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 material 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 before 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 perpetuate 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.
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 opportunities 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 something 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?”
Pierre’s lawyer friend: “Gosh, . . . I’m no giver of ultracrepidarianisms. . . .”
In 1934, while on a government trip to San Francisco, two friends pick up their mail at the front desk of the Sir Francis Drake Hotel and engage in the following fictional conversation:
Secretary of the Interior Harold L. Ickes: “What sort of hijinks is this!?! It’s a federal court order directing me to sit for something called a ‘deposition in perpetuam rei memoriam’ about my role in the implementation of the 1922 Colorado River Compact that will allow what will later be called the Hoover Dam to be built. It’s applesauce and banana oil. There’s no case filed, and someone’s feeding me a line that a court can order such a thing, right?”
Secretary Ickes’s lawyer friend: “Jeepers, . . . I’m not so sure it is goofy. . . .”
In 2021, while on a videoconference via Zoom (or Teams or WebEx or GoToMeeting, pick the one you like), two friends exchange the following direct messages:
World traveler Pat: [Link to a PDF of a federal court order directing Pat to sit for a deposition to perpetuate testimony before she begins her highly publicized “Walk Across Siberia,” to be followed immediately by her “Walk Across the Australian Outback,” ending sometime in 2024.] “WTH? LOL. Fair dinkum? Nyet! No case filed; no way that’s a thing LMK.”
Pat’s lawyer friend: “IMO IDK.”
The lawyer friends’ uncertainty across the years is understandable. Requiring a deposition without a case pending is a bit extreme, right? Perhaps, but that is precisely what Rule 27(a) allows and, before Rule 27(a), what federal statutes recognized: a deposition of named individuals to perpetuate testimony before an action is filed.
“Bills for depositions to perpetuate testimony were well known in Roman law and in English chancery practice before the adoption of the United States Constitution.” Mosseller v. United States, 158 F.2d 380, 381 (2d Cir. 1946) (citing authority). Almost since the country began, federal law has recognized the ability to preserve testimony for use in a future federal court action. The first federal judiciary act, which established the federal judicial system (and unimaginatively is called the Judiciary Act of 1789), did so in section 30, but in the negative. Among other things, section 30 set forth the procedures for depositions in federal courts, carefully noting that it did not restrict the ability to take depositions to perpetuate testimony. Section 30 concluded that, despite the process and limitations for depositions generally, “nothing herein shall be construed to . . . extend to depositions taken in perpetuam rei memoriam, which if they relate to matters that may be cognizable in any court of the United States, a circuit court on application thereto made as a court of equity, may, according to the usages in chancery direct to be taken.”
What, then, in English (currently or in 1789) is a deposition taken in perpetuam rei memoriam? A practical translation, as noted by the U.S. Supreme Court, is a deposition to perpetuate testimony for use in a future action. Arizona v. California, 292 U.S. 341, 347 (1934). So, when Pierre hypothetically was at Blodgett’s Hotel in 1799 and perhaps talked about returning to France, a process existed to depose him for use in a future action if, for example, it was shown he would travel back to France and not return.
Over time, section 30 was recodified and amended to more affirmatively authorize depositions to perpetuate testimony. In 1934, when Secretary Ickes might have been at the Sir Francis Drake Hotel, 28 U.S.C. § 644 explicitly provided that “any district court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam.” Secretary Ickes’s discussion above is hypothetical. But in 1934 the U.S. Supreme Court approvingly discussed an original bill filed by the State of Arizona with that Court to perpetuate the testimony of Secretary Ickes, and others, by deposition for an action that Arizona would, “at some time in the future,” file against the State of California and others arising out of the Boulder Canyon Project Act.
No bill to perpetuate testimony has heretofore been filed in this Court; but no reason appears why such a bill may not be entertained in aid of litigation pending in this Court, or to be begun here. Bills to perpetuate testimony had been known as an independent branch of equity jurisdiction before the adoption of the Constitution. Congress provided for its exercise by the lower federal courts. There the jurisdiction has been repeatedly invoked; and it has been recognized by this Court.
Arizona v. California, 292 U.S. at 347 (footnotes omitted; citing, among other things, 28 U.S.C. § 644).
On the merits, the Court found that the allegations in Arizona’s bill “are sufficient to show danger of losing the evidence by delay; and also to show Arizona’s inability to perpetuate the testimony by the ordinary methods prescribed by law for the taking of depositions.” However, the Court denied relief because Arizona failed to show that the testimony to be perpetuated “could conceivably be material or competent.” Id. at 348, 360. So, when Secretary Ickes took his fictional trip to the Sir Francis Drake Hotel in 1934, a clear statutory process in 28 U.S.C. § 644 was in place to preserve his testimony by deposition for use in a future action. That authority became even clearer when the Federal Rules of Civil Procedure arrived.
In 1938, the Federal Rules of Civil Procedure were promulgated, including Rule 27, Depositions to Perpetuate Testimony. Although Rule 27(a) has been amended over time, the changes over the more than eight decades of its existence have been few and modest in scope. Rule 27(a) has four subparts that simply, and logically, set forth what is required, using helpful subheadings: (1) Petition, (2) Notice and Service, (3) Order and Examination, and (4) Using the Deposition.
The person seeking to take the depositions must file a verified petition, titled in the petitioner’s name, in the district court “where any expected adverse party resides.” Fed. R. Civ. P. 27(a)(1). Along with asking for an order to authorize the petitioner to depose “the named person in order to perpetuate their testimony,” the petition must show that (A) the petitioner expects to be a party to an action cognizable in federal court “but cannot presently bring it or cause it to be brought”; (B) “the subject matter of the expected action and the petitioner’s interest”; (C) the facts the petitioner wants to establish by the proposed testimony “and the reasons to perpetuate it”; (D) the names or descriptions of those the petitioner expects will be adverse parties “and their addresses, so far as known”; and (E) “the name, address, and expected substance of the testimony of each deponent.” Id.
Rule 27(a) does not expressly require a hearing before securing such an order; the notice and service provisions, however, strongly suggest that one is required: “At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing.” Fed. R. Civ. P. 27(a)(2). Service can happen either inside or outside the district or the state “in the manner provided in Rule 4,” or, if such service cannot be made with reasonable diligence on an expected adverse party, “the court may order service by publication or otherwise.” Id. “The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented.” Id. Rule 17(c), which requires the appointment of a guardian ad litem or the issuance of another appropriate order, applies if any expected adverse party is a minor or is incompetent. Fed. R. Civ. P. 27(a)(2).
If, from the petition and arguments presented, the court is satisfied that perpetuating the requested testimony “may prevent a failure or delay of justice,” Rule 27(a)(3) directs that “the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories.” Depositions are then taken under the rules, and the court “may issue orders like those authorized by Rules 34 and 35,” allowing for the production of documents, electronically stored information, and tangible things, or entering onto land, as well as physical or mental examinations. Any reference in the rules “to the court where an action is pending” means the court where the petition for the deposition was filed. Fed. R. Civ. P. 27(a)(3).
“A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.” Fed. R. Civ. P. 27(a)(4).
The Federal Rules of Criminal Procedure have a counterpart applicable in criminal proceedings, although with different procedural requirements. See Fed. R. Crim. P. 15 and advisory committee notes to 1944 amendment, note to subdivision (a). Certain state statutes provide comparable procedures. See Fed. R. Civ. P. 27 advisory committee notes to 1937 amendment, note to subdivision (a) (citing then-existing state statutes). Perhaps given the simplicity and ease of use of Rule 27(a), 28 U.S.C. § 644—the statutory basis to take such depositions before promulgation of the rule—was repealed in 1948. See 8A Wright & Miller, Federal Practice and Procedure Civil § 2071 & n.9 (3d ed. 2020).
One prototypical instance in which Rule 27(a) might be useful is when a potential deponent who may have critical information has a fast-acting, potentially fatal medical condition and may not be alive (or able to endure a deposition) by the time the substantive litigation accrues or can be filed. In Mosseller v. United States, 158 F.2d 380 (2d Cir. 1946), the Second Circuit affirmed a Rule 27(a) deposition of a minor injured on a ship when the petitioner, the minor’s mother, could not yet bring a substantive suit given the time required for a notice of claim process and submitted medical affidavits showing “that her son might die before the [notice of claim] time elapsed.” Id. at 381.
Another example is someone going off to war or to serve on a ship, who would not return for an indeterminate period. In re Application of Deiulemar Compagnia Di Navigazione S.p.A., 153 F.R.D. 592, 592 (E.D. La. 1994) (granting Rule 27(a) depositions where a “vessel is expected to return to Greece in order to change crew and, therefore, relevant testimony from individuals located on the vessel potentially will be lost if not perpetuated prior to the vessel’s departing port”). Yet another historical example is where a potential deponent will be gone for a long, long time. One court summarized the expected factual predicates for these prototypical examples, although stated in the negative: “Petitioner has not alleged, nor is there any basis for the Court to find, that the potential deponents are aged, gravely ill, or preparing to leave the country for an indefinite or lengthy period of time.” In re Boland, 79 F.R.D. 665, 667 (D.D.C. 1978) (citing cases).
World traveler Pat may not be back for years from her hikes across Siberia and the Australian Outback. Technology, to be sure, may help narrow that distance. In at least some parts of the globe, however, world traveler Pat may not have reliable internet access even if she could be located to undertake a video deposition using a remote platform.
Courts asked to apply Rule 27(a) provide more context on what will, and what will not, succeed when the rule is invoked. Whether to grant a Rule 27(a) petition is discretionary. Penn Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1374 (D.C. Cir. 1995) (citing cases). Rule 27(a), however, may not be used as a substitute for discovery. Id. at 1376. Put another way, Rule 27(a) is not a mechanism to obtain a true discovery deposition to gather unknown information that might support some future claim. “The case law makes clear that ‘perpetuation’ means the perpetuation of known testimony, and that the rule may not be used as a substitute for discovery to determine whether a cause of action exists.” In re Application of Checkosky, 142 F.R.D. 4, 6 (D.D.C. 1992). A corollary to this requirement is that “the party seeking to take the prelitigation deposition must set forth in some detail the substance of the testimony it needs to preserve.” Penn Mutual Life Insurance, 68 F.3d at 1376. In this respect, the “scope of discovery available under” Rule 27(a) “is not as broad as that provided for discovery generally under Rule 26.” 8A Wright & Miller, Federal Practice & Procedure Civil § 2071 (footnote omitted).
The distinction between the proper use of Rule 27(a) to perpetuate testimony and the improper use of Rule 27(a) to determine whether a cause of action exists is one of degree. Cases suggest, at least in dicta, that a strong showing of “the reasons to perpetuate” the testimony now is a significant fulcrum in the court’s exercising its discretion. The Second Circuit in Mosseller affirmed the grant of the Rule 27(a) petition based on a “showing of an unfavorable medical prognosis of the injured seaman” to be deposed, while adding in dicta that the court might have issued the order without such a medical showing, “for the right to this relief . . . does not depend upon the condition of the witness, but upon the situation of the party (petitioner), and his power to bring his rights to an immediate investigation.” 158 F.2d at 382 (citation omitted). Rule 27(a), however, is not a tool available merely to assist a plaintiff in drafting a complaint that the plaintiff is legally free to file at any time. See In re Boland, 79 F.R.D. at 668.
The age of the potential deponent can affect whether Rule 27(a) relief may be granted. “Advanced age certainly carries an increased risk that the witness will be unavailable by the time of trial.” Penn Mutual Life Insurance, 68 F.3d at 1375. Similarly, the court likely will consider whether there are few (or many) potential witnesses who could testify about the facts seeking to be preserved. See In re Application of Checkosky, 142 F.R.D. at 7 (“sheer number of potential witnesses to the same events drastically reduces the risk that the demise of any one witness will harm petitioners’ case”).
The rule can be applied to perpetuate the testimony of the petitioner. It is also a potential access point to other discovery tools, such as independent medical examinations or subpoenas duces tecum. Martin v. Reynolds Metals Corp., 297 F.2d 49, 55–56 (9th Cir. 1961) (party may proceed under Rule 27 for an order under Rule 34 without taking a deposition at all); Petition of Ingersoll-Rand Co., 35 F.R.D. 122, 124 (S.D.N.Y. 1964) (endorsing, in dicta, use of Rule 45(d) with Rule 27(a)).
Although there are dozens (but not hundreds) of cases addressing the application of Rule 27(a), there are a few that show notable creativity. The state of North Carolina unsuccessfully sought to depose representatives of Sotheby’s and Coudert Brothers about a letter, consigned for auction, purportedly written by George Washington, that the State claimed it owned. Petition of State of North Carolina, 68 F.R.D. 410, 412 (S.D.N.Y. 1975). Lacking from the petition was any showing that the evidence was in danger of being lost, as the respondents “are well-established businesses which keep records and files. There has been no showing that these files are in danger of being destroyed.” Id. As to the letter itself, the state claimed it was worth more than $10,000, and the court found it unlikely to be destroyed. As another example, attorneys representing victims of the Interstate 35 bridge collapse made an imaginative yet unsuccessful attempt to use Rule 27(a) to obtain an immediate access order for them and two of their experts to inspect “the remains of the bridge.” In re I-35W Bridge Collapse Site Inspection, 243 F.R.D. 349 (D. Minn. 2007).
Equally creative but more successful was an aluminum plant operator, a likely defendant in a possible environmental contamination dispute, who successfully invoked Rule 27(a) to take depositions, to obtain documents and things, and to take samples (both with and without depositions) from cattle ranchers, including entering on the ranchers’ property to do so. Martin, 297 F.2d at 55–56. A death row inmate successfully invoked Rule 27(a) to videotape an execution of another death row inmate, to perform an electroencephalograph test on the inmate during the execution, and to have an expert witness attend that execution, with the consent of the inmate to be executed. Petition of Thomas, 155 F.R.D. 124 (D. Md. 1994).
Although separated by a century or so each, the lawyer friends of Pierre, Secretary Ickes, and world traveler Pat correctly hesitated to say that the deposition without a case was not proper. Their attorney instincts correctly told them that there probably was some overlooked mechanism available if needed to serve equity. Pre-litigation depositions are proper under Rule 27(a) and have been, either under that rule or by statute, since the founding of the country. The boundaries of the use of such a procedure are limited only by the creativity of counsel when faced with unique circumstances. The procedure for such an endeavor, however, is clear: Rule 27(a), the powerful, overlooked, octogenarian pre-litigation discovery rule, hidden in plain sight.
