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Rule 27. Depositions before action orpending appeal.

(a) Before action.

(a)(1) Petition. A person who desires to perpetuate testimony regarding any matter thatmay be cognizable in any court of this state may file a verified petition in thedistrict court of the county in which any expected adverse party may reside.The petition shall be entitled in the name of the petitioner and shall state:(1) that the petitioner expects to be a party to an action cognizable in acourt of this state but is presently unable to bring it or cause it to bebrought, (2) the subject matter of the expected action and the petitioner'sinterest therein, (3) the facts to be established by the proposed testimony andthe reasons to perpetuate it, (4) the names or a description of the personsexpected to be adverse parties and their addresses so far as known, and (5) thenames and addresses of the persons to be examined and the substance of thetestimony expected to be elicited from each, and shall ask for an order authorizingthe petitioner to take the depositions of the persons to be examined named inthe petition, for the purpose of perpetuating their testimony.

(a)(2) Notice and service. The petitioner shall thereafter serve a notice uponeach person named in the petition as an expected adverse party, together with acopy of the petition, stating that the petitioner will apply to the court, at atime and place named therein, for the order described in the petition. At least21 days before the date of hearing the notice shall be served either within orwithout the district or state in the manner provided in Rule 4(d) forservice of summons; but if such service cannot with due diligence be made uponany expected adverse party named in the petition, the court may make such orderas is just for service by publication or otherwise, and shall appoint, forpersons not served in the manner provided in Rule 4(d),an attorney who shall represent them, and, in case they are not otherwiserepresented, shall cross-examine the deponent. If any expected adverse party isa minor or incompetent the provisions of Rule17(c)apply.

(a)(3) Order and examination. If the court is satisfied that the perpetuation ofthe testimony may prevent a failure or delay of justice, it shall make an orderdesignating or describing the persons whose depositions may be taken andspecifying the subject matter of the examination and whether the depositionsshall be taken upon oral examination or written interrogatories. Thedepositions may then be taken in accordance with these rules; and the court maymake orders of the character provided for by Rules 34 and 35. Forthe purpose of applying these rules to depositions for perpetuating testimony,each reference therein to the court in which the action is pending shall bedeemed to refer to the court in which the petition for such deposition wasfiled.

(a)(4) Use of deposition. If a deposition to perpetuate testimony is takenunder these rules or if, although not so taken, it would be admissible inevidence in the courts of the state in which it is taken, it may be used in anyaction involving the same subject matter subsequently brought in any court ofthis state, in accordance with the provisions of Rule 32(a).

(b) Pending appeal. If an appeal has been taken from a judgment of adistrict court or before the taking of an appeal if the time therefor has notexpired, the district court in which the judgment was rendered may allow thetaking of the depositions of witnesses to perpetuate their testimony for use inthe event of further proceedings in such court. In such case the party whodesires to perpetuate the testimony may make a motion in the district court forleave to take the depositions, upon the same notice and service thereof as ifthe action was pending in the district court. The motion shall show (1) thenames and addresses of persons to be examined and the substance of thetestimony which expected to be elicited from each; and (2) the reasons forperpetuating their testimony. If the court finds that the perpetuation of thetestimony is proper to avoid a failure or delay of justice, it may make anorder allowing the depositions to be taken and may make orders of the characterprovided for by Rules 34 and 35, andthereupon the depositions may be taken and used in the same manner and underthe same conditions as are prescribed in these rules for depositions taken inactions pending in the district court.

(c) Perpetuation by action. This rule does not limit the power of a court toentertain an action to perpetuate testimony.

AdvisoryCommittee Notes