The work product doctrine rests on three basic elements: (1) there must be some “litigation” (this element normally includes arbitrations and adversarial government hearings, but not government investigations); (2) the litigant must be in such litigation or have reasonably “anticipated” it; and (3) the withheld document must have been “motivated” by that litigation. Some litigants forget the third element.
In Quality Time, Inc. v. West Bend Mutual Insurance Co., Case No. 12-1008-JTM-GLR, 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012), the court addressed a work product claim in a first party insurance case. The defendant insurance company argued that the work product doctrine protected documents created after related state court litigation began. The court rejected the work product claim – explaining that even after litigation begins the work product doctrine “applies . . . to protect only those documents created because of the litigation.” Id. at *31. The court noted that the defendant “does not address this equally important component of the work product doctrine.” Id. As the court explained, “the ordinary course of business does not end with the commencement of litigation,” and “the party resisting discovery on grounds of work product must show more than the creation of a document after commencement of litigation.” Id. at *32.
Every court takes the same approach, but few articulate as bluntly the key “motivation” element of the work product doctrine protection.