TITLE FIVE — DEPOSITION AND DISCOVERY
Rule 20. Depositions Before Action or Pending Appeal
Before Action.
Petition. A person who desires to perpetuate that person’s own testimony, the testimony of another person, or evidence regarding any matter that may be cognizable in any court where these rules apply may file a verified petition in the Superior Court, in the county prescribed by 7 R. Stat. §§ 131.001–131.003. The petition shall be entitled in the name of the petitioner and shall show:
that the petitioner expects to be a party to an action cognizable in a court where these rules apply but is presently unable to bring it or cause it to be brought;
the subject matter of the expected action and the petitioner’s interest therein;
the facts which the petitioner desires to establish by the proposed testimony or evidence, and the reasons for desiring to perpetuate it;
the usernames, or a description, of the persons the petitioner expects will be adverse parties;
the usernames of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each; and
where the petition seeks to perpetuate electronically stored information, a description of the information, the platform and location at which it resides, the person having control of it, and the retention limit, automatic deletion, or other circumstance by reason of which it is expected to be lost.
The petition shall ask for an order authorizing the petitioner to take the depositions of the persons named for the purpose of perpetuating their testimony, and, where Rule 20(1)(a)(vi) applies, for an order preserving the information described.
Notice and Service. The petitioner shall 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 named therein, for the order described in the petition. Not less than seventy-two (72) hours before the time of hearing, the notice shall be served in the manner provided in Rule 4 for service of a summons. If such service cannot with due diligence be made upon an expected adverse party named in the petition, the court may make such order as is just for service by other means, and shall appoint, for a person not served in the manner provided in Rule 4, an attorney who shall represent that person and, if that person is not otherwise represented, shall cross-examine the deponent.
Order and Examination. If the court is satisfied that the perpetuation of the testimony or evidence may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken, specifying the subject matter of the examination, and specifying whether the depositions shall be taken upon oral examination under Rule 23 or upon written questions under Rule 24. The order may also direct production under Rule 26 and an examination under Rule 26.2. The depositions may then be taken in accordance with these rules.
Order Preserving Electronically Stored Information. Where the petition shows that electronically stored information within a person’s control is subject to loss by platform retention limit, automatic deletion, the closure or purging of a channel or server, or the deletion or abandonment of an account, the court may order that person to preserve the information, to export or capture it in a reasonably usable form, and to refrain from deleting, editing, or purging it. An order under this paragraph operates against the person named and is enforced by proceedings for civil contempt under Rule 53. The court shall limit the order to what is necessary to prevent the loss, and may condition it upon the petitioner’s payment of the reasonable expense of compliance.
Use of Deposition. If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be admissible in evidence in the courts of this State, it may be used as provided in Rule 25 in any action involving the same subject matter subsequently brought in a court of this State.
Pending Appeal.
Application. If an appeal has been taken from a judgment of a court of this State, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses, and the preservation of evidence, to perpetuate their testimony for use in the event of further proceedings in that court.
Motion. The party who desires to perpetuate the testimony may move in the court where the judgment was rendered for leave to take the depositions upon the same notice and service as if the action were pending in that court. The motion shall show the usernames of the persons to be examined, the substance of the testimony expected of each, and the reasons for perpetuating it.
Order; Procedure. If the court finds that the perpetuation of the testimony may prevent a failure or delay of justice, it may permit the depositions to be taken and may issue orders of the kind authorized by Rule 23, Rule 24, and Rule 26. The depositions may then be taken and used as any other deposition taken in an action pending in that court. Nothing in this subdivision enlarges or diminishes the authority of the Supreme Court under the Ridgeway Rules of the Supreme Court.
Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.