[00:00:00] Speaker 04:
2033, Mr. Barnes.

[00:00:03] Speaker 02:
Good afternoon, Your Honors.

[00:00:09] Speaker 02:
I would like to reserve five minutes for rebuttal.

[00:00:13] Speaker 04:
Do you know how that goes?

[00:00:14] Speaker 04:
I do.

[00:00:14] Speaker 04:
Could someone please close the door?

[00:00:16] Speaker 04:
I don't know why we're having trouble with that.

[00:00:20] Speaker 04:
We ask anyway.

[00:00:21] Speaker 04:
Don't be running his time now.

[00:00:26] Speaker 04:
Let him reset your clock unless you want to just forfeit 20 seconds.

[00:00:32] Speaker 04:
Okay.

[00:00:34] Speaker 04:
Go ahead, please.

[00:00:35] Speaker 02:
Thank you, Your Honor.

[00:00:39] Speaker 02:
This is something different.

[00:00:40] Speaker 02:
This is a case of first impression in this court as recognized by Judge Strickland in the order that's being appealed from.

[00:00:47] Speaker 02:
I'm going to paraphrase it, but Judge Strickland basically said the Tenth Circuit has apparently not spoken on these issues.

[00:00:53] Speaker 02:
So this concerns the application and

[00:00:56] Speaker 02:
I guess the construction of Federal Rules Civil Procedure 27 relating to the taking of sworn statements and the preservation of evidence and testimony before a lawsuit is filed.

[00:01:09] Speaker 02:
The added wrinkle in this case is that under 39 CFR 260.05, you've got a situation where we're dealing with government employees.

[00:01:22] Speaker 02:
So what we have to do is we have to look at

[00:01:25] Speaker 02:
Number one, the propriety of taking these sworn statements to preserve testimonial evidence, and also in the context of the people that we're taking the statements of, happen to be government employees.

[00:01:35] Speaker 02:
So under the Code of Federal Regulations, there are certain procedures that have to be followed.

[00:01:42] Speaker 02:
There's a dearth of case law on these issues out there, but the cases that appear to govern our specific situation

[00:01:52] Speaker 02:
I would assert are the Doyle-Lemar case and the 19th Street Baptist Church case as to the propriety of the taking of the depositions, I'm sorry, sworn statements, and whether or not Mr. Workman satisfied those requirements.

[00:02:04] Speaker 02:
And then the other issue is the right to amend your verified petition for Rule 27, perpetuation of testimony.

[00:02:13] Speaker 02:
And there is actually one case out there that dealt with that, and that's the Eisenberg case, none of which have been really addressed by the other side.

[00:02:22] Speaker 02:
Now, as we've said forth in our briefs, there's kind of been an evolution of Rule 27 law as to whether or not you can take these torrent statements, what conditions have to occur and what has to be pled.

[00:02:37] Speaker 02:
The problem is there's not a lot of standards out there as to, there are these various elements that have to be pled, but what are the standards under which you plead them?

[00:02:46] Speaker 02:
So that's one of the things that we are

[00:02:50] Speaker 02:
trying to develop here today and trying to develop in this case.

[00:02:54] Speaker 02:
And our position, with all due respect, is that both Magistrate Wormuth and Judge Strickland, who adopted Magistrate Wormuth's recommendation, both missed several things that are really important, and that the order that's appealed from, which is Judge Strickland's order, affirming Judge Wormuth, Registrate Wormuth's recommendation, should be reversed.

[00:03:17] Speaker 02:
Now, I'm sure the Court is aware that when you're dealing with

[00:03:20] Speaker 02:
issues of, for example, statutory construction.

[00:03:23] Speaker 02:
Interpretation of rules has a lot of similarities.

[00:03:27] Speaker 02:
If there are two statutes that govern the same subject matter, one is general, one is specific, you go with the more specific statute.

[00:03:36] Speaker 02:
Working that into here, what we have is the evolution of Rule 27 law, beginning back with this Ash versus Court case, which is from 1975, out of the Third Circuit, which basically put this blanket prohibition on

[00:03:51] Speaker 02:
Rule 27 sworn statements being taken before a student's file if it's being used for purposes of discovery.

[00:03:58] Speaker 02:
That's it.

[00:03:59] Speaker 02:
And in the Ash case, there was no finding that there was an intent to preserve evidence.

[00:04:06] Speaker 02:
So what happens now?

[00:04:07] Speaker 02:
Along in 1999 and 2000 come the 19th Street Baptist Church case and the Dwilomar case.

[00:04:13] Speaker 02:
The Dwilomar case is the one that's really, really, in our view, very important.

[00:04:18] Speaker 02:
So what did Dwilomar concern?

[00:04:20] Speaker 02:
Doolomir concerned a situation where there was a vessel that was subject to a catastrophic accident and the things were disappearing.

[00:04:29] Speaker 02:
So the intent there was to get the testimony of the people who were there and saw everything and preserve it before the ship was destroyed, taken apart, whatever.

[00:04:39] Speaker 02:
That's exactly what we have here.

[00:04:42] Speaker 02:
Mr. Workman leased a building to the United States Post Office for a postal facility.

[00:04:47] Speaker 02:
The building burnt to the ground.

[00:04:50] Speaker 02:
fire was started in the building on Valentine's Day of 2022.

[00:04:52] Speaker 02:
The building and the adjacent structure, the rights of residents, which he had fully destroyed, were burnt to the ground.

[00:05:01] Speaker 02:
There has been at least 18 months of work going into taking photographs, doing inspections, having an insurance investigator come and do inspections.

[00:05:11] Speaker 02:
Asbestos inspectors, everybody that we've named in our

[00:05:17] Speaker 02:
briefs who's been involved with this, trying to find the source of the fire.

[00:05:21] Speaker 02:
And the one that's come the closest is Mr. Lutten.

[00:05:23] Speaker 02:
He was the insurance investigator.

[00:05:26] Speaker 02:
And he testified that he had a very limited scope because the United States Attorney, when he tried to take the statements of the people who were on the scene, that was Jasmine Martinez and Perla Sanchez, said the United States Attorney told him, no, you can't talk to the witnesses.

[00:05:46] Speaker 02:
You can't talk to the people who are on site.

[00:05:48] Speaker 02:
We're not allowing you to do that.

[00:05:50] Speaker 02:
Stay away from them.

[00:05:52] Speaker 02:
Do not ask them any questions.

[00:05:54] Speaker 02:
So how does a fire investigator come to a conclusion as to the source and cause of a fire without talking to the only two people who are on site when this happened?

[00:06:04] Speaker 02:
Ms.

[00:06:04] Speaker 02:
Martinez was the one who told Mr. Salas, the fire investigator, in broad brush terms, and this is where this gets in the substance distinction in Duilamarque.

[00:06:14] Speaker 02:
So yeah, I talked to Sanchez, I talked to Martinez.

[00:06:18] Speaker 02:
They told me they saw certain things, but this wasn't under oath, right?

[00:06:23] Speaker 02:
It's just a Fire Marshal's partial report.

[00:06:26] Speaker 02:
So the substance of what Mr. Workman sought to ask Ms.

[00:06:31] Speaker 02:
Martinez and Ms.

[00:06:32] Speaker 02:
Sanchez about was out there in the Fire Marshal's report.

[00:06:36] Speaker 02:
This is exactly the same situation as in Duilamar.

[00:06:40] Speaker 02:
where the Coast Guard reports made general observations as to what happened with the disaster of the vessel, but without any details.

[00:06:48] Speaker 02:
Of course, the Coast Guard report is not prepared for purposes of litigation, and it's not sworn to.

[00:06:53] Speaker 04:
So whose testimony do you want to get?

[00:06:56] Speaker 04:
Who do you want to depose?

[00:06:58] Speaker 04:
Martinez and Sanchez.

[00:06:59] Speaker 04:
And how long has it been since the fire?

[00:07:02] Speaker 04:
February 14th of 2022.

[00:07:03] Speaker 04:
So we're talking... I'm sorry, 23.

[00:07:07] Speaker 04:
A year and a half.

[00:07:08] Speaker 04:
Yeah.

[00:07:09] Speaker 04:
And so why do you need to preserve their testimony?

[00:07:13] Speaker 04:
What are they going to not remember?

[00:07:16] Speaker 04:
It's already been a year and a half.

[00:07:20] Speaker 04:
Why do you need to preserve this?

[00:07:22] Speaker 04:
Why won't their recollection be good enough, particularly if you let them know that you're going to ask them later on?

[00:07:29] Speaker 04:
Why do you need to preserve the testimony at this point?

[00:07:32] Speaker 02:
Well, for a number of reasons.

[00:07:35] Speaker 02:
Number one, they've both been transferred already.

[00:07:38] Speaker 04:
Number two, there was another- How does that affect it?

[00:07:41] Speaker 04:
I'm sorry?

[00:07:42] Speaker 04:
You say that's the reason, but why does that show you need to preserve it if they've already been transferred?

[00:07:48] Speaker 02:
Well, they've been transferred to a facility not too far away, but they could be transferred at any time.

[00:07:53] Speaker 02:
They could be transferred to somewhere else in the state 400 miles away.

[00:07:57] Speaker 02:
And what if they were?

[00:07:59] Speaker 02:
You wouldn't be able to depose them?

[00:08:01] Speaker 02:
We would, but here's the problem we're going to run into.

[00:08:04] Speaker 02:
And by the way, we had had one that deposed a third person, Mr. Candelaria,

[00:08:08] Speaker 02:
But he died, so now his testimony is gone, despite your reference to take that.

[00:08:16] Speaker 04:
Witnesses can always die.

[00:08:18] Speaker 04:
That's true, they can.

[00:08:19] Speaker 04:
Okay, so but what's specific about this case that requires you to preserve the testimony?

[00:08:26] Speaker 02:
Well, because of the other events that have happened.

[00:08:31] Speaker 02:
Number one, very early on when I approached the post office and made an amicable request

[00:08:37] Speaker 02:
to take the sworn statements of these people, like Mr. Sellers volunteered to do, like Mr. Luton volunteered to do, all we got was opposition and objections.

[00:08:48] Speaker 02:
And an objection, one objection that wasn't even well founded in the law, a sovereign immunity objection.

[00:08:53] Speaker 04:
There is... As you're saying this, explain why this means you have to preserve.

[00:09:00] Speaker 04:
If they're giving improper objections, why is that any different from what they do at a deposition?

[00:09:07] Speaker 02:
Well, because here's what's going to happen.

[00:09:09] Speaker 02:
As we all know, memories fade with time, right?

[00:09:13] Speaker 02:
To do what the post office wants us to do, to file a lawsuit on incomplete information without having to take the statements from the people, the single people who are actually on the site, the only two who actually have first-hand knowledge, make us go through a lawsuit, make us go through objections, motions for protective order, interim appeals.

[00:09:34] Speaker 02:
It's gonna be years before we get a chance to even talk to these people.

[00:09:37] Speaker 02:
And it's not necessary because as the case law says that we've cited in our briefs, if there is a danger, that testimony may be lost.

[00:09:49] Speaker 02:
And remember, we already have the U.S.

[00:09:51] Speaker 02:
Attorney telling the postal workers, don't talk to the insurance investigator.

[00:09:55] Speaker 02:
So what's the next thing?

[00:09:56] Speaker 02:
Well, if you talk to the investigator, don't tell him anything.

[00:10:00] Speaker 02:
So this testimony is already being impeded, right?

[00:10:03] Speaker 02:
And they're already scared, right, because they had a US attorney talk to them and tell them not to even talk to an insurance investigator.

[00:10:11] Speaker 02:
So they're going to talk to me, they're going to talk to the person who may be making the claim against the post office.

[00:10:18] Speaker 04:
I don't see why it takes longer to file suit, set a deposition, than it does to go through the process you're going through.

[00:10:27] Speaker 04:
How are you preserving?

[00:10:30] Speaker 02:
Well, normally it shouldn't.

[00:10:32] Speaker 02:
As I weave my weight through this, normally verified petitions for Rule 27 preservation of testimony are supposed to be fairly quick.

[00:10:42] Speaker 02:
That's not what happened here.

[00:10:44] Speaker 02:
What happened is it got assigned to a magistrate.

[00:10:46] Speaker 02:
The magistrate issues a recommendation.

[00:10:49] Speaker 02:
We timely filed objections and exceptions to the recommendation.

[00:10:53] Speaker 02:
Then it went to Judge Strickland.

[00:10:54] Speaker 02:
Then Judge Strickland parroted that.

[00:10:56] Speaker 02:
So now we are here on that.

[00:10:59] Speaker 02:
And that is a relatively short time frame compared to federal litigation, if we had instituted it, to deal with motions for protective orders, sovereign immunity objections, which could come up on... Well, that can happen when... That, the same thing can happen if you, if they set the deposition and you got those objections.

[00:11:17] Speaker 02:
No, no, you know, not on our Rule 27.

[00:11:19] Speaker 02:
In Rule 27, you can't object?

[00:11:22] Speaker 02:
No, they can object, but they can't raise objections like sovereign immunity.

[00:11:26] Speaker 02:
because there's no affirmative claim being made against the post office.

[00:11:30] Speaker 03:
Is that the whole reason for this?

[00:11:32] Speaker 03:
I've kind of wondered that.

[00:11:33] Speaker 03:
I thought maybe that you didn't feel you had enough information to survive a 12b6 and you were seeking discovery so that you could do that.

[00:11:42] Speaker 03:
But what you just said there, you would get an advantage speaking to them before filing a suit because they can't make these sovereign immunity objections and so forth, so you'll get more information

[00:11:54] Speaker 03:
Is that what this is all about?

[00:11:56] Speaker 03:
No, that is not what this is about.

[00:11:58] Speaker 03:
The rule says that it's up to you that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought.

[00:12:14] Speaker 03:
You could walk down the street and file a lawsuit tomorrow, couldn't you?

[00:12:17] Speaker 03:
That's what I struggle with.

[00:12:20] Speaker 03:
understanding.

[00:12:21] Speaker 02:
You could, but you're adding all these different layers of difficulty to it where the testimony is in danger of being lost, especially in light of what the U.S.

[00:12:29] Speaker 02:
Attorney has already instructed the witnesses to do.

[00:12:32] Speaker 03:
But isn't this rule, the witness has terminal cancer.

[00:12:36] Speaker 03:
I need to speak to them immediately and get them on the record or moving to Cameroon or wherever else.

[00:12:43] Speaker 03:
That, I understand that.

[00:12:46] Speaker 03:
as far as the need to perpetuate the testimony because otherwise it's going to be lost.

[00:12:50] Speaker 03:
But to Judge Hartz's point, we're not talking about testimony being lost unless a witness dies immediately before you can file a lawsuit.

[00:13:00] Speaker 02:
But see, that's one of the points I was making up front that the magistrate, Warren Booth, and Judge Strickland are basically putting conditions onto or limitations onto taking these statements at any given point in time.

[00:13:16] Speaker 02:
The witness has to be dying, or the witness has to be incarcerated with a terminal illness, or the witness has to have some other life-threatening emergency.

[00:13:24] Speaker 02:
The case law doesn't say that, nor does the rule say that.

[00:13:29] Speaker 02:
There's nothing in the rule itself that puts those limitations on this.

[00:13:35] Speaker 04:
What Judge Phillips was pursuing seems the heart of the case.

[00:13:41] Speaker 04:
You could file the suit and set depositions.

[00:13:44] Speaker 04:
You're not doing that.

[00:13:46] Speaker 04:
And it's not clear why you're doing it.

[00:13:50] Speaker 04:
He picked up on your comment that if you tried to take a deposition if your suit was filed, you'd get a sovereign immunity defense.

[00:14:01] Speaker 04:
So why should, if you have a legitimate ground for objecting to testimony, if you file a suit, I would think you'd have a legitimate argument.

[00:14:15] Speaker 04:
If you go to the process you're going through for preservation of testimony.

[00:14:23] Speaker 02:
What is the purpose of Rule 27?

[00:14:25] Speaker 02:
To preserve testimony that may be lost later and there's no guidelines or standards in the rule that says what you have to show.

[00:14:35] Speaker 04:
The issue we're having I think is factual.

[00:14:39] Speaker 04:
You probably recited the rule correctly.

[00:14:42] Speaker 04:
How does it apply to your case?

[00:14:44] Speaker 04:
Why can't you go through the usual process?

[00:14:48] Speaker 04:
File suit and set depositions.

[00:14:50] Speaker 04:
It's confusing to me.

[00:14:52] Speaker 04:
Because it's going to lead to unnecessary litigation.

[00:14:56] Speaker 04:
Because you're going to discover that you don't have a cause of action, so you won't sue?

[00:15:01] Speaker 04:
I'm sorry, Judge.

[00:15:03] Speaker 04:
Is it going to be unnecessary litigation because you think after you take these depositions, you'll realize you don't have a case and you won't sue?

[00:15:10] Speaker 04:
So what's the unnecessary litigation?

[00:15:12] Speaker 02:
The unnecessary litigation are the objections that the government's going to be able to assert inside of a lawsuit, which they would not be able to do if a Rule 27 statement was scheduled.

[00:15:23] Speaker 02:
They can't do that.

[00:15:24] Speaker 04:
Do you argue those points in your brief?

[00:15:25] Speaker 04:
Yes, I do.

[00:15:26] Speaker 04:
You argued below, you told the Magistrate Judge of the District Court, or both, that

[00:15:32] Speaker 04:
Look, if we wait to file suit and seek depositions, they'll raise these objections, which they can't raise now.

[00:15:40] Speaker 04:
You said that, and you had authority for why that would happen?

[00:15:45] Speaker 02:
They say that.

[00:15:45] Speaker 02:
I talked about the U.S.

[00:15:47] Speaker 02:
Attorney telling the witnesses not to talk to the insurance investors.

[00:15:50] Speaker 02:
All these things, they're all in our briefs.

[00:15:52] Speaker 02:
Okay.

[00:15:53] Speaker 02:
Thank you.

[00:15:55] Speaker 02:
Okay.

[00:15:55] Speaker 02:
Your time is over.

[00:15:56] Speaker 04:
30 seconds.

[00:15:57] Speaker 04:
No, you're over 30 seconds.

[00:15:58] Speaker 04:
Oh, I'm over?

[00:15:59] Speaker 04:
Okay.

[00:16:00] Speaker 04:
I'll sit down.

[00:16:01] Speaker 04:
Thank you.

[00:16:03] Speaker 04:
Time flies, huh?

[00:16:04] Speaker 04:
We were having fun.

[00:16:06] Speaker 04:
Mr. Keeney.

[00:16:19] Speaker 00:
May it please the court, Emil Keeney.

[00:16:21] Speaker 00:
I'm with the US Attorney's Office in Albuquerque, and we represent the Postal Service of Respondents.

[00:16:31] Speaker 00:
We asked the court to affirm.

[00:16:32] Speaker 00:
I think the district court's ruling was correct on two points.

[00:16:36] Speaker 00:
And the district court rejected this petition on two grounds.

[00:16:43] Speaker 00:
One, that petitioner failed to show why the lawsuit couldn't be brought.

[00:16:50] Speaker 00:
And second, why the testimony he sought to take was in any danger of being lost.

[00:16:56] Speaker 00:
And I'd like first to address his position that

[00:17:02] Speaker 00:
he needs to file this Rule 27 petition to avoid unnecessary litigation.

[00:17:09] Speaker 00:
Rule 27 isn't a tool to avoid litigation.

[00:17:14] Speaker 00:
It's that contemplates that litigation is going to happen and that it's a tool for preserving evidence or testimony for that contemplated litigation.

[00:17:28] Speaker 00:
So I think the entire way

[00:17:30] Speaker 00:
that Mr. Workman is looking at this rule is kind of backwards.

[00:17:35] Speaker 04:
But moving on to what the district court... He's not really saying you wouldn't have a lawsuit.

[00:17:40] Speaker 04:
He's saying there will be issues that would be raised in the lawsuit that would not be raised under Rule 27.

[00:17:49] Speaker 04:
I'm not sure I understand how that works, but that seems to be his point.

[00:17:55] Speaker 04:
He's contemplating litigation, but he thinks if he

[00:18:01] Speaker 04:
if he files suit and then sets depositions, there will be defenses to the depositions that prevent him from getting the evidence.

[00:18:09] Speaker 04:
And those objections would not apply if he's seeking a deposition under Rule 27.

[00:18:15] Speaker 00:
I don't see anything in the rule that says that because what the rule says is you have to show what the substance of the testimony you're taking is going to be and also what

[00:18:28] Speaker 00:
that the party expects to be a, the petitioner expects to be a party to an action cognizable in the United States court.

[00:18:35] Speaker 00:
So he has to state what kind of action he's going to bring.

[00:18:39] Speaker 00:
I think we would be able to assert objections in a Rule 27 proceeding just as in litigation.

[00:18:45] Speaker 00:
But again, I think that's, look, Rule 27 isn't a tool to circumvent the legitimate defenses a party could raise.

[00:18:54] Speaker 00:
If he thinks we're gonna raise defenses

[00:18:57] Speaker 00:
First of all, I don't even know what defenses we're going to raise because we don't know exactly what kind of claims he's going to bring.

[00:19:03] Speaker 00:
But if he brings claims that we have defenses, we should have a right to have those litigated.

[00:19:08] Speaker 00:
This isn't a tool to circumvent that.

[00:19:10] Speaker 00:
What about the Coast Guard case?

[00:19:11] Speaker 00:
I think the Fourth Circuit case.

[00:19:14] Speaker 00:
That case, I think it helps prove our point.

[00:19:17] Speaker 00:
What happened there?

[00:19:19] Speaker 00:
Do you mean the Dulamar case you were talking about?

[00:19:21] Speaker 03:
Yes, which I think has been referenced.

[00:19:23] Speaker 00:
Okay.

[00:19:24] Speaker 00:
I don't think it involved the Coast Guard necessarily.

[00:19:26] Speaker 00:
What it involved was

[00:19:28] Speaker 00:
The petitioner was a party who rented a ship from an owner.

[00:19:34] Speaker 00:
And they brought cargo from Australia to the United States.

[00:19:38] Speaker 00:
And part of their agreement was, look, the owner says, I guarantee this ship's going to be in good condition.

[00:19:45] Speaker 00:
And the petitioner thought there were all kinds of mechanical problems.

[00:19:50] Speaker 00:
So then what petitioner did is they said, we're going to file a lawsuit because you breached this lease.

[00:19:56] Speaker 00:
We want to examine the vessel.

[00:19:59] Speaker 00:
and preserve that testimony or preserve evidence about the condition of the engine to allow us to bring lawsuit.

[00:20:08] Speaker 00:
And the basis of the court's decision was that the ship owner contemplated repairs on the engine, which would alter its condition.

[00:20:17] Speaker 00:
And also, they were going to take it outside the United States.

[00:20:21] Speaker 00:
So it's really a case about evidence being lost.

[00:20:24] Speaker 00:
And that doesn't apply here.

[00:20:26] Speaker 00:
It's exactly the reverse.

[00:20:27] Speaker 00:
Mr. Workman is the party who controls all the physical evidence.

[00:20:32] Speaker 00:
The building and the property belongs to him.

[00:20:34] Speaker 00:
He can do whatever he wants with it.

[00:20:36] Speaker 00:
He can have experts come in.

[00:20:37] Speaker 00:
And he said he's going to bring experts in to look at it and determine the cause of the fire.

[00:20:43] Speaker 00:
So if there's any party that could file a Rule 27 petition, it would be us.

[00:20:48] Speaker 00:
But we're not doing that.

[00:20:50] Speaker 00:
But that's why we think that case doesn't really

[00:20:54] Speaker 01:
Well, how about the fact that the employees potentially will be transferred far and distant away?

[00:21:04] Speaker 00:
He hasn't shown any reason to think they're going to be.

[00:21:07] Speaker 00:
That could always happen, I suppose.

[00:21:11] Speaker 01:
Yeah, I mean, federal employees are reassigned to different places all the time.

[00:21:19] Speaker 01:
Is that not enough to say to establish that?

[00:21:22] Speaker 00:
No, it's not enough.

[00:21:23] Speaker 01:
So this gets really where I'm interested is what would be enough and how would you ever find that out?

[00:21:34] Speaker 01:
What is the standard?

[00:21:37] Speaker 00:
Well, I think what would be enough would be a party, a deponent potentially leaving the jurisdiction of the court.

[00:21:45] Speaker 00:
And so, for example, leaving the country where you can't oppose them.

[00:21:51] Speaker 00:
You can't even subpoena them for deposition.

[00:21:53] Speaker 00:
If these are all, all three of these people he wants to depose are post office employees.

[00:21:58] Speaker 00:
So if we're sued, we would have an obligation and sued in a way that makes their testimony relevant.

[00:22:05] Speaker 00:
We could be ordered to produce them for deposition.

[00:22:08] Speaker 00:
So I don't, I don't see any, there's no, there's no reason to think that's, that's not possible here.

[00:22:17] Speaker 00:
And one of them does live in Georgia.

[00:22:19] Speaker 00:
If he were this, so,

[00:22:23] Speaker 00:
Employees are deposed who live in other parts of the US all the time.

[00:22:27] Speaker 00:
I don't think that's the sort of obstacle.

[00:22:29] Speaker 00:
It would have to be something removed from the power of a court to enforce it on either the postal service or the deponent to appear for a deposition.

[00:22:40] Speaker 00:
And how would he find that out?

[00:22:41] Speaker 00:
The rule doesn't really say how he would go about finding that out.

[00:22:49] Speaker 00:
I'm sorry, finding what out?

[00:22:51] Speaker 00:
I thought that Judge Eyed had asked how would a

[00:22:54] Speaker 00:
petitioner go about finding out whether someone is about to move or not?

[00:22:59] Speaker 01:
Well, I mean, are you requiring them to say something with particularity with regard to moving?

[00:23:06] Speaker 01:
And I guess your answer is yes, but how would that ever be accomplished?

[00:23:16] Speaker 00:
I don't know, Your Honor.

[00:23:19] Speaker 00:
The rule doesn't explain how that can be done.

[00:23:22] Speaker 01:
Well, the rule doesn't say much, right?

[00:23:24] Speaker 01:
Right.

[00:23:25] Speaker 01:
And that's why we're here, right?

[00:23:26] Speaker 01:
So, I mean, help me, I guess, understand what degree of particularity is reasonable to expect someone who wants to get a rule 27 petition granted.

[00:23:41] Speaker 01:
What degree of particularity would you impose?

[00:23:47] Speaker 00:
Some actual reason to think the witness is not going to be able to, that a petitioner, if he files a lawsuit, is not going to be able to depose the witness.

[00:23:59] Speaker 00:
And the rule places it on the burden on him to show that.

[00:24:03] Speaker 00:
So for example, if he drove by one of their houses and saw a for sale sign, that might be a fact.

[00:24:09] Speaker 00:
And the cases don't really explain how petitioners come by their facts either.

[00:24:14] Speaker 00:
But some of them are able to do so.

[00:24:16] Speaker 00:
but it's still his burden.

[00:24:18] Speaker 00:
What isn't sufficient is just speculation that someday one of these deponents might move outside the jurisdiction of the court, and I might someday be unable to depose them.

[00:24:31] Speaker 00:
And now the one deponent he sought who died, and he pointed that out in his argument, that is true.

[00:24:38] Speaker 00:
Mr. Candelaria died during the pendency of the appeal, but Mr. Workman never alleged in the district court

[00:24:46] Speaker 00:
that Mr. Candelaria had cancer or was about to die.

[00:24:50] Speaker 00:
And I don't even know if he was about to die when the case is pending in the district court.

[00:24:57] Speaker 00:
Some of the reasons that he suggests for the witnesses not being available are reasons that are not legally sufficient.

[00:25:04] Speaker 00:
For example, he's mentioned the passage of time, which affects people's memories.

[00:25:08] Speaker 00:
And that no doubt is true.

[00:25:11] Speaker 00:
But the case law said that that sort of general

[00:25:14] Speaker 00:
that allegation is not sufficient to satisfy that requirement because otherwise every petition would have to be granted.

[00:25:22] Speaker 00:
And Rule 27 is meant to be a narrow tool to accomplish discovery and only narrow certain circumstances.

[00:25:31] Speaker 00:
The transfer to another post office, we've addressed that.

[00:25:36] Speaker 00:
He's talked about physical evidence being lost and

[00:25:40] Speaker 00:
There's nothing really Rule 27 can do for him there because he controls that evidence.

[00:25:45] Speaker 00:
And then the other thing he's discussed is, well, they're not letting me take the witnesses' depositions and statements right now.

[00:25:55] Speaker 00:
The U.S.

[00:25:55] Speaker 00:
Attorney's Office has said that it's not going to allow that and so on and so forth.

[00:26:01] Speaker 00:
And I think that the position of the Postal Service is that if you're going to take the depositions of our witnesses,

[00:26:10] Speaker 00:
They need to come, it needs to be done in the proper legal way.

[00:26:14] Speaker 00:
You need to file a lawsuit so that we know what you're claiming and then you can take depositions potentially during such a lawsuit.

[00:26:22] Speaker 00:
Not that, and so the decision of the Postal Service to invoke its right to have that occur during that legal process is not itself a reason for circumventing the process.

[00:26:34] Speaker 03:
Is that the CFR 265.12 you're talking about?

[00:26:38] Speaker 03:
Oh no, no.

[00:26:39] Speaker 00:
That's a different issue, I think.

[00:26:41] Speaker 00:
I'm just talking about his general allegation that, look, basically what he's saying in his briefs is, look, I've asked nicely to take these witnesses' statements and you won't allow it unless you're making me go through them.

[00:26:57] Speaker 03:
What is the U.S.

[00:26:58] Speaker 03:
attorney relying on to say you can't talk to these people?

[00:27:01] Speaker 00:
You know, I don't know exactly.

[00:27:03] Speaker 00:
I think

[00:27:04] Speaker 00:
I didn't know, he doesn't say what the, I've been unable to determine who it was that this investigator actually spoke to.

[00:27:12] Speaker 00:
And the investigator didn't know either.

[00:27:15] Speaker 00:
So I don't know exactly what the motivation was.

[00:27:17] Speaker 03:
Well, that CFR is demands for testimony of records and certain legal proceedings, postal service.

[00:27:23] Speaker 00:
Right, those, I think he's referring to the R2E regulations.

[00:27:27] Speaker 00:
And I think the argument we made in the district court, which the court didn't reach,

[00:27:32] Speaker 00:
was that those regulations only come into play when there's pending litigation, an actual lawsuit.

[00:27:38] Speaker 00:
So if you were to disagree with us and the case were to be remanded, then we would invoke that issue again probably before the district court.

[00:27:48] Speaker 00:
But it's not one the district court passed on yet.

[00:27:51] Speaker 00:
I don't think you need to reach it because if you rule in our favor on the Rule 27 petition, then there's never any need to reach that unless he files a lawsuit and then that issue may come up again.

[00:28:05] Speaker 00:
As far as the district court's first basis for denying the petition was that Mr. Workman failed to show that he's unable to presently bring a lawsuit.

[00:28:20] Speaker 00:
And the only ground he really offers for his inability is that he says, look, I'm just unable to because I'm not going to be able to meet rule 11.

[00:28:29] Speaker 00:
And the case law there, again, is universal that that's not a reason.

[00:28:35] Speaker 00:
It's not a tool to engage in ordinary discovery.

[00:28:41] Speaker 00:
So unless the court has other questions for us, we'd ask that you affirm the district court's decision.

[00:28:49] Speaker 00:
Thank you.

[00:28:50] Speaker 00:
All right, thanks.

[00:28:54] Speaker 02:
I'm out of time, Ray.

[00:28:56] Speaker 04:
Yes, if you want to correct something, I can give you 20 or 30 seconds, but not a second more.

[00:29:01] Speaker 04:
I mean, you've made a full argument.

[00:29:03] Speaker 02:
I'm not sure you knew it.

[00:29:04] Speaker 02:
Yeah.

[00:29:05] Speaker 02:
I think the court understands the position.

[00:29:10] Speaker 02:
I just want to highlight what Judge Ede is my senator.

[00:29:14] Speaker 02:
Aye.

[00:29:15] Speaker 02:
Aye.

[00:29:16] Speaker 02:
Judge, I'd say, and the point I wanted to strike, there are no standards.

[00:29:20] Speaker 02:
That's the problem.

[00:29:22] Speaker 02:
There are no standards that say when and how you do X, Y, Z, A, B, and C. Like you said, there's not a lot in the rule.

[00:29:30] Speaker 02:
So if it's not in there that says we can't do it, I don't think the court can modify that rule and say, well, we're going to stick additional provisions in there.

[00:29:39] Speaker 02:
That's for Congress.

[00:29:40] Speaker 02:
Thank you, counsel.

[00:29:41] Speaker 02:
That's it.

[00:29:42] Speaker 02:
Thank you all.

[00:29:46] Speaker 04:
Thank you, counsel.

[00:29:46] Speaker 04:
Case is submitted.

[00:29:48] Speaker 04:
Counselor excused.

[00:29:50] Speaker 04:
Turn to our last case of the day.