Meaning
Legal protection shields the materials prepared by a party or their representative in anticipation of litigation. The work product doctrine ensures that a founder can discuss legal strategy and prepare for a dispute without the fear that their own notes will be used against them by the opposing side. This protection governs drafts of documents, internal memos, expert reports and strategy notes.
The boundary of the doctrine is reached if the materials are shared with a third party or if they were created in the ordinary course of business rather than for a specific legal threat.
Legal Privilege
Keeping these documents separate from the general business records is a requirement for maintaining their protected status. If a strategy memo is left in a shared folder, it may lose its immunity.
Anticipatory Record
Documents created before a formal lawsuit is filed can still be protected if the threat of litigation was real and imminent.
Disclosure Shield
The goal of this rule is to allow lawyers and their clients to prepare their case in private. Without it, the adversarial system would be compromised as each side could simply raid the other’s files for their strategy. This confidentiality is a fundamental part of the relationship between a founder and their legal counsel.
