1E9Ct5D

choose to investigate every event can be found in the Federal Rules of Civil Procedure.Rule 26(b) (3) provides, in pertinent part, as follows:Documents and Tangible Things. Ordinarily, a party may notdiscover documents and tangible things that are prepared inanticipation of litigation or for trial by or for another party orits representative (including the other party's attorney,consultant, surety, indemnitor, insurer, or agent). 19The key to this provision, and an important factor in most every jurisdiction, is thatmaterials prepared in anticipation of litigation are afforded protection under the workproduct doctrine. Materials created “in the regular course of business” are typically notprotected and are fair game for discovery by opposing parties. A policy to investigateevery claim makes it much more difficult to argue that the investigation was made “inanticipation of litigation” as opposed to being conducted “in the regular course ofbusiness.” Beyond this distinction, there is also a challenge in that differing jurisdictionsrely on differing standards to determine whether an action is taken “in anticipation oflitigation.” 20A company is understandably hesitant to open its investigation of events toopposing parties in later litigation. A determination that certain claims are likely to leadto litigation, supported with concrete reasons and, if possible, historical data, to support19 See, Fed. R. Civ. Proc. 2620 Compare, United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)(expressing view that materialsare to be given protection only when they are created “because of” existing or expected litigation), withUnited States v. El Paso Co., 682 F.2d 530, 543 (5 th Cir. 1982)(providing protection for materials wherethe “primary motivating purpose behind the creation of the [materials] was to aid in possible futurelitigation", even if there are also business purposes for the materials).13