2008-08-11 Spoliation and Work Product Privilege - Assertion Presumes Anticipation

It should be kept in mind that a party asserting the work product privilege in order to limit production of requested information is presumed to have anticipated that litigation (and triggered the invocation of Zubulake, Residential Mortgage and progeny) as of the date relevant to the underlying information for which privilege status is sought. In other words, the privilege presumes relevance as well as the foreseeability of litigation, and if Zubulake and progeny apply, a duty to preserve (including the duty to suspend routine document destruction) may be triggered.

Courts have held that an assertion of work product privilege (whether core or "fact") on a privilege log may be deemed an admission. The central prerequisite for an assertion of the work product privilege, a "party must show, as to each document, that the work product in question was: (1) prepared by, or under the direction of, an attorney and (2) was prepared in anticipation of litigation." Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264, 272 (E.D.Va. 2004). This duty to preserve (or to suspend routine document destruction) is triggered, arguably, contemporaneously with the time the evidence in question was prepared, and in the digital evidence world, created or generated. See U.S. Fire Ins. Co. v. Bunge North America, Inc., 2008 WL 2548129 (D.Kan. 2008). Once the duty to preserve/suspend is triggered, it is also triggered for all relevant (and forseeably relevant) digital evidence generated as of the time of the privileged document's preparation.