United States v. Meyer

• Decision Date: 17 July 1968
• Docket Number: No. 21127.,21127.
• Citation: 398 F.2d 66
• Parties: UNITED STATES of America, Appellant, v. Horace MEYER et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

398 F.2d 66 (1968)

UNITED STATES of America, Appellant, v. Horace MEYER et al., Appellees.

No. 21127.

United States Court of Appeals Ninth Circuit.

July 17, 1968.

COPYRIGHT MATERIAL OMITTED

Roger P. Marquis (argued), Dept. of Justice, Washington, D. C.; Edwin L. Weisl, Jr., Asst. Atty. Gen., Cecil F. Poole, U. S. Atty., A. Lawrence Burbank, Asst. U. S. Atty., San Francisco, Cal., for appellant.

C. Ray Robinson (argued), Merced, Cal., Robert A. Seligson (argued), of Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, Cal., for appellee.

Before HAMLIN, JERTBERG and BROWNING, Circuit Judges.

BROWNING, Circuit Judge:

The United States instituted this proceeding to condemn privately-held land within the boundaries of Yosemite National Park, California. Appellee-landowner issued notices under Rule 26, Federal Rules of Civil Procedure, for the taking of the depositions of three real estate appraisers employed by the government to appraise the condemned property, and served each appraiser with a subpoena under Rule 45(b) calling for the production of documents relating to the action.¹

The government moved under Rule 30 (b) for a protective order to provide as follows:

"1. That the deponent shall not be interrogated as to his opinion of the value of the subject property.

2. That the deponent shall not be interrogated as to his opinion of the highest and best use of the subject property.

3. That the deponent shall not be interrogated as to any matter of opinion or conclusions reached upon a consideration of facts ascertained by the deponent.

4. That the deponent shall not be interrogated upon or about any written report that deponent may have submitted to the National Park Service or other agency of the United States Government.

5. That the deponent shall not be interrogated as to any matter presumably within the knowledge of the defendant herein.

6. That said deponent shall not be interrogated for the purpose of cross-examination in the event said deponent testifies as a witness at the trial of said cause."

Judge Halbert denied the motion, supporting his order with a full and careful opinion. United States v. 364.82 Acres of Land, etc., 38 F.R.D. 411 (N.D. Cal.1965). This court denied the government's application for interlocutory appeal under 28 U.S.C. § 1292(b) (1964) on the authority of United States v. Woodbury, 263 F.2d 784 (9th Cir. 1959).

The witnesses appeared at the time and place fixed for the taking of their depositions, but declined to answer questions or produce documents whenever in the opinion of government counsel the discovery sought would have been barred by the protective order which the government had requested and the court had denied. The area foreclosed to inquiry, as reflected in the transcripts of the depositions, is outlined in the margin.²

Appellees moved for imposition of sanctions, and the court entered judgment dismissing the action and striking from the records the complaint in condemnation, the declaration of taking, and the order for delivery of possession. This appeal followed.

A complaint in condemnation consists of a citation of authority for the taking, a statement of the intended use, and a description of the property taken. Rule 71A(c) (2), Federal Rules of Civil Procedure. The owner's answer is usually limited to a notice of appearance. Except in those rare instances in which the taking is challenged, no other response is allowed. Rule 71A(e). Thus the pleadings in a condemnation case are wholly uninformative on the only issue to be tried: the amount of compensation to be paid for the property.³

Because land appraisal is complex and technical, usually evidence on the issue of value consists principally of the opinions of opposing experts. These opinions are notoriously disparate. The weight to which an appraiser's opinion testimony is entitled turns upon the validity of the appraiser's premises, procedures, and theories; the soundness of his factual determinations; the comparisons he has made; the methods he has followed, and the formulae he has applied. Basically, the trial of a condemnation suit consists of the admission into evidence of the opinions of the opposing appraisers and the factual and theoretical bases upon which they rest, and the testing of those opinions by cross-examination and rebuttal.

The appraisers' opinions and their factual and theoretical foundation are peculiarly within the knowledge of each appraiser and, to a degree, that of the party who employed him. The opposing party can obtain this information in advance of trial only by discovery. Since this material will constitute the substance of the trial, pretrial disclosure is necessary if the parties are to fairly evaluate their respective claims for settlement purposes, determine the real areas of dispute, narrow the actual issues, avoid surprise, and prepare adequately for cross-examination and rebuttal.

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has recently written regarding condemnation cases and others which "present intricate and difficult issues as to which expert testimony is likely to be determinative":

"In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary\'s expert will take or the data on which he will base his judgment on the stand. McGlothlin, Some Practical Problems in Proof of Economic, Scientific, and Technical Facts, 23 F.R.D. 467, 478 (1958). A California study of discovery and pretrial in condemnation cases notes that the only substitute for discovery of experts\' valuation materials is `lengthy — and often fruitless — cross-examination during trial,\' and recommends pretrial exchange of such material. Calif. Law Rev. Comm\'n, Discovery in Eminent Domain Proceedings 707-710 (Jan. 1963). Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side. If the latter is foreclosed by a rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally produces are frustrated." 43 F.R.D. 211, 234 (1967).

In sum, in condemnation cases full pretrial disclosure of appraisers' opinions and the details upon which they are based is required if the rules are to accomplish their purpose to "make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958).⁴

Nonetheless, the protective order sought by the government, particularly as it was interpreted by the government in its counseling of the witnesses on deposition, would have totally foreclosed inquiry into these areas. The arguments offered in support of the government's position are as follows.

The government disputes the hypothesis that discovery of its appraisers' opinion and the basis for them will serve the purposes of the rules. It argues that discovery cannot narrow and clarify the issues because all concerned know that only one issue is presented — the amount of just compensation. This contention enthrones form over substance. "Just compensation" for property taken may be the only ultimate "issue," but it is a conclusion drawn from numerous factual and legal premises, many if not most of which may be disputed. Which of these premises are disputed and which are not can be determined short of trial only by voluntary disclosure or discovery.

The government argues that no significant reduction in the area of dispute or shortening of the trial will result from disclosure of appraisers' opinions of value and the factors upon which those opinions are based because "the competent attorney will not stipulate to a factor so as to eliminate its consideration in detail" by the trier of fact. This contention denies the premises upon which the rules rest; it comes thirty years too late. It is also refuted by experience.⁵ Moreover, it ignores other purposes served by discovery — to encourage settlements, to avoid surprise, to permit effective cross-examination and rebuttal, and, basic to all others, "to elicit truth essential to correct adjudication." Sachs v. Aluminum Co. of America, 167 F.2d 570, 571 (6th Cir. 1948). See note 5.

The government took the position below that a party is not subject to discovery of information available to the opposing party from other sources, and therefore the characteristics of the condemned land and sales of comparable lands were not discoverable because the landowner could obtain the same facts from the same sources as had the government appraisers. Similarly, the opinions of the government appraisers regarding the value of the condemned land were not discoverable since the landowner could obtain opinions as to value from other appraisers.

This view has not been pressed before us. The appraisers were not parties but potential witnesses, and their knowledge of relevant information was not immunized from disclosure merely because the government paid them to acquire it.⁶ If the information "collected and collated" by them is treated as having been gathered by the government, its disclosure would still be appropriate for "mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947).

Moreover, the vital information sought was not available from other sources. The landowner sought to learn the opinions of the government appraisers and their basis. Obviously this information could be obtained only from those appraisers themselves.⁷ An absolute bar to...