Can the Work Product Doctrine Protect Documents Relating to a Decision Not to Litigate?

November 28, 2007

The work product doctrine can protect documents prepared in anticipation of litigation, as long as their creation was motivated by the litigation. The fact that litigation does not actually ensue will not automatically doom a work product claim ‑‑ but litigation must have prompted the documents’ creation.

In Howell v. City of New York, No. CV-06-6347 (ERK)(VVP), 2007 U.S. Dist. LEXIS 71063 (E.D.N.Y. Sept. 25, 2007), a civil rights plaintiff sought documents the City created during its earlier criminal investigation of him. The court denied the City’s work product protection. The court noted that the City decided not to prosecute, which meant that the documents “were made precisely because there would be no litigation or trial.” Id. at *3 (emphasis in original). As the court explained it, “[t]he reason for declining to prosecute has nothing to do with ‘strategic litigation planning’ and disclosing the reason does not permit the plaintiff to ‘piggyback’ on an adversary’s preparation.” Id. at *4.

Not every court would take this narrow a view, but lawyers should remember that the work product doctrine applies in anticipation of litigation, not anticipation of non-litigation.