       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                          FILED
                                          December 5, 1997
JERRY HAMMOCK and wife     )
RUBY HAMMOCK, et al.,      )             Cecil W. Crowson
                           )            Appellate Court Clerk
    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



                                         WILLIAM C. KOCH, JR., JUDGE
                                     OPINION


       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




       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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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. Anderson-
Tully 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.

                                          -4-
                                       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




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