RULE 27. DEPOSITION BEFORE ACTION OR PENDING APPEAL
(a) Before an Action is Filed.
(1) Petition. A person who
wants to perpetuate testimony regarding about any
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
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
(2) Notice and Service. At least
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
(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
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 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
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
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
In that case, the
The party who desires wants to perpetuate testimony
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
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
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; March 1, 2011.
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 March 1, 2011, 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 March 1, 2011, 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.
Statutes Affected: 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,
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.