Editor's Note: Seth D. Lamden is a partnerat Neal, Gerber & Eisenberg LLP, a Chicago, Ill.-based lawfirm.
The attorney work-product privilege is one of the threeprimary privileges incorporated into Exemption 5 of the Freedom ofInformation Act (FOIA), 5 U.S.C. § 552(b)(5). It protects materialsprepared by an attorney or others in anticipation of litigation,ostensibly shielding materials that would disclose the attorney'stheory of the case or trial strategy. President Lyndon B.Johnson originally signed FOIA into law by on July 4, 1966and it went into effect the following year.
To qualify as attorney work-product, a documentmust be “prepared in anticipation of litigation.” This meansthat the privilege does not attach until “at the very least somearticulable claim, likely to lead to litigation,” has arisen. Soare documents compiled prior to a claims decision alwaysprotected, or are they fairgame during litigation? Well, itdepends.
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