Rosen v. Department of Corrections, No. 156-2-14 Cncv (Grearson, J., May 5, 2014)

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                                                     VERMONT SUPERIOR COURT
                                                        CHITTENDEN UNIT
                                                         CIVIL DIVISION



Earl Rosen, IV
 Petitioner

  v.                                                                            Docket No. 156-2-14 Cncv

Department of Corrections
 Respondent



              DECISION AND ORDER ON PETITION FOR PRE-ACTION DISCOVERY

        This matter is before the Court on a petition for pre-action discovery pursuant to Rule 27
of the Vermont Rules of Civil Procedure (“V.R.C.P.”). Petitioner Earl Rosen, IV seeks discovery
of his core inmate file maintained by the Department of Corrections. Petitioner, who is currently
incarcerated at Northern State Correctional Facility in Newport, Vermont, anticipates bringing
one or more legal actions to challenge the Department’s decision that Petitioner must participate
in 12 consecutive months of the Vermont Treatment Program for Sexual Abusers (“VTPSA”)
before he is released. Petitioner contends that he is currently unable to bring a lawsuit in a
manner consistent with the requirements of V.R.C.P. 11, and that he must review the file to
determine whether a lawsuit may be brought against the Department. Petitioner is represented by
Robert F. O’Neill, Esq., and the Department of Corrections is represented by Assistant Attorney
General David McLean, Esq. For the following reasons, the Rule 27 petition is denied.

                                                                 ANALYSIS

    Vermont Rule of Civil Procedure 27 allows one who “desires to perpetuate testimony or to
obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court
of the state” to file a verified petition in superior court in the county of the residence of any
expected adverse party. V.R.C.P. 27. The petition shall be entitled in the petitioner’s name and
must show the following:

     (1) that the petitioner expects to be a party to an action cognizable in a court of the
         state but is presently unable to bring it or cause it to be brought,

     (2) the subject matter of the expected action and the petitioner's interest therein,

     (3) the facts which the petitioner desires to establish by the proposed testimony or
         other discovery and the petitioner's reasons for desiring to perpetuate or obtain it,
   (4) the names or a description of the persons the petitioner expects will be adverse
       parties and their addresses so far as known, and

   (5) the names and addresses of the persons to be examined or from whom other
       discovery is sought and the substance of the testimony or other discovery which
       the petitioner expects to elicit or obtain from each, and shall ask for an order
       authorizing the petitioner to take the depositions of the persons to be examined
       named in the petition, for the purpose of perpetuating their testimony or to seek
       discovery under Rule 34 or 35 from the persons named in the petition.

    V.R.C.P. 27(a)(1). Rule 27 “gives the presiding judge discretion to grant a petition for
preaction discovery if he or she ‘is satisfied that the perpetuation of the testimony or other
discovery may prevent a failure or delay of justice.’” In re Burlington Bagel Bakery, Inc., 150
Vt. 20, 22 (1988) (quoting V.R.C.P. 27(a)(3)).

     Where the Vermont rule is substantially identical to the corresponding federal rule, the
Vermont Supreme Court has “looked to federal decisions interpreting the federal rule for
guidance in applying the Vermont rule.” Drumheller v. Drumheller, 185 Vt. 417, 429 (2009)
(citing In re Robinson/Keir Partnership, 154 Vt. 50, 54 (1990)). Federal courts, in interpreting
Rule 27, have held that “petitioners must make an objective showing that without a Rule 27
hearing, known testimony would otherwise be lost, concealed, or destroyed.” In re Liquor
Salesmen's Union Local 2D Pension Fund, 2012 WL 2952391, *3 (E.D.N.Y.). Rule 27 was
enacted to “provide parties with an equitable means to preserve evidence that would be
destroyed, not a short-cut to full discovery.” Id. “It should be used only in special circumstances
to preserve testimony which otherwise might be lost.” Id. (citing Arizona v. California, 292 U.S.
341, 347–48 (1934). Therefore, “common fact patterns satisfying this element have included
geographical or jurisdictional constraints, a deponent’s advanced age or illness, or actual
destruction of evidence.” Id.; see also, e.g., Mosseller v. U.S., 158 F.2d 380, 382 (2d Cir. 1947)
(“unfavorable medical prognosis” of injured deponent); General Bd. of Global Ministries of the
United Methodist Church v. Cablevision Lightpath, Inc., 2006 WL 3479332, *4 (E.D.N.Y.)
(Cablevision “routinely destroys such data in the ordinary course of its business after 90 days”);
In re Campania Chilena de Navegacion, 2004 WL 1084243, *3–4 (E.D.N.Y.) (vessel with
foreign national crew members “possessing particular knowledge of the dispute” about to leave
port); In re Town of Amenia, NY, 200 F.R.D. 200, 202–03 (S.D.N.Y. 2001) (deponent’s advanced
age and recent history of heart attacks).

    Here, Petitioner’s request is limited to materials within his core file held by the Department
of Corrections. Petitioner has not alleged any facts showing that any sought-after documents
would be lost—or are even in danger of being lost—absent the requested Rule 27 discovery. As
both parties recognize, the Department of Corrections is required by law to maintain an
individual file for each inmate, see 28 V.S.A. § 601(10), and Petitioner has not alleged or
suggested that the department will “destroy or render permanently inaccessible” the contents of
Petitioner’s file. See In re Liquor Salesmen’s, 2012 WL 2952391, *3. Regardless of whether the
petition were granted or denied, the file is not going anywhere; any documents within the file
would remain in the file. Therefore, the Court is not satisfied that granting the petition would

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“prevent a failure or delay of justice,” V.R.C.P. 27(a)(3), as granting the petition would not result
in the preservation of evidence which would otherwise be lost. Accordingly, the Rule 27 petition
must be denied.

    The Court further observes that Petitioner has failed to articulate an “action cognizable in a
court of the state.” V.R.C.P. 27(a)(1). Petitioner does not seem to challenge his classification as a
“Level A” offender; rather, Petitioner’s proposed action boils down to a challenge of a
programming decision by the Department of Corrections that he must participate in 12
consecutive months of VTPSA before he is released. However, programming requirements
imposed by the Department of Corrections following a classification as a particular offender
status are a matter of Department discretion, and are not reviewable under V.R.C.P. 75. See, e.g.,
Rheaume v. Pallito, 2011 VT 72, ¶ 11, 190 Vt. 245 (“[T]he promulgation of programming
requirements falls within the broad discretion of the DOC to determine what mode of treatment
best serves individual inmates. . . . [W]hile an inmate may have review of his designation under
Rule 75, the particular programming requirements promulgated after that designation becomes
final are a matter of DOC discretion and as such are nonreviewable under Rule 75.”); 28 V.S.A.
§ 102(b)(2), (c)(8). Petitioner has not shown how he expects to be a party to a “cognizable”
action as required by V.R.C.P. 27(a)(1).

                                              ORDER

       For the foregoing reasons, the Rule 27 Petition for Pre-Action Discovery is DENIED.

       So Ordered.

       Dated at Burlington, Vermont, May 5, 2014.


                                                              _____________________________
                                                              Brian J. Grearson,
                                                              Superior Court Judge




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