Florida Family Law Rule 12.290
RULE 12.290. DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
(a) Before Action.
(1) Petition. A person who desires to perpetuate that
person’s own testimony or that of another person regarding any
matter that may be cognizable in any court of this state may file a
verified petition in the circuit court in the county of the residence of
any expected adverse party. The petition must:
(A) be titled in the name of the petitioner; and
(B) show:
(i) that the petitioner expects to be a party to
an action cognizable in a court of Florida, but is presently unable to
bring it or cause it to be brought,
(ii) the subject matter of the expected action
and the petitioner’s interest in it,
(iii) the facts which the petitioner desires to
establish by the proposed testimony and the petitioner’s reasons for
desiring to perpetuate it,
(iv) the names or a description of the persons
the petitioner expects will be adverse parties and their addresses so
far as known, and
(v) the names and addresses of the persons to
be examined and the substance of the testimony that the petitioner
expects to elicit from each; and must ask for an order authorizing
the petitioner to take the deposition of the persons to be examined
named in the petition for the purpose of perpetuating their
testimony.
(2) Notice and Service. The petitioner must 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 time and place named therein for an
order described in the petition. At least 20 days before the date of
hearing the notice must be served either within or without the
county in the manner provided by law for service of summons, but
if such service cannot with due diligence be made on any expected
adverse party named in the petition, the court may make an order
for service by publication or otherwise, and must appoint an
attorney for persons not served in the manner provided by law for
service of summons who will represent them, and if they are not
otherwise represented, will cross-examine the deponent.
(3) Order and Examination. If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay of
justice, it must make an order designating or describing the
persons whose depositions may be taken and specifying the subject
matter of the examination and whether the deposition shall be
taken upon oral examination or written interrogatories. The
deposition may then be taken in accordance with these rules and
the court may make orders in accordance with the requirements of
these rules. For the purpose of applying these rules 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 deposition was filed.
(4) Use of Deposition. A deposition taken under this
rule may be used in any action involving the same subject matter
subsequently brought in any court in accordance with rule 12.330.
(b) Pending Appeal. If an appeal has been taken from a
judgment of any 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 for leave to take the
deposition on the same notice and service as if the action was
pending in the court. The motion must show (1) the names and
addresses of persons to be examined and the substance of the
testimony which the movant expects to elicit from each, and (2) the
reason for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or delay in
justice, it may make an order allowing the deposition to be taken
and may make orders of the character provided for by these rules,
and thereupon the deposition 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 court.
(c) Perpetuation by Action. This rule does not limit the
power of a court to entertain an action to perpetuate testimony.
APPEAL
(a) Before Action.
(1) Petition. A person who desires to perpetuate that
person’s own testimony or that of another person regarding any
matter that may be cognizable in any court of this state may file a
verified petition in the circuit court in the county of the residence of
any expected adverse party. The petition must:
(A) be titled in the name of the petitioner; and
(B) show:
(i) that the petitioner expects to be a party to
an action cognizable in a court of Florida, but is presently unable to
bring it or cause it to be brought,
(ii) the subject matter of the expected action
and the petitioner’s interest in it,
(iii) the facts which the petitioner desires to
establish by the proposed testimony and the petitioner’s reasons for
desiring to perpetuate it,
(iv) the names or a description of the persons
the petitioner expects will be adverse parties and their addresses so
far as known, and
(v) the names and addresses of the persons to
be examined and the substance of the testimony that the petitioner
expects to elicit from each; and must ask for an order authorizing
the petitioner to take the deposition of the persons to be examined
named in the petition for the purpose of perpetuating their
testimony.
(2) Notice and Service. The petitioner must 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 time and place named therein for an
order described in the petition. At least 20 days before the date of
hearing the notice must be served either within or without the
county in the manner provided by law for service of summons, but
if such service cannot with due diligence be made on any expected
adverse party named in the petition, the court may make an order
for service by publication or otherwise, and must appoint an
attorney for persons not served in the manner provided by law for
service of summons who will represent them, and if they are not
otherwise represented, will cross-examine the deponent.
(3) Order and Examination. If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay of
justice, it must make an order designating or describing the
persons whose depositions may be taken and specifying the subject
matter of the examination and whether the deposition shall be
taken upon oral examination or written interrogatories. The
deposition may then be taken in accordance with these rules and
the court may make orders in accordance with the requirements of
these rules. For the purpose of applying these rules 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 deposition was filed.
(4) Use of Deposition. A deposition taken under this
rule may be used in any action involving the same subject matter
subsequently brought in any court in accordance with rule 12.330.
(b) Pending Appeal. If an appeal has been taken from a
judgment of any 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 for leave to take the
deposition on the same notice and service as if the action was
pending in the court. The motion must show (1) the names and
addresses of persons to be examined and the substance of the
testimony which the movant expects to elicit from each, and (2) the
reason for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or delay in
justice, it may make an order allowing the deposition to be taken
and may make orders of the character provided for by these rules,
and thereupon the deposition 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 court.
(c) Perpetuation by Action. This rule does not limit the
power of a court to entertain an action to perpetuate testimony.