CHAPTER 8 - 8-7 Request or Motion for Entry on Property

• Jurisdiction: United States

8-7 Request or Motion for Entry on Property

Few "reported decisions interpret [Texas] Rule 196.7."²⁸⁴ However, a few main principles "have emerged from those decisions."²⁸⁵ First, Texas Rule 196.7 does not allow for blanket discovery on threadbare requests when confronted with an objection.²⁸⁶ Said requests mandate a heightened review "[b]ecause discovery involving entry onto the property of another involves unique burdens and risks[.]"²⁸⁷ Second, Texas Rule 196.7 is subject to general discovery principals.²⁸⁸ In other words, the request must be relevant,²⁸⁹ the discovery sought cannot be obtainable from a more convenient, less burdensome, or less expensive source,²⁹⁰ and the burden of the proposed discovery must not outweigh its likely benefits.²⁹¹

Texas Rule 196.7 authorizes the entry "on designated land or other property" of both parties and nonparties "to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon[.]" "[M]ost cases involving on-site inspections concern a specific object on the premises, which is the subject matter of the action, e.g., a particular machine in a personal injury case or a patent infringement case."²⁹² Courts, under Texas Rule 196.7 and the comparable Federal Rule, Rule 34(a)(2),²⁹³ have allowed entry on an oil and gas lease,²⁹⁴ a coal mine,²⁹⁵ a manufacturing facility,²⁹⁶ a business office,²⁹⁷ a shopping center,²⁹⁸ a store,²⁹⁹ a school,³⁰⁰ a prison or jail,³⁰¹ a distillery,³⁰² and a mental-health facility.³⁰³

8-7:1 The Request and Motion or Notice

To obtain entry on the land or other property of a party, the requesting party must serve a written request on all the parties to the action.³⁰⁴ If, however, a nonparty owns the land or other property, the requesting party instead must serve "a motion and notice of hearing on all parties and the nonparty"³⁰⁵ and must obtain a court order allowing entry.³⁰⁶

The nonparty notice can be served by one of the methods permitted by Texas Rule 21a.³⁰⁷ "If the identity or address of the nonparty is unknown and cannot be obtained through reasonable diligence, the court must permit service by means other than those specified in [Texas] Rule 21a that are reasonably calculated to give the nonparty notice of the motion and hearing."³⁰⁸ As with other written-discovery requests, the request or motion and notice must be served no later than 30 days (and in some cases 31 or 33 days) before the discovery period ends.³⁰⁹

Texas Rule 196.7(b) sets forth the contents of the request for entry on a party's property and the order for entry on a nonparty's property.³¹⁰ Both "must state the time, place, manner, conditions, and scope of the inspection, and must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by whom the inspection, testing, or sampling is to be made."³¹¹ A request or notice that lacks such specificity is objectionable and an order that lacks it is improper and can be challenged in a mandamus proceeding.³¹²

A request to a party, like other written discovery served on parties, is not filed with the trial court.³¹³ The parties, however, are required by Texas Rule 191.4(d) to retain the request during the action's pendency and any appellate proceedings begun within six months after the judgment is signed.³¹⁴ The nonparty notice and motion, however, must be filed with the trial court by the requesting party.³¹⁵

8-7:2 The Scope of a Request for Entry on a Party's Property

The scope of a request for entry on a party's property is subject to the general scope of discovery under Texas Rule 192.3(a) (i.e., the requested inspection, measurement, survey, photographing, testing, or sampling must be relevant to action's subject matter or reasonably calculated to lead to the discovery of admissible evidence).³¹⁶ Accordingly, the results of the inspection, measurement, survey, photographing, testing, or sampling need not be admissible at trial to warrant the discovery. Thus, for example, the fact that some time has elapsed since an accident's occurrence does not necessarily preclude an inspection and photographing of the accident scene because the admissibility of any resulting photographs, measurements or tests can be determined at trial.³¹⁷

Nonetheless, courts have "recognize[d] the unique burdens and risks inherent to entry onto land, e.g., confusion and disruption of defendant's business and employees."³¹⁸ Accordingly, "mere relevance is not sufficient to justify a request for entry upon the property of another[and] the trial court should conduct a 'greater inquiry into the necessity for the inspection, testing, or sampling."³¹⁹ And requests for entry on land or other property, more so than other discovery devices, are subject to both proportionality objections and Texas Rule 192.4, which limits a party's ability to obtain discovery that is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive" or whose burden "likely outweighs its likely benefit."³²⁰ "However, the burden is on the responding party to satisfy the court that the [inspection, measurement, survey, photographing,] testing [, or sampling] 'should not be had.'"³²¹

The right to enter the property of a party under a Texas Rule 196.7 generally does not include the right to interview employees or other agents of the party in control of the property or equipment on it,³²² observe the responding party's inspections, measurements, surveys, photographing, tests, or sampling,³²³ or require the responding party to conduct measurements, tests, or sampling for the requesting party.³²⁴ When appropriate, consultants and experts of the requesting party needed to adequately perform the inspection and related acts should be allowed entry on the responding party's property.³²⁵

As is the case with the document inspections, a trial court can set conditions governing the entry and any related acts to safeguard against unnecessary disruptions of the responding party's operations and to protect against unwarranted disclosures of confidential or propriety information.³²⁶ A court also can order the requesting party to pay compensation if any damage occurs during the inspection or testing.³²⁷

8-7:3 The Scope of an Order for Entry on a Nonparty's Property

"An order for entry on a nonparty's property may issue only for good cause shown and only if the land, property, or object thereon as to which discovery is sought is relevant to the subject matter of the action."³²⁸ Thus, discovery's scope for entry on a nonparty's property is not as broad as for entry on a party's land or other property. This is because entry on a nonparty's land or other property, unlike a party's land or property, cannot be ordered if it might only "lead to the discovery of admissible evidence." "Good cause" for entry on a nonparty's land or other property is shown when the requesting party "establishes (1) the discovery sought is relevant and material, that is, the information will in some way aid the movant in the preparation or defense of the case; and (2) the substantial equivalent of the material cannot be obtained through other means."³²⁹

The right to enter land or other property of a nonparty under a Texas Rule 196.7 generally does not include the right to interview employees or other agents of the nonparty in control of the property or equipment on it,³³⁰ observe the responding party's inspections, measurements, surveys, photographing, tests, or sampling,³³¹ or require the nonparty to conduct measurements, tests, or sampling for the requesting party.³³² When appropriate, the consultants and experts of the requesting party needed to adequately perform the inspection and related acts should be allowed entry on the nonparty's land or other property.³³³

As is the case with the nonparty document inspections, a trial court can set conditions governing the entry and any related acts to safeguard against unnecessary disruptions of the nonparty's operations and to protect against unwarranted disclosures of confidential or propriety information.³³⁴ A court also can order the requesting party to pay compensation if any damage occurs during the inspection or testing.³³⁵

8-7:4 Response to a Request or Motion and Notice

Texas Rule 196.7(c) governs a party's response to a request for entry on its property. It does not apply to a motion and notice to a nonparty because a response to a motion, unless dictated by the trial court's local rules, can be in any form.

A party's response, like responses to other written-discovery requests, must be served on all the other parties³³⁶ and be made within thirty days after the request's service unless the time is extended due to the manner of service, by the parties' agreement, or by court order,³³⁷ "except that a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request."³³⁸ The response, like other written-discovery responses, must include any objections or privilege assertions.³³⁹ It also must state one of the following alternatives: "(A) entry or other requested action will be permitted as requested; (B) entry or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or (C) entry or other requested action cannot be permitted for reasons stated in the response."³⁴⁰ These are similar to the statements required in the response to production requests.³⁴¹

The response to a request for entry on a party's property, like other written-discovery responses, is not filed with the trial court.³⁴² The parties, however, are required by Texas Rule 191.4(d) to retain the response during the action's pendency and any appellate proceedings begun within six months after the judgment is signed.³⁴³

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^[284] In re Plains Pipeline, L.P., 08-19-00224-CV...