Court Adopts a Liberal View of “Anticipation Of Litigation” Triggering the Work Product Protection

July 19, 2000

Federal and state courts protect work product prepared by a client or the client’s representatives (including but not limited to lawyers) if the work product is prepared in connection with or in “anticipation” of litigation. Some courts require that the litigation be “imminent” before protecting the work product.

The Southern District of New York recently took a more liberal approach, holding that “there is no requirement that the anticipated litigation be imminent rather than merely a potential future prospect.” Marsh v. Safir, No. 99 Civ. 8605 (JGK) (MHD), 2000 U.S. Dist. LEXIS 5136, at *26 (S.D.N.Y. Apr. 20, 2000).

Lawyers advising their clients about the work product doctrine should be aware of the “anticipation of litigation” standard that applies to the client’s work product.