While the work product protection may extend to an attorney’s information, impressions, or observations conveyed to experts retained as consultants to assist in analyzing or preparing plaintiff’s action, the documents at issue thus show that the attorneys conveyed no such information, impressions, or observations, nor did APCO Worldwide assist in analyzing or preparing plaintiff’s action. The documents include no communications by attorneys that are the product of their legal training or skills or that reflect any legal research, analysis, theory, strategy, or conclusion. Their occasional communications reflect only their desire to be apprised of APCO Worldwide’s, plaintiff’s, or FINRA’s proposed public relations strategies in the event they called for the attorneys’ input. To the extent that any FINRA attorney offered public relations advice, it was only public relations advice, not legal advice. Therefore the documents include no attorney work product.

The documents also make abundantly clear that they were not prepared primarily for purposes of the litigation, but to mitigate the damage to plaintiff’s reputation, rehabilitate his reputation, and assure that his communications in an effort at mitigation would not instead call more attention to the claimed defamatory statements and amplify the harm from them. Defendants are entitled to this relevant information regarding plaintiff’s efforts to mitigate the past and future effects of the claimed defamation and any communications that might reveal the impact of the defamation on plaintiff’s reputation and his mental and emotional condition, whether minimal or severe.

Relevance of the material to the litigation does not equate to material prepared in anticipation of litigation. The latter is material regarding how plaintiff intends to prove his mitigation of damages, not the facts regarding his mitigation of damages. Even his strategies as to how he communicates to his professional community or the public and to whom he communicates about the claimed defamation and whether his communications call attention to the defamation and enhance rather than mitigate his damages still bear on mitigation and do not amount to strategies as to how he will plead or prove defamation, damages, or their mitigation.

In sum, APCO Worldwide’s advice to plaintiff and FINRA and their comments on that advice, which they shared with their attorneys, but to which the attorneys did not contribute, was to assist plaintiff in his public relations strategy, not in his litigation strategy, in rehabilitating his reputation, and in mitigating his damages. At most, APCO Worldwide provided plaintiff advice regarding how to communicate about the litigation so as not to enhance his damages, but not how to prepare, present, or support his claims in the litigation so as not to enhance his damages or for any other purpose in the litigation….