Last week's Privilege Point used two cases to address federal courts' surprising variations in the work product doctrine's "litigation" and "anticipation" elements. Courts also disagree about the doctrine's "motivation" element, and even about the content eligible for protection.

First, courts agree that the work product doctrine can protect documents motivated by settling ongoing litigation, but they disagree about the protection's applicability to documents motivated by clients' desire to avoid litigation. In Albritton v. CVS Caremark Corp., the court rejected the doctrine's applicability to documents intended to "avoid future litigation with the United States." Case No. 5:130-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236, at *13 (W.D. Ky. Nov. 10, 2015). Other courts take a different approach. Second, courts disagree about whether Fed. R. Civ. P. 26(b)(3)'s reference to "documents and tangible things" excludes from protection intangible work product such as testimony. In Ellis v. United States, the court pointed to the rule's explicit language in holding that the doctrine "cannot apply to the extent plaintiff was summoned to appear and testify" before an IRS Special Agent. Case No. 3:14-MC-00521-CWR-LRA, 2015 U.S. Dist. LEXIS 154464, at *21 (S.D. Miss. Nov. 16, 2015). Most courts take a more expansive view — recognizing a parallel federal common law work product protection for testimony that would deserve protection if written down.

The huge variation among federal courts applying the very same federal rule sentence can be especially worrisome for corporations likely to find themselves as defendants — because they ordinarily will not know where the litigation will begin, and therefore will not know which work product doctrine variation will govern.