May 09, 2012
Sensitive Litigation Moment: The Sleeper is Fed. R. Civ. P. 27.
Rule 27 of the U.S. Federal Rules of Civil Procedure is "Depositions to Perpetuate Testimony". Subdivision (a) covers "Before an Action Is Filed".
Rule 27(a)--and its many state counterparts--is not used that much. In non-federal cases, most states have some versions of Rule 27, with different case law on how you can take discovery before an action has been commenced. Valid reasons might be to preserve testimony which might "get away", e.g., a dying or homeless witness or a witness about to skip town. Or (less commonly) to do a limited pre-suit evaluation of the merits.
The state versions are worded very similarly to the federal rule; however, the case law on what you can actually do with the state counterparts of the rule vary widely from state to state. One common concern: that the rule will be used to harass and intimidate (read: "mess with people") rather than to perpetuate/preserve.
Courts--federal and state--don't see it that much. One very good North Carolina judge initially was concerned that an out-of-state lawyer (me) was introducing him for the first time to the state's Rule 27. So go easy, check the cases on it, and think it through. Local lawyers may not be much help; understandably, they often have rote, unthinking habits about their own procedural rules. We all do that--and we are missing a lot.
Final Note: For what it's worth, in federal courts--where 90% of our litigation for clients finds a home--I do not recall ever invoking Rule 27 "pre-suit".
Posted by JD Hull at May 9, 2012 12:59 AM