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In re Bay County Middlegrounds Landfill Site

ELR Citation: 29 ELR 21020
Nos. 97-2175, 171 F.3d 1044/(6th Cir., 03/29/1999)

The court affirms a district court decision ordering the perpetuation of a landfill employee's testimony before the commencement of a U.S. Environmental Protection Agency Comprehensive Environmental Response, Compensation, and Liability Act action under Fed. R. Civ. P. 27(a). A potentially responsible manufacturer seeks to take and preserve the testimony because it might be relevant in allocating liability against other potentially responsible parties. The court first holds that the alleged procedural deficiencies are not fatal to the petition to permit the taking of the deposition or to the district court's ruling granting the petition. Nothing in Fed. R. Civ. P. 27(a) indicates that the requirement that the petitioner "show" certain matters means that the "showing" must include material proffered in a form admissible at trial. Moreover, the judge's discretion encompasses the nature and quality of evidence required to make or rebut the required showing in rule 27(a)(1). With respect to rule 27(a)(3)'s requirement that the perpetuation prevent the failure or delay of justice, the court holds that the best interpretation of the rule is that testimony to be perpetuated must be relevant, not simply cumulative, and likely to provide material distinctly useful to a finder of fact. A determination that the evidence is absolutely unique is not necessary. There must, of course, be a reasonable showing of the need to perpetuate the testimony lest it be lost because of the commencement of litigation. The court last holds that judged against this standard, the district court did not abuse its discretion in ordering the perpetuation of the employee's testimony.

Counsel for Appellee
Joseph C. Basta
Dykema Gossett
400 Renaissance Ctr., Detroit MI 48243
(313) 568-6800

Counsel for Appellant
H.G. Sparrow III
Dickinson, Wright, Moon, Van Dusen & Freeman
500 Woodward Ave., Ste. 4000, Detroit MI 48226
(313) 223-3500

Before Siler and Gilman, JJ.