In United States v. ISS Marine Services, Inc., No. 12-481 (D.D.C. Nov. 21, 2012), a government contractor was required to produce to the Inspector General of the Department of Defense a report prepared during an internal audit of potentially fraudulent conduct by an affiliate in the Middle East.  The audit was prepared by non-lawyer employees.  Although outside counsel was consulted briefly when the audit was initiated, counsel did not oversee the audit or the creation of the report.  An engagement letter was prepared by outside counsel but was never executed.  A copy of the report was sent to outside counsel two and a half months after its completion, but there was no evidence that counsel provided legal advice after receiving the report.  The court rejected the company’s claim that the report was privileged.  It adopted the “but for” test for determining whether materials were created primarily for the purpose of seeking legal advice, and concluded that even if obtaining legal advice was one purpose for the audit, the audit would have been conducted for business purposes in light of a contractual obligation to return overpayments to the government.  The court also rejected the company’s claim that the audit was protected by the work product doctrine because its preparation was motivated by concerns about potential whistleblowers.  In light of the fact that the report was prepared for multiple purposes and the minimal involvement of counsel, the company had a high burden to show that the report was prepared in anticipation of litigation, and it failed to meet that burden.  The court also found that even if the work product protection applied, the government made a showing of need sufficient to overcome that protection:  the company asserted that the underlying factual materials upon which the audit report was based were located at overseas affiliates beyond the government’s subpoena power, the report was the only evidence potentially available to the government to determine what company executives knew about potential overpayments.