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§ 6-327. Depositions before action or pending appeal.

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   (a) Before Action.

   (1) Petition. A person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a petition verified by affidavit of the petitioner or his or her attorney in the district court in the district of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show:

   (i) The petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought;

   (ii) the subject matter of the expected action and his or her interest therein;

   (iii) the facts which he or she desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it;

   (iv) the names or a description of the persons he or she expects will be adverse parties and their addresses so far as known; and

   (v) the names and addresses of the persons to be examined and the substance of the testimony which he or she expects to elicit from each, and shall 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 days before the date of hearing the notice shall be served in the manner provided for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court shall order service by publication in the manner provided in Rule 30(b)(1)(B), and shall appoint, for persons not served in the manner provided for service of summons, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Neb. Rev. Stat. § 25-309 shall apply.

   (3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall 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 shall be taken upon oral examination or 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 Rules 34 and 35. 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. 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 the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a district court in this state, in accordance with the provisions of Rule 32(a).

   (b) Pending Appeal. If an appeal has been taken from a judgment of a district court, the appellate court, upon motion filed therein and notice and service thereof as if the action was pending in the district court, may remand the motion to the district court for consideration and ruling, may itself overrule the motion, or, if the appellate court finds that the perpetuation of the testimony is proper to avoid failure or delay of justice, may itself enter an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the district court. The motion shall show

   (1) the names and addresses of persons to be examined and the substance of the testimony which he or she expects to elicit from each;

   (2) the reasons for perpetuating their testimony.

   (c) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

COMMENT TO RULE 27

 

   The language of Rule 27 is substantially similar to federal rule 27 and to former Neb. Rev. Stat. §§ 25‑1267.08 to 25‑1267.13 (Repealed 1982).

Rule 27(b) amended January 14, 1998. Renumbered and codified as § 6-327, effective July 18, 2008.

Supreme Court Rules

This page was last modified on Wednesday, October 24, 2012