## Facts

- Fred William Roberts was fatally shot by law-enforcement officers in Elmore County, Alabama on November 8, 1996.
- Sheila Roberts Ford, as administratrix of Roberts’s estate, anticipated filing a federal wrongful-death and civil-rights action arising from the shooting.
- Ford asserted she lacked basic information about the incident and did not know which individuals should be named as defendants.
- Ford sought leave under Federal Rule of Civil Procedure 27(a) to take a pre-complaint deposition of Elmore County Sheriff Bill Franklin, described as the commanding officer of the officers involved.
- Ford stated the deposition was needed to establish an accurate account of events before memories faded or were affected by publicity.
- The court required Ford to amend to clarify that the anticipated action would be within federal jurisdiction; Ford amended to identify expected federal constitutional and civil-rights claims.
- After a hearing, the court ruled on whether Rule 27 authorized the requested deposition.

## Issues

1. Whether Rule 27(a) permits a petitioner to take a pre-complaint deposition primarily to learn the basic facts of an incident and identify potential defendants for a contemplated federal civil-rights suit.
2. Whether generalized concerns about fading memories or publicity establish the required showing that testimony is in imminent danger of being lost before a complaint can be filed and ordinary discovery used.

## Decision

- The court denied the Rule 27 petition and refused to authorize the pre-complaint deposition of Sheriff Franklin.
- The court found the request was aimed at obtaining discovery to decide whom to sue and what claims to assert, not at preserving testimony facing a concrete risk of unavailability.
- The court held that Ford did not show Franklin’s testimony was in imminent danger of being lost (e.g., due to illness, departure, or other specific unavailability).
- The court noted that the information sought could be obtained through standard post-complaint discovery procedures if an action were filed.

## Legal Principles

- Rule 27(a) is a limited mechanism to perpetuate testimony that is likely to become unavailable before suit can be filed and normal discovery can proceed.
- Rule 27(a) does not authorize pre-suit discovery to determine whether a cause of action exists, to investigate facts, or to identify proper defendants.
- A petitioner must show a specific, non-speculative risk that the testimony will be lost; generalized concerns that memories may fade or publicity may affect recollection are insufficient.
- Rule 27 cannot be used as a substitute for ordinary discovery under Rules 26–37 once a complaint is filed.

## Conclusion

The court held that Rule 27(a) does not permit a pre-complaint deposition sought to discover facts and identify defendants for a contemplated federal civil-rights action, absent a concrete showing that the testimony is likely to become unavailable before ordinary discovery can be used.


In re Petition of Ford, 170 F.R.D. 504 (M.D. Ala. 1997)