Taking Testimony Prior to Following Suit - FRCP 27 - This is a Rule that is not Typically Utilized - (ED of Michigan - 2014)

Rule 27 permit a party to obtain discovery through the taking of depositions and production of documents to preserve testimony and evidence for the anticipated suit....


Here is the general law:

To satisfy the court that the testimony is needed to protect against a failure or delay of justice, the great weight of authority requires the petitioner to show that there is a risk of loss of the desired testimony. Penn. Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1374-75, 314 U.S. App. D.C. 320 (D.C.Cir.1995) (indicating that Rule 27 requires a showing that there is "an immediate need to perpetuate testimony" and that "petitioner must establish danger that testimony may be lost") (citations omitted); Ash v. Cort, 512 F.2d 909, 911 (3d Cir.1975) (indicating that Rule 27 only applies "in that special category of cases

where it is necessary to prevent  [*7] testimony from being lost"); In re Hopson Marine Transportation, Inc., 168 F.R.D. 560, 1996 WL 547467 (E.D.La. 1996) ("The rule was intended to apply to situations in which testimony might be lost to a prospective litigant unless taken immediately, without having to wait for a lawsuit or other legal proceeding to commence."); In re Application of Checkosky, 142 F.R.D. 4, 6-8 (D.D.C.1992) (indicating that the "purpose of Rule 27 is simply to preserve evidence that otherwise would be in danger of being lost" and that "most courts have held that a petitioner must make a particularized showing that the testimony needs to be taken in advance of the contemplated action"). The common situation in which a Rule 27 deposition is appropriate is where there is a risk that a witness will be unavailable at the time of trial, either because of age or infirmity. Penn. Mut., 68 F.3d at 1374; In re Petition of Banks, No. 93-C-6914, 1993 U.S. Dist. LEXIS 17109, 1993 WL 502379 (N.D.Ill. Dec. 6, 1993) ("Most petitions to perpetuate testimony have been granted when a witness is aged or gravely injured an in danger [of] dying.").1996 U.S. Dist. LEXIS 15784, [WL] at *2.

PegaSync Techs., Inc. v. Patros

United States District Court for the Eastern District of Michigan, Southern Division

June 18, 2014, Decided; June 18, 2014, Filed

Case No. 14-MC-50440