The Bad News and Good News About Litigation Holds and Work Product Claims

October 16, 2024

Some courts understandably conclude that the anticipation of litigation that can assure work product protection also requires the litigant to impose a litigation hold on pertinent documents. Perhaps that is not a perfect equivalent, but wise litigants recognize the risk of later claiming that they anticipated litigation before they imposed such a litigation hold.

The good news is that imposing such a hold can buttress a work product claim — even by another litigant. In Northfield Insurance Co. v. JVA Deicing, Inc., No. 3:23cv461, 2024 U.S. Dist. LEXIS 142549 (M.D. Pa. Aug. 12, 2024), plaintiff insurance company claimed work product protection for documents it prepared after learning that a widow had sued its insured because her husband died on the insured’s premises. The court upheld the plaintiff insurance company’s work product claim — noting that two days after the fatal accident the widow’s counsel had sent a “preservation notice” to the defendant employer insured. The court found it “reasonable to conclude that [within just a few days], the plaintiff [insurance company] anticipated litigation.” Id. at *6-7.

Corporate defendants should always keep in mind the risk of delay in sending out a litigation hold if they might later seek to claim work product protection for documents created after some incident, as well as the benefit of sending out such a document hold, which could support a later work product claim as of that date.

Subscribe