Rule 27. Depositions before action or pending appeal. - North Carolina Statutes

Rule 27. Depositions beforeaction or pending appeal.

(a)        Before action. –

(1)        Petition. – A personwho desires to perpetuate his own testimony or that of another person regardingany matter may file a verified petition in the appropriate court in a countywhere any expected adverse party resides. The petition shall be entitled in thename of the petitioner and shall show: (i) that the petitioner expects that he,or his personal representative, heirs, legatees or devisees, will be a party toan action cognizable in any court, but that he is presently unable to bring itor cause it to be brought, (ii) the subject matter of the expected action andhis reasons for desiring to perpetuate it, (iii) the facts which he desires toestablish by the proposed testimony and his reasons for desiring to perpetuateit, (iv) the names or a description of the persons he expects will be adverseparties and their addresses so far as known, and (v) the names and addresses ofthe persons to be examined and the substance of the testimony which he expectsto elicit from each, and shall ask for an order authorizing the petitioner totake the depositions of the persons to be examined named in the petition, forthe purpose of perpetuating their testimony.

(2)        Notice and Service.– The petitioner shall thereafter serve  a notice upon each person named in thepetition 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 namedtherein, for the order described in the  petition. At least 20 days before thedate of hearing (or within such time as the court may direct) the notice shallbe served in the manner provided in Rule 4(j)(1) or (2) for service of summons;but if such service cannot with due diligence be made upon any expected adverseparty named in the petition, the court may make such order as is just forservice by publication or otherwise, and shall appoint, for persons not servedin the manner provided in Rule 4(j)(1) or  (2), an attorney who shall representthem, in case they are not otherwise represented. If any expected adverse partyis a minor or incompetent the provisions of Rule 17(c) apply.

(3)        Order andExamination. – If the court is satisfied that the  perpetuation of thetestimony may prevent a failure or delay of justice, it shall make an orderdesignating or describing the persons whose depositions may be taken andspecifying the subject matter of the examination and whether the depositionsshall be taken upon oral examination or written questions. The depositions maythen be taken in accordance with these rules; and the court may make orders ofthe character provided for by Rules 34 and 35. For the purpose of applyingthese rules to depositions for perpetuating testimony, each reference thereinto the court in which the action is pending shall be deemed to refer to thecourt in which the petition for such deposition 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 theUnited States or the state in which it is taken, it may be used in any actioninvolving the same subject matter subsequently brought in a court of this Statein accordance with the provisions of Rule 32(a), or in any other court underwhose rules it is admissible.

(b)        Pending appeal. –If an appeal has been taken from the determination of any court or if petitionfor review or certiorari has been served and filed, or before the taking of anappeal or the filing of a petition for review or certiorari if the timetherefor has not expired, the court in which the determination was made mayallow the taking of the depositions of witnesses to perpetuate their testimonyfor use in the event of further proceedings in the trial court. In such casethe party who desires to perpetuate the testimony may make a motion in thetrial court for leave to take the depositions, upon the  same notice andservice thereof as if the action was pending in the trial court. The motionshall show (i) the names and addresses of the  persons to be examined and thesubstance of the testimony which he expects to elicit from each; (ii) thereasons for perpetuating their testimony. If the court finds that theperpetuation of the testimony is proper to avoid a failure or delay of justice,it may make an order allowing the depositions to be taken and may make ordersof the character provided for by Rules 34 and 35, and thereupon the depositionsmay be taken and used in the same manner and under the same conditions as areprescribed in these rules for depositions taken in actions pending in the trialcourt.

(c)        Perpetuation byaction. – This rule does not limit the power of a court to entertain an actionto perpetuate testimony. (1967, c. 954, s. 1; 1975, c. 762, s. 2.)