Work product protection depends on the creator's involvement in or anticipation of litigation. Courts generally look at what might be called "trigger events" – events that satisfy the work product doctrine's "anticipation" element. An adversary's threat to litigate against the creator seems like the most obvious "trigger event" that can support a work product claim.
But not always. In Lawson v. Spirit AeroSystems, Inc., Case No. 18-1100-EFM-ADM, 2019 U.S. Dist. LEXIS 176497 (D. Kan. Oct. 8, 2019), defendant Spirit's retired CEO Lawson considered and then entered into a consulting arrangement with an investor in Spirit's competitor. Lawson claimed work product protection starting on January 26, 2017 – the day "that Spirit threatened litigation against Lawson if he breached his Retirement [non-compete] Agreement and against any entity . . . that tortiously interfered with Lawson's contractual obligations." Id. at *21. But the court rejected Lawson's argument, noting that: (1) Lawson and the investor had not as of that date "decided to move forward with their business arrangement . . . thus making litigation real and imminent"; and (2) over the next several days Spirit and the investor "continued to communicate about a potential amicable resolution." Id. at *22. As the court put it, "[w]here parties continue to negotiate to resolve disagreements amicably, litigation is 'not a substantial and significant threat.'" Id. (citation omitted). The court ultimately determined that Lawson could reasonably have anticipated litigation when he actually began working for the investor – January 31, 2017.
Some courts go even further – pointing to almost certainly disingenuously friendly language in otherwise threatening correspondence as inconsistent with imminent litigation. Companies actively planning to pursue or defend anticipated litigation may want to internally memorialize that anticipation, or at the least avoid statements such as "I am sure we can work this out" when communicating with their soon-to-be adversary.