Court Finds that McDermott Will & Emery Affidavit did not Establish Work Product Protection

November 2, 2011

Litigants claiming work product protection must present evidence that they reasonably anticipated litigation when creating the documents, and that the anticipated litigation motivated the documents’ creation.

In Schlicksup v. Caterpillar, Inc., No. 09-CV-1208, 2011 U.S. Dist. LEXIS 92827 (C.D. Ill. Aug. 19, 2011), Caterpillar sought to quash plaintiff’s subpoena to Ernst & Young, claiming that the work product doctrine protected E&Y’s documents. Caterpillar relied on a McDermott Will & Emery affidavit indicating that when Ernst & Young prepared the documents for Caterpillar “‘it was McDermott’s belief that the this [sic] transaction would be closely scrutinized by the IRS [and] based on the assumption regarding litigation . . . McDermott retained tax advisors from E&Y.'” Id. at *10. The court rejected the McDermott affidavit’s conclusion. The court instead held that “Caterpillar’s expectation that the transaction would be closely scrutinized by the IRS does not demonstrate that a prospect of litigation existed when the documents were created.” Id. at *11. In addition, the court concluded that “[t]hese documents would have been prepared with or without the specter of an IRS challenge.” Id. at *12.

Although litigants’ law firms must be ready to defend a work product claim, even a lawyer’s affidavit does not automatically assure such protection.