Court Adopts A Favorable Privilege Standard But Unfavorable Work Product Standard: Part II

September 11, 2019

Last week’s Privilege Point described a Northern District of Illinois decision which applied the favorable “one of the significant purposes” privilege standard for assessing mixed business-legal communications, instead of the majority “primary” or “predominant” purpose standard. Smith-Brown v. Ulta Beauty, Inc., No. 18 C 610, 2019 U.S. Dist. LEXIS 1080221, at *8-10 (N.D. Ill. June 27, 2019).

However, the same decision applied the most narrow work product standard, which some circuits (including the Seventh Circuit) follow. The broader majority approach extends work product protection to documents created “because of” litigation or anticipated litigation – even if those documents will not be used in the litigation itself. The Smith-Brown decision cited Seventh Circuit law in holding that “a dual purpose document, one prepared in anticipation of litigation and for another purpose as well, is work product only if ‘the primary motivating purpose behind [its] creation’ is ‘to aid in possible future litigation.'” Id. at *5 (alteration in original) (emphasis added). This seemingly innocuous language difference could have an enormous practical impact. For instance, documents relating to ways a defendant might satisfy a possible litigation judgment normally would be protected under the broad “because of” work product standard, but perhaps not under the narrow “aid” standard. Such documents exist only because of the litigation, but will not be used in the litigation.

Corporations’ lawyers should cheer the gradual expansion of the KBR “one of the significant purposes” privilege standard, while continuing to hope that more courts move toward the broader “because of” work product standard.