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The sooner evidence can be evaluated and preserved, the better the prospects for a successful outcome. The Federal Rules of Civil Procedure afford to potential plaintiffs and defendants a uniform standard when pre‐action “discovery” can be obtained. Strictly speaking, the relief sought is not discovery, as the rule is utilized to preserve evidence. Federal Rule 27, titled “Depositions to Perpetuate Testimony” permits the preservation of testimony, physical evidence, and documents that are not likely to be available at a later time.
Case law interpreting the rule permits the petitioner to demand production of documents and gain access to physical property for purposes of inspection by a party’s experts. A dying witness or a product or part which is leaving the United States, deteriorating, or changing for any reason, are examples where Rule 27 relief may be invoked. The rule is especially useful where witnesses, such as crew members, are temporarily in the United States, but reside in locations beyond the court’s jurisdiction. In Deiulemar Compagnia di Navigazione SpA v M/V Allegra, the court allowed depositions, as well as access to documentary and physical evidence in such a circumstance.
In order to qualify for Rule 27 relief, a lawsuit must be able to be filed in a U.S. court. If the matter cannot be heard in a U.S. court, Rule 27 is not available. Where the matter is to be heard in a foreign tribunal, including overseas arbitrations, and witnesses and/or evidence is within the United States, 28 U.S. § 1782 can be invoked in support of an application to allow for depositions that are to be utilized before foreign or international tribunals. Intel Corp. v Advanced Micro Devices.
So before filing a lawsuit to obtain discovery, consider Rule 27 if evidence needs to be preserved and suit can be brought in the United States. Also consider 28 U.S.C.§ 1782 if the proceeding needs to be brought in a foreign tribunal.
