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Allen v. Allen6/8/1995
The federal cases uniformly condition the capacity to maintain a petition to perpetuate testimony under Rule 27 on
the threshold showing that the evidence sought be in danger of becoming lost by delay. Our examination of the text of Rule 2-404, in conjunction with the minutes of the Court of Appeals Standing Committee on Rules of Practice and Procedure surrounding its promulgation, reveals no intent to abandon such a requirement in Maryland. It appears to us that the very function of a rule permitting perpetuation of evidence is to preserve evidence that would otherwise be in danger of later becoming unavailable. See, e.g., In re Application of Checkosky, supra, 142 F.R.D. at 6. Accordingly, a person seeking to perpetuate testimony or other evidence pursuant to Rule 2-404 must set forth sufficient facts to demonstrate that the immediate taking of testimony is made necessary because there exists some actual risk that the evidence sought might be lost by delay.
In addition to the manifestation of a need to preserve testimony that may become unavailable, a second requirement for the taking of depositions to perpetuate evidence under Rule 27(a)(1) is "that the petitioner expects to be a party to an action . . . but is presently unable to bring it or cause it to be brought." This language has prompted federal courts considering Rule 27 petitions to require, as a prerequisite to perpetuating testimony outside of the ordinary discovery vehicles, that a person demonstrate why a suit cannot be immediately instituted. See, e.g., Holt v. Granite City Steel, 22 F.R.D. 65 (E.D. Ill. 1957); Petition of Johanson Glove Co., 7 F.R.D. 156 (E.D.N.Y. 1945). Provisions of the federal rule, however, Rule 2-404 makes no reference to such a requirement.
A review of the deliberations of the Court of Appeals Rules Committee prior to the adoption of Rule 2-404 confirms the notion that an explanation of the present inability to bring an action is not necessary to perpetuate evidence in Maryland. The minutes of the Committee's meeting held on 20 and 21 June 1980 reveal that the Committee, by voice vote, deleted the words "but is presently unable to bring it or cause it to be brought" from the then proposed Maryland adaptation of Fed. R. Civ. P. 27. The decision to move away from that aspect of the federal version of the rule was apparently a response to an inquiry of Judge David Ross, then a Committee member, as to why it was necessary for a person invoking the rule to anticipate being a litigant. The example given by Judge Ross was "anticipated litigation regarding a person's mental capacity in which that person may wish to preserve his own testimony even though he does not himself anticipate himself being a party." It is clear that the present inability to commence an action was not intended to be a requirement for the use of Rule 2-404.
We turn now to the case sub judice to apply our conclusions. In accordance with the federal cases reviewing petitions to perpetuate evidence, the grant or denial of a notice pursuant to Rule 2-404 is within the discretion of the trial court. See, e.g., Ash v. Cort, supra, 512 F.2d at 912, n. 13. We must therefore consider whether the trial court abused its discretion in denying appellant's motion for a protective order. Id. at 912; see also Texaco v. Borda, 383 F.2d 607 (3rd Cir. 1967); Nevada v. O'Leary, 151 F.R.D. 655 (D. Nev. 1993); see also Kelch v. Mass Transit Admin., 287 Md. 223, 229, 411 A.2d 449 (1980)(sound discretion vested in trial judge in administering discovery rules will not
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