Last week's
Privilege Point described three different levels of protection
three courts provided to opinion work product in about a three-week
period. Courts also disagree about many other work product doctrine
elements.
In U.S. Nutraceuticals LLC v. Cyanotech Corp., the
court noted that federal courts defining the required
"anticipation" element hold "that litigation need
not be imminent, but rather a 'real possibility' at the
time the documents in question are prepared." Case No.
5:12-cv-366-Oc-10PRL, 2014 U.S. Dist. LEXIS 22739, at *6 (M.D. Fla.
Feb. 19, 2014) (citation omitted). Nine days later, another court
articulated two different and internally inconsistent standards in
the same paragraph: (1) "there was real and substantial
probability that litigation will occur at the time of the
document's creation," and (2) "the threat of
litigation must be 'real' and 'imminent.'"
Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., Case No.
12-2350-SAC, 2014 U.S. Dist.
