In re Petition of Ford
No reporter information provided (1996)
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Rule of Law:
Federal Rule of Civil Procedure 27 authorizes the perpetuation of known testimony that is in imminent danger of being lost before a lawsuit is filed; it is not a tool for pre-complaint discovery to uncover unknown facts or determine whether a cause of action exists.
Facts:
- On November 8, 1996, Fred William Roberts was shot and killed by law enforcement officers from Elmore County.
- Sheila Roberts Ford, the Administratrix of Roberts's estate, expected to bring a civil rights action regarding his death.
- Ford was unable to bring the action immediately because she did not know the basic facts of the shooting, including the identity of the officers involved or whether the shooting was justified.
- Ford believed Elmore County Sheriff Bill Franklin, as the commanding officer, had knowledge of the facts surrounding Roberts's death.
- Ford did not allege or present evidence that Sheriff Franklin's testimony was in imminent danger of being lost due to severe illness, advanced age, or plans to leave the country.
Procedural Posture:
- Sheila Roberts Ford filed a verified petition in the U.S. District Court for the Middle District of Alabama, a federal trial court, pursuant to Federal Rule of Civil Procedure 27.
- The petition sought the court's permission to take the deposition of Elmore County Sheriff Bill Franklin before filing a lawsuit.
- The court issued an order finding the petition deficient because it failed to show that the anticipated action would have a basis for federal court jurisdiction.
- In response, Ford filed an amended petition, alleging the future lawsuit would be a civil rights action under 42 U.S.C. § 1983, thereby establishing federal question jurisdiction.
- A hearing was held on the amended petition, where Sheriff Franklin, appearing through counsel, opposed the petition.
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Issue:
Does Federal Rule of Civil Procedure 27 authorize a petitioner to take a deposition before filing a lawsuit for the purpose of discovering facts needed to frame a complaint, rather than to preserve testimony that is in danger of being lost?
Opinions:
Majority - Chief Judge Myron H. Thompson
No. Federal Rule of Civil Procedure 27 does not authorize pre-complaint discovery to uncover facts; its sole purpose is to perpetuate, or preserve, testimony that is in danger of being lost. The plain language of Rule 27 uses the term 'perpetuate,' which means to preserve from extinction, not to discover or uncover. The court reasoned that Ford's petition sought to uncover who shot Roberts and why, which constitutes discovery, not perpetuation. While Ford argued she needed this information to comply with Rule 11's pre-filing inquiry requirement, the court held that Rule 27 is not a vehicle for Rule 11 compliance. The court explicitly rejected the reasoning of other courts that had permitted Rule 27 depositions for discovery purposes, emphasizing that the rule requires a showing that testimony is in imminent danger of being lost, which Ford failed to demonstrate.
Analysis:
This decision reinforces the narrow scope of Rule 27, strictly distinguishing between the preservation of known testimony and the discovery of unknown facts. It prevents the rule from being used as a tool for pre-litigation 'fishing expeditions' to determine whether a cause of action exists or to identify defendants. By rejecting the argument that Rule 11's pre-filing inquiry obligations can be satisfied through Rule 27, the court maintains a clear boundary between the rules and forces potential plaintiffs to conduct their initial investigations through other means. This holding clarifies that a petitioner faces a high bar, needing to show a specific, imminent threat to the availability of testimony, rather than a general concern about fading memories.
