In Financial Guaranty Ins. Co. v. The Putnam Advisory Co., LLC, 314 F.R.D 85 (S.D.N.Y. 2016) (No. 12-cv-07372), the district court held that plaintiff’s citation in its second amended complaint to an otherwise protected expert report, and use of those citations in its appeal of the district court’s order dismissing the case, waived the work product protection over the report.   Here, plaintiff alleged that defendant had made false representations about, or negligently mismanaged, a collateralized debt obligation (‘’CDO’’) insured by plaintiff.  The court dismissed plaintiff’s initial complaint and granted leave to amend.  In its second amendment complaint (‘’SAC’’), plaintiff alleged that it had engaged a firm of economic analysts, and included three bullet-pointed quotations from the analysts’ report.  These included one in which the expert concluded that the likelihood that the suspicious pattern of referenced securities could have occurred by chance across independent portfolio managers was less that ‘’1 in a billion.”  The district court dismissed the SAC, and plaintiff relied on these allegations in a successful appeal of the dismissal.  Upon remand, defendant sought discovery of the report and related documents on the grounds that plaintiff had put the report ‘’at issue’’ in the litigation, resulting in subject matter waiver.  In an attempt to rehabilitate the privilege over the report, plaintiff told the court that it would not use the analysis in the future, including at trial.  Noting that consulting expert reports prepared for litigation are protected by the work product doctrine, the court held that plaintiff waived that protection by referring to the report in the SAC, and by relying on the those allegations in its successful appeal.  However, the court held that waiver was limited to the report itself, and did not extend to other, related documents.  Applying the analysis of Federal Rule of Evidence 502(a), the court explained that waiver is limited to documents actually disclosed in litigation and does not extend to undisclosed privileged or protected information unless fairness requires broader disclosure to avoid selective, misleading use of privileged information.  The court found that there was no indication that plaintiff had made misleading use of the report, and concluded that waiver was properly limited to the report itself.