RULE 4:11. Depositions Before Action Or Pending Appeal Or For Use In Other Jurisdictions

4:11-1. Before Action

  • (a) Petition. A person who desires to perpetuate his or her own testimony or that of another person or preserve any evidence or to inspect documents or property or copy documents pursuant to R. 4:18-1 may file a verified petition, seeking an appropriate order, entitled in the petitioner's name, showing: (1) that the petitioner expects to be a party to an action cognizable in a court of this State but is presently unable to bring it or cause it to be brought; (2) the subject matter of such action and the petitioner's interest therein; (3) the facts which the petitioner desires to establish by the proposed testimony or evidence and the reasons for desiring to perpetuate or inspect it; (4) the names or a description of the persons the petitioner expects will be opposing parties and their addresses so far as known; (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each; and (6) the names and addresses of the persons having control or custody of the documents or property to be inspected and a description thereof. The court may also grant a pre-complaint petition for depositions filed pursuant to this rule by a person asserting that due to extraordinary circumstances, which shall be explained in detail by affidavit, such depositions are necessary to enable compliance with N.J.S.A. 2A:53a-27 to -29 (Affidavit of Merit Statute).

  • (b) Notice and Service. At least 20 days before the date of hearing the petitioner shall serve upon each person named in the petition as an expected adverse party, in the manner provided by R. 4:4-4 and R. 4:4-5(a)(1), a notice, with a copy of the petition attached, stating the time and place of the application for the order described in the petition. If it appears to the court after diligent inquiry that such service cannot be made, the court may order service by publication or otherwise, and shall appoint an attorney to represent persons so served, who, if such persons are not otherwise represented, may cross-examine the deponent. Such attorney's compensation may be fixed by the court and charged to the petitioner. The provisions of R. 4:26-2 apply if any expected adverse party is a minor or mentally incapacitated person.

  • (c) Order and Examination. If the court finds that the perpetuation of the testimony or evidence or the inspection may prevent a failure or delay of justice, it shall make an order designating or describing the evidence to be preserved, or the documents or property to be inspected or 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 or inspection may then be taken in accordance with these rules; and the court may make such orders as are provided for by R. 4:18 and R. 4:19.

  • (d) 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 United States or of the state in which it is taken, it may, in accordance with the provisions of R. 4:16-1 and R. 4:16-2, be used in any action between the same parties or their privies involving the same subject matter, which is subsequently brought in any court of this State having cognizance thereof.

Note: Source-R.R. 4:17-1. Paragraphs (c) and (d) amended July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (c) amended July 16, 1981 to be effective September 14, 1981; paragraphs (a) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 10, 1998 to be effective September 1, 1998; paragraph (b) amended July 12, 2002 to be effective September 3, 2002; paragraph (b) amended July 23, 2010 to be effective September 1, 2010.

4:11-2. Pending Appeal

If an appeal has been taken from a trial court judgment or before the taking of such an appeal if the time therefor has not expired, the trial court, on motion, may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further trial court proceedings. The motion shall show the names and addresses of the persons to be examined, the substance of the testimony which is expected to be elicited from each, and the reasons for perpetuating their testimony. If the court finds that perpetuation of the testimony may prevent a failure or delay of justice, it may make an order allowing the depositions to be taken and may make such orders as are provided for by R. 4:18-1 and R. 4:19. Depositions so taken may be 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.

Note: Source-R.R. 4:17-2. Amended July 7, 1971 to be effective September 13, 1971.

4:11-3. Perpetuation of Testimony

R. 4:11-1 and R. 4:11-2 do not limit the court's power to entertain an action to perpetuate testimony or to enter an order in any pending action for the taking of a deposition to perpetuate testimony.

Note: Source-R.R. 4:17-3. Amended July 26, 1984 to be effective September 10, 1984.

4:11-4. Testimony for Use in Foreign Jurisdictions

Whenever the deposition of a person is to be taken in this State pursuant to the laws of another state, the United States, or another country for use in connection with proceedings there, the Superior Court may, on ex parte petition, order the issuance of a subpoena to such person in accordance with R. 4:14-7. The petition shall be captioned in the Superior Court, Law Division, shall be designated "petition pursuant to R. 4:11-4" and shall be filed in accordance with R. 1:5-6(b). It shall be treated as a miscellaneous matter and the fee charged shall be pursuant to N.J.S.A. 22A:2-7.

Note: Source-R.R. 4:17-4. Amended July 21, 1980 to be effective September 8, 1980.

4:11-5. Depositions Outside the State

A deposition for use in an action in this state, whether pending, not yet commenced, or pending appeal, may be taken outside this state either (a) on notice pursuant to R. 4:14-2, or, in the case of a foreign country, pursuant to R. 4:12-3; (b) in accordance with a commission or letter rogatory issued by a court of this state, which shall be applied for by motion on notice; or (c) in any manner stipulated by the parties. Depositions within the United States taken on notice shall be taken before a person designated by R. 4:12-2. Commissions and letters rogatory shall be issued in accordance with R. 4:12-3. If the deposition is to be taken by stipulation, the person designated by the stipulation shall have the power by virtue of the designation to administer any necessary oath.

Note: Adopted July 22, 1983 to be effective September 12, 1983; amended July 26, 1984 to be effective September 10, 1984.
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