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.