SCRCP 27

(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 State may file

a verified petition in the court in the Circuit of the residence of any expected adverse

party. The petition shall be entitled in the name of the petitioner and shall show: 1.

that the petitioner expects to be a party to an action cognizable in a court of the State

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 or a description of the persons to be examined and

the substance of the testimony which he expects to elicit from each, and shall 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 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 circuit 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; and the court may make orders of the character provided

for by Rules 34 and 35. 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 involving the same subject

matter subsequently brought in a court of this State in accordance with the provisions

of Rule 32(a).

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

a 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 in the court for leave to take the depositions, upon the same

notice and service thereof as if the action was pending in the circuit

court. The motion shall show (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 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 may make orders of the character

provided for by Rules 34 and 35, 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 circuit court.

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

court to entertain an action to perpetuate testimony.

Note:

At present Code §§ 19-17-40 et seq. provide for depositions de bene esse. This

proposal, drawn from Federal Rule 27 with minor modifications, provides an easy

method for perpetuating testimony prior to the filing of suit. It has been consistently

held that it is not a method of discovery before suit is brought. As provided in

paragraph (a)(1) the verified petition must establish that the petitioner expects to be a

party but is unable to do so at the present time, and also must specify the proposed

testimony and the names of the deponents, which indicates that the petitioner must

know in advance the information sought to be perpetuated. In appropriate cases the

rule also permits the use of Rules 34 and 35 if necessary. There are similar provisions

for retaining the testimony if the case is on appeal.