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 ofwith the clerk of district court serving the county of the residence of any expected adverse party. The petition must be entitled in the name of the petitioner and show: (i) thatthe 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 itthe testimony, (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 the petitioner expects to elicit from each ,. and shall ask forThe petition must request 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. The petitioner shall
thereafterserve anotice of the petition upon each person named in the petition as an expected adverse party, together with a copy of the petition. , stating thatThe notice must indicate the petitioner will applyis applying to the court , at a time and place named therein,for the order described in the petition and indicate the time and place of the hearing. At least 20 days before the date of hearing the notice shallmust be served either within or without the state in the manner provided in Rule 4(d) for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4(d), an attorney who shall represent them, and, in case they are not otherwise represented, may cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 17(b) apply.
(3) Order and Examination. If the court is satisfied
thatthe perpetuation of the testimony may prevent a failure or delay of justice, itthe 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 depositions shallmust 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 thereinin these rules to the court in which the action is pending shall be deemed to referrefers 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).
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Rule 27 was amended, effective January 1, 1976; March 1, 1990; _________________________.
This rule is an adaptation of Rule 27, FRCivP, with only minor changes to conform to the court system of North Dakota.
Rule 27 was amended, effective March 1, 1990.The 1990 and ______ amendments are technical in nature and no substantive change is intended.
SOURCES: Procedure Committee Minutes of _______________________; April 20, 1989, page 2; December 3, 1987, page 11; September 20-21, 1979, page 19; Rule 27, FRCivP.
SUPERSEDED: Sections 31-0201, 31-0206, 31-0701, 31-0702, 31-0703, 31-0704, 31-0705, 31-0709, 31-0712, 31-0713, 31-0715, NDRC 1943.
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), NDRCivP.