Requests for Inspection

• Author: Ashley S. Lipson
• Pages: 524-554

8-522

See it firsthand.

Words, by their very nature, distort.

Chapter 8

Requests for Inspection

§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

8-523 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 surveil-

lance 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 disability dis-

crimination 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 necessary 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 exces-

sive 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 subduing 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 ownership 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 treatises

lump Document Production and Inspection together,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 general. 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

substance that was once a part or component of the con-

troversy itself. Included within this definition are not

only “things,” but geographical locations or parcels of

real estate (commonly referred to as “views”).4 The con-

cept 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 sug-

gests all forms of realty, including raw land, houses,

apartments, condominiums and buildings, in general.

It can also encompass every conceivable non-tradition-

al form of real estate.6 The subject matter of real estate

is important, and a major focal point of applicable dis-

covery rules, both state and federal (as evidenced by the

language of Federal Rule 34, discussed infra); however,

the bulk of our discussions for this chapter focuses on

real evidence (often personalty) as opposed to, and not

to be confused with, real estate.

Audiotapes, videotapes, films and photographs are

frequently and sometimes incorrectly treated as “demon-

strative 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 “demonstrative,” regardless of their

form or substance; films and videos showing reconstruc-

tions and simulations of events are common examples.

Where, however, evidence comes into being at the very

inception of the incident or accident and manages to cap-

ture that event as it occurs, then such evidence is “real” in

every sense of the term, regardless of whether it happens

to consist of an audiotape, videotape, photograph or film.

Surveillance videos are typical examples of real

evidence. Some courts are, however, are still struggling