Editor's Note: Seth D. Lamden is a partner at Neal, Gerber & Eisenberg LLP, a Chicago, Ill.-based law firm.
The attorney work-product privilege is one of the three primary privileges incorporated into Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5). It protects materials prepared by an attorney or others in anticipation of litigation, ostensibly shielding materials that would disclose the attorney's theory of the case or trial strategy. President Lyndon B. Johnson originally signed FOIA into law by on July 4, 1966 and it went into effect the following year.
To qualify as attorney work-product, a document must be “prepared in anticipation of litigation.” This means that the privilege does not attach until “at the very least some articulable claim, likely to lead to litigation,” has arisen. So are documents compiled prior to a claims decision always protected, or are they fair game during litigation? Well, it depends.
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