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Legal Memorandum: Depositions in Equitable Actions for Discovery

Issue: Does Rule 27 of the Federal Rules of Civil Procedure apply to depositions in an equitable action for discovery?

Area of Law: Litigation & Procedure
Keywords: Depositions; Equitable action for discovery; Prevent a failure or delay of justice
Jurisdiction: Federal
Cited Cases: 34 F.3d 774
Cited Statutes: Fed. R. Civ. P. 27(a), Rules 26, 30 and 32
Date: 05/01/2005

Rule 27, entitled “Depositions Before Action or Pending Appeal,” allows perpetuation of testimony in order to prevent a failure or delay of justice even though no action has yet commenced, if the petitioner complies with certain enumerated provisions.  Fed. R. Civ. P. 27(a).  By its terms, rule 27(a) is inapplicable when an action, including an equitable action for discovery, has been commenced.

The case of Shore v. Acands, Inc., 644 F.2d 386 (5th Cir. 1981), is on point.  In Shore, the defendants argued that that Fed. R. Civ. P. 27(a) applied, even though the petition by which the plaintiff sought deposition testimony was not styled as a Rule 27(a) petition.  Shore, 644 F.2d at 388.  The defendants further argued that the plaintiff had not complied with the requirements of Rule 27(a).  Id.  Dismissing the argument, the court of appeals held that “[t]he short answer is that Rule 27(a) is to be invoked prior to the commencement of an action.  Here, Shore already had commenced his action a month earlier.”  Id.  See also Lubrin v. Hess Oil V.I. Corp., 109 F.R.D. 403, 405 (D.V.I. 1986) (in arguing that Rule 30(b)(6) deposition “properly brought during, not before, an action is filed,” the defendant “seemed to ignore the fact that the plaintiff had filed the present equitable action for discovery”).

Instead, discovery requests in an equitable action for discovery are governed by general principles underlying the Federal Rules of Civil Procedure, as well as Rules 26, 30 and 32.  “[T]he […]

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