The work product doctrine protects materials prepared by a client or the client’s agents (including a lawyer) in the course of or in anticipation of litigation. Courts look at many factors in determining whether a party reasonably anticipated litigation.
Some clients and their lawyers assume that retaining a lawyer automatically entitles them to the work product protection. However, in United States Fidelity & Guaranty Co. v. Braspetro Oil Services Co., Nos. 97 Civ. 6124 (JGK ) (THK), 98 Civ. 3099 (JGK)(THK), 2000 U.S. Dist. LEXIS 7939, at *36, 44 (S.D.N.Y. June 7, 2000), the court rejected this simple notion. The court held that “[t]he retention of an attorney is one indicia of the anticipation of litigation. Nevertheless, it is not dispositive.” As the court explained, in the large construction dispute at issue in that case “there were complex issues to be addressed, regardless of litigation, for which an attorney knowledgeable in suretyship issues . . . could provide invaluable assistance.”
Lawyers whose clients reasonably anticipate litigation should not assume that a court reviewing the matter will find that a lawyer’s retention is sufficient evidence to establish the start date for work product protection. Instead, the lawyer should prepare a contemporaneous document articulating why the client anticipated litigation. Such a document might assure success in a later dispute over the protection.