A prior post noted covert site inspections are a bad idea. A reader e-mailed and asked what could be the remedies if one happens anyway?
To keep things simple, assume a generic slip and fall fact pattern where the fall occurs on private property. The property owner is sued and someone conducts a covert site inspection, meaning the property owner and counsel are never notified of it. If I represented the property owner, I would seek several remedies. First, I would ask to exclude all evidence gained from the inspection. Second, I would ask to disqualify the expert witness who performed the inspection because that bell cannot be unrung. The expert obtained evidence she should not have obtained, albeit perhaps due to no fault of her own. Alternatively, if the court will not exclude the evidence and expert, I would ask for a jury instruction stating that the opposing party and its expert gained an unfair advantage by inspecting the scene without notifying the other parties as Rule 34 requires. I would also seek fees and costs associated with the resulting motion, per Rule 37.
I hope that attorneys would know better than to condone an expert conducting a covert site inspection. If not and there was evidence indicating opposing counsel was aware or should have been aware of the covert inspection, I would also seek sanctions against counsel. In most circumstances this seems unlikely to be a disqualifying event. However, a monetary sanction in some amount may be appropriate if counsel knew or should have known.