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Rule 2-404 – Perpetuation of Evidence

May 13, 2021 | Civil Prodcedure, Maryland

(a) Before Action Instituted.

(1)Right to Take. A person who may have an interest in an action that the person expects to be brought may perpetuate testimony or other evidence relevant to any claim or defense that may be asserted in the expected action in accordance with these rules. In applying these rules, a person who files or is served with a notice, request, or motion shall be deemed a “party and references to the “court in which the action is pending shall be deemed to refer to the court in which the notice, request, or motion is filed.
(2)Notice, Request, Motion. The notice of deposition required by Rule 2-412, the request for production of documents required by Rule 2-422, and the motion for mental or physical examination required by Rule 2-423 shall include a description of the subject matter of the expected action, a description of the person’s interest in the expected action, the facts that the person desires to establish through the evidence to be perpetuated, the person’s reasons for desiring to perpetuate the evidence, and, in the case of a deposition, the substance of the testimony that the person expects to elicit and a statement that any person served has a right to be present. The notice, request or motion shall include a statement that the information sought may be used in a later action.
(3)Filing. The notice, request, or motion shall be filed in the circuit court in the county of residence of any expected resident adverse party. If the expected adverse party is not a resident of this State, the notice, request, or motion shall be filed in the circuit court in any county where venue of the expected action would be proper. The clerk shall index the notice, request, or motion under the name of the person seeking to perpetuate evidence as plaintiff and under the names of the persons served. All motions, responses, and orders of court shall be filed. Unless otherwise ordered by the court, if the person seeking to perpetuate evidence or any other person who may be interested in the matter requests, the deposition, the documents or other things produced, or any reports shall be filed under seal. The clerk shall make appropriate docket entries.
(4)Service. The notice, request, or motion shall be served in the manner provided by Chapter 100 of this Title for service of summons on each person against whom the testimony or other evidence is expected to be used and on any other interested person. If the court orders that service be made upon a person in accordance with Rule 2-122, the court may appoint an attorney to represent that person.
(5)Subpoena or Court Order. No sanctions shall be available against a person from whom evidence is sought under this Rule in the absence of service of a subpoena or court order.
(6)Use of Perpetuated Evidence. Evidence perpetuated in accordance with the requirements of this section may be used in any court in any action involving the same subject matter and against any person served with a notice, request, or motion in the manner provided by subsection (a)(4) of this Rule. Depositions may be used to the extent permitted by Rule 2-419. Use of a report of findings or of testimony of an examining physician or physicians shall be subject to the order required by Rule 2-423.
(b) Pending Appeal. After an appeal has been taken or before an appeal is taken if the appeal period has not expired, the circuit court in which the judgment or appealable order was entered may allow perpetuation of evidence for use in the event of further proceedings in that court. A motion for leave to perpetuate evidence shall be filed and served as if the action were pending in the circuit court. The motion shall identify (1) the reasons for perpetuating evidence, (2) the persons to be examined and the substance of the testimony expected from each, and (3) the documents or things to be inspected and preserved, if any. If the court finds that perpetuation of the evidence is proper to avoid a failure or delay of justice, it may enter an order allowing depositions to be taken, permitting documents and tangible things to be inspected or copied as provided by Rule 2-422, or requiring submission to a mental or physical examination as provided by Rule 2-423. The court’s order may include any provision which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Testimony perpetuated in accordance with this section may be used to the extent permitted by Rule 2-419. Use of evidence perpetuated in accordance with this section shall be subject to the court’s order permitting it to be perpetuated.

Md. R. Civ. P. Cir. Ct. 2-404

This Rule is derived as follows:

Section (a)

Subsection (a)(1) is derived from the 1971 version of Fed. R. Civ. P. 27 and former Rule 402.

Subsection (a)(2) is new.

Subsection (a)(3) is new and replaces former Rule 402 d.

Subsection (a)(4) is new.

Subsection (a)(5) is new.

Subsection (a)(6) is new and replaces former Rule 402 e.

Section (b) is derived from the 1971 version of Fed. R. Civ. P. 27(b).

Adopted April 6, 1984, eff. July 1, 1984. Amended June 3, 1988, eff. July 1, 1988; Nov. 12, 2003, eff. Jan. 1, 2004.

HISTORICAL NOTES

2003 Orders

The November 12, 2003, order amended the source note.