Perpetuating Testimony

One thing about the MBE: If there is an exception that occurs rarely it's likely to be tested.

Generally to conduct discovery (for example, depositions) a suit must already have been filed. The federal rules recognize only one exception to this general rule. A person may seek a court order to perpetuate testimony about a matter in federal court even before suit has been filed but only if a verified petition is filed showing the subject matter of the expected action and the petitioner's interest. The petition also must state that the petitioner expects to be a party in a federal court action but cannot presently bring the action or cause it to be brought. Further, petitioner must include the facts that petitioner wants to establish by the proposed testimony and the reasons to perpetuate it. Finally, included must be the names or a description of the persons whom petitioner expects to be adverse witnesses and their addresses (if known) as well as the the names, addresses, and expected substance of testimony of any deponent.

Because allowing the petitioner to perpetuate testimony before suit has been filed is an exception to the rule, it's important to understand the limits. It'll be allowable only where a delay in discovery is likely to result in loss of evidence. An example might be if a party to the lawsuit is very ill or is planning to leave the country or if there is evidence that a party might later destroy or conceal evidence.

As always, know the general rule, but also note that the writers of the MBE prefer to test the exceptions.