In order to be protected by the work product doctrine, a document must be prepared “in anticipation of litigation or for trial.” “Litigation” has been defined broadly to include administrative hearings. However, the courts are split on which administrative hearings qualify for the protection. Some courts find that an administrative hearing satisfies the litigation element if the hearing allows for cross-examination. In Adair v. EQT Production Co., Nos. 10-cv-00037, 10-cv-00041, 11-cv-00031 (W.D. Va. Sept. 27, 2013), the court rejected this approach and held that a proceeding must not only allow for cross-examination, but the party asserting the work product protection must demonstrate that the proceeding involved a claim prosecuted by one party against another or claims made by multiple parties with opposing claims to a particular interest (e.g., a permit or licensing hearing). Proceedings where there is only a limited appearance by outside parties and the proceedings are not adversarial but mostly ex parte, do not constitute litigation for the purposes of the work product doctrine. Because defendant did not demonstrate that the hearings at issue were adversarial, rather than the types of proceedings required by regulations in the ordinary course of business for a company operating under the statute at issue, the work product doctrine did not apply.
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Right to cross-examine does not make administrative hearing “adversarial.”
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