Therefore, Calandro has not shown that he is unable to obtain the "substantial equivalent" of the relevant information in Sloane & Walsh's possession, or that he has a substantial, much less compelling, need for its work product documents.See Ferrara & DiMercurio, Inc., 173 F.R.D. at 16 (finding that plaintiff did not demonstrate a substantial need for work product documents where "substantial equivalent" of the information was available through deposition testimony); Catino v.Travelers Ins. Co., Inc., 136 F.R.D. 534, 540 (D. Mass. 1991) (finding that plaintiff in unfair settlement practices action failed to establish substantial need for work product documents where there was no showing that "the 'substantial equivalent'" of the information could not be obtained elsewhere). Accordingly, he has not established that the challenged documents are discoverable under Fed. R. Civ. P. 26(b)(3).

Actually, Defendant could have prepared such log. Per Catino v. The Traveler's Insurance Co., 136 F.R.D. 534 relied upon by Defendant herein, the only documents that are subject to protection are those covered by work-product privilege that are between the attorney and the insurer with regard to the anticipated second suit. Defendant per force has copies thereof.

When the insured then sued the insurance company, the courts had rebuffed any attempts by the insurance company to claim the attorney-client privilege to prevent its insured access to the documents that attorney had created when she represented the insured and the insurance company's common interest in defeating the case brought against the insured. . . . [T]he courts had applied this principle when the insured assigned whatever claim she had against the insurance company to the person who sued the insured in the first place.") (emphasis added); Catino v. Travelers Insurance Company, Inc., 136 F.R.D. 534, 539-40 (D. Mass. 1991) (finding that attorney hired by insurance company to represent insured had no standing to object to disclosure of documents requested by insured's assignee, despite documents being created in anticipation of litigation, because insured had waived protections via assignment of claims). Dome Petroleum Ltd. v. Employers Mutual LiabilityInsurance Company of Wisconsin, 131 F.R.D. 63, 68-69 (D.N.J. 1990) (relying on Seventh Circuit's holding in Simpson and finding that there is no attorney-client privilege by insurer against subrogee of insured); Central National Insurance Companyof Omaha v. Medical Protective Company of Fort Wayne, Indiana, 107 F.R.D. 393, 394-95 (D.C. Mo. 1985) (finding attorney-client privilege did not prevent disclosure in subsequent dispute between excess and primary insurer in action against primary insurer for bad-faith refusal to settle and holding that information and documents were not protected by attorney-client or work-product privileges) ("A general exception

The issue is somewhat complicated because of the interrelated nature between the homeowners' litigation against the plaintiff under the UFFI repurchase regulations and the instant insurance coverage litigation to resolve whether the CGL policies cover the plaintiff's payment into the UFFI Trust Fund. Particular documents may therefore relate to both the homeowners' litigation and to the coverage dispute. SeeCatino v. Travelers Insurance Co., Inc., 136 F.R.D. 534, 538 (D.Mass.1991).           The burden is on the party resisting discovery, i.e., the plaintiff, to demonstrate that the requested material constitutes work product.

It is not designed to protect a confidential relationship, but rather to promote the adversary system by protecting the product of an attorney's work. In Re Atlantic Financial Management Securities Litigation, 121 F.R.D. 141, 145 (D.Mass.1988) (citation omitted); seeCatino v. Travelers Insurance Company, Inc., 136 F.R.D. 534, 539 (D.Mass.1991). The doctrine protects documents prepared in previous litigation such as those prepared by plaintiff in anticipation of litigation under the UFFI repurchase regulations.

Intermixed in the cases presented to the district court are cases which are more recently published involving the decision never made by the district court which include a potential difference between first-party and third-party bad faith concepts. Catino v. Travelers Ins. Co., Inc., 136 F.R.D. 534 (D.Mass. 1991); United Services Auto. Ass'n v. Werley, 526 P.2d 28 (Alaska 1974); Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978). See also John J. Manier, Comment, The Attorney-Client Privilege and Its Availability to Insured Persons, 36 UCLA L.Rev. 977 (1989).

The easy cases tend to be those of express waiver. See, e.g., United States v. Lussier, 71 F.3d 456, 462 (2d Cir. 1995); United States v. Kingston, 971 F.2d 481, 490 (10th Cir. 1992); Catino v. Travelers Ins. Co., 136 F.R.D. 534, 536-37 (D.Mass. 1991). The more difficult cases tend to involve implied waivers.

Id. at *11. The court in Catino v. Travelers Ins. Co., Inc., 136 F.R.D. 534 (D. Mass. May 28, 1991), engaged in a similar discussion. Id. at 536.

Baker & McKenzie has cited several cases in support of its end product approach argument. SeeIn re ANR Advance Transp. Co., Inc., 302 B.R. 607 (E.D.Wis.2003); Catino v. Travelers Ins. Co., Inc., 136 F.R.D. 534, 539 (D.Mass.1991); Fed. Land Bank of Jackson in Receivership v. Fed. Intermediate Credit Bank of Jackson, 127 F.R.D. 473, 478-80 (S.D.Miss.1989); First Wis. Mortg. Trust v. First Wis. Corp., 86 F.R.D. 160, 167 (E.D.Wis.1980); Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92, 98 (Mo.Ct.App.1992).

(Doc. 840). Baker & McKenzie relies on two cases: First Wis. Mortgage Trust v. First Wis. Corp., 86 F.R.D. 160, 167 (E.D.Wis.1980); and Catino v. Travelers Ins. Co., Inc., 136 F.R.D. 534, 539 (D.Mass.1991).           The Receiver urges adoption of the " entire file approach" which recognizes that the client, not the attorney or law firm, owns all documents related to a legal representation and thereby the client may waive any privilege as to such material.