Privilege and Work Product
Work Product
Work product protection attaches to materials prepared because of anticipated litigation rather than in the ordinary course of business. Courts commonly apply a because-of test asking whether the document would have been created in substantially similar form absent the prospect of litigation.
The same concept triggers the duty to preserve evidence.
Alternative Names:
Anticipated Litigation, Litigation Trigger
Why it Matters?
Identifying the trigger date is consequential in two directions at once. Materials created after it may be protected as work product, while evidence destroyed after it may be sanctionable spoliation. For insurers the date is particularly contested, since claim investigation is both the ordinary course of business and preparation for potential litigation, and the answer determines whether the claim file is produced.
Frequently Confused with
Related terms
Frequently asked questions
What triggers anticipation of litigation?
Why does the date matter twice?
