The work product doctrine only protects documents (1) created at a time when the author is in or reasonably anticipates litigation and (2) which were prepared because of the litigation. Even if prepared in the midst of litigation, documents that company employees prepare in the “ordinary course of business” usually fail the second test.
In Heath v. F/V Zolotoi, 221 F.R.D. 545 (W.D. Wash. 2004), a ship’s owner failed to produce (or include on a privilege log) statements taken from witnesses immediately after an accident. The plaintiff sought sanctions when he discovered the lapse. The plaintiff’s lawyer obviously knew the work product rules, because during a deposition he asked one of the document’s authors whether the process of taking statements “is just part of the normal operations procedure for this vessel” and in the “normal course of business” for the author – to which the author answered “yes.” Id. at 547. The court found the defendant’s failure to produce or log the statements “egregious,” and ruled against the defendant on liability. Id. at 550.
Although the defendant certainly had no excuse for not logging the withheld documents, the defendant’s lawyer would not be the first to ignore the second part of the work product test – which goes to motivation rather than timing.