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Rule 196.7. Request or Motion for Entry Upon Property (Aug. 1998)

TEXT

(a) Request or motion. A party may gain entry on designated land or other property to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon by serving no later than the earlier of 30 days before the end of the discovery period or 30 days before trial -

(1) a request on all parties if the land or property belongs to a party, or

(2) a motion and notice of hearing on all parties and the nonparty if the land or property belongs to a nonparty. If the identity or address of the nonparty is unknown and cannot be obtained through reasonable diligence, the court must permit service by means other than those specified in Rule 21a that are reasonably calculated to give the nonparty notice of the motion and hearing.

(b) Time, place, and other conditions; The request for entry upon a party's property, or the order for entry upon a nonparty's property, must state the time, place, manner, conditions, and scope of the inspection, and must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by whom the inspection, testing, or sampling is to be made.

(c) Requirements for· order property. An order for entry on a nonparty’s property may issue only for good cause shown and only if the land, property, or object thereon as to which discovery is sought is relevant to the subject matter of the action.

Aug. 4, 1998, eff. Jan. 1, 1999.

Notes and Comments

Comments to 1999 change:

1. "Document and tangible things" are defined in Rule I 92.3(b).

2. A party requesting sampling or testing must describe the procedure with sufficient specificity to enable the responding party to make any appropriate objections.

3. A party requesting production of magnetic or electronic data must specifically request the data, specify the form in which it wants the data produced, and specify any extraordinary steps for retrieval and translation. Otherwise, the responding party need only produce the data available in the ordinary course of business in reasonably usable form.

4. The rule clarifies how the expenses of production are to be allocated absent a court order to the contrary.

5. The obligation of parties to produce documents within their possession, custody or control is explained in Rule 192.3(b).

6. Parties may request production and inspection of documents and tangible things from nonparties under Rule 205.3.

7. Rule 196.3(b) is based on Tex. R. Evid. 1003.

8. Rule 196.1 (c) is merely a notice requirement and does not expand the scope of discovery of a nonparty's medical records.

AMENDMENTS

Nov. 9, 1998, eff. Jan. 1, 1999