Loudoun County Judge Rejects Bright-Line Test for Work Product Protection

In a case brought by two ousted golf-club members against the Benchmark Management Company, the management company behind Lansdowne Golf Club in Leesburg, Virginia, Judge James H. Chamblin ruled that a “case by case” test for determining applicability of the work-product doctrine is preferable to the “bright-line rule” several other Virginia courts have followed.  

At issue was whether 23 internal Lansdowne documents concerning an alleged assault on the premises were prepared “in anticipation of litigation” within the meaning of Virginia Supreme Court Rule 4:1(b)(3), which provides that a litigant may not compel an opponent to produce copies of documents prepared in anticipated of litigation except under certain limited  circumstances.  After reviewing the documents privately, Judge Chamblin found that the documents were prepared in anticipation of litigation and that, because there was no argument by counsel that any exception applied, the documents were protected from discovery by the work-product doctrine.  

There has not been a consensus among Virginia circuit courts with respect to determining when litigation is “anticipated.”  Some courts apply a bright-line test that applies work-product protection to a document the moment an attorney becomes involved.  Other courts decide the issue on a case-by-case basis, examining the particular facts and circumstances of each case and determining whether litigation was reasonably foreseeable, regardless of whether an attorney has been retained.  Judge Chamblin favored the case-by-case approach “because things can be done in anticipation of litigation before an attorney becomes involved.”

When companies establish internal policies to investigate, document, or otherwise manage incidents involving violence, accidents, contract disputes, or other problems, and the purpose of the policy is to protect the company from litigation, courts applying the case-by-case test will generally not require the company to share any documents prepared pursuant to that policy with an opposing party in subsequent litigation.