Getting into the Room Where It Happens…

by Andy Jones

 

In many cases, seeing the physical location where an event occurred is critical to the issues in a lawsuit. For example, a defendant surgeon contends that it was not his surgical technique but rather a fixture in the patient’s recovery room that caused the significant internal bleed to the patient. Just what that fixture looked like is a critical discovery issue. Another wrinkle – the hospital property is now owned by a third-party not a part of the suit. How does the prudent attorney get into the room and see for themselves what this fixture looked like? Follow Texas Rule of Civil Procedure 196.7, and you too can be in the room where it happened – or didn’t…

Under Rule 196.7, when a property is owned by a third-party an order is required to enter and inspect the property. To get that order notice to all parties, and the third-party, and a hearing are required.[1] Most important, is that unlike with property owned by a party, an order for entry of a non-party’s property may only issue “for good cause” and “only if the…property…is relevant to the subject matter of the action.”[2]

As is the case with any good rule of procedure, there is a dearth of interpretive case law pertaining to Rule 196.7.[3] As such, Texas Courts have relied on both Texas interpretations of Rule 196.7 as well as case-law from Federal Courts pertaining to Federal Rule of Civil Procedure 34(a)(2).[4] Both Texas Rule of Civil Procedure 196.7 and Federal Rule of Civil Procedure 34(a)(2) govern the entry and inspection onto property.

Texas and Federal courts interpreting Rules 196.7 and Rule 34 balance how the entry “will aid in the search for truth against the burdens and dangers” created by the entry.[5] This balancing test is highly case specific, as evidenced by the cases in which the courts apply this balancing test.[6] There must be more than “mere ‘relevance’” before a Court may order an inspection of a non-parties property.[7]

No Texas court has specifically defined “good cause” in the context of Rule 196.7.[8] However, “good cause” is generally understood, in the discovery context, to require that a party show

(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.[9]

Further, a non-party cannot be forced to create documents which do not exist, e.g. photographs or video recordings.[10] But, the party seeking the inspection does not have to rely on an inspection done by the opposing party – they may make their own inspection.[11]

As in the fact scenario here, the prudent advocate would emphasize that the size, shape, and location of the fixture is critical to determine whether the fixture caused the internal bleeding. Thus, facts demonstrating that the information can only be obtained by the inspection and that the information sought will be bear directly on and be material to resolving an issue in the case, will go a long way to satisfying the balancing test and obtaining the order for entry and inspection.

It is also important to note the limits of what can be done when seeking to enter and inspect a non-party’s property. Once an order is issued, a party may “inspect, measure, survey, photograph, test or sample the property or any…operation thereon” the property subject to the order.[12] This can range from taking photographs of hospital fixtures to taking video of a manufacturing process to measuring the depth and location of an oil well.[13]

What’s the limit to what a party can do once entered and inspecting? That’s a highly case-specific inquiry. But to be safe, do not do the following:

“[Petitioner] told the Respondent that to ‘perform a video’ would require a film crew, actors and witnesses, totaling about twenty people, and that the performance and filming would take “six hours at the outside … depending on how many times you have to reshoot. They need to get in and set up and get the lighting.” Subsequently, counsel told the Respondent that it would take eight hours instead of six.”[14]

Now that you are armed with the knowledge of Texas Rule of Civil Procedure 196.7, you have the best chance of getting the pictures of that fixture, or video of that process, or depth of that well. Just resist the urge to film your medical drama pilot episode while you’re there.
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[1] See Rule 196.7(a)(2), (d); see also In re SWEPI L.P., 103 S.W.3d 578, 583 (Tex. App. — San Antonio 2003, orig. proceeding).

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

[3] See In re Kimberly-Clark Corp., 228 S.W.3d 480, 486 (Tex. App. — Dallas 2007, no pet.).

[4] See id. (citing Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978); see also In re Goodyear Tire & Rubber Co., 437 S.W.3d 923, 928 (Tex. App. — Dallas 2014, no pet.) (citing In re Kimberly-Clark Corp., 228 S.W.3d 480, 486 (Tex. App. — Dallas 2007, no pet.)).

[5] See In re Kimberly-Clark Corp., 228 S.W.3d at 486 (citing Belcher, 588 F.2d at 910).

[6] See, e.g., Amis v. Ashworth, 802 S.W.2d 374 (Tex. App. — Tyler 1990, no writ).

[7] See Belcher, 588 F.2d at 908.

[8] See In re SWEPI L.P., 103 S.W.3d at 584.

[9] Id.

[10] See In re Guzman, 19 S.W.3d 522, 525 (Tex. App.—Corpus Christi 2000, no pet.).

[11] In re SWEPI L.P., 103 S.W.3d at 585.

[12] Tex. R. Civ. P. 196.7.

[13] See, e.g.  In re SWEPI L.P., 103 S.W.3d at 585; Banks v. The Interplast Group, Ltd., 2003 WL 21185685 at *1 (S.D. Tex 2003); see also Belcher, 588 F.2d at 910.

[14] Amis, 802 S.W.2d at 376.

 

Andy Jones is a trial lawyer at Sawicki Law where he represents personal injury plaintiffs. He can be reached at ajones@sawickilawfirm.com.

 

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