The work product doctrine can protect documents primarily motivated by
litigation or anticipated litigation, rather than prepared in the ordinary
course of business or motivated by some other non-litigation purpose. But
actions occurring after the documents' creation sometimes can reflect back
on that key motivational element.
In Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 U.S. Dist.
LEXIS 6343 (W.D. Okla. Jan. 14, 2019), the court analyzed defendant's work
product claim for documents it created while investigating a
tractor-trailer accident. The court acknowledged that defendant anticipated
litigation, because plaintiff's lawyer threatened litigation the day after
the accident. But the court denied defendant's work product claim --
emphasizing that the defendant's Director of Safety "has access to this
information for non-litigation purposes." Id. at *5. The court
concluded that "the portion of the claims file available [to defendant's
Director of Safety] is discoverable to Plaintiff because it is generated in
the ordinary course of business and not directly in anticipation of
litigation." Id. at *6.
Many if not most courts would take a different approach, properly analyzing
documents' creation rather than their post-creation availability to others.
But maintaining the litigation focus of appropriately created work product
enhances the chance for successfully claiming that protection.