Because work product protection applies only when the creator is in or reasonably anticipates litigation, a litigant asserting that protection must know exactly when that occurred. In other words, as of one moment the litigant may not successfully assert work product protection and as of the next moment the litigant may. This normally involves identifying what might be called "trigger events": (1) some extraordinary event that inevitably will result in litigation; (2) an adversary's action, such as a threatening email or even a surprise lawsuit; or (3) occasionally, the litigant's own action, such as hiring an outside lawyer because of expected litigation.
Courts ultimately assess the legitimacy of such an identified moment, and sometimes seem too restrictive. In Thompson v. Dennis Widmer Construction, Inc., Case No. 3:20-cv-01145-IM, 2021 U.S. Dist. LEXIS 218471, at *13 (D. Or. Nov. 10, 2021), the court in a construction lawsuit "found that a failed mediation on January 22, 2020 triggered [Defendant]'s anticipation of litigation." Of course, this meant that "anything prepared before January 22, 2020 . . . is not entitled to work product protection." So defendant’s mediation-related documents prepared before that date were unprotected from discovery, unless they deserved attorney-client privilege protection. Id. at *14.
Perhaps the facts of this case supported the court's date selection, but it is easy to imagine that a construction company preparing for mediation might reasonably anticipate that the mediation would fail – thus justifying an earlier date for work product protection. Next week's Privilege Point will address another work product issue.