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

February 16, 2011

Last week’s Privilege Point discussed courts’ varying standards for determining when a litigant reasonably “anticipated” litigation. Regardless of the standard, litigants must be prepared to identify the exact minute at which they sufficiently “anticipated” litigation.

In In re Energy XXI Gulf Coast, Inc., No. 01-10-00371-CV, 2010 Tex. App. LEXIS 10117 (Tex. App. Dec. 23, 2010), the trial court found that the work product began to protect a company’s internal communications on November 19, 2007 – which the court identified as the day that the company could have reasonably anticipated litigation with its insurance broker. However, the appellate court disagreed – pointing to an e-mail the insurance broker sent to the company at 3:13 p.m. on October 11, 2007. The court explained that as of that moment, the insurance broker and the company “were taking directly adverse positions as to which party stood at fault” for failing to secure additional insurance. Id. at *19. As the court put it: “The stakes were high. The positions were clear. A reasonable person would have to conclude from the totality of the circumstances that there was a substantial chance that litigation would ensue . . . .” Id.

Although not always called upon to do so, every litigant claiming work product must be able to identify the exact second at which the litigant first reasonably “anticipated” litigation (by whatever standard the court applies).