Discovery

• Author: Rebecca Ann Taylor
• Profession: Writer and attorney
• Pages: 255-263

255

Due to the additional difculty faced by civil rights plaintiffs today in

asserting viable actions in the wake of the Iqbal decision, it may be advis-

able for you to seek prelitigation discovery, if possible. In the federal arena,

pre-complaint depositions may be taken pursuant to veried petitions to

perpetuate testimony, which must demonstrate, inter alia, that the plaintiff

expects to le a federal complaint but cannot bring it just yet, the facts the

plaintiff expects to elicit from the testimony and from whom, and the rea-

sons why the plaintiff believes that such facts may be obtained from the

subject witnesses.1 State procedural rules may also permit prelitigation dis-

covery; such discovery can “aid in the framing of a claim for a known cause

of action, but . . . may not be used by a potential claimant to determine

whether he has a cause of action.”2 A party seeking to conduct prelitigation

discovery should also demonstrate that “he has some cause of action against

the adverse party’ and, further, that the information he seeks is ‘material

and necessary’ to that actionable wrong.”3

Examples of information or evidence you should seek in discovery, either

prior to or after the ling of the complaint, include the following:

1. See F. R. C. P. 27(a)(1).

2. Matter of Striegel v. Tofano, 92 Misc. 2d 113, 115 (N.Y. Sup. Ct. 1977) (citing Matter

of Heller v. State of N.Y., 57 Misc. 2d 976 (N.Y. Ct. Claims 1968) (alteration in original)).

3. Emmrich v. Tech. for Info. Mgmt., Inc., 91 A.D.2d 777, 778 (N.Y. App. Div. 1982).

Chapter 14

Discovery

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