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Allen v. Allen6/8/1995
be disturbed absent a showing of abuse); Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13-14, 174 A.2d 768 (1961)(same).
In his notice of deposition for perpetuation of evidence, appellee indicated that he desired to establish that appellant gave false testimony in her deposition during the divorce proceedings. His stated reason for desiring to perpetuate the
evidence allegedly contained in her stock account records was "to allow him to make determination as to whether the averments therein are in fact true, and if so, whether such averments will give rise to a cause of action in his favor against the said Jean Miles Allen, or against any other parties." From these declarations, it is apparent that Mr. Allen's intent in seeking to depose a Dean Witter representative was not to "perpetuate" evidence within the intended scope of Rule 2-404 as we have discussed, supra. Appellee's sole interest, rather, was to ascertain whether sufficient facts existed to permit him to formulate a complaint. Mr. Allen does not assert facts from which one could infer that the stock account records he seeks to examine will become unavailable prior to the filing of his prospective action. Without a supportable allegation that the evidence sought was in danger of being lost or destroyed, there was no valid basis for a petition to perpetuate the account records. Appellant's protective order therefore should have been granted.
Rule 2-404(a)(1) expressly states that " person who may have an interest in an action . . . may perpetuate testimony or other evidence . . ." As discussed earlier, we are of the view that "perpetuate" under Rule 2-404 means exactly what it says -- to ensure that evidence that may be germane to litigation will last indefinitely. The decisions we have reviewed, as well as the nature of Rule 2-404 itself, clarify that the purpose of perpetuating testimony is to permit a party to preserve potentially evanescent evidence so that a case may be decided on the best evidence available. The rule was not intended to serve as a discovery device to provide prospective plaintiffs with an opportunity to secure information in order to frame a complaint. See Court of Appeals Standing Committee on Rules of Practice and Procedure Minutes of 20 and 21 June 1980; see also Paul V. Neimeyer & Linda M. Schuett, Maryland Rules Commentary 266-67 (2d Ed. 1992).
Invocation of Rule 2-404 is therefore reserved for that category of situations in which it is necessary to prevent testimony from being lost or destroyed before a party is able
to pursue discovery in the ordinary course of an action. See Ash, supra, 512 F.2d at 911; see also Maryland Rules Commentary, supra, at 267. Accordingly, a person proceeding under this rule prior to commencing suit must make a particularized showing that the testimony or evidence sought may become unavailable if it is not secured in advance of the contemplated litigation. In the case sub judice, it is clear from Mr. Allen's Notice of Depostion that his objective was to establish a foundation to formulate a complaint. As he failed otherwise to demonstrate why it was necessary for him to secure information regarding appellant's stock account records prior to initiating a lawsuit, the trial court abused its discretion in declining to grant a protective order.
JUDGMENT REVERSED. COSTS TO BE PAID BY APPELLEE.
Disposition
JUDGMENT REVERSED. COSTS TO BE PAID BY APPELLEE.
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