(a) Before an Action is Filed.
(1) Petition. A person who
desires wants to perpetuate testimony
regarding about any
matter may file a verified petition in the district court of the county of the residence
any expected adverse opposing party resides. The petition
must be entitled in the name of
ask for an order authorizing the petitioner to depose the named persons in order to
perpetuate their testimony. The petition must be titled in the petitioner's name and
(i) (A) that the petitioner expects to be a party to an action but
is cannot presently unable
to bring it or cause it to be brought ,;
(ii) (B) the subject matter of the expected action and the
petitioner's interest therein,;
(iii) (C) the facts that the petitioner
desires wants to establish by the proposed testimony
and the reasons for desiring to perpetuate it ,;
(iv) (D) the names or a description of the persons whom
the petitioner expects will to be
adverse opposing parties and their addresses, so far as
known ,; and
(v) (E) the names and addresses of the persons to be
examined and the name, address, and
expected substance of the testimony which the petitioner expects to elicit
from of each
deponent , 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
(2) Notice and Service. At least
20 21 days before the hearing
date, the petitioner must
serve each expected adverse opposing 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.Rule 4. If that service cannot
be made with due
reasonable diligence on an expected adverse opposing 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. Rule 4 and to cross-examine
the deponent if an
unserved person is not otherwise represented. N.D.R.Civ.P. 17(b) applies if
If any expected
adverse opposing party is a minor or is incompetent, Rule 17(b)
(3) Order and Examination. If satisfied that perpetuating the testimony may prevent a
failure or delay of justice, the court
is satisfied that the perpetuation of the testimony
prevent a failure or delay of justice, it shall make must issue an order
describing that designates or describes the persons whose depositions may be
specifying specifies the subject matter of the examination
examinations, and states whether
the depositions shall must be taken upon oral
examination orally or by written
interrogatories. The depositions may then be taken in accordance with
under these rules ;,
and the court may make issue orders of the character provided
for like those authorized by
Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating
testimony, each A reference therein in these rules to
the court in which the where an action
is pending shall be deemed to refer to means, for purposes of this rule,
the court in which
where the petition for such the deposition was filed.
Use of Using the Deposition. If a A
deposition to perpetuate testimony may be used
under Rule 32(a) in any later-filed action involving the same subject matter if the deposition
either is was 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
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).
(b) Pending Appeal.
(1) In General.
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 The court
in which where
the judgment was has been rendered may, if an appeal has been
taken or may still be taken,
allow the taking of the depositions of permit a party to depose
witnesses to perpetuate their
testimony for use in the event of further proceedings in the district that
In that case, the The party who
desires wants to perpetuate testimony may make
a motion in the district court move for leave to take the depositions,
upon on the same notice
and service thereof as if the action was were pending
in the district court. The motion must
(i)(A) the names and addresses of persons to be
examined and the name, address, and
expected substance of the testimony which the party expects to elicit from
of each deponent ,;
(ii)(B) the reasons for perpetuating their
(3) Court Order. If the court finds that
the perpetuation of
perpetuating the testimony is
proper to avoid prevents a failure or delay of justice, it the
court may make an order allowing
permit the depositions to be taken and may make issue orders
of the character provided for
like those authorized by Rules 34 and 35. Thereupon, the The
depositions may be taken and
used in the same manner and under the same conditions as are prescribed in these rules
depositions as any other deposition taken in actions a
pending in the district court action.
(c) Perpetuation by an Action. This rule does not limit
court's 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 derived from Fed.R.Civ.P.
27 , with only minor changes to
conform to the court system of North Dakota.
Paragraph (a)(2) was amended, effective March 1, 2007. The language and organization of the paragraph were changed to make it more easily understood.
Paragraph (a)(2) was amended, effective ________________, to change the time to serve a notice of hearing from 20 days before the hearing date to 21 days.
Rule 27 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 27 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of April 29-30, 2010, page 12; September 25, 2008, page 22; 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.
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.
Rules N.D.R.Civ.P. 4 (Persons Subject to
Jurisdiction - Process -
Service), N.D.R.Civ.P. 17 (Parties Plaintiff and Defendant - Capacity),
(Depositions Upon Oral Examination), N.D.R.Civ.P. 32 (Use of Depositions in Court
Proceedings), N.D.R.Civ.P. 34 (Production of Documents and Things and Entry Upon
for Inspection and Other Purposes), and N.D.R.Civ.P. 35 (Physical and Mental
of Persons) , N.D.R.Civ.P.