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USDC: CIVIL PROCEEDURE - Rule 27 requirements: named parties, known claim, case or controversy

1The Court has also received an affidavit from Gregory M. Weyandt of Dorsey &
Whitney LLP. Dorsey & Whitney represents URS Corporation, which likely will be a defendant
in litigation arising out of the bridge collapse. URS asks that, if the Schwebel firms petition is
granted, its attorneys and experts also be permitted to inspect the site. URS has not, though,
filed a formal petition under Rule 27.
- 1 -
Case No. 07-CV-3680 (PJS/JJG)
James R. Schwebel, Richard J. Nygaard, and James S. Ballentine, SCHWEBEL, GOETZ
& SIEBEN, P.A., for petitioners.
Rachel K. Paulose, UNITED STATES ATTORNEY, and D. Gerald Wilhelm, Assistant
United States Attorney, for respondent United States of America.
Donald J. Mueting and Steven M. Gunn, OFFICE OF THE ATTORNEY GENERAL, for
respondent State of Minnesota.
Jay M. Heffern, CITY ATTORNEY, and James A. Moore, Assistant City Attorney, for
respondent City of Minneapolis.
The Minnesota law firm of Schwebel, Goetz & Sieben, P.A. (the Schwebel firm) has
filed a motion styled FRCP 27, 34 & 45 Petition for Permission to Perform I-35W Bridge
Collapse Site Inspection (Petition). The Petition was filed approximately 48 hours ago. The
United States, the State of Minnesota, and the City of Minneapolis all filed responses to the
petition this morning.1 A hearing on the motion was held earlier this afternoon.
2The respondents assert that the site of the bridge collapse is presently under the
exclusive jurisdiction of the National Transportation Safety Board (NTSB), and that any state
or city officials at the site are working under the direction and control of the NTSB.
- 2 -
The Schwebel firm has been hired by three of the people injured and by the families of
two of the people killed when the I-35W bridge near downtown Minneapolis collapsed on
August 1, 2007. Petition 3. The Schwebel firm asks this Court to order the federal, state, and
local authorities who now control the site of the bridge collapse2 to permit three attorneys from
the firm, as well as two experts hired by the firm, to immediately inspect the remains of the
bridge. Petition 7-9. The Schwebel firm asserts that, because the bridge is about to be
dismantled, an immediate inspection of the bridge will be essential to vigorously representing
the interests of the . . . clients who employed [the] firm to prosecut[e] wrongful death and
personal injury claims on their behalf. Petition 3, 5. The respondents oppose the Schwebel
firms petition for various reasons.
The request of the Schwebel firm is highly unusual. The Schwebel firm has not cited
and the Court has not found any case in which a federal court has done what the Schwebel
firm asks this Court to do: order the government to permit private attorneys and their agents to
inspect the site of a mass disaster while recovery efforts are still ongoing.
The absence of authority is not surprising. Federal courts have considerable power, but
they must exercise that power in connection with litigation in connection with what the
United States Constitution describes as Cases and Controversies. U.S. Const. art. III, 2,
cl. 1. In general, a Case or Controversy does not arise until a plaintiff files a lawsuit against
a defendant, accusing the defendant of violating the plaintiffs legal rights, and seeking some
type of relief from the defendant. Cf. Lance v. Coffman, 127 S. Ct. 1194, 1196 (2007) (per
3Rule 34 authorizes such an order to be entered only against a party to a lawsuit. But it
seems clear that Rule 27 authorizes such an order to be entered against both parties and nonparties
to anticipated litigation. See 9A Charles Alan Wright & Arthur R. Miller, Federal
- 3 -
curiam) (Article III of the Constitution limits the jurisdiction of federal courts to Cases and
Controversies. One component of the case-or-controversy requirement is standing, which
requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and
redressability.) The collapse of the I-35W bridge involves tragedy and heroism and
controversy, but, to date, it does not involve an actual lawsuit.
That said, Rule 27 of the Federal Rules of Civil Procedure authorizes a federal court to
permit someone who anticipates that he or she will be a party to a lawsuit to take discovery prior
to the filing of the anticipated action. The respondents argue that Rule 27 would only permit the
Schwebel firm to take the deposition of a witness, not to inspect the site of a disaster. It is true
that Rule 27 is entitled Depositions Before Action or Pending Appeal (emphasis added), and
that the rule speaks almost solely in terms of preserving testimony by taking the depositions
of witnesses. It is also true that the rule is most often used to take sworn statements from
witnesses who have information relevant to an anticipated lawsuit but who might die or
disappear before the lawsuit can be filed.
But Rule 27(a)(3) was amended in 1948 to make clear that the rule also gives a court the
authority to make orders of the character provided for by Rules 34 and 35. See Fed. R. Civ. P.
27 advisory committee notes. Rule 34(a)(2), in turn, authorizes a court to order a party to
permit entry upon designated land or other property . . . for the purpose of inspection and
measuring, surveying, photographing, testing, or sampling the property or any designated object
or operation thereon.3 In theory, then, this Court does have authority to issue the type of order
Practice and Procedure 2456, at 29 (2d ed. 1995) (A subpoena duces tecum also may issue
pursuant to a court order without the commencement of an action for the perpetuation of
testimony under Rule 27.).
- 4 -
sought by the Schwebel firm. The Court will nevertheless deny the Schwebel firms petition for
both procedural and substantive reasons. See In re Bay City Middlegrounds Landfill Site, 171
F.3d 1044, 1046 (6th Cir. 1999) (explaining that a Rule 27 petition must meet both the
procedural requirements of Rule 27(a)(1) and the substantive standard set forth in Rule
A. Procedural Infirmities
A litigant seeking an order under Rule 27 must meet the procedural requirements set
forth in the rule. The Schwebel firm has met almost none of them. Among the most serious
problems with the Schwebel firms petition are the following:
1. A Rule 27 petition must be entitled in the name of the petitioner and show that the
petitioner expects to be a party to an action. In other words, the petition must be filed by
someone who expects to be a party to a lawsuit, and the petition must identify that prospective
party. See 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure 2072, at 657 (2d ed. 1994) (The allegation that the petitioner expects to be a party
to an action must be unequivocal, and there must be factual showing sufficient to support an
expectation of action. (footnote omitted)). The Schwebel firm has not identified any of those
whom it represents and who are likely to be parties to the lawsuits that it anticipates filing. (It
should be noted, though, that at oral argument the Schwebel firm offered to identify its clients to
the Court in camera.)
- 5 -
2. A Rule 27 petition must show that the petitioner expects to be a party to an action
cognizable in a court of the United States. In other words, it is not sufficient that the petition
identify the prospective party and explain why the party expects to be a party to a lawsuit. The
petition must also show that the anticipated lawsuit will be within the jurisdiction of the federal
courts. See Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979) (There
need not be an independent basis of federal jurisdiction in a proceeding to perpetuate, but it must
be shown that in the contemplated action, for which the testimony is being perpetuated, federal
jurisdiction would exist and thus is a matter that may be cognizable in the federal courts.). The
Schwebel firms petition makes no such showing. At oral argument, the Schwebel firm admitted
that, at this point, it simply does not know whether a federal court will have jurisdiction over any
lawsuits that it files.
3. A Rule 27 petition must show that the petitioner is presently unable to bring . . . or
cause . . . to be brought the anticipated federal action. In other words, [the] petitioner must
show why it is not presently possible to bring an action, which would make ordinary discovery
measures available. 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure 2072, at 658 (2d ed. 1994). The Schwebel firm does not explain in its
petition why it is presently unable to bring any lawsuit on behalf of any client.
This is important. Rule 27 does not provide a method of discovery to determine
whether a cause of action exists; and, if so, against whom action should be instituted. In re
Gurnsey, 223 F. Supp. 359, 360 (D.D.C. 1963). Courts generally agree that to allow Rule 27 to
be used for the purpose of discovery before an action is commenced to enable a person to fish for
some ground for bringing suit would be an abuse of the rule. In re Landry-Bell, 232 F.R.D.
- 6 -
266, 267 (W.D. La. 2005) (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure 2071, at 652 (2d ed. 1994)); see also In re Deiulemar
Compagnia Di Navigazione S.p.A. v. M/V Allegra, 198 F.3d 473, 485 (4th Cir. 1999) (Rule 27
is not a substitute for broad discovery, nor is it designed as a means of ascertaining facts for
drafting a complaint. (citations omitted)). In other words, the Schwebel firm must provide an
explanation for why it cannot presently bring any lawsuit on behalf of any client, and its
explanation cannot be that it has not yet learned enough about the case to be able to file specific
claims against specific defendants consistent with its obligations under Rule 11. See In re Ford,
170 F.R.D. 504, 508 (M.D. Ala. 1997) (Rule 27 is not a vehicle for compliance with Rule 11.
As stated, the language in Rule 27 is clear that the rule authorizes the perpetuation of evidence,
not the discovery or uncovering of it.); In re Sitter, 167 F.R.D. 80, 82 (D. Minn. 1996)
([W]ithout significant exception, the relevant case law does not allow the deployment of Rule
27 so as to conduct pre-Complaint discovery.)
The Schwebel firm has not provided a sufficient explanation. At oral argument, the
Schwebel firm candidly admitted that the reason that it cannot now file a lawsuit is that it does
not yet know enough about the bridge collapse to know whom it should sue and what allegations
it should make. As just explained, Rule 27 does not authorize an order under these
4. A Rule 27 petition must provide the names or a description of the persons the
petitioner expects will be adverse parties and their addresses so far as known. The Schwebel
firm has not identified a single person or entity whom it expects to sue.
- 7 -
5. A court must hold a hearing on a Rule 27 petition, and the petitioner must serve each
expected adverse party with a copy of the petition and a notice stating the time and place of the
hearing at least 20 days in advance of the hearing date. Given the exigent circumstances, this
Court would be sympathetic to a request to modify this requirement. But the Schwebel firm has
not identified a single expected adverse party nor given any notice of the hearing on its
Rule 27 petition to expected adverse parties (unless the Schwebel firm plans to sue the federal
government, the State of Minnesota, and the City of Minneapolis, each of which was provided
with a copy of its Rule 27 petition).
Obviously, then, the petition filed by the Schwebel firm falls far short of what Rule 27
requires. That is reason enough to deny it.
B. Substantive Concerns
Even if the Schwebel firm had met all of the procedural requirements of Rule 27, the
Court would nevertheless deny its petition. A court is required to enter an order under Rule 27
only when the court is satisfied that the perpetuation of the [evidence] may prevent a failure or
delay of justice. Fed. R. Civ. P. 27(a)(3). On the present record, the Court cannot find that the
order sought by the Schwebel firm is necessary to prevent an injustice.
First, the Schwebel firm has not suggested what evidence it would perpetuate that is
unlikely to be perpetuated by government investigators. Media reports suggest that the
government is being painstakingly thorough in investigating the cause of the collapse of the
I-35W bridge, even to the point of transporting the pieces of the bridge on barges down the
Mississippi River to be reassembled. See What Went Wrong? NTSB Begins Probe of Bridge
Collapse, CNN.com, Aug. 2, 2007, http://www.cnn.com/2007/US/08/02/bridge.safety.ap/ (The
- 8 -
first step of the federal investigation into Wednesdays deadly bridge collapse in Minnesota will
be to recover pieces of the bridge and reassemble them, kind of like a jigsaw puzzle, to try to
determine what happened, NTSB Chairman Mark Rosenker said Thursday.) It is difficult to
believe that a walk-through of the site by three lawyers and two expert witnesses is likely to
discover evidence that will not be discovered by what will undoubtedly be a lengthy and
exhaustive investigation by the government. The Court has been given no reason to believe that,
as compared to the Schwebel firm, the government is any less motivated to determine or any
less capable of determining what caused the bridge to collapse.
Second, the Court is concerned about the impact that granting the Schwebel firms
petition would have on recovery efforts at the site. The I-35W bridge collapse is, to put it
mildly, of intense interest to the local bar. See Chris Serres & Matt McKinney, Question of
Liability Rises, Star Tribune (Mpls.-St. Paul, Minn.), Aug. 3, 2007,
http://www.startribune.com/535/story/ 1343465.html. (Omar Jamal of the Somali Justice
Advocacy Center in Minneapolis said he has received at least a dozen telephone calls from law
firms, most of them local, since it became public knowledge [the previous day] that a pregnant
Somali woman, Sadiya Sahal, and her 2-year-old daughter, Hanah Mohamed, were among those
missing after the collapse.) Those who are contemplating suing and those who are
contemplating being sued undoubtedly number in the hundreds. If this Court were to allow
the Schwebel firm to inspect the site, this Court would also have to permit other lawyers and
their experts and investigators to do the same.
This the Court will not do. The government has an urgent interest in recovering the
bodies of the victims, clearing the site of unstable and dangerous wreckage, reopening the
- 9 -
Mississippi River to commerce, and beginning the rebuilding of the bridge as soon as possible.
These challenges are daunting enough without this Court turning loose dozens of lawyers, expert
witnesses, and investigators on the site. The desire of the Schwebel firm to aggressively protect
its clients interests is understandable. But with little chance that the firm will find evidence that
will be missed by the government, and a substantial chance that opening up the site to inspection
by private law firms will interfere with ongoing recovery efforts, this Court would not issue the
order sought by the Schwebel firm even if the firm had complied with all of the requirements of
Rule 27.
The Schwebel firm is not without a remedy. As noted, the bridge-collapse site is under
the control of the NTSB. Under 49 C.F.R. 831.12 entitled Access to and release of
wreckage, records, mail, and cargo the NTSBs investigator-in-charge may permit the
Schwebel firm (or anyone else) to have access to wreckage, records, mail, or cargo in the
Boards custody. The Schwebel firm can ask the investigator-in-charge for access to the site,
and, if the investigator-in-charge refuses, seek administrative or judicial review of that decision
to the extent provided by law.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT the FRCP 27, 34 & 45 Petition for Permission to Perform I-35W
Bridge Collapse Site Inspection [Docket No. 1] is DENIED.
- 10 -
Because this action was filed for the sole the purpose of filing the petition, and because
the petition has been denied, the motion of the United States to dismiss [Docket No. 8] is
GRANTED, and this action is DISMISSED.
Dated: August 15 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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