In The Matter Of The Petition Of Chris Hannemann

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Petition of CHRIS HANNEMANN, for Perpetuation of No. 88706-8-I Testimony of the JUNIOR VOLLEYBALL ASSOCIATION.

DIVISION ONE

UNPUBLISHED OPINION

DÍAZ, J. — The question before us is whether the trial court abused its discretion when it denied Chris Hannemann’s petition for a presuit deposition based on, among other things, his failure to show the desired witness was unavailable. We conclude the trial court did not abuse its discretion and thus affirm.

BACKGROUND

The Junior Volleyball Association (JVA) is a junior volleyball organization.

Hannemann is a professional beach volleyball player and coach. JVA offered a job as its beach coordinator to Hannemann. He signed the associated contract for the position in early 2024. Sometime after, JVA, through its president Jennifer Hahn, told Hannemann that it received a call from a person who made “harmful statements” to JVA about him. JVA notified Hannemann that due to the statements it received, it was rescinding the job offer.

In December 2024, Hannemann filed a CR 27 petition to take a limited deposition on written questions of a CR 30(b)(6) representative of the JVA. Hannemann wished to identify the people who contacted JVA regarding his hiring and the details of those statements. He contended that he “has yet to bring the action because the identity of the defendant(s) is not confirmed,” but that the subject matter of the expected action is “false and defamatory statements.” Hannemann amended his petition after an anonymous objector, who appears herein as respondent, filed an objection. The anonymous objector also filed a motion to quash the subpoena sought.

In August 2025, the trial court entered an order denying Hannemann’s CR 27 petition and granting the anonymous objector’s countermotion to quash. Hannemann timely appeals.

DISCUSSION

“CR 27 provides superior courts with limited authority to order presuit depositions

of witnesses.” In re Pet. Benton County Water Conservancy Bd., 26 Wn. App. 2d 738, 741, 350 P.3d 283 (2023). “[T]he rule is limited to circumstances where a petitioner can show a need to preserve witness testimony due to a risk of future unavailability.” Id. at 739. “Washington requires a petitioner seeking a CR 27 deposition to make a preliminary showing of a risk of unavailability.” Id. at 744. 1 “[T]ypically,” a “witness who is at risk of unavailability is . . . one who ‘is aged or

1 Spelled out fully, “[a] person who desires to perpetuate one’s own testimony or that of another person regarding any matter that may be cognizable in any superior court may file a verified petition in the superior court in the county of the residence of any expected adverse party,” which petition must include inter alia: “(A) that the petitioner expects to be a party to an action cognizable in a superior court but is presently unable to bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner’s interest therein; (C) the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it.” CR 27(1)(A)-(C).

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seriously ill, might flee, or who may become unavailable by reason of relocation or other geographic constraints before a suit can be filed.’” Id. at 744 (quoting Qi Qin v. Deslongchamps, 31 F.4th 576, 581 (7th Cir. 2022)). 2 “The general observation alone that a witness might not be available for trial (a truism for all mortal witnesses) is insufficient to justify a perpetuation deposition under CR 27.” Id. at 745 (requiring more than “speculation and conjecture”).

We review a court’s decision concerning a CR 27 petition for abuse of discretion.

Id. at 742. “A court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.” Id.

In the trial court’s order denying Hanneman’s CR 27 petition, it found—among other things—that Hannemann failed to demonstrate “a significant likelihood that the witness(es) or their testimony will be unavailable during regular discovery or at trial.” (Citing Benton County, 26 Wn. App. 2d 738.) Hannemann asserts the trial court abused its discretion when it made this determination, arguing that he “presented multiple grounds demonstrating a risk that JVA will be unavailable.”3

2 CR 27 parallels Fed. R. Civ. P. 27. Accordingly, analysis of the federal rule “may be looked to for guidance.” Beal v. City of Seattle, 134 Wn.2d 769, 777, 954 P.2d 237 (1998). 3 As a preliminary matter, Hannemann argues that the trial court erred when it “failed to

enter findings or conclusions under GR 15 or Ishikawa.” (Citing Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982).) Even if it was error to permit the anonymous objector to participate in the matter, Hannemann invited the error. As he himself recounts in a reply brief to his amended petition, the trial court initially granted the petition and Hanneman “agreed . . . [to] allow an opportunity for the Anonymous Objector to file a formal objection. [He] further filed [an] Amended Petition to supplement the record before this Court,” so that the objector could participate. Only then does he criticize the objector for failing to comply with Ishikawa. The issue is thus waived. In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) (holding that we “will deem an error waived if the party asserting such error materially contributed thereto”); see also In re Pers. Restraint of Thompson, 141 Wn.2d 712, 723, 10 P.3d 380 (2000) (holding that the invited error doctrine prohibits a party from taking “affirmative actions” to set up an error

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First, Hannemann contends that he is unable to “procure JVA’s attendance by process or other reasonable means due to geographic constraints.” 4 This is so, he argues, because JVA is located outside of Washington. Relatedly, he discusses JVA moving its operations from Wisconsin to Illinois, which he avers demonstrates a further risk that JVA may become unavailable. (Citing Benton County, 26 Wn. App. 2d at 744.) Second, he notes that, before filing his amended petition, JVA announced its hiring of a new executive director, replacing Hahn. He argues that Hahn’s departure “further demonstrates risk that available testimony may be lost in the same manner than an individual witness may become unavailable.”

As to the first reason, Hannemann does not explain why he is unable to subpoena JVA through standard discovery devices or, when doing so, why the desired information will be lost. To the contrary, as explained in his amended petition, he sought a subpoena he could domesticate in a foreign state, demonstrating that JVA is available via “process.”

at trial and then complaining of it on appeal). Hanneman also failed to raise this issue below until his reply brief and did not ask the court to undertake the analysis. Understandably then, the trial court did not address it in its order and thereby avoids error. State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011) (holding that issue preservation rules encourage “the efficient use of judicial resources . . . by ensuring that the trial court has the opportunity to correct any errors, thereby avoiding unnecessary appeals”) (internal quotation omitted) (citation omitted). 4 Hannemann primarily relies on ER 804 to define the term “unavailable.” ER 804 defines

unavailability as such: “‘Unavailability as a witness’ includes situations in which the declarant: . . . (5) Is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.” ER 804(a)(5). For the purposes of ER 804(a)(5), a nonparty witness can be considered unavailable if the party seeking attendance demonstrates that the witness is not subject to process, that efforts to contact the witness have been unsuccessful, and that the witness has refused to voluntarily cooperate in providing testimony. Young v. Key Pharmaceuticals, Inc., 63 Wn. App. 427, 432-33, 819 P.2d 814 (1991). None of the cases Hanneman cites apply this definition to CR 27. We decline to extend that definition to this context on this record.

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Indeed, the court granted Hannemann’s first petition, and he successfully served JVA at its registered agent’s address in Wisconsin before withdrawing it to resolve the anonymous objections. Hannemann also fails to show why JVA’s mere relocation from one state to another impacts its availability to secure the requested information. In this context, it was not an abuse of discretion for the court to find that this reason did not establish JVA’s availability for purposes of information-retention.

Hannemann’s second reason—that Hahn’s departure impacts JVA’s availability or increases the risk of the loss of information—is equally unavailing. He moved the court for a CR 30(b)(6) deposition, which requires a corporation to designate “one or more officers, directors,” “managing agents,” “or other persons who consent to testify on its behalf.” See Casper v. Esteb Enters., Inc., 119 Wn. App. 759, 767, 82 P.3d 1223 (2004) (holding that a “corporation has a duty to prepare its deposition designees so they can give full, complete, and nonevasive answers . . . as to matters known or reasonably available to the corporation.”) (citation omitted). Despite arguing that Hahn is the “apparent recipient of the communications at issue,” he does not explain why Hahn would be the only officer, director, managing agent, or other person who can testify on JVA’s behalf regarding the content of the statements and the identity of the speaker(s). 5 At a minimum, Hannemann does not claim that Hahn is aged or seriously ill, may flee, or is unavailable due to geographic constraints. Cf. Qin, 31 F.4th at 581 (citing Penn. Mut. Life Ins. Co. v. U.S., 68 F.3d 1371, 1375 n.3 (holding that a “potential deponent’s plans to leave the country for a long period of time may be grounds for perpetuating

5 It is unclear, however, if Hahn received this information directly. Both Hannemann and his counsel’s declarations describe the recipient of the information as “JVA.” Hahn simply relayed that information to them.

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testimony, presumably because the difficulties of serving process and conducting a deposition overseas”); In re Sims, 389 F.2d 148, 150 (5th Cir. 1967) (finding unavailability due to deponent’s imminent departure to, of all places, Peru)). Under these standards, and using the desired discovery tools, it was not an abuse of discretion for the court to find that that Hahn’s departure as JVA’s executive director made the entire organization unavailable.

In response, Hannemann claims that his “ability to subpoena an out of state witness for an out of state deposition does not mean he can compel that witness to testify in person in Washington at a trial,” but he fails to explain why unavailability under CR 27 should be defined in such a way. 6 Should he obtain the desired information through a CR 30(b)(6) deposition, a party may use a deposition as substantive evidence in court proceedings if “the witness resides out of the county and more than 20 miles from the place of trial.” CR 32(a)(3)(B). If Hannemann obtains the desired information through JVA’s deposition, it will be a question for another day whether Hannemann even wishes to call the organizational representative (whoever that may be) to testify at trial and whether that person on behalf of JVA is unavailable for trial, thus allowing him to utilize the deposition in any later trial instead. It would be “speculation and conjecture” to resolve that question now. Benton County, 26 Wn. App. 2d at 745.

Finally, for decades, federal courts have recognized that “[Fed. R. Civ. P.] 27

6 Hannemann cites State v. Goddard, which held that “[u]nder ER 804, before a witness

can be said to be unavailable, a party offering the out-of-court statement should be required to represent to the court that it made an effort to secure the witness’ attendance at trial.” 38 Wn. App. 509, 514, 685 P.2d 674 (1984). But Goddard addresses a different procedural issue, i.e., the use of already existing testimony and unavailability of the witness for trial. Hannemann skips a step. The current question revolves around “unavailability . . . before a suit can be filed.” Benton County, 26 Wn. App. 2d at 744.

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provides a procedure for the perpetuation of testimony of a witness,” and “[i]t is contemplated that it may be used in instances where as a result of time the witness’s testimony might become unavailable.” In re Petition of Gurnsey, 223 F. Supp. 359, 360 (D.D.C. 1963). However, these same courts have held that “[i]t is not a method of discovery to determine whether a cause of action exists; and, if so, against whom action should be instituted.” Id.; see Qin, 31 F.4th at 581 (holding that Fed. R. Civ. P. 27 cannot be used as a “vehicle for obtaining pre-suit discovery in order to ascertain or confirm the existence of a fact necessary to bringing suit”).

For example, in Wimberly v. Red Point Sols., Inc., a petitioner sought to “obtain the identities of the two people who allegedly made a false report to [human resources] in order to bring a conspiracy and defamation action against these individuals.” No. 20- CV-1838, 2020 WL 5237922, at *2 (S.D.N.Y. Sep. 1, 2020) (unpublished order). 7 To prevail on his request for a Fed. R. Civ. P. 27 deposition, he needed to satisfy three elements, including an “‘objective showing that without a Rule 27 [deposition,] known testimony would otherwise be lost, concealed, or destroyed.’” Id. at 2 (quoting In re Allegretti, 229 F.R.D. 93, 96 (S.D.N.Y. 2005)). The court held that he failed to satisfy the objective showing because his proffered reason that he needed the depositions “to obtain the identities of two people who allegedly made a false report about him so that he can name them as defendants” is not a “permissible rationale for presuit depositions.” Id. at 2.

Similarly, it was not an abuse of discretion for the court to find that Hannemann’s

7 We may cite or discuss unpublished opinions in our opinions if “necessary for a reasoned decision.” GR 14.1(c).

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reasons fail to establish that JVA will be unavailable before his suit can be filed or that known testimony would otherwise be lost, concealed, or destroyed. In turn, the trial court did not abuse its discretion when it denied his petition. 8 CONCLUSION

Affirm.

WE CONCUR:

8 The parties’ brief other issues, such as whether Hannemann has shown he can presently bring his cause of action, whether he can show the facts he desires to establish in his sought-after deposition, and whether he can overcome a First Amendment defense to “unmasking” the unknown speakers. However, these issues are secondary to the “preliminary question . . . whether” he has shown JVA is unavailable. Benton County, 26 Wn. App. 2d at 742.