FILED

December 5, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

JERRY HAMMOCK and wife )

RUBY HAMMOCK, et al., )

)

Plaintiffs/Appellants, )

) Sumner Circuit

) No. 15861-C

VS. )

) Appeal No.

) 01A01-9710-CV-00600

SUMNER COUNTY, TENNESSEE, )

)

Defendant/Appellee. )

APPEAL FROM THE SUMNER COUNTY CIRCUIT COURT

AT LEBANON, TENNESSEE

THE HONORABLE THOMAS GOODALL, JR., JUDGE

For the Plaintiffs/Appellants: For the Defendant/Appellee:

B. Keith Williams John Knox Walkup

Taylor, Taylor, Lannom & Williams Attorney General and Reporter

Lebanon, Tennessee

Wendell C. Dawson

Assistant Attorney General

VACATED AND REMANDED

WILLIAMC.KOCH,JR.,JUDGE
1

Pursuant to Tenn. R. App. P. 2, we suspend the application of Tenn. R. App. P. 9(c), 24-26,

& 29. We also find oral argument to be unnecessary pursuant to Tenn. R. App. P. 35(c).

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O P I N I O N

This interlocutory appeal involves the right of a party to discover the appraisal

report of a testifying expert in a condemnation case. The Circuit Court for Sumner

County denied the property owners’ request for the appraisal report in order to

prepare to depose the appraiser on the grounds that the report is “privileged, as work

porduct [sic]” but granted the property owners permission to apply for an

interlocutory appeal pursuant to Tenn. R. App. P. 9. We concur that an interlocutory

appeal will prevent needless, expensive, and protracted litigation in this case.

Because the application and the response thereto fully set forth the parties’ positions

and the material facts, we dispense with further briefing and oral argument and

proceed to the merits in order to save the parties additional time and expense.1 We

vacate the trial court’s order and remand the case with instructions to enter an order

compelling the production of the testifying appraiser’s reports. 

I.

This appeal involves twelve inverse condemnation cases filed in the Circuit

Court for Sumner County arising out of the construction of State Highway 52 in

Portland. The property owners in each of these cases assert that the State of

Tennessee acquired interests in their property by misrepresenting the effect of the

highway construction on their remaining property. Each of these lawsuits requests

damages for the diminution of the value of the property owners’ remaining property.

During discovery, the property owners served interrogatories on Sumner

County, the only remaining defendant after the State of Tennessee was dismissed as

a party, requesting among other information the names of the expert appraisers the

county expected to call as expert witnesses and copies of any written appraisal report

prepared by the expert for each affected piece of property. Not surprisingly, the
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county submitted interrogatories to the property owners requesting essentially the

same information.

Sumner County responded to the property owners’ interrogatories by stating

that it intended to call Lewis C. Garber as an expert appraiser at trial. It also provided

additional information concerning Mr. Garber’s appraisals including (1) the date of

each appraisal, (2) the appraised value of each piece of property, (3) the “total amount

that would constitute fair compensation for the land taken as indicated by the

appraisal,” and (4) information concerning the comparables on which the appraisals

were based. However, the county objected to producing Mr. Garber’s appraisal

reports on the ground that doing so was contrary to Tenn. R. Civ. P. 26.02(4).

Apparently, the property owners have not yet responded to the county’s

interrogatories.

The property owners then requested the trial court to compel the county to

produce Mr. Garber’s appraisal reports in order to assist them in preparing to take Mr.

Garber’s deposition. The county resisted the motion, and the trial court entered an

order on October 17, 1997 concluding that the requested reports were “not

discoverable, and that the information requested is privileged, as work porduct [sic].”

The trial court entered another order on October 17, 1997, granting the property

owners’ application for permission to pursue an interlocutory appeal on the ground

that it had “been unable to locate any precedent on the issue of whether an experts

[sic] report is discoverable when the non-moving party has stated in their [sic]

Answers to Interrogatories that the expert intends to testify ‘about his appraisal

report.’”

II.

Issues surrounding the proper scope of discovery in condemnation cases are

not new to this court. Thirty years ago, in our last en banc decision, we interpreted

the discovery statutes existing at the time to permit property owners to depose the

State’s expert appraisers but not to require the State to produce copies of the expert

appraiser’s report. See State ex rel. Pack v. West Tennessee Distrib. Co., 58 Tenn.

App. 306, 314-15, 430 S.W.2d 355, 359 (1968). The scope of discovery expanded
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significantly after the Tennessee Supreme Court adopted the Tennessee Rules of Civil

Procedure in 1970. See Vythoulkas v. Vanderbilt Univ. Hosp., 693 S.W.2d 350, 355

(Tenn. Ct. App. 1985). Thereafter, in the only reported case dealing with the

discovery of appraisal reports, this court held that a property owner was entitled to

discover the State’s appraiser’s worksheets concerning the value of the property

owner’s property. See State ex rel. Dep’t of Transp v. Harvey, 680 S.W.2d 792, 794

(Tenn. Ct. App. 1984). Without even mentioning State ex rel. Pack v. West Tenn.

Distrib. Co., the court stated that “[w]e find no case or statute which makes privileged

the papers of the state expert appraiser and we will create no such privilege here.”

See State ex rel. Dep’t of Transp. v. Harvey, 680 S.W.2d at 794.

 The discovery rules have been further liberalized since we decided the State

ex rel. Dep’t of Transp. v. Harvey case. Now, Tenn. R. Civ. P. 26.02(4)(A)(ii)

permits parties to depose other parties’ testifying experts as a matter of right, and

Tenn. R. Civ. P. 26.02(3) permits the discovery of relevant documents upon a

showing that the party seeking discovery has a substantial need for the requested

materials and will be unable to obtain their equivalent without undue hardship. The

property owners in this case have satisfied these requirements. They desire to focus

their deposition examination of the county’s testifying appraiser, and they have no

other means of acquiring his report.

The attorney work product doctrine should be narrowly construed to avoid

impeding the liberal discovery process envisioned by the present procedural rules.

See Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D. 132, 135 (N.D. Ill.

1993). Persons asserting the work product doctrine as a basis for preventing the

discovery of otherwise relevant evidence have the burden of demonstrating the

applicability of the doctrine. See Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266

(10th Cir. 1995). Since reports prepared by experts in anticipation of trial are not

covered by the work product doctrine, see Hartford Fire Ins. Co. v. Pure Air on the

Lake Ltd. Partnership, 154 F.R.D. 202, 206 n.6 (N.D. Ind. 1993); Taylor v. AndersonTully Co., 151 F.R.D. 295, 296 n.1 (W.D. Tenn. 1993); Pearl Brewing Co. v. Jos.

Schlitz Brewing Co., 415 F. Supp. 1122, 1137 (S.D. Tex. 1976), we find that the

county did not establish its work product doctrine claim and, therefore, that the trial

court erred by overruling the property owners’ motion to compel.
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III.

We vacate the order denying the motion to compel and remand the case to the

trial court with directions to enter an order compelling the county to provide the

property owners with the copies of Mr. Garber’s appraisal reports requested in

paragraph 19(c) of their interrogatories. We tax the costs of this appeal to Sumner

County.

_______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

___________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

___________________________________

BEN H. CANTRELL, JUDGE