# FILED

December 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

JERRY HAMMOCK

and wife ) RUBY HAMMOCK, et al., ) ) Plaintiff s/Appella nts, )

) Sumner C ircuit ) No. 15861-C VS. ) ) Appeal N o. ) 01A01-9710- CV-00600 SUMNER COUNTY, TENNESSEE, ) ) Defendant/Appellee. )

APPEAL FRO M THE SUMNE R COUNTY CIRCUIT COURT AT LEBANON, TENNESSEE THE HONORABLE THOMAS GOODALL, JR., JUDGE

For the Plaintiffs/Appella nts : For the Defendant/Appellee : B. Keith Williams John Knox Wa lkup Taylor, Taylor, Lannom & Williams Attorney General and Reporter Lebanon, Tennessee Wendell C . Daw son Assistant Attorney General



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDG E1 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 unnece ssary pursuant to Te nn. R. App. P. 35(c). -2- 

## O P I N I O N

This interlocutory appea

l involves the

right of a part y to discover the appraisal report of atestifying expertin a condemnation case. The Circuit Court for Sumner County denied the

property o wners’ r

equest for

the appra

isal repor t in order to prepare to depose the appraise r on the gro unds that the

report is “privilege d, as work porduct [sic]” b ut grante d th e property owners permission to apply for an interlocutory appeal pursuant toTenn. R. App. P. 9. We concur that an interlocutory appeal will pre vent needle ss, expens ive , and protracted litigation in this case. Because the applic ation and the

response t

hereto fu lly set forth the partie s’ positions andthe mate

rial fac ts, we dispen se with f urther br iefing and oral argu ment and proceed to the merits in order to save the

parties a dditional ti me and

expense. 1 We vacate the trial court’s or

der and remand the case with instructions to enter an order compelli ng the pro duction of the test ifying ap praiser’s re ports.

I.

This appeal involves twelve inverse condemnation ca ses fil ed in the Circuit Courtfor Sumne

r County ar

ising out of the construct ion of Stat

e Highwa y 52 in Portland. The prope

rty owner s in each of

these cas es assert

that the S tate of Tenne ssee acquired

interests in their pr

operty by mi srepresenting the ef fect o f th e highway construct

ion on their

remainin g property. Eachof these l awsuits r equests damages for the di minution of t he value of

the proper

ty owners ’ remai ning proper ty.

Duri ng discovery, the property owners served interrogatories on Sumn e r County, the only remaining defendant after the State of Tennessee was dismissed as
aparty, r equesting a

mong other i nformati on the nam es of the expert appraisers the county expected

to call as expert w itnesses a nd copies of any written appraisal report prepared by the expert for each affe cted piec e of prope rty. No t surprisin gly, the-3-

county submitted i nterroga tories to the p roperty ow ners requ esting essentially the same info rmation.

Sumner County res ponded to the property o wners’ i nterroga tories by s tating thatit intended to call Lewis C. Garber as an expert appraiser attrial. It also provided additional information concerning Mr. Garber ’s apprai sals includi ng (1) the date of each appraisa

l, (2) the a ppraised va

lue of eac h piece of

property, (3) the “ total amoun t thatwould constitute fair compensation for t he land ta ken as indic ated by the appraisal ,” and (4) inf

ormation c oncerning t

he comparables on w hich the ap praisals
were based. H owever, the cou nty objected to producing Mr. Garber’s appraisal reports on the gro und that doing so was contrary to Te nn. R. Civ. P. 26.02(4). Apparent ly, the proper

ty owners have not yet resp onded t o the county’s interroga tories.

The property owners then requested the trial court to comp el the coun ty to produce Mr. Ga

rber’s a ppraisal r eports in order to assist the m in prepa ring to take

Mr. Garber’s depositio n. Th e county resisted the motion, and the trial court entered an order on Octobe

r 17, 1997 c oncluding tha t the reque sted repor

ts w ere “ not discoverable, and that the information requested is privileged, as work pordu ct [sic].” The trial cour

t entered another or

der on Oc tober 17, 1997 , g ranting the property owners’ applicati on for per missionto pursue an interlocutory appeal on t he ground tha t it had “been unab le to locat e any prec edent on the

issue of whether an

experts [sic] report is disc overabl e when the non-moving party has stated in their [sic] Answers to Interr

ogatories that the ex

pert inten ds to testif

y ‘abou t h is appraisal report.’”

II.

Issues surrounding the proper scope of discovery in condemnat ion cas es are not new to t

his court. Thirty years ago, in our last en banc decision, we interpreted the discovery statutes e xisting at th e time to pe rmit prope

rty owner s to depose the State’s expert appraisers but not to re quire the State to produce copies of the expert appraiser’s report. See State ex rel. Pack v. W est Tenne ssee Dist

rib. Co. , 58 Tenn

. App. 306, 314-15 , 430 S.W .2d 355, 35 9 (1968). The scope of discovery expanded-4-

significa ntly a fter the Tennessee Supreme Court adopted the Tennessee Rules of Civi l Procedure in 1970. See Vyth oulkas v. Vanderbilt Univ. H osp. , 693 S.W. 2d 350, 355 (Tenn. Ct. App. 1985). Thereafter, in the only report ed case d ealing wi th the discovery of apprai sal repor ts, this co urt held tha

t a proper ty ow ner was entitled to di scover th e State’ s appraise r’s wor ksheets con cerning the

value of th e propert

y owner’s property
. See State ex re l. Dep’t of Transp v. Harvey , 680 S.W .2d 792, 79 4 (Ten n. Ct. App. 1984). W ithout even m

entioning State ex re l. Pack v. Wes t Tenn. Distrib. Co. , the court s tated that “[w]e find no cas e or

statute which makes privileged the papers of the s tate expert appraiser an d we will create no such p rivilege h ere.” See State ex rel. Dep’t of Transp. v. Harvey , 680 S.W .2d at 794.

The discov ery rules h ave been fur ther liber alized sin ce we decided th e 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 part ies’ tes tifying expe rts as a m atter of

right, a nd Tenn. R. Civ . P. 26. 02 (3) perm its the disc overy of r

elevant doc uments upon a sho wing that the party seeking discovery has a substantial need for the req ueste d materia ls andwill be una

ble to obtai n their equ ivalent without undu e hardship. The propertyowners in this case have satisfied these requirements. They desire to focus their deposition e xamination

of the county’s testif

ying apprai se r, and they ha ve no other mea ns of acquiring his re

port.

The at torney wor

k product doc trine should be narrow ly construe d to avoid impeding the liberal discovery proc ess envision ed by the pr esent proc edural ru les. Se e Allendale Mut. Ins. Co. v. B ull Data Sys., Inc. , 152 F.R .D. 132 , 135 (N.D. Ill

. 1993). Persons asser ti ng the wor k product doc trine as a

basis for preventingthe discove r y of otherw ise rele vant eviden ce have th e burden of demonstra

ting the applicability of the doct rine. See Resolution Trust Corp. v. Dabney , 73 F.3d 262, 266 (10thCir. 1995 ). Sinc e reports prepare d by expe rts in antic ipation of t rial are not covered by the work product d octrine, see Hartford Fire Ins . Co. v . Pure A ir on the Lake Ltd. Pa rtnership , 154 F.R.D. 202, 2 06 n.6 (N.D. Ind. 1993) ; Taylor v. AndersonTullyCo. , 151 F.R .D. 295 , 296 n.1 ( W.D. Tenn. 1993 ); Pearl B rewing Co. v. Jos. Schlitz Br ewing Co. , 415 F. S upp. 1122, 1137 (S.D . Tex. 1976), w e find that the county did not establish its work product doctrine claim and, therefore, that the trial court err ed by overr

uling the pr

operty own ers’ moti on to compel

.-5- III.

We vacate t

he order denying the

motion to com

pel and remand th e case to the trial court wit

h directio ns to enter

an order c ompelling th e count y to provi de the propertyowners w ith the copi es of Mr. Garber ’s apprai sal repor ts r eques ted in paragra ph 19(c) of their inte rrogatories. We tax the costs of this appeal to Sumner County.

_________________ _ ____________

_ WILLIAM C. KOCH, JR., JUDGE CONCUR:

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_ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

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_ BEN H. CANTRELL, JUDGE