Nos: 02-4404/05/06/07/08/09/10/11/47 ELISABETH SHARP v. Government of the Virgin Islands

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos: 02-4404/05/06/07/08/09/10/11/47
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ELISABETH SHARP
v.
GOVERNMENT OF THE VIRGIN ISLANDS;
ROY MARTIN, TAX ASSESSOR
Government of the Virgin Islands and Roy Martin
Appellants
CYRIL V FRANCOIS ASSOCIATES
v.
GOVERNMENT OF THE VIRGIN ISLANDS;
ROY MARTIN, TAX ASSESSOR
Government of the Virgin Islands and Roy Martin
Appellants in No. 02-4405

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SUGAR BAY CLUB AND RESORT CORP.
v.
GOVERNMENT OF THE VIRGIN ISLANDS;
ROY MARTIN, TAX ASSESSOR
Government of the Virgin Islands and Roy Martin
Appellants in 02-4406
ROBERT SCHMIDT; KIM HOLDSWORTH;
ROBERT SCHMIDT DEVELOPMENT CORP;
DORI P. DERR
v.
GOVERNMENT OF THE VIRGIN ISLANDS;
ROY MARTIN, TAX ASSESSOR
Government of the Virgin Islands and Roy Martin
Appellants in 02-4407
LINDON CORP; GORDON L. COFFELT;
SORAYA DIASE COFFELT; ONE STOP, INC.
v.

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GOVERNMENT OF THE VIRGIN ISLANDS;
ROY MARTIN, TAX ASSESSOR; BOARD
OF TAX REVIEW
Government of the Virgin Islands and Roy Martin,
Appellants in 02-4408
BERNE CORPORATION; B&B CORPORATION;
TWENTY-ONE QUEEN QUARTER, INC.
v.
GOVERNMENT OF THE VIRGIN ISLANDS; ROY MARTIN,
IN HIS OFFICIAL CAPACITY AS TAX ASSESSOR;
VIRGIN ISLANDS BOARD OF TAX REVIEW
Government of the Virgin Islands and Roy Martin
Appellants in 02-4409
SHELL SEEKERS, INC; CHARLES W. CONSOLVO;
LINDA B. CONSOLVO; SNEGLE GADE, A LIMITED
PARTNERSHIP; YVETTE B. TRUST LEDERBERG;
ARTHUR B. CHOATE; STACY LOVELAND; STEWART
LOVELAND
v.
VIRGIN ISLANDS TAX REVIEW BOARD; GOVERNMENT
OF THE VIRGIN ISLANDS; ROY MARTIN, IN HIS
OFFICIAL CAPACITY AS TAX ASSESSOR

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Government of the Virgin Islands and Roy Martin
Appellants in 02-4410
MILLER PROPERTIES, INC.
v.
GOVERNMENT OF THE VIRGIN ISLANDS;
ROY MARTIN, TAX ASSESSOR
Government of the Virgin Islands and Roy Martin
Appellants in 02-4411
BLUEBEARD'S CASTLE, INC.; CASTLE
ACQUISTIONS, INC.
v.
GOVERNMENT OF THE VIRGIN ISLANDS; ROY
MARTIN, IN HIS OFFICIAL CAPACITY AS
TAX ASSESSOR
Government of the Virgin Islands and Roy Martin
Appellants in 02-4447
Appeal from the District Court of the Virgin Islands
(D.C. Civil Action Nos. 01-cv-00228, 01-cv-00196, 01-cv-00181,
02-cv-00057, 00-cv-00141, 01-cv-00197, 01-cv-00151, 01-cv-00155)
District Judge: Honorable Thomas K. Moore

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Submitted Under Third Circuit LAR 34.1(a)
on May 1, 2003
Before: ROTH, MCKEE and COWEN Circuit Judges
Opinion filed August 29, 2003
O P I N I O N
ROTH, Circuit Judge:
This is an appeal from a November 19, 2002 order by the United States District
Court of the Virgin Islands. The Government of the Virgin Islands and the Virgin Islands
Tax Assessor (Government) were sued by the Appellees (Commercial Property Owners),
who contested the method utilized by the Government to assess their property.
The Commercial Property Owners sought to discover copies of documents
prepared by Kenneth Voss, a government contractor. The Government objected, claiming
that the documents were prepared in anticipation of litigation. Pursuant to Federal Rules
of Civil Procedure Rule 26(b)(3), the appellants sought to protect the documents from
discovery. They requested that the District Court examine the documents in camera. At
the conclusion of the in camera hearing, the District Court ordered the Government to
turn over the documents to the Commercial Property Owners. The Government filed a

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motion to stay the production of the documents pending appeal. On January 9, 2003, the
District Court denied the stay and the Government produced the documents to counsel for
the Commercial Property Owners.
The following issues are raised on appeal: Did the District Court abuse its
discretion when it ordered the Government to produce the documents or, more
specifically, were the documents prepared in anticipation of litigation. If the documents
were prepared in anticipation of litigation, did the Commercial Property Owners
demonstrate that obtaining the substantial equivalent by other means would expose them
to an undue hardship
We have jurisdiction pursuant to 28 U.S.C. § 1291. Discovery orders are reviewed
for abuse of discretion. See Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d
124, 138 (3d Cir. 2000). A court abuses its discretion if the reasoning is clearly erroneous
or contrary to law. See Id. at 139. A finding is “clearly erroneous when the reviewing
court on the entire evidence is left with a definite and firm conviction that a mistake has
been committed.” In re Life USA Holding, Inc., 242 F.3d 136, 143 (3d Cir. 2001) (citing
United States v. Igbonwa, 120 F.3d 437, 440 (3d Cir. 1997)).
The work product doctrine was first announced in Hickman v. Taylor, 329 U.S.
495 (1947). After Hickman, Congress codified the Court’s holding in Federal Rules of
Civil Procedure Rule 26(b)(3). See In re Grand Jury Subpeona Duces Tecum, 112 F.3d
910, 924 (8th Cir. 1997). In determining whether a document or other tangible item is

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protected work product, courts consider the nature of the document and the factual
circumstances of the particular case. Martin v. Bally’s Park Place Hotel and Casino, 983
F.2d 1252, 1260 (3d Cir. 1993) (citing In re Grand Jury Proceedings, 604 F.2d 798, 803
(3d Cir. 1979)). After considering those factors, the court must determine whether the
document can be fairly identified as prepared in anticipation of litigation. Id. Litigation
need not be imminent . . . as long as the primary motivating purpose behind the creation
of the document was to aid in possible future litigation.” United States v. Rockwell, 897
F.2d 1255, 1266 (3d Cir. 1990) (citing United States v. El Paso Co., 682 F.2d 530, 542
(5th Cir. 1982)). The party claiming work product immunity has the burden of proving
that the materials were in fact prepared in anticipation of litigation. Holmes, 213 F.3d at
138. Work product prepared in the ordinary course of business is not protected from
discovery. Id.
Based on the fact that Kenneth Voss’s contracts and the appraisals themselves did
not support the Government’s assertion that the appraisals were protected by the work
product doctrine, the District Court ordered the Government to turn over the appraisals. It
is clear from our review of the record that the appraisals were not prepared in anticipation
of litigation.
Voss’s contract clearly states that he was hired to facilitate compliance with the
mandate of the District Court, pursuant to the Berne Settlement. Voss was to update the
appraisal manual, create income valuation methods, and develop continuing education for

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personnel. While working for the Tax Assessor’s Office, Voss’s primary purpose was to
aid the office in complying with Berne and re-valuating all commercial properties. The
re-valuation of commercial properties necessarily encompassed appraising the properties
regardless of pending or future appeals. Accordingly, we do not find that the District
Court abused its discretion when it found that the language of Voss’s contracts did not
support the Government’s claim that the appraisals deserved work product protection.
Though Voss’s renewed contract did include the added purpose of preparing
appraisals for individual properties under appeal, this does not establish that the
appraisals were created with the primary purpose of preparing for anticipated litigation.
In limiting work product to materials prepared in anticipation of litigation, the drafters of
Rule 26 excluded “materials assembled in the ordinary course of business, or pursuant to
public requirements . . . for other non-litigation purposes.” Fed. R. Civ. P. 26(b)(3)
advisory committee note. An examination of 33 V.I.C. §§ 2402, 2403, 2404 illustrates
that the appraisals were done in the ordinary course of business of the Tax Assessor’s
Office, pursuant to public requirements for non-litigation purposes. Virgin Island law
states that the Tax Assessor must “value and assess all commercial property” annually.
33 V.I.C. § 2402 (b). Therefore, the appraisals would have been prepared regardless of
whether the particular property was the subject of pending litigation. Furthermore, the
Tax Assessor is required to consider certain factors when assessing property. 33 V.I.C. §
2404. When preparing the appraisals, Voss considered all of the factors that the Tax

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Assessor is required to consider when performing his annual duty of assessing
commercial property. Voss also followed the statutorily mandated method for preparing
assessments. See 33 V.I.C. § 2403. Thus, the appraisals were created in the ordinary
course of business of the Tax Assessor’s Office, pursuant to public requirements for non-
litigation purposes. Accordingly, the appraisals do not deserve protection under the work
product doctrine.
For the reasons set forth above, we conclude that the District Court did not abuse
its discretion. Accordingly, we will affirm the order of the District Court.

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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Judge Jane R. Roth
Circuit Judge

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