Federal Rules of Civil Procedure 26 through 37 describe procedures for pretrial discovery. While one may employ all the methods of discovery against parties, discovery methods for nonparties are much more limited. For example, with the exception of the independent action under subdivision (c), the procedures detailed in Federal Rule 34 regarding production of tangible things do not apply to nonparties. Frequently, though, a litigant must discover tangible things in the possession, custody, or control of a nonparty. Although the federal rules do provide alternative methods for the discovery of nonparties' things, the whole discovery scheme for nonparties is rather clumsy.
First, in terms of the procedure for production, the rules have the effect of distinguishing mobile from immobile property. If the property is mobile, a subpoena duces tecum under Rule 45(d) is the only available discovery method. If the property is immobile, it is discoverable only by independent action pursuant to Rule 34(c). This inadvertent distinction in procedure serves no policy. Moreover, each of the individual methods has drawbacks. The subpoena duces tecum is dependent upon a deposition, which is unnecessary and wasteful. The independent action is an obscure, historical discovery device which presents problems of jurisdiction and practical utility, and contravenes policies of the federal rules.
This article examines the federal approach to discovery of nonparties' tangible things; beginning with an examination of procedures for the production of mobile things. After concluding that the subpoena duces tecum is the only available method, the article discusses the central weakness of the subpoena duces tecum: its dependence on a deposition. Comparable state practice is then explored and state alternatives to the subpoena duces tecum are analyzed. This article further examines the federal rules' approach to inspection of immobile things. After a brief history of Rule 34 (c), independent actions and their weaknesses are considered. Again, comparable state practice is examined for possible alternatives to the independent action. Ultimately, this article suggests that amendment of either Rule 34 or Rule 45 would eliminate the weaknesses in the federal rules' approach to discovery of nonparties' things, and that amendment of Rule 34 is the marginally preferable solution.
Sarah N. Welling, Discovery of Nonparties' Tangible Things under the Federal Rules of Civil Procedure, 59 Notre Dame L. Rev. 110 (1983).