United States of America v. Arbour

Filing 71

RULING denying 61 USA Motion to Quash Subpoenas Issued to Gerald Teel. Signed by Magistrate Judge Stephen C. Riedlinger on 9/10/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA
VERSUS

CIVIL ACTION

9.345 ACRES OF LAND, MORE OR
LESS, SITUATED IN IBERVILLE
PARISH, STATE OF LOUISIANA, ET
AL

NUMBER 11-803-JJB-SCR

RULING ON MOTION TO QUASH SUBPOENAS ISSUED TO GERALD TEEL
Before the court is The United States’ Motion to Quash
Subpoenas Issued to Gerald Teel.

Record document number 61.

The

motion is opposed.1
For the reasons which follow the motion is denied.
The Parties’ Arguments
Plaintiff moved to quash subpoenas issued by the defendants
for the deposition of real estate appraiser Gerald Teel and the
production of documents related to the pre-condemnation appraisal
he performed.2

According to the plaintiff, Teel is not an employee

of the United States.

He was retained by the United States prior

to filing this condemnation action to perform an appraisal of the

1

Record document number 64. The United States also filed a
reply memorandum. Record document number 67.
2

Record document number 61-2, Exhibit A.

property.3

In addition, Teel has not been designated as an expert

for this case, and the plaintiff does not expect to call Teel as an
expert witness at the trial.
timing

and

purpose

of

Plaintiff’s motion is based on the

Teel’s

appraisal,

and

relies

on

Rule

26(b)(4)(D), Fed.R.Civ.P., and the Fifth Circuit decision in Hoover
v. United States Dept. of the Interior, 611 F.2d 1132 (5th Cir.
1980), to support it.
Plaintiff

relied

on

Hoover

to

establish

the

foundation

necessary for Teel’s expert knowledge to come within the scope of
Rule 26(b)(4)(D).

Plaintiff argued that the Fifth Circuit held in

Hoover that a landowner is not entitled as matter of right to
discover the government’s pre-condemnation appraisal report,4 and
that

such

appraisal

reports

are

necessarily

prepared

in

anticipation of litigation because they are “obtained both for the
purpose of providing a basis for an offer, and to support a claim

3

This action was filed November 29, 2011. Teel sent a letter
dated April 30, 2010 about the government contracting with his
company to perform an appraisal analysis of the property. Record
document number 64-1, Exhibit A.
On February 11, 2011 the
defendants received a letter advising that just compensation for
the property had been established at $17,936,500.00.
Record
document number 64-2, Exhibit B.
4

Hoover, 611 F.2d at 1142.
Plaintiff also relied on two
cases that cite Hoover, United States v. 8.34 Acres of Land, 2006
WL 6860387, n. 2 (M.D. La. June 12, 2006) and United States v.
Charles Gyurman Land & Cattle Co., 836 F.2d 480, 484 (10th Cir.
1987).
2

of just compensation” in a subsequent condemnation suit.5
on

Hoover,

the

plaintiff

argued

that

Teel’s

Based

information

and

opinions come within the scope of Rule 26(b)(4)(D) and can only be
the subject of discovery if the defendants demonstrate “exceptional
circumstances under which it is impracticable” for them to “obtain
facts or opinions on the same subject by other means.”
26(b)(4)(D)(ii).

Rule

Plaintiff asserted the subpoenas issued to Teel

must be quashed because the defendants have not made this showing.
Defendants

argued

that

Hoover

is

not

controlling

or

persuasive. According to the defendants, Hoover is not controlling
since it clearly did not involve a condemnation proceeding, but
rather a landowner’s request under the Freedom of Information Act
(“FOIA”)

to

obtain

a

copy

of

an

independent,

non-government

appraisal done during pre-condemnation negotiations.

Defendants

also argued that the decision is not persuasive because: (1) it was
based on the 1980 version of Rule 26(b)(4) under which expert
discovery was limited and neither subsection generally permitted
discovery from experts; and, (2) Hoover’s statement in footnote 8
that the appraisal report was clearly prepared in anticipation of
litigation, was merely an assumption by the court without any
analysis.

Defendants

argued

that

the

record

in

this

case

establishes that Teel’s appraisal was prepared as required by law
in the statutorily prescribed ordinary course of the government
5

Id., at 1139, n. 8.
3

acquiring property, and there is no basis to find that it was done
in anticipation of litigation and so comes within the limitations
on expert discovery imposed by Rule 26(b)(4)(D).

Thus, defendants

argued, they are not required to show exceptional circumstances,
the general discovery rules apply, and the relevant, non-privileged
evidence from Teel is discoverable.
Analysis
The specific portion of Rule 26(b) applicable to this motion
provides as follows:
(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May Testify. A
party may depose any person who has been
identified as an expert whose opinions may be
presented at trial. If Rule 26(a)(2)(B)
requires a report from the expert, the
deposition may be conducted only after the
report is provided.
...
(D)
Expert
Employed
Only
for
Trial
Preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts
known or opinions held by an expert who has
been retained or specially employed by another
party in anticipation of litigation or to
prepare for trial and who is not expected to
be called as a witness at trial. But a party
may do so only:
(i) as provided in rule 35(b); or
(ii) on showing exceptional circumstances
under which it is impracticable for the party
to obtain facts or opinions on the same
subject by other means.
Thus, under the rule a party may not ordinarily obtain
4

discovery from an expert: (1) who has been retained or specially
employed by another party; (2) in anticipation of litigation or to
prepare for trial; and, (3) who is not expected to be called as a
witness at trial.
In considering whether an expert is preparing materials in
anticipation

of

litigation,

the

court

considers

motivating purpose for creation of the document.

the

primary

Litigation need

not be imminent as long as the primary motivating purpose behind
the creation of a document is to aid in possible future litigation.
Documents

and

materials

assembled

and

brought

into

being

in

anticipation of litigation do not include materials assembled in
the ordinary course of business, or pursuant to public requirements
unrelated to litigation.

If a document would have been created

regardless of whether litigation is expected, it is generally held
to have been created in the ordinary course of business.

See, U.S.

V. El Paso Co., 682 F.2d 530, 542-43 (5th Cir. 1982); In re Kaiser
Aluminum and Chemical Co., 214 F.3d 586, 593 (5th Cir. 2000);
ReedHycalog UK, Ltd. v. Baker Hughes Oilfield Operations Inc., 242
F.R.D. 357, 360 (E.D. Tex. 2007); 8A Wright, Miller and Marcus,
Federal Practice & Procedure, § 2033, p. 114-15.
Plaintiff did not object to the defendants’ subpoenas on
grounds of relevancy or privilege, and the plaintiff has not
identified Teel as an expert under Rule 26(b)(4)(A).

Plaintiff

stated in the motion, and the defendants do not dispute, that Teel
5

was specially employed to perform the appraisal and is not expected
to be called to testify as an expert witness at trial.
the

only

issue

to

be

resolved

is

whether

the

Therefore,

plaintiff

has

established that the facts known and opinions held by Teel were
developed in anticipation of litigation or to prepare for trial.
Plaintiff’s arguments in support of the motion to quash, and
in particular the arguments based Hoover, are unconvincing. As the
defendants pointed out, Hoover addressed a prior version of Rule
26(b)(4) in the context of a FOIA

request.6

To determine whether

the government could withhold disclosure of a pre-condemnation
appraisal under Exemption 5 of the FOIA,7 the court had to examine
whether the report in question would be routinely discoverable in
private litigation.

To answer this question required examination

of the then-existing sections of Rule 26(b)(4) applicable to

6

The applicable language of Rule 26(b)(4)(A) and (B) at the
time Hoover was decided in set forth in the case at footnote 8. At
the time the case was decided, the substance of subsection B was
essentially the same as Rule 26(b)(4)(D). However, prior to 1993
subsection A also only allowed limited discovery from testifying
experts. A party had to propound interrogatories to obtain the
expert’s identity and the substance of his opinions and their
basis. After this step, a party had to file a motion to obtain
further discovery, and the court had discretion to allow it or not.
Beginning in 1993, Rule 26(b)(4)(A) was amended to make depositions
of testifying experts routinely available. 8A, Wright, Miller &
Marcus, Federal Practice and Procedure § 2029-2031.
7

Exemption 5 exempts from disclosure inter-agency or intraagency memoranda or letters which would not be available by law to
a party other than an agency in litigation with the agency.
Hoover, 611 F.2d at 1135.
6

testifying and non-testifying experts.8

The court analyzed both

sections and found that the limited expert discovery allowed under
them supported the conclusion that the appraisal was not routinely
discoverable

within

the

meaning

of

Exemption

5.

Thus,

the

plaintiff’s statement of the holding in Hoover is in fact not the
holding of the case. Rather, the plaintiff took two statements and
cobbled them together - one made by the court in reference to the
1980 version of Rule 26(b)(4)(A) which applied to trial experts,9
and another in a footnote discussing the government’s alternative
Exemption 5 argument that the appraisal report was not routinely
discoverable because it was work product under Rule 26(b)(3).
In

contrast,

this

condemnation

action

involves

a

direct

application of the current version of Rule 26(b)(4)(D). Therefore,
Hoover is not controlling in this case, nor is it persuasive.10
8

Id., at 1138-41.

9

The entire sentence from Hoover, which was not cited by the
plaintiff, is as follows: “In sum, despite some uncertainty over
the requisite showing required under Rule (b)(4)(A)(ii), it is
clear that a landowner is not entitled as a matter of right to
discover the government’s appraisal report.” Hoover, 611 F.2d at
1142.
10

The Middle District case relied on by the plaintiff is also
not persuasive authority. In that case a party was attempting to
exclude the report and testimony of the government’s expert because
it claimed he did not value the property at its highest and best
use. In rejecting the party’s attack on the appraisal, which was
the expert’s second appraisal, the court stated in a footnote that
the earlier appraisals were done prior to litigation, and such
appraisals were not generally discoverable, citing Hoover. The
footnote was not necessary to the court’s analysis or conclusion
(continued...)
7

Plaintiff essentially relied completely on Hoover and the court’s
statement

in

footnote

8,

to

establish

the

litigation” requirement of Rule 26(b)(4)(D).

“anticipation

of

In other words,

plaintiff argued, the limitations on obtaining facts and opinions
from a non-testifying expert apply here because Hoover states that
an appraisal report prepared during the land acquisition process is
prepared in anticipation of litigation, since during the process
the government must necessarily anticipate that negotiations will
fail and a condemnation suit will follow.

This statement in

footnote 8 is insufficient to establish that the requirements of
Rule 26(b)(4)(D) are satisfied.

As explained above, the statement

was not necessary to the court’s holding in the case or its
rationale for finding that the government could withhold disclosure
of the pre-condemnation appraisal under Exemption 5 of the FOIA.
Moreover, the statement was not supported by any analysis or
specific facts.
In

contrast,

the

record

here

clearly

shows

that

Teel’s

appraisal was obtained by the government to fulfill the purposes

10

(...continued)
that the challenged report/testimony should not be excluded. The
court stated at the end of the footnote: “The pre-litigation
appraisals might have differed in scope, format, or purpose from
the appraisal the United States commissioned for litigation
purposes.” Although this statement regarding a difference in the
scope, format, or purpose of pre-litigation appraisal is factually
unsupported, it nevertheless supports the position that a prelitigation appraisal is not necessarily prepared in anticipation of
litigation.
8

and policy set forth in the Uniform Relocation Assistance and Real
Property Acquisition Policies Act, 42 U.S.C. §4651.11 Thus, the
record supports the conclusion that the appraisal was obtained
pursuant to a public requirement and litigation was not the primary
motivating purpose for engaging Teel.

Other than Hoover, the

plaintiff simply has no legal or factual basis to support its
argument that the evidence sought by the defendants was prepared in
anticipation of litigation.

Consequently, Rule 26(b)(4)(D) does

not apply and the defendants are not required to show exceptional
circumstances to obtain the testimony and documents from Teel.
Accordingly, The United States’ Motion to Quash Subpoenas
Issued to Gerald Teel is denied.
Baton Rouge, Louisiana, September 10, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

11

Record document number 64-2, Exhibit B.
9