Because the work product doctrine does not protect from disclosure materials created in a company’s “ordinary course of business” (which would have been prepared even if the company had not anticipated litigation), careful companies create parallel procedures for investigating incidents, one of which covers any incidents and one of which begins only if the company anticipates litigation. These best-laid plans can go awry if the company does not follow its own procedures.
In Poseidon Oil Pipeline Co. v. Transocean Sedco Forex, Inc., No. 00-760 c/w 00-2154 Section “T” (2), 2001 U.S. Dist. LEXIS 18553 (E.D. La. Oct. 30, 2001), a company had astutely created parallel procedures, and sought the work product protection for materials created during an investigation. However, the Court cited the company’s written internal memoranda in denying the work product claim. The Court noted that the company’s written procedures required that a company lawyer be involved in any litigation-related investigation – yet no company lawyer participated in the investigation at issue.
Establishing parallel procedures for investigations provides the best chance to assure work product protection, but companies which do not follow their own procedures should not expect to receive the work product protection that they tried to create.