Last week's Privilege Point described a court's finding that the work product doctrine protected a corporation's investigation of a gender and age discrimination claim -- because the investigation was neither "routine nor ordinary." Heckman v. TransCanada USA Services, Inc., Civ. A. No. 3:18-CV-00375, 2020 U.S. Dist. LEXIS 7293 (S.D. Tex. Jan. 13, 2020). There are two other options for maximizing work product protection in such circumstances: (1) arguing that the investigation started in the ordinary course of business, but then "morphed" into a litigation-motivated investigation; or (2) conducting separate investigations – one of which was conducted in the ordinary course of business, and one of which was primarily motivated by anticipated litigation.

In Holladay v. Royal Caribbean Cruises, Ltd., No. 19-20951-CIV-Goodman, 2020 U.S. Dist. LEXIS 10307 (S.D. Fla. Jan. 22, 2020), defendant conducted two separate investigations into a passenger's on-board injury. The court held that one of the investigation reports (prepared by Celtic Engineering) did not deserve work product protection. Celtic's draft report "mentions nothing about an incident, a fall, injuries, or [plaintiff]." Id. at *12. The court later repeated that the Celtic draft report "does not mention the incident, the injury or any topic relating to litigation." Id. at *19. Celtic also examined another of the defendant's ships – although "[t]here is no mention of any incident, litigation or threatened litigation" involving that other ship. Id. at *12-13. The court contrasted the Celtic report with a separate report prepared by consultant SEA. The SEA Report identified the plaintiff as the "injured party." Id. at *11. It used the terms "loss," "accident," and "injuries" – and was "focused on [Plaintiff's] fall and injuries." Id. at *11-12. Unfortunately for the cruise line, the court had earlier ordered production of the SEA Report – holding that plaintiff established "substantial need for the report," because the cruise line "had dismantled the attraction [on which plaintiff was injured] before Plaintiff or his expert could inspect it." Id. at *1.

Corporations can sometimes establish that the work product doctrine protects documents created during their only investigation. But they have a better chance of successfully asserting work product if they deliberately conduct a simultaneous or a later investigation that differs from the ordinary-course unprotected investigation and which on its face focuses on litigation and strategy.