The work product doctrine protects materials prepared by a client or its agent (including lawyers) in “anticipation” of litigation and because of the litigation. Lawyers sometimes forget this second prerequisite to the protection.
In Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-3759 SECTION: “K” (4), 2000 U.S. Dist. LEXIS 12067, at *7 (E.D. La. Aug. 11, 2000), the court explained what it looked for in determining the “primary motivation for the creation of a document.” The court listed “the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance.” Id. (footnotes omitted).
The court summarized the assessment as follows: “If the document would have been created regardless of whether litigation was also expected to ensue, the document is deemed to be created in the ordinary course of business and not in anticipation of litigation.” Id. at *7.
Lawyers advising clients in possible pre-litigation settings should be fully aware of this test when preparing contemporaneous explanations of why they are preparing certain documents. Lawyers involved in litigation should be familiar with the factors used by courts in judging work product doctrine claims.