Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether their clients sufficiently "anticipated" litigation when creating the withheld documents. But frequently the most important obstacle to claiming work product protection is (3) whether the anticipated litigation "motivated" the documents' creation (and thus whether the documents would not have existed in the same form but for that anticipated litigation).
In Johnson v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017), Southern District of New York Magistrate Judge Francis found that the Proskauer law firm's Title VII investigation report for its client deserved work product protection. He acknowledged that the firm's client had a written policy for investigating discrimination complaints. That conclusion normally would doom a work product claim - as evidence that the investigation report was not motivated by litigation, but rather compelled by internal requirements. But Judge Francis then noted that Proskauer's report was "unique in several ways": (1) the litigation had already begun; (2) the client "did not rely on its human resources personnel or even in-house counsel to conduct the investigation, but instead engaged outside counsel"; and (3) Proskauer's report "does not appear to be in a form consistent with routine investigations of discrimination complaints." Id. at *19.
Judge Francis's wise analysis provides a lesson for all corporations. To deserve work product protection, documents generally must be different from those prepared in the ordinary course of business, or compelled by external or internal requirements.