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The work product privilege provides a qualified immunity for materials prepared in anticipation of litigation by a party, an attorney, or other representatives of the party. Two provisions of Federal Rule of Civil Procedure 26 are relevant here: Rule 26(b)(3)(A) governing the limitations on discovering materials prepared in anticipation of litigation and Rule 26(b)(4)(D) governing the limitations on discovery related to non-testifying experts specially retained in anticipation of litigation.
In connection with defendant Pike Nursery Holding efforts to obtain rent concessions from plaintiff Spirit Master Funding, defendant notified plaintiff that the building's roof had collapsed and had been damaged. Defendant hired a professional engineer to inspect the condition of the building, where the report found that the roof deck was in poor condition and the building’s structural integrity was compromised. Plaintiff alleged that rather than make the necessary repairs to the building, defendant hatched a plan to use its deteriorated condition as a means to escape its ongoing obligations under the lease agreements by lobbying the county department of planning and development to condemn the building since the building was tagged as unsafe for occupancy. Defendant then informed plaintiff that the building was required to be demolished. Plaintiff demanded that they need to inspect the property before they could respond to defendant’s notice of termination. After the inspection, plaintiff notified defendant that the inspection showed that the buildings had not been adequately maintained and were in need of repair. Plaintiff thus rejected its notice of termination and filed its complaint on this matter. Defendant served its request for production of documents on plaintiff seeking all documents or communications to any inspection of the building. Plaintiff objected to the production of documents by and communications with its non-testifying consulting experts on the basis that such information is subject to the work-product privilege.
Was the production of documents by and communications with non-testifying consulting experts subject to the work-product privilege?
The Court found that the facts and opinions of the inspecting engineers are protected by the work product privilege and were therefore not subject to discovery. The court held that defendant may discover facts from plaintiff’s representatives regarding its knowledge of the condition of the property and the basis for its conduct regarding the termination of the lease agreements with defendant, either by interrogatories, depositions, or other requests for production not directed toward work product materials.