Ironically, federal and state courts applying their succinct work product rules exhibit more diversity than when construing the more complex and mostly common law attorney-client privilege. One difference focuses on whether the work product doctrine protects: (1) only documents created solely for litigation purposes; or (2) documents created "because of" the litigation, even if they were also motivated by other factors.
In United States ex rel. Rubar v. Hayner Hoyt Corp., No. 5:14-CV-830 (GLS/CFH), 2018 U.S. Dist. LEXIS 189274 (N.D.N.Y. Nov. 5, 2018), a New York federal court upheld defendants' work product claim for a report analyzing possible civil or criminal claims against another party. The court explained that defendants "have demonstrated that [litigation] was one of the purposes of the Report" – and emphasized that "defendants are not required to prove that their sole or primary purpose in obtaining the Report was litigation." Id. at *11 (footnote omitted). Four days later, in Noven Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp., No. 654740/2016, 2018 N.Y. Misc. LEXIS 5133 (N.Y. Sup. Ct. Nov. 9, 2018), a New York state court took the opposite approach. The court held that defendant's valuation of joint venture assets did not deserve work product protection under New York state courts' different work product rule, because defendant "did not demonstrate that the report was created solely and exclusively in anticipation of litigation." Id. at *9.
Because the work product doctrine rests on court rules (which sometimes differ among federal and state courts in the same state), courts do not conduct a choice of laws analysis. Instead, they simply apply their own rule, and their own interpretation of that rule. Because corporate defendants usually do not know where they will be sued, they cannot fully analyze their available work product protection until litigation begins. Next week's Privilege Point will discuss another variation.