Rule 27 — Depositions to Perpetuate Testimony

Fed. R. Civ. P. 27

• Source: Federal Rules of Civil Procedure
• Rule: 27
• TITLE V: DISCLOSURES AND DISCOVERY
• Citation: Fed. R. Civ. P. 27

Text

(a) BEFOREANACTIONISFILED.
(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 per-
sons 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 pe-
titioner’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 address-
es, so far as known; and
(E) the name, address, and expected substance of the tes-
timony 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 publi-
cation 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 dep-
osition was filed.
(4) Using the Deposition. A deposition to perpetuate testi-
mony may be used under Rule 32(a) in any later-filed district-
court action involving the same subject matter if the deposi-
tion 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) PENDINGAPPEAL.
(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 no-
tice 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 tes-
timony of each deponent; and
(B) the reasons for perpetuating the testimony.
(3) Court Order. If the court finds that perpetuating the testi-
mony 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 dis-
trict-court action.
(c) PERPETUATION BY AN ACTION. This rule does not limit a
court’s power to entertain an action to perpetuate testimony.

Advisory Committee Notes

(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.)