The work product doctrine rests on three basic elements: (1)
there must be some "litigation" (this element normally
includes arbitrations and adversarial government hearings, but not
government investigations); (2) the litigant must be in such
litigation or have reasonably "anticipated" it; and (3)
the withheld document must have been "motivated" by that
litigation. Some litigants forget the third element.
In Quality Time, Inc. v. West Bend Mutual Insurance
Co., Case No. 12-1008-JTM-GLR, 2012 U.S. Dist. LEXIS 161703
(D. Kan. Nov. 13, 2012), the court addressed a work product claim
in a first party insurance case. The defendant insurance company
argued that the work product doctrine protected documents created
after related state court litigation began. The court rejected the
work product claim – explaining that even after litigation
begins the work product doctrine "applies . . . to protect
only those documents created because of the litigation."
Id. at *31. The
