Court Analyzing the Work Product Doctrine Explains the “Ordinary Course of Business” Concept

October 17, 2018

Corporations creating documents in the “ordinary course of business” normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a more subtle analysis.

In Montagano v. Safeco Insurance Co. of America, the court correctly recognized that defendant “misses the point” by arguing that the work product doctrine applied because “the disputed documents were not created in the ordinary course of business.” Civ. A. No. 16-9375, 2018 U.S. Dist. LEXIS 137044, at *6 (D.N.J. Aug. 14, 2018). As the court explained, “[t]he critical inquiry here is not whether the materials at issue were created in the ordinary course of Defendant’s business, it is whether Defendant prepared the materials in anticipation of litigation.” Id. The court found that defendant had not.

To be sure, documents created in the “ordinary course of business” generally do not deserve work product protection. But even documents created in extraordinary circumstances do not deserve work product protection — unless they were motivated by litigation or anticipated litigation. For instance, the Southern District of New York rejected a lender’s work product claim for documents it created after the unique September 11 World Trade Center attack – holding that business rather than litigation concerns motivated the documents’ creation.