Your expert is about to cut into your own client's property. Opposing counsel sends a list of demands. What do they actually get?

Your own testing is not a discovery method

The Discovery Act regulates what one party may extract from another. It does not regulate what a party does on its own client's land.

Section 2019.010 is a closed list. A party may obtain discovery by oral and written depositions, interrogatories to a party, inspections of documents, things and places, physical and mental examinations, requests for admissions, and simultaneous exchanges of expert trial witness information. (CCP 2019.010(a) through (f).) Sending your own retained expert to your own client's house with a saw is not on that list. It is investigation, and investigation is what parties do before and alongside discovery, not a form of it.

The section opposing counsel will cite says so on its face. Section 2031.010, subdivision (a) authorizes discovery "by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action." Every operative subdivision repeats the structure: a party "may demand that any other party" permit the thing. (CCP 2031.010(b) through (e).) Your client's property is not in the possession of any other party. Nothing in the chapter attaches.

The protective order is the same problem one section later. Section 2031.060, subdivision (a) begins: "When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order." The predicate is a demand. A letter is not a demand, a calendar invitation is not a demand, and your own notice of the testing date is not a demand directed at anyone. A motion under section 2031.060 to regulate your testing has no discovery request to attach itself to.

None of which means the court is powerless. It means the power is somewhere else, and the difference matters, because the somewhere else has different standards and a different timetable.

The four places their rights actually come from

Take the demand letter apart and every legitimate item in it traces to one of four sources. None of them is the letter.

One, the case management order. This is the real answer in most construction and property cases, and it is the one both sides forget to check before writing letters. A CMO or a stipulated protocol can require notice of testing, a written protocol, an opportunity to attend, split sampling and restoration, and courts do enter them. In Jackson Plaza Homeowners Assn. v. W. Wong Construction Co. (2002) 98 Cal.App.4th 16, the special master appointed to regulate pretrial proceedings "ordered that HOA provide all parties with a protocol for its proposed destructive testing" and set a date by which the testing had to be completed. (Id. at p. 20.) That is the mechanism. If your case has a CMO, read it before you answer the letter, because the answer may already be written.

Two, their own inspection demand. Section 2031.010, subdivision (d) lets them demand entry onto your client's property "to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it." Subdivision (c) separately reaches the tangible things your expert collected and kept, because those samples are now in your client's control. They get 30 days' lead time (CCP 2031.030(c)(2)), you respond item by item with compliance, inability or objection (CCP 2031.210(a)(1) through (3)), and if they want to fight an objection they have 45 days to move (CCP 2031.310(c)). This is the procedurally correct route and it is available to them today.

Three, the expert exchange. After the initial trial date is set, a demand for exchange may include "the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert ... in the course of preparing that expert's opinion." (CCP 2034.210(c); production under CCP 2034.270.) The field notes, the boring logs, the photographs and the lab data are reports and writings made in the course of preparing the opinion. They come out then. Then the expert produces materials called for by the deposition notice no later than three business days before the deposition. (CCP 2034.415.)

Four, preservation. Which is the subject of the next two sections, and which is not a disclosure right at all.

Preservation, which is not a disclosure right

The strongest paragraph in the letter is the one that asks for nothing. It is also the one you cannot answer by sending a protocol.

Destructive testing is, by definition, a one-way door. The condition your expert opens up is a condition nobody can reconstitute, and the other side's own rights under CCP 2031.010(d) to enter and inspect that condition are extinguished by the act of testing it. That is the real grievance, and it does not depend on any discovery request.

California's duty to preserve does not come from the inspection chapter. The Supreme Court described the shape of it in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, which held there is no tort remedy for the intentional destruction of evidence by a litigating party, and pointed instead to the remedies inside the case. At page 12 the court wrote that "[d]estroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery ... as would such destruction in anticipation of a discovery request." Anticipation is the operative word. The obligation does not wait for the request.

The trigger point was stated more precisely in Victor Valley Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, where a school district's video system overwrote footage before suit was filed. The court held that the safe harbor in CCP 2023.030(f) does not shield a party whose evidence was lost while the party was under a duty to preserve it, and that "[t]he duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility." (Id. at p. 1133.)

That sentence now carries more weight than the Court of Appeal alone gave it. The Supreme Court quoted it, for the definition of a litigation hold, in City of Gilroy v. Superior Court (Jan. 15, 2026, S282937) slip opn. at p. 35, footnote 15.

Read Victor Valley narrowly all the same. It is an electronically stored information case construing a safe harbor that by its terms applies only to electronically stored information, and the court reached its standard by following federal authority under rule 37(e) of the Federal Rules of Civil Procedure. It is the best available California statement of when the duty attaches. It is not a holding about soil samples.

What the sanction actually is, and when it lands

The threat in the letter is a protective order. The real exposure is a jury instruction two years later.

Issue, evidence and terminating sanctions under the inspection chapter are keyed to disobedience of a court order. Section 2031.310, subdivision (i) authorizes them "if a party fails to obey an order compelling further response." Section 2031.320, subdivision (c) authorizes them "if a party then fails to obey an order compelling inspection, copying, testing, or sampling." Where there has been no demand, there is no motion to compel, no order, and nothing to disobey.

New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403 is the case that holds the line. A store's surveillance video was overwritten; the trial court imposed evidence and issue sanctions; the Court of Appeal vacated them. "Neither the failure to produce video recordings in response to the first set of inspection demands nor the destruction of the recordings in these circumstances justifies an evidence or issue sanction absent a failure to obey an order compelling discovery." (Id. at p. 1428.) The court read Cedars-Sinai as having suggested, without holding, that the full range of sanctions was available, and declined to treat the suggestion as authority. (Id. at p. 1430.) It also rejected inherent power as a workaround, holding the statutory restrictions binding unless they materially impair the court's ability to ensure the orderly administration of justice. (Id. at p. 1431.)

Then it said where the fight belongs:

And vacating the sanctions changed nothing about the instruction. The court noted that its conclusion "does not preclude an instruction that if the jury finds that Albertsons intentionally destroyed evidence, it may infer that the evidence would have been unfavorable," citing CACI No. 204, and added that the jury could consider "the letter requesting the preservation of evidence." (Id. at p. 1434; see Evid. Code 413.)

That last clause is why the demand letter exists. Opposing counsel is not really expecting a protocol. Counsel is building the exhibit that goes to the jury with the willful suppression instruction, and every unanswered letter in the file improves it.

The field notes and photographs, before designation

Not privileged, not absolutely protected, and the argument for withholding them gets weaker the moment the condition stops existing.

A consultant's photographs, boring logs and field notes are at most qualified work product. Section 2018.030, subdivision (a) gives absolute protection only to "[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." A photograph of a corroded pipe reflects the pipe. Everything else is subdivision (b) material, "not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice."

Notice how that standard behaves after destructive testing. The party seeking discovery can no longer see the thing. The only record of the condition at the moment it was opened is the record your expert made. A judge weighing unfair prejudice under subdivision (b) has an unusually easy call, and the fact that you controlled both the destruction and the documentation is not a point in your favor.

So the practical answer on the field record is the opposite of the technical one. You may have a colorable objection until designation. Asserting it, on material that only exists because you destroyed the alternative, is how a discovery position becomes a credibility problem.

What to give them anyway, and why

Almost everything on a well-drafted demand letter is something you would volunteer if you were thinking about the trial instead of the letter.

Run each item against one question: does refusing it protect anything real? For most of the list the answer is no, because the information is either already going to come out at the expert exchange or is not worth what refusing it costs.

Then say in writing what you are doing and why, and say once that you are doing it voluntarily rather than because section 2031.010 or section 2031.060 requires it. That sentence costs you nothing, and it prevents the accommodation from being cited back at you as a concession that the sections applied. If they want more than you are giving, the answer is the one the statute already provides: serve a demand under section 2031.010, subdivision (d), and everyone will know exactly what the obligations are.

In the construction cases I handle, the case management order usually settles this before anyone writes a letter. Ours typically carry a section requiring notice before a party undertakes destructive testing, and where that section exists it is the whole answer and the statutory argument never comes up. Where it does not, my experience matches what the sections above say: you do not have to give notice, and the court will not make you.

That is not the end of it, though, and this is the part worth internalizing. Testing done without the other side present invites questions later about how it was done, and those questions get asked of your expert on cross rather than in a motion. So if they are not there, document everything, in more detail than feels necessary at the time. The photographs, the logs and the retained samples are what answer the question, and the record you build on the day is the only record that will exist.

Before the testing date