Proper Procedure to Obtain Entry on Real Property of a Nonparty for Purposes of Inspection and Photographing

Rule 205.1 limits what the trial court may order in relation to discovery from a nonparty. A party can gain entry on the land of the nonparty by filing a motion, requesting a hearing, and obtaining an order. A party may compel discovery in the form of entry on and inspection of real property from a nonparty only by obtaining a court order under Tex. R. Civ. P. 196.7. An order for entry onto the property of a nonparty may only be issued upon a showing of "good cause" and only if the discovery is relevant to the cause of action. In determining whether to grant the order, Texas courts conduct a greater inquiry into the necessity for the inspection, testing, or sampling because entry onto the property of a nonparty involves unique burdens and risks such as confusion and disruption of the defendant's business and employees.

I. A party can gain entry on the land of the nonparty by filing a motion, requesting a hearing, and obtaining an order.

A party may compel discovery in the form of entry on and inspection of real property from a nonparty only by obtaining a court order under Tex. R. Civ. P. 196.7.[1] A party may gain entry on designated land or other property to inspect, measure, survey, photograph, test, or sample the property, or any designated object or operation on the property, by serving a motion and notice of hearing on all parties and on the nonparty if the land or property belongs to a nonparty.[2] The request or motion must be served no later than thirty (30) days before the end of any applicable discovery period.[3] If the identity or address of a nonparty is unknown and cannot be obtained through reasonable diligence, the court must permit service of the motion and notice of hearing by means, other than those specified in Tex. R. Civ. P. 21a, that are reasonably calculated to give the nonparty notice of the motion and hearing.[4]

The order for entry upon a nonparty's property, must state the time, place, manner, conditions, and scope of the inspection.[5] The order also must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by whom the inspection, testing, or sampling is to be made.[6]

II. An order for entry onto the property of a nonparty may only be issued upon a showing of “good cause” and only if the discovery is relevant to the cause of action.

The purposes for which a person is permitted entry onto the property of a nonparty are limited.[7] Tex. R. Civ. P. 196.7(d) permits a court to order entry on a nonparty's property, but only for good cause shown and only if the land, property, or object on the property as to which discovery is sought are relevant to the subject matter of the action.[8] Although a discovery request for entry upon land must satisfy the general requirement of relevance, mere relevance is not sufficient to justify a request for entry upon the property of another.[9] Texas courts have defined good cause as “being shown where the movant establishes (1) the discovery sought is relevant and material, that is, the information will in some way aid the movant in the preparation or defense of the case; and (2) the substantial equivalent of the material cannot be obtained through other means.”[10]

III. In determining whether to grant the order, Texas courts must conduct a greater inquiry into the necessity for the inspection, testing, or sampling of the property.

Discovery involving entry onto the property of a nonparty involves unique burdens and risks including, among other things, confusion and disruption of the defendant's business and employees.[11] Thus, the trial court should conduct a “greater inquiry into the necessity for the inspection, testing, or sampling sought.”[12] In conducting such an inquiry, the court must balance the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.[13] Further, the scope of such discovery should be limited by the court if it determines the discovery sought is obtainable from: (1) a more convenient, less burdensome, or less expensive source; or (2) the burden of the proposed discovery outweighs its likely benefit.[14]

In re Michelin involved a car accident caused by an alleged defective tire. The plaintiffs sought access to a tire manufacturing facility to view and record the manufacturing machines in operation.[15] The Fourteenth Court of Appeals began its analysis by stating discovery requests must “be reasonably tailored to include only matters relevant to the case,” but further noted, although a request for entry onto land must satisfy the general requirement of relevance, “mere relevance is not sufficient to justify a request for entry upon the property of another under Rule 196.7.”[16] A trial court must “balance the need presented by the party seeking entry against the burdens and dangers created by the inspection.”[17] The In re Michelin court held the discovery ordered was not relevant because observing the tire building machines would not “reflect the manner in which the subject tire was built on those machines.”[18] The court also pointed out the disruption of operations at the Michelin plant would result from the entry onto the property.[19] Accordingly, because entry onto the property of a nonparty involves unique burdens and risks such as confusion and disruption of the defendant's business and employees, the trial court must weigh the burdens placed on the nonparty with the weight and relevance of the evidence sought.

Conclusion

A party can gain entry on the land of the nonparty by filing a motion, requesting a hearing, and obtaining an order. A party may compel discovery in the form of entry on and inspection of real property from a nonparty only by obtaining a court order under Tex. R. Civ. P. 196.7. An order for entry onto the property of a nonparty may only be issued upon a showing of “good cause” and only if the discovery is relevant to the cause of action. In determining whether to grant the order, Texas courts conduct a greater inquiry into the necessity for the inspection, testing, or sampling because entry onto the property of a nonparty involves unique burdens and risks such as confusion and disruption of the defendant's business and employees.


[1] Tex. R. Civ. P. 205.1.

[2] Tex. R. Civ. P. 196.7(a).

[3] Id.

[4] Id.; Note, it is the discretion of the court to determine which means of service under Tex. R. Civ. P. 196.7(a) are reasonably calculated to give the nonparty notice of the motion and hearing.

[5] Tex. R. Civ. P. 196.7(b).

[6] Id.

[7] In re Kimberly–Clark Corp., 228 S.W.3d 480, 486 (Tex. App.–Dallas 2007, orig. proceeding).

[8] Tex. R. Civ. P. 196.7(d).

[9] In re Goodyear Tire & Rubber Co., 437 S.W.3d 923, 928 (Tex. App.—Dallas 2014, orig. proceeding); In re Goodyear Tire & Rubber Co., No. 04–16–00590–CV, 2017 WL 1787735 at *3 (Tex. App.—San Antonio, Apr. 26, 2017) (The party seeking entry onto the property bears the burden of showing more than “mere relevance.”).

[10] In re Swepi L.P., 103 S.W.3d 578, 584 (Tex. App.—San Antonio 2003) (orig. proceeding); In re Sun City Gun Exchange, Inc., 545 S.W.3d 1, 7 (Tex. App.—El Paso 2017).

[11] In re Goodyear Tire & Rubber Co., 437 S.W.3d at 928; In re Kimberly–Clark Corp., 228 S.W.3d at 486.

[12] In re Goodyear Tire, 2017 WL 1787735 at *3 (citing In re Kimberly, 228 S.W.3d at 486).

[13] In re Goodyear Tire, 2017 WL 1787735 at *3; In re Kimberly, 228 S.W.3d at 486.

[14] Tex. R. Civ. P. 192.4; In re Kimberly, 228 S.W.3d at 487.

[15] In re Michelin, No. 14–15–00578–CV, 2015 WL 7456101 at *1-2 (Tex. App.–Houston [14th Dist.] Nov. 24, 2015).

[16] Id. at *4.

[17] Id.

[18] Id. at *5.

[19] Id. at *6.

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