The party asserting a work product claim must carry the burden of proof, and demonstrate that the document was primarily motivated by anticipated litigation rather than by some other purpose. Most courts require admissible evidence supporting that assertion.
In Craig v. O’Charley’s Restaurant Properties, LLC, Civ. A. No. 3:09-CV-187-H, 2010 U.S. Dist. LEXIS 16844 (W.D. Ky. Feb. 25, 2010), defendant restaurant claimed work product protection for an accident report and witness statements taken immediately after a serious slip and fall incident. The store manager acknowledged at his deposition that the restaurant’s insurance company usually requested accident reports and witness statements, but testified that on this occasion he “could not recall” why he asked two employees to write their own version of events. Id. at *2. The court explained that it “respects the defendant’s argument that the prospect of litigation was clear to all and caused the creation of these documents,” but ultimately concluded that “the proof itself falls short” of that required to successfully assert work product protection. Id. at *3.
Corporations must remember that the party asserting the attorney-client privilege or the work product protection must carry the burden of proof, and prepare immediately to support any such assertion with admissible evidence.