Fla. Fam. L. R. P. 12.290

RULE 12.290

DEPOSITIONS BEFORE ACTION OR PENDING

APPEAL

(a) Before Action.

(1) Petition. A person who desires to perpetuate that

person’s own testimony or that of another person regarding any

matter that may be cognizable in any court of this state may file a

verified petition in the circuit court in the county of the residence of

any expected adverse party. The petition must:

(A) be titled in the name of the petitioner; and

(B) show:

(i) that the petitioner expects to be a party to

an action cognizable in a court of Florida, but is presently unable to

bring it or cause it to be brought,

(ii) the subject matter of the expected action

and the petitioner’s interest in it,

(iii) the facts which the petitioner desires to

establish by the proposed testimony and the petitioner’s reasons for

desiring to perpetuate it,

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(iv) the names or a description of the persons

the petitioner expects will be adverse parties and their addresses so

far as known, and

(v) the names and addresses of the persons to

be examined and the substance of the testimony that the petitioner

expects to elicit from each; and must ask for an order authorizing

the petitioner to take the deposition of the persons to be examined

named in the petition for the purpose of perpetuating their

testimony.

(2) Notice and Service. The petitioner must serve a

notice on 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 an

order described in the petition. At least 20 days before the date of

hearing the notice must be served either within or without the

county in the manner provided by law for service of summons, but

if such service cannot with due diligence be made on any expected

adverse party named in the petition, the court may make an order

for service by publication or otherwise, and must appoint an

attorney for persons not served in the manner provided by law for

service of summons who will represent them, and if they are not

otherwise represented, will cross-examine the deponent.

(3) Order and Examination. If the court is satisfied that

the perpetuation of the testimony may prevent a failure or delay of

justice, it must make an order designating or describing the

persons whose depositions may be taken and specifying the subject

matter of the examination and whether the deposition shall be

taken upon oral examination or written interrogatories. The

deposition may then be taken in accordance with these rules and

the court may make orders in accordance with the requirements of

these rules. For the purpose of applying these rules to depositions

for perpetuating testimony, each reference to the court in which the

action is pending shall be deemed to refer to the court in which the

petition for deposition was filed.

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(4) Use of Deposition. A deposition taken under this

rule may be used in any action involving the same subject matter

subsequently brought in any court in accordance with rule 12.330.

(b) Pending Appeal. If an appeal has been taken from a

judgment of any court or before the taking of an appeal if the time

therefor has not expired, the 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 court. In such case the party who desires to

perpetuate the testimony may make a motion for leave to take the

deposition on the same notice and service as if the action was

pending in the court. The motion must show (1) the names and

addresses of persons to be examined and the substance of the

testimony which the movant expects to elicit from each, and (2) the

reason for perpetuating their testimony. If the court finds that the

perpetuation of the testimony is proper to avoid a failure or delay in

justice, it may make an order allowing the deposition to be taken

and may make orders of the character provided for by these rules,

and thereupon the deposition 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 court.

(c) Perpetuation by Action. This rule does not limit the

power of a court to entertain an action to perpetuate testimony.