(a) Before an Action is Filed.
(1) Petition. A person who wants to perpetuate testimony about any matter may file a verified petition in the district court of the county where any expected opposing party resides. The petition must 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:(A) that the petitioner expects to be a party to an action but cannot presently bring it or cause it to be brought;(B) the subject matter of the expected action and the petitioner's interest;(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;(D) the names or a description of the persons whom the petitioner expects to be opposing parties and their addresses, so far as known; and(E) the name, address, and expected substance of the testimony of each deponent.(2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected 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 Rule 4. If that service cannot be made with reasonable diligence on an expected 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 Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected opposing party is a minor or is incompetent, Rule 17(b) applies.
(3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions must be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.
(4) Using the Deposition. 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 was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the United States or of the state in which it is taken.
(b) Pending Appeal.
(1) In General. The court where the judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.
(2) the party who wants to perpetuate testimony move for leave to take the depositions, on the same notice and service as if the action were pending in the court. The motion must show:(A) the name, address, and expected substance of the testimony of each deponent; and(B) the reasons for perpetuating the testimony.(3) Court Order. If the court finds that perpetuating the testimony prevents a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending action.
(c) Perpetuation by an Action. This rule does not limit a court's power to entertain an action to perpetuate testimony.
This rule is derived from Fed.R.Civ.P. 27.
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.
CROSS REFERENCE: 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).