AK: Civil inspection of property order complied with Fourth Amendment

In a nuisance civil case, a discovery order under Alaska Civil Rule 34 [similar to F.R.C.P. 34] required plaintiff to submit to an inspection for hazardous materials. The order was narrowly tailored to protect privacy interests, including the Fourth Amendment. Whittle v. Weber, 243 P.3d 208 (Alaska 2010):

Other jurisdictions have used similar balancing tests and considered similar factors when reviewing discovery requests for entry onto private property. Overall, to determine whether an inspection is appropriate, courts “must balance the respective interests by weighing the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.”17 Most courts focus on the second Jones [v. Jennings] factor: the “compelling interest” element. To determine whether a compelling interest exists, courts scrutinize the relevance of the proposed inspection to the issue in the legal action. The Kentucky Supreme Court, looking to federal courts’ practices, observed that “[i]n each case, the place to be inspected is somehow ‘at issue’ in the underlying law suit.”18 Thus, other jurisdictions have concluded that the property or item to be inspected must be directly connected with the main issue of the legal action; some have determined that this “nexus” must appear on the face of the discovery order.19 Besides focusing on the nexus between the location and the legal cause of action, courts may also consider additional factors that connect the inspection to the lawsuit; for example, whether a legal action has begun,20 or whether the inspection is necessary (i.e., the information cannot be obtained through other avenues).21

17 Welzel v. Bernstein, 233 F.R.D. 185, 186 (D.D.C. 2005) (internal quotation marks omitted); see also DUSA Pharms., Inc. v. New England Compounding Pharmacy, Inc., 232 F.R.D. 153, 154 (D. Mass. 2005) (denying motion to compel inspection where “any benefit from the inspection … is outweighed by the burdens that such inspection will impose”).

18 Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 802 (Ky. 2000); see also Belcher v. Basset Furniture Industrs., Inc., 588 F.2d 904, 910 (4th Cir. 1978) (“Most cases involving on-site inspections concern a given object on the premises which is the subject matter of the action ….”); Welzel, 233 F.R.D. at 186 (“In cases in which a site inspection has been allowed, the rationale has often been because the specific location relates to the subject matter of the cause of action.”).

19 See Wal-Mart Stores, Inc., 29 S.W.3d at 802 (requiring a “nexus between the premises to be inspected and the underlying cause of action” and that “this nexus must appear on the face of the order”).

20 See, e.g., Lake Charles Harbor & Terminal Dist. v. Phoenix Dev. Co., 624 So. 2d 972, 974 (La. App. 1993) (holding that trial court lacked authority to allow entry on land before suit was filed).

21 See, e.g., DUSA Pharms., 232 F.R.D. at 154 (denying motion to compel entry where “the defendant [had] offered plaintiffs access to its premises under reasonable terms” and “alternative and reasonably adequate methods of discovery” were available).