The Anticipation Misconception
55 Pages Posted: 25 Jan 2010 Last revised: 27 Apr 2011
Date Written: October 20, 2009
Many commentators and courts have cited to the Supreme Court decision of Hickman v. Taylor as the genesis of the work product doctrine and the requirement that, to be afforded protection, the material in question must be generated “in anticipation of litigation.” The oft quoted policy justification for the protection afforded is that attorneys should be allowed a “zone of privacy” within which to prepare their case for the client. This justification supports limiting protection only to work generated “in anticipation of litigation,” because, presumably, outside of this context there is no need for the “zone of privacy.” However, a closer reading of Hickman reveals that, though the facts of that case involved preparation for trial, the Supreme Court placed no such limit on the scope of protection afforded an attorney’s “mental impressions, conclusions, opinions or legal theories,” known as “core” work product. In fact, the Supreme Court made very clear that such materials should be afforded special protection, above and beyond that afforded “ordinary” work product, which includes “written or oral information transmitted to the attorney and recorded as conveyed by the client.” Furthermore, though the “zone of privacy” justification was used by the Court, a much broader concern for the effect discovery of such materials would have on the attorney-client relationship was also articulated. This policy concern shares much in common with the instrumental policy justification that is at the heart of the attorney-client privilege. Thus, a review of Hickman reveals at least two commonly held misconceptions about that case: 1) that it requires “core” work product to be produced in “anticipation of litigation” before protection can attach and 2) that the sole justification for the protection is to create a “zone of privacy” within which the attorney can work. Together, these misconceptions have produced problems that should be of concern to both the practitioner and academic. From a practical standpoint, these misconceptions have limited the scope of coverage given to the attorney’s “core” work product causing problems with knowing what in the attorney’s file will be discoverable. Furthermore, as different jurisdictions have adopted varying standards, attorneys must deal with a lack of uniformity when it comes to protecting work product. Academically, these misconceptions are troubling because they have resulted in a system that encourages forum shopping and creates distinctions without any meaning or justification.
This article examines both the work product doctrine’s historical and philosophical roots to determine whether the “anticipation of litigation” requirement should be a bar to protection of “core” work product from discovery. In particular, this article examines the Hickman v. Taylor case within its historical context, starting with the enactment of the first Federal Rules of Civil Procedure in 1938 and discusses the subsequent interpretations of Hickman, and how the “anticipation of litigation” requirement, or anticipation misconception, got its start through, of all things, a student note in the Harvard Law Review. This article examines the “anticipation of litigation” requirement, as it is applied to "core" work product, in light of this historical development and proposes that the requirement is unjustified historically, philosophically or as a matter of policy. The article concludes by proposing that with regard to “core” work product, a new exception be established, or rather a recognition that an old exception continues to exist. This exception based upon Hickman, would afford “core” work product a residuaum of protection from discovery, regardless of the context in which it was created, so long as it was created by an attorney in his or her role of providing legal assistance. Such a rule will grant “core” work product a privileged status similar to that received by attorney-client communications, a result that makes sense when the instrumental policy justification for the doctrine is taken into account. Recognition of this protection will be more in keeping with the holding of Hickman and will help dispel uncertainty as to the scope of the doctrine due to the various readings courts have given to the term “anticipation of litigation.”
Keywords: work product, attorney-client privilege, Hickman, Textron, Upjohn, anticipation of litigation, discovery, e-discovery
JEL Classification: K19, K20, K4, K30, K34
Suggested Citation: Suggested Citation