Can the Work Product Doctrine Protect Documents Written After the Litigation has Ended?

January 22, 2003

The work product doctrine protection can protect documents prepared “in anticipation of litigation or for trial,” as long as the documents’ creation was motivated by the litigation. Can a lawyer satisfy that standard by memorializing litigation-related thoughts and impressions after the litigation is over?

In eSpeed, Inc. v. Board of Trade of Chicago, Inc., M8-85 (CSH), 2002 U.S. Dist. LEXIS 7918, at 5* (S.D.N.Y. Apr. 29, 2002), the court held that a lawyer’s opinion letter articulating the lawyer’s thoughts about the litigation could receive work product protection even though the lawyer did not “put pen to paper” until after the litigation had ended.

Lawyers might take some comfort in knowing that documents they prepare after litigation has ended might still deserve work product protection, but should be sure to include in the document an articulation of its relationship to the now-concluded litigation.