McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 525 of 525 results

Chapter: 43.1
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
("'The term 'internal investigation' has been used by both parties throughout this adjudication and, therefore, will be used in this opinion as well for consistency. However, technically the investigation was an 'external investigation' because it was conducted by outside counsel, not by in-house counsel.'")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC

Chapter: 43.3
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 that the court's conclusion that WilmerHale did not waive Household's work product protection by disclosing work product to the SEC under a confidentiality agreement; "Plaintiffs finally seek waiver of the privilege based on Household's production to the SEC of 'documents summarizing the Restructuring Report.'. . . Defendants also emphasize that Household expressly withheld any privileged materials pursuant to a privilege log and agreed to the SEC's request for access to the Restructuring Report only on condition that the SEC enter into a written confidentiality agreement. . . . That July 16, 2003 confidentiality agreement specifically stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'"; "[T]he circuit courts are split as to the viability and application to this theory. Some have found that selective waiver is always permissible; some have found that selective waiver is never permissible; and others have found that selective waiver is permissible when the government has signed a confidentiality agreement. The court finds this last approach most persuasive in this case."; "Household insisted on a confidentiality agreement to protect the information. The court agrees with those cases finding that selective waiver may be appropriate where the disclosing party took steps to preserve its privilege. The agreement in this case expressly stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'. . . Plaintiffs make such of the fact that the agreement also allows the SEC to disclose the confidential information 'to the extent that the Staff determines that disclosure is otherwise required by law or would be in furtherance of the Commission's discharge of its duties and responsibilities.'. . . Plaintiffs note that the Qwest Communications [In re Qwest Communs. Int'l, 450 F.3d 1179, 1181 (10th Cir. 2006)] court found that identical confidentiality language did not preclude waiver because it 'gave the [SEC and DOJ] broad discretion to use the Waiver Documents as they saw fit.' 450 F.3d at 1181, 1194. The language in the DOJ's confidentiality agreement, however, was much broader than the language at issue here. In addition, unlike in Qwest, there is no evidence that 'any restrictions on [the documents'] use were loose in practice.' Id. at 1194. Thus, the court finds the agreement sufficient for purposes of applying selective waiver of the WilmerHale documents in this case. Household has not waived the work-product privilege by its voluntary production to the SEC of otherwise privileged documents, and Plaintiffs' motion to compel is denied.")

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

key case


Chapter: 43.5
Case Name: In re Banc of California Securities Litigation, SA CV 17-00118-AG (DFMx), 2018 U.S. Dist. LEXIS 87477 (C.D.C. May 23, 2018)
(holding that oral communications by Wilmer Hale lawyers to the SEC waived privilege and work product protection; "The parties do not dispute the underlying facts, which can be briefly summarized. On October 18, 2016, a website posted an article by an anonymous writer that alleged that there were financial ties between Banc's then-CEO Sugarman and Jason Galanis, a convicted white-collar criminal. The article set in motion a chain of events that ultimately caused Banc's auditor, KPMG US LLP, to send a Section 10A letter demanding that Banc conduct an investigation. Banc created a Special Committee of its Board of Directors, which in turn hired Wilmer Hale. The investigation conducted by Wilmer Hale included interviews of 15 individuals. Wilmer Hale presented its findings to the Securities and Exchange Commission ("SEC"). Later, at the SEC's request, Wilmer Hale provided the SEC with oral summaries of its 15 interviews.")

Case Date Jurisdiction State Cite Checked
2018-05-23 Federal DC
Comment:

key case


Chapter: 43.5
Case Name: In re Banc of California Securities Litigation, SA CV 17-00118-AG (DFMx), 2018 U.S. Dist. LEXIS 87477 (C.D.C. May 23, 2018)
(holding that oral communications by Wilmer Hale lawyers to the SEC waived privilege and work product protection; "Banc argues that the scope of Wilmer Hale's investigation is broader than Plaintiff's allegations, and accordingly urges the Court to allow Wilmer Hale to redact the non-pertinent portions of its investigation. The Court declines to do so. As this Court has previously recognized, the events leading up to Sugarman's resignation in January 2017 are within the scope of permissible discovery in this case. . . . Wilmer Hale's February 2017 report to Banc's full Board of Directors identified Sugarman's resignation as a 'remedial measure' arising out of the Special Committee's investigation.")

Case Date Jurisdiction State Cite Checked
2018-05-23 Federal DC

Chapter: 43.5
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "Nor has Defendant waived the work product protection. Plaintiff contends that Defendant relies on the Maynes [Lawyer who acted as an investigator rather than a legal advisor] reports as part of its defense. . . . Plaintiff argues that Defendant cannot use the investigation's findings as a defense to Plaintiff's claims while simultaneously arguing that such information is not discoverable. The Court agrees that Defendant should not be permitted to use the investigations as both sword and shield. But there is no evidence that Defendant is doing so in this case. Plaintiff argues that Defendant must be relying on the investigations because it denies Plaintiff's allegations that (1) HMS had notice of the harassment and took no remedial action, and (2) HMS failed to investigate reports of discrimination. . . . Plaintiff argues that Defendant 'has no factual basis to deny these material allegations without relying on Ms. Maynes' factual investigations.'. . . Plaintiff also points to Defendant's reliance on the investigations in a related case in state court. . . . At oral argument, defense counsel expressly disclaimed any reliance on the Maynes investigations as a defense in this case. Counsel represented that Defendant does not intend to rely on Ms. Maynes as a witness at trial. She is not listed among Defendant's witnesses in the parties' Joint Status Report and Provisional Discovery Plan. . . . Nor, as counsel stated during oral argument, does Defendant intend elicit testimony from any witness as to whether Defendant did or did not take action based on the Maynes reports. That Defendant may rely on the investigations in a related case is of no consequence to their discoverability here. Defendant has not waived the work product protection here.")

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

key case


Chapter: 43.5
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
("Thus, the status of the drafter (or the recipient) of the supposedly privileged document is not decisive on the question of whether the document is protected. It is for that reason that progress or status reports, investigation summaries, and general updates are generally not privileged merely because they were written by a lawyer to the client.")

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

key case


Chapter: 43.5
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: 43.5
Case Name: SEC v. Roberts, No. C 07-04580 MHP, 254 F.R.D. 371, 2008 U.S. Dist. LEXIS 64615 (N.D. Cal. Aug. 22, 2017)
(analyzing Howrey's disclosures to its corporate client's board of directors and to the government about the results of its internal corporate investigation; explaining that Howrey carefully limited its disclosure in some circumstances to historical facts, but in other circumstances answered questions about privileged communications Howrey had with witnesses; holding that a former company officer seeking discovery of Howrey's internal corporate investigation to defend themselves from an SEC action did not overcome the work product protection for materials generated during Howrey's internal corporate investigation; "Roberts requests disclosure of the documents based on substantial need. Roberts claims substantial need exists because these documents are relevant to whether he committed the acts with which he is charged, his state of mind and his ability to impeach key witnesses against him. Specifically, he claims the information may demonstrate McAfee frequently repriced option grants and that it was McAfee's controller that did so, which led Mr. Roberts to believe such modification was common and acceptable. He further claims the attorney's notes will help him determine individuals with knowledge of McAfee's accounting practices and determine the credibility of key witnesses. However, Roberts has not demonstrated why he cannot depose the witnesses himself. Roberts has not shown that any of the witnesses are unavailable or will assert their Fifth Amendment rights. Roberts is free to ask the witnesses what they knew and when they knew it and the witnesses may not claim that what they told the Howrey attorneys is protected by any privilege. Thus, a substantial need for the interview notes has not been shown. In light of this decision, Roberts is free to petition this court to increase the number of depositions he may conduct. Further, Roberts has shown absolutely no need for the attorney opinions and conclusions intertwined in the interview notes.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal CA

Chapter: 43.5
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; holding that the plaintiffs could not overcome the work product protection, but would have the chance to try again later; "The Court will, however, allow Plaintiffs to re-urge necessity at a later date. It reminds Plaintiffs of the very high burden required to prove that they 'cannot, without undue hardship, obtain' the materials they seek, or their substantial equivalent. The Court is therefore likely to only entertain narrow and specific requests for necessity where Plaintiffs have evidence demonstrating that they have been unable to obtain the information sought through other means.")

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

Chapter: 43.5
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: 43.5
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: 43.5
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *7-8 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (2), explaining as follows: "Halter collected facts and conducted interviews pursuant to his duties as an investigator and communicated his findings to his direct superior, Joseph Lewis. Neither Halter nor Lewis is an attorney, and there is no indication that either Halter or Lewis communicated Halter's findings to an attorney. Halter testified that he conducted the investigation without any specific direction. There are no facts in the record to suggest that the purpose of Halter's investigation was to gather facts so that Defendants could obtain legal advice or that Defendants represented to Halter or Lewis that the investigation was commenced for the purpose of obtaining legal advice. The Court is not convinced that a communication from one non-attorney gathering facts, without any specific direction, to another non-attorney, without any indication of a purpose of obtaining legal advice, is a privileged communication. Accordingly, Halter's communications regarding the 2005 and 2006 internal investigation are not protected by the attorney-client privilege, and PGERS [plaintiff] is entitled to fully examine Halter regarding the facts he learned and reported to Lewis." (emphasis added))

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

key case


Chapter: 43.5
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *8-9, *9-10 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (3), explaining as follows: "According to Defendants, the documents prepared in conjunction with the 2005-2006 internal investigation, including Halter's work plans, interview reports, and December 2005 report, were created in anticipation of litigation or government investigations that could result if FCPA [Foreign Corrupt Practices Act] violations had occurred. Defendants argue in general terms that the internal investigation was initiated in direct response to allegations of illegal conduct, which created the prospect of litigation. However, the fact that the subject matter of these documents could conceivably be litigated at some point is not determinative. . . . Defendants have not offered the Court any evidence in the form of an affidavit or declaration setting forth the basis for the claim that the documents are protected by the work product doctrine. Defendants have the burden of proving the applicability of the work product doctrine to the documents prepared in conjunction with the internal investigation, and all that Defendants have offered as evidence are general, conclusory assertions by counsel that litigation was anticipated. If this was sufficient, it would render the burden to establish the protection meaningless."; "The facts before the Court seem to suggest that the investigation was not commenced and the report was not prepared because of any prospect of litigation but instead to gather factual information regarding an alleged bribery scheme orchestrated by Wal-Mart de Mexico. Halter testified that his reports simply recounted facts; and he was not given any special direction as to how to conduct the interviews; that he reported the facts he gathered; that he conducted no legal analysis; and that he did not send his reports to counsel. Thus, the Court finds that the factual materials regarding the 2005-2006 internal investigation that Halter drafted and provided to his superior, Joseph Lewis, including investigative reports, action plan, interview reports, and other factual compilations, are not protected by the work product doctrine. Thus, Wal-Mart shall produce these documents to PGERS [plaintiff]." (emphases added))

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

key case


Chapter: 43.5
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: 43.5
Case Name: U.S. Bank National Ass'n v. PHL Variable Insurance Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016)
May 25, 2016 (PRIVILEGE POINT)

"Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine"

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other common client assumptions, this overly optimistic view is frequently wrong.

In U.S. Bank National Ass'n v. PHL Variable Insurance Co., defendant PHL withheld from production a 39-page report written by three lawyers from the law firm then known as Bracewell & Guiliani — supporting its privilege and work product claim with a declaration that it retained Bracewell & Guiliani "for the purpose of seeking legal consultation, advice and counsel." Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016). But the court rejected both claims. Among other things, the court pointed to non-protected emails, undoubtedly written by the defendant's business folks -- announcing that the company had hired Bracewell & Guiliani "'to review our current procedures,'" because that law firm had provided services to others "'serious about ensuring the quality of business.'" Id. At *6 (internal citations omitted). Other unprotected client documents described the law firm's activities as "'consulting,'" and mentioned the firm's recommendations about the company's "'business plan.'" Id. At *7 (internal citations omitted). The court also reviewed in camera the Bracewell & Guiliani report itself — noting that "the majority of the Report suggests improvements to PHL's business practices." Id. The court again pointed to its in camera review of the report in also rejecting PHL's work product claim — noting that the firm's report "was not 'mapping litigation strategy.'" Id. At *16 (citation omitted).

Corporations hiring law firms should remember that a court might review business executives' description of the law firm's role, and also read the law firm's communications.

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 43.5
Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "PHL argues generally that portions of the Report that make specific recommendations should be protected as legal advice. However, as discussed above, aside from the additional portions of this Court finds protected, the rest of the recommendations are improvements to PHL's business practices in order to minimize the economic risk of STOLI transactions and not legal recommendations.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 43.5
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: 43.5
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Plaintiffs also argue that the Report was used for Bard's business purposes, and that there is no evidence it was used for litigation purposes. . . . Plaintiffs identify three internal Bard documents that contain information from the Report . . . . Used in creating them. Bard also admitted this fact during oral argument and in its reply brief. . . . But use of the Report to create internal HHEs and RAPs does not deprive the Report of work product protection. To the contrary, the 'because of' test is directed at documents that serve both litigation and business purposes.")

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

key case


Chapter: 43.5
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: 43.5
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: 43.5
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: 43.5
Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *6, *7-8, *9, *10-11 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding the work product doctrine inapplicable; "Chamberlain has not shown that the documents it created or gathered as part of the investigation for Telamon and its lawyers are work product. Chamberlain cannot even identify any particular litigation, the prospect of which was a motivating reason for its hiring or its work. Chamberlain does not contend that its hiring or the conduct of its investigation was because of likely insurance coverage litigation. Instead, it points to the FBI's involvement and to J.B.'s filing of a charge of discrimination with the EEOC as satisfying the 'anticipation of litigation' element. But neither of these circumstances tends to show that Barnes & Thornburg or Telamon hired Chamberlain, or that Chamberlain conducted its investigation, because 'some articulable claim, likely to lead to litigation,' had arisen." (citation omitted); "Chamberlain does not counter the fact that it was the results of its investigation that led Chamberlain and the lawyers to reach out to the FBI; Chamberlain's hiring and its work were not primarily for the purpose of assisting the FBI in gathering evidence for potential criminal proceedings. . . . [A]ny contemplated criminal proceedings involved J.B. and perhaps other rogue employees as the suspects and potential defendants, with Telamon always as victim. The anticipated litigation for which an entity or its representative may create documents protectable as work product must be litigation to which one expects to be a party, and there is no indication that anyone feared Telamon might be targeted as a potential defendant in any criminal proceeding."; "The fact that Barnes & Thornburg -- rather than Telamon itself -- hired Chamberlain does not tip the scale to satisfy the anticipation of litigation requirement."; "Chamberlain has not met its burden to show that it was hired, or that it conducted its work, because of any particular matter that Telamon or its lawyers thought likely to lead to litigation involving Telamon. Instead, the evidence demonstrates that Chamberlain was hired, and prepared and gathered the documents in its investigative file, because Telamon had a strong business need to determine how hundreds of thousands of dollars of inventory went missing and which of its employees was responsible, wholly apart from the prospect of any litigation.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 43.5
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: 43.5
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

Chapter: 43.5
Case Name: Allied Irish Banks, P.L.C. v. Bank of America, N.A., 03-Civ. 3748 (DAB) (GWG), 2007 U.S. Dist. LEXIS 4247 (S.D.N.Y. Jan. 23, 2007)
(holding that neither the attorney-client privilege nor the work product doctrine protected materials created during an internal corporate investigation conducted by bank employees and Wachtell and PwC into possible wrongful foreign exchange trading; among other things, noting that the final investigation report did not mention litigation, and was used to make organizational and other business changes in the bank; "This conclusion is supported by the fact that the Report itself contains no suggestion that it was engendered by any concern about litigation. Rather, the Report explains that its purpose was 'to advise the Boards of Directors of [AIB] and Allfirst . . . with respect to losses sustained by Allfirst Financial Inc. and Allfirst Bank . . . in foreign exchange trading.'. . . The Report defines its scope with reference to the 'questions that [the Board] . . . referred to us for our review,'. . . none of which reveal its litigation concerns. Indeed, nowhere in the Report are AIB's litigation concerns adverted to explicitly or implicitly."; "Third, the use to which the Report was ultimately put provides further evidence of why it would have been generated in the same manner irrespective of the potential for litigation. Accordingly to AIB's Group Chief Executive, the AIB board intended the Report to be used to 'address[] culpability, accountability, control systems and organizational issues.'. . . As noted, the Board publicly fired six individuals identified in the Report as 'directly responsible for oversight of Mr. Rusnak . . .'. . . '[C]onsistent with the findings and recommendations of the report,'. . . the Board also adopted a series of 'organisational [sic] changes,' id., to its 'strategy and group structure' as well as to its corporate governance. . . . These actions evidence the importance of the role of Ludwig investigation as a corporate management tool, not as a mechanism to assist in expected litigation."; "In sum, AIB needed Ludwig's Report to provide an appropriate public response to the fraud and apparent mismanagement that had been committed.")

Case Date Jurisdiction State Cite Checked
2007-01-23 Federal NY
Comment:

Key Case


Chapter: 43.5
Case Name: In re OM Group Securities Litigation, Lead Dkt. No. 1:02CV2163, 2005 U.S. Dist. LEXIS 3967 (N.D. Ohio Feb. 28, 2005)
(finding that materials generated during an Audit Committee's internal investigation into possible inventory wrongdoing conduct by Weil Gotshal and the forensic accounting firm of Ten Eyck deserved privilege protection, but not work product protection; noting the confusion about Weil Gotshal's and Ten Eyck's client; noting among other things that Weil Gotshal's and Ten Eyck's presentation to the corporate board did not mention litigation, and the company released financial statement shortly thereafter; "On March 15, 2004, three months into the investigation, WGM and TEN Eyck gave a presentation to OMG's Board of Directors. There is no evidence that there was any discussion of litigation at the meeting. As a result of the meeting, on March 16, 2004, OMG announced that it anticipated restating its financial statements for 1999 through 2003. This indicates that the business purpose was a significant factor regardless of possible additional litigation. Accuracy of earnings and financial statements is clearly a business matter for all publicly-held corporations, regardless of whether litigation is pending or anticipated. Therefore, this Court concludes that the Audit Committee would have conducted the investigation and prepared the documents regardless of the possibility of additional litigation. The documents are not protected by the work-product doctrine. Thus, they should be produced unless they are subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2005-02-28 Federal OH
Comment:

Key Case


Chapter: 43.6
Case Name: In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017)
January 24, 2018 (PRIVILEGE POINT)

"Putting Lawyers in Charge of Investigations Does Not Assure Privilege Protection"

Corporations' investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by anticipated litigation, and the company would not have created the investigation-related documents in the same form but for that anticipated litigation.

In In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017), Premera claimed privilege and work product protection for its data breach investigation. The court rejected both claims. Among many other things, the court assessed Premera's work product claim for documents created by its consultant Mandiant. Premera had hired Mandiant to review its claims data management system in October 2014. On January 29, 2015, Mandiant discovered malware on the system. Premera quickly hired an outside lawyer, and on February 21, 2015, "Premera and Mandiant entered into an amended statement of work that shifted supervision of Mandiant's [later] work to outside counsel." Id. at *22. Premera predictably argued that Mandiant's later work was protected, because Mandiant was then working "on behalf of an attorney." Id. at *23. But the court rebuffed the argument -- bluntly explaining that the "flaw in Premera's argument . . . is that . . . [Mandiant's] scope of work did not change [from the October 2014 agreement] after outside counsel was retained." Id. As the court noted, the "only thing that appears to have changed involving Mandiant was the identity of its direct supervisor." Id.

Companies seeking to maximize privilege and work product protection for internal corporate investigations should carefully document the primary motivations, showing that the corporation did something different or special because of its need for legal advice or because of anticipated litigation. The documentation of course should start with law firms' and consultants' retainer letters – but all documents created before, during, and after investigations should help evidence the necessary motivational elements under the privilege and (if appropriate) the work product doctrine.

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

key case


Chapter: 43.6
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

Chapter: 43.6
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

Chapter: 43.6
Case Name: In re Symbol Technologies, Inc. Securities Litigation, No. CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015)
November 25, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part II"

Last week's Privilege Point described two cases rejecting defendant's protection claims for internal investigations. In each case, the court held that the defendant undertook its investigation in the ordinary course of its business.

A few days later, in In re Symbol Technologies, Inc. Securities Litigation, No. CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015), the court dealt with Symbol's internal investigation of possible revenue overstatement. Citing an earlier decision, the court acknowledged that "'[a]lthough 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.'" Id. At *20 (quoting U.S. Fid. & Guar. Co. v. Brasperto Oil Servs. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *33 (S.D.N.Y. June 8, 2000)). The court concluded that it "does not have sufficient factual information" to analyze this possible shift, and ordered Symbol to prepare a privilege log and possibly produce documents for the court's in camera review. Id. At *21.

When courts analyze the alleged morphing of ordinary course investigations into privileged or work product-protected investigations, they will look for evidence that the company did something different or special because it needed legal advice or anticipated litigation. Companies and their lawyers should remember that this shift should appear on the face of the investigation documents the court will review in camera.

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

key case


Chapter: 43.6
Case Name: In re Symbol Technologies, Inc. Securities Litigation, No. CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015)
November 25, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part II"

Last week's Privilege Point described two cases rejecting defendant's protection claims for internal investigations. In each case, the court held that the defendant undertook its investigation in the ordinary course of its business.

A few days later, in In re Symbol Technologies, Inc. Securities Litigation, No. CV 05-3923 (DRH) (AKT), 2015 U.S. Dist. LEXIS 131478 (E.D.N.Y. Sept. 29, 2015), the court dealt with Symbol's internal investigation of possible revenue overstatement. Citing an earlier decision, the court acknowledged that "'[a]lthough 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.'" Id. At *20 (quoting U.S. Fid. & Guar. Co. v. Brasperto Oil Servs. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *33 (S.D.N.Y. June 8, 2000)). The court concluded that it "does not have sufficient factual information" to analyze this possible shift, and ordered Symbol to prepare a privilege log and possibly produce documents for the court's in camera review. Id. At *21.

When courts analyze the alleged morphing of ordinary course investigations into privileged or work product-protected investigations, they will look for evidence that the company did something different or special because it needed legal advice or anticipated litigation. Companies and their lawyers should remember that this shift should appear on the face of the investigation documents the court will review in camera.

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

key case


Chapter: 43.6
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: 43.6
Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 441 (N.D. Iowa 2014)
("To the extent that factual investigation and trial preparation overlap in the investigation, the work product doctrine applies.")

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

Chapter: 43.6
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: 43.6
Case Name: Louis Vuitton Malletier v. Texas Int'l P'ship, Civ. A. H-10-2821, 2012 U.S. Dist. LEXIS 67140, *11 (S.D. Tex. May 14, 2012)
(analyzing work product protection for documents created by plaintiff during its investigation of possible sales of counterfeit merchandise; finding that work product protection started at some point during the investigations; "Louis Vuitton has offered little evidence to aid the court in determining when its communications with its investigators changed from being communications prepared in the ordinary course of business to being communications that were motivated by potential litigation. Clearly, once the lawsuit was initiated on August 9, 2010, any communications with regard to investigations of the sale or distribution of counterfeit Louis Vuitton merchandise at the Center are work product related to the ongoing litigation."; "[A]ny communications with its investigators regarding the shops in the Center on or after May 15, 2009, were prepared in anticipation of litigation and are work product. However, Louis Vuitton has presented no evidence that it was communicating with its investigators in anticipation of litigation before May 15, 2009. Accordingly, it has not carried its burden of proof to show that the pre-May 15, 2009 communications were made in anticipation of litigation rather than in the normal course of business.") (emphases added)

Case Date Jurisdiction State Cite Checked
2012-05-14 Federal TX
Comment:

key case


Chapter: 43.6
Case Name: Everbank v. Fifth Third Bank, Case No. 3:10-cv-1175-J-12TEM, 2012 U.S. Dist. LEXIS 63212, at *9 (M.D. Fla. May 4, 2012)
(acknowledging that database documents might include both unprotected and work product-protected documents, and that such documents might be revised and thereafter deserve work product protections; "While individual paper documents may be prepared solely in the normal course of business or solely in anticipation of litigation, the ongoing, dynamic nature of electronic databases creates the potential for hybrid documents. Hybrid documents may be created in the normal course of business initially, but through amendments, additions and changes becomes documents created in anticipation of litigation later, particularly if the documents are maintained in electronic format. A database containing both information entered in the normal course of business and information that was entered in the anticipation of litigation may be subject to limited work product privilege. Conceivable, the information entered at the direction of legal counsel would be subject to work product privilege if it would reveal the legal strategies or theory of the case upon which counsel intends to rely.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2012-05-04 Federal FL

Chapter: 43.6
Case Name: Drayton v. Pilgrim's Pride Corp., Civ. A. Nos. 03-2334, 03-3500, 04-3577, & 04-3974, 2005 U.S. Dist. LEXIS 18571, at *8 (E.D. Pa. Aug. 30, 2005)
(acknowledging that an investigation might "morph" from a normal safety check into a work product-protected investigation, but expressing skepticism; "Pilgrim's Pride cannot seriously contend that E & Y's endeavor was not already a work in progress when counsel sought to expand the consultant's role. Drawing the line between what is work product in anticipation of litigation and what is part of the continuing safety review may be difficult, but it is unnecessary at this time because plaintiff's have not demonstrated a substantial need for the materials."; ordering an in camera review) (emphasis added)

Case Date Jurisdiction State Cite Checked
2005-08-30 Federal PA

Chapter: 43.6
Case Name: EEOC v. Rose Casual Dining, L.P., Civ. A. No. 02-7485, 2004 U.S. Dist. LEXIS 1983 (E.D. Pa. Jan. 23, 2004)
(holding that a company relying on the Faragher-Ellerth doctrine as a defense to a hostile work environment case did not automatically forfeit work product protection for a separate second investigation; "Plaintiffs seek any witness statements generated during this investigation. In response, Defendants claim that the witness statements Plaintiffs seek were not generated during the investigation prior to Rielli's termination, but rather during a second investigation commenced after Rielli was terminated. This second investigation, which was led by Rose Casual's outside counsel, began after Rose Casual received a letter from Rielli's attorney on December 10, 2001, threatening it with litigation. Defendants claim that any witness statements generated during this second investigation are protected from discovery by the attorney-client privilege and the work-product doctrine."; "With respect to witness statements that were generated after Rielli was fired and at the direction of counsel in preparation for litigation, we agree that such statements are protected from discovery by the work-product doctrine.") (emphases added)

Case Date Jurisdiction State Cite Checked
2004-01-23 Federal PA

Chapter: 43.6
Case Name: State ex rel. Brady v. Ocean Farm Ltd. P'ship, C.A. No. 2036-S, 2002 Del. Ch. LEXIS 16, at *10 (Del. Ch. Feb. 14, 2002)
(addressing documents created during an investigation conducted by state authorities into deceptive trade practices; acknowledging that an investigation might "morph" into a work-product protected investigation; "The record facts do not enable me to decide whether the investigative report at issue on this motion was prepared in anticipation of litigation, or whether it was prepared routinely in the ordinary course of business. That difficulty arises because the State conducts routine investigations of complaints made to its Consumer Protection Unit; while at the same time, it also brings enforcement actions against certain offenders in civil court. Thus, at some point on the investigative process continuum, an investigation that begins as the routine exploration of a complaint brought against a Delaware business, will evolve into the preparation for a civil lawsuit against the offender. Only after the State begins preparing for a civil action does the work product immunity attach. On this record, I am unable to determine where on that continuum the investigative report at issue in this case falls. The only way to obtain that information is for the Court to review the investigative report in camera, which is what will be done here. In connection with the in camera review, the State will have the burden of demonstrating what portions (if any) of the report are protected by the work product immunity.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2002-02-14 State DE
Comment:

key case


Chapter: 43.6
Case Name: Welland v. Trainer, No. 00 Civ. 0738 (JSM), 2001 U.S. Dist. LEXIS 15556, at *6 (S.D.N.Y. Sept. 28, 2001)
(denying work product protection for documents a company created during an investigation into its executive's possible unethical practices, but acknowledging that the work product doctrine applied to documents created during an investigation after he left the company; "The investigation of Plaintiff was initiated because of an anonymous letter alleging some impropriety on Plaintiff's part and not because Defendants were concerned about the prospect of litigation with Plaintiff. The investigator states that it was unusual to involve the corporation's attorneys in an investigation, but it is clear that the investigation of an employee accused of unethical practices would occur in the ordinary course of business to determine whether or not to terminate that employee. Although Plaintiff retained an attorney before he was terminated, the investigation continued because of the allegations against Plaintiff and not because there was an increased threat of litigation. Therefore, the investigation documents that were produced before November 23, 1999 are not protected by the work product privilege. However, the investigation focus changed once Plaintiff was terminated. At that point, the investigation continued because of the need to prepare for the likelihood of litigation. Thus, the documents produced on or after November 23, 1999, Documents 15-48, are protected by the work product privilege. There are several documents listed as undated in the privilege log. Since the burden is on Defendants to prove that a privilege exists, Defendants will have to clarify if those documents were prepared before or after Plaintiff's termination.") (emphases added)

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

key case


Chapter: 43.9
Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)
(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; "I find that when the Board released the Bullard Report, it waived the attorney-client privilege as to the entire scope of the investigation performed by Attorney Bullard, and all materials, communications, and information provided to Attorney Bullard as part of her investigation.")

Case Date Jurisdiction State Cite Checked
2018-01-12 Federal TN

Chapter: 43.9
Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)
(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; "Similarly, when the Board released the Bullard Report to the public, and expressed an intention to rely upon the investigation and report to defend the lawsuits against it, it waived the protection afforded under the work product doctrine as to both fact and opinion work product found in any documents prepared by Attorney Bullard (including draft reports) and in any communications to or from Attorney Bullard which directly relate to her investigation and preparation of the Bullard Report.")

Case Date Jurisdiction State Cite Checked
2018-01-12 Federal TN

Chapter: 43.9
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "Defendants contend that ML made other oral disclosures of work-product information to the SEC, above and beyond the oral downloads of the 12 interviews. The Undersigned cannot reach any conclusions about further disclosures unless and until ML provides additional clarification about what was disclosed. Defendants contend that the ML attorneys took notes of the discussions they had with the SEC and perhaps with the Department of Justice. Defendants request that the Undersigned review in camera ML's attorneys' notes of an October 29, 2013 meeting. ML does not oppose this request. . . . But the Undersigned is unsure about whether ML attorneys met with the SEC and/or the Department of Justice on days other that October 29, 2013."; "Therefore, ML shall, within seven days from this Order, file under seal a copy of all attorney notes discussing or reflecting what information was disclosed to the SEC or the Department of Justice during meetings (or otherwise).")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 43.9
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 43.9
Case Name: SEC v. Roberts, No. C 07-04580 MHP, 254 F.R.D. 371, 2008 U.S. Dist. LEXIS 64615 (N.D. Cal. Aug. 22, 2017)
(analyzing Howrey's disclosures to its corporate client's board of directors and to the government about the results of its internal corporate investigation; explaining that Howrey carefully limited its disclosure in some circumstances to historical facts, but in other circumstances answered questions about privileged communications Howrey had with witnesses; holding that a former company officer seeking discovery of Howrey's internal corporate investigation to defend themselves from an SEC action did not overcome the work product protection for materials generated during Howrey's internal corporate investigation; "Roberts requests disclosure of the documents based on substantial need. Roberts claims substantial need exists because these documents are relevant to whether he committed the acts with which he is charged, his state of mind and his ability to impeach key witnesses against him. Specifically, he claims the information may demonstrate McAfee frequently repriced option grants and that it was McAfee's controller that did so, which led Mr. Roberts to believe such modification was common and acceptable. He further claims the attorney's notes will help him determine individuals with knowledge of McAfee's accounting practices and determine the credibility of key witnesses. However, Roberts has not demonstrated why he cannot depose the witnesses himself. Roberts has not shown that any of the witnesses are unavailable or will assert their Fifth Amendment rights. Roberts is free to ask the witnesses what they knew and when they knew it and the witnesses may not claim that what they told the Howrey attorneys is protected by any privilege. Thus, a substantial need for the interview notes has not been shown. In light of this decision, Roberts is free to petition this court to increase the number of depositions he may conduct. Further, Roberts has shown absolutely no need for the attorney opinions and conclusions intertwined in the interview notes.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal CA

Chapter: 43.9
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; finding that Baylor had not broadly waived its work product protection; explaining the scope of the work product waiver; "Waiver is more narrow in the context of the work-product doctrine than in the context of attorney-client privilege. Because the work-product privilege exists 'to promote the adversary system by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of an opponent,' 'the mere voluntary disclosure to a third person is insufficient in itself to waive the work product privilege.'. . . Subject-matter waiver is generally limited to instances where the quality and substance of an attorney's work product have been directly placed at issue in the litigation by the party asserting the privilege."; "Although Baylor has impliedly connected the Pepper Hamilton investigation to this litigation . . . it has not directly invoked Pepper Hamilton's work as a defense. Baylor's answer in this case, for example, includes no reference to the Pepper Hamilton investigation. While Plaintiffs argue that Baylor will use the investigation as part of its defense in the future, such speculation is insufficient, at this time, to satisfy Plaintiffs' burden to show broad, subject-matter waiver. Should Baylor directly invoke the Pepper Hamilton investigation as part of a substantive defense to Plaintiffs' claims in the future, the Court will entertain a motion by Plaintiffs re-urging waiver."; inexplicably citing waiver as a grounds for ordering Baylor to disclose some logistical information about the investigation ; "While the scope of the work-product protection is quite broad, it is not as broad as Baylor asserts in its briefing. Baylor cannot withhold the names of individuals Pepper Hamilton interviewed or the documents and data it produced to Pepper Hamilton on the basis of the work-product privilege. As an initial matter, Baylor has not met its burden to demonstrate that this information reveals attorney work product. The fact that a person was interviewed by Pepper Hamilton or that certain documents or cell phone records were produced does not necessarily reveal why the information was part of the investigation or what role it played in the investigation."; "Alternatively, even if this information was protected as attorney work product, Baylor has made a limited waiver of that protection. Baylor has released specific names of individuals that were interviewed and revealed specific sources of data reviewed by Pepper Hamilton. . . . Just as Baylor could not release half of a memo written by Pepper Hamilton and withhold the other half as protected, Baylor cannot release the names of certain individuals who were interviewed and certain data sources and withhold the rest as protected attorney work product."; In light of this analysis, the 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
Comment:

key case


Chapter: 43.9
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; holding that the plaintiffs could not overcome the work product protection, but would have the chance to try again later; "The Court will, however, allow Plaintiffs to re-urge necessity at a later date. It reminds Plaintiffs of the very high burden required to prove that they 'cannot, without undue hardship, obtain' the materials they seek, or their substantial equivalent. The Court is therefore likely to only entertain narrow and specific requests for necessity where Plaintiffs have evidence demonstrating that they have been unable to obtain the information sought through other means.")

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

Chapter: 43.9
Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisdiction State Cite Checked
2015-11-05 Federal NY
Comment:

key case


Chapter: 43.9
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal NY
Comment:

key case


Chapter: 43.9
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal NY
Comment:

key case


Chapter: 43.9
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: 43.9
Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 43.9
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013)
February 12, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part I"

All but a handful of courts find that companies disclosing privileged communications or protected work product to the government waive both of those protections. Courts properly analyzing waiver rules also recognize that disclosing historical facts does not cause a waiver – because historical facts are not privileged.

In two related cases, Judge Francis of the Southern District of New York dealt with the intersection of these basic principles. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013), Weatherford retained Latham & Watkins and Davis Polk to conduct two separate corporate investigations into material weaknesses in the company's internal controls over financial reporting. The court acknowledged that both investigations deserved work product protection. However, the court also found that the company waived its privilege and fact (but not opinion) work product protection by disclosing information about the investigations to the SEC. In defining the scope of the resulting waiver, the court (1) rejected plaintiffs' argument that the waiver extended to "all materials relevant" to the investigations; (2) found that the waiver covered any material actually given to the SEC, and any oral representations company lawyers made to the SEC; and (3) held that the waiver also extended to any "underlying factual material explicitly referenced" in such material or representations. Id. At *28, *27.

Perhaps not surprisingly, the parties soon disagreed about the company's interpretation of the waiver's scope – which resulted in another opinion one month later. The next two Privilege Points describe that decision.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 43.9
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 did not waive the privilege or work product protection covering its documents by disclosing facts to the plaintiffs (although not clearly explaining that its conclusion covered both the privilege and the work product protections); "Plaintiffs first note that after Per Eckholdt's deposition, Defendants affirmatively waived the privilege with respect to Exhibit 13, an internal email transmitting a tabular arrangement of factual data that had been requested by WilmerHale. The fact that Defendants withdrew the privilege as to a strictly factual and non-privileged document, however, does not waive the privilege as to all WilmerHale materials. . . . For similar reasons, Defendants' production of two other factual documents is insufficient to waive the privilege. The first is an internal email forwarding an email addressed to an attorney, which 'merely identifies and attaches a tabular array of nonprivileged pre-existing factual information.'. . . The second is an internal Household presentation that includes a reference to 'estimates' having been prepared at WilmerHale's request, but does not include or describe those estimates."; also noting that WilmerHale disclaimed any intent to rely on its documents; "As for Plaintiffs' concern that Defendants are attempting to use favorable portions of the WilmerHale materials as a sword while simultaneously withholding unfavorable portions under the work product shield, the court notes that Defendants do not intend to use the Restructuring Report, or any of the underlying privileged documents, in its defense in this case.")

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

key case


Chapter: 43.9
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 did not waive the work product protection by disclosing work product to Household's regular auditor KPMG; "Plaintiffs also seek a finding of waiver based on the fact that Household produced the Restructuring Report and related documents to its outside auditor, KPMG. . . . The court has already addressed and rejected Plaintiffs' arguments regarding disclosure to an auditor.")

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

key case


Chapter: 43.9
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 that the court's conclusion that WilmerHale did not waive Household's work product protection by disclosing work product to the SEC under a confidentiality agreement; "Plaintiffs finally seek waiver of the privilege based on Household's production to the SEC of 'documents summarizing the Restructuring Report.'. . . Defendants also emphasize that Household expressly withheld any privileged materials pursuant to a privilege log and agreed to the SEC's request for access to the Restructuring Report only on condition that the SEC enter into a written confidentiality agreement. . . . That July 16, 2003 confidentiality agreement specifically stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'"; "[T]he circuit courts are split as to the viability and application to this theory. Some have found that selective waiver is always permissible; some have found that selective waiver is never permissible; and others have found that selective waiver is permissible when the government has signed a confidentiality agreement. The court finds this last approach most persuasive in this case."; "Household insisted on a confidentiality agreement to protect the information. The court agrees with those cases finding that selective waiver may be appropriate where the disclosing party took steps to preserve its privilege. The agreement in this case expressly stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'. . . Plaintiffs make such of the fact that the agreement also allows the SEC to disclose the confidential information 'to the extent that the Staff determines that disclosure is otherwise required by law or would be in furtherance of the Commission's discharge of its duties and responsibilities.'. . . Plaintiffs note that the Qwest Communications [In re Qwest Communs. Int'l, 450 F.3d 1179, 1181 (10th Cir. 2006)] court found that identical confidentiality language did not preclude waiver because it 'gave the [SEC and DOJ] broad discretion to use the Waiver Documents as they saw fit.' 450 F.3d at 1181, 1194. The language in the DOJ's confidentiality agreement, however, was much broader than the language at issue here. In addition, unlike in Qwest, there is no evidence that 'any restrictions on [the documents'] use were loose in practice.' Id. at 1194. Thus, the court finds the agreement sufficient for purposes of applying selective waiver of the WilmerHale documents in this case. Household has not waived the work-product privilege by its voluntary production to the SEC of otherwise privileged documents, and Plaintiffs' motion to compel is denied.")

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

key case


Chapter: 43.11
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 202-203 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "One fact used by many courts in determining whether the work product doctrine applies is the context in which the materials are prepared. These courts draw a distinction between first party and third party liability coverage. See, e.g., McCullough v. Standard Pressing Machines, 39 Va. Cir. 191 (Fairfax 1996); accord St. Paul Reinsurance Co., Ltd., 197 F.R.D. at 636 ('the court is itself persuaded that such a distinction has merit.') In McCullough, Judge Vierreg wrote that most of the cases denying work product protection to adjuster reports involve 'first party' insurance coverage as distinguished from 'third party' or liability insurance coverage. 39 Va. Cir. at 192. In the case of first party liability, the insurer has a duty to investigate, thus any investigation fulfills this investigatory duty in the ordinary course of business. Id. See also St. Paul Reinsurance Co., Ltd., where the case involved a first-party bad faith claim. The court concluded that an investigation of whether coverage exists is required and the conduct of that much of its investigation is assuredly in the ordinary course of business, not in anticipation of litigation. 197 F.R.D. at 636. In the case of third party liability insurance coverage, however, an insured obtains insurance to protect against liability claims of third persons, which are established in favor of the third party against the insured by litigation in a court of law. See, e.g., McCullough, 39 Va. Cir. at 192. Thus, when an insured is involved in an insured event occurrence, such as an automobile accident, reasonably giving rise to liability, the liability insurer has an incentive to investigate the circumstances surrounding the occurrence in order to fulfill its obligation to its insured to defend against a third party potential action. Id. In the end, liability insurance is essentially 'litigation insurance.' Id. (citing Kandel, 256 N.Y.S.2d at 899). See also, Ashmead v. Harris, 336 N.W.2d 197 (Iowa 1983); Fontaine v. Sunflower Beef Carrier, Inc., 87 F.R.D. 89 (E.D. Mo. 1980).")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 43.132
Case Name: Costco Wholesale Corp. v. Arrowood Indemnity Co., Civ. Case No. C17-1212RSL, 2018 U.S. Dist. LEXIS 157335 (W.D. Wash. Sept. 14, 2018)
(analyzing work product protection in a third party insurance setting; "It is Sedgwick LLP's communications with Mr. Aus that were withheld as attorney-client privileged communications. While it is possible that these communications contain legal advice regarding whether or not coverage exists under Washington law or how Arrowood could defend a declaratory judgment action, some or all of the communications may also reflect counsel's participation in and guidance of the quasi-fiduciary tasks of investigation and adjustment. Because the documents appear to be located within the insurer's claim file, they are subject to the presumption that the attorney-client privilege does not apply as between the insured and its insurer in the claims adjusting process. The Court will, nevertheless, review the withheld and redacted documents in camera to forestall an inadvertent disclosure of privileged materials.")

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

Chapter: 43.301
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: 43.301
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: 43.301
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: 43.301
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: 43.301
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: 43.301
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: 43.302
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: 43.302
Case Name: Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
November 29, 2017 (PRIVILEGE POINT)

"S.D.N.Y. Magistrate Judge Francis Analyzes the Work Product Doctrine's 'Motivational' Element'"

Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether their clients sufficiently "anticipated" litigation when creating the withheld documents. But frequently the most important obstacle to claiming work product protection is (3) whether the anticipated litigation "motivated" the documents' creation (and thus whether the documents would not have existed in the same form but for that anticipated litigation).

In Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017), Southern District of New York Magistrate Judge Francis found that the Proskauer law firm's Title VII investigation report for its client deserved work product protection. He acknowledged that the firm's client had a written policy for investigating discrimination complaints. That conclusion normally would doom a work product claim - as evidence that the investigation report was not motivated by litigation, but rather compelled by internal requirements. But Judge Francis then noted that Proskauer's report was "unique in several ways": (1) the litigation had already begun; (2) the client "did not rely on its human resources personnel or even in-house counsel to conduct the investigation, but instead engaged outside counsel"; and (3) Proskauer's report "does not appear to be in a form consistent with routine investigations of discrimination complaints." Id. at *19.

Judge Francis's wise analysis provides a lesson for all corporations. To deserve work product protection, documents generally must be different from those prepared in the ordinary course of business, or compelled by external or internal requirements.

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 43.302
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; "At the time she made her notes, Baiocchi was the director of human resources at Herzing, and, although she also happened to be a lawyer, she was acting in her capacity as the human resources director when conducting the investigation in accordance with Herzing's employee policy. Considering this, and in light of the Court's analysis above, the Court finds that the attorney-client privilege does not apply to Baiocchi's redacted notes from her May 10, 2013, interviews.")

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

Chapter: 43.302
Case Name: Gillespie v. Charter Communications, Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015)
November 18, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part I"

Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both contexts, companies must do something different or special — not in the ordinary course of their business. Careful companies sometimes fail both standards, because they ordinarily investigate suspicious events, serious accidents, etc.

In Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015), the Kansas Department for Children and Families investigated a minor’s death. The court found unpersuasive an agency lawyer's affidavit that the investigation was "'done in anticipation of litigation and under my direction.'" Id. At *5 (internal citation omitted). Relying on the majority view applicable to companies and other institutions, the court rejected work product protection for the investigation — noting that the agency's "policy and procedure manual indicates that an attorney would oversee an investigation involving any situation similar to [the child's] death, regardless of whether litigation was imminent." Id. At *5-6. Two days later, in Gillespie v. Charter Communications, the court similarly rejected defendant's privilege and work product claim for a racial discrimination "Incident Investigation Report." Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015). In denying the work product claim, the court concluded that Charter "generated [the incident report] in the ordinary course of [its] business" — describing Charter's "ongoing compliance program" as involving a "reporting system, and the process of investigating claims made within this system." Id. At *13.

How can companies successfully claim privilege and work product protection if they establish laudable processes to conduct internal investigations as part of their ordinary course of business? Several days after these decisions, another court provided some guidance. Next week's Privilege Point will discuss that case.

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

key case


Chapter: 43.302
Case Name: Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015)
November 18, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part I"

Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both contexts, companies must do something different or special — not in the ordinary course of their business. Careful companies sometimes fail both standards, because they ordinarily investigate suspicious events, serious accidents, etc.

In Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015), the Kansas Department for Children and Families investigated a minor’s death. The court found unpersuasive an agency lawyer's affidavit that the investigation was "'done in anticipation of litigation and under my direction.'" Id. At *5 (internal citation omitted). Relying on the majority view applicable to companies and other institutions, the court rejected work product protection for the investigation — noting that the agency's "policy and procedure manual indicates that an attorney would oversee an investigation involving any situation similar to [the child's] death, regardless of whether litigation was imminent." Id. At *5-6. Two days later, in Gillespie v. Charter Communications, the court similarly rejected defendant's privilege and work product claim for a racial discrimination "Incident Investigation Report." Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015). In denying the work product claim, the court concluded that Charter "generated [the incident report] in the ordinary course of [its] business" — describing Charter's "ongoing compliance program" as involving a "reporting system, and the process of investigating claims made within this system." Id. At *13.

How can companies successfully claim privilege and work product protection if they establish laudable processes to conduct internal investigations as part of their ordinary course of business? Several days after these decisions, another court provided some guidance. Next week's Privilege Point will discuss that case.

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

key case


Chapter: 43.302
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: 43.302
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: 43.302
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: 43.302
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: 43.302
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: 43.302
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: 43.302
Case Name: Devlyne v. Lassen Mun. Util. Dist., Civ. No. S-10-0286 MCE GGH, 2011 U.S. Dist. 119173, at *11 (E.D. Cal. Oct. 14, 2011)
(allowing an employment plaintiff to depose defendant's former general counsel about an investigation conducted by a third party investigator; indicating that plaintiff could explore the purpose of the investigation; "[T]he nature of the investigation is critical. That is, if the investigation is undertaken prior to litigation because it is compelled by company practice, policy, or otherwise by law, the investigation at best has a dual purpose precluding in most instances the assertion of work product immunity.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2011-10-14 Federal CA

Chapter: 43.302
Case Name: Freeman & Gersten, LLP v. Bank of Am., N.A., Civ. A. No. 09-5351 (SRC) (MAS), 2010 U.S. Dist. LEXIS 130167, at *15-16 (D.N.J. Dec. 8, 2010)
(denying privilege and work product protection for most documents created during a bank's internal investigation into a fraudulent check incident; "Additionally, the attorney-client privilege and the work product doctrine do not apply to documents produced in the course of an internal investigation. . . . These documents are generally created not in anticipation of litigation, but instead in order to comply with internal investigative procedures and policies. . . . Therefore, documents such as these are producible, unless a party can further demonstrate that the documents were also created in anticipation of a subsequent litigation.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-12-08 Federal NJ

Chapter: 43.302
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; "PS Form 1700 indicates that the information collected 'will be used to record and resolve the circumstances relating to the accident and to evaluate your driving skills,' and notes that, '[a]s a routine use, this information may be disclosed . . . where pertinent, in a legal proceeding to which the Postal Service is a party.'") (emphasis added)

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

Chapter: 43.302
Case Name: Diggs v. Novant Health, 628 S.E. 2d 851, 865 (N.C. Ct. App. 2006)
(remanding for a determination of whether a hospital prepared an accident report pursuant to its standard procedures, or whether the investigation documents were prepared for some other reason; "In this case, plaintiff has submitted FHM's policy 'for the reporting of all unexpected events.'. . . documents generated pursuant to that policy would not be entitled to protection under Rule 26(b)(3). We are, however, unable to determine from the current record whether the documents at issue were generated pursuant to that policy. While none of the documents are entitled 'Quality Assessment Report,' as specified in the policy, certain documents appear to correspond to the reports and summaries required by the hospital's policy, including documents numbered 61-68 and 70-81."; "We must therefore remand to the trial court for further review as to these documents. . . . On remand, defendants bear the burden of demonstrating that the specified documents were not prepared pursuant to the hospital policy or were not otherwise documents 'prepared in the ordinary course of business.'") (emphases added)

Case Date Jurisdiction State Cite Checked
2006-01-01 State NC

Chapter: 43.302
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: 43.303
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: 43.303
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: 43.303
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: 43.303
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: 43.303
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: 43.303
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: 43.303
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: 43.303
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: 43.303
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *8-9, *9-10 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (3), explaining as follows: "According to Defendants, the documents prepared in conjunction with the 2005-2006 internal investigation, including Halter's work plans, interview reports, and December 2005 report, were created in anticipation of litigation or government investigations that could result if FCPA [Foreign Corrupt Practices Act] violations had occurred. Defendants argue in general terms that the internal investigation was initiated in direct response to allegations of illegal conduct, which created the prospect of litigation. However, the fact that the subject matter of these documents could conceivably be litigated at some point is not determinative. . . . Defendants have not offered the Court any evidence in the form of an affidavit or declaration setting forth the basis for the claim that the documents are protected by the work product doctrine. Defendants have the burden of proving the applicability of the work product doctrine to the documents prepared in conjunction with the internal investigation, and all that Defendants have offered as evidence are general, conclusory assertions by counsel that litigation was anticipated. If this was sufficient, it would render the burden to establish the protection meaningless."; "The facts before the Court seem to suggest that the investigation was not commenced and the report was not prepared because of any prospect of litigation but instead to gather factual information regarding an alleged bribery scheme orchestrated by Wal-Mart de Mexico. Halter testified that his reports simply recounted facts; and he was not given any special direction as to how to conduct the interviews; that he reported the facts he gathered; that he conducted no legal analysis; and that he did not send his reports to counsel. Thus, the Court finds that the factual materials regarding the 2005-2006 internal investigation that Halter drafted and provided to his superior, Joseph Lewis, including investigative reports, action plan, interview reports, and other factual compilations, are not protected by the work product doctrine. Thus, Wal-Mart shall produce these documents to PGERS [plaintiff]." (emphases added))

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

key case


Chapter: 43.303
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *7-8 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (2), explaining as follows: "Halter collected facts and conducted interviews pursuant to his duties as an investigator and communicated his findings to his direct superior, Joseph Lewis. Neither Halter nor Lewis is an attorney, and there is no indication that either Halter or Lewis communicated Halter's findings to an attorney. Halter testified that he conducted the investigation without any specific direction. There are no facts in the record to suggest that the purpose of Halter's investigation was to gather facts so that Defendants could obtain legal advice or that Defendants represented to Halter or Lewis that the investigation was commenced for the purpose of obtaining legal advice. The Court is not convinced that a communication from one non-attorney gathering facts, without any specific direction, to another non-attorney, without any indication of a purpose of obtaining legal advice, is a privileged communication. Accordingly, Halter's communications regarding the 2005 and 2006 internal investigation are not protected by the attorney-client privilege, and PGERS [plaintiff] is entitled to fully examine Halter regarding the facts he learned and reported to Lewis." (emphasis added))

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

key case


Chapter: 43.303
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: 43.303
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: 43.303
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; "At the time she made her notes, Baiocchi was the director of human resources at Herzing, and, although she also happened to be a lawyer, she was acting in her capacity as the human resources director when conducting the investigation in accordance with Herzing's employee policy. Considering this, and in light of the Court's analysis above, the Court finds that the attorney-client privilege does not apply to Baiocchi's redacted notes from her May 10, 2013, interviews.")

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

Chapter: 43.303
Case Name: Gillespie v. Charter Communications, Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015)
November 18, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part I"

Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both contexts, companies must do something different or special — not in the ordinary course of their business. Careful companies sometimes fail both standards, because they ordinarily investigate suspicious events, serious accidents, etc.

In Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015), the Kansas Department for Children and Families investigated a minor’s death. The court found unpersuasive an agency lawyer's affidavit that the investigation was "'done in anticipation of litigation and under my direction.'" Id. At *5 (internal citation omitted). Relying on the majority view applicable to companies and other institutions, the court rejected work product protection for the investigation — noting that the agency's "policy and procedure manual indicates that an attorney would oversee an investigation involving any situation similar to [the child's] death, regardless of whether litigation was imminent." Id. At *5-6. Two days later, in Gillespie v. Charter Communications, the court similarly rejected defendant's privilege and work product claim for a racial discrimination "Incident Investigation Report." Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015). In denying the work product claim, the court concluded that Charter "generated [the incident report] in the ordinary course of [its] business" — describing Charter's "ongoing compliance program" as involving a "reporting system, and the process of investigating claims made within this system." Id. At *13.

How can companies successfully claim privilege and work product protection if they establish laudable processes to conduct internal investigations as part of their ordinary course of business? Several days after these decisions, another court provided some guidance. Next week's Privilege Point will discuss that case.

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

key case


Chapter: 43.303
Case Name: Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015)
November 18, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part I"

Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both contexts, companies must do something different or special — not in the ordinary course of their business. Careful companies sometimes fail both standards, because they ordinarily investigate suspicious events, serious accidents, etc.

In Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015), the Kansas Department for Children and Families investigated a minor’s death. The court found unpersuasive an agency lawyer's affidavit that the investigation was "'done in anticipation of litigation and under my direction.'" Id. At *5 (internal citation omitted). Relying on the majority view applicable to companies and other institutions, the court rejected work product protection for the investigation — noting that the agency's "policy and procedure manual indicates that an attorney would oversee an investigation involving any situation similar to [the child's] death, regardless of whether litigation was imminent." Id. At *5-6. Two days later, in Gillespie v. Charter Communications, the court similarly rejected defendant's privilege and work product claim for a racial discrimination "Incident Investigation Report." Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015). In denying the work product claim, the court concluded that Charter "generated [the incident report] in the ordinary course of [its] business" — describing Charter's "ongoing compliance program" as involving a "reporting system, and the process of investigating claims made within this system." Id. At *13.

How can companies successfully claim privilege and work product protection if they establish laudable processes to conduct internal investigations as part of their ordinary course of business? Several days after these decisions, another court provided some guidance. Next week's Privilege Point will discuss that case.

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

key case


Chapter: 43.303
Case Name: Fine v. ESPN, Inc., No. 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
July 22, 2015 (PRIVILEGE POINT)

"Courts Assess Whether Client and Lawyer Agents are Inside or Outside Privilege Protection: Part II"

Last week's Privilege Point discussed a court's consideration of privilege protection for communications with client and lawyer agents. Two weeks later, another court analyzed Debevoise & Plimpton's argument that the privilege protected its communications with a public relations firm it retained. Debevoise claimed that the public relations firm assisted it in representing its client nonparty Syracuse University in connection with a former coach's wife's defamation action against ESPN. Fine v. ESPN, Inc., No. 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015).

The University relied on affidavits (including one from a Debevoise lawyer) in explaining that the public relations firm (1) "aided [Debevoise] attorneys in providing legal advice to the University on issues of communication and publicity"; (2) "'conferred frequently' with Debevoise"; and (3) "'prepar[ed] drafts of press releases and other materials which incorporated the lawyers' advice.'" Id. At *28-29 (internal citations and quotation marks omitted). The court rejected the privilege claim — noting that "[i]f public relations support is merely helpful, but not necessary to the provision of legal advice," the privilege does not apply. Id. At *32. The court also noted that the magistrate judge had reviewed the withheld communications in camera, and found that most of them "did not contain communications related to obtaining legal advice." Id. At *31. The court therefore held that Debevoise had lost the client's privilege by communicating with the public relations firm — even though Debevoise had retained the firm and supplied an affidavit supporting the privilege claim. The court also observed that the magistrate judge had earlier rejected the University's work product claim — finding that the University had conducted "for business purposes" its investigation into child molestation claims against the coach. Id. At *5.

Even sophisticated clients and law firms can underestimate the privilege's narrowness and fragility. If lawyers find it necessary to work with agents, their communications should reflect why and how.

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

key case


Chapter: 43.303
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015)
April 8, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part I”

Some companies begin internal investigations or audits for business reasons, but later try to cloak related communications and documents with work product privilege protection. Although some companies successfully argue that a business-related investigation "morphed" into a privilege-protected investigation, most attempts fail.

In United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015), NeuroScience retained a regulatory compliance company (CodeMap) to conduct a "full, flat-fee compliance audit" of its billing practices after its billing manager suddenly resigned. About a month later, CodeMap reported that NeuroScience had overbilled Medicare and some insurance companies. In the meantime, NeuroScience's outside Minneapolis law firm learned that the ex-billing manager had accused the company of fraudulent billing practices. About ten days later, NeuroScience and its law firm agreed that the law firm "should supervise the remainder of CodeMap's audit activities." Id. at *7. CodeMap sent a Services Proposal indicating that the law firm would now direct CodeMap's "baseline" compliance audit, and stating that related communications would deserve privilege and work product protection. Id. However, CodeMap later admitted that (1) "counsel really did not provide much internal 'direction' to CodeMap at all" (id. at *8); (2) lawyers were not present when CodeMap auditors met with NeuroScience employees; and (3) lawyers generally did not receive copies of email message traffic between CodeMap and company employees during the audit. CodeMap's chief auditor later acknowledged that "'[b]y the time Counsel was involved, CodeMap already knew the work to be done and how to do it, so the legal oversight, as [he] understood it, was to maintain privilege.'" Id. at *9-10 (internal citation omitted).

Next week's Privilege Point will describe the court's work product and attorney-client privilege analysis.

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

key case


Chapter: 43.303
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015)
April 15, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part II”

Last week's Privilege Point described an outside regulatory compliance consultant's work for a company which worried about its non-compliant billing practices and about possible litigation, that consultant's later agreement to work under outside lawyers' "direction," and the admitted lack of any such day-to-day direction. United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015).

The court first rejected NeuroScience's work product claim. The court held that the company hired the compliance auditor CodeMap for business purposes, and that lawyers' later involvement "was a tactic designed solely to cloak the audit documents" with some protection. Id. at *17. The court concluded that the outside lawyers "in fact provided no direction at all," and found no evidence 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." Id. at *18. Although outside lawyers used the audit's result, the court explained that "the focus is on the circumstances of the communication at the time it was made." Id. The court also rejected NeuroScience's privilege claim. The court noted that the company hired CodeMap "without any direction from counsel," and that CodeMap "conducted and completed [its] coding review and transmitted the results" to NeuroScience before any lawyer's involvement. Id. at *24. And after the lawyers' "post-hoc retention of CodeMap," there was no evidence that "the focus of CodeMap's audits changed." Id. at *25. The court therefore concluded that "there is no question that [the outside law firm's] retention of CodeMap was a subterfuge specifically designed to cloak the audits with privilege." Id. at *26.

This and other similar cases highlight the wisdom of involving lawyers at the first hint of a problem, and assuring their intense hands-on involvement in any consultants' work the company intends to withhold as privileged or as work product.

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

key case


Chapter: 43.303
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: 43.303
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: 43.303
Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *6, *7-8, *9, *10-11 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding the work product doctrine inapplicable; "Chamberlain has not shown that the documents it created or gathered as part of the investigation for Telamon and its lawyers are work product. Chamberlain cannot even identify any particular litigation, the prospect of which was a motivating reason for its hiring or its work. Chamberlain does not contend that its hiring or the conduct of its investigation was because of likely insurance coverage litigation. Instead, it points to the FBI's involvement and to J.B.'s filing of a charge of discrimination with the EEOC as satisfying the 'anticipation of litigation' element. But neither of these circumstances tends to show that Barnes & Thornburg or Telamon hired Chamberlain, or that Chamberlain conducted its investigation, because 'some articulable claim, likely to lead to litigation,' had arisen." (citation omitted); "Chamberlain does not counter the fact that it was the results of its investigation that led Chamberlain and the lawyers to reach out to the FBI; Chamberlain's hiring and its work were not primarily for the purpose of assisting the FBI in gathering evidence for potential criminal proceedings. . . . [A]ny contemplated criminal proceedings involved J.B. and perhaps other rogue employees as the suspects and potential defendants, with Telamon always as victim. The anticipated litigation for which an entity or its representative may create documents protectable as work product must be litigation to which one expects to be a party, and there is no indication that anyone feared Telamon might be targeted as a potential defendant in any criminal proceeding."; "The fact that Barnes & Thornburg -- rather than Telamon itself -- hired Chamberlain does not tip the scale to satisfy the anticipation of litigation requirement."; "Chamberlain has not met its burden to show that it was hired, or that it conducted its work, because of any particular matter that Telamon or its lawyers thought likely to lead to litigation involving Telamon. Instead, the evidence demonstrates that Chamberlain was hired, and prepared and gathered the documents in its investigative file, because Telamon had a strong business need to determine how hundreds of thousands of dollars of inventory went missing and which of its employees was responsible, wholly apart from the prospect of any litigation.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 43.303
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

Chapter: 43.303
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; "PS Form 1700 indicates that the information collected 'will be used to record and resolve the circumstances relating to the accident and to evaluate your driving skills,' and notes that, '[a]s a routine use, this information may be disclosed . . . where pertinent, in a legal proceeding to which the Postal Service is a party.'") (emphasis added)

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

Chapter: 43.303
Case Name: Pinstripe v. Manpower, Inc., Case No. 07-CV-620-GKF-PJC, 2009 U.S. Dist. LEXIS 66430, at *21, *24-25 (N.D. Okla. July 28, 2009)
(holding that the work product doctrine did not protect documents created during an investigation by defendant IBM's Ombudsman into IBM's termination of a relationship with another company; among other things, noting that the interviewer did not mention possible litigation to witnesses, and did not assess the witnesses' credibility; "In this instance, IBM's investigation began with a call to the Ombudsman seeking to resolve a business dispute. The Ombudsman's work is part of IBM's routine business practice and is not undertake to prepare for anticipated litigation."; "Here, the record evidence shows that the documents in question were created in the ordinary course of business and for independent business reasons -- a routine Ombudsman investigation prompted by API's March 2005 complaint. This investigation would have occurred – and at least some of the Ombudsman documents would have been created -- even had there been no perceived threat of litigation on IBM's part. Thus, I conclude that IBM has failed to show that the primary motivation for creating the Ombudsman documents was preparation for litigation. This conclusion is consistent with indicia of primary motivation. . . . "[C]ourts may be persuaded that documents are work-product where witnesses are advised up front that their interviews are being conducted for an attorney because litigation is possible, or if summaries of witness interviews offer opinions on the witness's credibility. . . . There is no evidence the API or IBM witnesses were told of possible litigation. Furthermore, the witness summaries I have reviewed in camera offer no opinions of witnesses' credibility. Based on all of the foregoing, I conclude that the Ombudsman documents were not prepared primarily in anticipation of litigation and are, therefore, not work-product protected.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-07-28 Federal OK

Chapter: 43.303
Case Name: EEOC v. City of Madison, No. 07-C-349-S, 2007 U.S. Dist. LEXIS 70647, at *7 (W.D. Wis. Sept. 20, 2007)
(rejecting the work product protection for documents defendant City created during an investigation into the workplace environment before and after a wrongdoer left employment; "[T]he letter provided to Mayor Cieslewicz explained that it was an investigation of the workplace environment. The introduction to the report explains that '[a]lthough the alleged perpetrator of the inappropriate conduct was permanently out of the workplace, the Mayor said he wanted to ensure that the work environment at Overture in the wake of D'Angelo's departure was respectful and free of harassment.'. . . Also, it is noted that '[t]his investigation was not focused on the specific allegations of misconduct raised by Monica Everson. The investigation of those allegations ended when D'Angelo announced his retirement and immediate departure from the workplace.'. . . These statements do not support that the investigation was performed because of the prospect of litigation, i.e., for the specific allegations raised by Monica Everson, but instead was done for ordinary business purposes, i.e., to ensure the current work environment was respectful and free of harassment."; "Moreover, the City Attorney's office did not itself perform or control the investigation but merely was a source of advice during the investigation and such a role weighs against the investigation being performed because of the prospect of litigation. Attorneys are almost always consulted on a business' in house investigations and, in fact, it is at the core of an attorney's job to generally advise clients about conducting such investigations. If such involvement by an attorney placed an in house investigation under the work-product doctrine then every private employer's in house investigation would fall outside the scope of the EEOC's broad investigatory power.") (emphases added)

Case Date Jurisdiction State Cite Checked
2007-09-20 Federal WI

Chapter: 43.303
Case Name: Trenary v. Busch Entm't Corp., Case No. 8:05-CV-1630-T-30EAJ, 2006 U.S. Dist. LEXIS 70584, at *10 (M.D. Fla. Sept. 28, 2006)
(rejecting a work product assertion for documents created during defendant's routine investigation following a plaintiff's slip-and-fall accident, but noting that the company undertook two separate investigations; "[T]he fact that Defendant concedes that two reports were prepared regarding the incident – the report at issue which outlines medical aid given to Plaintiff, and a separate accident investigation report prepared by a Clarissa Allen – is strong evidence that EMT Day generated the instant report in the ordinary course of business.'") (emphasis added)

Case Date Jurisdiction State Cite Checked
2006-09-28 Federal FL

Chapter: 43.303
Case Name: Diggs v. Novant Health, 628 S.E. 2d 851, 865 (N.C. Ct. App. 2006)
(remanding for a determination of whether a hospital prepared an accident report pursuant to its standard procedures, or whether the investigation documents were prepared for some other reason; "In this case, plaintiff has submitted FHM's policy 'for the reporting of all unexpected events.'. . . documents generated pursuant to that policy would not be entitled to protection under Rule 26(b)(3). We are, however, unable to determine from the current record whether the documents at issue were generated pursuant to that policy. While none of the documents are entitled 'Quality Assessment Report,' as specified in the policy, certain documents appear to correspond to the reports and summaries required by the hospital's policy, including documents numbered 61-68 and 70-81."; "We must therefore remand to the trial court for further review as to these documents. . . . On remand, defendants bear the burden of demonstrating that the specified documents were not prepared pursuant to the hospital policy or were not otherwise documents 'prepared in the ordinary course of business.'") (emphases added)

Case Date Jurisdiction State Cite Checked
2006-01-01 State NC

Chapter: 43.303
Case Name: SR Int'l Bus. Ins. Co., 2002 U.S. Dist. LEXIS 11949, at *15
(holding that GMAC (which financed the World Trade Center lessee Silverstein's leases on the World Trade Center) could not claim work product for its investigation after the 9/11 attack on the World Trade Center; "[T]he decision to gather evidence to respond to the concerns of investors was simply good business advice, not a litigation strategy.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal

Chapter: 43.304
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Documents confirm that, beginning in early 2004, Bard and its legal counsel began receiving notices that the Recovery Filter was associated with adverse events, including several deaths."; "Ms. Passero [Defendant's in-house counsel] stated in an affidavit and during her testimony in Alexander [lawsuit against the defendant] that these events caused the Law Department to retain Dr. Lehmann as a consultant to conduct a broad risk assessment.")

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

key case


Chapter: 43.304
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: 43.304
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: 43.304
Case Name: In re OM Group Securities Litigation, Lead Dkt. No. 1:02CV2163, 2005 U.S. Dist. LEXIS 3967 (N.D. Ohio Feb. 28, 2005)
(finding that materials generated during an Audit Committee's internal investigation into possible inventory wrongdoing conduct by Weil Gotshal and the forensic accounting firm of Ten Eyck deserved privilege protection, but not work product protection; noting the confusion about Weil Gotshal's and Ten Eyck's client; noting among other things that Weil Gotshal's and Ten Eyck's presentation to the corporate board did not mention litigation, and the company released financial statement shortly thereafter; "On March 15, 2004, three months into the investigation, WGM and TEN Eyck gave a presentation to OMG's Board of Directors. There is no evidence that there was any discussion of litigation at the meeting. As a result of the meeting, on March 16, 2004, OMG announced that it anticipated restating its financial statements for 1999 through 2003. This indicates that the business purpose was a significant factor regardless of possible additional litigation. Accuracy of earnings and financial statements is clearly a business matter for all publicly-held corporations, regardless of whether litigation is pending or anticipated. Therefore, this Court concludes that the Audit Committee would have conducted the investigation and prepared the documents regardless of the possibility of additional litigation. The documents are not protected by the work-product doctrine. Thus, they should be produced unless they are subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2005-02-28 Federal OH
Comment:

Key Case


Chapter: 43.304
Case Name: SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291 (JSM), 2002 U.S. Dist. LEXIS 16091, at *5-6 (S.D.N.Y. Aug. 27, 2002)
(holding that Swiss Re (which provided insurance for the World Trade Center) could successfully claim work product protection for its investigation following the 9/11 attack on the World Trade Center; "While Swiss Re employees may at times have engaged in similar investigations and prepared similar account reviews in the ordinary course of the business of investigating and adjusting claims in the absence of a threat of litigation and without involvement of counsel, Mr. Fawcett has stated that the investigation undertaken in this situation was, in fact, at his direction, of a different character, and not in the ordinary course of business or pursuant to ordinary procedures. Furthermore, Mr. Fawcett's statement that he immediately anticipated litigation in this far-from-ordinary case is far from implausible. It is highly significant in this regard that he retained Simpson Thacher as litigation counsel on September 12.") (emphases added)

Case Date Jurisdiction State Cite Checked
2002-08-27 Federal NY

Chapter: 43.305
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: 43.305
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: 43.305
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

Chapter: 43.305
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: 43.305
Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *6, *7-8, *9, *10-11 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding the work product doctrine inapplicable; "Chamberlain has not shown that the documents it created or gathered as part of the investigation for Telamon and its lawyers are work product. Chamberlain cannot even identify any particular litigation, the prospect of which was a motivating reason for its hiring or its work. Chamberlain does not contend that its hiring or the conduct of its investigation was because of likely insurance coverage litigation. Instead, it points to the FBI's involvement and to J.B.'s filing of a charge of discrimination with the EEOC as satisfying the 'anticipation of litigation' element. But neither of these circumstances tends to show that Barnes & Thornburg or Telamon hired Chamberlain, or that Chamberlain conducted its investigation, because 'some articulable claim, likely to lead to litigation,' had arisen." (citation omitted); "Chamberlain does not counter the fact that it was the results of its investigation that led Chamberlain and the lawyers to reach out to the FBI; Chamberlain's hiring and its work were not primarily for the purpose of assisting the FBI in gathering evidence for potential criminal proceedings. . . . [A]ny contemplated criminal proceedings involved J.B. and perhaps other rogue employees as the suspects and potential defendants, with Telamon always as victim. The anticipated litigation for which an entity or its representative may create documents protectable as work product must be litigation to which one expects to be a party, and there is no indication that anyone feared Telamon might be targeted as a potential defendant in any criminal proceeding."; "The fact that Barnes & Thornburg -- rather than Telamon itself -- hired Chamberlain does not tip the scale to satisfy the anticipation of litigation requirement."; "Chamberlain has not met its burden to show that it was hired, or that it conducted its work, because of any particular matter that Telamon or its lawyers thought likely to lead to litigation involving Telamon. Instead, the evidence demonstrates that Chamberlain was hired, and prepared and gathered the documents in its investigative file, because Telamon had a strong business need to determine how hundreds of thousands of dollars of inventory went missing and which of its employees was responsible, wholly apart from the prospect of any litigation.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 43.305
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013)
January 15, 2014 (PRIVILEGE POINT)

"Rhode Island State Court Sorts Through Work Product Issues"

Some factual settings give courts the opportunity to carefully and logically apply work product principles. A Rhode Island court confronted such a situation in Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013).

An asbestos plaintiff's lawyer and the defendants' lawyers jointly toured the site where plaintiff's late husband had worked. All the lawyers came equipped with cameras, but the plaintiff's lawyer's camera stopped working – so he took pictures on his cell phone. Defendants refused to turn over their pictures and video footage. The court held as follows: (1) defendants' pictures and videos deserved fact work product protection; (2) defendants could not successfully claim that their pictures and videos deserved the higher opinion work product protection, although the defense lawyers specifically directed their photographer and videographer to record specific items – because plaintiff's lawyer "could have gleaned the same information by listening to the instructions given to the photographer and videographer"; (3) plaintiff could establish "substantial need" for pictures of the worksite, because the "depiction of [the] photos of the asbestos-containing items . . . Is key to one of the essential elements of Plaintiff's prima facie case"; (4) plaintiff could not obtain the "substantial equivalent" of the defense lawyers' pictures, because the cell phone picture's quality was "so poor that it is impossible to read some of the labels on the items photographed"; (5) plaintiff would face an "undue hardship" in attempting to obtain the "substantial equivalent" – because the property had been sold after the tour, and "many of the items the parties photographed are no longer there." Id. At *9, *11, *14, *13.

Courts describe the work product doctrine protection as "intensely practical," and decisions like this highlight that principle.

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI
Comment:

key case


Chapter: 43.305
Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *9-10 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "[I]n Fletcher v. Union Pacific R.R. Co., 194 F.R.D. 666, 671 (S.D. Ca. 2000), the court, quoting 6 James Wm. Moore et al., Moore's Federal Practice §26.70[5][c], at 26-221 to 26-222 (3d Ed. 1999), held that '[t]he substantial need prong examines: (1) whether the information is an essential element in the requesting party's case and (2) whether the party requesting discovery can obtain the facts from an alternate source,' and observed that 'a party's desire to find corroborating evidence is insufficient to establish substantial need.' Using this type of standard, courts have denied a request to produce information protected by the work product doctrine if the requesting party 'has not demonstrated that the information is integral to the preparation of its case.'" (citation omitted))

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

Chapter: 43.305
Case Name: Sherwin-Williams Co. v. Motley Rice LLC, Case No. CV 09 689237, 2013 Ohio Misc. LEXIS 7, at *6 (Ohio Jan. 31, 2013)
(holding that the lead paint plaintiffs' law firm of Motley Rice must produce documents for in camera review, in response to defendant Sherwin-William's discovery of how Motley Rice obtained copies of Sherwin-Williams trade secrets; "A showing of good cause under Civil Rule 26(B)(3) requires a demonstration of need for the materials; i.e., a showing that the materials, or the information they contain, are relevant and otherwise unavailable.")

Case Date Jurisdiction State Cite Checked
2013-01-31 State OH B 3/14

Chapter: 43.305
Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *5-6, *6 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved protection, because the consultant was working as the lawyer's agent; "Pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure, any materials Bernard [EEO consultant working under supervision of defendant's legal department] produced to document her communications with the Wells Fargo employees may be protected under the work product doctrine if the investigation was conducted in anticipation of litigation. . . . It is undisputed that Bernard commenced her internal investigation only in response to the EEOC charge.'; "Given Farzan's threat of litigation and his filing with the EEOC, Wells Fargo justifiably anticipated litigation at the time of Bernard's investigation.")

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

Chapter: 43.305
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

Chapter: 43.305
Case Name: Woodmen of the World Life Ins. Soc'y v. U.S. Bank Nat'l Ass'n, No. 8:09CV407, 2012 U.S. Dist. LEXIS 12462 (D. Neb. Feb. 2, 2012)
(rejecting privilege and work product assertions by defendant U.S. Bank for documents created during an investigation conducted by Goodwin Procter and Deloitte into U.S. Bank's possible misrepresentations related to mortgage-backed securities; among other things, finding unpersuasive a declaration filed by a bank subsidiary's general counsel Manzoni; "U.S Bank has failed to demonstrate a reasonable anticipation of litigation existed when FAF Advisors retained Goodwin Procter to conduct an independent investigation in early April 2008. The court finds Manzoni's December 22, 2011, declaration to the contrary self-serving in the fact of Woodmen's challenge to U.S. Bank's assertion of the work-product doctrine and not supported by the deposition testimony of Lui.") (emphases added)

Case Date Jurisdiction State Cite Checked
2012-02-02 Federal NE

Chapter: 43.305
Case Name: Pinstripe v. Manpower, Inc., Case No. 07-CV-620-GKF-PJC, 2009 U.S. Dist. LEXIS 66430, at *21, *24-25 (N.D. Okla. July 28, 2009)
(holding that the work product doctrine did not protect documents created during an investigation by defendant IBM's Ombudsman into IBM's termination of a relationship with another company; among other things, noting that the interviewer did not mention possible litigation to witnesses, and did not assess the witnesses' credibility; "In this instance, IBM's investigation began with a call to the Ombudsman seeking to resolve a business dispute. The Ombudsman's work is part of IBM's routine business practice and is not undertake to prepare for anticipated litigation."; "Here, the record evidence shows that the documents in question were created in the ordinary course of business and for independent business reasons -- a routine Ombudsman investigation prompted by API's March 2005 complaint. This investigation would have occurred – and at least some of the Ombudsman documents would have been created -- even had there been no perceived threat of litigation on IBM's part. Thus, I conclude that IBM has failed to show that the primary motivation for creating the Ombudsman documents was preparation for litigation. This conclusion is consistent with indicia of primary motivation. . . . "[C]ourts may be persuaded that documents are work-product where witnesses are advised up front that their interviews are being conducted for an attorney because litigation is possible, or if summaries of witness interviews offer opinions on the witness's credibility. . . . There is no evidence the API or IBM witnesses were told of possible litigation. Furthermore, the witness summaries I have reviewed in camera offer no opinions of witnesses' credibility. Based on all of the foregoing, I conclude that the Ombudsman documents were not prepared primarily in anticipation of litigation and are, therefore, not work-product protected.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-07-28 Federal OK

Chapter: 43.305
Case Name: McCann v. Miller, Civ. A. No. 08-561, 2009 U.S. Dist. LEXIS 63162, at *7 (E.D. Pa. July 6, 2009)
(finding that the work product doctrine protected a second investigation conducted by defendant Marriott into an alleged assault; "The matter was then referred to Marriott Claims Services, 'an in-house claims office which handles litigation-related general liability matters for Marriott and [] is staffed by administrators and representatives who handle litigation-related general liability matters for Marriott.'"; "The statements at issue here were obtained by a claims administrator after an initial investigation had already been completed. According to Marriott, a secondary investigation of this type is only undertaken in cases where litigation is likely.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2009-07-06 Federal PA
Comment:

key case


Chapter: 43.305
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: 43.305
Case Name: Drayton v. Pilgrim's Pride Corp., Civ. A. Nos. 03-2334, 03-3500, 04-3577, & 04-3974, 2005 U.S. Dist. LEXIS 18571, at *8 (E.D. Pa. Aug. 30, 2005)
(acknowledging that an investigation might "morph" from a normal safety check into a work product-protected investigation, but expressing skepticism; "Pilgrim's Pride cannot seriously contend that E & Y's endeavor was not already a work in progress when counsel sought to expand the consultant's role. Drawing the line between what is work product in anticipation of litigation and what is part of the continuing safety review may be difficult, but it is unnecessary at this time because plaintiff's have not demonstrated a substantial need for the materials."; ordering an in camera review) (emphasis added)

Case Date Jurisdiction State Cite Checked
2005-08-30 Federal PA

Chapter: 43.305
Case Name: Welland v. Trainer, No. 00 Civ. 0738 (JSM), 2001 U.S. Dist. LEXIS 15556, at *6 (S.D.N.Y. Sept. 28, 2001)
(denying work product protection for documents a company created during an investigation into its executive's possible unethical practices, but acknowledging that the work product doctrine applied to documents created during an investigation after he left the company; "The investigation of Plaintiff was initiated because of an anonymous letter alleging some impropriety on Plaintiff's part and not because Defendants were concerned about the prospect of litigation with Plaintiff. The investigator states that it was unusual to involve the corporation's attorneys in an investigation, but it is clear that the investigation of an employee accused of unethical practices would occur in the ordinary course of business to determine whether or not to terminate that employee. Although Plaintiff retained an attorney before he was terminated, the investigation continued because of the allegations against Plaintiff and not because there was an increased threat of litigation. Therefore, the investigation documents that were produced before November 23, 1999 are not protected by the work product privilege. However, the investigation focus changed once Plaintiff was terminated. At that point, the investigation continued because of the need to prepare for the likelihood of litigation. Thus, the documents produced on or after November 23, 1999, Documents 15-48, are protected by the work product privilege. There are several documents listed as undated in the privilege log. Since the burden is on Defendants to prove that a privilege exists, Defendants will have to clarify if those documents were prepared before or after Plaintiff's termination.") (emphases added)

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

key case


Chapter: 43.306
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: 43.306
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: 43.306
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 43.306
Case Name: Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
November 29, 2017 (PRIVILEGE POINT)

"S.D.N.Y. Magistrate Judge Francis Analyzes the Work Product Doctrine's 'Motivational' Element'"

Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether their clients sufficiently "anticipated" litigation when creating the withheld documents. But frequently the most important obstacle to claiming work product protection is (3) whether the anticipated litigation "motivated" the documents' creation (and thus whether the documents would not have existed in the same form but for that anticipated litigation).

In Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017), Southern District of New York Magistrate Judge Francis found that the Proskauer law firm's Title VII investigation report for its client deserved work product protection. He acknowledged that the firm's client had a written policy for investigating discrimination complaints. That conclusion normally would doom a work product claim - as evidence that the investigation report was not motivated by litigation, but rather compelled by internal requirements. But Judge Francis then noted that Proskauer's report was "unique in several ways": (1) the litigation had already begun; (2) the client "did not rely on its human resources personnel or even in-house counsel to conduct the investigation, but instead engaged outside counsel"; and (3) Proskauer's report "does not appear to be in a form consistent with routine investigations of discrimination complaints." Id. at *19.

Judge Francis's wise analysis provides a lesson for all corporations. To deserve work product protection, documents generally must be different from those prepared in the ordinary course of business, or compelled by external or internal requirements.

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 43.306
Case Name: Rogers v. Span Systems, Civ. A. No. 16-12165-DPW, 2017 U.S. Dist. LEXIS 68997 (D. Mass. May 5, 2017)
(ordering plaintiff to produce contemporary witness statements by a third party; "Assuming, without deciding, that the witness statements at issue here fall within the scope of the work product doctrine, this court finds that the defendant has established both a substantial need for statements at issue, and that it would not be possible to obtain their substantial equivalent without undue hardship. The statements were taken from witnesses near the time of the incident in question. 'Such statements are unique in that they provide a contemporaneous impression of the facts.'. . . Furthermore, the defendant has made an effort to speak with the witnesses independently, and has shown that the passage of time has made it 'practically impossible' to obtain the substantial equivalent of the statements at this point in the litigation. . . . Therefore, its motion to compel the production of the third-party witness statements of Messrs. Puopolo and DaSilva is allowed.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal MA

Chapter: 43.306
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: 43.306
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: 43.306
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Documents confirm that, beginning in early 2004, Bard and its legal counsel began receiving notices that the Recovery Filter was associated with adverse events, including several deaths."; "Ms. Passero [Defendant's in-house counsel] stated in an affidavit and during her testimony in Alexander [lawsuit against the defendant] that these events caused the Law Department to retain Dr. Lehmann as a consultant to conduct a broad risk assessment.")

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

key case


Chapter: 43.306
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: 43.306
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: 43.306
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

Chapter: 43.306
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

Chapter: 43.306
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"; "On the basis of the Legal Charter and Youngblood's Declaration describing its genesis and his handling of the RCA Team's work product upon the completion of its work, Chevron seeks to protect the RCA and all documentation related to its creation under both the attorney-client and work product privileges. Importantly, Chevron, through Youngblood, claims the following: 'Within Chevron, legally chartered root cause investigations are not routine. While root cause procedures are utilized by Chevron's Health, Environmental, and Safety (HES) group to analyze incidents and near miss events, often in conjunction with outside contractors, in order to identify improvements to procedures or equipment, HES incident reviews are separate and distinct from root cause analyses conducted at the request of the Law Department pursuant to a Legal Charter.'")

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

Chapter: 43.306
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: 43.306
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: 43.306
Case Name: Everbank v. Fifth Third Bank, Case No. 3:10-cv-1175-J-12TEM, 2012 U.S. Dist. LEXIS 63212, at *9 (M.D. Fla. May 4, 2012)
(acknowledging that database documents might include both unprotected and work product-protected documents, and that such documents might be revised and thereafter deserve work product protections; "While individual paper documents may be prepared solely in the normal course of business or solely in anticipation of litigation, the ongoing, dynamic nature of electronic databases creates the potential for hybrid documents. Hybrid documents may be created in the normal course of business initially, but through amendments, additions and changes becomes documents created in anticipation of litigation later, particularly if the documents are maintained in electronic format. A database containing both information entered in the normal course of business and information that was entered in the anticipation of litigation may be subject to limited work product privilege. Conceivable, the information entered at the direction of legal counsel would be subject to work product privilege if it would reveal the legal strategies or theory of the case upon which counsel intends to rely.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2012-05-04 Federal FL

Chapter: 43.306
Case Name: Zawadzki v. Cmty. Hosp. Ass'n, Civ. A. No. 09-cv-01682-LTB-MEH & -02450-CMA, 2010 U.S. Dist. LEXIS 91812, at *12 (D. Colo. Aug. 6, 2010)
(upholding a work product assertion for a hospital's internal corporate investigation; ". . . unlike an 'ordinary' investigation, the documents reflect that Mr. Hensen [lawyer for defendant hospital] appears to have been directly involved in the investigation for the purpose of preparing a defense for BCH. Therefore, the Court finds that BCH has demonstrated the investigation notes were prepared because of the prospect of, and in anticipation of, litigation.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-08-06 Federal CO

Chapter: 43.306
Case Name: Laney v. Schneider Nat'l Carriers, Inc., Case No. 09-CV-389-TCK-FHM, 2010 U.S. Dist. LEXIS 35892, at *2-3 (N.D. Okla. April 12, 2010)
(finding work product protection for defendant trucking company's post-accident investigation; noting that the company sometimes retained outside investigators, and sometimes did not; "In support of their argument that the investigation by Glow and Thompson is not protected as work product, Plaintiffs submitted the affidavit of a former employee of Defendants which states that Defendants routinely investigate all accidents involving Defendants' trucks. The affidavit addresses the initial report a driver makes to Defendants after an accident and the data entered into Defendants' records as a result of the driver's initial report. The affidavit, however, does not address the situation where outside investigators are hired, which is the situation in this case. Thus, while the affidavit may support discovery of Defendants' records concerning the driver's initial accident report, it does not support, or even address, discovery of information from outside investigators.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-04-12 Federal OK

Chapter: 43.306
Case Name: McCann v. Miller, Civ. A. No. 08-561, 2009 U.S. Dist. LEXIS 63162, at *7 (E.D. Pa. July 6, 2009)
(finding that the work product doctrine protected a second investigation conducted by defendant Marriott into an alleged assault; "The matter was then referred to Marriott Claims Services, 'an in-house claims office which handles litigation-related general liability matters for Marriott and [] is staffed by administrators and representatives who handle litigation-related general liability matters for Marriott.'"; "The statements at issue here were obtained by a claims administrator after an initial investigation had already been completed. According to Marriott, a secondary investigation of this type is only undertaken in cases where litigation is likely.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2009-07-06 Federal PA
Comment:

key case


Chapter: 43.306
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; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

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

key case


Chapter: 43.306
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: 43.306
Case Name: Drayton v. Pilgrim's Pride Corp., Civ. A. Nos. 03-2334, 03-3500, 04-3577, & 04-3974, 2005 U.S. Dist. LEXIS 18571, at *8 (E.D. Pa. Aug. 30, 2005)
(acknowledging that an investigation might "morph" from a normal safety check into a work product-protected investigation, but expressing skepticism; "Pilgrim's Pride cannot seriously contend that E & Y's endeavor was not already a work in progress when counsel sought to expand the consultant's role. Drawing the line between what is work product in anticipation of litigation and what is part of the continuing safety review may be difficult, but it is unnecessary at this time because plaintiff's have not demonstrated a substantial need for the materials."; ordering an in camera review) (emphasis added)

Case Date Jurisdiction State Cite Checked
2005-08-30 Federal PA

Chapter: 43.306
Case Name: SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291 (JSM), 2002 U.S. Dist. LEXIS 16091, at *5-6 (S.D.N.Y. Aug. 27, 2002)
(holding that Swiss Re (which provided insurance for the World Trade Center) could successfully claim work product protection for its investigation following the 9/11 attack on the World Trade Center; "While Swiss Re employees may at times have engaged in similar investigations and prepared similar account reviews in the ordinary course of the business of investigating and adjusting claims in the absence of a threat of litigation and without involvement of counsel, Mr. Fawcett has stated that the investigation undertaken in this situation was, in fact, at his direction, of a different character, and not in the ordinary course of business or pursuant to ordinary procedures. Furthermore, Mr. Fawcett's statement that he immediately anticipated litigation in this far-from-ordinary case is far from implausible. It is highly significant in this regard that he retained Simpson Thacher as litigation counsel on September 12.") (emphases added)

Case Date Jurisdiction State Cite Checked
2002-08-27 Federal NY

Chapter: 43.306
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: 43.306
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: 43.307
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: 43.307
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: 43.307
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

Chapter: 43.307
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: 43.307
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Documents confirm that, beginning in early 2004, Bard and its legal counsel began receiving notices that the Recovery Filter was associated with adverse events, including several deaths."; "Ms. Passero [Defendant's in-house counsel] stated in an affidavit and during her testimony in Alexander [lawsuit against the defendant] that these events caused the Law Department to retain Dr. Lehmann as a consultant to conduct a broad risk assessment.")

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

key case


Chapter: 43.307
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015)
April 15, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part II”

Last week's Privilege Point described an outside regulatory compliance consultant's work for a company which worried about its non-compliant billing practices and about possible litigation, that consultant's later agreement to work under outside lawyers' "direction," and the admitted lack of any such day-to-day direction. United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015).

The court first rejected NeuroScience's work product claim. The court held that the company hired the compliance auditor CodeMap for business purposes, and that lawyers' later involvement "was a tactic designed solely to cloak the audit documents" with some protection. Id. at *17. The court concluded that the outside lawyers "in fact provided no direction at all," and found no evidence 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." Id. at *18. Although outside lawyers used the audit's result, the court explained that "the focus is on the circumstances of the communication at the time it was made." Id. The court also rejected NeuroScience's privilege claim. The court noted that the company hired CodeMap "without any direction from counsel," and that CodeMap "conducted and completed [its] coding review and transmitted the results" to NeuroScience before any lawyer's involvement. Id. at *24. And after the lawyers' "post-hoc retention of CodeMap," there was no evidence that "the focus of CodeMap's audits changed." Id. at *25. The court therefore concluded that "there is no question that [the outside law firm's] retention of CodeMap was a subterfuge specifically designed to cloak the audits with privilege." Id. at *26.

This and other similar cases highlight the wisdom of involving lawyers at the first hint of a problem, and assuring their intense hands-on involvement in any consultants' work the company intends to withhold as privileged or as work product.

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

key case


Chapter: 43.307
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015)
April 8, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part I”

Some companies begin internal investigations or audits for business reasons, but later try to cloak related communications and documents with work product privilege protection. Although some companies successfully argue that a business-related investigation "morphed" into a privilege-protected investigation, most attempts fail.

In United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015), NeuroScience retained a regulatory compliance company (CodeMap) to conduct a "full, flat-fee compliance audit" of its billing practices after its billing manager suddenly resigned. About a month later, CodeMap reported that NeuroScience had overbilled Medicare and some insurance companies. In the meantime, NeuroScience's outside Minneapolis law firm learned that the ex-billing manager had accused the company of fraudulent billing practices. About ten days later, NeuroScience and its law firm agreed that the law firm "should supervise the remainder of CodeMap's audit activities." Id. at *7. CodeMap sent a Services Proposal indicating that the law firm would now direct CodeMap's "baseline" compliance audit, and stating that related communications would deserve privilege and work product protection. Id. However, CodeMap later admitted that (1) "counsel really did not provide much internal 'direction' to CodeMap at all" (id. at *8); (2) lawyers were not present when CodeMap auditors met with NeuroScience employees; and (3) lawyers generally did not receive copies of email message traffic between CodeMap and company employees during the audit. CodeMap's chief auditor later acknowledged that "'[b]y the time Counsel was involved, CodeMap already knew the work to be done and how to do it, so the legal oversight, as [he] understood it, was to maintain privilege.'" Id. at *9-10 (internal citation omitted).

Next week's Privilege Point will describe the court's work product and attorney-client privilege analysis.

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

key case


Chapter: 43.307
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

Chapter: 43.307
Case Name: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC (In re N.Y.C. Asbestos Litig.), 966 N.Y.S.2d 420, 424, 425 (N.Y. App. Div. 2013)
("The results of the published studies commissioned by GP are relevant, and it cannot be seriously disputed that plaintiffs have a substantial need for the underlying data in the preparation of their cases. . . . Here, GP commissioned the studies in anticipation of litigation and has admitted that '[a]t an appropriate time and after their publication is complete, GP plans to introduce the results of the studies in litigation.'"; "[P]rinciples of fairness, as well as the spirit of the CMO [Case Management Order], require more complete disclosure, and GP should not be allowed to use its experts' conclusions as a sword by seeding the scientific literature with GP-funded studies, while at the same time using the privilege as a shield by withholding the underlying raw data that might be prone to scrutiny by the opposing party and that may affect the veracity of its experts' conclusions")

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

Chapter: 43.307
Case Name: Louis Vuitton Malletier v. Texas Int'l P'ship, Civ. A. H-10-2821, 2012 U.S. Dist. LEXIS 67140, *11 (S.D. Tex. May 14, 2012)
(analyzing work product protection for documents created by plaintiff during its investigation of possible sales of counterfeit merchandise; finding that work product protection started at some point during the investigations; "Louis Vuitton has offered little evidence to aid the court in determining when its communications with its investigators changed from being communications prepared in the ordinary course of business to being communications that were motivated by potential litigation. Clearly, once the lawsuit was initiated on August 9, 2010, any communications with regard to investigations of the sale or distribution of counterfeit Louis Vuitton merchandise at the Center are work product related to the ongoing litigation."; "[A]ny communications with its investigators regarding the shops in the Center on or after May 15, 2009, were prepared in anticipation of litigation and are work product. However, Louis Vuitton has presented no evidence that it was communicating with its investigators in anticipation of litigation before May 15, 2009. Accordingly, it has not carried its burden of proof to show that the pre-May 15, 2009 communications were made in anticipation of litigation rather than in the normal course of business.") (emphases added)

Case Date Jurisdiction State Cite Checked
2012-05-14 Federal TX
Comment:

key case


Chapter: 43.307
Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 139 (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; "[T]he Government needs not only the facts contained in the Audit Report (at least some of which could arguably be obtained through other means), but the Government also needs to know the fact that the Audit Report's contents were known by Inchcape [affiliate of defendant] at the time. The Audit Report is both a factual document and an historical document -- a snapshot in time of not only 'what [the company] knew' but also 'when [they] knew it.'. . . It is this overlapping temporal element to the Government's request that leads the Court to conclude that the Government has a 'substantial need' to obtain the Audit Report.")

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

Chapter: 43.307
Case Name: Zawadzki v. Cmty. Hosp. Ass'n, Civ. A. No. 09-cv-01682-LTB-MEH & -02450-CMA, 2010 U.S. Dist. LEXIS 91812, at *12 (D. Colo. Aug. 6, 2010)
(upholding a work product assertion for a hospital's internal corporate investigation; ". . . unlike an 'ordinary' investigation, the documents reflect that Mr. Hensen [lawyer for defendant hospital] appears to have been directly involved in the investigation for the purpose of preparing a defense for BCH. Therefore, the Court finds that BCH has demonstrated the investigation notes were prepared because of the prospect of, and in anticipation of, litigation.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-08-06 Federal CO

Chapter: 43.307
Case Name: SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291 (JSM), 2002 U.S. Dist. LEXIS 16091, at *5-6 (S.D.N.Y. Aug. 27, 2002)
(holding that Swiss Re (which provided insurance for the World Trade Center) could successfully claim work product protection for its investigation following the 9/11 attack on the World Trade Center; "While Swiss Re employees may at times have engaged in similar investigations and prepared similar account reviews in the ordinary course of the business of investigating and adjusting claims in the absence of a threat of litigation and without involvement of counsel, Mr. Fawcett has stated that the investigation undertaken in this situation was, in fact, at his direction, of a different character, and not in the ordinary course of business or pursuant to ordinary procedures. Furthermore, Mr. Fawcett's statement that he immediately anticipated litigation in this far-from-ordinary case is far from implausible. It is highly significant in this regard that he retained Simpson Thacher as litigation counsel on September 12.") (emphases added)

Case Date Jurisdiction State Cite Checked
2002-08-27 Federal NY

Chapter: 43.307
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: 43.308
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: 43.308
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: 43.308
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: 43.308
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: 43.308
Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "PHL has not convinced the Court that they retained Bracewell & Guiliani primarily for the purpose of obtaining legal advice. Rather, the majority of the Report suggests improvements to PHL's business practices aimed at resolving what the first page of the Report refers to as the 'clear economic risk' presented by STOLI policies. Thus, to the extent that there is a presumption that communications between an attorney and client are in pursuit to legal advice, U.S. Bank has shown evidence rebutting that presumption. Accordingly, the Court will not find the Report as a whole protected by attorney-client privilege."; "For example, a November 7, 2007, email states that PHL retained 'an outside firm 'Bracewell and Giuliani' to review our current procedures and provide recommendations to us on how to improve the detection and prevention of life insurance sales intended to be investor owned. They have provided this type of service to others serious about ensuring the quality of business and bring to [PHL] expertise in this field.'. . . Another email referred to the firm's activities with PHL as 'consulting.' (Id., Ex. P) A presentation given at a risk management meeting stated, 'Bracewell and Guiliani recommendations -- majority implemented from business plan.' Finally, another presentation stated that PHL '[e]ngaged Bracewell & Guiliani law firm to assess and recommend STOLI prevention tactics.'. . .")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 43.308
Case Name: U.S. Bank National Ass'n v. PHL Variable Insurance Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016)
May 25, 2016 (PRIVILEGE POINT)

"Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine"

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other common client assumptions, this overly optimistic view is frequently wrong.

In U.S. Bank National Ass'n v. PHL Variable Insurance Co., defendant PHL withheld from production a 39-page report written by three lawyers from the law firm then known as Bracewell & Guiliani — supporting its privilege and work product claim with a declaration that it retained Bracewell & Guiliani "for the purpose of seeking legal consultation, advice and counsel." Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016). But the court rejected both claims. Among other things, the court pointed to non-protected emails, undoubtedly written by the defendant's business folks -- announcing that the company had hired Bracewell & Guiliani "'to review our current procedures,'" because that law firm had provided services to others "'serious about ensuring the quality of business.'" Id. At *6 (internal citations omitted). Other unprotected client documents described the law firm's activities as "'consulting,'" and mentioned the firm's recommendations about the company's "'business plan.'" Id. At *7 (internal citations omitted). The court also reviewed in camera the Bracewell & Guiliani report itself — noting that "the majority of the Report suggests improvements to PHL's business practices." Id. The court again pointed to its in camera review of the report in also rejecting PHL's work product claim — noting that the firm's report "was not 'mapping litigation strategy.'" Id. At *16 (citation omitted).

Corporations hiring law firms should remember that a court might review business executives' description of the law firm's role, and also read the law firm's communications.

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 43.308
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: 43.308
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: 43.308
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

Chapter: 43.308
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 that the court's conclusion that WilmerHale did not waive Household's work product protection by disclosing work product to the SEC under a confidentiality agreement; "Plaintiffs finally seek waiver of the privilege based on Household's production to the SEC of 'documents summarizing the Restructuring Report.'. . . Defendants also emphasize that Household expressly withheld any privileged materials pursuant to a privilege log and agreed to the SEC's request for access to the Restructuring Report only on condition that the SEC enter into a written confidentiality agreement. . . . That July 16, 2003 confidentiality agreement specifically stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'"; "[T]he circuit courts are split as to the viability and application to this theory. Some have found that selective waiver is always permissible; some have found that selective waiver is never permissible; and others have found that selective waiver is permissible when the government has signed a confidentiality agreement. The court finds this last approach most persuasive in this case."; "Household insisted on a confidentiality agreement to protect the information. The court agrees with those cases finding that selective waiver may be appropriate where the disclosing party took steps to preserve its privilege. The agreement in this case expressly stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'. . . Plaintiffs make such of the fact that the agreement also allows the SEC to disclose the confidential information 'to the extent that the Staff determines that disclosure is otherwise required by law or would be in furtherance of the Commission's discharge of its duties and responsibilities.'. . . Plaintiffs note that the Qwest Communications [In re Qwest Communs. Int'l, 450 F.3d 1179, 1181 (10th Cir. 2006)] court found that identical confidentiality language did not preclude waiver because it 'gave the [SEC and DOJ] broad discretion to use the Waiver Documents as they saw fit.' 450 F.3d at 1181, 1194. The language in the DOJ's confidentiality agreement, however, was much broader than the language at issue here. In addition, unlike in Qwest, there is no evidence that 'any restrictions on [the documents'] use were loose in practice.' Id. at 1194. Thus, the court finds the agreement sufficient for purposes of applying selective waiver of the WilmerHale documents in this case. Household has not waived the work-product privilege by its voluntary production to the SEC of otherwise privileged documents, and Plaintiffs' motion to compel is denied.")

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

key case


Chapter: 43.309
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: 43.309
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: 43.309
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: 43.309
Case Name: Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
November 29, 2017 (PRIVILEGE POINT)

"S.D.N.Y. Magistrate Judge Francis Analyzes the Work Product Doctrine's 'Motivational' Element'"

Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether their clients sufficiently "anticipated" litigation when creating the withheld documents. But frequently the most important obstacle to claiming work product protection is (3) whether the anticipated litigation "motivated" the documents' creation (and thus whether the documents would not have existed in the same form but for that anticipated litigation).

In Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017), Southern District of New York Magistrate Judge Francis found that the Proskauer law firm's Title VII investigation report for its client deserved work product protection. He acknowledged that the firm's client had a written policy for investigating discrimination complaints. That conclusion normally would doom a work product claim - as evidence that the investigation report was not motivated by litigation, but rather compelled by internal requirements. But Judge Francis then noted that Proskauer's report was "unique in several ways": (1) the litigation had already begun; (2) the client "did not rely on its human resources personnel or even in-house counsel to conduct the investigation, but instead engaged outside counsel"; and (3) Proskauer's report "does not appear to be in a form consistent with routine investigations of discrimination complaints." Id. at *19.

Judge Francis's wise analysis provides a lesson for all corporations. To deserve work product protection, documents generally must be different from those prepared in the ordinary course of business, or compelled by external or internal requirements.

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 43.309
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: 43.309
Case Name: U.S. Bank National Ass'n v. PHL Variable Insurance Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016)
May 25, 2016 (PRIVILEGE POINT)

"Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine"

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other common client assumptions, this overly optimistic view is frequently wrong.

In U.S. Bank National Ass'n v. PHL Variable Insurance Co., defendant PHL withheld from production a 39-page report written by three lawyers from the law firm then known as Bracewell & Guiliani — supporting its privilege and work product claim with a declaration that it retained Bracewell & Guiliani "for the purpose of seeking legal consultation, advice and counsel." Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016). But the court rejected both claims. Among other things, the court pointed to non-protected emails, undoubtedly written by the defendant's business folks -- announcing that the company had hired Bracewell & Guiliani "'to review our current procedures,'" because that law firm had provided services to others "'serious about ensuring the quality of business.'" Id. At *6 (internal citations omitted). Other unprotected client documents described the law firm's activities as "'consulting,'" and mentioned the firm's recommendations about the company's "'business plan.'" Id. At *7 (internal citations omitted). The court also reviewed in camera the Bracewell & Guiliani report itself — noting that "the majority of the Report suggests improvements to PHL's business practices." Id. The court again pointed to its in camera review of the report in also rejecting PHL's work product claim — noting that the firm's report "was not 'mapping litigation strategy.'" Id. At *16 (citation omitted).

Corporations hiring law firms should remember that a court might review business executives' description of the law firm's role, and also read the law firm's communications.

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 43.309
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: 43.309
Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *5-6, *6 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved protection, because the consultant was working as the lawyer's agent; "Pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure, any materials Bernard [EEO consultant working under supervision of defendant's legal department] produced to document her communications with the Wells Fargo employees may be protected under the work product doctrine if the investigation was conducted in anticipation of litigation. . . . It is undisputed that Bernard commenced her internal investigation only in response to the EEOC charge.'; "Given Farzan's threat of litigation and his filing with the EEOC, Wells Fargo justifiably anticipated litigation at the time of Bernard's investigation.")

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

Chapter: 43.309
Case Name: Laney v. Schneider Nat'l Carriers, Inc., Case No. 09-CV-389-TCK-FHM, 2010 U.S. Dist. LEXIS 35892, at *2-3 (N.D. Okla. April 12, 2010)
(finding work product protection for defendant trucking company's post-accident investigation; noting that the company sometimes retained outside investigators, and sometimes did not; "In support of their argument that the investigation by Glow and Thompson is not protected as work product, Plaintiffs submitted the affidavit of a former employee of Defendants which states that Defendants routinely investigate all accidents involving Defendants' trucks. The affidavit addresses the initial report a driver makes to Defendants after an accident and the data entered into Defendants' records as a result of the driver's initial report. The affidavit, however, does not address the situation where outside investigators are hired, which is the situation in this case. Thus, while the affidavit may support discovery of Defendants' records concerning the driver's initial accident report, it does not support, or even address, discovery of information from outside investigators.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-04-12 Federal OK

Chapter: 43.402
Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)
(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; analyzing an expert witness issue, and finding that a school board lawyer was not acting as an expert witness during the investigation, and the board did not deserve expert witness rule protections; "[T]he Board contends that the communications between the Board's attorney, Scott Bennett, and Courtney Bullard, its testifying expert, should be protected from disclosure because of the constraints imposed by Fed. R. Civ. P. 26(b)(4)(C). The Court disagrees. Attorney Bullard was not originally retained by the Board as an expert witness. Rather, she was retained to act as an attorney for the Board in anticipation of litigation. She was acting as counsel for the Board at the time she performed her investigation and prepared the Bullard Report. The documents identified in the Privilege Log were generated during the time that Attorney Bullard was acting as the Board's attorney, not after she had been designated as an expert witness. Defendant's belated designation of Attorney Bullard as an expert witness does not permit retroactive application of the disclosure protections of Fed. R. Civ. P. 26(b)(4)(C) to documents that were created while she was acting as the Board's attorney and prior to the time that she was designated as an expert witness. The Court will not impose such protections here."; "Attorney Courtney Bullard was not acting as an expert witness during her investigation and preparation of the Bullard Report. Further, it is the Court's understanding that she was not acting as an expert witness during the time period that the documents reflecting communications between her and Attorney Scott Bennett were generated. Her belated designation as an expert witness does not provide Fed. R. Civ. P. 26(b)(4)(C)'s protection retroactively to communications between Attorney Bullard and Attorney Bennett for the time period that both were acting as the Board's attorneys and before Attorney Bullard was designated as an expert witness.")

Case Date Jurisdiction State Cite Checked
2018-01-12 Federal TN
Comment:

key case


Chapter: 43.402
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: 43.402
Case Name: In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017)
January 24, 2018 (PRIVILEGE POINT)

"Putting Lawyers in Charge of Investigations Does Not Assure Privilege Protection"

Corporations' investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by anticipated litigation, and the company would not have created the investigation-related documents in the same form but for that anticipated litigation.

In In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017), Premera claimed privilege and work product protection for its data breach investigation. The court rejected both claims. Among many other things, the court assessed Premera's work product claim for documents created by its consultant Mandiant. Premera had hired Mandiant to review its claims data management system in October 2014. On January 29, 2015, Mandiant discovered malware on the system. Premera quickly hired an outside lawyer, and on February 21, 2015, "Premera and Mandiant entered into an amended statement of work that shifted supervision of Mandiant's [later] work to outside counsel." Id. at *22. Premera predictably argued that Mandiant's later work was protected, because Mandiant was then working "on behalf of an attorney." Id. at *23. But the court rebuffed the argument -- bluntly explaining that the "flaw in Premera's argument . . . is that . . . [Mandiant's] scope of work did not change [from the October 2014 agreement] after outside counsel was retained." Id. As the court noted, the "only thing that appears to have changed involving Mandiant was the identity of its direct supervisor." Id.

Companies seeking to maximize privilege and work product protection for internal corporate investigations should carefully document the primary motivations, showing that the corporation did something different or special because of its need for legal advice or because of anticipated litigation. The documentation of course should start with law firms' and consultants' retainer letters – but all documents created before, during, and after investigations should help evidence the necessary motivational elements under the privilege and (if appropriate) the work product doctrine.

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

key case


Chapter: 43.402
Case Name: Crabtree v. Experian Information Solutions, Inc., No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017)
January 10, 2018 (PRIVILEGE POINT)

"When Can the Privilege Protect Employee-to-Employee Communications?"

Because privilege logs generally list the authors and recipients of withheld communications, corporations' adversaries frequently cite such logs in challenging the corporations' privilege claims when a log shows that no lawyer sent or received a withheld document. Corporations normally win such disputes if they demonstrate that one employee who received legal advice relayed it to another employee who needed it. Occasionally corporations also successfully withhold employees' contemporaneous notes of a privileged communication.

But there is a third, albeit less frequent, scenario in which the privilege can protect intra-corporate communications not involving a lawyer. In Crabtree v. Experian Information Solutions, Inc., the court held that defendant corporation "appropriately designated as privileged the communications between its non-lawyer employees." No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017). The court noted that the "employees gathered information to assist counsel with rendering legal advice," and that "those facts were eventually channeled to counsel to aid in the provision of legal services." Id. at *5. In other words, company lawyers had essentially deputized such employees to gather facts the lawyers needed. Of course, wise in-house and outside lawyers memorialize such deputization.

Case Date Jurisdiction State Cite Checked
2017-10-20 Federal IL
Comment:

key case


Chapter: 43.402
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "The scant deposition testimony of Kleinfeld CEO Ronnie Rothstein provided by plaintiff also fails to demonstrate that defense counsel had a non-legal purpose in the aftermath of the April 29 incident. The only testimony tying defense counsel to an investigatory role is a portion of Rothstein's deposition where counsel asked, 'So Rosanne [Clerkin], Terry [sic] [Solomon] and Bert [Pogrebin] conducted an investigation?,' and Rothstein answered, 'Yes'. . . . The Court does not consider this testimony, without more, sufficient to establish that Littler's attorneys acted as investigators without a primarily legal purpose.")

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

key case


Chapter: 43.402
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: 43.402
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *7-8 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (2), explaining as follows: "Halter collected facts and conducted interviews pursuant to his duties as an investigator and communicated his findings to his direct superior, Joseph Lewis. Neither Halter nor Lewis is an attorney, and there is no indication that either Halter or Lewis communicated Halter's findings to an attorney. Halter testified that he conducted the investigation without any specific direction. There are no facts in the record to suggest that the purpose of Halter's investigation was to gather facts so that Defendants could obtain legal advice or that Defendants represented to Halter or Lewis that the investigation was commenced for the purpose of obtaining legal advice. The Court is not convinced that a communication from one non-attorney gathering facts, without any specific direction, to another non-attorney, without any indication of a purpose of obtaining legal advice, is a privileged communication. Accordingly, Halter's communications regarding the 2005 and 2006 internal investigation are not protected by the attorney-client privilege, and PGERS [plaintiff] is entitled to fully examine Halter regarding the facts he learned and reported to Lewis." (emphasis added))

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

key case


Chapter: 43.402
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *8-9, *9-10 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (3), explaining as follows: "According to Defendants, the documents prepared in conjunction with the 2005-2006 internal investigation, including Halter's work plans, interview reports, and December 2005 report, were created in anticipation of litigation or government investigations that could result if FCPA [Foreign Corrupt Practices Act] violations had occurred. Defendants argue in general terms that the internal investigation was initiated in direct response to allegations of illegal conduct, which created the prospect of litigation. However, the fact that the subject matter of these documents could conceivably be litigated at some point is not determinative. . . . Defendants have not offered the Court any evidence in the form of an affidavit or declaration setting forth the basis for the claim that the documents are protected by the work product doctrine. Defendants have the burden of proving the applicability of the work product doctrine to the documents prepared in conjunction with the internal investigation, and all that Defendants have offered as evidence are general, conclusory assertions by counsel that litigation was anticipated. If this was sufficient, it would render the burden to establish the protection meaningless."; "The facts before the Court seem to suggest that the investigation was not commenced and the report was not prepared because of any prospect of litigation but instead to gather factual information regarding an alleged bribery scheme orchestrated by Wal-Mart de Mexico. Halter testified that his reports simply recounted facts; and he was not given any special direction as to how to conduct the interviews; that he reported the facts he gathered; that he conducted no legal analysis; and that he did not send his reports to counsel. Thus, the Court finds that the factual materials regarding the 2005-2006 internal investigation that Halter drafted and provided to his superior, Joseph Lewis, including investigative reports, action plan, interview reports, and other factual compilations, are not protected by the work product doctrine. Thus, Wal-Mart shall produce these documents to PGERS [plaintiff]." (emphases added))

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

key case


Chapter: 43.402
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: 43.402
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; "[P]laintiff seeks notes of conversations with individuals who were deposed (and whose depositions are already in plaintiff's possession); notes of conversations with individuals who could have been deposed by plaintiff; and notes from conversations in which the witness are not identified. . . . '[M]emoranda based on oral statements of witnesses . . . would reveal the attorney's mental processes[, and] . . . [i]t is clear that this is the sort of material the draftsmen of [Rule 26(b)] had in mind as deserving special protection.'. . . Accordingly, Attorney Altermatt's notes of witness interviews, which include his mental impressions and thought processes, are protected work-product, and as such, have been appropriately withheld by defendant.")

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

Chapter: 43.402
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: 43.402
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

Chapter: 43.402
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015)
April 8, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part I”

Some companies begin internal investigations or audits for business reasons, but later try to cloak related communications and documents with work product privilege protection. Although some companies successfully argue that a business-related investigation "morphed" into a privilege-protected investigation, most attempts fail.

In United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015), NeuroScience retained a regulatory compliance company (CodeMap) to conduct a "full, flat-fee compliance audit" of its billing practices after its billing manager suddenly resigned. About a month later, CodeMap reported that NeuroScience had overbilled Medicare and some insurance companies. In the meantime, NeuroScience's outside Minneapolis law firm learned that the ex-billing manager had accused the company of fraudulent billing practices. About ten days later, NeuroScience and its law firm agreed that the law firm "should supervise the remainder of CodeMap's audit activities." Id. at *7. CodeMap sent a Services Proposal indicating that the law firm would now direct CodeMap's "baseline" compliance audit, and stating that related communications would deserve privilege and work product protection. Id. However, CodeMap later admitted that (1) "counsel really did not provide much internal 'direction' to CodeMap at all" (id. at *8); (2) lawyers were not present when CodeMap auditors met with NeuroScience employees; and (3) lawyers generally did not receive copies of email message traffic between CodeMap and company employees during the audit. CodeMap's chief auditor later acknowledged that "'[b]y the time Counsel was involved, CodeMap already knew the work to be done and how to do it, so the legal oversight, as [he] understood it, was to maintain privilege.'" Id. at *9-10 (internal citation omitted).

Next week's Privilege Point will describe the court's work product and attorney-client privilege analysis.

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

key case


Chapter: 43.402
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015)
April 15, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part II”

Last week's Privilege Point described an outside regulatory compliance consultant's work for a company which worried about its non-compliant billing practices and about possible litigation, that consultant's later agreement to work under outside lawyers' "direction," and the admitted lack of any such day-to-day direction. United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015).

The court first rejected NeuroScience's work product claim. The court held that the company hired the compliance auditor CodeMap for business purposes, and that lawyers' later involvement "was a tactic designed solely to cloak the audit documents" with some protection. Id. at *17. The court concluded that the outside lawyers "in fact provided no direction at all," and found no evidence 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." Id. at *18. Although outside lawyers used the audit's result, the court explained that "the focus is on the circumstances of the communication at the time it was made." Id. The court also rejected NeuroScience's privilege claim. The court noted that the company hired CodeMap "without any direction from counsel," and that CodeMap "conducted and completed [its] coding review and transmitted the results" to NeuroScience before any lawyer's involvement. Id. at *24. And after the lawyers' "post-hoc retention of CodeMap," there was no evidence that "the focus of CodeMap's audits changed." Id. at *25. The court therefore concluded that "there is no question that [the outside law firm's] retention of CodeMap was a subterfuge specifically designed to cloak the audits with privilege." Id. at *26.

This and other similar cases highlight the wisdom of involving lawyers at the first hint of a problem, and assuring their intense hands-on involvement in any consultants' work the company intends to withhold as privileged or as work product.

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

key case


Chapter: 43.402
Case Name: Pate v. Winn-Dixie Stores, Inc., CV 213-166, 2014 U.S. Dist. LEXIS 151914 (S.D. Ga. Oct. 27, 2014)
(analyzing a work product protection for a slip-and-fall injury incident report; finding that the work product claim would be advanced if the defendant could prove that the incident reports were forwarded to counsel; "With that requirement in mind, the Court now examines Defendant's statement that '[a]fter [incident] reports are created, they are promptly provided to Winn-Dixie's corporate claims/risk management department, which in turn provides the report to defense counsel when litigation is imminent.'. . . This statement, if true, would support a showing that the incident report forms in this case were created for their potential use in future litigation."; "Thus, the Defendant has not produced any evidence, such as depositions or affidavits, showing that the incident report forms filled out by Winn-Dixie employees are created primarily so they can be used in potential litigation. While Defendant has stated that litigation was the motivating purpose for creating the forms in its Response to Plaintiff's Objections . . . This ipse dixit assertion alone will not satisfy Defendant's burden to show it is entitled to the protection of the work product doctrine.")

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

Chapter: 43.402
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: 43.402
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: 43.402
Case Name: Wultz v. Bank of China Limited, 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 25, 2013)
("BOC has also claimed work-product protection over post-January 28, 2008 documents pertaining to BOC's investigations into the allegations of plaintiffs' demand letter. I already held in the April 9 Order that neither the attorney-client privilege nor work-product protection apply to these documents because the record indicates that after BOC's Chief Compliance Officer 'received plaintiffs' demand letter, he called outside counsel, then set about performing the investigation within the Compliance Department -- without the involvement of any counsel, and not for the purpose of obtaining legal assistance.' Privilege does not apply to 'an internal corporate investigation . . . made by management itself.'")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal NY

Chapter: 43.402
Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *35 36 (S.D.N.Y. Oct. 24, 2013)
("BOC has also claimed work-product protection over post-January 28, 2008 documents pertaining to BOC's investigations into the allegations of plaintiffs' demand letter. I already held in the April 9 Order that neither the attorney-client privilege nor work-product protection apply to these documents because the record indicates that after BOC's Chief Compliance Officer 'received plaintiffs' demand letter, he called outside counsel, then set about performing the investigation within the Compliance Department -- without the involvement of any counsel, and not for the purpose of obtaining legal assistance.' Privilege does not apply to 'an internal corporate investigation . . . made by management itself.'" (citations omitted); largely confirmed in a November 19, 2013, opinion)

Case Date Jurisdiction State Cite Checked
2013-10-24 Federal NY B 5/14

Chapter: 43.402
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: 43.402
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: 43.402
Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 51181, at *51-52 (S.D.N.Y. Apr. 9, 2013)
(finding that neither the attorney-client privilege nor the work product doctrine protected an investigation by a company's compliance department into a terrorism bombing; "The evidence cited by both parties consists solely of an excerpt from the deposition of BOC's Chief Compliance Officer John Beauchemin as well as his declaration. These materials do not show that any attorneys were involved in the preparation of the Shurafa Files, nor that the Files contain attorney work-product or attorney-client communications. As plaintiffs suggest, the cited materials indicate that after Beauchemin received plaintiffs' demand letter, he called outside counsel, then set about performing the investigation within the Compliance Department -- without the involvement of any counsel, and not for the purpose of obtaining legal assistance." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-04-09 Federal NY B 3/14

Chapter: 43.402
Case Name: Louis Vuitton Malletier v. Texas Int'l P'ship, Civ. A. H-10-2821, 2012 U.S. Dist. LEXIS 67140, *11 (S.D. Tex. May 14, 2012)
(analyzing work product protection for documents created by plaintiff during its investigation of possible sales of counterfeit merchandise; finding that work product protection started at some point during the investigations; "Louis Vuitton has offered little evidence to aid the court in determining when its communications with its investigators changed from being communications prepared in the ordinary course of business to being communications that were motivated by potential litigation. Clearly, once the lawsuit was initiated on August 9, 2010, any communications with regard to investigations of the sale or distribution of counterfeit Louis Vuitton merchandise at the Center are work product related to the ongoing litigation."; "[A]ny communications with its investigators regarding the shops in the Center on or after May 15, 2009, were prepared in anticipation of litigation and are work product. However, Louis Vuitton has presented no evidence that it was communicating with its investigators in anticipation of litigation before May 15, 2009. Accordingly, it has not carried its burden of proof to show that the pre-May 15, 2009 communications were made in anticipation of litigation rather than in the normal course of business.") (emphases added)

Case Date Jurisdiction State Cite Checked
2012-05-14 Federal TX
Comment:

key case


Chapter: 43.402
Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 137, 138 (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; "[T]wo considerations heighten the respondent's burden to show that the Audit Report is entitled to work-product protection and therefore tip the balance against granting work-product protection to the Audit Report in this case. First, the document was created for multiple purposes."; "Second, the fact that the investigation in this case was conducted by a non-attorney who never communicated with outside counsel makes it all the more difficult for the respondent to claim that the resulting Audit Report was prepared in anticipation of litigation."; "Minimal attorney involvement in an internal investigation represents a distinct difficulty for corporations claiming work-product privilege because it 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
2012-01-01 Federal DC B 7/13

Chapter: 43.402
Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 137, 138 (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; "[T]wo considerations heighten the respondent's burden to show that the Audit Report is entitled to work-product protection and therefore tip the balance against granting work-product protection to the Audit Report in this case. First, the document was created for multiple purposes."; "Second, the fact that the investigation in this case was conducted by a non-attorney who never communicated with outside counsel makes it all the more difficult for the respondent to claim that the resulting Audit Report was prepared in anticipation of litigation."; "Minimal attorney involvement in an internal investigation represents a distinct difficulty for corporations claiming work-product privilege because it 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
2012-01-01 Federal DC B 7/13

Chapter: 43.402
Case Name: Pinstripe v. Manpower, Inc., Case No. 07-CV-620-GKF-PJC, 2009 U.S. Dist. LEXIS 66430, at *21, *24-25 (N.D. Okla. July 28, 2009)
(holding that the work product doctrine did not protect documents created during an investigation by defendant IBM's Ombudsman into IBM's termination of a relationship with another company; among other things, noting that the interviewer did not mention possible litigation to witnesses, and did not assess the witnesses' credibility; "In this instance, IBM's investigation began with a call to the Ombudsman seeking to resolve a business dispute. The Ombudsman's work is part of IBM's routine business practice and is not undertake to prepare for anticipated litigation."; "Here, the record evidence shows that the documents in question were created in the ordinary course of business and for independent business reasons -- a routine Ombudsman investigation prompted by API's March 2005 complaint. This investigation would have occurred – and at least some of the Ombudsman documents would have been created -- even had there been no perceived threat of litigation on IBM's part. Thus, I conclude that IBM has failed to show that the primary motivation for creating the Ombudsman documents was preparation for litigation. This conclusion is consistent with indicia of primary motivation. . . . "[C]ourts may be persuaded that documents are work-product where witnesses are advised up front that their interviews are being conducted for an attorney because litigation is possible, or if summaries of witness interviews offer opinions on the witness's credibility. . . . There is no evidence the API or IBM witnesses were told of possible litigation. Furthermore, the witness summaries I have reviewed in camera offer no opinions of witnesses' credibility. Based on all of the foregoing, I conclude that the Ombudsman documents were not prepared primarily in anticipation of litigation and are, therefore, not work-product protected.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-07-28 Federal OK

Chapter: 43.402
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; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

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

key case


Chapter: 43.402
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: 43.402
Case Name: EEOC v. City of Madison, No. 07-C-349-S, 2007 U.S. Dist. LEXIS 70647, at *7 (W.D. Wis. Sept. 20, 2007)
(rejecting the work product protection for documents defendant City created during an investigation into the workplace environment before and after a wrongdoer left employment; "[T]he letter provided to Mayor Cieslewicz explained that it was an investigation of the workplace environment. The introduction to the report explains that '[a]lthough the alleged perpetrator of the inappropriate conduct was permanently out of the workplace, the Mayor said he wanted to ensure that the work environment at Overture in the wake of D'Angelo's departure was respectful and free of harassment.'. . . Also, it is noted that '[t]his investigation was not focused on the specific allegations of misconduct raised by Monica Everson. The investigation of those allegations ended when D'Angelo announced his retirement and immediate departure from the workplace.'. . . These statements do not support that the investigation was performed because of the prospect of litigation, i.e., for the specific allegations raised by Monica Everson, but instead was done for ordinary business purposes, i.e., to ensure the current work environment was respectful and free of harassment."; "Moreover, the City Attorney's office did not itself perform or control the investigation but merely was a source of advice during the investigation and such a role weighs against the investigation being performed because of the prospect of litigation. Attorneys are almost always consulted on a business' in house investigations and, in fact, it is at the core of an attorney's job to generally advise clients about conducting such investigations. If such involvement by an attorney placed an in house investigation under the work-product doctrine then every private employer's in house investigation would fall outside the scope of the EEOC's broad investigatory power.") (emphases added)

Case Date Jurisdiction State Cite Checked
2007-09-20 Federal WI

Chapter: 43.402
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: 43.402
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: 43.403
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; "PS Form 1700 indicates that the information collected 'will be used to record and resolve the circumstances relating to the accident and to evaluate your driving skills,' and notes that, '[a]s a routine use, this information may be disclosed . . . where pertinent, in a legal proceeding to which the Postal Service is a party.'") (emphasis added)

Case Date Jurisdiction State Cite Checked
2099-11-02 Federal RI

Chapter: 43.403
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 Court has reviewed the transcript of Aziz's testimony and finds that in many instances, Plaintiffs' counsel improperly instructed Aziz not to answer certain questions on the grounds of attorney-client and work product privileges, as well as the common interest doctrine. Likewise, in some instances, the privilege assertion was far too broad. The relevant questions to which an instruction not to answer was given can be characterized as either (1) questions concerning the people at Amazon with whom Aziz communicated during the course of his 'test purchases' and the subject matter of those communications . . . or (2) questions concerning internal communications between Aziz and other Rubie's employees regarding his investigation.")

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

Key Case


Chapter: 43.403
Case Name: Nadeau v. Wealth Counsel LLC, No. 2:17-cv-00561-MCE-AC, 2018 U.S. Dist. LEXIS 100125 (E.D. Cal. June 14, 2018)
(holding that an employment discrimination investigation was not primarily motivated by legal concerns; "Even if the interview notes were prepared because of litigation, however, disclosure would be appropriate here because plaintiffs have made a persuasive showing of substantial need and inability to otherwise obtain the information. . . . The same is true of the other non-privileged documents identified in the privilege log, assuming arguendo that they satisfy the Rule 26(b)(3) definition of work product. Here the court incorporates by reference its previous discussion of relevance. In sum, Ryan's investigation lies at the heart of plaintiffs' case, which alleges retaliation for statements made during plaintiffs' interviews with Ryan. The factual centrality and probative value of the information easily meets the Upjohn substantial need standard."; "It is equally apparent that the information is not otherwise available to plaintiffs. While the individual plaintiffs were present at their own interviews, they have no other way of knowing what Ryan wrote down or otherwise documented about their statements, how that information was evaluated in light of the investigation as a whole, how it was conveyed to individuals responsible for subsequent adverse employment actions, and the extent to which it was discussed or considered."; "For these reasons, any protection otherwise available under Rule 26(b)(3) is overcome and the non-privileged documents responsive to RFP Nos. 2-7 must be produced.")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal CA

Chapter: 43.403
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "Plaintiff argues that the summaries are not protected by the work product doctrine (or attorney-client privilege) because Defendant never retained Ms. Maynes [Lawyer who acted as an investigator rather than a legal advisor] as an attorney, a fact that Defendant admitted in a related state court case. . . . Therefore, Plaintiff argues, '[n]othing more is required' to find in her favor on this dispute. . . . Plaintiff is mistaken. The work product doctrine explicitly applies to the party's 'attorney' or 'consultant,' among others. Though she was not retained as litigation counsel for HMS, Ms. Maynes was, at the very least, a hired investigator to whom the protections of the work product doctrine extend by the clear language of Rule 26(b)(3)(A).")

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

Chapter: 43.403
Case Name: Matter of Peerenboom v. Marvel Entertainment, LLC, 6232N, 162152/15, 2018 N.Y. App. Div. LEXIS 2364 (N.Y. Sup. Ct. April 5, 2018)
(holding that a litigation-related legal bill deserved work product protection; also holding that documents created by an investigation firm deserved work product protection; "Perlmutter also has demonstrated that certain documents concerning an investigation undertaken by Kroll Advisory Solutions are entitled to the qualified protection provided by CPLR 3101(d)(2) for materials prepared in anticipation of litigation. The record shows that Kroll was hired by Perlmutter's attorney to conduct an investigation in connection with the pending Florida action, which includes claims of defamation broadly implicating petitioner's reputation. Petitioner has not asserted that the investigation firm was retained for other purposes.")

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

Chapter: 43.403
Case Name: In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017)
January 24, 2018 (PRIVILEGE POINT)

"Putting Lawyers in Charge of Investigations Does Not Assure Privilege Protection"

Corporations' investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by anticipated litigation, and the company would not have created the investigation-related documents in the same form but for that anticipated litigation.

In In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017), Premera claimed privilege and work product protection for its data breach investigation. The court rejected both claims. Among many other things, the court assessed Premera's work product claim for documents created by its consultant Mandiant. Premera had hired Mandiant to review its claims data management system in October 2014. On January 29, 2015, Mandiant discovered malware on the system. Premera quickly hired an outside lawyer, and on February 21, 2015, "Premera and Mandiant entered into an amended statement of work that shifted supervision of Mandiant's [later] work to outside counsel." Id. at *22. Premera predictably argued that Mandiant's later work was protected, because Mandiant was then working "on behalf of an attorney." Id. at *23. But the court rebuffed the argument -- bluntly explaining that the "flaw in Premera's argument . . . is that . . . [Mandiant's] scope of work did not change [from the October 2014 agreement] after outside counsel was retained." Id. As the court noted, the "only thing that appears to have changed involving Mandiant was the identity of its direct supervisor." Id.

Companies seeking to maximize privilege and work product protection for internal corporate investigations should carefully document the primary motivations, showing that the corporation did something different or special because of its need for legal advice or because of anticipated litigation. The documentation of course should start with law firms' and consultants' retainer letters – but all documents created before, during, and after investigations should help evidence the necessary motivational elements under the privilege and (if appropriate) the work product doctrine.

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

key case


Chapter: 43.403
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: 43.403
Case Name: Pinstripe v. Manpower, Inc., Case No. 07-CV-620-GKF-PJC, 2009 U.S. Dist. LEXIS 66430, at *21, *24-25 (N.D. Okla. July 28, 2009)
(holding that the work product doctrine did not protect documents created during an investigation by defendant IBM's Ombudsman into IBM's termination of a relationship with another company; among other things, noting that the interviewer did not mention possible litigation to witnesses, and did not assess the witnesses' credibility; "In this instance, IBM's investigation began with a call to the Ombudsman seeking to resolve a business dispute. The Ombudsman's work is part of IBM's routine business practice and is not undertake to prepare for anticipated litigation."; "Here, the record evidence shows that the documents in question were created in the ordinary course of business and for independent business reasons -- a routine Ombudsman investigation prompted by API's March 2005 complaint. This investigation would have occurred – and at least some of the Ombudsman documents would have been created -- even had there been no perceived threat of litigation on IBM's part. Thus, I conclude that IBM has failed to show that the primary motivation for creating the Ombudsman documents was preparation for litigation. This conclusion is consistent with indicia of primary motivation. . . . "[C]ourts may be persuaded that documents are work-product where witnesses are advised up front that their interviews are being conducted for an attorney because litigation is possible, or if summaries of witness interviews offer opinions on the witness's credibility. . . . There is no evidence the API or IBM witnesses were told of possible litigation. Furthermore, the witness summaries I have reviewed in camera offer no opinions of witnesses' credibility. Based on all of the foregoing, I conclude that the Ombudsman documents were not prepared primarily in anticipation of litigation and are, therefore, not work-product protected.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-07-28 Federal OK

Chapter: 43.403
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: 43.403
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; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

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

key case


Chapter: 43.403
Case Name: In re OM Group Securities Litigation, Lead Dkt. No. 1:02CV2163, 2005 U.S. Dist. LEXIS 3967 (N.D. Ohio Feb. 28, 2005)
(finding that materials generated during an Audit Committee's internal investigation into possible inventory wrongdoing conduct by Weil Gotshal and the forensic accounting firm of Ten Eyck deserved privilege protection, but not work product protection; noting the confusion about Weil Gotshal's and Ten Eyck's client; noting among other things that Weil Gotshal's and Ten Eyck's presentation to the corporate board did not mention litigation, and the company released financial statement shortly thereafter; "On March 15, 2004, three months into the investigation, WGM and TEN Eyck gave a presentation to OMG's Board of Directors. There is no evidence that there was any discussion of litigation at the meeting. As a result of the meeting, on March 16, 2004, OMG announced that it anticipated restating its financial statements for 1999 through 2003. This indicates that the business purpose was a significant factor regardless of possible additional litigation. Accuracy of earnings and financial statements is clearly a business matter for all publicly-held corporations, regardless of whether litigation is pending or anticipated. Therefore, this Court concludes that the Audit Committee would have conducted the investigation and prepared the documents regardless of the possibility of additional litigation. The documents are not protected by the work-product doctrine. Thus, they should be produced unless they are subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2005-02-28 Federal OH
Comment:

Key Case


Chapter: 43.403
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: 43.404
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "The contents of the Maynes [Lawyer who acted as an investigator rather than a legal advisor] reports that Plaintiff seeks, i.e. the factual summaries of the information she learned in the course of her investigations, are fact work product. Defendant has established that the reports are documents prepared by a representative of Defendant in anticipation of litigation. Thus, the reports are discoverable only if (1) Plaintiff shows a substantial need for the materials and an inability to obtain their equivalent through other means absent undue hardship, or (2) Defendant waived the protection.")

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

Chapter: 43.404
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
("Thus, the status of the drafter (or the recipient) of the supposedly privileged document is not decisive on the question of whether the document is protected. It is for that reason that progress or status reports, investigation summaries, and general updates are generally not privileged merely because they were written by a lawyer to the client.")

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

key case


Chapter: 43.404
Case Name: Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
November 29, 2017 (PRIVILEGE POINT)

"S.D.N.Y. Magistrate Judge Francis Analyzes the Work Product Doctrine's 'Motivational' Element'"

Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether their clients sufficiently "anticipated" litigation when creating the withheld documents. But frequently the most important obstacle to claiming work product protection is (3) whether the anticipated litigation "motivated" the documents' creation (and thus whether the documents would not have existed in the same form but for that anticipated litigation).

In Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017), Southern District of New York Magistrate Judge Francis found that the Proskauer law firm's Title VII investigation report for its client deserved work product protection. He acknowledged that the firm's client had a written policy for investigating discrimination complaints. That conclusion normally would doom a work product claim - as evidence that the investigation report was not motivated by litigation, but rather compelled by internal requirements. But Judge Francis then noted that Proskauer's report was "unique in several ways": (1) the litigation had already begun; (2) the client "did not rely on its human resources personnel or even in-house counsel to conduct the investigation, but instead engaged outside counsel"; and (3) Proskauer's report "does not appear to be in a form consistent with routine investigations of discrimination complaints." Id. at *19.

Judge Francis's wise analysis provides a lesson for all corporations. To deserve work product protection, documents generally must be different from those prepared in the ordinary course of business, or compelled by external or internal requirements.

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 43.404
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *8-9, *9-10 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (3), explaining as follows: "According to Defendants, the documents prepared in conjunction with the 2005-2006 internal investigation, including Halter's work plans, interview reports, and December 2005 report, were created in anticipation of litigation or government investigations that could result if FCPA [Foreign Corrupt Practices Act] violations had occurred. Defendants argue in general terms that the internal investigation was initiated in direct response to allegations of illegal conduct, which created the prospect of litigation. However, the fact that the subject matter of these documents could conceivably be litigated at some point is not determinative. . . . Defendants have not offered the Court any evidence in the form of an affidavit or declaration setting forth the basis for the claim that the documents are protected by the work product doctrine. Defendants have the burden of proving the applicability of the work product doctrine to the documents prepared in conjunction with the internal investigation, and all that Defendants have offered as evidence are general, conclusory assertions by counsel that litigation was anticipated. If this was sufficient, it would render the burden to establish the protection meaningless."; "The facts before the Court seem to suggest that the investigation was not commenced and the report was not prepared because of any prospect of litigation but instead to gather factual information regarding an alleged bribery scheme orchestrated by Wal-Mart de Mexico. Halter testified that his reports simply recounted facts; and he was not given any special direction as to how to conduct the interviews; that he reported the facts he gathered; that he conducted no legal analysis; and that he did not send his reports to counsel. Thus, the Court finds that the factual materials regarding the 2005-2006 internal investigation that Halter drafted and provided to his superior, Joseph Lewis, including investigative reports, action plan, interview reports, and other factual compilations, are not protected by the work product doctrine. Thus, Wal-Mart shall produce these documents to PGERS [plaintiff]." (emphases added))

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

key case


Chapter: 43.404
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *7-8 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (2), explaining as follows: "Halter collected facts and conducted interviews pursuant to his duties as an investigator and communicated his findings to his direct superior, Joseph Lewis. Neither Halter nor Lewis is an attorney, and there is no indication that either Halter or Lewis communicated Halter's findings to an attorney. Halter testified that he conducted the investigation without any specific direction. There are no facts in the record to suggest that the purpose of Halter's investigation was to gather facts so that Defendants could obtain legal advice or that Defendants represented to Halter or Lewis that the investigation was commenced for the purpose of obtaining legal advice. The Court is not convinced that a communication from one non-attorney gathering facts, without any specific direction, to another non-attorney, without any indication of a purpose of obtaining legal advice, is a privileged communication. Accordingly, Halter's communications regarding the 2005 and 2006 internal investigation are not protected by the attorney-client privilege, and PGERS [plaintiff] is entitled to fully examine Halter regarding the facts he learned and reported to Lewis." (emphasis added))

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

key case


Chapter: 43.404
Case Name: Global Oil Tools, Inc. v. Barnhill, Civ. A. No. 12-1507 SECTION "J" (4), 2013 U.S. Dist. LEXIS 48226, at *14, *27 (E. D. La. Apr. 3, 2013)
(finding that neither the attorney-client privilege nor the work product doctrine protected a report prepared after a forensic accounting firm's investigation into the possible theft of tools; noting that the corporate secretary filed an declaration, but also noting that the court had found that the declaration "contained merely conclusory statements, which were insufficient for Global Oil to meet its burden to show that the work-product doctrine applied."; ultimately concluding that the report did not deserve privilege or work product protection; "The McGovern Report makes no reference to Bailey [lawyer], nor does it reference either the attorney-client privilege or work-product doctrine. In fact, it does not mention the possibility of civil litigation at all.")

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

Chapter: 43.404
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; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

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

key case


Chapter: 43.404
Case Name: Allied Irish Banks, P.L.C. v. Bank of America, N.A., 03-Civ. 3748 (DAB) (GWG), 2007 U.S. Dist. LEXIS 4247 (S.D.N.Y. Jan. 23, 2007)
(holding that neither the attorney-client privilege nor the work product doctrine protected materials created during an internal corporate investigation conducted by bank employees and Wachtell and PwC into possible wrongful foreign exchange trading; among other things, noting that the final investigation report did not mention litigation, and was used to make organizational and other business changes in the bank; "This conclusion is supported by the fact that the Report itself contains no suggestion that it was engendered by any concern about litigation. Rather, the Report explains that its purpose was 'to advise the Boards of Directors of [AIB] and Allfirst . . . with respect to losses sustained by Allfirst Financial Inc. and Allfirst Bank . . . in foreign exchange trading.'. . . The Report defines its scope with reference to the 'questions that [the Board] . . . referred to us for our review,'. . . none of which reveal its litigation concerns. Indeed, nowhere in the Report are AIB's litigation concerns adverted to explicitly or implicitly."; "Third, the use to which the Report was ultimately put provides further evidence of why it would have been generated in the same manner irrespective of the potential for litigation. Accordingly to AIB's Group Chief Executive, the AIB board intended the Report to be used to 'address[] culpability, accountability, control systems and organizational issues.'. . . As noted, the Board publicly fired six individuals identified in the Report as 'directly responsible for oversight of Mr. Rusnak . . .'. . . '[C]onsistent with the findings and recommendations of the report,'. . . the Board also adopted a series of 'organisational [sic] changes,' id., to its 'strategy and group structure' as well as to its corporate governance. . . . These actions evidence the importance of the role of Ludwig investigation as a corporate management tool, not as a mechanism to assist in expected litigation."; "In sum, AIB needed Ludwig's Report to provide an appropriate public response to the fraud and apparent mismanagement that had been committed.")

Case Date Jurisdiction State Cite Checked
2007-01-23 Federal NY
Comment:

Key Case


Chapter: 43.404
Case Name: In re OM Group Securities Litigation, Lead Dkt. No. 1:02CV2163, 2005 U.S. Dist. LEXIS 3967 (N.D. Ohio Feb. 28, 2005)
(finding that materials generated during an Audit Committee's internal investigation into possible inventory wrongdoing conduct by Weil Gotshal and the forensic accounting firm of Ten Eyck deserved privilege protection, but not work product protection; noting the confusion about Weil Gotshal's and Ten Eyck's client; noting among other things that Weil Gotshal's and Ten Eyck's presentation to the corporate board did not mention litigation, and the company released financial statement shortly thereafter; "On March 15, 2004, three months into the investigation, WGM and TEN Eyck gave a presentation to OMG's Board of Directors. There is no evidence that there was any discussion of litigation at the meeting. As a result of the meeting, on March 16, 2004, OMG announced that it anticipated restating its financial statements for 1999 through 2003. This indicates that the business purpose was a significant factor regardless of possible additional litigation. Accuracy of earnings and financial statements is clearly a business matter for all publicly-held corporations, regardless of whether litigation is pending or anticipated. Therefore, this Court concludes that the Audit Committee would have conducted the investigation and prepared the documents regardless of the possibility of additional litigation. The documents are not protected by the work-product doctrine. Thus, they should be produced unless they are subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2005-02-28 Federal OH
Comment:

Key Case


Chapter: 43.405
Case Name: Bowling v. Appalachian Elec. Supply, Inc., Case No. 3:13-cv-27347, 2014 U.S. LEXIS 49531 (S.D.W. Va. April 10, 2014)
(analyzing work product issues in a third party insurance context; "An account of an event given when fresh in the mind of the speaker is universally held to be more reliable than an account provided after the passage of time. For that reason, courts have widely found good cause to compel the disclosure of a witness statement made at the time of the accident; particularly, if the party seeking the statement did not have an opportunity to question the witness until weeks or months later. . . . Statements taken within one week of an accident have generally been considered sufficiently close in time to qualify as 'contemporaneous.'. . . Statements made several weeks or a month after the event may not so qualify.")

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

Chapter: 43.603
Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014)
April 16, 2014 (PRIVILEGE POINT)

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

Ironically, federal courts disagree more about work product principles enunciated in a single federal rule than they do about the organically developed attorney-client privilege protection. This can create enormous uncertainty for litigants, who usually do not know in advance where they might face litigation, and therefore will not know what work product approach will apply.

Under Fed. R. Civ. P. 26(b)(3)(B), a court ordering disclosure of work product "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation" (emphasis added). In Republic of Ecuador v. MacKay, the court described opinion work product as "'virtually undiscoverable.'" 742 F.3d 860, 869 n.3 (9th Cir. 2014) (citation omitted). Less than two weeks later, the Tenth Circuit applied a greater degree of protection -- bluntly stating that "[o]pinion work product is absolutely privileged." Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014). Less than two weeks after that, a district court applied a "near absolute protection" standard. Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014).

Perhaps there is little practical difference between a "virtually undiscoverable," "near absolute" and "absolutely privileged" standard, but one might expect courts to articulate the same approach. Next week's Privilege Point will provide another example of courts' disagreement about how to apply a single sentence in the federal rules.

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal OH
Comment:

key case


Chapter: 43.603
Case Name: Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014)
April 16, 2014 (PRIVILEGE POINT)

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

Ironically, federal courts disagree more about work product principles enunciated in a single federal rule than they do about the organically developed attorney-client privilege protection. This can create enormous uncertainty for litigants, who usually do not know in advance where they might face litigation, and therefore will not know what work product approach will apply.

Under Fed. R. Civ. P. 26(b)(3)(B), a court ordering disclosure of work product "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation" (emphasis added). In Republic of Ecuador v. MacKay, the court described opinion work product as "'virtually undiscoverable.'" 742 F.3d 860, 869 n.3 (9th Cir. 2014) (citation omitted). Less than two weeks later, the Tenth Circuit applied a greater degree of protection -- bluntly stating that "[o]pinion work product is absolutely privileged." Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014). Less than two weeks after that, a district court applied a "near absolute protection" standard. Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014).

Perhaps there is little practical difference between a "virtually undiscoverable," "near absolute" and "absolutely privileged" standard, but one might expect courts to articulate the same approach. Next week's Privilege Point will provide another example of courts' disagreement about how to apply a single sentence in the federal rules.

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal
Comment:

key case


Chapter: 43.603
Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 869 n.3 (9th Cir. 2014)
April 16, 2014 (PRIVILEGE POINT)

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

Ironically, federal courts disagree more about work product principles enunciated in a single federal rule than they do about the organically developed attorney-client privilege protection. This can create enormous uncertainty for litigants, who usually do not know in advance where they might face litigation, and therefore will not know what work product approach will apply.

Under Fed. R. Civ. P. 26(b)(3)(B), a court ordering disclosure of work product "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation" (emphasis added). In Republic of Ecuador v. MacKay, the court described opinion work product as "'virtually undiscoverable.'" 742 F.3d 860, 869 n.3 (9th Cir. 2014) (citation omitted). Less than two weeks later, the Tenth Circuit applied a greater degree of protection -- bluntly stating that "[o]pinion work product is absolutely privileged." Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014). Less than two weeks after that, a district court applied a "near absolute protection" standard. Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014).

Perhaps there is little practical difference between a "virtually undiscoverable," "near absolute" and "absolutely privileged" standard, but one might expect courts to articulate the same approach. Next week's Privilege Point will provide another example of courts' disagreement about how to apply a single sentence in the federal rules.

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

key case


Chapter: 43.702
Case Name: Chartraw v. City of Shawano, Case No. 16-C-807, 2017 U.S. Dist. LEXIS 187590 (E.D. Wi. Nov. 14, 2017)
(analyzing work product protection for a hostile work environment investigation; pointing to a consultant's retainer letter, and finding that the interviews deserved work product protection, and that the defendant was not relying on the investigation and therefore did not trigger and Faragher-Ellerth waiver; "While that may be the case for the Chartraw investigation, the same cannot be said for the Hoffmann investigation. Chartraw followed the procedures established by the City's Employee Personnel Policy and filed a formal complaint with the City. Conversely, Attorney Kalny initiated the Hoffmann investigation not in the ordinary course of business but with an eye toward litigation. During the course of the investigation, Kalny drafted interview questions for Chief Kohl and retained notes from the interviews of Chief Kohl and Lieutenant Mauel. Shortly after she made her claims in the March 2, 2016 interview with Kalny, Hoffmann retained counsel and less than three weeks later, made a six-figure demand on the City under threat of litigation.")

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

Chapter: 43.702
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; 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; "But while the defendants have asserted the Faragher/Ellerth defense with respect to the Chartraw investigation [investigation into this plaintiff's charges], they have not raised it in regards to the Hoffmann investigation. Again, the Chartraw and Hoffmann investigations [earlier hostile work environment investigation] are separate and distinct. Chartraw's investigation occurred as a matter of course pursuant to the City's Personnel Policy after she made formal complaints of Chief Kohl's lewd comments concerning herself and other women to the City. Conversely, Kalny initiated the Hoffmann investigation himself after learning about Hoffmann's failure to promote allegations, with an eye toward litigation. In short, the defendants' assertion of the Faragher/Ellerth defense with respect to Chartraw's complaints and investigation does not waive the right to invoke work-product protection as to documents created and obtained during the course of the Hoffmann investigation. Therefore, Chartraw's motion must be denied.")

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

key case


Chapter: 43.702
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: 43.702
Case Name: In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017)
January 24, 2018 (PRIVILEGE POINT)

"Putting Lawyers in Charge of Investigations Does Not Assure Privilege Protection"

Corporations' investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by anticipated litigation, and the company would not have created the investigation-related documents in the same form but for that anticipated litigation.

In In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017), Premera claimed privilege and work product protection for its data breach investigation. The court rejected both claims. Among many other things, the court assessed Premera's work product claim for documents created by its consultant Mandiant. Premera had hired Mandiant to review its claims data management system in October 2014. On January 29, 2015, Mandiant discovered malware on the system. Premera quickly hired an outside lawyer, and on February 21, 2015, "Premera and Mandiant entered into an amended statement of work that shifted supervision of Mandiant's [later] work to outside counsel." Id. at *22. Premera predictably argued that Mandiant's later work was protected, because Mandiant was then working "on behalf of an attorney." Id. at *23. But the court rebuffed the argument -- bluntly explaining that the "flaw in Premera's argument . . . is that . . . [Mandiant's] scope of work did not change [from the October 2014 agreement] after outside counsel was retained." Id. As the court noted, the "only thing that appears to have changed involving Mandiant was the identity of its direct supervisor." Id.

Companies seeking to maximize privilege and work product protection for internal corporate investigations should carefully document the primary motivations, showing that the corporation did something different or special because of its need for legal advice or because of anticipated litigation. The documentation of course should start with law firms' and consultants' retainer letters – but all documents created before, during, and after investigations should help evidence the necessary motivational elements under the privilege and (if appropriate) the work product doctrine.

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

key case


Chapter: 43.702
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: 43.702
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 about deaths connected to the defendant's medical device prepared by a former employee retained 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; finding that plaintiffs could not overcome the work product protection; finding that the work product doctrine was not lost by the internal circulation of the report; finding that another court's compelled disclosure of the report did not trigger a waiver; finding the crime-fraud exception inapplicable)

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

key case


Chapter: 43.702
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 about deaths connected to the defendant's medical device prepared by a former employee retained 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; "The consulting agreement was executed by Dr. Lehmann and Bard's general counsel, and provided that Dr. Lehmann would report directly to, and take directions from, attorney Passero and the Law Department. . . . The agreement stated that Dr. Lehmann's services were being retained in 'anticipation of litigation.'. . . Dr. Lehmann's Report was submitted directly to Passero. . . . The Report contained a header stating that it was '[p]rivileged and confidential,' '[a]ttorney work product,' and '[p]ursuant to contract.'")

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

Chapter: 43.702
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Documents confirm that, beginning in early 2004, Bard and its legal counsel began receiving notices that the Recovery Filter was associated with adverse events, including several deaths."; "Ms. Passero [Defendant's in-house counsel] stated in an affidavit and during her testimony in Alexander [lawsuit against the defendant] that these events caused the Law Department to retain Dr. Lehmann as a consultant to conduct a broad risk assessment.")

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

key case


Chapter: 43.702
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: 43.702
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: 43.702
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: 43.702
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

Chapter: 43.702
Case Name: McCann v. Miller, Civ. A. No. 08-561, 2009 U.S. Dist. LEXIS 63162, at *7 (E.D. Pa. July 6, 2009)
(finding that the work product doctrine protected a second investigation conducted by defendant Marriott into an alleged assault; "The matter was then referred to Marriott Claims Services, 'an in-house claims office which handles litigation-related general liability matters for Marriott and [] is staffed by administrators and representatives who handle litigation-related general liability matters for Marriott.'"; "The statements at issue here were obtained by a claims administrator after an initial investigation had already been completed. According to Marriott, a secondary investigation of this type is only undertaken in cases where litigation is likely.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2009-07-06 Federal PA
Comment:

key case


Chapter: 43.702
Case Name: Trenary v. Busch Entm't Corp., Case No. 8:05-CV-1630-T-30EAJ, 2006 U.S. Dist. LEXIS 70584, at *10 (M.D. Fla. Sept. 28, 2006)
(rejecting a work product assertion for documents created during defendant's routine investigation following a plaintiff's slip-and-fall accident, but noting that the company undertook two separate investigations; "[T]he fact that Defendant concedes that two reports were prepared regarding the incident – the report at issue which outlines medical aid given to Plaintiff, and a separate accident investigation report prepared by a Clarissa Allen – is strong evidence that EMT Day generated the instant report in the ordinary course of business.'") (emphasis added)

Case Date Jurisdiction State Cite Checked
2006-09-28 Federal FL

Chapter: 43.702
Case Name: EEOC v. Rose Casual Dining, L.P., Civ. A. No. 02-7485, 2004 U.S. Dist. LEXIS 1983 (E.D. Pa. Jan. 23, 2004)
(holding that a company relying on the Faragher-Ellerth doctrine as a defense to a hostile work environment case did not automatically forfeit work product protection for a separate second investigation; "Plaintiffs seek any witness statements generated during this investigation. In response, Defendants claim that the witness statements Plaintiffs seek were not generated during the investigation prior to Rielli's termination, but rather during a second investigation commenced after Rielli was terminated. This second investigation, which was led by Rose Casual's outside counsel, began after Rose Casual received a letter from Rielli's attorney on December 10, 2001, threatening it with litigation. Defendants claim that any witness statements generated during this second investigation are protected from discovery by the attorney-client privilege and the work-product doctrine."; "With respect to witness statements that were generated after Rielli was fired and at the direction of counsel in preparation for litigation, we agree that such statements are protected from discovery by the work-product doctrine.") (emphases added)

Case Date Jurisdiction State Cite Checked
2004-01-23 Federal PA

Chapter: 43.703
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: 43.703
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

Chapter: 43.802
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; 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; "But while the defendants have asserted the Faragher/Ellerth defense with respect to the Chartraw investigation [investigation into this plaintiff's charges], they have not raised it in regards to the Hoffmann investigation. Again, the Chartraw and Hoffmann investigations [earlier hostile work environment investigation] are separate and distinct. Chartraw's investigation occurred as a matter of course pursuant to the City's Personnel Policy after she made formal complaints of Chief Kohl's lewd comments concerning herself and other women to the City. Conversely, Kalny initiated the Hoffmann investigation himself after learning about Hoffmann's failure to promote allegations, with an eye toward litigation. In short, the defendants' assertion of the Faragher/Ellerth defense with respect to Chartraw's complaints and investigation does not waive the right to invoke work-product protection as to documents created and obtained during the course of the Hoffmann investigation. Therefore, Chartraw's motion must be denied.")

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

key case


Chapter: 43.802
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; 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; "But while the defendants have asserted the Faragher/Ellerth defense with respect to the Chartraw investigation [investigation into this plaintiff's charges], they have not raised it in regards to the Hoffmann investigation. Again, the Chartraw and Hoffmann investigations [earlier hostile work environment investigation] are separate and distinct. Chartraw's investigation occurred as a matter of course pursuant to the City's Personnel Policy after she made formal complaints of Chief Kohl's lewd comments concerning herself and other women to the City. Conversely, Kalny initiated the Hoffmann investigation himself after learning about Hoffmann's failure to promote allegations, with an eye toward litigation. In short, the defendants' assertion of the Faragher/Ellerth defense with respect to Chartraw's complaints and investigation does not waive the right to invoke work-product protection as to documents created and obtained during the course of the Hoffmann investigation. Therefore, Chartraw's motion must be denied.")

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

key case


Chapter: 43.802
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; 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; "Not only are Kalny's [Defendant's lawyer] interview notes and his reports regarding his preliminary findings and recommendations work product, they are considered opinion work product because they contain Attorney Kalny's mental impressions, conclusions, opinions, and legal theories pertaining to Hoffmann's claims and her eventual lawsuit against Chief Kohl. . . . Kalny's notes and reports contain more than just facts related to the investigation, and accordingly, they are opinion work product and are protected from discovery.")

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

Chapter: 43.802
Case Name: R.D. v. Shohola Camp Ground and Resort, Civ. No. 3:16-CV-1056, 2017 U.S. Dist. LEXIS 165733 (M.D. Pa. Oct. 6, 2017)
(holding that the plaintiff could inquire about defendant's investigator's initiation of communications with witnesses, but could not ask about the investigator's specific questions; "[I]t is not disputed that Trobe is an agent of counsel for the defendant, and therefore any fact work product he created in anticipation of the current litigation is protected. However, the plaintiff contends that the information sought from Trobe 'does not fall within the boundaries of attorney work-product doctrine,' since the plaintiff is seeking to explore the content of Trobe's communications to third parties. . . . the plaintiff asserts that he only wishes to determine the facts surrounding Trobe's conduct and communications with third party witnesses, and does not seek any information regarding defense counsel's mental impressions or legal strategy."; "We emphatically do not make any findings of any inappropriate conduct in this matter, but conclude that the plaintiff has made a sufficient showing to entitle the plaintiff to undertake a narrow line of questioning specifically designed to determine whether Trobe engaged in inappropriate conduct or coercion of the non-party witnesses, which does not run afoul of the work-product doctrine."; "Given the broad scope of discovery espoused in Rule 26, the court concludes that the plaintiff should be permitted to depose Trobe on the narrow issue of his alleged attempts to influence the non-party witnesses' testimony. . . . However, the court reminds both parties that Trobe 'is not required to supply counsel's view of the case, identify the facts which counsel considers significant, or the specific questions asked by [Trobe] during the investigation . . . as this type of information would fall under the category of mental impressions which are protected under Rule 26(b)(3).'")

Case Date Jurisdiction State Cite Checked
2017-10-06 Federal PA
Comment:

key case


Chapter: 43.802
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: 43.802
Case Name: Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
November 29, 2017 (PRIVILEGE POINT)

"S.D.N.Y. Magistrate Judge Francis Analyzes the Work Product Doctrine's 'Motivational' Element'"

Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether their clients sufficiently "anticipated" litigation when creating the withheld documents. But frequently the most important obstacle to claiming work product protection is (3) whether the anticipated litigation "motivated" the documents' creation (and thus whether the documents would not have existed in the same form but for that anticipated litigation).

In Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017), Southern District of New York Magistrate Judge Francis found that the Proskauer law firm's Title VII investigation report for its client deserved work product protection. He acknowledged that the firm's client had a written policy for investigating discrimination complaints. That conclusion normally would doom a work product claim - as evidence that the investigation report was not motivated by litigation, but rather compelled by internal requirements. But Judge Francis then noted that Proskauer's report was "unique in several ways": (1) the litigation had already begun; (2) the client "did not rely on its human resources personnel or even in-house counsel to conduct the investigation, but instead engaged outside counsel"; and (3) Proskauer's report "does not appear to be in a form consistent with routine investigations of discrimination complaints." Id. at *19.

Judge Francis's wise analysis provides a lesson for all corporations. To deserve work product protection, documents generally must be different from those prepared in the ordinary course of business, or compelled by external or internal requirements.

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 43.802
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "The scant deposition testimony of Kleinfeld CEO Ronnie Rothstein provided by plaintiff also fails to demonstrate that defense counsel had a non-legal purpose in the aftermath of the April 29 incident. The only testimony tying defense counsel to an investigatory role is a portion of Rothstein's deposition where counsel asked, 'So Rosanne [Clerkin], Terry [sic] [Solomon] and Bert [Pogrebin] conducted an investigation?,' and Rothstein answered, 'Yes'. . . . The Court does not consider this testimony, without more, sufficient to establish that Littler's attorneys acted as investigators without a primarily legal purpose.")

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

Chapter: 43.802
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: 43.802
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: 43.802
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

Chapter: 43.802
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: 43.802
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; "[P]laintiff seeks notes of conversations with individuals who were deposed (and whose depositions are already in plaintiff's possession); notes of conversations with individuals who could have been deposed by plaintiff; and notes from conversations in which the witness are not identified. . . . '[M]emoranda based on oral statements of witnesses . . . would reveal the attorney's mental processes[, and] . . . [i]t is clear that this is the sort of material the draftsmen of [Rule 26(b)] had in mind as deserving special protection.'. . . Accordingly, Attorney Altermatt's notes of witness interviews, which include his mental impressions and thought processes, are protected work-product, and as such, have been appropriately withheld by defendant.")

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

Chapter: 43.802
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: 43.802
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "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: 43.802
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Documents confirm that, beginning in early 2004, Bard and its legal counsel began receiving notices that the Recovery Filter was associated with adverse events, including several deaths."; "Ms. Passero [Defendant's in-house counsel] stated in an affidavit and during her testimony in Alexander [lawsuit against the defendant] that these events caused the Law Department to retain Dr. Lehmann as a consultant to conduct a broad risk assessment.")

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

key case


Chapter: 43.802
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report about deaths connected to the defendant's medical device prepared by a former employee retained 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; "The consulting agreement was executed by Dr. Lehmann and Bard's general counsel, and provided that Dr. Lehmann would report directly to, and take directions from, attorney Passero and the Law Department. . . . The agreement stated that Dr. Lehmann's services were being retained in 'anticipation of litigation.'. . . Dr. Lehmann's Report was submitted directly to Passero. . . . The Report contained a header stating that it was '[p]rivileged and confidential,' '[a]ttorney work product,' and '[p]ursuant to contract.'")

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

Chapter: 43.802
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report about deaths connected to the defendant's medical device prepared by a former employee retained 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; finding that plaintiffs could not overcome the work product protection; finding that the work product doctrine was not lost by the internal circulation of the report; finding that another court's compelled disclosure of the report did not trigger a waiver; finding the crime-fraud exception inapplicable)

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

key case


Chapter: 43.802
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; "Plaintiffs also argue that the Report was used for Bard's business purposes, and that there is no evidence it was used for litigation purposes. . . . Plaintiffs identify three internal Bard documents that contain information from the Report . . . . Used in creating them. Bard also admitted this fact during oral argument and in its reply brief. . . . But use of the Report to create internal HHEs and RAPs does not deprive the Report of work product protection. To the contrary, the 'because of' test is directed at documents that serve both litigation and business purposes.")

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

key case


Chapter: 43.802
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: 43.802
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; applying Federal Rule of Evidence 502 in concluding that GM did not waive its privilege protection; "Applying Rule 502, there is no basis to conclude that New GM waived either attorney-client privilege or the attorney work product doctrine with respect to documents that New GM has withheld -- namely, the Interview Materials. Specifically, as New GM has shown, the company has -- as of today's date -- 'neither offensively used the Valukas Report in litigation nor made a selective or misleading presentation that is unfair to adversaries in this litigation, or any other.' . . . New GM has produced, or soon will produce, millions of pages of documents, including many that would otherwise be privileged (pursuant to the Court's Rule 502(d) Order).")

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

Chapter: 43.802
Case Name: Freedman v. Weatherford International Ltd., 12 Civ. 2121 (LAK) (JCF), 2014 U.S. Dist. LEXIS 102248 (S.D.N.Y. July 25, 2014)
(denying plaintiffs' effort to obtain documents created during a company's audit committee's investigation; "In accordance with my orders in Dobina, the defendants have produced to the plaintiffs here all documents actually disclosed to the SEC, as well as all factual materials explicitly referenced in those disclosures. The plaintiffs now seek all remaining documents withheld on the basis of attorney client privilege and work product protection, arguing that the defendants waived all privilege and protection over subject matter related to the investigation as a result of Weatherford's 'comprehensive and one-sided disclosure' to the SEC. (Plaintiffs' Motion to Compel the Production of Documents Concerning the Audit Committee Investigation. . . . The plaintiffs clarify that they do not seek opinion work product, but rather the all fact-based portions of interview notes, memoranda, attorney e-mails, and other investigative materials, 'regardless of whether they were produced to the SEC.' (Plaintiffs' Omnibus Reply to Defendants' Oppositions to Plaintiffs' Motions to Compel (1) Reports on Electronic Documents Searches, (2) the Production of Documents Concerning the Audit Committee Investigation, and (3) the Production of Documents Concerning the Latham Investigation."; "While the plaintiffs highlight the depth and breadth of the Audit Committee investigation, leading to the 'disclos[ure] [of] minute details and factual conclusions' to the SEC . . . Those very factual conclusions and details have already been produced pursuant to my previous orders in Dobina. This is not a case where Weatherford appears to be 'pick[ing] and choos[ing] among [its] opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or [] invok[ing] the privilege as to communications whose confidentiality [it] has already compromised for [its] own benefit.'"; reaching the same conclusion about an investigation conducted by the Latham law firm)

Case Date Jurisdiction State Cite Checked
2014-07-25 Federal NY

Chapter: 43.802
Case Name: US Bank Nat'l Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811 & 13 Civ. 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *30-31 (S.D.N.Y. Oct. 3, 2013)
("Other categories of information sought -- information about those who ordered and conducted the interviews, those who were present but not interviewed, and the dates of the interviews -- are not protected from disclosure because they are not likely to provide insight into counsel's opinions, thought processes, or strategy. . . . Similarly, the question of whether documents were collected from third parties is not likely to impinge on attorney work product protection, as it does not implicate the 'selection and compilation theory of work product,' which protects from disclosure 'counsel's sifting, selection and compilation' of otherwise unprotected documents." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-10-03 Federal NY B 5/14

Chapter: 43.802
Case Name: US Bank Nat'l Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811 & 13 Civ. 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *27-28, *29 (S.D.N.Y. Oct. 3, 2013)
("It is an unsettled question whether the work product immunity protects the identities of those persons interviewed by an attorney or his agent in anticipation of litigation. . . . However, courts in this district have noted that the identities of people interviewed as part of counsel's investigation into the facts of the case have the potential to reveal counsel's opinions, thought processes, or strategies, and are therefore protected."; "Here, U.S. Bank asserts that its former counsel's decisions regarding whom to interview had a strategic component based on information counsel had about PHL and about individuals at PHL. . . . In light of this assertion, and the persuasive reasoning of cases cited above, I find that the identities of the individuals U.S. Bank interviewed in its investigation are protected as work product.")

Case Date Jurisdiction State Cite Checked
2013-10-03 Federal NY B 5/14

Chapter: 43.802
Case Name: US Bank National Ass'n v. PHL Variable Ins. Co., 12 Civ. 6811 (CM) (JCF), 13 Civ. 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013)
("Other categories of information sought -- information about those who ordered and conducted the interviews, those who were present but not interviewed, and the dates of the interviews -- are not protected from disclosure because they are not likely to provide insight into counsel's opinions, thought processes, or strategy. . . . Similarly, the question of whether documents were collected from third parties is not likely to impinge on attorney work product protection, as it does not implicate the 'selection and compilation theory of work product,' which protects from disclosure 'counsel's sifting, selection and compilation' of otherwise unprotected documents.")

Case Date Jurisdiction State Cite Checked
2013-10-03 Federal NY

Chapter: 43.802
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: 43.802
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: 43.802
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: 43.802
Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *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: 43.802
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: 43.802
Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *5-6, *6 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved protection, because the consultant was working as the lawyer's agent; "Pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure, any materials Bernard [EEO consultant working under supervision of defendant's legal department] produced to document her communications with the Wells Fargo employees may be protected under the work product doctrine if the investigation was conducted in anticipation of litigation. . . . It is undisputed that Bernard commenced her internal investigation only in response to the EEOC charge.'; "Given Farzan's threat of litigation and his filing with the EEOC, Wells Fargo justifiably anticipated litigation at the time of Bernard's investigation.")

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

Chapter: 43.802
Case Name: Louis Vuitton Malletier v. Texas Int'l P'ship, Civ. A. H-10-2821, 2012 U.S. Dist. LEXIS 67140, *11 (S.D. Tex. May 14, 2012)
(analyzing work product protection for documents created by plaintiff during its investigation of possible sales of counterfeit merchandise; finding that work product protection started at some point during the investigations; "Louis Vuitton has offered little evidence to aid the court in determining when its communications with its investigators changed from being communications prepared in the ordinary course of business to being communications that were motivated by potential litigation. Clearly, once the lawsuit was initiated on August 9, 2010, any communications with regard to investigations of the sale or distribution of counterfeit Louis Vuitton merchandise at the Center are work product related to the ongoing litigation."; "[A]ny communications with its investigators regarding the shops in the Center on or after May 15, 2009, were prepared in anticipation of litigation and are work product. However, Louis Vuitton has presented no evidence that it was communicating with its investigators in anticipation of litigation before May 15, 2009. Accordingly, it has not carried its burden of proof to show that the pre-May 15, 2009 communications were made in anticipation of litigation rather than in the normal course of business.") (emphases added)

Case Date Jurisdiction State Cite Checked
2012-05-14 Federal TX
Comment:

key case


Chapter: 43.802
Case Name: Zawadzki v. Cmty. Hosp. Ass'n, Civ. A. No. 09-cv-01682-LTB-MEH & -02450-CMA, 2010 U.S. Dist. LEXIS 91812, at *12 (D. Colo. Aug. 6, 2010)
(upholding a work product assertion for a hospital's internal corporate investigation; ". . . unlike an 'ordinary' investigation, the documents reflect that Mr. Hensen [lawyer for defendant hospital] appears to have been directly involved in the investigation for the purpose of preparing a defense for BCH. Therefore, the Court finds that BCH has demonstrated the investigation notes were prepared because of the prospect of, and in anticipation of, litigation.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-08-06 Federal CO

Chapter: 43.802
Case Name: Laney v. Schneider Nat'l Carriers, Inc., Case No. 09-CV-389-TCK-FHM, 2010 U.S. Dist. LEXIS 35892, at *2-3 (N.D. Okla. April 12, 2010)
(finding work product protection for defendant trucking company's post-accident investigation; noting that the company sometimes retained outside investigators, and sometimes did not; "In support of their argument that the investigation by Glow and Thompson is not protected as work product, Plaintiffs submitted the affidavit of a former employee of Defendants which states that Defendants routinely investigate all accidents involving Defendants' trucks. The affidavit addresses the initial report a driver makes to Defendants after an accident and the data entered into Defendants' records as a result of the driver's initial report. The affidavit, however, does not address the situation where outside investigators are hired, which is the situation in this case. Thus, while the affidavit may support discovery of Defendants' records concerning the driver's initial accident report, it does not support, or even address, discovery of information from outside investigators.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-04-12 Federal OK

Chapter: 43.802
Case Name: McCann v. Miller, Civ. A. No. 08-561, 2009 U.S. Dist. LEXIS 63162, at *7 (E.D. Pa. July 6, 2009)
(finding that the work product doctrine protected a second investigation conducted by defendant Marriott into an alleged assault; "The matter was then referred to Marriott Claims Services, 'an in-house claims office which handles litigation-related general liability matters for Marriott and [] is staffed by administrators and representatives who handle litigation-related general liability matters for Marriott.'"; "The statements at issue here were obtained by a claims administrator after an initial investigation had already been completed. According to Marriott, a secondary investigation of this type is only undertaken in cases where litigation is likely.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2009-07-06 Federal PA
Comment:

key case


Chapter: 43.802
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; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

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

key case


Chapter: 43.802
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: 43.802
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: 43.802
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 the plaintiffs cannot overcome the work product protection covering WilmerHales' documents; "Plaintiffs claim that they should receive the requested information in any event because they have a substantial need for the materials and will not be able to obtain their substantial equivalent without undue hardship. . . . To the extent Defendants do not intend to introduce the Restructuring Report at trial, however, Plaintiffs have no substantial need for the information for cross-examination purposes."; "Nor have Plaintiffs demonstrated that they cannot obtain the equivalent information without undue hardship. Plaintiffs insist that they cannot recreate the WilmerHale investigation because they are only allowed to take 55 depositions and, thus, cannot depose all of the individuals WilmerHale interviewed. . . . Plaintiffs also lament that witnesses may have forgotten crucial facts and Household may have deleted relevant email messages. . . . Plaintiffs fail to explain, nor does the court see, why they need to depose every WilmerHale interviewee in order to test the law firm's conclusions, especially where Defendants do not intend to make those conclusions part of their defense. . . . Moreover, Plaintiffs have deposed, or have scheduled depositions of nine current or former HMS employees who can testify about the Markell allegations and the conclusions stated in the Restructuring Report. Notably, Plaintiffs have the underlying data KPMG [Household's regular auditor] used to test the accuracy of the Restructuring Report, and the Report itself. Under these circumstances, Plaintiffs have not demonstrated undue hardship for purposes of overcoming the work product privilege.")

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

key case


Chapter: 43.802
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 E&Y's documents deserved fact work product protection, which plaintiffs could overcome; "The fact that Household decided to conduct a more expansive review does not, however, contradict its assertion that it retained E&Y because of the prospect of litigation. The court is satisfied that Defendants have met their burden of showing that the E&Y documents constitute privileged work product."; "The court agrees that the E&Y documents constitute work product in that E&Y conducted its evaluation as an agent of Household's General Counsel's office. . . . The court is less certain that the documents constitute 'opinion' work product as contemplated by Rule 26, and finds that Household has not met its burden on this issue. As for the fact work product, the court believes that Plaintiffs have met their burden of overcoming the privilege. . . . Plaintiffs have demonstrated a substantial need for the E&Y information in that it may assist Plaintiffs in establishing falsity, scienter, and materiality. Plaintiffs do not have the underlying data E&Y utilized in preparing its report, and without this information, it is not clear that witness depositions would provide Plaintiffs with the substantial equivalent of the materials. Thus, Plaintiffs' motion to compel the E&Y materials is granted.")

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

key case


Chapter: 43.802
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: 43.802
Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; finding that the company and Baker Botts waived work product protection by disclosing investigation-related work product to the SEC, but did not trigger a subject matter waiver; "Brady argues that i2's disclosure of documents to the government constituted a waiver of work product immunity because the government was either a potential adversary or actual adversary when the documents were exchanged. Waiver of work product protection only results if the work product is disclosed to an adversary or treated in a manner that substantially increases the likelihood that an adversary will come into possession of that material. . . . Even if confidential work product is produced to a potential adversary under a confidential agreement, that will not alter the objective fact that confidentiality has voluntarily been breached."; "Here, the affidavits show that i2 and Baker Botts were on notice that the SEC had begun an informal investigation that later developed into a formal investigation by March 26, 2003. Yet i2 and Baker Botts still disclosed privileged information and documents to government investigators, albeit under a confidentiality agreement. Nevertheless, this disclosure under a confidentiality agreement constituted a waiver of work product immunity, but waiver is limited to the documents actually disclosed. See Chubb, 103 F.R.D. at 67-68. Thus, Brady has met his burden to demonstrate that work product immunity was waived as to all documents produced by i2 and Baker Botts to the government. As noted above, these documents were subject to Category I and have already been produced."; "Brady argues that the waiver of work product immunity as to the documents disclosed to the SEC warrants full subject matter waiver of all documents pertaining to the investigation."; "Here, 'the facts relevant to a narrow issue' are not in dispute in this case. Additionally, it would not be unfair to limit the waiver to the actual documents disclosed because Brady is not being denied full access to the facts of the investigation. In fact, this Court has already stated that work product immunity protects documents not underlying facts. Brady still has the opportunity to use proper discovery tactics, such as depositions, to ascertain the underlying facts pertaining to both Phase I and Phase II of the investigation. Thus, the disclosure of work product to the SEC does not amount to full subject matter waiver.")

Case Date Jurisdiction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 43.802
Case Name: EEOC v. Rose Casual Dining, L.P., Civ. A. No. 02-7485, 2004 U.S. Dist. LEXIS 1983 (E.D. Pa. Jan. 23, 2004)
(holding that a company relying on the Faragher-Ellerth doctrine as a defense to a hostile work environment case did not automatically forfeit work product protection for a separate second investigation; "Plaintiffs seek any witness statements generated during this investigation. In response, Defendants claim that the witness statements Plaintiffs seek were not generated during the investigation prior to Rielli's termination, but rather during a second investigation commenced after Rielli was terminated. This second investigation, which was led by Rose Casual's outside counsel, began after Rose Casual received a letter from Rielli's attorney on December 10, 2001, threatening it with litigation. Defendants claim that any witness statements generated during this second investigation are protected from discovery by the attorney-client privilege and the work-product doctrine."; "With respect to witness statements that were generated after Rielli was fired and at the direction of counsel in preparation for litigation, we agree that such statements are protected from discovery by the work-product doctrine.") (emphases added)

Case Date Jurisdiction State Cite Checked
2004-01-23 Federal PA

Chapter: 43.802
Case Name: SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291 (JSM), 2002 U.S. Dist. LEXIS 16091, at *5-6 (S.D.N.Y. Aug. 27, 2002)
(holding that Swiss Re (which provided insurance for the World Trade Center) could successfully claim work product protection for its investigation following the 9/11 attack on the World Trade Center; "While Swiss Re employees may at times have engaged in similar investigations and prepared similar account reviews in the ordinary course of the business of investigating and adjusting claims in the absence of a threat of litigation and without involvement of counsel, Mr. Fawcett has stated that the investigation undertaken in this situation was, in fact, at his direction, of a different character, and not in the ordinary course of business or pursuant to ordinary procedures. Furthermore, Mr. Fawcett's statement that he immediately anticipated litigation in this far-from-ordinary case is far from implausible. It is highly significant in this regard that he retained Simpson Thacher as litigation counsel on September 12.") (emphases added)

Case Date Jurisdiction State Cite Checked
2002-08-27 Federal NY

Chapter: 43.802
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: 43.802
Case Name: Smith v. Nat'l R.R. Passenger Corp., 22 Va. Cir. 348, 349, 351-52, 352-53, 353 (Va. Cir. Ct. 1991)
(analyzing work product protection for a post-incident report prepared by a railroad; ultimately finding that the incident report deserved privilege protection, and that the plaintiff could not overcome the protection; "Here defendant conducted its investigation within a few days of the injury in accordance with its normal policy and procedure. It conducts investigations of job injuries for, among other reasons, settlement of claims, correction of safety defects, and for litigation if the case progresses to that point."; "Benson [W.T. Benson, Corporation and Institutional Accident Investigations as Work Product Pursuant to the Rules of the Supreme Court of Virginia, 17 U. Rich. L. Rev. 285, 309 (1983)] advocates that a 'reasonably foreseeable' test be applied by the circuit courts in Virginia to determine what constitutes materials prepared in anticipation of litigation. If a reasonable person in the shoes of the party resisting discovery would have anticipated or reasonably foreseen litigation at the time the material was produced, it should enjoy the qualified protection of Rule 4:1(b)(3). This court finds that test and Benson's rationale for it more consistent with the language and purpose of the rule than does the mechanical 'if it was prepared in the ordinary course of business, it is not protected' analysis found in McDougall. If that were the proper test, how would the investigations, analysis, etc., of the plaintiff's attorney be protected from discovery? Clearly this material is prepared in the usual course of the attorney's business."; concluding that the plaintiff could not overcome the railroad's work product protection; "Here plaintiff was injured while on the job. The evidence establishes that NRPC conducts an investigation of every reported employee injury as soon as possible after its occurrence for several reasons, one of which is that the matter may result in litigation. Applying a reasonably prudent person standard to these facts, the court finds that in the face of the event which gave rise to the motion for judgment, a reasonably prudent railroad employer could anticipate litigation as a result, making the reports which were produced from the investigations of the accident work product protected by Rule 4:1(b)(3)."; "He has been given the names of all persons having knowledge of the injury. His own investigation should produce substantially the same information he seeks from NRPC without undue hardship. What he seeks is the defense case without the effort of his own investigation. He has made no showing of circumstances which would meet those requirements for disclosure; therefore, his motion to compel the production of the investigative reports is overruled.")

Case Date Jurisdiction State Cite Checked
1991-01-01 State VA
Comment:

key case


Chapter: 43.803
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 Court has reviewed the transcript of Aziz's testimony and finds that in many instances, Plaintiffs' counsel improperly instructed Aziz not to answer certain questions on the grounds of attorney-client and work product privileges, as well as the common interest doctrine. Likewise, in some instances, the privilege assertion was far too broad. The relevant questions to which an instruction not to answer was given can be characterized as either (1) questions concerning the people at Amazon with whom Aziz communicated during the course of his 'test purchases' and the subject matter of those communications . . . or (2) questions concerning internal communications between Aziz and other Rubie's employees regarding his investigation.")

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

Key Case


Chapter: 43.803
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: 43.803
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: 43.803
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: 43.803
Case Name: In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017)
January 24, 2018 (PRIVILEGE POINT)

"Putting Lawyers in Charge of Investigations Does Not Assure Privilege Protection"

Corporations' investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by anticipated litigation, and the company would not have created the investigation-related documents in the same form but for that anticipated litigation.

In In re Premera Blue Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Or. Oct. 27, 2017), Premera claimed privilege and work product protection for its data breach investigation. The court rejected both claims. Among many other things, the court assessed Premera's work product claim for documents created by its consultant Mandiant. Premera had hired Mandiant to review its claims data management system in October 2014. On January 29, 2015, Mandiant discovered malware on the system. Premera quickly hired an outside lawyer, and on February 21, 2015, "Premera and Mandiant entered into an amended statement of work that shifted supervision of Mandiant's [later] work to outside counsel." Id. at *22. Premera predictably argued that Mandiant's later work was protected, because Mandiant was then working "on behalf of an attorney." Id. at *23. But the court rebuffed the argument -- bluntly explaining that the "flaw in Premera's argument . . . is that . . . [Mandiant's] scope of work did not change [from the October 2014 agreement] after outside counsel was retained." Id. As the court noted, the "only thing that appears to have changed involving Mandiant was the identity of its direct supervisor." Id.

Companies seeking to maximize privilege and work product protection for internal corporate investigations should carefully document the primary motivations, showing that the corporation did something different or special because of its need for legal advice or because of anticipated litigation. The documentation of course should start with law firms' and consultants' retainer letters – but all documents created before, during, and after investigations should help evidence the necessary motivational elements under the privilege and (if appropriate) the work product doctrine.

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

key case


Chapter: 43.803
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: 43.803
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: 43.803
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
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: 43.803
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
(holding that neither the work product protection nor the attorney-client privilege protected from discovery the one witness interview memoranda prepared by the Cadwalader law firm during its internal investigation of self-dealing at the Washington Metropolitan Area Transit Authority; concluding that the work product doctrine did not apply because the investigation was undertaken for business rather than litigation purposes, and that the privilege did not apply because WMATA disclosed the interview excerpts when it publicly revealed the Cadwalader report, and also relied on the report to defend itself in the litigation; "Banneker also notes that WMATA's internal documents discussing the hiring of Cadwalader and release of the Bondi Report, as well as counsel's statements during depositions, indicate that the investigation conducted by Cadwalader was for internal WMATA business purposes. Specifically, the purpose of the investigation was to determine if Board Members were complying with their mandate or if additional procedures and rules needed to be put in place, and to respond to public outcry for accountability. . . . WMATA Board Resolution 2012-26 . . . (stating that Cadwalader's investigation 'reveal[ed] the need for additional examination, clarifying and strengthening of the Standards of Conduct policies governing the Board, as well as other matters of policy, procedure and agency conduct"); id., Ex. L, Cadwalader Recommendations to the WMATA Board Concerning Governance and the Code of Ethics . . . (explaining Cadwalader was engaged 'to provide general governance recommendations, and to evaluate the Code of Ethics for Members of the WMATA Board of Directors'); WMATA Board Resolution 2012-25 (authorizing public release of the Bondi Report)."; "While there is no standard or rule regarding how close in time potential litigation must be, after considering the specific sequence of events in this case, the Court determines the timing of the Cadwalader interviews suggests they were not conducted when litigation was anticipated. WMATA argues that the Bolden Letter triggered anticipation of litigation, which the Court does not question. At the time WMATA received the Bolden Letter it was reasonable to anticipate litigation. What the Court finds troubling is the length of time that passed from receipt of the Bolden Letter to retention of Cadwalader and the lack of any action indicating anticipation of litigation in the years between those two events. Without evidence of intervening action by WMATA with respect to the Bolden Letter, the Court finds that the Cadwalader investigation cannot be reasonably linked to the anticipation of litigation initiated by the Bolden Letter. The fact that litigation resulted shortly after the public disclosure of the Bondi Report does not show that WMATA retained Cadwalader in reasonable anticipation of that litigation. The Court finds the timing does not support a finding of work product."; "The evidence presented supports a finding that absent any anticipated litigation, WMATA would have conducted the same investigation to evaluate its business practices and revise the Standards of Conduct for the Board of Directors. The Board specifically noted that the investigation was aimed at 'formulat[ing] and recommend[ing]' changes to the 'policies, standards and procedures' of the Board of Directors, a business -- not litigation -- goal. WMATA Board Resolution 2012-26 at 1. The Court acknowledges Ms. Rockwood's declaration that states that she 'was aware of the possibility of litigation' and that the memoranda 'were intended to be internal work product for use by the Cadwalader legal team,'. . . however, the contemporaneous statements made by WMATA regarding the investigation do not indicate that the investigation was conducted as a result of anticipated litigation, but instead to determine if changes were necessary to the Board of Directors' Standards of Conduct. This factor too compels the conclusion that the investigative report and supporting memoranda are not covered by work-product protection.")

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

key case


Chapter: 43.803
Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "PHL has not convinced the Court that they retained Bracewell & Guiliani primarily for the purpose of obtaining legal advice. Rather, the majority of the Report suggests improvements to PHL's business practices aimed at resolving what the first page of the Report refers to as the 'clear economic risk' presented by STOLI policies. Thus, to the extent that there is a presumption that communications between an attorney and client are in pursuit to legal advice, U.S. Bank has shown evidence rebutting that presumption. Accordingly, the Court will not find the Report as a whole protected by attorney-client privilege."; "For example, a November 7, 2007, email states that PHL retained 'an outside firm 'Bracewell and Giuliani' to review our current procedures and provide recommendations to us on how to improve the detection and prevention of life insurance sales intended to be investor owned. They have provided this type of service to others serious about ensuring the quality of business and bring to [PHL] expertise in this field.'. . . Another email referred to the firm's activities with PHL as 'consulting.' (Id., Ex. P) A presentation given at a risk management meeting stated, 'Bracewell and Guiliani recommendations -- majority implemented from business plan.' Finally, another presentation stated that PHL '[e]ngaged Bracewell & Guiliani law firm to assess and recommend STOLI prevention tactics.'. . .")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 43.803
Case Name: U.S. Bank National Ass'n v. PHL Variable Insurance Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016)
May 25, 2016 (PRIVILEGE POINT)

"Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine"

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other common client assumptions, this overly optimistic view is frequently wrong.

In U.S. Bank National Ass'n v. PHL Variable Insurance Co., defendant PHL withheld from production a 39-page report written by three lawyers from the law firm then known as Bracewell & Guiliani — supporting its privilege and work product claim with a declaration that it retained Bracewell & Guiliani "for the purpose of seeking legal consultation, advice and counsel." Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016). But the court rejected both claims. Among other things, the court pointed to non-protected emails, undoubtedly written by the defendant's business folks -- announcing that the company had hired Bracewell & Guiliani "'to review our current procedures,'" because that law firm had provided services to others "'serious about ensuring the quality of business.'" Id. At *6 (internal citations omitted). Other unprotected client documents described the law firm's activities as "'consulting,'" and mentioned the firm's recommendations about the company's "'business plan.'" Id. At *7 (internal citations omitted). The court also reviewed in camera the Bracewell & Guiliani report itself — noting that "the majority of the Report suggests improvements to PHL's business practices." Id. The court again pointed to its in camera review of the report in also rejecting PHL's work product claim — noting that the firm's report "was not 'mapping litigation strategy.'" Id. At *16 (citation omitted).

Corporations hiring law firms should remember that a court might review business executives' description of the law firm's role, and also read the law firm's communications.

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 43.803
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; "At the time she made her notes, Baiocchi was the director of human resources at Herzing, and, although she also happened to be a lawyer, she was acting in her capacity as the human resources director when conducting the investigation in accordance with Herzing's employee policy. Considering this, and in light of the Court's analysis above, the Court finds that the attorney-client privilege does not apply to Baiocchi's redacted notes from her May 10, 2013, interviews.")

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

Chapter: 43.803
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: 43.803
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: 43.803
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: 43.803
Case Name: Gillespie v. Charter Communications, Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015)
November 18, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part I"

Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both contexts, companies must do something different or special — not in the ordinary course of their business. Careful companies sometimes fail both standards, because they ordinarily investigate suspicious events, serious accidents, etc.

In Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015), the Kansas Department for Children and Families investigated a minor’s death. The court found unpersuasive an agency lawyer's affidavit that the investigation was "'done in anticipation of litigation and under my direction.'" Id. At *5 (internal citation omitted). Relying on the majority view applicable to companies and other institutions, the court rejected work product protection for the investigation — noting that the agency's "policy and procedure manual indicates that an attorney would oversee an investigation involving any situation similar to [the child's] death, regardless of whether litigation was imminent." Id. At *5-6. Two days later, in Gillespie v. Charter Communications, the court similarly rejected defendant's privilege and work product claim for a racial discrimination "Incident Investigation Report." Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015). In denying the work product claim, the court concluded that Charter "generated [the incident report] in the ordinary course of [its] business" — describing Charter's "ongoing compliance program" as involving a "reporting system, and the process of investigating claims made within this system." Id. At *13.

How can companies successfully claim privilege and work product protection if they establish laudable processes to conduct internal investigations as part of their ordinary course of business? Several days after these decisions, another court provided some guidance. Next week's Privilege Point will discuss that case.

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

key case


Chapter: 43.803
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: 43.803
Case Name: Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015)
November 18, 2015 (PRIVILEGE POINT)

"Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part I"

Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both contexts, companies must do something different or special — not in the ordinary course of their business. Careful companies sometimes fail both standards, because they ordinarily investigate suspicious events, serious accidents, etc.

In Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015), the Kansas Department for Children and Families investigated a minor’s death. The court found unpersuasive an agency lawyer's affidavit that the investigation was "'done in anticipation of litigation and under my direction.'" Id. At *5 (internal citation omitted). Relying on the majority view applicable to companies and other institutions, the court rejected work product protection for the investigation — noting that the agency's "policy and procedure manual indicates that an attorney would oversee an investigation involving any situation similar to [the child's] death, regardless of whether litigation was imminent." Id. At *5-6. Two days later, in Gillespie v. Charter Communications, the court similarly rejected defendant's privilege and work product claim for a racial discrimination "Incident Investigation Report." Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015). In denying the work product claim, the court concluded that Charter "generated [the incident report] in the ordinary course of [its] business" — describing Charter's "ongoing compliance program" as involving a "reporting system, and the process of investigating claims made within this system." Id. At *13.

How can companies successfully claim privilege and work product protection if they establish laudable processes to conduct internal investigations as part of their ordinary course of business? Several days after these decisions, another court provided some guidance. Next week's Privilege Point will discuss that case.

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

Chapter: 43.803
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

Chapter: 43.803
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

Chapter: 43.803
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: 43.803
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015)
April 8, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part I”

Some companies begin internal investigations or audits for business reasons, but later try to cloak related communications and documents with work product privilege protection. Although some companies successfully argue that a business-related investigation "morphed" into a privilege-protected investigation, most attempts fail.

In United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015), NeuroScience retained a regulatory compliance company (CodeMap) to conduct a "full, flat-fee compliance audit" of its billing practices after its billing manager suddenly resigned. About a month later, CodeMap reported that NeuroScience had overbilled Medicare and some insurance companies. In the meantime, NeuroScience's outside Minneapolis law firm learned that the ex-billing manager had accused the company of fraudulent billing practices. About ten days later, NeuroScience and its law firm agreed that the law firm "should supervise the remainder of CodeMap's audit activities." Id. at *7. CodeMap sent a Services Proposal indicating that the law firm would now direct CodeMap's "baseline" compliance audit, and stating that related communications would deserve privilege and work product protection. Id. However, CodeMap later admitted that (1) "counsel really did not provide much internal 'direction' to CodeMap at all" (id. at *8); (2) lawyers were not present when CodeMap auditors met with NeuroScience employees; and (3) lawyers generally did not receive copies of email message traffic between CodeMap and company employees during the audit. CodeMap's chief auditor later acknowledged that "'[b]y the time Counsel was involved, CodeMap already knew the work to be done and how to do it, so the legal oversight, as [he] understood it, was to maintain privilege.'" Id. at *9-10 (internal citation omitted).

Next week's Privilege Point will describe the court's work product and attorney-client privilege analysis.

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

key case


Chapter: 43.803
Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015)
April 15, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part II”

Last week's Privilege Point described an outside regulatory compliance consultant's work for a company which worried about its non-compliant billing practices and about possible litigation, that consultant's later agreement to work under outside lawyers' "direction," and the admitted lack of any such day-to-day direction. United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015).

The court first rejected NeuroScience's work product claim. The court held that the company hired the compliance auditor CodeMap for business purposes, and that lawyers' later involvement "was a tactic designed solely to cloak the audit documents" with some protection. Id. at *17. The court concluded that the outside lawyers "in fact provided no direction at all," and found no evidence 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." Id. at *18. Although outside lawyers used the audit's result, the court explained that "the focus is on the circumstances of the communication at the time it was made." Id. The court also rejected NeuroScience's privilege claim. The court noted that the company hired CodeMap "without any direction from counsel," and that CodeMap "conducted and completed [its] coding review and transmitted the results" to NeuroScience before any lawyer's involvement. Id. at *24. And after the lawyers' "post-hoc retention of CodeMap," there was no evidence that "the focus of CodeMap's audits changed." Id. at *25. The court therefore concluded that "there is no question that [the outside law firm's] retention of CodeMap was a subterfuge specifically designed to cloak the audits with privilege." Id. at *26.

This and other similar cases highlight the wisdom of involving lawyers at the first hint of a problem, and assuring their intense hands-on involvement in any consultants' work the company intends to withhold as privileged or as work product.

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

key case


Chapter: 43.803
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

Chapter: 43.803
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: 43.803
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: 43.803
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: 43.803
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: 43.803
Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *6, *7-8, *9, *10-11 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding the work product doctrine inapplicable; "Chamberlain has not shown that the documents it created or gathered as part of the investigation for Telamon and its lawyers are work product. Chamberlain cannot even identify any particular litigation, the prospect of which was a motivating reason for its hiring or its work. Chamberlain does not contend that its hiring or the conduct of its investigation was because of likely insurance coverage litigation. Instead, it points to the FBI's involvement and to J.B.'s filing of a charge of discrimination with the EEOC as satisfying the 'anticipation of litigation' element. But neither of these circumstances tends to show that Barnes & Thornburg or Telamon hired Chamberlain, or that Chamberlain conducted its investigation, because 'some articulable claim, likely to lead to litigation,' had arisen." (citation omitted); "Chamberlain does not counter the fact that it was the results of its investigation that led Chamberlain and the lawyers to reach out to the FBI; Chamberlain's hiring and its work were not primarily for the purpose of assisting the FBI in gathering evidence for potential criminal proceedings. . . . [A]ny contemplated criminal proceedings involved J.B. and perhaps other rogue employees as the suspects and potential defendants, with Telamon always as victim. The anticipated litigation for which an entity or its representative may create documents protectable as work product must be litigation to which one expects to be a party, and there is no indication that anyone feared Telamon might be targeted as a potential defendant in any criminal proceeding."; "The fact that Barnes & Thornburg -- rather than Telamon itself -- hired Chamberlain does not tip the scale to satisfy the anticipation of litigation requirement."; "Chamberlain has not met its burden to show that it was hired, or that it conducted its work, because of any particular matter that Telamon or its lawyers thought likely to lead to litigation involving Telamon. Instead, the evidence demonstrates that Chamberlain was hired, and prepared and gathered the documents in its investigative file, because Telamon had a strong business need to determine how hundreds of thousands of dollars of inventory went missing and which of its employees was responsible, wholly apart from the prospect of any litigation.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 43.803
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: 43.803
Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *35 36 (S.D.N.Y. Oct. 24, 2013)
("BOC has also claimed work-product protection over post-January 28, 2008 documents pertaining to BOC's investigations into the allegations of plaintiffs' demand letter. I already held in the April 9 Order that neither the attorney-client privilege nor work-product protection apply to these documents because the record indicates that after BOC's Chief Compliance Officer 'received plaintiffs' demand letter, he called outside counsel, then set about performing the investigation within the Compliance Department -- without the involvement of any counsel, and not for the purpose of obtaining legal assistance.' Privilege does not apply to 'an internal corporate investigation . . . made by management itself.'" (citations omitted); largely confirmed in a November 19, 2013, opinion)

Case Date Jurisdiction State Cite Checked
2013-10-24 Federal NY B 5/14

Chapter: 43.803
Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 51181, at *51-52 (S.D.N.Y. Apr. 9, 2013)
(finding that neither the attorney-client privilege nor the work product doctrine protected an investigation by a company's compliance department into a terrorism bombing; "The evidence cited by both parties consists solely of an excerpt from the deposition of BOC's Chief Compliance Officer John Beauchemin as well as his declaration. These materials do not show that any attorneys were involved in the preparation of the Shurafa Files, nor that the Files contain attorney work-product or attorney-client communications. As plaintiffs suggest, the cited materials indicate that after Beauchemin received plaintiffs' demand letter, he called outside counsel, then set about performing the investigation within the Compliance Department -- without the involvement of any counsel, and not for the purpose of obtaining legal assistance." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-04-09 Federal NY B 3/14

Chapter: 43.803
Case Name: Global Oil Tools, Inc. v. Barnhill, Civ. A. No. 12-1507 SECTION "J" (4), 2013 U.S. Dist. LEXIS 48226, at *14, *27 (E. D. La. Apr. 3, 2013)
(finding that neither the attorney-client privilege nor the work product doctrine protected a report prepared after a forensic accounting firm's investigation into the possible theft of tools; noting that the corporate secretary filed an declaration, but also noting that the court had found that the declaration "contained merely conclusory statements, which were insufficient for Global Oil to meet its burden to show that the work-product doctrine applied."; ultimately concluding that the report did not deserve privilege or work product protection; "The McGovern Report makes no reference to Bailey [lawyer], nor does it reference either the attorney-client privilege or work-product doctrine. In fact, it does not mention the possibility of civil litigation at all.")

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

Chapter: 43.803
Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *18 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "There is no dispute that the prospect of litigation became real when Walker [deceased employee's husband] retained counsel, but there are no documents in the in camera submission, and no other evidence in the record, suggesting that any change in the focus of the investigation altered the form or nature of, or the documents generated by, the investigation. Attorney Moore's [outside lawyer] involvement, per se, did not convert the Policy-driven investigation into a trial preparation project, and nothing in the documents themselves suggests that the documents assumed a different form or purpose because of the prospect of litigation.")

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

Chapter: 43.803
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: 43.803
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

Chapter: 43.803
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

Chapter: 43.803
Case Name: Woodmen of the World Life Ins. Soc'y v. U.S. Bank Nat'l Ass'n, No. 8:09CV407, 2012 U.S. Dist. LEXIS 12462 (D. Neb. Feb. 2, 2012)
(rejecting privilege and work product assertions by defendant U.S. Bank for documents created during an investigation conducted by Goodwin Procter and Deloitte into U.S. Bank's possible misrepresentations related to mortgage-backed securities; among other things, finding unpersuasive a declaration filed by a bank subsidiary's general counsel Manzoni; "U.S Bank has failed to demonstrate a reasonable anticipation of litigation existed when FAF Advisors retained Goodwin Procter to conduct an independent investigation in early April 2008. The court finds Manzoni's December 22, 2011, declaration to the contrary self-serving in the fact of Woodmen's challenge to U.S. Bank's assertion of the work-product doctrine and not supported by the deposition testimony of Lui.") (emphases added)

Case Date Jurisdiction State Cite Checked
2012-02-02 Federal NE

Chapter: 43.803
Case Name: Devlyne v. Lassen Mun. Util. Dist., Civ. No. S-10-0286 MCE GGH, 2011 U.S. Dist. 119173, at *11 (E.D. Cal. Oct. 14, 2011)
(allowing an employment plaintiff to depose defendant's former general counsel about an investigation conducted by a third party investigator; indicating that plaintiff could explore the purpose of the investigation; "[T]he nature of the investigation is critical. That is, if the investigation is undertaken prior to litigation because it is compelled by company practice, policy, or otherwise by law, the investigation at best has a dual purpose precluding in most instances the assertion of work product immunity.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2011-10-14 Federal CA

Chapter: 43.803
Case Name: Freeman & Gersten, LLP v. Bank of Am., N.A., Civ. A. No. 09-5351 (SRC) (MAS), 2010 U.S. Dist. LEXIS 130167, at *15-16 (D.N.J. Dec. 8, 2010)
(denying privilege and work product protection for most documents created during a bank's internal investigation into a fraudulent check incident; "Additionally, the attorney-client privilege and the work product doctrine do not apply to documents produced in the course of an internal investigation. . . . These documents are generally created not in anticipation of litigation, but instead in order to comply with internal investigative procedures and policies. . . . Therefore, documents such as these are producible, unless a party can further demonstrate that the documents were also created in anticipation of a subsequent litigation.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2010-12-08 Federal NJ

Chapter: 43.803
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; "PS Form 1700 indicates that the information collected 'will be used to record and resolve the circumstances relating to the accident and to evaluate your driving skills,' and notes that, '[a]s a routine use, this information may be disclosed . . . where pertinent, in a legal proceeding to which the Postal Service is a party.'") (emphasis added)

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

Chapter: 43.803
Case Name: Pinstripe v. Manpower, Inc., Case No. 07-CV-620-GKF-PJC, 2009 U.S. Dist. LEXIS 66430, at *21, *24-25 (N.D. Okla. July 28, 2009)
(holding that the work product doctrine did not protect documents created during an investigation by defendant IBM's Ombudsman into IBM's termination of a relationship with another company; among other things, noting that the interviewer did not mention possible litigation to witnesses, and did not assess the witnesses' credibility; "In this instance, IBM's investigation began with a call to the Ombudsman seeking to resolve a business dispute. The Ombudsman's work is part of IBM's routine business practice and is not undertake to prepare for anticipated litigation."; "Here, the record evidence shows that the documents in question were created in the ordinary course of business and for independent business reasons -- a routine Ombudsman investigation prompted by API's March 2005 complaint. This investigation would have occurred – and at least some of the Ombudsman documents would have been created -- even had there been no perceived threat of litigation on IBM's part. Thus, I conclude that IBM has failed to show that the primary motivation for creating the Ombudsman documents was preparation for litigation. This conclusion is consistent with indicia of primary motivation. . . . "[C]ourts may be persuaded that documents are work-product where witnesses are advised up front that their interviews are being conducted for an attorney because litigation is possible, or if summaries of witness interviews offer opinions on the witness's credibility. . . . There is no evidence the API or IBM witnesses were told of possible litigation. Furthermore, the witness summaries I have reviewed in camera offer no opinions of witnesses' credibility. Based on all of the foregoing, I conclude that the Ombudsman documents were not prepared primarily in anticipation of litigation and are, therefore, not work-product protected.") (emphases added)

Case Date Jurisdiction State Cite Checked
2009-07-28 Federal OK

Chapter: 43.803
Case Name: EEOC v. City of Madison, No. 07-C-349-S, 2007 U.S. Dist. LEXIS 70647, at *7 (W.D. Wis. Sept. 20, 2007)
(rejecting the work product protection for documents defendant City created during an investigation into the workplace environment before and after a wrongdoer left employment; "[T]he letter provided to Mayor Cieslewicz explained that it was an investigation of the workplace environment. The introduction to the report explains that '[a]lthough the alleged perpetrator of the inappropriate conduct was permanently out of the workplace, the Mayor said he wanted to ensure that the work environment at Overture in the wake of D'Angelo's departure was respectful and free of harassment.'. . . Also, it is noted that '[t]his investigation was not focused on the specific allegations of misconduct raised by Monica Everson. The investigation of those allegations ended when D'Angelo announced his retirement and immediate departure from the workplace.'. . . These statements do not support that the investigation was performed because of the prospect of litigation, i.e., for the specific allegations raised by Monica Everson, but instead was done for ordinary business purposes, i.e., to ensure the current work environment was respectful and free of harassment."; "Moreover, the City Attorney's office did not itself perform or control the investigation but merely was a source of advice during the investigation and such a role weighs against the investigation being performed because of the prospect of litigation. Attorneys are almost always consulted on a business' in house investigations and, in fact, it is at the core of an attorney's job to generally advise clients about conducting such investigations. If such involvement by an attorney placed an in house investigation under the work-product doctrine then every private employer's in house investigation would fall outside the scope of the EEOC's broad investigatory power.") (emphases added)

Case Date Jurisdiction State Cite Checked
2007-09-20 Federal WI

Chapter: 43.803
Case Name: Allied Irish Banks, P.L.C. v. Bank of America, N.A., 03-Civ. 3748 (DAB) (GWG), 2007 U.S. Dist. LEXIS 4247 (S.D.N.Y. Jan. 23, 2007)
(holding that neither the attorney-client privilege nor the work product doctrine protected materials created during an internal corporate investigation conducted by bank employees and Wachtell and PwC into possible wrongful foreign exchange trading; among other things, noting that the final investigation report did not mention litigation, and was used to make organizational and other business changes in the bank; "This conclusion is supported by the fact that the Report itself contains no suggestion that it was engendered by any concern about litigation. Rather, the Report explains that its purpose was 'to advise the Boards of Directors of [AIB] and Allfirst . . . with respect to losses sustained by Allfirst Financial Inc. and Allfirst Bank . . . in foreign exchange trading.'. . . The Report defines its scope with reference to the 'questions that [the Board] . . . referred to us for our review,'. . . none of which reveal its litigation concerns. Indeed, nowhere in the Report are AIB's litigation concerns adverted to explicitly or implicitly."; "Third, the use to which the Report was ultimately put provides further evidence of why it would have been generated in the same manner irrespective of the potential for litigation. Accordingly to AIB's Group Chief Executive, the AIB board intended the Report to be used to 'address[] culpability, accountability, control systems and organizational issues.'. . . As noted, the Board publicly fired six individuals identified in the Report as 'directly responsible for oversight of Mr. Rusnak . . .'. . . '[C]onsistent with the findings and recommendations of the report,'. . . the Board also adopted a series of 'organisational [sic] changes,' id., to its 'strategy and group structure' as well as to its corporate governance. . . . These actions evidence the importance of the role of Ludwig investigation as a corporate management tool, not as a mechanism to assist in expected litigation."; "In sum, AIB needed Ludwig's Report to provide an appropriate public response to the fraud and apparent mismanagement that had been committed.")

Case Date Jurisdiction State Cite Checked
2007-01-23 Federal NY
Comment:

Key Case


Chapter: 43.803
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: 43.803
Case Name: In re OM Group Securities Litigation, Lead Dkt. No. 1:02CV2163, 2005 U.S. Dist. LEXIS 3967 (N.D. Ohio Feb. 28, 2005)
(finding that materials generated during an Audit Committee's internal investigation into possible inventory wrongdoing conduct by Weil Gotshal and the forensic accounting firm of Ten Eyck deserved privilege protection, but not work product protection; noting the confusion about Weil Gotshal's and Ten Eyck's client; noting among other things that Weil Gotshal's and Ten Eyck's presentation to the corporate board did not mention litigation, and the company released financial statement shortly thereafter; "On March 15, 2004, three months into the investigation, WGM and TEN Eyck gave a presentation to OMG's Board of Directors. There is no evidence that there was any discussion of litigation at the meeting. As a result of the meeting, on March 16, 2004, OMG announced that it anticipated restating its financial statements for 1999 through 2003. This indicates that the business purpose was a significant factor regardless of possible additional litigation. Accuracy of earnings and financial statements is clearly a business matter for all publicly-held corporations, regardless of whether litigation is pending or anticipated. Therefore, this Court concludes that the Audit Committee would have conducted the investigation and prepared the documents regardless of the possibility of additional litigation. The documents are not protected by the work-product doctrine. Thus, they should be produced unless they are subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2005-02-28 Federal OH
Comment:

Key Case


Chapter: 43.803
Case Name: SR Int'l Bus. Ins. Co., 2002 U.S. Dist. LEXIS 11949, at *15
(holding that GMAC (which financed the World Trade Center lessee Silverstein's leases on the World Trade Center) could not claim work product for its investigation after the 9/11 attack on the World Trade Center; "[T]he decision to gather evidence to respond to the concerns of investors was simply good business advice, not a litigation strategy.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal

Chapter: 43.805
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *17 (D. Ore. Feb. 4, 2013)
("Plaintiff alleges police corruption, coercion, and other serious misconduct. The First Stoelk Report and investigation are directly relevant to Plaintiff's claims and contain potentially critical evidence or information that could lead to critical evidence.")

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

Chapter: 43.1201
Case Name: Westridge Townhomes Owners Ass'n v. Great American Ins. Co., Case No. C16-1011RSM, 2018 U.S. Dist. LEXIS 27960 (W.D. Wash. Feb. 21, 2018)
(analyzing privilege and work product issues in what appears to be a first party insurance context; "The Association moves to compel Defendants Great American Assurance Company ('Great American') and Greenwich to produce documents withheld under attorney-client and work product privileges, but which were created as part of Defendants' coverage investigation. . . . The Association relies heavily on Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013). Under Cedell, the Court begins with the 'presumption that there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process,' and that the attorney-client privilege is 'generally not relevant.' Cedell, 295 P.3d at 246. The insurer may overcome the presumption of discoverability by demonstrating that its attorney was not engaged in the quasi-fiduciary functions of investigating and evaluating or processing the claim.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal WA

Chapter: 43.1201
Case Name: 866 East 164th Street, LLC v. Union Mutual Fire Ins. Co., 16-CV-03678 (SN), 2016 U.S. Dist. LEXIS 162703 (S.D.N.Y. Nov. 23, 2016)
(analyzing protections in a first party insurance setting; "[T]he May 4, 2015 email reflecting the loss reserve and the loss adjustment expense ('LAE') amounts . . . should be disclosed. The cases cited by the defendant in support of withholding this email and other such documents are inapplicable. The email does not reference Mr. Gold's name or any analysis conducted by or attributable to Mr. Gold, unlike the documents regarding reserves in Sundance Cruises Corp. v. Am. Bureau of Shipping, which contained 'counsel's recommendation as to the reserve that should be established and as to whether a reserve should be established at all.' No. 87 Civ. 00819 (WK), 1992 U.S. Dist. LEXIS 3759, 1992 WL 75097, at *1 (S.D.N.Y. Mar. 31, 1992). . . . the reserve information at issue here was conveyed fewer than 30 days from the date of the loss; no evidence has been presented that this decision was part of a litigation strategy. Rather, the timing and context of the document make plain that it was made as part of the process of adjusting an insurance claim, which is very different than a defendant setting aside funds for future litigation exposure. Moreover, the document does not contain any methodology, let alone one that can be attributed to Mr. Gold or another attorney, regarding how the loss reserve and the LAE amounts were calculated. Instead, the email simply states the figures without any analysis or opinion.")

Case Date Jurisdiction State Cite Checked
2016-11-23 Federal NY

Chapter: 43.1202
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)
("In general, courts have held that reports of insurance investigators or adjusters prepared during the processing of a claim to determine whether to accept or reject coverage are discoverable since they are prepared in the regular course of business, unless it is demonstrated that the reports are prepared solely in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2018-06-26 State NY

Chapter: 43.1202
Case Name: Westridge Townhomes Owners Ass'n v. Great American Ins. Co., Case No. C16-1011RSM, 2018 U.S. Dist. LEXIS 27960 (W.D. Wash. Feb. 21, 2018)
(analyzing privilege and work product issues in what appears to be a first party insurance context; "[T]he Court concludes that Defendants are not entitled to claim attorney-client privilege for withheld documents involving Doug Houser and created up until that coverage denial letter was finalized and delivered on April 12, 2017. The Court agrees with the Association that nothing in Cedell [Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013)] limits the discoverability presumption to pre-litigation evidence, and Richardson [Richardson v. Gov't Employees Ins. Co., 200 Wn. App. 705, 403 P.3d 115, 121 (Wash. Ct. App. 2017)], is inapposite to the facts of this case as the investigation here occurred after litigation commenced. The Court agrees with the Association that documents containing Mr. Houser's mental impressions regarding the insurers' quasi-fiduciary duties to the insured, including his liability assessments and coverage advice, are subject to production.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal WA

Chapter: 43.1202
Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
(in a third party insurance case, the work product doctrine can protect some documents in the insurance company's files; "While an insurer's decision to decline coverage is usually the point at which the ordinary course of business ends and the anticipation of litigation begins, courts must consider the factual context of each case.")

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

Chapter: 43.1202
Case Name: Legends Mgmt. Co., LLC v. Affiliated Ins. Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017)
(in a first-party insurance case, holding that the lawyer's consultant was inside privilege protection; "In cases involving insurance claims, determining the trigger date for the work product doctrine's application is especially difficult because investigating and evaluating claims is the routine business of insurance companies. As a result, some courts have declined to find communications between insured and insurers protected by work product prior to a coverage decision. Other courts have adopted a case-by-case approach and consider factors such as 'whether the parties were still jointly exploring ways to resolve their differences; whether either party had declared a definite position or both were still considering their positions; whether, once a position was declared, what was done would have been done for business purposes, regardless of the possibility of litigation; and what the parties' routine business practice of investigation was.' 'While not determinative, an insurer's referral of a claim to its attorney [may also be] a significant factor in determining when the insurer anticipates litigation' Third Circuit courts 'have adopted a case by case approach.'"; "While Podvey Meanor was retained in March 2012, this fact is not dispositive of whether Affiliated 'anticipated litigation' at that time. Neither is its reservation of rights letter dated March 19, 2012. This letter did not contain any threat of litigation nor did Affiliated immediately deny coverage. '[A]t a certain point an insurance company's activity shifts from the ordinary course of business to anticipation of litigation.' Here, in camera inspection of the withheld documents shows that Affiliated anticipated litigation following the submission of revised claims by the Legends Parties on April 15, 2014. Prior to this time, Affiliated had yet to take a position on the claims and Podvey Meanor continued to provide legal advice in connection to coverage issues. The following investigative reports or other documents prepared prior to April 15, 2014 are therefore not entitled to work product protection and should be produced to the Legends Parties."; "Here, the evidence establishes that the Legends Parties could not have anticipated litigation until July 21, 2014 - when Affiliated denied coverage of the claims.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal NJ

Chapter: 43.1202
Case Name: By Design LLC v. Samsung Fire & Marine Ins. Co. Ltd., 652412/2016, 2017 N.Y. Misc. LEXIS 2952 (N.Y. Sup. July 28, 2017)
(analyzing privilege issues in a first party insurance context; "The privilege does not apply to basic claims investigations conducted in an insurer's regular course of business, unless the insurer had issued-a coverage denial.")

Case Date Jurisdiction State Cite Checked
2017-07-28 State NY

Chapter: 43.1202
Case Name: Breslow v. American Security Insurance Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133 (S.D. Fla. Feb. 19, 2016)
("[A]pplying work product in the context of insurance claim files in a direct breach of contract action is somewhat 'complex' because 'it is in the ordinary course of business for an insurance company to investigate a claim with an eye toward litigation.'. . . Recognizing this practical reality, many courts, including several in the Southern District of Florida, establish a rebuttable presumption that documents or things prepared before an insurer's final decision on a claim are not work product but that documents and things produced after a claim's denial are work product."; "[A] party involved in a dispute with an insurance carrier may rebut the presumption that documents prepared before the carrier's final decision are not work product by 'specific evidentiary proof of objecting facts.'"; "[I]n determining whether the presumption has been rebutted, the Court may consider the length of time between the alleged date of anticipated litigation and the date suit was actually filed, whether the parties were working towards a resolution and whether there was a clear intention to sue made by one of the parties.")

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

Chapter: 43.1202
Case Name: Cedar Grove Composting Inc. v. Ironshore Specialty Ins. Co., Case No. C14-1443RAJ, 2015 U.S. Dist. LEXIS 171576 (W.D. Wash. Dec. 23, 2015)
("Under Washington law, 'in first-party bad faith insurance suits, Cedell creates a 'presumption that there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process, and that the attorney-client and work product privileges are generally not relevant.'").

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

Chapter: 43.1202
Case Name: Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Case No. 12-81397-CIV-Marra/Matthewman, 2015 U.S. Dist. LEXIS 170738 (S.D. Fla. Dec. 18, 2015)
(analyzing work product issues in a first party coverage dispute; "The District Judge found that the Milinazzo [Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691 (S.D. Fla. 2007)] and Harper [Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D. Ind. 1991)] rebuttable presumptions -- that all documents prepared before the final decision on an insured's claim are not work product, and that documents prepared after the final decision are work product -- should only be applied to insurance companies and not to an insured, such as Sun Capital."; "After engaging in a routine work product analysis unaffected by the Milinazzo and Harper rebuttable presumptions, the Court finds that Sun Capital has failed to meet its burden of demonstrating that the withheld documents were prepared in anticipation of litigation. The Court finds that Sun Capital has failed to establish that it reasonably anticipated litigation as of September 2, 2010, or alternatively as of February, 2011. Rather, the Court finds that Sun Capital reasonably anticipated litigation as of November 2, 2012.").

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

Chapter: 43.1202
Case Name: Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Case No. 12-81397-CIV-Marra/Matthewman, 2015 U.S. Dist. LEXIS 170738 (S.D. Fla. Dec. 18, 2015)
(analyzing work product issues in a first party coverage dispute; "In analyzing Sun Capital's assertion of work product privilege, the Court believes that November 2, 2012 -- the date that Sun Capital received the final denial letter from Twin City -- is also the date that Sun Capital reasonably anticipated litigation. Up until that date, the parties were negotiating and attempting to resolve their differences in the normal course of business. Once that final denial letter was sent and received on November 2, 2012, the battle lines were drawn and it was clear that both parties reasonably anticipated litigation on that date. The date of November 2, 2012 is a fair, common sense and objectively reasonable work product date that is applicable to both Sun Capital and Twin City in this case.").

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

Chapter: 43.1202
Case Name: Great Am. Insurance Co. of New York v. Castleton Commodities International LLC, 15 Civ. 3976 (JSR), 2015 U.S. Dist. LEXIS 144338 (S.D.N.Y. Oct. 15, 2015)
(in a first party insurance case, holding that the key date for work product protection was when the insurance company rejected the first party insured claim; "Discussions between plaintiffs and their attorneys in advance of the plaintiffs' denial of coverage on May 22, 2015 are not privileged unless they are 'primarily or predominantly a communication of a legal character'. . . . As distinct from routine insurance business activities such as investigation into the circumstances from which the claim arose or insurance policy interpretation. . . . Plaintiffs must therefore produce, for example, documents involving communication with counsel who are performing investigative functions.")

Case Date Jurisdiction State Cite Checked
2015-10-15 Federal NY

Chapter: 43.1202
Case Name: Great Am. Insurance Co. of New York v. Castleton Commodities International LLC, 15 Civ. 3976 (JSR), 2015 U.S. Dist. LEXIS 144338 (S.D.N.Y. Oct. 15, 2015)
(in a first party insurance case, holding that the key date for work product protection was when the insurance company rejected the first party insured claim; "The Court holds that in the context of insurance companies' work product assertions, 'if a declination decision has been made, documents subsequently drafted are presumed to have been created in anticipation of litigation; if the claim has not yet been rejected the documents are part of the claim investigation process and are not work product.'")

Case Date Jurisdiction State Cite Checked
2015-10-15 Federal NY

Chapter: 43.1202
Case Name: Beachfront North Condominium Assoc., Inc. v. Lexington Ins. Co., Civ. No. 14-6706 (RBK/JS), 2015 U.S. Dist. LEXIS 102917 (D.N.J. Aug. 5, 2015)
(analyzing work product issues in a first party insurance context; "Given the present record the Court finds that BNCA [Condominium association] has not satisfied its burden of proving that it anticipated litigation as of January 29, 2013, the date BNCA retained counsel. The Court does not accept the notion that simply because BNCA hired an attorney it anticipated litigation. . . . Nor is the Court persuaded by Ms. Whiteley's [Plaintiff's lawyer] Certification that resolution of a claim 'often' requires litigation."; "Given that BNCA did not satisfy its burden to show plaintiff anticipated litigation as of January 29, 2013, the Court must decide the applicable trigger date for the work-product doctrine. The Court concludes that the date BNCA anticipated litigation was September 11, 2014, the date Lexington denied BNCA's claim. Before that date the actions of BNCA and its counsel were geared toward the presentment and evaluation of BNCA's insurance claim. The Court concludes that for the purpose of applying the work-product doctrine BNCA did not anticipate litigation until its insurance claim was denied on September 11, 2014. As noted, a 'remote prospect' or 'inchoate possibility' of litigation does not trigger the work-product doctrine.")

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

Chapter: 43.1202
Case Name: Tate & Lyle Americas, LLC v. Gatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265 (C.D. Ill. July 31, 2015)
("The Court initially finds that Defendant believed litigation was likely to occur on September 21, 2009, shortly after the fire occurred. By this date, Plaintiff and Plaintiff's property insurer had retained subrogation attorneys and expert consultations, had begun gathering and preserving evidence for this action, and had identified all potentially responsible parties and asked them to notify their respective liability insurers."; "The events following the fire exhibited the hallmarks of impending litigation. Multiple parties obtained representation by separate counsel, liability insurers became involved to protect their interests, and communications were funneled through attorneys and reduced to writing. . . . The kind of tests performed during the investigations, the material and procedures used in these tests, and the specific notes produced during those investigations may each reveal Defendant's litigation strategy. Therefore, the Court finds that the research and internal reports conducted during the three joint inspections following the fire were prepared in anticipation of litigation and are protected as work product.")

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

Chapter: 43.1202
Case Name: Linthicum v. Mendakota Insurance Company, Case No. CV415-023, 2015 U.S. Dist. LEXIS 98328 (S.D. Ga. July 28, 2015)
("Often the 'front end' of a claims file, typically generated only by adjusters and not lawyers, is not work product and thus no privilege applies. It is only when the adjuster, while investigating (adjusting) the claim, suspects the case will be litigated (e.g., he discovers that the insured burned his own home down and now seeks to fraudulently collect on his fire insurance) -- and thus, lawyers will probably get involved -- that the privilege comes into play. At that point, after all, the insurer is anticipating litigation, and the law aims to protect the legal analysis of its adjusters and lawyers. That's why the fact and opinion impressions and observation of both attorneys and non-attorney personnel can be work product.")

Case Date Jurisdiction State Cite Checked
2015-07-28 Federal GA

Chapter: 43.1202
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "In the insurance context, determining the primary purpose behind creating a document can be especially difficult as the same document can serve both litigation and ordinary business purposes. . . . There is no bright line rule for making this determination and must be analyzed on a case-by-case basis. In the case of first-party insurance coverage, there is a presumption that it is unreasonable to anticipate litigation before the insurer reaches a final claim decision. . . . Thus, any document prepared before an insurer makes a final decision on its insured's claim is presumed not to be work product. This is particularly true as the insured and insurer's interests are presumed to be aligned up until a final claim decision."; "[T]he Court rejects IAA's assertion that the work product doctrine applies only after July 10, 2013, the date of the final claim decision. While the date that an insurer reaches a final decision on a claim is presumed the time when the parties anticipate litigation, this presumption may be rebutted by specific evidentiary proof of objective facts to the contrary.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 43.1202
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "The February 9 letter is a mere two pages that indicates that the investigation is ongoing, that Travelers will continue to gather necessary information to complete its investigation, but that it reserves any and all rights and defenses under the policy. The letter further informs IAA of its obligation under the 'Duties in the Event of Loss or Damage' provision in the policy, which requires IAA to make every effort to meet the planned completion date for its midfield terminal project. . . . The February 9 letter's content provides no indication of any impending litigation and cannot be reasonably viewed as a change in the relationship between the insured and insurer.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 43.1202
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "Travelers contends that it triggered the work product doctrine when it involved coverage counsel in the claim. However, involving counsel in an investigation and claim decision is too remote to be protected under the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 43.1202
Case Name: Hunte v. Schneider National Carriers, Inc., 1:13-cv-02069-WSD, 2014 U.S. Dist. LEXIS 111886 (N.D. Ga. Aug. 13, 2014)
("A significant number of federal courts have found that documents created after the date coverage is denied are entitled to a presumption of work-product. . . . Other courts consider whether the insurance company has referred the claim to a special investigations unit or hired lawyers in anticipation of litigation after suspicions arise regarding the insured's claim."; "These factors are not present here. Defendant INS hired Custard to investigate the accident approximately forty minutes after the accident occurred on August 6, 2011. . . . It is undisputed that Defendant INS did not deny an insurance claim on or before the dates Custard interviewed Eber and Baker regarding the accident. It is also undisputed that Defendants did not retain counsel or refer an insurance claim to a special investigations unit in anticipation of litigation. The facts here show that the documents Plaintiff seeks were created in the early stages of investigating the accident to determine facts that might be important in later evaluating a claim that might arise from the accident. Documents created by an insurance company in the early stages of the investigation do not qualify as work-product.")

Case Date Jurisdiction State Cite Checked
2014-08-13 Federal GA

Chapter: 43.1202
Case Name: Amerisure Mutual Insurance Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. Apr. 29, 2014)
June 4, 2014 (PRIVILEGE POINT)

"Complicated Work Product Issues Arise in the Insurance Context"

Insurance disputes can trigger many attorney-client privilege and work product issues. The latter sometimes involve insurance companies' work product claims, and the waiver impact of insureds disclosing their work product to their insurance companies.

In Amerisure Mutual Insurance Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. Apr. 29, 2014), the court noted that insurance companies preliminarily assess first-party insurance claims in the ordinary course of their business, and therefore normally cannot claim work product protection. The court acknowledged that an insurance company's date of denial is "generally the boundary between documents that are generated under the work product doctrine and those discoverable as produced in the ordinary course of business." Id. at *7. However, the court then applied a more fact-intensive analysis in denying work product protection for documents the insurance company created after it had issued a reservation of rights letter -- but before the parties "reached an impasse as to their status and obligations under the insurance policies at issue." Id. at *10-11. About a month earlier, in Mine Safety Appliances Co. v. North River Insurance Co., No. 2:09-cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. Mar. 31, 2014), an insured filed a bad faith claim against its insurance company. Among other things, the court held that the insured waived its work product protection through "disclosure of [the insured's] privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims." Id. at *53.

Courts seem to stretch both privilege and work product concepts to protect communications between insureds and insurance companies when they are cooperating -- but disputes between insureds and insurance companies can create unexpected and often counterintuitive work product doctrine application and waiver risks.

Case Date Jurisdiction State Cite Checked
2014-04-29 Federal FL
Comment:

key case


Chapter: 43.1202
Case Name: Mine Safety Appliances Co. v. North River Insurance Co., No. 2:09-cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. Mar. 31, 2014)
June 4, 2014 (PRIVILEGE POINT)

"Complicated Work Product Issues Arise in the Insurance Context"

Insurance disputes can trigger many attorney-client privilege and work product issues. The latter sometimes involve insurance companies' work product claims, and the waiver impact of insureds disclosing their work product to their insurance companies.

In Amerisure Mutual Insurance Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. Apr. 29, 2014), the court noted that insurance companies preliminarily assess first-party insurance claims in the ordinary course of their business, and therefore normally cannot claim work product protection. The court acknowledged that an insurance company's date of denial is "generally the boundary between documents that are generated under the work product doctrine and those discoverable as produced in the ordinary course of business." Id. at *7. However, the court then applied a more fact-intensive analysis in denying work product protection for documents the insurance company created after it had issued a reservation of rights letter -- but before the parties "reached an impasse as to their status and obligations under the insurance policies at issue." Id. at *10-11. About a month earlier, in Mine Safety Appliances Co. v. North River Insurance Co., No. 2:09-cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. Mar. 31, 2014), an insured filed a bad faith claim against its insurance company. Among other things, the court held that the insured waived its work product protection through "disclosure of [the insured's] privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims." Id. at *53.

Courts seem to stretch both privilege and work product concepts to protect communications between insureds and insurance companies when they are cooperating -- but disputes between insureds and insurance companies can create unexpected and often counterintuitive work product doctrine application and waiver risks.

Case Date Jurisdiction State Cite Checked
2014-03-31 Federal PA
Comment:

key case


Chapter: 43.1202
Case Name: Mine Safety Appliances Co. v. The North River Ins. Co., 2:09cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. March 31, 2014)
(analyzing work product issues in a first party bad faith case based on a defendant insurance company's failure to pay for asbestos liability; finding that plaintiff's disclosure of work product to an insurance company which had denied claims waived the work product protection; "Plaintiff's disclosure of privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims is not an action designed to further the work-product doctrine's underlying goals. It is the equivalent of releasing such information to an adversary in order to resolve a legal dispute, which is inimical to protecting and preserving the work product in order to maintain secrecy over the information, strategies and insight it provides.")

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

Chapter: 43.1202
Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 618-19 (D. Kan. 2014)
("[T]his District has rejected a bright line rule that ordinary course of business ends and anticipation of litigation begins as soon as the insurer decides to decline coverage. Whether documents are prepared in anticipation of litigation ultimately requires 'a case-by-case analysis, considering the unique factual context of the given problem.' In an insurance investigation setting, 'whether insurer and adjuster documents were created in anticipation of litigation depends on whether the party seeking protection can point to a definite shift made by the insurer or adjuster from acting in its ordinary course of business to acting in anticipation of litigation.' The same principle holds true here. B&V does not point to a definitive shift from AON (third party) acting as a broker to AON acting as B&V's representative for this litigation. Third, the fact that a document may have been prepared after B&V hired outside counsel does not conclusively show that the documents were prepared in anticipation for litigation. 'Merely retaining counsel does not make documents thereafter prepared protectable under the work product doctrine.'" (citations and footnote omitted))

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

Chapter: 43.1202
Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *20 (E.D. Cal. Dec. 27, 2013)
("After Mr. Equals [claims processor] discovered that an exclusion to coverage could subject the claim to being declined . . ., Hinshaw & Culbertson was directed to prepare a formal legal evalulation on whether BancInsure was entitled to decline a claim by the FDIC . . . . This would indicate that the representation was focused not on litigation, but was in the ordinary course of business to determine whether there was a legal basis to deny the claim. Defendant has failed to meet its burden of presenting specific evidentiary proof of objective facts demonstrating a resolve to litigate.")

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

Chapter: 43.1202
Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *19 (E.D. Cal. Dec. 27, 2013)
("Where it must be determined at what point in time an insurer's activity shifted from the ordinary course of business to anticipation of litigation, the court is to consider 'whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be used to have been prepared or obtained because of the prospect of litigation.' . . . When the insurer argues that it acted in anticipation of litigation prior to denying a claim, it bears the burden of presenting specific evidentiary proof of objective facts demonstrating a resolve to litigate.")

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

Chapter: 43.1202
Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *7 8, *8 n.2 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "As many courts in this Circuit have recognized, determining whether documents prepared by an insurance company were prepared in anticipation of litigation is necessarily a fact-specific inquiry because it is part of an insurance company's everyday business to investigate claims that may later be litigated. . . . Courts do not follow any per se rule in making this factual inquiry."; "Some courts have utilized a presumption that requires the production of documents created before the insurer declines coverage, but that presumption may be rebutted with evidence concerning the insurer's anticipation of litigation.")

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

Chapter: 43.1202
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: 43.1202
Case Name: 34-06 73, LLC v. Seneca Ins. Co., No. 652422/2011, 2013 NY Slip Op. 33048(U), at 3 (N.Y. Sup. Ct. Dec. 4, 2013)
(analyzing privilege and work product protection in a first party insurance context; "Courts have consistently held that when insurance companies use attorneys to investigate claims and decide whether to accept or deny coverage as part of their regular business activities, such use does not cloak the documents in privilege.")

Case Date Jurisdiction State Cite Checked
2013-12-04 State NY B 5/14

Chapter: 43.1202
Case Name: 34-06 73, LLC v. Seneca Ins. Co., No. 652422/2011, 2013 NY Slip Op. 33048(U), at 2 (N.Y. Sup. Ct. Dec. 4, 2013)
(analyzing privilege and work product protection in a first party insurance context; "As an insurance company cannot claim documents are prepared in anticipation of litigation until it makes a firm decision to deny coverage, CPLR [N.Y. Code of Civil Practice Law & Rules] §3101 (c) and (d) (2) do not bar the disclosure of such documents.")

Case Date Jurisdiction State Cite Checked
2013-12-04 State NY B 5/14

Chapter: 43.1202
Case Name: 34-06 73, LLC v. Seneca Ins. Co., No. 652422/2011, 2013 NY Slip Op. 33048(U), at 3 (N.Y. Sup. Ct. Dec. 4, 2013)
(analyzing privilege and work product protection in a first party insurance context; "However, such documents may be protected by attorney-client privilege, even if made before the insurance company decides to deny coverage, if they are primarily of a legal, as opposed to investigatory, character and not related to an insurance company's routine business activities.")

Case Date Jurisdiction State Cite Checked
2013-12-04 State NY B 5/14

Chapter: 43.1202
Case Name: OneBeacon Ins. Co. v. T. Wade Welch & Assocs., Civ. A. H-11-3061, 2013 U.S. Dist. LEXIS 161083, at *14, *16-17, *17-19 (S.D. Tex. Nov. 12, 2013)
(rejecting the "bright-line" analysis in a first party insurance context, and finding that the work product protection started before the insurance company denied the insured's claim; "While the court agrees that often the date an insurer anticipates litigation is the date that it denies coverage, a bright-line rule is inappropriate."; "Here . . ., OneBeacon has pinpointed a 'definite shift from acting in its ordinary course of business to acting in anticipation of litigation.'. . . OneBeacon asserts it attorneys were giving legal advice relating to coverage and other issues because litigation was reasonably anticipated after OneBeacon received the demand letter from DISH [intervenor]. . . . [W]hen one couples the statement that the matter was referred to outside counsel in anticipation of litigation with the contents of the letter received from DISH on December 22, 2010, and considers this information in light of the claims at issue in this litigation, it is entirely reasonable to believe that OneBeacon referred the matter to outside counsel in anticipation of litigation."; "HSB [plaintiff's outside counsel] was hired within one month of OneBeacon's receipt of the letter from DISH requesting that OneBeacon fund, up to the policy limits, DISH's settlement of the Russian Media Group [Russian Media Grp., LLC v. Echostar Commc'ns Co., No. 3:03-cv-1263 (WWE), 2009 U.S. Dist. LEXIS 108356 (D. Conn. Nov. 19, 2009)] Litigation. . . . The court finds that OneBeacon had a 'solid basis' to question coverage when it received DISH's letter and thus could reasonably anticipate litigation from the date it received the letter.")

Case Date Jurisdiction State Cite Checked
2013-11-12 Federal TX B 5/14

Chapter: 43.1202
Case Name: OneBeacon Ins. Co. v. T. Wade Welch & Assocs., Civ. A. H-11-3061, 2013 U.S. Dist. LEXIS 161083, at *12-13 (S.D. Tex. Nov. 12, 2013)
(rejecting the "bright-line" analysis in a first party insurance context, and finding that the work product protection started before the insurance company denied the insured's claim; "Here, the main issue is whether OneBeacon's communications with outside counsel relating to coverage are privileged and protected or whether, instead, OneBeacon's counsel was merely performing the ordinary business functions of an insurance company. . . . [T]he key question is when did OneBeacon shift from merely investigating the claim to anticipating litigation. The Fifth Circuit has noted that litigation pertaining to coverage is appropriately anticipated from the date an insurer has a 'solid basis to question the . . . insurance claim.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-12 Federal TX B 5/14

Chapter: 43.1202
Case Name: Nat'l Union Fire v. TransCanada Energy USA, Inc., Index No. 650515/10, 2013 N.Y. Slip Op. 31967(U), at 6 (N.Y. Sup. Ct. Aug. 15, 2013)
("An insurance company cannot claim documents are prepared in anticipation of litigation until it makes a firm decision to deny coverage. . . . The insurance company has the burden of demonstrating when it decided to deny coverage.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 7/14

Chapter: 43.1202
Case Name: Nat'l Union Fire v. TransCanada Energy USA, Inc., Index No. 650515/10, 2013 N.Y. Slip Op. 31967(U), at 9-10 (N.Y. Sup. Ct. Aug. 15, 2013)
("New York courts have consistently found that [the common interest doctrine] is limited to where the parties reasonably anticipate, or are currently engaged, in litigation. . . . [W]hile the common interest language privilege is an extension of the attorney-client privilege, it follows the contours of the trial preparation materials and work product protections in that it requires litigation or its anticipations. And, an insurance company cannot claim that it anticipates litigation until it makes a firm decision to deny coverage.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 7/14

Chapter: 43.1202
Case Name: National Union Fire Ins. Co. of Pittsburgh v. TransCanada Energy USA, Inc, No. 650515/2010, 2013 NY Slip Op. 31967(U), at 6 (N.Y. Sup. Ct. Aug. 15, 2013)
("An insurance company cannot claim documents are prepared in anticipation of litigation until it makes a firm decision to deny coverage. . . . The insurance company has the burden of demonstrating when it decided to deny coverage.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 4/14

Chapter: 43.1202
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 108637, at *8 (S.D. Ind. Aug. 2, 2013)
(in a first party insurance context, deciding that the insurance company reasonably anticipated litigation two years after a denied coverage, when the insurance company and the insured entered into a tolling agreement; "[I]t is almost always when the coverage is denied that a party reasonably anticipates litigation and thus can avail itself of work-product protection. . . . Documents created before then are considered to be in the ordinary course of business and not work-product.")

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

Chapter: 43.1202
Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *41-42, *44 (D. Ariz. Apr. 29, 2013)
("Defendants argue that the timing of these events -- the prior denial of coverage in 2009, the City's two years of silence during the Valley Aviation litigation, the significant judgment entered against the City, and the August 26, 2011 letter from the City's coverage counsel -- establish that they anticipated litigation in August 2011 when the City contacted them again."; "Although Defendants may have contacted outside counsel in August 2011 in part to review an insurance claim, the facts surrounding the City's renewed request for coverage, the $2,275,642.32 judgment against the City, and the degree of adversity between the parties establish that Defendants were also acting in anticipation of litigation. . . . Therefore, even if Defendants were acting with a dual purpose, there were critical factors in August 2011 that made Defendants act differently toward the City and the documents in the Berger Kahn and CKGH files, dated after August 15, 2011, were created 'because of' anticipated litigation and are work product.")

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

Chapter: 43.1202
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; "Tudor has conceded that the vast bulk of Hannon's [investigator hired by insurance company's lawyer] investigation regarding insurance coverage does not enjoy work product protection. Indeed, it has produced without objection those portions of the reports that it views as relating to the coverage question. This position is consistent with case law regarding work product protection claims as they relate to investigations by insurance companies. . . . Thus, as a general rule, an insurance company's investigation 'undertaken to determine whether there is coverage, whether the claim should be paid, and whether a subrogation claim could be pursued, is not undertaken in anticipation of litigation.'" (citation omitted))

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

Chapter: 43.1202
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 628, 628-29 (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; "Florida state courts have observed that an insurer's claim file is 'not relevant' to a coverage dispute, and have held that documents prepared by an insurer (including claim files and claims-handling manuals) before the final determination of insurance coverage are privileged and work-product protected in coverage actions."; "In contrast, federal courts in Florida generally have found that no work-product protection attaches to an insurer's claim file (even if an employee handling the claim is an attorney, or if the insurer hired outside or monitoring counsel to assist with the claim processing) because the claim file is a business record, prepared in the ordinary course of the insurer's business, until the date on which coverage is denied.")

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

Chapter: 43.1202
Case Name: Draggin' Y Cattle Co. v. Addink, 313 P.3d 451, 461 (Mont. 2013)
(holding that an insurance company was not an insurance company defense lawyer's client, but that the privilege protected communications between the lawyer and the company; "Other courts, applying the federal rule or a state counterpart, have agreed that investigation of potential claims by an insurance company does not automatically satisfy the requirement of 'prepared in anticipation of litigation,' even though a suit may eventually follow.")

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

Chapter: 43.1202
Case Name: 7 Mile & Keystone, LLC v. Travelers Cas. Ins. Co. of Am., Case No. 11-12930, 2012 U.S. Dist. LEXIS 177276, at *10, *10-11 (E.D. Mich. Dec. 14, 2012)
(analyzing a first party insurance situation in which the insurance company concluded that insured had engaged in arson; "Here, as stated above, the communications are not the routine kind of legal advice a lawyer provides to a client. Rather, unlike Leibel [Leibel v. Gen. Motors Corp., 646 N.W.2d 179 (Mich. Ct. App. 2002)], defendant's lawyer was acting as an investigator, not as a lawyer. The advice given by defendant's lawyer was that routinely provided by a claims investigator. The lawyer-client privilege, therefore, does not apply."; "In addition, the emails here were not made in anticipation of litigation, and, therefore are not protected by the work-product doctrine. The emails were part of a normal investigation to decide whether to approve an insurance claim. This is an ordinary business purpose. Thus, the emails were made in anticipation of making a claim decision as opposed to preparation for litigation.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal MI B 0/13

Chapter: 43.1202
Case Name: 7 Mile & Keystone, LLC v. Travelers Cas. Ins. Co. of Am., Case No. 11-12930, 2012 U.S. Dist. LEXIS 177276, at *8-9 (E.D. Mich. Dec. 14, 2012)
(analyzing a first party insurance situation in which the insurance company concluded that insured had engaged in arson; "The unredacted emails between defendant's lawyer and defendant's investigators prior to the denial of plaintiff's claim are not privileged. These emails reveal that defendant's lawyer was acting in the capacity of an investigator, and not a lawyer. Defendant's lawyer clarifies in some of these emails that the information relayed is in furtherance of the investigation. Defendant cannot simply delegate investigative work to a lawyer and claim it is protected by the lawyer-client privilege or work-product doctrine. Accordingly, the pre-denial emails must be disclosed to plaintiff.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal MI B 9/13

Chapter: 43.1202
Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *35 (D. Kan. Nov. 13, 2012)
("Once an insurance claim has been formally denied and litigation commenced, the purpose of further claim analysis regarding that claim and creation of emails regarding such analysis would certainly be for purposes of the litigation. Similarly, once litigation commences, emails regarding obtaining or forwarding information or documents from or for counsel would be created because of the litigation.")

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

Chapter: 43.1202
Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *25 (D. Kan. Nov. 13, 2012)
("In the context of an insurance investigation, 'whether insurer and adjuster documents were created in anticipation of litigation depends on whether the party seeking protection can point to a definite shift made by the insurer or adjuster from acting in its ordinary course of business to acting in anticipation of litigation.'" (citation omitted))

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

Chapter: 43.1202
Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *27 28 (D. Kan. Nov. 13, 2012)
("Opposing the motion, Defendant focuses on when it reasonably anticipated litigation. It argues that its retention of counsel on July 25, 2011, shows it anticipated litigation at that time. But merely retaining counsel does not make documents thereafter prepared protectable under the work product doctrine. Retaining counsel to assist with an investigation and evaluation of insured property five days after its collapse hardly provides reason to find that Defendant has already shifted from its ordinary course of business in investigating a loss to now acting in anticipation of litigation." (footnote omitted))

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

Chapter: 43.1202
Case Name: Quality Time, Inc. v. West Bend Mu.l Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *29 (D. Kan. Nov. 13, 2012)
("[T]his Court has specifically rejected 'a bright line rule that the ordinary course of business ends and anticipation of litigation begins as soon as the insurer decides to decline coverage.' In this case the Court finds no reasonable premise for assuming that litigation was imminent or even reasonably anticipated before the defendant insurer at least determined that it would deny the claim." (citation omitted))

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

Chapter: 43.1202
Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12-1008-JTM-GLR, 2012 U.S. Dist. LEXIS 161703, at *31-32 (D. Kan. Nov. 13, 2012)
("The mere fact it has decided to decline coverage does not mean that all documents thereafter created are because of anticipated litigation -- the ordinary course of business does not simply end with that decision. Likewise, the ordinary course of business does not end with the commencement of litigation. Computer logs, correspondence, internal memoranda and progress notes, and reports of a fire investigator are not created solely for purposes of litigation, even when litigation has commenced or is reasonably anticipated. This is especially true when the same type of documents had been created as part of normal business practices before reasonably anticipating litigation. The creation of such documents provides no indication as to why they were created. In general, the party resisting discovery on grounds of work product must show more than the creation of a document after commencement of litigation." (footnote omitted))

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

Chapter: 43.1202
Case Name: Veitia v. Mulshine Builders LLC, No. COA12 309, 2012 N.C. App. LEXIS 1165 (N.C. Oct. 16, 2012)
(in a first party insurance case, finding that the work product doctrine began to apply when the insurance company denied the claim)

Case Date Jurisdiction State Cite Checked
2012-10-16 State NC B 12/13

Chapter: 43.1202
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *7-9 (W.D. Va. June 15, 2011)
("Donegal argues the pivotal date in this case was November 19, 2008 when it informed the Botkins that it was denying coverage for the two antique automobiles and the Botkins told Donegal they planned to contact an attorney. But a formal denial letter was not mailed to the Botkins until January, 2009. Still, it is clear from a review of the claim file notes that the decision to deny coverage was made and communicated to the Botkins in November, 2008. (footnote omitted) Donegal's position on the issue of coverage did not change after that point. It made no representation that its investigation was ongoing. Cf. Schwarz & Schwarz of Va. v. Certain Underwriters at Lloyd's, London, No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, 2009 WL 1043929, at *3 (W.D. Va. Apr. 17, 2009) (finding work product protection attached as of the date Lloyd's disclaimed coverage, because in camera review revealed investigation was ongoing prior to that date). Rather, Donegal clearly articulated the status of the Botkins' claim as regards the two antique automobiles coverage was denied. Given the particular facts of this case, the court finds November 19, 2008 to be the pivotal point at which the prospect of litigation became 'substantial and imminent,' or 'fairly foreseeable.' See Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 257 (W.D. Va. 1999) (finding litigation was not 'substantial and imminent' until the insurance carrier decided it was not going to pay this claim and notified the insured); see also [State Farm Fire & Cas. Co. v.] Perrigan, 102 F.R.D. [235,] 239 [(W.D. Va. 1984)] (determining that an insurance investigative report was discoverable, in part, because when it was created, the insurer 'was in the process of adjusting the claim . . . . [and] had not decided whether to pay the loss').")

Case Date Jurisdiction State Cite Checked
2011-06-15 Federal VA B 3/16
Comment:

key case


Chapter: 43.1202
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *9-10 (W.D. Va. June 15, 2011)
("Plaintiffs argue that Donegal's December, 2009 settlement offer and the appraisal used to form the basis for that offer (the 'Ferguson appraisal') is not protected work product, because '[i]nsurance companies are litigation machines' and settling claims is part of their ordinary course of business. . . . But the Ferguson appraisal is unlike the Big Crash Appraisal that was obtained in the ordinary course of business during Donegal's initial investigation of the claim, which has been produced to plaintiffs. The Ferguson appraisal plainly was obtained for the sole purpose of making a settlement offer because of the prospect of litigation. Review of the claim file notes reveals Donegal would not have sought a valuation by Ferguson if not for its desire to negotiate a settlement and avoid the risk and cost of litigation. It was not created in the ordinary course of business. Rather, it was created solely because of the impending litigation and is therefore protected by the work product doctrine.")

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

Chapter: 43.1202
Case Name: Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *7, *7-9, *9-10 (W.D. Va. June 15, 2011)
(analyzing privilege and work product issues in a first party insurance case; "With respect to work product claims by insurance companies, '[t]he nature of the insurance business requires an investigation prior to the determination of the insured's claim.' State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984). Thus, there is no bright-line test for when work product protection applies for insurance companies, and instead courts must undertake a case-by-case analysis. Id. at 238. 'This approach realistically recognizes that at some point an insurance company shifts its activity from the ordinary course of business to anticipation of litigation.' Id. The 'pivotal point' is when the probability of litigation becomes 'substantial and imminent,' or stated otherwise, when litigation becomes 'fairly foreseeable.' Id."; "Donegal argues the pivotal date in this case was November 19, 2008 when it informed the Botkins that it was denying coverage for the two antique automobiles and the Botkins told Donegal they planned to contact an attorney. But a formal denial letter was not mailed to the Botkins until January, 2009. Still, it is clear from a review of the claim file notes that the decision to deny coverage was made and communicated to the Botkins in November, 2008. Donegal's position on the issue of coverage did not change after that point. It made no representation that its investigation was ongoing. . . . Donegal clearly articulated the status of the Botkins' claim as regards the two antique automobiles -- coverage was denied. Given the particular facts of this case, the court finds November 19, 2008 to be the pivotal point at which the prospect of litigation became 'substantial and imminent,' or 'fairly foreseeable.'" (footnote omitted); "Plaintiffs argue that Donegal's December, 2009 settlement offer and the appraisal used to form the basis for that offer (the 'Ferguson appraisal') is not protected work product, because '[i]nsurance companies are litigation machines' and settling claims is part of their ordinary course of business. . . . But the Ferguson appraisal is unlike the Big Crash Appraisal that was obtained in the ordinary course of business during Donegal's initial investigation of the claim, which has been produced to plaintiffs. The Ferguson appraisal plainly was obtained for the sole purpose of making a settlement offer because of the prospect of litigation. Review of the claim file notes reveals Donegal would not have sought a valuation by Ferguson if not for its desire to negotiate a settlement and avoid the risk and cost of litigation. It was not created in the ordinary course of business. Rather, it was created solely because of the impending litigation and is thereby protected by the work product doctrine.")

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

Chapter: 43.1202
Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *6-7, *7, *8, *9, *10 (W.D. Va. April 16, 2009)
(analyzing privilege and work product issues in a first party insurance case; "With respect to work product claims by insurance companies, '[t]he nature of the insurance business requires an investigation prior to the determination of the insured's claim.' State Farm Fire and Casualty Co. v. Perrigan, 102 F.R.D. 235,237 (W.D. Va. 1984). Thus, there is no bright-line test for when work product protection applies for insurance companies, and instead courts must undertake a case-by-case analysis. Id. at 238. 'This approach realistically recognizes that at some point an insurance company shifts its activity from the ordinary course of business to anticipation of litigation.' Id. The 'pivotal point' is when the probability of litigation becomes 'substantial and imminent,' or stated otherwise, when litigation becomes 'fairly foreseeable.' Id."; "In this case, Lloyd's contends that work product protection attached on December 5, 2005, when it 'learned that the sprinkler system in [Schwarz's Alta Vista] property was not operational at the time of the fire.'" (internal citation omitted); "For its part, Schwarz argues that work product protection did not apply until October 2, 2007, the date Lloyd's officially disclaimed coverage. Up until that time, Schwarz contends that Lloyd's continually assured it that the investigation was ongoing, and that Lloyd's had not yet determined the status of Schwarz's claim."; "After a thorough review of the facts of this case, as well as the applicable legal standards, the court finds that the date that work product protection attached is October 2, 2007, the date that Lloyd's disclaimed coverage. As Lloyd's own actions indicate, and the court's in camera review of the privilege log documents confirms, Lloyd's was continuing to investigate the claim until it denied coverage. Only after Lloyd's denied coverage could the prospect of litigation be said to be 'substantial and imminent,' or 'fairly foreseeable.'"; "Although the date of insurance company denies coverage does not constitute a 'bright-line,' only after which work product protection can apply, this does not mean that the denial of coverage date cannot constitute the 'pivotal point' when 'an insurance company shifts its activity from the ordinary course of business to anticipation of litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2009-04-17 Federal VA B 7/16

Chapter: 43.1202
Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *7, *8, *9 (W.D. Va. Apr. 16, 2009)
(assessing privilege issues in a first party insurance case; "Thus, there is no bright line test for when work product protection applies for insurance companies, and instead courts must undertake a case by case analysis. . . . 'This approach realistically recognizes that at some point an insurance company shifts its activity from the ordinary course of business to anticipation of litigation.' . . . The 'pivotal point' is when the probability of litigation becomes 'substantial and imminent,' or stated otherwise, when litigation becomes 'fairly foreseeable.'" (citation omitted); "In this case, Lloyd's contends that work product protection attached on December 5, 2005, when it 'learned that the sprinkler system in [Schwarz's Alta Vista] property was not operational at the time of the fire.'"; "For its part, Schwarz argues that work product protection did not apply until October 2, 2007, the date Lloyd's officially disclaimed coverage. Up until that time, Schwarz contends that Lloyd's continually assured it that the investigation was ongoing, and that Lloyd's had not yet determined the status of Schwarz's claim."; "After a thorough review of the facts of this case, as well as the applicable legal standards, the court finds that the date that work product protection attached is October 2, 2007, the date that Lloyd's disclaimed coverage. As Lloyd's own actions indicate, and the court's in camera review of the privilege log documents confirms, Lloyd's was continuing to investigate the claim until it denied coverage. Only after Lloyd's denied coverage could the prospect of litigation be said to be 'substantial and imminent,' or 'fairly foreseeable.'")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA
Comment:

key case


Chapter: 43.1202
Case Name: Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 257 (W.D. Va. 1999)
(analyzing privilege and work product issues in a first party insurance case; "While it is true that the original notice of loss given to Front Royal branded this fire as an act of arson, it did not contain any information regarding who had started the fire. If this court were to accept Front Royal's reasoning, it must assume that Front Royal had decided upon receipt of notice of this loss that it would not pay this claim and it would force the matter to litigation -- without any evidence that its insured had any role in the alleged arson and, thus, without any basis to deny the claim. If that were the case, why did Front Royal wait 14 months to file this action seeking a declaratory judgment that it is not obligated to pay any amount for this fire loss?"; "Instead, Front Royal, in its legal memorandum, admits that, after receiving notice of this loss, it began its own investigation regarding the cause and origin of this fire and the damages caused by the fire. . . . Also, correspondence filed by Front Royal as an attachment to its Memorandum shows that, even though Gold Players retained counsel in April 1997, the parties were still cooperating regarding the investigation of this loss. . . . Again, if Front Royal had determined at this point that it did not intend to pay this claim, it apparently had not notified Gold Players of this decision."; "While there was a distinct possibility that this claim would be litigated from the onset, I find that this possibility was not 'substantial and imminent' until Front Royal decided that it was not going to pay this claim and notified Gold Players of this decision on February 1998. Therefore, I hold that the work-product doctrine does not protect from production those documents which Front Royal created or gathered in the ordinary course of investigating this claim prior to this date."; "Prior to the production, I, however, will allow Front Royal to redact from these documents any information with regard to the reserves it set for this loss. It appears that other district courts have both permitted and denied discovery requests seeking information with regarding to insurers' reserves.”)

Case Date Jurisdiction State Cite Checked
1999-06-07 Federal VA B 7/16

Chapter: 43.1202
Case Name: Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 256, 257, 259 (W.D. Va. 1999)
(analyzing work product issues in a first party insurance context, in which a landlord intervened in an action by a tenant against its insurance company; ultimately finding that the work product doctrine did not protect material the insurance company created while investigating possible arson; inexplicably also finding that the work product doctrine protected witness statements taken by the insurance company's investigator; explaining that "Front Royal [tenant's insurance company] also has objected to producing certain documents in response to Frizzell's [landlord] discovery requests under a claim that these documents are protected from production by the work-product doctrine. These documents fall into three categories: documents created by Front Royal for its use as part of its internal claim file; correspondence and information Front Royal sent to its reinsurance carrier, General Reinsurance Corp.; and statements of potential witnesses which were taken by an investigator who was retained by Front Royal's counsel."; noting that the original notice Front Royal received "stated that the cause of the fire was arson"; nevertheless finding the work product doctrine inapplicable; "While it is true that the original notice of loss given to Front Royal branded this fire as an act of arson, it did not contain any information regarding who had started the fire. If this court were to accept Front Royal's reasoning, it must assume that Front Royal had decided upon receipt of notice of this loss that it would not pay this claim and it would force the matter to litigation -- without any evidence that its insured had any role in the alleged arson and, thus, without any basis to deny the claim. If that were the case, why did Front Royal wait 14 months to file this action seeking a declaratory judgment that it is not obligated to pay any amount for this fire loss?"; "While there was a distinct possibility that this claim would be litigated from the onset, I find that this possibility was not 'substantial and imminent' until Front Royal decided that it was not going to pay this claim and notified Gold Players of this decision on February 1998. Therefore, I hold that the work-product doctrine does not protect from production those documents which Front Royal created or gathered in the ordinary course of investigating this claim prior to this date."; explaining that the documents were created in the ordinary course of business and were thus not protected by the work product doctrine; also concluding that the work product doctrine protected the "investigator's notes taken of witness interviews which were conducted at the direction of Front Royal's counsel"; noting that the tenant had not proven substantial need)

Case Date Jurisdiction State Cite Checked
1999-01-01 Federal VA B 12/09

Chapter: 43.1202
Case Name: N. & S. Lines v. U.S. Fid. & Guar. Co., 46 Va. Cir. 294, 295 (Va. Cir. Ct. 1998)
(addressing work product protection in a first party insurance context; explaining that the insurance company prepared material and engaged in communication while investigating plaintiff's claim for loss based on a refrigerated truck's breakdown; ultimately concluding that the work product doctrine protected the materials; "When the investigation into the refrigeration unit's failure and the resulting loss of the goods occurred, USF&G had already retained counsel. USF&G had commenced an investigation based on Plaintiff's January 30, 1997, claim. This claim was based on the buyer's refusal to accept the goods due to alleged thawing. Counsel was retained on February 5, 1997, during the course of this investigation. When Plaintiff filed its February 24, 1997, claim for the loss of the goods due to the breakdown of the refrigeration unit, USF&G was already consulting with counsel concerning a potential loss claim. Thus, in accordance with its ruling in Whetzel [Whetzel v. McKee, 44 Va. Cir. 315 (1998)], supra, this court finds that the investigatory materials requested by Plaintiff were prepared in anticipation of litigation. As such, they are within the protection of Rule 4:1(b)(3)."; also noting that plaintiff did not make any showing of need)

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

Chapter: 43.1202
Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 243, 244 (Va. Cir. Ct. 1993)
(addressing work product protection in a first party insurance situation; ultimately finding after an in camera review that some of the documents did not deserve work product protection, but that the court needed more facts to analyze other documents; "The difficult issue in many work-product cases, including the case at bar, is to determine when litigation was actually anticipated by the parties. Since the work-product doctrine is intended to grant an attorney the freedom to prepare a case without worrying about improper disclosure, there is no need to apply it where litigation is not yet imminent. This question is particularly troublesome in the insurance context, where the nature of the business requires a routine investigation prior to the determination of any claim. The Fourth Circuit has held that materials prepared by an agent of an insurance company during such a routine examination are made in the 'ordinary course of business,' and not in anticipation of trial, and are therefore discoverable. McDougall v. Dunn, 468 F.2d 468, 473 (4th Cir. 1972)."; "Some federal courts have adopted what amounts to a bright-line rule, applying the work-product privilege only to those documents prepared after the insurance company has decided to deny the claim. Westhemeco, Ltd. v. New Hampshire Insurance Co., 82 F.R.D. 702, 708-09 (S.D. N.Y. 1979)."; ultimately adopting what the court called a "looser test," which "has been said to recognize that at some point, an insurance company shifts its activity from the ordinary course of business to pending litigation, and that no hard and fast rule governs when this change occurs. . . . The critical moment is the point 'where the probability of litigating the claim is substantial and imminent.'. . . Accordingly, the decision to extend or deny the work-product privilege to insurance investigation reports will depend on the facts of each case.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 43.1202
Case Name: State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984)
(analyzing privilege and work product issues in a first party insurance case; "The nature of the insurance business requires an investigation prior to the determination of the insured's claim. Most courts have held that statements taken by an insurance adjuster in the normal course of examining a claim are made during the regular course of the insurer's business, not in anticipation of a trial, and therefore are discoverable.")

Case Date Jurisdiction State Cite Checked
1984-06-14 Federal VA B 7/16

Chapter: 43.1202
Case Name: State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 238, 238-29 (W.D. Va. 1984)
(analyzing privilege and work product issues in a first party insurance case; analyzing several approaches to insurance company documents prepared in the ordinary course of business and anticipation of litigation; "Other district courts have adopted a broader test; it is: '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. But the converse of this is that even though litigation is already in prospect, there is not work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.' 8 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2024 at 198-99 (1970). . . . This approach realistically recognizes that at some point an insurance company shifts its activity from the ordinary course of business to anticipation of litigation, and no hard and fast rule governs when this change occurs. . . . This distinction lies at the pivotal point 'where the probability of litigating the claim is substantial and imminent'" (citation omitted); "Applying this test to the facts sub judice, the court is of the opinion that the report is discoverable. First, the report is relevant to discovery evidence leading to the cause of the fire and the motive. Second, the report of March 21, 1983, was prepared during the ordinary course of investigating the fire that occurred March 12, 1983. At the time Mr. Chance conducted the investigation, State Farm was in the process of adjusting the claim. The insurer had not decided whether to pay the loss let alone whether to bring an action arising from a payment under the policy. Thus, this court concludes that the probability of litigating the claim was not substantial or imminent at the time of Mr. Chance's investigation. The opinions of the investigator likewise are discoverable since the report was prepared during the ordinary course of the insurance company's business and not in anticipation of trial.")

Case Date Jurisdiction State Cite Checked
1984-06-14 Federal VA B 7/16

Chapter: 43.1203
Case Name: Brown v. Nationwide Affinity Ins. Co. of America, 4:17-CV-04176-LLP, 2018 U.S. Dist. LEXIS 109115 (D.S.D. June 29, 2018)
(holding that an insurance company's reserve figure did not deserve work product protection; "Nationwide set forth its position that the reserve information might be discoverable in a third-party bad faith action, but was not discoverable in a first-party bad faith claim."; "While this sentence is lacking somewhat in clarity, it can be read as a concession by Nationwide that the reserve information was not created in anticipation of litigation. At the very least, it is clear that Nationwide did not affirmatively assert that reserve information was created in anticipation of litigation."; "After plaintiffs filed their motion to compel, Nationwide then asserted the work product doctrine in resistance to the motion. . . . . But in that pleading, Nationwide simply makes a bare-bones assertion that the reserves were set in plaintiffs' case in anticipation of litigation. Id. at p. 5. Nationwide provides no affidavit or other support for this factual assertion. Nationwide does not explain who set the reserve or when the reserve was set or subsequently altered or provide any other information about this allegedly protected information."; "Nationwide fails to assert the facts required to (1) establish that the reserves were set in anticipation of litigation and (2) to establish the facts required by Rule 26 to allow the plaintiffs and the court to evaluate its assertion of work product doctrine as a shield to discovery.")

Case Date Jurisdiction State Cite Checked
2018-06-29 Federal SD

Chapter: 43.1203
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; "No doubt, courts, including this one, have held in bad faith insurance claims that communications between in-house counsel and claims adjustor and, related notes in claims file are generally privileged.")

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

Chapter: 43.1203
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; "The situation with the July 6 letter is notably different, and that difference explains plaintiffs' focus on it. At the time that this letter was drafted and mailed, the carrier had not yet hired coverage counsel. Indeed, counsel was not retained until two weeks later."; "In this case, defendant's anticipation-of-litigation assertion misses the mark. The business of the carrier is to provide policy coverage and then to assess whether a claim by an insured is subject to coverage under the terms of the policy. Thus, the July 6, 2012 letter, which acknowledged an obligation to provide a defense and reserved the carrier's rights on indemnity, was necessarily created in the ordinary course of business. At that early stage, the relationship between the carrier and the insured had not ripened into such an adversarial stance as to justify a conclusion that the document was written because of anticipation by ACIS of litigation with Broadrock, and defendant offers no evidence that the substance of the letter was significantly affected because the carrier anticipated litigation. As in numerous other insurance coverage cases, the standard documentation and communications of a carrier in the wake of the filing of a claim under its policy and during claims investigations and assessments is generally deemed ordinary-course-of-business material.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY

Chapter: 43.1203
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; "[W]e note that defendant's contention that it was sufficiently anticipating litigation in July 2012 to trigger work product coverage is in evident tension with its earlier assertion, in connection with the Gates memorandum, that on February 26, 2013 the carrier and Broadrock were pursuing a common interest. If the carrier was preparing as early as July 2012 for litigation with its insured, it cannot plausibly be said that as of February 26, 2013 -- before it had conceded any legal obligation to provide indemnity -- it had resolved its differences with Broadrock so as to be pursuing an identical legal interest with the insured.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY

Chapter: 43.1203
Case Name: Dietz & Watson, Inc. v. Liberty Mutual Ins. Co., Civ. A. No. 14-4082, 2015 U.S. Dist. LEXIS 9815 (E.D. Pa. Jan. 28, 2015)
(in a bad faith insurance case, holding that the insurance company lawyer had jointly represented the insurance company and its insured, so it could not withhold documents from its insured -- although some of the law firm's communication related to coverage issues, on which there was no joint representation; "It has generally been held that the work product doctrine applies to insurance companies confronted with a bad faith claim brought by an insured. A 'mere claim of bad faith is not enough to shatter the work-product privilege.'")

Case Date Jurisdiction State Cite Checked
2015-01-28 Federal PA

Chapter: 43.1203
Case Name: Morrison v. Chartis Property Casualty, Co., Case No. 13-CV-116-JED-PC, 2014 U.S. Dist. LEXIS 58351 (N.D. Okla. April 24, 2014)
(analyzing work product issues in a first party bad faith insurance case; "The Magistrate Judge was correct in ordering the production of post-litigation claim file materials.")

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

Chapter: 43.1203
Case Name: Morrison v. Chartis Property Casualty, Co., Case No. 13-CV-116-JED-PC, 2014 U.S. Dist. LEXIS 58351 (N.D. Okla. April 24, 2014)
(analyzing work product issues in a first party bad faith insurance case; "[I]n a bad faith case, the relevant inquiry with respect to work product privilege is whether the primary motivating purpose behind the creation of the document was to aid in likely future litigation or whether the document was created to determine the validity of the insurance claim."; "The documents listed on Chartis' privilege log generally consist of correspondence and claim file notes. Both types of documents either discuss the underlying tort action then being pursued by Morrison and how it related to her claim, or potential litigation strategy under the auspices that a bad faith claim was potentially foreseeable. Thus, while it is clear from the documents that litigation was at least contemplated, many of the documents are not privileged because the primary motivating purpose behind their creation appears to have been business related, not legal.")

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

Chapter: 43.1203
Case Name: Gov't Emps. Ins. Co. v. Saco,No. CV 2012-5633 (NGG) (MDG), 2013 U.S. Dist. LEXIS 142916, at *7-8 (E.D.N.Y. Oct. 2, 2013)
(selecting a "trigger date" for documents traded by an insurance company in a third-party bad faith claim context; "After review of the publicly filed letters and the e-mails submitted to the Court for in camera inspection, this Court finds that the earliest objective indication that GEICO was contemplating allegations of bad faith is February 11, 2008, when plaintiff's counsel wrote that by not responding to plaintiff's demands, it was 'acting in bad faith regarding it[s] insured.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-10-02 Federal NY B 5/14

Chapter: 43.1203
Case Name: Gronik v. Balthasar, Case Nos. 10-CV-954 & 11-CV-697, 2013 U.S. Dist. LEXIS 138349, at *11-12, *12 (E.D. Wis. Sept. 24, 2013)
(analyzing a first party bad faith insurance case; "[B]oth the state law governing the attorney-client privilege and the federal law governing the work-product privilege allow for discovery of privileged documents in bad faith actions. . . . A plaintiff is not, however, automatically entitled to discover privileged materials. The plaintiff must plead 'that [he or she] was entitled to payment under the insurance contract and allege facts to show that her claim under the contract was not fairly debatable,' i.e. that there was no reasonable basis for its denial, and 'these allegations must withstand the insurer's rebuttal.'" (citation omitted); "I will deny plaintiffs' request for Chubb's [defendant insurer] privileged documents because they have not made this preliminary showing.")

Case Date Jurisdiction State Cite Checked
2013-09-24 Federal WI B 4/14

Chapter: 43.1203
Case Name: Ten Talents Inv. 1, LLC v. Ohio Sec. Ins. Co., Case No. C12-5849RBL, 2013 U.S. Dist. LEXIS 53741, at *2-3 (W.D. Wash. Apr. 15, 2013)
("In bad faith actions brought by an insured against an insurer under the terms of an insurance contract, communications between insurer and its attorney are not privileged with respect to the insured. . . . The time-worn claims of work product and attorney-client privilege cannot be invoked to the insurance company's benefit where the only issue in the case is whether the company breached its duty of good faith in processing the insured's claim. . . . The mental impressions of the insurance company's attorney may be relevant to the disputed issues in a bad faith claim, and not protected by the work product rule.")

Case Date Jurisdiction State Cite Checked
2013-04-15 Federal WA B 3/14

Chapter: 43.1203
Case Name: Estee Lauder Inc. v. One Beacon Ins. Grp., LLC, No. 602379/05, 2013 NY Slip Op. 30762(U), at 19 (N.Y. Sup. Ct. Apr. 15, 2013)
(analyzing issues in a first party bad faith case; "The payment of attorney's fees to a covered client is an ordinary part of an insurers['] business. . . . Thus, these documents cannot be considered attorney work product simply because they were created during midstream of a litigation. Typically, during a litigation, the obligation to pay is unclear and the question to be decided through the litigation, but here, the Appellate Division resolved the question of whether OneBeacon had to pay a subset of Estee Lauder's claim. Thus, the logic of maintaining a categorical post-litigation bar is removed.")

Case Date Jurisdiction State Cite Checked
2013-04-15 State NY B 3/14

Chapter: 43.1203
Case Name: Panattoni Constr., Inc. v. Travelers Prop. Cas.y Co. of Am., Case No. C11-1195RSM, 2012 U.S. Dist. LEXIS 178273, at *4-5 (W.D. Wash. Dec. 14, 2012)
(analyzing a first party bad faith claim; "In the context of a claim of insurance bad faith, both the attorney-client privilege and the work product doctrine have exceptions. In bad faith actions brought by an insured against an insurer under the terms of an insurance contract, communications between insurer and its attorney are not privileged with respect to the insured.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal WA B 9/13

Chapter: 43.1203
Case Name: Panattoni Constr., Inc. v. Travelers Prop. Cas.y Co. of Am., Case No. C11-1195RSM, 2012 U.S. Dist. LEXIS 178273, at *5 (W.D. Wash. Dec. 14, 2012)
(analyzing a first party bad faith claim; "The mental impressions of the insurance company's attorney may be relevant to the disputed issues in a bad faith claim, and not protected by the work product rule.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal WA B 9/13

Chapter: 43.1204
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 only the photographs contained in the investigation report should be produced by Letica to the parties. All of the other documents were part of the post-accident investigation which was not in the ordinary course of business, and they were prepared under direction of attorney Michael for possible subsequent litigation closely related to this case, including the OSHA investigation. Attorney Michael had direct involvement with and controlled the fatal accident investigation from its inception. Also, Letica reasonably anticipated litigation immediately after the accident and communications in the investigation report following the accident fell within the work-product doctrine. The court's in camera review further shows that the Exhibits discussed above to which Letica asserts the attorney-client privilege do in fact contain 'information exchanged in order to facilitate the professional relationship between an attorney and his client with regard to ongoing or potential legal proceedings.'. . . As such, these documents are protected from disclosure by the attorney-client privilege and the work-product doctrine.")

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

Chapter: 43.1204
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; "These cases certainly support Letica's contention that the attorney-client privilege and the work-product doctrine protect communications made between its in-house attorney Michael and Hunter as well as the communications between Michael and the other employees of Letica. After the accident, attorney Michael conducted interviews of eyewitness employees of Letica and others who had knowledge of or facts relating to the event. Interviews were also performed by supervisory employees of Letica at attorney Michael's direction. Hunter then prepared the investigation report at the direction of attorney Michael.")

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

Chapter: 43.1302
Case Name: Costco Wholesale Corp. v. Arrowood Indemnity Co., Civ. Case No. C17-1212RSL, 2018 U.S. Dist. LEXIS 157335 (W.D. Wash. Sept. 14, 2018)
(analyzing work product protection in a third party insurance setting; "Plaintiff sought an order compelling the production of documents withheld on the basis of the attorney-client privilege. Defendant points out that while Washington law and Cedell apply to claims of attorney-client privilege, Fed. R. Civ. P. 26(b)(3) governs its assertions of work-product protection. . . . The work product doctrine protects from discovery 'documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.' Fed. R. Civ. P. 26(b)(3)(A). If a document serves dual purposes, meaning that it was not prepared exclusively for litigation, the issue is whether the document was created 'because of' the litigation as opposed to for some other purpose. . . . Defendant, as the party withholding materials under an assertion of privilege, has the burden of proving that the privilege applies. . . . It has not, however, discussed a single document in the joint submission or otherwise justified its withholdings under Rule 26(b)(3). Defendant, having made no attempt to show that the documents at issue were 'prepared in anticipation of litigation or for trial,' cannot avoid production based on an unsupported claim of work product.")

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

Chapter: 43.1302
Case Name: Monterrozo v. Sandridge, Case No. CL15-1224, 2018 Va. Cir. LEXIS 60 (Va. Cir. April 27, 2019)
(in a third party insurance setting, applying the "bright-line rule" and finding that the work product doctrine did not protect insurance companies investigation file before it retained a lawyer; "Virginia courts differ in their determinations of whether statements made by a Defendant to his insurance company are statements made in anticipation of litigation. Although not exclusive of the many ways in which courts in this Commonwealth have analyzed the issue, it appears that many courts have distinguished between the 'bright-line rule' test and the 'case-by-case' test. The 'bright-line rule' test established in Thomas Organ is as follows: 'any report or statement made by or to a party's agent (other than to an attorney acting in the role of counselor), which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney's legal expertise must be conclusively presumed to have been made in the ordinary course of business.''"; "Lopez v. Woolever, 62 Va. Cir. 198, 201 (Fairfax 2003) (quoting Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 372 (D.C. Ill. 1972))."; "This Court finds the bright-line rule test in Thomas Organ persuasive. In this case, Defendant made statements regarding the accident to a State Farm agent soon after the incident occurred, before Plaintiff gave notice of filing suit, and prior to Defendant retaining counsel. Defendant's counsel in this case is aware of Defendant's statement to the State Farm agent but the statement was not made directly to Defendant's attorney.'")

Case Date Jurisdiction State Cite Checked
2018-04-27 State VA

Chapter: 43.1302
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: 43.1302
Case Name: In re Aggrenox Antitrust Litig., No. 3:14-md-02516, 2018 U.S. Dist. LEXIS 22860 (D. Conn. Feb. 12, 2018)
(rejecting a motion to certify an appeal under 28 U.S.C. § 1291; "The Second Circuit has cautioned that section 1292(b) should 'not . . . be literally construed,' and that 'only 'exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'. . . The party that seeks certification under section 1292(b) 'bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted.'")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal WA

Chapter: 43.1302
Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
(in a third party insurance case, the work product doctrine can protect some documents in the insurance company's files; "The Thomases first argue that they are entitled to the contents of the claims file without restriction given the Missouri Supreme Court's determination that because an insurer/insured relationship is analogous to an attorney/client relationship, the insurer's file belongs to the insured and not the insurer. . . . it is not without limitation. For example, legal advice sought by the insurer regarding the insured's level of cooperation is not considered to be part of the insured's claims file and is therefore not the property of the insured. . . . The attorney-client privilege can thus protect such communications. . . . Further, when a claims investigation shifts toward litigation, those parts of the claims file that are then created in anticipation of the litigation are subject to work product protection.")

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

Chapter: 43.1302
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: 43.1302
Case Name: Baxter International, Inc. v. AXA Versicherung, Case No. 11-cv-9131, 2016 U.S. Dist. LEXIS 172234 (N.D. Ill. Dec. 13, 2016)
("AXA asserts that Baxter cannot show it reasonably anticipated litigation when Mr. Shapiro wrote the Shapiro Memos and the cover emails because AXA had not formally denied coverage at that time. . . . AXA does not cite any case law that supports this proposition. Courts have recognized that the denial of coverage often may constitute the pivotal point at which an insurer deviates from its ordinary course of business and begins to anticipate litigation. . . . But courts also have concluded that, even with respect to an insurer's claim of work product, there is no bright-line rule requiring a formal denial of coverage."; "The record now before the Court thus indicates that, as of 2005, when the Shapiro Memos were written and distributed, Baxter had an articulable claim against AXA that reasonably was likely to lead to litigation. That claim, arising from its insurers' continued refusal to acknowledge or defend the tort claims in the Second Generation Litigation, was the primary reason for the coverage analysis in the Shapiro Memos and the cover emails."; "For all of these reasons, the Court finds that the work product doctrine protects the Shapiro Memos and the cover emails because they were prepared at a time when Baxter reasonably anticipated the possibility of litigation with AXA concerning its coverage obligation for the claims raised in the Second Generation Litigation.")

Case Date Jurisdiction State Cite Checked
2016-12-13 Federal IL

Chapter: 43.1302
Case Name: 866 East 164th Street, LLC v. Union Mutual Fire Ins. Co., 16-CV-03678 (SN), 2016 U.S. Dist. LEXIS 162703 (S.D.N.Y. Nov. 23, 2016)
("[A]s a general rule, an insurance company's investigation 'undertaken to determine whether there is coverage, whether the claim should be paid, and whether a subrogation claim could be pursued, is not undertaken in anticipation of litigation.'")

Case Date Jurisdiction State Cite Checked
2016-11-23 Federal NY

Chapter: 43.1302
Case Name: Hicks v. Pruden, Case No. CL15-10365, 2016 Va. Cir. LEXIS 79 (Va. Cir. May 24, 2016)
(analyzing plaintiff's approach to work product protection for an insurance company's files; noting trend from the "bright-line rule" to the "case-by-case test," but ultimately finding after an in camera review that the withheld insurance company documents would not deserve work product protection under either standard; "The Virginia appellate courts have not established a definitive test to identify whether statements made to insurance claims adjusters are privileged materials prepared in anticipation of litigation or routine discoverable documents prepared in the ordinary course of business. Virginia circuit courts, when conducting such an analysis, have used one of two separate tests: a 'bright-line' rule and a 'case-by-case' test. See Cranley v. Benchmark Mgmt. Co., 78 Va. Cir. 353, 355 (Loudon Cnty. 2009). '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.' (Id.)"; "'Under the bright-line rule, also known as the 'Thomas Organ rule': '[A]ny rule or statement made by or to a party's agent (other than to an attorney acting in the role of counselor), which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney's legal expertise[,] must be conclusively presumed to have been made in the ordinary course of business.'"; "Lopez v. Woolever, 62 Va. Cir. 198, 201 (Fairfax Cnty. 2003) (emphasis added) (quoting Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 372 (D.C. Ill. 1972)); cf. McKinnon v. Doman, 72 Va. Cir. 547, 547 (Norfolk 2007) (holding that a statement is not prepared in anticipation of litigation 'unless either the defendant had retained counsel or plaintiff's counsel had notified the defendant or his insurer of his retention before the statement was made' (emphasis added))."; "Defendants argue that the claims adjuster 'first requested legal representation via an e-mail to Williams Mullen at 8:36 a.m. on April 15, 2015 -- less than two hours after the accident' -- and that 'Pruden's written narrative [was created] at or around the same time.'. . . The text of the brief e-mail provided by Defendants, which was from the claims adjuster to Williams Mullen, states: 'Hi Bob, I have a case I would like to discuss with you. Please call me at your convenience.'. . . The Court does not find this language tantamount to actually involving an attorney in the case, at least as intended by the work product doctrine."; "Here, it is clear that Pruden's statements to the Sentara-affiliated claims adjuster were not prepared in anticipation of litigation. Defendants have not provided any evidence that: the statements were requested by or prepared for an attorney; the statements otherwise reflected the employment of an attorney's legal expertise; Pruden had retained counsel; or the Estate's counsel had notified Pruden or his insurer of his retention before the statements were made."; "The Court finds that, pursuant to the bright-line rule, Pruden's recorded statements were not prepared in anticipation of litigation."; "In the case-by-case test, 'courts ask whether 'a reasonable person in the shoes of the party resisting discovery would have anticipated or reasonably foreseen litigation at the time the material was produced.' Piland v. White, 85 Va. Cir. 45, 47-48 (Chesapeake 2012) (quoting multiple Virginia circuit court cases). Judge Arrington of the Chesapeake Circuit Court -- relying heavily on a prior opinion by Judge Frank of the Newport News Circuit Court -- identified certain factors she used to analyze whether litigation was anticipated or reasonably foreseeable under the case-by-case test. Id. at 48 (citing Ring v. Mikris, Inc., 40 Va. Cir. 528 (Newport News 1996)). The Piland court considered the following factors: '(1) the apparent severity of the plaintiff's injuries; (2) whether it is immediately apparent that any negligence would likely lie solely with the company's insured; (3) whether the plaintiff notified the defendant that the plaintiff would pursue a claim (or that the plaintiff lacked the resources to pay for his medical expenses); (4) whether defendant was notified that plaintiff had retained counsel; (5) whether the person who took the statement is charged with safety responsibilities, or whether the investigation was made pursuant to policy, statute, regulation, or other non-litigation purpose; (6) whether a statute clearly implicates the insured with liability; (7) whether the insurer investigated the plaintiff's claim in the manner he investigated all other claims with normal procedures; and (8) whether the documents were produced before an insurer formally denied a claim.'"; "Id. at 48. The Court finds these factors instructive in analyzing the facts of this case."; "Although the majority of Virginia circuit courts applied the bright-line rule at one time, the current trend appears to have shifted toward applying the case-by-case test. Compare Lopez v. Woolever, 62 Va. Cir. 198, 201-02 (Fairfax Cnty. 2003) (noting that, as of 2003, "[t]he majority of Virginia Circuits endorse the Thomas Organ rule") with Piland v. White, 85 Va. Cir. 45 (Chesapeake 2012); Lowe v. Norfolk & S. Ry., 81 Va. Cir. 221 (Hopewell 2010); Cranley v. Benchmark Mgmt. Co., 78 Va. Cir. 353 (Loudoun Cnty. 2009); Veney v. Duke, 69 Va. Cir. 209 (Fairfax Cnty. 2005); Wilson v. Norfolk & Portsmouth Belt Line R.R., Co., 69 Va. Cir. 153 (Portsmouth 2005); Lopez, 62 Va. Cir. 198 [sic]. . . however, the Court need not decide which test to apply because both tests indicate that the statements were provided to the claims adjuster in the normal course of business and not in anticipation of litigation. The statements therefore are not protected from discovery by the work product doctrine."; "Additionally, an in camera review of the recorded statements did not reveal anything indicating that they were prepared in anticipation of litigation or were anything but routine post-accident statement-gathering.")

Case Date Jurisdiction State Cite Checked
2016-05-24 State VA
Comment:

key case


Chapter: 43.1302
Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
(""The investigative report produced by Specialty Claims and provided to Amerisure is 30 pages long, including a three-page report, approximately 25 photographs of the scene of the accident and the surrounding area, with text descriptions, and a copy of a police report regarding the incident. The final page appears to be a hand-drawn map of the area, though it is unreadable due to photocopying or scanning."; "The reasoning set forth above in finding that Chapman's recorded statement is not protected by the work-product doctrine applies equally to the Specialty Claims report. Chapman has not met his burden of showing that the report was prepared in anticipation of litigation. The Specialty Claims report was prepared approximately one week after the accident. The Court is not aware of any factors known by Amerisure at that time that would have established a subjective anticipation of litigation, as opposed to an investigation in the usual course of an insurer's business. "[T]here is no hard and fast rule as to when the insurance company's activity shifts from the ordinary course of business to anticipation of litigation.'. . . However, the party seeking work-product protection must show that 'the possibility of litigation had changed from a theoretical possibility to a real possibility.'. . . Chapman has not done so here. Specifically, he has not shown that the Specialty Claims report was sought and prepared as a result of 'an objectively reasonably subjective belief that litigation was a real possibility.'")

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

Chapter: 43.1302
Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
("The Court has carefully reviewed the recorded statement and the affidavit of Amerisure's adjuster, Trevor Byram. The Court recognizes the existence of factors that weigh in favor of finding that the statement was prepared in anticipation of litigation. For example, there were four cars and a number of individuals involved in the motor vehicle accident, and it received at least some media attention on the day that it occurred. Additionally, Byram's sworn testimony is that on the day after the accident, Amerisure had a belief that the accident may result in litigation."; "Nonetheless, the Court finds that the evidence is insufficient to support a conclusion that the report was prepared in anticipation of litigation."; "Reviewing claims is the very nature of insurance companies' business. Neither Byram's affidavit nor the additional information set forth by Chapman in his response is sufficient to differentiate Amerisure's treatment of this investigation from any other potential or existing claim. Moreover, the police report in Amerisure's possession corroborated Chapman's account of the accident by stating that Young was at fault, which makes it less likely that Amerisure anticipated that Young would initiate litigation. Framing this issue in light of the Sixth Circuit's two-part Roxworthy [United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)] test, Chapman has not shown that Amerisure had a subjective anticipation of litigation; therefore, the Court cannot conclude that there was an objectively reasonable anticipation of litigation.")

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

Chapter: 43.1302
Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
("The investigative report produced by Specialty Claims and provided to Amerisure is 30 pages long, including a three-page report, approximately 25 photographs of the scene of the accident and the surrounding area, with text descriptions, and a copy of a police report regarding the incident. The final page appears to be a hand-drawn map of the area, though it is unreadable due to photocopying or scanning."; "The reasoning set forth above in finding that Chapman's recorded statement is not protected by the work-product doctrine applies equally to the Specialty Claims report. Chapman has not met his burden of showing that the report was prepared in anticipation of litigation. The Specialty Claims report was prepared approximately one week after the accident. The Court is not aware of any factors known by Amerisure at that time that would have established a subjective anticipation of litigation, as opposed to an investigation in the usual course of an insurer's business. '[T]here is no hard and fast rule as to when the insurance company's activity shifts from the ordinary course of business to anticipation of litigation.'. . . However, the party seeking work-product protection must show that 'the possibility of litigation had changed from a theoretical possibility to a real possibility.'. . . Chapman has not done so here. Specifically, he has not shown that the Specialty Claims report was sought and prepared as a result of 'an objectively reasonably subjective belief that litigation was a real possibility.'")

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

Chapter: 43.1302
Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
("The Court has carefully reviewed the recorded statement and the affidavit of Amerisure's adjuster, Trevor Byram. The Court recognizes the existence of factors that weigh in favor of finding that the statement was prepared in anticipation of litigation. For example, there were four cars and a number of individuals involved in the motor vehicle accident, and it received at least some media attention on the day that it occurred. Additionally, Byram's sworn testimony is that on the day after the accident, Amerisure had a belief that the accident may result in litigation."; "Nonetheless, the Court finds that the evidence is insufficient to support a conclusion that the report was prepared in anticipation of litigation."; "Reviewing claims is the very nature of insurance companies' business. Neither Byram's affidavit nor the additional information set forth by Chapman in his response is sufficient to differentiate Amerisure's treatment of this investigation from any other potential or existing claim. Moreover, the police report in Amerisure's possession corroborated Chapman's account of the accident by stating that Young was at fault, which makes it less likely that Amerisure anticipated that Young would initiate litigation. Framing this issue in light of the Sixth Circuit's two-part Roxworthy [United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)] test, Chapman has not shown that Amerisure had a subjective anticipation of litigation; therefore, the Court cannot conclude that there was an objectively reasonable anticipation of litigation.")

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

Chapter: 43.1302
Case Name: Smith v. Progressive Specialty Ins. Co., 2:15-cv-528, 2015 U.S. Dist. LEXIS 167618 (W.D. Pa. Dec. 15, 2015)
(analyzing protections in a bad faith insurance case, which the court analogized to a third party claim; "In order determine whether the work-produce privilege applies, then, the court must first assess when Defendant reasonably anticipated litigation, such that it shifted its activities from investigating its claim to preparing a defense for litigation.").

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

Chapter: 43.1302
Case Name: Christiana Care Health Services, Inc. v. PMSLIC Ins. Co., Civ. A. No. 14-1420-RGA, 2015 U.S. Dist. LEXIS 152178 (D. Del. Nov. 10, 2015)
(analyzing privilege and work product issues in an insurance bad faith case, in which an insured doctor assigned his claim against his insurance company to the hospital; holding that the insurance company cannot claim privilege to avoid discovery; "If an insurer retains counsel to represent the common interest of the insurer and its insured in defending a lawsuit against the insured, the insurer cannot claim attorney-client privilege or work product protection for its communications with counsel related to that representation. . . . Attorney-client privilege and work product protection likewise may not be asserted against the insured's assignee.").

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal DE

Chapter: 43.1302
Case Name: Doehne v. EmpRes Healthcare Management, LLC, No. 46467-5-II, 2015 Wash. App. LEXIS 1909 (Wash. App. Aug. 11, 2015)
(holding that the attorney-client privilege and the work product doctrine protected a post-accident investigation following a slip and fall accident at a health facility; noting that the facility's in-house lawyers directed the investigation; "The purpose of EmpRes' risk management position 'is to act as a conduit between the legal department and insurers regarding liability issues, including workers' compensation and third-party liability, with the goal of avoiding litigation and minimizing liability.'. . . The record shows that Clarno's report was prepared to assist in-house counsel in addressing issues of liability and potential litigation.")

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

key case


Chapter: 43.1302
Case Name: Doehne v. EmpRes Healthcare Management, LLC, No. 46467-5-II, 2015 Wash. App. LEXIS 1909 (Wash. App. Aug. 11, 2015)
(holding that the attorney-client privilege and the work product doctrine protected a post-accident investigation following a slip and fall accident at a health facility; noting that the facility's in-house lawyers directed the investigation; "The purpose of EmpRes' risk management position 'is to act as a conduit between the legal department and insurers regarding liability issues, including workers' compensation and third-party liability, with the goal of avoiding litigation and minimizing liability.'. . . The record shows that Clarno's report was prepared to assist in-house counsel in addressing issues of liability and potential litigation.")

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

key case


Chapter: 43.1302
Case Name: Continental Resources, Inc. v. C&D Oilfield Services, Inc., Case No. 1:13-cv-154, 2015 U.S. Dist. LEXIS 94061 (D.N.D. July 20, 2015)
("The Eighth Circuit has yet to apply the foregoing test in a case involving a presuit investigation by a liability insurance carrier. And, the district courts within the Eighth Circuit have reached what arguably may be different results even though professing to follow the Simon test."; "In this case, Stevahn stated in an affidavit that the work she did was in anticipation of litigation. While the court need not blindly accept this affidavit testimony, no investigation was made by EMC in the year following the spill and fire and it was only after Continental made its demand, authored by a senior litigation attorney, that Stevahn retained an attorney for C&D not long after she gathered some initial information and retained an expert. In light of these facts and circumstances, the court concludes that, at least as of the time that counsel was hired for C&D, the work of Stevahn and EMC thereafter was 'in anticipation of litigation.' Likewise, while it may be a closer question, the court believes the same is true for the initial work by Stevahn and EMC, given the preexisting demand by Continental and the fact this involved a third-party claim for liability.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal ND

Chapter: 43.1302
Case Name: Harleysville Worchester Insurance Company v. Sharma, CV 14-2474 (LDW), 2015 U.S. Dist. LEXIS 67633 (E.D.N.Y. May 26, 2015)
("[W]here documents are generated 'after the insurer has referred the matter to counsel, it can generally be said that the insurer is fairly anticipating litigation, and thus work product immunity will typically attach.'. . . Here, the separate claim file relating to the underlying action was not opened until after Harleysville assigned counsel to defend its insured, contains claim notes memorializing communications with assigned counsel which were generated after the insurer referred the matter to counsel, and sets forth Harleysville's strategy in prosecuting this declaratory judgment action.")

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

Chapter: 43.1302
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("Many of the emails described in the privilege log suggest that they are not related to legal advice but to the insurer's business of valuing and paying settlement claims, e.g., '27. 3/27/15 email from Stanley to Zaleski on settlement authority.' Communication from an insurance adjuster providing settlement authority to trial counsel is not the solicitation of legal advice. The description furnished by counsel does not support the claim of privilege as to that document. In an abundance of caution, however, because it is a communication between Allstate and its lawyer, the Court will not order production of the remaining items listed on the Privilege Log at this time and instead orders that those materials be produced for in camera review by the Court. Any such documents that are not communications made for the primary purpose of securing or providing legal advice, as contrasted with the investigation and adjustment of a claim that represents a regular business function in the insurance industry and can be done by individuals not licensed to practice law, will not be deemed privileged.")

Case Date Jurisdiction State Cite Checked
2015-01-01 State VA

Chapter: 43.1302
Case Name: Collazo v. Balboa Ins. Co., Case No. C13-892 JCC, 2014 U.S. Dist. LEXIS 109336 (W.D. Wash. Aug. 7, 2014)
("Where an attorney is engaged in the tasks of 'investigating and evaluating or processing the claim' during the claims adjustment process . . . The presumption against the attorney-client privilege applies and the insurer may not raise the shield of privilege. However, where an attorney instead engages in core attorney-client communications with the insurer, such as 'providing the insurer with counsel as to its own potential liability,' there is no presumption against the attorney-client privilege. . . . Here, upon review of the unredacted documents in camera, the Court finds that the relevant entries did not relate to the investigation, evaluation, or processing of the claim. Instead, they consist solely of statements that are an attorney's work-product, or are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-08-07 Federal WA

Chapter: 43.1302
Case Name: AU Electronics, Inc. v. Harleysville Group, Inc., Case No. 13 C 5947, 2014 U.S. Dist. LEXIS 72862 (N.D. Ill. May 28, 2014)
(analyzing whose in a third party insurance coverage dispute; "AU argues that no work-product protection can be asserted by Harleysville for any materials prepared before the coverage denial was communicated to AU, citing Lagestee-Mulder, Inc. v. Consolidated Ins. Co., No. 09 C 7793, 2010 U.S. Dist. LEXIS 121676, 2010 WL 4781461 (N.D. Ill. Nov. 17, 2010). . . . As a general proposition it makes sense that an insurer is unlikely to be working in anticipation of a specific threat of litigation prior to communicating a denial. Looking at the cases upon which the Lagestee-Mulder decision relies, however, suggests that the general rule should not be interpreted to set a hard and fast time line.")

Case Date Jurisdiction State Cite Checked
2014-05-28 Federal IL

Chapter: 43.1302
Case Name: Willis v. Allstate Insurance Co., Civ. A. No. 2:13-cv-60-KS-MTP, 2014 U.S. Dist. LEXIS 64963 (S.D. Miss. May 12, 2014)
(analyzing the scope of waiver when a party relies on a coverage opinion on a first party insurance context; "Often, an insurer begins to anticipate litigation when it denies coverage, but a bright-line rule has not been established in the Fifth Circuit for determining when an insurer anticipates litigation. The Fifth Circuit has stated that litigation pertaining to insurance coverage is appropriately anticipated from the date an insurer has a 'solid basis to question the . . . insurance claim.'"; "Allstate has not pinpointed a definite shift from acting in its ordinary course of business to acting in anticipation of litigation. Allstate's conclusory statement that coverage opinions are not prepared in the ordinary course of business is not enough to show that Allstate anticipated litigation and that the work product doctrine should protect communications between Allstate and Attorney Waldrop regarding Plaintiff's claim.")

Case Date Jurisdiction State Cite Checked
2014-05-12 Federal MS

Chapter: 43.1302
Case Name: Bowling v. Appalachian Elec. Supply, Inc., Case No. 3:13-cv-27347, 2014 U.S. LEXIS 49531 (S.D.W. Va. April 10, 2014)
(analyzing work product issues in a third party insurance context; "[T]he first factor weighs against a finding of work product. The statement at issue is nothing more than a verbatim transcript of Mr. Prince's interview taken by an insurance adjuster collecting basic information regarding the accident. . . . The official accident report had not yet been filed, and the extent of the child's injuries was unknown. As such, there simply was not enough information available upon which to form a reasonable expectation of litigation. . . . Unless the driving force behind the creation of Mr. Prince's recorded statement was the expectation of litigation, the statement is not work product.")

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

Chapter: 43.1302
Case Name: Bowling v. Appalachian Elec. Supply, Inc., Case No. 3:13-cv-27347, 2014 U.S. LEXIS 49531 (S.D.W. Va. April 10, 2014)
(analyzing work product issues in a third party insurance context; "Simply put, when pending or impending litigation is the compelling reason for creating a document, that document is work product. On the other hand, when a document is prepared in the ordinary course of business, or for reasons other than specifically for litigation, the document is not work product, even though the preparer may ultimately resort to litigation and use the document."; "This analysis must be made on a 'case-by-case' basis, considering the following relevant factors: 'the nature of the documents, the nature of the litigation, the relationship between the parties, and any other fact peculiar to the case,' the involvement of counsel, and the time at which the document is created.")

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

Chapter: 43.1302
Case Name: Bowling v. Appalachian Elec. Supply, Inc., Case No. 3:13-cv-27347, 2014 U.S. LEXIS 49531 (S.D.W. Va. April 10, 2014)
(analyzing work product issues in a third party insurance context; "Regarding the next factor, the circumstances of this case do not favor a finding of work product. First, there was nothing extraordinary about the accident itself. The parties agree that the accident was a rear-end collision that occurred on a rainy day when the pavement was wet. Fortunately, there were no mortalities, and the accident was promptly investigated by the State Police and witnessed by at least two independent witnesses. None of the adults involved in the accident was seriously injured. While a child was hurt, the extent of his injuries was not initially known. No one apparently rushed out and hired an attorney, and the drivers of both vehicles cooperated with the police and the insurance company's adjuster. No one was arrested, charged with a crime, or put in jail. In fact, Travelers was not even notified of the accident until five days after it occurred. Certainly these facts do not raise any red flags, or immediately signify impending litigation.")

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

Chapter: 43.1302
Case Name: Bowling v. Appalachian Elec. Supply, Inc., Case No. 3:13-cv-27347, 2014 U.S. LEXIS 49531 (S.D.W. Va. April 10, 2014)
(analyzing work product issues in a third party insurance context; "[T]he timing of the statements suggests that they were obtained as part of the insurance company's initial fact-finding, rather than in anticipation of litigation. Moreover, Defendants have failed to offer any specific facts demonstrating that the adjuster took Mr. Prince's statement on September 6 for a purpose other than ordinary claim development.")

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

Chapter: 43.1302
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: 43.1302
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *17 (D.D.C. Dec. 23, 2013)
("While drafts and internal discussions of a status update for an insurance company may, in the typical case, fail to qualify as attorney work product, it takes little imagination to see how such documents could be carefully crafted 'in anticipation of litigation' in this instance, during an ongoing dispute involving millions of dollars between an insurer and an insured.")

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

Chapter: 43.1302
Case Name: Mosley v. Am. Home Assurance Co., Case No. 13-20259-CIV-KING/GARBER, 2013 U.S. Dist. LEXIS 168016, at *6 (S.D. Fla. Nov. 26, 2013)
(analyzing privilege protection in a first party insurance situation; "In doing so, American Home leaves unrebutted the presumption that a document or thing is not work product if it was prepared before a final decision was reached on an insured's claim.")

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

Chapter: 43.1302
Case Name: Norman v. Odyssea Marine, Inc., Civ. A. No. 13-6690 Section: "A" (4), 2014 U.S. Dist. LEXIS 69063 (E.D. La. May 20, 2013)
(finding that witness statements did not deserve work product protection; "After considering the arguments of the parties, the Court finds that these documents are not protected by the work product doctrine as counsel for Odyssea contended, because 'documents created by [an insurer, its representative, or a claims adjuster] tend not to be protected by the work product doctrine if they were prepared as a 'more or less routine investigation of a possibly resistible claim.'. . . Here, counsel for Odyssea indicated that Fontenot was the person who hired the independent adjuster, and not Gibbens, the in-house counsel. Therefore, Fontenot, who routinely handled safety related matters of Odyssea, was not likely preparing for litigation specifically to Norman's injuries, but rather, operating in the ordinary course of business by obtaining an independent adjuster to assess the severity of the claims. As such, as this Court has previously held, a 'statement taken from a witness by insurance claims adjuster [is] routine and not protected by the work product doctrine.'")

Case Date Jurisdiction State Cite Checked
2013-05-20 Federal LA

Chapter: 43.1302
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 *35 (D. Ariz. Apr. 29, 2013)
("Materials prepared as part of insurance claims investigations are generally not considered work product due to the industry's need to investigate claims.")

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

Chapter: 43.1302
Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 403 n.4 (Va. Cir. Ct. 2013)
(holding that a statement from the defendant obtained by the defendant's insurance company's agent did not deserve work product protection, because there was no attorney-client relationship, and because the statement was obtained in the ordinary course of the insurance company's business; "In the present case, the Defendant's statement was taken by an insurance adjuster for the Defendant's insurance company prior to the engagement of counsel. If the statement had been taken by her attorney, or by an agent of her attorney, the statement would be protected by the principle of attorney-client privilege and would not be subject to discovery under Rule 4:1(b)(1) or the exception of Rule 4:1(b)(3).")

Case Date Jurisdiction State Cite Checked
2013-04-05 State VA

Chapter: 43.1302
Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 403, 404 (Va. Cir. Ct. April 5, 2013)
(holding that in a statement from the defendant obtained by the defendant's insurance company's agent did not deserve work product protection, because there was no attorney-client relationship, and because the statement was obtained in the ordinary course of the insurance company's business; "The statement at issue was taken by the agent of the Defendant's insurance company prior to the employment of counsel. No additional facts supporting the allegations of work product were presented. Defendant's counsel argues that the Defendant's statement is not discoverable under Rule 4:1(b)(3) because it was taken in anticipation of litigation. Without establishing that the statement is the work product of counsel, the argument that the statement was taken in anticipation of litigation is irrelevant. Rule 4:1(b)(3) is not engaged without the finding that the material collected is encompassed within the work product of an attorney."; "Any effort to expand the work-product doctrine to include the work of the insurance adjuster prior to retention of counsel requires a deliberative and participative process either by the General Assembly or amendment of the Rules of Court by the Virginia Supreme Court to assure a careful balance between advocacy and truthfulness. In the absence of a deliberate expansion of the work product doctrine, this court finds that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product.")

Case Date Jurisdiction State Cite Checked
2013-04-05 State VA

Chapter: 43.1302
Case Name: Draggin' Y Cattle Co. v. Addink, 312 P.3d 451, 461 (Mont. 2013)
(describing the court's earlier holding in Cantrell v. Henderson, 718 P.2d 318 (1986); "We refused to recognize work product protection for the statement of an employee to the employer's insurance company. We noted that no complaint had been filed and no attorney had been hired at the time the statement was given, and the statement was not given at the request of an attorney. Because '[a]n insurance company claim file is not the same as an attorney's claim file, for purposes of the work product rule,' we held that the statement was not 'made in anticipation of litigation' as contemplated by Rule 26(b)(3)." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State MT 5/14

Chapter: 43.1302
Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 403, 404 (Va. Cir. Ct. 2013)
("The statement at issue was taken by the agent of the Defendant's insurance company prior to the employment of counsel. No additional facts supporting the allegations of work product were presented. Defendant's counsel argues that the Defendant's statement is not discoverable under Rule 4:1(b)(3) because it was taken in anticipation of litigation. Without establishing that the statement is the work product of counsel, the argument that the statement was taken in anticipation of litigation is irrelevant. Rule 4:1(b)(3) is not engaged without the finding that the material collected is encompassed within the work product of an attorney."; "Any effort to expand the work-product doctrine to include the work of the insurance adjuster prior to retention of counsel requires a deliberative and participative process either by the General Assembly or amendment of the Rules of Court by the Virginia Supreme Court to assure a careful balance between advocacy and truthfulness. In the absence of a deliberate expansion of the work product doctrine, this court finds that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State VA

Chapter: 43.1302
Case Name: Tela Hansom-Pitt v. Hughes, CL12000260-00, Va. Law. Wkly. 012-8-144 (Prince William Cir. Ct. Sept. 21, 2012)
(holding that the work product doctrine protected documents reflecting communications between an insurance company and its insured after an accident, and that the plaintiff could not overcome the work product protection covering the insured's interviews noting the insured's guilty plea to a traffic infraction but current denial of liability in the follow-on civil case; "The 'work product' doctrine applies principally to third party liability coverage, as noted in Veney [Veney v. Duke, 69 Va. Cir. 209 (2005)]. However, it is as to this information that discovery is sought -- admissions, statements of fact as to what happened in the accident, and the like, which may contradict information provided in depositions or at trial. The statements sought are those the insurer obtained for the purpose of assessing the risk of liability, and of responding to demand letters from claimants upon liability coverage, including counsel who may make demands and file suit. The statements are accordingly gathered in anticipation of litigation of liability claims and therefore fall within 4:1(b)(3)."; "This conclusion is reinforced by the second paragraph of Rule 4:1(b)(3), which provides that statements by a party of the sort sought here are discoverable without a showing of substantial need on motion of that party. Accordingly, if an insurance representative takes a statement from the other party, rather than the insured, in anticipation of litigation, the statement is not protected from that party's motion to compel. The fact that the rule creates this special exception helps persuade me that other statements, including statements of the sort in this case, are protected; "the fact that a person may have made statements of fact bearing upon liability which the opposition would like to inspect for prior inconsistent statements, where liability is contested, does not create a special need. If it did, statements of this sort would be discoverable in every case of contested liability, as such statements are routinely taken shortly after accidents and lawsuits are heard much later, when memories arguably have faded, or opportunity to reflect and concoct new stories has occurred..")

Case Date Jurisdiction State Cite Checked
2012-09-21 State VA B 3/13

Chapter: 43.1302
Case Name: Burr v. R.C. Paving, 78 Va. Cir. 56, 57 (Va. Cir. Ct. 2008)
(addressing statement taken by an insurance carrier after an automobile-truck accident in a third-party insurance context; "[T]he Court does not find that the statements taken by Progressive employees or agents necessarily constitute statements taken in anticipation of litigation as the doctrine pertains to the overall issue of work product. Furthermore, considering the factors stated above, the Court finds that the plaintiff has demonstrated sufficient need for them such that she is entitled to receive the statements notwithstanding that they might be considered privileged under different circumstances in another case.")

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

Chapter: 43.1302
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: 43.1302
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: 43.1302
Case Name: DeHart v. Wal-Mart Stores, East, L.P., No. 4:05cv00061, 2006 U.S. Dist. LEXIS 599, at *2 (W.D. Va. Jan. 9, 2006)
(analyzing work product issues in a third-party insurance context; "[T]he nature of the insurance business poses an interesting question as regards the work product doctrine. Federal courts disagree as to whether an insurer's claim file, prepared after an accident that may generate a potential claim, is protected from discovery under Rule 26(b)(3). Pete Rinaldi's Fast Foods. Inc. v. Great American Ins., 123 F.R.D. 198, 202 (M.D.N.C. 1988); Basinger v. Glacier Carriers, Inc., 107 F.R.D. 771, 773 (M.D. Pa. 1985). Many courts choose to follow a case-by-case approach to determining whether insurance claims files are entitled to work product protection. Kidwilder v. Progressive Paloverde Ins. Co., 192 F.R.D. 536, 542 (N.D. W. Va. 2000); Suggs v. Whitaker, 152 F.R.D. 501, 506 (M.D.N.C. 1993); Pete Rinaldi's Fast Foods, Inc., 123 F.R.D. at 202; Basinger, 107 F.R.D. at 774. Upon review of the document, it appears that application of the work product doctrine is appropriate. The bulk of the entries on the document consist of communications with counsel for plaintiff regarding the claim, and the adjusting company's opinion and evaluation of the claim. As such, application of the work product doctrine appears appropriate.")

Case Date Jurisdiction State Cite Checked
2006-01-09 Federal VA

Chapter: 43.1302
Case Name: Hawkins v. Norfolk S. Ry. Co., 71 Va. Cir. 285, 287, 288, 289, 290 (Va. Cir. Ct. 2006)
(assessing a work product claim for materials prepared by an insurance adjuster for a plaintiff involved in a vehicle-train accident; "Virginia Supreme Court Rule 4:1(b)(6) requires that the party withholding material and claiming privilege must make this claim expressly and with a description of 'the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection'"; noting the debate in Virginia about the discoverability of materials created by an insurance company during its investigation; "This Court opines that the case-by-case analysis test is more appropriate in this situation. The case-by-case analysis test is more flexible, as it considers the reasonable foreseeability that litigation could arise by considering the facts of the case, specifically, (1) the severity of plaintiff's injuries; (2) the awareness that the insured plaintiff may have been negligent in bringing about the accident; (3) notification of defendant that a claim may be pursued; (4) retention of counsel or material sought was requested by counsel; (5) the routine of investigation of plaintiff's claim, and other factors." (emphasis in original); "[B]y appropriately using the case-by-case test, the Court rules that the adjuster's log was prepared in anticipation of litigation and should, therefore, be considered work product."; "It is true that the adjuster's log is a unique item and contains information which would be difficult for Defendant to otherwise discover; however, Defendant has not demonstrated that it needs the information in the adjuster's log to complete its defense, that the information would be crucial to their case, or that it is especially relevant to their defense. While it might be attenuated for Liberty to claim that Norfolk Southern is trying to gain future advantage in litigation, the Courts are charged with protecting 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Va. Sup. Ct. R. 4:1(b)(3). It appears that Norfolk Southern has not demonstrated anything other than mere curiosity as to what is contained in the adjuster's log; therefore, it has not met its burden of demonstrating substantial need."; ultimately finding that the work product doctrine protected the adjuster's log)

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

Chapter: 43.1302
Case Name: Hawkins v. Norfolk S. Ry. Co., 71 Va. Cir. 285, 286, 287, 288, 289 (Va. Cir. Ct. 2006)
(analyzing work product protection for material prepared by the insurance company for a plaintiff who was involved in an accident with a train; ultimately concluding that the work product doctrine protected the materials, including the adjuster's log, and that the railroad could not overcome the work product protection; "Plaintiff advised Liberty when the accident was reported that he would be filing a claim against the Defendant and expected a claim to be filed against him as well. . . . Defendant also spoke with Liberty and made no mention of litigation, but did indicate that a claim would be filed against Liberty for damages to its train. . . . This claim was paid and finalized in April of 2004. . . . Liberty did not contact an attorney regarding this incident until Plaintiff brought the current negligence claim."; explaining that "[t]he Supreme Court of Virginia has not ruled on whether an insurance company's adjuster's log is discoverable; however, the issue has been addressed several times in Virginia circuit courts. When an insurance company receives notice of an accident, it is the normal course of business for the company to compile information and investigate the accident to determine liability and damages. Because this is in the usual course of business, courts have had to wrestle with the difference between 'anticipation of litigation' and 'normal course of business' when dealing with insurance claims. Both Liberty and Norfolk Southern property assert that two competing tests have emerged as how to address what is considered 'anticipation of litigation:' the 'bright-line rule' test and the 'case-by-case' test."; "The bright-line rule test looks at the timeline of the incident to see if, or when, an attorney was consulted, and this event initiates the work product doctrine protection; anything before that time is not protected."; "In Mr. Hawkins' situation, counsel was not contacted during the investigation process. Only after the negligence claim was brought was an attorney contacted. Applying the bright-line rule to this case, because counsel was not consulted, the adjuster's log would not be considered in 'anticipation of litigation.' However, this Court finds that the bright-line rule is both extraordinarily strict and disregards other important factors worth considering."; "This Court opines that the case-by-case analysis test is more appropriate in this situation. The case-by-case analysis test is more flexible, as it considers the reasonable foreseeability that litigation could arise by considering the facts of the case, specifically, (1) the severity of plaintiff's injuries; (2) the awareness that the insured plaintiff may have been negligent in bringing about the accident; (3) notification of defendant that a claim may be pursued; (4) retention of counsel or material sought was requested by counsel; (5) the routine of investigation of plaintiff's claim, and other factors."; also noting that "[a]dditionally, Liberty was told of Plaintiff's and Defendant's intent to file claims when the matter was reported, three days after the incident. It is likely the insurance adjuster believed that it was reasonably foreseeable that litigation would arise from the claim due to the parties and injuries involved."; finding adjuster's log protected by the work product doctrine, and also concluding that plaintiff could not overcome the work product protection)

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Hawkins v. Norfolk S. Ry., 71 Va. Cir. 285, 289-90 (Va. Cir. Ct. 2006)
(assessing a work product claim for materials prepared by an insurance adjuster for a plaintiff involved in a vehicle-train accident; "If the adjuster's log is work product, it may nevertheless be discoverable if the Defendant demonstrates that it has a substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.")

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

Chapter: 43.1302
Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 233-34 (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;"'The majority of Virginia Circuits endorse the Thomas Organ rule. These cases are generally wary of creating an exception to the normal rules of discovery because of the very nature of the insurance company's business.' Lopez v. Woolever, 62 Va. Cir. 198 (Fairfax County 2003) (citations omitted). The Thomas Organ rule requires that reports or statements made by or to a party's agent, other than an attorney acting in the role of counselor, which have not been requested by nor prepared by an attorney nor otherwise reflect the employment of an attorney's legal expertise, are presumed to have been made in the ordinary course of business and are thus not protected as work product. Thomas Organ Co. v. Plovidba, 54 F.R.D. 367 (N.D. Ill. 1972).")

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

key case


Chapter: 43.1302
Case Name: Veney v. Duke, 69 Va. Cir. 209; 212-13 (Va. Cir. Ct. 2005)
(in a third-party insurance context, holding that the work product doctrine protected statements taken by an insurance company adjuster of the defendant insured before the defendant was represented by a lawyer; noting the split among Virginia circuit courts on this issue; "Here, Defendant's carrier investigated the automobile accident in order to fulfill its duty to defend Defendant should he be sued for the accident. The real possibility of litigation was certainly reasonably foreseeable. An insured, under these circumstances, should feel free to fully discuss the accident with his or her carrier. The knowledge that such statements might later be used against the insured might understandably result in less than full and complete disclosure. Yet full disclosure should always occur. Only full disclosure permits both a sound defense, or a sensible settlement. Neither outcome is assured where an insured is fearful of speaking freely and frankly to its carrier. This will not happen unless the conversation is protected. For these reasons, the Court holds that the statement given by Defendant to his adjuster was obtained in anticipation of litigation and is hence protected by the work product doctrine. Consequently, Defendant's statement is not discoverable absent a showing of substantial need as provided by Rule 4:1."; finding that plaintiff had not proven substantial need)

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

Chapter: 43.1302
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 15 (Va. Cir. Ct. 2005)
(in a third-party insurance context, finding that the work product doctrine did not protect a statement defendant gave to her insurance company after an auto accident; also finding that plaintiff had substantial need for the statement because defendant's memory was not clear; "Massenburg cites McDougall v. Dunn, 468 F.2d 468 (1972), for its contention that 'any report or statement made by or to a party's agent . . . which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney's legal expertise must be conclusively presumed to have been made in the ordinary course of business' and thus outside the work product doctrine. Id. at 473 (quoting Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 372 (D.C. III. 1972)). The Circuit Court for Fairfax County has stated that 'the majority of Virginia Circuits endorse the Thomas Organ rule.' Lopez v. Woolever, 62 Va. Cir. 198, 201 (1993) (citations omitted).")

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

Chapter: 43.1302
Case Name: Veney v. Duke, 69 Va. Cir. 209, 212-13 (Va. Cir. Ct. 2005)
(in a third-party insurance context, holding that the work product doctrine protected statements taken by an insurance company adjuster of the defendant insured before the defendant was represented by a lawyer; noting the split among Virginia circuit courts on this issue; "Here, Defendant's carrier investigated the automobile accident in order to fulfill its duty to defend Defendant should he be sued for the accident. The real possibility of litigation was certainly reasonably foreseeable. An insured, under these circumstances, should feel free to fully discuss the accident with his or her carrier. The knowledge that such statements might later be used against the insured might understandably result in less than full and complete disclosure. Yet full disclosure should always occur. Only full disclosure permits both a sound defense, or a sensible settlement. Neither outcome is assured where an insured is fearful of speaking freely and frankly to its carrier. This will not happen unless the conversation is protected. For these reasons, the Court holds that the statement given by Defendant to his adjuster was obtained in anticipation of litigation and is hence protected by the work product doctrine. Consequently, Defendant's statement is not discoverable absent a showing of substantial need as provided by Rule 4:1."; finding that plaintiff had not proven substantial need)

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

Chapter: 43.1302
Case Name: Veney v. Duke, 69 Va. Cir. 209, 210 & n.2 (Va. Cir. Ct. 2005)
(in a third-party insurance context, holding that the work product doctrine protected statements taken by an insurance company adjuster of the defendant insured before the defendant was represented by a lawyer; noting the split among Virginia circuit courts on this issue; "The specific statement sought by Plaintiff is one that was taken by the Defendant's insurance carrier adjuster after the accident but before Defendant retained counsel. Defendant contends that such a statement is protected under the work product doctrine as it is material gathered by the insurance company in anticipation of litigation. Defendant argues that the work product doctrine not only applies to materials prepared by a party's attorney, but also to material prepared by a party's representatives, including that party's insurance company. . . . The authorities in Virginia are divided on this issue. From this circuit alone, opposite results have been reached. Many courts have held that routine investigatory reports are discoverable. . . . Other courts, however, have ruled that such reports should be protected as work product.")

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

Chapter: 43.1302
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;"To hold, as defendant urges, that the proper inquiry should be whether Dr. Klim could reasonably anticipate that litigation would arise from the incident would be to extend the type of blanket protection to malpractice incident reports that this Court sought to avoid in Whetzel [Whetzel v. McKee, 44 Va. Cir. 315 (Rockingham County 1998)]. Every incident report taken by or for an insurer involves an incident that may or may not evolve into litigation. Where an incident report is taken in the routine course of an insurer's business and the defendant is not sufficiently concerned about the potential for litigation to retain counsel, the report is not prepared in anticipation of litigation and, as such, is not protected under the work product doctrine.")

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

Chapter: 43.1302
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 15 (Va. Cir. Ct. 2005)
(in a third-party insurance context, finding that the work product doctrine did not protect a statement defendant gave to her insurance company after an auto accident; also finding that plaintiff had substantial need for the statement because defendant's memory was not clear; "Hawkins [defendant in the automobile accident] contends, quite reasonably, that the phone call from Massenburg [plaintiff] stating an inability to work was enough to make the statement to Allstate in anticipation of litigation, and the Allstate employee who took the recorded statement of Hawkins provided a sworn affidavit that the statement was in anticipation of litigation.")

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

Chapter: 43.1302
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: 43.1302
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "The Fourth Circuit has held that for the attorney work product to apply, 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 or series of events that reasonably could result in litigation. Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 43.1302
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 205 (Va. Cir. Ct. 2003)
(concluding that the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "To allow a party to do so would be to, 'afford them the potential for significant insights into the defense [representatives'] preparation of their case (and thus their mental processes).'")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 43.1302
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 201, 202, 203, 204 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "In the context of material prepared by a party's agent, courts have applied contradicting bright-line tests."; "The majority of Virginia Circuits endorse the Thomas Organ rule. See, e.g., Wood v. Barnhill, 52 Va. Cir. 274, 275 (Charlottesville 2000); Whetzel v. McKee, 44 Va. Cir. 315 (Rockingham 1998). . . . In Estabrook, [Estabrook v. Conley, 42 Va. Cir. 512 (Rockingham 1997)] the court recognized the dangers in granting immunity to an insurance adjuster's investigation reports . . . . Still other Virginia courts have moved away from the Thomas Organ rule, eschewing the use of bright-line tests in favor of a case-by-case analysis. See, e.g., Smith v. National R.R. Passenger Corp., 22 Va. Cir. 348 (Richmond 1991)"; "Any bright-line rule excluding an insurance company's investigation from work product protection runs counter to common construction of the work product doctrine. See, e.g., Edwards, 235 Va. 499 at 510; Perrigan, 102 F.R.D. at 238. Similarly, a bright-line rule granting work product protection to all materials prepared by an insurance company in its investigation is over-broad. See, e.g., Estabrook, 42 Va. Cir. at 512; Wood, 52 Va. Cir. at 275. Thus, the Court concludes that determination of whether the investigation was performed in the first party liability or third party liability context is not dispositive. A case-by-case analysis is required to determine whether the doctrine applies."; "State Farm's letter is not independent of the initiation of litigation. Although the letter begins, 'Dear State Farm Consumer,' the first line of the letter reads, 'you have been identified as having been involved in an accident with a State Farm insured, following is our privacy policy.' See Pl.'s Supp. Mem. app. There is no evidence to suggest that but for the accident, State Farm would have contacted Plaintiff, much less conducted any investigation of Plaintiff's claim history. Thus, in light of the factual record in this particular case, any materials prepared by State Farm in its investigation can fairly be said to have been prepared or obtained because of the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 43.1302
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200-201 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Many courts have observed that the application of the work product doctrine to documents prepared by insurance companies during claims investigations is difficult because the nature of the insurance business is such that an insurance company must investigate a claim prior to determining whether to pay its insured, and thus pre-litigation is the routine business of insurance companies. See, e.g., St. Paul Reinsurance Co., Ltd. v. Commercial Financial Corp., 197 F.R.D. 620, 635 (N.D. Iowa 2000). Indeed, one Virginia court has noted that 'the cases on the issue of the discoverability of statements taken by insurance adjusters are legion and are in hopeless and irreconcilable conflict.' Estabrook v. Conley, 42 Va. Cir. 512 (Rockingham 1997).")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 43.1302
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 198, 207, 208 (Va. Cir. Ct. 2003)
(analyzing work product protection in a third party insurance context; explaining that defendant's insurance company had gathered documents about the plaintiff, and had prepared a report describing the results of its investigation of plaintiff; ultimately concluding that the "loss activity report" (including such information as plaintiff's traffic history record) prepared by defendant's insurance company deserved work product protection, and that plaintiff could not overcome the work product protection; "In the case at hand, Plaintiff does not argue that the production of the loss activity report on him, obtained by Defendant's insurer, will aid him in establishing an essential element of his case. Indeed, there appears to be no relation between the loss activity report on Plaintiff and establishing of Plaintiff's claim. Further, this court assumes without deciding that access to such information is as available to Plaintiff as it is to Defendant, thus rendering the issue of undue hardship to Plaintiff moot."; "In the instant circumstances, this court assumes that the loss activity report that Plaintiff seeks is available to Plaintiff from the same or alternate sources for a reasonable fee, so that the loss activity report obtained by Defendant's insurer can be duplicated or obtained from alternate sources. Thus, despite the belief that disclosure of the loss activity report would 'encourage the reduction or elimination of surprises during trial,' in light of Plaintiff's failure to meet his burden of proof, this court finds no need to compel disclosure of such privileged work product information.")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 198, 201, 202, 203, 204, 204-05 (Va. Cir. Ct. 2003)
(analyzing work product protection in a third party insurance context; explaining that defendant's insurance company had gathered documents about the plaintiff, and had prepared a report describing the results of its investigation of plaintiff; ultimately concluding that the "loss activity report" (including such information as plaintiff's traffic history record) prepared by defendant's insurance company deserved work product protection, and that plaintiff could not overcome the work product protection; explaining that "[i]n the context of material prepared by a party's agent, courts have applied contradicting bright-line tests."; explaining that the Fourth Circuit has endorsed the Thomas Organ rule -- which holds that work product doctrine cannot protect reports or statements made by or to a party's agent other than a lawyer; also noting that "[t]he majority of Virginia Circuits endorse the Thomas Organ rule."; "Still other Virginia courts have moved away from the Thomas Organ rule, eschewing the use of bright-line tests in favor of a case-by-case analysis."; "Any bright-line rule excluding an insurance company's investigation from work product protection runs counter to common construction of the work product doctrine. . . . Similarly, a bright-line rule granting work product protection to all materials prepared by an insurance company in its investigation is over-broad. . . . Thus, the Court concludes that determination of whether the investigation was performed in the first party liability or third party liability context is not dispositive. A case-by-case analysis is required to determine whether the doctrine applies."; concluding that the work product doctrine protected the materials created by the insurance company; "There is no evidence to suggest that but for the accident, State Farm would have contacted Plaintiff, much less conducted any investigation of Plaintiff's claim history. Thus, in light of the factual record in this particular case, any materials prepared by State Farm in its investigation can fairly be said to have been prepared or obtained because of the prospect of litigation."; "Generally, the work product doctrine does not shield against discovery of the facts that the adverse party's lawyer or representative has learned, or the persons from whom he has learned such facts, or the existence or nonexistence of documents. . . . Thus, a party may properly inquire into identity and location of persons having knowledge of relevant facts. . . . A party may not, however, inquire into the identity of persons that the opposing party's lawyer or representative has interviewed. . . . To allow a party to do so would be to, 'afford them the potential for significant insights into the defense [representative] preparation of their case (and thus their mental processes).'. . . Although facts regarding potential sources of information are discoverable, a party may not discover the identity of specific sources of information that an opposing party may have consulted."; finding that plaintiff could not overcome the work product protection)

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Irizzary v. Jamshidi, 55 Va. Cir. 457, 457 (Va. Cir. Ct. 2000)
(addressing work product protection for documents prepared by an insurance company in what apparently was a third-party insurance context; "In camera review of the documents at issue revealed that the Defendant notified her insurer that she had retained an attorney on February 19, 1998. All of the documents in question were produced after February 19, 1998, and therefore were prepared in anticipation of litigation for trial and are subsequently protected under the work product rule."; finding the plaintiff had not established substantial need sufficient to overcome the work product protection)

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Wood v. Barnhill, 52 Va. Cir. 274, 275 (Va. Cir. Ct. 2000)
(addressing work product protection for what the court called "insurance statements" taken in a third party insurance context; adopting a "bright line" standard but without using those terms, "This Court has determined that absent a showing to the contrary, statements made to an insurance company prior to litigation are not subject to the work product privilege."; "[B]ecause Defendant has not shown that communications made to the insurance carrier involved counsel or were made in preparation for future litigation, the Court will follow Tanner. [Tanner v. Evans, Law No. 95-335 (Charlottesville 1996)]")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA

Chapter: 43.1302
Case Name: Graves v. Southland Corp., No. 4:99CV00036, VLW 099-3-155 (E.D. Va. July 14, 1999)
(defendant Southland voluntarily provided plaintiff with a recorded statement of one Southland employee that was taken before Southland received plaintiff's notice that she had retained counsel, but objected to producing copies of recorded statements of other Southland employees taken after Southland received the notice; holding that Southland did not have to produce the statements; "First, Dunn and Nottingham are susceptible to being deposed, though neither has been deposed since September 13, 1993, a period of almost six years. Thus, information readily available to plaintiff has not been pursued by plaintiff in timely fashion. Second, Dunn and Nottingham's statements were not obtained by plaintiff's insurance representative until after plaintiff had furnished notice that she had retained an attorney to protect her interests. Defendant had every right to anticipate that this matter would result in litigation, making the ability of defendant, through its 'insurer, or agent,' to be informed of relevant facts all the more significant. . . . Dunn and Nottingham's statements are not comparable to the normal and ordinary accident report routinely filed in a slip and fall case or an estimate of damage when a shopping cart hits a car in a parking lot. They are, in fact, statements taken by defendant's risk management company after having been placed on notice that plaintiff, injured in a fall, has sought the advice of counsel in order to protect her rights."; noting that Kemper Insurance "must know what has occurred, necessitating investigation. That it is done in the ordinary course of the business of protecting the interests of the insured does not make it any less in anticipation of litigation than if it was done for some other less obvious reason. The fact remains that the carrier, in order to assess its legal position with regard to the merit of a claim and/or the existence of any defenses, must be able to deal, at some point, with its insured openly, candidly, and free from discovery. This is no different than the initial statement given by a claimant to plaintiff's counsel so plaintiff's counsel may institute a cause of action on behalf of an individual. In each instance, the party making the statement is either seeking or conveying facts upon which someone must make a decision, whether a private counsel instituting an action on plaintiff's behalf or an insurance company claims manager or attorney determining whether to retain outside counsel for the defense of what is reasonably anticipated to be a future law suit.")

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

Chapter: 43.1302
Case Name: Whetzel v. McKee, 44 Va. Cir. 315, 316, 317 (Va. Cir. Ct. 1998)
(addressing work product protection in a third party insurance context; explaining that defendant's insurance company took statements from the insured three months after an automobile accident; ultimately finding that the tape-recorded statement did not deserve work product protection; "The Court previously noted in 1997 that the case law on the issue of discoverability of statements taken by insurance claims adjusters was in irreconcilable conflict. See Estabrook v. Conley, 42 Va. Cir. 512 (1997)."; "The reason this Court declines to follow this line of reasoning that, as a practical matter, it creates a new and clearly-defined exemption from the normal rules of discovery for insurance carriers by effectively ruling that all information obtained by an insurance carrier, even when counsel is not involved and no litigation has been filed and when the injured party, in many cases, has not even retained a lawyer would be automatically exempt from discovery because of the very nature of the insurance company's business."; "In the instant case, the statement in issue was taken approximately three months after the accident, and it was taken before the Plaintiff had retained or apparently even spoken to any counsel. The insurance adjusters had not at that point consulted with outside attorneys or with their internal legal department concerning the proper method of handling this case. The investigation that was being conducted, by stipulation of the parties, was not being conducted pursuant to a general rule of practice recommended or required by the insurance carrier's retained counsel for personal injury cases or its in-house legal staff."; "As this Court's stated in the Estabrook v. Conley matter, if the matter had not reached the point that the insurance carrier in contemplating the likelihood of litigation had retained or consulted any licensed practicing attorney as regards the case, then this Court believes it had not reached the point of 'trial preparation' that would make it exempt under the provisions of Rule 4:1(b)(3).")

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

key case


Chapter: 43.1302
Case Name: Falls v. Williams Dairy, Inc., 42 Va. Cir. 101, 102 (Va. Cir. Ct. 1997)
(addressing work product protection for witness statements prepared in a third party insurance context; finding that defendant's insurance adjuster took witness statements after a farm accident; finding that the statements deserved work product protection, and that plaintiff could not overcome the protection; "Upon being advised that the Plaintiffs' decedent died after falling into a manure pit on the Defendant's farm, an insurance adjuster could reasonably foresee litigation for wrongful death. Given the litigious nature of today's society, if insurance coverage is involved and a death is anything other than natural, then it is reasonably foreseeable that litigation will occur. Hence, any witness statements taken by the Defendant's insurance adjuster were taken in anticipation of litigation."; "During argument, Mr. Love presented nothing to show a substantial need for such statements. He mentioned inconsistent statements as a possibility, but he offered nothing to indicate that inconsistent statements may exist.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 45, 45-46 (Va. Cir. Ct. 1997)
(addressing work product protection for witness statements taken in a third party insurance context; explaining that an adjustor for defendant's insurance company took witness statements after an accident; ultimately finding that the statements deserved work product protection, but that plaintiff could overcome that protection; "The motion for judgment describes a rear-end collision in which the plaintiff was severely injured. Third party liability coverage is implicated. Ms. Larson seeks recovery in the amount of $500,000.00."; "Common sense would suggest there is nothing routine about such an investigation as would follow in this case. While the reports made by the adjuster containing statements made by witnesses other than the plaintiff are entitled to the claim of privilege, plaintiff has articulated a showing of need and demonstrable hardship requiring disclosure."; "Absent disclosure, plaintiff would be deprived of access to statements which were arguably used in the preparation of the interrogatory responses of the defendant. These statements would have been taken shortly after the accident and would serve as a basis for understanding defendant's claim of contributory negligence, as that claim is now clouded by deposition testimony. In addition, it is important that the parties be able to fully explore inconsistencies and ambiguities in the testimony of the opposing party during the discovery process. Not only may such statements be used to prove an element of a party's claim but may also serve as a means of impeachment. Accordingly, the court will, except as to the videotape, insofar as protection from disclosure is requested based upon their having been prepared in anticipation of litigation, grant the motion of the plaintiff to produce the materials submitted for in camera inspection.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Estabrook v. Conley, 42 Va. Cir. 512, 512, 513 (Va. Cir. Ct. 1997)
(addressing work product protection in a third party insurance context; explaining that defendant's insurance company's adjuster took a statement from the defendant two days after an accident in which the defendant struck a pedestrian; ultimately finding that the statement did not deserve work product protection; "The cases on the issue of the discoverability of statements taken by insurance adjusters are legion and are in hopeless and irreconcilable conflict."; "This Court is not able to discern any consistent thread from decisions. The entire debate appears to center on the notion of whether it is reasonable and prudent for potential tortfeasors to 'reasonably anticipate' litigation whenever there is an accident. If so, then all statements obtained by an insurance carrier for any accident in which their insured was involved would be ipso facto protected from discovery."; "Although it may not be irrational in the litigatious society in which we live to assume that litigation will follow any accident, this assumption cannot be predicate for a sweeping claim of work product protection. To accept such a proposition would create a de facto new class of privileged material which would cover virtually all types of routine accident investigations. If there is going to be such a sweeping change in trial practice, it must come from the General Assembly."; "It is difficult to draw bright lines in this area. However, the Court notes that the statements in question here were apparently taken before the Defendant had retained counsel, before the insurance carrier had assigned counsel to the matter, and before Plaintiff had made or suggested any claim. If the matter was not significant enough to involve counsel with an eye to preparing a litigation defense, it is not in this Court's view entitled to the protection afforded by Rule 4:1(b)(3) of the Rules of the Supreme Court of Virginia.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA

Chapter: 43.1302
Case Name: Carroll v. Blackwell, Case No. ML-3629, 1996 Va. Cir. LEXIS 591, at *4-5 (Va. Cir. Ct. Jan. 23, 1996)
(addressing work product protection for material created by an insurance company in the third party insurance context; "The documents requested in the subpoena duces tecum in this case are those prepared prior to the filing of the action, which take the case out of the scope of the work product doctrine. The subpoena clearly specify [sic] documents prepared until June 26, 1995, which is the date of filing.")

Case Date Jurisdiction State Cite Checked
1996-01-23 State VA

Chapter: 43.1302
Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 328 (Va. Cir. Ct. 1996)
(addressing work product protection for materials generated by an insurance company in the third party insurance context; ultimately applying a "bright line" rule under which the work product protection applies only to materials created after the plaintiff's lawyer notified the insurance company that he was representing a plaintiff; "The second issue relates to the currently popular issue relating to discoverability of defendant's insurance adjuster and insurance company files. The Court has recently had the opportunity to address this issue. Consistent with its earlier ruling, the Court will adopt what has commonly become known as a case by case approach which was adopted by U.S. District Judge Glen M. Williams of the Western District in the case of State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235 (W.D. Va. 1984)."; "Applying this test to the case at hand, the Court concludes that the 'bright line' occurred in this case upon receipt of plaintiff Aimee Johnson's letter of representation by Mr. Pasco, dated September 6, 1994. This was closely followed by Mr. Wilson's conversations with Kim Jones of Virginia Farm Bureau on September 9, 1994, of similar import with respect to Plaintiff Sherry Taylor. While there is some indication of Mr. Wilson's representation of Plaintiff Taylor prior to August 25, 1994, the Court lacks sufficient information to conclude that the 'pivotal point' was reached prior to September 5, 1994. Accordingly, 'otherwise discoverable information' of a factual nature, including statements of parties and witnesses acquired prior to September 5, 1994, are discoverable.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 528, 529, 531-31, 533-34 (Va. Cir. Ct. 1996)
(analyzing work product protection in a third party insurance context; explaining that plaintiff who claimed to have been injured in a fall at the defendant restaurant sought production of various materials prepared after the accident; ultimately concluding that the work product protection covered the material, and that the plaintiff could overcome the protection only for post-accident photographs; "After speaking to plaintiff's family, the insurance representative contacted Commonwealth Claims Services, an independent adjuster and investigator. Commonwealth Claims conducted an investigation, which included taking photographs of the accident scene and interviewing various employees of defendant. The investigation was completed in March, 1994. The results of Commonwealth Claims' investigation are the subject of plaintiff's motion to compel."; explaining that the defendant and its insurance company did not receive notice until several months later that plaintiff had retained a lawyer; rejecting defendant's argument that all materials generated in the third party insurance context deserved work product protection; "This court declines to draw a bright line based on such a distinction. First, '[b]ecause work product protection by its nature may hinder an investigation into the true facts, it should be narrowly construed consistent with its purpose.'. . . Second, the court notes the trend among federal cases on discovery of third-party insurance reports to determine on a case-by-case basis whether a particular document was prepared in anticipation of litigation."; instead adopting a fact-intensive test; "The court considers the following factors, among others, to be relevant to applying the above-stated test: (1) Severity of the plaintiff's injuries . . .; (2) Whether it is immediately apparent that the negligence, if any, would likely be solely with the insurance company's insured . . .; (3) Whether the plaintiff or plaintiff's family notified defendant that plaintiff would pursue a claim or informed defendant that plaintiff did not have adequate financial resources to pay for plaintiff's medical expenses; (4) Whether plaintiff's attorney notified defendant that counsel had been retained, or whether the material sought was requested by an attorney; (5) Whether the person who took the statement is charged with safety responsibilities . . .; (6) Whether a statute clearly implicates the insurance company's insured with liability . . .; (7) Whether an insurer 'investigated plaintiff's claim in the manner he investigated all other claims and prepared various investigative reports during the course of such routine investigation in accordance with . . . normal procedures. [With] no evidence . . . [the insurance company] prepared the documents because of the prospect of litigation.' APL Corp. [v. Aetna Cas. & Sur. Co.], 91 F.R.D. [10,] 20 [D. Md. 1980] . . .; and (8) Whether the documents a party seeks to protect were produced before an insurer formally denied a claim."; applying these factors in concluding that the work product doctrine protected the witness interviews, diagrams and pictures taken after the accident)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 468, 471-72, 472, 472-73 (Va. Cir. Ct. 1996)
(addressing work product protection in a third party insurance context; explaining that plaintiff sought witness statements taken by or accident reports prepared by a defendant restaurant or its insurance carrier; ultimately concluding that the statements did not deserve work product protection; "While the Virginia Supreme Court has yet to determine whether witness statements and other documents generated by a defendant's insurer following an accident come within the ambit of Rule 4:1(b)(3), several cases concerning this question have arisen in the Circuit Courts. Seven courts have held that such documents are compiled in the normal course of business and so are not covered by the work-product privilege, two courts have extended Rule 4:1(b)(3) to cover such circumstances, and two courts have reached different outcomes in different cases."; "The question of whether documents prepared or collected by an insurance company following an accident should be deemed work-product must be decided on a case-by-case basis. Such a determination should only be made when the circumstances surrounding the claim and/or the nature or severity of the accident itself make it clear that litigation is likely to result."; "The relatively minor nature of the injury in this case was not enough, in itself, to lead Defendant to reasonably anticipate that it would be sued. Additionally, the character of the accident report prepared by Ms. Smith is such that it must be deemed to have been prepared in the ordinary course of business and not in anticipation of any 'substantial and imminent' threat of litigation. Defendant is therefore ordered to deliver the accident report to Plaintiff."; "Although Plaintiff did inquire about payment of her medical bills on May 24, 1994, this inquiry was not a warning of impending litigation but merely the notice of a claim against one of the insurer's clients. Insurance companies regularly and routinely handle such claims as part of their everyday business affairs. Therefore, Defendant could not reasonably have been anticipating future legal action at this point."; "Plaintiff has requested that all documents generated or gathered by Defendant's insurer prior to the filing of her Motion for Judgment on October 25, 1995, be made available for review. However, the letter of representation which Plaintiff's counsel sent to ITT on September 6, 1994, was clearly of a sufficient character to put Defendant on notice that litigation or the threat of it would almost certainly follow. Therefore, Defendant's Motion to Quash the subpoena duces tecum filed by Plaintiff is denied with regard to all documents that were in the possession of its insurance company on September 6, 1994, and granted with regard to all documents which it created or obtained after that date. Information collected subsequent to the cut-off date will only be made available to Plaintiff if and when 'a showing of necessity greater than the normal requirement for good cause is made. '" (citation omitted))

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

Chapter: 43.1302
Case Name: Covington v. Calvin, 40 Va. Cir. 489, 490, 492, 493 (Va. Cir. Ct. 1996)
(addressing work product protection for accident reconstruction documents prepared by a co-defendant's insurance company after a multi-car auto accident; ultimately finding that the accident reconstruction documents deserved work product protection; "Calvin and Pool Truck Line contend that the materials are discoverable because they were prepared prior to the date this suit was commenced in the ordinary course of business. O'Connor argues that the materials are not discoverable because they are 'work product.' Both positions are too simplistic. Further analysis is required."; "This court rejects the notion that a bright line is to be drawn at the moment a lawsuit is commenced for the purpose of determining whether materials have been prepared in anticipation of litigation."; "It is significant that the materials in question are products of an investigation of a multiple-vehicle accident involving a fatality and several serious injuries conducted by an expert consultant hired by one of several insurers. This fact alone distinguishes these materials from mere witness statements routinely obtained by adjusters and increases the likelihood that these materials were prepared not as a routine matter in the course of business but genuinely in anticipation of substantial litigation."; "[T]he court refuses to hold that the burden is on State Farm to establish that the materials were prepared in anticipation of litigation simply because an adversary asserts, without evidence, that their preparation predated commencement of this suit."; noting that plaintiff did not try to establish need for the work product)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: McCullough v. Standard Pressing Machs. Co., 39 Va. Cir. 191, 194, 194-95, 195, 196, 197 (Va. Cir. Ct. 1996)
(addressing work product protection for material created by an insurance company in the third party insurance context; ultimately finding that the materials deserved work product protection, and that plaintiff could not overcome the work product protection; "In view of such decisions, including for instance, APL Corp. v. Aetna Casualty & Surety Co., 91 F.R.D. 10 (D. Md. 1990), relied upon by McCullough, it might be supposed that adjuster reports prepared in advance of the filing of a claim may virtually never qualify as privileged work product. The difficulty with such a supposition, however, is that most cases denying work product protection to adjuster reports involve 'first party' insurance coverage, as distinguished from 'third party' or liability insurance coverage as is involved in this case."; "First party insurance is procured to indemnify an insured against a covered loss the insured has sustained. Adjuster reports prepared with respect to such claims are routine and are usually intended to enable the insurance company an opportunity to pay or deny the claim. Further, the prospect of litigation is remote since it will ensue only if a dispute arises between the insurer and insured regarding the insurer's contractual obligation pursuant to the insured's policy."; "By contrast, in the case of third party or liability insurance, an insured obtains insurance to protect against liability claims of third persons. . . . That liability, moreover, is an insured risk which, for all practical purposes, can only be established in favor of the third party against the insured by litigation in a court of law. Accordingly, when an insured is involved in an insured event occurrence, such as an automobile accident, reasonably giving rise to risk of liability, the liability insurer has an incentive to investigate the circumstances surrounding that occurrence in order to fulfill its obligation to its insured to defend against a third party potential action. Because liability insurance, unlike first party insurance, essentially constitutes 'litigation insurance,' Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898, 900 (1965), many courts have held that adjuster reports prepared on behalf of liability insurers are prepared in anticipation of litigation and constitute privileged work product."; quoting the New York judge in the Kandel case as explaining that "'automobile liability insurance is simply litigation insurance'"; noting that earlier Virginia cases have taken different positions on the work product doctrine's applicability to materials generated by an insurance company in a third party insurance context; "Several Virginia circuit judges have reached the same conclusion in cases involving liability insurance, see, e.g., Lewis v. Pomponio, At Law No. 129912, 19th Judicial Circuit of Virginia, June 9, 1995 (Hon. F. Bruce Bach); Whitehurst v. Lloyd, At Law No. 15964, 20th Judicial Circuit of Virginia, September 6, 1995 [37 Va. Cir. 224] (Hon. Thomas D. Horne), while others have reached the opposite conclusion. Cf., Schoonmaker v. Rogester, CL 94-3969, 2nd Judicial Circuit of Virginia, August 17, 1995 (Hon. Robert B. Cromwell, Jr.); Overton v. Dise, At Law No. 130350, 19th Judicial Circuit of Virginia, November 9, 1994 (Hon. Robert W. Wooldridge)."; ultimately finding the work product doctrine applicable; "Although not all insurance adjuster reports prepared for liability insurers necessarily constitute work product, the facts of this case lead me to conclude that The Hartford's adjuster's report was prepared in anticipation of litigation and is privileged as work product. The Hartford insured Standard and its employee, Counts, against liability to third parties arising from the ownership, operation, or maintenance of the insured vehicle. A multi-vehicle accident occurred involving serious injuries to strangers to the insurance contract. On the basis of these circumstances, The Hartford has sustained its burden by demonstrating that its adjuster's report was prepared in anticipation of litigation that might be initiated by or on behalf of those injured in the accident."; also finding the plaintiff could not overcome the work product protection; "Further, it has not been shown that there are not other witnesses who are able to afford facts related to Counts' driving immediately before the accident. McCullough has failed to demonstrate a substantial need for the adjuster's report.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09
Comment:

key case


Chapter: 43.1302
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 528, 535, 535-36 (Va. Cir. Ct. 1996)
(analyzing work product protection in a third party insurance context; explaining that plaintiff who claimed to have injured in a fall at the defendant restaurant sought production of various materials prepared after the accident; ultimately concluding that the work product protection covered the material, and that the plaintiff could overcome the protection only for post-accident photographs; rejecting a "bright line" test in favor of a fact-intensive analysis; ultimately finding that the materials deserve work product protection; also concluding that the plaintiff could overcome the work product protection for some but not all of the materials; "The court finds plaintiff has not made a strong showing of substantial need as to the witness interviews and diagrams of the restaurant. The plaintiff has access to the witnesses the insurance company interviewed and may question those witnesses under oath with penalty of perjury."; "As to the photographs, plaintiff has demonstrated substantial need considering the factors articulated in Suggs [Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993)]. The photographs were taken soon after the accident occurred and would therefore seem relevant and important to the case. Second, the plaintiff would face great difficulty, if not impossibility, in obtaining photographs from any other source. Because the plaintiff cannot recreate the accident scene and the photographs were taken close in time to the accident, the court finds the plaintiff has demonstrated a substantial need for the photographs.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Ramsey v. Gordon, 39 Va. Cir. 409, 409-10 (Va. Cir. Ct. 1996)
(addressing work product protection for recorded statements taken by an insurance company in a third party insurance context; ultimately finding that the statements did not deserve work product protection; "The claims representative obtained recorded statements from the plaintiff, defendant Gordon and two witnesses, Ronald E. Robertson and Judith Burkhardt. Objection to production of the statements is made on the grounds that they are protected by the attorney work product doctrine and/or were prepared in anticipation of litigation. The statements were taken within thirty days of the automobile accident out of which the underlying cause of action arose and before defendants' insurer denied any claim. The underlying cause of action was filed almost two years after the accident date. The plaintiff is entitled to production of his statement under Rule 4:1(b)(3) irrespective of the attorney work product doctrine or whether it was obtained in anticipation of litigation. The Court further finds as a matter of fact and law that the four statements in question are not attorney work product and that they were obtained in the ordinary course of business rather than in anticipation of litigation. The gathering of such information is essential for the insurance industry to properly adjust claims and establish reserves, and the availability of statements obtained in this process is often essential to the integrity of the fact finding process when litigation ensues.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Whitehurst v. Lloyd, 37 Va. Cir. 224, 224 (Va. Cir. Ct. 1995)
(addressing work product protection in a full statement taken by an insurance company in a third party insurance context; ultimately finding that the statement deserved work product protection; "The statement which Plaintiff seeks to obtain was taken by the insurer four days after an accident in which the insured was involved in a motor vehicle accident involving a motorcycle driver. Under the facts of this case, it was reasonably foreseeable that litigation would ensue at the time the statement was taken.")

Case Date Jurisdiction State Cite Checked
1995-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: Overton v. Dise, 35 Va. Cir. 177, 178 (Va. Cir. Ct. 1994)
(addressing work product protection in a third party insurance context; explaining that an insurance company representative took the defendant's statement one day after an accident; ultimately finding that the statement did not deserve work product protection; "The Court finds that the Defendant is not entitled to a Protective Order because the Statement Interview was not prepared in anticipation of litigation or for trial. While it is true that sometimes materials may be prepared both in anticipation of litigation and in the ordinary course of business, the Court finds that this was not the case. The Statement Interview in question was taken the day after the accident in the ordinary course of business and is not subject to the protection afforded by Rule 4:1(b)(3).")

Case Date Jurisdiction State Cite Checked
1994-01-01 State VA B 12/09

Chapter: 43.1302
Case Name: McDougall v. Dunn, 468 F.2d 468, 473 (4th Cir. 1972)
(holding that statements prepared by a claims adjuster were made in the "regular course of his duties as an employee of the insurance company" and, therefore, were not protected by the work product doctrine)

Case Date Jurisdiction State Cite Checked
1972-01-01 Federal

Chapter: 43.1303
Case Name: Smith v. Progressive Specialty Ins. Co., 2:15-cv-528, 2015 U.S. Dist. LEXIS 167618 (W.D. Pa. Dec. 15, 2015)
(analyzing protections in a bad faith insurance case, which the court analogized to a third party claim; "The Court instead finds that Defendant could not be said to have reasonably anticipated litigation -- i.e., to have shifted gears from adjusting the claim to preparing to litigate -- until January 27, 2015, at the absolute earliest. It was not until then that Defendant's position and Plaintiff's position as to the extent of Plaintiff's damages and lost wages appear to have really come to loggerheads. It was also not until this time that the claims representative contacted outside counsel for assistance in handling the claim. As a result, documents prepared before this date fall outside of the scope of the work product doctrine. The Court will order Defendant to produce all claims notes entries that predate January 27, 2015, to Plaintiff in un-redacted form on or before December 29, 2015.").

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

Chapter: 43.1303
Case Name: Smith v. Progressive Specialty Ins. Co., 2:15-cv-528, 2015 U.S. Dist. LEXIS 167618 (W.D. Pa. Dec. 15, 2015)
(analyzing protections in a bad faith insurance case, which the court analogized to a third party claim; "The Court disagrees. Just because a UIM claim is inherently adversarial does not mean that litigation is anticipated as soon as such a claim is asserted by an insured. . . . Borgia, Defendant 'has not pointed to anything in the record suggesting it actually anticipated litigation' whenever it was put on notice of the potential UIM claim in January 2014.").

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

Chapter: 43.1303
Case Name: Gov't Emps. Ins. Co. v. Saco,No. CV 2012-5633 (NGG) (MDG), 2013 U.S. Dist. LEXIS 142916, at *9-10 (E.D.N.Y. Oct. 2, 2013)
(selecting a "trigger date" for documents traded by an insurance company in a third-party bad faith claim context; holding that some of the documents related to the underlying case rather than the bad faith litigation; "Last, this Court finds that the three remaining e-mail chains are not protectable work product; they neither refer nor allude to any impending or existing bad faith litigation, but instead appear to discuss only the status and handling of the underlying case against Kasulas [defendant]. . . . [T]hey reflect discussion of the conduct of the underlying litigation, which, in the context of this dispute, are writings that would have been prepared anyway in the ordinary course of business, rather than in anticipation of bad faith litigation.")

Case Date Jurisdiction State Cite Checked
2013-10-02 Federal NY B 5/14

Chapter: 43.1303
Case Name: Gov't Emps. Ins. Co. v. Saco,No. CV 2012-5633 (NGG) (MDG), 2013 U.S. Dist. LEXIS 142916, at *6-7 (E.D.N.Y. Oct. 2, 2013)
(selecting a "trigger date" for documents traded by an insurance company in a third-party bad faith claim context; "Distinguishing between documents prepared in anticipation of litigation and those created in the ordinary course of business is particularly fact specific in the insurance context because 'the very business' of an insurance company 'is to evaluate claims that may ultimately ripen into litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-10-02 Federal NY B 4/14

Chapter: 43.1303
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 695-96 (N.D. Ga. 2012)
(analyzing a bad faith claim against an insurance company by the insured's assignee; ultimately holding the plaintiff assignee could obtain communications with the insured's outside lawyer but not the insurance company's in-house lawyer, and could overcome any work product protection other than opinion work product protection; "[I]n ordering the production of its claims file to Plaintiffs, the Court will permit Nationwide to redact the mental impressions, conclusions, opinions, or legal theories of counsel and the insurance representatives handling the Plaintiffs' underlying damage claims from the documents.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 9/13

Chapter: 43.1303
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 694 (N.D. Ga. 2012)
(analyzing a bad faith claim against an insurance company by the insured's assignee; ultimately holding the plaintiff assignee could obtain communications with the insured's outside lawyer but not the insurance company's in-house lawyer, and could overcome any work product protection other than opinion work product protection; "Insurance claim files generally do not constitute work product in the early stages of investigation, when the insurance company is primarily concerned with 'deciding whether to resist the claim, to reimburse the insured and seek subrogation . . . or to reimburse the insured and forget about the claim thereafter.'. . . Once litigation is imminent, however, the claims investigation file is maintained 'in anticipation of litigation' and its contents are protected by the work product doctrine." (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 9/13

Chapter: 43.1303
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 692 (N.D. Ga. 2012)
(analyzing a bad faith claim against an insurance company by the insured's assignee; ultimately holding the plaintiff assignee could obtain communications with the insured's outside lawyer but not the insurance company's in-house lawyer, and could overcome any work product protection other than opinion work product protection; "Although no Georgia court has yet to expressly hold that the privilege vanishes when the same attorney represents both the insurer and the insured under the joint-defense exception, several courts including in Florida, North Carolina, and Iowa have held in the context of a claim for third-party bad faith by an insured against her insurer that the protection of the attorney-client privilege did not apply.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 9/13

Chapter: 43.1304
Case Name: Costco Wholesale Corp. v. Arrowood Indemnity Co., Civ. Case No. C17-1212RSL, 2018 U.S. Dist. LEXIS 157335 (W.D. Wash. Sept. 14, 2018)
(analyzing work product protection in a third party insurance setting; "Even with regards to these documents, however, the insured may pierce the privilege by showing a foundation in fact for its allegation of bad faith. If the insured is able to make a colorable showing that the insurer attempted in bad faith to defeat a meritorious claim for coverage, the privilege is waived, and the entire claim file must be produced.")

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

Chapter: 43.1304
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("The Ohio Supreme Court reasoned that claims file documents relating to a claim of bad faith denial of insurance coverage and generated before a denial decision are not worthy of protection under the attorney-client privilege and as work product."; "OneBeacon is not entitled to assert the attorney-client privilege as to those attorney communications from the claims file that 'may cast light' on the bad faith insurance claim.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 43.1304
Case Name: Linthicum v. Mendakota Insurance Company, Case No. CV415-023, 2015 U.S. Dist. LEXIS 98328 (S.D. Ga. July 28, 2015)
("A more nuanced approach arises in Georgia law. Where counsel advises both the insurer and the insured jointly, the privilege is waived when the insured (as Hopkins did here) brings a bad-faith claim (directly or, as occurred here, when it is assigned to another). That contrasts with the non-joint-representation context, covering attorney work product and communications to the insurer over its coverage duties to its insured.")

Case Date Jurisdiction State Cite Checked
2015-07-28 Federal GA

Chapter: 43.1304
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
(in an insurance case, holding that a plaintiff pursuing a bad faith claim against a UIM carrier can overcome defendant's work product claim; "The Court has located only one Virginia case addressing the availability of the work product doctrine and attorney-client privilege to an insurance company defending a bad faith claim by its insured. . . . Luthman v. GEICO, 40 Va. Cir. 404 (Fairfax 1996) . . . ."; "Given the scarcity of Virginia case authority on these issues, the Court has examined decisions from other states regarding the applicability of the work product doctrine and attorney-client privilege in a bad faith action."; "The Court is satisfied that Plaintiff has a substantial need for Allstate's underlying claim file showing how her claim was adjusted and that she is unable to obtain by other means the substantial equivalent of those documents. Accordingly, all such materials other than those protected by the attorney-client privilege must be produced.")

Case Date Jurisdiction State Cite Checked
2015-01-01 State VA

Chapter: 43.1304
Case Name: National Union Fire Ins. Co. of Pittsburgh, Pa. v. Donaldson Co., Inc., Civil No. 10-4948 (JRT/JJG), 2014 U.S. Dist. LEXIS 85621, at *14, *15, *16 (D. Minn. June 24, 2014)
(analyzing work product issues in connection with a first-party insurance bad faith claim; "[S]everal courts have concluded that communications with reinsurers are relevant and discoverable in cases where a party brings claims for bad faith against an insurer. . . . But courts have also held that reinsurance communications are not discoverable. . . . Given the split of authority on this issue, the Court cannot conclude that it was contrary to law or clearly erroneous for the Magistrate Judge to order production of Plaintiffs' communications with reinsurers, and will defer to the Magistrate Judge's discretion. Furthermore, the Court is persuaded that Plaintiffs' statements to their reinsurers might shed light on what Plaintiffs knew and when with regard to their plans for handling the Burroughs litigation, which is sufficiently relevant to Donaldson's claims for breach of the duty of good faith and fair dealing to be discoverable.")

Case Date Jurisdiction State Cite Checked
2014-06-24 Federal MN

Chapter: 43.1305
Case Name: Westridge Townhomes Owners Ass'n v. Great American Ins. Co., Case No. C16-1011RSM, 2018 U.S. Dist. LEXIS 27960 (W.D. Wash. Feb. 21, 2018)
(analyzing privilege and work product issues in what appears to be a first party insurance context; "The Association moves to compel Defendants Great American Assurance Company ('Great American') and Greenwich to produce documents withheld under attorney-client and work product privileges, but which were created as part of Defendants' coverage investigation. . . . The Association relies heavily on Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013). Under Cedell, the Court begins with the 'presumption that there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process,' and that the attorney-client privilege is 'generally not relevant.' Cedell, 295 P.3d at 246. The insurer may overcome the presumption of discoverability by demonstrating that its attorney was not engaged in the quasi-fiduciary functions of investigating and evaluating or processing the claim.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal WA

Chapter: 43.1305
Case Name: Westridge Townhomes Owners Ass'n v. Great American Ins. Co., Case No. C16-1011RSM, 2018 U.S. Dist. LEXIS 27960 (W.D. Wash. Feb. 21, 2018)
(analyzing privilege and work product issues in what appears to be a first party insurance context; "As an initial matter, the Court finds that the Association has failed to make a colorable showing of bad faith sufficient to pierce all assertions of privilege. The Association's limited evidence of bad faith strikes the Court as relatively typical to insurance litigation and, to a certain extent, a product of the unique procedural posture of this case, where litigation was commenced prior to the coverage investigation. It is possible for a defendant insurer to accurately predict applicable affirmative defenses, engage in an investigation, and find that the same affirmative defenses apply without investigating in bad faith. In any event, the evidence submitted so far is insufficient to satisfy the test in Cedell [Cedell v. Farmers Ins. Co. of Washington], 176 Wn.2d 686, 295 P.3d 239 (2013), that 'a reasonable person would have a reasonable belief that an act of bad faith has occurred.'")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal WA

Chapter: 43.1305
Case Name: Dansko Holdings, Inc. v. Benefit Trust Co., Civ. A. No. 16-324, 2017 U.S. Dist. LEXIS 192230 (E.D. Pa. Nov. 21, 2017)
(analyzing privilege issues in a lawsuit company against its ESOP's trustee's service provider; "To determine whether the insurance company was acting in anticipation of litigation, the party asserting the privilege must show that the 'insurance company's activity shift[ed] from mere claims evaluation to a strong anticipation of litigation.'")

Case Date Jurisdiction State Cite Checked
2017-11-21 Federal PA

Chapter: 43.1305
Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232-APG-GWF, 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
("The discoverability of reserve information usually arises in insurance bad faith cases. In Dogra v. Liberty Mutual Fire Ins. Co., 2015 U.S. Dist. LEXIS 112405, 2015 WL 5086434, at *2 (D.Nev. Aug. 25, 2015), this Court held that reserve information is discoverable.")

Case Date Jurisdiction State Cite Checked
2017-05-25 Federal NV

Chapter: 43.1305
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: 43.1305
Case Name: Progressive Casualty Ins. Co. v. FDIC, No. C12-4041-MWB, 2014 U.S. Dist. LEXIS 116909 (N.D. Iowa Aug. 22, 2014)
("FDIC-R argues the reinsurance information is not protected by the work product doctrine because the information was created in the ordinary course of Progressive's business. I agree. The documents were prepared and distributed to the reinsurance companies and broker for business purposes. Progressive itself admits that the documents were provided for case updates pursuant to the reinsurance agreements, or in response to specific requests, and included the matter's history, its present posture, current activity, assessments of coverage and liability issues, amounts paid and reserve, and plans for future handling. . . . Those are all typical business purposes for the reinsurance industry. Progressive has not met its burden of showing that these documents were 'prepared or obtained because of the prospect of litigation.'")

Case Date Jurisdiction State Cite Checked
2014-08-22 Federal IA

Chapter: 43.1305
Case Name: Amerisure Mutual Ins. Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. April 29, 2014)
(analyzing work product issues in a first party declaratory judgment case involving insurance; "Documents constituting part of a factual inquiry into or evaluation of a claim in order to arrive at a claim decision are generated in the ordinary course of business and are not considered work product. . . . Accordingly, in an insurance-coverage dispute, the date insurance coverage is denied is generally the boundary between documents that are generated under the work product doctrine and those discoverable as produced in the ordinary course of business. . . . This is not, however, a bright-line test because '[t]he mere possibility that a certain event might lead to future litigation does not render privileged all documents prepared subsequent to that event.'. . . For example, documents prepared during the time period when the company was defending a claim under a reservation of rights have been found presumptively prepared in the ordinary course of business and not protected as work product. Id. The 'determinative question' is whether litigation was the primary motivating factor behind the creation of the document. Id.")

Case Date Jurisdiction State Cite Checked
2014-04-29 Federal FL

Chapter: 43.1305
Case Name: Progressive Cas. Ins. Co. v. FDIC, Case No. 2:12-cv-00665-KJD-PAL, 2013 U.S. Dist. LEXIS 157551, at *27-28 (D. Nev. Nov. 1, 2013)
("The FDIC [FDIC-Receiver] argues that Progressive's objections to producing claim-specific reinsurance information on attorney-client privilege or work-product doctrine grounds are misplaced because numerous courts have held that reinsurance documents are not privileged. This is because courts have recognized that reinsurance-related information may be generated in the ordinary course of business, and not for the purpose of seeking legal advice or solely because litigation is anticipated. Although Progressive may be able to establish that certain reinsurance communications are privileged, it is not entitled to assert a blanket privilege with respect to all such communications. The court should order Progressive to produce these reinsurance communications, permitting Progressive to serve a privileged document log for any documents withheld as privileged.")

Case Date Jurisdiction State Cite Checked
2013-11-01 Federal NV B 5/14

Chapter: 43.1402
Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 36 (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; "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. Primarily, the circuit courts have dealt with this issue in the context of investigations done by insurers; whereas, the file being sought in the present case was compiled, not by an insurer, but by a private company hired by Sentara for purposes other than insurance. While some courts have chosen to draw a bright-line rule requiring some minimal involvement of counsel, others have chosen to base the decision instead on a variety of factors. See, e.g., Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115, 115-16 (Chesterfield County 1999); S.W. Heischman, Inc. v. Reliance Insurance Co., 30 Va. Cir. 235, 243-44 (Albemarle County 1993)")

Case Date Jurisdiction State Cite Checked
2004-01-01 State VA