Can a Site Inspection be Used to Create New Evidence?

A prior post discussed how Rule 34 does not permit a covert site or scene inspection and the balancing test used to evaluate whether a requested inspection is appropriate. If you cannot covertly create a reenactment favorable to your case, can you get the court’s blessing to do it?

In re Goodyear Tire & Rubber Co.[1] arose from a products case concerning a Goodyear tire. The district court ordered, at plaintiff’s request, that Goodyear provide demonstrations to the plaintiff in two, 30 minute segments.

During the first segment, Goodyear was required to permit observation and recording of a “tire building machine that manufactures tires of the same size as the subject tire with a nylon overlay or ‘cap ply.'” During the second segment, Goodyear was required to permit observation and recording of a “tire building machine that manufactures tires of the same size as the subject tire without a nylon overlay or ‘cap ply.'”[2]

However, Goodyear’s evidence opposing this motion

established that two months after the tire at issue was manufactured, Goodyear changed the design of the tire, and the equipment that had been used to manufacture the tire had been removed from the plant. As of the date of the hearing before the trial court, one such machine had been returned to the plant, but it was being used to manufacture a different size tire. The affidavit evidence also established that no tire of the same size as the subject tire, whether with or without a nylon cap ply, is currently manufactured on the type of machine that produced the subject tire.

Goodyear sought a writ of mandamus from a Texas appellate court, which overturned the district court’s order.

First, “[a]lthough a 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.”[3] Instead, the district court “should conduct a greater inquiry into the necessity for the inspection, testing, or sampling. 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.” Evaluating plaintiff’s arguments in this context, the court noted a distinction in Texas law between “real” and “demonstrative” evidence.[4] Texas’ equivalent of Rule 34 “does not provide for the creation of new evidence for demonstrative purposes.”[5] Consequently, the district court erred by ordering the video’s creation.

The video the plaintiffs seek to record falls into the category of “new evidence.” The demonstration the trial court has ordered does not involve merely inspecting the machine that produced the tire at issue to determine whether the condition of the machine may have caused the production of a defective tire. Instead, it requires Goodyear to provide demonstrations of the manufacture of completely different products with the intention that the plaintiffs will use those demonstrations as a visual aid to illustrate their theories regarding the manner in which the manufacture of the subject tire may have been deficient and how an alternate design that they deem simple and inexpensive could have avoided the accident. The recording the plaintiffs want to make does not attempt to document the process used in making the actual tire at issue in the case nor does it document the condition of the plant at the time that the tire was manufactured. Rather, seven years after the fact, it will document work performed by different workers, using either a different machine or making a different tire, under different conditions. In this respect the trial court’s order goes beyond the sort of inspection, measurement, surveying, photographing, testing, or sampling contemplated by rule 196.7.

The recording the plaintiffs seek to create will be a generic representation of tire manufacturing. The plaintiffs have effectively conceded that such a recording would not be useful, rejecting as inadequate a previously produced tire manufacturing video because “[i]t doesn’t tell us whether the tire that’s being made is of the same make, model or size as the subject tire. It doesn’t tell us whether the tire being made is a passenger tire or a [light] truck tire. It doesn’t tell us whether or not the tire that’s being made incorporates a nylon cap ply.” Further, the recording the plaintiffs seek to create could be used as a dramatic presentation by the plaintiffs of the poor tire manufacturing processes they contend were rampant at Goodyear’s plant at the time the tire was manufactured. Neither forced participation in the creation of a generic representation of tire manufacturing nor compelled participation in the preparation of a dramatic demonstrative exhibit is consistent with the type of discovery contemplated under the rules of civil procedure.[6]

Some readers may initially think this ruling is inconsistent with my prior posts about Rule 34 being used to require medical record authorizations.[7] I do not consider the rulings inconsistent. The interpretation of Rule 34 is generally governed by Rule 1. The comparative burden and complexity of executing a medical record authorization is comparatively minimal, especially where a personal injury plaintiff has already provided one to her lawyer. This contrasts directly with the interference and burden that the recreation In re Goodyear discussed. In the scheme of discovery, the rulings are consistent.

[1] 437 S.W.3d 923 (Tex. App. 2014).
[2] Id. at 926.
[3] Id. at 928 (citation and quotations omitted).
[4] Id. at 929; “’Real’ evidence should be used to refer to evidence directly involved in the incident giving rise to the litigation, while ‘demonstrative’ should be reserved for evidence offered for purposes of illustration.” Tex. Jur. 3D Evidence § 462 (2010).
[5] Id.
[6] Id. at 929-30.
[7] Post 1, Post 2