Foreign Litigation Can Trigger Reasonable “Anticipation” of Litigation in the U.S.

January 31, 2001

If a party claims that materials are protected from discovery by the work product doctrine, a court may have to determine when the party first reasonably “anticipated” litigation—which becomes the date triggering the availability of the work product doctrine protection. Courts sometimes have to scour the record for some indicia of the reasonable “anticipation of litigation,” looking for such factors as administrative proceedings, threatening correspondence, a lawyer’s involvement, etc.

In Smithkline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 2000 U.S. Dist. LEXIS 13606, at *12 (N.D. Ill. Sept. 12, 2000), the court found that “litigation was ongoing in Canada and Spain,” which rendered American litigation reasonably “anticipated” for work product doctrine purposes.

A party seeking to protect materials under the work product doctrine should add foreign litigation to the list of factors that can justify withholding materials from discovery on the basis that they were created in reasonable “anticipation” of litigation.