In re: Petition of Sheila Roberts Ford

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Brief Fact Summary.

The Administratrix, Sheila Roberts Ford, petitioned to depose the commanding officer, Sheriff Bill Franklin, to identify the witnesses and facts surrounding the death of Fred William Roberts.

Synopsis of Rule of Law.

Federal Rules of Civil Procedure Rule 27 does not permit pre-complaint discovery and should only be used when it is necessary to preserve testimony that is in danger of not being available at the time of suit.

Facts.

Pursuant to Federal Rules of Civil Procedure Rule 27(a)(1), Sheila Roberts Ford filed a petition to perpetuate testimony from Franklin. Sheila Ford satisfied most of the elements of the rule: she stated that she expected to be a party to a federal action but needed further information in order to gather basic facts and identify the parties that would be known by Franklin. She did not identify a federal cause of action, so she amended her petition to specify that it was likely a Fourteenth Amendment violation.

Issue.

The issue is whether Sheila Ford’s petition to perpetuate testimony from Franklin should be granted.

Held.

The court held that the information sought by Sheila Ford could be gathered through discovery if she would file suit. The purpose of the gathering of Franklin’s testimony is to discover it rather than perpetuate it.

Discussion.

The court sympathizes with Ford because she does not have the threshold level of evidence to bring a suit against the officers, but Rule 27 does not provide a method of discovery either. Therefore she has no recourse for justice.