As litigation becomes more complex and as businesses become more sophisticated, issues begin to arise as to what documents and materials are afforded protection. For example, in construction disputes, the issue of causation is typically complex. Parties often will hire third-party consultants or engage in their own internal investigation into the issues presented. If these investigations are made at the request of a party’s attorney, the issue of work-product is less pronounced. However, where a business entity investigates and produces internal reports either before hiring an attorney or without the explicit direction of their attorney, the documents and materials relied upon and prepared may not be afforded any protection. This article discusses the applicability of the work-product doctrine to documents and materials relied upon and prepared by business entities’ internal investigation.
What is the Work Product Doctrine?
The work-product doctrine is a judicially created doctrine now codified in Utah Rule of Civil Procedure 26(b)(5).[1]
Business Entities’ Internally Prepared Documents
Documents and materials prepared by a party may be afforded work-product protection, provided that the documents and materials were prepared in anticipation of litigation. Attorney involvement in a client’s preparation of documents and materials is only a factor to be weighed in the work-product analysis. The courts must look to the primary purpose of the client-prepared documents or materials in order to determine if the work-product privilege may be afforded. Gold Standard v. American Barrick Resources Corp., 805 P.2d 164, 168 (Utah 1990). Thus, client-prepared documents without the request of counsel do not categorically preclude the work-product privilege.
In the 1990 Utah Supreme Court case Gold Standard v. American Barrick Resources Corp, Gold Standard challenged the assertion that certain memoranda prepared by Getty Oil were work-product. The Getty Oil memoranda were prepared two and a half years before a complaint by management-level employees without the involvement of counsel. Gold Standard argued that the memoranda cannot be treated as work-product because there was no attorney involvement. The court disagreed and stated that the rule in Utah is that “attorney involvement is only one factor to be weighed in determining the applicability of the work-product privilege. The fact that no attorney was involved may suggest that a document was prepared in the ordinary course of business and not in anticipation of litigation.” Id. at 170. The Utah Supreme Court stated that “an inquiry to determine whether a document was prepared in anticipation of litigation should focus on the ‘primary motivating purpose behind the creation of the document.’ If the primary purpose behind the creation of the document is not to assist in pending or impending litigation, then work-product protection is not justified.” Id. Further, “the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle of work-product protection.” Id. at 169. “If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting report is producible in civil pretrial discovery.” Id. at 171 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). Thus, the court held that the memoranda were not work-product as “they were not prepared by an attorney or at the request of an attorney or by someone doing investigation at the request of an attorney; nor were they otherwise prepared to assist in litigation.” Id.
Therefore, for any business-prepared documents and materials to receive work-product protection, done without the assistance or request of an attorney, the documents and materials must be prepared with the purpose of assisting in an anticipated or actual litigation. Whether a document is prepared in anticipation of litigation is a question of fact to be determined on a case-by-case basis. See Askew v. Hardman, 918 P.2d 469, 475 (Utah 1996) (“whether a document prepared by an insurer is prepared in anticipation of litigation is a question of fact to be determined by the trial court on the basis of the evidence before it”).
Thoughts on the Work Product Doctrine
While business-prepared documents and reports that were prepared in anticipation of litigation do not automatically shield those documents and reports, it does allow the business entities attorney to, at a minimum, attempt to protect work-product of the business entity. These potential situations would involve questions of fact, where the critical inquiry would be if the reports created were done so in anticipation of litigation and not in the ordinary course of business. If the subject documents or reports serves a dual purpose, i.e. a business purpose and a litigation purpose, then the claim of work-product will receive greater scrutiny. Therefore, it is a recommended best practice to engage an attorney as soon as a potential litigation is known. Where an attorney is involved and where the attorney directs the production of business-prepared documents there is a greater probability that those documents and reports receive work-product protection.
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