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The Alabama Supreme Court Reverses Course on the Broad Use of Prepetition Discovery

The Alabama Supreme Court Reverses Course on the Broad Use of Prepetition Discovery

Although this Alabama Supreme Court opinion was released in February of this year, my recent dealings on the topic have prompted me to highlight how the Alabama Supreme Court has reigned in the liberal use of prepetition discovery.

In pertinent part, Alabama Civil Procedure Rule 27(a) allows a person to perpetuate that person’s own testimony or that of another person before a lawsuit is filed. Prior to 1994, Rule 27(a) was essentially limited to perpetuating or preserving evidence or testimony that was in danger of being lost or destroyed. In 1994, the Alabama Supreme Court in Ex parte Anderson, 644 So. 2d 961 (Ala. 1994), broadened the scope of Rule 27(a) to include pre-action discovery for reasons other than perpetuation of evidence. As such, potential plaintiffs began using pre-action discovery as a vehicle to uncover potential causes of action against potential defendants. This expanded interpretation of Rule 27(a), in effect, allowed plaintiffs to go fishing for causes of action.

However, earlier this year the Alabama Supreme Court overruled Ex parte Anderson, and reestablished that Rule 27(a) was limited to prepetition discovery for the purpose of perpetuation or preserving evidence that was at risk of being lost. In Ex parte Ferrari, 171 So. 3d 631 (Ala. 2015), the Alabama Supreme Court reexamined its findings in Ex parte Anderson. Based on the plain language of the rule and its historical context through Committee Comments, the Alabama Supreme Court soundly rejected the proposition that Rule 27(a) could be used for anything other than preserving testimony or evidence that was in danger of being lost or destroyed. In its analysis, the Court noted that “[b]efore Anderson, plaintiffs were able to discern whether they had causes of action against other parties without using preaction discovery.” Ex parte Ferrari, 171 So. 3d at 651-52.

Ultimately, the Court’s holding in Ferrari should effectively prevent plaintiffs from going on prepetition fishing expeditions for causes of action to assert against defendants.

Matthew A. Barley

Claims for Spoliation of Evidence