Rule 410.Depositions to Perpetuate Testimony

Rule 410 is the exception to the assumption that discovery follows a pending case.

Before an action is filed

A person wanting to perpetuate testimony about any matter within an Idaho court's jurisdiction files a verified petition in the district court for the district 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; the subject matter and the petitioner's interest; the facts to be established and the reasons to perpetuate them; the expected adverse parties and their addresses so far as known; and the name, address and expected substance of the testimony of each deponent.

Notice, and counsel for the absent

At least 21 days before the hearing, each expected adverse party must be served with the petition and a notice of time and place, inside or outside the county or state, in the manner of Rule 204. If that cannot be done with reasonable diligence, the court may order service by publication or otherwise.

Then the provision that makes the procedure fair: the court must appoint an attorney to represent persons not served in the Rule 204 manner and to cross-examine the deponent, if an unserved person is not otherwise represented. Testimony is not preserved against someone absent without a lawyer there to test it.

The order

If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order designating the persons to be deposed, specifying the subject matter, and stating whether the depositions are oral or by written interrogatories. It may also issue orders like those under Rules 406 and 416. For this rule's purposes, references to "the court where an action is pending" mean the court where the petition was filed.

Using it later

A deposition to perpetuate testimony may be used under I.R.C.P. Rule 32(a) in any later-filed district-court action involving the same subject matter — if it was taken under these rules or would be admissible in the courts of the state where taken.

Pending appeal

The court that rendered judgment may, if an appeal has been taken or may still be taken, permit depositions to perpetuate testimony for use in further proceedings in that court. The motion, on the same notice and service as if the action were pending, must show each deponent's name, address and expected substance, and the reasons for perpetuating. The rule closes by confirming that it does not limit the court's power to entertain an action to perpetuate testimony.