These cases arise from the death of two construction workers in the collapse of an elevator at a construction site on August 23, 2002. At the time Zurich had a representative assigned to the site as a risk manager. That employee, Mr. Ray Soules, prepared an e-mail report within a few hours of the accident, recounting the circumstances based on his initial investigation. Soules sent the report to various Zurich personnel, including his team leader, Kevin Petrie, who was a senior risk manager at Zurich. In his turn Petrie sent an e-mail to Soules the next day, making certain observations about the facts reported by Soules and requesting that specified follow-up inquiries be undertaken.

Plaintiffs subpoenaed Mr. Soules for a deposition, which was conducted on June 17, 2003. As part of their notice and subpoena, plaintiffs sought production of any reports prepared by Zurich personnel that were pertinent to the accident. In response to that demand, Zurich advised that it was withholding both e-mails as attorney work product. Defendants and Zurich now seek a court ruling endorsing this claim. In substance, Zurich and defendants assert that, when the e-mails were written, Zurich was acting as a representative of defendants and authored the two documents because of anticipated litigation between defendants and the decedents' families.[1]

The first problem for movants is that defendants previously represented to the court that they were not withholding any documents on the basis of privilege or work product immunity, a representation that the court relied upon to absolve defendants of the burden of preparing a privilege log. (See Order dated March 18, 2003). Defendants do not seek to explain this inconsistency or indicate why that representation is not tantamount to waiver. See generallyStrougo v. BEA Assocs., 199 F.R.D. 515, 521 (S.D.N.Y.2001).

1Although the movants might be heard to argue that the current work-product claim is really made on behalf of non-parties Zurich and Messrs. Soules and Petrie rather than on behalf of defendants, that assertion would be baseless. The argument pressed by movants in favor of a protective order is premised on the theory that the work in question was done to assist in defendants' anticipated defense against the decedents' representatives. (Puzzuto letter at 5) (e-mails are “privileged work product” “because [they] were prepared by agents of defense counsel in anticipation of litigation”). Indeed, the movants' work-product argument could not otherwise be sustained, since Zurich and its employees are not litigants, and hence their alleged work product could only merit protection if they were acting at the time as representatives of defendants. See, e.g., Ramsey v. NYP Holdings, Inc., 2002 WL 1402055, *6–8 (S.D.N.Y. June 27, 2002) (citing cases). Not surprisingly, that is precisely what movants argue in support of their Rule 26(c) motion. Thus, the work-product claim is that of defendants and their counsel, not of Zurich. See, e.g., Ramsey, 2002 WL 1402055 at *8–9.

*2 2Even absent waiver, movants cannot sustain their work-product claim on the record before the court. Work-product immunity requires a showing that the documents in question were prepared by or on behalf of a party because of actual or anticipated litigation. See, e.g., United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir.1998). If the documents were prepared in the ordinary course of business or would have been prepared even in the absence of a prospect of litigation, they are not protected. See, e.g., Ramsey, 2002 WL 1402055 at *9–10 & n. 9. Moreover, the proponent of the immunity claim bears the burden of proving the facts on which the claim rests and must do so by competent evidence. See, e.g., United States v. Construction Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 294, 136 L.Ed.2d 213 (1996).

As noted, in the context of this case movants must demonstrate that the withheld e-mails were prepared by or on behalf of defendants to assist in anticipated litigation against them as a result of the elevator accident. The record does not support this assertion.

Soules was present on the work site as a risk engineer for Zurich, not as a representative of defendants. When an accident occurred on a site assigned to him, his role was to start the investigative process, secure evidence, and determine, if possible, the cause of the accident. (Deposition of Ray Soules, dated June 17, 2003 (“Soules Dep.”) at 29, 34, 121–24).

When the accident at issue in this case occurred, he immediately went to the site, investigated and prepared a report, which he sent to Zurich's underwriting and claims representatives. He did so, by his own testimony, in the ordinary course of his employment by Zurich, and, at least in part, to assist Zurich in determining whether to offer coverage to the insured. (Id. at 184–85, 211). Moreover, although an attorney for defendants was present at the site at the time, Soules neither spoke to that attorney nor operated under his instructions, and he did not provide that lawyer a copy of the report when he e-mailed it to Zurich. (Id. at 175).[2]

At that stage Soules was plainly acting solely for Zurich, and was doing so at a time when Zurich was not yet acting as a representative for defendants. In reaching this conclusion, we acknowledge that defendants' trial counsel asserts in conclusory fashion in his letter brief that Zurich had already made the decision to cover the loss. (Pozzuto letter at 3). That assertion is not supported by any competent evidence, however, and seems plainly inconsistent with the testimony of Mr. Soules, as well as with the timing of his initial work, which began less than an hour after the accident.

An insurance company's decision whether to afford coverage is part of its normal business decision-making and does not constitute work-product even though the insurance company may face the prospect that if coverage is denied, the insured will commence litigation against it. See, e.g., Weber v. Paduano, 2003 WL 161340, *4, 6–8 (S.D.N.Y. Jan.22, 2003) (citing cases); 525 Fulton Street Holding Corp. v. Mission Nat'l Ins. Co., 1984 WL 591, *3–4 (S.D.N.Y. June 29, 1984); Fine v. Bellefont Ins. Co., 91 F.R.D. 420, 422 (S.D.N.Y.1981). Still less can work-product immunity be invoked in a case in which the insurer is not a party, and the work done was undertaken immediately following the assertedly insurable event in order to assist the insurer in determining whether to cover the expected claim.

*3 As noted, to qualify for work-product protection the work must have been done either by or on behalf of the party, and until the insurance company decides to cover a claim, it is not a representative of the insured, but rather a potential adversary. Necessarily, then, the report by Soules has not been shown to qualify for protection under Fed.R.Civ.P. 26(b)(3).

3As for the responding e-mail by Soules's team leader, Mr. Petrie, that document was written and sent on August 24, 2002. Again, defendants fail to offer any evidence that the insurer had yet made a coverage decision. Moreover, other than proffering that e-mail, defendants offer no evidence pertinent to its creation or Petrie's purpose in sending it. Accordingly, their contention that work-product immunity applies to this document is also unproven.

For the reasons noted, the motion for a protective order is denied. The two e-mails in question are to be produced to plaintiff within seven days.

As part of their application, the movants have provided the court copies of the two e-mails for in camera review.

According to Soules and counsel, the defendants' attorneys only saw the document after this lawsuit had been filed. (Soules Dep. at 181).