The Federal Rules of Civil Procedure and most state court rules memorialize
their basic work product doctrine in just one sentence. But courts take
divergent views on what that sentence means.
Some courts apply work product protection only to documents that litigants
will use to "assist" in litigation. Other courts protect documents created
"because of" the litigation, even though they will not be used to "assist" in
that litigation. In Deutsche Bank National Trust Co. v. WMC Mortgage,
LLC, the court noted that under Second Circuit precedent "the phrase
'because of' trumps 'assist in' as the talisman by which a document's
eligibility for attorney work product protection will be evaluated." Nos.
3:12-CV-933, -969, -1699, & 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158,
at *37-38 (D. Conn. Apr. 14, 2015). Three days later, in Byman v.
Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC), the court took
the same approach — noting that "[n]umerous courts of appeals have specifically
adopted the 'because of' test." Ch. 7 Case No. 12-34546, Adv. No. 14-03231, 2015
Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015). But a month earlier,
a Maine state court applying that state's work product rule (essentially
identical to the federal rule) held that a party seeking work product doctrine
protection "must demonstrate that the documents were prepared exclusively to
assist in anticipated or ongoing litigation." Irving Oil Ltd. v. ACE INA
Ins., No. BCD-CV-09-35, 2015 Me. Super. LEXIS 72, at *7 (Me. Super. Ct. Mar.
The "because of" standard casts a far wider protective net than the "assist"
standard. For instance, corporations communicating about how they might pay for
an adverse judgment might create documents satisfying the former standard but
not the latter. Next week's Privilege Point will address other work product