Arizona

Family Law

Family Law

Rule 54 – Discovery Before an Action Is Filed or Pending an Appeal

(a)Before an Action Is Filed.

(1)Petition. A person who wants to perpetuate testimony-including his or her own-or to obtain discovery to preserve evidence about any matter cognizable in any court may file a verified petition in the superior court in the county where any expected adverse party resides. The petition must be titled in the petitioner’s name and must:

(A) show that the petitioner expects to be a party to an action cognizable in a court but cannot presently bring it or cause it to be brought;
(B) identify the subject matter of the expected action and the petitioner’s interest;
(C) show the facts that the petitioner desires to establish by the proposed discovery and the reasons for perpetuating it in advance of the expected action;
(D) identify the name or a description of each person whom the petitioner expects to be an adverse party and the person’s address to the extent known;
(E) identify the name and address of each person from whom discovery is sought-who may but need not be a person identified as an expected adverse party under Rule 54(a)(1)(D) -and the evidence the petitioner expects to obtain from the discovery; and
(F) ask for an order (i) directing the clerk to issue a subpoena under Rule 52 at the petitioner’s request to obtain testimony or other evidence from each named person in order to preserve the testimony or other evidence; (ii) under Rule 63, for a physical or mental examination of an expected adverse party or of a person in the custody or under the legal control of an expected adverse party; or (iii) permitting the petitioner’s deposition under Rule 57 to preserve his or her testimony.
(2)Hearing Required. Unless the petitioner and all expected adverse parties file a stipulation agreeing to the discovery requested in the petition, or unless the court orders otherwise for good cause, the court must hold a hearing on the relief that the petition seeks.
(3)Notice and Service. Unless the court orders otherwise for good cause, 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 at least 20 days before the hearing date. If an expected adverse party is incompetent, Rule 37(b) applies. The petition and notice may be served either inside or outside Arizona in the same manner that a summons and pleading are served under Rules 40(f)(1) or 41, as applicable. If the petition seeks an order under Rule 63 for a physical or mental examination, the petition and notice must be served on the expected adverse party whose examination is sought or who has custody or legal control of the person whose examination is sought. In all other instances, if service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise.
(4)Opposition and Reply. Unless the court orders otherwise, any expected adverse party may file an opposition to the petition at least 5 days before the hearing date. The opposition must be served on the petitioner and each other expected adverse party using any of the methods described in Rule 43. Unless the court orders otherwise, the petitioner may not file a reply memorandum.
(5)Order and Effect.

(A)Order. If satisfied that perpetuating the testimony or preserving other evidence may prevent a failure or delay of justice, the court must enter an order that:

(i) identifies each person who may be served with a subpoena under Rule 52 to obtain testimony or for the inspection of documents or premises and specifies the subject matter of the permitted examination;
(ii) permits the physical or mental examination of an expected adverse party or of a person in the custody or under the legal control of an expected adverse party; or
(iii) permits the deposition of the petitioning party.
(B)Effect and Use. Discovery authorized by the court must be conducted, and may be used, as provided in these rules. A reference in these rules to the court where an action is pending means, for this rule’s purposes, the court where the petition for the discovery was filed. A deposition to perpetuate testimony taken under these rules may be used under Rule 59 in any later-filed action in an Arizona state court involving the same subject matter. Subpoena recipients have the rights of nonparties under Rule 52 regardless of whether they are identified as an expected adverse party under Rule 54(a)(1)(D).
(C)Appointment of Counsel. If a court authorizes a deposition, but an expected adverse party is not served in the same manner that a summons and pleading are served under Rules 40(f)(1) or 41, as applicable, and is otherwise unrepresented by counsel, the court must appoint an attorney to represent that expected adverse party and to cross-examine the deponent. The petitioner must pay for an appointed attorney services in an amount fixed by the court.
(b)Pending Appeal.

(1)Generally. The superior court that rendered judgment may, if an appeal has been taken or may still be taken, permit a party to conduct discovery under the rules to preserve evidence for use in any later superior court proceedings in that action.
(2)Motion. A party who seeks to perpetuate testimony or preserve evidence under the rules may move for leave to conduct discovery. The moving party must provide the same notice and serve the motion in the same manner as if the action was still pending in superior court. The motion must:

(A) identify the name and address of each person to be deposed or from whom discovery under the rules is sought, and the expected substance of the testimony or other discovery; and
(B) show the reasons for perpetuating the testimony or other discovery.
(3)Order and Effect. If satisfied that perpetuating the testimony or preserving the other evidence may prevent a failure or delay of justice, the court may order the requested discovery. Discovery authorized by the court must be conducted, and may be used, as provided in these rules.

Ariz. R. Fam. Law. proc. 54

Added Oct. 19, 2005, effective Jan. 1, 2006. Amended Sept. 5, 2007, effective Jan. 1, 2008; amended effectiveJan. 1, 2019.