author: D. MICHAEL SWINEY, J.,

text:
    FIRST TENNESSEE BANK NATIONAL ASSOCIATION v. BAD TOYS, INC., et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    June 7, 2004 Session.
    Sept. 14, 2004.
    Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      R. Wayne Culbertson, Kingsport, Tennessee and Terry Risner, Mount Carmel, Tennessee, for the Appellants, Bad Toys, Inc., Larry N. Lunan, and Susan H. Lu-nan.
    Robert L. Arrington, Kingsport, Tennessee, for the Appellee, First Tennessee Bank National Association.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and' CHARLES D. SUSANO, JR., J., joined.

First Tennessee Bank National Association (“the Bank”) sued Bad Toys, Inc. and Larry N. Lunan on a note that allegedly was “fully mature, owing and unpaid.” The note had been cross-collateralized with two other notes payable to the Bank. The three notes and the attendant guaranty agreements and security agreements were executed either by Bad Toys, Inc., Larry N. Lunan, or Susan H. Lunan (“Defendants” or as appropriate “the Lunans”). In addition to other collateral, shares of stock were pledged as collateral for the notes. Bad Toys, Inc. and Larry N. Lu-nan answered the complaint and filed a counter-complaint in which Susan H. Lu-nan joined as a counter-plaintiff. The counter-complaint alleged, in part, that the Bank had breached its fiduciary duty to the Lunans by failing to sell the pledged stock and that the Bank either had been grossly negligent or had intentionally caused harm to Defendants by refusing to sell the stock. The Bank filed a motion to dismiss and for summary judgment. Defendants opposed by filing the Lunans’ affidavit claiming that the Bank had agreed to sell the shares of stock as soon as they were pledged, even though the Lunans were forbidden by an agreement with other shareholders from selling the stock themselves, and that the Bank failed to sell the shares of stock as it had agreed to do. The Trial Court held the Lunans’ affidavit should be stricken, in part, and granted the Bank summary judgment. Defendants appeal. We affirm.

Background

On September 1, 2000, Susan Lunan executed a note (“Note 1”) in the amount of $48,000 payable to the Bank. Note 1 was secured by a security interest in a 2000 Mercedes-Benz automobile and by a pledge of shares of stock. Larry Lunan guaranteed payment of Note 1 by executing a separate guaranty. On December 29, 2001, Bad Toys, Inc. executed a note (“Note 2”) payable to the Bank in the amount of $50,000. The Lunans guaranteed payment of Note 2 with a separate guaranty agreement. Note 2 is secured by a security interest in a 1999 Phoenix Custom motorcycle and five additional motorcycle frames, and by a pledge of the same shares of stock securing Note 1. On June 18, 2001, the Lunans executed a note (“Note 3”) in the amount of $20,000 payable to the Bank. Note 3 was secured by a security interest in a 1987 Mercedes-Benz automobile and a 1974 Harley-Davidson motorcycle. Notes 1, 2, and 3 were cross-collateralized. In May of 2003, the Bank sued Bad Toys, Inc. and Larry Lunan on Note 2.

Note 2 provides, in pertinent part:

Any money or other property at any time in the possession of the Bank belonging to the undersigned or any other parties liable hereon, and any deposits or other sums at any time credited by or due from the Bank to the undersigned or any other parties liable hereon, may at all times, at the option of the Bank, be held and treated as collateral security for the payment of this Note or any other liability of any of the undersigned, or any other party liable hereon to the Bank, whether due or not due. The Bank may, at any time, at its option, and without notice, setoff the amount due or to become due hereon against the claim of any of said parties against the Bank.

The Guaranty Agreement signed by the Lunans in connection with Note 2 provides, in pertinent part:

The Bank shall have the exclusive right to determine how, when and what application of payments and credits, if any, shall be made on said indebtedness, or any part thereof, and shall be under no obligation, at any time, to first resort to, make demand on, file a claim against, or exhaust its remedies against [the Lu-nans], any one or more of the undersigned, or other persons or corporations, their properties or estates, or to resort to or exhaust its remedies against any collateral, security, property, liens or other rights whatsoever.
In the event of the death, incompetency, dissolution, liquidation, insolvency (however evidenced) of, or institution of bankruptcy or receivership proceedings by or against [the Lunans], all of the indebtedness of [the Lunans] then existing shall, for the purposes of this guaranty, and at the option of the Bank, immediately become due and payable from [the Lunans]; ...
No act of commission or omission of any kind, or at any time, on the part of the Bank in respect of any matter whatsoever shall in any way affect or impair this guaranty.
This guaranty contains the entire agreement between the parties and every part thereof shall be binding upon [the Lu-nans], jointly and severally, and upon their respective heirs, legal representatives, successors and assigns, as fully as though everywhere specifically mentioned, and shall be construed according to the laws of the State of Tennessee, in which State it shall be performed by [the Lunans].

The Security Agreement executed by Susan Lunan in connection with Note 2 provides, in pertinent part:

Upon the maturity of any note or other obligation (whether maturity be according to the face of said note or other obligation or by virtue of the exercise of the option hereinabove given the Bank), the Bank may, without notice or demand, forthwith apply any balances of any deposits of the undersigned with the Bank toward the payment of any and all of the liabilities of the undersigned to the Bank and may likewise forthwith realize upon any property of the undersigned in the Bank’s possession and receive the proceeds therefrom, and may also, in accordance with the applicable provisions of the Tennessee Uniform Commercial Code, sell at public or private sale, or at any exchange or broker’s board, at such prices as it may deem best, either for cash or on credit or for future delivery, any part or all securities or property of any kind held by it as collateral security or in which it may have a lien or security interest....

The Commercial Security Agreement executed by the Lunans in connection with Note 3, which is cross-collateralized with Notes 1 and 2, provides, in pertinent part:

If [the Bank] at any time has possession of any Collateral, whether before or after an Event of Default, [the Bank] shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if [the Bank] takes such action for that purpose as [the Lunans] shall request or as [the Bank], in [the Bank’s] sole discretion, shall deem appropriate under the circumstances, but failure to honor any request by [the Lunans] shall not of itself be deemed to be a failure to exercise reasonable care. [The Bank] shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, nor to protect, preserve or maintain any security interest given to secure the indebtedness.
If an Event of Default occurs under this Agreement, at any time thereafter, [the Bank] shall have all the rights of a secured party under the Tennessee Uniform Commercial Code. In addition and without limitation, [the Bank] may exercise any one or more of the following rights and remedies:
Sell the Collateral. [The Bank] shall have full power to sell, lease, transfer, or otherwise deal with the Collateral or proceeds thereof in [the Bank’s] own name or that of [the Lunans]. [The Bank] may sell the Collateral at public auction or private sale. Unless the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market, [the Bank] will give [the Lunans] reasonable notice of the time after which any private sale or any other intended disposition of the Collateral is to be made....
This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

The shares of stock pledged as collateral for the notes initially were shares of a corporation named Bad Toys, Inc. In 2000, the Lunans entered into a reverse merger transaction in which Bad Toys, Inc. divested itself of assets and merged with a company named MyCom Group, Inc. Bad Toys, Inc. was the surviving corporation of the reverse merger, but it immediately changed its name to MyCom Group, Inc. Thus, the shares pledged as collateral for the notes were MyCom Group, Inc. shares. The assets of the original Bad Toys, Inc. corporation were then transferred to BTMC, Inc., another corporation owned by the Lunans. BTMC, Inc. then changed its name to Bad Toys, Inc. This new Bad Toys, Inc. is the corporation named as a Defendant in this case.

In connection with the reverse merger transaction discussed above, the Lunans entered into an agreement (“Dribble Agreement”) with the other MyCom Group, Inc. shareholders, which provided that the shareholders could sell their shares in MyCom Group, Inc. only in certain stated increments over a specified period of time. The Dribble Agreement, however, did not prevent the shareholders from pledging their stock as collateral for loans. A pledgee on a loan would not be prevented from foreclosing on the collateral if the loan was in default.

Although the Lunans and Bad Toys, Inc. were from time to time in arrears in making some of the loan payments, the loans were not declared in default until after December 10, 2002, when Susan Lunan filed a bankruptcy petition under Chapter 11 of the United States Bankruptcy Code. In May of 2003, the Bank filed this suit against Bad Toys, Inc. and Larry Lunan for the indebtedness on Note 2 claiming, in part, that the debt was “fully mature, owing and unpaid.” Bad Toys, Inc. and Larry Lunan answered the complaint and filed a counter-complaint in which Susan Lunan joined. The counter-complaint alleged, in part, that the Bank had breached its fiduciary duty to the Lunans by failing to sell the stock pledged as collateral and that the Bank either had been grossly negligent or had intentionally caused Defendants harm by refusing to sell the stock.

During the period between when the shares of stock were pledged as security for the notes and the time when the limitation on the sale of the stock under the Dribble Agreement expired, the value of the stock declined. Defendants assert that the shares of stock were trading for $2.25 per share when they were pledged. However, a Supplement to Financial Statements that the Lunans provided to the Bank in August of 2000, shows that although the Lunans expected the share value to exceed $2.00 per share by the time the Dribble Agreement expired, the price was only 53 cents per share at that time. By the time the Dribble Agreement limitation on the sale of the shares of stock expired, the stock was trading for no more than four cents per share.

The Bank filed a motion to dismiss and for summary judgment. In opposition, the Lunans filed an affidavit supporting their claim that the Bank represented it would sell the stock if it was pledged as security for the loans. The affidavit states, in part, that the Bank told the Lunans that it had the Dribble Agreement analyzed and had determined it would have the right to sell the shares of stock if, and as soon as, they were placed as collateral. The affidavit also asserts that , the Bank represented it immediately would sell the shares of stock “to satisfy the obligations of the Lunans and provide additional funds that would be for the benefit of the Lunans.” Further, the affidavit states the Lunans made several requests to the Bank to sell the stock and the Bank never “advised either of the Lunans that they had reversed their decision to sell the stock certificates.” The Lunans do admit, however, that there is no document showing that the Bank had the right to sell the shares of stock except in accordance with the security agreements executed in connection with the notes.

The Trial Court entered an Order and Writ of Possession on September 17, 2003, finding and holding, inter alia, that there was no genuine issue of material fact, that the Bank was entitled to judgment as a matter of law on the undisputed facts, and that the affidavit submitted by the Lunans “seeks to inject proof of statements made prior to the execution of the Note, Security Agreement and other loan documents at issue in this case, ...” and fails to set forth facts admissible in evidence and, therefore, to that extent should be stricken. The order also dismissed the counter-complaint and awarded the Bank immediate possession of the 1974 Harley-Davidson motorcycle and the motorcycle frames pledged as collateral for the loans and held Defendants hable for any deficiency on the note after the Bank’s disposal of the collateral. Defendants appeal to this Court.

Discussion

Although not stated exactly as such, Defendants raise two issues on appeal: 1) whether the Trial Court erred in striking the Defendants’ affidavit “to the extent it seeks to inject proof of statements made prior to the execution of the Note, Security Agreement and other loan documents at issue in this case... and, 2) whether the Trial Court erred in granting the Bank’s motion to dismiss and for summary judgment.

In Blair v. West Town Mall, our Supreme Court recently reiterated the standards applicable when appellate courts are reviewing a motion for summary judgment. Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004). In Blair, the Court stated:

The standards governing an appellate court’s review of a motion for summary judgment are well settled. Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court’s judgment, and our task is confined to reviewing the record to determine whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn.2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is appropriate where: 1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and 2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d at 88.
When the party seeking summary judgment makes a properly supported motion, the burden shifts to the non-moving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact.
To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. If the moving party fails to negate a claimed basis for the suit, the non-moving party’s burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-64, 767 (quoting Staples, 15 S.W.3d at 88-89 (citations omitted)).

Our Supreme Court has also provided instruction regarding assessing the evidence when dealing with a motion for summary judgment stating:

The standards governing the assessment of evidence in the summary judgment context are also well established. Courts must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000).

We first will consider whether the Trial Court erred in striking, in part, the Lu-nans’ affidavit. Defendants argue they gave permission for the Bank to sell the shares of stock and the Bank agreed to do so immediately, even though the Lunans were forbidden from selling the stock themselves. The Lunans’ affidavit claims, in part, that the Bank represented it had the Dribble Agreement analyzed and determined that if the shares of stock were pledged as collateral, the Bank could sell them; that the Bank would sell the stock if the Lunans executed a pledge agreement; and that the Lunans delivered the stock certificates to the Bank based upon the Bank’s representation that it would sell the stock once it was pledged so as to satisfy the Lunans’ obligations and provide additional funds to go to the Lunans’ benefit. The affidavit further states the Lu-nans made several requests to the Bank to sell the stock, but the Bank never did so and never advised the Lunans “that they had reversed their decision to sell the stock certificates.” In short, the Lunans claimed in their affidavit that the Bank agreed, prior to the execution of the relevant loan documents, that it would immediately sell the stock if it was pledged so as to enable the Lunans to avoid the restrictions placed on them by the Dribble Agreement, and that the Bank later refused to do what it had orally promised to do prior to the execution of the loan documents.

The Trial Court held Defendants’ affidavit should be stricken “to the extent it seeks to inject proof of statements made prior to the execution of the Note, Security Agreement and other loan documents at issue in this case ...” because it fails to “set forth facts that are admissible in evidence, as required by Tenn. R. Civ. P. 56.06.... ” The Trial Court struck these portions of the Lunans’ affidavit as a violation of the parol evidence rule and, therefore, those “facts” are not admissible in evidence.

As this Court discussed in GRW Enters., Inc. v. Davis:

The parol evidence rule is a rule of substantive law intended to protect the integrity of written contracts. Since courts should not look beyond a written contract when its terms are clear, the parol evidence rule provides that contracting parties cannot use extraneous evidence to alter, vary, or qualify the plain meaning of an unambiguous written contract.
The rule appears to be quite all-encompassing. However, the courts have been reluctant to apply it mechanically and have now recognized that it has numerous exceptions and limitations. Thus, the rule does not prevent using extraneous evidence to prove the existence of an agreement made after an earlier written agreement, or to prove the existence of an independent or collateral agreement not in conflict with a written contract. In each of these circumstances, the courts have conceived that the parol evidence is not being used to vary the written contract but rather to prove the existence of another, separate contract.

GRW Enters., Inc. v. Davis, 797 S.W.2d 606, 610 (Tenn.Ct.App.1990) (citations omitted).

We first must look to the documents that constitute the original written contract between the parties to determine if the terms are clear and unambiguous. A careful review of the note, guaranty agreement, and security agreements provided in the record on appeal shows that the documents are clear and unambiguous. The documents provide that the Bank had the right to sell the collateral pledged only upon default. In addition, the documents provide that while the Bank had the option of selling the collateral upon a default, it was not required to do so. Nothing in the documents either gives the Bank the right to sell the collateral prior to a default or requires it do so at anytime. Defendants’ position is that the Bank agreed to do something that, at best, was questionable, i.e., immediately sell the shares of stock for the Lunans’ benefit even though the Lunans were prohibited from doing so themselves.

As the written contract between the parties is clear and unambiguous, we next review the loan documents to determine if the affidavit is an attempt to prove an independent or collateral agreement not in conflict with the written contract, as argued by Defendants. In this case, the loan documents clearly state they constitute the entire agreement between the parties. In addition, the Lunans’ affidavit attempts to contradict the clear terms of the written agreement by stating the Bank represented it would sell the stock prior to a default and that the Bank was obligated under this oral agreement to sell the stock as soon as it was pledged to satisfy the Lu-nans’ obligations and provide the remaining funds to the Lunans’ benefit. Clearly, the Lunans’ affidavit is extraneous evidence introduced in an attempt to alter or vary a loan agreement so as to change the plain meaning of the unambiguous written loan contract. Thus, the affidavit filed by Defendants violates the parol evidence rule. We hold that the Trial Court was correct in striking, in part, the Lunans’ affidavit.

We next consider whether the Trial Court erred in granting the Bank’s motion to dismiss and for summary judgment. It is clear from the Trial Court’s order that it considered documents outside the pleadings and, therefore, what the Trial Court granted was summary judgment. Having upheld the Trial Court’s decision to strike, in part, the Lunans’ affidavit, we affirm the Trial Court’s decision that there was no genuine issue of material fact and that the Bank was entitled to summary judgment as granted by the Trial Court on both the counter-complaint and the Bank’s original complaint.

In Tennessee, “the duty of reasonable care when applied to stock pledged as collateral refers to the physical possession of the stock certificates and neither imposes liability upon a lender if the market value of the stock declines nor establishes a duty to notify the pledgor of the decline in value.” Marriott Employees’ Fed. Credit Union v. Harris, 897 S.W.2d 723, 728 (Tenn.Ct.App.1994).

In this case, the Bank owed no duty to the Lunans to sell the stock in contravention to the loan documents. As discussed above, the Bank, under the loan documents, only had the right to sell the collateral after a default and, thus, could not have owed a duty to sell the stock prior to a default. In addition, the Bank did not owe a duty to monitor the value of the stock or to notify the Lunans of a decline in value. Defendants have not alleged that the Bank breached any duty regarding keeping the physical possession of the stock certificates. Further, it is undisputed that while the loan documents gave the Bank the right to sell the stock pledged as collateral only upon a default, those same loan documents provided that the Bank was not required to do so. The loan documents control, and the Defendants failed to produce any evidence showing the existence of any genuine dispute as to any material fact.

In this case, the Bank showed, and the Trial Court properly found, that there was no genuine issue with regard to the material facts relevant to its claim and the counter-claim. In addition, the Bank showed, and the Trial Court properly held, that it was entitled to a judgment as a matter of law on the undisputed facts. The burden then shifted to Defendants to establish the existence of disputed material facts, or to affirmatively negate an essential element of the Bank’s claim, or establish an affirmative defense. Defendants cannot rely upon those portions of their affidavit as stricken. They have submitted no other proof that would establish the existence of disputed material facts. Neither have they affirmatively negated an essential element of the Bank’s claim, or established an affirmative defense. Therefore, the loan documents control, and we hold the grant of summary judgment to the Bank was proper.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. The costs on appeal are assessed against the Appellants, Bad Toys, Inc., Larry N. Lunan, and Susan H. Lunan, and their surety.


source: Caselaw Access Project

author: WILLIAM C. KOCH, JR., P.J., M.S.,

license: Public Domain

text:
    Gretchen SWIFT v. John CAMPBELL et al.
    Court of Appeals of Tennessee, at Nashville.
    July 9, 2004 Session.
    Aug. 25, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 31, 2005.

      Michael J. Passino, Nashville, Tennessee, for the appellant, Gretchen Swift.
    Paul G. Summers, Attorney General and Reporter, and Richard H. Dunavant, Assistant Attorney General, for the appellees, John Campbell and William Gibbons.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S.,

delivered the opinion of the court,

in which WILLIAM B. CAIN and FRANK G. CLEMENT, JR., JJ., joined.

This appeal involves the right to inspect and copy the contents of an assistant district attorney general’s files in a case involving a prisoner on death row. An assistant district attorney general for the Thirtieth Judicial District denied the request of an attorney employed by the Office of the Federal Public Defender to inspect and copy the records he created while preparing for a concluded state proceeding being challenged in federal court. Thereafter, the requesting attorney filed suit in the Chancery Court for Davidson County pursuant to Tenn.Code Ann. § 10-7-505 (1999) asserting her right under TenmCode Ann. § 10-7-503 (Supp.2003) to inspect and copy the assistant district attorney’s records. Following a hearing, the trial court dismissed the petition based on Tenn. R.Crim. P. 16, the work product doctrine, the law enforcement investigative privilege, and the deliberative process privilege. The requesting attorney has appealed. We have determined that Tenn. R.Crim. P. 16 protects the requested records from disclosure because a federal proceeding challenging the state proceeding for which the records were prepared is currently pending.

I.

On August 5, 1981, Philip Workman shot and killed a Memphis police lieutenant during a botched robbery at a Wendy’s Restaurant in Memphis, Tennessee. In 1982, a jury in Memphis convicted Mr. Workman of first degree murder and sentenced him to death. The Tennessee Supreme Court later affirmed both his conviction and his sentence, and the United States Supreme Court declined to review the case. Mr. Workman later filed two unsuccessful petitions for post-conviction relief in state court, an unsuccessful habe-as corpus petition in federal court, and an unsuccessful petition to file a second habe-as corpus action in federal court.

Thereafter, Mr. Workman filed a petition for a statutory writ of error coram nobis in the Criminal Court for Shelby County asserting that newly discovered evidence which was unavailable at his 1982 trial demonstrated that he did not shoot the police lieutenant. The State of Tennessee was represented by Assistant District Attorney General John Campbell in these proceedings. The criminal court dismissed the petition because it was not timely filed, and the Tennessee Court of Criminal Appeals affirmed. However, the Tennessee Supreme Court reversed the order and remanded the case for a hearing on the petition. Workman v. State, 41 S.W.3d 100 (Tenn.2001). The criminal court thereafter held a hearing and determined that neither the recantation testimony nor the newly discovered X-ray warranted coram nobis relief. The court’s decision was affirmed by the Tennessee Court of Criminal Appeals in 2002, and in 2003, the Tennessee Supreme Court denied Mr. Workman’s application for permission to appeal. State v. Workman, 111 S.W.3d 10 (Tenn.Crim.App. Dec. 30, 2002), perm. app. denied (Tenn. May 19, 2003).

On September 3, 2003, Mr. Workman filed a petition for writ of habeas corpus in the United States District Court for the Western District of Tennessee collaterally attacking the recently concluded state court writ of error coram nobis proceeding. Five days later, on September 8, 2003, Gretchen Swift, an attorney employed by the Office of the Federal Public Defender in Nashville, presented a written request under Tenn.Code Ann. § 10-7-503 to General Campbell requesting the opportunity to inspect and copy all of the documents in possession of the District Attorney General for the Thirtieth Judicial District that had been prepared in the State’s defense of Mr. Workman’s petition for a writ of error coram nobis. General Campbell denied Ms. Swift’s request in a letter dated September 10, 2003, on the ground that the file was not “closed” in light of the pending federal proceedings.

On September 11, 2003, Ms. Swift filed a petition pursuant to Tenn.Code Ann. § 10-7-505 seeking a court order permitting her to inspect and copy all records in the custody of the Office of the District Attorney for the Thirtieth Judicial District “related to Philip Workman’s error coram nobis proceeding.” In response, the Attorney General and Reporter moved to dismiss Ms. Swift’s petition on four grounds: the work product doctrine, the “law enforcement investigative privilege,” the “deliberative process privilege,” and Tenn. R.Crim. P. 16(a)(2). Attached to this motion was General Campbell’s affidavit stating that the material sought by Ms. Swift included personal notes and observations made by attorneys in preparation for and during court proceedings, as well as memoranda prepared by members of the district attorney general’s office in connection with the investigation or prosecution of Mr. Workman’s case. Following a hearing on September 24, 2003, the trial court entered an order on October 9, 2003, dismissing Ms. Swift’s petition for all the reasons contained in the Attorney General and Reporter’s motion. Ms. Swift has appealed from this decision.

II.

Standard of Review

There are no genuine material factual disputes in this case. Its outcome hinges on the proper interpretation of Tennessee’s public records statutes and their application to the facts of this case. Issues involving the construction of statutes and their application to facts involve questions of law. Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 74 (Tenn.2002); Waller v. Bryan, 16 S.W.3d 770, 773 (Tenn.Ct.App.1999). Therefore, the trial court’s resolution of these issues is not entitled to Tenn. R.App. P. 13(d)’s presumption of correctness on appeal. We will review the issues de novo and reach our own independent conclusions regarding them. King v. Pope, 91 S.W.3d 314, 318 (Tenn.2002).

III.

Tennessee’s Public RecoRds Statutes

Tennessee’s courts have long recognized the public’s right to examine governmental records. Over one hundred years ago, the Tennessee Supreme Court held that Memphis residents concerned about the city’s financial condition had the right to inspect the city’s records. State ex rel. Wellford v. Williams, 110 Tenn. 549, 593, 75 S.W. 948, 958 (1903). In 1957, the Tennessee General Assembly codified the public access doctrine when it enacted Tennessee’s first public records statutes. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.1996). The purpose of these statutes, mirroring the rationale of State ex rel. Wellford v. Williams, is to promote public awareness of the government’s actions and to ensure the accountability of government officials and agencies by facilitating the public’s access to governmental records. Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d at 74; Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 687-88 (Tenn.1994).

The public records statutes amount to a “clear mandate in favor of disclosure.” Tennessean v. Electric Power Bd., 979 S.W.2d 297, 305 (Tenn.1998). They create a presumption that records described in Tenn.Code Ann. § 10-7-301(6) (Supp.2003) and Tenn.Code Ann. § 10-7-503 are to be open to the public. State v. Cawood, 134 S.W.3d 159, 165 (Tenn.2004); Arnold v. City of Chattanooga, 19 S.W.3d 779, 785 (Tenn.Ct.App.1999). Accordingly, when access to governmental records is sought, the government must make the records available unless it can justify not disclosing the records by a preponderance of the evidence. TenmCode Ann. § 10-7-505(c).

The scope and application of the public records statutes are purposefully broad. They are an “all encompassing legislative attempt to cover all printed matter created or received by government in its official capacity.” Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn.1991) (iquoting Board of Educ. of Memphis City Schools v. Memphis Publ’g Co., 585 S.W.2d 629, 630 (Tenn.Ct.App.1979)). Accordingly, the General Assembly has directed the courts to construe the public records statutes broadly “so as to give the fullest possible public access to public records.” Tenn.Code Ann. § 10-7-505(d).

Notwithstanding the breadth of the public records statutes’ disclosure requirements, the General Assembly recognized from the outset that circumstances could arise where the reasons not to disclose a particular record or class of records would outweigh the policy favoring public disclosure. Accordingly, the General Assembly provided two types of exceptions from disclosure under the public records statutes. First, the General Assembly included specific exceptions from disclosure in the public records statutes themselves. Second, it acknowledged and validated both explicit and implicit exceptions from disclosure found elsewhere in state law.

As originally enacted, the public records statutes excepted only two classes of records from disclosure. These records included the medical records of patients in state hospitals and military records involving the security of the United States or the State of Tennessee. Act of Mar. 18, 1957, ch. 285, § 2, 1957 Tenn. Pub. Acts 932, 932 (codified as amended at Tenn.Code Ann. § 10-7-504(a)(l), (3)). During the intervening fifty years, the number of specific exceptions from disclosure in TenmCode Ann. § 10-7-504 has increased from two to twenty. The General Assembly has also included additional exceptions in Tenn. Code Ann. § 10-7-503(d)-(e).

Similarly, the public records statutes as originally enacted excepted from disclosure government documents whose confidentiality was “provided by law or regulations made pursuant thereto.” In 1984, the General Assembly narrowed this exception to apply only to records made confidential by “state statute.” As a result of this amendment, the only exceptions from disclosure under the public records statutes were statutory, and the courts’ role when considering disputes over the access to public records was to parse through the Tennessee Code to determine whether it contained an express exception applicable to the records at issue.

The narrowing of this exception did not last long. Seven years later, the General Assembly again amended Tenn.Code Ann. § 10-7-503(a) by replacing the phrase “state statute” with “state law.” The change is significant for two reasons. First, it signaled a return to the General Assembly’s original understanding that statutes were not the sole source of exceptions from the public records statutes’ disclosure requirements. Second, it broadened the permissible sources of exceptions from disclosure to include not only statutes, but also the Constitution of Tennessee, the common law, the rules of court, and administrative rules and regulations because each of these has the force and effect of law in Tennessee. Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 148 (Tenn.1993) (Constitution of Tennessee); Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn.2002) (rules of court); Emery v. Southern Ry., 866 S.W.2d 557, 561 (Tenn.Ct.App.1993) (the common law); Kogan v. Tennessee Bd. of Dentistry, No. M2003-00291-COA-R3-CV, 2003 WL 23093863, at *5-6 (Tenn. Ct.App. Dec. 30, 2003) (No Tenn. R.App. P. 11 application filed) (administrative rules and regulations).

Accordingly, Tenn.Code Ann. § 10-7-503(a) now provides that “all state, county and municipal records ... shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.” When called upon to interpret and apply this statute, our role is to determine whether state law either explicitly or implicitly excepts particular records or a class of records from disclosure under the public records statutes. We must, however, be guided by the clear legislative policy favoring disclosure. Thus, unless it is clear that disclosure of a record or class of records is excepted from disclosure, we must require disclosure even in the face of “serious countervailing considerations.” Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d at 684.

IY.

Tenn. R. Crim. P. 16 and the Work Product Doctrine

Subject to several narrow exceptions not applicable here, records in the hands of private parties are beyond the reach of the public records statutes. Thus, the public records statutes cannot be used as a discovery device in litigation between private parties. Over the past thirty years, however, the public records statutes have been used with increasing frequency as a discovery tool in cases in which the government or a governmental entity is a party. Parties litigating or contemplating litigation with the government see the public records statutes as a vehicle to obtain more discovery than the otherwise applicable rules of discovery permit. Nowhere is this more evident than in the cases construing Tenn. R.Crim. P. 16(a)(2) which embodies the work product doctrine as it applies to criminal cases.

The central purpose of the work product doctrine is to protect an attorney’s preparation for trial under the adversary system. The policy underlying the doctrine is that lawyers preparing for litigation should be permitted to assemble information, to separate the relevant facts from the irrelevant, and to use the relevant facts to plan and prepare their strategy without undue and needless interference. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 219-20 (Tenn.Ct.App.2002). Thus, the doctrine protects parties from “learning of the adversary’s mental impressions, conclusions, and legal theories of the case,” Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d at 689, and prevents a litigant “from taking a free ride on the research and thinking of his opponent’s lawyer.” United States v. Frederick, 182 F.3d 496, 500 (7th Cir.1999).

While the work product doctrine is most frequently invoked in civil cases, it has a vital role in assuring the proper functioning of the criminal justice system. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). Thus, the work product doctrine applies to both civil and criminal proceedings, although not necessarily in the same fashion. Coe v. State, 17 S.W.3d 193, 214 (Tenn.2000); Boyd v. Comdata Network, Inc., 88 S.W.3d at 219. The work product doctrine has now been codified in procedural rules. Tenn. R. Civ. P. 26.02(3) embodies the version of the doctrine applicable to civil proceedings. The version of the doctrine applicable to criminal proceedings is found in Tenn. R.Crim. P. 16(a)(2) which provides:

Information Not Subject to Disclosure. — Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, mem-oranda, or other internal state documents made by the district attorney general or other state agents or law-enforcement officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses.

The work product doctrine is not case specific. Fine v. Facet Aerospace Prods. Co., 133 F.R.D. 439, 445 (S.D.N.Y.1990). Thus, work product that was privileged in prior litigation remains privileged in subsequent litigation. Downing v. Bowater, Inc., 846 S.W.2d 265, 268 (Tenn.Ct.App.1992); Arnold v. City of Chattanooga, 19 S.W.3d at 784. This is especially true when the subsequent litigation is closely related to the prior litigation. Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 703-04 (10th Cir.1998).

The public records statutes have required the courts to consider whether this general rule applies when the government is a litigant. Because of the breadth of Tenn.Code Ann. § 10-7-503(a), the public’s right of access to government records must be balanced with the burden that the disclosure of these records will place on the government. Tennessean v. Electric Power Bd. of Nashville, 979 S.W.2d at 304. As far as Tenn. R.Crim. P. 16 is concerned, the courts have struck this balance over the past twenty years by holding that Tenn. R.Crim. P. 16(a)(2) does not except records from disclosure when (1) no criminal prosecution is contemplated or pending, (2) the direct appeal is finally concluded, and (3) no collateral challenge to the criminal conviction is pending.

The concept of “final completion” as it applies to civil cases is straightforward. A judgment in a civil case becomes final if a notice of appeal is not filed within thirty days after the entry of a final judgment or an order denying a timely filed Tenn. R. Civ. P. 59 motion. If a timely notice of appeal is filed in a civil case, and the judgment is affirmed on appeal, the judgment becomes final upon the issuance of the appellate court’s mandate. Finality in criminal proceedings is far more ephemeral than in civil proceedings. Convictions that have been affirmed on direct appeal are not necessarily final because they remain subject to collateral challenge in both state and federal courts.

The Tennessee Supreme Court handed down its first decision reconciling Tenn. R.Crim. P. 16 with the public records statute in 1986. Memphis Publ’g Co. v. Holt, 710 S.W.2d 513 (Tenn.1986). The case involved a newspaper reporter who requested access to a police file relating to an investigation that had been closed for twenty-two months. No criminal proceeding was pending or contemplated at the time. The Court ordered the release of the file, noting that Tenn. R.Crim. P. 16 did not “come into play” because the “investigative file sought to be examined ... is a closed file, and is not relevant to any pending or contemplated criminal action.” Memphis Publ’g Co. v. Holt, 710 S.W.2d at 517.

One year later, the Court reinforced the legal significance of the existence of a pending case or prosecution. Appman v. Worthington, 746 S.W.2d 165 (Tenn.1987). A lawyer representing prisoners who had been charged with killing a fellow prisoner invoked the public records statutes to obtain the Department of Correction’s internal investigative records regarding the killing. The Court, invoking Tenn. R.Crim. P. 16(a)(2), affirmed the trial court’s denial of the lawyer’s request for access to the records because the trial of the charges against his clients had not yet occurred. Appman v. Worthington, 746 S.W.2d at 166-67.

The first case involving the application of Tenn. R. Crim P. 16 and the public records statute in the context of a collateral attack on a criminal conviction occurred in 1991. Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 WL 165802 (Tenn.Ct.App. Aug. 30, 1991), perm. app. denied (Tenn. May 18, 1992). A lawyer appointed to represent a prisoner in a state post-conviction proceeding sought access to the police files relating to her client’s convictions for rape and armed robbery. This court reversed the trial court’s denial of the lawyer’s request for access to the police files under the public records statutes. We held that Tenn. R.Crim. P. 16(a)(2) protected “records of an investigation while the investigation is in progress and during the pendency of any prosecution arising out of the investigation.” Freeman v. Jeffcoat, 1991 WL 165802, at *7. We also held that the “pendency of an application for post judgment relief does not ... create an exception to the requirement of disclosure” despite the possibility of a new trial should the post-conviction petition be successful. Freeman v. Jeffcoat, 1991 WL 165802, at *7.

We followed the same reasoning approximately six months later in a case involving a prisoner on death row who had filed a federal habeas corpus petition after exhausting his state remedies. Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, No. 01A01-9104-CH-00150, 1992 WL 12217 (Tenn.Ct.App. Jan. 29, 1992) (No Tenn. R. App. P. 11 application filed). The lawyers representing the prisoner in the federal proceeding invoked the public records statute to obtain the files maintained by the district attorney general and the police regarding their client’s case. This court affirmed the trial court’s decision that the closed state prosecution files were public records. Adopting the reasoning of Freeman v. Jeffcoat, we held that the “pen-dency of [a] federal habeas corpus proceeding does not automatically render [the] file relevant to a ‘pending or contemplated criminal action.’ ” Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, 1992 WL 12217, at *5.

Two significant changes regarding the application of Tenn. R.Crim. P. 16 to pretrial proceedings in post-conviction cases occurred in 1995 following our decisions in Freeman v. Jeffcoat and Capital Case Res. Ctr. of Tenn., Inc. v. Woodall. First, the Tennessee General Assembly enacted the Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122 (2003), which explicitly provides that “[d]iseovery is not available in a proceeding under this section except as provided under Rule 16 of the Tennessee Rules of Criminal Procedure.” Tenn.Code Ann. § 40 — 30—109(b). Second, the Tennessee Supreme Court adopted Tenn. S.Ct. R. 28, § 6(B)(3)(c), (C)(7), which also provided that Tenn. R. Crim P. 16 governed pre-trial discovery in post-conviction cases. These changes reflected the policy decisions of both the General Assembly and the Tennessee Supreme Court that Tenn. R. Crim P. 16, rather than the public records statutes, controlled pre-trial discovery in cases where a prisoner was collaterally attacking his or her conviction in state court.

Four years later, this court was presented with an opportunity to revisit the application of Tenn. R.Crim. P. 16 and the public records statutes to a collateral challenge to a criminal conviction. Waller v. Bryan, 16 S.W.3d 770. The case involved a state prisoner who had filed a pro se post-conviction petition in state court and a pro se habeas corpus petition in federal court challenging his 1992 convictions for first degree murder, especially aggravated robbery, and theft. While the state and federal proceedings were pending, the prisoner made a request under the public record statutes for copies of photographs taken during the investigation of his crimes. This court affirmed the trial court’s denial of the prisoner’s request. We held that the photographs were not discoverable based on Tenn.Code Ann. § 40-30-109(b) and Tenn. S.Ct. R. 28, § 6(B)(3)(c), (C)(7). Waller v. Bryan, 16 S.W.3d at 777.

We based our holding in Waller v. Bryan on the fact that a state post-conviction proceeding was pending when the prisoner made his public records act request. Because of the pending post-conviction proceeding, we had no occasion to address the legal significance of the pending federal habeas corpus proceeding. However, from Memphis Publ’g Co. v. Holt to Waller v. Bryan, the courts have demonstrated that they will decline to permit litigants against the State to use the public records statutes to obtain more discovery than Tenn. R.Crim. P. 16 permits when a criminal investigation is in progress, a criminal prosecution is pending, or when a prisoner is collaterally attacking his or her conviction in state court under the Post-Conviction Procedure Act.

V.

Application of Tenn. R.CRIM. P. 16 to Requests for Records When A Federal Habeas Corpus Proceeding is Pending

The narrow question we must decide in this case is whether the State’s investigative and prosecutorial work product prepared in the defense of Mr. Workman’s writ of error coram nobis proceeding in state court is a public record that must be disclosed to Mr. Workman’s lawyers or to any other interested citizen. Mr. Workman, relying on Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, insists that the materials are public records. The State, relying chiefly on Waller v. Bryan, insists that they are not. The State has the better argument.

Embedded in the cases reviewed in Section TV is the question of whether the courts of this state should allow the public records statute to be used to circumvent the rules of discovery governing civil and criminal judicial proceedings. There is a palpable difference between persons who seek governmental records to ensure governmental responsibility and public accountability and those who seek to avoid the requirements and limitations of the Tennessee Rules of Civil and Criminal Procedure by invoking the public records statutes to obtain information not otherwise available to them through discovery. Circumventing existing discovery rules was not what the General Assembly had in mind when it enacted the public records statutes in 1957.

The clear public policy of Tennessee, reflected in TenmCode Ann. § 40-30-109(b), Tenn. S.Ct. R. 28, § 6(B)(3)(c), (C)(7), and Tenn. R.Crim. P. 16(a)(2), is that the documents described in Tenn. R.Crim. P. 16(a)(2) are not discoverable in either proceedings to which the Tennessee Rules of Criminal Procedure apply or separate proceedings under TenmCode Ann. § 10-7-505 as long as the criminal conviction associated with the records being sought is being collaterally attacked. There is no logical reason to differentiate between pending state post-conviction proceedings and federal habeas corpus proceedings. Discovery in Mr. Workman’s pending federal habeas corpus proceeding should be governed by the federal rules applicable to that proceeding, and Tennessee’s public records statutes should not be used to circumvent these rules.

For the foregoing reasons, documents of the sort covered by Tenn. R. Crim P. 16(a)(2) that are in the possession of the Office of the District Attorney General of the Thirtieth Judicial District are not public records because they are among the class of records excepted from disclosure by state law. Accordingly, the trial court correctly denied Ms. Swift’s petition to compel the State to permit her to inspect and copy these records.

VI.

The State’s OtheR PRIVILEGE Claims

Not content to rely solely on its defense that the documents requested by Ms. Swift were not public records by virtue of Tenn. R.Crim. P. 16(a)(2), the State offers three other alternative theories to justify its opposition to producing the documents. We decline to accredit any of these theories because they lack logic and legal support.

A.

Federal Pre-emption of the Public Records Statutes

The State asserts that discovery in federal habeas corpus proceedings is governed by federal statutes and rules and that these rules somehow pre-empt Tennessee’s public records statutes when it comes to discovery in federal court. This argument is somewhat difficult to follow for two reasons. First, Tennessee’s public records statutes have never purported to apply to proceedings in federal court. Second, there is no evidence whatsoever that the rules of procedure governing practice in the federal courts were intended to pre-empt state laws governing access to their own records.

The fundamental question in every pre-emption analysis is one of congressional intent. Geier v. American Honda Motor Co., 529 U.S. 861, 884, 120 S.Ct. 1913, 1927, 146 L.Ed.2d 914 (2000); Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 30, 116 S.Ct. 1103, 1107, 134 L.Ed.2d 237 (1996). Did Congress, by enacting the federal law, intend to exercise its constitutionally delegated authority to displace state law? If so, the Supremacy Clause of the United States Constitution, U.S. Const, art. VI, cl. 2, requires courts to follow federal rather than state law. However, the courts will not interpret federal law to pre-empt state law unless that is the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).

When the federal law contains an express pre-emption clause, the plain meaning of the clause is the best evidence of pre-emptive intent. Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63, 123 S.Ct. 518, 526, 154 L.Ed.2d 466 (2002). In the absence of explicit pre-emption language, the court must consider whether the federal law’s structure and purpose reveal a clear, but implicit, pre-emptive intent. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. at 31, 116 S.Ct. at 1108. Implied pre-emption takes two forms. Field pre-emption occurs when the scheme of the federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. Conflict pre-emption arises when compliance with both federal and state law is impossible or when state law presents an obstacle to the accomplishment of the full purposes and objectives of Congress. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73 (1992).

The parties have not cited, and our research has not uncovered, any case in which federal law required the disclosure of state or local government records that were shielded from disclosure by state law. To the contrary, one Tennessee case has used federal confidentiality requirements as a basis for declining to make records available under Tennessee’s public records statutes. Seaton v. Johnson, 898 S.W.2d 232 (Tenn.Ct.App.1995). As a condition to receiving federal funds, the Tennessee Department of Transportation was required to compile data regarding the safety of the railroad crossings in Tennessee. Federal law explicitly stated that the collected data “shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding.” A lawyer representing the estate of two children killed in a collision between a train and an automobile requested access to the Department of Transportation’s data under the public records statutes. Both the trial court and this court determined that the requested records were not public records because of the federal law prohibiting their release. Seaton v. Johnson, 898 S.W.2d at 236. Because the records were created and maintained in accordance with a federal law explicitly requiring their confidentiality, the State was prevented from making them available for inspection and copying under the public records statutes.

Neither the Federal Rules of Civil Procedure nor the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Corpus Rules”) contain an explicit pre-emption provision applicable to public records proceedings in state court. In addition, we find no basis to invoke either field or conflict pre-emption because these federal rules were adopted chiefly to govern practice in the federal courts, and not to displace state substantive laws regarding access to official records. Control over access to state or local government records is a central attribute of state sovereignty. Thus, in the absence of a clear and manifest expression of intent to the contrary, we decline to hold that the rules governing proceedings in federal courts pre-empt Tennessee’s public records statutes.

B.

The Law Enforcement Investigative Privilege

The State also invokes what it calls the “law enforcement investigative privilege” as a basis for not releasing the records sought by Ms. Swift. It points to no Tennessee law, statutory or otherwise, that purports to recognize this privilege, and it likewise does not explain how the contours of this privilege differ from the provisions of Tenn. R.Crim. P. 16(a)(2) which we have already discussed at length in Section V. Weighed against the clear state policy favoring the openness of governmental records, the State’s efforts to convince us to recognize this new privilege fall short. As we did with regard to a claimed “informer’s privilege” in an earlier case, we will leave it to the criminal courts to address this new privilege. Eldridge v. Putnam County, 86 S.W.3d 572, 575 (Tenn.Ct.App.2001). When public records claims are involved, we will continue to rely on Tenn. R.Crim. P. 16.

C.

The Deliberative Process Privilege

Finally, the State argues that the records maintained by the Office of the District Attorney General for the Thirtieth Judicial District should be shielded from public inspection by the “deliberative process privilege.” We have no doubt that there exists a valid need to protect the communications between high government officials and those who advise and assist them in the performance of their official duties. United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974). However, an assistant district attorney general preparing to defend a conviction in state court is not the sort of official to whom this privilege applies.

Protecting the confidentiality of conversations and deliberations among high government officials ensures frank and open discussion and, therefore, more efficient government operations. United States v. Weber Aircraft Corp., 465 U.S. 792, 802, 104 S.Ct. 1488, 1494, 79 L.Ed.2d 814 (1984). However, the deliberative process privilege must be applied cautiously because it could become the exception that swallows up the rule favoring governmental openness and accountability. If governmental employees at any level could claim the privilege, Tennessee’s public records statutes and open meetings law would become little more than empty shells.

Whether the “deliberative process privilege” may be invoked depends on the governmental official or officials involved. We have no doubt, for example, that the Governor may properly invoke this privilege, should he or she care to, in meetings with staff or cabinet members. We have also held that the Constitution of Tennessee embodies a version of the privilege for the General Assembly when it decides to invoke it. Mayhew v. Wilder, 46 S.W.3d 760, 772 (Tenn.Ct.App.2001) (holding that the public does not have a right of access to all legislative meetings because of Tenn. Const, art. II, §§ 21 and 22). However, we decline to hold that the privilege applies to an assistant district attorney general preparing for a hearing in state court involving a writ of error coram nobis proceeding under Tenn.Code Ann. § 40-26-105. Tenn. R.Crim. P. 16 adequately protects his or her work product.

VII.

We affirm the judgment denying Ms. Swift’s petition to gain access to tlie documents pertaining to Mi’. Workman’s writ of error coram nobis proceeding in state court. Our decision is limited to the documents in the possession of the Office of the District Attorney General for the Thirtieth Judicial District that are described in Tenn. R.Crim. P. 16(a)(2). We remand the case to the trial court for any further proceedings consistent with this opinion that may be required, and we tax the costs of this appeal in equal proportions to Gretchen Swift and the State of Tennessee.

      . State v. Workman, 667 S.W.2d 44 (Tenn.), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984).

      . Workman v. State, C.C.A. No. 111, 1987 WL 6724 (Tenn.Crim.App. Feb. 18, 1987), perm. app. denied (Tenn. May 11, 1987), cert. denied, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (Oct. 5, 1987); Workman v. State, 868 S.W.2d 705 (Tenn.Crim.App. Apr. 7, 1993), perm. app. denied (Tenn. Nov. 29, 1993), cert denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (Feb. 28, 1994).

      . Workman v. Bell, 178 F.3d 759 (6th Cir.1998), cert. denied, 528 U.S. 913, 120 S.Ct. 264, 145 L.Ed.2d 221 (1999).

      . Workman v. Bell, 227 F.3d 331 (6th Cir. 2000), (en banc), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001).

      . A writ of error coram nobis pursuant to Tenn.Code Ann. § 40-26-105 (2003) is an extraordinary remedy available to convicted defendants in criminal cases. It provides a vehicle for obtaining a new trial based on newly discovered evidence relating to matters litigated at trial that would have, with reasonable probability, resulted in a different judgment had it been presented to the convicting jury. To be entitled to the writ, the convicted defendant must demonstrate that he or she was without fault in failing to present the evidence at the proper time. Harris v. State, 102 S.W.3d 587, 592-93 (Tenn.2003); State v. Workman, 111 S.W.3d 10, 19 (Tenn.Crim.App.2002).

      .The evidence prompting Mr. Workman’s petition involved the recantation of the testimony of a key prosecution witness and a newly discovered post-mortem X-ray of the slain police officer.

      . Act of Mar. 18, 1957, ch. 285, 1957 Tenn. Pub. Acts 932 (codified as amended at Tenn. Code Ann. §§ 10-7-503 to -506 (1999 & Supp.2003)).

      . Act of Mar. 18, 1957, ch. 285, § 1, 1957 Tenn. Pub. Acts 932, 932.

      . Act of May 17, 1984, ch. 929, § 1, 1984 Tenn. Pub. Acts 890, 890.

      .Act of May 6, 1991, ch. 369, § 7, 1991 Tenn. Pub. Acts 598, 598 (codified as amended at Tenn.Code Ann. § 10-7-503(a)).

      . The cross references to Tenn.Code Ann. § 10-7-504 currently list approximately 136 statutes containing exceptions to public records act disclosure.

      . Creative Rests., Inc. v. City of Memphis, 795 S.W.2d 672, 678-79 (Term.Ct.App.1990) (holding that leases between private renters of ci1y-owned property were public records even though they were in the hands of one of the private party’s attorneys).

      . Tenn. R.Crim. P. 16, which was adopted in 1978, conforms substantially with Fed.R.Crim.P. 16. See Tenn. R.Crim. P. 16, advisory commission cmts.; Tenn. R.Crim. P. 1, advisory commission cmts. (1984); State v. Hicks, 618 S.W.2d 510, 514 (Tenn.Crim.App.1981). Like Tennessee, many other jurisdictions have patterned their version of the work product doctrine applicable to criminal proceedings after Fed.R.Crim.P. 16. See, e.g., Johnson v. State, 550 A.2d 903, 912 n. 8 (Del.1988); People v. Brogan, 70 Misc.2d 282, 332 N.Y.S.2d 499, 500 (N.Y.Dist.Ct.1972); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828, 840 (1977); State v. Musumeci, 717 A.2d 56, 60 (R.I.1998).

      . It would be a legal non sequitur to argue that the state public records laws somehow pre-empt federal discovery rules. The Supremacy Clause is a one-way street. Discovery in federal habeas corpus proceedings is governed by the Habeas Corpus Rules. No discovery is permitted unless justice requires it, and, according to Habeas Corpus Rule 6(a), decisions regarding whether to permit discovery are within the federal court’s discretion. When presented with a discovery request seeking records that are confidential under state law, the federal courts will conduct their own balancing of the public and private interests at stake, as well as their own analysis of the applicable legal principles.

      . The other jurisdictions that have recognized this privilege state that it is aimed at preventing "disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” United States v. Myerson, 856 F.2d 481, 484 (2d Cir.1988). Based on this description, there appears to be a substantial overlap between this privilege and Tenn. R.Crim. P. 16(a)(2).

      . Tenn.Code Ann. §§ 8-44-101 to -108 (2002).


author: HOLLY M. KIRBY, J.,

text:
    Ralph SASSER v. QUEBECOR PRINTING (USA) CORP., d/b/a Quebecor Printing Clarksville.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Nov. 6, 2003 Session.
    March 12, 2004.
    Permission to Appeal Denied by Supreme Court Sept. 13, 2004.

      James L. Harris, Nashville, for the appellant Ralph Sasser.
    Daniel C. Todd, Nashville, and C. Dan Wyatt, II, Atlanta, Georgia, for the appel-lee Quebecor Printing (USA) Corp., d/b/a Quebecor Printing Clarksville.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This is a case involving an alleged hostile work environment based on disability. The employee worked in the maintenance department of a large printing facility. He had an on-the-job accident which resulted in the amputation of his leg. To accommodate his disability, the employer created a clerical position for him. The employee’s work space was a “community desk” located in the maintenance area, an area to which numerous employees had regular access. The employee reported to the employer several incidents of alleged harassment, such as grease under the desk, lunch residue being left on the desk, dirty footprints in the desk’s chair, and his computer monitor defaced with a profane statement. The employer moved the employee to a private office, and there were no further incidents. The employee filed a complaint alleging, inter alia, a hostile work environment based on disability, his amputated leg. The trial court granted summary judgment in favor of the employer. We affirm, finding that the incidents do not amount to harassment, and that there is no evidence that the conduct was either directed at the employee or linked to his disability.

Plaintiff/Appellant, Ralph Sasser (“Sas-ser”), worked in the maintenance department of Defendant/Appellee, Quebecor Printing (USA) Corp., d/b/a Quebecor Printing Clarksville (“Quebecor”). Sas-ser’s job duties included repairing and maintaining the air conditioning units at Quebecor’s Clarksville facility. In 1999, Sasser suffered an injury while performing his job duties for Quebecor. Sasser filed a worker’s compensation claim for his job-related injury. The injury resulted in the amputation of his leg.

Because of the amputation of his leg, Sasser was no longer able to perform his maintenance job. Consequently, Quebecor created a clerical position for Sasser in Quebecor’s maintenance department. When he began in the newly-created position, Sasser temporarily shared an office with a co-worker. In March 2000, Quebe-cor moved Sasser’s workspace to the maintenance shop. In the maintenance shop, Sasser worked at a community desk in an open area, where work orders, equipment catalogues, and books were kept. Approximately 600 employees had access to the maintenance shop area, and, consequently, access to the desk Sasser used. The maintenance department was run twenty-four hours per day. The desk Sasser used held a telephone which other employees were permitted to use. Near the desk there was a machine used by members of the maintenance department, as well as employee mail slots. Sasser was provided a computer, which was on the desk.

Once he moved to the desk in the open maintenance area, Sasser alleges, a series of disturbing incidents occurred. The area in which the desk was located in the maintenance room was described as “greasy,” and on at least one occasion, Sasser’s pants became soiled from grease under the desk. On other occasions, Sasser would find at the desk the residue from another employee’s lunch, such as ketchup, mayonnaise, wrappers, chicken bones and soft drinks. In one incident, someone wrote graffiti in “white-out” on the computer monitor, saying, “F — k you, you lazzy [sic] ass.” Footprints were left in the desk chair, and pencils were found in the docking station for the computer, preventing Sasser from using it. Sasser’s time sheets were stolen, and he was accused of causing a fire in a waste basket.

Sasser complained about these incidents to Quebecor’s management. Quebecor responded to Sasser’s complaints by interviewing employees and offering a $1,000 reward for any information relating to the computer graffiti incident. The company could not determine who was responsible. In June 2000, Quebecor relocated Sasser to a private office. Once Sasser moved to the private office, no further incidents took place.

On November 27, 2000, Sasser filed a lawsuit against Quebecor under the Tennessee Human Rights Act and the Tennessee Handicap Act. Sasser claimed that his amputated leg constituted a disability or a handicap under the statutes. He asserted that the incidents described above took place because of his amputated leg, and that he was the victim of a hostile work environment, retaliation, and discrimination due to his disability. Sasser asserted that Quebecor failed to take prompt remedial action to stop the harassment and discrimination. Sasser also averred that the incidents were retaliation for his filing of a worker’s compensation claim when he injured his leg. The lawsuit also included claims of intentional infliction of emotional distress, under a theory of respondeat superior, and negligent maintenance of an unsafe working environment. On February 21, 2001, Quebecor laid Sasser off, and Sasser amended his complaint to include retaliatory discharge under the Tennessee Human Rights Act.

Discovery ensued. In his deposition, Sasser acknowledged that, when he complained of the incidents to Quebecor’s management, he did not attribute them to his disability. Sasser admitted that, other than the location of the incidents, he had no evidence that the actions were directed at him, and no evidence of why they occurred or who was responsible. He conceded that, if the incidents were directed at him, it may have been simply because a co-worker disliked him. Sasser’s supervisor, Martin Skerritt, testified that, when Quebecor posted a $1,000 reward for information on who had put the profane graffiti on the computer Sasser used, no one came forward with information. Skerritt testified that, at the time the graffiti incident occurred, the maintenance department, in which Sasser worked, had received a pay raise. This angered employees in the company’s production department, who viewed the maintenance employees as lazy and unworthy of a raise.

On October 4, 2002, Quebecor filed a motion for summary judgment. After it was filed, Sasser voluntarily dismissed his retaliation claims. In his opposition to the summary judgment motion on the remaining claims, Sasser asserted that there were numerous genuine issues of material fact, rendering the case inappropriate for summary judgment. A hearing was held on November 22, 2002.

At the conclusion of the hearing, the trial judge issued an oral ruling. The trial court granted the motion for summary judgment, holding that the evidence did not amount to harassment, and that even if it did, there was no evidence that the alleged harassment took place because of Sasser’s disability. The trial judge elaborated: “There simply is no evidence from which the Court could conclude that Mr. Sasser was harassed. All the incidents cited, with the exception of the computer screen incident, are just simply the kind of thing that Mr. Sasser should have expected to occur in a maintenance room environment....” The trial court addressed the computer screen incident: “Obviously the matter of the computer screen is a serious issue. But given the dispute that was going on between the maintenance workers and other workers, there is simply no evidence in the record to support the theory that that was directed at Mr. Sasser individually.” The trial court held: “There is no evidence of intentional acts directed at Mr. Sasser.”

The trial court also found that, even if the incidents amounted to harassment, there was no evidence that it was related to Sasser’s disability. Regarding the computer incident, the trial court held: “[T]here is no evidence in the record, even if it were directed to Mr. Sasser, to show that it was anything more than an assumption ... or a feeling on somebody’s part that he was lazy. In other words, there is no relationship to the ... alleged handicap or disability.” Furthermore, the court held, “There is simply no proof in the record on any of these theories that if these actions were directed specifically at Mr. Sasser, that they were directed at him because of his disability” (emphasis added). Finally, the trial court held that there was no evidence that the alleged harassment was pervasive, that Quebecor’s investigation was unreasonable, or that Quebecor condoned the alleged harassment. The trial court issued a written order on January 8, 2003, consistent with its oral ruling, dismissing all of Sasser’s claims, including his claims of intentional infliction of emotional distress and negligent maintenance of an unsafe work environment. From that order, Sasser now appeals.

Summary judgment should be granted only when the moving party shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06] provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

Unless the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion, summary judgment is inappropriate. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). As summary judgment involves only questions of law, the trial court’s grant of summary judgment is afforded no presumption of correctness. Bain, 936 S.W.2d at 622. Therefore, our review of this ease is de novo on the record. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

On appeal, Sasser asserts that there are several issues of material fact concerning whether the incidents complained of were motivated by his disability. Sasser contends that the trial court erred in holding that there was no evidence supporting his claim and argues that the fact that all of the incidents occurred at his desk, coupled with his disability and his new administrative position, serve as circumstantial evidence. Sasser avers that this circumstantial evidence creates a genuine issue of material fact and requires a trial on the merits to determine whether he was harassed due to his disability. He also argues that he has shown sufficient evidence to prove his intentional infliction of emotional distress and negligence claims.

The record in this case includes Quebe-cor’s statement of undisputed facts in support of its motion for summary judgment, as well as Sasser’s response thereto. In the response, Sasser cites no evidence contradicting Quebecor’s undisputed facts. Sasser couches his argument in terms of genuine issues of fact, but in reality Sas-ser’s argument is that the undisputed evidence is subject to differing interpretations. We must, then, take the strongest legitimate view of these facts in the light most favorable to Sasser, allow all reasonable inferences in Sasser’s favor, and determine from that whether the trial court erred in granting summary judgment to Quebecor. Bain, 936 S.W.2d at 622.

We first address Sasser’s disability harassment claim. Section 8-50-103 of the Tennessee Code Annotated, also known as the Tennessee Handicap Act (“THA”), provides: “There shall be no discrimination in the hiring, firing and other terms and conditions of employment of ... any private employer ... based solely upon any physical, mental or visual handicap-” Tenn.Code Ann. § 8-50-103(a) (2002). A claim brought under the THA is analyzed under the same principles as those utilized for the Americans with Disabilities Act (“ADA”). See, e.g., Roberson v. Cendant Travel Services, Inc., 252 F.Supp.2d 573, 583 (M.D.Tenn.2002) (citing Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 705 (Tenn.2000)). To establish an ADA claim of hostile work environment based on disability, a plaintiff must prove that: (1) “[he] was disabled; (2)[he] was subject to unwelcome harassment; (3) the harassment was based on [his] disability; (4) the harassment unreasonably interfered with [his] work performance; and (5) the defendant either knew or should have known about the harassment and failed to take corrective measures.” Trepka v. Bd. of Educ., No. 00-4063, 2002 WL 104801, at *4 (6th Cir. Jan.24, 2002). To prove a hostile work environment, the employee must show conduct that is “ ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Conduct that is “merely offensive” does not rise to the level of that which will support a claim of hostile work environment. Id.

This legal standard must be applied to the facts of this case. The undisputed facts are that, after Sasser’s injury, Quebe-cor created a clerical position for him in order to accommodate his disability. Sas-ser moved from a private office to a desk in the open maintenance area, a desk that was accessible to and used by the maintenance employees. After the move, the following incidents of alleged harassment occurred:

1. A person wrote “F — k you, you lazzy [sic] ass” on the monitor of the computer Sasser used;
2. On occasion, grease under the desk in the maintenance department soiled Sasser’s pants;
3. Sasser sometimes found on the desk the residue of other employee’s lunches, such as discarded food and wrappers;
4. Dirty footprints were sometimes in the chair at the desk Sasser used;
5. Sasser once found a pencil in the docking station for the computer;
6. Sasser’s time sheets were once stolen; and
7. Sasser was accused of causing a fire in a waste basket.

Quebecor investigated and put up a reward for information on the graffiti on the computer monitor, to no avail. After Sas-ser was moved back to a private office, the alleged harassment ceased.

Viewing the evidence as a whole, we must agree with the trial court’s assessment. The most serious incident, the graffiti written on the computer monitor, took place against a backdrop of generalized hostility towards workers in the maintenance department as a result of a pay dispute. The remaining incidents can only be deemed annoyances, not out of line with what would be expected, considering the setting, in the maintenance area of a large printing facility. Moreover, all of the incidents took place in an area to which hundreds of employees had access, and, in fact, all had the right to use the desk and the surrounding area. Under these circumstances, there is no evidence that the incidents were directed at Sasser, which Sasser freely admits. Most of all, the record is devoid of any evidence indicating that any of the occurrences were based on Sasser’s disability. Indeed, Sasser admits that when he complained of these incidents to Quebecor’s management, he did not tell them that he attributed the conduct to his disability. Considering all of these factors, it is clear that the trial court correctly granted Quebecor summary judgment on Sasser’s claims of disability discrimination.

Next, we address Sasser’s claim of intentional infliction of emotional distress. For Sasser to recover on this claim, he must prove intentional or reckless conduct that is intolerable by a civilized society and that resulted in serious mental injury. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). The nature of the conduct must be “ ‘so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’ ” Id. at 623 (quoting Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270, 274 (Tenn.1966)). Even assuming Sasser had shown that any of the occurrences were directed at him, none of the incidents, taken together or separately, amount to more than “ ‘insults, indignities, threats, annoyances, petty oppression or other trivialities,”’ none of which are recoverable under the tort. Id. at 622 (quoting Medlin, 398 S.W.2d at 274).

Sasser also alleges that Quebecor negligently failed to provide him with a reasonably safe work environment. See Overstreet v. Norman, 44 Tenn.App. 343, 314 S.W.2d 47, 50 (1957). Clearly, the evidence does not support this claim, and Sasser’s argument is without merit. Therefore, we affirm the trial court’s decision to grant summary judgment in favor of Quebecor.

Quebecor requests an award of damages under section 27-1-122 of the Tennessee Code Annotated, arguing that this appeal is frivolous. Although the issue is close, we decline to award damages. All other issues raised on appeal are pretermitted.

The decision of the trial court is affirmed. Costs are taxed against Plain-tiffAppellant Ralph Sasser and his surety, for which execution may issue if necessary.

      . In the defendant's appellate brief, the name of the defendant company is said to be "Quebecor World Clarksville, Inc.” The notice of appeal fails to list the defendant’s name. Regardless of the defendant’s correct name, in this appeal we refer to the defendant simply as "Quebecor.”

      . Sasser’s complaint alleges that the word "ass” was used, but Sasser testified in his deposition that the word used was "bastard.”

      . The trial court observed:
      What we have really is evidence that you had an employee, for whom a company had bent over backwards, who was disgruntled because he was being moved, and who says there is going to be trouble, and he went out and found trouble. And the trouble is simply not such that this Court or anyone else-the company should feel obligated to protect him from. You can’t protect employees from dislike. And that’s what I’m being asked to do here.