One of the most critical issues that attorneys must address in litigation is the need to protect their work product. Despite the importance of this issue, some lawyers have forgotten the basic elements of the work product doctrine. They might remember Hickman v. Taylor from law school, together with Justice Jackson’s famous injunction against preparing a case “on wits borrowed from the adversary.” Probe more deeply into nuanced issues such as the discovery of fact or opinion work product, however, and the answers may not come so readily.
Regardless of the nature of their practice, litigation attorneys could generally use a refresher course on work product. This is particularly the case since counsel is now litigating in the age of electronic discovery. Questions abound regarding the interplay between work product and the duty to preserve, along with the application of work product to electronic search methodologies. It is critical that lawyers learn how courts are addressing these issues so they can assert a proper claim of work product.
Work Product and the Duty to Preserve
The work product doctrine generally provides a qualified privilege from discovery for materials such as witness statements and legal memoranda prepared by counsel “in anticipation of litigation or trial.” Given that the privilege attaches when litigation is reasonably anticipated, work product may be used to safeguard materials from discovery that were prepared months or even years in advance of a lawsuit.
However, litigation adversaries have shrewdly argued that work product assertions provide an earlier trigger date for a litigant’s duty to preserve relevant information. This is because the duty to preserve relevant materials, like the work product doctrine, ripens when litigation is reasonably anticipated or foreseeable. In some instances, this has caused the duty to preserve to be backdated by months or even years, exposing a party to spoliation sanctions for failing to keep relevant evidence – particularly electronically stored information (ESI) – from that retroactive preservation date.
For example, in Siani v. State University of New York, the court held that defendants’ duty to preserve was triggered nearly a year before plaintiff filed his complaint due to their assertion of work product. While the Siani court ultimately declined to issue spoliation sanctions against defendants, such was not the case in Sanofi-Aventis v. Glenmark. In that matter, the Federal Circuit affirmed a permissive adverse inference instruction for lost ESI based on an analogous work product/duty to preserve scenario.
Work Product and Electronic Search Methodologies
Beyond the duty to preserve, the application of work product to electronic search methodologies presents key questions that lawyers should understand and address. One such question is whether work product protects the search terms that counsel has developed to identify responsive information. While lawyers have long argued in favor of this protection, courts have generally rejected the notion that search terms are shielded from discovery.
The judicial reasoning on this issue is captured by Romero v. Allstate Insurance Company. In Romero, defendants argued that the search terms they developed were work product. The court rejected that argument, reasoning instead that defendants’ search terms would reveal factual matters sought by plaintiffs’ document requests and not the protected mental processes of their lawyers.
In contrast to search terms, which the judiciary seems disinclined to protect, courts have yet to determine whether the identity of the documents counsel selects to train the predictive coding process are work product. Commonly referred to as seed sets, these documents are essential for training a predictive coding algorithm to identify responsive information and key documents required to establish a party’s claims or defenses.
Some courts and commentators have argued that seed set documents should be specifically identified despite the potential for divulging work product. They assert that disclosure will reduce wrangling over how the producing party designed its predictive coding process.
In contrast, those who favor work product protection contend that a seed set may reflect the manner in which a lawyer is pursing discovery and how it is seeking to establish what is relevant to the client’s claim or defense. If forced to reveal the identity of seed documents, proponents argue that counsel’s thought processes, conclusions made on the claims and defenses at issue, and/or its strategy for seeking to dispose of the case could be wrongfully divulged to a litigation adversary.
Getting Up to Speed on the Issues
How this issue and others involving claims of work product are ultimately resolved will likely turn on the effectiveness of counsel’s advocacy. Understanding the parameters of the work product doctrine in these and other contexts is therefore essential for lawyer competency in 2016. To assist lawyers in their efforts to better understand the application of work product in the age of eDiscovery, Driven is holding a series of CLE programs in various cities this year that touch on many of the issues. We invite you to join us for these events; dates, locations, and registration information are available here.
 Hickman v. Taylor, 329 U.S. 495 (1947).
 Siani v. State Univ. of New York, No. 09-cv-407 (E.D.N.Y. Aug. 10, 2010).
 Sanofi-Aventis Deutschland GmbH v. Glenmark Pharma. Inc., No. 2012–1489 (Fed. Cir. Apr. 21, 2014).
 Romero v. Allstate Ins. Co., 01-cv-03894 (E.D. Penn. Oct. 21, 2010).