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Allen v. Allen6/8/1995
rating that testimony must be perpetuated to avoid its loss. The court concluded, however, that bald assertions that evidence would likely be lost, without a showing as to why it was necessary to perpetuate particular testimony, would not suffice to establish that the testimony sought would, in fact, become unavailable. The district court therefore was held not to have abused its discretion in denying the appellant's Rule 27 petition.
Similarly, the targets of a Securities and Exchange Commission investigation desired to preserve evidence of their alleged improprieties in In re Application of David J. Checkosky, 142 F.R.D. 4 (D. D.C. 1992). Apparently believing that the SEC would delay or fail to comply with a discovery motion, the targets of the investigation filed a petition pursuant to Rule 27 seeking to perpetuate testimony and documentary evidence. There was no allegation or indication that the SEC would not retain the documents sought by the petitioners. The court first observed that the purpose of perpetuating testimony is simply to preserve evidence that otherwise would be in danger of being lost. It therefore reasoned, in determining that Rule 27 did not authorize the relief requested, that "perpetuation" refers exclusively to the preservation of known testimony. Upon denying the petition, the court concluded that the rule could not be used, in the manner attempted by the petitioner, as a substitute for discovery to ascertain whether a cause of action existed.
The prospective medical malpractice plaintiffs in In re Vincente Rosario, 109 F.R.D. 368 (D. Mass. 1986) sought to depose certain hospital officials and employees before filing an action.
As grounds for their Rule 27 petition to perpetuate testimony, the petitioners claimed that a rapid turnover of personnel at the hospital necessitated securing the evidence requested prior to initiating suit. In denying the petition, the district court reasoned that a bill to perpetuate testimony must show, inter alia, that the immediate taking of testimony "is made necessary by the danger that it may be lost by delay." Id. at 370 (quoting Arizona v. California, supra, 292 U.S. at 747). Because the petitioners had failed to provide sufficient facts to indicate that the evidence sought would become unavailable, the court refused the request to depose the witnesses.
Other cases interpreting Rule 27 comport with the view expressed in the above decisions. See, e.g., In re Petition of Gary Construction, Inc. 96 F.R.D. 432 (D. Colo. 1983)(petition to perpetuate evidence denied where invocation of Rule 27 was simply an attempt to conduct discovery before filing suit, as rule was not intended as a means of ascertaining facts prior to institution of action); Folsom v. Western Electric Co., 85 F.R.D. 651 (D. Okla. 1980)(failing to allege that evidence in question was in danger of being moved, destroyed, or altered, in addition to a lack of explanation as to the need to inspect evidence prior to filing suit, rendered Rule 27 petition unsupportable); Petition of Exstein, 3 F.R.D. 242 (S.D.N.Y. 1942)(petitioner's desire to depose all possible defendants in order to determine who to join and where to commence breach of contract action held insufficient to maintain petition to perpetuate testimony, because Rule 27 was not intended to permit discovery in order to frame a complaint); Petition of Ferkauf, 3 F.R.D. 89 (S.D.N.Y. 1943)(petitioner not entitled to invoke the provisions of Rule 27 where stated reason for petition was to gain information to frame a complaint; purpose of bill to perpetuate testimony was solely to preserve evidence and was not intended to enable a prospective litigant to formulate a cause of action).
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