Episode Details

In this episode, Jim Garrity does a deep dive into Fed. R. Civ. P. 27 (and its state equivalents, because virtually all U.S. states and territories have a similar rule). Rule 27 allows you to take depositions before a lawsuit has been filed - and also when a judgment has been entered and the case is on appeal - in order to perpetuate/preserve testimony. But the rule actually allows so much more. In fact, Garrity says its name, "Depositions To Perpetuate Testimony," would be more accurate if it were renamed "Discovery to Perpetuate Evidence." Listen in for a great explanation how the rule works, and some fantastic practice tips. As always, the cases upon which this episode is based are listed in the show notes, with full case names, citations, and parentheticals. There are 17 cases in the show notes today. If you don't see them all, the site where you get your podcasts may not allow extended notes. Click through to our podcast homepage if that happens, or email us at DepositionPodcast@JimGarrityLaw.com. And if you have a minute, would you please leave us a five-star rating wherever you get your podcast? Our production staff would so deeply appreciate it. Thanks!

SHOW NOTES

In Re Carl David Jones, 2022 WL 102962, Case No. 7:21-mc-00001-BP (N. D. Texas January 11, 2022) (Role 27 petition rejected where sole purpose was to determine whether a claim existed)

Qin v. Deslongchamps, 539 F. Supp. 3d 943, Case No. 21-MC-16 (E.D. Wis. 2021) (petition denied where sole evident purpose was to determine whether diversity jurisdiction existed that would allow federal court to hear case; “[t]he federal courts have held that Rule 27 can only be used to prevent known testimony from being lost, not as a discovery tool to assist in preparing a complaint”)

Freeman v. Equifax, Inc., No. 221-CV-01137-APG-NJK, 2022 WL 195006 (D. Nev. Jan. 20, 2022) (offering examples that might justify perpetuation of testimony, saying “Such circumstances might derive in a particular case where a witness is gravely ill, elderly, or likely to leave the country for a prolonged period.”)

Naswood v. Banks, No. ED-CV-091675-SVW-DTB, 2013 WL 12470383, at *6 (C.D. Cal. Mar. 19, 2013), report and recommendation adopted, No. ED-CV-091675-SVW-DTB, 2014 WL 12962026 (C.D. Cal. July 2, 2014) (inmate filed petition to preserve camera and/or videotaped evidence while exhausting his administrative remedies under the Prison Litigation Reform Act; further, “[a]lthough Fed. R. Civ. P. 27 is entitled, “Depositions to Perpetuate Testimony,” Rule 27 permits a moving party to seek “orders like those authorized by Rules 34 and 35.” See Fed. R. Civ. P. 27(a)(3); see also Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961) (“[A] party may, in a proper case, proceed under Rule 27 for an order under Rule 34 without taking a deposition at all ....”)

In re Highland Cap. Mgmt., L.P., No. 19-34054-SGJ11, 2022 WL 38310 (Bankr. N.D. Tex. Jan. 4, 2022) (FRCP applies to bankruptcy cases, pursuant to Fed. R. Bankr. Pro. 7027”)

Willis v. PCN Fin. Servs. Grp., Inc., No. 220-CV-01833-DSC-LPL, 2021 WL 6054563 (W.D. Pa. Oct. 27, 2021), report and recommendation adopted sub nom. In re Willis, No. 2:20-CV-1833, 2021 WL 6051558 (W.D. Pa. Dec. 21, 2021) (“Authorizing Petitioner's discovery of the financial information may permit Petitioner to manufacture a cause of action. “[I]t is well settled that Rule 27(a) is not a method of discovery to determine whether a cause of action exists, and if so, against whom action should be instituted.” Id. “Courts generally agree that to allow Rule 27 to be used for the purpose of discovery before an action is commenced to enable a person to fish for some ground for bringing suit would be an abuse of the rule”)

Petition of Ingersoll-Rand Co., 30 5F. R. D. 122 (S. D. New York April 20, 1964) (court denied petition where