Rule 54.Discovery Before an Action Is Filed or Pending an Appeal

Rule 54 is the exception to the assumption that discovery follows a pending case. It runs in two directions: before an action exists, and after judgment while an appeal is alive.

Before an action is filed

A person who wants to perpetuate testimony -- including their own -- or preserve evidence files a verified petition in the superior court in the county where any expected adverse party resides, titled in the petitioner's own name. It must show that the petitioner expects to be a party but cannot presently bring the action; identify the subject matter and the petitioner's interest; state the facts to be established and why they must be preserved now; name each expected adverse party and address; name each person from whom discovery is sought -- who need not be an expected adverse party -- and the evidence expected; and ask for a specific order.

The hearing, and the timetable

Unless everyone stipulates or the court orders otherwise for good cause, a hearing is required. Each expected adverse party must be served with the petition and a notice of the hearing at least 20 days beforehand, in the same manner as a summons and pleading under Rule 40(f)(1) or Rule 41. An opposition may be filed at least 5 days before the hearing, and unless the court orders otherwise the petitioner may not file a reply.

The order

If satisfied that preserving the evidence may prevent a failure or delay of justice, the court must enter an order identifying who may be subpoenaed and the subject matter, permitting a physical or mental examination, or permitting the petitioner's own deposition. For this rule's purposes, references elsewhere to "the court where an action is pending" mean the court where the petition was filed. A deposition taken this way may be used under Rule 59 in any later Arizona action involving the same subject matter, and subpoena recipients keep their nonparty rights under Rule 52.

Counsel at the petitioner's expense

Subpart (a)(5)(C) is the striking provision. If the court authorizes a deposition and an expected adverse party was not served like a summons and is otherwise unrepresented, the court must appoint an attorney to represent that party and cross-examine the deponent -- and the petitioner pays, in an amount the court fixes. Testimony is not preserved against an absent person without someone there to test it.

Pending appeal

The superior court that rendered judgment may, if an appeal has been taken or may still be taken, permit discovery to preserve evidence for later superior court proceedings in that action. A party moves with the same notice and service as if the case were still pending, identifying each person to be deposed and the expected substance, and showing the reasons for perpetuating it.