General Counsel’s Role Found Insufficient to Assure Work Product Protection

November 13, 2002

Some in-house counsel incorrectly assume that investigations they oversee in connection with anticipated litigation will automatically deserve work product protection. However, they still must establish that the work they supervise relates to the litigation and not some normal business purpose.

In Guardsmark, Inc. v. Blue Cross & Blue Shield, 206 F.R.D. 202, 210 (W.D. Tenn. 2002), the court found that a company’s audit primarily related to business matters, and not anticipated litigation. The court held that the company had not established that its executives or lawyers had a “subjective belief that litigation was a real possibility,” and further explained that “the fact that general counsel may be involved in oversight does not make it self-evident that the documents prepared were prepared in anticipation of litigation.”

While a lawyer’s involvement can support an argument that the client anticipated litigation, even the general counsel’s involvement is not dispositive. If they hope to assert work product protection, both in-house and outside lawyers must be prepared to establish their client’s reasonable anticipation of litigation.