United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
MICHAEL G. GOTSCH, SR. UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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].
thereafter on October 12, 2018, Defendants served their
Notice for inspection of the RV on October 25,
2018. 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].
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).
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). 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'
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.
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
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
[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 ...