## Facts

- Spirit Master Funding, LLC leased retail property to Pike Nurseries Acquisition, LLC for nursery operations.
- Spirit sued Pike for breach of the lease, alleging failure to pay rent and failure to maintain or repair the property.
- As the dispute escalated, Spirit retained two outside consultants, Hercules and Ramos, to inspect the property and prepare inspection reports.
- Pike served discovery requests seeking the consultants’ inspection reports and Spirit’s communications with the consultants.
- Spirit refused production, asserting the reports and communications were created in anticipation of litigation and were protected work product; Spirit also asserted the heightened protection for non-testifying consulting experts.
- Spirit supported its position with affidavits stating the consultants were retained because litigation was anticipated, not as part of routine property management.
- Pike argued the materials were created in the ordinary course of business and therefore were not protected.

## Issues

1. Whether inspection reports and related communications created by non-testifying consulting experts retained in anticipation of litigation are protected from discovery under Rule 26.
2. Whether documents serving both business and litigation purposes lose work-product protection when a business purpose is also present.
3. Whether the requesting party showed “substantial need” (work product) or “exceptional circumstances” (non-testifying experts) sufficient to compel production.

## Decision

- The court denied Pike’s motion to compel.
- The court held the inspection reports and related communications were protected attorney work product because they were prepared by consultants retained in anticipation of litigation.
- The court held the consultants were non-testifying experts under Rule 26(b)(4)(D), making their facts and opinions discoverable only upon a showing of exceptional circumstances.
- The court found Pike failed to show substantial need or exceptional circumstances because it could obtain information about the property condition through other means, including its own inspection and standard discovery directed to Spirit.

## Legal Principles

- Materials prepared in anticipation of litigation by or for a party (including consultants) are protected work product under Rule 26(b)(3) unless the requesting party shows substantial need and inability to obtain the substantial equivalent without undue hardship.
- Facts known or opinions held by non-testifying experts retained in anticipation of litigation are discoverable only on a showing of exceptional circumstances under Rule 26(b)(4)(D).
- Documents with dual business and litigation purposes may qualify as work product when anticipation of litigation was a significant motivating reason for their creation.
- No substantial need or exceptional circumstances exists when the requesting party can obtain the same underlying facts through alternative methods such as inspections, interrogatories, and depositions.

## Conclusion

The court treated the landlord’s consultant inspection reports and related communications as protected work product and as non-testifying expert materials, and it refused to compel production because the tenant could develop equivalent information through ordinary discovery and thus failed to meet Rule 26’s heightened thresholds.


Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680 (N.D. Ga. 2012)