United States District Court, E.D. Texas, Marshall Division
WILMA L. JOHNSON, Plaintiff,
AIR LIQUIDE LARGE INDUSTRIES U.S. L.P., Defendant.
MEMORANDUM OPINION AND ORDER
WILLIAM C. BRYSON UNITED STATES CIRCUIT JUDGE.
the Court is Defendant Air Liquide Large Industries U.S.
L.P.'s (“Air Liquide”) Motion for Inspection
of Third Party Premises, Dkt. No. 62. The motion is DENIED.
September 4, 2019, after the close of discovery, defendant
Air Liquide filed a motion to be allowed to enter third-party
premises in order to conduct measurements and take
photographs of a feature on the outside of a building on
those premises. The building houses a company known as
“Neutral Posture, ” which is owned by the wife
and daughter of the plaintiff's safety expert, Dr. Jerome
Congleton. See Dkt. No. 62-2, Exh. 2, at 73. Dr.
Congleton's deposition was conducted in that building.
proposed subject of the measurements and photographs is an
alleged elevation change in the walkway leading to the
Neutral Posture office building. As justification for its
motion to inspect, Air Liquide contends that the sidewalk in
question has an elevation change that is at least as great as
the elevation change in the sidewalk at Air Liquide's
premises where Ms. Johnson tripped and fell. Air Liquide
notes that Dr. Congleton stated in his report that Air
Liquide “doubtlessly (with reasonable certainty)
possessed clear constructive (if not actual) knowledge of
such change in elevation defects.” Dkt. No. 62-1, Exh.
1, at 31. Yet Dr. Congleton testified at his deposition that
he had never noticed the irregularity in the sidewalk at his
own offices, even though he “has been walking into the
building for more than 30 years.” Dkt. No. 62, at 3;
Dkt. No. 62-2, Exh. 2, at 72.
Dr. Congleton's deposition, Air Liquide's counsel
asked if Ms. Johnson's counsel and Dr. Congleton would
allow a photograph to be taken of the alleged elevation
change outside the front door of the Neutral Posture
building. Dkt. No. 62-2, Exh. 2, at 72, 97. During their
discussion, Dr. Congleton stated that he did not own the
premises, which were owned by his wife and daughter.
Id. at 73. Dr. Congleton also insisted that the
change in elevation in front of the Neutral Posture building
was “not over a quarter of an inch.” Id.
at 98-99. After further discussion, counsel for Ms. Johnson
agreed to permit the elevation to be photographed and
measured. Id. at 97-99. A photograph was taken, but
the elevation change was not measured, apparently because a
tape measure was not available. Dkt. No. 71-2, at 2.
to Air Liquide, its counsel noticed another, much greater
change in the elevation of the walkway as he was leaving the
deposition. He asked Dr. Congleton and Ms. Johnson's
counsel for permission to photograph the second elevation
change, but Ms. Johnson's counsel denied the request.
Dkt. No. 62, at 3; Dkt. No. 62-3, Exh. 3, at 1; Dkt. No.
71-2, at 2. In a follow-up letter sent the following week,
Air Liquide's counsel made a formal request of Ms.
Johnson's counsel to allow Air Liquide to photograph and
measure the elevation change on the premises of Neutral
Posture. In the letter, counsel requested a response by the
end of the day on which the letter was sent. Dkt. No. 62-3,
Exh. 3, at 1. When a response was not received by that time,
Air Liquide filed the present motion on the following day.
Dkt. No. 62.
motion, Air Liquide seeks an order granting Air Liquide's
“motion for inspection of third party premises”
and “requiring Jerome Congleton and Plaintiff's
counsel, Mike Ace, to allow Air Liquide to take additional
photographs and measurements of the subject premises, the
offices of Neutral Posture, located at 3904 North Texas
Avenue, Bryant [sic: Bryan], TX 77803.” Dkt. No. 62, at
1. As authority for its motion, Air Liquide cites Federal
Rule of Civil Procedure 34. That rule, according to Air
Liquide “allows a party to ‘serve on any other
party a request within the scope of Rule 26(b)' to enter
‘onto designated land . . . so that the requesting
party may inspect, measure, survey, photograph, test, or
sample the property or any designated object or operation on
it.'” Dkt. No. 62, at 3-4.
problem with Air Liquide's reliance on Rule 34 lies in
the words Air Liquide left out of its quotation from Rule 34.
The words omitted by the ellipsis in Air Liquide's motion
read “or other property possessed or controlled by the
responding party.” Rule 34 thus applies only to
requests to inspect, etc., land or property possessed or
controlled by a party to the lawsuit. See
8B Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice & Procedure §
2208, at 139-40 & n.1 (3d ed. 2010) (Rule 34
“creates a device that may be used to obtain discovery
only from parties to a pending action.” It does not
apply to “anyone who is not a party, even if a witness
to the matter in dispute.” Rule 34 does not allow
discovery against a nonparty, “and it does not
authorize independent actions for entry onto land.”).
Neutral Positions and the owners of the premises are not
parties to this lawsuit. Rule 34 is therefore wholly
is a way to obtain access to property owned or controlled by
a third party for purposes of inspection, and that is to
proceed by subpoena pursuant to Rule 45 of the Federal Rules
of Civil Procedure, a point made in Rule 34 itself.
See Fed. R. Civ. P. 34(c) (“As provided in
Rule 45, a nonparty may be compelled to produce documents and
tangible things or to permit an inspection.”); 9A
Wright et al., Federal Practice & Procedure
§ 2456 (“The subpoena duces tecum is the only way
to compel a nonparty to produce documents or other
materials.”); OSReovery, Inc. v. One Groupe
Int'l, Inc., 462 F.3d 87, 90 (2d Cir. 2006)
(“Non-parties are entitled to certain discovery
procedures, such as receiving a subpoena, before they are
compelled to produce documents.”); Hobley v.
Burge, 433 F.3d 946, 949 (7th Cir. 2006); In re
Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1998)
(“Rule 34(c) explicitly makes the subpoena process of
Rule 45 the route to compelling production of documents from
nonparties”). Rule 45 authorizes the issuance of a
subpoena to a third party for various purposes, including to
permit the inspection of premises. Fed.R.Civ.P. 45(c)(2)
(“A subpoena may command: . . . (B) inspection of
premises at the premises to be inspected.”); see
also Fed. R. Civ. P. 45(a)(1)(A)(iii) (requiring a
subpoena to “command each person to whom it is directed
to do the following at a specified time and place: . . .
permit the inspection of premises.”).
Rule 45 provides a means of obtaining lawful access to
third-party premises for purposes of inspection, Air Liquide
has not invoked the Rule 45 procedures. Those procedures are
entirely different from the procedures for obtaining
discovery from a party. Importantly, the Rule 45 procedures
not only provide notice to the opposing party, see
Fed. R. Civ. P. 45(a)(4) (“Notice to Other Parties
Before Service”), but also provide various protections
to the affected nonparty. Those protections include an
express obligation on the subpoenaing party to avoid imposing
undue burden or expense on the person subject to the
subpoena, see Fed. R. Civ. P. 45(d)(1)
(“Avoiding Undue Burden or Expense; Sanctions”),
and an opportunity for the subpoenaed party to resist the
subpoena or seek a modification of its terms, see
Fed. R. Civ. P. 45(d)(2)(B) (“Objections”);
Fed.R.Civ.P. 45(d)(3) (“Quashing or Modifying a
addition, any motion by the serving party to compel
production or inspection in accordance with the subpoena, or
any motion to quash or modify the subpoena, or any other
motion to compel a nonparty to comply with a discovery
obligation, must be filed in the court for the district where
compliance is required. Fed.R.Civ.P. 45(d)(2)(B)(i)
(“At any time, on notice to the commanded person, the
serving party may move the court for the district where
compliance is required for an order compelling production or
inspection.”); Fed R. Civ. P. 45(d)(3)(A) (“On
timely motion, the court for the district where compliance is
required must quash or modify a subpoena that [has certain
enumerated defects].”); Fed.R.Civ.P. 37(a)(2) (“A
motion for an order to a nonparty must be made in the court
where the discovery is or will be taken.”). In this
case, the proposed inspection would take place in in Bryan,
Texas, which is in Brazos County. Brazos County is within the
Southern District of Texas, not the Eastern District of
Texas. Therefore, any motion to compel compliance with any
subpoena to permit the inspection of the premises of Neutral
Posture, or any motion to quash or modify any such subpoena,
would have to be filed in the Southern District of Texas, not
in this court.
Liquide's effort to use party discovery under Rule 34 in
this instance, rather than a non-party subpoena under Rule
45, is not simply a case of a technical error in identifying
the wrong authority for the discovery sought. Rather, Air
Liquide's error impacts ...