IN THE UTAH COURT OF APPEALS
(Not For Official Publication)
Plaintiff and Appellant,
Case No. 20060038-CA
Michelle Blomquist, Kerry
F I L E D
Sprague, and Administrative
(November 9, 2006)
Office of the Courts,
2006 UT App 450
Defendants and Appellees.
Third District, Salt Lake Department, 050921532
The Honorable Anthony B. Quinn
Roger Bryner, Midvale, Appellant Pro Se
Brent M. Johnson, Salt Lake City, for Appellees
Before Judges Greenwood, Davis, and Thorne.
Roger Bryner appeals a district court order denying his
petition under rule 27 of the Utah Rules of Civil Procedure to
depose certain individuals prior to commencement of an action.
See Utah R. Civ. P. 27. We affirm.
"The interpretation of a rule of procedure is a question of
law that we review for correctness." Brown v. Glover, 2000 UT
89,¶15, 16 P.3d 540. "The trial court's application of the law
to the facts is reviewed for abuse of discretion." Platts v.
Parents Helping Parents , 947 P.2d 658, 661 (Utah 1997).
Rule 27 is "unavailable" as a "fishing expedition for the
purpose of preparing a complaint." Bainum v. Mackay, 391 P.2d
436, 436 (Utah 1964); see also In re Solorio, 192 F.R.D. 709,
709-10 (D. Utah 2000) ("It is commonly held that [r]ule 27 was
not intended as a means of discovery to ascertain facts for the
use in framing a complaint." (internal quotations and citation
omitted)). Instead,"[t]he purpose of rule 27 is to 'prevent a
failure or delay of justice' through the 'perpetuation of
testimony.'" In re Solorio, 192 F.R.D. at 709 (quoting Fed. R.
Civ. P. 27(a)(3)).1
Bryner's petition and subsequent pleadings attempt to use
rule 27 as a fishing expedition to prepare for filing. In
addition, Bryner makes no showing why perpetuation of testimony
is necessary in this case. See Utah R. Civ. P. 27(a)(3) (stating
that the petition shall state "the facts to be established by the
proposed testimony and the reasons to perpetuate it"). As in In
[t]here is no showing that the information
sought could not be acquired through due
diligence. [Bryner] has not satisfied [r]ule
27 by showing that justice would be impaired
if the testimony were not preserved.
192 F.R.D. at 709.2
Pamela T. Greenwood,
Associate Presiding Judge
James Z. Davis, Judge
William A. Thorne Jr., Judge
1. In re Solorio, 192 F.R.D. 709 (D. Utah 2000), applies the
federal version of rule 27. However, "since the Utah Rules of
Civil Procedure were fashioned after the Federal Rules of Civil
Procedure, we may look to decisions under the federal rules for
guidance." 438 Main Street v. Easy Heat, Inc. , 2004 UT 72,¶64,
99 P.3d 801 (citation omitted ).
2. Bryner's motion to strike is hereby denied.