The work product doctrine only protects materials prepared in “anticipation of litigation” or for trial. Many cases focus on the reasonableness of a company’s “anticipation of litigation” once the government begins to investigate the company. But the investigation itself does not amount to litigation, and not all government investigations result in litigation.
In Iowa Protection & Advocacy Services, Inc. v. Rasmussen, 206 F.R.D. 630, 641 (N.D. Iowa 2002), the Department of Justice was investigating a state agency. The court held that determining the state agency’s ability to claim work product protection for some of its documents depended (among other things) upon the nature of the government investigation “and how regularly such investigations result in litigation.” The court held that the state agency being investigated could not reasonably have anticipated litigation at the beginning of the Department of Justice investigation, because the letter commencing the investigation indicated that DOJ’s inquiry “does not indicate a prejudgment on our part that the state agency being investigated had violated any federal rights.”
It would be troubling if boilerplate language in a government letter could preclude a reasonable anticipation of litigation, but lawyers must be prepared to deal with all aspects of the fact-intensive analysis that most courts undertake—losing the fight could result in forced disclosure of important and sensitive client materials.