Harry E. Hoover v. The United States Department of the Interior, 611 F.2d 1132

Harry E. Hoover v. The United States Department of the Interior

611 F.2d 1132

5th Cir.

1980

Check Treatment

*3 AINSWORTH, Before VANCE and AN- DERSON, Judges. Circuit AINSWORTH, Judge: Circuit Hoover, E. owner Appellant Harry Alabama, brought “Blowing Wind Cave” this Freedom of Information suit under the 552(a)(4)(B), (“FOIA”), Act § 5 U.S.C. report. Department al asserted that compel Department the Interior inspection copying make available for did not mandate disclosure of the FOIA appraisal report appel- made relative process,” appraisals during “negotiation surrounding lands. The lant’s cave property until as the such time trict court dismissed suit because condemned, purchased subsequently of a filed pendency condemna- Department made available. The proceeding brought by Department based its refusal on acquire property. appeal, Hoover’s On from disclosure “in- exempts FOIA which appellant that he is entitled contends ter-agency intra-agency memorandums report. the FOIA to obtain the or letters would not be.available judg- disagree, We and therefore affirm the law to a party other than ment of the district court. agency.” with the 5 U.S.C. Appellant’s significant cave is because it 552(b)(5). The described two *4 bat,” provides “gray a home the rare an in ways adversely which disclosure would endangered species.1 Department The of operation Department’s affect the acquiring appel- the Interior considered First, acquisition program. land disclosure reason, lant’s cave for that either through prolong “negotiation would inhibit and the purchase Accordingly, condemnation. process by encouraging debates over the obtained, Department December 1977 the Second, specifics appraisal report.” of an $18,000,an appraisal the cost of of the cave disclosure would introduce “an imbalance in and 264 it. surrounding appraisal acres The favor of the negotiating the landowner in purchased independent was from an non- process” by giving premature him and uni- government appraiser with expertise in government’s lateral access to the appraisal. properties.2 appraisal, cave on Based the Department’s The ap- letter also informed Department, February 16, 1978, the on of- pellant right of his to appeal the decision. $325,000 fered appellant property. Appellant right time, Department appeal, exercised his present- At the the same appellant April ed a and sent a letter dated summary with statement of the required by the basis of the as Department’s offer section Freedom of Information Act 301(3) the United Relocation appellant Assistance officer. Essentially, argued that Property Acquisition Real Policies Act Exemption inapplicable 5 was because it et seq., 4651(3). §§ U.S.C. an would be unfair for individual landown- procuring er to incur the another costs offer, Appellant accept did the but appraisal already when one existed. Access Department instead sent the a letter dated government’s report greatly the April 1978, requesting further informa- aid the determining landowner in the rea- pursuant Among to the FOIA. other thereby serving sonableness the offer items, appellant sought “a copy ap- the negotiation process shorten the praisal reduce upon Department] which based [the $325,000.00 proceedings. the the need for condemnation response, offer.” the Department, Department rejected in a April appellant’s letter dated claim 1978, complied July 11, with of appellant’s ground most re- on the on quests,3 but declined apprais- to disclose the appraisal exempt from was disclosure under bat, gray myotis grises- Appellant requested eight separate 1. The scientific name items. cens, species endangered complied Department eight is an and has a six of requests Department known distribution over the central and south- in toto. The portions part, pertaining eastern of the United States. certain documents appraiser. C.F.R. 17.11 at 53 missal of the first The denied docu- longer Department ments are no issue. $30, appellant, employed at a a appraiser prior also offered cost “volu- 2. Another was compilation property appraiser question, minous of cave sales” oc- but the first curring past twenty years appar- was dismissed for reasons relevant to this ' ently apprais- appeal. had been obtained from first er. dismissing district court erred in a that the enclosed Exemption 5. Depart- we ground, suit on must of law from memorandum detailing the appellant’s merits of claim. Solicitor consider the ment’s Office its to disclose legal basis for refusal issue whether The second memorandum appraisal. intra-agency constitutes 5. The third Exemption the terms of exhausted his administrative Having issue, court declined to which the district remedies, suit in appellant filed this consider, appraisal is dis- is whether the District district court for Northern private a between coverable mean- In the July Alabama agency. agree with the and the We party time, purchase negotiations is an intra- court that the district 20, 1978, September down. On cave broke We further hold agency memorandum. instituted condemnation is not discoverable property.4 On proceedings to obtain the result, agency. with the As 1, 1978, court dis- November the district within falls we find that prejudice. missed the instant suit without need not be appraisal provisions The district court ruled that within intra-agency memorandum disclosed. meaning Exemption but refused THE DISMISSAL THE PROPRIETY OF question consider the whether THE OF SUIT litiga- discoverable would be *5 agency. that the con- tion with the Given that the Department The contends dis the pending, demnation action then its inherent properly court exercised trict the request district court held that the the powers when it dismissed in equitable action report be in that should considered pending of the FOIA suit because stant The through discovery procedures. normal Depart proceeding. The condemnation district court held: supporting on a number of cases ment relies of the simple request production .A court’s application eq of the district broad ac- appraisal report in pro [the condemnation] its stay to or dismiss powers uitable place the on the United tion will burden raising ceedings where other actions similar carry the produce report the States See, g., e. Colorado pending. issues are in that satisfying burden of the court v. District Unit River Water Conservation action that it should not be made availa- 800, 817, 1236, States, 96 424 U.S. S.Ct. ed the litigation. in that The court is of ble (“[a]s 1246, (1976) between 47 L.Ed.2d 483 the of Information opinion that Freedom though courts, . no district . . federal used, may Act not be as a substitute evolved, princi general rule has the precise matters judicial resolution of duplicative litigation”); Ker is to avoid ple may pending litigation in which arise Manufacturing v. C-O-Two Fire otest Co. the discoverability the 180, 183-84, Co., 72 342 U.S. Equipment in appropriately be resolved more should 221, (1952); 219, Landis 96 L.Ed. 200 S.Ct. pending litigation. the 248, Co., 254— American 299 U.S. v. North 163, 166, (1936). 55, L.Ed. 153 57 S.Ct. 81 appeal requires This consideration Renegotiation Department cites Board The three The is whether or issues. first issue Co., 1, Clothing 415 U.S. v. Bannercraft court in dismiss- not the district was correct (1974), 1028, for the 39 L.Ed.2d 123 upon instant the ing the FOIA suit based S.Ct. retain their that district courts pending proposition there was a condemnation fact that powers in actions. parties. equitable the we find FOIA general action between Since subsequently Department obtained Acres of 4. United States of v. 264.00 case. America Less, Land, appraisal, parties have ex- the More or in Jackson Coun- another Situated Alabama; Hoover; controversy appraisals. ty, Harry changed His State of E. Wife; Trustee; exchanged Poque, the chose J. and Alabama was not since Charle 78-1-5182-NE, rely Company, appraisal. D.N. on the new Chemical CA Discovery progress in that Alabama. Department urges rights the dismissal the Sears’ FOIA were supported by general proposition “neither increased nor decreased reason pri the FOIA was not intended to benefit of the fact that an it claims interest . Sears, litigants. greater vate NLRB Roebuck & than that shared the average Co., n.10, 1504, Sears, public.” S.Ct. member n.10, n.10, L.Ed.2d Inherent U.S. at 1513 n.10. See argument conception is the Packing Columbia Co. United States De- to be partment issues resolved FOIA action and Agriculture, 563 F.2d (1st proceeding essentially Considering are Cir. context in same, private litigation and that allow both suits to which such would ordinar- arise, proceed inevitably ily question put result in waste can succinctly: judicial Motors, general, In is a resources. See Semmes landowner entitled to dis- Co., government’s Inc. Ford cover the during Motor pendency of (2d 1970) heavily acquisition process? Cir. (“[cjourts already bur This question objective involves they analysis dened with with an must appraisal report. the nature necessity deal should . : upon called each duplicate other’s work The question of discoverability cases involving the same issues and the presented in the condemnation action is not parties,” citing Crosley Corp. same v. Hazel- rights general related public ac Corp., (3d 1941), tine F.2d cess under the agency FOIA to documents. cert. Instead, discoverability (1942)). L.Ed. 1211 specific particular well turn on the needs individual landowner.5 involving Exemp suit An appraisal is relevant in particular pro a condemnation litigants needs of are ceeding upon extent it bears question not relevant of disclosure. Rather, just compensation. issue of primary FOIA action involves a determi question of nation of disclosure of the whether document would “not this FOIA suit must be available to a be considered law other than an within the confines of agency’s decisionmaking the agency.” The *6 process. Accordingly, of hold use the indefinite article “a” we that the dis preceding dismissing trict court erred in “party” the word indicates the Exemption that FOIA upon ground is applied 5 to be action the that the same regard “without issue pending particular the condemnation any circumstances or of case. needs appellant right specific hypothetical actual landowner’s under party.” the FOIA, where he Brockway Force, asserting is in effect Department v. of Air the 518 1184, rights public the (8th apprais F.2d to obtain such 1975). 1192 n.7 Cir. This als, inherently particu is than circuit different analogous has held in an context larized as that status the landowner in the con discovery in a criminal case under the demnation proceeding. Federal He is Rules of Criminal entitled to Procedure and public vindicate his provisions rights the disclosure the “pro instant FOIA suit in with require vide two accordance the independent schemes obtaining for ments of the FOIA. judicial information through the process.” Murdock, 599, United States v. F.2d THE AN APPRAISAL INTRA- AS (5th Sears, 1977). Cir. company In the AGENCY MEMORANDUM making request the FOIA was also involved in related litigation concerning an unfair appellant Since we hold that is practice. Supreme labor Court held FOIA, to assert entitled a claim the Indeed, appellant’s argument anticipated parties that the cost of that cases is it is that both obtaining appraisal prohibitive Comment, expert appraisals. his own is be- will have See specialized may cause of Discovery Opinion Party’s the nature of his land of Adverse Pro- — very represent special spective Appraiser-Witness well the kind of need Discoverable as of private Right, (1963). which would warrant disclosure in liti- 511-12 U.Pa.L.Rev. gation. But the normal rule in condemnation upon to government is often called his contention. merits of we reach the must it appraisal projects the is a that for various asserts obtain land one, Ex by virtue of a constitutional requirement, indeed exempt from disclosure in Exemption paid. In deter- just compensation emption Analysis the be inquiries, first separate value, may deem it mining government volves two the sought con information ing necessary objective opinion whether the to seek the intra-agency memorandum. in an solely tained experts rely rather than outside the found that The district court government appraisers. Es- opinions We intra-agency document. an constituted one, present pecially in cases like the where report in agree, and hold that government parcel being sought an case, prepared by although present attributes, unique expert opin- unbiased has intra-agency memoran expert, is an outside particularly useful. It is also clear ion Exemption meaning dum within the if appraisal, an even obtained from National Endow logic of Wu v. under the plays integral an function experts, outside Humanities, 460 F.2d 1030 ment government’s decision whether 1972), cert. purchase or land seek Wu, a In 35 L.Ed.2d 5.Ct. Indeed, only price.7 at what court previ who had history, scholar of Chinese question explicitly has held to consider grant a from an ously application filed intra-agen- constitutes Humani Endowment National meaning of within the Ex- cy memorandum people, history ties a the Chinese to write Aluminum, emption 5. Martin Marietta five sought reports disclosure Administrator, General Services Ad- Inc. pro experts had evaluated his who outside ministration, (C.D.Cal. F.Supp. rejected. it be posal and recommended that request This denied disclosure Court reports holding, part, experts’ THE OF DISCOVERABILITY even “intra-agency memoranda were REPORT APPRAISAL actually professors were not though five Wu, F.2d at agency employees.” Exemption inquiry under The second in Wu was 1032. The basis of the decision question consists whether the document fact that the recognition available that “would of material special have “a need for in litigation ... law to temporary consult and recommendations 552(b)(5). con- agency.” U.S.C. ants . Id. quoting . Soucie .” sidering courts the reach of n.44, David, U.S.App.D.C. require language its have construed (D.C.Cir. 1971).6 n.44 F.2d only of materials are closure Project Wash- Action Aviation Consumer private litigation. discoverable *7 273, 279-80, burn, 535 U.S.App.D.C. 175 n.16, Sears, at 149 supra, S.Ct. 1976). (D.C.Cir. gen F.2d 107-08 See H.R.Rep.No.1497, (citing 89th at 1516 n.16 Note, of erally The Freedom Information (1966)), Cong. & Cong., 2d U.S.Code Sess. Exemption Intra-agency Act and the for 2418; Sterling Drug, p. Admin.News Memoranda, 86 Harv.L.Rev. 1063-66 237, 243-44, FTC, U.S.App.D.C. Inc. (D.C.Cir. 450 F.2d 704-05 See Merrill, exper- Open Market Committee government’s special Federal The need for 2800, 2808, -U.S.-,-, present clear case. particularly tise is in privacy. expectation perts Appellant distinguishable of 6. in had an asserts that Wu is Wu Privacy Exemption experts were in involved in that case interests are not relevant because cases, reasonably expected by unpaid other statuto- volunteers who and rather are served 552(b)(6); reports ry safeguards. confidential. 5 U.S.C. § their would remain See imply Act). expert paid (Privacy The fact that an does not U.S.C. 552a § spe- government have does not some for Neither can we see cial need his services. 4651(3). 7. See 42 U.S.C. any special to fact the ex- relevance

H39 Memoranda,” supra, for Brockway, Intra-agency supra, (1979); L.Ed.2d 587 n.22. Harv.L.Rev. at 1051 generally See F.2d at 1192 n.7. Moore’s 26.61[4.-3], ¶ Federal Practice The routine- language by “available law” ly implicit' Exemp- discoverable standard in used in 5 indicates that courts 5 is necessary many tion because there are should, instance, refer first litigant private instances where a dem- Federal Rules of Procedure and Civil light in spe- onstrate sufficient need case it in construing law order to resolve question discoverability qualified cial facts of his case overcome a of under Ex to Mink, 5. EPA emption 410 U.S. government. privilege by asserted As 85-86, 827, 835, 35 L.Ed.2d S.Ct. stated, Justice White “it is not sensible to (1973) applicable (discovery by way rules require construe the Act to disclosure of Central, Mead Data “rough analogies”); any document which be disclosed in Department Inc. v. United States the Air hypothetical pri- in which the Force, 350, 360, U.S.App.D.C. party’s compelling. vate claim is the most Marietta, Martin (D.C.Cir. 1977); Indeed, says Report Exemp- House See 4 Moore’s F.Supp. permit 5 was intended to disclosure of 26.61[4.-3], ¶ Federal govern Practice intra-agency memoranda which would ment’s primary argument in this case is ‘routinely private litigation disclosed’ constitutes a of an ,. accept and we this as the law.” expert 26(b)(4), witness which under Rule Sears, supra, n.16, at 149 Procedure, subject Federal Rules of Civil (cite omitted). at 1516 n.16 This standard is qualified to a privilege.8 Since this limited directly principle par- related to the that a privilege only can overcome on the basis ty’s asserted need for material is irrelevant need, of a showing of substantial FOIA, action under since the argues it is litigant’s rights by are determined those of meaning discoverable within the of the stat Note, The Free- public general. ute and thus not be need disclosed under dom of Information and the Exemption Act the FOIA.9 trial, specific required only provided showing called as as witness disclosure a may depend upon 35(b) upon showing exception- whether the is or is Rule or expected testify at trial since the Rules impracti- al which it is circumstances under contemplate separate procedures for the two seeking party discovery cable for the to ob- possibilities. 26(b)(4) provides: Rule subject opinions tain on the facts or same Preparation: Experts. Discovery Trial other means. opinions experts, facts known and held provisions also relies provisions otherwise under the discoverable 26(b)(3) concerning discoverability Rule (b)(1) acquired of subdivision this rule and prepared anticipation litiga- trial materials developed anticipation such, tion. As would be trial, may only be obtained as follows: “only showing upon discoverable (A) (i) party may through interrogatories A party seeking has substantial need of require any identify per- other each preparation the materials in the that he is unable without undue of his case and party expects son whom the other to call as hardship expert trial, subject witness at to state the equivalent obtain the of the materi- substantial expert expected matter on which the 26(b)(3), als other means.” Rule Federal testify, and to state the substance of the facts Rules of Civil Procedure. expected appraisal report prepar- It is clear that testify summary grounds and a litigation. anticipation During ed in the land opinion, (ii) Upon motion, each the court *8 acquisition government process, the must nec- may means, discovery by order further other essarily negotiations anticipate pur- that subject scope' to such restrictions as to fail, thereby requiring chase will condemnation. provisions, pursuant such (b)(4)(C) to subdivision Appraisals are obtained both for therefore the rule, concerning of this fees and offer, purpose support providing basis for an of and to expenses appropriate. as the deem court compensation just (B) a claim of at a sub- party may A discover facts known or sequent opinions suit. by held who has an been specially employed by retained or another government privilege 9. A need not be absolute anticipation prepara- in of or Exemption cognizable to be 5. See Fed- expected tion for trial and who is not to be are, in appraisals Appellant asserts privilege, the of the claimed support In fact, in civil routinely discoverable competitive po- that its Department asserts in enunciated United principles under the would be ad- with the landowner sition (9th F.2d Cir. Meyer, States v. premature disclosure versely by affected Meyer in 1968).10 language used in negotiation proc- appraisal during the the cases support discovery in condemnation hearings preceding the Congressional ess. Yet, weigh several factors quite broad. indicated of the FOIA concern enactment Meyer as against accepting determinative of information premature release that such reports are question of the whether the prejudice government’s position might the Meyer court discoverable. including the bargaining transactions “had acknowledged that if the landowner Open Federal of real estate. See purchase deposition been access oral allowed - -, Committee, supra, Market apprais- relevant information known to the ers, Indeed, might pro- be Report argument at 2811. the House made reports not appraisers’ should duction of the “a noted that cannot Government need.” required showing some without it is operate effectively required if always (footnote at 75 omit- Meyer, supra, 398 F.2d to disclose documents or information ted). had denied Meyer, before it com- generated it has received or or discovery opinions of the practically all process awarding a contract or pletes Thus, appraisers. facts known order, or issuing regulation. decision question decide squarely case did exempt from dis- This clause intended discoverability of the itself. information and rec- closure this other Meyer of the decision in essence without, necessary ords wherever discoverable, appraisals per se are but time, permitting indiscriminate ad- same should able to discover landowners H.R.Rep.No.1497, secrecy.” ministrative appraisers views of (1966), Cong., 89th 2d U.S.Code Sess. prepare order to for effective cross-exami- 1966, p. nation.11 Cong. & Admin.News 2427. - Merrill, importantly, Open v. Most both cases involved disclo- eral Market Committee -, -, 2800, 2810-14, requests appraisals no sure which were S.Ct. (1979). longer actively government. L.Ed.2d 587 being used such, protecting As the asserted interest Appellant

10. also relies on Tennessean News- course, is, position government’s bargaining Administration, Housing papers, v. Inc. Federal Thus, nonexistent. neither Benson nor Tennes- (6th 1972), and 464 F.2d 657 General Serv- Cir. Newspapers sean is relevant our considera- Benson, ices Administration F.2d Aluminum, Martin this case. Marietta 1969), proposition apprais- Cir. for the Administrator, Admin- Inc. General Services they als are disclosable because contain essen- istration, F.Supp. (C.D.Cal. tially opposed advisory factual as material Corp. Building Serv- Cf. Dworman General opinions. Agen- See Environmental Protection Administration, (S.D.N.Y. F.Supp. ices Mink, 73, 87-88, cy v. 410 U.S. 1979) (appraisal should be where in- disclosed 836-37, dis- L.Ed.2d 119 Benson is formation contained therein dated and too tinguishable holding because its clear is that an governmental remote for disclosure harm required regulation internal dis- administrative interests). Benson, Also, supra, closure. 415 F.2d 880. request Benson considered the under the dis- Moreover, representative Meyer is not of the covery prior rules to their amendment in 1970. state the time it was decided. of the law at Moreover, apparently Benson considered the Indeed, beyond Meyer goes any previous far Exemp- within the confines of discovery rights precedent supporting broad dealing tion 4 or with commercial financial majority Meyer, of the Prior to landowner. privileged or information which is confidential Benson, the landowner was not enti- cases held that and not 415 F.2d discovery government’s appraiser tled to of the Newspapers at 881-82. Tennessean is also showing good case, plaintiff tinguishable. absent cause In that had See, g., already copies appraisal, need. United v. 412.93 Acres e. States obtained but Land, (3d Thus, seeking appraiser. 1246-47 &.n.l2 name 1972) pre-Amendment holding (applying princi- of the court is limited Land, rules); ple States v. is factual United 900.57 Acres name of 1962); (W.D.Ark. States v. material which must be disclosed. 30 F.R.D. 512 United

1141 (“party is a compelling why not entitled as matter of course most reason Meyer controlling is not is that it was decid to an expert’s report itself nor to be in- ed to the prior discovery amendment of the Although formed of its location. the Court 26(b)(4). rules in 1970 which added Rule It , power pursuant has the to Rule is from Advisory clear the Committee notes 26(b)(4)(A)(ii) discovery beyond to order discovery on the amended rules that the limits, discovery these the such need for practices concerning expert appraisers, and aff’d, here”), compelling not by implication reports, their meant were to John (3d United States v. 1973); Cir. the new rule. See Adviso by be controlled R.-Piquette Corp., 370, (E.D. 52 F.R.D. ry Explanatory Committee’s Statement Mich.1971) (“the best course is to follow the Concerning Discovery Amendments of the ‘two-step’ procedure set forth amend- Rules, 487, generally 503-05. F.R.D. discovery’ ed rule than ‘free ad- rather the Availability and Use of Dis Bishop, by Meyer case.”). vanced covery Cases, Procedures Condemnation Zoning Planning & Domain Eminent Thus, it is clear that we must 369, 391; Note, Condemnation Indi Inst. discoverability consider govern Discovery Expert ana: Appraisal Re 26(b)(4). ment’s appraisal under Rule ports, Valparaiso 409, U.L.Rev. 448-49 provides separate Rule dis methods of (1974). Cases since the amendment of the covery experts expected testify to rules requests have considered discovery expected testify.12 at trial and those not to appraisals within confines of Rule United See Rule 26(b)(4). 26(b)(4)(A) 26(b)(4)(B). Rule States v. 145.31 Acres of and Land, (M.D.Pa.1972) expected op- F.R.D. For an to expert testify, Land, (M.D.Ga. prepared agreed Certain Acres of er his own F.R.D. and to 1955). explained Some reports government. courts their refusal exchange to with the United

permit discovery for the Land, reason that since the 2,001.10 States v. Acres F.R.D. open inspection parties, by is “land all no (N.D.Ga.1969) showing (“[a]bsent a concerning sought information is same ‘unfairness,’ hardship, or neither of which the readily from Government that is not ble to the [landowners].” United States v. availa- here, allege [landowners] [landowners] investigation prepare must make their own their own Land, (N.D.Ga. Acres of 18 F.R.D. 146 7.534.04 case”). Thus, a fair review of the 1954). See United States v. 6.82 Acres of Meyer existing precedent at time of Land, (D.N.M.1955). 18 F.R.D. 195 See also discovery prac- decision demonstrates that States, Acres of Land v. United 6.816.5 tice in condemnation was limited and not suits 1969). permit- F.2d 834 Some courts discovery extended to routine re- discovery ted limited of the facts known to the ports. government’s appraiser, discovery but withheld expert’s See, opinions. g., e. United case, expert present prepared In the who 284,392 Square Space, States Feet of Floor question expected the testify F.Supp. (E.D.N.Y.1962); United government has obtained an- since Land, States v. Certain Parcels of 15 F.R.D. appraisal. way predict other no There is (S.D.Cal.1953). Yet, 233-37 this distinc- particular will or will not whether a inapplicable tion has been held in the context upon testify prior actual called any proceedings of condemnation since facts proceeding. The Rule clear concerning property equally are obtainable particular expert for whether test by the landowner. United States Certain 26(b)(4)(A) or Land, should be treated under Rule (N.D.Cal.1959). Parcels of It 25 F.R.D. 192 26(b)(4)(B) recognized Rule whether and not been determined has one the facts “expected testify,” required which can be to be disclosed is the government’s knowledge concerning “may testify.” Wright compara- whether he See 8 C. easily Miller, ble land sales which obtaina- A. Federal and Procedure: Practice , Knighton ble landowner. generally See United States v. v. Villi- Civil an & (D.Md.1965); Friedenthal, Discovery 2030. See Land, (S.D. 48.49 Acres of 32 F.R.D. Compagnia, e 39 F.R.D. Fassio however, case, present Cal. In the Use appel- offered make available to Information, Party’s Expert of An Adverse comparable lant at a $30 cost of (by (1962) controlling Stan.L.Rev. 482-88 involving properties. land sales cave In anoth- timing discovery experts until after se- are permitting discovery, er case limited which was guard against lected rules unfairness Meyer, permitted decided after covery a court by forcing prepare case). each its side to own appraisal only landown- after the of. *10 right to discover as a matter of not entitled right to as of only entitled side is posing witness, report. appraisal government’s identity of the discover the testimony, expected of his subject matter respect appellant’s to Thus with of the facts and the substance suit, it cannot in this claim asserted FOIA testimony together with expected of the dis appraisal said that Rule opinion. each summary meaning within coverable purpose of this primary 26(b)(4)(A)(i). The shown, the above have cases cited 5. As the opposing permit the is to required disclosure privilege qualified enjoys a government cross-exami- an effective prepare party appraisal re Miller, protecting the contents A. Federal C.'Wright & nation. 8 Civil, proceedings. More Fur- 2030. port Procedure: Practice and discovery a matter of possible over, as discovery is not the cases demonstrate ther on motion is most proceed appraisal must right, but of a unclear 26(b)(4)(A)(ii). exchange ap It through accomplished court. Rule often required to obtain of need is opposing part what standard praisal reports between Graham, Discovery discovery. See further ies,4 appellant’s with position inconsistent 26(b)(4) of the Fed- Rule Experts Under access. See right to unilateral asserted One, An Part Rules of Civil Procedure: Land, eral 2,001.10 Acres United States 895, 921- Study, 1976 U.I11.L.F. Analytical This con (N.D.Ga.1969). F.R.D. order to has held that 31. One case expert mutuality regard cern with report under Rule obtain recognized in the general evidence need must be 26(b)(4)(A)(ii), compelling Explanatory State Advisory Committee’s Land, supra, 145.31Acres demonstrated. stated: ment. The Committee v. Beech Breedlove 54 F.R.D. at discovery judicial restrictions Past (N.D. Corp., 57 F.R.D. Aircraft as expert, particularly adversary’s of an product Miss.1972) (reports experts fear that one reflect the opinions, to his under Rule not discoverable liability case from the other’s unduly side will benefit to show 26(b)(4)(A)(i) plaintiffs failed estab- procedure preparation. better mak- circumstances “unique exceptional (b)(4)(A) holds lished in subsection require production ing equitable it limited Discovery is risk to a minimum. Resnick, 51 reports”); Wilson v. expert witnesses, may be obtained trial (doctor’s re- (E.D.Pa.1970) F.R.D. parties when know only at a time need not malpractice action port in medical A witnesses will be. their who interrogato- be disclosed where answer prepare matter practical must as a 26(b)(4)(A)(i) ad- under Rule ries submitted time, for case in advance of his own plaintiff of the nature equately informed his case out hardly hope to build he can expert’s testimony). and substance of experts. opponent’s Telephone v. International But see Herbst Committee, 48 F.R.D. at Advisory (D.Conn. Corp., 65 F.R.D. 528 Telegraph & qualified this It is our belief 1975); Peripheral EDP Devices In re IBM recognized in the instant privilege should be (N.D.Cal. Litigation, 77 F.R.D. 39 Antitrust disclosure premature action to avoid expected testify, 1977). experts For report in or- government’s only can the rule is clear that bargaining government’s showing “exceptional protect der to place upon a take during the ne- landowner 26(b)(4)(B).13 position with the Rule In circumstances.” Open Mar- Federal process. See sum, req- gotiation uncertainty some over despite at-, Committee, supra,-U.S. showing under Rule ket required uisite 2810-12. that a landowner is 26(b)(4)(A)(ii), it is clear 26(b)(4)(B) in United was denied Rule party seeking under Rule 13. A disclosure Corp., R. Piquette 52 F.R.D. heavy 26(b)(4)(B) v. John burden. Barkwell States carries a (D.Alas (D.Mich.1971). Co., Ruger F.R.D. v. Sturm Discovery ka of an

H43 alternative, praisal of the land independent ex- *11 argues exempt that the from pert says in bat cave valuation. Hoover Exemption disclosure under virtue of personal that he doesn’t have pur- funds to the recognized privilege protect executive such appraisal, yet chase another the De- ing decisionmaking process. an agency’s partment seeing independent resists his the Mink, 87-89, supra, 410 at at U.S. S.Ct. appraisal purchased purported the pur- Department 836-37. The contends that the pose offering price. Although a fair appraisal report prepared in was order to equitable appealing, such considerations are assist it in deciding acquire whether to precedent. case existing this is controlled property through purchase or condemna right position regarding Hoover’s to the select, tion. required The to following appraisal report the termination organize, present the data from which adequately negotiating process opinion his ultimate of value was based. majori- supported by precedent. such The report, already as we have recognized, my misapplied prece- ty, opinion, has was used Department in its decision- dent, although correctly it has determined making process. acquisition process Hoover was not to the entitled continuing, still the appraisal so remains during pendency negotiations. vital Department’s litigation deci My disagreement panel majority with such, appraisals sions. As been have held to logical I two perceive stems from what as fall within the confines of the executive oversights in its treatment of the relevant Marietta, privilege. Martin panel majority distinguish law. The fails to F.Supp. at We 949-50. hold therefore that exemption between the effect on 5 of ongo- appraisal report privileged is also under purchase ing negotiations, in which Exemption by5 virtue of the executive privilege protecting government’s keep has deci reason secret its process. sionmaking appraisal report, on exemp- and the effect proceedings, tion 5 of condemnation Accordingly, the decision of the district which it no reason to has further withhold court is appraisal prepared before condemnation AFFIRMED. fails, began. majority opinion I also believe, apply plain language of Rule VANCE, Judge, Circuit dissenting in 26(b)(3) (4)& of the Federal Rules of Civil part: majority Procedure that finds to be I agree majority’s holding contemplated by exemption 5. the district court erred in dismissing the purpose of the FOIA is to mandate ground action on the the same governmental request issue was disclosure unless the pending case. I part dissent panel specifically exempted. from ed information is opinion Merrill,-U.S. -,-, that holds that the v. FOMC was not routinely available Mr. 2808, Hoover 2800, (1979); S.Ct. 61 L.Ed.2d 587 discovery under rules and consequently was 612, NLRB, Gorp. Kent F.2d excepted from exemption disclosure under Cir.), cert. 97 S.Ct. U.S. (FOIA). of the Freedom of Information Act (1976). exemp 50 L.Ed.2d 287 The nine tions Act construed narrowly. under the are There is at superficial righteous- least a Rose, Department of the Air Force v. ness in Department Hoover’s cause. The 352, 361, L.Ed.2d 11 taking Interior is his bat cave whether or David, (1976); U.S.App.D.C. Soucie not he wishes to it give up. govern- His (D.C.Cir.1971). F.2d constitutionally ment obligated pay guard against expanding We one just compensation. him should To evaluate this $18,- unique exemptions, panel majority property as used does, public funds, expense 000 in provided by Hoover at the a citizen’s access taxpayers, purchase ap- his fellow information. (“the only only applies discovery if both of its S.Ct. at 835 rules can

Exemption requested applied by way are be under requirements satisfied: intra-agency rough analogies”). implies inter- Merrill document must be an may it some material discover agency memorandum and must not be able, FOIA, Merrill, and thus disclosable under routinely discoverable. FOMC - 2808; though may it -, even somewhat restricted see 99 S.Ct. 73, 85, Federal' Rules of Mink, EPA v. 410 U.S. panel majority Civil Procedure. The makes appraisal report An 35 L.Ed.2d 119 argument the further requirements during pur meet both *12 report report expert “constitutes a of an Merrill, negotiations. g.,E. chase - FOMC 26(b)(4) which under Rule witness . -, at For at 2812. U.S. subject qualified privilege,” to a or mate apprais that the present I assume purposes prepared rial for trial that under subsection intra-agency al memorandum.1 was an See (b)(3) privileged, and therefore “is not Wu for Humani v. National Endowment routinely assuming discoverable.” Even ties, 1972), (4) 26(b)(3) that Rule & under the Federal cert. S.Ct. Rules of Civil Procedure renders some trial believe, however, (1973). I that L.Ed.2d 586 opinion expert routinely materials and “not appraisal report does not meet the ex however, discoverable,” apprais the instant emption’s requirement involving second plain al does not come within the discoverability, consequently routine and language procedural of that rule. FOIA, must be disclosed under the now purchase negotiations that have ended and footnote, panel majority asserts in a begun. condemnation has authority, without case is clear “[i]t appraisal report prepared was panel majority states or mentions litigation.” anticipation of It reaches that why appraisal report three reasons questionable “[ajpprais- conclusion because routinely (1) not discoverable: it involves als are . . . obtained both for the material; expert’s knowledge and trial purpose offer, providing a basis for an (2) it privilege; falls within a commercial just support compensation and to a claim (3) privilege. it comes executive under subsequent at a condemnation suit.” See not Our decision Wu did consider the Nothing note 8 ante. in the record indi- grounds first two for nondisclosure and so however, cates, dispositive not in those areas. I will expected purchase Interior a breakdown of panel’s discuss the reasons seriatim. negotiations and institution of condemna- proceedings, expected proceed- tion I. ings just compensation by to determine trial EXPERT AND TRIAL OPINIONS commission, rather than a see Fed.R. MATERIALS 71A(h), specially Civ.P. and “retained or The panel majority any employed” contends that expert appraiser “in antici- qualified privilege against discovery pation trial,” or re preparation or striction on discovery 26(b)(4)(B). under the Federal see majority Fed.R.Civ.P. Rules of Civil Procedure renders material then states prepared who routinely “not exemp discoverable” under appraisal expected instant was not It seems to testify 5. me that the contention proceedings, see condemnation Supreme ante, contradicts the places Court’s caution note 12 Merrill “it is not clear that 26(b)(4)(B) requires “excep- under Rule was incorporate every privi intended to tional circumstances” of an lege discovery.” known to civil expert’s opinions. FOMC v. requirement That of ex- Merrill,-U.S. at-, at ceptional apprais- 2809. circumstances renders the Mink, also EPA v. routinely al not discoverable therefore appraisal report exemption presumes does not come within 5 infra. That 4. See note

H45 Foundation, v. Universal Restora- exemption This Inc. nondisclosable dens however, tion, Inc., reasoning, eviscerates the chain of F.R.D. (S.D.N.Y. requirement 1971).3 “not discoverable” permits because it exemption experts: four creates classes of That rule any intra-agency

to withhold expects (1) Experts to use trial property simply electing owner from a acquire develop opin- or facts who or [and testify have anticipation litigation], ions in [Rule proceeding. event of 26(b)(4)(A).] . . . logical unsup- this break in chain is (2) Experts retained or specially em- ported assertion that ployed anticipation of litigation or anticipation prepared preparation for trial but expected trial. be used at trial. 26(b)(4)(B).] . [Rule 26(b)(4) only applies Rule to “facts known (3) Experts informally prep- consulted in by experts held . . ac- . aration for trial but not retained. quired developed in anticipation litiga- (4) Experts whose information was not added.) (Emphasis tion or trial.” Rule *13 acquired in preparation for . trial. 26(b)(3) “pre- also is restricted to materials pared anticipation litigation in of or for Miller, Wright 8 C. & A. Federal Practice trial,” of ensuing and discussion subsec- 2029, and Procedure at 250 (1970). § The (b)(4) applies tion equally to subsection opinions experts facts and of categories in (b)(3).2 recognized Multitudes of cases have (1) (2) are and not routinely discoverable, 26(b)(4)’s that Rule limitation on otherwise reasoning under the of panel majority. discovery only applies expert knowl- free opinions The experts facts and of catego- in edge prepared anticipation litigation” “in (4), however, ry are “freely discoverable as expert knowledge general in with any ordinary 2029, witness.” Id. § acquired developed such as or before 251. Professor Charles Wright has ob- litigation expected. was v. Barkwell Sturm category (4) served experts about Co., 444, (D.Alaska 79 Ruger F.R.D. 446 introductory language Rule Since [the McAllister, 1978); Harasimowicz v. 78 only to “ac- 26(b)(4)] speaks information 319, (E.D.Pa.1978); 320 Congrove F.R.D. v. developed anticipation in of liti- quired or Ry., 503, (W.D. Louis-S.F. 11 504 St. F.R.D. dis- for trial” it does not limit gation or Mo.1978); In Peripheral re IBM EDP De- expert may that an covery information 39, Litigation, vices Antitrust 11 F.R.D. 40- developed acquired was not have that (N.D.Cal.1977); Norfin, Inc. IBM That kind of information in this fashion. 529, (D.Colo.1977); Corp., F.R.D. through the routine may be obtained Corp. Hackett, 326, Grinnell 70 F.R.D. covery process. (D.R.I.1976); 331—32 In re Brown Co. Secu- 2033, Rule adopting at 257-58. Litigation, (E.D.La. Id. rities 54 F.R.D. advisory committee said 1972); Co., 26(b)(3) (4), the Perry v. & Darley W.S. & (D.Wis.1971); F.R.D. Duke Gar- Union, g., (b)(3) Seafarers lnt’1 AFL-CIO v. sure. E. limits “of docu- Subsection Baldovin, (5th Cir.), tangible things vacated ments and discover- F.2d otherwise 1975). prepared anticipation (5th grounds, . . and able . 511 F.2d 1161 Cir. on other ” litigation showing ap- proof or for of substan- trial to a the burden of That includes (Emphasis prepared anticipation tial need and no praisal alternative access. added.) appraisal report The trial mate- agency is not litigation, shown. has not prepared anticipation for the rial majority departs panel from fifth circuit The knowledge expert same reasons that it is not proof precedent the burden of issue anticipation litigation. prepared in only party seeking disclo- that “[a] mentions heavy 26(b)(4)(B) Rule carries a sure under proof that a has the burden of The burden,” note 13 ante. see exempt disclo- withheld memorandum is from Tennessean g., Newspapers, the subdivision 5. E. Inc. v. should be noted that

It FHA, (6th 1972); not address itself does F.2d Cir. acquired Benson, whose information was not (9th Cir. GSA v. for trial but rather because preparation also Meyer, United States v. respect he was an-actor or viewer with (9th 1968); Cir. F.2d United States part that are or occurrences transactions 1967). I F.2d McKay, 372 subject matter of lawsuit. challenged appraisal conclude that re- treated as an expert should be Such discoverable, routinely not- port is Rule 26 ordinary witness. withstanding, and should be disclosed. Advisory Explanatory Committee’s State- Concerning of the Dis-

ment Amendments II. Rules, 487; covery 48 F.R.D. 503-05 appraiser facts held COMMERCIAL PRIVILEGE ordinary as an witness are thus Court in Merrill Supreme ruled discoverable. privi- “Exemption incorporates qualified majority opinion concludes lege for confidential commercial informa- category (2) is a or else a expert, tion infor- ... extent that this category (1) expert, exempt and thus from it- mation the Government generated clearly FOIA disclosure. I believe that he awarding process leading up self in the category (4) is a one whose informa- expert, - Merrill, FOMC v. contract.” was not acquired anticipation -, at 2812.5 The court said trial, because the re- privilege behind a “theory confiden- port was made justify nego- an offer and generated tial commercial information price purchase negotiations tiated before process awarding a contract began. prepar- even *14 . be Government will -eye ed with an to imminent condemnation disadvantage placed competitive a at and trial.4 Cases decided before the 1970 may that the of the contract consummation 26(b), amendment to Rule which limited endangered” be if the information is categories of knowledge pending, closed while the contract and (1) (2), and are experts relevant to in cate- in- protecting that “the rationale for such (4). The gory involving appraisal cases re- expires as formation soon as the contract is ports similar gen- have requested one the offer at awarded or withdrawn.” Id. erally appraisals concluded that were -, at 2812. 99 S.Ct. prepared not anticipation litigation, transactions, for ordinary agree panel but I majority business and they were routinely confidentiality privilege agency discoverable under shields an 26 and excepted exemption Rule under pur- from disclosure while Dunn, 468, McDougall generated 4. See v. 468 F.2d 473 to information the Federal 1972) (4th (under (b)(3)); Merrill,-U.S. Cir. subsection Government itself.” FOMC 367, Organ Plovidba, -, Thomas 54 Co. v. F.R.D. at 99 S.Ct. at 2812. I assume that (N.D.Ill.1972) (same); g., Virginia 370-71 e. appraiser’s report, paid Shipbuilding Dry Elec. & Power Co. v. Sun & prepared response and to its the Interior Co., 397, (E.D.Va.1975). Dock 68 F.R.D. 408 commissioning, exemption falls under 5 exemption category not under it does If Exemption applies 4 under the FOIA exemption category, 4 I be come within “trade secrets and commercial or financial in exempt it ei lieve that is not from disclosure privi person formation obtained from a pur privileged ther it is not because now that leged or confidential .” 5 U.S.C. . . . ended, negotiations g., chase have e. Shermco 552(b)(4). Exemption apply appears to 306, Industries, Secretary, F.Supp. Inc. v. govern supplied commercial information (N.D.Tex.1978), is not 323-24 or because it agencies requirements, regulatory ment under ceased, negotiation e. confidential now that has g., FPC, 31, e. Continental Oil Co. v. Benson, 881; g., Martin GSA v. F.2d at 1975), 35-36 cert. Aluminum, Administrator, 444 Marietta Inc. v. 971, (1976), 96 S.Ct. 48 L.Ed.2d 794 (C.D.Cal.1977). F.Supp. exemption necessarily whereas 5 “is confined agency opinion in order tion must be disclosed negotiations pending chase are while example, protect government’s negotiating posi- For could be withheld. court Merrill, expires, tion. That rationale as in ruled that records wants . [Wu] “[t]he when negotiations facts, fail and are terminated. opinions, protect- are and are thus I do not believe “that the will (5).” Supreme Government by exemption ed Id. Court placed competitive disadvantage at subsequent recognized decisions Wu have the [purchase] the consummation of privilege exemption the executive at-, endangered.” Id. 99 S.Ct. privilege but have to articulate that refused confidentiality privilege at 2812. The no overly-expansive Wu manner to in- longer justifies ap- nondisclosure opinion. any agency clude FOMC v. praisal report negotiations. made for Merrill,-U.S. at-, 99 S.Ct. (no exemption agency policy automatic

III. involving governmental open directives Sears, sales); market NLRB v. Roebuck & EXECUTIVE PRIVILEGE Co., (no ex- The Supreme exemp Court has held that emption agency opinion recommending privilege” includes “executive against complaint). labor court in Mer-. “ over making processes govern ‘decision rill overly reading found broad a of execu- ” Sears, agencies.’ ment NLRB v. Roebuck tive privilege allowing nondisclosure of Co., 132, 150, & 421 U.S. agency public material furthered the (1975) (quoting L.Ed.2d 29 Tennessean interest, agency which much like docu- .Newspapers, FHA, Inc. v. 464 F.2d at opinions. ments in Wu that involve NLRB, Accord, Corp. Kent 530 F.2d at interpretation Such an 618. That privilege executive “focus[es] appear would to allow an to with- ‘reflecting advisory documents opinions, memoranda, any hold even recommendations and deliberations com contain final and statements of prising part process govern policy, the agency whenever concluded policies mental decisions and are formulat ” that disclosure . . would not be in Sears, Co., ed.’ NLRB & Roebuck “public interest.” This would leave U.S. at 95 S.Ct. at (quoting Carl little, anything, requirement if to FOIA’s Zeiss, Zeiss Stiftung Jena, v. V.E.B. Carl prompt disclosure, run aff’d, F.R.D. 324 (D.D.C.1964), 128 U.S. Congress’ rejection counter repeated App.D.C. 10, 384 (D.C.Cir.), F.2d 979 cert. *15 any interpretation of FOIA which would 389 U.S. 88 S.Ct. allow an agency withhold information (1967)). Accord, L.Ed.2d 361 Mink, EPA v. on the vague “public basis of some inter- at S.Ct. 827. The executive est” standard. privilege exemption my view, under does not apply every governmental deci Merrill,-U.S. at-, FOMC v. 99 S.Ct. sion, inconsequential minor, however courts, at 2809. scholarly Other com- but to decisionmaking policies that involves mentary, rejected fact-opinion have major discretionary actions. The instant upon g., tinction relied Wu. E. United purchase decision about of 264 acres includ 72-73; States v. Meyer, F.2d at C. ing a bat simply cave sort of Miller, Wright supra & A. at 247-49 policy protected decision executive (citing cases). The privilege executive privilege. not, my opinion, should be extended be- yond major policy decisions and decision- Our compel decision Wu does not making to decision value about the of a infinitely reading broad privi- executive bat cave. lege. Wu explicitly rely did not on the privilege, executive panel but instead on a The majority concluded “this “ ‘purely factual’ qualified test.” Wu National privilege should be [executive] Humanities, Endowment recognized F.2d at in the instant action . purely 1033. It protect government’s held factual informa- bargaining po- not inhibit can- during nego- the landowner sition with added.) decisionmaking (Emphasis during agency process.” tiation did advice however, longer bargain- no government, minor of the decision- because of the nature Hoover; it is ing negotiating particularly with Mr. in view of making involved his assent. condemning property ap- his without independent the outside source majority opinion exempt continues now praiser. is not “[t]he continuing, so the acquisition process still be disclosed. from disclosure and should Department’s appraisal remains vital to the added.) (Emphasis decisions.” negotiation process has ended.

my view the made, and decision has been process underway. is now

the condemnation ex- privilege if the

Even executive

emption applies to the cave, the bat purchase

Interior’s decision expired privilege

I would hold that purchase ceased. I negotiations when the RELATIONS NATIONAL LABOR major pre- recognize that memoranda from BOARD, Petitioner, privi- decisional deliberations remain leged after the is made if “disclo-. decision free flow any sure at time could inhibit the ANTONIO PORTLAND CEMENT SAN agency,” of advice . . within the COMPANY, Respondent. purpose privilege because the of that “is to receive the insure that a decisionmaker will No. 79-2576 unimpeded advice associates.” Summary Calendar.* Merrill,-U.S. , FOMC v. - — Appeals, States Court United privilege prede- at 2812. The executive Fifth Circuit. deliberations, privilege cisional like the information, expire commercial should Feb. when the decision if disclosure is made impede would not candid the free flow of 8, 1980. Rehearing April Denied advice within the if the infor- agency and major policy mation does not involve a deci- Mink, EPA v.

sion. See (material exempt

S.Ct. at 836 under the decisionmaking privilege only

executive if

“production of document contested ‘injurious

would be consultative func- privilege

tions protects’ ”) (quoting

nondisclosure Kaiser *16 Corp.

Aluminum & Chemical v. United

States, 939, 946, F.Supp. Ct.Cl. Reed,

(1958) (per J.)). also NLRB

Sears, Co., Roebuck & (memoranda advice appeals regarding

branch and office wheth-

er to file a labor fall under ex- complaint

emption complaint 5 if was filed and being litigated

still disclosed if but must be complaint filed). Disclosure of

* 34(a); 5th R. 18. Fed.R.App.P.