dissenting.
Because NDRCivP 27(a) is a discovery rule and authorizes pre-complaint discovery, I respectfully dissent.
Rule 27 is positioned in the discovery part of the civil rules of procedure. Rule 27(a)(3) cross-refers to explicit discovery rules: “The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35.” Rule 26(a) diagrams the range of discovery authorized in this part of the rules:
Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions ...; production of documents or things or permission to enter upon land or other property ...; physical and mental examinations; and requests for admission.
Discovery is an implicit part of any formal process to gather evidence.
Even before modern civil rules authorized discovery in all cases, discovery was a well developed equity practice. 8 Boone, Wait’s Actions and Defenses, p. 560 (1894). “The jurisdiction in equity for discovery is ancient and well settled, and originated in the absence of power in courts of law to compel a discovery by their own pro-cess_” Id. at 560. “A bill of discovery may be maintained to aid the plaintiff in a suit which he intends immediately to bring, as well as in a suit already brought, if the bill discloses a cause of action.” Id. at 561. See also 5 Jones, Commentaries on the Law of Evidence, § 2041, p. 3787-88 (Henderson ed. 1926) (“[A] bill of discovery may be filed for the discovery of facts in the knowledge of an adverse party, or of deeds or writings, or other things in his custody and power, and is usually employed to enable the complainant to prosecute or defend an action.”); Story, Commentaries on Equity Pleadings, § 322, p. 315 (8th ed. 1870) (“Where the bill is brought before any action, it is usual to aver in the bill, that the discovery of the facts is necessary to enable the party to commence his suit right.”); Sunderland, Discovery Before Trial Under the New Federal Rules, 15 Tenn.L.Rev. 737, 740-41 (1939) (“By a bill for discovery the plaintiff could obtain information upon which it might be possible to frame a complaint in an action not yet commenced.”). Harmon’s “expected action” was “to prevent wrongful termination” of her employment. The transcript shows that Harmon was terminated by the Hospital before the trial court heard her motion.
The majority opinion correctly recognizes that Rule 27(a) authorizes obtaining pre-complaint production of documents, citing Martin v. Reynolds Metals Corporation, 297 F.2d 49 (9th Cir.1961). Martin explains that, after the Federal Rules of Civil Procedure were first promulgated in 1938, a clause was added to Rule 27(a) to authorize a court to “make orders of the character provided for by Rules 34 and 35.” Id. at 56. Today, this needs more explanation. At.first, discovery of documents required good cause and a court order. See Explanatory Notes to Rule 34, Federal Rules of Civil Procedure. Rule 34 was amended in 1970 to make document production automatic, without a court order “unless the request is objected to.” North Dakota Rules of Civil Procedure have also adopted those changes. NDRCivP 27(a) and 34(b).1 *409Discovery of documents is now guided by standards of relevancy and lack of privilege, subject to protective orders for unduly burdensome, expensive, or repetitious demands. NDRCivP 26(b)(1). Unexpressed restrictions should not foreclose discovery of relevant, unprivileged documents.2
To be sure, the federal decisions followed by the majority generally hold that Rule 27(a) discovery is unavailable for the purpose of framing a complaint. However, “the rule does not in express terms state that it may not be availed of for the sole purpose of framing a complaint.” Petition of Ferkauf, 3 F.R.D. 89, 90 (S.D.N.Y.1943). This unfavorable federal attitude apparently stems from remarks of one of the members of the Advisory Committee on the Federal Rules at early symposiums on the new rules. Ferkauf, 3 F.R.D. at 90. Overlooked has been the fact that members of the Advisory Committee disagreed on that point at the symposiums. Pike and Willis, Federal Discovery in Operation, 7 U.Chi. L.Rev. 297, 321 (1939-40). “[T]he most debatable question raised by the Rule [27]: whether the rule may be used for purposes of discovery before the filing of a complaint. In our previous article it was pointed out that the rule itself was not entirely clear and that state courts were not in agreement on the point. Commentators also disagreed.” (Footnote omitted). Viewed in the light of the historical development of the Federal Rules of Civil Procedure, the federal decisions refusing discovery to aid in preparation of a complaint seem anomalously hostile to the basic concept of discovery. The unfavorable federal decisions are wrong historically and wrong textually. They should not be followed.
There are a handful of helpful decisions. Two were cited in the Explanatory Note to FRCivP 26 when it was first adopted: Arizona v. California, 292 U.S. 341, 54 S.Ct. 735, 78 L.Ed. 1298 (1934), in an opinion by Justice Brandéis, declined, for relevancy reasons, to allow a deposition to perpetuate testimony, but viewed the process favorably. “No bill to perpetuate testimony has heretofore been filed in this Court; but no reason appears why such a bill may not be entertained in aid of litigation pending in this Court, or to be begun here. Bills to perpetuate testimony had been known as an independent branch of equity jurisdiction before the adoption of the Constitution.” Id. at 347, 54 S.Ct. at 737. (Emphasis added). Another forerunner, Hall v. Stout, 4 Del. Chancery 269 (1871), granted a bill to perpetuate testimony even though a separate ejectment action had been commenced against the complainant after filing his bill.
Bills to perpetuate testimony proceed, not on the ground of imminent risk of loss before a pending suit can reach a trial, but on the ground that the party not being in a situation to bring his title to a trial, his evidence may be lost through lapse of time, a risk affecting all evidence, irrespective of any particular condition of a witness. The right to this relief, therefore, does not depend upon the condition of the witness, but upon the situation of the party, and his power to bring his rights to an immediate investigation.
4 Del. Chancery at 274. These predicates for Rule 27 lean toward a more liberal interpretation than federal courts have given it so far.
Under Rule 27 and equivalent state rules of procedure, several courts have been more open to pre-complaint discovery. In Petition of Ernst, 2 F.R.D. 447 (D.C.Cal. 1942), the court granted a petition to perpetuate testimony in anticipation of action by the Commissioner of Internal Revenue to tax certain gifts and trust transfers by a decedent. The court said that lapse of time is replete with hazards and unexpected events, so that a showing, that a petitioner is presently unable to bring the expected action, is sufficient to demonstrate the dan*410ger of the loss of evidence by delay and to satisfy the requirements of Rule 27. Block v. Superior Court of Los Angeles County, 219 Cal.App.2d 469, 33 Cal.Rptr. 205, 98 A.L.R.2d 901 (1963) approved a trial court’s order of a physical examination of a potential plaintiff at the petition of one who expected to be sued for his injuries. State v. Taira, 78 N.M. 276, 430 P.2d 773 (1967) approved a trial court’s order allowing the highway commission to conduct before and after surveys to determine adverse effects of construction of viaducts on adjacent property in anticipation of inverse condemnation actions, even though the cause of action had not yet accrued. Disclosure of the surveys was also ordered notwithstanding a claim that they would be “work product” of counsel. These decisions demonstrate that discovery is a proper purpose of Rule 27.
The Minnesota Supreme Court considered a trial court’s order that a chiropractor be deposed on behalf of a former patient to obtain information for a statutory certification necessary to file a malpractice complaint. Sandmann v. Petr on, 404 N.W.2d 800 (Minn.1987). A majority of the Minnesota Supreme Court joined in prohibiting the deposition, largely following federal decisions that Rule 27 is not a discovery device to enable a plaintiff to prepare a proper complaint. Two justices dissented. Justice Yetka’s dissenting opinion said that Minnesota’s rule 27.01, like the identical federal rule, “is broad enough to permit such a deposition given its command: ‘If the court is satisfied that the perpetuation of testimony may prevent a failure or delay of justice_’” (Emphasis by Justice Yetka). His opinion went on to say:
The majority places too narrow and too conservative an interpretation on this rule. Such barren interpretations of rules promote more uncertainty and litigation rather than less.
404 N.W.2d at 803. I agree with Justice Yetka. Production of evidence expedites justice. Enabling preparation of a complaint surely prevents delay of justice.
The majority opinion in this case sees some inconsistency between prohibiting pre-complaint discovery and NDRCivP 11 sanctions for an unsupported complaint. The majority opinion discounts that inconsistency because the civil rules originally liberalized and simplified pleading. Neglected in this abbreviated analysis is the increased stringency for pleadings imposed by recent amendments to Rule 11. The Federal Rules remodeled Rule 11 in 1980 and North Dakota followed suit in 1986. Rule 11 now sanctions much misconduct in filing pleadings.
The recharged Rule 11 enlarged the range of misconduct by attorneys and their clients in pleadings which carry sanctions. Today, three kinds of submitted papers bring on sanctions: those not “well grounded in fact”; those not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law”; and those “interposed for any improper purpose.” NDRCivP 11. The rule now requires a “reasonable” prefiling inquiry into the law and the facts. Id. Today, the judge must impose a sanction for a Rule 11 violation, although the judge still retains discretion in the choice of the sanction. Id. The Committee Notes to FRCivP 11 explain that the rule goes beyond mere bad faith. Rule 11 now encompasses objectively unreasonable prefiling inquiries and submissions:
The new language stresses the need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule. The standard is one of reasonableness under the circumstances .... This standard is more stringent than the original good-faith formula and thus it is expected that a greater range of circumstances will trigger its violation....
Committee Notes, FRCivP 11. (Citations omitted). See also Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 892 F.2d 802 (9th Cir.1989), cert, granted, — U.S.-, 110 S.Ct. 3235, 111 L.Ed.2d 746 (1990). I cannot agree with the majority that “Harmon has not demonstrated that she is unable to frame an adequate complaint.” If that has ever *411been a reason to deny prefiling discovery, it is no longer.
The guiding standard for use of Rule 27 is to “prevent a failure or delay of justice.” The trial court concluded that Harmon had made the showings called for by Rule 27(a)(1). I disagree with the majority that the rule requires any specific showing that the evidence “sought to be preserved is in danger of being lost or altered.” The rule does not say that. Even if endangerment of the evidence is a factor, I believe that, as Hall v. Stout pointed out many years ago, lapse of time itself is a risk affecting all evidence, and that the trial court was free to disbelieve contrary assurances by the hospital. I do not believe that the trial court abused its discretion in ordering the Hospital to give Harmon a copy of her personnel file. Therefore, I respectfully dissent.
. Note, also, that NDRCivP 34(c), similarly derived from the Federal Rules of Civil Procedure, explains:
This rule does not preclude an independent action against a person not a party for pro*409duction of documents and things and permission to enter upon land.
. Mercy Hospital claimed no privilege. Instead, the Hospital claimed that a vague internal policy inhibited an employee from obtaining a copy of her personnel file. A private policy should not control court discovery.