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Williams v. Engen12/5/2003
own. The cases do not suggest that these factors displace the need to establish some actual risk. All but one of the cited cases involved circumstances in which a danger of loss or destruction was apparent; and in sharp contrast to Williams's situation, in all but one of the cited cases, the impediment preventing immediate commencement of an action was external to the petitioner's need for the evidence. Notably, the sole exception cited by Williams, In re Alpha Industries, has been roundly criticized and consistently rejected by other courts.
Williams nonetheless points out that Rule 27 was drafted under the assumption that notice pleading would govern court proceedings; he questions the accuracy of this assumption, contending that today's courts have largely abandoned notice pleading and now require a high level of specificity. According to Williams, this trend in modern pleading practices makes limited pre-filing discovery necessary to prevent a failure or delay of justice. Specifically, Williams complains, unless he obtains Cooper's letter he will not be able to comply with Civil Rule 9(b), which requires complaints to plead the circumstances constituting a fraud with particularity, and he also will be unable to comply with Civil Rule 11, which requires an attorney filing a claim to certify, after conducting a diligent inquiry, "that the complaint is well grounded in fact and is warranted by existing law."
But these arguments are unpersuasive. Civil Rule 9(b) calls for specificity, not certainty. The rule simply requires a claim of fraud to specify the time and place where the fraud occurred; it seeks to prevent conclusory pleading by requiring a complaint to do more than "recit without specificity that fraud existed," but it does not prevent plaintiffs from filing complaints based on available information and belief. Furthermore, while some courts have mentioned Civil Rule 11 in ruling on motions to perpetuate evidence under Rule 27, they have deemed the rule relevant only in circumstances suggesting that existing evidence might be lost or destroyed before the petitioner can complete a diligent inquiry for other evidence needed to frame a complaint. Williams cites no authority or holding persuasively suggesting that Rule 27 can be used as he proposes to use it - as a substitute for diligent inquiry or as a tool to be used when diligent inquiry yields inadequate evidence.
Williams also urges us to find his case exceptional because it "falls squarely into the pattern" described by the Ninth Circuit in Martin. But Martin itself is an unexceptional case - except in a narrow sense that has no relevance here. The court in Martin allowed pre-filing disclosure of evidence unavailable to a potential defendant who lacked control over the timing of the plaintiff's claim but established that the plaintiff appeared to be destroying the evidence. Martin thus applies uniquely to defendants who lack control over filing and face destruction of evidence by their opponents. The case has no bearing on the present case, where Williams is the potential plaintiff and has failed to demonstrate any appreciable risk of destruction or loss.
In summary, then, assuming that Rule 27(a) might vest trial courts with discretion in exceptional cases to go beyond the rule's traditional goal of preserving known evidence, we find here that Williams failed to establish any convincing reason to treat his case as exceptional. We thus conclude that the superior court properly denied his petition.
IV. CONCLUSION
We AFFIRM the superior court's order denying Williams's Rule 27 petition.
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