Corporations creating documents in the "ordinary course of business"
normally cannot claim work product protection, because they were not
motivated by anticipated litigation. But the work product doctrine actually
requires a more subtle analysis.
In Montagano v. Safeco Insurance Co. of America, the court
correctly recognized that defendant "misses the point" by arguing that the
work product doctrine applied because "the disputed documents were not
created in the ordinary course of business." Civ. A. No. 16-9375, 2018 U.S.
Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018). As the court explained,
"[t]he critical inquiry here is not whether the materials at issue were
created in the ordinary course of Defendant's business, it is whether
Defendant prepared the materials in anticipation of litigation." Id. The court found that defendant had not.
To be sure, documents created in the "ordinary course of business"
generally do not deserve work product protection. But even documents
created in extraordinary circumstances do not deserve work product
protection -- unless they were motivated by litigation or anticipated
litigation. For instance, the Southern District of New York rejected a
lender's work product claim for documents it created after the unique
September 11 World Trade Center attack – holding that business rather than
litigation concerns motivated the documents' creation.