The rules-based work product doctrine surprisingly has as many – if not more – nuances than the primarily common law-based attorney client privilege. Just the seemingly simple “anticipation” of litigation requirement can involve several subtle issues.
In In re La Joya Independent School District, a Texas appellate court analyzing work product protection for an investigation cited a Texas Supreme Court case, noting that “an investigation is conducted in anticipation of litigation if it meets a two-pronged test”: (1) an “objective prong” reasonable person standard based on the “totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue” and (2) a “subjective prong” that “‘the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue.'” No. 13-26-00517-CV, 2026 Tex. App. LEXIS 8029, at *17 (Tex. App. Aug. 20, 2026) (citation omitted). And there is more: “the party itself [has] to anticipate litigation, as opposed to its counsel.” Id. at *19.
The defendant almost failed the subjective prong test by not presenting the client’s testimony about its anticipation. But it won the day because plaintiff didn’t object to what the court characterized as a “record . . . not as robust as it could be” – defense counsel’s affidavit stating “that he informed [defendant’s representative] of his belief that litigation was forthcoming.” Id. at *20. Next week’s Privilege Point will describe other recent opinions highlighting important differences between the attorney-client privilege and the work product doctrine.
