State Court Analyzes the “Anticipation” and “Trigger” Elements of the Work Product Protection: Part I

February 9, 2011

The work product doctrine can protect documents (and sometimes intangible information) prepared in reasonable “anticipation” of litigation. However, courts’ articulation of the requisite “anticipation” ranges from “imminent” to “some possibility” of litigation.

In In re Energy XXI Gulf Coast, Inc., No. 01-10-00371-CV, 2010 Tex. App. LEXIS 10117, at *8 (Tex. App. Dec. 23, 2010), the court articulated a standard that falls between the two extremes – concluding that a company could claim work product protection as soon as its employee “subjectively believed in good faith that there was a substantial chance that litigation would ensue.”

Lawyers must always determine the relevant court’s standard for analyzing the “anticipation” required for the work product protection. Next week’s Privilege Point will discuss the Texas court’s identification of the exact minute at which the work product protection became available.