Also known as: prepare in anticipation of litigation · preparing in anticipation of litigation · preparation in anticipation of litigation · work product · work-product doctrine · anticipation of litigation
Written by attorneys · grounded in primary & secondary sources — see below
Materials or documents created by a party or its representative in anticipation of litigation or for trial. Such materials receive qualified protection from discovery under the work product doctrine unless the requesting party shows substantial need and undue hardship.
Pablo Perez meets with his attorney after a construction accident and creates a detailed chronology of events at the lawyer's request. He labels the document work product and would not have prepared it absent the prospect of suit. When Paragon Construction seeks the chronology in discovery, the court denies the request because the document was prepared in anticipation of litigation.
Prime Logistics drafts an internal memo analyzing a billing dispute with a vendor. No lawsuit has been filed, but counsel is consulted about potential claims. When the vendor later sues and requests the memo, the court finds it protected because it was prepared in anticipation of litigation even though suit was not yet pending.
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Portia Price's counsel interviews potential witnesses after an accident and prepares memoranda summarizing their statements. The opposing party seeks the notes in discovery. The court holds the materials protected because they reflect an attorney's preparations made in anticipation of litigation and the requesting party has not shown necessity.
Progressive Healthcare's in-house counsel directs lower-level employees to provide information about internal compliance issues. Counsel prepares memos summarizing the interviews after litigation is anticipated. When the opposing party seeks the memos, the court protects them as work product prepared in anticipation of litigation.
Pierce Patterson, a railroad employee, prepares an accident report following company policy after a derailment. The report is later sought in litigation. The court refuses to admit it as a business record because the primary purpose was anticipation of litigation rather than the regular conduct of the railroad's business.
Pamela Phillips sues her former law firm alleging overbilling. The firm created internal memos in anticipation of litigation over the representation. When the firm seeks to use those materials under the self-defense exception, the court permits access because the client placed the representation at issue.
A document qualifies when the primary purpose is to prepare for litigation rather than ordinary business operations. Courts examine factors such as whether a lawyer participated in its preparation, whether it comments on litigation, and whether it would have been created absent the prospect of suit.
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Yes. Materials can be prepared in anticipation of litigation even if no suit has been filed, provided suit is reasonably anticipated and the documents are created for use in that litigation.
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The requesting party must show that the materials are otherwise discoverable and that it has substantial need for them to prepare its case and cannot obtain their substantial equivalent without undue hardship.
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A record prepared in anticipation of litigation does not qualify for the business records exception because its primary purpose is litigation rather than the regular conduct of the enterprise's business.
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…testimony reflects "scientific knowledge," whether their findings are "derived by the scientific method," and whether their work product amounts to "good science." --- U.S. at ----, ----, 113 S.Ct. at 2795, 2797. Second, we must ensure that the proposed expert testimony is "relevant to the task at hand," id. at ----, 113…