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Smith v. Nexus Rv. LLC

United States District Court, N.D. Indiana, South Bend Division

May 14, 2019

LINDA SMITH, and KEN SMITH, Plaintiffs,
v.
NEXUS Rv. LLC., and ALLY FINANCIAL, INC., Defendants.

          OPINION AND ORDER

          MICHAEL G. GOTSCH, SR. UNITED STATES MAGISTRATE JUDGE

         On October 19, 2018, Defendants filed a Motion to Compel Private Expert Inspection Under FRCP 34(a)(2). On November 2, 2018, Plaintiffs timely filed their response in opposition. Defendants' motion became ripe on November 9, 2018, when they filed their reply brief. For the reasons discussed below, the Court grants Defendants' motion to compel.

         I. Relevant Background

         This case arises from numerous defects in a recreational vehicle purchased by Plaintiffs and manufactured by Defendant, Nexus RVs, LLC. As part of discovery, Plaintiffs' expert witness inspected the RV on September 6, 2018. The written report from that inspection was provided to Defendants on October 5, 2018. However, Defendants neither received notice of, or other express invitation to, this initial inspection nor did they request to be present at Plaintiffs' expert's inspection. Now, Defendants want their expert witness to conduct a private inspection of the RV.

         Plaintiffs do not object to allowing Defendants' expert to inspect the RV, but do object to a private inspection and would like their counsel to attend.

         In support, Plaintiffs' counsel explains that inspections outside the presence of counsel in some of his past cases have resulted in destructive testing of the RV at issue. Additionally, Plaintiffs' counsel alleges that the parties' law firms have established and observed an agreed inspection protocol for nearly four years. Plaintiffs' counsel argues that the protocol allows for plaintiffs to conduct a private inspection of the RV followed by a discussion among counsel to find a mutually agreeable date for defendants' inspection. Plaintiffs' counsel also suggests that the protocol could accommodate opposing counsel's attendance at either inspection upon request.

         In early October 2018, the parties' attorneys engaged in email exchanges, telephone calls, and in-person conversations attempting to schedule the RV inspection at issue. In one of these communications, Plaintiffs' counsel dismissed a proposed inspection date because he would not available to attend. Defendants' counsel then informed Plaintiffs' counsel that he was “not invited to the inspection.” [DE 21-13 at 4].

         Shortly thereafter on October 12, 2018, Defendants served their Notice for inspection of the RV on October 25, 2018[1]. The Notice said nothing about who could or could not attend the inspection. During a subsequent telephonic conference to finalize the inspection details, counsel still disagreed as to whether Plaintiffs' counsel would be attending the inspection. On October 16, 2018, the day after this telephonic conference, Defendants served an Amended Notice of Inspection on Plaintiffs, in which they explicitly noticed an inspection of the RV to occur on October 25, 2018, “outside the presence of Plaintiffs and their representatives.” [DE 21-9 at 1].

         Upon receipt of the Amended Notice, Plaintiffs' counsel persisted in his position that the Defendants' inspection would not be private, but still agreed that the RV would be available for inspection on October 25, 2018. Several emails were exchanged in which the parties unsuccessfully attempted to resolve the question of a private inspection. Plaintiffs' counsel remained steadfast in his view that Defendants have no right to a private inspection, while Defendants' counsel insisted that they have a right to a private inspection under Federal Rule of Civil Procedure 26(b)(3)-(4), and 34(a)(2).

         Plaintiffs served Defendants with a Written Objection to Defendants' Amended Notice of Inspection on October 19, 2019. After further communications that failed to resolve the matter, Defendants filed the instant motion to compel pursuant to Fed.R.Civ.P. 34(a)(2).[2] The parties agree that Rule 34 permits Defendants to inspect the RV. However, the parties still disagree about whether Defendants are entitled to perform an inspection of the RV outside the presence of Plaintiffs' counsel.

         II. Analysis

         Federal Rule of Civil Procedure 34 allows a party to request, “entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” Fed.R.Civ.P. 34(a)(2). Should a party “fail[] to respond that inspection will be permitted-or fail[] to permit inspection-as requested under Rule 34, ” the aggrieved party may “move for an order compelling disclosure or discovery.” Fed.R.Civ.P. 37(a)(1); (a)(3)(B)(iv).

         When addressing motions to compel, the court has broad discretion and may deny discovery to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c); see also Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998); Gile v. United Airlines, Inc., 95 F.3d 492, 495-96 (7th Cir. 1996). “[A] district court should independently determine the proper course of discovery based upon the arguments of the parties.” Gile, 95 F.3d at 496. The burden “rests upon the objecting party to show why a particular discovery request is improper.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 449-50 (N.D. Ill. 2006). The objecting party must show with specificity that the request is improper. Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002). Thus, Plaintiffs bear the burden here to show with specificity why Defendants' request for a private inspection of the RV is improper.

Defendants' operative Amended Notice of Inspection states:
Defendants, by counsel, and pursuant to Trial Rule 34 requests [sic] the private inspection of Plaintiffs' 2018 Nexus Phantom on October 25, 2018 beginning at approximetly [sic] 2:00 pm. at the home of Plaintiffs at 600 Maple Crest Lane Watertown, WI 53094.
Defendant's Expert, Paul Pierce, will be required to test drive the unit off premise and drive the unit to a nearby weigh station, along with a full inspection of the vehicle. The test drive will take palce [sic] under normal driving conditionas [sic] and Plaintiffs will be reimbursed for mileage using stndard [sic] reimbursement rates, upon submission to counsel for Defendant. Since the inspection will be non-destructive, Defednant [sic] will conduct the inspection outside the presence of Plaintiffs and their representatives.

[DE 19-7 at 3]. Arguing that Federal Rule of Civil Procedure 26 establishes a right for a private inspection, Defendants filed the instant motion asking the Court to enter an Order compelling a private expert inspection as specified in the operative Notice. Defendants also ask the Court to award their reasonable expenses, including ...


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