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.