Courts Analyze What Counts as “Litigation” for Work Product Purposes

September 8, 2010

The work product doctrine can protect documents prepared in reasonable anticipation of “litigation.” The term obviously includes criminal and civil litigation, but beyond that courts must analyze the nature of proceedings to determine if the work product doctrine can apply. If the attorney-client privilege does not provide an additional level of protection, this determination can be dispositive of documents’ protection.

Not surprisingly, the Western District of Washington held that Washington State Bar Association proceedings against a lawyer counted as “litigation.” Caldwell v. Brown, No. C09-1332RSL, 2010 U.S. Dist. LEXIS 53858 (W.D. Wash. May 3, 2010). About one month later, another court faced a more difficult analysis. In In re Rail Freight Fuel Surcharge Antitrust Litigation, Misc. No. 07-489 (PLF/JMF/AK), 2010 U.S. Dist. LEXIS 55990 (D.D.C. June 7, 2010), the court held that an ex parte Service Transportation Board fuel surcharge hearing counted as “litigation.” The court rejected plaintiff’s argument that “the parties must have the right to cross-examine witnesses” in a proceeding for it to count as litigation – focusing instead on “whether the proceeding required the lawyer to function as lawyers usually do at a trial.” Id. at *20, *22.

Lawyers representing clients in non-court proceedings should assess any factual support for a later work product claim – focusing on the nature of the proceedings.