Companies facing ongoing or threatened litigation must sometimes estimate their likely or possible financial exposure — for internal purposes, reporting to auditors or other reasons. Depending on the circumstances, one would think that such figures so clearly reflect a lawyer’s judgment that they deserve work product protection.
In CourtAlert.com, Inc. v. American LegalNet, Inc., No. 20-CV-07739 (VSB) (VF), 2024 U.S. Dist. LEXIS 206259 (S.D.N.Y. Nov. 12, 2024), plaintiff sought merger agreement documents between defendant and another company. The court ordered them produced, but upon defendant’s request reviewed them in camera to determine if defendant’s reserve amount for the litigation described in the merger documents deserved work product protection. The court agreed that the amount could be redacted, understandably recognizing that courts “have permitted redactions of individual reserve figures, concluding that such information is protected work product because it reflects the mental impressions and assessment of an attorney.” Id. at *4.
This appropriate approach works if the litigation reserve figure appears in some narrative or by itself. But if that figure appears in a spreadsheet that also contains a total amount, even those who joined the legal profession because they hated math could presumably figure it out.
