All courts agree that the work product doctrine protection begins only when the client is in or reasonably anticipates litigation. Courts vary widely in how they define the “anticipation” standard – some require litigation to be “imminent,” while others provide the work product protection if there is “some possibility” of litigation.
In Minebea Co. v. Papst, 229 F.R.D. 1 (D.D.C. 2005), Papst had sued a company called Western Digital. However, Papst later dismissed the lawsuit without prejudice, and entered into a tolling agreement with Western Digital. The court held that documents created after that time were “no longer created for litigation purposes; rather, they [were] produced to facilitate a business relationship.” Id. at 4. Interestingly, the court explained that “this is true even if the parties eventually end up in litigation because the negotiations fail” – although the court acknowledged that “there is clearly a point at which the parties once again begin ‘anticipating litigation’ as the relationship decays.” Id.
Lawyers would be wise to parse such situations as carefully as some courts do, rather than simply assuming that the work product doctrine covers documents created by companies that were in litigation, stopped for a while, and then resume the litigation.