Work Product Protection Sometimes Involves Subtle “Morphing” Of Clients’ Motivations

July 24, 2019

The work product doctrine sometimes involves clients’ primarily business motivation “morphing” into litigation-related motivation – thus entitling the clients to work product protection.

In Rockwell Automation, Inc. v. Radwell International, Inc., defendant argued that plaintiff could not claim work product for a “gray-market investigation[]” into defendant’s practices, “because plaintiff conducted gray-market investigations going back as far as 2004.” Civ. No. 15-5246 (RBK/JS), 2019 U.S. Dist. LEXIS 70107, at *4 (D.N.J. Apr. 25, 2019). But the court disagreed, noting that “even if true, this does not detract from the fact that starting in 2014 plaintiff’s investigation specifically targeted defendant and others for litigation purposes.” Id. A few days later, in Kratzer v. Scott Hotel Group, LLC, Case No. 4:17-cv-00212-TWP-DML, 2019 U.S. Dist. LEXIS 72142 (S.D. Ind. Apr. 29, 2019), the court similarly applied work product protection to plaintiff’s narrative of events that supported his lawsuit against defendant hotel. The court acknowledged that “Scott Hotel is correct that [plaintiff’s] narrative initially was not made in anticipation of litigation,” but noted that he had “modified his narrative document in Microsoft Word after pursuing litigation, and therefore he made those modifications in anticipation of litigation.” Id. at *8-9. The court thus held that “the later iterations were covered by work product privilege,” because plaintiff did not forfeit work product protection based on “[t]he mere fact that [he] recorded his thoughts in anticipation of litigation as modifications and additions to a pre-existing document instead of in a new document.” Id. at *9.

As in so many other areas, the work product doctrine often involves subtleties that normally do not arise in the attorney-client privilege context.