By: Luke Hibbeler

Rule 34 of the FRCP is mostly known for Requests for Production, but there’s another (often glanced over) part of the rule that doesn’t get the attention it deserves.

FRCP 34(a)(2), often referred to as a Request to Inspect or Request to Enter onto Land, allows one party to physically enter another party’s property to “inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”

While this particular section of the rule may go unnoticed, it can be incredibly valuable in patent litigation. Entering an accused infringer’s manufacturing site can shed light not only on their products but their method of production as well. This allows you (and your experts) to see firsthand the full extent of a defendant’s operation.

While the use of inspections isn’t especially common in patent litigation, courts have found the rule still applies. For example, in Cuno, the court stated inspections are not an extraordinary means of discovery in patent suits.[1] The court then allowed an inspection of a manufacturing process and stated only a showing of relevancy is necessary.[2] 

The meaning of inspection has also been interpreted broadly. In Martin, the court found that inspections encompass more than “just looking” and ruled the ability to inspect includes the taking of urine samples from cattle on the property.[3]

It should be noted that a court can limit the scope of an inspection. In Alvarez, the plaintiffs sought to use Rule 34 to inspect a detention center.[4] The request was granted, but the scope of the inspection was narrowed.[5] The court listed protocols that must be followed to prevent the spread of COVID 19 and put limitations on the interviews of inmates and staff.[6] The court in EEOC went even further and denied an inspection of a medical facility finding that it would disrupt patient care and compromise patient confidentiality.[7] Thus, it is important to tailor your request to avoid disruptions when possible.

While Rule 34(a)(2) can give valuable insight into an infringer’s activity, be sure to show relevance and tailor your request to avoid disruption. This will give your request the strongest chance of surviving if the opposing counsel challenges it.

[1] Cuno, Inc. v. Pall Corp., 116 F.R.D. 279, 281 (E.D.N.Y. 1987).

[2] Id

[3] Martin v. Reynolds Metals Corp., 297 F.2d 49, 57 (9th Cir. 1961).

[4] Alvarez v. LaRose, No. 3:20-cv-00782-DMS-AHG, 2020 U.S. Dist. LEXIS 171567, at *34 (S.D. Cal. Sep. 18, 2020)

[5] Id.

[6] Id at 35-36.

[7] EEOC v. Vicksburg Healthcare, LLC, No. 3:13-cv-895-KS-MTP, 2015 U.S. Dist. LEXIS 52812, at *13-14 (S.D. Miss. Apr. 22, 2015).

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Tom Dunlap is a partner at Dunlap Bennett & Ludwig. Tom’s practice focuses on patent, trademark, trade secret, commercial, entertainment law, business, government contracts disputes, litigation, and transactions. Tom has authored numerous books and appeared on national television and radio, including Fox, Sundance T.V., and NPR, speaking on various subjects in his fields of practice. In addition to the state and federal courts of D.C., VA, and M.D., he is a member of the Federal Courts in Puerto Rico, Colorado, and Texas, as well as the Court of Federal Claims, the Federal Circuit, where he has recently argued and won three appellate matters, the Veteran’s Court of Appeals, and the United States Supreme Court, where he was lead counsel on a False Claims Act case (See United States ex rel. Carter v. Halliburton Co.) and in the T.C. Heartland LLC v. Kraft Foods Group Brands LLC (U.S. May 22, 2017) (No. 16-341) case involving jurisdiction in patent infringement cases. Other recent litigation victories where Tom served as lead trial counsel include a $12,317,500 verdict in Zuru v Telebrands et al. (EDTX 2017) (patent infringement) and a $2,600,000 verdict in DPX Gear v Prince et al. (Loudoun Circuit Court 2017) (breach of contract & fraud).

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Posted in: Intellectual Property - Patents, Litigation & Disputes

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