Also known as: anticipation of litigation · work-product doctrine
Written by attorneys · grounded in primary & secondary sources — see below
Materials prepared by or for a party or its representative because of the prospect of litigation or for trial. Such materials receive qualified protection from discovery under the work product doctrine unless the requesting party demonstrates substantial need and an inability to obtain the substantial equivalent without undue hardship.
Isabelle Inman sued Inertia Dynamics after a factory explosion. During discovery Isabelle requested the notes taken by Inertia's outside counsel during interviews with assembly-line workers. The notes were created after the explosion when counsel anticipated litigation. The court denied the request because the notes qualified as protected work product.
Israel Irving sued Iris Energy after a pipeline rupture. Iris's in-house counsel directed engineers to prepare technical summaries of valve defects for counsel's review. The summaries were created after the rupture when litigation was expected. The court held the summaries protected because they were prepared in anticipation of litigation.
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Ingrid Innes sued Ideal Solutions after a software failure caused data loss. Ideal's counsel prepared memoranda summarizing interviews with programmers about the defect. The memoranda were created after the failure when suit was anticipated. The court refused to order production absent a showing of necessity.
Isaiah Ishikawa sued Ironwood Capital after a securities disclosure. Ironwood's counsel interviewed mid-level analysts at the direction of superiors to obtain information for legal advice. The resulting notes were created after the disclosure when litigation was expected. The court protected the notes under the work product doctrine.
Ismael Ibrahim sued a railroad after a derailment. The railroad offered an internal accident report prepared by its safety team. The report was created under company policy but after the derailment when litigation was anticipated. The court excluded the report from the business records exception.
Iris Irons sued a trucking company after a collision. The company's defense counsel retained an investigator who prepared a report summarizing interviews with eyewitnesses. The report was created after the collision when suit was expected. The court held the report protected work product even though the investigator later testified.
A document qualifies when it is created because of the prospect of litigation rather than in the ordinary course of business. Courts examine timing, involvement of counsel, labeling, and storage location to determine purpose. If the primary purpose was something other than preparing for litigation, protection does not apply.
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Yes. The doctrine protects both an attorney's mental impressions and factual material compiled in anticipation of litigation, including summaries of witness interviews. The requesting party must still demonstrate substantial need and an inability to obtain the equivalent without undue hardship.
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A record prepared in anticipation of litigation does not qualify for the business records exception even if made in accordance with regular practice. The primary purpose must be the regular conduct of the enterprise's business rather than litigation preparation.
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Yes. Documents drafted by nonlawyer employees qualify when prepared at counsel's direction for use in anticipated litigation. The doctrine covers materials prepared by or for a party or its representative in anticipation of litigation.
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…that 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…