Courts Differ on the Meaning of the Work Product Rule’s "Anticipation" and "Litigation" Elements: Part I

November 17, 2021

Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required "anticipation."

In Penn Engineering & Manufacturing Corp. v. Peninsula Components, Inc., the court ruled that work product protection only applied if "'there existed an identifiable specific claim of impending litigation'" – explaining that "even [a] 'likely' prospect of litigation is insufficient." Civ. A. No. 19-cv-513, 2021 U.S. Dist. LEXIS 153047 at *7 (E.D. Pa. Aug. 12, 2021) (citations omitted). Six days later, the court in Verret v. Acadiana Criminalistics Laboratory Commission held that the work product doctrine "'can apply where litigation is not imminent.'" Case No. 6:20-CV-01302, 2021 U.S. Dist. LEXIS 156381, at *3 (W.D. La. Aug. 18, 2021) (emphasis added) (citation omitted). Eight days after that, the state supreme court in University of Louisville v. Eckerle held that "[l]itigation must be imminent or pending" and that "'the mere potential for litigation is not sufficient.'" No. 2020-SC-0216-MR, 2021 Ky. Unpub. LEXIS 49, at *11 (Ky. Aug. 26, 2021) (emphasis added) (citation omitted).

Corporations and their lawyers must determine the pertinent court's standard when assessing a work product claim, and the likelihood of success in satisfying that standard. Of course, this can be difficult if the corporation does not know where it might be sued. Next week's Privilege Point will address a court's interpretation of the word "litigation."

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