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POWERS v. PLANNED PARENTHOOD6/6/1996
Planned Parenthood of Northern New England (Planned Parenthood) appeals from an order of the Superior Court (Franklin County, Delahanty, J.) granting Mary Powers's petition to perpetuate testimony pursuant to M.R.Civ.P. 27. We affirm the order.
At some point between January 1, 1994, and May 7, 1995, Mary Powers was diagnosed with cervical cancer. On May 7, 1995, Powers told her attorney, Paul Dumas, that she had six months to live. On May 21, Powers told Dumas that her prognosis had changed and that she only had two months to live.
On May 24, Dumas filed in Franklin County, Powers's county of residence, a petition to conduct discovery before action pursuant to M.R.Civ.P. 27 and a motion to expedite hearing on the petition. The petition was verified by Dumas. The court held a hearing on the petition that same day, with only Dumas present, and granted Powers's petition. Planned Parenthood first learned of the petition and the hearing on May 25, the day after the petition was granted. Planned Parenthood received notice of the deposition itself on May 24.
On June 1, Planned Parenthood filed a motion to dismiss Powers's petition and to vacate the court's order permitting her deposition, claiming that: (1) the petition did not show adequately that Powers presently was unable to bring an action; (2) the court had no jurisdiction to grant the petition because it was filed in the wrong county; (3) the petition was not properly verified; and (4) Planned Parenthood had no prior notice of the hearing.
On June 6, the court held a hearing on Planned Parenthood's motion to dismiss and to vacate. Defendant ICSL joined in the motion. After the court denied the motion the parties appealed. On June 16, Powers filed a notice of claim of
Appealability of the court's order
As a threshold matter, we must determine whether the court's decision to permit the taking of a deposition prior to the filing of an action is subject to an appeal. Ordinarily, appeals must be from a final judgment. Lewellyn v. Bell, 635 A.2d 945, 946 (Me. 1993). Discovery orders generally are not subject to immediate appeal because the underlying litigation is ongoing, and the discovery order is not considered final. Hanley v. Evans, 443 A.2d 65, 66 (Me. 1982). Depositions authorized pursuant to M.R.Civ.P. 27 are not, however, considered a traditional discovery device. 1 Field, McKusick & Wroth, Maine Civil Practice ยง 27.1 (2d ed. Supp. 1981); M.R.Civ.P. 27, Reporter's Notes (1959). Moreover, the federal courts, in interpreting F.R.Civ.P. 27, which is substantially similar to M.R.Civ.P. 27, have held that both the denial and grant of a petition to perpetuate testimony are appealable as final orders because such orders grant all the relief sought in the petition and fully dispose of that proceeding. See Shore v. Acands, Inc., 644 F.2d 386, 388 (5th Cir. 1981); Mosseller v. United States, 158 F.2d 380, 383 (2d Cir. 1946). States that have an analogue to F.R.Civ.P. 27 and that have considered the appealability of Rule 27 orders have followed the federal rule. See, e.g., In re Burlington Bagel Bakery, Inc., 150 Vt. 20, 549 A.2d 1044, 1045 (1988) (determination of finality of order denying a petition to perpetuate testimony pursuant to state rule of civil procedure is guided by federal caselaw). We therefore consider the merits of Planned Parenthood's appeal.
Procedural defects of Powers's petition
M.R.Civ.P. 27(a) provides that any person who desires to perpetuate testimony by deposition prior to the commencement of an action may file a verified petition in the Superior Court of the county of the residence of the expected adverse party seeking an order allowing such perpe
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