Must a Party Identify a Specific Claim Before Asserting Work-Product Doctrine Protection?

December 5, 2001

Although courts take at face value the work-product doctrine’s limitation to materials prepared “in anticipation of litigation or for trial,” courts have taken widely varied approaches to the “anticipation” requirement.

For instance, in Judicial Watch, Inc. v. Janet Reno, 154 F. Supp. 2d 17, 18 (D.D.C. 2001), the court indicated in an FOIA case that “if litigation was inevitable, there is no need to identify a specific claim.” Other courts insist that a party seeking the work-product protection identify the specific claim for which the materials were created. See, e.g., United States v. Ernstoff, 183 F.R.D. 148, 155, 156 (D.N.J. 1998) (explains that a “party should demonstrate that there existed ‘an identifiable specific claim or impending litigation’ “).

Lawyers asserting the work-product protection should determine the approach that the pertinent court has taken to the necessity of identifying a specific claim as a prerequisite to asserting the protection.