United States District Court, D. Nevada
ORDER (Docket No. 131)
J. KOPPE United States Magistrate Judge
before the Court is Interested Parties the Sheahan
Landowners' (“Sheahan Landowners”) motion to
compel entry onto the subject property. Docket No. 131.
Plaintiff filed a response, the Sheahan Landowners filed a
reply, and Plaintiff filed a sur-reply with the Court's
permission. Docket Nos. 151, 169, 186. The Court finds this
motion properly resolved without oral argument. See
Local Rule 78-1. For the reasons discussed below, the Court
hereby DENIES the Sheahan Landowners' motion to compel.
Docket No. 131.
September 10, 2015, Plaintiff initiated this action by filing
a complaint in condemnation against the subject property for
the purpose of operating a military test and training
facility known as the Nevada Test and Training Range
(“NTTR”). Docket No. 1. On September 16, 2015,
the Court granted Plaintiff's ex parte motion
for order of immediate possession of the subject property.
See Docket Nos. 11, 13. The only issue in this case
is the amount of just compensation to be awarded, with the
date of valuation set at September 10, 2015. See,
e.g., Docket No. 131 at 3.
Sheahan Landowners initially approached Plaintiff about
entering and inspecting the subject property for an extended
period of time on November 3, 2016. Docket No. 131-8.
Plaintiff refused, and the parties were ultimately unable to
resolve the issue. See, e.g., Docket No. 131 at
18-19. The Sheahan Landowners now ask the Court to compel
Plaintiff to allow them to enter the subject property for
60-90 days “to conduct a reasonable and limited
drilling program on the Subject Property to sample, test, and
evaluate the resource determinations.” Id. at
party fails to provide requested discovery, the requesting
party may move to compel that discovery. See Fed. R.
Civ. P. 37(a). Additionally, the “party resisting
discovery bears the burden of showing why a discovery request
should be denied.” See, e.g., F.T.C. v.
AMG Servs., Inc., 291 F.R.D. 544, 553 (D. Nev. 2013)
(quoting Painters Joint Comm. v. Emp. Painters Tr. Health
& Welfare Fund, 2011 WL 4573349, at *5 (D. Nev.
Sept. 29, 2011)).
discretion is vested in the trial court to permit or deny
discovery.” Hallett v. Morgan, 296 F.3d 732,
751 (9th Cir. 2002); see also Crawford-El v.
Britton, 523 U.S. 574, 598 (1998). Parties are entitled
to discover non-privileged information that is relevant to
any party's claim or defense and is proportional to the
needs of the case, including consideration of the importance
of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its
likely benefit. Fed.R.Civ.P. 26(b)(1). The recent amendments
to the discovery rules are meant to curb the culture of
scorched earth litigation tactics by emphasizing the
importance of ensuring that the discovery process
“provide[s] parties with efficient access to what is
needed to prove a claim or defense, but eliminate unnecessary
and wasteful discovery.” Roberts v. Clark Cty. Sch.
Dist., 312 F.R.D. 594, 603-04 (D. Nev. 2016).
34(a)(2) provides that:
A party may serve on any other party a request within the
scope of Rule 26(b): 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.
the Ninth Circuit has not provided guidance on the scope of
this rule, district courts in this circuit have adopted the
Fourth Circuit's approach to requests to enter and
inspect land as set forth in Belcher v. Basset Furniture
Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978).
See, e.g., Keith H. v. Long Beach Unified Sch.
Dist., 228 F.R.D. 652, 659 (C.D. Cal. 2005); Soler
v. Cty. of San Diego, 2016 WL 3460255, at *3 (S.D. Cal.
June 24, 2016); Osborne v. Billings Clinic, 2015 WL
1412626, at *4 (D. Mont. Mar. 26, 2015); Selvar v. W.
Towboat Co., 2012 WL 5389135, at *2 (W.D. Wash. Nov. 2,
2012); Voggenthaler v. Md. Square, 2011 WL 112115,
at *8 (D. Nev. Jan. 13, 2011); E.E.O.C. v. U.S.
Bakery, 2004 WL 1307915, at *2 (D. Or. Feb. 4, 2004). In
Belcher, the Court stated that, “[s]ince entry
upon a party's premises may entail greater burdens and
risks than mere production of documents, a greater inquiry
into the necessity for inspection would seem
warranted.” 588 F.2d at 908. The Court further noted
that “the degree to which the proposed inspection will
aid in the search for truth must be balanced against the
burdens and dangers created by the inspection.”
the Sheahan Landowners submit that, inter alia, the
discovery requested is within the scope of Rules 26(b)(1) and
24(a)(2), and statements made by one of Plaintiff's
experts, Marc P. Springer, confirm its relevance.
See Docket No. 131 at 7-16. Plaintiff responds that,
inter alia, the Sheahan Landowners mischaracterize
Mr. Springer's statements and the discovery sought is
unduly burdensome and of little to no benefit to this action.
See Docket No. 151 at 2-25.
discussing burden, Plaintiff submits that allowing continuous
access for even a week or less, let alone the requested 60 to
90 days, would result in serious financial and national
security issues. See, e.g., id. at 2. The
Sheahan Landowners reply that, inter alia, the
discovery sought is relevant and not unduly burdensome.
See Docket No. 169 at 2-16. In replying to
Plaintiff's assertions regarding burden, the Sheahan
Landowners submit that they will “already have to be on
the Subject Property for three to six months to relocate
[their] personal property.” Id. at 2. In its
sur-reply, Plaintiff asserts that the Sheahan Landowners are
incorrect, as “[n]on-authorized personnel will have
access to the property for no more than two to
three consecutive days” at a time
“in connection with the relocation of personal
property.” Docket No. 186 at 2 (emphasis in original).
Plaintiff further submits that, according to a recent
estimate, the relocation will take no more than 30 days in
total. Id.; Docket No. 187 at 2.
purpose of the discovery requested, the Sheahan Landowners
submit, is to resolve a dispute between the parties'
experts regarding the valuation of the property. Docket No.
131 at 6-9. Plaintiff contends, however, that the difference
in the parties' experts' opinions regarding value
“is rooted not in what lies beneath the [subject]
property, but rather in their disagreement over the market
for property such as the Subject on the date of value.”
Docket No. 151 at 2. Indeed, Plaintiffs' expert opined
that his estimate of the property's value would not
change even if the subject property contained more mineral
wealth than he estimated. Docket No. 151 at 9; Docket No. 156
at 5. The Sheahan Landowners do not contest, let alone
meaningfully address, these assertions. See Docket
No. 169. ...