Federal Claims Court Explores the Characterization of Administrative Proceedings as “Litigation” for Work Product Purposes

March 15, 2006

The work product doctrine protects documents created in connection with or in anticipation of “litigation.” Many cases deal with the “anticipation” standard, but only a few deal with a more basic question — what is “litigation” for work product purposes?

In Pacific Gas & Electric Co. v. United States, No. 04-74C, 2006 U.S. Claims LEXIS 18, at *6-7 (Fed. Cl. Jan. 25, 2006) (citation omitted), the court held that administrative proceedings before the Nuclear Regulatory Agency and two California administrative agencies did not automatically count as “litigation” — because the “ultimate objective” of the administrative process was not adversarial, but rather to set rates or deal with licenses. The court noted that the proceedings might become adversarial if someone intervenes, so the court analyzed each pertinent document to determine if (as the court put it in one context) the document “would have been prepared irrespective of the potential adversarial aspects” of a rate proceeding. Id. at *72. The work product doctrine would not protect any document that was prepared to obtain a permit or license “rather than in order to respond to, rebut, strategize for, or otherwise ‘litigate’ against a known adversary” — even if the document “is later used in adversarial aspects of these proceedings.” Id. at *80.

Those litigating before administrative agencies should keep these distinctions in mind.