Neb. Sup. Ct. R. 6-327

As amended through November 11, 2024

Section 6-327 - [Effective 1/1/2025] Depositions to perpetuate testimony

(a) Before an Action Is Filed.

(1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a court of this state may file a verified petition in the district court of the county where any expected adverse party resides. 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 a court of this state but cannot presently bring it or cause it to be brought;

(B) the subject matter of the expected action and the petitioner's interest in the action;

(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;

(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, 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 with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served in the manner provided for service of a summons. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service be made in the manner provided in Rule 30(b)(3).

(3) Appointment of Attorney or Guardian. The court must appoint an attorney to represent an expected adverse party and to cross-examine the deponent if the expected adverse party is served in the manner provided in Rule 30(b)(3) and is not otherwise represented. The court must appoint a guardian ad litem for any expected adverse party who is a minor or incompetent.

(4) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken by oral examination or by written questions. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.

(5) Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed action in this state involving the same subject matter if the deposition either was taken under these rules or, if not so taken, would be admissible in evidence in the federal or state court that authorized it to be taken.

(b) Pending Appeal.

(1) In General. If an appeal has been taken from a judgment, a party may file a motion in the appellate court for leave to depose witnesses to perpetuate their testimony for use in the event the action is remanded for further proceedings after an appeal.

(2) Motion. 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. The appellate court may itself rule on the motion or, while retaining jurisdiction of the appeal, remand the motion for a ruling by the court that rendered the judgment. If the court ruling on the motion finds that perpetuating the testimony may prevent a failure or delay of justice, the court must permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken under Rule 30 or 31 and used under Rule 32, just like other depositions in a pending action.

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

Neb. Sup. Ct. R. 6-327

Rule 27(b) amended January 14, 1998. Renumbered and codified as § 6-327, effective 7/18/2008. § 6-327(a)(2) amended October 21, 2015, effective 1/1/2016; amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-327

[1] The primary purpose of the rule is to perpetuate evidence - in other words, to preserve evidence (usually, witness testimony) - that might otherwise be lost before the action is filed. The original version of the rule required the person seeking to perpetuate evidence to file a petition in the district court for the district in which any expected adverse party resides. The 2024 Amendments changed that to the district court for the county where any expected adverse party resides. As a result of the change, the venue provisions of the rule are now consistent with the residency provisions of the general venue statute, Neb. Rev. Stat. § 25-401.01(1).

[2] Subpart (a)(2) authorizes substitute service on an expected adverse party who cannot be served by the normal methods of service. Subpart (a)(3) requires the court to appoint an attorney to represent an expected adverse party who is served by substitute service. Subpart (a)(3) also requires the court to appoint a guardian ad litem for any expected adverse party who is a minor or an incompetent person. If a minor or an incompetent person is served by substitute service, then the court must appoint both an attorney and a guardian ad litem. The reason is that roles of the attorney and guardian are different. The role of an attorney is to represent the party's legal interests. The role of a guardian ad litem is to act in the best interests of the party and to make decisions for the party, including the decisions that a client normally makes.

[3] The rule does not discuss who pays the attorney or the guardian. That is a matter left to the district court's discretion.

[4] Subpart (a)(5) discusses when a deposition that was taken to perpetuate evidence may be used in the action once it is filed. If the deposition was taken pursuant to Federal Rule 27 or the law of another state, then the deposition may be used if it would be admissible in the federal or state court that authorized it to be taken. The reason for including federal courts is that a petition to perpetuate could be filed in federal court and the action filed in state court.

[5] Subpart (b) governs motions to perpetuate testimony that are filed while an appeal is pending. The motion must be filed in the appellate court because the trial court loses jurisdiction once the appeal is filed. See Billups v. Scott, 253 Neb. 293, 294 (1997). Because the trial court may be more familiar with the case than the appellate court is, the rule gives the appellate court the discretion to remand the motion to the trial court. The appellate court, however, retains jurisdiction of the appeal.

[6] Subpart (b) only applies if an appeal has been taken. It does not authorize a party to file a motion to perpetuate after judgment is entered but before the time for appeal expires. The party's only option in that situation is to file an independent action to perpetuate testimony. Subpart (c) specifically provides that therule does not limit a court's power to entertain an action to perpetuate testimony.