Facebook Discovery and the Unbearable Sameness of Internet Law

62 ARKANSAS LAW REVIEW [Vol. 65:39
he chooses, and to make such inquiries as he deems appropriate
of any supervisors or employees in the plant.” 96 The subject of
the proposed inquiries was not disclosed. 97
The Fourth Circuit reversed. 98 While a response to
ordinary document requests may be compelled based on a
simple showing of relevance, the court held, “entry upon a
party’s premises may entail greater burdens and risks than mere
production of documents,” and therefore “a greater inquiry into
the necessity for inspection would seem warranted.” 99 The
Fourth Circuit agreed with the defendants that, given the lack of
a stated purpose for the inspection, it was likely the plaintiffs
wished to have their expert conduct “roving deposition[s]” of
the defendant’s employees, “taken without notice . . . of persons
who were not sworn and whose testimony was not recorded”
and was not subject to cross-examination, in order to include
those statements in his report. 100 But the court held that this
would be improper; the plaintiffs could not use an inspection of
premises to circumvent the requirements and protections of Rule
30 governing depositions. 101
Other courts have followed suit. Courts have expressed
particular concern where there is a possibility that an inspection
will reveal documents or other information beyond the particular
reason for the inspection. For example, in Schwab v. Wyndham
International, Inc., the court refused to order an inspection due
in part to concerns that “many of the departments plaintiff
want[ed] to inspect and photograph maintain[ed] confidential
and proprietary information, such as customer account
information, employee records, tax information, financial
reports, payroll records, sales and marketing plans, revenue
goals, and investor profiles.” 102 The defendant was not required
to make an argument that these documents were privileged, only
96. Id. at 906.
97. Id.
98. Id. at 911.
99. Id. at 908. The court’s holding in this regard can be justified, as in fact the court
suggested, as required by a careful balancing of the factors listed in Rules 26(b)(2) and
26(c), since an inspection is likely to impose more significant burdens on the responding
party than a typical document request.
100. Id. at 907, 910.
101. Id. at 909-10; see also FED. R. CIV. P. 30.
102. 225 F.R.D. 538, 539 (D. Colo. 2000).