3 F.R.D. 242 | S.D.N.Y. | 1942
Petitioner has applied under Rule 27 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for an order directing the perpetuation of testimony of certain specified individuals and corporations, against all or some of whom he later intends to bring an action.
The opposition to the application is twofold: First, lack of jurisdiction on the part of this court to entertain the application. Second, the purpose for which this application is made is without the purview of Rule 27(a) of the Federal Rules of Civil Procedure.
An examination of the petition and affidavits upon which this application is based, as well as the authorities submitted, leads the court to the conclusion that the application must fail.
Rule 27 provides two alternate methods to perpetuate testimony. The old method — by action to perpetuate testimony under Section 644 of 28 U.S.C.A. (Rule 27(c) — and the new simple method under Rule 27(a). Under the old method, the purpose of such suit was to preserve known testimony against danger of loss. State of Arizona v. State of California, 292 U.S. 341, 347, 348, 54 S.Ct. 735, 78 L.Ed. 1298. It could not be employed to obtain information in • order to frame a complaint. 18 Corpus Juris, p. 609; 26 C.J.S., Depositions, § 5. Rule 27 did not enlarge the scope of the old practice. I find nothing in the language of the rule itself or in the proceedings before the Advisory Committee appointed to draft the new federal rules to indicate that the rule may be used for purposes other than that permitted under the old practice. On the contrary, I find expression that Rule 27 was not intended to permit discovery in 'order to frame the complaint. See Egan v. Moran Towing & Transportation Co., D.C., 26 F.Supp. 621.
I have examined the case cited by the petitioner in his letter and find it inapplicable to the facts at bar. In Re Ernst, D.C.S.D.Cal. 1942, 2 F.R.D. 447.
I am denying the application on the merits and accordingly find no necessity of discussing the objection raised to jurisdiction.