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Allen v. Allen6/8/1995
to perpetuate evidence under the auspices of Rule 2-404, we observe that this rule was derived in part from Rule 27, Fed. R. Civ. P. Where Maryland rules of civil procedure are patterned after the federal rules, we will look to federal decisions interpreting the corresponding federal rules for guidance in construing the similar Maryland rule. See Androutsos v. Fairfax Hospital, 323 Md. 634, 639, 594 A.2d 574 (1991); see also Bartell v. Bartell, 278 Md. 12, 18, 357 A.2d 343 (1976); Snowhite v. State ex rel. Tennant, 243 Md. 291, 308-09, 221 A.2d 342 (1966).
Prior to the adoption of Fed. R. Civ. P. 27, the U.S. Supreme Court held that, in order to sustain a bill in equity to perpetuate testimony, it must appear that the facts expected to be proved would be material and competent evidence in the matter in controversy, and that it was necessary to take the testimony because of the danger that it may be lost by delay. Arizona v. California, 292 U.S. 341, 78 L. Ed. 1298, 54 S. Ct. 735 (1934). The Advisory Committee, in drafting Rule 27, cited the Supreme Court's decision in Arizona with approval. See 6 Jeremy C. Moore et al., Moore's Federal Practice ยง 2072 (2d ed. 1985). The relevant portion of the federal rule from which the Maryland version was derived states:
Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of
the United States may file a verified petition in the United States district court in the district of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: 1, that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought, . . . and 5, the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
Fed. R. Civ. P. 27(a)(1)(emphasis supplied). The text of the rule indicates to some degree what limitations were intended to apply to a petition to perpetuate evidence. It requires both that the petitioner be presently unable to commence an action and that the purpose of filing such a petition be to perpetuate certain testimony. Supplementing the text of the rule itself, the federal decisions that have interpreted Rule 27 further clarify the circumstances under which this type of relief is available.
In Ash v. Cort, 512 F.2d 909 (3rd Cir. 1975), a shareholder in Bethlehem Steel Corporation sought derivative damages in favor of the corporation against its directors as a result of certain allegedly illegal campaign contributions. The appellant in Ash filed a petition under Rule 27 seeking to depose several officers and directors of Bethlehem Steel, but the trial court denied his request. In support of his claim that the court had erred in denying his petition, Ash asserted that a substantial risk was present that the testimonial evidence sought would become unavailable if discovery were postponed. Reasoning that it was "probable" that the senior officers and
directors having first hand knowledge of the information sought were all over fifty years of age, he argued that their memories might fade if the evidence were not preserved at that time. Id. at 913. The Third Circuit agreed that age may be a relevant factor in demonst
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