The work product doctrine requires: (1) litigation; (2) anticipation; and (3) motivation. And even though the work product doctrine rests on a single sentence in the Federal Rules, federal courts ironically take more varied approaches to the motivation element than they do toward the usually common law-based privilege protection.
In Hempel v. Cydan Development, Inc., Case No. PX-18-3040, 2020 U.S. Dist. LEXIS 153208 (D. Md. Aug. 24, 2020), the court adopted the narrow “assist” standard in analyzing the work product motivation element. The court bluntly held that “[o]nly documents created in service of anticipated litigation can be said to have been ‘prepared’ for litigation under Rule 20(b)(3).” Id. at *15 (emphasis added). The court explicitly rejected a broader motivation standard, under which an email among friends “about the litigation and their frustration with Defendants would qualify for the work product protection, even [if] it was not written with any purpose of actually assisting Plaintiffs or their counsel in any anticipated litigation.” Id. (emphasis added). Just four days later, the court in Profit Point Tax Technologies, Inc. v. DPAD Group, LLP, No. 20-mc-0009, 2020 U.S. Dist. LEXIS 156639 (W.D. Wisc. Aug. 28, 2020), applied the much broader “because of” work product doctrine motivation standard. The court held that the work product doctrine protected from discovery “drafts of various fee-splitting agreements [which] were prepared because of the prospect of litigation.” Id. at *13. The court concluded that “[t]he overall record indicates that these documents were prepared because of disputes that would otherwise have been litigated” Id. (emphasis added). Presumably the draft fee-splitting agreements would not have been “created in service of anticipated litigation” or written for the purpose of “actually assisting” in the litigation.
Federal courts line up on one side or the other of this dramatic “assist” versus “because of” work product motivation standard disagreement. For corporate defendants who might not know where they will be sued until they are sued, this difference creates a worrisome uncertainty.