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Sharp v. Virgin Islands

Sharp v. Virgin Islands

United States Court of Appeals for the Third Circuit

May 1, 2003, Submitted Under Third Circuit LAR 34.1(a) ; August 29, 2003, Filed

No. 02-4404, No. 02-4405 No. 02-4406, No. 02-4407, No. 02-4408, No. 02-4409, No. 02-4410, No. 02-4411, No. 02-4447

Opinion

 [*84]  ROTH, Circuit Judge:

This is an appeal from a November 19, 2002 order by the United States District Court of the Virgin Islands. The Government of the Virgin Islands and the Virgin Islands Tax Assessor [**5]  (Government) were sued by the Appellees (Commercial Property Owners), who contested the method utilized by the Government to assess their property.

The Commercial Property Owners sought to discover copies of documents prepared by Kenneth Voss, a government contractor. The Government objected, claiming that the documents were prepared in anticipation of litigation. Pursuant to Federal Rules of Civil Procedure Rule 26(b)(3), the appellants sought to protect the documents from discovery. They requested that the District Court examine the documents in camera. At the conclusion of the in camera hearing, the District Court ordered the Government to turn over the documents to the Commercial Property Owners. The Government filed a motion to stay the production of the documents pending appeal. On January 9, 2003, the District Court denied the stay and the Government produced the documents to counsel for the Commercial Property Owners.

The following issues are raised on appeal: Did the District Court abuse its discretion when it ordered the Government to produce the documents or, more specifically, were the documents prepared in anticipation of litigation. If the documents were [**6]  prepared in anticipation of litigation, did the Commercial Property Owners demonstrate that obtaining the substantial equivalent by other means would expose them to an undue hardship

We have jurisdiction pursuant to 28 U.S.C. § 1291. ] Discovery orders are reviewed for abuse of discretion. See Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000). A court abuses its discretion if the reasoning is clearly erroneous or contrary to law. See Id. at 139. A finding is "clearly erroneous when the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has  [*85]  been committed." In re Life USA Holding, Inc., 242 F.3d 136, 143 (3d Cir. 2001) (citing United States v. Igbonwa, 120 F.3d 437, 440 (3d Cir. 1997)).

The work product doctrine was first announced in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). After Hickman, Congress codified the Court's holding in Federal Rules of Civil Procedure Rule 26(b)(3). See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997). [**7]  ] In determining whether a document or other tangible item is protected work product, courts consider the nature of the document and the factual circumstances of the particular case. Martin v. Bally's Park Place Hotel and Casino, 983 F.2d 1252, 1260 (3d Cir. 1993) (citing In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979)). After considering those factors, the court must determine whether the document can be fairly identified as prepared in anticipation of litigation. Id. Litigation need not be imminent …as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation." United States v. Rockwell, 897 F.2d 1255, 1266 (3d Cir. 1990) (citing United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982)). The party claiming work product immunity has the burden of proving that the materials were in fact prepared in anticipation of litigation. Holmes, 213 F.3d at 138. Work product prepared in the ordinary course of business is not protected from discovery. Id.

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77 Fed. Appx. 82 *; 2003 U.S. App. LEXIS 18064 **

Nos:ELISABETH SHARP v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, TAX ASSESSOR Government of the Virgin Islands and Roy Martin Appellants CYRIL V FRANCOIS ASSOCIATES v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, TAX ASSESSOR Government of the Virgin Islands and Roy Martin Appellants in No. 02-4405 SUGAR BAY CLUB AND RESORT CORP. v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, TAX ASSESSOR Government of the Virgin Islands and Roy Martin Appellants in 02-4406 ROBERT SCHMIDT; KIM HOLDSWORTH; ROBERT SCHMIDT DEVELOPMENT CORP; DORI P. DERR v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, TAX ASSESSOR Government of the Virgin Islands and Roy Martin Appellants in 02-4407 LINDON CORP; GORDON L. COFFELT; SORAYA DIASE COFFELT; ONE STOP, INC. v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, TAX ASSESSOR; BOARD OF TAX REVIEW Government of the Virgin Islands and Roy Martin, Appellants in 02-4408 BERNE CORPORATION; B&B CORPORATION; TWENTY-ONE QUEEN QUARTER, INC. v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, IN HIS OFFICIAL CAPACITY AS TAX ASSESSOR; VIRGIN ISLANDS BOARD OF TAX REVIEW Government of the Virgin Islands and Roy Martin Appellants in 02-4409 SHELL SEEKERS, INC; CHARLES W. CONSOLVO; LINDA B. CONSOLVO; SNEGLE GADE, A LIMITED PARTNERSHIP; YVETTE B. TRUST LEDERBERG; ARTHUR B. CHOATE; STACY LOVELAND; STEWART LOVELAND v. VIRGIN ISLANDS TAX REVIEW BOARD; GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, IN HIS OFFICIAL CAPACITY AS TAX ASSESSOR Government of the Virgin Islands and Roy Martin Appellants in 02-4410 MILLER PROPERTIES, INC. v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, TAX ASSESSOR Government of the Virgin Islands and Roy Martin Appellants in 02-4411 BLUEBEARD'S CASTLE, INC.; CASTLE ACQUISTIONS, INC. v. GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN, IN HIS OFFICIAL CAPACITY AS TAX ASSESSOR Government of the Virgin Islands and Roy Martin Appellants in 02-4447

Notice:  [**1]  RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

Subsequent History: Superseded by Sharp v. Virgin Islands, 2003 U.S. App. LEXIS 18133 (3d Cir. V.I., Aug. 29, 2003)

Prior History: Appeal from the District Court of the Virgin Islands. (D. C. Civil Action Nos. 01-cv-00228, 01-cv-00196, 01-cv-00181, 02-cv-00057, 00-cv-00141, 01-cv-00197, 01-cv-00151, 01-cv-00155). District Judge: Honorable Thomas K. Moore.

Sharp v. Virgin Islands, 278 F. Supp. 2d 585, 2003 U.S. Dist. LEXIS 15046 (D.V.I., 2003)

Disposition: Affirmed.

CORE TERMS

appraisals, documents, commercial property, anticipation of litigation, ordinary course of business, work product, preparing, assess, work product doctrine, non-litigation, discovery, purposes, factors, clearly erroneous, primary purpose, re-valuating, properties, contracts, abused, annual

Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, Criminal Law & Procedure, Abuse of Discretion, Discovery, Discovery, Misconduct During Discovery, Motions to Compel, Abuse of Discretion, Appellate Jurisdiction, Final Judgment Rule, General Overview, Privileged Communications, Work Product Doctrine, Tax Law, International Taxes, Americans Operating Abroad, Corporations in US Possessions, State & Local Taxes, Administration & Procedure, Assessments, Real Property Taxes, Assessment & Valuation