(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 of where 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 must show:
(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 testimony.
(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(c) applies.
(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 may prevent a failure or delay of justice, it shall make must issue an order designating or describing that designates or describes the persons whose depositions may be taken, and 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.
(4) 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 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).
(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 court.
(2) Motion. 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 show:
(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,; and
(ii)(B) the reasons for perpetuating their the testimony.
(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 for 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 the a 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 increase 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 _____________; 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.
Cross Reference: Rules N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction - Process - Service), N.D.R.Civ.P. 17 (Parties Plaintiff and Defendant - Capacity), N.D.R.Civ.P. 30 (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 Land for Inspection and Other Purposes), and N.D.R.Civ.P. 35 (Physical and Mental Examination of Persons), N.D.R.Civ.P.