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DISCOVERY - EX PARTE FERRARI

Ex parte Ferrari, [Ms. 1130679, Feb. 6, 2015] __ So. 3d __ (Ala. 2015). The Supreme Court overrules earlier cases and holds that discovery before action under Rule 27 is only for preservation of evidence. D.R. Horton, Inc. filed a Rule 27 petition against its former employee Peter Ferrari, seeking to find evidence that he had improperly used confidential information from D.R. Horton to engage in self-dealing land-acquisition transactions that D.R. Horton was interested in. The petition included interrogatories, requests for production of documents, and notices for video depositions of Mr. Ferrari and his wife. It sought Mr. Ferrari's bank account statements, tax returns, and limited-liability-company records. The circuit court ordered the discovery and the Ferraris petitioned for mandamus and, alternatively, appealed. At a hearing before the circuit court, counsel for D.R. Horton stated that D.R. Horton was trying to "assess who are our defendants and what are our claims, and then we'll bring the action." The Court first rules that mandamus is the proper means of review; it then rules that a hearing must be held on a petition for pre-action discovery. The Court next holds that written interrogatories are not an available means of discovery under Rule 27. Finally, the Court holds that Rule 27 is available only for the perpetuation of testimony or the perpetuation of evidence pursuant to Rule 34, overruling Ex parte Anderson, 644 So. 2d 961 (Ala. 1994), which held that Rule 27 "specifically authorizes 'discovery under Rule 34,' without limiting the use of Rule 34 to that of perpetuating evidence." The Court in this case relies in part on the comments that former Justice Lyons wrote in his Alabama Rules of Civil Procedure Annotated. The opinion is by Justice Murdock with Justices Stuart, Bolin, Parker, Main, and Wise concurring; Justice Bryan concurring in the result; and Chief Justice Moore and Justice Shaw dissenting.

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