Chapter 37 “anticipation of Litigation” Element

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 37

"ANTICIPATION of litigation" ELEMENT

37.1 INTRODUCTION

In the absence of ongoing litigation, work product doctrine protection depends on reasonable "anticipation" of such litigation.

37.2 LITIGATION AND "ANTICIPATION" OF LITIGATION

It can be reasonable to anticipate litigation that never occurs. Conversely, it can be unreasonable to anticipate litigation that eventually ensues.

37.3 SUBJECTIVE AND OBJECTIVE ANTICIPATION

The work product doctrine's anticipation element generally requires a subjective anticipation of litigation that is objectively reasonable.

37.4 MOTIVATION TO SETTLE OR AVOID LITIGATION

The work product doctrine usually can protect documents motivated by the desire to settle ongoing litigation.

	•	The same rules should apply to the desire to avoid reasonably anticipated litigation.
VA	A Virginia circuit court 1 held that the work product doctrine could protect documents motivated by avoiding litigation.

However, the protection usually does not extend to documents created to avoid litigation—if the preparer does not at that time satisfy the required anticipation element.

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37.5 REQUIREMENT OF A SPECIFIC IDENTIFIABLE CLAIM

Courts disagree about the requirement for a specific identifiable claim before extending work product protection. [37.501]

• This issue can have dramatic consequences for corporations trying to plan ahead.

Some courts extend work product protection even if the preparer cannot point to a specific identifiable claim. [37.502]

	VA	The Eastern District of Virginia 2 , the Western District of Virginia, 3 and a Virginia circuit court 4 appear to have required a specific claim.
VA	A Virginia circuit court 5 indicated that work product protection did not require a specific claim, and could cover a corporation's manual for handling incidents.
•	In contrast, some courts do not protect generic process or logistical documents describing how corporations will respond to any future claims they receive, litigation they may face, etc.

37.6 DEGREE OF ANTICIPATION OF LITIGATION

Remarkably, federal courts examining the same "anticipation" element in a single federal rule sentence fragment adopt widely varying requirements.

	•	Courts' approaches range from requiring that litigation be "imminent" to requiring only that there be "more than the mere possibility of litigation"—and nearly any degree of anticipation in between.
VA	The Eastern District of Virginia 6 applied a "reasonably could result in" litigation standard (or similar language). The Western District

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		of Virginia 7 used a "substantial and imminent" standard and a "fairly foreseeable" standard in the same decision.
VA	A Virginia circuit court indicated that the work product doctrine can apply to litigation that is not "imminent." 8 Other Virginia circuit courts 9 used a "reasonably foreseeable" standard (or similar language). Another Virginia circuit court 10 used a "substantial probability" standard.

This uncertainty can create problems for those contemporaneously documenting their anticipation of litigation.

• Because the potential litigant may not know where litigation will occur, it usually will not know what standard some court may later apply.

Parties to ongoing litigation can determine their court's requirement, and must satisfy it with evidence.

• An affidavit or other evidence falling short of the required standard probably will doom litigants' work product claims.

37.7 DATE AND DURATION OF ANTICIPATION

Some courts analyzing work product claims focus on when litigants first anticipated litigation, and how long their anticipation can last. [37.701]

Theoretically, litigants must be able to identify the exact moment at which they first anticipated litigation. [37.702]

Litigants' anticipation of litigation can ebb and flow. [37.703]

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