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POWERS v. PLANNED PARENTHOOD6/6/1996
interview with Powers herself and a conversation with her oncologist about her prognosis. For purposes of M.R.Civ.P. 27, the interview with Powers and the conversation with her oncologist were sufficient to satisfy any requirement that verification of the facts attested be based on personal knowledge.
Lack of notice
M.R.Civ.P. 27(a)(2) requires that twenty days prior to a hearing on the petition a petitioner serve a notice and a copy of the petition on all expected adverse parties that petitioner will apply to the court for an order permitting perpetuation of testimony. Planned Parenthood did not receive any advance notice that Dumas intended to petition the court, and it did not receive a copy of the petition until the day after Dumas met with the court to discuss the petition and obtained the court's approval of the petition.
Our analysis of the notice issue must be informed by the particular facts of this case and the overall purpose of our rules of civil procedure "to secure the just, speedy and inexpensive determination of every action." M.R.Civ.P. 1. Although we find it troubling that dumas did not notify Planned Parenthood or the other expected adverse parties of his intention to file a petition to perpetuate Powers's testimony or that he would be appearing before the court ex parte to discuss the petition, we conclude on the unusual facts of this case that the failure to provide the notice required by Rule 27 did not require denial of the petition. We note these significant facts. Dumas did not learn of the gravity of Mary Powers's medical situation until May 21. On May 22, his secretary called Planned Parenthood and told its director of special projects that Powers was critically ill and that Dumas desired to take a video deposition of her before her death for use in a possible negligence action. The court was adamant about giving the expected adverse parties, including Planned Parenthood, at least seven days' notice of the deposition itself. Planned Parenthood received a copy of the petition on May 25, just three days after the initial phone call from Dumas and twelve days before the deposition was actually held. A hearing was held on Planned Parenthood's motion to dismiss the petition prior to the deposition and all of the issues presently on appeal were aired. Finally, Powers was gravely ill and did, in fact, die nine days after the deposition was taken.
The entry is:
Order affirmed.
All concurring.
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