November 21, 1974 A -O-g
TO: LjM, AFD, AHS
RE: Scope of Discovery in Eminent Domain Proceedings
Section 4.12 of CLE publication "Florida Eminent Domain
Practice and Procedure" addresses itself to pretrial
discovery in Eminent Domain proceedings. The authors of
this article take a two fold position, namely:
1. Discovery, both in extent and procedure, is the
same in eminent domain proceedings as it is in
normal civil litigation.
2. However, in the compensation-valuation aspects
of condemnation cases, an exception to normal
practice has been created by the Courts
This exception arises out of two cases, Shell
vs. State Road Department, 135 So. 2d 857 (Florida,
1962), and Carlson vs. Pinellas County, 227 So. 2d
r 703 (2d DCA, 1969), and is succinctly summarized
by the authors as follows: The records
of the condemnor are not protected by the work
product rule while those of the property owner are.
The foregoing position may have been correct in 1970, when
Florida Eminent Domain Practice and Procedure was published,
however, substantial changes have been made by the courts since
the date of publication of this article. Subsequent to the
two court decisions mentioned above, two additional decisions
have been handed down that clarify the scope of discovery in
eminent domain proceedings. These latter cases are:
1. Pinellas County vs. Carlson, 242 So. 2d 714 (Florida,
2. City of Miami vs. Culbertson, 263 So. 2d 245 (3rd DCA,
The four cases cited up to this point in this memorandum are
the principal cases dealing with the scope of discovery in
eminent domain proceedings in Florida to date. Copies of each
case are attached at the end of this memorandum.
The following, in chronologica"l order, are my calnse briefs of
f' ^eacli of the above casa:s.
S Memo to: LMB, AFD, AHS November 21, 1974 2
1. Shell vs. State Road Dept. -
ISSUE: Are surveys, drawings, maps, road construction statistics,
specifications, appraisals, appraisal worksheets and all other
documents in the hands of the condemning authority affecting the
valuation of Defendant's land beyond the scope of discovery in a
condemnation case under the "work product" rule?
HOLDING: "Work Product" immunity should not extend to this type of
information bearing on the issue of "just" compensation in discovery
proceedings in advance of trial.
REASONING: The Florida Supreme Court indicated that it felt that the
items listed are properly considered "work products" under developing
case law, this type of "work product" would be immune from pre-trial
discovery; however, the Court granted the foregoing exception because:
a. the files of a government agency should be subject to inspection
by the public generally and at all reasonable hours.
b. defendant land-owner is a party through no fault or volition of
c. condemnor has a constitutional "duty" to see that the land-owner
receives "just" compensation; this type of litigation should not be
a matter of "dog eat dog" tactics.
d. condemnor has virtually unlimited resources, to which the land-
owner is forced to contribute by the payments of taxes.
2. Carlson vs. Pinellas County (2d dca)
POSTURE: Condemning authority subpoened an appraiser to testify
at a deposition concerning the value of a certain defendant's property.
The defendant moved for a "protective order" alleging that the
appraiser's report and supportive documents were within the "work
product" rule, inasmuch as the appraiser had appraised the property
for the defendants in preparation for trial. The Circuit Court denied
the Motion to protect, but limited the scope of the deposition to ex-
clude attorney-appraiser communications. Condemnor took the deposition
regarding the content of the written appraiser, the appraiser's expert
opinion as to value, and the factors supporting and influencing the
appraiser's opinion as to value.
At trial, condemnor called appraiser as its own witness over the object-
p ion of thedcleridant. The case proceeded to Final Judgment and an
award was enite-red somiewliiat in excess of the( value determined by the
appraiser called by the condiemnor.
,,-I IJ: Did tlh e rule announce in ;h, I I apply lot Ii ways? Are lthe
lid,1'JW' e ':; e(xpeJr ; pl)rot ec< (<, bly ti,- "'vi rk )ro'ltcI" t ul(1 whi lI n, l -
(1< Ilii ) ; ; .11 i i' )1ii .'
MEMO TO: LMB, AFD & AHS November 21, 1974 3
HOLDING: The Circuit Court Order denying the protective Order to
the Defendant, Land-owner was reversed. The issue was certified to
the Supreme Court of the state of Florida as presenting issue of
great public interest.
REASONING: Substantially the same, as the reasoning of the
Supreme Court in the case briefed immediately following:
3. Pinellas County vs. Carlson (Fla.)
POSTURE: Petitionfor writ of certiorari objecting to 2d-DCA
opinion just reviewed.
ISSUE: Whether the "work product" rule is applicable in Eminent
Domain Proceedings in prohibiting the condemning authority from
utilizing discovery procedures and inquiring of the expert witnesses
employed by the condemnee, concerning matters upon which their
opinion of value is based.
HOLDING: The fair rule is that the state may not initiate dis-
covery in condemnation cases except as a reciprocal right in those
cases when the condemnee has elected to discover the state's
work product. Those condemnees who do not wish to explore the state's
information should not be exposed to discovery. This exception "to
the work product rule" should not be extended to include the condemnee's
work product unless and until the condemnee has elected to seek
discovery under the Shell decision. In the latter event, the work
product of the condemnee would be subject to discovery by the con-
demnor. As modified, the opinion of the 2d District Court of Appeal
reversing the Circuit Court's Order was approved.
REASONING: Discovery sought by the condemning authority in the
present case should have been denied by the Circuit Court because:
a. granting such discovery is not consistent with the standards of
fairness previously announced by the Supreme Court of the state of
b. Such discovery violates the "work product" rule as it has been
developed in Florida case law.
c. A condemning authority may not discover the "work product" in-
formation prepared for a condemnee by an expert, when that expert
is not scheduled to be called for a trial witness.
d. The Supreme Court distinguished Shell because there the con-
demnee was trying to discover the"work product" of a condemning
authority. The Supremeln Court feels that di-fferent policy considerat ions
are present in tlhse two situations.
e. To hold SheIl to be fully rotrilprocal would permit a condclnijor
to "fish iat will in the work product wail rs: of tlhe coonidmiieJ.'. "
To: LMB, AFD & AHS November 21, 1974 4
4; City of Miami vs. Culbertson
POSTURE: A condemnation case involving 4 parcels of land; 1
condemnee sought discovery against the condemning authority;
the condemning authority then sought similar discovery from a
different condemnee; trial court sustained land owner's objection
to condemnor's discovery.
HOLDING: The Third District Court of Appeals affirmed the ruling
of the trial court and ruled that when one of several condemnee's
in an action for Eminent Domain has initiated such discovery
against the condemnor, the reciprocal right of discovery for
the condemning authority under Carlsen applies only to that
Trawick's Publication Fla. Practice and Procedure, has an excellent
discussion of the scope of discovery in the ordinary civil case.
Section 16.3 of this article deals with the scope of discovery in
relation to the Florida "work product" rule. Copies of this article
are attached to the memorandum and should be examined together with
the cases briefed above in order to obtain a complete picture of
pre-trial discovery in Eminent Domain Proceedings.