In Curtis Park Group, LLC, v. Allied World Specialty Insurance Co., 2021 WL 1022703 (D. Colo. March 17, 2021), the United States District Court for the District of Colorado held that a report produced by an engineering expert retained by the contractor was discoverable in an action between owner and its insurer, as the report was not created in anticipation of litigation and therefore was not work product. 

Plaintiff Curtis Park Group, LLC, (“Curtis Park”) was the owner of a condominium project in Denver, Colorado. Milender White Residential LLC, (“Millender White”) was the project’s general contractor. During construction, the project’s concrete slab cracked. Milender White retained Vertex Companies, Inc. (“Vertex”), a structural engineer, to peer review the design and investigate the cracking. Vertex determined the cracking was not attributable to any construction defect and proposed repairs.

Curtis Park made a claim for the cracking to its insurer, Allied World Insurance Company (“Allied World”), and submitted costs associated with Vertex’s investigation as a part of its claim.  Allied World denied the claim and Curtis Park sued for coverage.

Allied World subpoenaed Vertex’s “entire and complete physical file.” Milender White objected and moved to quash the subpoena, arguing the report was protected by the work product doctrine.

Milender White argued the report was protected, as it was used by both Milender White and Curtis Park to evaluate potential litigation over the cause of the cracking. Milender White noted the Court had previously ruled that communications between Curtis Park’s counsel and Milender White’s counsel were protected by the attorney-client privilege, as Curtis Park had to communicate with Milender White to submit its insurance claim. Milender White argued Vertex was an expert engaged for the same reason and therefore the Report was protected.  

Allied World argued the Report was not created in anticipation of litigation, but was instead created during the construction process. Allied World argued the Report was needed by Milender White to evaluate the cause of the cracking and the needed repairs, not to evaluate Milender White’s potential liability.

The Court agreed with Allied World. The Court found that, prior to litigation, Milender White retained Vertex as a design peer reviewer and to propose repairs for the cracking. The Court also found Vertex’s services fulfilled a business need, as opposed to a legal need. The Court explained that Milender White had an obligation to investigate the cracks and provide a report to the project owner. This obligation existed outside of litigation and was predominantly business oriented.

This case serves as an important reminder of the distinction between experts hired for construction and those hired for litigation.  This issue arises frequently, as parties want the benefit of using the expert’s analysis in the field and in related litigation.  In order to protect pre-litigation expert reports, parties should consider having counsel contract directly with the expert or expressly state in the retention agreements that they are being retained in anticipation of litigation.