Concept

Burden and Application

Is the material protected work product?

Burden and Application

Rule 26(b)(3)(A) says no and then qualifies the no. Ordinarily, a party may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative, including that party's attorney, consultant, surety, indemnitor, insurer, or agent.¹ Courts read the sentence as three conditions: the material must be a document or tangible thing, it must have been prepared in anticipation of litigation, and it must have been prepared by or for a party or by its representative.² The earlier sections taught the conditions one at a time. This section runs them in sequence and adds the rule on who must prove them, because a sound analysis that no evidence supports protects nothing.

The party that asserts work-product protection bears the burden of establishing that it applies to the case at hand.³ A court of appeals has stated the same allocation: the burden of proving that the protection applies rests on the party asserting it.⁴ The allocation follows from what the conditions ask. Each turns on how the item came to exist (who prepared it, for whom, and what litigation the preparer expected), and the party resisting discovery is the one positioned to supply those facts.

Courts demand facts rather than assertions because discovery is broad by design. Rule 26(b)(1) gives broad access to relevant information, and work-product protection under Rule 26(b)(3) is the exception to it. A court that accepted a loose claim would let the exception swallow the rule.⁵ Rule 26(b)(5)(ii) adds a procedural duty. A party that withholds material must describe its nature in a way that, without revealing protected information, enables other parties to assess the claim.⁶ A response that says only 'work product' leaves nothing to assess against the three conditions.

Specific facts carry the burden, and courts weigh identifiable features of the item. They consider its content, including whether it refers to prospective litigation, and the usual role of counsel, which matters especially when only in-house counsel was involved. They also ask whether the same document most likely would have been prepared apart from any concern about potential litigation.⁷ The facts of Hickman show the kind of evidence a court can weigh. A public hearing produced recorded testimony available to all interested parties. Fortenbaugh then privately interviewed the survivors and took signed statements 'with an eye toward the anticipated litigation,' and representatives of two of the deceased crew members had already been in communication with him.⁸

Proof matters most when the item predates any filed proceeding. The anticipated litigation can be any adversary process, including an investigatory subpoena from a grand jury or an administrative agency. But material created before a complaint was filed or a subpoena received often will be less than obviously prepared in anticipation of litigation, even when a lawyer directed its preparation. Courts therefore frequently require either or both of two types of proof, and the first is specific evidence that the purpose behind creating the item was to assist in potential litigation.⁹

The lawyer and the client may both assert the protection. A lawyer may assert it, and to the extent a client's interest may be affected, the client may assert it too.¹⁰ Holding the protection is not the same as invoking it. In the same decision, the attorney never raised work product before the district court, and the intervenors could not assert the protection on his behalf.¹¹ Whoever wants the protection should raise it.

Exam Analysis Steps

Because the protection depends on facts about an item's origin, the analysis runs best as a sequence that ends in a statement of what the resisting party can prove:

Identify the item the opponent seeks and confirm that it is a document or tangible thing.
Identify who prepared the item and for whom, and confirm that a party, or someone on a party's side such as its attorney, consultant, surety, indemnitor, insurer, or agent, prepared it or had it prepared.
Identify the reason the item was created and the adversary proceeding the preparer anticipated. Ask whether the same document most likely would have been prepared apart from any concern about litigation, applying the anticipation test the court follows.
List the specific proof on those points: the content of the item, counsel's role, and the events that prompted its creation. Note which facts the resisting party can establish and which it cannot.
If the proof establishes all three conditions, conclude that the item has qualified protection and turn to whether the opponent can overcome it.

The third step needs the most care, because material created before an adversary proceeding began often will be less than obviously prepared in anticipation of litigation.¹² The fourth step turns the analysis into evidence. A conclusion that no proof supports fails on burden even when the item would have qualified.

An illustration shows the sequence clearing every step. Suppose Manco fears that Paul, who was injured in a drill-press accident, will sue, and its claims investigator, Brown, inspects the machine and writes a report with no lawyer deciding that she should.¹³ The report is a document, so the first condition is met. Brown acts as Manco's agent, and the rule reaches material prepared by a party's agent, so the missing lawyer costs Manco nothing.¹⁴ Manco ordered the investigation because it feared Paul's suit, which satisfies the anticipation condition. Once Manco proves those facts, the report is work product.

Crane's writings come out the other way. When Crane drafted his memo, no lawsuit was pending, and no one had threatened suit or retained counsel to file one. The parties were simply at odds over how to read a contract, a very common commercial occurrence, so there was a very substantial question whether the memo was prepared in anticipation of litigation.¹⁵ His notes of the meetings with Mauldin fared worse. He made them before the contract dispute arose, when neither party contemplated litigation, and presumably for general record-keeping, so they were not protected.¹⁶ A party cannot treat every business record as work product because business disputes sometimes end in court, since a theory that broad would let the exception swallow the rule.¹⁷

The reason each item was written separates Brown's report from Crane's notes. Brown inspected the machine because of a feared claim, while Crane wrote when the parties merely disagreed over a contract and, as to the notes, for record-keeping. A resisting party that can prove a reason of the first kind keeps the item, and one that can prove only a reason of the second kind loses it.

Hypothetical Illustration

A brewery is sued by a customer who was sickened by a contaminated batch. The customer requests two items: the laboratory's contamination test results for that batch and a consultant's report on the brewing process. The brewery answers that both are work product and says nothing more. The court rejects that answer because it gives no author, no date, and no reason for either item. The brewery then files a declaration from its general counsel. It shows that the laboratory tests every batch on a standing schedule and logs the results in the same format whether or not anyone complains. It also shows that the consultant was engaged the day after the customer's lawyer sent a letter threatening suit, with instructions to report only to counsel. The test results would most likely have been prepared in the same form apart from any concern about litigation, so the brewery must produce them. The consultant's report is a document prepared for a party by its representative because of a threatened suit, so it meets all three conditions.

The declaration let the court see why each item existed, and the same showing that sent the test results to the customer carried the report across the anticipation condition. A resisting party that offers only a label gains nothing, while one that supplies origin facts for each item keeps what deserves protection and surrenders the rest.

An item that meets all three conditions receives qualified protection, and the analysis in this section ends there. Rule 26(b)(3)(A) says those materials may be discovered if further requirements are met, so the opponent has a route to the item.¹⁸ The doctrine divides into ordinary work product, which is sometimes discoverable, and opinion work product, which is almost never discoverable.¹⁹

Burden and Application

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