Although the work product doctrine can protect documents only if they were prepared in connection with or in anticipation of litigation, that requirement alone is not sufficient to assure the protection.
In addition to the “anticipation” requirement, documents deserve work product protection only if they are prepared “because of” the litigation.
The Southern District of New York recently emphasized this causation requirement. In National Congress for Puerto Rican Rights v. City of New York, 194 F.R.D 105, 109 (S.D.N.Y. 2000), the court found that statistical information about arrests by the New York City police was not protected by the work product doctrine—although the information was compiled in the midst of litigation. The court found that the police department prepared the information in response to questions from City Council, and not “because of” the litigation.
Lawyers and their clients should not assume that documents either one of them prepares in anticipation of or in connection with litigation will automatically merit work product protection. They should also keep in mind this equally important “causation” element.