Last week’s Privilege Point described two of three possible “trigger” events that can create an objectively and subjectively reasonable “anticipation” of litigation: (1) an outside event certain to generate litigation; and (2) the adversary’s explicit threat.
Third, in rare situations, the litigant’s own internal actions can support a work product “anticipation” argument. Courts are understandably suspicious of such arguments, but sometimes they succeed. In Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTE Ltd. , plaintiff “Jeddo insists that Rio Tinto could not possibly have reasonably anticipated litigation prior to February 18, 2016, since it was only then that Jeddo had raised the prospect of litigation.” Civ. No. 3:-16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *17 (M.D. Pa. Apr. 5, 2018). Of course, that was the classic example of an adversary’s action triggering anticipated litigation. But Rio Tinto “disagrees, noting that in the months leading up to February 18, 2016, Rio Tinto’s business team and lawyers were engaged in strategic planning regarding not merely business matters, but what they anticipated – correctly – was likely to be litigation if Rio Tinto rejected [Jeddo’s] proposal.” Id. at *18. The court agreed with Rio Tinto. Although acknowledging that “Jeddo is right that litigation was plainly foreseeable as of February 18, 2016” when Jeddo threatened litigation, the court explained that “this does not mean that Rio Tinto was unreasonable in anticipating litigation that could arise prior to that time given the decisions it was facing.” Id. at *19.
Corporations should not count on such a favorable view, but in some circumstances might successfully claim work product protection based on their own internal steps.