Establishing work product protection requires: (1) litigation (normally civil or criminal litigation, but sometimes adversarial administrative or ADR settings); (2) anticipation (ranging from “imminent” in some courts to “possible” in other courts); and (3) motivation (which requires the litigant to show that the document’s creation was motivated by anticipated litigation rather than by something else). As part of the “anticipation” element, courts normally look for what might be called a “trigger” event – which caused the requisite “anticipation.” In essence, a litigant claiming work product must be prepared to prove that the moment before such a trigger event she did not anticipate litigation, but the moment afterwards she did.
There are three possible types of trigger events. First, in some unusual circumstances, courts point to an external event such as a refinery explosion, which everyone realizes will trigger litigation. Second, by far the most common trigger event is some step the adversary takes. In Colley v. Dickenson County School Board, the court pointed to plaintiff’s “formal letter” to the school board requesting that it correct alleged pay disparity, and warning that she had retained a lawyer. Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146, at *11 (W.D. Va. Apr. 18, 2018). So an adversary’s threat can clearly trigger an objectively and subjectively reasonable anticipation of litigation.
The third type of “trigger” event involves the litigant’s own actions. Courts understandably take a work product claim based on such self-action with a large grain of salt. But next week’s Privilege Point will describe a case in which the court accepted that argument.