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March 08, 2007

Sensitive Litigation Moment: Rule 27, its state counterparts and Day on Torts.

Trial lawyer John Day at Day on Torts , a fine blog, has a good piece on the Tennessee counterpart to Rule 27, Fed. R. Civ. P., in "A Way To Reduce the Number of Lawsuits". Rule 27 of the (U.S.) Federal Rules of Civil Procedure is called "Depositions Before Action or Pending Appeal"--and it's not used much. Most states have versions of Rule 27, with different case law on how you can take discovery before an action has been commenced: either to preserve testimony which might "get away" and/or to do a presuit evaluation of the merits of an action.

The idea makes a lot of sense but it's harder to use than you might think from jurisdiction to jurisdiction. I've used that kind of provision three times in state proceedings with varying amounts of leeway given by the court in each case. The risk of using such a provision is the countering argument in each proceeding you use it that it's used to harass rather than explore. Courts don't see it much either--one Durham, North Carolina court I used it in at first thought I had made it up--so go easy, check the cases on it and think it through. While I think it's a great concept, I haven't used it at all in federal court practice, which is 95% of the litigation my firm does.

Posted by JD Hull at March 8, 2007 06:33 AM


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