dissent">YETKA, Justice

(dissenting).

I would discharge the writ on the ground that the plaintiff should be able to take the deposition. Minn.Stat. § 145.682 (1986), which requires the plaintiff to certify that an expert is available before a malpractice suit can be brought, places an attorney in the dilemma of compromising the statement réquired or forfeiting his client’s case. If, simply by filing a statement that he has an expert available, an attorney gains the right to take a deposition soon afterwards, what sense is there in prohibiting depositions before a complaint is filed? It seems to me that Minn.R.Civ.P. 27.01 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, it shall make an order designating and describing the persons whose depositions may be taken * * MinmR.Civ.P. 27.01(3) (emphasis added).

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. The original purpose of the Rules of Civil Procedure adopted over 35 years ago was to break away from the strict common law rules of procedure and to bring out all the facts of a case. If a chiropractor does not keep notes or a medical history, taking his deposition may be the only means of eliciting the evidence necessary for consultation with an outside expert.

Commentators support pre-action discovery in medical malpractice actions. See 1 D. Louisell & H. Williams, Medical Malpractice § 10.01 (1986). Their view is that:

[Mjalpractice “reform” legislation should include statutory provisions which clearly would enable patients to procedure medical records without delay and at reasonable cost, and possibly to take depositions, before being forced to file suit without sufficient facts in hand. Definitive pre-filing discovery has the potential for precluding ill-founded suits and discouraging precipitous filing of all suits.

Id. at 10-5. California has recognized this difficulty and amended its medical malpractice statute to provide for certification after, rather than at the time of, filing. See Cal.Civ.Proc.Code § 411.30 (West Supp.1987); Strauch v. Superior Court of Sacramento County, 107 Cal.App.3d 45, 165 Cal.Rptr. 552 (1980).

Since Rule 27.01 permits the taking of a deposition not only to prevent a delay, but to prevent a failure of justice, I would allow the deposition to be taken. Therefore, I dissent.

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