Power to order the taking a deposition is clearly conferred under Fed. R. Civ. P. 27, which provides a simple method of perpetuating testimony in cases where it is usually allowed under equity practice or under modern statutes. Abuse of the rule by potential plaintiffs, who might try to use it as a means of discovery to enable them to draw a complaint seems to be avoided by the requirement of Rule 27 that the party seeking the deposition be unable to bring the suit or cause it to be brought.
In anticipation of claims that were going to be filed against them by the appellants, Reynolds Metals Corporation, the appellee, has filed a “Petition to Perpetuate Evidence”, purporting to act under Rules 27 and 34, F.R.Civ.P.. According to the petition, the appellee is a Delaware Corporation that operates an aluminum reduction plant near Troutdale, Oregon and the appellants are citizens of Oregon who own a property near the appellee’s reduction plant, to which they were raising cattle. Appellants claimed that, since 1955, fluorides emanating from the Reynolds' plant have been discharged on their lands and into the water thereon and their cattle have been injured by eating vegetation and drinking water contaminated by the fluorides, thereby causing them damage amounting to $500,000. The appellee alleged that it did not damage the appellants and that this claim will be proven by certain information that can only be acquired from examining the appellants’ lands and cattle, and thus, they have asked permission from the appellant to enter their lands, to which the appellants disagreed to. The district court issued an order permitting appellee to take pre-litigation discovery (i.e. deposition of the appellant and permission to enter the appellants’ property in order to do an examination of the land and the cattle) from appellants. The appellants filed their objections to the order asserting that the district court has no power to issue an order allowing the deposition of the appellants and consequently, the appellee’s entry into their land.
Does the court have the power to issue an order permitting the appellee to take pre-litigation discovery from the appellant - that is, the deposition of the appellants and the inspection and examination of appellants’ property?
The court held that the district court had the power to issue the order pursuant to Fed. R. Civ. P. 27, which provided for perpetuation of testimony. The court vacated the part of the order permitting the taking of appellant's deposition and remanded for the district court to specify the subject matter of examination, as required by Rule 27. The rest of the order, which called for inspection and examination of appellant's property, including the cattle, was affirmed. The court found that appellee's discovery request was narrowly limited and related to the discovery of evidence that would otherwise have been made unavailable due to appellant's actions. The court held that Rule 27 allowed for inspection pursuant to Rule 34, without the requirement that a deposition be taken. The court also held that the inspection included taking samples from soil and water and testing appellant's cattle.