RULE 27. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
(a) Before action.
(1) Petition. A person who desires to perpetuate testimony regarding any matter may file a verified petition in the district court of the county of the residence of any expected adverse party. The petition must be entitled in the name of the petitioner and show: (i) that the petitioner expects to be a party to an action but is presently unable to bring it or cause it to be brought, (ii) the subject matter of the expected action and the petitioner's interest therein, (iii) the facts the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, (iv) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (v) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony. (2) Notice and service. At least 20 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the state in the manner provided in N.D.R.Civ.P. 4. If that service cannot be made with due diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in N.D.R.Civ.P. 4 and to cross-examine the deponent if an unserved person is not otherwise represented. N.D.R.Civ.P. 17(b) applies if any expected adverse party is a minor or is incompetent. (3) Order and examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it 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 depositions shall be taken upon oral examination or written interrogatories. 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. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (4) Use of deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the United States or of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a district court of this state, in accordance with the provisions of Rule 32(a).
(1) Generally. --A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either:
(A) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or
(B) to investigate a potential claim or suit.
(2) Petition. --The petition must:
(A) be verified;
(B) be filed in a proper court of any county:
(i) where venue of the anticipated suit may lie, if suit is anticipated; or
(ii) where the witness resides, if no suit is yet anticipated;
(C) be in the name of the petitioner;
(D) state either:
(i) that the petitioner anticipates the institution of a suit in which the petitioner may be a party; or
(ii) that the petitioner seeks to investigate a potential claim by or against petitioner;
(E) state the subject matter of the anticipated action, if any, and the petitioner's interest therein;
(F) if suit is anticipated, either:
(i) state the names of the persons petitioner expects to have interests adverse to petitioner's in the anticipated suit, and the addresses and telephone numbers for such persons; or
(ii) state that the names, addresses, and telephone numbers of persons petitioner expects to have interests adverse to petitioner's in the anticipated suit cannot be ascertained through diligent inquiry, and describe those persons;
(G) state the names, addresses and telephone numbers of the persons to be deposed, the substance of the testimony that the petitioner expects to elicit from each, and the petitioner's reasons for desiring to obtain the testimony of each; and
(H) request an order authorizing the petitioner to take the depositions of the persons named in the petition.
(3) Notice and Service.
(A) Personal service on witnesses and persons named. At least 15 days before the date of the hearing on the petition, the petitioner must serve the petition and a notice of the hearing--in accordance with Rule 21a--on all persons petitioner seeks to depose and, if suit is anticipated, on all persons petitioner expects to have interests adverse to petitioner's in the anticipated suit.
(B) Service by publication on persons not named.
(i) Manner. --Unnamed persons described in the petition whom the petitioner expects to have interests adverse to petitioner's in the anticipated suit, if any, may be served by publication with the petition and notice of the hearing. The notice must state the place for the hearing and the time it will be held, which must be more than 14 days after the first publication of the notice. The petition and notice must be published once each week for two consecutive weeks in the newspaper of broadest circulation in the county in which the petition is filed, or if no such newspaper exists, in the newspaper of broadest circulation in the nearest county where a newspaper is published.
(ii) Objection to depositions taken on notice by publication. --Any interested party may move, in the proceeding or by bill of review, to suppress any deposition, in whole or in part, taken on notice by publication, and may also attack or oppose the deposition by any other means available.
(C) Service in probate cases. --A petition to take a deposition in anticipation of an application for probate of a will, and notice of the hearing on the petition, may be served by posting as prescribed by Section 33(f)(2) of the Probate Code. The notice and petition must be directed to all parties interested in the testator's estate and must comply with the requirements of Section 33(c) of the Probate Code insofar as they may be applicable.
(D) Modification by order. --As justice or necessity may require, the court may shorten or lengthen the notice periods under this rule and may extend the notice period to permit service on any expected adverse party.
(A) Required findings. The court must order a deposition to be taken if, but only if, it finds that:
(i) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(ii) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.
(B) Contents. --The order must state whether a deposition will be taken on oral examination or written questions. The order may also state the time and place at which a deposition will be taken. If the order does not state the time and place at which a deposition will be taken, the petitioner must notice the deposition as required by Rules 199 or 200. The order must contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure.
(5) Manner of Taking and Use. --Except as otherwise provided in this rule, depositions authorized by this rule are governed by the rules applicable to depositions of nonparties in a pending suit. The scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed. A court may restrict or prohibit the use of a deposition taken under this rule in a subsequent suit to protect a person who was not served with notice of the deposition from any unfair prejudice or to prevent abuse of this rule.
(b) Pending appeal.
If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In that case, the party who desires to perpetuate testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion must show (i) the names and addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each, and (ii) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35. Thereupon, the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the district court.
(c) Perpetuation by action.
This rule does not limit the power of a court to entertain an action to perpetuate testimony.
Rule 27 was amended, effective March 1, 1990; March 1, 2007;_____________.
This rule is an adaptation of Fed.R.Civ.P. 27 and Tex.R.Civ.P. 202
, with only minor changes to conform to the court system of North Dakota.
Subdivision (a) was amended, effective _____________, to implement a new system of pre-suit discovery that allows persons to use Rule 27 to perpetuate testimony or to investigate a potential claim or suit.
Paragraph (a)(2) was amended, effective March 1, 2007. The language and organization of the paragraph were changed to make it more easily understood.
Rule 27 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Sources: Joint Procedure Committee Minutes of _______________; January 26, 2006, page 12; April 20, 1989, page 2; December 3, 1987, page 11; September 20-21, 1979, page 19; Fed.R.Civ.P. 27; Tex.R.Civ.P. 202.
Superseded: N.D.R.C. 1943 §§ 31-0201, 31-0206, 31-0701, 31-0702, 31-0703, 31-0704, 31-0705, 31-0709, 31-0712, 31-0713, 31-0715.
Cross Reference: Rules 4 (Persons Subject to Jurisdiction - Process - Service), 17 (Parties Plaintiff and Defendant - Capacity), 30 (Depositions Upon Oral Examination), 32 (Use of Depositions in Court Proceedings), 34 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes), and 35 (Physical and Mental Examination of Persons), N.D.R.Civ.P.