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The old adage that the early bird catches the worm is as true in
litigation as it is in ornithology. The sooner that important
evidence can be evaluated and preserved, the better the chances for
a successful outcome.
Applying this adage to litigation, would be plaintiffs may
consider filing a lawsuit, and then seeking accelerated discovery
to determine whether the underlying claim has merit, or not. Such
an approach may have some pitfalls, including ethical and the
remote possibility that the defendant may not readily consent to a
dismissal for filing what turns out to be a frivolous lawsuit.
Some state courts allow for limited pre‐suit discovery
but the criteria and requirements are not always consistent. The
Federal Rules of Civil Procedure, however, provide a uniform
standard when pre‐action "discovery" can be
obtained. Strictly speaking the relief sought is not discovery, as
the rule is utilized to preserve evidence. Federal Rule 27, titled
"Depositions to Perpetuate Testimony" permits the
preservation of testimony, physical evidence, and documents that
are not likely to be available at a later time. However, the
decisions interpreting the rule have permitted the petitioner to
demand production of documents and gain access to physical property
for purposes of inspection by a party's experts. A dying
witness or a product or part which is leaving the United States,
deteriorating, or changing for any reason, are examples where Rule
27 relief may be invoked.
Rule 27 can also be utilized when witnesses are temporarily in
the United States but reside in countries beyond the court's
subpoena power, such as in maritime cases and other matters having
international overtones. See, Deiulemar Compagnia di
Navigazione SpA v M/V Allegra, 198 F.3d 473 (4th Cir. 1999);
cert.den., 529 U.S. 1109 (2000) where the court allowed
depositions, as well as access to documentary and physical
evidence. Rule 27 relief is available to potential plaintiffs and
defendants.
In order to qualify for Rule 27 relief, a lawsuit must be able
to be filed in a U.S. court. If the matter cannot be heard in a
U.S. court, Rule 27 is not available. Where the matter is to be
heard in a foreign tribunal, including arbitrations, and witnesses
and/or evidence is within the United States, 28 U.S. § 1782
can be invoked in support of an application to allow for
depositions that are to be utilized before foreign or international
tribunals. Intel Corp. v Advanced Micro Devices, 542 U.S.
241 (2004).
So before filing a lawsuit to obtain discovery, consider Rule 27
if evidence needs to be preserved and suit can be brought in the
United States and 28 U.S.C.§ 1782 when the proceeding needs to
be brought in a foreign tribunal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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