony by a Chevron engineer "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,'" and "that it is 'part of the Chevron ordinary course of business to conduct a root cause analysis' after an incident" (id. at *25); (2) Chevron Pipeline's President's statement in an employee newsletter that "[w]e are conducting root cause analyses of both incidents and will apply lessons learned. Our ultimate goal remains the same - an incident and injury-free workplace. " (id. at *27); (3) Chevron's failure to provide the court examples of Chevron's ordinary root cause analyses — noting that Chevron's argument that its ordinary "incident reviews" were different from its "legally chartered" investigation "would be more convincing if there was actually another root cause analysis from which to distinguish the legally chartered one." Id. at *29.

To satisfy the work product motivation element, companies must demonstrate that they did something different or special because they anticipated litigation — beyond what they ordinarily would do, or which they were compelled to do by external or internal requirements.

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

key case


Chapter: 38.12
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
("Upon in camera review, the Court finds that both the email exchange and the computer entry were made because of the prospect of litigation against plaintiff. The affidavit in question was prepared solely to accompany the complaint in a lawsuit against plaintiff. The affidavit, and any documents discussing it, would not have been created at all if the suit was not forthcoming. As such, these documents concerning the affidavit would not have been prepared in substantially similar form and had litigation not been imminent.")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 38.12
Case Name: Wultz v. Bank of China Ltd., 304 F.R.D. 384, 395, 396, 396-97 (S.D.N.Y. 2015)
(in an opinion by Magistrate 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 [defendant] 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.'" (citation omitted); "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 [v. Bank of Am, N.A., 240 F.R.D. 96, 106 (S.D.N.Y. 2007)]. 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?" (footnote omitted); "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."; "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 Jurisdiction State Cite Checked
2015-01-01 Federal NY
Comment:

key case


Chapter: 38.12
Case Name: Hooke v. Foss Maritime Co., Case No.13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. Apr. 10, 2014)
July 30, 2014 (PRIVILEGE POINT)

"Do Corporations Enhance Their Work Product Claims by Sending Post-Accident Reports to Outside Counsel?"

The work product doctrine can protect documents created in anticipation of litigation — as long as they were motivated by that litigation. The doctrine does not protect documents created in the ordinary course of business, or pursuant to some external or internal requirement. In essence, litigants must prove that they did something different or special because they anticipated litigation.

In Hooke v. Foss Maritime Co., Case No.13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. Apr. 10, 2014), defendant claimed work product protection for documents created after plaintiff suffered job-related injuries. After noting that the defendant's internal processes required investigation reports after nearly every accident, the court turned to the company's argument that "the [post-accident] process is overseen in some way by the General Counsel." Id. at *11. The court surmised that "testimony that Internal Incident Investigation Reports are sent to outside counsel in the event that a litigation threat arises is apparently proffered to show its connection with anticipated litigation." Id. However, the court concluded that the testimony hurt defendant's work product claim — because it "actually reveals that those reports are created in substantially the same form regardless of the specific threat of litigation, and the reports are only sent to outside counsel if litigation actually becomes likely." Id. (emphasis added).

Some companies eventually regret their attempt to bolster a work product claim by involving lawyers in the post-accident process. Here, the supposedly helpful testimony instead confirmed that the company prepared the post-accident reports sought by plaintiff in the ordinary course of its business. Ironically, sending every post-accident report to a lawyer might have the same adverse effect — because the company could not prove that it did something different or special because it anticipated litigation.

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal CA
Comment:

key case


Chapter: 38.12
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "[T]he testimony that Internal Incident Investigation Reports are sent to outside counsel in the event that a litigation threat arises is apparently proffered to show its connection with anticipated litigation. . . . However, it actually reveals that those reports are created in substantially the same form regardless of the specific threat of litigation, and the reports are only sent to outside counsel if litigation actually becomes likely.")

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

Chapter: 38.12
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: 38.12
Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *12-13 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "MDM has met its burden in this case based on Mr. Resnick's [Great Am. Ins. Co. claims specialist] affidavit. Mr. Resnick stated that it was not the insurer's policy to obtain witness statements for every claim, but he decided to obtain the witness statements in order to assist the attorneys that he would eventually retain. . . . He based his decision on his review of the case, conversations with MDM, the fact that Ms. Cera had already retained counsel, his opinion as to MDM's liability, and his opinion that because this was a maritime claim, the vessel's owner was likely to proactively file an action for exoneration. . . . Importantly, he stated that he decided to obtain the two statements 'purely in anticipation of likely litigation.'. . . (emphasis added). As in Hamilton [v. Great Lakes Dredge & Dock Co., No. 05 Civ. 3862 (DGT), 2006 U.S. Dist. LEXIS 50760 (E.D.N.Y. July 25, 2006)], Claimant offers no evidence to dispute Mr. Resnick's sworn testimony, and the Court has no reason to doubt his credibility. Thus, MDM has met its burden of establishing that the witness statements are privileged work-product.")

Case Date Jurisdiction State Cite Checked
2013-12-18 Federal NY B 5/14

Chapter: 38.12
Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec., Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 173162, at *3 (S.D.N.Y. Dec. 6, 2013)
("Because they were created in accordance with a contractual obligation, such analyses are not protected by the work product doctrine unless UBS can show that they were specifically directed to litigation strategy or defenses and were therefore created in a form significantly different than they otherwise would have been.")

Case Date Jurisdiction State Cite Checked
2013-12-06 Federal NY B 5/14

Chapter: 38.12
Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *18 (E.D. La. Nov. 8, 2013)
("Courts have looked to factors including whether (1) counsel had been retained, (2) the retained counsel was involved in the generation of the document, and (3) the document was created out of a 'routine practice' or in connection with particular circumstances.")

Case Date Jurisdiction State Cite Checked
2013-11-08 Federal LA B 5/14

Chapter: 38.12
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: 38.12
Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 142516, at *3-4 (S.D.N.Y. Sept. 27, 2013)
(analyzing protection for seventy-five documents withheld by defendant; finding that defendant's analysis of its repurchase obligations involved the ordinary course of the defendant's business, but also included work product-protected additional analyses; "Analysis of repurchase demands would not be privileged if it were done in the normal course of business. . . . However, it is perfectly plausible that additional analyses of repurchase demands would not have been done in the normal course, but only because of the threat of litigation, which is what UBS asserts here. . . . I am satisfied that the documents provided are protected from disclosure, except as outlined below.")

Case Date Jurisdiction State Cite Checked
2013-09-27 Federal NY B 5/14

Chapter: 38.12
Case Name: DiMaria v. Concorde Entm't, Inc., Civ. No. 12-11139-FDS, 2013 U.S. Dist. LEXIS 112533, at *2, *2-3, *6-7 (D. Mass. Aug. 9, 2013)
(holding that the work product doctrine protected witness statements taken by a tavern after a customer died during an altercation, because statements were not taken pursuant to the tavern's requirement or ordinary course of business; "The defendant's Security Manual contains the following provision: 'At the end of the night, if there have been any incidents that you have been involved with or have witnessed, you are required to complete an incident report and turn it in to the manager that night.' Doc. No. 34-2 at 11 (emphasis in original) (limiting reports to 'only . . . information you have witnessed'). No such reports were prepared on the night of the incident."; noting that the tavern's employees did not prepare such a report, but that the tavern's lawyer later interviewed several employees with "specific questions," and later prepared written statements; "Based on the seriousness of the incident, the defendant retained counsel on August 14, 2010 to conduct an investigation in anticipation of administrative, civil, and criminal litigation that might arise therefrom. On August 16 and 17, 2010, counsel interviewed twenty-one of the defendant's employees who were working on the night of the incident. The interviews were done individually and, after answering specific questions presented by counsel, the employees were asked to write statements about the incident based on their discussions with counsel. The statements were written on the defendant's standard incident report forms, were given directly to counsel, and have been maintained by counsel as confidential work product."; "The plaintiff suggests the statements are not protected work product because they are 'purely factual in nature' and 'were prepared in the ordinary course of business' pursuant to the Safety Manual. . . . The parties agree, however, that statements were not completed on the night of the incident, but were later solicited by counsel from all 'front-of-the-house' employees working at the bar on the night of the incident, irrespective of whether they were 'involved with' or 'witnessed' the dispute. These constitute departures from the routine policy described in the Safety Manual. . . . In addition, the nature of the incident and its effects and counsel's immediate involvement further remove the situation from 'the ordinary course' of the defendant's business. Finally, although the statements likely reflect facts, in part, the attorney's affidavit makes clear that they 'summar[ize] the information that was extracted through [her] inquiry of [each] employee.'. . . In other words, the statements were shaped by specific questions discussed during the attorney's interviews and, thus, their content reflects her strategies, thoughts, and mental impressions. . . . The plaintiff has not refuted this description of the statements' content.")

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

Chapter: 38.12
Case Name: DiMaria v. Concorde Entertainment, Inc., Civ. No. 12-11139-FDS, 2013 U.S. Dist. LEXIS 112533 (D. Mass. Aug. 9, 2013)
October 16, 2013 (PRIVILEGE POINT)

"How Can Companies Satisfy the Work Product Doctrine's "Motivation" Element?: Part II"

Last week's Privilege Point explained that companies claiming work product protection must meet the "litigation" and "anticipation" elements, and then satisfy the separate "motivation" element. That prerequisite for work product protection requires companies to demonstrate that the withheld documents were motivated by the anticipated litigation rather than by something else.

In DiMaria v. Concorde Entertainment, Inc., Civ. No. 12-11139-FDS, 2013 U.S. Dist. LEXIS 112533 (D. Mass. Aug. 9, 2013), defendant tavern investigated a patron's death during an altercation. The tavern's Security Manual required preparation of an "'incident report'" the night of such a serious event. Id. At *2. The tavern's employees did not prepare the required report that night, but a few days later its lawyers took statements from several employees. The decedent's administrator argued that the tavern took those statements "'in the ordinary course of business' pursuant to the Safety Manual." Id. At *6 (internal citation omitted). The court disagreed – noting that the statements "constitute departures from the routine policy described in the Safety Manual," and that "the nature of the incident and its effects and counsel's immediate involvement further removed the situation from 'the ordinary course' of the defendant's business." Id. At *6-7.

As companies face an increasing number of external requirements, and laudably adopt safety-conscious internal requirements, they face a greater burden in satisfying the work product "motivation" element. In essence, companies must prove that they did something different or special because they anticipated litigation.

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal MA
Comment:

key case


Chapter: 38.12
Case Name: Blais v. A.R. Cheramie Marine Management, Inc., Civ. A. No. 12-2736 SECTION "R" (2), 2013 U.S. Dist. LEXIS 111307 (E.D. La. Aug. 7, 2013)
October 9, 2013 (PRIVILEGE POINT)

"How Can Companies Satisfy the Work Product Doctrine's "Motivation" Element?: Part I"

Many lawyers focus on the first two elements of the work product doctrine – which require (1) "litigation" that the client (2) reasonably "anticipates." But documents that clients or their lawyers prepare in anticipation or even during litigation deserve work product protection only if they satisfy the third element – that the documents were (3) "motivated" by the litigation, and not by something else.

The work product doctrine generally does not protect documents that companies prepare in the ordinary course of their business, or because of some external or internal requirements. In Blais v. A.R. Cheramie Marine Management, Inc., Civ. A. No. 12-2736 SECTION "R" (2), 2013 U.S. Dist. LEXIS 111307 (E.D. La. Aug. 7, 2013), the defendant investigated a former employee the company had recently rehired. Company policy required creation of a "nonconformity report." Id. At *6. The court acknowledged that this report "was required to be prepared in defendant's ordinary course of business," and also noted that "defendant has already produced [the report] to plaintiff." Id. In contrast, the court upheld the company's work product claim for statements and investigative reports "which clearly went beyond ordinary company policy and procedure." Id. At *6-7.

The work product "motivation" element requires companies to demonstrate that any withheld work product was motivated by anticipated litigation rather than prepared in the ordinary course of business or required by some external or internal mandate. Next week's Privilege Point describes a similar case decided two days later.

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal LA
Comment:

key case


Chapter: 38.12
Case Name: Blais v. Cheramie Marine Mgmt., Inc., Civ. A. No. 12-2736 SECTION "R" (2), 2013 U.S. Dist. LEXIS 111307, at *6-7 (E.D. La. Aug. 7, 2013)
(holding that work product doctrine did not protect a company-required form, but did protect statements and an investigation report that was not required; "Cheramie's declaration under penalty of perjury establishes that his primary purpose in hiring the claims service that prepared these materials was in anticipation of litigation. Cheramie states that he had previously terminated plaintiff for violation of company policy and had only recently rehired him, knowing he had allegedly suffered an injury while working for another company, from whom Blais had gotten a settlement based upon a claim relating to that injury. Given this history with and knowledge of the plaintiff, the circumstances of this unwitnessed accident credibly put Cheramie on notice, prompting him to anticipate litigation, and he hired the investigative claims service with that particular purpose in mind. There is nothing in the company policy relied upon by plaintiff requiring preparation of a 'non-conformity report' that rebuts Cheramie's declaration. Only the nonconformity report -- which defendant has already produced to plaintiff -- was required to be prepared in defendant's ordinary course of business, not the statements or the investigative reports, which clearly went beyond ordinary company policy and procedure. Under the particular circumstances of this case, the subject materials are work product protected from discovery by Rule 26(b)(3).")

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal LA B 4/14

Chapter: 38.12
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *16 n.6 (S.D. Ohio Nov. 13, 2012)
(holding that a 2008 audit conducted by a third party consultant did not deserve work product protection; "That SunCoke had not previously retained an outside consultant to perform an HES audit does not persuade the Court that the audit was motivated by the threat of litigation'")

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

key case


Chapter: 38.12
Case Name: Warner v. United States, C.A. No. 09-036ML, 2009 U.S. Dist. LEXIS 101688, at *7-8 (D.R.I. Nov. 2, 2009)
(denying work product protection for forms created by the Postal Service after an accident; noting that one form indicated that the information would be used for essentially a business purpose; one form was required to be prepared after all accidents, however minor and would be used for essentially business purposes; "PS Form 1769 does not include a statement of purpose but the Postal Service has represented in other litigation that its 'policy requires that any accident involving a motor vehicle, no matter how minor, must be documented by the supervisor in an accident report on Form 1769.'. . . there is absolutely no rationale basis upon which to argue that the 'preventive action' Section on PS Form 1769 was prepared in anticipation of litigation when its stated purpose is to prevent similar accidents in the future.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-11-02 Federal RI

Chapter: 38.12
Case Name: Sandra T.E. v. S. Berwyn Sch. Dist. 100, No. 08-3344, 2009 U.S. App. LEXIS 28983 (7th Cir. App. Feb. 25, 2009)
(reversing the lower court's denial of privilege protection, and holding that Sidley Austin lawyers were hired as legal advisors to conduct an investigation into possible sexual abuse at the school – so their investigation-related documents deserved privilege and work product protection; also finding the work product doctrine applicable; "The work-product doctrine also protects the materials at issue here from disclosure; and to the extent some of the witnesses interviewed by Sidley attorneys were not district employees; this is an independent rather than a duplicate source of protection."; "[T]he work-product doctrine would protect any notes from interviews with former employees as equally as it protects notes from interviews with third parties who never worked for the School District."; "The plaintiffs maintain that the Sidley investigation was only designed to quell public outrage and prevent similar occurrences in the future, but the record simply does not support that conclusion. The chronology of events confirms that Sidley was hired to conduct the District 100 investigation not merely in anticipation of likely litigation but in response to the actual filing of this lawsuit. True, the Board had other motivations as well – it was responding to the public distress about the allegations, the possible complicity of the school principal, and the urgent need to implement prospective protective measures – but this does not remove the investigation from the protection of the work-product doctrine. That Sidley was not the District's litigation counsel is not dispositive. Sidley's witness-interview notes and memoranda were plainly prepared 'with an eye toward' this pending litigation and therefore qualify for work-product protection.")

Case Date Jurisdiction State Cite Checked
2009-02-25 Federal
Comment:

key case


Chapter: 38.12
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: 38.12
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 179 (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 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 and corroborates NPBL's statement that it anticipated litigation when the PISR was prepared. Finally, while no formal claim had been filed on October 31, 2003, as noted above, the rest of the evidence outweighs any suggestion that the absence of such a claim should preclude NPBL from anticipating litigation.")

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

Chapter: 38.12
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: 38.12
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 produced in discovery the Personal Injury Report (PIR) form that it prepared on plaintiff's incident, as well as the 'reportable condition' form prepared immediately after the incident. Donnelly testified that those documents are not prepared in anticipation of future litigation. NPBL therefore suggests that some of the documents it prepared immediately after the incident were prepared in an effort to plan for possible litigation, while other documents prepared immediately after the incident were not prepared in an effort to plan for possible 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.")

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

Chapter: 38.12
Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55, 55-56 (Va. Cir. Ct. 1993)
(holding that the work product doctrine covered an incident report prepared by a K Mart store manager after an accident, since "[t]he document was prepared in accordance with a standard procedure adopted by K Mart, the purpose of which, in part, was to have an investigation undertaken in the event of or in the anticipation of litigation."; indicating that the doctrine protected a K Mart policy manual (to the extent that it instructed employees how to complete the incident form and how to conduct an investigation); "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.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 38.13
Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948 (S.D.N.Y. March 4, 2016)
(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "In employment discrimination cases, courts often find that an employer's investigation 'shift[s] from an internal investigation in response to [a plaintiff's] claims to an investigation for the purposes of mounting a legal defense against any such claims,' and hold that documents created during the latter portion of the investigation are privileged work product.")

Case Date Jurisdiction State Cite Checked
2016-03-04 Federal NY
Comment:

key case


Chapter: 38.13
Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948 (S.D.N.Y. March 4, 2016)
(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "Here, HRCG is clearly a 'representative' of Vineyard Vines for the purposes of the work-product doctrine -- it was, at the very least, acting as Vineyard Vines' 'consultant' when it provided 'the full range of human resources services to Vineyard Vines . . . Including responding to employee issues that were brought to HRCG's attention by Vineyard Vines' managers or employees.'. . . I also find that the documents generated after HRCG received the January 9 Email were created 'in anticipation of litigation.' HRCG affirms that "as of January 9, 2013, the focus of the information-gathering by HRCG concerning [Plaintiff] shifted,' and it was HRCG's 'understanding at the time that the information that HRCG was gathering in response to the [January 9 Email] . . . Was to be provided to Vineyard Vines and/or its counsel for their use in defending against the [claims in the January 9 Email].'")

Case Date Jurisdiction State Cite Checked
2016-03-04 Federal NY
Comment:

key case


Chapter: 38.13
Case Name: In re Symbol Technologies, Inc. Securities Litig., CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015)
(requiring more facts to determine if an internal corporate investigation into a "revenue misstatement" had changed in some way so that the work product doctrine was applicable; " The circumstances within which the documents at issue were created appear to stem from Symbol's investigation into its overstatement of revenue beginning in November 2004 -- an investigation for which it retained representation by outside counsel. . . . In cases such as this, where an attorney-assisted investigation has been conducted, 'the court must make a 'fact specific inquiry' to determine if and when an investigation changed from being within the ordinary course of business to being because of litigation.' Koumoulis v. Indep. Fin. Mktg. Group, Inc., 295 F.R.D. 28, 40 (E.D.N.Y. 2013), aff'd 29 F. Supp. 3d 142 (E.D.N.Y. 2014); see U.S. Fid. & Guar. Co. v. Braspetro Oil Srvs. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, 2000 WL 744369, at *9 (S.D.N.Y. June 8, 2000) ('Although at some point, a company's investigation may shift from the ordinary course of business to an anticipation of litigation, there is no hard and fast rule as to when this occurs; rather, a fact-specific inquiry is required to determine when this shift occurs.'"; "At this juncture, the Court is hampered by the fact that it does not have sufficient factual information concerning the particular documents at issue in order to make such a factual determination. To date, Symbol has not produced the required privilege log in this case particularizing the documents being withheld based on privilege. Nor has either party requested an in camera review of the documents at issue so that the Court can properly engage in a case-specific assessment whether the work product privilege is applicable here in the first instance.")

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal NY

Chapter: 38.13
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "A central contention in WMC's argument is that because, beginning in September 2007, the form of documents issued by the WMC repurchase group changed as the result of Jenner & Block's advice and recommendations, all WMC repurchase request documents and communications after that date must constitute attorney work product, immune from discovery. WMC's assertion in that regard is akin to a per se rule requiring work product protection if the documents in question were changed in any way. However, that is a questionable reading of Adlman II [United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)]."; "It is not at all clear that under Second Circuit authority, including Adlman II, the base metal of discoverable course-of-business documents is transformed into the gold of protected attorney work product by the alchemy of a lawyer's presence and participation."; "Documents concerning WMC's responses to DBNTC's loan repurchase requests would seem to have been prepared 'in the regular course of [WMC's] business' rather than 'for purposes of litigation,' and that is so whether or not lawyers suggested changes to the forms the WMC repurchase group used in performing their business function.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.14
Case Name: Patel v. L-3 Communications Holdings, Inc., Nos. 14-CV-6038, -6182, & -6939 (VEC), 2016 U.S. Dist. LEXIS 97241 (S.D.N.Y. July 25, 2016)
October 12, 2016 (PRIVILEGE POINT)

"Maximizing Work Product Protection After an Ordinary Course Internal Investigation Uncovers Serious Problems that Could Trigger Litigation"

The work product doctrine only protects internal corporate investigations initiated by the corporation's anticipation of litigation. Thus, the protection normally does not extend to investigations required by some external or internal mandate, or undertaken in the ordinary course of business. But unprotected ordinary course investigations might uncover something that could trigger litigation. What happens then?

In Patel v. L-3 Communications Holdings, Inc., Nos. 14-CV-6038, -6182, & -6939 (VEC), 2016 U.S. Dist. LEXIS 97241 (S.D.N.Y. July 25, 2016), L-3's in-house lawyer initiated an internal corporate investigation into misconduct allegations about one government contract. L-3 later hired Simpson Thacher "to complete the investigation." Id. at *4. About five weeks later, Simpson Thacher retained a forensic accounting firm to assist in a broader investigation into other potential accounting misconduct or errors. Because Simpson Thacher's initial contract-specific investigation "was largely complete" by that time, the forensic accounting firm "'had no role or involvement'" in that earlier narrower investigation. Id. (internal citation omitted). L-3 self-reported on the contract-specific investigation results, but in later litigation claimed work product protection for the broader investigation documents – arguing that the later investigation was "entirely separate from Simpson's investigation into the [specific] Contract accounting irregularities and was focused more broadly." Id. at *8. Judge Caproni noted that the work product could apply to internal investigations "conducted . . . in large part [not exclusively] because of expected litigation," because "work product protection applies even when documents are created for multiple purposes." Id. at *12. She then found the work product doctrine applicable, noting that (1) Simpson Thacher had hired the forensic accountant "to conduct a broader review" so "the scope and manner of conducting the investigation was clearly influenced by the expectation and reality of litigation"; and (2) a Simpson Thacher partner's declaration "attested that Simpson and [the forensic accountant] would not have conducted the review in the manner they did in the absence of anticipated litigation." Id. at *11, *12.

Companies trying to maximize work product protection in this scenario should ideally (1) complete -- and disclaim work product protection for -- the ordinary course of business investigation (keeping in mind that adversaries will thus be able read documents related to that investigation); (2) initiate a new lawyer-driven parallel or successive investigation (which may even involve re-interviewing witnesses), preferably with new consultants; (3) assure that communications and other documents generated during this separate investigation reflect on their face its different or special litigation-motivated nature; and (4) be prepared to present evidence that the litigation-motivated investigation was different from the earlier ordinary course investigation.

Case Date Jurisdiction State Cite Checked
2016-07-25 Federal NY B 10/16
Comment:

key case


Chapter: 38.14
Case Name: In re Bard IVC Filters Products Liability Litigation, MDL No. 2641, 2016 U.S. Dist. LEXIS 17583 (D. Ariz. Feb. 11, 2016)
April 20, 2016 (PRIVILEGE PONT)

"How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part II)"

Last week's Privilege Point discussed a court's rejection of a work product claim for a routine post-accident incident report. That defendant did not establish that the report was different from reports following accidents not likely to result in litigation.

In In re Bard IVC Filters Products Liability Litigation, MDL No. 2641, 2016 U.S. Dist. LEXIS 17583 (D. Ariz. Feb. 11, 2016), a medical device company's lawyer hired a former employee as a consultant to investigate several patient deaths allegedly associated with the company's device. Plaintiffs argued "that the Report was prepared in the ordinary course of business" — but the court disagreed. Id. At *79. It pointed to the defendant's in-house lawyer's and the consultant's testimony "that the Report was an unusual undertaking," was "a more extensive, detailed analysis than [the company] normally created," and "was substantially different" from other reports. Id. At *80, *86. Although acknowledging that "there are some similarities" between the Report and the defendant's ordinary product investigations (called "health hazard evaluations"), the court cited the consultant's testimony about numerous specific differences between the Report and those ordinary evaluations. Id. At *90, *72. Significantly, the court also reviewed in camera both ordinary evaluations and the withheld Report — concluding that the court's "close review of the [health hazard evaluations] and the Report confirms these distinctions." Id. At *87.

Companies motivated by anticipated litigation to conduct post-accident investigations normally must establish such investigations' differences from other ordinary and routine incident reports — remembering that courts may well read both types of documents in camera.

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

key case


Chapter: 38.14
Case Name: In re Symbol Technologies, Inc. Securities Litig., CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015)
In re Symbol Technologies, Inc. Securities Litig., CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015)

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal NY

Chapter: 38.14
Case Name: In re Symbol Technologies, Inc. Securities Litig., CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015)
(requiring more facts to determine if an internal corporate investigation into a "revenue misstatement" had changed in some way so that the work product doctrine was applicable; " The circumstances within which the documents at issue were created appear to stem from Symbol's investigation into its overstatement of revenue beginning in November 2004 -- an investigation for which it retained representation by outside counsel. . . . In cases such as this, where an attorney-assisted investigation has been conducted, 'the court must make a 'fact specific inquiry' to determine if and when an investigation changed from being within the ordinary course of business to being because of litigation.' Koumoulis v. Indep. Fin. Mktg. Group, Inc., 295 F.R.D. 28, 40 (E.D.N.Y. 2013), aff'd 29 F. Supp. 3d 142 (E.D.N.Y. 2014); see U.S. Fid. & Guar. Co. v. Braspetro Oil Srvs. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, 2000 WL 744369, at *9 (S.D.N.Y. June 8, 2000) ('Although at some point, a company's investigation may shift from the ordinary course of business to an anticipation of litigation, there is no hard and fast rule as to when this occurs; rather, a fact-specific inquiry is required to determine when this shift occurs.'"; "At this juncture, the Court is hampered by the fact that it does not have sufficient factual information concerning the particular documents at issue in order to make such a factual determination. To date, Symbol has not produced the required privilege log in this case particularizing the documents being withheld based on privilege. Nor has either party requested an in camera review of the documents at issue so that the Court can properly engage in a case-specific assessment whether the work product privilege is applicable here in the first instance.").

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal NY

Chapter: 38.14
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"; "Notably, the only root cause analysis identified and provided to the Court is the 'legally chartered' RCA in dispute. This is important because Chevron's position, as stated by Youngblood, is that 'HES incident reviews are separate and distinct from root cause analyses conducted at the request of the Law Department pursuant to a Legal Charter.' . . . This argument would be more convincing if there was actually another root cause analysis from which to distinguish the legally chartered one.")

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

key case


Chapter: 38.14
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"; "[I]n an email setting forth the RCA Team's findings in great detail to President of Chevron Shipping, Michael Carthew, Team Leader Doug McCormick (a non-lawyer) advised Carthew (also a non-lawyer) that 'there is a parallel investigation being conducted by our litigation team with aid of outside counsel in preparation of potential lawsuits.'. . . The term 'parallel' is not a term of art and its meaning is well understood: 'extending in the same direction, everywhere equidistant, and not meeting.' Merriam-Webster's Collegiate Dictionary, 10th ed. By definition, a thing cannot be parallel to itself. Certainly, if the RCA Investigation, led by Mr. McCormick, was supposed to be undertaken primarily to aid counsel in litigation, its own Team Leader was unaware of that fact. While documents related to this 'parallel investigation' conducted by the 'litigation team' would arguably be protected under the work-product doctrine, the documents before the Court are not.")

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

key case


Chapter: 38.14
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 *16 (E.D. Va. Feb. 14, 2013)
("The Court finds that in this case, the Trustee's argument is too all-encompassing and would result in the loss of work product protection whenever there is a parallel, non-litigation need to conduct an internal investigation. In the case of regulated institutions such as banks, which are always required to conduct investigations into possible money laundering and suspicious activities where such facts arise, this necessarily would mean that banks could never have the protection of the work product doctrine. The Court views the more lenient 'because of' test as being capable of accommodating the need for mandatory internal investigations, while at the same time maintaining work product protection where applicable.")

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

Chapter: 38.14
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: 38.14
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 [defendant] produced in discovery the Personal Injury Report (PIR) form that it prepared on plaintiff's incident, as well as the 'reportable condition' form prepared immediately after the incident. Donnelly testified that those documents are not prepared in anticipation of future litigation. NPBL therefore suggests that some of the documents it prepared immediately after the incident were prepared in an effort to plan for possible litigation, while other documents prepared immediately after the incident were not prepared in an effort to plan for possible 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.")

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

Chapter: 38.14
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 179 (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 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 and corroborates NPBL's [defendant] statement that it anticipated litigation when the PISR [form] was prepared. Finally, while no formal claim had been filed on October 31, 2003, as noted above, the rest of the evidence outweighs any suggestion that the absence of such a claim should preclude NPBL from anticipating litigation.")

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

Chapter: 38.14
Case Name: Wilson v. Norfollk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 179 (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 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 and corroborates NPBL's statement that it anticipated litigation when the PISR was prepared. Finally, while no formal claim had been filed on October 31, 2003, as noted above, the rest of the evidence outweighs any suggestion that the absence of such a claim should preclude NPBL from anticipating litigation.")

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

Chapter: 38.14
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: 38.14
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 produced in discovery the Personal Injury Report (PIR) form that it prepared on plaintiff's incident, as well as the 'reportable condition' form prepared immediately after the incident. Donnelly testified that those documents are not prepared in anticipation of future litigation. NPBL therefore suggests that some of the documents it prepared immediately after the incident were prepared in an effort to plan for possible litigation, while other documents prepared immediately after the incident were not prepared in an effort to plan for possible 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.")

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

Chapter: 38.501
Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)
(holding that the funding agreement deserved work product protection under Delaware law; "In those instances where a claim cannot proceed without third-party financing, one element of preparing a client's case for trial will be securing the requisite funding, which probably will require discussions of a case's merits in an effort to convince the third party to supply the needed funds. No persuasive reason has been advanced in this case why litigants should lose work product protection simply because they lack the financial means to press their claims on their own dime. Allowing work product protection for documents and communications relating to third-party funding places those parties that require outside funding on the same footing as those who do not and maintains a level of playing field among adversaries in litigation. Thus, even though claim funding is the business of financing lawsuits, which means the Discovery Documents serve a business purpose, those documents simultaneously also are litigation documents and work product protection is appropriate.")

Case Date Jurisdiction State Cite Checked
2015-02-24 State DE

Chapter: 38.501
Case Name: In re Method of Processing Ethanol Byproducts and Related Subsystems ('858) Patent Litig., Master Case: 1:10-ml-02181-LJM-DML, Related Case: 1:13-mc-00058-LJM-DML, 2014 U.S. Dist. LEXIS 88512, at *28-29 (S.D. Ind. June 30, 2014)
("In this court's view, making the date litigation was anticipated the only touchstone threatens to eviscerate the general principle that an attorney's work in preparing and prosecuting a patent application is not work product at all because the work is for a non-adversarial ex parte proceeding. That mechanical test supplants the substantive inquiry of the primary motivating purpose test. That test is required in many circumstances precisely because litigation (or anticipated litigation) coincides with non-litigation reasons for the creation of a document or the generation of legal theories. Just as where the primacy of an ordinary business purpose for a lawyer's work defeats a work product claim, so should it where the primary purpose is the ex parte prosecution of the patent application, even when a litigation-related purpose may also be served.")

Case Date Jurisdiction State Cite Checked
2014-06-30 Federal IN

Chapter: 38.501
Case Name: In re Method of Processing Ethanol Byproducts and Related Subsystems ('858) Patent Litig., Master Case: 1:10-ml-02181-LJM-DML, Related Case: 1:13-mc-00058-LJM-DML, 2014 U.S. Dist. LEXIS 88512, at *26 (S.D. Ind. June 30, 2014)
("Inquiry into the 'primary motivating purpose' is the generally accepted standard for determining whether information created for dual purposes is work product or not.")

Case Date Jurisdiction State Cite Checked
2014-06-30 Federal IN

Chapter: 38.501
Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 77 (Va. Cir. Ct. 2001)
(citing an affidavit in holding that documents were produced "primarily because of the prospect of litigation," and therefore deserved work product protection)

Case Date Jurisdiction State Cite Checked
2001-01-01 Federal VA

Chapter: 38.502
Case Name: United States ex rel. Rubar v. Hayner Hoyt Corp., No. 5:14-CV-830 (GLS/CFH), 2018 U.S. Dist. LEXIS 189274 (N.D.N.Y. Nov. 5, 2018)
January 23, 2019 (PRIVILEGE POINTS)

"Courts Issue Conflicting Work Product Doctrine Opinions: Part I"

Ironically, federal and state courts applying their succinct work product rules exhibit more diversity than when construing the more complex and mostly common law attorney-client privilege. One difference focuses on whether the work product doctrine protects: (1) only documents created solely for litigation purposes; or (2) documents created "because of" the litigation, even if they were also motivated by other factors.

In United States ex rel. Rubar v. Hayner Hoyt Corp., No. 5:14-CV-830 (GLS/CFH), 2018 U.S. Dist. LEXIS 189274 (N.D.N.Y. Nov. 5, 2018), a New York federal court upheld defendants' work product claim for a report analyzing possible civil or criminal claims against another party. The court explained that defendants "have demonstrated that [litigation] was one of the purposes of the Report" – and emphasized that "defendants are not required to prove that their sole or primary purpose in obtaining the Report was litigation." Id. at *11 (footnote omitted). Four days later, in Noven Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp., No. 654740/2016, 2018 N.Y. Misc. LEXIS 5133 (N.Y. Sup. Ct. Nov. 9, 2018), a New York state court took the opposite approach. The court held that defendant's valuation of joint venture assets did not deserve work product protection under New York state courts' different work product rule, because defendant "did not demonstrate that the report was created solely and exclusively in anticipation of litigation." Id. at *9.

Because the work product doctrine rests on court rules (which sometimes differ among federal and state courts in the same state), courts do not conduct a choice of laws analysis. Instead, they simply apply their own rule, and their own interpretation of that rule. Because corporate defendants usually do not know where they will be sued, they cannot fully analyze their available work product protection until litigation begins. Next week's Privilege Point will discuss another variation.

Case Date Jurisdiction State Cite Checked
2018-11-05 Federal NY
Comment:

key case


Chapter: 38.502
Case Name: Montagano v. Safeco Insurance Co. of America, Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018)
October 17, 2018 (PRIVILEGE POINT)

Court Analyzing the Work Product Doctrine Explains the "Ordinary Course of Business" Concept

Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a more subtle analysis.

In Montagano v. Safeco Insurance Co. of America, the court correctly recognized that defendant "misses the point" by arguing that the work product doctrine applied because "the disputed documents were not created in the ordinary course of business." Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018). As the court explained, "[t]he critical inquiry here is not whether the materials at issue were created in the ordinary course of Defendant's business, it is whether Defendant prepared the materials in anticipation of litigation." Id. The court found that defendant had not.

To be sure, documents created in the "ordinary course of business" generally do not deserve work product protection. But even documents created in extraordinary circumstances do not deserve work product protection -- unless they were motivated by litigation or anticipated litigation. For instance, the Southern District of New York rejected a lender's work product claim for documents it created after the unique September 11 World Trade Center attack – holding that business rather than litigation concerns motivated the documents' creation.

Case Date Jurisdiction State Cite Checked
2018-08-14 Federal

Chapter: 38.502
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: 38.502
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
Comment:

key case


Chapter: 38.502
Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
(finding that a report deserved privilege protection; focusing on the label describing the report as work product; "'Payne and Tillman were decided after Phillips, Carr, and Rackliff; the court in those cases found them to be legally distinct based on a circuit split. Payne and Tillman made clear that it used the 'primary motivating purpose' test in determining whether work-product applied, as compared to the 'because of' standard used in the Third Circuit and in Carr. . . . While other courts have distinguished these two standards, Third Circuit courts have found them to be analogous.'")

Case Date Jurisdiction State Cite Checked
2014-04-24 Federal PA

Chapter: 38.502
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 621-22 (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; "Documents created for a concurrent purpose, i.e., not made 'because of' the anticipation of litigation but rather for other purposes in addition to the preparation for litigation, are not protected by work-product immunity. This causation test is read along with a test of the reasonableness of the party's assertion that the documents were prepared in anticipation of litigation or for trial." (footnote omitted))

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

Chapter: 38.503
Case Name: United States ex rel. Rubar v. Hayner Hoyt Corp., No. 5:14-CV-830 (GLS/CFH), 2018 U.S. Dist. LEXIS 189274 (N.D.N.Y. Nov. 5, 2018)
January 23, 2019 (PRIVILEGE POINTS)

"Courts Issue Conflicting Work Product Doctrine Opinions: Part I"

Ironically, federal and state courts applying their succinct work product rules exhibit more diversity than when construing the more complex and mostly common law attorney-client privilege. One difference focuses on whether the work product doctrine protects: (1) only documents created solely for litigation purposes; or (2) documents created "because of" the litigation, even if they were also motivated by other factors.

In United States ex rel. Rubar v. Hayner Hoyt Corp., No. 5:14-CV-830 (GLS/CFH), 2018 U.S. Dist. LEXIS 189274 (N.D.N.Y. Nov. 5, 2018), a New York federal court upheld defendants' work product claim for a report analyzing possible civil or criminal claims against another party. The court explained that defendants "have demonstrated that [litigation] was one of the purposes of the Report" – and emphasized that "defendants are not required to prove that their sole or primary purpose in obtaining the Report was litigation." Id. at *11 (footnote omitted). Four days later, in Noven Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp., No. 654740/2016, 2018 N.Y. Misc. LEXIS 5133 (N.Y. Sup. Ct. Nov. 9, 2018), a New York state court took the opposite approach. The court held that defendant's valuation of joint venture assets did not deserve work product protection under New York state courts' different work product rule, because defendant "did not demonstrate that the report was created solely and exclusively in anticipation of litigation." Id. at *9.

Because the work product doctrine rests on court rules (which sometimes differ among federal and state courts in the same state), courts do not conduct a choice of laws analysis. Instead, they simply apply their own rule, and their own interpretation of that rule. Because corporate defendants usually do not know where they will be sued, they cannot fully analyze their available work product protection until litigation begins. Next week's Privilege Point will discuss another variation.

Case Date Jurisdiction State Cite Checked
2018-11-05 Federal NY
Comment:

key case


Chapter: 38.503
Case Name: Montagano v. Safeco Insurance Co. of America, Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018)
October 17, 2018 (PRIVILEGE POINT)

Court Analyzing the Work Product Doctrine Explains the "Ordinary Course of Business" Concept

Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a more subtle analysis.

In Montagano v. Safeco Insurance Co. of America, the court correctly recognized that defendant "misses the point" by arguing that the work product doctrine applied because "the disputed documents were not created in the ordinary course of business." Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018). As the court explained, "[t]he critical inquiry here is not whether the materials at issue were created in the ordinary course of Defendant's business, it is whether Defendant prepared the materials in anticipation of litigation." Id. The court found that defendant had not.

To be sure, documents created in the "ordinary course of business" generally do not deserve work product protection. But even documents created in extraordinary circumstances do not deserve work product protection -- unless they were motivated by litigation or anticipated litigation. For instance, the Southern District of New York rejected a lender's work product claim for documents it created after the unique September 11 World Trade Center attack – holding that business rather than litigation concerns motivated the documents' creation.

Case Date Jurisdiction State Cite Checked
2018-08-14 Federal

Chapter: 38.503
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: 38.503
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
Comment:

key case


Chapter: 38.503
Case Name: FastVDO, LLC v. AT&T Mobility LLC, Case No.: 16-CV-385-H (WVG), 2016 U.S. Dist. LEXIS 146373 (S.D. Cal. Oct. 21, 2016)
(holding that a nondisclosure agreement between two companies prevented waiver of work product; "The Court finds the Subject Documents were prepared in anticipation of litigation. The various documents lodged with the Court corroborate Plaintiff's assertion that Plaintiff and Dr. Meany communicated about the prospect of litigation prior to Plaintiff's decision to purchase the asserted patent. The specific terms of the final purchase agreement between Plaintiff and Boeing further demonstrate that the discussions between Boeing and Plaintiff, along with the Subject Documents, were done in anticipation of litigation. Additionally, the relatively short remaining life of the Patent at the time of its acquisition is further evidence the Patent was purchased for litigation purposes."; "The Court further finds that even if litigation was not the sole purpose for the creation of the Subject Documents, the totality of the circumstances indicate the Subject Documents, at a minimum, served a dual purpose. The Subject Documents include claim charts and infringement analyses, which are recurrently utilized in both patent law suits and licencing agreements. In this instance, the litigation purpose of the Subject Documents permeates any potential non-litigation purpose so much so that the two cannot be separated. In sum, the communications between Plaintiff and Boeing, paired with the remaining short life of the patent, demonstrate to the Court that the documents were created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2016-10-21 Federal CA
Comment:

key case


Chapter: 38.503
Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)
("Whether a document receives work product protection depends upon why it was created. Courts generally apply either the broader 'because of litigation' test or the narrower 'primary purpose' test. In the context of litigation funding, the choice of test may be outcome-determinative. Delaware applies the 'because of' test. Accordingly, a document created because of litigation likely is entitled to work product protection."

Case Date Jurisdiction State Cite Checked
2015-02-24 State DE

Chapter: 38.503
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: 38.505
Case Name: FastVDO, LLC v. AT&T Mobility LLC, Case No.: 16-CV-385-H (WVG), 2016 U.S. Dist. LEXIS 146373 (S.D. Cal. Oct. 21, 2016)
(holding that a nondisclosure agreement between two companies prevented waiver of work product; "The Court finds the Subject Documents were prepared in anticipation of litigation. The various documents lodged with the Court corroborate Plaintiff's assertion that Plaintiff and Dr. Meany communicated about the prospect of litigation prior to Plaintiff's decision to purchase the asserted patent. The specific terms of the final purchase agreement between Plaintiff and Boeing further demonstrate that the discussions between Boeing and Plaintiff, along with the Subject Documents, were done in anticipation of litigation. Additionally, the relatively short remaining life of the Patent at the time of its acquisition is further evidence the Patent was purchased for litigation purposes."; "The Court further finds that even if litigation was not the sole purpose for the creation of the Subject Documents, the totality of the circumstances indicate the Subject Documents, at a minimum, served a dual purpose. The Subject Documents include claim charts and infringement analyses, which are recurrently utilized in both patent law suits and licencing agreements. In this instance, the litigation purpose of the Subject Documents permeates any potential non-litigation purpose so much so that the two cannot be separated. In sum, the communications between Plaintiff and Boeing, paired with the remaining short life of the patent, demonstrate to the Court that the documents were created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2016-10-21 Federal CA
Comment:

key case


Chapter: 38.601
Case Name: Blais v. Cheramie Marine Mgmt., Inc., Civ. A. No. 12-2736 SECTION "R" (2), 2013 U.S. Dist. LEXIS 111307, at *4 (E.D. La. Aug. 7, 2013)
(using the "'aid in possible future litigation'" standard (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal LA B 4/14

Chapter: 38.601
Case Name: Keaton v. Hannum, No. 1:12-cv-00641-SEB-MJD, 2013 U.S. Dist. LEXIS 60519, at *19 (S.D. Ind. Apr. 29, 2013)
(finding that defendant's communications with a bar disciplinary commission did not deserve work product protection; using the "aid" test for work product; "Zook's [defendant] communications with the Disciplinary Commission did not aid in Zook's defense of Keaton's claims against her.")

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

Chapter: 38.601
Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *11 (W.D. Pa. Apr. 3, 2013)
(finding that the work product doctrine did not apply under the "'aid in possible future litigation'" test (citation omitted); pointing to the following deposition testimony: "Q. Would you agree with me that anytime someone gets injured either for Mon River or Consol or whoever gets injured there is the possibility of litigation?"; "A. I would imagine, yes. It's the Jones Act.'")

Case Date Jurisdiction State Cite Checked
2013-04-03 Federal PA B 3/14

Chapter: 38.601
Case Name: Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893 (JS) (AKT), 2013 U.S. Dist. LEXIS 47031, at *12-13 (E.D.N.Y. Mar. 29, 2013)
("Defendants should bear in mind that the party seeking to assert the work product privilege bears the burden of establishing that the documents were prepared to assist in anticipated or ongoing litigation.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal NY B 3/14

Chapter: 38.601
Case Name: Judicial Watch, Inc. United States Dep't of Homeland Sec., 926 F. Supp. 2d 121, 138 (D.D.C. Feb. 28, 2013)
("[T]he motivational element[] demands that the document be prepared or obtained because of the prospect of litigation. . . . In this respect, the proponent bears the burden of 'showing that the documents were prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-28 Federal DC B 3/14

Chapter: 38.601
Case Name: In re McDowell, 483 B.R. 472, 494 (Bankr. S.D. Tex. 2012)
("The attorney work-product privilege can apply where litigation is not imminent, as long as the 'primary motivating purpose behind the creation of the document was to aid in possible future litigation.'" (citation omitted))

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

Chapter: 38.603
Case Name: Chan v. Big Geyser, Inc., No. 17-CV-06473 (ALC) (SN), 2018 U.S. Dist. LEXIS 198776 (S.D.N.Y. Nov. 21, 2018)
January 30, 2019 (PRIVILEGE POINTS)

"Courts Issue Conflicting Work Product Doctrine Opinions: Part II"

Last week's Privilege Point discussed a New York federal court's and a New York state court's opposite positions on a key work product issue.

Courts also disagree about whether the work product doctrine can extend to non-substantive documents such as litigation-related transmittal memos, email message traffic about scheduling meetings, etc. On its face, the rule should cover such documents. See, e.g., Breneisen v. Motorola, Inc., No. 02 C 50509, 2003 U.S. Dist. LEXIS 11485, at *15-16 (N.D. Ill. July 3, 2003) ("While most of these documents are merely communications regarding deposition dates and schedules, they fit under the work-product privilege."). But most courts require substantive content. In Chan v. Big Geyser, Inc., No. 17-CV-06473 (ALC) (SN), 2018 U.S. Dist. LEXIS 198776 (S.D.N.Y. Nov. 21, 2018), Judge Netburn rejected defendants' work product claim for its COO's litigation-related statements in weekly corporate reports. The court found those statements "analogous to an internal public relations campaign" – acknowledging that "even though the statements may have been created 'because of' Plaintiffs' lawsuit, they are not protected under work product immunity because they do not relate to Defendants' legal strategy." Id. at *7, *9.

Lawyers must familiarize themselves with the pertinent courts' and sometimes even presiding judges' interpretation of applicable work product rules – remembering the enormous and often dispositive disagreements about the doctrine's application.

Case Date Jurisdiction State Cite Checked
2018-11-21 Federal NY
Comment:

key case


Chapter: 38.603
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506, at *5 (D. Del. Feb. 9, 2018)
May 2, 2018 (PRIVILEGE POINT)

"Courts Debate Work Product Issues: Part III"

The last two Privilege Points have addressed courts' troubling disagreements about the meaning of two federal rule sentences articulating the important work product doctrine protection. Surprisingly, courts cannot even agree on the basic reach of that qualified immunity.

In Acceleration Bay LLC v. Activision Blizzard, Inc., the court held that a document can deserve work product protection only if "the court finds that the 'primary' purpose behind its creation was to aid in possible future litigation." Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506, at *5 (D. Del. Feb. 9, 2018) (emphasis added). Most courts take a broader view – extending the protection to documents which might not be used to "aid" in the litigation, but which a litigant or would-be litigant created "because of" litigation or anticipated litigation. That might seem like a subtle distinction, but can have enormous consequences. For instance, in Acceleration Bay the court found the work product doctrine inapplicable to documents plaintiff had provided to a litigation funder or the funder's law firm Reed Smith. The court explained that "[t]he documents were thus prepared with a 'primary' purpose of obtaining a loan, as opposed to aiding in possible future litigation." Id. at *6. Those documents presumably would have deserved protection under the broader "because of" standard. Under the District of Delaware's restrictive view, work product protection apparently would not extend to litigants' documents reflecting internal discussions about how to pay for a possible adverse judgment.

Most courts follow the more expansive "because of" approach. But as mentioned in an earlier Privilege Point, corporations normally do not know in advance where they might be sued – so they may not know whether that court's minority work product view may strip away protection that other courts would recognize.

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal DE
Comment:

key case


Chapter: 38.603
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. No. 16-453-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018)
(holding that the work product doctrine did not protect communications to and from a litigation finance company and its lawyer Reed Smith, and that the litigant and its litigation funder did not share a common interest sufficient to avoid waiving privilege protection; "A document will be granted protection from disclosure if the court finds that the 'primary' purpose behind its creation was to aid in possible future litigation. Id. at 1266."; "Here, Plaintiff has characterized the communications as being created 'for the purpose of obtaining funding to assert [the] patents.' (D.I. 379 at 3). The communications were exchanged before Hamilton Capital had agreed to fund Plaintiffs litigation, and before Plaintiff filed [*6] any litigation."; "The documents were thus prepared with a 'primary' purpose of obtaining a loan, as opposed to aiding in possible future litigation. For that reason alone, the communications are not work product."; "Furthermore, if a document sought 'is prepared for a nonparty to the litigation, work product protection does not apply, even if the nonparty is a party to closely related litigation.' 6 James Wm. Moore et al., Moore's Federal Practice § 26.70 (3d ed. 2015); see also In re Cal. Pub. Utils. Comm 'n, 892 F.2d 778, 781 (9th Cir. 1989). Here, Hamilton Capital is not a party to the litigation. For that separate reason, the communications are not work product.")

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal DE
Comment:

key case


Chapter: 38.603
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: 38.603
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not following the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "According to Rowen [Celanese's corporation's in-house lawyer], the primary purpose for the investigation and creation of documents and communications therefrom was to aid Celanese in preparing to defend itself in anticipated litigation. As a secondary concern, the information communicated from the investigative team to the legal department was necessary for the legal department to provide Celanese with business and legal advice with respect to the potential termination of employees involved in the accident. The team members were immediately informed that the investigation was for the purpose of assisting counsel and that all communications and documents generated during their investigation must be kept confidential and marked as 'Privileged and Confidential' or 'Attorney-Client Privilege -- Attorney Work Product.' The investigative team conducted interviews and site inspections and communicated their findings to the Celanese Law Department. They prepared a root cause analysis which was necessary for the Celanese Law Department to evaluate liability and begin developing a strategy for defending itself in likely civil and regulatory litigation. Rowen states, 'All of the communications withheld by Celanese were communications between Celanese in-house and outside counsel and their representatives made for the purposes of providing and communicating legal advice or otherwise facilitating or providing professional legal services.'"; "Plaintiffs cite no Texas authority for their position that the communication must have been made for the primary purpose of soliciting legal, rather than business advice. And the federal decisions supporting Plaintiffs' position are not binding on our court. More important, the language of Rule 503(b) does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX
Comment:

key case


Chapter: 38.603
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)
("To qualify for protection under the work product doctrine, 'the primary motivating purpose behind the creation of a document . . . must be to aid in possible future litigation.'")

Case Date Jurisdiction State Cite Checked
2017-01-10 Federal IN

Chapter: 38.603
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)
("Defendants have not offered any indication of how they plan to use the document in this or any other litigation that they may have reason to anticipate.")

Case Date Jurisdiction State Cite Checked
2017-01-10 Federal IN

Chapter: 38.603
Case Name: EEOC v. Sterling Jewelers, Inc., 08-CV-0706-RJA-MJR, 2017 U.S. Dist. LEXIS 3011 (W.D.N.Y. Jan. 3, 2017)
("A party asserting the work-product doctrine must demonstrate that the document was prepared by or at the behest of counsel principally or exclusively to assist in anticipated or ongoing litigation.")

Case Date Jurisdiction State Cite Checked
2017-01-03 Federal NY

Chapter: 38.603
Case Name: Lynk Labs, Inc. v. Juno Lighting LLC, No. 15 C 4833, 2016 U.S. Dist. LEXIS 145853 (N.D. Ill. Oct. 21, 2016)
(holding that the work product doctrine did not protect a litigant's price reduction, because that was not analogous to a reserve dollar amount; "Defendants contend that the amount of the purchase price reduction is protected by the work product doctrine."; "[T]he amount of the purchase price reduction agreed to by these entities does not reveal counsel's strategies, legal theories, or mental impressions. Furthermore, the work product doctrine does not protect bare facts."; "Moreover, Defendants have not established that the primary motivating purpose behind the purchase price reduction was to aid in this litigation."; "[C]ounsel is not seeking protection for his assessment of the potential exposure and cost of the current litigation; instead, the amount of the reduction was a business decision based not only on counsel's input but also on negotiations between the buyer and seller, Acuity and Schneider. Thus, the facts here are more comparable to those in Nat'l Union Fire Ins. Co. v. Cont'l Illinois Grp., No. 85 C 7080, 1988 U.S. Dist. LEXIS 7826, 1988 WL 79513, at *2 (N.D. Ill. July 22, 1988), where the court found no work product protection because the litigation reserve was established by company management with counsel input.")

Case Date Jurisdiction State Cite Checked
2016-10-21 Federal IL

Chapter: 38.603
Case Name: In re Symbol Technologies, Inc. Sec. Litig., CV 05-3923 (DRH) (AKT), 2016 U.S. Dist. LEXIS 139200 (E.D.N.Y. Sept. 30, 2016)
(the work product doctrine protected documents created during a company's investigation of accounting problems; also holding that disclosure to the SEC did not waive the work product doctrine, because the SEC and the company had a common interest in complying with an earlier consent decree; "'Because the work product protection arises only for materials 'prepared in anticipation of litigation,' the doctrine is not satisfied merely by a showing that the material was prepared at the behest of a lawyer or was provided to a lawyer. Rather the materials must result from the conduct of 'investigative or analytical tasks to aid counsel in preparing for litigation.'")

Case Date Jurisdiction State Cite Checked
2016-09-30 Federal NY

Chapter: 38.603
Case Name: McKinney/Pearl Restaurant Partners, L.P. v. Metropolitan Life Insurance Co., No. 3:14-cv-2498-B, 2016 U.S. Dist. LEXIS 68354 (N.D. Tex. May 25, 2016)
("The Court has carefully reviewed the Affidavit of Kim Forsythe . . . as to the remaining privilege log entries in dispute and determines that, for many of the reasons discussed in Defendants' reply in support of their Second MTC, Plaintiff has failed to meet its burden to establish that the primary motivating purpose behind the creation of the following Category 1 documents was to aid in possible future or ongoing litigation or that the documents otherwise were prepared by Plaintiff's representative in anticipation of litigation as required for work-product protection.")

Case Date Jurisdiction State Cite Checked
2016-05-25 Federal TX

Chapter: 38.603
Case Name: Weinrib v. Winthrop-University Hospital, CV 14-953 (JFB) (AKT), 2016 U.S. Dist. LEXIS 37102 (E.D.N.Y. March 22, 2016)
(holding that a hospital's complaint filed did not deserve work product protection; "'Because the work product protection arises only for materials 'prepared in anticipation of litigation,' the doctrine is not satisfied merely by a showing that the material was prepared at the behest of a lawyer or was provided to a lawyer. Rather the materials must result from the conduct of 'investigative or analytical tasks to aid counsel in preparing for litigation.'" Wultz v. Bank of China Ltd., 304 F.R.D. 384, 393-94 (S.D.N.Y. 2015) (quoting Costabile v. Westchester, N.Y., 254 F.R.D. 160, 164 (S.D.N.Y. 2008))."; "In the instant case, Winthrop has failed to meet its 'heavy burden' of establishing the applicability of the work product privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal NY

Chapter: 38.603
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: 38.603
Case Name: Cantu v. Titlemax, Inc., 5:14-CV-628 RP, 2015 U.S. Dist. LEXIS 139406 (W.D. Tex. Oct. 9, 2015)
(disclosing privileged communications to an accountant waived the privilege protection, and that documents an accountant created did not deserve work product protection because they would not be used to "aid" in litigation; "PRIV001 was prepared pursuant to the request of a third-party accounting firm that was examining Defendant's financial statements. It was not prepared with the purpose of aiding in any litigation. However, PRIV001 does include an attorney's impression as to the likelihood of success in a pending case, as well as a summary of research that speaks to the scope of potential liability. Accordingly, the question for the Court is whether documents or analyses that assess the business risk posed by litigation, and thus, are directed toward a business end are protected under the 'primary motivating purpose' test."; "In light of the Fifth Circuit precedent established in El Paso [United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982)] and Gulf Oil [United States v. Gulf Oil Corp., 760 F.2d 292 (Temp. Emer. Ct. App. 1985)], the Court finds that the PRIV001 was not created with the "primary motivating purpose" of aiding litigation.")

Case Date Jurisdiction State Cite Checked
2015-10-09 Federal TX

Chapter: 38.603
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("In Maine, the party seeking protection from the work product doctrine 'must show that the documents were prepared principally or exclusively to assist in anticipated or ongoing litigation.'"; "Under the standard set forth in Springfield Terminal [Springfield Terminal, 2000 ME 126, ¶ 19, 754 A.2d 353], the party seeking protection from the work product doctrine must demonstrate that the documents were prepared exclusively to assist in anticipated or ongoing litigation.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 38.603
Case Name: Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015)
June 10, 2015 (PRIVILEGE POINT)

“Courts Disagree About Basic Work Product Doctrine Elements: Part I”

The Federal Rules of Civil Procedure and most state court rules memorialize their basic work product doctrine in just one sentence. But courts take divergent views on what that sentence means.

Some courts apply work product protection only to documents that litigants will use to "assist" in litigation. Other courts protect documents created "because of" the litigation, even though they will not be used to "assist" in that litigation. In Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, the court noted that under Second Circuit precedent "the phrase 'because of' trumps 'assist in' as the talisman by which a document's eligibility for attorney work product protection will be evaluated." Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015). Three days later, in Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), the court took the same approach — noting that "[n]umerous courts of appeals have specifically adopted the 'because of' test." Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015). But a month earlier, a Maine state court applying that state's work product rule (essentially identical to the federal rule) held that a party seeking work product doctrine protection "must demonstrate that the documents were prepared exclusively to assist in anticipated or ongoing litigation." Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015).

The "because of" standard casts a far wider protective net than the "assist" standard. For instance, corporations communicating about how they might pay for an adverse judgment might create documents satisfying the former standard but not the latter. Next week's Privilege Point will address other work product variations.

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX
Comment:

key case


Chapter: 38.603
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015)
June 10, 2015 (PRIVILEGE POINT)

“Courts Disagree About Basic Work Product Doctrine Elements: Part I”

The Federal Rules of Civil Procedure and most state court rules memorialize their basic work product doctrine in just one sentence. But courts take divergent views on what that sentence means.

Some courts apply work product protection only to documents that litigants will use to "assist" in litigation. Other courts protect documents created "because of" the litigation, even though they will not be used to "assist" in that litigation. In Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, the court noted that under Second Circuit precedent "the phrase 'because of' trumps 'assist in' as the talisman by which a document's eligibility for attorney work product protection will be evaluated." Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015). Three days later, in Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), the court took the same approach — noting that "[n]umerous courts of appeals have specifically adopted the 'because of' test." Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015). But a month earlier, a Maine state court applying that state's work product rule (essentially identical to the federal rule) held that a party seeking work product doctrine protection "must demonstrate that the documents were prepared exclusively to assist in anticipated or ongoing litigation." Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015).

The "because of" standard casts a far wider protective net than the "assist" standard. For instance, corporations communicating about how they might pay for an adverse judgment might create documents satisfying the former standard but not the latter. Next week's Privilege Point will address other work product variations.

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT
Comment:

key case


Chapter: 38.603
Case Name: Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015)
June 10, 2015 (PRIVILEGE POINT)

“Courts Disagree About Basic Work Product Doctrine Elements: Part I”

The Federal Rules of Civil Procedure and most state court rules memorialize their basic work product doctrine in just one sentence. But courts take divergent views on what that sentence means.

Some courts apply work product protection only to documents that litigants will use to "assist" in litigation. Other courts protect documents created "because of" the litigation, even though they will not be used to "assist" in that litigation. In Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, the court noted that under Second Circuit precedent "the phrase 'because of' trumps 'assist in' as the talisman by which a document's eligibility for attorney work product protection will be evaluated." Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015). Three days later, in Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), the court took the same approach — noting that "[n]umerous courts of appeals have specifically adopted the 'because of' test." Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015). But a month earlier, a Maine state court applying that state's work product rule (essentially identical to the federal rule) held that a party seeking work product doctrine protection "must demonstrate that the documents were prepared exclusively to assist in anticipated or ongoing litigation." Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015).

The "because of" standard casts a far wider protective net than the "assist" standard. For instance, corporations communicating about how they might pay for an adverse judgment might create documents satisfying the former standard but not the latter. Next week's Privilege Point will address other work product variations.

Case Date Jurisdiction State Cite Checked
2015-03-17 State ME
Comment:

key case


Chapter: 38.603
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"; using the "assist" work product test)

Case Date Jurisdiction State Cite Checked
2015-01-05 Federal LA

Chapter: 38.603
Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("The court must also examine whether the sought-after documents convey an attorney's thought processes and mental impressions. . . . Documents created in the ordinary course of business or that would have been created irrespective of litigation are not entitled to work-product protection. . . . Documents that are not primarily legal in nature are also not protected under the work-product doctrine. . . . In other words, the 'primary motivating purpose behind the creation of a document' must be to aid in possible future litigation.")

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

Chapter: 38.603
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(using the "assist" standard for work product; "[T]he Court notes that the Eleventh Circuit's 'primary purpose' standard in some cases may be less protective of potential work product than the standard employed by other circuits.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.603
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(finding that a company's report about alleged failures of a medical device did not deserve work product protection; "Defendants' Motions rely primarily upon the Passero Affidavit, the November 2004 Contract, and excerpts from Dr. Lehmann's deposition, rather than on the contents of the Report itself. The Court will consider each item in turn and then address other record evidence."; "Although the Passero Affidavit supports Defendants' claim that the Lehmann Report is protected work product, it does so in a conclusory, vague, and unconvincing manner, generally employing labels rather than specific facts."; "The affidavit does not, however, describe how the report was used or intended to be used to aid Defendants in preparing for trial or anticipated litigation. Moreover, the affidavit fails to identify any specific case, claim, or incident, or the timing thereof."; "The November 2004 Contract is similarly conclusory and unpersuasive. Although it does show that the Report was prepared pursuant to this separate contract, it adds little to the Report itself. For example, like the Report, it contains no reference to any particular claim, anticipated or otherwise, or any particular set of facts that caused Defendants concern over potential litigation. Although the November 2004 Contract does affix the conclusory label '[i]n anticipation of litigation' in connection with the services to be provided, the Court finds nothing else in the contract to support this label."; also finding that the report did not deserve attorney-client privilege protection)

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.603
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *5 (N.D. Tex. Feb. 27, 2014)
("A document need not be generated in the course of an ongoing lawsuit in order to qualify for work product protection. . . . But 'the primary motivating purpose' behind the creation of the document must be to aid in possible future litigation.")

Case Date Jurisdiction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 38.603
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)
(using the "aid" test)

Case Date Jurisdiction State Cite Checked
2014-02-19 Federal FL

Chapter: 38.603
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: 38.603
Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *55-56, *56 (N.D. Ill. Jan. 6, 2014)
(analyzing the waiver effect of a company disclosing work product-protected documents to a litigation funding company; concluding that (1) the litigation funding arrangement was not unlawful champerty or maintenance; (2) the arrangement between the company and the litigation funding company was not relevant and therefore was not discoverable; (3) the company's estimate of its chance of success was not admissible because it was opinion work product; (4) the company waived privilege protection for any documents shared with a litigation funding company, because they did not share a common legal interest; and (5) the company waived work product protection by disclosing its work product to prospective funders with which the company did not have a confidentiality agreement; "Any documents containing Miller's lawyers' mental impressions, theories and strategies about Caterpillar's claimed misappropriation of trade secrets that were given to prospective funders were only prepared 'because of' the litigation."; "[A] review of the documents reveals quite clearly that a number of them were prepared to aid Miller's counsel in the preparation of the case. Materials that contain counsel's theories and mental impressions created to analyze Miller's case do not necessarily cease to be protected because they may also have been prepared or used to help Miller obtain financing.")

Case Date Jurisdiction State Cite Checked
2014-01-06 Federal IL B 5/14

Chapter: 38.603
Case Name: McPherson v. Wells Fargo Bank, N.A., Case No. 13-CIV-20545-MOORE/TORRES, 2013 U.S. Dist. LEXIS 150441, at *3-4 (S.D. Fla. Oct. 4, 2013)
(holding that the work product doctrine did not protect documents created after an injury occurring at a bank; "We find that Defendant has not demonstrated that the incident report was prepared in anticipation of litigation. Fernandez never said in her deposition that she was instructed to contact Risk Management and fill out and submit an online form each time an accident occurred because litigation was likely to ensue. To the contrary, she acknowledged that preparing incident reports was an ordinary part of her duties as a manager. . . . Nothing Fernandez said during her deposition or in her affidavit suggests that 'the primary motivating purpose behind the creation of the document was to aid in possible future litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-10-04 Federal FL B 5/14

Chapter: 38.603
Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *40 (S.D. Ga. May 8, 2013)
(articulating the "aid" standard for work product protection)

Case Date Jurisdiction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 38.603
Case Name: Judicial Watch, Inc. United States Dep't of Homeland Sec., 926 F. Supp. 2d 121, 138 (D.D.C. Feb. 28, 2013)
("[T]he motivational element[] demands that the document be prepared or obtained because of the prospect of litigation. . . . In this respect, the proponent bears the burden of 'showing that the documents were prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-28 Federal DC B 3/14

Chapter: 38.603
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 *37 (D.D.C. Feb. 28, 2013)
April 10, 2013 (PRIVILEGE POINT)

"The "Assist" Test vs. the "Because Of" Test for Work Product Protection"

Federal courts disagree on the most elemental issue involving the work product protection – the scope of that protection. The United States Supreme Court may ultimately choose the proper approach.

Some courts limit work product protection to documents "'prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *37 (D.D.C. Feb. 28, 2013) (citation omitted). This "assist" test protects only the type of "raw material" that lawyers prepare in connection with litigation. Other courts take a far broader view, protecting documents prepared "because of" litigation, even if they will not be used to "assist" in the litigation. McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013). An example would be a company's internal documents about how it might pay for a judgment if it loses a case – such documents would not "assist" in the litigation, but would not exist but for the litigation. Even under this broader test, the litigant must show that the withheld documents would not have been prepared "in essentially similar form" absent the litigation or anticipated litigation. Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013).

Because courts apply their own work product rules without a choice of laws analysis, companies normally will not know until they are sued whether they can rely on the more liberal "because of" test – or whether they will have to meet the more demanding "assist" test.

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

key case


Chapter: 38.603
Case Name: Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013)
April 10, 2013 (PRIVILEGE POINT)

"The "Assist" Test vs. the "Because Of" Test for Work Product Protection"

Federal courts disagree on the most elemental issue involving the work product protection – the scope of that protection. The United States Supreme Court may ultimately choose the proper approach.

Some courts limit work product protection to documents "'prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *37 (D.D.C. Feb. 28, 2013) (citation omitted). This "assist" test protects only the type of "raw material" that lawyers prepare in connection with litigation. Other courts take a far broader view, protecting documents prepared "because of" litigation, even if they will not be used to "assist" in the litigation. McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013). An example would be a company's internal documents about how it might pay for a judgment if it loses a case – such documents would not "assist" in the litigation, but would not exist but for the litigation. Even under this broader test, the litigant must show that the withheld documents would not have been prepared "in essentially similar form" absent the litigation or anticipated litigation. Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013).

Because courts apply their own work product rules without a choice of laws analysis, companies normally will not know until they are sued whether they can rely on the more liberal "because of" test – or whether they will have to meet the more demanding "assist" test.

Case Date Jurisdiction State Cite Checked
2013-02-27 Federal NY
Comment:

key case


Chapter: 38.603
Case Name: McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013)
April 10, 2013 (PRIVILEGE POINT)

"The "Assist" Test vs. the "Because Of" Test for Work Product Protection"

Federal courts disagree on the most elemental issue involving the work product protection – the scope of that protection. The United States Supreme Court may ultimately choose the proper approach.

Some courts limit work product protection to documents "'prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *37 (D.D.C. Feb. 28, 2013) (citation omitted). This "assist" test protects only the type of "raw material" that lawyers prepare in connection with litigation. Other courts take a far broader view, protecting documents prepared "because of" litigation, even if they will not be used to "assist" in the litigation. McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013). An example would be a company's internal documents about how it might pay for a judgment if it loses a case – such documents would not "assist" in the litigation, but would not exist but for the litigation. Even under this broader test, the litigant must show that the withheld documents would not have been prepared "in essentially similar form" absent the litigation or anticipated litigation. Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013).

Because courts apply their own work product rules without a choice of laws analysis, companies normally will not know until they are sued whether they can rely on the more liberal "because of" test – or whether they will have to meet the more demanding "assist" test.

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

key case


Chapter: 38.604
Case Name: Chan v. Big Geyser, Inc., No. 17-CV-06473 (ALC) (SN), 2018 U.S. Dist. LEXIS 198776 (S.D.N.Y. Nov. 21, 2018)
January 30, 2019 (PRIVILEGE POINTS)

"Courts Issue Conflicting Work Product Doctrine Opinions: Part II"

Last week's Privilege Point discussed a New York federal court's and a New York state court's opposite positions on a key work product issue.

Courts also disagree about whether the work product doctrine can extend to non-substantive documents such as litigation-related transmittal memos, email message traffic about scheduling meetings, etc. On its face, the rule should cover such documents. See, e.g., Breneisen v. Motorola, Inc., No. 02 C 50509, 2003 U.S. Dist. LEXIS 11485, at *15-16 (N.D. Ill. July 3, 2003) ("While most of these documents are merely communications regarding deposition dates and schedules, they fit under the work-product privilege."). But most courts require substantive content. In Chan v. Big Geyser, Inc., No. 17-CV-06473 (ALC) (SN), 2018 U.S. Dist. LEXIS 198776 (S.D.N.Y. Nov. 21, 2018), Judge Netburn rejected defendants' work product claim for its COO's litigation-related statements in weekly corporate reports. The court found those statements "analogous to an internal public relations campaign" – acknowledging that "even though the statements may have been created 'because of' Plaintiffs' lawsuit, they are not protected under work product immunity because they do not relate to Defendants' legal strategy." Id. at *7, *9.

Lawyers must familiarize themselves with the pertinent courts' and sometimes even presiding judges' interpretation of applicable work product rules – remembering the enormous and often dispositive disagreements about the doctrine's application.

Case Date Jurisdiction State Cite Checked
2018-11-21 Federal NY
Comment:

key case


Chapter: 38.803
Case Name: Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kansas Sept. 22, 2015)
(finding that the work product doctrine did not protect a state agency's investigation into the death of a child; rejecting an affidavit claiming such protection; "[T]he DCF policy and procedure manual indicates that an attorney would oversee an investigation following any situation similar to M.B.'s death, regardless of whether litigation was imminent. Such an investigation would occur in DCF's normal course of business. Further, DCF failed to provide any evidence other than Wood's affidavit indicating that the investigation as caused by imminent litigation. Although defendants' position was supported by some evidence -- Wood's affidavit -- the court cannot say with definite and firm conviction that Judge Gale erred in determining that defendants had not carried their burden of proving that the materials were produced at Wood's behest in anticipation of imminent litigation.").

Case Date Jurisdiction State Cite Checked
2015-09-22 Federal KS

Chapter: 38.804
Case Name: Shook v. Love's Travel Stops & Country Stores, Inc., No. CV-17-398, 2017 Ark. App. 666 (Ark. App. Dec. 6, 2017)
(holding that a post-accident incident report did not deserve work product protection because it was prepared in the ordinary course of defendant's business; "In the present case, this incident report was required by Love's internal practices and procedures, was prepared by a store manager immediately after Shook's fall for the express purpose of informing his superiors of what happened, and was prepared years before any litigation ensued. We hold that the report constituted a document prepared in the regular course of business rather than for purposes of the litigation. The trial court erred in finding that it constituted 'work product' as defined under Arkansas law.")

Case Date Jurisdiction State Cite Checked
2017-12-06 Federal AR

Chapter: 38.804
Case Name: Hunton & Williams LLP v. U.S. Environmental Protection Agency, Civ. A. No. 15-1203 (RC), Civ. A. No. 15-1207 (RC), Civ. A. No. 15-1208 (RC), 2017 U.S. Dist. LEXIS 48907 (D.D.C. March 31, 2017)
("The 'because of' test demonstrates the flaw in the Corps' reasoning. Drafts of the AJD were not prepared because of possible litigation. The Corps was required to prepare the AJD, and thus drafts of the AJD, even if it knew that no litigation would ever result. Similarly, the Corps' replies to Congress about the AJD process were not created 'because of' the possibility of future litigation -- unless the Corps would have ignored Congressional inquiries into a less controversial case. The Corps does not attempt to explain how drafts of the AJD constitute attorney work-product.")

Case Date Jurisdiction State Cite Checked
2017-03-31 Federal DC
Comment:

key case


Chapter: 38.804
Case Name: Ambrose-Frazier v. Herzing Inc., Civ. A. No. 15-1324 Section: "E" (3), 2016 U.S. Dist. LEXIS 30174 (E.D. La. March 9, 2016)
(holding that an investigation into alleged racial discrimination conducted by the HR director who also happened to be a lawyer did not deserve work product protection, because it was undertaken in the ordinary course of business pursuant to an internal requirement to investigate all such claims; also finding the company's Faragher-Ellerth defense waived any privilege and work product protection that would have existed; "Baiocchi's notes were created during the investigation conducted by Baiocchi and Olson of Ambrose-Frazier's allegations of workplace discrimination. The investigation, which involved interviews of Ambrose-Frazier and eight other Herzing employees 'in an effort to evaluate Plaintiff's allegations,' was conducted pursuant to Herzing's policy, which required an investigation of each harassment complaint. Herzing argues that the interviews were not conducted in the ordinary course of business but rather 'were conducted for the specific purpose of investigating Plaintiff's April 30, 2013 complaint,' and 'were created in response specifically to Plaintiff's discrimination complaint.' Judge Knowles agreed, finding that '[Baiocchi] prepared the documents in response to a particular circumstance, the accusation by plaintiff against defendants.' Of course, this would be true for every investigation of a harassment complaint conducted pursuant to Herzing's policy; that is, under Herzing's policy, an employee's lodging a complaint of harassment or discrimination would trigger an investigation specific to the allegations the employee made. It is clear that, pursuant to Herzing's policy, the investigation would have been conducted regardless of whether litigation ensued. As a result, the investigation was conducted in the ordinary course of business. Accordingly, the work-product privilege does not apply to Baiocchi's notes."; "Herzing's employee handbook contains a complaint procedure for harassment incidents: 'Upon notification of a harassment complaint, Herzing will conduct a confidential and impartial investigation, which will include interviews with involved parties and, where appropriate, with employees who may be witnesses or have knowledge of matters relating to the complaint. The complaining employee will be notified of the results of the investigation.")

Case Date Jurisdiction State Cite Checked
2016-03-09 Federal LA
Comment:

key case


Chapter: 38.804
Case Name: Hooke v. Foss Maritime Co., Case No.13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. Apr. 10, 2014)
July 30, 2014 (PRIVILEGE POINT)

"Do Corporations Enhance Their Work Product Claims by Sending Post-Accident Reports to Outside Counsel?"

The work product doctrine can protect documents created in anticipation of litigation — as long as they were motivated by that litigation. The doctrine does not protect documents created in the ordinary course of business, or pursuant to some external or internal requirement. In essence, litigants must prove that they did something different or special because they anticipated litigation.

In Hooke v. Foss Maritime Co., Case No.13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. Apr. 10, 2014), defendant claimed work product protection for documents created after plaintiff suffered job-related injuries. After noting that the defendant's internal processes required investigation reports after nearly every accident, the court turned to the company's argument that "the [post-accident] process is overseen in some way by the General Counsel." Id. at *11. The court surmised that "testimony that Internal Incident Investigation Reports are sent to outside counsel in the event that a litigation threat arises is apparently proffered to show its connection with anticipated litigation." Id. However, the court concluded that the testimony hurt defendant's work product claim — because it "actually reveals that those reports are created in substantially the same form regardless of the specific threat of litigation, and the reports are only sent to outside counsel if litigation actually becomes likely." Id. (emphasis added).

Some companies eventually regret their attempt to bolster a work product claim by involving lawyers in the post-accident process. Here, the supposedly helpful testimony instead confirmed that the company prepared the post-accident reports sought by plaintiff in the ordinary course of its business. Ironically, sending every post-accident report to a lawyer might have the same adverse effect — because the company could not prove that it did something different or special because it anticipated litigation.

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal CA
Comment:

key case


Chapter: 38.804
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "Defendant's Safety Management System ('SMS') Manual requires that an Internal Incident Investigation Report and an EIS Report are created after every incident, unless the incident is minor or insufficiently related to employment with the Defendant. . . . Further, company policy requires witnesses to make EIS Witness Statements by filling out preprinted forms as part of standard operating procedure."; essentially rejecting the company's general counsel's affidavit that the documents' creation was motivated by anticipated litigation)

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

Chapter: 38.804
Case Name: Love v. Sears, Roebuck & Co., Civ. A. No. 3:13-CV-402-S, 2014 U.S. Dist. LEXIS 33141, at *2, *4, *4-5 (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."; "On closer analysis of the facts specific to this case, the magistrate judge concludes the incident report is not privileged work product because it was prepared in the ordinary course of business. In his affidavit, Moody acknowledges that he prepared the report to preserve the information in case the claim resulted in future litigation. Sears explains that it has established the policy to have its employees prepare a customer incident report as close to the time of the incident as possible to assist in defending lawsuits. The plaintiff seizes on the Sears company policy and argues that because its employees are required to prepare a report for every incident, the defendant cannot satisfy the Roxworthy [United States v. Roxworthy, 457 F.3d 590 (6th Cir. 2006)] test -- limiting the work-product privilege to documents prepared 'because of' the prospect of litigation."; "The magistrate judge agrees with the plaintiff. Handling claims is part of the ordinary business of a retailer. . . . As its policy requires, every Sears incident report is prepared in the same form, irrespective of anticipated litigation. The policy itself exists because of the prospect of litigation, generally, and this report was completed not because specific facts alerted the report's preparer to expect litigation from this customer. In the magistrate judge's view, absent more fact-specific circumstances, the prospect of litigation remains too remote to justify extending the work-product privilege to the incident report.")

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

Chapter: 38.804
Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec., Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 173162, at *3 (S.D.N.Y. Dec. 6, 2013)
("Because they were created in accordance with a contractual obligation, such analyses are not protected by the work product doctrine unless UBS can show that they were specifically directed to litigation strategy or defenses and were therefore created in a form significantly different than they otherwise would have been.")

Case Date Jurisdiction State Cite Checked
2013-12-06 Federal NY B 5/14

Chapter: 38.804
Case Name: Edwards v. State Casino Control Comm'n, Dkt. No. A-4738-11T4, 2013 N.J. Super. Unpub. LEXIS 2737, at *29 (N.J. Super. Ct. App. Div. Nov. 13, 2013)
(analyzing protection for an internal investigation into a wrongful termination; ultimately requiring an in camera review; "The attorney-client and work-product privileges do not generally apply to documents created during the course of an internal investigation, especially when a defendant uses that investigation as an affirmative defense; such documents are generally not created in anticipation of litigation but to comply with an employer's internal investigative procedures and policies.")

Case Date Jurisdiction State Cite Checked
2013-11-13 State NJ B 5/14

Chapter: 38.804
Case Name: AM Gen. Holdings LLC v. Renco Grp., Inc., C.A. Nos. 7639- & 7668-VCN, 2013 Del. Ch. LEXIS 102, at *3 (Del. Ch. Apr. 18, 2013)
("AMG, as the managing member of Holdco, was, as a matter of contract, required to value the Revalued Capital Accounts. This is a business function, one that on its own would not typically support a decision under the work product doctrine. The individuals who performed the necessary work, or directed the performance of that work, are lawyers. Simply because the persons doing the work are lawyers does not necessarily support the conclusion that lawyer-based privileges are in effect. Fundamental business functions cannot be shielded simply by assigning the tasks to lawyers." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 38.804
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 Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 38.804
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 225 (Va. Cir. Ct. 2010)
("The Defendant in this case, like the one in Wilson, [Wilson v. Norfolk & Portsmouth Belt Line RR., 69 Va. Cir. 153, 165 (Portsmouth 2005)] did respond immediately to the incident. But as discussed earlier, the contents of the internal memorandum at issue here suggest that the Defendant responds immediately to any incident involving its employees, regardless of the extent of their injuries or the possibility that a claim might follow. . . . [T]he Court deems it likely that this Defendant also sees upwards of 90% of all cases involving incident reports result in claims against the company. Even if that is the case, though, 'the fact that a defendant anticipates the contingency of litigation . . . does not automatically qualify an 'in house' report as work product.' National Union Fire Ins. Co., 967 F.2d at 984 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D. D.C. 1982)).")

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

key case


Chapter: 38.804
Case Name: Warner v. United States, C.A. No. 09-036ML, 2009 U.S. Dist. LEXIS 101688, at *7-8 (D.R.I. Nov. 2, 2009)
(denying work product protection for forms created by the Postal Service after an accident; noting that one form indicated that the information would be used for essentially a business purpose; one form was required to be prepared after all accidents, however minor and would be used for essentially business purposes; "PS Form 1769 does not include a statement of purpose but the Postal Service has represented in other litigation that its 'policy requires that any accident involving a motor vehicle, no matter how minor, must be documented by the supervisor in an accident report on Form 1769.'. . . there is absolutely no rationale basis upon which to argue that the 'preventive action' Section on PS Form 1769 was prepared in anticipation of litigation when its stated purpose is to prevent similar accidents in the future.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-11-02 Federal RI

Chapter: 38.804
Case Name: Blough v. Food Lion, Inc., 142 F.R.D. 622, 624 & n.2 (E.D. Va. 1992)
(addressing work product protection for a post-accident incident report prepared by a food store after the plaintiff's injury; ultimately concluding that the report did not deserve work product protection; "At the hearing on July 29, 1992, other than the accident report itself, Food Lion presented no evidence that it wrote the report in anticipation of litigation. . . . It stated through counsel, however, that it routinely creates accident reports for all known third party accidents immediately following the accidents. Food Lion created the accident report in this case on the day Blough was injured in the store. Food Lion did not at that time face an 'actual claim.' Nor has Food Lion presented evidence of circumstances that would suggest that it faced 'a potential claim . . . that reasonably could result in litigation.'" (citation omitted); "Food Lion argued that the form of the report itself and the instructions on it identify it as more than a mere business record; rather, specific language on the report indicates that Food Lion made it in anticipation of litigation. Such form language, however, does not control the determination of whether Food Lion wrote this particular accident report in anticipation of litigation."), vacated and remanded on other grounds by 1993 U.S. App. LEXIS 21725 (4th Cir. August 24, 1993) (unpublished opinion)

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

Chapter: 38.805
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: 38.805
Case Name: CSX Transportation, Inc. v. Chicago South Shore and South Bend Railroad, Cause No. 2:13-CV-285-RL-PRC, 2015 U.S. Dist. LEXIS 13090 (N.D. Ind. Feb. 4, 2015)
(analyzing both party's post-accident documents; concluding that some documents prepared by plaintiff CSX deserved work product protection and some did not; "As an initial matter, the Court is not persuaded by CSX's argument that, because CSX was not required to investigate why CSS's train derailed, CSX's investigation into why CSS's train derailed (as opposed to why its own train derailed) was solely for the purpose of establishing CSS's culpability for damages in anticipation of litigation and not as part of its post-derailment investigation. Whether CSX was required to investigate CSS's derailment is irrelevant. The TAP Committee investigated both derailments as part of its investigation of CSX's derailment.")

Case Date Jurisdiction State Cite Checked
2015-02-04 Federal IN

Chapter: 38.805
Case Name: In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY
Comment:

key case


Chapter: 38.805
Case Name: Pinkney v. Winn-Dixie Stores, Inc., Civil Action No.: CV214-075, 2014 U.S. Dist. LEXIS 129604, at *6 (S.D. Ga. Sept. 15, 2014)
("When an incident occurs in one of Defendant's stores, store employees investigate and create an incident report, which is transmitted to Defendant's claims department and to defense counsel. . . . Defendant's incident report policy appears to exist solely for the purposes of evaluating claims and preparing for the prospect of litigation. The incident report in this case thus falls within the realm of work product.")

Case Date Jurisdiction State Cite Checked
2014-09-15 Federal GA

Chapter: 38.805
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
July 16, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part II"

Last week's Privilege Point described the legal standard and some of the factual bases for the District of Columbia District Court's denial of privilege protection for Kellogg Brown & Root's (KBR) internal corporate investigation. This week’s privilege point tells the good news -- when about three months later, the D.C. Circuit Court of Appeals issued a writ of mandamus reversing the District Court's holding. In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014).

The District of Columbia federal appellate court first rejected the district court's legal standard, holding that the privilege could protect a company's investigation if its need for legal advice was one of the "primary" or "significant" motivating purposes – even if not the only purpose, or the primary purpose. Id. at *13-14. The appeals court also explicitly addressed several factual indicia the district court relied on, holding that (1) KBR's requirement under government regulations to investigate alleged fraud did not preclude KBR's argument that another "significant purpose[]" was seeking legal advice; (2) nonlawyers could conduct privileged employee interviews while "serving as agents of attorneys"; (3) the absence of Upjohn warnings did not prevent privilege protection, because "nothing in Upjohn requires a company to use magic words"; and (4) although the employees' confidentiality agreements did not "expressly" mention KBR's need for legal advice, employees knew the law department was conducting a "sensitive" investigation and were warned not to discuss their interviews without KBR's General Counsel's authorization. Id. at *8-10.

The appeals court's legal standard represents a much more privilege-friendly approach than most courts apply. The standard permits companies to claim privilege protection even for investigations they must undertake pursuant to external requirements -- rather than having to initiate parallel or successive investigations to gain the protection. And the court's analysis of the factual issues provides a much more lenient standard for claiming privilege than most courts would apply. Next week's Privilege Point will discuss what the D.C. Circuit Court of Appeals' decision did not address.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 38.805
Case Name: United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal DC
Comment:

key case


Chapter: 38.805
Case Name: United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal DC
Comment:

key case


Chapter: 38.805
Case Name: In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal
Comment:

key case


Chapter: 38.805
Case Name: DiMaria v. Concorde Entm't, Inc., Civ. No. 12-11139-FDS, 2013 U.S. Dist. LEXIS 112533, at *2, *2-3, *6-7 (D. Mass. Aug. 9, 2013)
(holding that the work product doctrine protected witness statements taken by a tavern after a customer died during an altercation, because statements were not taken pursuant to the tavern's requirement or ordinary course of business; "The defendant's Security Manual contains the following provision: 'At the end of the night, if there have been any incidents that you have been involved with or have witnessed, you are required to complete an incident report and turn it in to the manager that night.' Doc. No. 34-2 at 11 (emphasis in original) (limiting reports to 'only . . . information you have witnessed'). No such reports were prepared on the night of the incident."; noting that the tavern's employees did not prepare such a report, but that the tavern's lawyer later interviewed several employees with "specific questions," and later prepared written statements; "Based on the seriousness of the incident, the defendant retained counsel on August 14, 2010 to conduct an investigation in anticipation of administrative, civil, and criminal litigation that might arise therefrom. On August 16 and 17, 2010, counsel interviewed twenty-one of the defendant's employees who were working on the night of the incident. The interviews were done individually and, after answering specific questions presented by counsel, the employees were asked to write statements about the incident based on their discussions with counsel. The statements were written on the defendant's standard incident report forms, were given directly to counsel, and have been maintained by counsel as confidential work product."; "The plaintiff suggests the statements are not protected work product because they are 'purely factual in nature' and 'were prepared in the ordinary course of business' pursuant to the Safety Manual. . . . The parties agree, however, that statements were not completed on the night of the incident, but were later solicited by counsel from all 'front-of-the-house' employees working at the bar on the night of the incident, irrespective of whether they were 'involved with' or 'witnessed' the dispute. These constitute departures from the routine policy described in the Safety Manual. . . . In addition, the nature of the incident and its effects and counsel's immediate involvement further remove the situation from 'the ordinary course' of the defendant's business. Finally, although the statements likely reflect facts, in part, the attorney's affidavit makes clear that they 'summar[ize] the information that was extracted through [her] inquiry of [each] employee.'. . . In other words, the statements were shaped by specific questions discussed during the attorney's interviews and, thus, their content reflects her strategies, thoughts, and mental impressions. . . . The plaintiff has not refuted this description of the statements' content.")

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

Chapter: 38.805
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: 38.805
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 *16 (E.D. Va. Feb. 14, 2013)
("The Court finds that in this case, the Trustee's argument is too all-encompassing and would result in the loss of work product protection whenever there is a parallel, non-litigation need to conduct an internal investigation. In the case of regulated institutions such as banks, which are always required to conduct investigations into possible money laundering and suspicious activities where such facts arise, this necessarily would mean that banks could never have the protection of the work product doctrine. The Court views the more lenient 'because of' test as being capable of accommodating the need for mandatory internal investigations, while at the same time maintaining work product protection where applicable.")

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

key case


Chapter: 38.805
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: 38.805
Case Name: Cranley v. BMC, 78 Va. Cir. 353, 355 (Va. Cir. Ct. 2009)
("It appears that, in Virginia, courts have differed in what test to apply to determine if something was prepared in anticipation of litigation. Some courts appear to use a 'bright-line rule' test, while others use a 'case by case' test. Under the 'bright-line rule' work product protection comes into effect when an attorney becomes involved in the case. A 'case by case' test is based upon a reasonable foreseeability that litigation could arise considering the factors of the case. Judge W. Allan Sharrett of the Brunswick Circuit Court sets forth a good analysis of the two tests in Hawkins v. Norfolk Southern Ry., 71 Va. Cir. 285 (2006) (a case involving an insurance adjuster's log). All things considered, I think that a 'case by case' test is best because things can be done in anticipation of litigation before an attorney becomes involved.")

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

Chapter: 38.805
Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55, 55-56 (Va. Cir. Ct. 1993)
(holding that the work product doctrine covered an incident report prepared by a K Mart store manager after an accident, since "[t]he document was prepared in accordance with a standard procedure adopted by K Mart, the purpose of which, in part, was to have an investigation undertaken in the event of or in the anticipation of litigation."; indicating that the doctrine protected a K Mart policy manual (to the extent that it instructed employees how to complete the incident form and how to conduct an investigation); "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.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 38.805
Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55 (Va. Cir. Ct. 1993)
(analyzing work product protection for a post-accident incident report prepared by a retail store; ultimately finding that the incident report deserved work product protection, although the store's standard procedure required the report's preparation; "The document was prepared in accordance with a standard procedure adopted by K Mart, the purpose of which, in part, was to have an investigation undertaken in the event of or in the anticipation of litigation. Accordingly, absent a showing that the plaintiff has a substantial need of the incident report and that the plaintiff is unable without due hardship to obtain the equivalent of the information in the report by other means, the motion to compel the production of the incident report is denied.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA B 3/16
Comment:

key case


Chapter: 38.805
Case Name: Upjohn v. United States, 449 U.S. 383, 394 (1981)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
1981-01-01 Federal
Comment:

key case


Chapter: 38.901
Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 724 (E.D. Pa. 2013)
("[T]he Court must determine whether the documents were 'produced because of the prospect of litigation and for no other purpose.'. . . Documents prepared in the ordinary course of business, even if useful in subsequent litigation, are not protected by the work product doctrine.")

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

Chapter: 38.902
Case Name: Montagano v. Safeco Insurance Co. of America, Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018)
October 17, 2018 (PRIVILEGE POINT)

Court Analyzing the Work Product Doctrine Explains the "Ordinary Course of Business" Concept

Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a more subtle analysis.

In Montagano v. Safeco Insurance Co. of America, the court correctly recognized that defendant "misses the point" by arguing that the work product doctrine applied because "the disputed documents were not created in the ordinary course of business." Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018). As the court explained, "[t]he critical inquiry here is not whether the materials at issue were created in the ordinary course of Defendant's business, it is whether Defendant prepared the materials in anticipation of litigation." Id. The court found that defendant had not.

To be sure, documents created in the "ordinary course of business" generally do not deserve work product protection. But even documents created in extraordinary circumstances do not deserve work product protection -- unless they were motivated by litigation or anticipated litigation. For instance, the Southern District of New York rejected a lender's work product claim for documents it created after the unique September 11 World Trade Center attack – holding that business rather than litigation concerns motivated the documents' creation.

Case Date Jurisdiction State Cite Checked
2018-08-14 Federal

Chapter: 38.902
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("In this case, the documents were not prepared because of litigation and the attorney work product doctrine does not apply. Unlike Louisiana Municipal Police [Louisiana Municipal Police Employees Retirement System v. Sealed Air Corp., 253 F.R.D. 300, 308 (D.N.J. 2008)], Abbott has put forth no argument that it acquired Solvay for the purpose of acquiring its litigation. Rather, as the contested documents demonstrate, Abbott acquired a vast product portfolio from Solvay for the typical reason -- because it believed doing so would be profitable. These presentations were not created because of litigation, but were created for the purpose of informing Abbott's business decision to acquire Solvay. Even if Abbott did not anticipate becoming involved in any Solvay-product litigation after acquiring Solvay, Abbott would have created these documents to inform its business decision nonetheless.").

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

Chapter: 38.902
Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("Otherwise identical work by an attorney is not protected, however, if it was created in the 'ordinary course of business.'. . . Legislative counsel could not, for example, withhold documents pertaining to pending legislation on the basis of the work product doctrine because '[t]he [l]egislature could always have a reasonable belief that any of its enactments would result in litigation. That is the nature of the legislative process.'")

Case Date Jurisdiction State Cite Checked
2015-05-26 Federal VA

Chapter: 38.903
Case Name: Goff v. United Rentals, Case No. 2:16-cv-608, 2017 U.S. Dist. LEXIS 46588 (E.D. Va. March 28, 2017)
(after an in camera review, concluding that documents held as work product were created in the ordinary course of business after a workplace injury; "The emails, which concern and discuss events at or near the time of the accident at issue, are relevant to both Plaintiff's claims and United Rentals' defense, and United Rentals does not claim otherwise. Moreover, production of these emails is not burdensome and no contention has been made that the request for them is not proportional to the needs of the case. United Rentals does not rest its claim of work product on the 'opinion work product' prong of the immunity. Instead, it claims the emails are protected from disclosure because they were exchanged between themselves and their third party insurance administrator in anticipation of litigation. . . . District courts within the Fourth Circuit have stated that work done as part of the 'insurer's ordinary course of business' is not protected work product. . . . ('Unlike files generated while investigating whether to deny a first-party claim, which are generally not considered to have been prepared in anticipation of litigation, insurance claim files generated in relation to investigating and defending against third-party claims are generally considered work-product because they were clearly prepared for the purposes of the underlying litigation, rather than in the insurer's ordinary course of business.'"); see also, Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 332 (N.D.W.Va. 2006); Ring v. Commercial Union Ins. Co., 159 F.R.D. 653, 660 (M.D.N.C. 1995) ('[T]he general rule is that a reasonable possibility of litigation only arises after an insurance company has made a decision with respect to the claim of its insured. Therefore, and in general, only documents accumulated after the claim denial will be done in anticipation of litigation')."; "Upon in camera review of the emails, the undersigned FINDS that the materials do not constitute protected work product prepared in anticipation of litigation. The emails between United Rentals and Liberty Mutual were sent in the ordinary course of business immediately following an industrial accident, and were ordinary communications between an insured and an insurer concerning the circumstances of the accident. Indeed, '[f]ollowing any industrial accident, it can be expected that designated personnel will conduct an investigation, not only out of concern for future litigation, but also to prevent reocurrences, to improve safety and efficiency in the facility, and to respond to regulatory obligations.' Nat'l Union Fire Ins. Co., 967 F.2d at 984."; "'Although Liberty Mutual apparently is United Rentals' third party insurance administrator and not its direct insurer, this distinction makes no practical difference to the legal analysis of the work product immunity doctrine.'")

Case Date Jurisdiction State Cite Checked
2017-03-28 Federal VA

Chapter: 38.903
Case Name: In re Oxbow Carbon LLC Unitholder Litig., Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 43 (Ch. Ct. Del. March 13, 2017)
("Even '[m]aterials assembled during routine investigations by counsel are not protected as work product.' Bolstering the view that the materials are not protected, the only recipient of any of Elroy's communications was Karen Rowe, a human resources employee at Renegade Management, LLC, Koch's family office. Although each entry claims that the work was performed 'at the direction of Richard Callahan, Esq.,' Callahan was not a sender or recipient of a single communication that has been withheld. Moreover, Callahan is a member of the Company's Board and was appointed to that position by Koch Holdings. There is substantial reason to doubt that he was acting in a legal capacity. '[I]t is the rare case in which a company genuinely anticipating litigation will leave its attorneys on the outside looking in.'")

Case Date Jurisdiction State Cite Checked
2017-03-13 State DE
Comment:

key case


Chapter: 38.903
Case Name: Leblanc v. Texas Brine Co., LLC, Case No. CIV-16-1026-D, 2017 U.S. Dist. LEXIS 31822 (W.D. Okla. March 7, 2017)
(analyzing privilege and work product protection for communications to and from a public relationships firm hired by the defendant's lawyer; "As with the attorney-client privilege, the work product doctrine does not protect written materials to and from a public relations firm or its agents regarding business, as opposed to legal, advice. . . . Therefore, the Court finds that much of the communication between Frontier, Beyer, Altshuler, and Texas Brine is not protected by the work product doctrine, absent a specific showing of the legal nature of each withheld communication, and that it was specifically created in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-03-07 Federal OK

Chapter: 38.903
Case Name: Schaeffler v. United States, 806 F.3d 34 (2d Cir. Nov. 10, 2015)
January 13, 2016 (PRIVILEGE POINT)

"Second Circuit Offers Bad News, Good News and No News"

When the Second Circuit speaks, people listen. That court recently dealt with privilege and work product issues.

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and (2) the work product doctrine did not protect documents the taxpayer prepared in anticipation of IRS litigation. First, the Second Circuit offered bad news on the privilege front — explaining that for privilege to apply "the purpose of the communications must be solely for the obtaining or providing of legal advice." Id. At 40 (emphasis added) This is a narrower approach than the majority "primary purpose" standard, and much narrower than the D.C. Circuit's one "significant" purpose standard. See In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163 (2015). Second, in discussing the common interest doctrine, the Second Circuit offered good news — acknowledging that the taxpayer and his lenders shared a common legal interest rather than just a common financial interest. Schaeffler, 806 F.3d at 42. Third, the Second Circuit also offered good news on the work product front — essentially rejecting the district court's "construct of a hypothetical scenario" in which the taxpayer and his lenders faced the same business issues without a litigation threat. Id. At 44. The court explained that the enormous financial stakes and business complexity meant that the lower court's hypothetical was "at odds with reality." Id. This meant that the taxpayer by definition would not have created his documents in the same form absent an IRS litigation threat. Fourth, the Second Circuit offered no news on a key issue — whether the common interest doctrine can apply in the absence of anticipated litigation. The court acknowledged that "[p]arties may share a 'common legal interest' even if they are not parties in ongoing litigation," but did not take a position either way on the doctrine's applicability in a purely transactional setting. Id. At 40 (citation omitted).

The Second Circuit's off-handed description of the privilege standard may not represent a legal shift, so overall the Schaeffler decision represents primarily good news — on the common interest and work product fronts.

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

key case


Chapter: 38.903
Case Name: Braxton v. Heritier, Civ. A. No. 14-12054, 2015 U.S. Dist. LEXIS 114780 (E.D. Mich. Aug. 28, 2015)
("Business records, financial records and the like, generated in the ordinary course of business, are not prepared in anticipation of litigation, and thus are not protected.")

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

Chapter: 38.903
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(analyzing privilege and work product protection for non-party Syracuse University's investigation into possible child molestation by one of the University's coaches; explaining that the coach's wife had sued ESPN, then sought discovery from the University; concluding that the work product doctrine did not apply; "Even where a party clearly anticipated litigation at the time a document was created, the party asserting privilege still bears the burden of showing that the document would not have been produced in a similar form absent anticipated litigation."; "[W]hile the Jones Affidavit states that the University anticipated litigation at the time of the 2005 investigation . . . It offers no evidence, nor does the University claim now, that the documents produced during the investigation would not have been prepared in the same form absent the prospect of litigation . . . The Jones Affidavit states that BSK frequently handled investigations into employee conduct for the University . . . And that this particular investigation dealt with a sensitive matter . . . But provides no indication that this investigation was conducted differently from other investigations into potential employee misconduct because of the prospect of litigation . . . . Therefore, Judge Peebles did not err in concluding that 'documents generated during the course of that investigation would have been prepared in the ordinary course of business irrespective of whether there was the potential for litigation.'")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 38.903
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
(finding that a licensor and several licensees could not rely on a common interest agreement to avoid a waiver, because they had not worked together to pursue a common legal strategy; also finding the work product doctrine inapplicable; "DMFI points to the fact that these communications did not concern DMFI's and its licensees' 'day-to-day operations.' DMFI Opp'n at 15. But the relevant inquiry is whether those communications would have been created in the ordinary course of business, or would have taken essentially the same form, absent the prospect of litigation -- in other words, if they were created 'because of' the anticipated litigation. Adlman, 134 F.3d at 1202. This inquiry requires the Court to 'consider what would have happened had there been no litigation threat.' Wultz v. Bank of China Ltd., 304 F.R.D. 384, 395 (S.D.N.Y. 2015) (quoting Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 106 (S.D.N.Y. 2007)) (internal quotation marks omitted). Ernst's statement that the communications were meant to assist him in 'providing legal advice' to DMFI and 'coordinating [DMFI]'s and its licensees' legal strategy,'. . . Simply does not address what 'would have happened' had the letters been sent regarding the use of Non-Utilized Fruit and DMFI believed that it was not likely to be sued. Moreover, it seems obvious that DMFI necessarily would have inquired of its licensees as to their usage of the Non-Utilized Fruit given DMFI's interpretation of the License Agreement. In other words, upon receiving FDP's request to add fruit to the Non-Utilized Fruit list, DMFI would have had to obtain information from its licensees about the products they were marketing using the Mark in order to formulate its response.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 38.903
Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197 SECTION: "A"(5), 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
March 4, 2015 (PRIVILEGE POINT)

“Courts Focus on the Work Product Doctrine's "Motivation" Element”

The work product doctrine protection rests on three elements: (1) litigation; (2) anticipation; (3) motivation. In normal civil or criminal litigation, the first element presents an easy analysis. Most lawyers' attention focuses on the second element — whether their clients reasonably anticipate litigation. But the third element represents the real key to work product protection.

Even if the client is in the midst of litigation, or reasonably anticipates litigation, the work product doctrine only protects documents motivated by that litigation. In Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197 SECTION: "A"(5), 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015), Chevron in-house lawyers initiated and directed what they labeled a "legally chartered" root cause investigation after a fatal pipeline explosion. In analyzing the motivation element the court described as the "salient question" whether "'legally chartered' root cause analyses are different in kind than those 'other' root cause analyses routinely conducted by Chevron." Id. at *28. The court ultimately rejected Chevron's work product claim, pointing to: (1) deposition testimony by a Chevron engineer "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,'" and "that it is 'part of the Chevron ordinary course of business to conduct a root cause analysis' after an incident" (id. at *25); (2) Chevron Pipeline's President's statement in an employee newsletter that "[w]e are conducting root cause analyses of both incidents and will apply lessons learned. Our ultimate goal remains the same - an incident and injury-free workplace. " (id. at *27); (3) Chevron's failure to provide the court examples of Chevron's ordinary root cause analyses — noting that Chevron's argument that its ordinary "incident reviews" were different from its "legally chartered" investigation "would be more convincing if there was actually another root cause analysis from which to distinguish the legally chartered one." Id. at *29.

To satisfy the work product motivation element, companies must demonstrate that they did something different or special because they anticipated litigation — beyond what they ordinarily would do, or which they were compelled to do by external or internal requirements.

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

key case


Chapter: 38.903
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 doctrine is not an umbrella that shades all materials prepared by a lawyer or an agent of the client. It focuses only on materials assembled and brought into being in anticipation of litigation. Excluded from the work-product doctrine are materials assembled in the ordinary course of business.")

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

Chapter: 38.903
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: 38.903
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 *15 (M.D. Ga. Sept. 29, 2014)
("As a general rule, documents created in the ordinary course of business -- even if litigation is already on the horizon -- are not protected as work product.")

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

Chapter: 38.903
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 220 (N.D. Ill. 2013)
("Documents that were created during the normal course of business and do not contain confidential legal advice are not protected by either the attorney-client privilege or the work product doctrine.")

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

Chapter: 38.903
Case Name: United States v. Richey, No. 09-35462, 632 F. 3d 559, 2011 U.S. App. LEXIS 1170 (9th Cir. Jan. 21, 2011)
(holding that appraiser was outside privilege protection; and could not claim work product for his documents; "Here, the district court erred by concluding that the entire work file was prepared in anticipation of litigation. Richey ["an MAI-certified appraiser"] was hired to provide valuation services, and he prepared the appraisal report that the Peskys attached to their 2002 federal income tax return, as required by law. Had no appraisal report been attached to the Peskys' 2002 federal income tax return, the Taxpayers would have been ipso facto ineligible for any charitable deduction as a result of the contribution of the Easement. Had the IRS never sought to examine the Taxpayers' 2003 and 2004 federal income tax returns, the Taxpayers would still have been required to attach the appraisal to their 2002 federal income tax return. Nor is there evidence in the record that Richey would have prepared the appraisal work file differently in the absence of prospective litigation."; "Considering the totality of the circumstances, we cannot properly conclude that the appraisal work file 'can be fairly said to have been prepared or obtained because of the prospect of litigation.'. . . Thus, neither Richey nor the Taxpayers may properly invoke the work-product doctrine in protecting the contents of the appraisal work file.")

Case Date Jurisdiction State Cite Checked
2011-01-21 Federal

Chapter: 38.903
Case Name: Musa-Muaremi v. Florists' Transworld Delivery, Inc., Case No. 09 C 1824, 270 F.R.D. 312, 2010 U.S. Dist. LEXIS 47002 (N.D. Ill. May 13, 2010)
("[T]he fact that an employer anticipates the possibility of litigation from an event or accident does not automatically qualify an in-house report for protection from discovery."; "In this instance, FTD has not sustained its burden of demonstrating that the documents at issue were created in anticipation of litigation. The withheld documents were created near the time of Musa-Muaremi's internal submission of her grievance, which was many months before her filing of a charge of discrimination with the EEOC. FTD has pointed to no evidence in the record to suggest that litigation was anticipated at the time of the withheld documents' creation. Rather, the record demonstrates that the documents were created as part of FTD's routine response to an employee's complaint. FTD's Human Resources Director Amy Majka (now Reicher) testified that her routine response to an employee complaint of harassment was to consult with inside and outside counsel. . . . She said that she followed that pattern in investigating Musa-Muaremi's claim. . . . FTD has not established that its withheld documents were not established that its withheld documents were prepared because of the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2010-05-13 Federal IL
Comment:

key case


Chapter: 38.903
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484 (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 Jurisdiction State Cite Checked
2009-07-31 Federal VA

Chapter: 38.904
Case Name: Marine Industrial Construction, LLC v. United States, No. 15-1189C, 2018 U.S. Claims LEXIS 1161 (Fed. Cl. Sept. 14, 2018)
(upholding the government's work product claim; "The facts in this case show that the documents at issue have been created primarily for the purpose of assisting the government with this litigation for several reasons. First, the timeline of this litigation makes clear that the USACE decided to retain DOF as an expert consultant in this matter several months after MIC commenced this litigation. In this regard, it is undisputed that the government issued the justification to hire an expert consultant to review MIC's claim in January 2016, three months after this case was filed.")

Case Date Jurisdiction State Cite Checked
2018-09-14 Federal Other

Chapter: 38.904
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: 38.904
Case Name: Anderson v. Marsh, Case No. 1:14-cv-01599-TLN-SAB, 2015 U.S. Dist. LEXIS 169071 (E.D. Cal. Dec. 17, 2015)
(concluding that neither the privilege nor the work product doctrine protected an investigation into possible police misconduct; "According to departmental policy there are two types of investigations into a shooting incident: a criminal investigation and a departmental investigation. . . . The policy provides that a departmental investigation conducted by the Department to factually reconstruct the employee-involved shooting incident shall result in a shooting incident report, policy/procedures evaluation report, and memorandum of findings for administrative review. . . . Two of these departmental investigation reports are the documents that are at issue here: the policy/procedures evaluation report and the memorandum of findings."; "These reports were created by and contain the opinion of Sgt. DeChamplain who is not an attorney. The reports are not created for the purpose of obtaining legal advice, but as part of the investigation into the officer involved shooting. The purpose of the report is to determine what occurred during the incident and for the investigating official to review and critique the officer's conduct. The reports were provided to general counsel for review of the underlying findings. While any communication from general counsel regarding his review of the reports would fall within the attorney-client privilege, the fact that general counsel reviews the documents created during the investigation is not sufficient to entitle them to attorney-client privilege."; "Additionally, the regulations provide that at the conclusion of the investigation the reports are provided to the employees involved. The fact that the reports are provided to the involved employees after the investigation demonstrates that they are not made as confidential communication to the attorney.").

Case Date Jurisdiction State Cite Checked
2015-12-17 Federal CA

Chapter: 38.904
Case Name: Anderson v. Marsh, Case No. 1:14-cv-01599-TLN-SAB, 2015 U.S. Dist. LEXIS 169071 (E.D. Cal. Dec. 17, 2015)
(concluding that neither the privilege nor the work product doctrine protected an investigation into possible police misconduct; "Where a document serves a dual purpose, then the 'because of' test is used to determine if it is covered by the doctrine."; "Here, the documents at issue are routinely created regardless of whether there would be litigation regarding the incident. The regulations demonstrate that the purpose of creating the documents is to determine if the officer was legally justified in shooting, complied with departmental policy, and if any action should be taken by the immediate supervisor. . . . This includes a recommended course of action by the employee's supervisor. . . . Therefore, these documents would have been created in substantially similar form regardless of the prospect of litigation.").

Case Date Jurisdiction State Cite Checked
2015-12-17 Federal CA

Chapter: 38.904
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: 38.904
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 Jurisdiction State Cite Checked
2013-01-01 Federal DC B 3/14

Chapter: 38.904
Case Name: Am. Immigration Council v. United States Dep't of Homeland Sec., 905 F Supp. 2d 206, 222 (D.D.C. 2012)
("[T]he lawyers prepared the slides to convey routine agency policies. The fact that those policies happen to apply in agency litigation does not shield the slides from disclosure. Record 1 is not attorney work product.")

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

Chapter: 38.904
Case Name: Am. Immigration Council v. United States Dep't of Homeland Sec., 905 F Supp. 2d 206, 222 (D.D.C. 2012)
("[T[his memo seeks the best interpretation of the regulation at issue, with no hint that the decision was influenced by litigation, let alone that the memo was written 'because of' litigation. . . . The memo, indeed, states that it 'supersedes' a previous memo to the contrary -- indicating that it is a legal opinion meant to bind the agency, not a memo plotting litigation strategy. Work-product privilege thus cannot shield Record 2 either.")

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

Chapter: 38.904
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 224 (Va. Cir. Ct. 2010)
("This Court agrees with the Defendant, and reaffirms its position previously outlined in Hawkins [Hawkins v. Norfolk Southern Ry., 71 Va. Cir. 285 (Brunswick County 2006)], that a case-by-case approach is appropriate here. A case-by-case approach '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.' Wilson [v. Norfolk & Portsmouth Belt Line R.R. Co.], 69 Va. Cir. [153,] 174 [(Va. Cir. Ct. 2005)].")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA B 3/16
Comment:

key case


Chapter: 38.904
Case Name: Warner v. United States, C.A. No. 09-036ML, 2009 U.S. Dist. LEXIS 101688, at *7-8 (D.R.I. Nov. 2, 2009)
(denying work product protection for forms created by the Postal Service after an accident; noting that one form indicated that the information would be used for essentially a business purpose; one form was required to be prepared after all accidents, however minor and would be used for essentially business purposes; "PS Form 1769 does not include a statement of purpose but the Postal Service has represented in other litigation that its 'policy requires that any accident involving a motor vehicle, no matter how minor, must be documented by the supervisor in an accident report on Form 1769.'. . . there is absolutely no rationale basis upon which to argue that the 'preventive action' Section on PS Form 1769 was prepared in anticipation of litigation when its stated purpose is to prevent similar accidents in the future.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-11-02 Federal RI

Chapter: 38.904
Case Name: Darnell v. McMurray, 141 F.R.D. 433, 435 (W.D. Va. 1992)
(finding that a state police report was prepared in the ordinary course of business and not in anticipation of litigation)

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

Chapter: 38.905
Case Name: Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 U.S. Dist. LEXIS 6343 (W.D. Okla. Jan. 14, 2019)
March 20, 2019 (PRIVILEGE POINTS)

"Can Business Persons' Access to Work Product Doom a Work Project Claim?"

The work product doctrine can protect documents primarily motivated by litigation or anticipated litigation, rather than prepared in the ordinary course of business or motivated by some other non-litigation purpose. But actions occurring after the documents' creation sometimes can reflect back on that key motivational element.

In Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 U.S. Dist. LEXIS 6343 (W.D. Okla. Jan. 14, 2019), the court analyzed defendant's work product claim for documents it created while investigating a tractor-trailer accident. The court acknowledged that defendant anticipated litigation, because plaintiff's lawyer threatened litigation the day after the accident. But the court denied defendant's work product claim -- emphasizing that the defendant's Director of Safety "has access to this information for non-litigation purposes." Id. at *5. The court concluded that "the portion of the claims file available [to defendant's Director of Safety] is discoverable to Plaintiff because it is generated in the ordinary course of business and not directly in anticipation of litigation." Id. at *6.

Many if not most courts would take a different approach, properly analyzing documents' creation rather than their post-creation availability to others. But maintaining the litigation focus of appropriately created work product enhances the chance for successfully claiming that protection.

Case Date Jurisdiction State Cite Checked
2019-01-14 Federal OK
Comment:

key case


Chapter: 38.905
Case Name: United States ex rel. Rubar v. Hayner Hoyt Corp., No. 5:14-CV-830 (GLS/CFH), 2018 U.S. Dist. LEXIS 189274 (N.D.N.Y. Nov. 5, 2018)
January 23, 2019 (PRIVILEGE POINTS)

"Courts Issue Conflicting Work Product Doctrine Opinions: Part I"

Ironically, federal and state courts applying their succinct work product rules exhibit more diversity than when construing the more complex and mostly common law attorney-client privilege. One difference focuses on whether the work product doctrine protects: (1) only documents created solely for litigation purposes; or (2) documents created "because of" the litigation, even if they were also motivated by other factors.

In United States ex rel. Rubar v. Hayner Hoyt Corp., No. 5:14-CV-830 (GLS/CFH), 2018 U.S. Dist. LEXIS 189274 (N.D.N.Y. Nov. 5, 2018), a New York federal court upheld defendants' work product claim for a report analyzing possible civil or criminal claims against another party. The court explained that defendants "have demonstrated that [litigation] was one of the purposes of the Report" – and emphasized that "defendants are not required to prove that their sole or primary purpose in obtaining the Report was litigation." Id. at *11 (footnote omitted). Four days later, in Noven Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp., No. 654740/2016, 2018 N.Y. Misc. LEXIS 5133 (N.Y. Sup. Ct. Nov. 9, 2018), a New York state court took the opposite approach. The court held that defendant's valuation of joint venture assets did not deserve work product protection under New York state courts' different work product rule, because defendant "did not demonstrate that the report was created solely and exclusively in anticipation of litigation." Id. at *9.

Because the work product doctrine rests on court rules (which sometimes differ among federal and state courts in the same state), courts do not conduct a choice of laws analysis. Instead, they simply apply their own rule, and their own interpretation of that rule. Because corporate defendants usually do not know where they will be sued, they cannot fully analyze their available work product protection until litigation begins. Next week's Privilege Point will discuss another variation.

Case Date Jurisdiction State Cite Checked
2018-11-05 Federal NY
Comment:

key case


Chapter: 38.905
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "Aziz received instructions regarding his investigations of Defendants' products from some combination of Marc Beige, Joe Soccodato, and Lauren Lopez - all of whom are Rubie's employees and none of whom are attorneys. . . . Similarly, Aziz's investigation began in September or October of 2016, prior to retention of outside counsel, whose representation began 'at least after November 14th, [2016].'"; "These facts as they appear in Aziz's deposition testimony support the finding that his investigation into Defendants' products on Amazon was, like his many other investigations, a core function of his day-to-day job at Rubie's. Moreover, performing these types of investigations is apparently a core function of Rubie's Brand Protection Department, which is a 'single global division' served by in-house counsel. . . . Because Aziz's investigation and communications with Amazon are, according to his testimony, an ordinary and integral part of his job -- and, more importantly, of Rubie's business -- their existence is not the product of anticipated litigation, and the work product privilege does not apply.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY

Chapter: 38.905
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "The remaining purportedly privileged material consists of internal communications between Aziz and other Rubie's employees regarding his test purchases on Amazon. Specifically, Defendants object to Plaintiffs' assertion of the work product privilege and/or common interest doctrine in response to the following questions: (1) 'Did you ever have a discussion with Joe Soccodato or Marc Beige about that spreadsheet?'. . . and (2) 'Did the attorneys provide you with a list of topics of which you were to assemble materials?'. . . Defendants further object to counsel's assertion of the attorney-client and work product privileges in response to the following question: (3) 'What discussion did you have with Marc Beige about doing these test purchases?'"; "The Court finds that counsel for Plaintiffs' assertion of the work product privilege and/or common interest doctrine in response to these three questions is improper for the reasons already stated: the test purchases performed by Aziz were part of his day-to-day job activities, and formed part of an investigation that was not unique to any specific anticipated litigation. Rather, this investigation and others like it were a standard and integral part of Rubie's efforts to protect its brand integrity. Moreover, the first and second questions simply ask whether a communication, and a specific action, respectively, ever occurred. These questions do not address the substance of any discussion, or the content of any 'list of topics.' As such, they would comprise a permissible line of inquiry even if the substance and content were otherwise privileged. Indeed, claiming the existence of a specific communication or document is, among other things, a predicate for asserting a privilege in the first place.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY
Comment:

Key Case


Chapter: 38.905
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: 38.905
Case Name: Montagano v. Safeco Insurance Co. of America, Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018)
October 17, 2018 (PRIVILEGE POINT)

Court Analyzing the Work Product Doctrine Explains the "Ordinary Course of Business" Concept

Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a more subtle analysis.

In Montagano v. Safeco Insurance Co. of America, the court correctly recognized that defendant "misses the point" by arguing that the work product doctrine applied because "the disputed documents were not created in the ordinary course of business." Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018). As the court explained, "[t]he critical inquiry here is not whether the materials at issue were created in the ordinary course of Defendant's business, it is whether Defendant prepared the materials in anticipation of litigation." Id. The court found that defendant had not.

To be sure, documents created in the "ordinary course of business" generally do not deserve work product protection. But even documents created in extraordinary circumstances do not deserve work product protection -- unless they were motivated by litigation or anticipated litigation. For instance, the Southern District of New York rejected a lender's work product claim for documents it created after the unique September 11 World Trade Center attack – holding that business rather than litigation concerns motivated the documents' creation.

Case Date Jurisdiction State Cite Checked
2018-08-14 Federal

Chapter: 38.905
Case Name: Anderson v. SoftwareONE, Inc., Case No. 16-CV-1181, 2018 U.S. Dist. LEXIS 126812 (E.D. Wis. July 30, 2018)
(analyzing privilege and work product protection for an internal investigation into alleged sexual harassment and discrimination; finding both the attorney-client privilege and the work product inapplicable, because the investigation was not primarily motivated by legal concerns or litigation; "Businesses routinely investigate matters for their own purposes independent of the prospect of litigation."; "The party seeking the protection of the work-product doctrine has the burden to show the doctrine applies."; "The court concludes that SoftwareONE has failed in its burden to show that the documents sought by Anderson were created in anticipation of litigation rather than for SoftwareONE's own business purposes. Although SoftwareONE could reasonably recognize based on some of the allegations in Anderson's October 1, 2015 email (ECF No. 25-1) that there was a possibility that she might sue it, Anderson's allegations were expansive, including many matters for which she could not personally seek legal redress but which any prudent business would investigate."; "The fact that SoftwareONE's in-house attorney initiated the investigation, coupled with the fact that SoftwareONE learned soon after the email complaint that Anderson had retained counsel, are insufficient without significantly more to sustain SoftwareONE's burden on this issue. Significantly, as Anderson points out, SoftwareONE does not support its motion with an affidavit or declaration from its in-house counsel, or anyone else for that matter, stating that QTI was hired in anticipation of litigation. Moreover, SoftwareONE has failed to support its claim of work-product with the sorts of relevant details the court would expect -- such as the nature and scope of QTI's engagement; details as to the actual investigation; a detailed description of the documents that were allegedly created in anticipation of litigation; details as to SoftwareONE's policies and procedures for conducting internal investigations of complaints of discrimination, etc. Without the identification and discussion of specific documents, the court is unable to analyze whether any particular document was created in anticipation of litigation."; "Essentially all SoftwareONE has offered are the assertions of its current attorney contained in its brief, where she asserts, unsupported by any evidentiary support, that SoftwareONE retained QTI in anticipation of litigation. . . . But that falls far short of showing the requisite causation between the prospect of litigation and the investigation. It is entirely foreseeable that, even if SoftwareONE were somehow assured that Anderson would not be pursuing litigation, it nonetheless would investigate her allegations. Therefore, the court will deny SoftwareONE's motion to quash the subpoena issued to QTI.")

Case Date Jurisdiction State Cite Checked
2018-07-30 Federal WI

Chapter: 38.905
Case Name: Merriweather v. UPS, Case No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS 124383 (W.D. Ky. July 25, 2018)
(analyzing product issues related to a post-accident investigation; "For RPD No. 2, Merriweather argues that the internal accident investigation report, completed on May 27, 2015 by Defendant UPS is performed as part of Defendant UPS' business process. Defendant UPS maintains that even though the internal accident investigation report serves an ordinary business purpose, it was also prepared in anticipation of litigation and should therefore be protected. However, Defendant UPS has failed in carrying its burden of showing that the driving force behind preparing the internal investigation report was because of the anticipated litigation rather than its ordinary business purpose.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal KY

Chapter: 38.905
Case Name: Toranto v. Jaffurs, Case No. 16cv1709-JAH (NLS), 2018 U.S. Dist. LEXIS 123885 (S.D. Cal. July 24, 2018)
("[T]he retention of the third party reviewer was for the primary purpose of evaluating the soundness of Dr. Toranto's treatment history and Rady has put forth no evidence that the review and/or report would have been conducted or written any differently if not for the litigation.")

Case Date Jurisdiction State Cite Checked
2018-07-24 Federal CA

Chapter: 38.905
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: 38.905
Case Name: Monco v. Zoltek Corp., No. 17 C 6882, 2018 U.S. Dist. LEXIS 117940 (N.D. Ill. July 16, 2018)
(analyzing the common interest doctrine application and work product issues in a law firm's lawsuit to collect its fees from a former client; focusing on communications between defendant's founder and another company with whom the founder negotiated a transfer of the patent to the founder; "Here, the work product doctrine is inapplicable. While the patent transfer agreement was purportedly designed to transfer control of the lengthy case from Toray Industries [Other company] to Mr. Rumy [Defendant's founder], that's not what 'prepared in anticipation of litigation' means in the context of work product protection in this case. There is nothing in Zoltek Corporation's submissions that suggests that the draft agreement contract for the transfer of the patent and any suggested edits or questions about it in the email reveal any strategies for pursuing the patent litigation or this litigation.")

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

Chapter: 38.905
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "The emails with Bates Nos. 1306, 1311, 1313, and 1318-20 are described in Memphis Zoo's privilege log as notes of a board meeting that occurred on November 22, 2017, that are protected by the work-product doctrine. . . . This meeting was the telephone conference at which members of the board voted to terminate Dr. Terrell. Dr. Terrell argues that these notes are not protected by the work-product doctrine because the notes were mandatory under Memphis Zoo's bylaws and made in the normal course of business. Memphis Zoo argues that these emails are protected because, but for its reasonable expectation of litigation, the meeting would never have occurred."; "Without the likelihood of litigation, these emails may never have been created, but that fact does not place the emails under the protection of the work-product doctrine. For the doctrine to apply, the anticipation of litigation must have been the driving force behind the preparation of the emails. . . . Here, the emails at issue were primarily created, not in anticipation of litigation, but to record the board's discussion at a meeting dealing with whether to terminate an employee -- a business purpose. Therefore, the court finds that the documents are not protected by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.905
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "[T]hese emails contain information indicating that the anticipation of litigation was the driving force behind their creation. The emails discuss how to approach settlement negotiations, how Memphis Zoo should utilize its attorney's services, and broader litigation tactics. Although Dr. Terrell repeats her argument that these emails are discoverable because they were not prepared by or for an attorney, a document need not be prepared by or for an attorney in order for the work-product doctrine to apply.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.905
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "Having reviewed these documents, the court notes that, aside from the timing of the documents' creation, there is no indication that these documents were prepared in anticipation of litigation. Instead, the emails are intended to aid decision makers assessing whether to terminate Dr. Terrell's employment — a business purpose. Thus, the court finds that these documents are not protected by the work-product doctrine and are discoverable. Dr. Terrell's motion to compel the disclosure of these documents is GRANTED.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.905
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "The document is a summary of a conversation that Dr. Brady [Zoo CEO] had with Dr. Terrell during a performance review and his personal thoughts regarding what was discussed during the review. There is no indication in the document or the email to which it is attached that the document was made for any purpose other than a business purpose. Although Memphis Zoo points out that, at this point in time, there was a looming possibility of litigation, timing alone does not automatically grant a document the protection of the work-product doctrine. See In re Professionals Direct, 578 F.3d at 438-39 ('The fact that [the party] reasonably anticipated litigation at this point does not answer whether it prepared the disputed documents 'because of' litigation or not.'). Because an ordinary business purpose was the driving force behind creation of this document, see id., Dr. Terrell's motion to compel the disclosure of this document is GRANTED.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 38.905
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018)
(analyzing work product protection for an investigation into a worker's injury; holding that the plaintiff cannot overcome the defendant's work product protection for accident scene photographs because the scene had already been changed before the defendants took their pictures; "In this case, the insurance adjuster took the photographs at issue when she accompanied defense counsel to the work site. Defense counsel has represented that the purpose of the site visit was to investigate the merits of Plaintiff's anticipated claim. Defense counsel and Brayman's President, Frank Piedimonte, emphasize that Fint's accident was not a run-of-the-mill event for the company and, for that reason, they expected from the outset that it would lead to litigation. Accordingly, the record indicates that the photographs taken by the insurance adjuster were not part of a routine investigation, but were taken with an eye toward litigation. Thus, for the same reasons previously stated, the undersigned finds that these photographs constitute work product.")

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal WV

Chapter: 38.905
Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018)
("With respect to the remaining documents identified on Plaintiffs' privilege log, although the undersigned agrees that generally, the Minutes themselves do not appear to be prepared in anticipation of this litigation, the court finds that Plaintiffs have established that the redacted portions themselves were in anticipation of litigation. With respect to the second necessary component for work product protection, i.e., whether the Minutes were prepared by Plaintiffs or Plaintiffs' representative, although it appears that the Minutes were compiled by the JOLs, the redacted portions are, based on Plaintiffs' counsel's representations, reflections of Plaintiffs' counsel's litigation strategy.")

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal LA

Chapter: 38.905
Case Name: Eagle Forum v. Phyllis Schlafly's American Eagles, Case No. 3:16-cv-946-DRH-RJD, 2018 U.S. Dist. LEXIS 53284 (S.D. Ill. March 29, 2018)
("[T]he Court questions the general applicability of the work product doctrine in light of the circumstances of Rohlf's [Lawyer for the Runnymede Law Group, who was retained by a company, but was later ousted when his allies on the corporate board were overruled by the board majority] retention. The documents in Runnymede's file were purportedly created for Eagle Forum for the purpose of addressing 'governance matters, Board disputes and litigation as necessary.' Eagle Forum is not now, nor ever was, an adversary of Runnymede. Indeed, it would be inapposite to disallow Eagle Forum access to, and use of, Runnymede's file, prepared on its behalf, in litigating a case in which governance is at issue.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal IL

Chapter: 38.905
Case Name: Cain v. Wal-Mart Stores, Inc., 5:16-CV-221-D, 2018 U.S. Dist. LEXIS 47160 (E.D.N.C. March 22, 2018)
(rejecting privilege and work product protection for discovery answers that would disclose the identity of employees present at the time of an incident, employees involved in the investigation of the incident; and other information; "Interrogatory No. 2 seeks the identification of all Wal-Mart employees or agents who were involved in the investigation of the incident. Interrogatory No. 11 seeks the identification of any person involved in any way in the investigation. Production Requests Nos. 2 and 4 seek Wal-Mart's claim file relating to plaintiff's complaint and the investigation file of the incident, respectively."; "Wal-Mart objects to both interrogatories and both production requests on attorney-client privilege and work-product doctrine grounds. While certainly an investigation conducted in the context of litigation may potentially be subject to protection, any investigation of the incident in the normal course of Wal-Mart's business would not be subject to the same protection. For example, a claim file kept by an insurance company often does not qualify for work-product protection."; "Plaintiff's first motion is therefore allowed with respect to Interrogatories Nos. 2 and 11 and Requests for Production Nos. 2 and 4. Wal-Mart shall serve on plaintiff by 12 April 2018 supplemental answers to Interrogatories Nos. 2 and 11 '[i]dentif[ing] all employees or agents of the defendants who were involved in the investigation of [the incident]' and '[i]dentif[ing] all persons involved in any way in the investigation of [the incident],' respectively. In addition, Wal-Mart shall produce to plaintiff by 12 April 2018 '[t]he claim file relating to plaintiff's claim' and '[t]he investigation file created or maintained by [Wal-Mart] which deal[s] with in any way [the incident],' respectively, pursuant to Requests for Production Nos. 2 and 4.")

Case Date Jurisdiction State Cite Checked
2018-03-22 Federal NC

Chapter: 38.905
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: 38.905
Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "The Second Circuit has adopted a 'because of" test for work product, under which any document prepared 'because of' existing or expected litigation' is protected from discovery under the work product doctrine. Adlman II, 134 F.3d at 1198 (rejecting the narrower formulation that encompasses only those documents "prepared primarily or exclusively to assist in litigation' (citation omitted)). The determination of whether a document 'ha[s] been prepared or obtained because of' litigation is made 'in light of the nature of the document and the factual situation in the particular case.' Id. at 1202. Whether a document is entitled to the work product status turns on whether it 'would have been prepared irrespective of the expected litigation.' Id. at 1203-04. Work product protection is not available for 'documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation.'. . . However, documents prepared both for litigation and business purposes may be protected under Rule 26 (b)(3). '[A] document . . . does not lose work-product protection merely because it is intended to assist in the making of a business decision influenced by the likely outcome of the anticipated litigation." Adlman II, 134 F.3d at 1195.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 38.905
Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "Although the connection of some of the remaining documents to this litigation is not apparent from the face of the documents, the Court determines the documents' entitlement to work product protection 'in light of the nature of the document and the factual situation in the particular case.' Adlman II, 134 F.3d at 1202. Here, Bank of America's outside counsel, hired specifically for this litigation, has submitted a declaration stating that these documents were prepared for the litigation at the request of counsel in the context of [TEXT REDACTED BY THE COURT]. . . . Bank of America also states that the recalled portions of the Fellman Documents were not used for business purposes independent of the litigation, and they have not been located in any other Bank of America business-person's files. . . . In addition, Mr. Fellman testified at the deposition that the documents were prepared at the instruction of counsel hired for the purposes of this litigation. . . . Thus, Judge Orenstein correctly found that Bank of America met its burden of demonstrating that the documents were prepared because of the litigation.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 38.905
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: 38.905
Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "The Court carefully inspected the documents submitted for in camera review to determine whether they were prepared because of anticipated litigation or would have been prepared in substantially similar form regardless. The communications between PJI and Motus [Client agent/consultant] do not contain legal analyses or litigation strategies; they are generally business strategy documents addressing, for example, cost calculations and data, not anticipated litigation. . . . The Court finds that the communications at issue would have occurred in essentially similar form even if PJI had not anticipated litigation. Accordingly, PJI has not met its burden to establish that the communications are entitled to protection under the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 38.905
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
(analyzing a hospital's investigation after an allegedly botched surgery; "Despite Ms. Vanhook's [Hospital Risk Manager] conclusions in her affidavit that this email from Ms. Roskind [Hospital's Bariatric Program Director] to her was an investigative communication . . . Ms. Roskind, the author of the email, provided no affidavit suggesting that she created this email in anticipation of litigation. In fact, Ms. Vanhook's response, indicating she would let the 'administrative team' know about the conversation Ms. Roskind memorialized -- as opposed to in-house counsel or outside counsel --suggests that at the time of the creation of the emails, neither party crafted their emails 'in anticipation of litigation.' For these reasons, the Hospital's objections are overruled, and the Court affirms the Magistrate Judge's Order . . . concluding that these emails are not protected from discovery.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 38.905
Case Name: Carr v. Lake Cumberland Regional Hospital, Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
February 21, 2018 (PRIVILEGE POINT)

"Courts Assessing Privilege and Work Product Claims in an Investigation Context Examine Several Factors"

Courts assessing privilege and work product claims for corporate investigations usually focus on (1) the investigation's initiation (analyzing what motivated the investigation), and (2) the investigation's course (usually looking for lawyers' involvement). Less frequently, courts also focus on (3) the corporation's use of the investigation results. That post-investigation factor can shed light on the investigation's initial motivation.

In Carr v. Lake Cumberland Regional Hospital, Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017), the court overruled defendant hospital's privilege and work product claims for documents the hospital created while investigating an allegedly botched surgery. Analyzing one withheld email, the court rejected the hospital Risk Manager's affidavit claiming work product protection – noting that her statement "indicating that she would let the 'administrative team' know about the conversation . . . as opposed to in-house counsel or outside counsel – suggests that at the time of the creation of the emails, neither party crafted their emails 'in anticipation of litigation.'" Id. at *13.

Corporations and their lawyers must remember that courts examining privilege and work product protection for investigation-related documents focus on the investigation's initiation, course, and even how the client used investigation-related documents.

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY
Comment:

key case


Chapter: 38.905
Case Name: In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal OR
Comment:

key case


Chapter: 38.905
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: 38.905
Case Name: Exxon Mobil Corp. v. Northwestern Corp., Case No. 1:16-cv-00005-BLG-BMM, 2017 U.S. Dist. LEXIS 159143 (D. Mt. Sept. 27, 2017)
("The documents XOM [Exxon Mobil] claimed were privileged were generally related to a 'hindsight investigation,' which it claimed was instigated in anticipation of litigation and is therefore not discoverable under Fed. R. Civ. P. 26(b)(3). XOM also withheld certain documents under the attorney-client privilege based on communications between several employees and corporate counsel. XOM fully complied with the Court's order on September 6, 2017."; "According to the privilege log, XOM had submitted a draft of the outline for the hindsight investigation by at least February 22, 2014. . . . In this document, XOM listed its 'objectives' for the hindsight investigation which did not include a section on legal recourse or reference potential litigation. This evidences to the Court that the hindsight investigation was conducted for business reasons unrelated to future litigation. Moreover, XOM states in a letter to the Court: '[i]n late February, it was unclear whether the hindsight investigation would be conducted in an open, non-privileged format, or in a closed, privileged and work product context.'. . . As of February 23, 2017, XOM's corporate counsel had still not 'decided' whether the investigation should be privileged. . . . ('. . . the final decision about whether to privilege or not is still to be made')."; "These circumstances lead the Court to believe that XOM had decided to conduct the hindsight investigation for business reasons on or before February 22, 2014-before XOM's counsel stepped in and attempted to protect it under the work product doctrine. The hindsight investigation therefore would have been conducted 'regardless of the litigation,' and was not prepared in anticipation of litigation."; "Based on the circumstances surrounding the hindsight investigation, XOM has not met its high burden of showing that these documents were created in anticipation of litigation. Accordingly, the documents related to the hindsight investigation are not protected by the work product doctrine and must be produced."; "Several of the documents produced by XOM, however, do contain communications to and from XOM's corporate attorney. Such communications are protected by attorney-client privilege and are protected from disclosure to NWE. The Court orders the documents be produced with the communications to and from XOM's corporate counsel redacted.")

Case Date Jurisdiction State Cite Checked
2017-09-27 Federal MT
Comment:

key case


Chapter: 38.905
Case Name: Exxon Mobil Corp. v. Northwestern Corp., Case No. 1:16-cv-00005-BLG-BMM, 2017 U.S. Dist. LEXIS 159143 (D. Mt. Sept. 27, 2017)
("The documents XOM [Exxon Mobil] claimed were privileged were generally related to a 'hindsight investigation,' which it claimed was instigated in anticipation of litigation and is therefore not discoverable under Fed. R. Civ. P. 26(b)(3). XOM also withheld certain documents under the attorney-client privilege based on communications between several employees and corporate counsel. XOM fully complied with the Court's order on September 6, 2017."; "According to the privilege log, XOM had submitted a draft of the outline for the hindsight investigation by at least February 22, 2014. . . . In this document, XOM listed its 'objectives' for the hindsight investigation which did not include a section on legal recourse or reference potential litigation. This evidences to the Court that the hindsight investigation was conducted for business reasons unrelated to future litigation. Moreover, XOM states in a letter to the Court: '[i]n late February, it was unclear whether the hindsight investigation would be conducted in an open, non-privileged format, or in a closed, privileged and work product context.'. . . As of February 23, 2017, XOM's corporate counsel had still not 'decided' whether the investigation should be privileged. . . . ('. . . the final decision about whether to privilege or not is still to be made')."; "These circumstances lead the Court to believe that XOM had decided to conduct the hindsight investigation for business reasons on or before February 22, 2014-before XOM's counsel stepped in and attempted to protect it under the work product doctrine. The hindsight investigation therefore would have been conducted 'regardless of the litigation,' and was not prepared in anticipation of litigation."; "Based on the circumstances surrounding the hindsight investigation, XOM has not met its high burden of showing that these documents were created in anticipation of litigation. Accordingly, the documents related to the hindsight investigation are not protected by the work product doctrine and must be produced."; "Several of the documents produced by XOM, however, do contain communications to and from XOM's corporate attorney. Such communications are protected by attorney-client privilege and are protected from disclosure to NWE. The Court orders the documents be produced with the communications to and from XOM's corporate counsel redacted.")

Case Date Jurisdiction State Cite Checked
2017-09-27 Federal MT
Comment:

key case


Chapter: 38.905
Case Name: In the Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2017 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. Aug. 15, 2017)
(after a remand, analyzing possible work product protection for a communications between Marvel's CEO and his personal defamation lawyer conducted on Marvel's computer system; finding that some documents deserved work product protection and some did not; "Nor are an investigator's notes protected by the work-product privilege where there is no evidence that the investigator conducted any interviews with persons in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-08-15 State NY

Chapter: 38.905
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 a law firm created, because the firm would have created the same documents in the absence of anticipated litigation; "Here, the record confirms that Pierce Atwood would have created the Document regardless of the potential for future litigation regarding the tax abatement application. Pierce Atwood created the Document to edit Mr. Lloyd's [Real estate appraiser] draft appraisal report, which Pierce Atwood and PPLC commissioned to support PPLC's abatement application. PPLC and Pierce Atwood prepared the application -- as well as the Document -- in the hopes of securing a tax abatement from the municipal assessor. Indeed, PPLC and Pierce Atwood no doubt hoped that the assessor would grant their application, thereby avoiding future litigation altogether. Thus, the Court cannot conclude that Pierce Atwood created the Document 'because of' litigation because it would have created the Document in support of the application irrespective of the potential for litigation.")

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

Chapter: 38.905
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: 38.905
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: 38.905
Case Name: Boltz v. United Process Controls, Civ. A. No. 1:16-cv-703, 2017 U.S. Dist. LEXIS 102913 (S.D. Ohio June 23, 2017)
(in connection with employees claim that he was wrongfully terminated, finding that the communications did not deserve work product protection; "However, a review of the documents submitted in camera to the Court does not convince the undersigned that a threat of litigation was the driving force behind communication between Morawski [President of the employers sister company] and Oleszkiewicz [Employer's President]. . . . whether a party reasonably anticipated litigation at a particular point in time does not answer the question of whether a disputed document was prepared 'because of' litigation or not. . . . If the document was created as part of the ordinary business of a party and the ordinary business purpose was the 'driving force' or impetus for creation of the document, then it is not protected by the work product doctrine."; "[T]he emails from UPC's President and Plaintiff Eric Boltz's former boss, Chris Morawski, a shareholder of UPC and an executive with an affiliated company of Defendants is better characterized as a discussion between two executives about the how to handle the further employment and/or termination of Mr. Boltz based on the relevant facts. There is no indication that impending litigation was the 'driving force' of this communication.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal OH

Chapter: 38.905
Case Name: Boltz v. United Process Controls, Civ. A. No. 1:16-cv-703, 2017 U.S. Dist. LEXIS 102913 (S.D. Ohio June 23, 2017)
(in connection with employees claim that he was wrongfully terminated, finding that the communications did not deserve work product protection; "However, a review of the documents submitted in camera to the Court does not convince the undersigned that a threat of litigation was the driving force behind communication between Morawski [President of the employers sister company] and Oleszkiewicz [Employer's President]. . . . whether a party reasonably anticipated litigation at a particular point in time does not answer the question of whether a disputed document was prepared 'because of' litigation or not. . . . If the document was created as part of the ordinary business of a party and the ordinary business purpose was the 'driving force' or impetus for creation of the document, then it is not protected by the work product doctrine."; "[T]he emails from UPC's President and Plaintiff Eric Boltz's former boss, Chris Morawski, a shareholder of UPC and an executive with an affiliated company of Defendants is better characterized as a discussion between two executives about the how to handle the further employment and/or termination of Mr. Boltz based on the relevant facts. There is no indication that impending litigation was the 'driving force' of this communication.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal OH

Chapter: 38.905
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)
July 19, 2017 (PRIVILEGE POINT)

"Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part I"

Cadwalader Wickersham & Taft lawyers conducted an internal corporate investigation into allegations of self-dealing at Washington Metropolitan Area Transit Authority (WMATA). When a private plaintiff sued WMATA and several individuals, WMATA claimed work product and privilege protection for Cadwalader's 51 witness interview memoranda – but lost both claims. Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017).

Assessing the work product claim, the court acknowledged a Cadwalader lawyer's declaration 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.'" Id. at *10 (internal citation omitted). However, the court rejected the work product claim, pointing to (1) internal non-privileged WMATA documents about Cadwalader's retention, "explaining [that it] was engaged 'to provide general goverance recommendations, and to evaluate the Code of Ethics for Members of the WMATA Board of Directors'" (id. at *12 (internal citation omitted)); (2) internal non-privileged WMATA documents stating that Cadwalader's investigation "'reveal[ed] the need for additional examination, clarifying and strengthening of the Standards of Conduct policies'" (id. (alteration in original; internal citation omitted)); (3) deposition testimony indicating "that the investigation conducted by Cadwalader was for internal WMATA business purposes" ( id. at *11); and (4) a two-year lapse between a threatening letter (which the court acknowledged triggered a reasonable anticipation of litigation against WMATA) and Cadwalader's retention. The court ultimately concluded that "the contemporaneous statements made by WMATA regarding the investigation do not indicate that the investigation was conducted as a result of anticipated litigation," and that the "evidence presented supports a finding that absent any anticipated litigation, WMATA would have conducted the same investigation to evaluate its business practices." Id. at *14-15.

Corporations and their lawyers should assure that everyone understands an internal investigation's primary motivating purpose, and reflects that motivating purpose in non-privileged contemporaneous documents.

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

key case


Chapter: 38.905
Case Name: In re HH Liquidation, LLC v. Comvest Group Holdings, LLC, Ch. 11, Case No. 15-11874 (KG), (Jointly Administered), Adv. No. 16-51204 (KG), 2017 Bankr. LEXIS 1258 (D. Del. May 8, 2017)
(holding that an unsecured creditors committee was not entitle to access debtors privileged documents; "The Court is not satisfied from its review of the privilege logs that the documents the Debtors withheld were prepared in anticipation of litigation. The withheld documents appear to the Court to be general corporate documents prepared in connection with a transaction. The Court therefore concludes that these are not work product documents. Accordingly, the Court will order Debtors to produce their work product documents unless they can provide the Court with proof that they prepared the withheld documents in anticipation of litigation. The Court will then review the documents in camera or, if necessary, the Court will appoint a mediator to review the documents to determine if they are protected by the work product doctrine."; "The Court has found that Weintraub does not apply to the Committee but only to chapter 7 trustees; that Garner affords relief but only on a finding of insolvency; and that it is Teleglobe which requires insolvency without which there is no fiduciary duty owed to creditors. The documents withheld on the basis of the work product doctrine shall be produced, subject to the Debtors proving that they prepared the withheld documents in anticipation of litigation. The Court will therefore deny the Motion in part and grant it in part.")

Case Date Jurisdiction State Cite Checked
2017-05-08 Federal DE

Chapter: 38.905
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: 38.905
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: 38.905
Case Name: United States v. Acquest Transit LLC, 09-CV-555(F), 2017 U.S. Dist. LEXIS 24080 (W.D.N.Y. Feb. 21, 2017)
("Defendants' contention that the agencies' actions 'would have been completed whether litigation was contemplated or not,'. . . ignores the probable, and predictable, effect of Defendants' October 10, 2007 refusal to permit the EPA's access to the property in order to confirm or negate its suspicions regarding Defendants' violations of the Act causing damage to protected wetlands located on the property.")

Case Date Jurisdiction State Cite Checked
2017-02-21 Federal NY

Chapter: 38.905
Case Name: Turner Construction Co. v. TIG Ins. Co., Civ. A. No. 1:15CV83 (STAMP), 2017 U.S. Dist. LEXIS 20655 (N.D.W. Va. Feb. 14, 2017)
(finding that the work product doctrine did not protect spreadsheets created in the ordinary course of business, even though they were later useful in litigation; "Magistrate Judge Aloi concluded that the spreadsheets are an accounting of subcontractors' delay and other impact claims, setting out the amount and status of those claims. He concluded that Turner created the spreadsheets in its normal course of business in performing the prime contract and managing its subcontractors. Thus, the magistrate judge concluded that Turner's use of the spreadsheets in negotiating, and subsequently litigating, payment disputes with the FBI did not convert the information into attorney work product."; "Turner argues that the spreadsheets are work product because, after they were created, they were modified at the direction of counsel for use in negotiations with the FBI and any subsequent litigation with the FBI. However, Turner fails to show that the 'paramount purpose in generating [the spreadsheets was] litigation, . . . rather than an accounting of subcontractor claims used in the ordinary course of business that was later adapted for use as a tool in negotiations with the FBI. Turner does not dispute that the spreadsheets were created before the project was completed and without attorney input. Rather, Turner argues that the spreadsheets were reviewed by its counsel later, and that its counsel commented on the contents of the spreadsheets. However, this does not convert documents created by Turner for its own use, before litigation was contemplated, into attorney work product once litigation was contemplated. Accordingly, this Court finds no clear error in the magistrate judge's conclusion as to this issue.")

Case Date Jurisdiction State Cite Checked
2017-02-14 Federal WV

Chapter: 38.905
Case Name: Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal NY
Comment:

key case


Chapter: 38.905
Case Name: Sessions v. Sloane, No. COA 15-1095, 2016 N.C. App. LEXIS 770 (N.C. App. July 19, 2016)
(holding that the plaintiff had not requested in camera review of withheld documents, and therefore failed to carry the burden of proof on privilege and work product; "While we agree with Defendants that the work product doctrine does not require the direct involvement of an attorney to apply, the work product doctrine does require documents to be prepared in anticipation of litigation instead of in the regular course of business. The burden rested on Defendants in the trial court to demonstrate the documents in question fell within the shield of the work product or joint defense doctrines. To meet their burden, Defendants needed to show the documents were prepared in anticipation of litigation. In opposition to the motion to compel, Defendants produced only Kelly's affidavit. The affidavit established Defendants' anticipated litigation as of the dates of the emails at issue. However, Defendants did not meet their burden to show the specific emails at issue were actually prepared or obtained because of the prospect of litigation. Defendants did not demonstrate the emails were exchanged for the purpose of pending litigation instead of during the regular course of business. Although Defendants provided evidence to show litigation was anticipated at the time of the email exchanges, any business related communication during that time is not protected. Defendants did not meet their burden to show the communications 'can fairly be said to have been prepared or obtained because of the prospect of litigation.'")

Case Date Jurisdiction State Cite Checked
2016-07-19 Federal NC

Chapter: 38.905
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: 38.905
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 14, 2016 (PRIVILEGE POINT)

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

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the rule as written.

In 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 rejected Phoenix's work product claim for emails it generated over a seven-day period. Phoenix claimed that it created the documents because it anticipated litigation with defendant, rather than because of a business dispute that had not yet ripened into anticipated litigation. Phoenix argued that "its in-house counsel provided 'continual' legal advice and direction" about the dispute, but the court emphasized that Phoenix's lawyer's "declaration does not identify a single document for which she provided instruction, review or comment." Id. at *23, *26. The court noted that "[l]ack of attorney involvement in documents" can be an important indication that the documents did not deserve work product protection. Id. at *26. After reviewing the withheld documents in camera, the court concluded that "the documents at issue would have been drafted or circulated for a business purpose even if this lawsuit never came to pass." Id. at *28.

Although lawyers need not be involved in creating work product, their involvement supports the argument that the documents were motivated by anticipated litigation rather than created in the ordinary course of business. Next week's Privilege Point will discuss three other factors that doomed Phoenix's work product claim.

Case Date Jurisdiction State Cite Checked
2016-07-01 Federal CA B 9/16
Comment:

key case


Chapter: 38.905
Case Name: Thomas v. Kellogg Company, Case No. C13-5136-RBL, 2016 U.S. Dist. LEXIS 66881 (W.D. Wash. May 20, 2016)
("Nor is the Report work product. The only evidence that it was prepared 'because of' the litigation is that it was commissioned after the litigation commenced. But it does not reference the litigation at all. Willard Bishop's own articulation of what it does for its clients generally, and what it did for Kellogg here, deal with business efficiency, not legal issues. Its Report focuses on efficiency and productivity issues, exclusively.")

Case Date Jurisdiction State Cite Checked
2016-05-20 Federal WA

Chapter: 38.905
Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *28 (N.D. Cal. Apr. 21, 2016)
("Three of the four emails in the first category . . . are related to board meetings, including agenda items and lists of items for board review, such as cash flow, salaries, and costs. Documents prepared for a board meeting that would have been created regardless of litigation are not privileged.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal CA B 8/16

Chapter: 38.905
Case Name: Weinrib v. Winthrop-University Hospital, CV 14-953 (JFB) (AKT), 2016 U.S. Dist. LEXIS 37102 (E.D.N.Y. March 22, 2016)
(holding that a hospital's complaint filed did not deserve work product protection; "The complaint file itself, based upon a straightforward reading of the deposition transcript, falls outside the ambit of the work product privilege. Specifically, the transcript reflects that this complaint file or database was kept by Zebroski on behalf of Winthrop Hospital in the ordinary course of the hospital's business. Indeed, a hospital may have multiple purposes for preparing a complaint database (i.e. to ensure efficient operations, patient satisfaction, quality control and proper compliance with statutory and regulatory requirements), separate and apart from any particular litigation. There is no indication that this complaint file was prepared by or at counsel's direction in anticipation of the instant litigation or was otherwise the product of investigative or analytical tasks to aid counsel in preparing for litigation. As such, the work product privilege is inapplicable and Winthrop's objection is without merit.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal NY

Chapter: 38.905
Case Name: Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kan. Feb. 24, 2016)
April 13, 2016 (PRIVILEGE POINT)

"How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part I)"

Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a post-accident investigation was motivated by anticipated litigation rather than conducted in the ordinary course of their business?

In Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kan. Feb. 24, 2016), the court denied work product protection for defendant's incident report following a slip and fall accident. The court cited the incident report's author, who admitted preparing the report "before talking with a risk manager or attorney" – thus demonstrating that she "prepared her portion of the report in the usual course of business." Id. At *7. The court also reviewed the incident report in camera before denying defendant's work product assertion.

Courts assessing post-accident investigations usually examine their context (described in testimony or affidavits) – and sometimes read the withheld documents in camera. The next Privilege Point focuses on a medical device company's successful work product assertion for a post-accident investigation.

Case Date Jurisdiction State Cite Checked
2016-02-24 Federal KS
Comment:

key case


Chapter: 38.905
Case Name: Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kansas Feb. 24, 2016)
(finding that defendant prepared a post-accident report about a slip and fall in the ordinary course of his business, so that the report did not deserve work product; allowing the redaction of one sentence; "Defendant argues counsel became involved only two hours after Plaintiff's fall and the Summary was not created until the following day. It claims the document was created under the direction of counsel, constitutes attorney work product, and must be protected from disclosure."; "Defendant has not satisfied its burden to demonstrate the work product protection applies to bar production of the entire Summary. Plaintiff cites the deposition testimony of Ms. Klaverweiden, the hospital employee who created the incident report, which demonstrates she prepared the report immediately after taking Plaintiff to the emergency room, before talking with a risk manager or attorney. Because 'materials prepared in the ordinary course of business or for nonlitigation purposes are not protected by work product doctrine,' and the evidence provided to the Court reveals Ms. Klaverweiden prepared her portion of the report in the usual course of business, the incident report itself does not constitute work product and the Summary is not entirely protected from disclosure by the work product privilege."; "At hearing, Defendant offered, and the Court accepted, the entire Summary for in camera review. In its review, the Court noted one instance on page 9 of the report which includes advice from Karen Vogt, Defendant's in-house counsel, and therefore constitutes attorney-client/work product information. That portion of the Summary is ordered redacted.")

Case Date Jurisdiction State Cite Checked
2016-02-24 Federal KS
Comment:

key case


Chapter: 38.905
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; "Investigation into employee complaints or misconduct serves a predominantly HR function, especially if the investigation takes place before litigation is anticipated. Defendant has not provided sufficient information to distinguish its activities as legal in nature.")

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

Chapter: 38.905
Case Name: In Schaeffler v. United States, 806 F.3d 34 (2d Cir. Nov. 10, 2015)
January 13, 2016 (PRIVILEGE POINT)

"Second Circuit Offers Bad News, Good News and No News"

When the Second Circuit speaks, people listen. That court recently dealt with privilege and work product issues.

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and (2) the work product doctrine did not protect documents the taxpayer prepared in anticipation of IRS litigation. First, the Second Circuit offered bad news on the privilege front — explaining that for privilege to apply "the purpose of the communications must be solely for the obtaining or providing of legal advice." Id. At 40 (emphasis added) This is a narrower approach than the majority "primary purpose" standard, and much narrower than the D.C. Circuit's one "significant" purpose standard. See In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163 (2015). Second, in discussing the common interest doctrine, the Second Circuit offered good news — acknowledging that the taxpayer and his lenders shared a common legal interest rather than just a common financial interest. Schaeffler, 806 F.3d at 42. Third, the Second Circuit also offered good news on the work product front — essentially rejecting the district court's "construct of a hypothetical scenario" in which the taxpayer and his lenders faced the same business issues without a litigation threat. Id. At 44. The court explained that the enormous financial stakes and business complexity meant that the lower court's hypothetical was "at odds with reality." Id. This meant that the taxpayer by definition would not have created his documents in the same form absent an IRS litigation threat. Fourth, the Second Circuit offered no news on a key issue — whether the common interest doctrine can apply in the absence of anticipated litigation. The court acknowledged that "[p]arties may share a 'common legal interest' even if they are not parties in ongoing litigation," but did not take a position either way on the doctrine's applicability in a purely transactional setting. Id. At 40 (citation omitted).

The Second Circuit's off-handed description of the privilege standard may not represent a legal shift, so overall the Schaeffler decision represents primarily good news — on the common interest and work product fronts.

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

key case


Chapter: 38.905
Case Name: Sun v. Ikea US West, Inc., Case No. 15-cv-01146-MEJ, 2015 U.S. Dist. LEXIS 150544 (N.D. Cal. Nov. 4, 2015)
(denying privilege and work product protection for an investigation of a plaintiff's injury at a store; "Defendant fails to show it created the incident report outside the normal course of business. As noted above, Defendant provided extensive documentation detailing its Incident Reporting System, which indicates the incident report is a business record created in the normal course of business. Defendant offers no evidence to support its assertion that the report was created in anticipation of litigation."; also denying privilege protection).

Case Date Jurisdiction State Cite Checked
2015-11-04 Federal CA

Chapter: 38.905
Case Name: Heinzl v. Cracker Barrel Old Country Store, Inc., Civ. A. No. 2:14-cv-1455, 2015 U.S. Dist. LEXIS 146825 (W.D. Pa. Oct. 29, 2015)
(in connection with a Rule 30(b)(6) deposition; holding that a third party consultant's ADA report did not deserve privilege or work product protection; rejecting an affidavit by a Cracker Barrel lawyer supporting such protections; "Wilson [Cracker Barrel's Associate General Counsel responsible for ADA Compliance] explains that several of the documents are contracts for services between Cracker Barrel and engineering firms (the Buck Group, QPM and D&E) and that the reports, evaluations and other documents listed on the Privilege Log were all prepared pursuant to those contracts in order to assist her in her capacity as Cracker Barrel's in-house legal counsel; that the experts were engaged in anticipation of litigation such as the instant case when, in 2011, Wilson and other Cracker Barrel representatives concluded that they needed expert evaluations to determine if any stores were vulnerable to accessibility litigation following the effective date of the 2010 ADA Standards for Accessible Design and associated governmental regulations."; "Mr. Dorsey confirmed that monitoring the compliance of parking lots with the ADA has been ongoing. . . . Mr. Dorsey testified that Defendant hired Mr. Buck, the third party consultant, 'sometime in 2012,' which was years before Plaintiff filed her Complaint against Defendant."; "Additionally, even if Defendant investigated issues that could involve litigation in the future, courts have held that such investigations do not warrant protection under the work product doctrine because they were done in the ordinary course of business."; "Defendant has not demonstrated that the documents at issue constitute attorney work-product, as opposed to ordinary business documents created during routine renovations at facilities or when certain stores received complaints from customers. Ms. Wilson's statement that she 'subjectively believed that litigation was a real possibility when the 2010 ADA Guidelines went into effect' is at odds with Mr. Dorsey's testimony that the documents were created during the normal course of business, without any involvement of counsel and contemporaneous documents discussing the project which do not reflect the involvement of counsel. Defendant's argument should be rejected and Plaintiff's motion to compel these documents should be granted.")

Case Date Jurisdiction State Cite Checked
2015-10-29 Federal PA
Comment:

key case


Chapter: 38.905
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
("[A] document may 'be created for both use in the ordinary course of business and in anticipation of litigation without losing its work product privilege.'. . . Thus, the Court is not persuaded by Defendant's contention that the documents created after March 6, 2006, are similar to the documents created before that date. Even assuming that documents created before March 6, 2006, were created for purely business purposes, it does not follow that substantially similar documents created after that date could not be created for both business and litigation purposes."; "Nevertheless, 'A party asserting the work product privilege bears the burden of establishing that the documents he or she seeks to protect were prepared 'in anticipation of litigation.'. . . Plaintiffs' sweeping assertion that the documents at issue 'were undoubtedly generated in anticipation of litigation with MichCon' is insufficient to meet this burden, particularly where the examples cited in their brief related to litigation support activities are no longer at issue.")

Case Date Jurisdiction State Cite Checked
2015-10-27 Federal MI
Comment:

key case


Chapter: 38.905
Case Name: Gillespie v. Charter Communications, Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185 (E.D. Mo. Sept. 24, 2015)
(finding that an investigation into alleged racial discrimination did not deserve privilege or work product protection; "Charter argues that the incident report is privileged because it was created by Charter's Director of Human Resources at the direction of, and following a process instituted by, Charter's compliance team, which includes three in-house attorneys. Charter provides no facts as to the overall size of the compliance team, nor to the composition of its remaining members."; "In this case, unlike Geller [2011 U.S. Dist. LEXIS 129751, 2011 WL 5507572], the incident report was not prepared in response to any pending litigation, and the Director of Human Resources who prepared the report did so as an agent of Charter's entire corporate compliance team, rather than a single defense attorney as was the case in Geller. Therefore, the Court finds that the attorney-client privilege does not apply to either the EthicsPoint complaint or the incident report."; also finding the work product doctrine inapplicable).

Case Date Jurisdiction State Cite Checked
2015-09-24 Federal MO
Comment:

key case


Chapter: 38.905
Case Name: Moore v. Plains All American GP, LLC, Civ. A. No. 14-4666, 2015 U.S. Dist. LEXIS 124794 (E.D. Pa. Sept. 18, 2015)
(holding that an EEOC charge did not necessarily trigger a reasonable anticipation of litigation; "My in camera review of the disputed emails does not fully convince me that they were created with the primary aim of aiding future litigation, as opposed to being created in the ordinary course of business. While Defendant was aware of Plaintiff's EEOC charge at the time the emails were written, the emails largely discuss Plaintiff's request for an accommodation for his religious beliefs. This email exchange would have occurred regardless of whether Plaintiff had filed his complaint, and is part of an employer's duty in the regular course of business. . . . Indeed, the contents of these emails do not differ substantially from emails already produced to Plaintiff. While the emails do reference having a discussion with counsel at some point in the future, both Graham and Smith indicated during deposition that they never spoke to counsel about Plaintiff's request for accommodation.").

Case Date Jurisdiction State Cite Checked
2015-09-18 Federal PA
Comment:

key case


Chapter: 38.905
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: 38.905
Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("The documents at issue here are valid work product. However, the Court does not suggest that any and all documents created by an attorney debt collector will be considered work product simply because an attorney creates them. Documents related to ordinary collection activity, including dunning letters and records of telephone collection calls, would likely not qualify as work product because they are part of the debt collection business of the lawyer, not his preparation for a lawsuit. The focus of the work-product inquiry should be on the purpose of the document, i.e., whether the document was created because of the prospect of litigation, rather than solely on who created it.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal DC

Chapter: 38.905
Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 100238 (M.D. La. July 31, 2015)
("[M]any of the email communications do not involve any attorneys, do not otherwise suggest the presence of any attorney-client relationship, and were not made for the purpose of obtaining legal advice. These emails likewise do not contain the mental impressions or trial strategies of counsel. Rather, they consist of communications between DHH employees made for the purpose of carrying out the Department's day-to-day operations. As such, there is no reasonable basis for DHH to withhold these emails pursuant to the attorney client privilege or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal LA

Chapter: 38.905
Case Name: Cardinal Aluminum Company v. Continental Casualty Company, Case No. 3:14-CV-857-TBR-LLK, 2015 U.S. Dist. LEXIS 95361 (W.D. Ky. July 22, 2015)
("Documents prepared as a part of the ordinary business functions of an insurance broker are not prepared as a result of anticipated litigation.")

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal KY

Chapter: 38.905
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(analyzing privilege and work product protection for non-party Syracuse University's investigation into possible child molestation by one of the University's coaches; explaining that the coach's wife had sued ESPN, then sought discovery from the University; concluding that the work product doctrine did not apply; "Even where a party clearly anticipated litigation at the time a document was created, the party asserting privilege still bears the burden of showing that the document would not have been produced in a similar form absent anticipated litigation."; "[W]hile the Jones Affidavit states that the University anticipated litigation at the time of the 2005 investigation . . . It offers no evidence, nor does the University claim now, that the documents produced during the investigation would not have been prepared in the same form absent the prospect of litigation . . . The Jones Affidavit states that BSK frequently handled investigations into employee conduct for the University . . . And that this particular investigation dealt with a sensitive matter . . . But provides no indication that this investigation was conducted differently from other investigations into potential employee misconduct because of the prospect of litigation . . . . Therefore, Judge Peebles did not err in concluding that 'documents generated during the course of that investigation would have been prepared in the ordinary course of business irrespective of whether there was the potential for litigation.'")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 38.905
Case Name: Koester v. YMCA, No. 4:14CV1772 RLW, 2015 U.S. Dist. LEXIS 68886 (E.D. Mo. May 28, 2015)
("Here, the Court finds that Plaintiffs are entitled to the emails. Corporate representative Ms. Goetz testified that she prepared the emails knowing that there was a prospect of litigation, but the testimony does not demonstrate that she prepared them for the purpose of litigation (emphasis supplied). Ms. Goetz stated that she generally documents conversations with parents for her files, a practice she performed after her conversation with Ms. Koester. . . . Further, the emails documenting the conversation were forwarded to other employees of Defendant, not counsel. . . . In addition, the fact that the emails eventually reached Defendant's counsel does not convert them to documents protected by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal MO

Chapter: 38.905
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "A central contention in WMC's argument is that because, beginning in September 2007, the form of documents issued by the WMC repurchase group changed as the result of Jenner & Block's advice and recommendations, all WMC repurchase request documents and communications after that date must constitute attorney work product, immune from discovery. WMC's assertion in that regard is akin to a per se rule requiring work product protection if the documents in question were changed in any way. However, that is a questionable reading of Adlman II [United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)]."; "It is not at all clear that under Second Circuit authority, including Adlman II, the base metal of discoverable course-of-business documents is transformed into the gold of protected attorney work product by the alchemy of a lawyer's presence and participation."; "Documents concerning WMC's responses to DBNTC's loan repurchase requests would seem to have been prepared 'in the regular course of [WMC's] business' rather than 'for purposes of litigation,' and that is so whether or not lawyers suggested changes to the forms the WMC repurchase group used in performing their business function.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.905
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "In contrast, WMC was obligated by its contracts with DBNTC to respond to DBNTC's requests that WMC repurchase troubled underlying mortgages. . . . The Poetzel, Nguyencuu and Berkowitz declarations show that a principal service the Jenner & Block firm rendered to WMC was to advise WMC about how to respond to repurchase requests. That is, in practical effect, giving WMC advice about how to conduct the ordinary course of its business.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.905
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: 38.905
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 Jurisdiction State Cite Checked
2015-01-21 Federal NY
Comment:

key case


Chapter: 38.905
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 Jurisdiction State Cite Checked
2015-01-05 Federal LA
Comment:

key case


Chapter: 38.905
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"; "The court [Kidder Peabody Securities Litigation, 168 F.R.D. 459 (S.D.N.Y. 1996)] was persuaded in part by statements made by the company in a press release announcing the retention of outside counsel, whose role would be 'to lead a comprehensive investigation into what went wrong and to recommend steps to prevent a recurrence.' . . . . The Kidder statement calls to mind Curry's 'Statement to Fellow Employees' wherein he advised that a root cause analysis was being conducted concerning the subject incident and that 'lessons learned' would be applied.")

Case Date Jurisdiction State Cite Checked
2015-01-05 Federal LA

Chapter: 38.905
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (U.S. D.D.C. 2015)
("The documents at issue here are valid work product. However, the Court does not suggest that any and all documents created by an attorney debt collector will be considered work product simply because an attorney creates them. Documents related to ordinary collection activity, including dunning letters and records of telephone collection calls, would likely not qualify as work product because they are part of the debt collection business of the lawyer, not his preparation for a lawsuit. The focus of the work-product inquiry should be on the purpose of the document, i.e., whether the document was created because of the prospect of litigation, rather than solely on who created it.")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 38.905
Case Name: Wultz v. Bank of China Ltd., 304 F.R.D. 384, 395, 396, 396-97 (S.D.N.Y. 2015)
(in an opinion by Magistrate 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 [defendant] 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.'" (citation omitted); "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 [v. Bank of Am, N.A., 240 F.R.D. 96, 106 (S.D.N.Y. 2007)]. 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?" (footnote omitted); "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."; "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 Jurisdiction State Cite Checked
2015-01-01 Federal NY
Comment:

key case


Chapter: 38.905
Case Name: Pinkney v. Winn-Dixie Stores, Inc., Civil Action No.: CV214-075, 2014 U.S. Dist. LEXIS 129604, at *3-4 (S.D. Ga. Sept. 15, 2014)
("Defendant recorded the video of the incident during the routine recording of its store surveillance system. . . . Defendant does not allege that it maintains the surveillance system in anticipation of litigation. . . . It therefore appears that the video of the incident was recorded in the ordinary course of Defendant's business and is not protected work product. Defendant's act of preserving the footage of the incident beyond the time when the system normally deletes videos, though done for the purposes of litigation, is not sufficient to transform the video into work product. At that time, Defendant had a duty to preserve the video to avoid spoliation of evidence.")

Case Date Jurisdiction State Cite Checked
2014-09-15 Federal GA

Chapter: 38.905
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: 38.905
Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("Plaintiff argues that none of the documents are protected by the work product doctrine because they were not made in anticipation of litigation. Underwood asserts that the documents were prepared in anticipation of litigation. These assertions, however, are not accompanied by any facts demonstrating that the documents were produced in anticipation of litigation. Underwood does not point to a time when it and GMAC began to reasonably anticipate litigation and does not demonstrate that the documents would not have been prepared even if litigation was never expected. Accordingly, Underwood has not met its burden of establishing that the sought-after documents are protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2014-05-23 Federal MS

Chapter: 38.905
Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
("'Even if the HHE and RAP were used for compliance purposes after the Report was created for litigation purposes, this would not destroy the protection.'")

Case Date Jurisdiction State Cite Checked
2014-04-24 Federal PA

Chapter: 38.905
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "As to the EIS Report Witness Statements, all three witnesses testified that it was standard operating procedure to fill out the EIS Report Witness Statements, and that they were not specifically instructed to do so by the General Counsel.")

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

Chapter: 38.905
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "[T]he testimony that Internal Incident Investigation Reports are sent to outside counsel in the event that a litigation threat arises is apparently proffered to show its connection with anticipated litigation. . . . However, it actually reveals that those reports are created in substantially the same form regardless of the specific threat of litigation, and the reports are only sent to outside counsel if litigation actually becomes likely.")

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

Chapter: 38.905
Case Name: In the Matter of the Search of Advanced Pain Centers Poplar Bluff v. Ware, Case No. 4:13CV010408AG and Case No. 1:13CV00107 AGF, 2014 U.S. Dist. LEXIS 43177 (E.D. Mo. March 31, 2014)
(finding that a company's Incident Reports reports did not deserve work product protection; "Petitioners have not satisfied their burden to show that the documents were prepared by, or at the behest of, an attorney and in reasonable anticipation of litigation. Petitioners' practice of marking each incident report with the phrase 'Prepared in Anticipation of Litigation' does not magically convert the document to attorney work product. Indeed, many of the reports were completed many years ago, and Petitioners cannot show any reasonable basis for claiming any litigation is anticipated with respect to these matters."; "The record indicates that in the course of the operation of the APCs many different individuals including medical assistants, receptionists, compliance officers, and physicians filled out the forms in the wake of every day mishaps and incidents of many types. The very fact that the incident reports were used in so many different types of situations by personnel with varying qualifications strongly suggests that they were prepared as part of the day-to-day operation of the APCs and not in anticipation of litigation."; also finding the attorney-client privilege inapplicable)

Case Date Jurisdiction State Cite Checked
2014-03-31 Federal MO

Chapter: 38.905
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
("[T]he Court finds that Defendants have not met their burden to prove that they commissioned the Lehmann Report primarily in anticipation of litigation. Rather, the Court concludes that the Lehmann Report served primarily general business and regulatory compliance functions. The fact that Defendants used their legal department to serve as an intermediary between Dr. Lehmann and their other employees does not alter this conclusion.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.905
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(holding that a company's Action Plan dealing with alleged failures of its medical device did not deserve work product protection; "The Plan itself contains no legal analysis and makes no mention of ongoing or anticipated litigation. Rather, the Plan is designed to satisfy regulatory requirements and to assist corporate officers in deciding how to respond to potential issues with the Recovery Filter.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.905
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *18-19 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "Ms. Woodhouse [in-house lawyer for defendant] is among a large group of people copied on the e-mails and she is never mentioned in the body of the e-mails. Her legal opinion is neither requested nor given. The e-mail proposes that the regulatory group prepare a decision paper based on the key points discussed in the product category feedback document (addressed above). Defendant is correct that the document mentions the role of the guidelines as a potential legal defense, but there is no evidence that the document was prepared 'because of' the prospect of litigation; indeed, the transmittal e-mail and the underlying document are primarily focused on the 'science and technology' aspects of the natural claims. This document is not protected by the attorney-client privilege or by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 38.905
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *6, *7, *8, *9, *10-11 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney-client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "Defendant argues that this document was the product of a joint effort by multiple departments at Unilever to create uniform guidelines relating to 'natural' and 'all natural' claims."; "Defendant has attached a declaration from Nancy Schnell, then an in-house counsel, which states that the document relates to Unilever's efforts to create guidelines for 'natural' and 'all natural' claims. . . . Defendant also points out that the document notes that formal approval by the Legal and Regulatory departments is required before making any 'natural' claims and that 'Legal' is listed as the owner of a document referenced internally."; "The document does not contain legal advice, and there is no indication that it was prepared in anticipation of litigation. The document touches briefly on the legislative and regulatory environment for natural claims, including two European court cases. . . . The document mentions, very generally, that legal considerations are involved in making natural claims, but nothing more specific."; "The document was issued by Regulatory Affairs and Legal, but the mere mention of the Legal department in the chain of events of approval of a natural claim is too general and non-specific to be covered by the attorney-client privilege. Unilever treated making a natural claim as a complex decision involving multiple departments, but the mere fact of some Legal Department involvement at various points does not rise to the level of legal advice or a request for legal advice."; "Declarations from Unilever employees that the purpose of the initiative was to ensure compliance with the law and address possible future litigation cannot create a blanket work-product protection for every document related to a particular business venture. . . . Although Exhibit 15 relates generally that natural claims have legal and regulatory implications, and mentions two court cases in Europe, it was prepared in the ordinary course of Unilever's global foods business. That a business such as Unilever's functions in a complex legal and regulatory environment is not enough to anticipate litigation under the 'because of' standard articulated in In re Grand Jury Subpoena, 357 F.3d [900,] 907 [9th Cir. 2004)]. . . . 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
2014-02-21 Federal CA B 7/14

Chapter: 38.905
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: 38.905
Case Name: Lesti v. Wells Fargo Bank N.A., 297 F.R.D. 665, 668 (M.D. Fla. 2014)
("The Court will require Wells Fargo to produce all business records made in the ordinary course of business, in its possession, custody or control relating to Fuchs' [third party] accounts including, but not limited to, correspondence, e-mails, facsimiles, account statements, wire transfer records, cancelled checks, deposit slips, and other documents of these types related to Fuchs' accounts only. Wells Fargo shall not produce documents representing drafts of SARs [suspicious activity reports] or other work product or privileged communications that relate to the SAR itself or internal memorandum prepared as part of a financial institution's process for complying with federal reporting requirements. If the attorney-client privilege or the work-product doctrine applies, then Wells Fargo must produce a privilege log.")

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

Chapter: 38.905
Case Name: Lesti v. Wells Fargo Bank N.A., 297 F.R.D. 665, 667 (M.D. Fla. 2014)
("'[S]upporting documentation' giving rise to a SAR [suspicious activity report] that is generated or received in the ordinary course of business is discoverable." (citation omitted))

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

Chapter: 38.905
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 694 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "[E]ven without the crime-fraud finding, the communications between Intervenors and Attorney do not qualify as protected work product because they were not made 'in the course of preparation for possible litigation.'. . . Attorney's recollections and research are not protected because they were not made in preparation for possible litigation. When Intervenors consulted Attorney in April 2008, there was no litigation on the horizon. Investigation into the transactions that led to the grand jury investigation began nearly two years later. The consultation was made in the ordinary course of a business transaction; therefore, Attorney's recollections are not protected work product.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 38.905
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *18-19 (N.D. Cal. Dec. 17, 2013)
("[T]he fact that there are legal implications to a decision is not enough to give rise to attorney-client privilege where no legal advice is sought or provided, and not enough to give rise to work-product protection where there is no evidence the document was prepared in anticipation of litigation.")

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

Chapter: 38.905
Case Name: Mosley v. Am. Home Assurance Co., Case No. 13-20259-CIV-KING/GARBER, 2013 U.S. Dist. LEXIS 168016, at *8-9 (S.D. Fla. Nov. 26, 2013)
(analyzing privilege protection in a first party insurance situation; "Entries on American Home's privilege log note the withholding of 'Various post-suit emails [and correspondence] with attachments between Powers, McNalis, Torres, Teebagy, Luongo, its employees, and AHAC/AIG/Chartis' on the basis of attorney-client and work-product privileges as well as on relevance grounds. The vagueness of these entries prevents a reasonable evaluation of whether these documents are legitimately being withheld from production. American Home must not only describe the emails and attachments that are being withheld with more detail, including dates, authors, and recipients, but must also specify which privilege or grounds apply, and why, to the withholding of each. For documents being withheld on the basis of work-product privilege, American Home must indicate that those particular emails were created primarily in anticipation of litigation. Even where a document can be characterized as being helpful or important to the instant litigation, if the document has actually been prepared for non-litigation purposes, it must be produced.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal FL B 5/14

Chapter: 38.905
Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *18 (E.D. La. Nov. 8, 2013)
("Courts have looked to factors including whether (1) counsel had been retained, (2) the retained counsel was involved in the generation of the document, and (3) the document was created out of a 'routine practice' or in connection with particular circumstances.")

Case Date Jurisdiction State Cite Checked
2013-11-08 Federal LA B 5/14

Chapter: 38.905
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 *9 (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; "[I]t does not appear that the SGH [outside engineering firm] Report was prepared because of the prospect of litigation. Instead, SEW [general contractor that hired plaintiff for project] appears to have commissioned the Report in order to determine the cause of the cracks. The SGH Report, in other words, was prepared in the ordinary course of business in order to find a solution to a problem.")

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

Chapter: 38.905
Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *99-100 (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 will find that Wells Fargo's identification of UTPs ["uncertain tax positions"] and factual information related to those UTPs is not protected by the privilege because this information was created in the ordinary course of business and not in anticipation of litigation. Second, the Court will determine that the recognition and measurement analysis sought by the summonses is work product because it involves legal analysis prepared in anticipation of litigation. Third, the Court will explain why KPMG's [independent auditor] TAWs ["tax accrual work papers"] and testimony are protected to the same extent as Wells Fargo's TAWs and testimony. Fourth, the Court will explain that the IRS has not shown extraordinary circumstances entitling it to Wells Fargo's work product.")

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

Chapter: 38.905
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *10 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Communications between either Astellas [defendant] or outside counsel and employees of public relations firms Hill & Knowlton and Fleishman-Hillard are neither privileged nor protected work product. Astellas has not shown that communications with either firm were necessary, or at least highly useful, for the rendering of legal advice. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Rather, it appears that both Hill & Knowlton and Fleishman-Hillard provided Astellas with standard public relations services related to the filing and outcome of the citizen petition and any subsequent business or media fallout. Moreover, even if the firms provided public relations advice or documents bearing upon potential litigation over the citizen petition, such materials fall outside the scope of work-product protection, which is intended 'to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.' Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 38.905
Case Name: Fed. Hous. Fin. Agency v. UBS Ams., Inc., No. 11 Civ. 5201 (DLC), 2013 U.S. Dist. LEXIS 43755, at *13 (S.D.N.Y. Mar. 26, 2013)
(holding that the process of opening a loan file did not deserve work product protection; "Cracking does not qualify as work product. Cracking is simply opening a Loan File and retrieving information that allows the Loan File to be identified. The end result of the cracking process may be a spreadsheet containing the resulting information, which typically includes such uncontroversial data as the loan number, the borrower's name and address, and the amount of the loan. Cracking is therefore more like a kind of transcription, albeit time-consuming and costly transcription, than the thought processes or analysis of an attorney.")

Case Date Jurisdiction State Cite Checked
2013-03-26 Federal NY B 3/14

Chapter: 38.905
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: 38.905
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 220 (N.D. Ill. 2013)
(holding that a bank's spreadsheets about low risk analysis did not deserve privilege or work product protection; "[T]he pre-July 2008 spreadsheets prove that the post-July 2008 spreadsheets would have been created regardless of any anticipated litigation. RBS's consistent descriptions that documents with such titles as 'annual review' and 'quarter four meeting agenda' were created at the direction of counsel and should be considered attorney work product 'is an astonishing claim that contravenes the principles that guide the application of privileges.'" (citation omitted))

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

Chapter: 38.905
Case Name: Med. Assurance Co. v. Weinberger, 295 F.R.D. 176, 188 (N.D. Ind. 2013)
("Even if the structure for settling claims was derived through communications with an attorney, such business advice is exempt from the attorney-client privilege, and discovery seeking information of a business's ordinary course of operations is exempt from the work product privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IN B 2/14

Chapter: 38.905
Case Name: Hexion Specialty Chems., Inc. v. Huntsman Corp., 95 A.2d 47, 52 (Del. Ch. 2013)
("The portions of the minutes related to presentations by Merrill Lynch personnel and the corresponding materials consist of business, not legal, advice. The presentations are similar to presentations one would expect from a company's financial advisors in the context of a disputed merger agreement. While some of those presentations address questions raised by the outbreak of litigation, the advice relates to business issues rather than to the conduct or defense of litigation. In sum, it is plain from the materials Merrill Lynch used at the board meetings in question that its advice was given in its capacity as financial advisor. Other than a tag line in the minutes themselves, there is nothing in the documents (including the handwritten notes of the meetings) to indicate that Merrill Lynch was acting in any other capacity. Thus, the claim of work product protection fails as it relates to these documents.")

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

Chapter: 38.905
Case Name: Columbia Data Prods., Inc. v. Autonomy Corp., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *38 (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; "[T]he record demonstrates that the audit report and communications relating to the audit were intended only for CDP's internal use, and not for the purpose of litigation. Under the NDA, PWC agreed to maintain the confidentiality of all information provided to it by Iron Mountain, and to use such information 'solely for the purposes of exercising CDP's audit rights under the [License Agreement].'. . . Additionally, PWC expressly stated when it delivered the draft audit report that the report and all PWC deliverables were intended solely for the internal use and benefit of CDP's management and Board of Directors. . . . Such evidence is entirely inconsistent with the notion that the PWC materials were prepared for litigation or for use at trial.")

Case Date Jurisdiction State Cite Checked
2012-12-12 Federal MA B 8/113

Chapter: 38.905
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 Jurisdiction State Cite Checked
2012-12-12 Federal MA B 8/13

Chapter: 38.905
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *13 14, *15 16 (S.D. Ohio Nov. 13, 2012)
(holding that a 2008 audit conducted by a third party consultant did not deserve work product protection; "Defendants hired URS to conduct an audit of HNCC's facility on August 13 and 15, 2008. Defendants assert the purpose of the audit was to obtain a 'legal' audit of HNCC and to provide outside counsel (Anthony Sullivan of Barnes & Thornburg) with opinions about HNCC's compliance with regulations and laws."; "These events, in themselves, do not indicate that a threat of litigation was the driving force behind the request for the audit when viewed in the context of the July 25, 2008 memorandum by SunCoke's President requesting the audit, the scope of the audit, and the subsequent use of the audit by defendants. The memorandum indicates the purpose of the audit was to assess general compliance with regulatory requirements and company policies, which are primarily business concerns for a regulated entity like HNCC, and not because of a threat of Clean Air Act litigation. The memo does not indicate a concern over a threatened enforcement action by any governmental entity or a concern over litigation. In addition, the 'mid-2008' events cited by defendants in support of their contention occurred after the request for the audit had already been made by SunCoke's President and could not have motivated defendants to seek the URS audit out of a fear of litigation. . . . Additionally, the scope of the audit exceeds that which would be anticipated if the driving force behind the audit was litigation. The audit was described as 'generic' by the Director of Corporate HES and covered all aspects of the facility bolstering the conclusion that the purpose of the audit was to assess regulatory compliance in the ordinary course of business, and not because of the threat of litigation." (footnote omitted))

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

key case


Chapter: 38.905
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *16 n.5 (S.D. Ohio Nov. 13, 2012)
(holding that a 2008 audit conducted by a third party consultant did not deserve work product protection; "[T]he audit included evaluation of medical services and first aid, safety standards for electrical systems, maintenance of industrial trucks, and occupational noise exposure.")

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

Chapter: 38.905
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *16 n.6 (S.D. Ohio Nov. 13, 2012)
(holding that a 2008 audit conducted by a third party consultant did not deserve work product protection; "That SunCoke had not previously retained an outside consultant to perform an HES audit does not persuade the Court that the audit was motivated by the threat of litigation'")

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

key case


Chapter: 38.905
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *3-4 (S.D. Ohio Nov. 13, 2012)
(holding that the attorney-client privilege and the work product doctrine protected drafts of a company's response to the government's notice of violation; "After receiving the July 2009 NOV [Notice of Violation], Pack and Sharp sought legal advice from outside counsel Tosi for purposes of formulating a response to the NOV. Sharp and Pack drafted the initial version of the response to convey facts to counsel, then worked with counsel to revise and prepare a satisfactory response and final version. . . . These corporate representatives often worked with counsel to obtain legal advice and undertood that communications with counsel regarding responses to NOVs were confidential and subject to the attorney-client privilege and protection for work product. . . . The email chain at Tab 17 contains confidential communications between outside counsel and client corporate representatives made for purposes of enabling counsel to provide legal advice to defendants in response to the NOV."; "Counsel . . . requested Pack and Sharp to draft the initial letter in response to the NOV to provide counsel with the relevant factual background. The emails that followed contain draft language to be included in the response to the NOV, as well as comments and opinions about the draft language. Viewing the emails in Tab 16 in the context of the factual circumstances underlying defendants' response to the NOV, the Court determines that the emails were prepared because of the prospect of litigation.")

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

Chapter: 38.905
Case Name: Mills v. State of Iowa, No. 3:10-cv-112-RP-RAW, 2012 U.S. Dist. LEXIS 127761 (S.D. Iowa Aug. 28, 2012)
(holding that neither the attorney-client privilege nor the work product doctrine extended to a law firm's report; "'Neither the attorney-client privilege nor work-product protection would have attached to the Stolar [Law firm] report because from the outset the report was not intended to be a confidential communication by attorney to client, nor was it created because of the prospect of litigation.'")

Case Date Jurisdiction State Cite Checked
2012-08-28 Federal IA

Chapter: 38.905
Case Name: Ravenell v. Avis Budget Grp., Inc., No. 08 CV 2113 (SLT), 2012 U.S. Dist. LEXIS 48658, at *17-18 (E.D.N.Y. Apr. 5, 2012)
(holding that a company's Fair Labor Standards Act audit did not deserve work product protection; "Defendants do not claim that the 2002 03 audit was conducted in order to prepare for litigation; they state only that the 2005 06 audit was 'shaped' by a California Department of Labor Standards Enforcement ('DLSE') investigation and later litigation in that state. . . . This contention does not satisfy the requirement that the document would not have been produced 'but for' the litigation. . . . Indeed, an employer complying with the FLSA must identify its exempt and non exempt employees in the ordinary course of its business and regardless of whether or not it faces litigation.").

Case Date Jurisdiction State Cite Checked
2012-04-05 Federal NY B 4/14

Chapter: 38.905
Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 379 (Pa. Super. Ct. 2012)
("Here, Schreck [Sherwin-Williams marketing representative] testified that his purpose in visiting the site of the Custom Designs fire was based on his concern about the implications the fire could have on what he described as a 'very large customer.'. . . He was not asked to investigate the fire in preparation for litigation; rather, he went to the site for the purpose of aiding a major client.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 38.905
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 Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 38.905
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 225 (Va. Cir. Ct. 2010)
("The Defendant in this case, like the one in Wilson, [Wilson v. Norfolk & Portsmouth Belt Line RR., 69 Va. Cir. 153, 165 (Portsmouth 2005)] did respond immediately to the incident. But as discussed earlier, the contents of the internal memorandum at issue here suggest that the Defendant responds immediately to any incident involving its employees, regardless of the extent of their injuries or the possibility that a claim might follow. . . . [T]he Court deems it likely that this Defendant also sees upwards of 90% of all cases involving incident reports result in claims against the company. Even if that is the case, though, 'the fact that a defendant anticipates the contingency of litigation . . . does not automatically qualify an 'in house' report as work product.' National Union Fire Ins. Co., 967 F.2d at 984 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D. D.C. 1982)).")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 38.905
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 223 (Va. Cir. Ct. 2010)
("Here, what is described in the Second Amended Privilege Log as 'Internal NS Memorandum from Superintendent to General Manager regarding Plaintiff's reportable injury' appears to the Court, based on its in camera review of the document, to be an initial incident report. The memorandum begins by noting, 'The following reportable-injury is reported.' That label makes it appear that such reports regularly distinguish between reportable and non-reportable injuries. Indeed, later on in the report there is also a discussion of the Plaintiff's personal history, which includes the number of reportable injuries and non-reportable injuries sustained by the Plaintiff since he began working for the Defendant. Furthermore, the subtitles used in the report are generic indicators, containing only objective information about the incident without any allusions to opinion or strategy. Taken together, these lines indicate that this type of memorandum is generated when any incident occurs, regardless of the type of injury. If so, then the fact that such a form is prepared even for non-reportable injuries, or minor injuries not likely to result in claims against the railroad company, would mean that the form is not necessarily prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 38.905
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *10 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "These documents do not qualify for protection under the work product doctrine. A 'Transcription of Security Incident Telepages' with annotations, a 'Dictaphone recorder log,' a 'security paper log,' a fax from the Division of Urology containing medical records from a Defendant physician, and patent care records are documents that are created in the ordinary course of business. Because these are not documents that were created in the anticipation of litigation they are not protected by the work-product doctrine. They are therefore discoverable by the plaintiffs.")

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

Chapter: 38.905
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "These documents do not qualify for protection under the work product doctrine. A 'Transcription of Security Incident Telepages' with annotations, a 'Dictaphone recorder log,' a 'security paper log,' a fax from the Division of Urology containing medical records from a Defendant physician, and patent care records are documents that are created in the ordinary course of business. Because these are not documents that were created in the anticipation of litigation they are not protected by the work-product doctrine. They are therefore discoverable by the plaintiff.")

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

Chapter: 38.905
Case Name: Rush v. Sunrise Senior Living, Inc., CL-07-11322, 2008 Va. Cir. LEXIS 12, *14-15 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "I decline to apply the work product doctrine in this case to documents Mr. Rush received, authored or reasonably had access to during his tenure as CFO, and order that Sunrise immediately produce to Mr. Rush all such documents, subject to the attorney client privilege ruling above. All other documents responsible to the discovery requests that Sunrise continues to maintain are work product must be reviewed in camera by Mr. Birken [Special Commissioner]. He shall determine whether the documents in Sunrise's privilege log were or were not 'created in anticipation of litigation' (as opposed to, for example, created in the regular course of business in responding to SEC investigations and/or to its concerned shareholders)."; also directing the Special Commissioner to analyze whether the former CFO could overcome the work product protection) [Woolridge, J.]

Case Date Jurisdiction State Cite Checked
2008-02-12 State VA B 5/09 & 6/09

Chapter: 38.905
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("While document one is addressed to Cintas' [seller of real estate] counsel and labeled 'CONFIDENTIAL WORK PRODUCT', it appears to have been prepared by one of Cintas' administrators, there is absolutely nothing to indicate that it was prepared at the request of Cintas' counsel, and in addition to the attorney it is also addressed to two employees of Environ [Cintas' "environmental remediation contractor"]. The subject does not appear to be litigation, and Cintas has not addressed why they would be sharing litigation or trial preparation materials with another company. Document two is addressed to two of Cintas' attorneys, but it is also addressed to an Environ employee, and although it suggests litigation there is nothing to indicate that it was prepared in anticipation of litigation. Rather the subject appears to be the ongoing environmental remediation work, and when that work might be complete.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA

Chapter: 38.905
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("Nor does the fact that Cintas' attorneys are carbon copied on the emails, nor do the various blanket 'privileged and confidential' labels attached without apparent regard to content."; "While document one is addressed to Cintas' counsel and labeled 'CONFIDENTIAL WORK PRODUCT', it appears to have been prepared by one of Cintas' administrators, there is absolutely nothing to indicate that it was prepared at the request of Cintas' counsel, and in addition to the attorney it is also addressed to two employees of Environ. The subject does not appear to be litigation, and Cintas has not addressed why they would be sharing litigation or trial preparation materials with another company. Document two is addressed to two of Cintas' attorneys, but it is also addressed to an Environ employee, and although it suggests litigation there is nothing to indicate that it was prepared in anticipation of litigation. Rather the subject appears to be the ongoing environmental remediation work, and when that work might be complete.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA B 9/10

Chapter: 38.905
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 238 (Va. Cir. Ct. 2008)
("Documents prepared in the ordinary course of business are not protected by the work product doctrine. See, Commonwealth v. Edwards, 235 Va. 499, 508, 370 S.E.2d 296, 4 Va. Law Rep. 3003 (1988).")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA

Chapter: 38.905
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 Jurisdiction State Cite Checked
2007-01-01 State VA

Chapter: 38.905
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("While RLI did hire outside counsel to interface with Conseco, hiring outside counsel does not excuse RLI from its duty to investigate insurance claims. RLI submitted no specific evidence that it would have conducted the 'reasonableness' investigation differently had no litigation been anticipate. RLI therefore fails the 'but for' formulation of National Union's requirement that work product be created 'because of' litigation in order to receive work product protection.")

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

Chapter: 38.905
Case Name: Witzke v. Martha Jefferson Surgery Ctr., LLC, 70 Va. Cir. 217, 219, 220 (Va. Cir. Ct. 2006)
(assessing the work product claim for an incident report created by a nurse after a surgical patient suffered a heart attack; "Determining whether something has occurred in the ordinary course of business is a factual inquiry. The Supreme Court of West Virginia found a nurse's incident report to be discoverable because there was evidence that such reports were prepared in connection with any event that occurs during a hospital stay which is non-routine. . . . The same court, however found that an investigative committee's investigative report was work product, because its motivating purpose was to assist in pending or probable litigation."; citing several earlier Virginia Circuit Court cases holding that incident reports containing simple facts did not deserve protection as quality assurance deliberative documents or as work product; "The weight of the evidence supports the conclusion that under Virginia law, a factual incident report is not work product and is not protected from discovery by statute. Because there is no evidence that this was a report specially prepared for quality assurance purposes, it appears to be a medical record kept with respect to the patient in the ordinary course of business of operating a hospital. Therefore, the Court rules the incident report should be produced and grants the Motion to Compel."; ordering production of the incident report)

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

Chapter: 38.905
Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 233 (Va. Cir. Ct. 2005)
(assessing work product protection for medical incident reports after an infant died; concluding that the work product doctrine did not apply;"'When materials are accumulated in the ordinary course of business or other non-litigation purposes, then they are not protected by the work-product doctrine.' RML Corp., 60 Va. Cir. at 274. 'Whether investigative reports or files are discoverable or are protected work product has been the subject of disagreement among the Virginia circuit courts, and the Supreme Court of Virginia has not decided this issue.' McDonald v. Sentara Medical Group, 64 Va. Cir. 30 (Norfolk 2004).")

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

Chapter: 38.905
Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("When materials are accumulated in the ordinary course of business or other non-litigation purposes, then they are not protected by the work-product doctrine. See Edwards, 235 Va. at 510, 370 S.E.2d at 302.")

Case Date Jurisdiction State Cite Checked
2002-01-01 State VA

Chapter: 38.905
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: 38.905
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: 38.905
Case Name: Ring v. Mikris, Inc., 40 Va. Cir. 528, 531 (Va. Cir. Ct. 1996)
("materials assembled in the ordinary course of business or for other non-litigation purposes are not under the qualified immunity" of the work product doctrine)

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

Chapter: 38.905
Case Name: Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367, 368 (Va. Cir. Ct. 1992)
(addressing work product protection for witness statements taken by a grocery store after plaintiff's slip and fall; ultimately finding that the statements did not deserve work product protection; "It is clear that the statements taken from Glenn and Phelps in the instant case were done in the ordinary course of business of the Defendant. Applying either the reasonably foreseeable test or the ordinary course of business test, however, the Court does not believe that these statements were prepared in anticipation of litigation. No notice of litigation had been given, and no suit had been filed. Additionally, these types of investigations can be done for other reasons such as safety modifications, insurance reports, workers compensation claims, and other statistical reasons.")

Case Date Jurisdiction State Cite Checked
1992-01-01 State VA B 12/09

Chapter: 38.905
Case Name: National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)
("The 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. . . . [M]aterials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of Rule 26(b)(3).")

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

key case


Chapter: 38.905
Case Name: Atkinson v. Thomas, 9 Va. Cir. 21, 23 (Va. Cir. Ct. 1986)
(holding that a hospital incident report was prepared "in the ordinary course of the business of Virginia Beach General Hospital" and, therefore, was not prepared in "anticipation of litigation" for work product purposes)

Case Date Jurisdiction State Cite Checked
1986-01-01 State VA

Chapter: 38.905
Case Name: Goosman v. A. Duie Pyle, Inc., 320 F.2d 45, 52 (4th Cir. 1963)
(holding that reports "were made in the ordinary course of business under ICC regulations and do not represent the lawyer's work product")

Case Date Jurisdiction State Cite Checked
1963-01-01 Federal

Chapter: 38.907
Case Name: Merriweather v. UPS, Case No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS 124383 (W.D. Ky. July 25, 2018)
(analyzing product issues related to a post-accident investigation; "For RPD No. 2, Merriweather argues that the internal accident investigation report, completed on May 27, 2015 by Defendant UPS is performed as part of Defendant UPS' business process. Defendant UPS maintains that even though the internal accident investigation report serves an ordinary business purpose, it was also prepared in anticipation of litigation and should therefore be protected. However, Defendant UPS has failed in carrying its burden of showing that the driving force behind preparing the internal investigation report was because of the anticipated litigation rather than its ordinary business purpose.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal KY

Chapter: 38.907
Case Name: Shook v. Love's Travel Stops & Country Stores, Inc., No. CV-17-398, 2017 Ark App. 666 (Ark. App. Dec. 6, 2017)
(holding that a post-accident incident report did not deserve work product protection because it was prepared in the ordinary course of defendant's business; "In the present case, this incident report was required by Love's internal practices and procedures, was prepared by a store manager immediately after Shook's fall for the express purpose of informing his superiors of what happened, and was prepared years before any litigation ensued. We hold that the report constituted a document prepared in the regular course of business rather than for purposes of the litigation. The trial court erred in finding that it constituted 'work product' as defined under Arkansas law.")

Case Date Jurisdiction State Cite Checked
2017-12-06 State AR

Chapter: 38.907
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; "Defendant relies on Eisenberg v. Carnival Corp., Case No. 07-22058-CIV-TORRES, where the court found Carnival's accident report subject to the work-product privilege. In that case, however, the court specifically noted that the accident report was detailed on a form created by Carnival's counsel. Here, the witnesses jotted down their statements on blank paper. Some are handwritten and others are typed. None of the statements are on a special form created by counsel. Therefore, this Court does not agree that these reports are like those the court examined in Eisenberg and the Court does not find the documents are subject to the work-product privilege.")

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

Chapter: 38.907
Case Name: Goff v. United Rentals, Case No. 2:16-cv-608, 2017 U.S. Dist. LEXIS 46588 (E.D. Va. March 28, 2017)
(after an in camera review, concluding that documents held as work product were created in the ordinary course of business after a workplace injury; "The emails, which concern and discuss events at or near the time of the accident at issue, are relevant to both Plaintiff's claims and United Rentals' defense, and United Rentals does not claim otherwise. Moreover, production of these emails is not burdensome and no contention has been made that the request for them is not proportional to the needs of the case. United Rentals does not rest its claim of work product on the 'opinion work product' prong of the immunity. Instead, it claims the emails are protected from disclosure because they were exchanged between themselves and their third party insurance administrator in anticipation of litigation. . . . District courts within the Fourth Circuit have stated that work done as part of the 'insurer's ordinary course of business' is not protected work product. . . . ('Unlike files generated while investigating whether to deny a first-party claim, which are generally not considered to have been prepared in anticipation of litigation, insurance claim files generated in relation to investigating and defending against third-party claims are generally considered work-product because they were clearly prepared for the purposes of the underlying litigation, rather than in the insurer's ordinary course of business.'"); see also, Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 332 (N.D.W.Va. 2006); Ring v. Commercial Union Ins. Co., 159 F.R.D. 653, 660 (M.D.N.C. 1995) ('[T]he general rule is that a reasonable possibility of litigation only arises after an insurance company has made a decision with respect to the claim of its insured. Therefore, and in general, only documents accumulated after the claim denial will be done in anticipation of litigation')."; "Upon in camera review of the emails, the undersigned FINDS that the materials do not constitute protected work product prepared in anticipation of litigation. The emails between United Rentals and Liberty Mutual were sent in the ordinary course of business immediately following an industrial accident, and were ordinary communications between an insured and an insurer concerning the circumstances of the accident. Indeed, '[f]ollowing any industrial accident, it can be expected that designated personnel will conduct an investigation, not only out of concern for future litigation, but also to prevent reocurrences, to improve safety and efficiency in the facility, and to respond to regulatory obligations.' Nat'l Union Fire Ins. Co., 967 F.2d at 984."; "'Although Liberty Mutual apparently is United Rentals' third party insurance administrator and not its direct insurer, this distinction makes no practical difference to the legal analysis of the work product immunity doctrine.'")

Case Date Jurisdiction State Cite Checked
2017-03-28 Federal VA

Chapter: 38.907
Case Name: Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kan. Feb. 24, 2016)
April 13, 2016 (PRIVILEGE POINT)

"How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part I)"

Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a post-accident investigation was motivated by anticipated litigation rather than conducted in the ordinary course of their business?

In Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kan. Feb. 24, 2016), the court denied work product protection for defendant's incident report following a slip and fall accident. The court cited the incident report's author, who admitted preparing the report "before talking with a risk manager or attorney" – thus demonstrating that she "prepared her portion of the report in the usual course of business." Id. At *7. The court also reviewed the incident report in camera before denying defendant's work product assertion.

Courts assessing post-accident investigations usually examine their context (described in testimony or affidavits) – and sometimes read the withheld documents in camera. The next Privilege Point focuses on a medical device company's successful work product assertion for a post-accident investigation.

Case Date Jurisdiction State Cite Checked
2016-02-24 Federal KS
Comment:

key case


Chapter: 38.907
Case Name: Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kansas Feb. 24, 2016)
(finding that defendant prepared a post-accident report about a slip and fall in the ordinary course of his business, so that the report did not deserve work product; allowing the redaction of one sentence; "Defendant argues counsel became involved only two hours after Plaintiff's fall and the Summary was not created until the following day. It claims the document was created under the direction of counsel, constitutes attorney work product, and must be protected from disclosure."; "Defendant has not satisfied its burden to demonstrate the work product protection applies to bar production of the entire Summary. Plaintiff cites the deposition testimony of Ms. Klaverweiden, the hospital employee who created the incident report, which demonstrates she prepared the report immediately after taking Plaintiff to the emergency room, before talking with a risk manager or attorney. Because 'materials prepared in the ordinary course of business or for nonlitigation purposes are not protected by work product doctrine,' and the evidence provided to the Court reveals Ms. Klaverweiden prepared her portion of the report in the usual course of business, the incident report itself does not constitute work product and the Summary is not entirely protected from disclosure by the work product privilege."; "At hearing, Defendant offered, and the Court accepted, the entire Summary for in camera review. In its review, the Court noted one instance on page 9 of the report which includes advice from Karen Vogt, Defendant's in-house counsel, and therefore constitutes attorney-client/work product information. That portion of the Summary is ordered redacted.")

Case Date Jurisdiction State Cite Checked
2016-02-24 Federal KS
Comment:

key case


Chapter: 38.907
Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197 SECTION: "A"(5), 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
March 4, 2015 (PRIVILEGE POINT)

“Courts Focus on the Work Product Doctrine's "Motivation" Element”

The work product doctrine protection rests on three elements: (1) litigation; (2) anticipation; (3) motivation. In normal civil or criminal litigation, the first element presents an easy analysis. Most lawyers' attention focuses on the second element — whether their clients reasonably anticipate litigation. But the third element represents the real key to work product protection.

Even if the client is in the midst of litigation, or reasonably anticipates litigation, the work product doctrine only protects documents motivated by that litigation. In Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197 SECTION: "A"(5), 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015), Chevron in-house lawyers initiated and directed what they labeled a "legally chartered" root cause investigation after a fatal pipeline explosion. In analyzing the motivation element the court described as the "salient question" whether "'legally chartered' root cause analyses are different in kind than those 'other' root cause analyses routinely conducted by Chevron." Id. at *28. The court ultimately rejected Chevron's work product claim, pointing to: (1) deposition testimony by a Chevron engineer "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,'" and "that it is 'part of the Chevron ordinary course of business to conduct a root cause analysis' after an incident" (id. at *25); (2) Chevron Pipeline's President's statement in an employee newsletter that "[w]e are conducting root cause analyses of both incidents and will apply lessons learned. Our ultimate goal remains the same - an incident and injury-free workplace. " (id. at *27); (3) Chevron's failure to provide the court examples of Chevron's ordinary root cause analyses — noting that Chevron's argument that its ordinary "incident reviews" were different from its "legally chartered" investigation "would be more convincing if there was actually another root cause analysis from which to distinguish the legally chartered one." Id. at *29.

To satisfy the work product motivation element, companies must demonstrate that they did something different or special because they anticipated litigation — beyond what they ordinarily would do, or which they were compelled to do by external or internal requirements.

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

key case


Chapter: 38.907
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: 38.907
Case Name: Reid v. Transocean Offshore Deepwater Drilling, Inc., Civil Action No. 13-6080 SECTION "I" (2), 2014 U.S. Dist. LEXIS 83045, at *9-10 (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; "The documents I reviewed contain very little input from defendant's attorneys, and almost none directly to Shuman, before Reid approached maximum medical improvement and settlement of his claim became a real possibility. Shuman's mere transmittal of documents to Transocean's attorneys does not make them work product. It appears that the attorneys monitored Shuman's handling of the claim, but did not direct the investigation or management of the claim until the time came to try to settle. Riess wrote a liability and damages opinion on June 28, 2012, and then became more involved in settlement recommendations. Shuman handled settlement negotiations based on Riess's recommendations. Riess finalized the settlement agreement on July 12, 2012.")

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

Chapter: 38.907
Case Name: Mega Manufacturing, Inc. v. The Eighth Judicial Dist. Ct. of the State of Nevada, No. 62396, 2014 Nev. Unpub. LEXIS 844 (Nev. May 30, 2014)
(holding that neither the attorney-client privilege nor the work product doctrine protected a post-accident investigation into an injury caused by a manufacturing machine)

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal NV

Chapter: 38.907
Case Name: Hooke v. Foss Maritime Co., Case No.13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. Apr. 10, 2014)
July 30, 2014 (PRIVILEGE POINT)

"Do Corporations Enhance Their Work Product Claims by Sending Post-Accident Reports to Outside Counsel?"

The work product doctrine can protect documents created in anticipation of litigation — as long as they were motivated by that litigation. The doctrine does not protect documents created in the ordinary course of business, or pursuant to some external or internal requirement. In essence, litigants must prove that they did something different or special because they anticipated litigation.

In Hooke v. Foss Maritime Co., Case No.13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. Apr. 10, 2014), defendant claimed work product protection for documents created after plaintiff suffered job-related injuries. After noting that the defendant's internal processes required investigation reports after nearly every accident, the court turned to the company's argument that "the [post-accident] process is overseen in some way by the General Counsel." Id. at *11. The court surmised that "testimony that Internal Incident Investigation Reports are sent to outside counsel in the event that a litigation threat arises is apparently proffered to show its connection with anticipated litigation." Id. However, the court concluded that the testimony hurt defendant's work product claim — because it "actually reveals that those reports are created in substantially the same form regardless of the specific threat of litigation, and the reports are only sent to outside counsel if litigation actually becomes likely." Id. (emphasis added).

Some companies eventually regret their attempt to bolster a work product claim by involving lawyers in the post-accident process. Here, the supposedly helpful testimony instead confirmed that the company prepared the post-accident reports sought by plaintiff in the ordinary course of its business. Ironically, sending every post-accident report to a lawyer might have the same adverse effect — because the company could not prove that it did something different or special because it anticipated litigation.

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal CA
Comment:

key case


Chapter: 38.907
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "[T]he testimony that Internal Incident Investigation Reports are sent to outside counsel in the event that a litigation threat arises is apparently proffered to show its connection with anticipated litigation. . . . However, it actually reveals that those reports are created in substantially the same form regardless of the specific threat of litigation, and the reports are only sent to outside counsel if litigation actually becomes likely.")

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

Chapter: 38.907
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(holding that a company's Action Plan dealing with alleged failures of its medical device did not deserve work product protection; "The Plan itself contains no legal analysis and makes no mention of ongoing or anticipated litigation. Rather, the Plan is designed to satisfy regulatory requirements and to assist corporate officers in deciding how to respond to potential issues with the Recovery Filter.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 38.907
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: 38.907
Case Name: Love v. Sears, Roebuck & Co., Civ. A. No. 3:13-CV-402-S, 2014 U.S. Dist. LEXIS 33141, at *2, *4, *4-5 (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."; "On closer analysis of the facts specific to this case, the magistrate judge concludes the incident report is not privileged work product because it was prepared in the ordinary course of business. In his affidavit, Moody acknowledges that he prepared the report to preserve the information in case the claim resulted in future litigation. Sears explains that it has established the policy to have its employees prepare a customer incident report as close to the time of the incident as possible to assist in defending lawsuits. The plaintiff seizes on the Sears company policy and argues that because its employees are required to prepare a report for every incident, the defendant cannot satisfy the Roxworthy [United States v. Roxworthy, 457 F.3d 590 (6th Cir. 2006)] test -- limiting the work-product privilege to documents prepared 'because of' the prospect of litigation."; "The magistrate judge agrees with the plaintiff. Handling claims is part of the ordinary business of a retailer. . . . As its policy requires, every Sears incident report is prepared in the same form, irrespective of anticipated litigation. The policy itself exists because of the prospect of litigation, generally, and this report was completed not because specific facts alerted the report's preparer to expect litigation from this customer. In the magistrate judge's view, absent more fact-specific circumstances, the prospect of litigation remains too remote to justify extending the work-product privilege to the incident report.")

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

Chapter: 38.907
Case Name: Nelson v. Intercontinental Hotels Group Operating Corp., Case No. 12 CV 8485, 2013 U.S. Dist. LEXIS 157262 (N.D. Ill. Nov. 1, 2013)
(holding that neither the attorney-client privilege nor the work product doctrine protected a post-accident investigation following an accident at a hotel; "Defendants failed to show that this protection applies here. The doctrine protects documents prepared by an attorney or the attorney's agent in anticipation of litigation for purposes of analyzing, evaluating, and preparing a client's case.")

Case Date Jurisdiction State Cite Checked
2013-11-01 Federal IL

Chapter: 38.907
Case Name: McPherson v. Wells Fargo Bank, N.A., Case No. 13-CIV-20545-MOORE/TORRES, 2013 U.S. Dist. LEXIS 150441, at *4 (S.D. Fla. Oct. 4, 2013)
(holding that the work product doctrine did not protect documents created after an injury occurring at a bank; "Moreover, even accepting as true the statement in her affidavit that she filled out the online form because she thought the bank would be sued, she explained that the form asked only for basic information about the injured person, and nothing about the incident itself. This is not likely the type of information that would routinely be provided to an employer to aid in a future defense.")

Case Date Jurisdiction State Cite Checked
2013-10-04 Federal FL B 5/14

Chapter: 38.907
Case Name: McPherson v. Wells Fargo Bank, N.A., Case No. 13-CIV-20545-MOORE/TORRES, 2013 U.S. Dist. LEXIS 150441, at *3-4 (S.D. Fla. Oct. 4, 2013)
(holding that the work product doctrine did not protect documents created after an injury occurring at a bank; "We find that Defendant has not demonstrated that the incident report was prepared in anticipation of litigation. Fernandez never said in her deposition that she was instructed to contact Risk Management and fill out and submit an online form each time an accident occurred because litigation was likely to ensue. To the contrary, she acknowledged that preparing incident reports was an ordinary part of her duties as a manager. . . . Nothing Fernandez said during her deposition or in her affidavit suggests that 'the primary motivating purpose behind the creation of the document was to aid in possible future litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-10-04 Federal FL B 5/14

Chapter: 38.907
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 223 (Va. Cir. Ct. 2010)
("Here, what is described in the Second Amended Privilege Log as 'Internal NS Memorandum from Superintendent to General Manager regarding Plaintiff's reportable injury' appears to the Court, based on its in camera review of the document, to be an initial incident report. The memorandum begins by noting, 'The following reportable-injury is reported.' That label makes it appear that such reports regularly distinguish between reportable and non-reportable injuries. Indeed, later on in the report there is also a discussion of the Plaintiff's personal history, which includes the number of reportable injuries and non-reportable injuries sustained by the Plaintiff since he began working for the Defendant. Furthermore, the subtitles used in the report are generic indicators, containing only objective information about the incident without any allusions to opinion or strategy. Taken together, these lines indicate that this type of memorandum is generated when any incident occurs, regardless of the type of injury. If so, then the fact that such a form is prepared even for non-reportable injuries, or minor injuries not likely to result in claims against the railroad company, would mean that the form is not necessarily prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA B 3/16
Comment:

key case


Chapter: 38.907
Case Name: Warner v. United States, C.A. No. 09-036ML, 2009 U.S. Dist. LEXIS 101688, at *7-8 (D.R.I. Nov. 2, 2009)
(denying work product protection for forms created by the Postal Service after an accident; noting that one form indicated that the information would be used for essentially a business purpose; one form was required to be prepared after all accidents, however minor and would be used for essentially business purposes; "PS Form 1769 does not include a statement of purpose but the Postal Service has represented in other litigation that its 'policy requires that any accident involving a motor vehicle, no matter how minor, must be documented by the supervisor in an accident report on Form 1769.'. . . there is absolutely no rationale basis upon which to argue that the 'preventive action' Section on PS Form 1769 was prepared in anticipation of litigation when its stated purpose is to prevent similar accidents in the future.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-11-02 Federal RI

Chapter: 38.907
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 Jurisdiction State Cite Checked
2007-01-01 State VA

Chapter: 38.907
Case Name: Carroll v. Praxair, Inc., No. 2:05-cv-307, 2006 U.S. Dist. LEXIS 43991, at *11 (W.D. La. June 28, 2006)
(denying work product protection for materials generated during an investigation following a truck driver's injury on company premises; acknowledging that the company's lawyer was involved in the investigation, but noting that the lawyer's involvement may have been the ordinary course of business; "While the involvement of Praxair's Law Department in the investigation supports a finding that the events were documented with the general possibility of litigation in mind, there is nothing before the court to indicate whether all investigations of accidents were conducted under the direction of the Praxair's Law Department or whether Praxair had a particularized reason to believe that litigation would result from this accident, thereby necessitating the involvement of its legal department.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2006-06-28 Federal LA
Comment:

key case


Chapter: 38.907
Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 235 (Va. Cir. Ct. 2005)
(assessing work product protection for medical incident reports after an infant died; concluding that the work product doctrine did not apply;"He has not offered any indications that the reports, which are required by his insurer any time an incident such as the one giving rise to this litigation occurs, are not used for any other purpose by the insurer. It is doubtful that every such report involves an incident which leads to litigation. It is more difficult to classify the second report as having been prepared in the regular course of the insurer's or defendant's business, but defendant has failed to carry his burden of establishing otherwise. In this report, defendant reported that plaintiff had picked up a copy of her medical file and that a third party had informed him that plaintiff was 'going to see a lawyer.' Had defendant produced testimony that the reports are not used for any other purpose, such as for establishing malpractice insurance premiums or statistics, then such evidence would have helped establish that the reports are taken in anticipation of litigation. Instead, it appears that these reports are taken as a matter of routine. As such, they are not entitled to exclusion from discovery.")

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

Chapter: 38.907
Case Name: Poseidon Oil Pipeline Co. v. Transocean Sedco Forex, Inc., Civ. A. No. 00-760 c/w 00-2154 SECTION "I"(2), 2001 U.S. Dist. LEXIS 18553 (E.D. La. Oct. 30, 2001)
(denying work product protection for documents created following a pipeline accident; noting that the defendant had not followed its own procedures, which required a lawyer's involvement if the company anticipated litigation; "Based on the current record, particularly the detailed description of Transocean's procedures in the HS&E Manual, including the differentiation made in the manual concerning attorney involvement when litigation is anticipated and no attorney involvement when litigation is not anticipated, and the absence in Ward's declaration or the reports prepared by the other members of the investigation team of any indication that attorneys were directly involved in the investigation, it is most probable that Transocean would have undertaken the same investigation regardless whether litigation was anticipated.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2001-10-30 Federal LA

Chapter: 38.907
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: 38.907
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

Chapter: 38.907
Case Name: Broadnax v. ABF Freight Sys., Inc., 180 F.R.D. 343, 347 (N.D. Ill. 1998)
(after reviewing several reports created by a trucking company after a fatal automobile accident, concluding that most of the reports would have been prepared regardless of the threat of litigation and therefore did not deserve work product protection, while a report entitled 'Fatality Accident Report' discussed 'witnesses and possible defenses to a claim' and 'contain impressions regarding defendant's potential liability' and therefore 'were clearly prepared in anticipation of litigation and contain information that is beyond discovery under the work product doctrine.'")

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal IL

Chapter: 38.907
Case Name: Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367, 368 (Va. Cir. Ct. 1992)
(addressing work product protection for witness statements taken by a grocery store after plaintiff's slip and fall; ultimately finding that the statements did not deserve work product protection; "It is clear that the statements taken from Glenn and Phelps in the instant case were done in the ordinary course of business of the Defendant. Applying either the reasonably foreseeable test or the ordinary course of business test, however, the Court does not believe that these statements were prepared in anticipation of litigation. No notice of litigation had been given, and no suit had been filed. Additionally, these types of investigations can be done for other reasons such as safety modifications, insurance reports, workers compensation claims, and other statistical reasons.")

Case Date Jurisdiction State Cite Checked
1992-01-01 State VA B 12/09

Chapter: 38.907
Case Name: Blough v. Food Lion, Inc., 142 F.R.D. 622, 624 & n.2 (E.D. Va. 1992)
(addressing work product protection for a post-accident incident report prepared by a food store after the plaintiff's injury; ultimately concluding that the report did not deserve work product protection; "At the hearing on July 29, 1992, other than the accident report itself, Food Lion presented no evidence that it wrote the report in anticipation of litigation. . . . It stated through counsel, however, that it routinely creates accident reports for all known third party accidents immediately following the accidents. Food Lion created the accident report in this case on the day Blough was injured in the store. Food Lion did not at that time face an 'actual claim.' Nor has Food Lion presented evidence of circumstances that would suggest that it faced 'a potential claim . . . that reasonably could result in litigation.'" (citation omitted); "Food Lion argued that the form of the report itself and the instructions on it identify it as more than a mere business record; rather, specific language on the report indicates that Food Lion made it in anticipation of litigation. Such form language, however, does not control the determination of whether Food Lion wrote this particular accident report in anticipation of litigation."), vacated and remanded on other grounds by 1993 U.S. App. LEXIS 21725 (4th Cir. August 24, 1993) (unpublished opinion)

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA B 12/09

Chapter: 38.908
Case Name: Bozza v. Port Auth. Trans Hudson Corp., 17-CV-2103 (LAK) (JLC), 2017 U.S. Dist. LEXIS 203358 (S.D.N.Y. Dec. 11, 2017)
(holding that a post-accident investigation (including related witness statements) deserved work product protection because they were not created in the ordinary course of the defendant's business; "Here, Lunan attests that 'the Claims Division investigated the alleged injury of Dean Bozza in order to prepare for a subsequent claim,' that the witness statements 'were obtained in anticipation of litigation in this matter,' and that the statements 'were not obtained by PATH in the normal course of business since the Claims Division is not a division of PATH'. . . . As such, per Lunan's sworn affidavit, the witness statements fall within the protections of the work product doctrine and are not discoverable."; "Bozza also contends that even if the witness statements were obtained 'in anticipation of litigation,' they were obtained as part of an investigation that was performed pursuant to 49 U.S.C. § 20901, and 'statements taken as a result of any such investigation are considered to be documents prepared in the normal course of business and are therefore discoverable'. . . . However, PATH convincingly explains -- supported by Lunan's sworn affidavit -- that the witness statements were not obtained as part of PATH's statutory investigation under Section 20901, and thus should not be considered to have been prepared in the ordinary course of its business.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal NY

Chapter: 38.908
Case Name: Meyer v. NCL (Bahamas), Ltd., Case No. 16-23238-CIV-WILLIAMS/SIMONTON, 2017 U.S. Dist. LEXIS 125045 (S.D. Fla. Aug. 8, 2017)
(holding that an investigation following a physical assault on a cruise ship deserved work product protection; also holding that the cruise line did not waive that work product protection by providing witness statements to the FBI; "Because the incident report was prepared at the direction of counsel in anticipation of litigation, the undersigned finds that the incident report is protected by the work product doctrine. . . . Additionally, an in camera review of the documents indicates that the incident report in particular was a collection of information that is geared towards the defense of litigation. Such reports are protected by the work product doctrine. . . . because the incident report was not provided to the FBI or any other third party, it is not necessary to determine whether the protection was waived."; "Similarly, the undersigned finds that the notes completed by security officers Herring and Shrestha are protected under the work product doctrine. The undersigned finds the Defendant's assertion that the notes were compiled as part of the Defendant's procedures in anticipation of litigation persuasive, and the Plaintiff has not met her burden to show that she has substantial need or undue burden regarding the notes."; "An in camera review of the witness statements gives credence to the Defendant's assertion that the witnesses statements were taken in anticipation of litigation. . . . The witnesses statements are written on a prepared form provided by the Defendant and indicate that the statements were taken by the Defendant's personnel. As other courts have done previously, the undersigned finds that such documents were prepared in anticipation of litigation and are therefore protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-08-08 Federal FL
Comment:

key case


Chapter: 38.908
Case Name: Meyer v. NCL (Bahamas), Ltd., Case No. 16-23238-CIV-WILLIAMS/SIMONTON, 2017 U.S. Dist. LEXIS 125045 (S.D. Fla. Aug. 8, 2017)
(holding that an investigation following a physical assault on a cruise ship deserved work product protection; also holding that the cruise line did not waive that work product protection by providing witness statements to the FBI; "Because the incident report was prepared at the direction of counsel in anticipation of litigation, the undersigned finds that the incident report is protected by the work product doctrine. . . . Additionally, an in camera review of the documents indicates that the incident report in particular was a collection of information that is geared towards the defense of litigation. Such reports are protected by the work product doctrine. . . . because the incident report was not provided to the FBI or any other third party, it is not necessary to determine whether the protection was waived."; "Similarly, the undersigned finds that the notes completed by security officers Herring and Shrestha are protected under the work product doctrine. The undersigned finds the Defendant's assertion that the notes were compiled as part of the Defendant's procedures in anticipation of litigation persuasive, and the Plaintiff has not met her burden to show that she has substantial need or undue burden regarding the notes."; "An in camera review of the witness statements gives credence to the Defendant's assertion that the witnesses statements were taken in anticipation of litigation. . . . The witnesses statements are written on a prepared form provided by the Defendant and indicate that the statements were taken by the Defendant's personnel. As other courts have done previously, the undersigned finds that such documents were prepared in anticipation of litigation and are therefore protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-08-08 Federal FL
Comment:

key case


Chapter: 38.908
Case Name: Patel v. Kensol-Franklin, Inc., Civ. A. No. 3:14-1439, 2016 U.S. Dist. LEXIS 36684 (M.D. Pa. March 22, 2016)
(in a bad faith insurance case, analyzing privilege and work product protection for a post-accident investigation; finding that both protections applied; "The court finds that this report was not complied in the ordinary course of business since it was intended to assist attorney Michael with an OSHA investigation as well as to implement post-accident modifications. It makes no difference that Hunter [Employee] prepared the report since the work-product doctrine also protects 'materials prepared by an attorney's agent.'. . . The report and the referenced communications involving the accident investigation performed at the direction of attorney Michael also are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal PA

Chapter: 38.908
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.'")

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

key case


Chapter: 38.908
Case Name: Brown v. NCL (Bahamas), Ltd., Case No. 15-21732-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 165346 (S.D. Fla. Dec. 9, 2015)
(analyzing work product issues in connection with a post-accident investigation of an assault on a cruise ship; presenting the factual scenario and finding work product protection for the alleged assailant's statement; "In response to a discovery request, NCL identified on a privilege log a statement from the alleged attacker. To support its privilege claim (and in response to a Court order . . . requiring a sworn explanation of the circumstances surrounding the statement's preparation), NCL submitted an affidavit . . . from Jeffrey N. Anderson, its Vice President and Assistant General Counsel, Claims. In that affidavit, Mr. Anderson explained that NCL's counsel has provided standing advice requiring on-board staff to prepare an accident/incident report whenever a passenger reports an injury. Counsel's advice is that NCL conduct an investigation, which includes the taking of witness statements. The completed incident reports, including any witness statements taken at or near the time of the accident or incident, are confidential and are made available only to counsel and/or NCL's claims department."; "Plaintiff challenges the work-product status of the statement, not the arguable waiver created from the disclosure. Her reply memorandum . . . argues that NCL took the statement in the ordinary course of business because its policies require ship security officers to investigate and prepare a report following the discovery of a potential criminal event onboard a vessel or at sea -- and to take relevant statements."; "The Undersigned appreciates Plaintiff's point, but Anderson's affidavit is persuasive and convinces me that the statement is in fact entitled to work-product protection.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal FL

Chapter: 38.908
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 trial court concluded that three of the four paragraphs in the Clarno report were prepared in anticipation of litigation. Doehne does not challenge this conclusion. We question whether paragraphs in a single document can be prepared for different purposes. Nevertheless, we turn to Doehne's argument that the Clarno report was prepared in the ordinary course of business and thus is exempt from work product protection."; "Clarno prepared a report about Doehne's accident for distribution to the company's risk management and legal departments. This document would not have been prepared but for Doehne's injuries. The lawyers' participation was not merely incidental, and EmpRes' anticipation of potential litigation was reasonable."; "We conclude that the entire Clarno report was prepared in anticipation of litigation and that the trial court abused its discretion in compelling the discovery of the final sentence of the first paragraph, which clearly constitutes opinion work product. And, as stated, the entire first paragraph is protected from disclosure by the attorney-client privilege.")

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

key case


Chapter: 38.908
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: 38.908
Case Name: DiMaria v. Concorde Entm't, Inc., Civ. No. 12-11139-FDS, 2013 U.S. Dist. LEXIS 112533, at *2, *2-3, *6-7 (D. Mass. Aug. 9, 2013)
(holding that the work product doctrine protected witness statements taken by a tavern after a customer died during an altercation, because statements were not taken pursuant to the tavern's requirement or ordinary course of business; "The defendant's Security Manual contains the following provision: 'At the end of the night, if there have been any incidents that you have been involved with or have witnessed, you are required to complete an incident report and turn it in to the manager that night.' Doc. No. 34-2 at 11 (emphasis in original) (limiting reports to 'only . . . information you have witnessed'). No such reports were prepared on the night of the incident."; noting that the tavern's employees did not prepare such a report, but that the tavern's lawyer later interviewed several employees with "specific questions," and later prepared written statements; "Based on the seriousness of the incident, the defendant retained counsel on August 14, 2010 to conduct an investigation in anticipation of administrative, civil, and criminal litigation that might arise therefrom. On August 16 and 17, 2010, counsel interviewed twenty-one of the defendant's employees who were working on the night of the incident. The interviews were done individually and, after answering specific questions presented by counsel, the employees were asked to write statements about the incident based on their discussions with counsel. The statements were written on the defendant's standard incident report forms, were given directly to counsel, and have been maintained by counsel as confidential work product."; "The plaintiff suggests the statements are not protected work product because they are 'purely factual in nature' and 'were prepared in the ordinary course of business' pursuant to the Safety Manual. . . . The parties agree, however, that statements were not completed on the night of the incident, but were later solicited by counsel from all 'front-of-the-house' employees working at the bar on the night of the incident, irrespective of whether they were 'involved with' or 'witnessed' the dispute. These constitute departures from the routine policy described in the Safety Manual. . . . In addition, the nature of the incident and its effects and counsel's immediate involvement further remove the situation from 'the ordinary course' of the defendant's business. Finally, although the statements likely reflect facts, in part, the attorney's affidavit makes clear that they 'summar[ize] the information that was extracted through [her] inquiry of [each] employee.'. . . In other words, the statements were shaped by specific questions discussed during the attorney's interviews and, thus, their content reflects her strategies, thoughts, and mental impressions. . . . The plaintiff has not refuted this description of the statements' content.")

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

Chapter: 38.908
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: 38.908
Case Name: Fojtasek v. NCL (Bahamas) Ltd., Case No. 09-20581-CIV-UNGARO/SIMONTON, 2009 U.S. Dist. LEXIS 107478 (S.D. Fla. Nov. 6, 2009)
(holding that the work product doctrine protected a post-accident investigation after a cruise line passenger died in a zip line accident that was operated by an excursion company; also holding that the cruise line and the excursion had a common interest that allowed them to share the work product without waiving that protection (although inexplicably failing to explain that such a common interest is not necessary to avoid waiving work product in that situation; "In addition, it does not matter that the Report was prepared by an employee of Tabyana Tours rather than an employee of NCL [cruise line] because, based upon the Affidavit of Ms. Kilgour, the Tabyana Incident Report was prepared at the request of NCL and/or its legal counsel for NCL to use in anticipated litigation, and thus, in this factual scenario Tabyana Tours, prepared the Incident Report as an agent of NCL. . . . Thus, the report created by NCL's agent, Tabyana Tours, falls squarely into the scope of Rule 26(b)'s work protection and is not subject to disclosure.")

Case Date Jurisdiction State Cite Checked
2009-11-06 Federal FL
Comment:

key case


Chapter: 38.908
Case Name: Fojtasek v. NCL (Bahamas) Ltd., Case No. 09-20581-CIV-UNGARO/SIMONTON, 2009 U.S. Dist. LEXIS 107478 (S.D. Fla. Nov. 6, 2009)
(holding that the work product doctrine protected a post-accident investigation after a cruise line passenger died in a zip line accident that was operated by an excursion company; also holding that the cruise line and the excursion had a common interest that allowed them to share the work product without waiving that protection (although inexplicably failing to explain that such a common interest is not necessary to avoid waiving work product in that situation; "The Tabyana Incident Report is also protected from disclosure because of the joint defense theory which extends work product protection to documents shared between entities who have a common interest in the outcome of litigation. In this case, there can be little argument that at the time that the Tabyana Incident Report was prepared and provided to NCL, NCL and Tabyana had a common interest in defending any claim related to the incident. Thus, despite Plaintiff's arguments to the contrary, the fact that Tabyana was not ultimately named in this suit, and the fact that NCL has asserted that Tabyana bears full responsibility, does not change their common interest at the time the report was shared with NCL. If the position Plaintiff urges is adopted, then litigants could always obtain joint defense materials that were shared confidentially between aligned potential or actual parties by either dismissing one party from the case, or not naming all of the possible defendants to a particular action. Similarly, the fact that Tabyana Tours arguably cannot now be named as a defendant in this litigation because the statute of limitations has elapsed does not lift the work product protection veil from the Tabyana Incident Report."; "Further, there is no evidence that Tabyana Tours knew at the time that it prepared the Incident Report that it would not be sued in the instant or other litigation related to the incident. . . . Therefore, the undersigned concludes that the Tabyana Incident Report is not subject to disclosure because it was prepared in anticipation of litigation and was provided to NCL by Tabyana as an entity with a common interest in the outcome of the instant litigation.")

Case Date Jurisdiction State Cite Checked
2009-11-06 Federal FL
Comment:

key case


Chapter: 38.908
Case Name: Laney v. Schneider Nat'l Carriers, Inc., 259 F.R.D. 562, 567 (N.D. Okla. 2009)
(upholding work product protection for a truck company's post-accident investigation; noting that the company did not always retain outside counsel to conduct such investigations; finding that outside counsel's investigation was independent of the company's routine post-accident investigation; "[I]t is clear that: Schneider does not ordinarily retain outside counsel to investigate collisions involving its trucks and drivers (Schneider's litigation counsel has been retained only a few times in the last several years for this purpose); Schneider did not direct the investigation that is at issue here and was not involved in that investigation (in fact, Schneider's counsel does not even know what procedure, if any, Schneider uses to investigate collisions in which it does not retain outside counsel); Schneider retained its litigation counsel within twelve hours of the accident; and, the Witness Statements were prepared by Schneider's litigation counsel or by non-testifying third party experts or investigators who report directly to litigation counsel, not to Schneider. Finally, Schneider's counsel stated that the sole purpose of obtaining the documents at issue was to prepare for anticipated litigation. These facts unquestionably establish that the investigation conducted by defendants' counsel was independent of any routine investigation ordinarily conducted by Schneider and that the Witness Statements were obtained solely as a result Defendants' litigation counsel's investigation; that is, 'in anticipation of litigation.'") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal OK

Chapter: 38.908
Case Name: Hawkins v. Vann, 74 Va. Cir. 263, 263, 264 (Va. Cir. Ct. 2007)
(addressing work product protection for (1) a report made by defendant employee to his employer on the day of an accident and (2) a report made "at a later date to his insurance carrier"; ultimately concluding that the first report did not deserve work product protection, but the second report did; "The court is advised that the defendant Vann testified at a deposition that he gave a report to his supervisor on the same day as the accident. It now appears that this may have been mistaken testimony since defense counsel advises that they have been unable to locate such a report. To the extent that such a report may exist, the court is of the opinion that no serious claim of 'work product' would apply since there was on that date no reasonable anticipation of litigation. If such a document exists, it must be produced."; in contrast to this report would be the later report that the defendant employee made to his insurance carrier; "It is agreed that the plaintiff retained counsel and current plaintiff's counsel notified the defendants by letter dated January 19, 2006. This letter predated the insurance report by six to seven days."; "The existing case law contains three approaches to the discoverability of insurance claims adjuster reports. The first approach is often referred to as the 'Thomas Organ' rule. This rule established a conclusive presumption that such a report was made in the regular course of the insurer's business and not in anticipation of litigation. However a line of more recent cases developed holding the exact opposite, that is a presumption in favor of exclusion under the 'work product doctrine.'"; "In between these poles are a series of cases suggesting that a case by case approach should be taken where the court looks at the facts and circumstances of the case before it and reaches a decision."; "While there appears to be no Virginia Supreme Court case addressing this issue, there are several circuit courts that have considered this matter and adopted the case by case approach."; "I agree with the case by case approach. This rule simply requires a judge to do what we do every day, consider factual scenarios, apply legal principles, and come to a hopefully fair decision. Thus the case by case approach allows the court to evaluate what is occurring in the case before it and rule accordingly."; "Moving then to the facts of this case, can we say that, at the time of the collection of the information by the claims adjuster, a reasonable person could foresee litigation? The answer to this question can only be yes. The defendants had received notice from plaintiff's counsel of their representation and his damage claim. While no suit had been filed at this stage of the proceedings, 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 B 12/09

Chapter: 38.908
Case Name: Hawkins v. Vann, 77 Va. Cir. 263, 263, 264 (Va. Cir. Ct. 2007)
(addressing the discoverability of reports prepared by defendant employee and presented to his employer and ultimately to his insurance carrier; ultimately concluding that a report that the defendant prepared on the day of the accident did not deserve work product protection "since there was on that date no reasonable anticipation of litigation"; noting the three approaches taken by Virginia circuit courts assessing the "discoverability of insurance claims adjuster reports"; "The existing case law contains three approaches to the discoverability of insurance claims adjuster reports. The first approach is often referred to as the 'Thomas Organ' rule. This rule established a conclusive presumption that such a report was made in the regular course of the insurer's business and not in anticipation of litigation. However a line of more recent cases developed holding the exact opposite, that is a presumption in favor of exclusion under the 'work product doctrine.' In between these poles are a series of cases suggesting that a case by case approach should be taken where the court looks at the facts and circumstances of the case before it and reaches a decision. Moore's Federal Practice § 26.70[3]. While there appears to be no Virginia Supreme Court case addressing this issue, there are several circuit courts that have considered this matter and adopted the case by case approach. See Lopez v. Woolever, 62 Va. Cir. 198, 203 (Fairfax County, 2003); Larson v. McGuire, 42 Va. Cir. 40, 45 (Loudon County, 1997); and Wilson v. Norfolk & Portsmouth Belt Line RR., 69 Va. Cir. 153, 174-75 (Portsmouth, 2005). This court finds the Wilson opinion to be particularly thorough and persuasive for several reasons. Judge Davis has researched and presented in considerable detail the development of the rule. Secondly this judge is reluctant to create a division within the circuit and as a matter of policy would never intentionally do so without a compelling reason. (None exists in this matter.) Thirdly I agree with the case by case approach. This rule simply requires a judge to do what we do every day consider factual scenarios, apply legal principles and come to a hopefully fair decision. Thus the case by case approach allows the court to evaluate what is occurring in the case before it and rule accordingly."; ultimately finding that the work product doctrine protected the report because "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 B 3/08; N 11/08

Chapter: 38.908
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 174-75 (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; "Applying this case-by-case approach, the Court must determine whether the two documents at issue were prepared 'because of' the accident. The Benson law review article [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, 286-89 (1983)] cited above argues persuasively that 'the applicable test as to what constitutes materials prepared "in anticipation of litigation" should be a reasonable man test' such that if 'a reasonable man, in the shoes of the party resisting discovery when the requested material was produced, would have anticipated or reasonably foreseen litigation, the subject matter should receive the qualified protection of Rule 4:1(b)(3).' . . . . Doing so is consistent with the plain language of the Rule, and with the considerations espoused in Hickman. . . . Therefore, if a reasonable person in the shoes of NPBL, at the time these documents were produced, would have anticipated or reasonably foreseen litigation, it can be said that such documents were prepared because of anticipated litigation, and therefore in anticipation of litigation, and are entitled to the qualified work product/trial preparation privilege of Va. Sup. Ct. R. 4:1(b)(3).")

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

Chapter: 38.908
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 B 12/09

Chapter: 38.908
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
Comment:

key case


Chapter: 38.908
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

Chapter: 38.908
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 178 n.11 (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; finding that the work product doctrine protected a form entitled Personal Injury Report prepared by an injured railroad worker two months after an incident, and at a time at which the railroad anticipated litigation; "The Court observes that the fact that the information which NPBL [railroad] seeks to protect from discovery is contained in a pre-printed form does not necessarily preclude its treatment as work product. The relevant inquiry is whether NPBL reasonably foresaw litigation at the time the document was prepared and whether it contains such work product, not the manner in which the information is configured.")

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

Chapter: 38.908
Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 37-38 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "In applying this test to the present case, it is important to note that the investigation in question was not done by Sentara's insurer. An investigation by an insurer lends itself to the categorization of 'in the ordinary course of business' because an insurer will regularly investigate claims to determine what action it will take. A routine investigation done by an insurer will generally not be protected by the work product doctrine. Instead, the file requested was prepared by a claims investigator separate from Sentara's insurer. However, the Court was not provided with facts regarding the frequency and regularity of investigations done by CAC. In addition, defense counsel was not retained until June 2003, a substantial time after the accident. Nonetheless, the other factors present in the case lead to the conclusion that, once Sentara received notice of McDonald's claim for damages, the documents contained in CAC's file would be prepared in anticipation of litigation. The following factors are persuasive. McDonald suffered a very serious injury, necessitating surgery; she tripped on a structure that was clearly located on Sentara's premises; and the documents requested were prepared neither by an insurer nor by someone responsible for hospital safety. Furthermore, it has been submitted to the Court that referral to and investigation by CAC was not done in the case of every accident on Sentara's premises. Given these factors, once Sentara received notice that McDonald would be pursuing a claim for damages against the hospital, it is reasonable to conclude that documents contained in CAC's file were prepared because of the prospect of litigation, that Sentara was facing an actual or potential claim, and that it was reasonably foreseeable that the actual or potential claim could result in litigation.")

Case Date Jurisdiction State Cite Checked
2004-01-01 State VA

Chapter: 38.908
Case Name: Gochenour v. Sears, Roebuck & Co., Law No. 28405, slip op. at 1-2, Va. Laws. Wkly. 003-8-149 (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

Chapter: 38.908
Case Name: Broadnax v. ABF Freight Sys., Inc., 180 F.R.D. 343, 347 (N.D. Ill. 1998)
(after reviewing several reports created by a trucking company after a fatal automobile accident, concluding that most of the reports would have been prepared regardless of the threat of litigation and therefore did not deserve work product protection, while a report entitled 'Fatality Accident Report' discussed 'witnesses and possible defenses to a claim' and 'contain impressions regarding defendant's potential liability' and therefore 'were clearly prepared in anticipation of litigation and contain information that is beyond discovery under the work product doctrine.'")

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal IL

Chapter: 38.908
Case Name: Broadnax v. ABF Freight Sys., Inc., 180 F.R.D. 343, 347 (N.D. Ill. 1998)
(after reviewing several reports created by a trucking company after a fatal automobile accident, concluding that most of the reports would have been prepared regardless of the threat of litigation and therefore did not deserve work product protection, while a report entitled 'Fatality Accident Report' discussed 'witnesses and possible defenses to a claim' and 'contain impressions regarding defendant's potential liability' and therefore 'were clearly prepared in anticipation of litigation and contain information that is beyond discovery under the work product doctrine.'")

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal IL

Chapter: 38.908
Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55, 55-56 (Va. Cir. Ct. 1993)
(holding that the work product doctrine covered an incident report prepared by a K Mart store manager after an accident, since "[t]he document was prepared in accordance with a standard procedure adopted by K Mart, the purpose of which, in part, was to have an investigation undertaken in the event of or in the anticipation of litigation."; indicating that the doctrine protected a K Mart policy manual (to the extent that it instructed employees how to complete the incident form and how to conduct an investigation); "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.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 38.908
Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55 (Va. Cir. Ct. 1993)
(analyzing work product protection for a post-accident incident report prepared by a retail store; ultimately finding that the incident report deserved work product protection, although the store's standard procedure required the report's preparation; "The document was prepared in accordance with a standard procedure adopted by K Mart, the purpose of which, in part, was to have an investigation undertaken in the event of or in the anticipation of litigation. Accordingly, absent a showing that the plaintiff has a substantial need of the incident report and that the plaintiff is unable without due hardship to obtain the equivalent of the information in the report by other means, the motion to compel the production of the incident report is denied.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 38.908
Case Name: Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477, 477, 478, 479, 480 (Va. Cir. Ct. 1979)
(analyzing work product protection for witness statements taken by a railroad after an industrial accident; ultimately finding that the statements deserved work product protection, but that the plaintiff could overcome the protection; "The purpose of the investigation was twofold: (1) in order to furnish a report of the accident to the Department of Transportation, and (2) in order to prepare for anticipated litigation."; "The court is of opinion that these statements are a part of the attorney's work product even though they were not taken solely in anticipation of litigation."; "In the present case, the statements in question were taken immediately after the accident. Indeed, Mr. Gibson's statement (being that of a participant in the accident) was taken on the same date as the accident. Four of the persons whose statements were taken are defendant's employees. The defendant has a rule which prohibits their employees from talking to the plaintiffs and their attorney. These four employees refuse to cooperate. Only Mr. Sandridge made any statement and his was couched in language which tends to create suspicions."; "It is true, as argued by the defendant, that plaintiffs are at liberty to take discovery depositions of these persons, but this means is expensive and time consuming, and if, as indicated by Mr. Sandridge, a person knows nothing about the case, it would be an exercise in futility.")

Case Date Jurisdiction State Cite Checked
1979-01-01 State VA B 12/09

Chapter: 38.1501
Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
("[T]he undersigned notes that, generally, courts apply two different tests to determine whether a document is prepared in 'anticipation of litigation': the 'primary purpose' test, i.e., the primary motivating purpose behind the creation of the document was to aid in possible litigation, or the 'because of' test, i.e., it can be fairly said that the document was prepared or obtained because of the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2015-07-15 Federal FL

Chapter: 38.1502
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 trial court concluded that three of the four paragraphs in the Clarno report were prepared in anticipation of litigation. Doehne does not challenge this conclusion. We question whether paragraphs in a single document can be prepared for different purposes. Nevertheless, we turn to Doehne's argument that the Clarno report was prepared in the ordinary course of business and thus is exempt from work product protection."; "Clarno prepared a report about Doehne's accident for distribution to the company's risk management and legal departments. This document would not have been prepared but for Doehne's injuries. The lawyers' participation was not merely incidental, and EmpRes' anticipation of potential litigation was reasonable."; "We conclude that the entire Clarno report was prepared in anticipation of litigation and that the trial court abused its discretion in compelling the discovery of the final sentence of the first paragraph, which clearly constitutes opinion work product. And, as stated, the entire first paragraph is protected from disclosure by the attorney-client privilege.")

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

key case


Chapter: 38.1502
Case Name: United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)
("[W]e must address whether a study prepared for an attorney assessing the likely result of an expected litigation is ineligible for protection under the Rule if the primary or ultimate purpose of making the study was to assess the desirability of a business transaction, which, if undertaken, would give rise to the litigation. We hold that a document created because of anticipated litigation, which tends to reveal mental impressions, conclusions, opinions or theories concerning the litigation, does not lose work-product protection merely because it is intended to assist in the making of a business decision influenced by the likely outcome of the anticipated litigation. Where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation, it falls within Rule 26(b)(3)."; holding that a consultant's study about the IRS's likely reaction to a business reorganization was protected work product)

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal

Chapter: 38.1503
Case Name: Gendell v. 42 W. 17th Street Housing Corp., 158100/2015, 2018 N.Y. Misc. LEXIS 2584 (N.Y. Sup. Ct. June 26, 2018)
("With respect to the qualified privilege of 'materials prepared in anticipation of litigation,' the party asserting the privilege must first demonstrate that the materials were prepared exclusively for litigation'. . . Materials prepared for more than one reason, and not exclusively for litigation, may subject the materials to disclosure.")

Case Date Jurisdiction State Cite Checked
2018-06-26 State NY

Chapter: 38.1503
Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "The Second Circuit has adopted a 'because of" test for work product, under which any document prepared 'because of' existing or expected litigation' is protected from discovery under the work product doctrine. Adlman II, 134 F.3d at 1198 (rejecting the narrower formulation that encompasses only those documents "prepared primarily or exclusively to assist in litigation' (citation omitted)). The determination of whether a document 'ha[s] been prepared or obtained because of' litigation is made 'in light of the nature of the document and the factual situation in the particular case.' Id. at 1202. Whether a document is entitled to the work product status turns on whether it 'would have been prepared irrespective of the expected litigation.' Id. at 1203-04. Work product protection is not available for 'documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation.'. . . However, documents prepared both for litigation and business purposes may be protected under Rule 26 (b)(3). '[A] document . . . does not lose work-product protection merely because it is intended to assist in the making of a business decision influenced by the likely outcome of the anticipated litigation." Adlman II, 134 F.3d at 1195.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 38.1503
Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; applying the "because of" work product test of Adlman)

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 38.1503
Case Name: Sessions v. Sloane, No. COA 15-1095, 2016 N.C. App. LEXIS 770 (N.C. App. July 19, 2016)
(holding that the plaintiff had not requested in camera review of withheld documents, and therefore failed to carry the burden of proof on privilege and work product; "While we agree with Defendants that the work product doctrine does not require the direct involvement of an attorney to apply, the work product doctrine does require documents to be prepared in anticipation of litigation instead of in the regular course of business. The burden rested on Defendants in the trial court to demonstrate the documents in question fell within the shield of the work product or joint defense doctrines. To meet their burden, Defendants needed to show the documents were prepared in anticipation of litigation. In opposition to the motion to compel, Defendants produced only Kelly's affidavit. The affidavit established Defendants' anticipated litigation as of the dates of the emails at issue. However, Defendants did not meet their burden to show the specific emails at issue were actually prepared or obtained because of the prospect of litigation. Defendants did not demonstrate the emails were exchanged for the purpose of pending litigation instead of during the regular course of business. Although Defendants provided evidence to show litigation was anticipated at the time of the email exchanges, any business related communication during that time is not protected. Defendants did not meet their burden to show the communications 'can fairly be said to have been prepared or obtained because of the prospect of litigation.'")

Case Date Jurisdiction State Cite Checked
2016-07-19 Federal NC

Chapter: 38.1503
Case Name: United States v. All Assets Held at Bank Julius Baer & Company, Ltd., Civ. A. No. 04-798 (PLF/GMH), 2016 U.S. Dist. LEXIS 72534 (D.D.C. June 3, 2016)
(holding that the work product doctrine protected a private letter ruling request, but that the protection was waived when the request was disclosed to the IRS; "Claimant's PLR Request was drafted by his counsel for the purpose of seeking a legal opinion from the IRS Office of Chief Counsel concerning the potential tax implications of certain transactions. While Claimant is not currently laboring under an IRS audit or other tax-related suit, his PLR Request can reasonably be viewed as an attempt to discern the likelihood and magnitude of his future tax liability. As a result, the PLR Request was created with an eye toward foreseeable future litigation with the IRS. . . . This satisfies the broad 'because of' test employed in this Circuit.")

Case Date Jurisdiction State Cite Checked
2016-06-03 Federal DC

Chapter: 38.1503
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 cite no authority for their argument that Bard must show the Report was actually used in litigation. The test is whether the Report was "prepared in anticipation of litigation," not whether it was used in litigation. . . . Requiring parties to show that a document was used in litigation would likely invade both the work product protection and the attorney-client privilege.")

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

Chapter: 38.1503
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 performing the routine work product analysis, the Eleventh Circuit has not addressed the issue of whether to apply the 'because of litigation' test or the 'primary motivating purpose' test in analyzing whether a document was prepared in anticipation of litigation. It appears that the Southern District of Florida is somewhat divided on the question as well.").

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

Chapter: 38.1503
Case Name: Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015)
June 10, 2015 (PRIVILEGE POINT)

“Courts Disagree About Basic Work Product Doctrine Elements: Part I”

The Federal Rules of Civil Procedure and most state court rules memorialize their basic work product doctrine in just one sentence. But courts take divergent views on what that sentence means.

Some courts apply work product protection only to documents that litigants will use to "assist" in litigation. Other courts protect documents created "because of" the litigation, even though they will not be used to "assist" in that litigation. In Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, the court noted that under Second Circuit precedent "the phrase 'because of' trumps 'assist in' as the talisman by which a document's eligibility for attorney work product protection will be evaluated." Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015). Three days later, in Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), the court took the same approach — noting that "[n]umerous courts of appeals have specifically adopted the 'because of' test." Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015). But a month earlier, a Maine state court applying that state's work product rule (essentially identical to the federal rule) held that a party seeking work product doctrine protection "must demonstrate that the documents were prepared exclusively to assist in anticipated or ongoing litigation." Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015).

The "because of" standard casts a far wider protective net than the "assist" standard. For instance, corporations communicating about how they might pay for an adverse judgment might create documents satisfying the former standard but not the latter. Next week's Privilege Point will address other work product variations.

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX
Comment:

key case


Chapter: 38.1503
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Numerous courts of appeals have specifically adopted the 'because of' test. See, e.g., Maine v. U.S. Dep't of Interior, 298 F.3d 60, 67 (1st Cir. 2002); Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1994); Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987); United States v. Deloitte LLP, 610 F.3d 129, 137, 391 U.S. App. D.C. 318 (D.C. Cir. 2010); Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983); In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.1979). The 'because of' test has also been applied by district courts within the Fifth Circuit. See, e.g., Exxon Chem. Patents, Inc. v. Lubrizol Corp., 131 F.R.D. 668, 670 (S.D. Tex. 1990); Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D. Tex. 2004); Kansas City Southern Ry. Co. v. Nichols Constr. Co., 2007 U.S. Dist. LEXIS 44840, 2007 WL 1792352 (E.D. La. June 20, 2007). Accordingly, the Court will apply the 'because of' test to determine whether the memorandum should be considered work product.")

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX

Chapter: 38.1503
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "It should be noted that under New York law, which governed MBIA, the party seeking work product protection is required to show that the documents were created primarily for the purpose of litigation, whereas the Second Circuit requires under Adlman II that the documents be created because of anticipated litigation, a standard that 'affords broader protection' against disclosure.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.1503
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "The careful reader will have noted that under Adlman II [United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)], the Second Circuit extends work product protection to a document created 'because of litigation,' while under County of Erie, 473 F.3d 413 at 422 [In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007)], the Second Circuit extends attorney-client privilege protection to a document created 'for the predominant purpose of soliciting or rendering legal advice.' The two formulations are different, and it is recognized that in a given case the attorney-client privilege might not bar production but the work product rule would do so.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.1503
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "Under Adlman II [United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)], the phrase 'because of' trumps 'assist in' as the talisman by which a document's eligibility for attorney work product protection will be evaluated.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.1503
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015)
June 10, 2015 (PRIVILEGE POINT)

“Courts Disagree About Basic Work Product Doctrine Elements: Part I”

The Federal Rules of Civil Procedure and most state court rules memorialize their basic work product doctrine in just one sentence. But courts take divergent views on what that sentence means.

Some courts apply work product protection only to documents that litigants will use to "assist" in litigation. Other courts protect documents created "because of" the litigation, even though they will not be used to "assist" in that litigation. In Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, the court noted that under Second Circuit precedent "the phrase 'because of' trumps 'assist in' as the talisman by which a document's eligibility for attorney work product protection will be evaluated." Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015). Three days later, in Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), the court took the same approach — noting that "[n]umerous courts of appeals have specifically adopted the 'because of' test." Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015). But a month earlier, a Maine state court applying that state's work product rule (essentially identical to the federal rule) held that a party seeking work product doctrine protection "must demonstrate that the documents were prepared exclusively to assist in anticipated or ongoing litigation." Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015).

The "because of" standard casts a far wider protective net than the "assist" standard. For instance, corporations communicating about how they might pay for an adverse judgment might create documents satisfying the former standard but not the latter. Next week's Privilege Point will address other work product variations.

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT
Comment:

key case


Chapter: 38.1503
Case Name: Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015)
June 10, 2015 (PRIVILEGE POINT)

“Courts Disagree About Basic Work Product Doctrine Elements: Part I”

The Federal Rules of Civil Procedure and most state court rules memorialize their basic work product doctrine in just one sentence. But courts take divergent views on what that sentence means.

Some courts apply work product protection only to documents that litigants will use to "assist" in litigation. Other courts protect documents created "because of" the litigation, even though they will not be used to "assist" in that litigation. In Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, the court noted that under Second Circuit precedent "the phrase 'because of' trumps 'assist in' as the talisman by which a document's eligibility for attorney work product protection will be evaluated." Nos. 3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158, at *37-38 (D. Conn. Apr. 14, 2015). Three days later, in Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), the court took the same approach — noting that "[n]umerous courts of appeals have specifically adopted the 'because of' test." Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015). But a month earlier, a Maine state court applying that state's work product rule (essentially identical to the federal rule) held that a party seeking work product doctrine protection "must demonstrate that the documents were prepared exclusively to assist in anticipated or ongoing litigation." Irving Oil Ltd. v. ACE INA Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar. 17, 2015).

The "because of" standard casts a far wider protective net than the "assist" standard. For instance, corporations communicating about how they might pay for an adverse judgment might create documents satisfying the former standard but not the latter. Next week's Privilege Point will address other work product variations.

Case Date Jurisdiction State Cite Checked
2015-03-17 State ME
Comment:

key case


Chapter: 38.1503
Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)
(holding that the funding agreement deserved work product protection under Delaware law; "In the litigation funding context, this analysis becomes blurry because the litigation itself arguably is part of the business. Potentially every document a third-party litigation-funding company creates is created 'because of litigation' in that the company is in the business of funding litigation."; "Third-party funding literally may allow a lawsuit to proceed, but it is unclear whether any of the documents or communications exchanged between the claim holder and the funder in fact would be intended for use, or even be useful, in the actual litigation -- at least where the funder takes a passive role and does not actively assist with or manage the litigation.")

Case Date Jurisdiction State Cite Checked
2015-02-24 State DE

Chapter: 38.1503
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: 38.1503
Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *7 (Del. Ch. Apr. 18, 2013)
(finding that the work product doctrine protected JPMorgan's reserve figures, but that triggered an at issue waiver requiring production of the litigation reserve numbers; "Delaware courts have expressly rejected the primary purpose test, which asks whether the primary purpose of the document was for litigation, in favor of the 'because of litigation' test.")

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 38.1503
Case Name: Tudor Ins. Co. v. Stay Secure Constr. Corp., 390 F.R.D. 37, 40 (S.D.N.Y. 2013)
(in a first party insurance case, finding that the litigant had not supplied an affidavit supporting the "because of" work product standard; "Adlman [United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998)] established that documents prepared both for litigation and business purposes may be protected under Rule 26(b)(3).")

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

Chapter: 38.1503
Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 4 (W.D. Va. 2013)
("'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.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal VA B 5/14, 3/16
Comment:

key case


Chapter: 38.1503
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 685 (N.D. Ga. 2012)
("[I]t is now well recognized that documents that serve a dual purpose are covered by the work product protection if they were produced with the 'motivating purpose' for or 'because of' anticipated litigation." (citation omitted))

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

Chapter: 38.1503
Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
('"Both Delaware and Massachusetts follow the 'because of' test to determine application of the attorney work-product privilege. Under this test, the Court asks whether a document would have been produced by for existing or expected litigation.'")

Case Date Jurisdiction State Cite Checked
2010-05-31 State DE

Chapter: 38.1503
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 224 (Va. Cir. Ct. 2010)
("It is not enough for a reasonable person to anticipate litigation at the time he is preparing documents. Rather, the document itself must be prepared because of the prospect of litigation, and not merely in response to, or as a result of, an incident that could result in litigation. It may be reasonably foreseeable to a railroad company that an incident likely will lead to a claim involving litigation, but that does not mean that everything documenting the incident is prepared in anticipation of litigation. The Court, therefore, adopts a case-by-case approach but declines to extend the type of analysis relied upon in those cases.")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 38.1503
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484 (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 Jurisdiction State Cite Checked
2009-07-31 Federal VA

Chapter: 38.1503
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007)
(citing Adlman, in relying on the "because of" standard; "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 B 3/16
Comment:

key case


Chapter: 38.1503
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 nn.9-10, 748 (E.D. Va. 2007)
("Several district courts in the Fourth Circuit, looking to National Union, have applied a principle similar to Adlman's. See, e.g., In re Royal Ahold N.V. Sec. & ERISA Litig., 230 F.R.D. 433, 436 (D. Md. 2005) (relying on National Union to hold that '[u]ndoubtedly the company was also preparing for litigation, as the first class action was filed [close in time], but the investigation would have been undertaken even without the prospect of preparing a defense to a civil suit.'). See United States v. Torf (In re Grand Jury Subpoena), 357 F.3d 900 (9th Cir. 2003) (quoting Adlman's 'but for' language); United States v. Roxworthy, 457 F.3d 590, 593-94 (6th Cir. 2006) (quoting Adlman's 'irrespective of the litigation' language). Adlman's 'but for' and 'irrespective of' formulations are useful expositions of National Union's 'because of' standard, and they provide guidance for applying National Union to the facts in this case. In light of National Union and Adlman, the 'work product' that RLI seeks to protect must have been created because of the prospect of litigation, when (1) 'the [party] faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation,' National Union, 967 F.2d at 984, and (2) the work product 'would not have been prepared in substantially similar form but for the prospect of that litigation.' Adlman, 134 F.3d at 1195.")

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

Chapter: 38.1503
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 173 (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; adopting the "because of " test for work product protection)

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA B 3/16
Comment:

key case


Chapter: 38.1503
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 173 (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; "This Court agrees that the 'because of' approach, to determining whether a document was prepared in anticipation of litigation, is the more persuasive view. However, that does not end the inquiry, since a court must still look to some method of deciding whether a document was prepared 'because of' anticipated litigation.")

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

Chapter: 38.1504
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: 38.1505
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "As the claimant of the privilege, the burden is on Rubie's to show that the information it claims is protected was not prepared in the ordinary course of business or would not have come into existence in essentially the same manner irrespective of the litigation. That is, Plaintiffs must establish that Aziz's investigation and the communications which were part of that investigation came into existence 'because of' prospective or actual litigation. . . . Plaintiffs have made no such showing, nor have they affirmatively asserted that Aziz's investigation and the communications arising from it would have taken place and been produced in the absence of actual or anticipated litigation. Consequently, Plaintiffs have failed to show that they are entitled to the protection of the work product privilege.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY
Comment:

Key Case


Chapter: 38.1505
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "Attorney work product protection extends to material obtained or prepared by counsel in the course of their legal duties provided that the work was done with an eye toward litigation.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal

Chapter: 38.1505
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: 38.1505
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 contents of the emails at issue, based on our in camera review, support the Wilder Parties' position that the emails were generated because of the prospect of litigation. . . . In the Wirt Email, John Wirt, an attorney for Wilder, discusses his view of the then-existing evidence concerning Povetkin's positive test and recommends a course of action. Certainly, attorney views of this kind fit within the work-product doctrine.")

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

Chapter: 38.1505
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: 38.1505
Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "Although the connection of some of the remaining documents to this litigation is not apparent from the face of the documents, the Court determines the documents' entitlement to work product protection 'in light of the nature of the document and the factual situation in the particular case.' Adlman II, 134 F.3d at 1202. Here, Bank of America's outside counsel, hired specifically for this litigation, has submitted a declaration stating that these documents were prepared for the litigation at the request of counsel in the context of [TEXT REDACTED BY THE COURT]. . . . Bank of America also states that the recalled portions of the Fellman Documents were not used for business purposes independent of the litigation, and they have not been located in any other Bank of America business-person's files. . . . In addition, Mr. Fellman testified at the deposition that the documents were prepared at the instruction of counsel hired for the purposes of this litigation. . . . Thus, Judge Orenstein correctly found that Bank of America met its burden of demonstrating that the documents were prepared because of the litigation.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 38.1505
Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "The Second Circuit has adopted a 'because of" test for work product, under which any document prepared 'because of' existing or expected litigation' is protected from discovery under the work product doctrine. Adlman II, 134 F.3d at 1198 (rejecting the narrower formulation that encompasses only those documents "prepared primarily or exclusively to assist in litigation' (citation omitted)). The determination of whether a document 'ha[s] been prepared or obtained because of' litigation is made 'in light of the nature of the document and the factual situation in the particular case.' Id. at 1202. Whether a document is entitled to the work product status turns on whether it 'would have been prepared irrespective of the expected litigation.' Id. at 1203-04. Work product protection is not available for 'documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation.'. . . However, documents prepared both for litigation and business purposes may be protected under Rule 26 (b)(3). '[A] document . . . does not lose work-product protection merely because it is intended to assist in the making of a business decision influenced by the likely outcome of the anticipated litigation." Adlman II, 134 F.3d at 1195.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 38.1505
Case Name: In re Symbol Technologies, Inc. Sec. Litig., CV 05-3923 (DRH) (AKT), 2016 U.S. Dist. LEXIS 139200 (E.D.N.Y. Sept. 30, 2016)
(holding that the work product doctrine protected documents created during a company's investigation of accounting problems; also holding that disclosure to the SEC did not waive the work product doctrine, because the SEC and the company had a common interest in complying with an earlier consent decree; "In March 2002, after learning of the investigations being pursued by both the U.S. Attorney's Office and the SEC, Symbol 'retained the law firm of Swidler Berlin Shereff Friedman, LLP . . . to conduct an internal investigation into Symbol's accounting and financial practices.' Id. The investigation, which was conducted with the assistance of a third-party forensic accounting team, involved 'more than 200 interviews and the review of hundreds of thousands of pages of documents and emails. The results of this investigation were shared with both the U.S. Attorney's Office and the SEC pursuant to a Confidentiality Agreement entered into by all parties in November 2002.'"; "On June 3, 2004, Symbol announced that it had 'resolved the investigation by the [U.S. Attorney's Office] relating to [its] past accounting practices by entering into a non-prosecution agreement with the [U.S. Attorney's Office].'"; "[O]n November 8, 2004, 'Symbol announced it was delaying the third-quarter 2004 10-Q filing as the company [ ] discovered certain discrepancies in the amount of inventory that affected third-quarter 2004 results. . . .'"; "Upon learning of the issues surrounding the release of its third quarter earnings, Symbol immediately commenced an internal investigation. . . . The internal investigation was led by James Langrock, Vice President of the internal audit group. . . . During the pendency of the internal investigation conducted by Symbol's audit group, outside counsel from Swidler was retained to conduct 'a confidential investigation of the issues surrounding the misreporting of inventory . . . for the purpose of determining the nature and cause of the incidents.'"; "Based upon the particular circumstances in this case, and in light of the fact that '[n]othing" in Rule 26(b)(3) states or suggests that documents prepared 'in anticipation of litigation' with the purpose of assisting in the making of a business decision do not fall within its scope,' Adlman, 134 F.3d at 1198-99, the Court finds that the documents at issue are protected by the work product privilege. . . . when it conducted the internal investigation into its 2004 third quarter earnings overstatement, Symbol had every conceivable reason to believe that once the issues were publicly disclosed, it could be facing the real prospect of additional shareholder suits as well as further investigations by both the SEC and the U.S. Attorney's Office. Indeed, such a specter was a very real possibility, particularly in light of the fact that barely five months prior to the 2004 revenue overstatement, Symbol had entered into a deferred prosecution agreement with the U.S. Attorney's Office as well as a consent judgment with the SEC in order to settle claims pertaining to previous accounting improprieties."; "To be sure, Symbol did have a business reason for engaging in its internal investigation. Mark Greenquist, Symbol's Chief Financial Officer, testified that 'the most important thing was to get the numbers right so that we could file the [10-]Q, but that wasn't necessarily the end of it because then after that I guess the lesson learned chart would demonstrate that we continued to look at like, okay, what happened, and therefore what could we do better to make sure that we avoided that in the future.'. . . In addition, Symbol referenced the internal investigation in its November 8, 2004 press release in which Chief Executive Officer, William Nuti stated that '[a]s part of our regular control procedures, we discovered certain discrepancies in the amount of inventory at a distributor as well as inventory on hand that affected our previously announced results . . . We've moved swiftly to ascertain the nature and extent of these discrepancies . . . Symbol is committed to ensuring that its financial statements are accurate and can be relied upon by our shareholders.' Wernke Decl., Ex. O. Thus, Symbol had an interest in assuaging the public, its shareholders and the entire business community that it was acting in the manner expected of a responsible business entity. However, conducting an investigation for business purposes on the one hand and in anticipation of litigation on the other are not mutually exclusive, especially when viewed through the lens of the facts in the instant case. Indeed, in light of the factual circumstances attendant in the present case '[a]pplying a distinction between 'anticipation of litigation' and 'business purposes' is . . . artificial, unrealistic, and the line between [the two] is [therefore] essentially blurred to oblivion.'; "[T]he reasoning utilized in Kidder [In re Kidder Peabody, 168 F.R.D. 459, 473 (S.D.N.Y. 1996)] is inapplicable to the instant case inasmuch as the court relied on the 'principally or exclusively' standard that is no longer the appropriate test for determining whether the work-product privilege applies in the first instance.")

Case Date Jurisdiction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 38.1505
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 argue that the Report was prepared in the ordinary course of business because 'Dr. Lehmann's work was well underway long before he was given a contract with the Law Department.'. . . Dr. Lehmann also testified that the work he performed as acting medical director was substantially different from the work done to produce the Report."; "Dr. Lehmann's testimony directly addressed the differences between these HHEs [Health Hazard Evaluation] and the Report. Dr. Lehmann testified that: HHEs were prepared pursuant to Bard's regulatory obligations, while the Report was not; the purpose of HHEs was to 'guide potential market actions or corrections,' while the purpose of the Report was to provide guidance on Bard's risk and overall exposure from adverse events associated with the Recovery Filter; HHEs considered a product's risks and benefits, while the Report considered only the Recovery Filter's risks; HHEs each focused on a single adverse event involving migration, while the Report dealt with all adverse events associated with the Recovery Filter; and the Report involved detailed statistical analysis personally performed by Dr. Lehmann, while HHEs did not. . . . The Court's close review of the HHEs and the Report confirms these distinctions."; "True, there are some similarities between the HHEs and the Report, but the documents clearly serve different purposes and their substantial differences corroborate Dr. Lehmann's testimony that the Report was a different undertaking than the work he did as acting medical director."; "In summary, the Court finds that the clear threat of litigation in 2004, Dr. Lehmann's retention by the Law Department in November of that year, the contract he signed with Bard's general counsel, the scope of work be performed under the contract, and the clear labeling of the Report as work product all support a finding that the Report was prepared because of anticipated litigation. Dr. Lehmann testified that his work in late 2003 and early 2004 as acting medical director was different than the work he did under the contract, and the documents cited by Plaintiffs do not undercut that testimony. To be sure, there are some general similarities between the HHEs and the Report, and the Report was used for some business purposes, but these facts do not contradict the clear evidence that the Report 'would not have been created in substantially similar form but for the prospect of litigation.'")

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

key case


Chapter: 38.1505
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
(overturning Judge Gorenstein's order, and finding: (1) that the work product doctrine protects a taxpayer's documents involving the IRS's scrutiny into a deduction; (2) a taxpayer's disclosure of privileged communications to bank Consortium did not waive privilege, because the common interest doctrine applied despite the absence of ongoing litigation; noting that the IRS did not seek documents prepared by the taxpayer's law firm Dentons or shared only with lawyers and Ernst & Young, but sought "('EY Tax Memo') that identified potential U.S. tax consequences of the refinancing and restructuring, identified and analyzed possible IRS challenges to the Schaeffler Group's tax treatment of the transactions, and discussed in detail the relevant statutory provisions, U.S. Treasury regulations, judicial decisions, and IRS rulings."; "Neither professional standards, tax laws, nor IRS regulations required that appellants' tax advisors provide the kind of highly detailed, litigation-focused analysis and advice included in the EY Tax Memo. . . . Appellants would not have sought the same level of detail if merely preparing an annual routine tax return with no particular prospect of litigation."; "[W]e address the district court's construct of a hypothetical scenario in which appellants faced exactly the same business and tax issues but did not anticipate litigation. This scenario appears to us to ignore reality. The size of a transaction and the complexity and ambiguity of the appropriate tax treatment are important variables that govern the probability of the IRS's heightened scrutiny and, therefore, the likelihood of litigation. To hypothesize the same size of the transaction and the same complexity and ambiguity of the tax issues but also a lack of any anticipation of litigation posits a factual situation at odds with reality.").

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY

Chapter: 38.1505
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
(overturning Judge Gorenstein's order, and finding: (1) that the work product doctrine protects a taxpayer's documents involving the IRS's scrutiny into a deduction; (2) a taxpayer's disclosure of privileged communications to bank Consortium did not waive privilege, because the common interest doctrine applied despite the absence of ongoing litigation; noting that the IRS did not seek documents prepared by the taxpayer's law firm Dentons or shared only with lawyers and Ernst & Young, but sought "('EY Tax Memo') that identified potential U.S. tax consequences of the refinancing and restructuring, identified and analyzed possible IRS challenges to the Schaeffler Group's tax treatment of the transactions, and discussed in detail the relevant statutory provisions, U.S. Treasury regulations, judicial decisions, and IRS rulings."; "Adlman [United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998)] held that work-product protection would be withheld only from documents that were prepared in the ordinary course of business in a form that would not vary regardless of whether litigation was expected. In the present case, such records would include the supporting records and papers that appellants' external tax return preparers collected and created in the ordinary course of annually completing appellants' federal tax returns."; "The tax advice in the EY Tax Memo was quite different. It was specifically aimed at addressing the urgent circumstances arising from the need for a refinancing and restructuring and was necessarily geared to an anticipated audit and subsequent litigation, which was on this record highly likely.").

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY

Chapter: 38.1505
Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("[W]e note in particular with respect to work product, that immunity is normally conferred on documents that are not litigation documents per se so long as the substance of the document is sufficiently informed and affected by the pendency of litigation.").

Case Date Jurisdiction State Cite Checked
2015-09-16 Federal NY
Comment:

key case


Chapter: 38.1505
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "It follows that the extreme positions taken by both parties are rejected. DBNTC contends that the work product doctrine is inapplicable and it is entitled to discovery of all WMC's repurchase documents solely because repurchase analysis was a part of WMC's ordinary course of business. WMC contends that the work product doctrine entitles it to shield all its DBNTC-related repurchase documents solely because Jenner & Block was advising them on the matter. Neither contention is tenable."; "[T]he Court will direct that WMC must produce all existing documents responsive to Request No. 7 in DBNTC's First Request for Production, with the exception of documents WMC lists in a privilege log compiled in a manner consistent with this Ruling. That requires WMC, in such a log, to identify with particularity documents authored by Jenner & Block that are specifically directed to litigation strategy or possible litigation defenses. Documents that lack those characteristics are not eligible for protection under the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.1505
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "A central contention in WMC's argument is that because, beginning in September 2007, the form of documents issued by the WMC repurchase group changed as the result of Jenner & Block's advice and recommendations, all WMC repurchase request documents and communications after that date must constitute attorney work product, immune from discovery. WMC's assertion in that regard is akin to a per se rule requiring work product protection if the documents in question were changed in any way. However, that is a questionable reading of Adlman II [United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)]."; "It is not at all clear that under Second Circuit authority, including Adlman II, the base metal of discoverable course-of-business documents is transformed into the gold of protected attorney work product by the alchemy of a lawyer's presence and participation."; "Documents concerning WMC's responses to DBNTC's loan repurchase requests would seem to have been prepared 'in the regular course of [WMC's] business' rather than 'for purposes of litigation,' and that is so whether or not lawyers suggested changes to the forms the WMC repurchase group used in performing their business function.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal CT

Chapter: 38.1505
Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)
("Whether a document receives work product protection depends upon why it was created. Courts generally apply either the broader 'because of litigation' test or the narrower 'primary purpose' test. In the context of litigation funding, the choice of test may be outcome-determinative. Delaware applies the 'because of' test. Accordingly, a document created because of litigation likely is entitled to work product protection."

Case Date Jurisdiction State Cite Checked
2015-02-24 State DE

Chapter: 38.1505
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
(analyzing work product protection for documents created in connection with the companies' litigation settlement that resulted in a "co-promotion agreement"; finding that the work product protection is a business arrangement that was part of a settlement, in remanding to the trial court to review post-settlement documents; "We find no merit in the proposition that any settlement term that has some independent economic value to both parties must always be treated as an ordinary (non-litigation) business transaction for purposes of work product protection. Common sense and practical experience teach that settlement deals routinely include arrangements that could be isolated from the overall agreement and stand on their own but were nonetheless crafted for the purpose of settling litigation.")

Case Date Jurisdiction State Cite Checked
2015-02-20 Federal DC
Comment:

key case


Chapter: 38.1505
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
(analyzing work product protection for documents created in connection with the companies' litigation settlement that resulted in a "co-promotion agreement"; finding that the work product protection is a business arrangement that was part of a settlement, in remanding to the trial court to review post-settlement documents; "When considering whether a document is prepared 'in anticipation of litigation,' this Court employs a 'because of' test, inquiring 'whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'. . . Where a document would have been created 'in substantially similar form' regardless of the litigation, work product protection is not available.")

Case Date Jurisdiction State Cite Checked
2015-02-20 Federal DC

Chapter: 38.1505
Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
(rejecting defendant's claims that a billing audit was motivated by litigation and therefore deserved work product protection, and that the auditor was protected by the Kovel doctrine; "[R]espondents point out that AHDN 'used' information gained from the CodeMap audit to provide legal advice to Pharmasan/NeuroScience. However, the tests for attorney-client privilege and work product privilege do not examine how a particular communication later was used. Rather, the focus is on the circumstances of the communication at the time it was made. Here, respondents have failed to show that the driving force behind the 2012 CodeMap audit was to prepare for litigation. Rather, CodeMap conducted the audit at Pharmasan/NeuroScience's request for the business purpose of ensuring they were following the billing practices recommended by the Office of Inspector General and were using the proper CT codes. Merely because AHDN used some of this otherwise unprivileged information to advise its client does not establish that the materials were prepared 'because of' litigation.")

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

Chapter: 38.1505
Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
(rejecting defendant's claims that a billing audit was motivated by litigation and therefore deserved work product protection, and that the auditor was protected by the Kovel doctrine; "The fact that CodeMap, NeuroScience and counsel arranged -- after Charles Root had completed his coding review and Bublitz had engaged CodeMap for its standard, full-service audit -- to shelter CodeMap's work behind counsel's coattails does not change this conclusion. Respondent's submissions make clear that this was a tactic designed solely to cloak the audit documents with the protection of the work product or attorney-client privileges. . . . In spite of counsel's nominal involvement, respondents have presented no evidence to show that CodeMap changed the focus of its audit or conducted it any differently after it was agreed that the Services Proposal should be routed through counsel. Indeed, notwithstanding the language of the Services Proposal which indicated that AHDN was 'directing' the audit, AHDN in fact provided no direction at all. As noted above, counsel left CodeMap to 'do that [it] saw fit' and to conduct the audit just as it would have in the absence of counsel. Respondents' contention that CodeMap was retained by counsel because of anticipated litigation is utterly unpersuasive.")

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal WI
Comment:

key case


Chapter: 38.1505
Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
(in an opinion by Judge Francis, analyzing defendants' efforts to obtain background documents prepared by bankruptcy trustee's consultant E&Y's investigation into the trustee's causes of action against the defendants; "I am flummoxed by this dispute. . . . In the absence of litigation -- the SIPA Proceeding -- the documents would not have been created at all. And, of course, Supreme Court precedent teaches that work-product created in connection with a different litigation is still protected in subsequent litigation. . . . A straightforward application of the standards for work-product protection establishes that the documents are protected, unless that protection has been waived."; "The Trustee has produced competent evidence that the Ernst & Young documents were produced in anticipation of litigation and that the form in which they were produced was affected by that litigation.")

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal NY

Chapter: 38.1505
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: 38.1505
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "[T]he record reveals that any litigation purpose is eclipsed by the 'true independent purpose' of fostering the safety of Defendant's operations. The SMS Manual explains that the EIS system 'is an essential program that helps create a safe operating environment for [Defendant] by fostering a process to understand what happened in an incident, why it happened and how to prevent it from occurring again.'. . . It also provides that '[t]he most valuable aspect of doing the investigations is the corrective actions and lessons learned that can be gleaned from the incident.'. . . While the SMS Manual does note that an EIS Report should be sent to Defendant's claims department and Defendant's insurer, this is for 'record keeping and documentation purposes,' and there is no mention of litigation purposes. . . . The Court finds that the dual purposes of operational safety and anticipation of litigation are not so 'profoundly interconnected' that it can be said the documents were created 'because of' the litigation.")

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

Chapter: 38.1505
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2014 U.S. Dist. LEXIS 31330, at *16 (S.D. Ohio Mar. 11, 2014)
("Documents do not lose protection under the work-product doctrine unless they 'would have been created in essentially similar form irrespective of litigation.'" (citation omitted))

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

Chapter: 38.1505
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: 38.1505
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: 38.1505
Case Name: Sher v. Barclays Capital, Inc., Civ. No. ELH-11-1982, 2013 U.S. Dist. LEXIS 89482, at *9 (D. Md. June 26, 2013)
(recognizing the "because of" standard for work product protection; "The spreadsheet has a header containing the phrase 'At the Request of Counsel.'. . . When Petrush [debtor's employee] emailed the completed document to TMST's [debtor] CFO, his email was titled 'At the Request of Counsel,' and the CFO, within ten minutes of receiving this email, forwarded it to the TMST's retained Outside Counsel.")

Case Date Jurisdiction State Cite Checked
2013-06-26 Federal MD B 4/14

Chapter: 38.1505
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *10 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Communications between either Astellas [defendant] or outside counsel and employees of public relations firms Hill & Knowlton and Fleishman-Hillard are neither privileged nor protected work product. Astellas has not shown that communications with either firm were necessary, or at least highly useful, for the rendering of legal advice. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Rather, it appears that both Hill & Knowlton and Fleishman-Hillard provided Astellas with standard public relations services related to the filing and outcome of the citizen petition and any subsequent business or media fallout. Moreover, even if the firms provided public relations advice or documents bearing upon potential litigation over the citizen petition, such materials fall outside the scope of work-product protection, which is intended 'to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.' Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 38.1505
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 *36 (D. Ariz. Apr. 29, 2013)
("This 'because of' standard applies when a document could be characterized as having been prepared for multiple purposes, such as for purposes of conducting the ordinary course of business, or because of the prospect of litigation.")

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

Chapter: 38.1505
Case Name: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., Nos. 12 Civ. 1579 & 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 41785, at *22, *23-23, *26 (S.D.N.Y. Mar. 25, 2013)
(in an opinion by Magistrate Judge Francis, holding that the work product doctrine did not protect defendant UBS's review of files, because it was contractually required; "[T]he fact that UBS reasonably anticipated litigation and retained Williams & Connolly does not automatically bring these documents within the scope of work product doctrine. . . . If the materials at issue 'would have been prepared in substantially similar form regardless of [] litigation,' they are not afforded the protection." (citation omitted); "Here, UBS was 'contractually obligated to conduct repurchase reviews' under the PSAs [Pooling & Servicing Agreements] governing the Transactions. . . . Thus, UBS would have performed the repurchase analyses even had there been no threat of litigation."; "The fact that these repurchase demands were 'unprecedented' in size and scope does not place these materials outside the ordinary course of business for the purposes of work product protection. What is dispositive is that UBS would have prepared these analyses absent any threat of litigation because they were obligated to do so as part of their ordinary business, pursuant to a contract.")

Case Date Jurisdiction State Cite Checked
2013-03-25 Federal NY B 3/14

Chapter: 38.1505
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 *37 (D.D.C. Feb. 28, 2013)
April 10, 2013 (PRIVILEGE POINT)

"The "Assist" Test vs. the "Because Of" Test for Work Product Protection"

Federal courts disagree on the most elemental issue involving the work product protection – the scope of that protection. The United States Supreme Court may ultimately choose the proper approach.

Some courts limit work product protection to documents "'prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *37 (D.D.C. Feb. 28, 2013) (citation omitted). This "assist" test protects only the type of "raw material" that lawyers prepare in connection with litigation. Other courts take a far broader view, protecting documents prepared "because of" litigation, even if they will not be used to "assist" in the litigation. McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013). An example would be a company's internal documents about how it might pay for a judgment if it loses a case – such documents would not "assist" in the litigation, but would not exist but for the litigation. Even under this broader test, the litigant must show that the withheld documents would not have been prepared "in essentially similar form" absent the litigation or anticipated litigation. Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013).

Because courts apply their own work product rules without a choice of laws analysis, companies normally will not know until they are sued whether they can rely on the more liberal "because of" test – or whether they will have to meet the more demanding "assist" test.

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

key case


Chapter: 38.1505
Case Name: Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013)
April 10, 2013 (PRIVILEGE POINT)

"The "Assist" Test vs. the "Because Of" Test for Work Product Protection"

Federal courts disagree on the most elemental issue involving the work product protection – the scope of that protection. The United States Supreme Court may ultimately choose the proper approach.

Some courts limit work product protection to documents "'prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *37 (D.D.C. Feb. 28, 2013) (citation omitted). This "assist" test protects only the type of "raw material" that lawyers prepare in connection with litigation. Other courts take a far broader view, protecting documents prepared "because of" litigation, even if they will not be used to "assist" in the litigation. McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013). An example would be a company's internal documents about how it might pay for a judgment if it loses a case – such documents would not "assist" in the litigation, but would not exist but for the litigation. Even under this broader test, the litigant must show that the withheld documents would not have been prepared "in essentially similar form" absent the litigation or anticipated litigation. Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013).

Because courts apply their own work product rules without a choice of laws analysis, companies normally will not know until they are sued whether they can rely on the more liberal "because of" test – or whether they will have to meet the more demanding "assist" test.

Case Date Jurisdiction State Cite Checked
2013-02-27 Federal NY
Comment:

key case


Chapter: 38.1505
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *40-41, *41 (S.D. Ohio Feb. 19, 2013)
(finding that the work product doctrine did not protect documents created by an association's general manager; "Little Hocking has not persuaded the Court that Mr. Griffin's notes - taken at public meetings -- 'are not general water quality records created for a business purpose' or that 'it is actually inconsistent with Little Hocking's normal business purpose to create documents about a chemical that Little Hocking is not required to monitor[.]' . . . Not only has Little Hocking provided no evidence to support its assertion in this regard, but the record establishes that Little Hocking believes that it was legally required to report, and therefore presumably to monitor, the presence of C8 [common name for Perfluorooctanoic acid, or PFOA] and related compounds. . . . In other words, Mr. Griffin took notes at public meetings primarily for business, rather than legal, purposes. Therefore, Mr. Griffin's notes taken at public meetings "'"would have been created in essentially similar form irrespective of the litigation."'" (citation omitted); "In reaching this conclusion, the Court recognizes that Little Hocking offers declarations asserting that Mr. Griffin created these notes in order to prepare for PFOA-related litigation, which Little Hocking has allegedly anticipated since 2002. . . . However, the allegations in the Amended Complaint controvert, or at the very least, undermine the representations in those declarations.")

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

Chapter: 38.1505
Case Name: McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013)
April 10, 2013 (PRIVILEGE POINT)

"The "Assist" Test vs. the "Because Of" Test for Work Product Protection"

Federal courts disagree on the most elemental issue involving the work product protection – the scope of that protection. The United States Supreme Court may ultimately choose the proper approach.

Some courts limit work product protection to documents "'prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.'" Judicial Watch, Inc. v. United States Dep't of Homeland Sec., Civ. A. No. 11-00604 (CKK), 2013 U.S. Dist. LEXIS 27589, at *37 (D.D.C. Feb. 28, 2013) (citation omitted). This "assist" test protects only the type of "raw material" that lawyers prepare in connection with litigation. Other courts take a far broader view, protecting documents prepared "because of" litigation, even if they will not be used to "assist" in the litigation. McCarthy v. Wells Fargo Bank (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *11 (Bankr. E.D. Va. Feb. 14, 2013). An example would be a company's internal documents about how it might pay for a judgment if it loses a case – such documents would not "assist" in the litigation, but would not exist but for the litigation. Even under this broader test, the litigant must show that the withheld documents would not have been prepared "in essentially similar form" absent the litigation or anticipated litigation. Tudor Ins. Co. v. Stay Secure Const. Corp., No. 12 Civ. 3844 (LTS) (GWG), 2013 U.S. Dist. LEXIS 27195, at *15 (S.D.N.Y. Feb. 27, 2013).

Because courts apply their own work product rules without a choice of laws analysis, companies normally will not know until they are sued whether they can rely on the more liberal "because of" test – or whether they will have to meet the more demanding "assist" test.

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

key case


Chapter: 38.1505
Case Name: Tudor Ins. Co. v. Stay Secure Constr. Corp., 390 F.R.D. 37, 40-41 (S.D.N.Y. 2013)
(in a first party insurance case, finding that the litigant had not supplied an affidavit supporting the "because of" work product standard; "By seeking to protect certain portions of Hannon's [investigator hired by insurance company's lawyer] investigation, Tudor is apparently arguing that these particular portions were prepared in 'anticipation of litigation' while at the same time conceding that the remaining parts of the investigatory reports were not. . . . But Tudor has provided no competent evidence to support its implicit factual argument that the Hannon reports would not have been prepared 'in essentially similar form,'. . . had the personal injury actions not already been filed. Indeed, Tudor submits not a single affidavit from anyone at Hannon, the Congdon, Flaherty firm [plaintiff's lawyer], or Tudor on this question. Because Tudor bears the burden of proof on this issue, . . . its effort to protect the redacted portions necessarily fails simply based on this lack of proof.")

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

Chapter: 38.1505
Case Name: Tudor Ins. Co. v. Stay Secure Constr. Corp., 390 F.R.D. 37, 42 (S.D.N.Y. 2013)
(in a first party insurance case, finding that the litigant had not supplied an affidavit supporting the "because of" work product standard; "Tudor has failed to carry its burden of proving that the Hannon [investigator hired by insurance company's lawyer] reports would not have been prepared in essentially similar form regardless of the existence of the personal injury actions. Accordingly, Salata's motion to compel is granted.")

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

Chapter: 38.1505
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 645 (D. Nev. 2013)
("This document was created by what appears to be a public relations firm, and while the prospect of litigation is mentioned, it clearly revolves around how Bard should address media coverage of this event. The court simply cannot conclude that this document was prepared 'because of' the prospect of litigation.")

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

Chapter: 38.1505
Case Name: Eastman Kodak Co. v. Kyocera Corp., No. 10-CV-6334CJS, 2012 U.S. Dist. LEXIS 132436, at *5-6, *15-16 (W.D.N.Y. Sept. 17, 2012)
(holding that the work product doctrine did not protect documents created by Kodak's auditor Deloitte as part of Deloitte's audit of a patent licensing agreement between Kodak and defendant Kyocera; acknowledging that Kodak's retention of Deloitte claimed protection, but finding the protection inapplicable; "[O]n July 31, 2008, Deloitte sent a letter to Kodak's counsel acknowledging that it had been retained by counsel 'in connection with Kodak's ongoing negotiations with [Kyocera] regarding a patent license agreement (the "Kyocera Matter").' . . . . Deloitte further acknowledged its understanding that 'Counsel's intention and the position of Counsel [is] that our work for it will be covered by the attorney work-product privilege and other applicable privileges.' . . . . Deloitte agreed to treat all working papers, documents and communications as confidential information. . . . Finally, the agreement specified that Deloitte would 'provide assistance in reading the financial information and other data relevant to this matter in order to assist Counsel and [Kodak] with the Kyocera Matter.' . . . . Kyocera was not copied on Deloitte's letter to Kodak."; "[N]o showing has been made by Kodak that the drafts and revisions of the 2008 notice reflect input from counsel 'beyond that which would have been [included] in the ordinary course.' . . . As to the second category, development of the audit work plan was plainly part of the ordinary course of an audit. . . . Any suggestion that Kodak would not have questioned Deloitte about Kyocera's cooperation in the audit and disclosure of documents had it not anticipated litigation strains credulity. That inquiry is part of assessing the reliability of the audit, as evidenced by the fact that Deloitte's 2009 audit report disclosed that Kyocera had failed to provide certain documents. That Kodak later based a legal claim on that information cannot shield from disclosure communications that occurred during the course of the audit about that subject. . . . Finally, my review of the withheld documents identifies no documents that analyze potential legal claims against Kyocera or discuss potential litigation. In short, I find that the withheld and redacted records would have been 'created in essentially the same form irrespective' of the prospect of litigation." (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-09-17 Federal NY B 6/13

Chapter: 38.1505
Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 134 (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; "Acknowledging that so-called multi-purpose documents are capable of enjoying work-product protection, however, says nothing of what a party must show to demonstrate that a multi-purpose document was in fact prepared because of anticipated litigation.")

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

Chapter: 38.1505
Case Name: Yorktowne Shopping Center, LLC v. Nat'l Surety 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

Chapter: 38.1505
Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
('"Both Delaware and Massachusetts follow the 'because of' test to determine application of the attorney work-product privilege. Under this test, the Court asks whether a document would have been produced by for existing or expected litigation.'")

Case Date Jurisdiction State Cite Checked
2010-05-31 State DE

Chapter: 38.1505
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."' (citations and footnote omitted))

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

key case


Chapter: 38.1505
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 nn.9-10, 748 (E.D. Va. 2007)
("Several district courts in the Fourth Circuit, looking to National Union, have applied a principle similar to Adlman's. See, e.g., In re Royal Ahold N.V. Sec. & ERISA Litig., 230 F.R.D. 433, 436 (D. Md. 2005) (relying on National Union to hold that '[u]ndoubtedly the company was also preparing for litigation, as the first class action was filed [close in time], but the investigation would have been undertaken even without the prospect of preparing a defense to a civil suit.'). See United States v. Torf (In re Grand Jury Subpoena), 357 F.3d 900 (9th Cir. 2003) (quoting Adlman's 'but for' language); United States v. Roxworthy, 457 F.3d 590, 593-94 (6th Cir. 2006) (quoting Adlman's 'irrespective of the litigation' language). Adlman's 'but for' and 'irrespective of' formulations are useful expositions of National Union's 'because of' standard, and they provide guidance for applying National Union to the facts in this case. In light of National Union and Adlman, the 'work product' that RLI seeks to protect must have been created because of the prospect of litigation, when (1) 'the [party] faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation,' National Union, 967 F.2d at 984, and (2) the work product 'would not have been prepared in substantially similar form but for the prospect of that litigation.' Adlman, 134 F.3d at 1195.")

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

Chapter: 38.1505
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("While RLI did hire outside counsel to interface with Conseco, hiring outside counsel does not excuse RLI from its duty to investigate insurance claims. RLI submitted no specific evidence that it would have conducted the 'reasonableness' investigation differently had no litigation been anticipate. RLI therefore fails the 'but for' formulation of National Union's requirement that work product be created 'because of' litigation in order to receive work product protection.")

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