COA affirms that petition is not a fishing expedition

September 4, 2015

The request to depose three elderly witnesses is not an attempt by a landowner to fish for facts, the Indiana Court of Appeals has ruled.

Lincoln Fort Wayne Associates LLC had successfully filed a petition to perpetuate testimony against Cleveland Range LLC. The pair of businesses had entered into a cost-sharing agreement where Cleveland would reimburse Lincoln for certain expenses related to an environmental remediation project.

However, after Cleveland missed some payments and sought to revise the cost-sharing terms, Lincoln began anticipating it might have to litigate. Lincoln did not want to file immediately, fearing a lawsuit would hamper the environmental cleanup.

So it, instead, filed the petition to depose the three witnesses, ranging in age from 68 to 78, who were believed to have firsthand knowledge of Cleveland’s manufacturing process and use of solvents.

After the Allen Superior Court granted the petition, Cleveland appealed, arguing Lincoln was seeking evidence rather than trying to preserve specific facts.

The Court of Appeals disagreed and refused to characterize Lincoln’s petition as a “fishing expedition.” Although it noted discovery is generally permitted only after an action has been started, the appellate panel pointed to Indiana Trial Rule 27 which authorizes depositions to perpetuate the testimony of a party.

In Cleveland Range, LLC, v. Lincoln Fort Wayne Associates, LLC, 02A05-1503-PL-96, the Court of Appeals said Rule 27 applied.

“It is apparent from the record that Lincoln knows the specific grounds for its potential lawsuit, and it knows Cleveland is the party against whom the action would be initiated,” Judge Melissa May wrote for the court. “Its petition clearly was not brought to provide a method of discovery “to determine whether a cause of action exists”; its lengthy and detailed list of proposed topics for questioning so reflects.”


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