Chapter 38 “motivation” Element

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

Chapter 38

"MOTIVATION" ELEMENT

38.1 INTRODUCTION

Work product doctrine protection depends on litigants creating documents being motivated by litigation rather than by something else.

This third work product element is perhaps the most important—focusing on the "motivation" for documents' creation.

38.2 RELATIONSHIP TO ANTICIPATION OF LITIGATION ELEMENT

The work product doctrine protects only those documents motivated by litigation or anticipated litigation.

38.3 NECESSITY OF MEETING THE MOTIVATION STANDARD

Even if litigants create documents during ongoing litigation (or while reasonably anticipating litigation), the work product doctrine usually will not protect those documents unless they were motivated by the litigation (or anticipated litigation).

38.4 DOCUMENTS CREATED AFTER LITIGATION ENDS

Some courts hold that the work product doctrine can protect documents created after litigation ends, such as post-mortem analyses.

38.5 DUAL MEANING OF THE "PRIMARY PURPOSE" TEST

Most courts usually apply what they call the "primary purpose" test when analyzing the motivation element. [38.501]

However, this primary purpose standard could focus either on the reason for documents' creation or the use to which they will be put. [38.502]

[Page 252]

These two possible approaches to the primary purpose test appear in a split among the circuits about that issue. [38.503]

38.6 LIMITING PROTECTION TO DOCUMENTS THAT AID IN LITIGATION

The narrowest work product approach protects only documents that litigants use or plan to use to aid or assist their litigation effort. [38.601]

A 2009 First Circuit decision articulated this approach. ¹ [38.602]

In contrast, the broader "because of" standard (discussed below) can extend work product protection to documents that will not be used to aid or assist in litigation. [38.603]

Ironically, in at least one respect, this "aid or assist" standard provides a broader protection than the normally more expansive "because of" standard. [38.604]

• The former presumably can cover logistical documents with no substantive content, such as emails scheduling deposition preparation sessions, etc. ²

38.7 DOCUMENTS CREATED TO SATISFY EXTERNAL REQUIREMENTS

The work product doctrine usually does not protect documents created to comply with external requirements such as government statutes or regulations.

• Examples include Fair Labor Standards Act audit requirements; federal environmental rules; OCC requirements; SEC requirements; ICC regulations.

Such documents are not motivated by litigation, but instead are motivated by the external requirements.

Some courts take a broader view, and protect such documents.

[Page 253]

38.8 DOCUMENTS CREATED TO SATISFY INTERNAL REQUIREMENTS

The work product doctrine usually does not protect documents created to comply with internal corporate requirements. [38.801]

Although corporations preparing documents pursuant to internal requirements have a greater chance of successfully claiming work product protection than when complying with external requirements, such situations present the same conceptual hurdle for satisfying the motivation element. [38.802]

Ironically, this means that corporations laudably requiring investigations of each accident, employee discrimination claim, etc., face a high (and sometimes insurmountable) burden in seeking work product protection. [38.803]

Some courts have applied this intellectually defensible but counterintuitive approach to several such internal requirements. [38.804]

• Examples include internal policy requiring investigation of any sexual harassment

...