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When Does the Work Product Doctrine Kick In?

Created on April 29, 2020

Director of Marketing at Exterro

Noah’s Wholesale, LLC v. Covington Specialty Ins. (S.D. Fla. May 13, 2020)
shows that in cases involving e-discovery issues, the moving party is usually arguing that their opponent did not preserve relevant data when litigation was reasonably foreseeable. In this case, the opposite was true: The moving party wanted information that was protected by the work product doctrine to be ruled not privileged, arguing that litigation wasn’t reasonably foreseeable and thus the work product would not apply.


In this insurance claim dispute, the two sides disagreed on when litigation was reasonably foreseeable, leaving the plaintiff to wonder if information (i.e. insurer’s claim file) described as work product should available for discovery by the plaintiff.

The defendant argued that the time of the loss was when litigation was reasonably foreseeable but the plaintiff contends that the protection of the work product doctrine and foreseeability of the lawsuit didn’t occur until the plaintiff filed their lawsuit, which was “more than a year after the first loss notice was provided.”

Below are the dates the defendant offered to showcase when litigation was reasonably foreseeable:

  • June 27, 2017: When the statement of loss occurred
  • Aug. 3, 2017: Investigation of the claim begins and request for information from the insured
  • June 6, 2018: Plaintiff communicates to defendant that they retained legal counsel


    • Timing is Everything. The work product doctrine applies when litigation is reasonably foreseeable. In this case, the judge didn’t agree with either side and found a date in the middle of the two extremes when litigation was reasonably foreseeable.
    • "Information Gathering Mode." The judge ruled that when the June and Aug. dates occurred the plaintiff was still in “information gathering mode” and not certain about litigation.
    • Retaining Counsel. “Discussing the need for outside counsel (after learning that the insured retained counsel) is a tangible illustration of a view that litigation was anticipated,” ruled the judge. Therefore, the work product doctrine went into effect before the lawsuit was filed but when the plaintiff retained counsel.
Mike Hamilton, J.D.

Expert Opinion from Mike Hamilton, J.D. Director of Marketing, Exterro

Evaluating when litigation is reasonably foreseeable is becoming more and more important, especially in an age of endless data storage. Whether it’s to ensure relevant data is preserved or if the information is protected by privilege, this trigger will continue to play a prevalent role and it’s the duty of in-house counsel to have processes in place to clearly identify when this duty begins.

Case Law Tip:

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.