Federal Rule of Civil Procedure 27

Jul 26th, 2013 By: Paul Hibner
Topics: Federal Rule of Civil Procedure 27

We represent an insured whose insurance company attempted to seek discovery against clients in a lawsuit the insurance company described as “impending.” The insurance company filed a Petition under Rule 27 of the Federal Rules of Procedure.

Rule 27(a)(1) of the Federal Rules of Civil Procedure provides a person who desires to perpetuate testimony regarding any matter cognizable in federal court may file a verified petition if that party cannot do so presently. See Fed. R. Civ. P. 27(a)(1). Although the purpose of Rule 27 is to perpetuate testimony, “the scope of discovery under Rule 27 is much narrower than Rule 26 discovery.” See In re Yamaha Motor Corp., 251 F.R.D. 97, 99 (N.D.N.Y 2008)(“Yamaha”)(Rule 27 petition’s stated purpose of preserving witness testimony as part of petitioner’s “on-going investigation” into claim was grounds for denial). A proper Rule 27 Petition must show:

(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;

(B) the subject matter of the expected action and the petitioner’s interest;

(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each deponent. (Fed. R. Civ. P. 27(a)(1).

Under Rule 27(a)(1)(C), a Petition to perpetuate testimony before a lawsuit is commenced “…must furnish a focused explanation of what the anticipated testimony would demonstrate[;] the Petitioner must know the substance of the testimony to be preserved before it can call for a Rule 27 deposition.” Yamaha, 251 F.R.D. at 99; Rule 27(a)(1)(C)(petition must contain “the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it.”).“It is well-established in case law that perpetuation means the perpetuation of known testimony.” In re Ramirez, 241 F.R.D. 595, 596 (W.D. Tex. 2006)(emphasis added);Lampton v. Diaz, 2010 U.S. Dist. LEXIS 119966 at 15 (S.D. Miss. Oct. 26, 2010)(denying petition, in part, because petitioner sought discovery of unknown information, even though information was at the heart of claim).

A Rule 27 Petition must also seek material and competent evidence. See In re Hopson Marine Transp., 168 F.R.D. 560, 564-65 (E.D. La. 1996)(“Hopson”); 6 J. Moore, Moore’s Federal Practice § 27.16, at 27-32 to 27-33 (3d ed. 2011)(“those courts that have directly addressed the issue have found that Rule 27 permits the perpetuation of evidence only when the petitioner shows that the evidence sought is material and competent.”). See also In Re Bay County Middlegrounds Landfill Site, 171 F.3d 1044, 1047 (6^th Cir. 1999).

In short, Rule 27 can be used in certain circumstances to preserve material, competent, and known testimony when a party cannot bring suit currently, but will be a party to a lawsuit cognizable in federal court.