Pre-Action Discovery

When it comes to seeking and obtaining discovery prior to commencement of an action, there may be significant differences between the Federal Rules of Civil Procedure and the procedures in State court, where available. In Federal practice, Rule 27 allows pre-action discovery, but only where the discovery is sought in order to ‛perpetuate testimony regarding [a] matter that may be cognizable“ in Federal court. This ‛perpetuate testimony“ limitation in Rule 27 is subject to different constructions. Courts interpreting the Rule, however, have found that while it permits preservation of known testimony that would otherwise be lost, Rule 27 may not be used as a vehicle for obtaining unknown information prior to filing a complaint. See, e.g., In re Giuseppe, 229 F.R.D. 93, 96 (S.D.N.Y. 2005). So, for example, the use of Rule 27 has been foreclosed in cases where the identity of the proper defendant was unknown to plaintiff absent the pre-action discovery sought. See, e.g., In re Gurnsey, 223 F. Supp. 359, 360 (D.D.C. 1963) (Rule 27 ‛is not a method of discovery to determine whether a cause of action exists; and, if so, against whom [the] action should be instituted.“).

State law may differ. For example, the New York rule (CPLR § 3102(c)) authorizes pre-action discovery ‛to aid in bringing an action“ upon order of the court in a special proceeding commenced for that purpose. Before a pre-action discovery order will issue, the New York courts generally require that the party seeking the discovery demonstrate both the existence of a meritorious cause of action and that the discovery sought is material and necessary to the actionable wrong. See, e.g., In re Application of Wien & Malkin LLP, 225 A.D.2d 244, 680 N.Y.S.2d 250 (1st Dept. 1998). So, while CPLR § 3102(c) cannot be used to determine whether a cause of action in fact exists, it can be used as an effective tool to uncover ‛material and necessary“ information before the filing of a complaint. This includes, for example, pre-action discovery to uncover the identity of the proper defendant. See, e.g., Public Relations Soc. of Am., 8 Misc.3d 820, 822, 799 N.Y.S.2d 847, 850 (Sup. Ct. N.Y. Co. 2005) (granting pre-action disclosure of identity of anonymous sender of defamatory email).

Doug Pepe

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