Rule 27(a)

• Author: Hon. Samuel A. Thumma
• Pages: 33-37

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Rule 27(a)

The Powerful, Overlooked,

Octogenarian Pre-Litigation

Discovery Rule Hidden in Plain Sight

BY HON. SAMUEL A. THUMMA

The author is a judge on the Arizona Court of Appeals, Division One.

Typically, discovery focuses on what happens after litigation

is filed. That is not surprising and is as it should be, given that

the Federal Rules of Civil Procedure typically apply to civil

actions filed in federal courts. But what if there were a need

to perpetuate testimony before an action was filed? What if an

action could not be filed because it was premature but a ma-

terial witness was terminally ill, going off to war, or traveling

to a distant wilderness? Can the Federal Rules help preserve

testimony before litigation is filed? Yes, they can, under Federal

Rule of Civil Procedure 27(a).

Rule 27(a) has been in place almost unchanged since the

Federal Rules of Civil Procedure were enacted in 1938. Even be-

fore the Federal Rules, federal statutes continuously recognized

a similar process tracing back to the first Judiciary Act adopted

in 1789. Put another way, a pre-litigation procedure to perpetu-

ate testimony has existed in the United States since before the

Bill of Rights. Yet, it is hidden in plain sight. In a hypothetical

Federal Rules trivia contest, how many people would know

about the process? How many lawyers in such a contest would

ever have used Rule 27(a)? A fair guess is not very many, if any.

This article starts with three imagined conversations, each

about a century apart, to show the force of Rule 27(a) and the

statutes that pre-date the rule. The article then discusses those

statutes, the requirements of Rule 27(a), and a few cases further

defining them. The article concludes with a few examples of

creative attempts (some successful, some not) to put the rule to

use to preserve essential testimony that may be case-dispositive,

yet otherwise lost to time.

The Rule’s History

Rule 27(a) is straightforward and the case law applying it is sparse.

When case law is scant for a tool as potentially powerful as Rule

27(a), creative advocates should take note. There are opportu-

nities to be had, and possibilities abound. With that, let’s get

going with three hypothetical conversations between potential

deponents and their lawyer friends.

In 1799, at Blodgett’s Hotel in Washington, D.C., two friends

pick up their mail at the front desk and engage in the following

fictional conversation:

Pierre Samuel Du Pont de Nemours: “What sort of fegary is

this!?! It’s a federal court order directing me to sit for some-

thing called a ‘deposition in perpetuam rei memoriam’ about

my role in what will later be called the Louisiana Purchase.

Fiddle-de-dee. It’s twaddle and a Banbury story. There’s no

case filed, and it’s a fait accompli that a court cannot order

such a thing, right?”