The work product doctrine sometimes involves clients'
primarily business motivation "morphing" into
litigation-related motivation – thus entitling the clients
to work product protection.
Rockwell Automation, Inc. v. Radwell International,
Inc., defendant argued that plaintiff could not claim work
product for a "gray-market investigation" into
defendant's practices, "because plaintiff conducted
gray-market investigations going back as far as 2004." Civ.
No. 15-5246 (RBK/JS), 2019 U.S. Dist. LEXIS 70107, at *4
(D.N.J. Apr. 25, 2019). But the court disagreed, noting
that "even if true, this does not detract from the fact
that starting in 2014 plaintiff's investigation
specifically targeted defendant and others for litigation
purposes." Id. A few days later, in Kratzer v. Scott Hotel Group, LLC, Case No.
4:17-cv-00212-TWP-DML, 2019 U.S. Dist. LEXIS 72142 (S.D.
Ind. Apr. 29, 2019), the court similarly applied work
product protection to plaintiff's narrative of events that
supported his lawsuit against defendant hotel. The court
acknowledged that "Scott Hotel is correct that
[plaintiff's] narrative initially was not
made in anticipation of litigation," but noted that he had
"modified his narrative document in Microsoft Word after
pursuing litigation, and therefore he made those
modifications in anticipation of litigation." Id.
at *8-9. The court thus held that "the later iterations
were covered by work product privilege," because plaintiff
did not forfeit work product protection based on "[t]he
mere fact that [he] recorded his thoughts in anticipation
of litigation as modifications and additions to a
pre-existing document instead of in a new document." Id. at *9.
As in so many other areas, the work product doctrine often
involves subtleties that normally do not arise in the
attorney-client privilege context.