Requests for entry and inspection

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 241-248

8-1

REQUEST ENTRY AND INSPECTION TASK 44

TASK 44

Request Entry and Inspection

I. WHAT AND WHY

A. You may inspect, measure, survey, photograph,

test or sample real property or any designated

object or operation on the property that is in

another party’s possession or control. FRCP

34(a)(2).

B. To inspect or test a nonparty’s property, you must

serve a subpoena under FRCP 45. See Task 40.

C. The party seeking inspection may not observe tests

on the property performed by the opposing party’s

expert. See Teer v. Law Eng’g & Envtl. Servs.,

Inc., 176 F.R.D. 206 (E.D.N.C. 1997) (denying

plaintiffs’ motion to compel defendant to provide

advance notice of “any testing, assessment, or

corrective actions on the subject property and to

permit Defendant to attend, observe, and record

what is done”).

D. During the inspection, you may not ask questions

of or interview the personnel working there

in order to obtain information relevant to the

litigation. U.S. v. Territory of the Virgin Islands,

280 F.R.D. 232 (D. V.I. 2012) (during inspection

of correctional facility, government agents not

entitled to ask prison staff questions about prison

operations, processes, and procedures).

II. WHEN

A. Without leave of court or the parties’ written

stipulation, you may not serve requests to inspect

before the parties’ FRCP 26(f)(1) initial meeting.

FRCP 26(d)(1).

B. Request entry and inspection as soon as possible

to avoid any claim that the property, object or

operation materially changed since the relevant

event occurred.

C. Do not serve requests to inspect less than 33

days before the discovery cutoff without prior

agreement by counsel or a court order because:

1. The responding party is allowed 30 days to

respond. FRCP 34(b)(2)(A).

2. The party has three more days to respond if

you serve the requests by mail. FRCP 6(e).

D. If you serve requests to inspect less than 33 days

before the discovery cutoff, you and responding

counsel must agree to shorten the response time or

you must move to shorten time. See Task 94.

E. Specify a reasonable time for the inspection, no

sooner than the date the responding party has to

serve a written response (usually 33 days).

III. HOW

A. Determine whether you need to inspect another

party’s property or an object or operation on

another party’s property.

1. Review your annotated proof of fact (see Task

4) and identify facts you must prove to win

your case.

2. For example, if the case involves a

manufacturing defect, determine whether

inspecting the manufacturing plant is necessary

to prove your case or rebut your opponent’s

case.

B. Draft the requests to inspect using Form 15 as a

guide. Carefully define the scope of the inspection.

Include notice of the following:

CHAPTER 8: REQUESTS FOR ENTRY AND INSPECTION

TASKS

Task 44 Request Entry and Inspection

Task 45 Respond to Entry and Inspection Requests

Task 46 Determine Whether to Compel Entry and

Inspection

FORMS

Form 15 Request for Entry and Inspection

Form 16 Response to Request for Entry and Inspection