The Battleground over Dual Purpose Documents: Is Work Product Protection Appropriate Under Rule 26(B)(3)?
Gregory A. Marrs | 2011 U. Ill. L. Rev. 1031
Many business decisions require consideration of regulatory risks and the potential of future litigation. Consideration of these business decisions often produces documents that serve a dual purpose—the business purpose of appropriating litigation and regulatory risks into the company’s budget and the litigation purpose of analyzing anticipated lawsuits. The work product doctrine, codified in the Federal Rules of Civil Procedure Rule 26(b)(3), protects those documents “prepared in anticipation of litigation” from discovery by an adversary in order to protect the mental impressions and litigation strategy retained by a party’s attorney. The work product doctrine, however, is problematic when applied to dual-purpose documents, for they serve both litigation and business purposes. The federal Circuit Courts of Appeals are split concerning the application of the work product doctrine to dual-purpose documents, with some adopting a broad approach that is inconsistently applied, while others employ a narrow test that fails to capture the underlying rationale of the work product doctrine. This Note analyzes the different approaches federal courts use when determining what constitutes documents “prepared in anticipation of litigation” and argues that the phrase should be broadly construed in a consistent manner in order to preserve the policy considerations that justify the work product doctrine. Furthermore, this Note argues that the “ordinary course of business” exception to the work product doctrine should not subsume dual-purpose documents that would otherwise be protected.