Corporate Investigations Can Start as the “Ordinary Course Of Business” But Continue in “Anticipation Of Litigation”

February 6, 2002

The work product doctrine protects documents that companies prepare in “anticipation of litigation” and because of the litigation. This second requirement focuses on the motivation for the documents’ creation, and denies the protection to documents prepared in the “ordinary course of business” (because those documents would have been created even if there had been no litigation anticipated).

In Welland v. Trainer, No. 00 Civ. 0738 (JSM), 2001 U.S. Dist. LEXIS 15556, at *6 (S.D.N.Y. Sept. 28, 2001), a company relied on its lawyers to investigate the company’s senior vice president, who was accused of unethical business practices. The court refused to protect the documents generated during the investigation, ruling that the investigation of any employee accused of unethical practices would occur “in the ordinary course of business to determine whether or not to terminate that employee.” The court extended the work product protection to documents prepared after the company terminated the vice president, because at that time the company could anticipate that the vice president would sue the company

Companies and their lawyers wishing to maximize the work product doctrine protection should articulate the motivation for their investigations. Otherwise, a court might find that an investigation was conducted in the “ordinary course of business” rather than in anticipation of litigation.