The work product doctrine protects documents (1) prepared during or “in anticipation of” litigation and (2) primarily motivated by that litigation. Anyone can create work product, but most courts look to a lawyer’s participation as boosting the argument in favor of protection.
Even courts properly applying the work product rule retain an enormous amount of discretion. In Johnson v. Kraft Foods North America, Inc., No. 05-2093-JWL, 2007 U.S. Dist. LEXIS 72453 (D. Kan. Sept. 27, 2007), racial discrimination plaintiffs sought documents from defendant Kraft. Kraft withheld two documents prepared by its in‑house lawyer, which included a statistical analysis of Kraft employees along racial lines. The court correctly noted that the “mere fact that the summaries were prepared by lawyers acting in a legal capacity does not render the documents protected by the work product doctrine.” Id. at *8. However, the court then took a very narrow view of the “motivation” element: “It may be, for example, that the claim of discrimination to which the summaries purportedly relate never amounted to anything beyond an informal, internal complaint such that the threat of litigation was not imminent or even a possibility.” Id. at *6. The court ordered the documents produced.
Courts taking a broader view normally would protect documents created in response to a “claim of discrimination.” Decisions taking a narrower view highlight the need for companies to contemporaneously memorialize the motivation for documents’ creation.