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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4080
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Can we request a restraining order from plaintiffs and their

Customer Question

Can we request a restraining order from plaintiffs and their agents to prevent them from physical access to our property using rule 34?

How can we stop the complete invasion of privacy? We are not criminals, not doing anything illegal. We just want to be left alone to use our yard the way we want, we paid for it AND it has a 6ft block wall.
Submitted: 2 years ago.
Category: Legal
Expert:  TexLaw replied 2 years ago.
When you say Rule 34, what are the rules you are referring to?

Also, are you aware under what claim of authority that the plaintiffs assert they have to physical access to your property?
Customer: replied 2 years ago.

We received a request for entry upon land for inspection pursuant to AZ rule 34 of civil procedures. The neighbors are suing us as they think we have too much stuff in our yard. The yard has a 6 foot block wall, trees, bushes to which they cannot see inside our yard unless the are on their second floor, a ladder, etc.
Expert:  TexLaw replied 2 years ago.
Thank you for your response.

Rule 34 allows an opposing party in a lawsuit to request entry to inspect a property as part of the discovery process in the lawsuit. To oppose the request, you must file an objection (rather than seek an injunction). In the objection you would state that the request is overly broad, invasive and harassing. You should also state that it is a fishing expedition an an invasion of your privacy rights. If they are suing you for something in your yard, then if they cannot see if from the street, they really have no basis for suing you (or so you would argue at least). However, you absolutely must object to the request for inspection in order to get your concerns before the court.

That being said, the court will likely allow an inspection of the property in the lawsuit. But the inspection should be limited to a single time and date. And you should not allow them to take anything apart while they are there. If they violate any aspect of the court order allowing the inspection, you have a right to force them to leave your property.

If they come onto your property outside of the allowance in the order from the court, then you should call the police, as this would be trespassing.

So to sum up, you need to respond with an objection to the request. You send the objection to the other party. You should entitled the document "Defendant's Objection to Plaintiff's Request for Inspection." Then, if they try to come onto the property you simply tell them that you will not allow them to do so without a court order.

That being said, your resistance to a request like this does expose you to having to pay their costs for going to court to get the order to let them onto your property. Keep that in mind when you send your objection.

Best Regards,
Zachary D. Norris

PS...I've included the text of the rule below just in case you don't have a copy:

Rule 34. Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes


(a) Scope. -- Any party may serve on any other party requests (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect, copy, test or sample any designated documents or electronically stored information -- including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained -- translated into reasonably usable form when translation is practicably necessary, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

(b) Procedure and limitations. -- The requests may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The requests shall set forth the items to be inspected either by individual item or by specific category, and describe each item and specific category with reasonable particularity. The request may specify the form or forms in which electronically stored information is to be produced. The request(s) shall not, without leave of court, cumulatively include more than ten (10) distinct items or specific categories of items. Each request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. If a party believes that good cause exists for more than ten (10) distinct items or categories of items, that party shall consult with the party upon whom a request would be served and attempt to secure a written stipulation to that effect. The party upon whom a request is served shall serve a written response within 40 days after the service of the request, except that a defendant may serve a response within 60 days after service, or execution of a waiver of service by that defendant, of the summons and complaint upon that defendant, or execution of a waiver of service by that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested or identify the reasons for any objection, including any objection to the requested form or forms for producing electronically stored information. If objection is made to part of an item or category, the part shall be specified. If objection is made to the requested form or forms for producing electronically stored information -- or if no form was specified in the request -- the responding party must state the form or forms it intends to use. The party submitting a request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. Unless the parties otherwise agree, or the court otherwise orders:

(1) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request;

(2) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and

(3) a party need not produce the same electronically stored information in more than one form.

(c) Persons not parties. -- A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.

Rule 37. Failure to make disclosure or discovery; sanctions


(a) Motion for order compelling disclosure or discovery. -- A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows:

(1) Appropriate court. -- An application for an order to a party may be made to the court in the county in which the action is pending, or, in matters relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a person who is not a party shall be made to the court in the county where the discovery is being, or is to be, taken.

(2) Motion.

(A) If a party fails to make a disclosure required by Rule 26.1, any other party may move to compel disclosure and for appropriate sanctions.

(B) If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

(C) No motion brought under this Rule 37 will be considered or scheduled unless a separate statement of moving counsel is attached thereto certifying that, after personal consultation and good faith efforts to do so, counsel have been unable to satisfactorily resolve the matter.

(3) Evasive or incomplete disclosure, answer, or response. -- For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.

(4) Expenses and sanctions.

(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust.

(B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

(b) Failure to comply with order.

(1) Sanctions by court in county where deposition is taken. -- If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county in which the deposition is being taken, the failure may be considered a contempt of that court.

(2) Sanctions by court in which action is pending. -- If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or RuleXXXXXin which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action of proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(c) Failure to disclose; false or misleading disclosure; untimely disclosure.

(1) A party who fails to timely disclose information required by Rule 26.1 shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, the information or witness not disclosed, except by leave of court for good cause shown. A party or attorney who makes a disclosure pursuant to Rule 26.1 that the party or attorney knew or should have known was inaccurate or incomplete and or thereby causes an opposing party to engage in investigation or discovery shall be ordered by the court to reimburse the opposing party for the cost including attorneys' fees of such investigation or discovery. In addition to or in lieu of these sanctions, the court, on motion of a party or on the court's own motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorneys' fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B) and (C) of subdivision (b)(2) of this rule and may include informing the jury of the failure to make the disclosure.

(2) A party seeking to use information which that party first disclosed later than sixty (60) days before trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure. Such information shall not be used unless the motion establishes and the court finds:

(i) that the information would be allowed under the standards of subsection (c)(1) notwithstanding the short time remaining before trial; and

(ii) that the information was disclosed as soon as practicable after its discovery.

(3) A party seeking to use information which that party first disclosed during trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure. Such information shall not be used unless the motion establishes and the court finds:

(i) that the information could not have been discovered and disclosed earlier even with due diligence; and

(ii) that the information was disclosed immediately upon its discovery.

(d) Failure to disclose unfavorable information. -- A party's or attorney's knowing failure to timely disclose damaging or unfavorable information shall be grounds for imposition of serious sanctions in the court's discretion up to and including dismissal of the claim or defense.

(e) Expenses on failure to admit. -- If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit.

(f) Failure of party to attend at own deposition or serve answer to interrogatories or respond to request for inspection. -- If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).

(g) Electronically stored information. -- Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4080
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 18 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
"The requests may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The requests shall set forth the items to be inspected either by individual item or by specific category, and describe each item and specific category with reasonable particularity."

The request just states they want to photograph and videotape our back and both side yards. Does not describe WHY or what they are looking for. We feel if they cannot prove their case without entering our yard, what kind of case do they have? The suit is about the "damages to the plaintiffs by our yard", EX: mental stress, anxiety, can't use their yard, obnoxious odors...

They use their yard and pool everyday, BBQ almost nightly, have had visitors in their yard for hours on end, so HOW can they plead they can't enjoy use of their yard? Coming into ours to video and take photos is so invasive and subjective. What one person likes another doesn't, etc. No two yards will look alike. Do we have new lawn furniture? No, we can't afford it so we have used and old stuff that I plan on painting in the fall after the heat breaks. I bought the paint last week in case we get a cooler day.
Expert:  TexLaw replied 2 years ago.
Based on your response, I assume that they have sued you for what's called the tort of nuisance or violation of a restrict covenant/deed restriction regarding yard and house maintenance.

Again, they likely have the right to come onto your property to take a look in some form or fashion. The rule states that they have to tell you what they want to inspect. In this case, they have stated that they want to inspect the yard. I would suggest objecting that the request is a fishing expedition and that it is overly broad.

Or, you could simply clean up the yard, cut the grass, and move all the trash or anything else left there to somewhere else, and the let them come onto the property and take the pictures. If there's nothing there that can help them, then it won't matter in the long run.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4080
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 18 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
The bushes, trees and grass are kept in order as are weeds. We have been working to remove the boxes and items we don't need to keep, problem is the extreme heat. It is already 91F at 8am. It has been between 107-113F for weeks now so we can only work from 5 or 6 am to about 9:30-10am depending on how much we can stand of the heat.

We have to think they can't prove their case unless they come into the yard. It is a fishing expedition. It makes me feel guilty before we even see a judge.

Homes are very close here and you have to be able to get along with your neighbor or don't live in this area. Not everyone will have the same taste. Yes, my husband did have stuff out there that surprised me and now it is gone. Can one have stacks of boards? Most left is boards which he wants to use for woodworking. I think we should move it and pay for storage even though we can't afford to instead of having that an issue. He feels he is allowed to have his wood in the yard. When someone is obsessive compulsive and/or manic depressive, they think in a hole different way. We are "green" as much as possible. That does not mean we keep trash or garbage but we do compost in the bins provided by the city, reuse boxes to throw out yard waste such a twigs, leaves, pine needles, cuttings so we can stack them on the curb once a month for the bulk pick up. They don't like the boxes either. Boxes will decompose, plastic bags won't. It seems more a suit that they don't like anything we do. Not like it is their business anyway. Prove your case based on your complaint and don't come fishing for stuff you can't see now. Nothing smells. Composting has no smell when you compost only the items you should - fruit, vegetables (except cabbage! We learned that one), coffee grounds, grass, some leaves, paper.....

Not sure how I could use this argument or even if I could?

We wonder if they are looking for scorpions, feces, some kind of bug nests, garbage all of which they say we have. The suit makes me gag with the disgusting allegations. The show, "Hoarders" seems to have made a mob mentality where everyone thinks if you have anything, you have ALL of it.

Let's just say all of those things existed (they don't), would there be any way to defend with mental health?
Expert:  TexLaw replied 2 years ago.
I'm afraid mental health is not a defense in this matter. They are suing you because something about your property is allegedly keeping them from enjoying their property. It is not illegal to keep boards and store things in your back yard. However, it is illegal to have noxious odors come from the backyard.

Again, you need to send a written document to your neighbor's lawyer called an objection. Argue that any portion of your yard which is not viewable from a public area or from your neighbors property cannot be a nuisance and thus is not relevant and outside the scope of discover. It is a fishing expedition and the request is overly broad.

Good Luck,
ZDN
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4080
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 18 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
For Zachary Norris


We not filed the objection yet but most likely will this week.


We now have a more serious and pressing issue to deal with and again, I am not sure how to handle this when it comes to a court. My spouse became ill over 4th of July, saw a dentist the next day whom referred him to an oral maxiofacial surgeon whom we saw on Mon. He is now referring him back to our primary care Dr and to Ear, Nose Throat. There appears to be a large mass growing in his head, sinus and will need various testing and 90% chance of surgery.


Q? How can we handle this with the court? Do we ask for a motion to dismiss? If not, how do we let the court know that this takes priority for us and working on court papers is sidelining me from attending to my spouse and his needs? I guess, how do we go about either delaying, dismissing, whatever so this frivolous case is not in the way during this illness and surgery?


Oh, and after we filed our answer, what am I supposed to be doing?


Thank you
Expert:  TexLaw replied 2 years ago.
This needs to be posed as a new question.

Thanks,
ZDN
Customer: replied 2 years ago.
Oh, really? The powers that be wanted to throw me off because I wasn't posting new questions in the same thread. I'm so confused how this site works, sorry.

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