Court Examines a Work Product “Trigger Date”

December 13, 2006

The work product doctrine can apply only when its creator is in litigation or reasonably anticipates litigation. The party claiming the protection obviously must be able to explain why it anticipated litigation.

In some situations, an event outside the creator’s control can trigger a reasonable anticipation of litigation. In Schipp v. General Motors Corp., No. 2:03CV00175 JLH, 2006 U.S. Dist. LEXIS 72940 (E.D. Ark. Oct. 5, 2006), the court held that the work product doctrine protected statements made by a driver immediately after an accident. The court explained that the driver’s “vehicle crossed the median of an interstate highway and crashed into oncoming traffic. As a result, one person was killed and two others were injured. A reasonable person would expect litigation to ensue.” Id. at *16.

Although in some situations an adversary’s action (such as an angry letter) triggers the work product protection, in other situations an extrinsic event can provide justification for the protection.