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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.

What does “anticipation of litigation” mean? The test looks at the time the business created the document and document’s purpose. More than just a remote possibility of litigation must exist.

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.