Anticipation of Litigation” May Shield Documents from Discovery
ISSUE: Can the attorney Work-Product Doctrine protect the confidentiality of communications between workers before an employee files a lawsuit?
Federal law (and analogous state laws) protects documents and tangible things prepared in anticipation of litigation, or for trial, from disclosure unless the other side can show that it has a substantial need for the information and that it cannot, without undue hardship, get the information itself.
Examples where “anticipation of litigation” work-product privilege could apply:
- An employee sends a demand letter or files a complaint with a government agency;
- An employer investigation into specific complaints of misconduct
- Witness statements taken after a major, catastrophic injury on premises (routine incident reports are not protected); and
- Reports from attorney-retained consultants in response to a government agency inquiry or investigation.
TAKEAWAYS: Where possible, a business may wish to ask its legal counsel to participate in internal exchanges involving employees the business believes may sue the company. The attorney-client privilege and the attorney work-product are likely to preserve the confidentiality of internal conversations that occur before a lawsuit is filed.
Please contact Elaine Chang for more information.