Federal Courts Disagree on the Work Product “Anticipation” Standard

December 22, 2004

Although all federal courts applying the work product doctrine necessarily look to the same simple phrase in determining what triggers the work product protection of Fed. R. Civ. P. 26(b)(3), the decisions reflect an amazing variation.

For instance, the Eastern District of Louisiana recently explained that the work product doctrine protects materials if “the primary motivating purpose behind the creation of the document was to aid in possible future litigation.” Cade v. Monica Lee Tugs, Inc., Civ. A. No. 03-2380 c/w 2474 SECTION “D” (3), 2004 U.S. Dist. LEXIS 21422, at *7 (E.D. La. Oct. 22, 2004) (emphasis added). A few weeks earlier, the Eastern District of Pennsylvania explained that materials deserve work product protection only if litigation is “imminent.” United States ex rel. Hunt v. Merck-Medco Managed Care, LLC, No. 00-CV-737, 2004 U.S. Dist. LEXIS 17779, at *8 (E.D. Pa. Aug. 31, 2004) (emphasis added).

Because each Federal court applies its own “anticipation” standard (and because companies cannot easily predict where they might be sued), companies can never really know what standard will be applied to materials they create “in anticipation of” litigation.