One of the great ironies of the work product doctrine is that federal courts applying the work product doctrine (found in two short sentences in the Federal Rules of Civil Procedure) take widely varying views on such key elements as the type of reasonable anticipation of litigation that the litigant must establish. Some courts apply the work product doctrine only if the litigant establishes that the litigation was “imminent,” while others protect documents created any time there was a “possibility” of litigation — and every variation in between.
Because courts apply their own interpretations of the work product rule, a corporation will never know until it has been sued in some far-away federal court what it will have to prove before successfully asserting the work product doctrine protection. In Resurrection Healthcare v. GE Health Care, No. 07 C 5980, 2009 U.S. Dist. LEXIS 20562 (N.D. Ill. Mar. 16, 2009), the court analyzed defendant GE Health Care’s work product claim. The court pointed to a statement in a GE Health Care exhibit (probably an affidavit) that “‘[d]ue to the extensive nature of the contamination [caused by a mercury spill at a hospital] . . . GE Health Care reasonably anticipated . . . that litigation was likely.'” Id. at *5. The court rejected GE Health Care’s work product claim, because in the Northern District of Illinois “the documents at issue must have been created in response to ‘substantial and significant threat’ of litigation.” Id. at *4 (citation omitted). In other words, GE Heath Care presented an exhibit which fell short of the standard required by the court in which GE Health Care was sued.
It is easy to imagine a corporation’s affidavit articulating a standard that would pass muster in the corporation’s home court (or courts where the corporation’s lawyers have litigated before), but which falls short of the standard adopted by the court handling litigation against the corporation. The problem becomes even more acute if the corporation tries to enhance the work product doctrine protection by contemporaneously documenting its anticipation of litigation — because it will not know until later whether it has met the requirements of some court in which it might be sued.