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The art and science of presuit discovery: whether you are evaluating a case, identifying unknown parties within a tight time frame, or preserving evidence, detailed presuit discovery can be key to your success.

Article Excerpt
A person suffering an unexpected injury after medical treatment calls you. Your first step is to obtain a complete set of medical records and have them reviewed by a trained consultant. You also need to determine the health care provider's employment status. But the medical records may be incomplete, personnel files may be missing, or identities of the potential parties may be unknown. And you may be unable to determine which doctors or nurses participated in treatment because of illegible handwriting or incomplete records produced or created.

Or imagine that you may have a potential products liability or complex construction accident case, where the identity of a defendant's employees and internal records are vital to support a cause of action against a number of potential parties. But couple those potential parties, whose identification may require a time-consuming investigation, with a tight statute of limitations. And then consider the topic of witnesses: You might have their names, but due to their ages, illnesses, or imminent plans to leave the jurisdiction, you must take their depositions quickly to preserve evidence.

Presuit discovery can be invaluable, especially when you cannot obtain adequate information to properly investigate a potential case or when you need to preserve evidence and secure witness testimony quickly. Most presuit fact-gathering can be performed without court intervention.

Because states differ on the scope of presuit discovery, the type you seek will depend on the case, the information needed, and the jurisdiction in which you are practicing. Requests for presuit discovery can include document production, inspections, depositions, and examinations.

Most courts prefer that a lawsuit be filed before discovery commences, but a growing number recognize that filing first may not be a judicious use of time. Although the scope of presuit discovery is limited in most jurisdictions, courts are likely to move toward allowing and encouraging more of it. Through presuit discovery, you can uncover additional facts to frame a complaint and perpetuate testimony, eliminating situations where plaintiffs are unable to evaluate or bring a case to court became they lack sufficient information.

Broader presuit discovery also benefits defendants and the court. Access to complete information before filing ensures that proper defendants are named and can lead to early resolution, avoiding the expense of prolonged litigation.

Restrictive presuit discovery

Under Federal Rule of Civil Procedure 27, a plaintiff may file a petition to preserve evidence before a lawsuit is filed. To comply with Rule 27 (a) (1), the petition must contain

* a statement that the petitioner expects that he or she will be a party to an action cognizable in a U.S. court but that cannot presently be brought

* a description of the subject matter of the expected action and the petitioner's interest

* the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it

* the names or descriptions of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known

* the name, address, and expected substance of the testimony to be given by each deponent.

Rule 27 (2) governs notice and service of presuit discovery. Rule 27(3) requires lawyers to designate or describe the person whose deposition may be taken and to specify the potential subject matter of the examination. A court will then determine whether the deposition should be oral or written. Rule 27 offers a simple method of preserving testimony in cases where it would be allowed either in equity or under a state statute.

Despite the seemingly broad language of Rule 27, requests to preserve testimony are not liberally granted. Rather, federal courts have narrowly construed the scope of presuit discovery, limiting its use "to perpetuate important 'known testimony' that might...

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