The work product doctrine protection rests on three elements:
(1) litigation; (2) anticipation; (3) motivation. In normal civil
or criminal litigation, the first element presents an easy
analysis. Most lawyers' attention focuses on the second element
— whether their clients reasonably anticipate litigation. But
the third element represents the real key to work product
protection.
Even if the client is in the midst of litigation, or reasonably
anticipates litigation, the work product doctrine only protects
documents motivated by that litigation. In Chevron Midstream
Pipelines LLC v. Settoon Towing LLC, Civ. A. No.
13-2809c/w13-3197 SECTION: "A"(5), 2014 U.S. Dist. LEXIS
179284 (E.D. La. Jan. 5, 2015), Chevron in-house lawyers initiated
and directed what they labeled a "legally chartered" root
cause investigation after a fatal pipeline explosion. In analyzing
the motivation element the court described as the "salient
question" whether "'legally chartered' root
