Oklahoma § 12-3227 - Depositions before action or pending appeal

§ 12-3227. 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 may file a verified petition in the district

court in the county of the residence of any expected adverse party

for such perpetuation of testimony. The petition shall be entitled

in the name of the petitioner and shall show:

a.

That the petitioner or his personal representative,

heirs, beneficiaries, successors or assigns may be a

party to an action cognizable in a court but is

presently unable to bring it or cause it to be

brought.

b.

The subject matter of the expected action and his

interest therein, and a copy, attached to the

petition, of any written instrument the validity or

construction of which may be called in question or

which is connected with the subject matter of the

requested deposition.

c.

The facts which he desires to establish by the

proposed testimony and his reasons for desiring to

perpetuate it.

d.

The names or, if the names are unknown, a description

of the persons he expects will be adverse parties and

their addresses so far as known.

e.

The names and addresses of the persons to be examined

and the substance of the testimony which he expects to

elicit from each.

Oklahoma Statutes - Title 12. Civil Procedure

The petition shall request an order authorizing the petitioner

to take the depositions of the persons named in the petition to be

examined for the purpose of perpetuating their testimony.

2. NOTICE AND SERVICE. The petitioner shall thereafter serve a

notice upon each person named or described 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 twenty (20) days before the date of hearing, the notice shall

be served either within or without the state in the manner provided

for personal service of summons. If such service cannot, with due

diligence, be made upon any expected adverse party named or

described in the petition, the court may enter such order as is just

for service by publication or otherwise, and shall appoint, for

persons not served by personal service, an attorney who shall

represent them and, if they are not otherwise represented, shall

cross-examine the deponent. If any expected adverse party is a

minor or incompetent the court shall appoint a guardian ad litem for

any such minor or incompetent not legally represented.

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 enter an order designating or describing the

persons whose depositions may be taken and specifying the subject

matter of the examination and how the depositions shall be taken.

The depositions may then be taken in accordance with the Oklahoma

Discovery Code, Section 3224 et seq. of this title. The court may

enter orders of the character provided for by Sections 3234 and 3235

of this title. For the purpose of applying the Oklahoma Discovery

Code 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 such deposition was filed.

4. USE OF DEPOSITION. If a deposition to perpetuate testimony

is taken under the Oklahoma Discovery Code, it may be used in any

action involving the same subject matter subsequently brought in a

court of this state, in accordance with the provisions of subsection

A of Section 3232 of this title.

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:

Oklahoma Statutes - Title 12. Civil Procedure

1. The names and addresses of persons to be examined and the

substance of the testimony which he expects to elicit from each;

2. The reasons for perpetuating the testimony.

If the court finds that the perpetuation of the testimony is

proper to avoid a failure or delay of justice, it may enter an order

allowing the depositions to be taken and may make orders of the

character provided for by Sections 3234 and 3235 of this title, and

thereupon the depositions may be taken and used in the same manner

and under the same conditions as are prescribed in the Oklahoma

Discovery Code for depositions taken in actions pending in the

district court.

C. PERPETUATION BY ACTION. The procedures prescribed in this

section do not limit the power of a court to entertain an action to

perpetuate testimony.

D. FILING OF DEPOSITION. Depositions taken under this section

shall not be filed with the court in which the petition is filed or

the motion is made except on order of the court or unless they are

attached to a motion, response thereto, or are needed for use in a

trial or hearing.

E. COSTS. The attorney taking any deposition under this

section shall pay the costs thereof unless otherwise ordered by the

court.

F. DEPOSITIONS TAKEN IN OTHER JURISDICTIONS ADMISSIBLE. A

deposition taken under procedures of another jurisdiction, which are

similar to those in this section, is admissible in this state to the

same extent as a deposition taken under this section.

Added by Laws 1982, c. 198, § 4. Amended by Laws 1989, c. 129, § 3,

eff. Nov. 1, 1989. Renumbered from § 3204 of this title by Laws

1989, c. 129, § 14, eff. Nov. 1, 1989. Amended by Laws 1994, c.

343, § 14, eff. Sept. 1, 1994; Laws 2004, c. 293, § 1, eff. Nov. 1,

2004.