The work product doctrine can protect documents primarily motivated by litigation or anticipated litigation, rather than prepared in the ordinary course of business or motivated by some other non-litigation purpose. But actions occurring after the documents' creation sometimes can reflect back on that key motivational element.

In Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 U.S. Dist. LEXIS 6343 (W.D. Okla. Jan. 14, 2019), the court analyzed defendant's work product claim for documents it created while investigating a tractor-trailer accident. The court acknowledged that defendant anticipated litigation, because plaintiff's lawyer threatened litigation the day after the accident. But the court denied defendant's work product claim -- emphasizing that the defendant's Director of Safety "has access to this information for non-litigation purposes." Id. at *5. The court concluded that "the portion of the claims file available [to defendant's Director of Safety] is discoverable to Plaintiff because it is generated in the ordinary course of business and not directly in anticipation of litigation." Id. at *6.

Many if not most courts would take a different approach, properly analyzing documents' creation rather than their post-creation availability to others. But maintaining the litigation focus of appropriately created work product enhances the chance for successfully claiming that protection.

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