Courts Differ on the Meaning of the Work Product Rule's "Anticipation" and "Litigation" Elements: Part II

McGuireWoods LLP

Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules' "litigation" element also requires courts' interpretation.

Of course, regular civil and criminal litigation satisfies the "litigation" standard. But other similar proceedings might not. In University of Louisville v. Eckerle, the Kentucky Supreme Court held that "the university's employee grievance process . . . does not constitute litigation." No. 2020-SC-0216-MR, 2021 Ky. Unpub. LEXIS 49, at *10 (Ky. Aug. 26, 2021). The court explained that "[a]lthough the parties in the employee grievance process are typically represented by attorneys, the mere presence of counsel does not magically transform an internal, non-binding process regarding employment disputes among colleagues and coworkers into a judicial or even quasi-judicial action." Id. The court snarkily mentioned "U of L's untimely epiphany" – noting that the University had earlier argued that "the 'non-legal' nature of grievance process created no obligation to preserve documents in anticipation of litigation." Id. at *10, *9.

Courts' varying interpretations of the work product rule's "anticipation" and "litigation" elements can create uncertainty for plaintiffs and defendants.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McGuireWoods LLP | Attorney Advertising

Written by:

McGuireWoods LLP

McGuireWoods LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.