37.4 Motivation to Settle or Avoid Litigation

• Library: The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.)

37.4 MOTIVATION TO SETTLE OR AVOID LITIGATION

Courts have discussed whether the work product doctrine can protect documents created in an effort to settle ongoing litigation, or to avoid future litigation.

First, the few courts to have addressed the issue seem to agree that the protection can cover documents created in an effort to settle ongoing litigation. ¹⁰ In 2010, the District of Columbia district court held that work product protection could protect a lawyer's "mental impressions" (and presumably other work product) prepared "'for' litigation, whether for trial, appeal, or litigation resolution." ¹¹ In 2008, the Northern District of New York held that "communications do not necessarily lose work product protection simply because they relate to the settlement of an action." ¹² A Delaware state court has indicated that such documents undoubtedly deserve work product protection. ¹³ As that court put it, "[t]his Court is hard pressed to think of any information that warrants greater protection under [the] attorney work product doctrine than potential settlement strategies prepared at the direction of counsel." ¹⁴

What appears to be this judicial consensus should obviously cause relief among litigators and their clients, but can be difficult to square with both the language of the work product rule and its purpose. To be sure, by definition such documents exist only during the pendency of litigation, so they meet the temporal standard. However, it is more difficult to see how they meet the motivational element (which is also discussed in Chapter 38 of this book). They would not exist but for the litigation, and it could clearly be argued that they would be used to assist in the litigation. But the focus of such documents is clearly to end the litigation with a settlement rather than pursue the litigation to a trial. They clearly do not meet the "for trial" standard of Fed. R. Civ. P. 26(b)(3). To the extent that the "or for trial" language provides the exclusive definition of the documents deserving protection during litigation, they fall short of that. Perhaps this consensus approach recognizes that a litigation settlement strategy is so intimately related to the ongoing litigation strategy that it is essentially impossible to separate them out. For whatever reason, this fairly broad interpretation of the work product rule provides an even-handed protection and therefore is not likely to face challenge from either side. In addition,

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