Also known as: in anticipation of litigation
Written by attorneys · grounded in primary & secondary sources — see below
A test for determining whether materials qualify for work-product protection. Materials receive protection when prepared because of the prospect of litigation rather than in the ordinary course of business.
Meridian Health Systems faces a class action after adverse patient events. Its outside counsel directs the preparation of internal risk-management reports immediately after receiving notice of the suit. The reports are labeled confidential and stored only in counsel's files. When plaintiffs seek the reports, the court denies production because the documents were created because of the prospect of litigation.
White Events sues View Screen for copyright infringement. Two weeks after filing, in-house counsel prepares memos summarizing interviews with security staff and licensing coordinators about streaming protocols. The memos are created solely to prepare for the ongoing litigation. View Screen cannot obtain the memos without showing substantial need.
Select any source to read its text and confirm it supports the definition.
A company faces potential liability after an industrial accident. Its attorney conducts interviews with employees and prepares written memoranda reflecting those interviews. The memoranda are created to evaluate litigation strategy. Opposing counsel cannot discover the memoranda absent a showing of necessity.
A corporation's in-house counsel directs lower-level employees to provide information about internal protocols after a lawsuit is filed. The resulting memos summarize the employees' statements for use in defending the litigation. The memos qualify for work-product protection even though the employees are not senior managers.
A railroad employee prepares a report about a train accident according to company policy. The report is created after the accident and focuses on potential legal exposure rather than routine operations. In subsequent litigation the report is not admissible as a business record because its primary purpose was anticipation of litigation.
The test protects materials created because of anticipated litigation. Materials prepared in the ordinary course of business or to comply with routine institutional requirements receive no protection even if litigation is possible.
Counsel involvement and labeling support protection when they show the documents would not have been created in the same form absent the threat. Routine processes required by policy regardless of litigation do not qualify.
Courts examine timing relative to the litigation threat, counsel's direction, document labeling, storage location, and whether the same materials would have been generated without any threat of suit.
…cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client’s case; and it is equally unrelated…