Court Coins a Useful New Phrase in Addressing the Work Product Doctrine

September 27, 2001

The work product doctrine only covers documents prepared in anticipation of litigation or for trial, and because of the litigation or trial. Many courts discuss this latter requirement in terms of “causation.”

One court recently analyzed this concept in a useful way. In Amway Corp. v. Procter & Gamble Co., No. 1:98cv 726, 2001 U.S. Dist. LEXIS 4561, at *18-19 (W.D. Mich. Apr. 3, 2001), the court explained that “the concept of ‘anticipation of litigation’ embodies both a temporal and motivational aspect. . . . The document must have also been prepared for purposes of the litigation and not for some other purpose. Thus, materials may be prepared before or when litigation is imminent or pending without necessarily having been prepared ‘in anticipation of litigation’ from a motivational point of view.”

Thinking of this work product requirement in terms of “motivation” rather than “causation” provides a useful reminder that the protection only arises if the party created the materials with the proper frame of mind.