Appetite for Destruction: What to Know When Discovery Involves Destructive Testing

Federal Rule of Civil Procedure 34(a) (1) provides that a party may make a request for production to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 26(b). Some federal courts have recognized that the production of tangible things regarding destructive testing falls under the scope of Rule 34. Destructive testing occurs when the testing will irreversibly alter or destroy a piece of evidence. When there is the likelihood of this type of testing taking place, and the parties differ as to whether an inspection or test is appropriate, courts should apply a four-factor balancing test to determine whether to permit destructive testing of evidence. However, it must be clear that destructive testing is not a matter of right, but lies in the sound discretion of the district court. 

Under Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611 (D. Md. 2006)—the leading case for examining a request to permit destructive testing of evidence—a judge must determine how the balance of the four factors weighs in favor of permitting the limited destructive testing, based on the facts of the particular case. For purposes of evaluating requests to perform destructive testing, the test shall determine:

• Whether the proposed testing is reasonable, necessary, and relevant to proving the movant's case;
  
• Whether the non-movant's ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way;
• Whether there are any less prejudicial alternative methods of obtaining the evidence sought; and
• Whether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant's ability to present evidence at trial.

Moreover, there are three meaningful tips regarding responses to destructive testing. First, be sure to understand essentially what destructive testing is and exactly what it does to a piece of evidence. Second, if parties are unable to agree as to whether destructive testing is appropriate in a particular case, allow a judge to determine whether such destructive testing should be permitted. Lastly, if a party decides to respond, ensure that you make all reasonable objections to the requests for inspection. In some cases, legal grounds may arise to object to the requests for inspection.