Opinion
Case No. 20060038-CA.
Filed November 9, 2006.
Appeal from the Third District, Salt Lake Department, 050921532 The Honorable Anthony B. Quinn.
Roger Bryner, Midvale, Appellant Pro Se.
Brent M. Johnson, Salt Lake City, for Appellees.
Before Judges Greenwood, Davis, and Thorne.
MEMORANDUM DECISION
Roger Bryner appeals a district court order denying his petition under rule 27 of the Utah Rules of Civil Procedure to depose certain individuals prior to commencement of an action.See Utah R. Civ. P. 27. We affirm.
"The interpretation of a rule of procedure is a question of law that we review for correctness." Brown v. Glover, 2000 UT 89, ¶ 15, 16 P.3d 540. "The trial court's application of the law to the facts is reviewed for abuse of discretion." Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997).
Rule 27 is "unavailable" as a "fishing expedition for the purpose of preparing a complaint." Bainum v. Mackay, 391 P.2d 436, 436 (Utah 1964); see also In re Solorio, 192 F.R.D. 709, 709-10 (D. Utah 2000) ("It is commonly held that [r]ule 27 was not intended as a means of discovery to ascertain facts for the use in framing a complaint." (internal quotations and citation omitted)). Instead,"[t]he purpose of rule 27 is to `prevent a failure or delay of justice' through the `perpetuation of testimony.'" In re Solorio, 192 F.R.D. at 709 (quoting Fed.R.Civ.P. 27(a)(3)).
In re Solorio, 192 F.R.D. 709 (D. Utah 2000), applies the federal version of rule 27. However, "since the Utah Rules of Civil Procedure were fashioned after the Federal Rules of Civil Procedure, we may look to decisions under the federal rules for guidance." 438 Main Street v. Easy Heat, Inc., 2004 UT 72, ¶ 64, 99 P.3d 801 (citation omitted).
Bryner's petition and subsequent pleadings attempt to use rule 27 as a fishing expedition to prepare for filing. In addition, Bryner makes no showing why perpetuation of testimony is necessary in this case. See Utah R. Civ. P. 27(a)(3) (stating that the petition shall state "the facts to be established by the proposed testimony and the reasons to perpetuate it"). As in In re Solorio,
[t]here is no showing that the information sought could not be acquired through due diligence. [Bryner] has not satisfied [r]ule 27 by showing that justice would be impaired if the testimony were not preserved.
Bryner's motion to strike is hereby denied.
Affirmed.
Pamela T. Greenwood, Associate Presiding Judge, James Z. Davis, Judge, William A. Thorne Jr., Judge, concur.