TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 27, N.D.R.Civ.P., Depositions Before Action or Pending Appeal
Staff recently received a letter and article from University of Houston Law Professor Lonny Hoffman. Prof. Hoffman is encouraging jurisdictions nationwide to consider expanding access to discovery prior to the commencement of an action.
Texas has long had rules allowing parties to obtain pre-suit discovery. In 1999, Texas consolidated these rules in Tex.R.Civ.P. 202. A copy of the rule is attached. Prof. Hoffman started collecting data in 2005 to determine the impact of the consolidated rule. As he points out in his letter, which is attached, the data indicated that pre-suit discovery is widely used in Texas. Prof. Hoffman suggests that, based on the data he obtained about use of the Texas rule, other states should at least discuss expanding access to pre-suit discovery.
North Dakota allows limited use of pre-suit discovery under Rule 27, which is based on Fed.R.Civ.P. 27. By filing a verified petition, a person seeking to "perpetuate testimony regarding any matter" may obtain court permission to conduct pre-suit discovery. In Harmon v. Mercy Hospital, 460 N.W.2d 404 (ND 1990), the Supreme Court adopted the narrow federal interpretation of the rule, holding that a person cannot take advantage of Rule 27 to obtain facts on which to base a complaint absent a "showing of substantial danger of loss of the evidence."
Justice Meschke, however, dissented from the Harmon majority opinion, and raised arguments in favor of broader pre-suit discovery similar to those cited by Prof. Hoffman. In particular, Justice Meschke noted that, because Rule 11 imposes substantial sanctions for pleadings not well grounded in fact and law, allowing pre-suit investigation is reasonable to assure compliance with this standard. Harmon, 460 N.W. 2d at 410 (Meschke, J., dissenting).
Staff has prepared two Rule 27 proposals for the Committee's discussion. One retains the existing North Dakota procedure, adding authorization for pre-suit discovery to "to investigate a potential claim or suit." The alternate draft incorporates the entire Texas pre-suit discovery procedure, which contains more detailed provisions on notice and allowable procedures. These proposals are attached.