The work product doctrine can protect materials prepared “in anticipation” of litigation. However, the materials must also be prepared “because of” the litigation, and not created in the “ordinary course of business.”
A recent decision highlights this requirement. In Wikel v. Wal-Mart Stores, Inc., 197 F.R.D. 493, 496 (N.D. Okla. 2000), the court explained that even an anticipation of litigation does not automatically qualify an accident or incident report as work product. If some corporate policy requires that all incidents be investigated, the investigation materials might have been created in the ordinary course of business—”out of a concern for future litigation, but also to prevent reoccurrences, to improve safety and efficiency, and to respond to regulatory obligations.” The court indicated that before extending work product protection a court must determine whether “anticipated litigation is the driving force behind the preparation of each requested document” (emphasis added).
It would be easier to meet this standard if a company created a separate procedure for investigations undertaken because of anticipated litigation. The procedure would ideally include an articulation of why the anticipated litigation is the “driving force” behind the preparation of any materials.