Courts Continue to Debate the Standard for Judging “Anticipation of Litigation”

June 29, 2005

Although one might think that federal courts would generally agree on the standards for applying the one-sentence work product rule in Fed. R. Civ. P. 26(b)(3), there is a remarkable divergence on a number of work product issues – including the standard for judging “anticipation of litigation.

In In re OM Group Securities Litigation, 226 F.R.D. 579, 584-85 (N.D. Ohio 2005), the court explained that a party seeking work product protection must show that “litigation was a real possibility.” A few weeks earlier, the court in Esposito v. Galli, No. 4:04-CV-475, 2005 U.S. Dist. LEXIS 1559, at *13 (M.D. Pa. Feb. 4, 2005) held that the work product protection could not apply “[i]f litigation is not imminent” (internal citation omitted).

This divergence is interesting as an intellectual matter, but has a real impact on companies who have no idea where they might be sued – and therefore cannot know ahead of time by what standard their work product claim will be judged.