Rule 37 Perpetuation of Testimony or Evidence Before Action or Pending Appeal

A Before Action.

A(1) Petition. A person who desires to perpetuate testimony or to obtain discovery to perpetuate evidence under TCR 43 regarding any matter within the jurisdiction of this court may file a petition for such in this court. The petition must be entitled in the name of the petitioner and must show: (a) that the petitioner, or the petitioner’s personal representatives, heirs, beneficiaries, successors, or assigns are likely to be a party to an action cognizable in this court and are presently unable to bring such an action or defend it, or that the petitioner has an interest in real property or some easement or franchise therein, about which controversy may arise, which would be the subject of such action; (b) the subject matter of the expected action and petitioner’s interest therein and a copy, attached to the petition, of any written instrument the validity or construction of which may be called into question or which is connected with the subject matter of the expected action; (c) the facts which petitioner desires to establish by the proposed testimony or other discovery and petitioner’s reasons for desiring to perpetuate; (d) the names or a description of the persons petitioner expects will be adverse parties and their addresses so far as one is known; and (e) the names and addresses of the parties to be examined or from whom discovery is sought and the substance of the testimony or other discovery which petitioner expects to elicit and obtain from each. The petition must name persons to be examined and ask for an order authorizing the petitioner to take their depositions for the purpose of perpetuating their testimony, or must name persons in the petition from whom discovery is sought and must ask for an order allowing discovery under TCR 43 from such persons for the purpose of preserving evidence.

A(2) Notice and Service. The petitioner must 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. The notice must be served either within or without the state in the manner provided for service of summons in TCR 7, but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and will appoint, for persons not served with summons in the manner provided in TCR 7, an attorney who will represent them and whose services will be paid for by petitioner in an amount fixed by the court, and, in case they are not otherwise represented, will cross-examine the deponent. Testimony and evidence perpetuated under this rule will be admissible against expected adverse parties not served with notice only in accordance with the applicable rules of evidence. If any expected adverse party is a minor or incompetent, the provisions of TCR 27 apply.

A(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony or other discovery to perpetuate evidence may prevent a failure or delay of justice, it will make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions will be taken upon oral examination or written questions; or will make an order designating or describing the persons from whom discovery may be sought under TCR 43 specifying the objects of such discovery. Discovery may then be had in accordance with these rules.

B Pending Appeal. If an appeal has been taken from a judgment of this court or before the taking of an appeal, if the time therefor has not expired, the court may allow the taking of the depositions of witnesses to perpetuate their testimony or may allow discovery under TCR 43 for use in the event of further proceedings in this court. In such case, the party who desires to perpetuate the testimony or obtain the discovery may make a motion upon the same notice and service thereof as if the action was pending in this court. The motion must show: (1) the names and addresses of the persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the party expects to elicit from each; and (2) the reasons for perpetuating their testimony or seeking such other discovery. If the court finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, it may make an order as provided in subsection (3) of section A of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in actions pending in this court.

C Perpetuation by Action. This rule does not limit the power of the court to entertain an action to perpetuate testimony.

D Filing of Depositions. Depositions taken under this rule must be filed with the court.