Pre-Litigation Discovery
Pre-Litigation Discovery Under Arizona and Federal Law
Obtaining discovery before filing a lawsuit is possible but is limited to the rare circumstances expressly outlined by the applicable rules of civil procedure.
Please note that, while this article accurately describes applicable law on the subject covered at the time of its writing, the law continues to develop with the passage of time. Accordingly, before relying upon this article, care should be taken to verify that the law described herein has not changed.
An often posed question is whether a party can demand discovery from, or take the deposition of, a potentially adverse party before filing a lawsuit. This article will analyze the Arizona and federal law governing the taking of pre-litigation discovery.
I. Arizona Rule of Civil Procedure
Pursuant to Arizona Rule of Civil Procedure (“Arizona Rule”) 27, a person who wants to obtain testimony or other discovery to preserve evidence may do so as long as certain procedural steps are taken. As detailed below, the requesting party must file and serve a verified petition setting forth certain facts; a hearing must be held after allowing an appropriate time for response briefing; and a court order must be obtained.
A. The Petition.
The petition seeking pre-litigation discovery must be “verified,” meaning that it is signed and attested to by the actual party requesting the discovery. See
Ariz. R. Civ. P. 27(a)(1). The verified petition must also be filed in the superior court in the county where the expected adverse party resides. See id.
As to the contents of the petition, the requesting party must establish that it “expects to be a party to an action cognizable in any court within the United States but cannot presently bring it or cause it to be brought[.]” Id.
(a)(1)(A). The petition must further identify the “subject matter of the expected action and the petitioner’s interest” and “show the facts that the petitioner desires to establish by the proposed discovery and the reasons for perpetuating it in advance of the expected action[.]” Id.
(a)(1)(B)–(C).
The petition must then “identify the name or a description of each person whom the petitioner expects to be an adverse party and the person’s address to the extent known” and “identify the name and address of each person from whom discovery is sought — who may but need not be a person identified as an expected adverse party under Rule 27(a)(1)(D) — and the evidence the petitioner expects to obtain from the discovery[.]” Id.
(a)(1)(D)–(E).
Finally, the verified petition must request an order:
“(i) directing the clerk to issue a subpoena under Rule 45 at the petitioner’s request to obtain testimony or other evidence from each named person in order to preserve the testimony or other evidence; (ii) under Rule 35 for a physical or mental examination of an expected adverse party or of a person in the custody or under the legal control of an expected adverse party; or (iii) permitting the petitioner's deposition under Rule 30 to preserve his or her testimony.”
Id.
(a)(1)(F).
B. Additional Requirements.
Unless otherwise ordered by the court, the requesting party must serve the petition and a notice providing the hearing time and date on “each expected adverse party” at least 20 days before the hearing date. See id.
(a)(3). Service may be made by any means appropriate permitted under Arizona Rules 4, 4.1, or 4.2. See id.
Further, any “expected adverse party” may file a response brief up to five days before the hearing date, unless the court orders otherwise. See id.
(a)(4). The petitioner may not file a reply memorandum. Id.
Finally, a hearing on the merits is required unless all of the parties stipulate that the discovery may proceed or the court otherwise orders. See id.
(a)(2).
If the court is satisfied that “perpetuating the testimony or preserving other evidence may prevent a failure or delay of justice,” it will issue an order approving the petition and identifying the specific discovery. Id.
(a)(5). After such order is filed, the petitioning party may then obtain a subpoena to request the discovery or issue a notice of deposition for the party to be deposed. See id.
C. Types of Discovery Allowed. As of January 1, 2017, Arizona Rule 27 allows parties to obtain “discovery” from a potential adverse party or “perpetuate testimony” upon satisfaction of the rule’s requirements. See id.
(a)(1). Discovery includes obtaining documents through a court-issued subpoena while “perpetuate testimony” means taking a deposition. See id.
(a)(5)(A). Under the previous version of the rule — as well as the current version of the corresponding federal rule — only depositions were permitted.
D. Purpose of Arizona Rule 27. Ultimately, a petition to conduct depositions or obtain other discovery in contemplation of an action that is expected, but not yet filed, is one allotted to the trial court’s discretion. See High Sch. Dist. No. 106, Pima Cnty. v. Civil Rights Div., 121 Ariz. 444, 445 (Ct. App. 1979). In general, Arizona Rule 27 is intended only to perpetuate testimony and discovery which, for reasons established to the satisfaction of the court, may not be available when the expected action is brought. It is not properly used as a discovery devise to “discover a cause of action” or even to “frame” the complaint. City of Phx. v. Peterson, 11 Ariz. App. 136, 141 (1969).
II. Federal Rules of Civil Procedure
With respect to Federal Rule of Civil Procedure (“Federal Rule”) 27, the federal counterpart to Arizona Rule 27, only pre-litigation depositions are permitted, not subpoenas. Thus, a party cannot subpoena documents from a potentially adverse party through the federal procedures. Beyond that distinction and a requirement that service of the petition and notice of hearing date be completed 21 days before the hearing (rather than the 20-day requirement in Arizona Rule 27), the standards set forth above are generally the same.
Namely, in order to obtain the right to “perpetuate testimony” before a lawsuit is filed, the requesting party must file a “verified petition” showing:
- that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;
- the subject matter of the expected action and the petitioner’s interest;
- the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
- the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
- the name, address, and expected substance of the testimony of each deponent.
Fed. R. Civ. P. 27(a)(1)(A). Logically, a petition under Federal Rule 27 must be filed before an action is actually filed — it cannot be filed concurrently. See Piper v. Gooding & Co. Inc., 2018 WL 924947, at *2 (D. Ariz. Feb. 15, 2018) (“It should go without saying that a petitioner cannot rely on a provision literally titled ‘Depositions to Perpetuate Testimony ... Before an Action is Filed’ to obtain discovery after an action has been filed.”); Shore v. Acands, Inc., 644 F.2d 386, 388 (5th Cir. 1981) (“The petitioner must show that he presently is unable to bring the action in any court, state or federal, anywhere in the United States.”).
Moreover, in order to file a petition under Federal Rule 27, “it must be shown that in the contemplated action, for which the testimony is being perpetuated, federal jurisdiction would exist and thus is a matter that may be cognizable in the federal courts.” Piper, 2018 WL 924947, at *2 (citation omitted). Thus, if the underlying claim of the proposed action would not be subject to federal court jurisdiction, a Federal Rule 27 petition would be improper. See id.
In general, Federal “Rule 27 applies where testimony or evidence might be lost to a prospective litigant unless a deposition is taken immediately to preserve the testimony for future use.” Id.
(citation omitted). Further, “[i]t is well-established in case law that perpetuation means the perpetuation of known testimony.” Id.
(citation omitted). Thus, to obtain relief under Federal Rule 27(a), a petitioner must satisfy three elements:
First, they must furnish a focused explanation of what they anticipate any testimony would demonstrate. Such testimony cannot be used to discover evidence for the purpose of filing a complaint. Second, they must establish in good faith that they expect to bring an action cognizable in federal court, but are presently unable to bring it or cause it to be brought. Third, petitioners must make an objective showing that without a Rule 27 hearing, known testimony would otherwise be lost, concealed or destroyed.
Id.
at *2–3 (citation omitted); see In Re Certain Investor, 2013 WL 3811807, at *4 (“The Ninth Circuit and many other courts have clearly and repeatedly held that Rule 27 cannot be used as a substitute for discovery to determine whether a cause of action exists or to preserve unknown information that may be helpful in future litigation.”).
III. Conclusion
In summary, obtaining discovery before filing a lawsuit is possible but is limited to the rare circumstances expressly outlined by the applicable rules of civil procedure.