Workman v. US Postal Service.
No. 24-2033. 1/28/2025. D.N.M. Judge Hartz. Fed. R. Civ. P. 27—Requirements for Perpetuating Testimony—Inability to Bring Lawsuit—Risk of Losing Testimony—Avoidance of Unnecessary Litigation.
January 28, 2025
Workman leased a building to the US Postal Service (USPS) that was destroyed in a fire. Workman filed a petition, and later an amended verified petition, under Fed. R. Civ. P. 27 to take five pre-suit depositions of three USPS employees before deciding whether to sue USPS. The court found that Workman failed to make either of the necessary showings—an inability to bring a lawsuit or a risk of losing testimony—and it denied the petition.
On appeal, Workman challenged the denial of his petition, arguing that Rule 27(a) does not set forth any meaningful standards. However, the Tenth Circuit determined that Rule 27 is clear on its face, and the federal courts of appeal have consistently applied the rule. A district court may authorize a pre-suit deposition to perpetuate testimony that could be lost unless taken immediately, subject to showing the five elements required by Rule 27(a)(1). As relevant here, the district court denied Workman’s petition because he failed to make the required showings under that rule that he was (1) unable to bring a lawsuit and (2) risked losing testimony. As to the first showing, Rule 27(a)(1)(E) requires that the petition show the “expected substance of the testimony of each deponent,” which clearly indicates that the rule is not designed for discovering grounds for bringing a complaint but only for perpetuating testimony that is already known. Here, Workman’s petitions assert that he cannot bring suit at this time because he cannot otherwise complete his ongoing investigation into the fire’s cause, the responsible parties, and how USPS operated his building. This assertion fails to establish a present inability to file suit as required by Rule 27 and instead indicates that Workman seeks to use pre-lawsuit depositions to fill gaps in potential claims against potential defendants, which is disallowed by Rule 27. As to the second requirement, relevant precedent construes Rule 27 to allow for perpetuating only testimony that is at risk of becoming unavailable. Workman’s allegations fail to show that he cannot secure testimony or evidence without Rule 27 relief. Accordingly, the district court did not abuse its discretion in denying Workman’s Rule 27 petition.
Lastly, Workman asserted that his petition should be granted to avoid “unnecessary litigation,” in that denial of his petition will lead to burdensome discovery and potential interlocutory appeals. However, Rule 27 cannot be used as a tool to avoid litigation; rather, it contemplates litigation. And Workman did not explain how proceeding under Rule 27 would foreclose argument regarding the conduct or admissibility of a deposition that the government could otherwise make now or in future litigation.
The order denying the petition was affirmed.