Rule 54. Discovery Before an Action Is Filed or Pending an Appeal
Arizona Revised Statutes AnnotatedRules of Family Law Procedure
17B A.R.S. Rules Fam.Law Proc., Rule 54
Rule 54. Discovery Before an Action Is Filed or Pending an Appeal
(1) Petition. A person who wants to perpetuate testimony--including his or her own--or to obtain discovery to preserve evidence about any matter cognizable in any court may file a verified petition in the superior court in the county where any expected adverse party resides. The petition must be titled in the petitioner's name and must:
(F) ask for an order (i) directing the clerk to issue a subpoena under Rule 52 at the petitioner's request to obtain testimony or other evidence from each named person in order to preserve the testimony or other evidence; (ii) under Rule 63, for a physical or mental examination of an expected adverse party or of a person in the custody or under the legal control of an expected adverse party; or (iii) permitting the petitioner's deposition under Rule 57 to preserve his or her testimony.
(3) Notice and Service. Unless the court orders otherwise for good cause, 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 at least 20 days before the hearing date. If an expected adverse party is incompetent, Rule 37(b) applies. The petition and notice may be served either inside or outside Arizona in the same manner that a summons and pleading are served under Rules 40(f)(1) or 41, as applicable. If the petition seeks an order under Rule 63 for a physical or mental examination, the petition and notice must be served on the expected adverse party whose examination is sought or who has custody or legal control of the person whose examination is sought. In all other instances, if service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise.
(4) Opposition and Reply. Unless the court orders otherwise, any expected adverse party may file an opposition to the petition at least 5 days before the hearing date. The opposition must be served on the petitioner and each other expected adverse party using any of the methods described in Rule 43. Unless the court orders otherwise, the petitioner may not file a reply memorandum.
(A) Order. If satisfied that perpetuating the testimony or preserving other evidence may prevent a failure or delay of justice, the court must enter an order that: (i) identifies each person who may be served with a subpoena under Rule 52 to obtain testimony or for the inspection of documents or premises and specifies the subject matter of the permitted examination; (ii) permits the physical or mental examination of an expected adverse party or of a person in the custody or under the legal control of an expected adverse party; or (iii) permits the deposition of the petitioning party.
(B) Effect and Use. Discovery authorized by the court must be conducted, and may be used, as provided in these rules. A reference in these rules to the court where an action is pending means, for this rule's purposes, the court where the petition for the discovery was filed. A deposition to perpetuate testimony taken under these rules may be used under Rule 59 in any later-filed action in an Arizona state court involving the same subject matter. Subpoena recipients have the rights of nonparties under Rule 52 regardless of whether they are identified as an expected adverse party under Rule 54(a)(1)(D).
(C) Appointment of Counsel. If a court authorizes a deposition, but an expected adverse party is not served in the same manner that a summons and pleading are served under Rules 40(f)(1) or 41, as applicable, and is otherwise unrepresented by counsel, the court must appoint an attorney to represent that expected adverse party and to cross-examine the deponent. The petitioner must pay for an appointed attorney services in an amount fixed by the court.
Credits
Added Aug. 30, 2018, effective Jan. 1, 2019.
17B A. R. S. Rules Fam. Law Proc., Rule 54, AZ ST RFLP Rule 54
State Court Rules are current with amendments received through April 1, 2024. The Code of Judicial Administration is current with amendments received through April 1, 2024.
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