In Gross Construction Associates v. American Manufacturers Mutual Insurance Company, 07 Civ. 10639, Magistrate Judge Andrew Peck of the United States District Court, Southern District of New York examined the work product doctrine to a claims analysis by a contractor hired by an attorney. Gross Construction involved a multi-million dollar dispute over defects and delays in the construction of the Bronx Hall of Justice. The construction manager was not a party, and was not expected to be called to testify at trial. The owner’s attorney hired the “Claims Analysis Group” of the construction manager to perform a claims analysis, including the potential for litigation, and possible litigation strategy. The Claims Analysis Group only reviewed documents produced in discovery, and did not contact any party to perform its investigation.

The court analyzed the work product doctrine, and found that the claims analysis report was protected work product. While litigation had not been commenced at the time the Claims Analysis Group was hired by counsel, litigation was clearly contemplated; the Claims Analysis Group was a non-testifying expert; and, because the Claims Analysis Group relied on documents exchanged in discovery, substantial need could not be demonstrated. Therefore, the work product doctrine was applicable.

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