In Workman v. United States Postal Service, No. 24-2033 (10th Cir. Jan. 28, 2025), the Tenth Circuit addresses matters of first impression in the circuit under Fed. R. Civ. P. 27, affirming the district court’s denial of leave for a party to take pre-suit depositions. It holds that (1) Rule 27 does not authorize the taking of pre-suit discovery, and (2) the need to perpetuate testimony must be established by proof of an immediate risk that it will otherwise be lost.
Rule 27 provides that a petitioner may seek the court’s leave to take pre-suit depositions. Authorization requires a petition showing: “(A) 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; (B) the subject matter of the expected action and the petitioner’s interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent.” Fed. R. Civ. P. 27(a)(1).
In the present matter, “[a] fire destroyed the Chimayo post office in northern New Mexico. The building had been leased by petitioner Thomas Workman to the United States Postal Service (USPS) . . . . Mr. Workman filed a filed a verified petition [in federal district court] under Rule 27(a) to take pre-suit depositions of three USPS employees (Jasmine Martinez, Rufina ‘Perla’ Sanchez, and Yvonne Thompson, hereinafter the Appellees); one USPS contractor; and the Fire Marshal of Santa Fe County.”
The Rule 27 petition averred that “Mr. Workman wanted to bring contract and tort claims against USPS but could not ‘presently’ bring these claims because of his ‘incomplete’ and ‘ongoing investigation into the cause and origination of the fire; those who may be responsible parties for the fire and consequent damage; and the manner in which USPS operated the facility.” The district court denied it because it “failed to make either of two necessary showings: an inability to bring a lawsuit and a risk of losing testimony.”
The Tenth Circuit affirms. The panel notes that “[t]he parties have not directed us to any Tenth Circuit precedent relevant to the Rule 27(a) issues before us, nor are we aware of any.” Nevertheless, “[m]uch is clear from the face of Rule 27, and the federal courts of appeal have been consistent in their applications of the rule.”
Rule 27(a) “was designed to ‘offer[] a simple method of perpetuating testimony [and preserving other evidence] where it is usually allowed under equity practice or under modern statutes.’” It is allowed only in the face of a true inability to bring an action when the petition is filed. “Of course, one might consider the lack of evidence to sustain a claim as creating an inability to file suit. But that is emphatically not a reason on which a Rule 27 petition can be based.” The panel cites various civil procedure treatises contemporaneous to the adoption of Rule 27 (in 1938) in support of this limited purpose.
“It is therefore clear that Mr. Workman’s petitions miss the mark. The petitions assert that Mr. Workman cannot bring suit at this time because he cannot otherwise complete his ongoing investigation into the cause of the fire, responsible parties, and the way USPS operated his building. As explained above, this assertion does not establish a present inability to file suit as required by Rule 27. Instead, it shows a potential litigant eager to use pre-lawsuit depositions to fill gaps in potential claims against potential defendants—a reason disallowed by Rule 27.”
The petitioner alternatively argued the risk of lost testimony, but the panel finds that the record too general and conclusory to support Rule 27 relief. “Specific allegations suggesting a witness is ‘aged or seriously ill, might flee, or who may become unavailable by reason of relocation or other geographic constraints before a suit can be filed’ typically suffice” under Rule 27. Here, though, the petitioner leaned on general risk of faded memories and possible loss of documentation. Yet “the passage of time does not, by itself, establish a sufficient risk that oral testimony will be lost if not taken immediately.”