ARGUMENT AND CITATIONS OF AUTHORITY
BGN8110
Perpetuation of Witness Testimony
Rule 27 allows an individual to “perpetuate testimony regarding any matter that may be cognizable in a United States court.” Fed. R. Civ. P. 27a provides that a person seeking to perpetuate testimony files a verified petition where the expected adverse party resides stating:
that the petitioner expects to be a party to an action cognizable in a United States court but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner’s interest, (3) the facts to be established by the proposed testimony and the reasons to perpetuate it, (4) the names or a description of the persons expected to be adverse parties and their addresses so far as known; and (5) the names and addresses of the persons to be examined and the substance of the testimony expected to be brought forth.
The purpose of Rule 27 is to permit an individual to depose a witness’s testimony in regards to an action in which the individual is presently unable to file, but the witness’s testimony could be lost without the deposition. The appellant’s request is permissible within the protections provided by Rule 27, and the facts presented to the District Court should have granted Government Watch house’s (GWH) request to such coverage.
The trial court erred by incorrectly defining the Respondent’s deployment to Syria, a war-ridden country, as imminent danger of losing Respondent’s testimony, which would have satisfied the reason to perpetuate testimony.
A court may only grant a pre-complaint deposition if the deponent’s testimony is in imminent danger of being lost. Penn Mut. Life Ins. Co. v. United States, 68 F.3d 1371 (D.C. Cir. 1995) In the preceding case, the petitioners sought to depose testimony from two IRS employees. The petitioners alleged that the Rule 27(a) application was appropriate because “with the passage of time, [the witnesses’] ability to recall relevant facts and testify completely as to these matters may be impaired.” The court ordered an investigation of the IRS employees due to his age of eighty-one. In the court’s opinion, “the age of a proposed deponent may be relevant in determining whether there is sufficient reason to perpetuate testimony. Advanced age certainly carries an increased risk that the witness will be unavailable by the time of trial. Th preceding is demonstrated in the case of Texaco, Inc. v. Borda, 383 F.2d 607, 609 (3d Cir. 1967)” Id.
The Respondent will likely argue that someone who may lose ability to recall specific facts is “such a general allegation is not sufficient to satisfy Rule 27’s requirement that a petitioner demonstrate an immediate need to perpetuate testimony.” Id at 1375. Ash v. Cort. 512 F.2d 909, 912 (3rd Cir 1975) advances the proposition that a petitioner must establish a danger that testimony may be “lost unless a deposition is immediately taken.”
The Respondent in this case will be in imminent danger during her deployment to Syria. Syria is stricken with mass violence due to conflict in the country, hence Esther Hassan’s deployment as a military official.
Further, a Senate bill was passed in 2017whose objective was “To declare the sense of the Council that the Office of the President of the United States and the United States Congress should act immediately to extend Temporary Protected Status to foreign nationals whose countries are affected by ongoing armed conflicts, environmental disasters, and extraordinary life-threating conditions.”
Although the Respondent is neither aged seventy-four, or even eighty -one, her deployment to Syria constitutes “extraordinary circumstances” since there is a heightened possibility, she could not return Id.
Notwithstanding the request for perpetuation to testimony was denied in the next case, it again supports the necessity of our Respondent’s testimony and asserts our claim to perpetuate.
Even if petitioner had been able to establish the prerequisites in Fed. R. Civ. P. 27(a)(1), he failed to allege or show that there was a risk of loss of the desired testimony due to the illness, death, or other unavailability of the Secretary, the Commissioner, or the appeals officers at the time petitioner filed his suit. Instead, petitioner predicated his request on his interest in assessing the viability of various causes of action in advance of filing a complaint. Biddulph v. United States, 239 F.R.D. 291 (D.D.C. 2007).
Here, the court found that there was not a risk of loss of the desired testimony due to illness, death, or other unavailability Id. In the case of our appellant, there is a higher likelihood of illness, death or unavailability due to her deployment. It cannot be a reasonable expectation of the courts to assume that Hassan’s deployment is not a significantly dangerous expedition.
“The common situation in which a Rule 27 deposition is appropriate is where there is a risk that a witness will be unavailable at the time of trial, either because of age or infirmity. Penn. Mut., 68 F.3d at 1374; In re Petition of Banks, 1993 U.S. Dist.17109, No. 93- C-6914, 1993 WL 502379 (N.D. Ill. Dec. 6, 1993) (“Most petitions to perpetuate testimony have been granted when a witness is aged or gravely injured an in danger [of] dying.”) This was also held in the case of
In conclusion, the reversal of the court’s decision is necessary to prevent the delay of justice. is going to war, and while unfortunate, it is a necessary element to consider when deposing a Respondent.
The ruling of the lower court must be reversed due to the uniqueness of the Respondent’s testimony that is vital to understand the decision to deny the Appellant’s FOIA request
“Under Fed. R. Civ. P. 27(a)(3), the court may grant an order to take the deposition if it is satisfied that a failure or a delay of justice may thereby be prevented. What circumstances show a possible failure or delay of justice sufficient to call for the issuance of an order is obviously a matter for the sound discretion of the district court.” De Wagenknecht v. Stinnes, 102 U.S. App. D.C. 89, 250 F.2d 414 (1957).
In De Wagenknecht, the district court ruled in favor for the perpetuation of testimony due to Mrs. Stinnes seeking to “perpetuate the testimony of a person who had knowledge of certain events and transactions, many of which took place years ago. There can be no certainty that this testimony with still be there when the controversy is ready for litigation since the witness is at present seventy-four years of age.” Id.
The Trial Court erred in denying the perpetuation of testimony of the
appellee, due to incorrectly applying Federal Rule 27 and classifying the
appellee’s testimony as an attempt to substitute for discovery. There is an
obvious distinction between discovery and known testimony, and the
request should not be compared to a “fishing expedition”.
A petition filed under Rule 27 “may not be used as a substitute for discovery.'”) Checkosky, 142 F.R.D. 7 cited in Kunimoto v. Lehman (In re Kunimoto), Civil Action No. 96ms232 (AER), 1996 U.S. Dist. (Oct. 16, 1996). In Re Checkosky, 142 F.R.D. 4 (1992), The accountants were the subject of an ongoing SEC probe and, after an item was published concerning the proceedings, sought to take depositions pursuant to Fed. R. Civ. P. 27. The court ruled as follows:
” Here, petitioners’ much more generalized concerns about the passage of time, the fading of memories, and the destruction of documents are adequately met by the SEC’s representation that a decision will be rendered within six months. The sheer number of potential witnesses to the same events drastically reduces the risk that the demise of any one witness will harm petitioners’ case. The resignation and entry into private life of agency officials does not seriously interfere with any deposition or other timely discovery.”.
Case law makes a clear distinction that ‘perpetuation’ means the perpetuation of known testimony, and that the rule may not be used as a substitute for discovery to determine whether a cause of action exists in the claim. The preceding was also explained in the case of Kunimoto v. Lehman (In re Kunimoto), Civil Action No. 96ms232 (AER), 1996 U.S. Dist. (Oct. 16, 1996). Our appellant, GWH, is aware of what the proposed depositions would reveal. Esther Hassan, Special Agent in Charge. Moreover, Freedom of Information and Privacy Acts (FOIA) Officer denied the requested records because the Secret Service determined that the requested records by stating that they “are not agency records subject to the FOIA” and are governed by the Presidential Records Act, 44 U.S.C. §2201 et seq.”
GWH’s purpose is to help “promote integrity, transparency, and accountability in government and fidelity to the rule of lay” (R. pg.1). If this decision is not reversed, it would show that there is limited transparency in our government and hence an inadequacy of the standard morality and ethics.
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