How to Satisfy the “Motivational” Element of the Work Product Doctrine

September 14, 2011

To deserve work product protection, documents must be created during or in reasonable “anticipation” of “litigation.” Establishing those two elements can present some challenges, but the toughest burden often involves proving that the documents’ creation was “motivated” by the anticipated litigation and not by something else. The work product doctrine normally does not protect documents that corporations create in the ordinary course of their business or to comply with external or internal requirements.

In Schlicksup v. Caterpillar, Inc., No. 09-CV-1208, 2011 U.S. Dist. LEXIS 75299 (C.D. Ill. July 13, 2011), plaintiff claimed that the work product doctrine did not protect documents created by the Howrey law firm during an internal corporate investigation. Plaintiff argued that Howrey was retained “to conduct an in-house, routine investigation that Caterpillar would have conducted itself.” Id. at *6. The court disagreed. It found that the work product doctrine applied – noting that “Howrey’s work went above and beyond a routine internal investigation.” Id. at *12.

To successfully claim work product protection, companies generally must demonstrate that they did something “different” or “special” because they anticipated litigation. Otherwise, they may fall short of meeting the “motivational” element, even if they can show reasonable anticipation of litigation when they created the documents.