Rule 26. Depositions Pending Action.

Subdivision (a), page 66, lines 3-12. Strike the sentence beginning "At any time", line 3, and ending "both purposes.", line 12, and substitute the following:

By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action or without such leave after an answer has been filed, the testimony of any person, whether a party or not, may be taken at the instance of any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.

Subdivision (a), page 66, lines 14-17. Strike the sentence beginning "Oral depositions", line 14, and ending, "Rule 31.", line 17, and substitute "Depositions shall be taken only in accordance with these rules.".

Subdivision (d) (3), page 67, line 60. Strike "out of the district and".

Subdivision (d) (3), page 68, line 67. After “age," insert "sickness,”.

Subdivision (d)(4), page 68, lines 78-81. Amend the paragraph to read as follows:

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

Subdivision (e), page 68, line 94. Before "Objection" insert "Subject to the provisions of Rule 32 (c),” and begin the word "Objection" with a small letter.

Subdivision (e), page 68, line 95. After "made” insert "at the trial or hearing".

Subdivision (f), page 69, line 107. After "deposition" strike the period and insert ", but this shall not apply to the use by an adverse party of a deposition described in paragraph (2) of subdivision (d) of this rule."

Rule 27. Depositions before action.

Amend Rule 27, pages 72, 73, and 74, to read as follows: Rule 27. Depositions Before Action or Pending Appeal.

(a) BEFORE ACTION.

(1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the United States shall file a verified petition in the district court of the United States in the district of the residence of any expected adverse party. The petition shall be entitled in his own name as petitioner, showing: (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 his interest therein, (3) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, (4) the names or a description of the persons he 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 he expects to elicit from each, and praying 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. 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 subsequently brought involving the same subject matter in a dis

trict court of the United States, in accordance with the provisions of Rule 26 (d).

(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 the persons to be examined and the substance of the testimony which he 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 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.

NOTE

The revision is intended

(1) to require service on the expected adverse parties

of notice of the application for leave to perpetuate;

(2) to require a finding by the court that the perpetuation may prevent a delay or failure of justice;

(3) to cover the case where an appeal is pending, and it may be desirable to preserve testimony for use in the event of further proceedings in the District Court; and

(4) to make it clear that the right to maintain an independent action to perpetuate testimony is not disturbed.

Rule 28. Persons Before Whom Depositions May Be Taken.

Subdivision (b), page 75, lines 10-25. Amend to read as follows:

(b) IN FOREIGN COUNTRIES. In a foreign state or country depositions shall be taken (1) on notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or (2) before such person or officer as may be appointed by commission or under letters rogatory. A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed "To the Appropriate Judicial Authority in [here name the country]".

Rule 30. Depositions Upon Oral Examination. Subdivision (b), page 77, line 23. After "taken,” insert "or that it may be taken only at some designated place other than that stated in the notice or that it may be taken only on written interrogatories,".

Subdivision (c), page 77, line 45. After "stenographically" insert "and transcribed".

Subdivision (d), page 78, line 60. In the subtitle after "TERMINATE" insert "OR LIMIT."

Subdivision (d), page 78, lines 64-66. Strike "for the purpose of annoying, embarrassing, or oppressing" and substitute "in such manner as unreasonably to annoy, embarrass, or oppress".

Subdivision (d), page 78, line 71. After "deposition" strike the period and insert ", or limiting the scope and