October 2008

CR 34 and Gillett v. Conner

by Mark Leen

Land has always enjoyed heightened protections in America. It should not be surprising that courts take into account the special status of land, and a person’s home in particular, when determining the scope of inspections of land. A recent decision of the Washington State Court of Appeals recognizes the “unique burdens and risks inherent to an entry upon land” for the purposes of CR 34 site inspections,” particularly when dealing with a person’s home.1 In light of these concerns, the decision in Gillett v. Conner provides important strategic and economic protections for property owners who are parties to litigation and are likely to face a broad site-inspection request.

In Gillett, the Court of Appeals vacated a trial court’s order granting a motion to compel a party to allow a site inspection of their neighbor’s home.2 The plaintiffs, Paul and Gail Gillett, filed a nuisance claim against their neighbors Katie Fletcher and Michael Conner.3 The Gilletts “moved for an order allowing them to inspect, measure, photograph, test and sample the neighbors’ property.”4 The trial court granted the Gilletts’ motion based only upon the relevance of the request.5 The Court of Appeals “granted discretionary review to resolve questions concerning the procedure for deciding a discovery request under CR 34.”6 Site inspections are generally governed by CR 34.

The Court of Appeals vacated the trial court decision because the trial court failed “to balance the necessity and reasonableness of the inspection against the burden represented by the invasion of [the neighbors’] privacy.”7 The Court of Appeals began its analysis by noting that “[a] trial court must manage the discovery process in a fashion that promotes full disclosure of relevant information while protecting against harmful side effects.”8 It also noted that CR 34(a)(2) allows a party to “request that another party permit entry upon designated land or other property for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of CR 26(b).”9 The court then addressed CR 26(b), counterpoising its broad definition of relevancy with its provisions allowing a trial court to “limit discovery where it would be unduly burdensome, whether or not a party to the dispute so requests[,]” as well as to “make any order justice requires in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”10

Noting the lack of state law addressing land inspections, the Court of Appeals then turned to federal cases for guidance on limits upon a CR 34 request for a site inspection.11 The Court of Appeals found that “[f]ederal cases recognize the unique burdens and risks inherent to an entry upon land.”12 The Court of Appeals also specifically noted the types of restrictions federal courts placed on “the time, place, and manner” of inspection requests, including “limits on what specific items or areas may be examined; limits on who may conduct the inspection and who may be present during the inspection; limits on the nature of the inspection; and requirements that all testing, sampling, and measuring be non-destructive.”13 Based upon its analysis of federal cases, the Court of Appeals established a rule requiring trial courts “crafting orders pursuant to CR 34” to balance, on the record, the truth gathering value of an inspection versus its potential burdens and dangers. The Court of Appeals noted that “the trial court is inarguably in the best position to determine the nature and extent of the burdens and risks, the need for any limits on inspection, and the appropriate means to limit an inspection.”14 The Court further observed that effective appellate review requires that this balancing be done on the record.15

Applying this rule to the order before it, the Court of Appeals vacated the trial court order and remanded for further proceedings because the trial court had only evaluated the relevance of the inspection.16 Of particular interest, the Court of Appeals pointed out that the trial court order would allow the Gilletts unfettered ability to enter and photograph or test every room in a private home.17 The Court of Appeals noted that “the burdens and risks this procedure poses to [the neighbors’] privacy interests are substantial.”18

Litigants on both sides of a CR 34 request should take Gillett into account in light of the potential tactical and economic protections it provides property owners. First, given the balancing that trial courts are required to conduct, a party seeking a motion to compel a site inspection may be required to specifically state in its motion the relevance of the information being sought and the importance of the information to the party’s case.19 This may force the requesting party to reveal important information about its legal strategy. Second, a property owner is in a much better position to obtain reasonable limits on the “time, place, and manner” of the inspection and minimize disruptions. A review of the federal cases cited by Gillett indicates that courts will be evaluating whether the parties requested to be at the inspection are necessary, whether the scope of the inspection is broader than is needed, whether the time of day and length of the inspection are appropriate, and whether efforts will be made to limit the destruction of property resulting from the inspection. Litigants should take these considerations into account when drafting or opposing a request for a site inspection. 

Mark Leen is a civil litigation attorney at the law firm of Inslee, Best, Doezie & Ryder, P.S. in Bellevue. Mark has experience in appellate, bankruptcy, construction, contract, intellectual property, and real estate litigation. He has also served as a clerk for the Honorable Robert E. Keeton of the United States District Court for the District of Massachusetts and as a judicial extern for the Honorable Barbara Madsen of the Washington State Supreme Court. He may be contacted at mleen@insleebest.com or at 425-450-4219.

NOTES
 1. Gillett v. Conner, 132 Wn. App. 818, 824, 826, 133 P.3d 960 (May 8, 2006).
 2. Id. at 820.
 3. Id.
 4. Id. at 821.
 5. Id. at 821–22.
 6. Id. at 821.
 7. Id. at 821–22.
 8. Id. at 822 (internal quotation marks omitted).
 9. Id. (internal quotation marks omitted).
 10. Id. (internal quotation marks omitted).
 11. Id. at 823.
 12. Id. at 824.
 13. Id.
 14. Id. at 826.
 15. Id.
 16. Id.
 17. Id.
 18. Id.
 19. See 15A Tegland, Karl B. and Ende, Douglas J.,Washington Practice § 50.2 (current through the 2007 updated).