NOTES TO RULE 27
HISTORY: (Amended Mar. 19, 1948; Oct. 20, 1949; July 1, 1971; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
Note to Subdivision (a).
This rule offers a simple method of perpetuating testimony in cases where it is usually allowed under equity practice or under modern statutes. See Arizona v. California, 292 U.S. 341, 54 S.Ct. 735, 78 L.Ed. 1298 (1934); Todd Engineering Dry Dock and Repair Co. v. United States, 32 F.2d 734 (C.C.A.5th, 1929); Hall v. Stout, 4 Del. ch. 269 (1871). For comparable state statutes see Ark.Civ.Code (Crawford, 1934) §§ 666--670; Calif.Code Civ.Proc. (Deering, 1937) 2083--2089; Ill.Rev.Stat. (1937) ch. 51, §§ 39--46; Iowa Code (1935) §§ 11400--11407; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 233, § 46-63; N.Y.C.P.A. (1937) § 295; Ohio Gen.Code Ann. (Throckmorton, 1936) § 12216--12222; Va.Code Ann. (Michie, 1936) § 6235; Wisc.Stat. (1935) §§ 326.27--326.29. The appointment of an attorney to represent absent parties or parties not personally notified, or a guardian ad litem to represent minors and incompetents, is provided for in several of the above statutes.
Note to Subdivision (b).
This follows the practice approved in Richter v. Union Trust Co., 115 U.S. 55, 5 S.Ct. 1162, 29 L.Ed. 345 (1885), by extending the right to perpetuate testimony to cases pending an appeal.
Note to Subdivision (c).
This preserves the right to employ a separate action to perpetuate testimony under U.S.C., Title 28, former § 644 (Depositions under dedimus potestatem and in perpetuam) as an alternate method.
Notes of Advisory Committee on 1946 amendments to Rules.
Since the second sentence in subdivision (a)(3) refers only to depositions, it is arguable that Rules 34 and 35 are inapplicable in proceedings to perpetuate testimony. The new matter [in subdivisions (a)(3) and (b)] clarifies. A conforming change is also made in subdivision (b).
Notes of Advisory Committee on 1949 amendments to Rules.
An amendment [effective October 1949] substituted the words "United States district court" in subdivision (a)(1) and (4) for "district court of the United States".
Notes of Advisory Committee on 1971 amendments to Rules.
The reference intended in this subdivision is to the rule governing the use of depositions in court proceedings. Formerly Rule 26(d), that rule is now Rule 32(a). The subdivision is amended accordingly.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.