Although the Federal Rules of Civil Procedure describe the work product doctrine in a single sentence, federal courts interpret that sentence in wildly varied ways. Four federal court decisions issued in just a nine-day stretch of November 2015 highlight a few of these enormous variations.
First, Fed. R. Civ. P. 26(b)(3) protects certain documents prepared in anticipation of "litigation." Regular civil or criminal litigation clearly meets that standard, but courts disagree about the doctrine's application in other settings – such as administrative hearings. In Tracy v. Telemetrix, Inc., No. 8:12CV359, 2015 U.S. Dist. LEXIS 153852, at *18-19 (D. Neb. Nov. 13, 2015), the court implicitly held that arbitration met this "litigation" standard. Courts disagree about the doctrine's applicability to less directly adverse events such as mediations. Second, courts disagree about whether the work product doctrine only applies when a specific identifiable claim might result in litigation. In Thompson v. U.S. Department of Justice, Civ. A. No. 14-1786 (JEB), 2015 U.S. Dist. LEXIS 156267, at *25 (D.D.C. Nov. 19, 2015), the court protected as work product government documents because the government prepared them "in anticipation of a specific criminal prosecution" – and because they were "not generic agency records maintained for some conceivable future litigation." Courts requiring a "specific claim" sometimes deny work product protection for corporations' process-related documents outlining how the corporation will respond to some future claim, etc. Other courts protect such logistical documents.
In addition to courts' disagreement about the initial "litigation" work product element, previous Privilege Points have noted the even wider gap in courts' application of the second work product element – the "anticipation" requirement. That variation ranges from requiring "imminent" litigation to merely "some possibility" of litigation. Next week's Privilege Point addresses two more variations.