(a) Before Action.
(1) Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States 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: 1, that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and the petitioner’s interest therein, 3, the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, 4, the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and 5, the names and addresses of the persons to be examined and the substance of the testimony which the petitioner 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 20 days before the date of hearing the notice shall be served either within or without the district or state in the manner provided in Rule 4(d) 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 may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4(d), 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 Rule 17(c) 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 interrogatories. 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 United States district court, 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 or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was 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 the party expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation 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 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.
(c) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987.)
added in current removed in current
Compared to current version (2025).
(a) Before an Action Is Filed.
(1) Petition. A person who desirewants to perpetuate testimony regardingabout any matter that may be cognizable in any court of the United States court may file a verified petition in the United States district court infor the district of twhe residence of any expected adverse party resides. The petition shall be entitled in the name of the petitioner and shallmust ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner’s name and must show: 1,
(A) that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable toUnited States court but cannot presently bring it or cause it to be brought, 2,;
(B) the subject matter of the expected action and the petitioner’s interest therein, 3,;
(C) the facts whichthat the petitioner desirewants to establish by the proposed testimony and the reasons for desiring to perpetuate it, 4,;
(D) the names or a description of the persons whom the petitioner expects willto be adverse parties and their addresses, so far as known,; and 5,
(E) the names and, addresses of the persons to be examined and the substance of the testimony which the petitioner 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, and expected substance of the testimony of each deponent.
(2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each 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 20 days before the date of and a notice stating the time and place of the hearing t. The notice shallmay be served either within or withoutinside or outside the district or state in the manner provided in Rule 4(d) for service of summons; but if such service cannot with du. If that service cannot be made with reasonable 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 shall appoint, for persons not served in the manner provided in Rule 4(d), an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent the provisions of, Rule 17(c) applyies.
(3) Order and Examination. If the court is satisfied that the perpetuation ofng the testimony may prevent a failure or delay of justice, it shall makthe court must issue an order that designatinges or describinges the persons whose depositions may be taken and, specifyingies the subject matter of the examinations, and states whether the depositions shawill be taken upon oral examination ororally or by written interrogatories. The depositions may then be taken in accordance withunder these rules;, and the court may makissue orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuatlike those authorized by Rules 34 and 35. A reference ing thestimony, each reference thereine rules to the court in which thewhere an action is pending shall be deemed to refer tomeans, for purposes of this rule, the court in whichwhere the petition for suchthe deposition was filed.
(4) Use ofing the Deposition. If aA 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 United States district court, 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 or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions ofmay be used under Rule 32(a) in any later-filed districtcourt action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.
(b) Pending Appeal.
(1) In General. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case tat court.
(2) Motion. The party who desirewants to perpetuate the testimony may make a motion in the district courtove for leave to take the depositions, upon the same notice and service thereof as if the action wasere pending in the district court. The motion shall show (1must show:
(A) the names and, addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each; (2, and expected substance of the testimony of each deponent; and
(B) the reasons for perpetuating their testimony.
(3) Court Order. If the court finds that the perpetuation ofng the testimony is proper to avoidmay prevent a failure or delay of justice, it may make an order allowingthe court may permit the depositions to be taken and may makissue orders of the character provided forlike those authorized by Rules 34 and 35, and thereupon t. The depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules foas any other depositions taken in actions pending in the district -court action.
(c) Perpetuation by an Action. This rule does not limit the power of a courta court’s power to entertain an action to perpetuate testimony.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)