In a suit for failure to maintain property and pay rent, Defendant requested inspection forms through discovery. Plaintiff argued the forms were privileged attorney work product.
Documents created for business purposes, as well as in preparation for litigation, are protected from discovery as attorney work product. Attorney work product is only revealed when exceptional circumstances of necessity are shown by the moving party.
Spirit Master Funding, LLC (Plaintiff), the landlord, sued its tenant, Pike Nurseries Acquisitions, LLC (Defendant), for failure to pay rent and maintain and repair property. Defendant requested property inspection forms, conducted by experts Hercules and Ramos for Plaintiff, through discovery. Plaintiff argued the forms were privileged attorney work product.
Are documents prepared by and communications with non-testifying consulting experts protected from discovery, as attorney work product?
Yes, documents prepared by non-testifying consulting experts in preparation for litigation are privileged attorney work product.
The Court determined that the inspection forms were privileged attorney work product because they were created by Hercules and Ramos not just for business, but also in anticipation of litigation. Additionally, any information in the inspection forms relevant to the Defendant’s counterclaims could be obtained through interrogatories and depositions.