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Anticipating a Fight over “the Anticipation of Litigation”
Maximizing Work Product Protection When Defending Against Tort Claims in a Corporate Setting Eddy Silverman
There are few areas of the corporate-legal intersect more undervalued than the work product rule. THE ESSENTIAL DICTIONARY OF LAW defines work product as “documents, notes, memoranda, and other materials [a] prepared by an attorney as part of representing a client, [b] particularly in anticipation of litigation on a particular matter.” This is a fairly standard definition, and the one probably floating around in the head of the attorney erroneously telling you that this is all work product is, or can be. In reality, like effectively every other matter of legal interpretation, the answer to what work product is, is “it depends.” This arti-
Williams Kastner
cle advocates exploring whether work product protection is available in your case, but focuses primarily on setting up the attorneys and business professionals claiming such protection for success, while not losing sight of the fact that, at the end of the day, a mere claim may be all you need to make an inconvenient request go away. WORK PRODUCT: UNDERVALUATION, OR UNTIMELY VALUATION? Suggesting that exploring the applicability of work product is important is not the sort of “hot take” that is going to floor readers. Work product protection is one of those concepts you
cannot help but to run into early and often in practice. Similarly, business professionals involved in litigation assisting with that very first set of discovery responses are likely to become educated on work product quickly, and those paying attention are likely to just as quickly appreciate the importance of taking all the protection one can get. So maybe it is not entirely accurate to suggest that “undervaluing” work product is rampant—but companies are certainly not valuing work product quickly enough, and both companies and attorneys are too often drawing bright lines that do not exist in reality between (a) an