Work Product Protection Not Waived by Referring to Work Product in Complaint

On November 14, 2013, the First Department issued a decision in Assured Guaranty Municipal Corp. v. DB Structured Products, Inc., 2013 NY Slip Op. 07558, affirming the grant of a protective concerning attorney work product.

In Assured Guaranty, "plaintiff insurer issued a policy guaranteeing payment of certain classes of the securities issued and when the loans began to default at what it considered to be a high rate, it retained a law firm that hired consultants to conduct a forensic reunderwriting review of the loans. Based on the consultant's findings, plaintiff" brought an action alleging, inter alia, fraudulent inducement and breach of representations and warranties," referring to the consultant's analysis in the complaint. Defendants sought all documents concerning the analysis, including correspondence between plaintiff's counsel and the consultant, arguing that plaintiff waived work product protection by discussing the consultant's work in the complaint. The First Department disagreed, holding:

The motion for a protective order was properly granted. Plaintiff did not waive any privilege by referencing the pre-litigation repurchase review conducted by its consultants in the complaint. Those references were not made as elements of the claims, but as a good-faith basis for the allegations that are based on defects discovered during the repurchase review of the loans. Further, plaintiff does not need the documents relating to the pre-litigation investigation to sustain its causes of action or prove them at trial, and upholding the privilege with respect to the pre-litigation review materials will not deprive defendants of information vital to their defense since plaintiff disavows any intention to use such materials to help establish its claim.

(Citations omitted).