Federal and state rules provide a qualified protection to materials prepared for or in anticipation of litigation—if the materials were prepared “because of” the litigation. Beyond this general consensus, courts take surprisingly varied views of the “because of” standard. Two recent decisions show how big the gap can be.
In Admiral Ins. Co. v. R.A. Jakelis & Co., Civ. A. Nos. 99-2270, 99-2676, 99-3281, 00-1485 Section A(1), 2000 U.S. Dist. LEXIS 14151 (E.D. La. Sept. 21, 2000), the court held that materials prepared by an audit firm were not entitled to work product protection because they did not “map out [the client’s] actual litigation strategy.” Id. at *5 (quoting United States v. El Paso Co., 682 F. 2d 530, 543 (5th Cir. 1982), cert. denied, 466 U.S. 944 (1984)). This holding represents the narrowest view of the work product doctrine, because it protects only those materials that will actually be used in the litigation.
In contrast, the court in Marsh v. Safir, No. 99 Civ. 8605 (JGK) (MHD), 2000 U.S. Dist. LEXIS 5136, at *26 (S.D.N.Y. Apr. 20, 2000) held that the work product protection covered “documents prepared ‘because of’ litigation or the prospect of litigation, regardless of whether the document was intended to assist in such litigation.”
Lawyers should be familiar with these widely-varying views of the work product protection, memorialize whatever support they can for the strictest “because of” requirement, and be prepared to produce whatever materials cannot meet the pertinent jurisdiction’s standard.