Court Analyzes How “Anticipation Of Litigation” Can Wax and Wane

February 28, 2002

Documents created in “anticipation of litigation” and because of the litigation may deserve work product protection. Most courts apply both an objective and subjective approach to this issue, and many lawyers do not appreciate the subtlety of the analysis required in some situations.

For instance, in In re Grand Jury Proceedings, 2001 U.S. Dist. LEXIS 15646 (S.D.N.Y. Oct. 3, 2001), a court held that a company reasonably anticipated litigation when a government agency threatened regulatory proceedings. However, as time wore on without the government undertaking the threatened action, the anticipation dissipated. The court therefore held that documents created eight months after the initial threat did not deserve work product protection because by that time it was no longer reasonable for the company to anticipate government litigation.

Lawyers should not assume that once their clients reasonably anticipate litigation, any documents prepared after that date will automatically deserve work product protection. If the threat of litigation lessens over time, the protection can disappear.