How Can Companies Satisfy the Work Product Doctrine’s “Motivation” Element?: Part I

October 9, 2013

Many lawyers focus on the first two elements of the work product doctrine – which require (1) “litigation” that the client (2) reasonably “anticipates.” But documents that clients or their lawyers prepare in anticipation or even during litigation deserve work product protection only if they satisfy the third element – that the documents were (3) “motivated” by the litigation, and not by something else.

The work product doctrine generally does not protect documents that companies prepare in the ordinary course of their business, or because of some external or internal requirements. In Blais v. A.R. Cheramie Marine Management, Inc., Civ. A. No. 12‑2736 SECTION “R” (2), 2013 U.S. Dist. LEXIS 111307 (E.D. La. Aug. 7, 2013), the defendant investigated a former employee the company had recently rehired. Company policy required creation of a “nonconformity report.” Id. at *6. The court acknowledged that this report “was required to be prepared in defendant’s ordinary course of business,” and also noted that “defendant has already produced [the report] to plaintiff.” Id. In contrast, the court upheld the company’s work product claim for statements and investigative reports “which clearly went beyond ordinary company policy and procedure.” Id. at *6-7.

The work product “motivation” element requires companies to demonstrate that any withheld work product was motivated by anticipated litigation rather than prepared in the ordinary course of business or required by some external or internal mandate. Next week’s Privilege Point describes a similar case decided two days later.