Mont. R. Civ. P. 27

(a) Before an Action is Filed.

(1) Petition. A person who wants to perpetuate testimony about any matter

cognizable in any district court of the state of Montana may file a verified petition in

the district court for the district where any expected adverse party resides. The

petition must ask for an order authorizing the petitioner to depose the named persons

in order to perpetuate their testimony. The petition must be titled in the petitioner’s

name and must show:

(A) that the petitioner expects to be a party to an action cognizable in a district

court of the state of Montana but cannot presently bring it or cause it to be

brought;

(B) the subject matter of the expected action and the petitioner’s interest;

(C) the facts that the petitioner wants to establish by the proposed testimony and

the reasons to perpetuate it;

(D) the names or a description of the persons whom the petitioner expects to be

adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each

deponent.

(2) Notice and Service. At least 21 days before the hearing date, the petitioner must

serve each expected adverse party with a copy of the petition and a notice stating the

time and place of the hearing. The notice may be served either inside or outside the

district or state in the manner provided in Rule 4. If that service cannot be made with

reasonable diligence on an expected adverse party, the court may order service by

publication or otherwise. The court may appoint an attorney to represent persons not

served in the manner provided in Rule 4 and to cross-examine the deponent if an

unserved person is not otherwise represented. If any expected adverse party is a

minor or is incompetent, Rule 17(c) applies.

(3) Order and Examination. If satisfied that perpetuating the testimony may

prevent a failure or delay of justice, the court must issue an order that designates or

describes the persons whose depositions may be taken, specifies the subject matter of

the examinations, and states whether the depositions will be taken orally or by written

interrogatories. The depositions may then be taken under these rules, and the court

may issue orders like those authorized by Rules 34 and 35. A reference in these rules

to the court where an action is pending means, for purposes of this rule, the court

where the petition for the deposition was filed.

(4) Using the Deposition. A deposition to perpetuate testimony may be used under

Rule 32(a) in any later-filed district court action involving the same subject matter.

(b) Pending Appeal.

(1) In General. The court where a judgment has been rendered may, if an appeal

has been taken or may still be taken, permit a party to depose witnesses to perpetuate

their testimony for use in the event of further proceedings in that court.

(2) Motion. The party who wants to perpetuate testimony may move for leave to

take the depositions, on the same notice and service as if the action were pending in

the district court. The motion must show:

(A) the name, address, and expected substance of the testimony of each

deponent; and

(B) the reasons for perpetuating the testimony.

(3) Court Order. If the court finds that perpetuating the testimony may prevent a

failure or delay of justice, the court may permit the depositions to be taken and may

issue orders like those authorized by Rules 34 and 35. The depositions may be taken

and used as any other deposition taken in a pending district court action.

(c) Perpetuation by an Action. This rule does not limit a court’s power to entertain an

action to perpetuate testimony.