Opinion
No. 4102528
January 19, 2006
MEMORANDUM OF DECISION RE DISCLOSURE OF APPRAISAL REPORTS
The defendants have objected to the disclosure of the appraisal documents on the ground that they are protected under the attorney-client privilege. In defense counsel's affidavit, he avers that he obtained a confidential appraisal report relating to the property at issue. Counsel avers that the appraisal was performed "exclusively for the attorney's . . . working on behalf of the Estate and was procured for use by the Estate in preparing the estate inventory and the preparation of an estate tax return with federal and state authorities."
There is a distinction between attorney-client privilege and attorney work product. The attorney-client privilege is an evidentiary rule designed to encourage full disclosure by a client to his attorney of all facts related to the litigation and other matters; whereas, the attorney's work product rule is not an evidentiary rule, but a rule of discovery. See Barnes/Science Associates, Limited Partnership v. Barnes Engineering Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 89 027764 (June 7, 1990, Fuller, J.) ( 1 Conn. L. Rptr. 724); C. Tait, Tait's Handbook of Connecticut Evidence (3d Ed. 2001) § 5.22.2, p. 316-17.
Practice Book § 13-3, entitled, "Materials Prepared in Anticipation of Litigation; Statements of Parties," provides in relevant part: "(a) . . . a party may obtain discovery of documents and tangible things otherwise discoverable under Section 13-2 and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. (b) A party may obtain, without the showing required under this section, discovery of the party's own statement and of any non-privileged statement of any other party concerning the action or its subject matter."
"Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation . . . The attorney's work must have formed an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys." Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967); Practice Book § 13-3. Work product of an attorney, however, is not automatically immune from discovery. Id.; Hickman v. Taylor, 329 U.S. 435, 511, 67 S.Ct. 385, 91 L.Ed.2d 451 (1947).
Here, as the defense counsel states in his affidavit, the defendant acquired the appraisals for the purposes of estate inventory and tax purposes, not with an eye toward any pending litigation or in anticipation of litigation. Therefore, the document may not be characterized as work product generated with pending or future litigation in mind. The work product privilege does not apply. The defendant, however, argues in his memorandum of law in support of its objection to the plaintiff's request for production, that the appraisal documents are protected and undiscoverable under the attorney-client privilege.
"In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice . . . It is undisputed that the privilege was created to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observation of law and administration of justice . . . Exceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications. It is obvious that professional assistance would be of little or no avail to the client, unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate. And it is equally obvious that there would be an end to all confidence between the client and [the] attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession. . . ." (Citations omitted; internal quotation marks omitted.) Metropolitan Life Ins. v. Aetna Casualty Surety Co., 249 Conn. 36, 52, 7302 A.2d 51 (1999).
No Connecticut case has dealt with the specific issue of whether a property appraisal obtained for purposes of estate inventory and tax purposes by a party's counsel is subject to attorney-client privilege where pending litigation is concerned with the value of the property appraised. See, however, Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967) (where appraisal reports procured without the involvement of counsel were not privileged). Some of our sister states have, however, discussed similar issues.
In San Diego Professional Ass'n. v. Superior Court, 58 Cal.2d 194, 23 Cal. Rptr. 384, 373 P.2d 448 (1962), the petitioner's attorney, in the course of preparing for trial, hired an engineering firm to evaluate and analyze certain documents pertaining to a building. The engineers prepared and delivered a report to the petitioner's attorney. The respondent filed a motion requesting production of the report. The petitioner objected on the ground of attorney-client privilege. The court found the report not to be privileged. The Supreme Court of California stated, "that if the facts and circumstances surrounding the creation of the agency indicate that the agent was retained to evaluate and pass on to the attorney matters which emanate in confidence from the client, both his opinions and his report are clothed with the privilege. But where, as here, the facts and circumstances indicate that the expert is to examine, evaluate and subsequently to testify, as to matters which are not in the nature of a confidential communication from client to attorney, then the letter of transmittal (report) is not privileged simply because it is reduced to writing and delivered to an attorney." Id., 202.
The Maryland Court of Special Appeals, in Levitsky v. Prince George's County, 50 Md.App. 484, 439 A.2d 600 (1982), found in the context of allowing trial testimony, that the information in a property appraisal is not protected by the attorney-client privilege. In Levitsky, the county condemned property belonging to the appellant, Levitsky, for purposes of a highway. After the trial court ruled in favor of the county, a jury was assembled to determine the amount to be due as damages. Thereafter, the county called an appraiser retained by Levitsky to appraise the property damage, as a witness. Levitsky had chosen not to call his retained appraiser. Levitsky objected to his appraiser being called, but the trial court allowed his testimony. On appeal, Levitsky argued that the trial court erred in allowing the appraiser to testify because it violated the attorney-client privilege. The appellate court held that the attorney client-privilege (a creature of statute in Maryland) "is a rule . . . which prohibits the disclosure of the substance of a communication made in confidence, by a client to his attorney for the purpose of obtaining legal advice." Id., 491. "Thus, the determinative element establishing the cloak of privilege is the presence of a confidential communication emanating from the client. There is an obvious distinction between the opinion of an appraiser who places a monetary value on land which is open and visible to all, [for instance,] and that of a physician who conducts an evaluation of an individual." Id., 493-94. "It appears that the distinction should be predicated on the source of the expert's information . . . The real estate appraiser at issue who obtained his opinion by viewing property and applying his expertise was not transmitting [Levitsky's] confidence. His communication, therefore, cannot be protected by the attorney-client privilege . . ." Id., 494. See also Oceanside Union School District v. Superior Court, 58 Cal.2d 180, 23 Cal. Rptr. 375, 373 P.2d 439 (1962).
In the present case, because the appraisal was not the result of any confidential communication emanating from the defendant, nor did it transmit any confidences of the defendant, the document and the information contained therein is not protected by the attorney-client privilege.
ORDER
The plaintiff is entitled to discovery of the appraisal reports in question. The defendant's objection is overruled.