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MANDAMUS & PRE-ACTION DISCOVERY - EX PARTE CITY OF MONTGOMERY

Ex parte City of Montgomery, [Ms. 1150439, 1150452, June 10, 2016] __ So. 3d __ (Ala. 2016). "[T]he proper avenue for seeking review of a trial court's disposition of a Rule 27(a) petition for pre-action discovery is by way of petition for a writ of mandamus. ..." Ms. *12, quoting Ex parte Ferrari, 171 So. 3d 631, 638 (Ala. 2015).

Reflecting a further restricting of the use of Rule 27 petitions for pre-action discovery, the Court states:

Under Ferrari, the preservation of evidence is the only proper purpose for pre-action discovery under Rule 27. In Ferrari, this Court specifically considered and then rejected the idea that pre-action discovery under Rule 27 could be used to determine whether a cause of action exists.

Ms. *17, citing Ferrari, 171 So. 3d at 649-52. Furthermore, the mere risk of sanctions under the Alabama Litigation Accountability Act or Rule 11, Ala. R. Civ. P., does not constitute a showing of a present inability to bring an action as required for the proper filing of a petition pursuant to Rule 27. In short, "determining whether an action would be potentially meritorious is not a proper ground for pre-action discovery under Rule 27(a)." Ms. *19.

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