Depositions to Perpetuate Testimony

(a) Before an Action Is Filed. (1) Petition. A person who wants to perpetuate testimony about any matter cognizable in the court may file a verified petition. The petition must 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: (A) that the petitioner expects to be a party to an action cognizable in the court but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner’s interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) [not used]; and (E) the name, address, and expected substance of the testimony of each deponent. (2) Notice and Service. The petitioner must serve the United States with a copy of the petition in the same manner as the complaint. See RCFC 4. The petitioner may thereafter request a hearing by motion served on counsel for the United States (see RCFC 5), or on its own, the court may order a hearing on the petition. (3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must that designates or issue an order describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by RCFC 34 and 35. (4) Using the Deposition. A deposition to perpetuate testimony may be used under RCFC 32(a) in any later-filed action in this court involving the same subject matter if the deposition was taken under these rules. (b) Pending Appeal. (1) In General. If a judgment has been rendered and an appeal has been taken or may still be taken, the court may permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in the court. (2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in this court. The motion must show: (A) the name, address, and expected substance of the testimony of each deponent; and (B) the reasons for perpetuating the testimony. (3) Court Order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by RCFC 34 and 35. The depositions may be taken and used as any other deposition taken in an action pending in this court. (c) Perpetuation by an Action. [Not used.] (As revised and reissued May 1, 2002; as amended Nov. 3, 2008.) Rules Committee Notes 2002 Revision RCFC 27 closely parallels FRCP 27, the only differences for those compatibility with the jurisdiction and other rules of the court. necessary being 45 RCFC 27 2008 Amendment The language of RCFC 27 has been amended to conform to the general restyling of the FRCP.