The old adage that the early bird catches the worm is as true in
litigation as it is in ornithology. The sooner that important
evidence can be evaluated and preserved, the better the chances for
a successful outcome.
Applying this adage to litigation, would be plaintiffs may
consider filing a lawsuit, and then seeking accelerated discovery
to determine whether the underlying claim has merit, or not. Such
an approach may have some pitfalls, including ethical and the
remote possibility that the defendant may not readily consent to a
dismissal for filing what turns out to be a frivolous lawsuit.
Some state courts allow for limited pre‐suit discovery
but the criteria and requirements are not always consistent. The
Federal Rules of Civil Procedure, however, provide a uniform
standard when pre‐action "discovery" can be
obtained. Strictly speaking the relief sought is not discovery, as
the rule is utilized to preserve evidence. Federal Rule 27, titled
"Depositions to
