Can Business Persons’ Access to Work Product Doom a Work Product Claim?

March 20, 2019

The work product doctrine can protect documents primarily motivated by litigation or anticipated litigation, rather than prepared in the ordinary course of business or motivated by some other non-litigation purpose. But actions occurring after the documents’ creation sometimes can reflect back on that key motivational element.

In Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 U.S. Dist. LEXIS 6343 (W.D. Okla. Jan. 14, 2019), the court analyzed defendant’s work product claim for documents it created while investigating a tractor-trailer accident. The court acknowledged that defendant anticipated litigation, because plaintiff’s lawyer threatened litigation the day after the accident. But the court denied defendant’s work product claim — emphasizing that the defendant’s Director of Safety “has access to this information for non-litigation purposes.” Id. at *5. The court concluded that “the portion of the claims file available [to defendant’s Director of Safety] is discoverable to Plaintiff because it is generated in the ordinary course of business and not directly in anticipation of litigation.” Id. at *6.

Many if not most courts would take a different approach, properly analyzing documents’ creation rather than their post-creation availability to others. But maintaining the litigation focus of appropriately created work product enhances the chance for successfully claiming that protection.