Last week's Privilege Point described a Louisville, Kentucky, restaurant's loss of privilege protection because it could not prove that the managers providing information after a slip and fall knew the "investigation notes'" purpose. Bobalik v. BJ's Restaurants, Inc., Case No. 3:19-CV-0661-RGJ-LLK, 2020 U.S. Dist. LEXIS 231289 (W.D. Ky. Dec. 9, 2020). The court then turned to the restaurant’s work product assertion.

The court first noted that "[t]here is not a reasonable expectation of litigation from each and every incident that may occur at [the] restaurant." Id. at *18. And because the work product doctrine only protects documents primarily motivated by anticipated litigation, the court pointed to another gap in the restaurant’s proof — "there is nothing provided by the BJ’s Defendants that would indicate the investigation notes form is filled out by the . . . managers only in situations where there is a reasonable expectation of litigation." Id. at *18-19.

Like last week's Privilege Point's lesson, this work product principle normally applies in all situations — from restaurant slips and falls to multi-million dollar internal corporate investigations. To maximize the odds of successfully claiming work product protection, companies should be ready to prove that the withheld documents would not exist in the same form but for anticipated litigation.