United States Sixth Circuit

To determining whether documents or things are prepared "in anticipation of litigation" for purposes of the work product privilege, the test is: 1) whether a document was created because of a party's subjective anticipation of litigation, as contrasted with an ordinary business purpose; and 2) whether that subjective anticipation of litigation was objectively reasonable.

Appellate Information

• Decided 08/10/2006
• Published 08/10/2006

Judges

• Before:  KEITH and COLE, Circuit Judges;  MILLS, District Judge.

Court

• United States Sixth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Linda T. Coberly, Winston & Strawn, Chicago, Illinois, for Appellant.  Frank P. Cihlar, U.S. Department of Justice, Washington, D.C., for Appellee.   ON BRIEF:  Charles S. Cassis, Tanya Y. Bowman, Frost, Brown, Todd, LLC, Louisville, Kentucky, James M. Lynch, Louis J. Weber, III, David L. Theyssen, Winston & Strawn, Chicago, Illinois, for Appellant.  Frank P. Cihlar, John Schumann, U.S. Department of Justice, Washington, D.C., for Appellee.