In re Lewis

HEDRICK, Judge.

G.S. 1A-1, Rule 27 (b), in pertinent part, provides:

“(b) Depositions before action for obtaining information to prepare a complaint.—

(1) Petition. — A person who expects to commence an action but who desires to obtain information from an expected adverse party or from any person for whose immediate benefit the expected action will be defended for the purpose of preparing a complaint may file a verified petition in the county where any expected adverse party resides or in the county where resides any person for whose immediate benefit the expected action will be defended. . . .

The petition shall be entitled in the name of the petitioner and shall show (i) that the petitioner expects to commence an action cognizable in a court of this State, (ii) the names and addresses of the expected adverse parties, (iii) the nature and purpose of the expected action, (iv) the subject matter of the expected action and the petitioner’s interest therein, (v) why the petitioner is unable to prepare a complaint with the information presently available, and (vi) that the petition is filed in good faith. The petition shall also designate with reasonable particularity the matters as to which information will be sought.”

Rule 27 (b) replaces the former statutes providing the procedure for obtaining an order to take the deposition of an adverse party to obtain information to prepare a complaint or other pleading.

The former procedure, G.S. 1-568.4, as well as Rule 27 (b), provides that only adverse parties or expected adverse parties may be examined. Prior to the effective date of Rule 27 (b), a party could not examine an adverse party for the purpose of obtaining information to prepare a complaint or other pleading until the action had been commenced by the issuance and service of summons. Under Rule 27 (b), the petitioner is required to allege that the person to be examined is an “expected adverse party.”

Since Rule 27 (b) provides that a petition may be filed before an action is commenced by the issuance and service of summons, it seems essential that the verified petition contain an unequivocal allegation that the petitioners expect to commence an action cognizable in the courts of this State, along with the names and addresses of the expected adverse parties, and that the party to be examined is an expected adverse party. No such allegation appears in the petition in the instant case. The petition shows on its face that the petitioners are not seeking information to enable them to prepare a complaint, but that they are seeking information for the purpose of determining whether they have a valid claim which they may or may not commence.

The petitioners allege: “[T]hat petitioners need further information from McDowell before a formal complaint against him and/or any complainant can be filed, * * * and without such information petitioners are unable to determine against whom their action should be brought.” (Emphasis ours)

In this regard, the North Carolina Supreme Court, in Washington v. Bus, Inc., 219 N.C. 856, p. 858, 15 S.E. 2d 872 (1941), said: “But the court will not permit a party to spread a dragnet for an adversary to gain facts upon which to sue him, or to harass him under the guise of a fair examination.”

The petitioners allege generally that they have been wronged, embarrassed and damaged by an investigation conducted by the Forsyth County Department of Social Services, but they have not described the nature of any action they expect to commence, nor, as was said earlier, against whom they expect to bring any such action. It is essential under Rule 27 (b) that the nature and purpose of any expected action be described in the petition in such detail as will enable the court to determine whether the information sought to be obtained from an expected adverse party is material and necessary to enable the petitioners to prepare their complaint. Bailey v. Matthews, 156 N.C. 78, 72 S.E. 92 (1911) ; Jones v. Guano Co., 180 N.C. 319, 104 S.E. 653 (1920).

A petition which shows on its face that the information sought is not necessary to enable petitioner to prepare a complaint will not support an order for such examination. Chesson v. Bank, 190 N.C. 187, 129 S.E. 403 (1925) ; Knight v. Little, 217 N.C. 681, 9 S.E. 2d 377 (1940).

It is our opinion that the petition in the instant case, when considered in the light of the requirements of Rule 27(b), is insufficient to support an order to examine the respondent to obtain information to enable the petitioners to prepare a complaint.

The order appealed from is

Reversed and the petition is dismissed.

Judges Brock and Morris concur.