Requests for Inspection

• Author: Ashley S. Lipson
• Pages: 635-672

See it firsthand.

Words, by their very nature, distort.

Chapter 8

Requests for Inspection

Table of Contents

§8.10 Basic Training and Strategy

§8.20 Tips for Timing Your Attack

§8.30 Dealing With Real Evidence

§8.31 Care and Handling of Real Evidence

§8.32 Five Degrees of Inspection

§8.32(a) Degree One—Pure Observation

§8.32(b) Degree Two—Recording

§8.32(c) Degree Three—Possessory Inspection

§8.32(d) Degree Four—Non-Destructive Testing

§8.32(e) Degree Five—Destructive Testing

§8.40 The Rules That You Need

§8.41 Federal Rules Pertaining to Inspection

§8.42 State Rules Pertaining to Inspection

§8.50 Constructing Your Requests

§8.60 Responding to the Requests

§8.61 Compliance

§8.62 Objection and Delay

§8.63 Spoliation

§8.70 Enforcing Compliance

§8.80 The Forms That You Need

Form 8.1 Notice for Inspection of Property

Form 8.2 Notice for Inspection and Examination of Real Property

Form 8.3 Notice for Inspection and Examination of Personal Property

Form 8.4 Response to Notice for Inspection of Property

(Acquiescence)

Form 8.5 Response to Notice for Inspection of Property

Contents continued on next page

Guerrilla Discovery 8-2

Form 8.6 Motion to Permit Inspection

Form 8.6(a) Motion to Permit Destructive Testing

Form 8.7 Day in the Life Video (Defendant’s Letter to Plaintiff’s

Attorney)

Form 8.8 Day in the Life Video (Plaintiff’s Response to

Defendant’s Letter)

Form 8.9 Consent Order Pertaining to Filming of Day in the Life

Motion Picture

8-3 requests For inspection §8.10

1 Rule 34, titled: “Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes,” is set forth in

its entirety in §7.41. For those portions pertinent to this chapter, see §8.41.

2 There are only four types or species of evidence: “Testimonial, Documentary, Real and Demonstrative” and no others.

Unfortunately, the federal rules have failed to grasp the simplicity of this fact.

3 Rule 34 treats videotapes and audiotapes as “documents.” It should be noted, however, that where the items are one-of-a-kind

(such as surveillance videotapes), they should be treated with the care and handling necessary for real property during all

phases of the discovery process.

4 See Lipson, Is It Admissible? James Publishing; Chapter 30.

Rooney v. Sprague Energy Corp., 495 F.Supp.2d 135 (D. Me. 2007). In an employee’s action against an employer claiming dis-

ability discrimination with respect to the employer’s decision to place him on an indefinite leave of absence, the district court

granted the employee’s motion for inspection of the employer’s premises, notwithstanding that the motion for entry had not been

made within the discovery period. The employer’s motion for a jury view, on the other hand, had been denied; and likewise

denied was the ability of the employee, like the employer, to videotape or photograph the premises to produce evidence for trial.

5 See, for example, Ostrander v. Cone Mills, Inc., 119 F.R.D. 417 (D. Minn. 1988), permitting discovery of an unwashed piece of

fabric in litigation pertaining to its flammability, or Lanzatella v. Lanzatella, 90 Misc. 2d 325, 394 N.Y.S.2d 544 (N.Y. 1977),

allowing an inspection of the contents of a safe deposit box.

Consider the Internet website in the case of Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y.Sup., 2010), a personal injury

action. Private information sought from the plaintiff’s social networking website accounts was material and necessary for the

defendant’s defense, where the plaintiff claimed that due to her injuries she was largely confined to a bed, but a public photo

showed her outside of the home, and private information contained further contradictions with respect to plaintiff’s claims.

Moreover, plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is neces-

sary to the defense of the action.

5.1 See §§2.21 and 3.23. See also Alspaugh v. McConnell, 643 F.3d 162 (6th Cir. 2011). A state prisoner filed a civil rights action

alleging excessive force and deliberate indifference against numerous state and private defendants. The prisoner’s request for

a videotape of the subject fight was of such a nature that it would have changed the legal and factual deficiencies of his action;

and thus, the prisoner was entitled to its production. The videotape would have shown how much force had been used in sub-

duing the prisoner.

6 See McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70 (D.D.C. 1999), which permitted the inspection of an Iranian

dairy farm, or Williams v. Continental Oil Company, 14 F.R.D. 58 (D.Okla. 1953) involving an underground oil well. But see

Templeton v. Dreiss, 961 S.W.2d 645 (Tex.App. 1998), where the court refused to permit entry upon land of disputed owner-

ship for the simple purpose of conducting a re-survey.

7 See §14.33.

§8.10 Basic Training and Strategy

Despite the mixed manner in which Rule 34 of

the Federal Rules of Civil Procedure and related treatis-

es lump Document Production and Inspection togeth-

er,1 the two concepts involve entirely different species

of evidence.2 This particular chapter focuses upon the

“Inspection” portion of the Rule, which necessarily

involves real as opposed to documentary evidence.

Real evidence is special because it is both

unique and irreplaceable. These factors create some

significant problems with respect to discovery in gen-

eral. If destroyed, damaged or altered, the evidence

cannot, as a rule, be restored.3

What exactly is real evidence? For a given case,

think of real evidence as some physical object or sub-

stance that was once a part or component of the contro-

versy itself. Included within this definition are not only

“things,” but geographical locations or parcels of real

estate (commonly referred to as “views”).4 The concept

also encompasses virtually every conceivable shape,

form and type of personal property on the planet.5 As a

general proposition, real evidence, by its very nature and

definition, should be both relevant and discoverable.5.1

The clumsy use of the term “land” in Rule 34

suggests all forms of realty, including raw land, hous-

es, apartments, condominiums and buildings, in gen-

eral. It can also encompass every conceivable non-tra-

ditional form of real estate.6

Audiotapes, videotapes, films and photographs

are frequently and sometimes incorrectly treated as

“demonstrative evidence.” Demonstrative exhibits are

commonly protected by the Work Product Doctrine.7

Indeed, where “pedagogical” devices and instructive

materials are designed solely to assist the litigation,

those devices can correctly be termed “demonstra-

tive,” regardless of their form or substance; films and

videos showing reconstructions and simulations of

events are common examples. Where, however, evi-

dence comes into being at the very inception of the

incident or accident and manages to capture that event