Rule 2.303 Depositions Before Action or Pending Appeal

(A) Before Action.

(1) Petition. A person who desires to perpetuate his or her own testimony or that of another person, for use as evidence and not for the purpose of discovery, regarding a matter that may be cognizable in a Michigan court may file a verified petition in the circuit court of the county of the residence of an expected adverse party. The petition must be entitled in the name of the petitioner and must show:

(a) that the petitioner expects to be a party to an action cognizable in a Michigan court but is presently unable to bring it or cause it to be brought and the reasons why;

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

(c) the facts sought to be established by the proposed testimony and the reasons for desiring to perpetuate it;

(d) the names or a description of the persons that the petitioner expects will be adverse parties and their addresses so far as known; and

(e) the names and addresses of the persons to be examined and the substance of the testimony that the petitioner expects to elicit from each.

The petition must ask 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 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 specified time and place, for the order described in the petition. At least 21 days before the date of hearing, the notice must be served in the manner provided in MCR 2.105 for service of summons. If service cannot be made on an expected adverse party with due diligence, the court may issue an order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in MCR 2.105, an attorney to represent them, and to cross-examine the deponent. If an expected adverse party is a minor or an incompetent person, the law relating to minors and incompetents, including MCR 2.201(E), applies.

(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 issue an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions are to be taken on oral examination or written interrogatories. The depositions may then be taken in accordance with these rules. In addition the court may issue orders of the character provided for by MCR 2.310 and 2.311.

(4) Use of Deposition.

(a) If a deposition to perpetuate testimony is taken under these rules, it may be used in an action involving the same subject matter subsequently brought in a Michigan court, in accordance with MCR 2.308.

(b) If a deposition to perpetuate testimony has been taken under the Federal Rules of Civil Procedure, or the rules of another state, the court may, if it finds that the deposition was taken in substantial compliance with these rules, allow the deposition to be used as if it had been taken under these rules.

(B) Pending Appeal. If an appeal has been taken from a judgment of a trial court, or before the taking of an appeal if the time for appeal 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 if there are further proceedings in that court. The party who wishes to perpetuate the testimony may move for leave to take the depositions, with the same notice and service of the motion as if the action were then pending in the trial court. The motion must show

(1) the names and addresses of the persons to be examined and the substance of the testimony that the party expects to elicit from each; and

(2) the reasons for perpetuating their testimony.

If the court finds that the perpetuation of testimony is proper to avoid a failure or delay of justice, it may issue an order allowing the depositions to be taken and may issue orders of the character provided for by MCR 2.310 and 2.311. The depositions may then be taken and used in the same manner and under the same conditions prescribed in these rules for depositions taken in actions pending before the court.