Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules' "litigation" element also requires courts' interpretation.

Of course, regular civil and criminal litigation satisfies the "litigation" standard. But other similar proceedings might not. In University of Louisville v. Eckerle, the Kentucky Supreme Court held that "the university's employee grievance process . . . does not constitute litigation." No. 2020-SC-0216-MR, 2021 Ky. Unpub. LEXIS 49, at *10 (Ky. Aug. 26, 2021). The court explained that "[a]lthough the parties in the employee grievance process are typically represented by attorneys, the mere presence of counsel does not magically transform an internal, non-binding process regarding employment disputes among colleagues and coworkers into a judicial or even quasi-judicial action." Id. The court snarkily mentioned "U of L's untimely epiphany" – noting that the University had earlier argued that "the 'non-legal' nature of grievance process created no obligation to preserve documents in anticipation of litigation." Id. at *10, *9.

Courts' varying interpretations of the work product rule's "anticipation" and "litigation" elements can create uncertainty for plaintiffs and defendants.