Under that test (followed in most federal circuits), material used for business purposes does not lose attorney work product protection if it was created “because of” anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation. U.S. v. Adlman, 134 F.3d 1194 (2d Cir. 1998).
A court handling a piece of multi-district litigation (MDL) recently applied the “because of” test in In re: Bard IVC Filters Products Liability Litigation, MDL No. 2641 (D. Ariz. Feb. 11, 2016). In that case, after Bard was threatened with litigation over adverse events connected to a filter it created to prevent blood clots, the company hired a former employee as a consultant to provide an assessment of the risks associated with the filter. Bard’s legal department requested the assessment to help it provide advice regarding legal exposure for the adverse events.
As instructed, the consultant prepared a report that Bard ultimately distributed to 12 employees including its general counsel. The report contained a label on each page noting that it was confidential attorney work product. Bard also used the report to create certain “health hazard evaluations” and remedial action plans.
To prevent the plaintiffs from using the report in the MDL, Bard sought a protective order from the court. Plaintiffs’ counsel objected arguing, among other things, that because Bard used the report for business purposes (in connection with the “health hazard evaluations” and remedial action plans), it should not be afforded attorney work product protection.
The court found that the business use did not deprive the report from work product protection. Following the “because of” test, the court concluded that the evidence supported a finding that the report “was created because of anticipation of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.”
The court noted that Bard engaged the consultant to create the report in response to threatened litigation and noted further that Bard’s legal department engaged him. Also important to the judge was the fact that labels on the report clearly stated it was attorney work product.
What is the justification of the “because of” rule? As the court noted in U.S. v. Adlman, “the policies underlying the work-product doctrine suggest strongly that work-product protection should not be denied to a document that analyzes expected litigation merely because it is prepared to assist in a business decision.”
To prove its point, Adlman provided examples of which documents might serve dual business and legal purposes. For instance, a company considering a transaction that will result in litigation prepares a memorandum in expectation of litigation with the primary purpose of helping the company decide whether to undertake the transaction. Or, a company contemplates a business association with another and the other company reasonably requests that the company furnish a candid assessment by the company’s attorneys of its likelihood of success in existing litigation.
Rejecting the notion that the business use of the information in these types of cases should deprive it of attorney work product protection, Adlman concluded there was “no basis for adopting a test under which an attorney’s assessment of the likely outcome of litigation is freely available to his litigation adversary merely because the document was created for a business purpose rather than for litigation assistance. The fact that a document’s purpose is business-related appears irrelevant to the question whether it should be protected under [Federal Rule of Civil Procedure] 26 . . . .”