WP Protection varies depending on whether court adopts “assist” in litigation or “because of” litigation standard

Some recent court decisions appear to adopt a narrow view of attorney-work product (WP) protection, limiting the doctrine to material prepared to “assist” in litigation. See e.g.  Irving Oil Ltd. v. ACE INA Ins., 2015 Me. Super. LEXIS 72.

Other recent decisions have followed instead the “because of” standard, which gives much more protection than the “assist “ standard because it covers also documents are not prepared for the litigation but are prepared as a result of litigation. For example, a change in company’s policy flowing from the litigation would be covered under the “because of” but not under the “assist” standard. See Deutsche Bank Nat’l Trust Co. v. WMC Mortg., LLC, 2015 U.S. Dist. LEXIS 49158 (D. Conn. Apr. 14, 2015) (adopting the “because of” standard). Same in Byman v. Angelica Textile Services, Inc. (In re Sadler Clinic, PLLC, 2015 Bankr. LEXIS 1369, at *10 (Bankr. S.D. Tex. Apr. 17, 2015).

I support a broader standard – work product protection applies if the material is prepared “because of” existing or reasonably anticipated litigation.  The narrow view will produce expensive collateral litigation particularly in very large cases.  In addition, if the opposing party has a legitimate interest in obtaining the material it is seeking, it should be able to establish the substantial need/undue hardship exception to work product protection.

For more information: Nathan M. Crystal