More Categories

Rule 27 – Discovery Before Action or Pending Appeal

May 14, 2021 | Civil Procedure, Vermont

(a)Before Action.

(1)Petition. A person who desires to perpetuate testimony or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of the state may file a verified petition in the superior court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of the state but is presently unable to bring it or cause it to be brought; (2) the subject matter of the expected action and the petitioner’s interest therein; (3) the facts which the petitioner desires to establish by the proposed testimony or other discovery and the petitioner’s reasons for desiring to perpetuate or obtain it; (4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known; and (5) the names and addresses of the persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the petitioner expects to elicit or obtain from each, 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 or to seek discovery under Rule 34 or 35 from the persons named in the petition.
(2)Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 21 days before the date of hearing the notice shall be served either within or without the state in the manner provided in Rule 4(d), (e), or (k), for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4(d), (e), or (k), an attorney who shall represent them and whose services shall be paid for by the petitioner in an amount fixed by the court, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 17(b) apply.
(3)Order and Examination. If the Presiding Judge is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice, the judge shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). Discovery may then be had in accordance with these rules. For the purpose of applying these rules to discovery before action each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such discovery was filed.
(4)Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in any court of this state, in accordance with the provisions of Rules 32(a) and (b).
(b)Pending Appeal. If an appeal has been taken from a judgment of a superior court or before the taking of an appeal if the time therefor has not expired, the superior court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony or may allow discovery under Rule 34 or 35 for use in the event of further proceedings in the superior court. In such case the party who desires to perpetuate the testimony or obtain the discovery may make a motion therefor in the superior court, upon the same notice and service as if the action was pending in the superior court. The motion shall show (1) the names and addresses of persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the party expects to elicit or obtain from each; (2) the reasons for perpetuating their testimony or seeking such other discovery. If the Presiding Judge finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, the judge shall make an order as provided in paragraph (3) of subdivision (a) of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in actions pending in a superior court.
(c)Recording With Superior Clerk. Any deposition to perpetuate testimony taken before action or pending appeal together with the verified petition therefor and certificate of the officer before whom it was taken shall, within 90 days after the taking, be recorded in the office of the clerk of the county where the land or any part of it lies, if the deposition relates to real estate; if not, of the county where the parties or any of them reside.

Vt. R. Civ. P. 27

Amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rule 27(a)(2) is amended to extend its 20-day time period to 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.