§ Civ R 27 Perpetuation of testimony--depositions before action or pending appeal

Civ R 27 Perpetuation of testimony--depositions before action or pending appeal

(A) Before action

(1) Petition. A person who desires to perpetuate his own testimony or the testimony of another person regarding any matter that may be cognizable in any court may file a petition in the court of common pleas in the county of the residence of any expected adverse party. The petitioner shall verify that he believes the facts stated in the petition are true. The petition shall be entitled in the name of the petitioner and shall show:

(a) That the petitioner or his personal representatives, heirs, beneficiaries, successors, or assigns may be parties to an action or proceeding cognizable in a court but is presently unable to bring or defend it;

(b) The subject matter of the expected action or proceeding and his interest therein (if the validity or construction of any written instrument connected with the subject matter of the deposition may be called in question a copy shall be attached to the petition);

(d) The names or, if the names are unknown, a description of the persons he expects will be adverse parties and their addresses so far as known;

(e) The names and addresses of the persons to be examined and the subject matter of the testimony which he expects to elicit from each.

The petition shall then 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.

(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 twenty-eight days before the date of hearing, unless the court upon application and showing of extraordinary circumstances prescribes a hearing on shorter notice, the notice shall be served either within or outside of this state by a method provided in Rule 4 through Rule 4.6 for service of summons, or in any other manner affording actual notice, as directed by order of the court. But if it appears to the court that an expected adverse party cannot be given actual notice, the court shall appoint a competent attorney to cross-examine the deponent; such attorney shall be allowed reasonable fees therefor which shall be taxed as costs. If any expected adverse party is a minor or incompetent the provisions of Rule 17(B) apply

(3) Order and examination.If the court is satisfied that the allowance of the petition may prevent a failure or delay of justice, and that the petitioner is unable to bring or defend the contemplated action, the court shall order the testimony perpetuated, designating the deponents, the subject matter of the examination, when, where, and before whom their deposition shall be taken, and whether orally or upon written questions. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rule 34, Rule 35 and Rule 37. For the purpose of applying these rules to depositions for perpetuating testimony, 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 deposition was filed.

(4) Use of deposition.Subject to the same limitations and objections as though the deponent were testifying at the trial in person, and to the provisions of Rule 26 and Rule 32(A) a deposition taken in accordance with this rule may be used as evidence in any action subsequently brought in any court, where the deposition is that of a party to the action, or where the issue is such that an interested party in the proceedings in which the deposition was taken had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the deposition is offered. But, except where the deposition is that of a party to the action and is offered against the party, the deposition may not be used as evidence unless the deponent is unavailable as a witness at the trial.

(B) Pending appeal

If an appeal has been taken from a judgment of any court, a party who desires to perpetuate testimony may make a motion in the court where the action was tried, for leave to take depositions upon the same notice and service thereof as provided in (A)(2) of this rule. The motion shall show the names and addresses of the persons to be examined, the subject matter of the testimony which he expects to elicit from each, and the reasons for perpetuating their testimony. If the court is satisfied that the motion is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken and may make orders of the character provided for by Rule 34, Rule 35, and Rule 37. The depositions may be taken and used in the same manner and under the same conditions as are prescribed for depositions in Rule 26 and Rule 32(A).

This rule does not limit the inherent power of a court to entertain an action to perpetuate testimony.

(D) Filing of depositions

Depositions taken under this rule shall be filed with the court in which the petition is filed or the motion is made.

(E) Costs of deposition

The party taking any deposition under this rule shall pay the costs thereof and of all proceedings hereunder, unless otherwise ordered by the court.

(F) Depositions taken in other states

A deposition taken under similar procedure of another jurisdiction is admissible in this state to the same extent as a deposition taken under this rule.

(G) Construction of rule

This rule shall be so construed as to effectuate the general purpose to make uniform the law of those states which have similar rules or statutes.