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Rule 27 – Depositions to Perpetuate Testimony

May 8, 2021 | Civil Procedure, Federal

(a) BEFORE AN ACTION IS FILED.

(1)Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse 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 cognizable in a United States court 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 adverse 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 adverse 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 district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse 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 adverse party is a minor or is incompetent, Rule 17(c) 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 will 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 district-court 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 state where it was taken.
(b) PENDING APPEAL.

(1)In General. The court where a 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)Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district 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 may prevent 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 district-court action.
(c) PERPETUATION BY AN ACTION. This rule does not limit a court’s power to entertain an action to perpetuate testimony.

28 APPENDIX U.S.C. § 27

As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.

NOTES OF ADVISORY COMMITTEE ON RULES-1937 Note to Subdivision (a). This rule offers a simple method of perpetuating testimony in cases where it is usually allowed under equity practice or under modern statutes. See Arizona v. California, 292 U.S. 341 (1934); Todd Engineering Dry Dock and Repair Co. v. United States, 32 F.(2d) 734 (C.C.A.5th, 1929); Hall v. Stout, 4 Del. ch. 269 (1871). For comparable state statutes see Ark.Civ.Code (Crawford, 1934) §§666-670; Calif.Code Civ.Proc. (Deering, 1937) 2083-2089; Ill.Rev.Stat. (1937) ch. 51, §§39-46; Iowa Code (1935) §§11400-11407; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 233, §46-63; N.Y.C.P.A. (1937) §295; Ohio Gen.Code Ann. ((Throckmorton, 1936) §12216-12222; Va.Code Ann. (Michie, 1936) §6235; Wisc.Stat. (1935) §§326.27-326.29. The appointment of an attorney to represent absent parties or parties not personally notified, or a guardian ad litem to represent minors and incompetents, is provided for in several of the above statutes.Note to Subdivision (b). This follows the practice approved in Richter v. Union Trust Co., 115 U.S. 55 (1885), by extending the right to perpetuate testimony to cases pending an appeal.Note to Subdivision (c). This preserves the right to employ a separate action to perpetuate testimony under U.S.C., Title 28, [former] §644 (Depositions under dedimus potestatem and in perpetuam) as an alternate method.

NOTES OF ADVISORY COMMITTEE ON RULES-1946 AMENDMENTSince the second sentence in subdivision (a)(3) refers only to depositions, it is arguable that Rules 34 and 35 are inapplicable in proceedings to perpetuate testimony. The new matter [in subdivisions (a)(3) and (b)] clarifies. A conforming change is also made in subdivision (b).

NOTES OF ADVISORY COMMITTEE ON RULES-1948 AMENDMENTThe only changes are in nomenclature to conform to the official designation of a district court in Title 28, U.S.C., §132(a).

NOTES OF ADVISORY COMMITTEE ON RULES-1971 AMENDMENTThe reference intended in this subdivision is to the rule governing the use of depositions in court proceedings. Formerly Rule 26(d), that rule is now Rule 32(a). The subdivision is amended accordingly.

NOTES OF ADVISORY COMMITTEE ON RULES-1987 AMENDMENTThe amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES-2005 AMENDMENT The outdated cross-reference to former Rule 4(d) is corrected to incorporate all Rule 4 methods of service. Former Rule 4(d) has been allocated to many different subdivisions of Rule 4. Former Rule 4(d) did not cover all categories of defendants or modes of service, and present Rule 4 reaches further than all of former Rule 4. But there is no reason to distinguish between the different categories of defendants and modes of service encompassed by Rule 4. Rule 4 service provides effective notice. Notice by such means should be provided to any expected adverse party that comes within Rule 4.Other changes are made to conform Rule 27(a)(2) to current style conventions.Changes Made After Publication and Comment. Only style changes are recommended in the published draft.

COMMITTEE NOTES ON RULES-2007 AMENDMENT The language of Rule 27 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

COMMITTEE NOTES ON RULES-2009 AMENDMENT The time set in the former rule at 20 days has been revised to 21 days. See the Note to Rule 6.