Because work product protection only applies at certain times, clients must be able to identify the exact moment that they first anticipated litigation. And not surprisingly, they must also explain why they first anticipated litigation at that moment.
In In re Hyde Park Baptist Church, No. 03-23-00049-CV, 2023 Tex. App. LEXIS 6383 (Tex. App. Aug. 22, 2023), a church resisted discovery by former members seeking the return of a donation because the church’s executive pastor had acted improperly. The church claimed work product for its investigation into the pastor’s conduct — relying on an unsworn declaration that another minister had “feared a lawsuit” by a school allegedly bullied by the misbehaving executive pastor. Id. at *3, 13. The court upheld the church’s work product claim — explaining that assessing the necessary “anticipation element” was “a judgment-call ultimately made by the court.” Id. at *16 (citation omitted). That objective standard could apply whether or not litigation actually ensues.
The church’s successful work product assertion rested on the most difficult type of what might be called the three “trigger” events that can support a work product claim — the client’s own belief or actions. The other two “trigger” events are easier to demonstrate: (1) an incident such as a horrible car accident that inevitably will result in litigation, or (2) the adversary’s action (such as a threat to sue).