The majority's resolution of this original jurisdiction proceeding is simply
wrong on all counts. First, the majority incorrectly concluded that it was not necessary to
address federal law to resolve the issues raised in this case. Second, the majority erroneously
determined that pre-condemnation appraisal reports prepared by non-testifying expert
witnesses in condemnation proceedings related to a federally assisted highway project may
not be obtained by the condemnee. Third, the majority failed to recognize that appraisal
reports for properties not owned by the condemnee, but that are also being acquired by a state
agency in relation to a federally assisted project, are confidential. Fourth, the majority's basis
for allowing discovery of appraisal reports for properties not owned by the condemnee under
the rules of civil procedure is legally unsound. Finally, the new syllabus point adopted in the
majority opinion imposes an unnecessary burden on trial courts. I will address each of these
defects in turn.
In order to accomplish the purposes set forth in section two of this article and to satisfy the requirements of adequately compensating displaced persons under such federal acts, each acquiring agency is hereby required and is hereby granted plenary power and authority to adopt rules and regulations, which shall have the force and effect of law, to implement the provisions of such federal acts and make applicable to such acquiring agency the policies and requirements of such federal acts which are pertinent to the mission and functions of such acquiring agency, including, without in any way limiting the generality of the foregoing, the carrying out of all procedures and the making of all financial assistance payments, relocation assistance payments, replacement housing payments, loans and expense reimbursement payments required by such federal acts, subject only to any restrictions or limitations imposed by the constitution of the state of West Virginia. . . .
(Emphasis added). See also Huntington Urban Renewal Auth. v. Commercial Adjunct Co.,
161 W. Va. 360, 367, 242 S.E.2d 562, 566 (1978) (“State agencies receiving federal financial
assistance must give federal authorities satisfactory assurances that in acquiring real property
they will be guided, to the greatest extent practicable under State law, by this policy. 42
U.S.C. 4655 (1971). To carry out the federal mandate, the Legislature enacted W. Va. Code,
54-3-3 [1972] which makes the federal real property acquisition policies applicable to state
agencies and gives state agencies 'plenary power and authority to adopt rules and regulations,
which shall have the force and effect of law, to implement the provisions of . . . [the] federal
act . . .'”).
Thus, the foregoing demonstrates that, contrary to the majority's conclusion,
consideration of federal law is necessary to resolve the issues raised in connection with this
petition for writ of prohibition.
Section 4651(2) requires WMATA to secure a
pre-condemnation appraisal. The introductory paragraph of
§ 4651 explains that the purpose of the provision is “to
encourage and expedite the acquisition of real property by
agreements with owners, to avoid litigation and relieve
congestion in the courts[.]” 42 U.S.C. § 4651 (emphasis added).
Section 4651(3) requires the Government to make an offer to
acquire the property and the clearly stated purpose of this
provision is the avoidance of litigation. Id.; see also 27
Am. Jur. 2d Eminent Domain § 441 (2004) (“The purpose of a
statutory requirement that a public body engage in bona fide
negotiations with the owner prior to condemning is to encourage
public entities to acquire property without litigation, thereby
saving both the public and the condemnee the expense and delay
of a court action, while permitting the landowner to receive just
compensation.”). Therefore, this Court concludes, as a matter
of law, that the offer and the underlying appraisal cannot be
considered “documents and tangible things . . . prepared in
anticipation of litigation [.]” Fed. R. Civ. P. 26(b)(3). To
conclude otherwise would thwart the intent of Congress in its
establishment of a mandatory process specifically designed to
avoid litigation. A process designed to avoid litigation can
hardly be said to be one in anticipation of litigation.
Because Rules 26(b)(3) and 26(b)(4)(B) do not protect
this discoverable material, the governing rule is Rule 26(b)(1).
This liberal rule permits discovery of “any matter, not
privileged, that is relevant to the claim or defense of any party.”
Fed. R. Civ. P. 26(b)(1). Perhaps most important, this Rule also
states that “[r]elevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id; see also United States v.
Block 44 Lots 3, 6, 177 F.R.D. 687, 691 (M.D. Fla.1997)
(concluding, in a case involving similar facts, that “general
discovery principles, 42 U.S.C. § 4651 and case law construing
it require that the defendant be permitted to discover this
information.”) Thus, the pre-condemnation appraisal is
discoverable, as is information gleaned from discovery aimed at
the appraiser's methods and conclusions.
One Parcel of Land in Prince George's County at 380-81. (See footnote 6) Notably, W. Va. Code § 54-3-2
(1972) (Repl. Vol. 2000), expresses the same purpose of avoiding litigation as does the
language of the introductory paragraph of 42 U.S.C. § 4651. In this regard, W. Va. Code §
54-3-2 states:
[t]he purposes of this article are (1) to require the
establishment of a uniform policy for the fair and equitable
treatment by state agencies of persons displaced from property
in order that such persons shall not suffer disproportionate
injuries as a result of programs designed for the benefit of the
public as a whole and (2) to encourage and expedite the
acquisition of real property or any interest therein by
agreements with persons so as to avoid litigation and relieve
congestion in the courts, to assure consistent treatment of
persons and promote public confidence in the land acquisition
practices of any state agency.
Applying the analysis of the One Parcel of Land in Prince George's County court to the instant matter, as a matter of law the pre-condemnation appraisals obtained by
the DOH in compliance with the Federal Act are not documents prepared in anticipation of
litigation. Like the federal rules, West Virginia Rules of Civil Procedure 26(b)(3) and
26(b)(4)(B) protect information created “in anticipation of litigation.” (See footnote 7) Because the pre-condemnation appraisal reports were not created in anticipation of litigation, they are subject
to discovery under Rule 26(b)(1), regardless of whether the preparing expert will testify in
the condemnation proceedings. Accordingly, the majority erred in granting a writ of
prohibition to prohibit discovery of pre-condemnation appraisal reports pertaining to Fort
Pleasant's own property. See United States v. Block 44, 177 F.R.D. 692 (M.D. FL 1997)
(concluding that magistrate judge did not err in granting motion to compel discovery of
government's pre-condemnation valuation of property).
There is nothing that would preclude such evidence [the pre- condemnation appraisal report], but in order to avoid prejudice, the Court concludes that the appropriate course is to allow the appraiser to be subpoenaed to testify by the Defendants and to allow his appraisal to be admitted, but to exclude any reference to the appraiser's original employer as well as any evidence of the § 4651 determination. Support for this conclusion is found in two earlier decisions of this Court.
In WMATA v. One Parcel of Land in Prince George's
County, Maryland, et. al., 424 F. Supp. 218 (D. Md. 1976), this
Court determined that a government appraiser could be called to
the stand during trial, but it also cautioned that counsel was not
permitted to inquire about the appraiser's employer. Id. at 219.
The Court reiterated this holding two years later in WMATA v.
One Parcel of Land in Prince George's County, Maryland, 450
F. Supp. 122 (D. Md. 1978), stating that “[a]t trial defendants
may call [the government appraiser] but may not bring to the
jury's attention the fact that he was originally employed by the
Government.” Id. at 124. Although WMATA did not raise the
current objections in the earlier cases, that fact does not disturb
the soundness of the prior rulings of this Court.
Therefore, this Court will exercise its discretion and
permit the admission of the report and the testimony of the
appraiser, but exclude reference to the appraiser's relationship
to the government . . . .
Id. (See footnote 8)
Confidentiality of records. Records maintained by an Agency
in accordance with this part are confidential regarding their use
as public information, unless applicable law provides otherwise.
49 C.F.R. § 24.9(b). (See footnote 11) As the DOH correctly notes, only one court has addressed this
regulation. In City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 63 P.3d 1147 (2003), a
local newspaper sought to obtain, inter alia, copies of appraisal documents for real property
to be acquired from various landowners in furtherance of a public works project in the city
of Reno. The project was “classified as a federal highway project”; therefore, the city was
required to comply with the Federal Act. City of Reno at 57, 63 P.3d at 1148. Relying on
the plain meaning of 49 C.F.R. § 24.9(b), the Supreme Court of Nevada concluded that “this
regulation plainly makes records involved in the acquisition of real property for federally
funded programs confidential, and not public information, unless there is a law providing
that they are not confidential.” 119 Nev. at 60, 63 P.3d at 1150. (Emphasis added). The
newspaper unsuccessfully argued that “the acquisition and relocation records are public
records and are required to be open for inspection under the Nevada Public Records Act.” (See footnote 12) 119 Nev. at 57-58, 63 P.3d at 1148. Rejecting this argument, the Supreme Court of Nevada
observed that
[t]he Nevada Public Records Act merely provides that public records that are not “declared by law to be confidential,” must be open for inspection. It does not declare that records regarding acquisition of property are public. Acquisition records have been declared confidential under 49 C.F.R. § 24.9(b), which was adopted by statute into Nevada law. Therefore, these records fit within the exemption provided in the Nevada Public Records Act. The Nevada Public Records Act is not “applicable law” changing the confidential nature of these records.
Id. at 60-61, 63 P.3d at 1148 (emphasis added). I agree with the Supreme Court of Nevada
that appraisal reports pertaining to property not owned by the person or entity seeking their
disclosure are rendered confidential by 49 C.F.R. § 24.9(b), and thus are not public records
absent a specific law declaring them to be public records. There is no such law in West
Virginia.
Indeed, in its brief to this Court, Fort Pleasant acknowledges that it is
prohibited from obtaining appraisal reports pertaining to property it does not own. Citing to
the City of Reno case, Fort Pleasant observed that the “'public information' confidentiality
[of 49 C.F.R. § 24.9(b)] goes . . . to the accessibility of these records to third parties via
Freedom of Information Act requests. Obviously, it would be inappropriate for information
purveyors, for example, to gain access to these records for compilation, distribution, and
private profit.” (Emphasis added). I agree. The West Virginia Freedom of Information Act
(hereinafter “FOIA”), W. Va. Code § 29B1-1, et seq., provides for the disclosure of public
records. See, e.g., W. Va. Code § 29B-1-3 (1992) (Repl. Vol. 2002) (“Every person has a
right to inspect or copy any public record of a public body in this state, except as otherwise
expressly provided by section four [§ 29B-1-4] of this article.”). Because federal law renders
the appraisal reports confidential with respect to third parties, they are not “public records”
subject to disclosure under FOIA.
Fort Pleasant argues, however, that the language of 49 C.F.R. § 24.9(b) stating
“unless applicable law provides otherwise” is “intended to allow the disclosure of this
information, for example, in the context of civil or criminal litigation under the applicable
procedural rules.” This argument must fail. In promulgating 49 C.F.R. § 24.9(b), the United
States Department of Transportation could not have intended rules of civil procedure to
qualify as “applicable law providing otherwise.” Every state in the nation has adopted rules
of civil procedure. Thus, if such rules could be relied upon to obtain confidential appraisals
of non-owned property, then 49 C.F.R. § 24.9(b) would be meaningless insofar as it classifies
such documents as confidential because they could potentially be disclosed to anyone
involved in litigation. As this Court has previously explained,
“It is the 'duty of this Court to avoid whenever possible a construction of a statute which leads to absurd, inconsistent, unjust or unreasonable results.'” Expedited Transp. Sys., Inc. v. Vieweg, 207 W. Va. 90, 98, 529 S.E.2d 110, 118 (2000) (quoting State v. Kerns, 183 W. Va. 130, 135, 394 S.E.2d 532, 537 (1990)) (emphasis omitted). Thus, “[w]here a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made.” Syl. pt. 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938). Accord Syl. pt. 2, Conseco Fin. Serv'g Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d 641 (2002) (“'It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.' Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).”).
Bluestone Paving, Inc., A Corp. v. Tax Comm'r of State, 214 W. Va. 684, 689, 591 S.E.2d
242, 247 (2003). (See footnote 13) Had the United States Department of Transportation intended to create
a broad sweeping exception to the confidentiality of acquisition records under the rules of
civil procedure, it could have easily created a regulation establishing such a litigation
exception. It did not. I find further support for rejecting Fort Pleasant's theory of a litigation
exception to the confidentiality of acquisition records in 49 C.F.R. 24.9(e), (See footnote 14) which expressly
maintains the confidentiality of such records in the context of an administrative appeal. It
would be nonsensical to conclude that documents retaining their confidentiality in the context
of an administrative appeal would be stripped of that confidentiality in civil litigation.
Consequently, I believe the majority was wrong to conclude that these confidential records
are discoverable.
A party may through interrogatories require any other
party to identify each person whom the other party expects to
call as an expert witness at trial, to state the subject matter on
which the expert is expected to testify, and to state the substance
of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion.
Rule 26(b)(4)(A)(i) is plain and clear. Nowhere in the rule does it require a
party to turn over documents his/her trial expert prepared in another proceeding. In fact,
under the rule a party is not obligated to turn over the actual report that his/her expert
prepared in the case in which he/she is going to testify. The majority opinion has attempted
to get around the clear requirements of Rule 26(b)(4)(A)(i) by omitting any discussion of the
rule in the context in which it applies. To add insult to injury, the majority opinion adopts
the federal position on this issue in footnote 6, (See footnote 16) even though the majority opinion states that
it is declining to do so. (See footnote 17)
The majority opinion provides “that discovery of reports and evaluations
prepared by designated witnesses relative to other properties may be discoverable
information in appropriate circumstances.” The opinion fails to expressly state what those
“appropriate circumstances” are. Instead, the opinion drops a footnote and references to a
federal rule that addresses disclosure of information from an expert. Under federal Rule
26(a)(2)(B) a party calling an expert must turn over “the data or other information considered
by the witness in forming the opinions[.]” (See footnote 18) It is this provision of the federal rule that the
majority opinion has relied upon to establish its heretofore unheard of “appropriate
circumstances.” However, under a plain application of our Rule 26(b)(4)(A)(i), the reports
are simply not discoverable.
To be clear, the majority opinion resorted to evasive language to expand Rule
26(b)(4)(A)(i) to incorporate the provisions contained in federal Rule 26(a)(2)(B). The
manner in which the majority opinion chose to modify Rule 26(b)(4)(A)(i) is insulting to the
integrity of this Court. There was simply no need for the majority opinion to deny that it was
changing our rule. The fact that the rule was modified is plainly demonstrated by the
outcome reached by the opinion.
2. Exceptional circumstances. Under the majority opinion, once “appropriate
circumstances” have been shown to permit disclosure, there must be a further determination
of “exceptional circumstances” before the reports are actually turned over. In other words,
under the majority opinion if the appraisal reports were prepared by the trial experts as non-
trial experts in the other proceedings, then exceptional circumstances must be shown to
obtain the reports. This is absurd. (See footnote 19)
The doctrine of exceptional circumstances is utilized in Rule 26(b)(4)(B) with
respect to information sought from non-trial experts.
Under Rule 26(b)(4)(B) experts consulted in anticipation of litigation, but who are not expected to be called as a witness at trial, are subject to a more restrictive discovery standard. For experts not expected to testify, the rule is that discovery can only take place (1) as provided in Rule 35(b), or (2) upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Franklin D. Cleckley, Robin J. Davis, Louis J. Palmer, Jr., Litigation Handbook, §
26(b)(4)(B), p. 740-741. (2d ed. 2006). The majority opinion has unfortunately merged the
exceptional circumstances doctrine of Rule 26(b)(4)(B) with Rule 26(b)(4)(A)(i).
To make matters worse, the majority opinion has performed this unwise union
between Rule 26(b)(4)(A)(i) and the exceptional circumstance doctrine by creating an
unacceptable basis for establishing exceptional circumstances. This is to say that, assuming
there was a rational justification for the union of Rule 26(b)(4)(A)(i) and the exceptional
circumstances doctrine, the basis for establishing exceptional circumstances set out in the
majority opinion is inconsistent with the doctrine of exceptional circumstances.
In a commentary explaining the operation of the exceptional circumstances in
its proper context, the following has been said:
The party seeking discovery from non-testifying retained experts faces a heavy burden. It has been said that since a litigant will not know what facts the opposing party's non- testifying experts have discovered and what opinions they have formed, it will rarely be possible to make the required showing of exceptional circumstances.
Cleckley, et al., Litigation Handbook, § 26(b)(4)(B), p. 741. Further, it has been said that:
The heavy burden of establishing exceptional
circumstances contemplates a showing that a party has found
opinions by others on the subject to be unavailable before he/she
may obtain discovery from his/her opponent's retained expert
who is not expected to be called to testify on the same subject.
Cleckley, et al., Litigation Handbook, § 26(b)(4)(B), p. 741 n.223.
Establishing exceptional circumstances under the majority opinion will not be
a “heavy burden,” nor will it be “rare.” This is because under the majority opinion the
exceptional circumstances doctrine may be established merely by showing that the document
sought was “relied upon by the witness in formulating the witness's opinion[.]” This basis
for disclosure was taken by the majority opinion from the federal rule that governs disclosure
of trial expert information. As I have already pointed out, under federal Rule 26(a)(2)(B) a
party calling an expert must turn over “the data or other information considered by the
witness in forming the opinions[.]” Under the federal rules this is not an exceptional
circumstance_only under the majority opinion has this turned into an exceptional
circumstance. Moreover, under the majority opinion this is also the basis for establishing the
so called “appropriate circumstances.” (See footnote 20)
In the final analysis, the majority opinion has done a grave disservice to the
bench and bar by reaching a legally unsupportable result through the distortion of our
carefully crafted rules that govern disclosure of information from trial and non-trial experts.
A circuit court is required, pursuant to Rule 26 (b)(4)(B) of the West Virginia Rules of Civil Procedure, to make specific findings regarding the existence of exceptional circumstances justifying the discovery of facts known or opinions held by an expert or consultant who has been retained or specially employed by a party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial before the circuit court may compel such discovery over a party's objection.
This ruling by the majority opinion is misguided and inappropriate.
To begin, the majority opinion failed to understand that this case was brought
as a challenge to a non-appealable interlocutory discovery order. This Court has recognized
that, as a general rule, a trial “court is under no duty to make findings on an interlocutory
order[.]” State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 367, 508 S.E.2d 75, 84
(1998). In fact, Rule 52(a) of our Rules of Civil Procedure expressly provides that
“[f]indings of fact and conclusions of law are unnecessary on . . . any . . . motion except as
provided in subdivision (c) of this rule.” (See footnote 21)
This Court recognized in Gaughan that Rule 52(a) posed problems when
litigants filed petitions for writs of prohibition to challenge a trial court's interlocutory order.
That problem involved the lack of a record which provided the basis for a trial court's ruling. Gaughan set out a workable solution to the problem in syllabus point 6 of the opinion:
A party seeking to petition this Court for an extraordinary
writ based upon a non-appealable interlocutory decision of a
trial court, must request the trial court set out in an order
findings of fact and conclusions of law that support and form the
basis of its decision. In making the request to the trial court,
counsel must inform the trial court specifically that the request
is being made because counsel intends to seek an extraordinary
writ to challenge the court's ruling. When such a request is
made, trial courts are obligated to enter an order containing
findings of fact and conclusions of law. Absent a request by the
complaining party, a trial court is under no duty to set out
findings of fact and conclusions of law in non-appealable
interlocutory orders.
203 W. Va. 358, 508 S.E.2d 75.
The underlying policy concern that was implicit in Gaughan is that trial court's
should not be forced to routinely set out detailed findings in interlocutory orders. Such a
requirement would be unduly burdensome and a waste of valuable judicial time. To avoid
imposing this burden on trial courts, Gaughan crafted a solution that would require
interlocutory orders set out detailed findings only when a party intended to challenge that
order by filing a petition with this Court for an extraordinary writ. More importantly, Gaughan required that a party inform the trial court that a detailed order was needed because
a challenge was going to be made. The decision in Gaughan emphasized that “[a]bsent a
request by the complaining party, a trial court is under no duty to set out findings of fact and
conclusions of law in non-appealable interlocutory orders.”
To the extent that the majority opinion believed that the interlocutory order in
this case was deficient, one of two courses were available. If the record showed that DOH
did not inform the trial court that it was filing a petition for a writ with this Court and
therefore needed a detailed interlocutory order, DOH failed to carry out its burden under Gaughan and the writ should be denied because of an inadequate record. Or, if DOH did in
fact comply with Gaughan but the trial court failed to do so, then the case should have been
held in abeyance, and this Court should have ordered the trial court to issue and submit to this
Court a detailed order. While I do not believe that either course was necessary, for the
reasons stated previously in this dissent, I emphatically reject the course taken by the majority
opinion because it is inconsistent with Gaughan and the policy considerations underlying Gaughan.
For the numerous reasons set out above, I respectfully dissent.