Fed. R. Civ. 26(b)(3)(A) protects from discovery documents and tangible things that are prepared in anticipation of litigation or for trial. Litigants asserting work product protection must (if called upon to do so) identify the exact moment when they first anticipated litigation, and consistently apply that date when withholding and logging documents.
In City of Fort Collins v. Open International, LLC, Civ. A. No. 21-cv-02063-CNS-MEH, 2022 U.S. Dist. LEXIS 154564 (D. Colo. Aug. 16, 2022), plaintiff City asserted work product protection for documents prepared by its billing system consultant. The City argued that the consultant’s “work was at the direction and supervision of the City’s counsel . . . concern[ing] ‘the City’s risk factors under the project and potential legal claims.'” Id. at *10 (internal citation omitted). The court bluntly rejected the City’s work product assertion: (1) noting that “a directive from counsel alone [does not] establish[] the underlying purpose of the subject documents”; and (2) pointing to defendant’s reference to “risk factors” and “potential legal claims” as insufficiently specific. Id. The court explained that the work product doctrine requires “contemplation of specific litigation” — and thus requires the litigant to “show that litigation was ‘commenced, threatened or contemplated’ at the time the relevant documents and communications were made.” Id. at *11 (citation omitted). The court also “note[d] that some of the documents over which the City appears to assert the work product privilege were created before — according to the City’s counsel and declaration made under penalty of perjury — the City began anticipating litigation.” Id. Oops.
Some corporations try to support a work product claim by essentially arguing that they are always being sued for something or other. Courts require more specific anticipation of identifiable litigation, and expect a consistent logging of withheld documents.