Rule 34(c): Discovery of Non-party Land and Large Intangible Things
| Publication year | 1985 |
| Pages | 562 |
| Citation | Vol. 15 No. 4 Pg. 562 |
1985, April, Pg. 562. Rule 34(c): Discovery of Non-Party Land and Large Intangible Things
In 1970, subdivision (c) was added to Federal and Colorado Rules of Civil Procedure ("F.R.C.P." and "C.R.C.P.") Rule 34:
This was enacted as a temporary measure due to the drafting committee's lack of time to draft a specific non-party discovery mechanism within the framework of Rule 34.(fn1) As a result, subdivision 34(c) became known as "a curious gap" surrounded by "a precedential void."(fn2)(c) Persons Not Parties. This rule [34] does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.
Two basic problems exist with C.R.C.P. Rule 34(c). First, it does not specifically create or authorize a cause of action against a non-party for discovery purposes, but merely makes clear that such an action is not precluded, as some courts prior to the amendment had ruled.(fn3) Second, the Rule gives no clue as to what type of independent action may be brought.
Only a few relevant cases have grappled with the Rule's vagueness. Those cases have not established confident guidelines as to the type of independent action Rule 34(c) permits. For example, in Home Ins. Co. v. First Nat'I Bank of Rome,(fn4) the defendant filed a separate action for discovery against a non-party under C.R.C.P. Rule 34(c), seeking production of documents needed in the ongoing action. The court dismissed the "independent action," ruling that such relief is not available when an adequate remedy already exists in the rules and that a subpoena duces tecum in the ongoing action should be utilized.
In Folsom v. Western Elec. Co. Inc.,(fn5) a pre-litigation complaint was filed under C.R.C.P. Rules 34(c) and 27(c) alleging the need to inspect a forklift at plaintiffs employer's premises. The employer was named a defendant solely for inspection purposes. The court dismissed the complaint, noting that while the requirements of Rule 27 are not incorporated into Rule 34(c) "they are helpful in judging the requirements of an independent suit for discovery," and that those requirements had not been met.(fn6)
In Pollitt v. Mobay Chem. Corp.,(fn7) the court denied plaintiffs Rule 34 "Motion for an Order Permitting Entry Upon Land" on the ground that Rule 34 does not authorize a court to order a non-party to permit entry on land. The court suggested that the situation be worked out among those involved "in the spirit of cooperation inherent in and necessary to the discovery process."(fn8)
In Wimes v. Eaton Corp.,(fn9) plaintiff filed a C.R.C.P. Rule 15 motion to amend his complaint to add a non-party upon whose premises he sought to enter, coupled with a Rule...
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