In re I-35W Bridge Collapse Site Inspection

37 A.L.R. Fed. 2d 785, 243 F.R.D. 349, 68 Fed. R. Serv. 3d 1410, 2007 U.S. Dist. LEXIS 60107, 2007 WL 2325838
CourtDistrict Court, D. Minnesota
DecidedAugust 15, 2007
DocketNo. 07-CV-3680 (PJS/JJG)
StatusPublished
Cited by3 cases

This text of 37 A.L.R. Fed. 2d 785 (In re I-35W Bridge Collapse Site Inspection) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re I-35W Bridge Collapse Site Inspection, 37 A.L.R. Fed. 2d 785, 243 F.R.D. 349, 68 Fed. R. Serv. 3d 1410, 2007 U.S. Dist. LEXIS 60107, 2007 WL 2325838 (mnd 2007).

Opinion

ORDER DENYING PETITION FOR PERMISSION TO INSPECT SITE OF I-35W BRIDGE COLLAPSE

SCHILTZ, District Judge.

The Minnesota law firm of Schwebel, Goetz & Sieben, P.A. (“the Schwebel firm”) has filed a motion styled “FRCP 27, 34 & 45 Petition for Permission to Perform I-35W [351]*351Bridge Collapse Site Inspection” (“Petition”). The Petition was filed approximately 48 hours ago. The United States, the State of Minnesota, and the City of Minneapolis all filed responses to the petition this morning.1 A hearing on the motion was held earlier this afternoon.

The Sehwebel firm has been hired by three of the people injured and by the families of two of the people killed when the I-35W bridge near downtown Minneapolis collapsed on August 1, 2007. Petition 13. The Schwe-bel firm asks this Court to order the federal, state, and local authorities who now control the site of the bridge collapse2 to permit three attorneys from the firm, as well as two experts hired by the firm, to immediately inspect the remains of the bridge. Petition 11117-9. The Sehwebel firm asserts that, because the bridge is about to be dismantled, an immediate inspection of the bridge “will be essential to vigorously representing the interests of the ... clients who employed [the] firm” to “prosecut[e] wrongful death and personal injury claims” on their behalf. Petition 11113, 5. The respondents oppose the Sehwebel firm’s petition for various reasons.

The request of the Sehwebel firm is highly unusual. The Sehwebel firm has not cited— and the Court has not found — any case in which a federal court has done what the Sehwebel firm asks this Court to do: order the government to permit private attorneys and their agents to inspect the site of a mass disaster while recovery efforts are still ongoing.

The absence of authority is not surprising. Federal courts have considerable power, but they must exercise that power in connection with litigation — -in connection with what the United States Constitution describes as “Cases” and “Controversies.” U.S. Const, art. Ill, § 2, cl. 1. In general, a “Case” or “Controversy” does not arise until a plaintiff files a lawsuit against a defendant, accusing the defendant of violating the plaintiffs legal rights, and seeking some type of relief from the defendant. Cf. Lance v. Coff-man, — U.S. -, -, 127 S.Ct. 1194, 1196, 167 L.Ed.2d 29 (2007) (per curiam) (“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ One component of the case- or-controversy requirement is standing, which requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability.”) The collapse of the I-35W bridge involves tragedy and heroism and controversy, but, to date, it does not involve an actual lawsuit.

That said, Rule 27 of the Federal Rules of Civil Procedure authorizes a federal court to permit someone who anticipates that he or she will be a party to a lawsuit to take discovery prior to the filing of the anticipated action. The respondents argue that Rule 27 would only permit the Sehwebel firm to take the deposition of a witness, not to inspect the site of a disaster. It is true that Rule 27 is entitled “Depositions Before Action or Pending Appeal” (emphasis added), and that the rule speaks almost solely in terms of preserving “testimony” by taking the “depositions” of witnesses. It is also true that the rule is most often used to take sworn statements from witnesses who have information relevant to an anticipated lawsuit but who might die or disappear before the lawsuit can be filed.

But Rule 27(a)(3) was amended in 1948 to make clear that the rule also gives a court the authority to “make orders of the character provided for by Rules 34 and 35.” See Fed.R.Civ.P. 27 advisory committee notes. Rule 34(a)(2), in turn, authorizes a court to order a party “to permit entry upon designated land or other property ... for the purpose of inspection and measuring, survey[352]*352ing, photographing, testing, or sampling the property or any designated object or operation thereon.”3 In theory, then, this Court does have authority to issue the type of order sought by the Schwebel firm. The Court will nevertheless deny the Schwebel firm’s petition for both procedural and substantive reasons. See In re Bay County Middlegrounds Landfill Site, 171 F.3d 1044, 1046 (6th Cir. 1999) (explaining that a Rule 27 petition must meet both the procedural requirements of Rule 27(a)(1) and “the substantive standard set forth in Rule 27(a)(3)”).

A. Procedural Infirmities

A litigant seeking an order under Rule 27 must meet the procedural requirements set forth in the rule. The Schwebel firm has met almost none of them. Among the most serious problems with the Schwebel firm’s petition are the following:

1. A Rule 27 petition must be “entitled in the name of the petitioner” and show “that the petitioner expects to be a party to an action.” In other words, the petition must be filed by someone who expects to be a party to a lawsuit, and the petition must identify that prospective party. See 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2072, at 657 (2d ed. 1994) (“The allegation that the petitioner expects to be a party to an action must be unequivocal, and there must be factual showing sufficient to support an expectation of action.” (footnote omitted)). The Schwebel firm has not identified any of those whom it represents and who are likely to be parties to the lawsuits that it anticipates filing. (It should be noted, though, that at oral argument the Schwebel firm offered to identify its clients to the Court in camera.)

2. A Rule 27 petition must show that the petitioner expects to be a party to an action “cognizable in a court of the United States.” In other words, it is not sufficient that the petition identify the prospective party and explain why the party expects to be a party to a lawsuit. The petition must also show that the anticipated lawsuit will be within the jurisdiction of the federal courts. See Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir.1979) (“There need not be an independent basis of federal jurisdiction in a proceeding to perpetuate, but it must be shown that in the contemplated action, for which the testimony is being perpetuated, federal jurisdiction would exist and thus is a matter that may be cognizable in the federal courts.”). The Schwebel firm’s petition makes no such showing. At oral argument, the Schwebel firm admitted that, at this point, it simply does not know whether a federal court will have jurisdiction over any lawsuits that it files.

3. A Rule 27 petition must show that the petitioner “is presently unable to bring ... or cause ...

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37 A.L.R. Fed. 2d 785, 243 F.R.D. 349, 68 Fed. R. Serv. 3d 1410, 2007 U.S. Dist. LEXIS 60107, 2007 WL 2325838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-i-35w-bridge-collapse-site-inspection-mnd-2007.