Sims v Dutton Supplemental Brief for Respondent Appellee

    UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT.

IN THE

Nos. 24,271, 24,272.

In the Matters of:
ISAAC SIMS, JR. and RICHARD ABRAMS, 

Appellants.

A. L. DUTTON,
Warden of the Georgia State Prison, 

Respondent-Appellee.

Appeals from the United States District Court for the 
Southern District of Georgia.

BRIEF FOR RESPONDENT-APPELLEE.

ARTHUR K. BOLTON,
Attorney General,

G. ERNEST TIDWELL,
Executive Assistant Attorney General, 

CARTER A. SETLIFF,
Assistant Attorney General,

MATHEW ROBINS,
Deputy Assistant Attorney General,

JOEL FELDMAN,
Deputy Assistant Attorney General, 

HARDAWAY YOUNG, III,
Attorney,

132 Judicial Building,
40 Capitol Square,

Atlanta, Georgia,
Attorneys for Respondent-Appellee,

St. Louis Law  Pkinttng Co., I nc., 411-15 N. Eighth St., 63101. CEntral 1-4477.



INDEX.

Page

Statement .............................    1

Argum ent.....................    3
I. The Appellants Have Failed to Comply With

the Requirements of Rule 2 7 ...............................  3
II. Appellants Have Failed to Establish Either a 

Sufficient or Reasonable Basis to Support the 
Necessity of Perpetuating the Testimony in 
Question ................................    4

Conclusion .....................     6

Cases Cited.

Martin v. Reynolds Metals Corp., 297 F. 2d 4 9 ............ 6

Schlagenhanf v. Holder, 379 U. S. 104, 85 Supreme 
Court 234, 13 L. ed. 2d 152 at p. 1 6 5 ..........................  3

W. H. Elliott & Sons, Inc. v. E. & F. King & Co., 22 
F. R. D. 280 ....................................................................  6

Statutes and Rules Cited.

Federal Rules of Civil Procedure, Rule 2 7 ..............1, 3, 4, 6
Georgia Code Annotated:

Sec. 38-2102 ....................................................................  4
Sec. 40-1601 (4) .............      2
Sec. 40-1614 ....................................................................  2
Sec. 77-309 (e) ................................................................  2

Textbooks Cited.

Barron and Holtzoff, Section 673, Vol. 2 A, p. 187 ........  2
Moore’s Manual, Section 15.09 (6), p. 1200 ...................  2



UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT.

IN THE

Nos. 24,271, 24,272.

In the Matters of:
ISAAC SIMS, JR. and RICHARD ABRAMS, 

Appellants.

A. L. DUTTON,
Warden of the Georgia State Prison, 

Respondent-Appellee.

Appeals from the United States District Court for the 
Southern District of Georgia.

BRIEF FOR RESPONDENT-APPELLEE.

STATEMENT.

On August 11, 1966, Appellants Sims and Abrams filed 
petitions in the United States District Court for the 
Southern District of Georgia in which they sought, under 
Rule 27 of the Federal Rules of Civil Procedure, to per­
petuate the testimony of three named individuals.1 These 
petitions were accompanied by a Motion (which sought to 
discard the twenty-day provision provided in Rule 27) 
and Notices directed to various persons.

i Simultaneously, with the filing of the petitions in this case, the 
same counsel filed an almost identical Motion in the United States Dis­
trict Court for the Middle District of Georgia in the case of Vanleeward 
v. Rutledge, Case No. 930. On August 22, 1966, the District Judge de­
nied this petition, and on August 24, 1966, this court entered the fol­
lowing order: “The application for an order allowing the taking of tes­
timony pending appeal in the above case of the witnesses, Charles E. 
Farnsworth, Karen Davis and Dayton Olson, is denied without prejudice 
to the right to renew the application upon the submission of this case 
now fixed for hearing at Atlanta, Georgia, on September 29, 1966.” (Case 
No. 23320 in this court.) The notices served in Case No. 930 indicated 
the Motion would be presented to the court in the Middle District of 
Georgia on Monday, August 15, within 30 minutes of the time specified 
in the notice in the case at Bar.



Appellant Sims’ petition reflects that he was incar­
cerated in the Ware County Jail in Waycross, Georgia.2 
The record does not reflect any service, nor was any serv­
ice alleged to have been made upon the person having the 
custody of Appellant Sims. Neither the Sheriff nor any 
other custodial officer of Ware County was named or 
served in these proceedings.3

Appellants’ counsel served notice upon the Respondent 
that the petitions which were filed on August 11 would be 
presented to the judge for consideration on the following 
Monday, August 15, 1966.4 The purpose of these peti­
tions was an attempt to obtain an order permitting the 
taking of depositions of the three named persons in San 
Francisco, California, on August 26 and 27, 1966. That is, 
the Appellants sought a hearing on the petition within 
four (4) days after filing same and sought an order al­
lowing that the depositions be taken some fifteen (15) or 
sixteen (16) days after filing sanje.

On August 23, 1966, the district judge entered an order 
denying the Appellants’ petition and denying to grant 
leave of court for the taking of the depositions in ques­
tion.

Notwithstanding the court’s denial of these petitions, 
and without any further notice to either the court or the 
Respondent in this matter, counsel for Appellants pro­
ceeded to take the depositions in San Francisco on August 
26. These depositions have now been lodged in the trial 
court pending a determination of this appeal. (Appellants’ 
Brief, Page 11.)

2 Sims Record, Page 2.
S The record is void of any indication that Appellants complied with 

the personal service requirement as to any party. Barron and Holtzoff, 
Section 673, Vol. 2A, p. 187, and Moore’s Manual, Section 15,09 (6), p 
1200.

4 This Brief is filed by the Attorney General of the State of Georgia 
as counsel for A. L. Dutton, Warden, Georgia State Prison. Ga. Code 
Ann. 77-309 (e ) ; Ga. Code Ann. 40-1601 (4); Ga. Code Ann. 40-1614.

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3

ARGUMENT.

I. The Appellants Have Failed to Comply With the 
Requirements of Rule 27.

Paragraph (a) (1) of Rule 27 lists five requirements of 
what a petition to perpetuate must contain. The third 
requirement provides that the petition must show the facts 
which petitioner desires to establish by the proposed testi­
mony. It seems clear that the facts which the Appellants 
wish to develop and were seeking to perpetuate relate 
exclusively to the survey described on page 12 of the 
records and page 3 of their brief. On page 16 of the Abrams 
record and page 17 of the Sims record, the court will find 
under Exhibit “ A ”  a document which is evidently a copy 
of a partial and unfilled-in work sheet. Other than this 
“ Exhibit”  the record is totally silent of any other facts 
relating to this survey. Nowhere was the court below nor 
is this court furnished with any information sufficient to 
satisfy this requirement of Rule 27.

Under Paragraph (a) (2) of Rule 27, the Respondent 
would seem to be clearly entitled to at least twenty (20) 
days’ notice prior to the date when the court would hear 
and determine the issues as to whether or not an order 
should be made allowing perpetuation of the testimony 
under consideration. In the cases under consideration the 
petitions were filed on a Thursday and the Appellants 
sought a hearing on the following Monday. Not only did 
the Appellants seek to deny Respondent the twenty days’ 
notice required of this Rule, but they also were attempting 
to take the depositions less than twenty days from the 
time the petition was filed.

As Justice Goldberg stated in delivering the majority 
opinion in the case of Schlagenhauf v. Holder, 379 IT. S. 
104, 85 Supreme Court 234, 13 L. ed. 2d 152 at p. 165, 
“ The Federal Rules of Civil Procedure should be liberally



4

construed, but they should not be expanded by disregard­
ing plainly expressed limitations.”

Paragraph (a) (3) of Rule 27 provides that before testi­
mony can be perpetuated a judicial determination must be 
made and the court satisfied that such perpetuation of 
testimony may prevent a failure or delay of justice. If 
such has been sufficiently demonstrated to the court, then 
the Rule provides that the court “ shall make an order 
designating or describing the persons whose depositions 
may be taken and specifying the subject matter of the 
examination and whether the deposition shall be taken 
upon oral examination or written interrogatories. The 
depositions may then be taken in accordance with those 
rules and the court may make orders of the character pro­
vided for by Rules 34 and 35.”  The above-quoted provi­
sion clearly seems to indicate an order of the court is an 
indispensable prerequisite to the perpetuation of testimony 
under this Rule. The obvious necessity for such an order 
can not be ignored. Such an order would provide the time, 
the place, the scope and even the manner of perpetuating 
such testimony. Respondent respectfully contends that it 
is totally impossible to legally perpetuate testimony in 
the absence of such an order.5

II. Appellants Have Failed to Establish Either a Sufficient 
or Reasonable Basis to Support the Necessity of 

Perpetuating the Testimony in Question.

The Appellants in this case were seeking to take the 
depositions of Charles E. Farnsworth, Karen Davis and 
Layton Olson. All three of these individuals were alleged 
to have been field researchers in the survey referred to 
hereinbefore. The basis of Appellants’ claim that it was

5 Nor would these depositions be admissible or proper in State Court. 
The statement at the bottom of page 8 in the footnote of Appellants’ 
brief is totally inaccurate and incorrect. Georgia Code Annotated, Sec­
tion 38-2102, is essentially an enactment by the Georgia Legislature of 
Rule 27 and would certainly not furnish any basis for the admissibility 
of any testimony procured under the circumstances described herein. 
Such a reference to the Georgia Law is an apparent effort on the Ap­
pellants’ part to come within the meaning of the last Section of Rule 27.



—  5 —

necessary to perpetuate this testimony revolves around 
the allegation that Charles Farnsworth “ is about to de­
part from the United States to go to Peru”  (R. 4), and 
that inasmuch as the Appellants wanted to take his depo­
sition it would be more convenient for Appellants’ counsel 
to also take the deposition of Karen Davis and Layton 
Olson. No statement is made or alleged as to how long 
Mr. Farnsworth intended to be gone, or even whether or 
not he planned to return to the United States at all and, 
if so, when. Appellants also assert, not in their petitions 
but in the motions to shorten time (R. 8), that petitioners’ 
attorneys were just recently apprised of Farnsworth’s 
imminent departure from the United States. However, the 
actual length of time Appellants’ counsel had been aware 
of this situation is nowhere specified. Therefore, the 
Appellants’ total justification for this proceeding is the 
bare allegation in reference to Farnsworth’s impending 
trip to Peru, supported only by a “ recent”  disclosal of 
same to Appellants’ counsel.

No explanation is even attempted that would explain 
or justify the lapse of one year from the completion of 
the survey in question. The survey had been made in the 
Summer of 1965 (R. 12 and Appellants’ brief, p. 2). Cer­
tainly, under the circumstances, both the trial court, this 
court and even Respondent were entitled to some informa­
tion as to why the depositions in question could not have 
been taken during this period which had elapsed since 
the conclusion of the survey.

The record is also totally void of any facts that would 
indicate that the evidence sought to be developed from 
these three witnesses would be anything but cumulative 
of each other or that the proof or establishment of this 
survey could not be adequately developed from sources 
other than these named parties.

The tenor of Appellants’ entire argument is based upon 
a so-called liberal construction of the Federal Rules of



6

Civil Procedure. With this the Respondent has no quarrel. 
We would, however, respectfully point out to the court 
that the Appellants are attempting to invoke one part of 
Rule 27 and completely and totally ignore other portions 
which are designed for the protection of parties in the 
posture of this Respondent. Unless these requirements 
(which have not been satisfied by the Appellants) are 
needless formalities, the order of the trial court should 
be affirmed. Indeed, the courts have held that trial court 
has a wide discretion in making orders in the perpetuation 
of testimony. Martin v. Reynolds Metals Corp., 297 F. 2d 
49; W. H. Elliott & Sons, Inc. v. E. & F. King & Co., 22
F. R. D. 280.

Sustaining Appellants’ position would amount not to a 
liberal construction or liberalization of Rule 27 but a total 
abrogation of same which would permit any proposed 
party litigant to perpetuate testimony without any judi­
cial or procedural safeguard.

CONCLUSION.

Respondent respectfully contends that the judgment of 
the trial court should be affirmed in that Appellants have 
patently failed to comply with the mandatory provisions 
of Rule 27, and the Appellants have totally failed to es­
tablish any satisfactory justification for the perpetuation 
of the testimony under the existing circumstances. The 
discretion vested in the trial court has not only been prop­
erly but wisely exercised.

The alternative to affirming a reversal would have the 
effect of subjecting the Respondent to the risk of some 
totally unknown evidence developed in depositions taken 
3,000 miles away without the knowledge or consent of the 
court or the Respondent and without the benefit of the 
presence of Respondent’s representative or Respondent’s 
cross-examination.



Not only the letter but the spirit of the Federal Rules 
of Civil Procedure would seem to support an affirmance 
of Appellants’ most flagrant violation and disregard of 
the clear and reasonable procedural requirements of law.

Respondent respectfully submits that the judgment of 
the trial court should be affirmed.

ARTHUR K. BOLTON, 
Attorney General,

G. ERNEST TIDWELL,
Executive Assistant Attorney General,

CARTER A. SETLIFF, 
Assistant Attorney General,

MATHEW ROBINS,
Deputy Assistant Attorney General,

/ s / ..................................................................
JOEL FELDMAN,

Deputy Assistant Attorney General,

/ s / ......................................................................
HARDAWAY YOUNG, III,

Attorney,
Attorneys for Respondent-Appellee.

Certificate of Service.

This is to certify that service of the foregoing Brief for 
Appellee-Respondent has been made upon Jack Greenberg,



Esq.; James M. Nabrit, III, Esq.; Norman C. Amaker, 
Esq.; Michael Meltsner, Esq.; Conrad K. Harper, Esq.; 10 
Columbus Circle, New York, New York 10019, and How­
ard Moore, Jr., Esq., 859y2 Hunter Street, N. W., Atlanta, 
Georgia 30314, by mailing two copies to each counsel by
H. S. mail, air mail, postage pre-paid, addressed as indi­
cated above.

This 16 day of March, 1967.

/ s /  G. Ernest Tidwell,
Attorney for Appellee-Respondent.

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