The work product doctrine can protect documents primarily motivated by a corporation's involvement in or reasonable anticipation of litigation. Documents created in the corporation's ordinary course of business normally will fail to satisfy this standard, as will documents motivated by some external or internal requirement. Thus, corporations asserting work product protection normally must show that the withheld documents are different in some way from what the corporations would normally create.
In Heckman v. TransCanada USA Services, Inc., Civ. A. No. 3:18-CV-00375, 2020 U.S. Dist. LEXIS 7293 (S.D. Tex. Jan. 13, 2020), the court upheld defendant's work product claim for documents generated during its investigation of an employee's gender and age discrimination charge. Plaintiff argued that "these investigatory documents would have been created regardless of whether the prospect of litigation existed." Id. at *6. The court rejected her argument – emphasizing that "[t]he investigation initiated by [defendant] after receiving [plaintiff's] discrimination complaint was far from the type of investigation conducted in the normal course of business." Id. at *6-7. Among other things, defendant's "general counsel herself directed the investigation due to the heightened likelihood of litigation" – in contrast to the "normal practice" of the defendant's HR Governance group investigating a complaint. Id. at *7. The court ultimately concluded that "[b]ecause [defendant's] counsel-directed investigation was neither routine nor ordinary," the work product doctrine protected the investigation-related withheld documents. Id.
This approach might not work if some external or internal requirement mandated the investigation of such complaints, because in those situations corporations arguably might have created the same documents regardless of their litigation expectation. Next week's Privilege Point describes another approach that increases the likelihood of successfully claiming work product protection.