Pre-Litigation Discovery: Petitions to Perpetuate Testimony and Preserve Evidence
Alison K. Adelman, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Inherent in every lawsuit is the need for proof. Plaintiffs must support their causes of action, and defendants must support their affirmative defenses, with facts. What if there were facts necessary to the resolution of a suit, but you couldn’t access them? Imagine the following factual scenario.
Plaintiff and Defendant are in a car accident. Plaintiff is injured and alleges that Defendant made a rapid left turn into oncoming traffic, causing the impact. The reporting police officer finds Defendant violated the vehicle code by unsafely entering the roadway, and therefore was the cause of the accident.
However, Defendant insists that Plaintiff was excessively speeding at the time of the incident, which caused the impact. Plaintiff makes a large pre-litigation monetary demand, noting the clear liability of Defendant. But Defendant remains firm that Plaintiff’s speed caused the accident. Defense counsel sends Plaintiff a preservation of evidence letter and requests to inspect the vehicle to ascertain Plaintiff’s speed at the time of impact. Plaintiff does not want to provide Defendant access to her car because “liability is clear,” and Plaintiff has privacy concerns. Plaintiff’s attorney then tells Defense counsel that a vehicle inspection will only occur pursuant to a subpoena, and that the car is in the possession of Plaintiff’s insurer, which has plans to destroy the vehicle. Defense counsel cannot subpoena the car because there is no lawsuit pending. Plaintiff does not file a lawsuit but continues to make demands. What now?
Petitions to Perpetuate Testimony or Preserve Evidence
If initial preservation letters and voluntary requests for inspection are unsuccessful, lawyers should be aware of this little-known tool: Petitions to Perpetuate Testimony or Preserve Evidence. The California procedural vehicle is not often used but could potentially resolve the hypothetical standstill described above. California Code of Civil Procedure sections 2035.010 et seq. set forth the Petition procedure.
“One who expects to be a party . . . to an action that may be cognizable in a court of the state, whether as a plaintiff, or as a defendant, or in any other capacity, may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), for the purpose of perpetuating that person’s own testimony or that of another natural person or organization, or of preserving evidence for use in the event an action is subsequently filed.”
This Petition is versatile as both a potential plaintiff and a potential defendant can use it, although a petition to perpetuate by an expected plaintiff may receive closer scrutiny. See, e.g., Application of Carson (1957) 22 F.R.D. 64.
Pre-litigation Depositions, Inspections, and Examinations
Importantly, Petitions can also be used to obtain pre-litigation oral and written depositions, inspections of documents, things, and places, and physical and mental examinations. Code Civ. Proc. § 2035.020. This means you could elicit sworn testimony or have an expert conduct a critical examination before a suit is filed. The discovery obtained can be used in any subsequent action involving the same subject matter that is brought in a California court against any party, or expected adverse party, named in the petition. Code Civ. Proc. § 2035.060.
The California Code of Civil Procedure affords courts broad discretion in granting this pre-litigation discovery: “If the court determines that all or part of the discovery requested under this chapter may prevent a failure or delay of justice, it shall make an order authorizing that discovery.” Code Civ. Proc. § 2035.050. “Failure or delay of justice” is not defined, leaving great room for argument. Despite the flexible standard, the Code also includes strict requirements for the petition.
Procedure for Filing and Requirements for Petition
The petition is to be filed in the superior court of the county of the residence of at least one expected adverse party. Code Civ. Proc. § 2035.030. The Petition is an initial filing, meaning a first appearance fee must be paid and many of the requirements for filing a Complaint satisfied, including a Civil Case Cover Sheet and personal service of the Petition and a Summons. Code Civ. Proc. § 2035.040(a). Check the local rules in the adverse party’s county to determine what other documents may be required when initiating a case. All Petitions to Preserve Evidence must also be verified. Code Civ. Proc. §§ 446, 2015.5, 2035.030(a).
Code of Civil Procedure section 2035.030 requires that significant information be included in the Petition to justify the pre-litigation discovery. A petitioner must include: the expectation that the petitioner will be a party to an action cognizable in California; the present inability to bring an action or cause an action to be brought; the subject matter of the expected action and petitioner’s involvement; particular discovery methods requested; the facts petitioner desires to establish by the proposed discovery; the reasons for the discovery before an action is filed; name of expected adverse parties; the name and address of those from whom the discovery is to be sought; and the substance of the information expected to be elicited from the discovery. Code Civ. Proc. § 2035.030(b). The Petition must also request a court order, and must include a proposed order identifying the witness whose deposition may be taken, the documents, things, or places that may be inspected, or the person to be examined. Code Civ. Proc. §§ 2035.030, 2035.050(b).
Demonstrating previous unsuccessful attempts at voluntarily obtaining the discovery will support the granting of the petition. Block v. Superior Court (1963) 219 Cal.App.2d 469, 472. In our hypothetical, the Defendant could bolster his position by explaining that Plaintiff repeatedly refused a voluntary vehicle inspection. Moreover, the Petitioner should specify and support why a later deposition, inspection, or examination would not be as effective. When waiting to conduct the discovery would produce vastly inferior results, Courts are more likely to grant a petition. Id.; see also Martin v. Reynolds Metal Corp. (1961) 297 F.2d 49, 57 [interpreting parallel Federal rule, noting that an exam near the time of injury is the best way to discover injured party’s condition]. Showing a potential witness’s ill health or very advanced age would also support a Petitioner seeking a pre-litigation deposition. On our facts, the insurance company’s plans to destroy the vehicle would severely strengthen the Petition because waiting for the inspection may result in no inspection at all, perhaps a “failure of justice.”
Bases for Opposing Petition
Despite the broad discretion given to courts in granting Petitions, both Plaintiffs and Defendants have multiple valid bases to successfully defeat a Petition to Preserve Evidence. Opponents can argue that not all of the many the specific requirements were complied with. The most effective argument would be that the discovery is not actually required before a lawsuit is filed, as this will be the petitioner’s most difficult showing. If you are defending a petition to perpetuate a deposition based on advanced age or sickness of your witness, try arguing that other witnesses exist and therefore the discovery is not justified. See Application of Checkosky (1992 D. D.C.) 142 F.R.D. 4, 7.
Petitions can also be opposed on the basis that the requested discovery is merely a “fishing expedition,” a search for something that may not exist. Additionally, pursuant to the Code of Civil Procedure, a Petitioner may not use the procedures for ascertaining the possible existence of a cause of action or a defense to it, or to identify those who might be made parties to an action not yet filed. 2035.010(b). This language also leaves abundant room for the opponent to argue the Petition is improper. A party opposing a Petition should also consider preparing a counterpetition for a protective order.
Whether you represent a plaintiff that cannot yet file suit because a government entity has not accepted or rejected the claim, or you represent a defendant who fears exculpatory evidence will be destroyed, a Petition to Perpetuate Testimony or Preserve Evidence is an important tool that every trial lawyer should be aware of. Upon a proper showing, both plaintiffs and defendants who are involved in pre-litigation negotiations may be able to obtain a court order for a deposition, an inspection, or a physical or mental examination, all before a lawsuit exists. And, the language in California Code of Civil Procedure sections 2035.050(a) is very broad: if the discovery may prevent a failure or delay of justice, the court shall make an order authorizing that discovery. Let the persuasive writing and arguing begin.
In the initial scenario, if the Defendant had obtained a court order allowing him to inspect Plaintiff’s vehicle, maybe the resulting information would have shown that the Plaintiff was speeding. Maybe it wouldn’t have. No matter the inspection results, the pre-litigation discovery would have led to a quicker resolution of the dispute, or at least a step in the right direction.
 Federal Rule of Civil Procedure 27 provides for a similar process and result.
 For example, in Riverside County Court, a Certificate of Counsel form is also required.
 The fact that an attorney has been hired can support an assertion that a lawsuit is expected. See Petition of Ernst (C.D. Cal. 1942) 2 F.R.D. 447. “Whether there is a sufficient likelihood that the expected litigation will eventuate is a matter for the sound discretion of the court to which application to perpetuate is made.” Block v. Superior Court (1963) 219 Cal.App.2d 469, 478.