Also known as: anticipated litigation · anticipating litigation
Written by attorneys — see sources below.
Materials or documents prepared because of the prospect of litigation. The phrase identifies the purpose that triggers qualified work-product protection from discovery under the Federal Rules of Civil Procedure and related doctrines.
After a delivery truck owned by Alpine Mining struck a pedestrian, the company safety officer prepared an incident report at the direction of outside counsel. The report contained measurements, witness statements, and preliminary assessments of liability. When the pedestrian later sued, the plaintiff sought the report in discovery. The court denied production because the document was prepared in anticipation of litigation.
Anita Ali retained counsel after learning that Aether Technologies planned to sue her for breach of a licensing agreement. Counsel interviewed two former employees and prepared detailed memoranda summarizing their recollections. During discovery, Aether Technologies demanded the memoranda. The court sustained work-product protection because the notes were prepared in anticipation of litigation.
Aurora Biotech anticipated a patent-infringement suit from a competitor. Its outside counsel interviewed three scientists and created written statements reflecting their accounts of the invention process. The competitor moved to compel production of the statements. The court denied the motion absent a showing of necessity because the materials constituted attorney work product prepared in anticipation of litigation.
Azure Solutions faced an impending securities investigation. In-house counsel directed mid-level compliance officers to submit reports on internal trading practices. The officers prepared the reports solely to assist counsel in providing legal advice. When regulators later sought the reports, the company successfully asserted work-product protection because the documents were prepared in anticipation of litigation.
Following a derailment, Alfred Ashford, a railroad supervisor, completed a standard accident form required by company policy. The form contained observations made immediately after the incident. In subsequent litigation the railroad offered the form as a business record. The court excluded it because the primary purpose of the report was anticipation of litigation rather than the ordinary conduct of railroading.
Arthur Abrams was charged with fraud. His defense counsel hired an investigator who interviewed potential witnesses and prepared a written report. At trial the government sought to obtain the report after the investigator testified. The court held that the report retained work-product protection because it was prepared in anticipation of litigation.
Respondent Robert Nobles was tried and convicted in federal district court on charges arising from an armed robbery of a federally insured bank. The prosecution's principal evidence consisted of identification testimony from a bank teller and a salesman who had been present during the robbery. Nobles presented an alibi but centered his defense on efforts to discredit the two eyewitnesses. In preparing for trial, a defense investigator hired by Nobles' counsel interviewed both eyewitnesses and recorded the substance of those conversations in a written report. During cross-examination of the bank teller, defense counsel asked whether the teller had told the investigator he saw only the back of the man identified as Nobles; the teller did not recall making the statement. The prosecutor was permitted to see a portion of the report briefly, after which the teller testified that he had actually seen more than the back and continued to identify Nobles. Defense counsel similarly cross-examined the salesman about whether he had told the investigator that all blacks looked alike to him; the salesman denied making the statement. The district court declined to order immediate disclosure but ruled that production of portions of the report would be required if the investigator later testified about the interviews. The court stated it would conduct an in camera review and excise any references to matters not relevant to the precise statements at issue. After the prosecution rested, the defense called the investigator as a witness. The court reiterated that an inspected and edited copy of the report would have to be provided to the government at the conclusion of the investigator's testimony. When defense counsel refused to produce the report, the court ruled that the investigator could not testify about his interviews with the two witnesses. The Court of Appeals for the Ninth Circuit reversed the conviction. The Supreme Court granted certiorari.
View caseCourts ask whether the document would have been created in substantially the same form and with the same content even in the absence of anticipated litigation. Factors include timing relative to any threat of suit, involvement of counsel, labeling of the documents, and storage location.
Supporting sources
No. Even if a company has a pre-existing policy requiring certain reports, protection may still attach if counsel directs the process and the materials would not have taken the same form absent the prospect of suit.
Supporting sources
Work-product protection requires anticipation of litigation while attorney-client privilege protects confidential communications made for the purpose of obtaining legal advice regardless of whether litigation is anticipated.
Supporting sources
…they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition seeking enforcement of the summons under 26 U. S. C. §§ 7402 (b) and 7604 (a) in the United States District Court for the Western…