The last two Privilege Points have addressed courts' troubling disagreements about the meaning of two federal rule sentences articulating the important work product doctrine protection. Surprisingly, courts cannot even agree on the basic reach of that qualified immunity.
In Acceleration Bay LLC v. Activision Blizzard, Inc., the court held that a document can deserve work product protection only if "the court finds that the 'primary' purpose behind its creation was to aid in possible future litigation." Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506, at *5 (D. Del. Feb. 9, 2018) (emphasis added). Most courts take a broader view – extending the protection to documents which might not be used to "aid" in the litigation, but which a litigant or would-be litigant created "because of" litigation or anticipated litigation. That might seem like a subtle distinction, but can have enormous consequences. For instance, in Acceleration Bay the court found the work product doctrine inapplicable to documents plaintiff had provided to a litigation funder or the funder's law firm Reed Smith. The court explained that "[t]he documents were thus prepared with a 'primary' purpose of obtaining a loan, as opposed to aiding in possible future litigation." Id. at *6. Those documents presumably would have deserved protection under the broader "because of" standard. Under the District of Delaware's restrictive view, work product protection apparently would not extend to litigants' documents reflecting internal discussions about how to pay for a possible adverse judgment.
Most courts follow the more expansive "because of" approach. But as mentioned in an earlier Privilege Point, corporations normally do not know in advance where they might be sued – so they may not know whether that court's minority work product view may strip away protection that other courts would recognize.