DISCOVERY ORDER Re: Dkt. No. 21
MARIA-ELENA JAMES, Magistrate Judge.
INTRODUCTION
This case arises out of Defendants' code enforcement actions against Plaintiffs Clark and Karla Fratus's properties in Contra Costa County. Pending before the Court is the parties' Joint Discovery Letter, filed July 23, 2014, regarding Defendants' demand for inspection of the properties. Dkt. No. 21 ("Jt. Ltr."). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court issues the following order.
BACKGROUND
Plaintiffs' lawsuit concerns two properties they own in the Oakley area of unincorporated Contra Costa County, 2284 and 2300 Dutch Slough Road. First Am. Compl. ¶¶ 1, 17, Dkt. No. 1-2. Each property is improved with a two-story, single-family residence. Id. ¶¶ 15, 17. In October 2007, Contra Costa County received a citizen complaint from a tenant at one of the properties reporting that unauthorized second units were being maintained at the residences. Jt. Ltr. at 2. The County contends the building permits on file for the properties authorize only one single-family residence per structure. Id. From 2007 to 2009, the County pursued building code and zoning enforcement actions against the properties. Id.; First Am. Compl. ¶¶ 20-34. Plaintiffs assert the County's actions were devoid of any factual or legal support. Jt. Ltr. at 4. Plaintiffs bring claims under 42 U.S.C. § 1983, alleging violations of their Fourteenth Amendment Substantive Due Process and Equal Protection Rights; a First Amendment claim for retaliation; and a state law claim for inverse condemnation. First. Am. Compl. ¶¶ 50-70. They seek recovery of monetary damages, including damages for the loss or diminution in value to their properties, and injunctive and declaratory relief. Id. at 16-17.
On May 28, 2015, the County served Plaintiffs with a Demand for Inspection of the two Dutch Slough Road properties, noticed for July 7, 2015. Jt. Ltr., Ex. A (Demand). Defendants maintain the purpose of the inspection is to allow the County's real estate appraiser expert, Ms. Alison Teeman of Yovino-Young, Inc., to inspect the residences as part of her valuation of the properties and her evaluation of Plaintiffs' diminution in value claims. Jt. Ltr. at 2. At Ms. Teeman's request, the County included a building inspector from its Building Inspection Department for the purpose of identifying any conditions at the residences which may not be in compliance with applicable Building Code provisions. Id.
LEGAL STANDARD
Federal Rule of Civil Procedure ("Rule") 26 provides that a party may obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. A court "must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules" if "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C).
"The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," including by (1) prohibiting disclosure or discovery; (2) conditioning disclosure or discovery on specified terms; (3) preventing inquiry into certain matters; or (4) limiting the scope of disclosure or discovery to certain matters. Fed. R. Civ. P. 26(c)(1). "Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
DISCUSSION
Defendants contend they are entitled to enter the properties to conduct inspections based on Plaintiffs' damages claims for the loss or diminution in value of their properties. Jt. Ltr. at 2-3. They maintain that any conditions at the properties that may not be in compliance with applicable building code provisions "may well significantly affect Ms. Teeman's opinions re valuation of the properties." Id. at 2.
Plaintiffs are willing to comply with Defendants' request for an appraisal of the properties. Id. at 4. However, they argue there is no need for a building inspector to accompany the appraiser. Id. They maintain Defendants' desire to have a building inspector present is an excuse "to find any possible minor violation against one or both of the properties for the purpose of renewing their campaign of harassment" against them. Id. Plaintiffs thus object to the entry of a County building inspector on their properties as part of the appraisal. Id. at 5.
A. Relevancy
Pursuant to Rule 34(a), a party may serve a request "to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it." Fed. R. Civ. P. 34(a)(2). A party requesting inspection of property may seek an order compelling such inspection when the requested party "fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34." Fed. R. Civ. P. 37(a)(3)(B)(iv).
The party seeking to compel an inspection under Rule 34 has the initial burden of establishing that its request satisfies the relevance requirements of Rule 26(b)(1). Reece v. Basi, 2014 WL 2565986, at *2 (E.D. Cal. June 6, 2014). "Following that showing (or if relevance is plain from the face of the request), the party who resists discovery then has the burden to show that discovery should not be allowed, and carries the `heavy burden of clarifying, explaining, and supporting its objections.'" Lenard v. Sherwin-Williams Co., 2015 WL 854752, at *1 (E.D. Cal. Feb. 26, 2015) (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
First, the Court finds Defendants have met their burden of demonstrating relevance. Plaintiffs allege "not one shred of evidence ever existed to support the defendants' ongoing harassment of the plaintiffs," yet "they nevertheless persisted in their allegations that the Fratus[es] had violated land use restrictions in Contra Costa County." Jt. Ltr. at 4. They allege Defendants put them "through hell for many years during which time, their properties, which had been purchased for investment purposes, were red-tagged and had notices of violation unlawfully recorded against them," and Plaintiffs "watched as the value of their properties plummeted — unable to sell, refinance or make any useful purpose of their real estate." Id. As Plaintiffs are claiming diminution in value damages to their properties, and Defendants have shown the condition of the residences on the properties is a relevant concern in the valuation determination, the inspection request is valid and could lead to admissible evidence.
Second, Plaintiffs have failed to meet their heavy burden of showing the inspection should not be allowed. Plaintiffs assert there is no evidence of any building code violations, and Defendants are therefore entitled to determine whether this is true. As to Plaintiffs' objection regarding a County building inspector attending the inspection, they fail to provide any authority establishing that a building inspector may not conduct an inspection pursuant to Rule 34(a)(2). While Plaintiffs may likely disagree with Defendants' completed report, they are free to present their own contrary evidence to the jury.
Plaintiffs also argue "Defendants' Request for Inspection on these residential properties by a building inspector, if allowed, would operate as a `carte blanche' walk around which as the court pointed out in U.S. v. American Optical Co., is not allowed under Fed. R. Civ. P. 34." Id. at 5 (citing United States v. Am. Optical Co., 2 F.R.D. 534, 536 (S.D.N.Y. 1942)). However, American Optical does not address property inspections under Rule 34(a)(2), but instead addresses limitations on the plaintiff's request to search for documents. Id. There is no discussion regarding a "carte blanche" walk around as part of a property inspection. The court held a Rule 34document designation "must be sufficiently precise in respect of each document or item of evidence sought to enable the defendant to go to his files and, without difficulty, to pick the document or other item requested out." Id. For property inspections, a request under Rule 34(a)(2) is "sufficiently clear if it places the party upon reasonable notice of what is called for and what is not." Thompson v. Thather, 2014 WL 1347493, at *2 (E.D. Cal. Apr. 3, 2014) (internal quotations and citations omitted). Defendants' Demand for Inspection puts Plaintiffs on notice of the County's intent to enter and inspect the properties at 2284 and 2300 Dutch Slough Road "for the purpose of inspecting, measuring and photographing the property and any structures existing thereon, including all areas within the residential structures, garages, and/or boat houses, or any other structures and including interior spaces." Jt. Ltr., Ex. A. The Court finds this demand is sufficiently clear.
Accordingly, Defendants, through Ms. Teeman and their building inspector, are entitled under Rule 34(a)(2) to enter the properties for the purpose of conducting inspections related to the value of the properties.
B. Protective Order
Plaintiffs also request a protective order restricting the use of any information gleaned from the inspection report for use only in this case. Jt. Ltr. at 5. Under Rule 26(c), courts have discretion to issue protective orders provided that "good cause" exists to issue such an order to protect a party from "annoyance, embarrassment, oppression, or undue burden or expense." Plaintiffs bear the burden of showing specific prejudice or harm will result if no protective order is granted. Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) ("broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, does not satisfy the Rule 26(c) test"); see also San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1102 (9th Cir. 1999) (to gain a protective order, the party must make a "particularized showing of good cause with respect to any individual document").
Inspections may be objected to on any basis that would support a Rule 26(c) protective order. McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 76 (D.D.C. 1999) (citing Minn. Mining & Mfg. Co. v. Nippon Carbide Indus. Co., 171 F.R.D. 246, 248 (D. Minn. 1997)). "When a responding party exercises this right and objects to a Rule 34(a) request, the court should balance the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection." Id. (citing N.Y. State Assoc. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 960 (2d Cir. 1983); Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978); Minn. Mining & Mfg. Co., 171 F.R.D. at 248)).
Plaintiffs seek a protective order to prevent Defendants from "renewing their campaign of harassment" and reinstituting code enforcement actions against them. Jt. Ltr. at 4. In response, Defendants state the County "officially ceased" code enforcement actions against Plaintiffs in 2012 and "[t]hat is clearly not the intended purpose of the noticed inspections." Id. at 3-4. In balancing Defendants' need for the inspection as part of its defense against the burdens created by the inspection, the Court is mindful of the potential for an inspector with the County's Building Inspection Department to locate code violations that could be used to institute new code enforcement actions. Although Defendants state they have ceased previous code enforcement actions, they provide no affirmation regarding potential enforcement actions if any violations are found as a result of the inspection. Thus, while it does not appear that Defendants' inspection request is designed to harass Plaintiffs, the Court finds it appropriate to limit information gained from the inspection for use in this lawsuit.
CONCLUSION
Based on the analysis above, the Court GRANTS Defendants' request to compel the inspection, conducted by Ms. Teeman and an inspector with the County's Building Inspection Department, of 2284 and 2300 Dutch Slough Road. The Court also GRANTS Plaintiffs' request for a protective order, limiting the information obtained from the inspection to use in this lawsuit.
IT IS SO ORDERED.
