The old adage that the early bird catches the worm is as true in litigation as it is in ornithology. The sooner that important evidence can be evaluated and preserved, the better the chances for a successful outcome.

Applying this adage to litigation, would be plaintiffs may consider filing a lawsuit, and then seeking accelerated discovery to determine whether the underlying claim has merit, or not. Such an approach may have some pitfalls, including ethical and the remote possibility that the defendant may not readily consent to a dismissal for filing what turns out to be a frivolous lawsuit.

Some state courts allow for limited pre‐suit discovery but the criteria and requirements are not always consistent. The Federal Rules of Civil Procedure, however, provide a uniform standard when pre‐action "discovery" can be obtained. Strictly speaking the relief sought is not discovery, as the rule is utilized to preserve evidence. Federal Rule 27, titled "Depositions to Perpetuate Testimony" permits the preservation of testimony, physical evidence, and documents that are not likely to be available at a later time. However, the decisions interpreting the rule have permitted the petitioner to demand production of documents and gain access to physical property for purposes of inspection by a party's experts. A dying witness or a product or part which is leaving the United States, deteriorating, or changing for any reason, are examples where Rule 27 relief may be invoked.

Rule 27 can also be utilized when witnesses are temporarily in the United States but reside in countries beyond the court's subpoena power, such as in maritime cases and other matters having international overtones. See, Deiulemar Compagnia di Navigazione SpA v M/V Allegra, 198 F.3d 473 (4th Cir. 1999); cert.den., 529 U.S. 1109 (2000) where the court allowed depositions, as well as access to documentary and physical evidence. Rule 27 relief is available to potential plaintiffs and defendants.

In order to qualify for Rule 27 relief, a lawsuit must be able to be filed in a U.S. court. If the matter cannot be heard in a U.S. court, Rule 27 is not available. Where the matter is to be heard in a foreign tribunal, including arbitrations, and witnesses and/or evidence is within the United States, 28 U.S. § 1782 can be invoked in support of an application to allow for depositions that are to be utilized before foreign or international tribunals. Intel Corp. v Advanced Micro Devices, 542 U.S. 241 (2004).

So before filing a lawsuit to obtain discovery, consider Rule 27 if evidence needs to be preserved and suit can be brought in the United States and 28 U.S.C.§ 1782 when the proceeding needs to be brought in a foreign tribunal.

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