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Nevada v. O'Leary

Citation: 25 ELR 21485
No. No. 93-17367, 63 F.3d 932/(9th Cir., 08/25/1995) deposition of scientists aff'd

The court affirms a district court denial of Nevada's petition under Fed. R. Civ. P. 27 to depose more than two dozen scientists regarding studies they undertook in response to a scientific hypothesis that questioned the geological and hydrological suitability of Yucca Mountain as a site for high-level nuclear waste disposal. Nevada sought to obtain the information for use in future agency and judicial proceedings at which the state contemplates it will challenge various anticipated decisions by federal agencies. The court holds that Rule 27 is not appropriate when, as here, the petitioner seeks discovery of unknown information it hopes will assist it in the future when it applies for judicial relief. The court first holds that the district court appropriately treated the Rule 27 petition as more akin to a motion than to an "action" commenced under Rule 27 petition as more akin to a motion than to an "action" commenced under Rules 2 and 3 of the Fed. R. Civ. P. The court holds that no remand to the district court is necessary to provide the procedural safeguards those rules afford, because there was no unfairness in the procedures the district court employed in considering the petition. The court next notes that the district court correctly held that in light of Rule 27's requirement that the petitioner expect to be a party to an action in a court of the United States that cannot now be filed, Nevada could not file this action if it merely intended to make the material sought part of an administrative record. The district court reasoned persuasively that any of six judicial review proceedings that Nevada might become a party to would be limited to review of the administrative record. Thus, the evidence Nevada seeks could not be used to help develop a court record in a "court of the United States" within the meaning of the rule. The court holds that it need not decide whether Nevada can meet this requirement, however, because the state cannot satisfy the requirement that the petition set forth the substance of the testimony that the petitioner seeks to elicit from the persons to be examined. In this case, Nevada is seeking opinions, thoughts, views, and background information that is as yet completely unknown to it. The state cannot set forth the substance of the testimony or show that the testimony would be admissible in any later litigation. It is, therefore, seeking to undertake an inquiry similar to that authorized as discovery under Fed. R. Civ. P. 26. The court holds that with respect to a prospective plaintiff or other applicant for judicial relief, Rule 27 does not permit inquiry as broad as the discovery provisions of Rule 26(b). Finally, the court rejects Nevada's contention that the petition should be granted pursuant to Rule 27(c), which states that Rule 27 does not limit a court's power to entertain an action to perpetuate testimony. Subsection (c) was intended to preserve the right to employ a separate action to perpetuate testimony under a now-repealed statutory provision; it was not intended to expand the applicability of Rule 27's other provisions.

Counsel for Plaintiff
Harry W. Swainston, Deputy Attorney General
Attorney General's Office
Capitol Complex
198 S. Carson St., Carson City NV 89710
(702) 687-4170

Counsel for Defendants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Before Cummings,* Schroeder and Rymer, JJ.