I. Introduction

Attorneys and their clients often assume that reports and communications running between them and experts are protected work product; however, such documents may not be protected in a variety of circumstances. They are particularly vulnerable to discovery in two distinct instances. First, work product protection may never attach in the first place, if the document does not satisfy the technical requirements of being made "in anticipation of litigation." A fray - meaning "a raveled place or worn spot" - in the application of this doctrine is particularly evident in the surety context. Webster's Ninth New Collegiate Dictionary 490 (1985). When faced with a claim or potential claim, the surety owes various contractual and legal duties to the obligee, payment bond claimants, and the principal. Under these circumstances, it may be difficult to assess when negotiations and investigations, including expert analysis, shift from claim assessment to being "in anticipation of litigation."

Section II, infra, will explore these issues and provide some guidance as to when reports and communications with experts are protected. By taking into account case law concerning the work product doctrine, the surety can increase the likelihood that work product protection will attach to reports and communications between and among the surety, its attorneys, and their experts. Second, even where the work product doctrine provides initial protection to written materials, the protection may be lost pursuant to expert disclosure rules. Some jurisdictions hold that work product protection is waived if it is communicated to testifying experts. Other jurisdictions have reached the opposite conclusion. Section III, infra, will examine the extent and existence of work product protection to the analysis and communications between a surety and its experts.

II. The Work Product Doctrine

Courts and commentators have provided little authority governing the work product doctrine in the context of surety cases. Thus, it is important to begin with bedrock and survey the roots of the doctrine, its application generally, and its application to insurance cases, before exploring its application in the surety context.

A. History and Basic Principles of the Work Product Doctrine

The United States Supreme Court established the work product doctrine in Hickman v. Taylor, 329 U.S. 495, 510-511 (1947), to protect from discovery materials obtained or prepared by attorneys "with an eye toward litigation." Hickman, 229 U.S. at 510-11; see Maine v. U.S. Dept. of Interior, 298 F.3d 60, 66 (1st Cir. 2002); Hon. Jane J. Boyle, The Federal Work Product Doctrine: A "How To" for Litigators, 59 Tex.B.J. 534, 536 (June 1996). The doctrine is "intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy . . . free from unnecessary intrusion by his adversary." United States v. Aldman, 134 F.3d 1194 , 1196-97 (2d Cir. 1998). The Supreme Court explained that "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he . . . prepare his legal theories and plan his strategy without undue and needless interference."

Hickman, 229 U.S. at 510-11.[1] The Hickman Court "scrupulously avoided recognizing a general privilege for work product." In re Sealed Case, 676 F.2d 793, 810 n.61 (D.C. Cir. 1982). Rather, it created a limited or qualified immunity that may be overcome.[2] Boyle, supra note 1, at 536.

Rule 26(b)(3) of the Federal Rules of Civil Procedure codifies the principles set forth in Hickman. The Rule provides that a party may not obtain discovery of documents or objects prepared "in anticipation of litigation" by a party or their representative, unless the party seeking the discovery has a substantial need for the materials and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. See Fed. R. Civ. P. 26(b)(3); 6 Moore's Federal Practice § 26.70 (Mathew Bender 3d ed., supp. 2007).[3] Even if this showing is made, another layer of protection exists, requiring the court to protect from disclosure the attorney's mental impressions, conclusions, opinions, and legal theories. Fed. R. Civ. P. 26(b)(3).[4]

B. Anticipation of Litigation

Rule 26 does not require that an attorney create the work product in order for it to receive protection. Notably, it specifically refers to materials created by the party's representative, including an attorney, consultant, insurer, or surety. Fed. R. Civ. P. 26(b)(3). Moreover, litigation need not have commenced when the documents were created in order for them to qualify for protection. 6 Moore's Federal Practice § 26.70[3][a]; Boyle, supra note 1, at 537. Conversely, "[t]he mere fact that litigation . . . eventually ensue[s] does not, by itself, cloak materials with work product immunity." National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992). Instead, the key to establishing that a document is protected is to show that it was prepared "in anticipation of litigation." Courts and practitioners often grapple over the parameters of this standard. See Boyle, supra note 1, at 537 ("determining whether an item was created in anticipation of litigation is the most perplexing task of the work product analysis"); Henderson v. Zurn Indus., 131 F.R.D. 560, 569 (S.D. Ind. 1990) (describing this issue as "one of the most frequently litigated issues in federal practice . . . ."). In their efforts to define "in anticipation of litigation," courts have not been consistent and have "devised various formulations regarding just how concrete the prospect of litigation must be before protection will attach to a given document." 6 Moore's Federal Practice § 26.70[3][a]; Boyle, supra note 1, at 537.

The minority, and increasingly disfavored, approach for determining whether a document was prepared "in anticipation of litigation" is the "primary motivating purpose" test. See Aldman, 134 F.3d at 1197-99; see also infra note 6 (indicating trend towards the competing "because of" approach). This approach protects documents if they were created "primarily to assist in litigation" or if the "primary motivating purpose behind its creation" was to aid in litigation.[5] Id. This standard is less inclusive than the "because of" approach (discussed below). By requiring a document to be prepared primarily or exclusively to assist in litigation, this approach may exclude documents analyzing expected litigation, if the ultimate purpose of the document was to assist in making a business decision. See Aldman, 134 F.3d at 1197-99.

The majority approach for determining whether a document was prepared "in anticipation of litigation" is the "because of" standard.[6] Under this approach, a document is entitled to protection if it "is prepared because of existing or expected litigation." Maine v. U.S. Dept. of Interior, 298 F.3d 60, 67 (1st Cir. 2002) (citing United States v. Aldman, 134 F.3d 1194, 1196-97 (2d Cir. 1998)). According to the majority approach, a document is deemed to be "in anticipation of litigation" if "in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation." United States v. Torf, 350 F.3d 1010, 1016 (9th Cir. 2003) (citing Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024 (2d ed. 1994)).

The "because of" formulation does not protect "documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation." [7] Aldman, 134 F.3d at 1202; see also Maine, 298 F.3d at 70; U.S. Fid. & Guar. Co. v. Braspetro Oil Services Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *31 (S.D.N.Y. June 7, 2000); 6 Moore's Federal Practice § 26.70[3][a]-[b]; Boyle, supra note 1, at 537.

The crucial factor in determining whether a document was prepared in the regular course of business or in anticipation of litigation is the party's purpose in preparing the document, or causing its preparation. If there was an ordinary business purpose behind the document's preparation, it is unprotected, even if litigation was imminent.

6 Moore's Federal Practice § 26.70[3][b]. Work product protection will not apply if a document would have been prepared if litigation never ensued, such as if a party routinely creates similar documents under similar circumstances without regard to litigation. Id. at § 26.70[3][c][ii]. Nevertheless, dual purpose documents - i.e., those created because of expected litigation but also prepared to serve a business purpose - receive protection. United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1082 (N.D. Cal. 2002) ("[E]xcept where a document would have been generated in the normal course of business even if no litigation was anticipated, the work product doctrine can reach documents prepared 'because of litigation' even if they were prepared in connection with a business transaction or also served a business purpose."). 8 Charles A. Wright and Arthur Miller, Federal Practice & Procedure § 2024 (2007 supp.); 6 Moore's Federal Practice § 26.70[3][b]; United States v. Roxworthy, 457 F.3d 590, 599 (6th Cir. 2006) (notwithstanding dual purpose character, subject documents fall within ambit of work product doctrine); United States v. Torf, 350 F.3d 1010, 1018 (9th Cir. 2003). But see California ex rel. Wheeler v. Southern Pac. Transp. Co., No. S-92-1117-LLK-GGH, 1993 U.S. Dist. LEXIS 21128, at *9-10 (E.D. Cal. Sept. 2, 1993) ("work product" created for dual purpose of performing statutory or other duty, as well as litigation is not protected).

C. Insurance Companies' Investigative Files

Insurance companies' investigative files create special problems in resolving the "anticipation of litigation" requirement, as the very nature of the business requires insurers to investigate and evaluate the merits of claims. Boyle, supra note 1, at 537-39; 6 Moore's Federal Practice § 26.70[3][c][i]; see also St. Paul Reinsurance Co. Ltd. v. Commercial Financial Corp., 197 F.R.D. 620, 630 (N.D. Iowa 2000) (numerous courts have noted the difficulty of determining the scope of work product protection for an insurer's investigation of a claim). "Courts have routinely recognized that the investigation and evaluation of claims is part of the regular, ordinary, and principal business of insurance companies. Thus, even though litigation is pending or may eventually ensue [this] does not cloak such routinely generated documents with work product protection." Piatkowski v. Abdon Callais Offshore, LLC., No. 99-3759, 2000 U.S. Dist. LEXIS 12067, at *7-8 (E.D. La. Aug. 11, 2000). Accordingly, it is often unclear when material in a claims file shifts from being prepared in the ordinary course of business to being prepared in anticipation of litigation. U.S. Fid. & Guar. Co. v. Braspetro Oil Services Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *31 (S.D.N.Y. June 7, 2000); Boyle, supra note 1, at 539. This difficulty is compounded by the fact that different courts attempt to resolve this issue from all possible angles. Depending on the jurisdiction, the answer is yes, no, or maybe, as to whether an insurer's investigative files are prepared in the ordinary course of business. See Harriman v. Maddocks, 518 A.2d 1027, 1032-1033 (Me. 1986) (describing the three different approaches); St. Paul Reinsurance Co. Ltd. v. Commercial Financial Corp., 197 F.R.D. 620, 630 (N.D. Iowa 2000) (same); see also Moore's Federal Practice § 26.70[3][c]; Fischer, supra note 2, at § IV.B; Boyle, supra note 1, at 537-39.

Some courts maintain that because an insurance company is in the business of investigating claims, such documents are presumed to be prepared in the ordinary course of business and not in anticipation of litigation. See Harriman, 518 A.2d at 1032-1033; Hawkins v. District Court, 638 P.2d 1372 (Colo. 1982). According to these jurisdictions, the insurance business would be otherwise insulated from discovery.[8] St. Paul Reinsurance Co. Ltd., 197 F.R.D. at 632 (quoting Mission National Insurance Co. v. Lilly, 112 F.R.D. 160 (D. Minn. 1986)). Other courts have reached the opposite conclusion, finding that because insurers are in the business of preparing for litigation, a document prepared in the regular course of business is also prepared in anticipation of litigation.[9] E.g., Harriman, 518 A.2d at 1034; Ashmead v. Harris, 336 N.W.2d 197, 200-201 (Iowa 1983); Fontaine v. Sunflower Beef Carrier, Inc., 87 F.R.D. 89, 92 (E.D. Mo. 1980). According to these jurisdictions, the litigation-orientated nature of the insurance business should not compel discovery of almost all internal documents relating to claims.[10] Harriman, 518 A.2d at 1034; Ashmead, 336 N.W.2d at 200-201. These courts also reject a case-by-case analysis (discussed below) as an unworkable approach because it would require complex and time consuming fact finding. Harriman, 518 A.2d at 1032-1033. Despite the difficulty of a fact-specific inquiry, the majority and emerging view is to conduct a case-by-case analysis.[11] Courts view the case-by-case analysis as the as the most sound approach because it requires consideration of the unique factual context of each case. St. Paul Reinsurance Co. Ltd., 197 F.R.D. at 632. In assessing whether documents created pursuant to an insurer's investigation crosses the line from business purposes to litigation purposes, courts frequently consider factors such as "the nature of the litigation, the relationship between the parties, and any other factor peculiar to the case, and, in addition, the involvement of counsel." Shaffer v. Northwestern Mut. Life Ins. Co., No. 5:05CV1, 2006 U.S. Dist. LEXIS 59294, at *8 (N.D. W. Va. 2006); see also Place St. Michel, Inc. v. Property Cas. Co. of America, No. 06-21817, 2007 U.S. Dist. LEXIS 25075, at *11-12 (D. Fla. April 4, 2007) (same); Ring v. Commercial Union Ins. Co., 159 F.R.D. 653, 656 & n.1 (M.D. N.C. 1995) (same). Courts often weigh whether the claim is by the insured or if a third-party is making the claim. See Henderson v. Zurn Indus., 131 F.R.D. 560, 571 (D. Ind. 1990) (more litigation may be expected with regard to third party claims); Ring v. Commercial Union Ins. Co., 159 F.R.D. 653, 656 n.1 (M.D. N.C. 1995) (with regard to an insurer's investigation of a third-party claim, "litigation may be anticipated very early on in the investigation"). Some courts apply a presumption that litigation is not anticipated with regard to first-party claims by the insured, as the company owes a duty to its insured to make a decision on its claim. Ring, 159 F.R.D. at 656 & n.1. Unless the threat of litigation can be shown to have occurred earlier, these courts presume that only documents accumulated after the denial of a claim were prepared in anticipation of litigation. Id.; Cutrale Citrus Juices USA, Inc. v. Zurich Am. Ins. Group, No. 5:03-CV-420-OC-10GRJ, 2004 U.S. Dist. LEXIS 22487, at *8-9 (M.D. Fla. Sept. 10, 2004) (documents within claims file must be produced if they are dated before decision on claim); 105 St. Assocs., LLC v. Greenwich Ins. Co., No. 05-Civ-9938 2006 U.S. Dist. LEXIS 81717, at *7-8 (S.D.N.Y. Nov. 7, 2006) ("[C]ourts frequently presume that investigative reports prepared by or for an insurer prior to a coverage decision are prepared in the ordinary course of the insurer's business and are not afforded work-product protection." (citations omitted)). Nevertheless, courts will consider facts peculiar to the case. For example, case law indicates that "even after the parties 'stake out' their positions, they do not necessarily 'anticipate litigation' if they continue to explore amicable resolution and/or the documents in question were still collected in the ordinary course of business." St. Paul Reinsurance Co. Ltd. v. Commercial Financial Corp., 197 F.R.D. 620, 638 (N.D. Iowa 2000) (citing cases).

Another commonly considered factor is the participation of an attorney in the investigation. The involvement of an attorney is a highly relevant factor, but it is not necessarily controlling. E.g., Place St. Michel, Inc. v. Property Cas. Co. of America, No. 06-21817, 2007 U.S. Dist. LEXIS 25075, at *11-12 (D. Fla. April 4, 2007); Federal Ins. Co. v. Southwestern Wire Cloth, Inc., No. 95-C-689-K, 1996 U.S. Dist. LEXIS 22001 (N.D. Okla. Dec. 9, 1996). 6 Moore's Federal Practice § 26.70[3][c][i] (same). "The involvement of an attorney makes it more likely than not that the focus has shifted toward litigation, making materials more likely to have been prepared in anticipation of litigation." Federal Ins. Co., No. 95-C-689-K, 1996 U.S. Dist. LEXIS 22001 (N.D. Okla. Dec. 9, 1996); see 6 Moore's Federal Practice § 26.70[3][c][i] (same). However, "[m]erely because such an investigation was undertaken by attorneys will not cloak the reports and communications with privilege because the reports, although prepared by attorneys, are prepared as part of the regular business of the insurance company." Reliance Ins. Co. v. Am. Lintex Corp., No. 00-CIV-5568, 2001 U.S. Dist. LEXIS 7140, at *5-6 (S.D.N.Y. June 1, 2001) (internal quotes and citations omitted); see St. Paul Reinsurance Co. Ltd. v. Commercial Financial Corp., 197 F.R.D. 620, 630 (N.D. Iowa 2000) ("an insurer cannot shield its entire claims investigation behind the work product privilege simply by hiring an attorney to perform what is in the ordinary course of the insurer's business").

D. Application of the Work Product Doctrine to Surety Cases

1. Generally

"Unfortunately, the application of the attorney-work product privilege to the surety's investigative file is not as clear as in the insurance setting, where the definitive answer is yes, no, or maybe." Fischer, supra note 2, at § IV.C. Although the doctrine has received extensive attention in the insurance context, there is little case law or commentary in the surety context.[12]

Like an insurer, a surety has a duty to investigate and decide claims in good faith. Id. Therefore, some guidance may be obtained from case law, discussed above, regarding the point at which an insurer's investigation shifts from claims adjusting (i.e. ordinary course of business) to "in anticipation of litigation." Id. Surety companies, like insurance companies (often the same company), are in the business of investigating claims, and courts holding that claims files are presumed to be in the ordinary course of business may apply similar reasoning to surety cases. See supra § II.C. As a result, the analysis and communications of consultants investigating projects and claims on behalf of sureties may be unlikely to qualify for work product protection, at least until after the claim is denied. See supra § II.C. Similarly, jurisdictions favoring the opposite approach - that the litigation-oriented nature of the insurance business should not compel discovery of almost all internal documents - would likely extend this rule to the surety context, as the same reasoning would apply. See supra § II.C. These jurisdictions favor the convenience of a bright line, which would be likewise desirable in the surety context. In this minority of jurisdictions, see supra § II.C., a consultant's analysis is more likely to receive protection.

Application of the work product doctrine in the surety context is most likely to differ from the insurance context in jurisdictions that prefer to resolve the issues on a case-by-case basis, as suretyship differs from insurance in certain salient respects.[13] These differences make work-product protection sometimes more, and sometimes less, likely than in insurance cases. Jurisdictions favoring the case-by-case approach consider the nature of the litigation, the relationship between the parties, and other factors peculiar to the case - all of which are distinguishable in surety cases. See supra § II.C.

2. An Argument that "Anticipation of Litigation" is Easier to Show in Suretyship Cases

On the one hand, it may be easier in surety cases to satisfy the requirements of "in anticipation of litigation." In comparison with an insurance claim, there is a higher probability of a bond claim ending in litigation either with the obligee/payment bond claimant or with the principal for indemnification. SeeFischer, supra note 2, at § IV.C.1. In addition, potentially complex default requirements, which do not exist in insurance cases, may often provide a basis for disputes in surety cases. Accordingly, the greater likelihood that the surety will become a participant in litigation with someone provides an argument that litigation may be anticipated at an earlier point than in insurance cases, just as some jurisdictions anticipate litigation earlier with third-party insurance cases. See Henderson, 131 F.R.D. at 571 (litigation more easily anticipated with third-party insurance claims than with first-party claims); Ring, 159 F.R.D. at 656 n.1 (same). At the very least, surety cases are more analogous to third-party insurance claims and should receive similar treatment in jurisdictions finding that litigation is more foreseeable in such cases. See Fischer, supra note 2, at § IV.C.1.

3. An Argument that "Anticipation of Litigation" is More Difficult to Show in Suretyship Cases

For a variety of reasons, the more likely scenario is that in suretyship cases, it would be more difficult to show that documents were created "in anticipation of litigation." Surety claims are inherently more complex due to the various business options available to the surety. For example, if a default occurs under a performance bond, a surety may have the option of completing performance, arranging for a substitute contractor to complete performance, or paying damages to the obligee. U.S. Fid. & Guar. Co. v. Braspetro Oil Services Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *31 (S.D.N.Y. June 7, 2000). Therefore, in addition to investigating the propriety of a claim, as is done in the insurance context, a surety has multiple business options to evaluate as well. This increases the range of ordinary business functions for the surety to consider before an investigation may shift toward being "in anticipation of litigation." See Levingston v. Allis-Chalmers Corp., 109 F.R.D. 546, 549-50 (S.D. Miss. 1985) (documents relating to consultants, accountants, and attorneys employed to evaluate bond claims and assist in preparation for trial were not "in anticipation of litigation"); U.S. Fid. & Guar. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *42 (materials of consulting engineers not protected work product because it was relevant to surety's business decision on whether to complete contract work itself).

In Levingston, 109 F.R.D. at 549-50, 552-53, the court discussed the discoverability of various categories of documents withheld by the surety, Hartford Accident and Indemnity Company. Hartford's objection focused on documents authored or received by its attorneys and the consultants it hired to investigate and, ultimately, assist with completing the bonded projects. Id. at 549-50. After an in camera review, the court held that certain materials authored by, or exchanged among, the consultants, accountants and attorneys were not created in anticipation of litigation. Id. at 550. The court reasoned that these parties were hired to "ascertain the status" of the project, "determine what needed to be completed," and to "project the costs to be incurred by Hartford" to complete the project.[14] Id. As a result, the court ordered production, concluding that "these documents were created primarily in connection with completion of the [bonded project] and analysis of claims against Hartford's bonds on [the project]."[15] Id.

Surety cases also involve more complex relationships among the parties and more contractual duties running between them. For instance, a construction project may involve (1) a performance bond guaranteeing construction in favor of the project owner, (2) a dual obligee rider in favor of a bank, who is a lender on the project, and (3) a surety who will likely have an indemnity agreement with its principal and, perhaps, co-indemnitors. See U.S. Fid. & Guar. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *7.[16] The duties created pursuant to these relationships make it more difficult to assess where the investigations and expert analysis shift from (a) being done pursuant to these duties/obligations to (b) being done for litigation purposes. Cf. Fischer, supra note 2, at § IV.A (work product doctrine does not protect documents created to fulfill a statutory, contractual, or business duty); Boyle, supra note 1, at 536 (same); Fru-Con Constr. Corp. v. Sacramento Mun. Util. Dist., No. S-05-0583-LLK-GGH, 2006 U.S. Dist. LEXIS 53763, at *13 (E.D. Cal. July 20, 2006) (same). Since the party invoking the work product doctrine bears the burden, the gray area created by these duties works against the surety, making it more difficult to meet its burden and receive work product protection.

Relatedly, these relationships are often ongoing and involve business negotiations, especially if a party is contemplating declaring a default and the parties are working toward a resolution before a claim is made. In such a case, it is more difficult to differentiate which part of the consultant's work was "because of" inevitable litigation and "because of" business negotiations. See U.S. Fid. & Guar. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *38 (ongoing business negotiations to reach a "global solution" indicate that counsel's and consultant's work was not "in anticipation of litigation").

The involvement of an attorney usually benefits the proponent of work product protection, see supra § II.C. (involvement of an attorney is a highly relevant factor in showing that the focus shifted towards litigation); however, the complexities discussed above may negate this factor, if the court concludes that sureties are more likely to retain attorneys at earlier stages and before litigation is "anticipated," in order to resolve business decisions. SeeU.S. Fid. & Guar. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *35-36 & n.8. The retention of litigation counsel by a surety does not necessarily indicate that the parties were anticipating litigation because "the deteriorating situation between the owners and the contractors, the complex inter-relationship of the parties to the sureties, and the various contractual options available, all presented complex issues, independent of litigation." Id. (finding that surety failed to establish that it hired litigation counsel solely because of anticipated litigation).

Perhaps the case most on-point in this context is U.S. Fid. & Guar. Co. v. Braspetro Oil Services Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939 (S.D.N.Y. June 7, 2000). In U.S. Fid. & Guar. Co., the surety hired litigation counsel upon being notified that the obligee was considering declaring a contractor default. Id. at *28. Counsel informed the obligee that it was conducting an investigation under a full reservation of rights, and counsel retained an engineering consultant to assist with the investigation. Id. at *28-29. The surety eventually denied the claim and litigation ensued. Id.

Opposing parties sought the materials created by the surety's counsel and engineering consultant for the period prior to the denial of the claim, including witness statements, notes from witness interviews, and reports prepared by investigators and engineering consultants.[17] Id. at *29. The surety argued that it retained counsel and the consultant in anticipation of litigation, therefore making all documents protected work product. Id. at *29-30. The law firm confirmed that it was retained solely to represent the surety in expected litigation, and the surety argued that it already produced the "entire claims file," to the extent that it pertained to a claims review. Opposing parties countered, arguing that the surety's investigation was analogous to a "routine business investigation of an ordinary insurance claim" because the surety had a duty to investigate and render a coverage position. Id. at *34 n.7.

The Court determined that - regardless of whether a surety case is more analogous to a first or third-party insurance claim - a fact-specific inquiry is necessary. Id. The court ultimately determined that the materials were not created "in anticipation of litigation," and ordered the production of all such materials, except counsel notes regarding litigation strategy and defenses. See id. at *30-48. In reaching this decision, the court recognized that the retention of an attorney is only one factor to be considered and that counsel may have been retained to assist the surety with options and duties that were independent of litigation. Id. at *35 n.8, *36.

The court also considered documentary evidence, which suggested "a belief in the likelihood of litigation" when the documents were made. Id. at *38. Nevertheless, this belief in litigation was merely one possible option and was overshadowed by the parties' continuing "business and contractual negotiations" that attempted to reach a global resolution. Id. at *38-40.

In addition, the court found that the surety failed to demonstrate how the investigation that occurred (allegedly for litigation purposes) differed from the type of investigation they would routinely undertake when confronted with a large, complex surety matter. Id. at *44. No evidence indicated that the investigation would have been performed differently if conducted to determine a course of action under the performance bond and fulfill obligations to the owners and contractors. Id. In other words, the investigatory materials would have been necessary to serve the surety's business needs, even absent the potential for litigation. Id. The court concluded that, until the decision to deny the claim was made, the investigation was undertaken in order to negotiate a solution with the parties and "in order to arrive at a business determination as to which options to exercise under the Bonds." Id. at *48. Therefore, no work product protection attached to the documents prepared during the investigation.

4. Practical Tips to Increase Chance of Establishing Work-Product Protection Although much of the claims file, including expert communications and analysis, may be vulnerable to discovery - as demonstrated in U.S. Fid. & Guar. Co. and other case law discussed above - the following steps should enhance the likelihood that material will receive work product protection.

Ritualistically labeling a document "Work Product" or "Confidential" is not enough

The proponent of the work product protection bears the burden of showing that the document was created in anticipation of litigation. Of course, simply labeling a document as "work product" or "confidential" is not enough. At the very least, a document should bear the date, its author, its intended recipient, and the purpose for which it is being created.[18] If a document is created at the request of (or for the benefit of) an attorney, this should be readily apparent.

Document the date on which facts are learned that increase the likelihood of litigation The surety should document as soon as possible all facts that may help indicate that litigation is on the horizon. At the very least, the surety needs to document in all cases:

• When it learned that a claim may be made;
• When the claimant/potential claimant first referenced litigation or obtaining counsel;
• When it was first contacted by a claimant's/potential claimant's attorney;
• When it assigned the case to litigation counsel;
• When it received the claim; When it first seemed likely that the claim would be denied; and When it denied the claim.

Further, the surety should document facts peculiar to a case that may increase the likelihood of litigation. Just as an insurer should document the date on which it learned that an accelerant was used in a fire (thus making it a suspicious fire), a surety should document the date it learns facts that make a bond claim more susceptible to denial, such as learning that certain prerequisites were not fulfilled. In the course of investigating a claim or potential claim, the surety will often hear dramatically different factual and legal arguments from its principal, the oblige and payment bond claimants. If the surety ultimately elects to side with its principal's version, the likelihood of litigation with the oblige or the payment bond claimants is increased. If the surety rejects its principal's position, there is an increased likelihood for indemnity litigation between the surety and its principal. Depending upon the complexity of the situation, the surety may recognize at an early stage the possibility of pursuing affirmative claims for change orders or other damages. All of these possibilities give rise to an ability on the part of the surety, its attorneys and their experts/consultants to document their work in a manner so as to demonstrate that they have litigation in mind as they perform their respective functions.[19]

Assign the file to litigation counsel as early as possible

Retaining an attorney is a relevant factor in work-product analysis, but it is not conclusive. Given the complexities of surety bond cases and the likelihood of ongoing business negotiations, a court is likely to place even less importance on this factor. Therefore, if possible, the surety should retain separate attorneys for litigating a claim and advising it on business matters for that claim. With regard to expert materials, it would be helpful if the attorney, rather than the surety itself, hired and forwarded materials to the expert, thus helping to define them as litigation consultants, rather than investigators in the ordinary course of business.

Create Separate Procedures for Ordinary Claims Investigations and Investigations "Because of" Litigation

Because initial claims adjusting and early investigations by consultants may be found to have been done in the ordinary course of business, making protection unlikely, the surety should implement procedures to distinguish investigations and documents created "because of" litigation. When considering work-product issues, courts often consider whether a particular document would have been created in similar form regardless of the potential litigation.

Therefore, as much as possible should be done to distinguish materials created after the focus of a case shifts towards being done "because of" potential litigation. Perhaps once the focus changes, different departments/personnel could takeover cases, who keep separate files, are governed by different procedures/guidelines, and who maintain a separate pool of consultants and investigators.

Lastly, even if documents are cloaked with work-product protection, this qualified immunity can be overcome if opposing counsel demonstrates a "substantial need" for the materials and that they cannot obtain similar materials without "undue hardship." See Fed. R. Civ. P. 26(b)(3). Although a discussion on overcoming work product protection is outside the scope of this article, practitioners in the surety context should be mindful of this possibility, especially because the surety context seems particularly ripe for overcoming the protection. For example, if an investigation and tests at a construction site cannot be recreated after litigation commences (because of progress at the construction site), this may constitute an undue hardship and the protection may be overcome, depending on the party's need for the materials.

III. Discoverability of Work Product Pursuant to Expert Disclosure Rules

Even if materials are protected pursuant to the work product doctrine and the protection is not overcome, expert disclosure rules may ultimately allow an opponent to obtain the materials through "the backdoor." See Fischer, supra note 2, at § V.B. Federal Rule of Civil Procedure 26(a)(2)(B) requires parties to disclose, among other things, "the data or other information considered" by a testifying expert in forming his or her opinion.[20] When otherwise protected materials are exchanged with a testifying expert, this disclosure requirement seemingly conflicts with the protections afforded by the work product doctrine. Courts differ on whether and to what extent the expert disclosure obligations of Rule 26(a)(2)(B) trump the work product doctrine.[21] See generally Fischer, supra note 2, at § V.B; Gabrielle R. Wolohojian & David A. Giangrasso, Expert Discovery and the Work Product Doctrine: Is Anything Protected?, 48 Boston B.J. 10, 10 (Boston Bar Ass'n March/April 2004); Schenkier, supra note 1, at 22.

A. View That Expert Disclosure Requirements Do Not Trump the Protection Afforded to "Opinion" Work Product

Courts generally agree that ordinary/factual work product that was shared with testifying experts must be disclosed. See generally Fischer, supra note 2, at § V.B; Wolohojian, supra, 10-13; Schenkier, supra note 1, at 18; see also supra note 4 and accompanying text (noting distinction between "opinion" and "ordinary" work product). Where the dispute involves so-called opinion/core work product, the courts are split into two different camps. See The Nexxus Products, Co. v. CVS New York, Inc., 188 F.R.D. 7, 8-9 (D. Mass. 1999) (discussing the two approaches); Fischer, supra note 2, at § V.B (same); Wolohojian, supra, 10-13 (same); Schenkier, supra note 1, at 18 (same). One view is that the disclosure obligations under Rule 26(a)(2)(B) do not trump the heightened protection afforded to "opinion" work product. See Schenkier, supra note 1, at 18; see also supra note 4 and accompanying text (discussing additional layer of protection afforded to work product comprising the mental impressions, conclusions, opinions or legal theories of counsel). The court in The Nexxus Products, Co., collected cases supporting the view that "Rule 26(a)(2) does not annul the attorney work product privilege [for opinion work product]":

See Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 642-43 (E.D.N.Y. 1997) ("Rule 26(a)(2) should not be construed as vitiating the attorney work product privilege, and the laudable policies behind it, in the absence of clear and unambiguous authority under the Federal Rules of Civil Procedure."); Haworth, Inc. v. Miller, 162 F.R.D. 289, 294-95 (W.D. Mich. 1995) ("this Court concludes that the protection accorded an attorney's mental impressions and opinions by the Supreme Court in Hickman v. Taylor, and substantially codified in 1970 in Rule 26(b)(3), was intended to apply to discovery from experts. . . . For the high privilege accorded attorney opinion work product not to apply would require clear and unambiguous language in a statute. . . . No such language appears here."); All West Pet Supply Co. v. Hill's Pet Prod., 152 F.R.D. 634, 638 (D. Kan. 1993)(holding that protection afforded by Rule 26(b)(3) for attorney work product was not waived by sharing the documents in question with expert witnesses) . . . .

The Nexxus Products, Co., 188 F.R.D. at 9, 10-11 (finding that expert disclosure requirements do not include "opinion" or "core" work product).

This line of authority reasons that abrogating the enhanced protections for opinion work product would encourage parties to withhold materials from experts, thus hindering their ability to fully evaluate the issues. Id. Also, some courts and commentators theorize that protecting opinion work product "levels the playing field," as it does not favor wealthy parties who can afford to hire both testifying and non-testifying experts.[22] See id.; 6 Moore's Federal Practice § 26.80[1][a].

B. View That Rule 26(a)(2)(B) Requires the Disclosure of All Information Considered by Testifying Experts

The opposing view provides that all information considered by a testifying expert, including "opinion" work product, must be disclosed. Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697, 714 (6th Cir. 2006) (adopting view that that Rule 26(a)(2) requires the disclosure of all information provided to experts). Courts adopting this view prefer the bright-line afforded by this rule, as it makes all materials provided to an expert discoverable, making disputes less burdensome for a court to decide. 6 Moore's Federal Practice § 26.80[1][a]. Courts also cite that fundamental fairness requires the disclosure of all information that may have influenced an expert's opinion. In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001) (reasoning that no "interests would be served by permitting counsel to provide core work product to a testifying expert and then to deny discovery of such material to the opposing party"); Schenkier, supra note 1, at 18 (full disclosure of information provided to an expert is critical to determine if expert's opinion was influenced by counsel).

This approach is a literal reading of the rule and its commentary. Schenkier, supra note 1, at 18. "[T]he rule is not limited to information 'relied' upon, but encompasses matters 'considered' by the [testifying] expert. Also, the rule is not limited to 'facts' considered by the expert, but extends to 'information.'" Wolohojian, supra, 10. If the drafters intended to require disclosure of only facts, and not opinion work product, they would not have included such broad language in the rule. See id.; Reg'l Airport Auth., 460 F.3d at 716; Suskind v. Home Depot Corp., No. 99-10575-NG, 2001 U.S. Dist. LEXIS 1349, at *5-6 (D. Mass. Jan. 2, 2001). The Advisory Committee notes to the 1993 Amendments to Rule 26 further support the view that all work product provided to a testifying expert must be disclosed. This commentary states that "[g]iven this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions - whether or not ultimately relied upon by the expert - are privileged or otherwise protected from disclosure . . . ." Schenkier, supra note 1, at 18; Suskind v. Home Depot Corp., No. 99-10575-NG, 2001 U.S. Dist. LEXIS 1349, at *11 (D. Mass. Jan. 2, 2001).

C. Materials Subject to Disclosure & Practical Solutions

Having established that work product will often be discoverable if it is communicated to a testifying expert, it is necessary to provide examples of materials subject to disclosure and offer some practical solutions to minimize this problem. Regardless of the jurisdiction, the surety should assume that all materials provided to testifying experts are discoverable. Not only is this prudent to prevent a surprise at an inopportune time, but it is also the more likely scenario. The growing trend and majority of courts to have considered this issue have adopted the latter view, i.e. that all information "considered" by a testifying expert, including "opinion" work product, must be disclosed.[23]

1. Materials Subject to Disclosure

The following materials, for example, are likely discoverable pursuant to the expert disclosure requirements:

• Drafts of the expert witness's reports;[24]
• Notes and other memoranda created by the expert while working on the case;
• Letters, e-mails, and memoranda exchanged between the expert and counsel;
• Counsel's comments given to the expert on the drafts;[25]
• Counsel's conversations with the expert about the case, and the expert's notes of those conversations.

See Schenkier, supra note 1, at 20; see also Stephen C. Easton & Franklin D. Romines II. "Dealing with Draft Dodgers: Automatic Production of Drafts of Expert Witness Reports," 22 Rev. Litig. 355, 372 (Spring 2003).

Despite the split in the jurisdictions, it is almost universally recognized that an expert's draft reports and notes must be produced. Schenkier, supra note 1, at 19; Easton, supra, at 372. To help deflate the cross-examination value of draft reports, it may be helpful to instruct the expert to insert a disclaimer, such as: "This is a preliminary draft. It should not be relied on because it based on preliminary information and assumptions. It is subject to change as additional information becomes available or is clarified." See Schenkier, supra note 1, at 23.

When dealing with drafts, attorneys and sureties must be particularly careful, as the definition is amorphous, yet the failure to preserve them is perilous. See Schenkier, supra note 1, at 19-20. Perhaps a draft is created only when a version is transmitted between the expert and attorney, or perhaps a draft is created every time the expert revises the report, even though it never hit the cutting-room floor.[26] Id. Nevertheless, there is an obligation to preserve drafts, whatever they may be. See id. at 19. In Trigon Ins. Co. v. United States, the defendant's expert destroyed draft reports (after the plaintiff had requested them) as part of its normal document retention policy. 204 F.R.D. 277, 284, 289 (E.D. Va. 2001). Because the defendant did not ensure its expert's retention of the materials, the court granted plaintiff's claim for spoliation of evidence, assessed defendant with related costs, barred the defendant from further using the expert, and agreed to give an adverse-inference instruction at trial. Id.; Schenkier, supra note 1, at 20.

With regard to other attorney-expert communications, as discussed above, the majority of jurisdictions require the disclosure of everything, regardless of its status as work product. See supra. At best, and in a minority of jurisdictions, everything would be discoverable except "opinion" work product that is contained in the various materials. See supra.

2. Practical Solutions: Form an Agreement with Opposing Counsel

Perhaps the best way to resolve anxieties over the extent of expert disclosure obligations is to form an agreement with opposing counsel as to the extent of such obligations. See Schenkier, supra note 1, at 21. In fact, Rule 26(a)(2)(B) invites the parties to form an agreement, as it begins with the phrase "[e]xcept as otherwise stipulated or directed by the court." See Fed. R. Civ. P. 26(a)(2)(B). The Rule 26(f) planning conference may be the best venue to work out such an agreement and have it entered as an order pursuant to Rules 26(f) and 16(b). Of course, the surety must decide whether and to what extent it would waive its right to receive potentially discoverable work product concerning its opponent's experts.

Even if an agreement cannot be reached, the surety will gain insight during the negotiations into its opponent's philosophy in this regard and should be able to tailor its interactions with its experts accordingly. When making these decisions, the surety should consider whether it intends to retain separate consultants and testifying experts. See infra.

Retain Separate Experts for Consulting and For Testimony

The use of a separate consulting, non-testifying expert will help minimize the risk of exposing work product to discovery. See supra footnote 22 (discussing discoverability of materials concerning consulting experts). By using a consultant, counsel has the benefit of sharing case theories with an expert and working through problems, while there is little danger of this material becoming discoverable. Of course, some materials will eventually need to be shared with testifying experts; however, after theories are refined with the help of a consultant, there should be less surplusage in the file and, thus, less fodder available for the opponent. In other words, the surety will be in a better position to control the tap of information flowing to the testifying expert.

Nevertheless, the surety should must be cautions and avoid allowing the consultant to interact directly with the testifying expert, which is necessary to prevent otherwise protected materials from becoming discoverable. See Schenkier, supra note 1, at 22. Further, if a consultant helps author the testifying expert's report, information and documents shared with the consultant will likely become discoverable. See 6 Moore's Federal Practice § 26.80[2].

Establish Ground Rules with Expert

Counsel should discuss ground rules with testifying experts at the outset and notify them of disclosure obligations. See Schenkier, supra note 1, at 23. For example, the expert should be aware that all draft reports may be discoverable. Accordingly, drafts should not be disposed of (or there may be sanctions), and drafts should not include unnecessary comments or sloppy grammar/typos that could be used to discredit the expert at trial. Counsel may also prefer to communicate with experts via telephone or in-person, rather than email, to prevent inconsequential thoughts and ideas from being blown out of proportion by the opponent.[27] See id. The expert should also be warned that notes of conversations may be discoverable. See id.

IV. Conclusion

The unique role of the surety on a construction project raises interesting and complex issues concerning the application of the work product doctrine. The surety is often engaged in a business analysis and steeling itself for litigation-with a variety of potential adversaries-all at the same time. There are very few cases that explore the work product issue in the surety context. While insurance cases provide some guidance, the analogy is far from perfect. Keeping in mind the touchstone, whether the document/communication was created "in anticipation of litigation," sureties, along with their attorneys and consultants, can take steps to enhance the likelihood that materials will receive protection. Armed with the suggestions in the practical tips section, sureties can reduce the likelihood of successful forays into their consultants' files and, perhaps, help to create a favorable body of law in this area. 00002-0382 811427v1

In addition, it is likely that all information and communications between a surety and its testifying expert will be discoverable, regardless of its status as protected work product. Where the surety's consultant will assist in the initial investigation of a project or a claim, and serve as the testifying expert at trial, the consultant's files may well become an open book.

Thomas H. Hayman, Esq. Carl E. Fumarola, Esq.
Cetrulo & Capone LLP
Two Seaport Lane, 10th Floor
Boston, Massachusetts 02210
Telephone: 617-217-5500
Facsimile: 617-217-5200

Darrell L. Hall Senior Consultant
Lovett Silverman Construction Consultants, Inc.
6800 Verser Center, Suite 415
Springfield, VA 22151

John McDevitt, Esq.
The Hanover Insurance Group
440 Lincoln Street
Worcester, MA 01653

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[1] Commentators have explained that protecting trial preparation materials prevents "the demoralizing effect of permitting the 'adverse party to feed on the industriousness or wits of the party from whom discovery is sought.'" Hon. Jane J. Boyle, The Federal Work Product Doctrine: A "How To" for Litigators, 59 Tex.B.J. 534, 536 (June 1996). Colorfully put, the doctrine prevents "a lazy or less-capable lawyer from taking a free ride on the research and analysis of an adversary . . . ." Sidney I. Schenkier, The Limits of Privilege in Communications with Experts, 33 Litigation L.J. 2, at 17 (Amer. B. Ass'n Winter 2007).

[2] Distinguishing the work product doctrine from a privilege may seem academic; however, it becomes important when determining what law applies to a discovery dispute. Boyle, supra note 1, at 536. For example, a federal court exercising diversity jurisdiction applies state law to issues of privilege pursuant to Fed. R. Evid. 501, but it applies federal law to work product issues. See Fed. R. Evid. 501; Amy L. Fischer, The Attorney-Client/Work Product Privileges and Surety Investigative Information: Applying Old Rules to Turn New Tricks, 34 Tort & Ins. L.J. 1009, at § I.B. (Summer 1999); EDD Corp. v. Newark Ins. Co., 145 F.R.D. 18, 21 (E.D. Conn. 1992); Wenck v. Standard Fire Ins. Co., No. 91-1617, 1992 U.S. Dist. LEXIS 11741, at *2 (E.D. La. Aug. 6, 1992).

[3] In pertinent part, Rule 26(b)(3) provides that a party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Fed. R. Civ. P. 26(b)(3).

[4] As a result of these two layers of protection, there are two kinds of work product: ordinary work product and opinion work product. See Baker v. General Motors Corp., 209 F.3d 1051, 1053-54 (8th Cir. 2000); see also Fischer, supra note 2, at § I.B. Ordinary work product is raw factual information, while opinion work, in the language of the rule, is comprised of mental impressions, conclusions, opinions and legal theories. Id. Some courts have concluded that no showing could overcome the protections afforded to so-called "opinion" work product, while other courts require "extraordinary circumstances." 6 Moore's Federal Practice § 26.70[5][e] (Mathew Bender 3d ed.); Boyle, supra note 1, at 536. Baker, 209 F.3d at 1054. A discussion of the requirements to overcome the work product protection, once it is established, is outside the scope of this paper.

[5] The "primary motivating purpose" test stems from a line of cases from the Firth Circuit. See Aldman, 134 F.3d at 1198 (citing United States v. Davis, 636 F.2d 1028 (5th Cir. 1981) and United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982)).

[6] According to the First Circuit in Maine, 298 F.3d at 67, the "because of" approach was adopted by at least six other federal courts of appeals, including United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998); National Union Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992); Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987); Senate of Puerto Rico v. DOJ, 823 F.2d 574, 586 n.42 (D.C. Cir. 1987); Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983); In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979); see also United States v. Torf, 350 F.3d 1010, 1016-17 (9th Cir. 2003) (joining a "growing number of [its] sister circuits in employing the formulation of the 'because of' standard").

[7] The Advisory Committee notes to Rule 26(b)(3) state that "[m]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision."

[8] Earlier cases describe this as the majority approach. See Harriman v. Maddocks, 518 A.2d 1027, 1033 n.9 (Me. 1986) (citing cases describing this as the majority approach). Later cases, however, reject that this is the majority approach. See infra note 11 and accompanying text (identifying current trend and majority approach).

[9] This approach is adopted by a minority of jurisdictions. S. D. Warren Co. v. E. Elec. Corp., 201 F.R.D. 280, 283 (D. Me. 2001) (classifying this as the minority approach); see also infra note 11 and accompanying text (identifying the current trend and majority approach).

[10] Even though this approach will almost always protect a claims file, it would nevertheless be discoverable upon showing a "substantial need" and "undue hardship." Harriman, 518 A.2d at 1034.

[11] See, e.g., S. D. Warren Co. v. E. Elec. Corp., 201 F.R.D. 280, 283 (D. Me. 2001) ("the overwhelming majority of federal courts . . . have chosen not to accord insurance companies special treatment during discovery and have maintained the fact specific approach in this context"); Trenary v. Busch Entertainment Corp., No. 05-CV-1630-T-30EAJ, 2006 U.S. Dist. LEXIS 70584, at *4 (D. Fla. Sept. 28, 2006) (citing cases showing that the trend in federal courts is to analyze work product claims concerning insurance files on a case-by-case basis); Boyle, supra note 1, at 539 ("emerging view appears to be that of a case-by-case approach").

[12] Research reveals only the following case law and commentary that substantively discuss the application of the work product doctrine in the context of surety cases: U.S. Fid. & Guar. Co. v. Braspetro Oil Services Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *31 (S.D.N.Y. June 7, 2000); Levingston v. Allis-Chalmers Corp., 109 F.R.D. 546 (S.D. Miss. 1985); Amy L. Fischer, The Attorney-Client/Work Product Privileges and Surety Investigative Information: Applying Old Rules to Turn New Tricks, 34 Tort & Ins. L.J. 1009, at § I.B. (Summer 1999).

[13] Even in jurisdictions with the presumptions and bright lines regarding insurance claims files, the distinguishing factors of surety cases, discussed in the text below, should be helpful in overcoming any presumptions that are applied.

[14] As a secondary reason for ordering production of the materials, the court reasoned that the consultants were ordinary fact witnesses because they had first hand knowledge of the project and were not designated as testifying experts pursuant to Fed. R. Civ. P. 26(b)(4)(A). Levingston, 109 F.R.D. at 550. This reasoning is flawed and circular because, as discussed in § III infra, the materials would have become discoverable if the consultants were designated as testifying experts.

[15] In addition to project assessment, the consultants were also retained "to assist in the preparation for trial," id. at 549, but this fact did not alter the court's ruling. The court applied the "primary motivating purpose" test, and perhaps the outcome would have been different if the court applied the majority's "because of" test. See id. at 550, 552 (finding that the documents were created primarily in connection with completion of project and analysis of claim). As an alternative basis for ordering production, the court opined that work product protection, if any, was overcome due to the defendant's substantial need for the documents and its inability to procure the substantial equivalent elsewhere. Id. at 553; see infra § II.D.4 (referencing ability to overcome work product protection).

[16] Although not discussed in U.S. Fid. & Guar. Co., payment bonds and/or lien bonds typically add to the number and complexity of relationships and obligations for the surety.

[17] Opposing parties did not seek from the surety documents that were protected by the attorney-client privilege. U.S. Fid. & Guar. Co., No. 97 Civ. 6124, 2000 U.S. Dist. LEXIS 7939, at *29.

[18] Although these types of labels may seem elementary, unlabeled documents are prevalent. In fact, one of the authors recently witnessed a motion hearing over whether a company's narrative of case facts was created for litigation counsel or in the usual course of business. Other than bearing a fax header, the document did not reveal the author, the recipient, or the date. As a result, the court found that the proponent of the protection did not meet its burden.

[19] On the other hand, adverse consequences may follow if the surety and its representatives are overly aggressive in anticipating litigation. The common law and statutory requirements obligate the surety to investigate claims in good faith. A claims file that paints a picture of an overly litigious surety may lead to an undesirable outcome or a "bad faith" claim.

[20] Rule 26(a)(2)(B) also requires the disclosure of the expert's identity and a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; . . . any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Fed. R. Civ. P. 26(a)(2)(B).

[21] Case law addressing this issue is limited. See Schenkier, supra note 1, at 20. Research reveals only two federal appeals court cases addressing these issues: In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001) and Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697, 714 (6th Cir. 2006) (recognizing that In re Pioneer is the only other federal appeals court addressing the issue). It is important to note that the discussion in § III is limited to the Federal Rules of Civil Procedure, as many states did not adopt the 1993 Amendments to Federal Rule 26, which expanded disclosure requirements.

[22] Rule 26(a)(2)(B) imposes no disclosure obligation concerning consulting experts who will not testify at trial. See Fed. R. Civ. P. 26(a)(2)(B); Schenkier, supra note 1, at 22. To the contrary, Rule 26(b)(4) protects from discovery materials pertaining to consulting experts who will not testify, unless opposing counsel can demonstrate "exceptional circumstances." See Fed. R. Civ. P. 26(b)(4); Schenkier, supra note 1, at 22.

[23] The 6th Circuit has recently described this approach as that of the "overwhelming majority." Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697, 716-17 (6th Cir. 2006); see also Schenkier, supra note 1, at 18 (majority of cases hold that no work product protection exists for materials considered by testifying experts).

[24] Rule 26(a)(2)(B) requires testifying experts to provide a report summarizing their opinions and the basis therefore. See supra footnote 20.

[25] The rules do not prohibit counsel from assisting the expert in preparing the reports. See Advisory Committee's Notes to the 1993 amendments to Rule 26(a)(2)(B) (this rule "does not preclude counsel from providing assistance to experts in preparing the reports, and indeed . . . this assistance may be needed . . .").

[26] A further discussion on these issues is contained in Stephen C. Easton & Franklin D. Romines II. "Dealing with Draft Dodgers: Automatic Production of Drafts of Expert Witness Reports," 22 Rev. Litig. 355 (Spring 2003).

[27] Of course, this suggestion is not intended to create "plausible deniability" for certain communications with the testifying expert. Rather, this suggestion is intended to help keep inconsequential matters inconsequential, rather than allowing them to "take on a life of [their] own." Schenkier, supra note 1, at 23.