The opinion of the court was delivered by: McLaughlin, J.
This action concerns a dispute over the construction of Skirkanich Hall at the University of Pennsylvania ("Penn"). Skanska USA Building Inc. ("Skanska"), one of the defendants, was the general contractor on the Skirkanich Hall project. Plaintiff Quinn Construction Inc. ("Quinn") was a subcontractor. Quinn has filed a motion to compel the production of a report by one of Skanska's non-testifying experts on the ground that the report was provided to, and utilized by, one of Skanska's testifying experts. Skanska has resisted production claiming the report is protected "core" attorney work product. Because the Court finds that any privilege has been waived, the Court will grant the motion.*fn1
Before this action was filed, Quinn proposed to Skanska that they consider cooperating in a common effort to present their claims concerning the project to Penn. Skanska's counsel retained Warner Construction Consultants, Inc. ("Warner"), a consulting firm, to evaluate Quinn's proposal. Skanska's counsel provided Warner with the parameters of the work to be performed and anticipated using Warner's analysis as part of its own work product in preparing a recommendation for Skanska. Warner's resulting analysis was embodied in a "preliminary overview," which the Court will refer to as the "Warner Report." Declaration of Bruce D. Meller ("Meller Decl."), attached to Skanska's Brief, at ¶¶ 3-4.
After this action was filed, Skanska retained Capital Construction Consultants, Inc. ("Capital") and disclosed Zafar Farooqi of the Capital firm as Skanska's testifying expert. At his deposition, Farooqi testified that he had been provided with a copy of the Warner Report by Skanska's counsel for him to review. Bills from Farooqi to Skanska produced in discovery have two entries showing time billed for reviewing the Warner report. Deposition of Zafar B. Farooqi ("Farooqi Dep."), attached as Ex. A. to Quinn's Reply Brief, at 98-100; 2/5/09 Invoice from Capital to Skanska's counsel, attached as Ex. A to Quinn's Opening Brief.
Farooqi has submitted a declaration in support of Quinn's opposition in which he confirms that his firm was sent the Warner Report by Skanka's counsel and that he reviewed it. In his declaration, Farooqi says that Capital "utilized the [Warner Report] to obtain an initial overview of some of the issues involved in this litigation" and that he understands that the Report was provided to Capital by Skanska's counsel for that purpose. Declaration of Zafar B. Farooqi ("Farooqi Decl."), attached to Skanska Opp. Br., at ¶¶ 2-3. At deposition, Farooqi stated that he believed that he included "an excerpt of the Warner document in our expert report." Farooqi Dep. at 98.*fn2
Despite admitting to "utilizing" the Warner Report, Farooqi states in his declaration that Capital made its own independent analysis of Quinn's performance on the Skirkanich Hall project relying on project records and states that Capital "did not analyze, utilize, consult or rely upon the [Warner Report] in any way in connection with the preparation of our expert reports for this case." Farooqi Decl. at ¶ 4.
Quinn now moves to compel the production of the Warner Report as material relied upon by a testifying expert, to be produced under Fed. R. Civ. P. 26(a)(2)(B). Skanska resists production of the Report, arguing that it is both material prepared by a non-testifying expert, protected from disclosure under Fed. R. Civ. P. 26(b)(4)(B), and protected "core" attorney work product.*fn3
Under Fed. R. Civ. P. 26(b)(4)(B), a party may not ordinarily discover "facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial." The opinions of such a non-testifying expert may be disclosed, however, upon a showing of "exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means." Id.
Under Fed. R. Civ. P. 26(b)(3), which codifies the protection for attorney work product, a party may not ordinarily discover documents that "are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Those materials may be required to be produced, however, if they are otherwise discoverable and if the requesting party shows "that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." Id.; see also Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). In ordering production, a court must "protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation," often referred to as "core" attorney work product. Fed. R. Civ. P. 26(b)(3)(B); In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003).
The Court finds that, because Warner was retained to provide pre-litigation advice and has not been disclosed as a testifying expert in this case, the Warner Report is the opinion of a non-testifying expert, protected from disclosure under Fed. R. Civ. P. 26(b)(4)(B). The Court also finds that, because the Warner Report was prepared at the direction of an attorney in anticipation of litigation, the Report is attorney work product protected by Fed. R. Civ. P. 26(b)(3). In addition, because the Report was intended to be used to guide litigation strategy, its scope and the specific issues discussed may indirectly reveal the "mental impressions, conclusions, opinions, or legal theories" of Skanska's counsel at whose direction it was prepared. The Court therefore finds that the Warner Report constitutes, at least in part, "core" attorney work product. See, e.g., Sporck v. Peil, 759 F.2d 312, 316-17 (3d Cir. 1985) (holding an attorney's compilation of non-privileged documents was protected attorney work product because the selection process would reveal counsel's mental impressions and strategy).
Having found that both the protections for a non-testifying expert and for attorney work product apply to the Warner Report, the Court finds that Quinn has not made the required showing to overcome those protections. Quinn has not made (nor has it attempted to make) the showing of "exceptional circumstances" needed to obtain the opinions of non-testifying experts or the "substantial need" and "undue hardship" needed to obtain attorney work product.
Had the Warner Report not been provided to Farooqi, this would be the end of the inquiry. The Warner Report would be protected from discovery under both Rules 26(b)(4)(B) and 26(b)(3). The protections of both rules, however, can be waived. See Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991) (waiver of attorney work product); Plymovent Corp. v. Air Technology Solutions, Inc., 243 F.R.D. 139 (D.N.J. 2007) (waiver of non-testifying expert protection). The issue before the Court therefore ...