Do Arbitrations Count as “Litigation” for Work Product Purposes?

August 9, 2023

Fed. R. Civ. P. 26(b)(3) extends protection to documents prepared “in anticipation of litigation or for trial.” An obvious question presents itself — what counts as “litigation”?

In Farrell v. United States Olympic & Paralympic Committee, No. 1:20-CV-01178 (FSJ/CFH), 2023 U.S. Dist. LEXIS 103978 (N.D.N.Y. June 15, 2023), defendant US Speedskating (“USS”) claimed work product protection for materials Sidley Austin had prepared during its investigation of alleged sexual abuse of young speed skaters. Because litigation would have been time-barred by the time Sidley Austin conducted its investigation, USS argued that its investigation was prompted by its receipt of administrative-type complaints and “member grievances . . . which constitute administrative proceedings and/or arbitration proceedings” and thus satisfied the work product doctrine’s “litigation” standard. Id. at *10. The court agreed that “in some circumstances, arbitration and adversarial administrative proceedings can be considered ‘litigation,'” if they “include a ‘significant’ adversarial aspect.” Id. at *48. But the court ultimately “conclude[d] that member grievances filed pursuant to USS Bylaws do not rise to the level of ‘litigation’ within the meaning of Rule 26(b)(3).” Id. at *53.

Determining whether arbitrations or other internal dispute-resolution processes satisfy the work product doctrine’s “litigation” standard essentially focuses on whether they are sufficiently “adversarial,” and whether they look like litigation.