Harry E. Hoover v. The United States Department of the Interior

611 F.2d 1132, 57 A.L.R. Fed. 880, 33 Fed. R. Serv. 2d 1698, 1980 U.S. App. LEXIS 20417

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 15, 1980
• Docket: 79-1122
• Status: Published

Opinions

AINSWORTH, Circuit Judge:

Appellant Harry E. Hoover, owner of the “Blowing Wind Cave” in Alabama, brought this suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B), to compel the Department of the Interior to make available for inspection and copying an appraisal report made relative to appellant’s cave and surrounding lands. The district court dismissed the suit because of the pendency of a subsequently filed condemnation proceeding brought by the Department to acquire Hoover’s property. On appeal, appellant contends that he is entitled under the FOIA to obtain the appraisal report. We disagree, and therefore affirm the judgment of the district court.

Appellant’s cave is significant because it provides a home for the rare “gray bat,” an endangered species.¹ The Department of the Interior considered acquiring appellant’s cave for that reason, either through purchase or condemnation. Accordingly, in December 1977 the Department obtained, at the cost of $18,000, an appraisal of the cave and 264 acres surrounding it. The appraisal was purchased from an independent non-government appraiser with expertise in cave properties.² Based on the appraisal, the Department, on February 16, 1978, offered appellant $325,000 for his property. At the same time, the Department presented appellant with a summary statement of the basis of the offer as required by section 301(3) of the United Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601 et seq., 4651(3).

Appellant did not accept the offer, but instead sent the Department a letter dated April 4, 1978, requesting further information pursuant to the FOIA. Among other items, appellant sought “a copy of the appraisal upon which [the Department] based the $325,000.00 offer.” In response, the Department, in a letter dated April 21, 1978, complied with most of appellant’s requests,³ but declined to disclose the appraisal report. The Department asserted that the FOIA did not mandate disclosure of appraisals during the “negotiation process,” and until such time as the property was purchased or condemned, the report would not be made available. The Department based its refusal on Exemption 5 of the FOIA which exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be.available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The Department described two ways in which disclosure would adversely affect the operation of the Department’s land acquisition program. First, disclosure would inhibit and prolong the “negotiation process by encouraging debates over the specifics of an appraisal report.” Second, disclosure would introduce “an imbalance in favor of the landowner in the negotiating process” by giving him premature and unilateral access to the government’s appraisal. The Department’s letter also informed appellant of his right to appeal the decision.

Appellant exercised his right to appeal, and sent a letter dated April 26 to the Department’s Freedom of Information Act officer. Essentially, appellant argued that Exemption 5 was inapplicable because it would be unfair for an individual landowner to incur the costs of procuring another appraisal when one already existed. Access to the government’s report would greatly aid the landowner in determining the reasonableness of the offer thereby serving to shorten the negotiation process and reduce the need for condemnation proceedings. The Department rejected appellant’s claim on July 11, 1978, on the ground that the appraisal was exempt from disclosure under Exemption 5. The Department enclosed a memorandum of law from the Department’s Office of the Solicitor detailing the legal basis for its refusal to disclose the appraisal.

Having exhausted his administrative remedies, appellant filed this suit in the district court for the Northern District of Alabama on July 21, 1978. In the meantime, negotiations for the purchase of the cave broke down. On September 20, 1978, the government instituted condemnation proceedings to obtain the property.⁴ On November 1, 1978, the district court dismissed the instant suit without prejudice. The district court ruled that the appraisal was an intra-agency memorandum within the meaning of Exemption 5, but refused to consider the question whether the report would be discoverable by a party in litigation with the agency. Given that the condemnation action was then pending, the district court held that the request for the report should be considered in that action through normal discovery procedures. The district court held:

.A simple request for production of the appraisal report in [the condemnation] action will place the burden on the United States to produce the report or carry the burden of satisfying the court in that action that it should not be made available in that litigation. The court is of the opinion that the Freedom of Information Act may not be used, as a substitute for judicial resolution of discovery matters which may arise in pending litigation and that the discoverability of the report more appropriately should be resolved in the pending litigation.

This appeal requires consideration of three issues. The first issue is whether or not the district court was correct in dismissing the instant FOIA suit based upon the fact that there was a pending condemnation action between the parties. Since we find that the district court erred in dismissing the FOIA suit on that ground, we must consider the merits of appellant’s claim. The second issue is whether the appraisal constitutes an intra-agency memorandum under the terms of Exemption 5. The third issue, which the district court declined to consider, is whether the appraisal is discoverable in litigation between a private party and the agency. We agree with the district court that the appraisal is an intraagency memorandum. We further hold that the report is not routinely discoverable in litigation with the agency. As a result, we find that the appraisal falls within the provisions of Exemption 5, and need not be disclosed.

THE PROPRIETY OF THE DISMISSAL OF THE SUIT

The Department contends that the district court properly exercised its inherent equitable powers when it dismissed the instant FOIA suit because of the pending condemnation proceeding. The Department relies on a number of cases supporting broad application of the district court’s equitable powers to stay or dismiss its proceedings where other actions raising similar issues are pending. See, e. g., Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (“[a]s between federal district courts, . . . though no precise rule has evolved, the general principle is to avoid duplicative litigation”); Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952); Landis v. North American Co., 299 U.S. 248, 254— 55, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936). The Department cites Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), for the proposition that district courts retain their general equitable powers in FOIA actions. The Department urges that the dismissal is supported by the general proposition that the FOIA was not intended to benefit private litigants. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1513 n.10, 44 L.Ed.2d 29 (1975). Inherent in the argument is the conception that the issues to be resolved in the FOIA action and the condemnation proceeding are essentially the same, and that to allow both suits to proceed would inevitably result in the waste of judicial resources. See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1203 (2d Cir. 1970) (“[cjourts already heavily burdened with litigation with which they must of necessity deal should . . : not be called upon to duplicate each other’s work in cases involving the same issues and the same parties,” citing Crosley Corp. v. Hazel-tine Corp., 122 F.2d 925, 930 (3d Cir. 1941), cert. denied, 315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211 (1942)).

In an FOIA suit involving Exemption 5, the needs of particular litigants are not relevant to the question of disclosure. Rather, an FOIA action involves a determination of whether a document would “not be available by law to a party other than an agency in litigation with the agency.” The use of the indefinite article “a” preceding the word “party” indicates that Exemption 5 is to be applied “without regard to the particular circumstances or needs of any specific actual or hypothetical party.” Brockway v. Department of Air Force, 518 F.2d 1184, 1192 n.7 (8th Cir. 1975). This circuit has held in an analogous context that discovery in a criminal case under the Federal Rules of Criminal Procedure and the disclosure provisions of the FOIA “provide two independent schemes for obtaining information through the judicial process.” United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977). In Sears, the company making the FOIA request was also involved in related litigation concerning an unfair labor practice. The Supreme Court held that Sears’ rights under the FOIA were “neither increased nor decreased by reason of the fact that it claims an interest . greater than that shared by the average member of the public.” Sears, supra, 421 U.S. at 143 n.10, 95 S.Ct. at 1513 n.10. See Columbia Packing Co. v. United States Department of Agriculture, 563 F.2d 495, 499 (1st Cir. 1977). Considering the context in which such private litigation would ordinarily arise, the question can be put succinctly: In general, is a landowner entitled to discover the government’s appraisal during the pendency of the acquisition process? This question involves an objective analysis of the nature of the appraisal report.

The question of discoverability presented in the condemnation action is not related to the rights of general public access under the FOIA to agency documents. Instead, the discoverability of the appraisal may well turn on the specific and particular needs of the individual landowner.⁵ An appraisal is relevant in a condemnation proceeding to the extent that it bears upon the primary issue of just compensation. The question of disclosure of the appraisal in this FOIA suit must be considered within the confines of the agency’s decisionmaking process. Accordingly, we hold that the district court erred in dismissing the FOIA action upon the ground that the same issue was pending in the condemnation case. The appellant landowner’s right under the FOIA, where he is in effect asserting the rights of the public to obtain such appraisals, is inherently different than his particularized status as the landowner in the condemnation proceeding. He is entitled to vindicate his public rights in the instant FOIA suit in accordance with the requirements of the FOIA.

THE APPRAISAL AS AN INTRAAGENCY MEMORANDUM

Since we hold that appellant is entitled to assert a claim under the FOIA, we must reach the merits of his contention. The Department asserts that the appraisal is exempt from disclosure by virtue of Exemption 5. Analysis of that Exemption involves two separate inquiries, the first being whether the information sought is contained in an intra-agency memorandum. The district court found that the appraisal constituted an intra-agency document. We agree, and hold that the appraisal report in the present case, although prepared by an outside expert, is an intra-agency memorandum within the meaning of Exemption 5 under the logic of Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972), cert. denied, 410 U.S. 926, 93 5. Ct. 1352, 35 L.Ed.2d 586 (1973). In Wu, a scholar of Chinese history, who had previously filed an application for a grant from the National Endowment for the Humanities to write a history of the Chinese people, sought disclosure of the reports of the five outside experts who had evaluated his proposal and recommended that it be rejected. This Court denied the disclosure request holding, in part, that the experts’ reports were “intra-agency memoranda even though the five professors were not actually agency employees.” Wu, supra, 460 F.2d at 1032. The basis of the decision in Wu was a recognition of the fact that the government may have “a special need for the opinions and recommendations of temporary consultants . . . .” Id. quoting Soucie v. David, 145 U.S.App.D.C. 144, 155 n.44, 448 F.2d 1067, 1078 n.44 (D.C.Cir. 1971).⁶ See Aviation Consumer Action Project v. Wash-burn, 175 U.S.App.D.C. 273, 279-80, 535 F.2d 101, 107-08 (D.C.Cir. 1976). See generally Note, The Freedom of Information Act and the Exemption for Intra-agency Memoranda, 86 Harv.L.Rev. 1047, 1063-66 (1973).

The government’s need for special expertise is particularly clear in the present case. The government is often called upon to obtain land for various projects and it is a requirement, indeed a constitutional one, that just compensation be paid. In determining value, the government may deem it necessary to seek the objective opinion of outside experts rather than rely solely on the opinions of government appraisers. Especially in cases like the present one, where the parcel being sought by the government has unique attributes, unbiased expert opinion is particularly useful. It is also clear that an appraisal, even if obtained from outside experts, plays an integral function in the government’s decision whether to seek purchase or condemnation of the land and at what price.⁷ Indeed, the only court to consider the question has explicitly held that an appraisal constitutes an intra-agency memorandum within the meaning of Exemption 5. Martin Marietta Aluminum, Inc. v. Administrator, General Services Administration, 444 F.Supp. 945, 949 (C.D.Cal. 1977).

DISCOVERABILITY OF THE APPRAISAL REPORT

The second inquiry under Exemption 5 is whether the document in question consists of material that “would not be available by law to a party ... in litigation with the agency.” 5 U.S.C. § 552(b)(5). In considering the reach of Exemption 5, courts have construed its language to require disclosure only of those materials that are routinely discoverable in private litigation. Sears, supra, 421 U.S. at 149 n.16, 95 S.Ct. at 1516 n.16 (citing H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 (1966)), U.S.Code Cong. & Admin.News 1966, p. 2418; Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 243-44, 450 F.2d 698, 704-05 (D.C.Cir. 1971). See Federal Open Market Committee v. Merrill, -U.S.-,-, 99 S.Ct. 2800, 2808, 61 (1979); Brockway, supra, 518 F.2d at 1192 n.7. See generally 4 Moore’s Federal Practice ¶ 26.61[4.-3], The routinely discoverable standard implicit' in Exemption 5 is necessary because there are many instances where a private litigant may demonstrate sufficient need in light of the special facts of his case to overcome a qualified privilege asserted by the government. As Justice White stated, “it is not sensible to construe the Act to require disclosure of any document which would be disclosed in the hypothetical litigation in which the private party’s claim is the most compelling. Indeed, the House Report says that Exemption 5 was intended to permit disclosure of those intra-agency memoranda which would ‘routinely be disclosed’ in private litigation . , and we accept this as the law.” Sears, supra, 421 U.S. at 149 n.16, 95 S.Ct. at 1516 n.16 (cite omitted). This standard is directly related to the principle that a party’s asserted need for material is irrelevant in an action under the FOIA, since the litigant’s rights are determined by those of the public in general. See Note, The Freedom of Information Act and the Exemption for Intra-agency Memoranda,” supra, 86 Harv.L.Rev. at 1051 n.22.

The language “available by law” used in Exemption 5 indicates that courts should, in the first instance, refer to the Federal Rules of Civil Procedure and the case law construing it in order to resolve the question of discoverability under Exemption 5. EPA v. Mink, 410 U.S. 73, 85-86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973) (discovery rules applicable by way of “rough analogies”); Mead Data Central, Inc. v. United States Department of the Air Force, 184 U.S.App.D.C. 350, 360, 566 F.2d 242, 252 (D.C.Cir. 1977); Martin Marietta, supra, 444 F.Supp. at 949. See 4 Moore’s Federal Practice ¶ 26.61[4.-3], The government’s primary argument in this case is that the appraisal constitutes a report of an expert witness which under Rule 26(b)(4), Federal Rules of Civil Procedure, is subject to a qualified privilege.⁸ Since this limited privilege can only be overcome on the basis of a showing of substantial need, the government argues that it is not routinely discoverable within the meaning of the statute and thus need not be disclosed under the FOIA.⁹

In support of the claimed privilege, the Department asserts that its competitive position with the landowner would be adversely affected by premature disclosure of the appraisal during the negotiation process. Congressional hearings preceding the enactment of the FOIA indicated concern that such premature release of information might prejudice the government’s position in bargaining transactions including the purchase of real estate. See Federal Open Market Committee, supra, - U.S. -, 99 S.Ct. at 2811. Indeed, the House Report noted that “a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause is intended to exempt from disclosure this and other information and records . wherever necessary without, at the same time, permitting indiscriminate administrative secrecy.” H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 (1966), U.S.Code Cong. & Admin.News 1966, p. 2427.

Appellant asserts that appraisals are, in fact, routinely discoverable in civil litigation under the principles enunciated in United States v. Meyer, 398 F.2d 66 (9th Cir. 1968).¹⁰ The language used in Meyer in support of discovery in condemnation cases is quite broad. Yet, several factors weigh against accepting Meyer as determinative of the question whether the reports are routinely discoverable. The court in Meyer acknowledged that if the landowner “had been allowed access by oral deposition to relevant information known to the appraisers, an argument might be made that production of the appraisers’ reports should not be required without some showing of need.” Meyer, supra, 398 F.2d at 75 (footnote omitted). In Meyer, the government had denied practically all discovery of the opinions or facts known by the appraisers. Thus, the case did not squarely decide the question of the discoverability of the appraisal itself. The essence of the decision in Meyer is not that appraisals per se are discoverable, but that landowners should be able to discover the opinions and views of the appraisers in order to prepare for effective cross-examination.¹¹

The most compelling reason why Meyer is not controlling is that it was decided prior to the amendment of the discovery rules in 1970 which added Rule 26(b)(4). It is clear from the Advisory Committee notes on the amended rules that the discovery practices concerning expert appraisers, and by implication their reports, were meant to be controlled by the new rule. See Advisory Committee’s Explanatory Statement Concerning Amendments of the Discovery Rules, 48 F.R.D. 487, 503-05. See generally Bishop, The Availability and Use of Discovery Procedures in Condemnation Cases, 1977 Planning Zoning & Eminent Domain Inst. 369, 391; Note, Condemnation in Indiana: Discovery of Expert Appraisal Reports, 8 Valparaiso U.L.Rev. 409, 448-49 (1974). Cases since the amendment of the rules have considered discovery requests for appraisals within the confines of Rule 26(b)(4). United States v. 145.31 Acres of Land, 54 F.R.D. 359, 360 (M.D.Pa.1972) (“party is not entitled as a matter of course to an expert’s report itself nor to be informed of its location. Although the Court has the , power pursuant to Rule 26(b)(4)(A)(ii) to order discovery beyond these limits, the need for such discovery was not compelling here”), aff’d, 485 F.2d 682 (3d Cir. 1973); United States v. John R.-Piquette Corp., 52 F.R.D. 370, 372 (E.D. Mich.1971) (“the best course is to follow the ‘two-step’ procedure set forth in the amended rule rather than the ‘free discovery’ advanced by the Meyer case.”).

Thus, it is clear that we must consider the discoverability of the government’s appraisal under Rule 26(b)(4). The Rule provides for separate methods of discovery for those experts expected to testify at trial and those not expected to testify.¹² See Rule 26(b)(4)(A) and Rule 26(b)(4)(B). For an expert expected to testify, the opposing side is only entitled as of right to discover the identity of the witness, the subject matter of his expected testimony, and the substance of the facts and opinions of the expected testimony together with a summary of each opinion. Rule 26(b)(4)(A)(i). The primary purpose of this required disclosure is to permit the opposing party to prepare an effective cross-examination. 8 C.'Wright & A. Miller, Federal Practice and Procedure: Civil, § 2030. Further discovery is not possible as a matter of right, but must proceed on motion to the court. Rule 26(b)(4)(A)(ii). It is unclear what standard of need is required to obtain further discovery. See Graham, Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part One, An Analytical Study, 1976 U.I11.L.F. 895, 921-31. One case has held that in order to obtain an appraisal report under Rule 26(b)(4)(A)(ii), compelling need must be demonstrated. 145.31 Acres of Land, supra, 54 F.R.D. at 360. See Breedlove v. Beech Aircraft Corp., 57 F.R.D. 202, 205 (N.D. Miss.1972) (reports of experts in product liability case not discoverable under Rule 26(b)(4)(A)(i) and plaintiffs failed to show “unique or exceptional circumstances making it equitable to require the production of expert reports”); Wilson v. Resnick, 51 F.R.D. 510, 511 (E.D.Pa.1970) (doctor’s report in medical malpractice action need not be disclosed where answer to interrogatories submitted under Rule 26(b)(4)(A)(i) adequately informed plaintiff of the nature and substance of the expert’s testimony). But see Herbst v. International Telephone & Telegraph Corp., 65 F.R.D. 528 (D.Conn. 1975); In re IBM Peripheral EDP Devices Antitrust Litigation, 77 F.R.D. 39 (N.D.Cal. 1977). For experts not expected to testify, the rule is clear that discovery can only take place upon a showing of “exceptional circumstances.” Rule 26(b)(4)(B).¹³ In sum, despite some uncertainty over the requisite showing required under Rule 26(b)(4)(A)(ii), it is clear that a landowner is not entitled as a matter of right to discover the government’s appraisal report.

Thus with respect to appellant’s FOIA claim asserted in this suit, it cannot be said that the appraisal is routinely discoverable within the meaning of Exemption 5. As the cases cited above have shown, the government enjoys a qualified privilege protecting the contents of the appraisal report in condemnation proceedings. Moreover, the cases demonstrate that discovery of a government appraisal report is most often accomplished through exchange of appraisal reports between the opposing parties,⁴ a position inconsistent with appellant’s asserted right to unilateral access. See United States v. 2,001.10 Acres of Land, 48 F.R.D. 305, 308 (N.D.Ga.1969). This concern with mutuality with regard to expert evidence in general was recognized in the Advisory Committee’s Explanatory Statement. The Committee stated:

Past judicial restrictions on discovery of an adversary’s expert, particularly as to his opinions, reflect the fear that one side will benefit unduly from the other’s better preparation. The procedure established in subsection (b)(4)(A) holds the risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be. A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent’s experts.

Advisory Committee, supra, 48 F.R.D. at 504. It is our belief that this qualified privilege should be recognized in the instant FOIA action to avoid premature disclosure of the government’s appraisal report in order to protect the government’s bargaining position with the landowner during the negotiation process. See Federal Open Market Committee, supra,-U.S. at-, 99 S.Ct. at 2810-12.

In the alternative, the Department argues that the appraisal is exempt from disclosure under Exemption 5 by virtue of the recognized executive privilege protecting an agency’s decisionmaking process. Mink, supra, 410 U.S. at 87-89, 93 S.Ct. at 836-37. The Department contends that the appraisal report was prepared in order to assist it in deciding whether to acquire the property through purchase or condemnation. The appraiser was required to select, organize, and present the data from which his ultimate opinion of value was based. The report, as we have already recognized, was used by the Department in its decision-making process. The acquisition process is still continuing, so the appraisal remains vital to the Department’s litigation decisions. As such, appraisals have been held to fall within the confines of the executive privilege. Martin Marietta, supra, 444 F.Supp. at 949-50. We hold therefore that the appraisal report is also privileged under Exemption 5 by virtue of the executive privilege protecting the government’s decisionmaking process.

Accordingly, the decision of the district court is

AFFIRMED.

1 . The gray bat, scientific name myotis grisescens, is an endangered species and has a known distribution over the central and southeastern portions of the United States. 50 C.F.R. § 17.11 at 53 (1978).

2 . Another appraiser was employed prior to the appraiser in question, but the first appraiser was dismissed for reasons not relevant to this appeal. '

3 . Appellant requested eight separate items. The Department complied with six of the eight requests in toto. The Department denied, in part, certain documents pertaining to the dismissal of the first appraiser. The denied documents are no longer at issue. The Department also offered appellant, at a cost of $30, a “voluminous compilation of cave property sales” occurring in the past twenty years which apparently had been obtained from the first appraiser.

4 . United States of America v. 264.00 Acres of Land, More or Less, Situated in Jackson County, State of Alabama; Harry E. Hoover; His Wife; Charle J. Poque, Trustee; and Alabama Chemical Company, CA 78-1-5182-NE, N. D. Alabama. Discovery is in progress in that case. The Department subsequently obtained another appraisal, and the parties have exchanged appraisals. The report in controversy was not exchanged since the Department chose to rely on the new appraisal.

5 . Indeed, appellant’s argument that the cost of obtaining his own appraisal is prohibitive because of the specialized nature of his land may very well represent the kind of special need which would warrant disclosure in private litigation. But the normal rule in condemnation cases is that it is anticipated that both parties will have expert appraisals. See Comment, Discovery — Opinion of Adverse Party’s Prospective Appraiser-Witness Discoverable as of Right, 111 U.Pa.L.Rev. 509, 511-12 (1963).

6 . Appellant asserts that Wu is distinguishable because the experts involved in that case were unpaid volunteers who reasonably expected that their reports would remain confidential. The fact that an expert is paid does not imply that the government does not have some special need for his services. Neither can we see any special relevance to the fact that the experts in Wu had an expectation of privacy. Privacy interests are not relevant in Exemption 5 cases, and rather are served by other statutory safeguards. See 5 U.S.C. § 552(b)(6); 5 U.S.C. § 552a (Privacy Act).

7 . See 42 U.S.C. § 4651(3).

8 . The specific showing required for disclosure may depend upon whether the appraiser is or is not expected to testify at trial since the Rules contemplate separate procedures for the two possibilities. Rule 26(b)(4) provides:

Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope' and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

The Department also relies on the provisions of Rule 26(b)(3) concerning the discoverability of trial materials prepared in anticipation of litigation. As such, the appraisal report would be discoverable “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Rule 26(b)(3), Federal Rules of Civil Procedure.

It is clear that the appraisal report was prepared in anticipation of litigation. During the land acquisition process, the government must necessarily anticipate that negotiations for purchase will fail, thereby requiring condemnation. Appraisals are therefore obtained both for the purpose of providing a basis for an offer, and to support a claim of just compensation at a subsequent condemnation suit.

9 . A government privilege need not be absolute to be cognizable under Exemption 5. See Federal Open Market Committee v. Merrill, - U.S. -, -, 99 S.Ct. 2800, 2810-14, 61 L.Ed.2d 587 (1979).

10 . Appellant also relies on Tennessean Newspapers, Inc. v. Federal Housing Administration, 464 F.2d 657 (6th Cir. 1972), and General Services Administration v. Benson, 415 F.2d 878 (9th Cir. 1969), for the proposition that appraisals are disclosable because they contain essentially factual material as opposed to advisory opinions. See Environmental Protection Agency v. Mink, 410 U.S. 73, 87-88, 93 S.Ct. 827, 836-37, 35 L.Ed.2d 119 (1973). Benson is distinguishable because its clear holding is that an internal administrative regulation required disclosure. Benson, supra, 415 F.2d at 880. Also, Benson considered the request under the discovery rules prior to their amendment in 1970. Moreover, Benson apparently considered the appraisal report within the confines of Exemption 4 dealing with commercial or financial information which is confidential or privileged and not Exemption 5. Benson, supra, 415 F.2d at 881-82. Tennessean Newspapers is also distinguishable. In that case, the plaintiff had already obtained copies of the appraisal, but was seeking the name of the appraiser. Thus, the holding of the court is limited to the principle that the name of the appraiser is factual material which must be disclosed.

Most importantly, both cases involved disclosure requests for appraisals which were no longer being actively used by the government. As such, the asserted interest in protecting the government’s bargaining position is, of course, nonexistent. Thus, neither Benson nor Tennessean Newspapers is relevant to our consideration in this case. Martin Marietta Aluminum, Inc. v. Administrator, General Services Administration, 444 F.Supp. 945, 950 (C.D.Cal. 1977). Cf. Dworman Building Corp. v. General Services Administration, 468 F.Supp. 389 (S.D.N.Y. 1979) (appraisal should be disclosed where information contained therein is dated and too remote for disclosure to harm governmental interests).

11 . Moreover, Meyer is not representative of the state of the law at the time it was decided. Indeed, Meyer goes far beyond any previous precedent in supporting broad discovery rights of the landowner. Prior to Meyer, the majority of cases held that the landowner was not entitled to discovery of the government’s appraiser or his report absent a showing of good cause or need. See, e. g., United States v. 412.93 Acres of Land, 455 F.2d 1242, 1246-47 &.n.l2 (3d Cir. 1972) (applying pre-Amendment discovery rules); United States v. 900.57 Acres of Land, 30 F.R.D. 512 (W.D.Ark. 1962); United States v. Certain Acres of Land, 18 F.R.D. 98 (M.D.Ga. 1955). Some courts explained their refusal to permit discovery for the reason that since the “land is open to inspection by all parties, no information concerning the same is sought from the Government that is not readily available to the [landowners].” United States v. 7.534.04 Acres of Land, 18 F.R.D. 146 (N.D.Ga. 1954). See United States v. 6.82 Acres of Land, 18 F.R.D. 195 (D.N.M.1955). See also 6.816.5 Acres of Land v. United States, 411 F.2d 834 (10th Cir. 1969). Some courts permitted limited discovery of the facts known to the government’s appraiser, but withheld discovery of the expert’s opinions. See, e. g., United States v. 284,392 Square Feet of Floor Space, 203 F.Supp. 75, 77 (E.D.N.Y.1962); United States v. Certain Parcels of Land, 15 F.R.D. 224, 233-37 (S.D.Cal.1953). Yet, this distinction has been held inapplicable in the context of condemnation proceedings since any facts concerning the property are equally obtainable by the landowner. United States v. Certain Parcels of Land, 25 F.R.D. 192 (N.D.Cal.1959). It has been recognized that one of the facts which can be required to be disclosed is the government’s knowledge concerning comparable land sales which may not be easily obtainable by the landowner. See United States v. 48.49 Acres of Land, 32 F.R.D. 462, 463 (S.D. Cal. 1963). In the present case, however, the government offered to make available to appellant at a cost of $30 a report of comparable land sales involving cave properties. In another case permitting limited discovery, which was decided after Meyer, a court permitted discovery of. the appraisal only after the landowner prepared his own appraisal and agreed to exchange reports with the government. United States v. 2,001.10 Acres of Land, 48 F.R.D. 305, 308 (N.D.Ga.1969) (“[a]bsent a showing of hardship, or ‘unfairness,’ neither of which the [landowners] allege here, the [landowners] must make their own investigation and prepare their own case”). Thus, a fair review of the existing precedent at the time of the Meyer decision demonstrates that the discovery practice in condemnation suits was limited and not extended to routine discovery of appraisal reports.

12 . In the present case, the expert who prepared the appraisal in question is not expected to testify since the government has obtained another appraisal. There is no way to predict whether a particular appraiser will or will not be called upon to testify prior to the actual condemnation proceeding. The Rule is clear that the test for whether a particular expert should be treated under Rule 26(b)(4)(A) or Rule 26(b)(4)(B) is determined by whether the expert is “expected to testify,” and not by whether he “may testify.” See 8 C. Wright and A. Miller, Federal Practice and Procedure: Civil , § 2030. See generally Knighton v. Villi-an & Fassio e Compagnia, 39 F.R.D. 11, 13 (D.Md.1965); Friedenthal, Discovery and Use of An Adverse Party’s Expert Information, 14 Stan.L.Rev. 455, 482-88 (1962) (by controlling timing of discovery until after experts are selected discovery rules guard against unfairness by forcing each side to prepare its own case).

13 . A party seeking disclosure under Rule 26(b)(4)(B) carries a heavy burden. Barkwell v. Sturm Ruger Co., 79 F.R.D. 444, 446 (D.Alaska 1978). Discovery of an appraisal report under Rule 26(b)(4)(B) was denied in United States v. John R. Piquette Corp., 52 F.R.D. 370, 373 (D.Mich.1971).

4 . See McDougall v. Dunn, 468 F.2d 468, 473 (4th Cir. 1972) (under subsection (b)(3)); Thomas Organ Co. v. Plovidba, 54 F.R.D. 367, 370-71 (N.D.Ill.1972) (same); e. g., Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 408 (E.D.Va.1975).