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Rutherford v. United States

August 14, 2008

STEPHEN PHILLIP RUTHERFORD, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND ORDERING DELIVERY OF REDACTED PAPERS

[Doc. No. 37]

On July 24, 2008, Plaintiff Phillip Rutherford ("Plaintiff") filed a motion to compel an appraisal report and related materials (together, the "appraisal"). On August 4, 2008, Defendant United States of America ("Defendant") filed a response in opposition to Plaintiff's motion. On August 7, 2008, Plaintiff filed a reply. The Court has taken the motion under submission on the papers pursuant to Local Rule 7.1(d)(1) and has carefully considered the papers and all accompanying materials.

BACKGROUND

This cases arises out of alleged damages suffered by Plaintiff by the Pines Fire. Anderson -- Brabant, Inc. was retained by the Drug Enforcement Administration (the "DEA") to perform an appraisal of the diminution in value sustained to Plaintiff's real property. Plaintiff now seeks discovery of the appraisal.

Plaintiff claims that Defendant has waived its right to assert any privileges or objections based on the following three incidents: (1) Defendant allegedly voluntarily disclosed information from the appraisal; (2) Defendant allegedly failed to properly respond to a request for production of documents propounded by Plaintiff; and (3) Defendant allegedly failed to properly move to quash a subpoena served by Plaintiff on Anderson -- Brabant, Inc. or move for a protective order.

With regard to the alleged voluntary disclosure, Plaintiff claims that Defendant disclosed from the appraisal the specific amount of damages allegedly suffered by Plaintiff as a result of the diminution of value to the real property caused by the Pines Fire. Plaintiff believes that this disclosure was a waiver of all relevant privileges. With regard to the alleged failure to properly respond to a request for production of documents, Plaintiff states that Defendant failed to serve timely responses on the deadline of April 9, 2008 or the agreed extensions of April 23, 2008 and June 6, 2008. Plaintiff believes that the failure to timely respond was a waiver to all objections. With regard to the subpoena served on Anderson -- Brabant, Inc. requesting the appraisal file, Plaintiff states that Defendant served on Plaintiff and Anderson -- Brabant, Inc. a notice of objections but never filed a motion to quash the subpoena or a motion for a protective order. Plaintiff believes that the failure to object in either of these ways is a waiver of all grounds for objection, including privilege.

Defendant opposes the motion and claims the appraisal is not discoverable because the appraisal is, (1) attorney work product as the appraisal of a consultant to the DEA; (2) attorney-client material as the DEA sent the consultant's appraisal to its counsel, the US Attorney; (3) protected under Federal Rule of Evidence 408 because it was not disclosed, but only discussed in settlement negotiations; (4) protected by the deliberative process privilege as pre-decisional materials; and (5) protected by the litigation preparation or trial preparation privilege of Federal Rule of Civil Procedure 26(b)(3)(A)(ii) and 26(b)(3)(B).

Defendant explains that the appraisal was created by a consultant hired by counsel for the DEA to provide a report for internal DEA use in evaluating Plaintiff's administrative claim. Defendant further states it was used by the counsel for the DEA as a part of the pre-decisional materials leading to the adjudication of Plaintiff's administrative claim and DEA's negotiating position with Plaintiff regarding a potential settlement. The appraisal was provided to the US Attorney by the DEA and never disclosed to anyone outside of the DEA or the Department of Justice.

Defendant states that it has, since the Early Neutral Evaluation, asserted the protected nature of the appraisal and has never withdrawn the claim that it is privileged. With regard to Plaintiff's requests for production of documents, Defendant states it verbally and in writing objected. Defendant explains that on June 27, 2008, it provided Plaintiff with a written response to several requests and on June 28, 2008, it provided Plaintiff with a privilege log. It is Defendant's position that although the delivery of the privilege log took longer than anticipated, there was no established schedule for completion of the agreed-upon plan.

In response to Plaintiff's claim that Defendant failed to bring a motion to quash or motion for protective order, Defendant states that Rule 45 does not require it to do so. Defendant also disagrees with Plaintiff's quotation of the of the appraisal's valuation in his publicly filed motion. Finally, Defendant claims that Plaintiff's motion is untimely and should be summarily denied.

LEGAL AUTHORITY AND DISCUSSION

The attorney work product doctrine protects documents prepared in anticipation of litigation or for trial by another party or its representative. (Fed. R. Civ. P. 26(b)(3)(A).) This representative can be the attorney, consultant, surety, indemnitor, insurer, or agent. (Id.)

Through requests for production of documents served on Defendant and a third party subpoena served on Anderson -- Brabant, Inc., Plaintiff seeks the appraisal. The appraisal was prepared by the DEA's consultant, Anderson -- Brabant, Inc. for the DEA's counsel handling Plaintiff's administrative claim. The appraisal is, therefore, protected attorney work product. The only ...


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