The work product doctrine protects material prepared in reasonable “anticipation” of litigation and because of the litigation. Courts obviously must assess when a party reasonably anticipated litigation for purposes of applying this doctrine.
In Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610, 617-18 (N.D. Ill. 2000), the court reviewed the language of correspondence during the critical period, noting such references as the amount of money at stake and recognition by one of the parties that the other party had taken a “litigious tone” in one of its letters. The court rejected the adversary’s claim that the work product doctrine protection had been triggered earlier, noting that the earlier correspondence included the phrase: “we remain hopeful that the current agreement can be restructured, and our relationship rebuilt.” The court held that this language indicated that the parties were “attempting to work out a smooth, mutually satisfactory relationship pursuant to the terms of an existing agreement,” and thus negated an anticipation of litigation.
Litigants looking back at correspondence in determining when the work product protection was triggered need to know what language courts have found significant. Lawyers advising parties in dispute should be aware of the possible future implications of using certain phrases or even a certain tenor in their correspondence.