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December 2010 CIVIL PROCEDURE Ch 1, p.45
B. PERPETUATING TESTIMONY
Rule 1.721 Common law preserved. Rules 1.722 through 1.728 do not limit the court’s common
law powers to entertain actions to perpetuate testimony.
[Report 1943; November 9, 2001, effective February 15, 2002]
Rule 1.722 Application before action. An application to take depositions to perpetuate testimony
for use in an action not yet pending shall be filed in the court where the prospective action might be
brought. The application shall be captioned in the name of the applicant, be supported by affidavit,
and show all of the following:
1.722(1) That the applicant expects to be a party to an action cognizable in some court of record
of Iowa, but which cannot currently be brought.
1.722(2) The subject matter of such action, and the applicant’s interest therein.
1.722(3) The facts to be shown by the proposed testimony, and reasons for desiring to perpetuate
it.
1.722(4) The name or description of each expected adverse party, with address if known.
1.722(5) The name and address of each deponent and the substance of the deponent’s testimony.
[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]
Rule 1.723 Notice of application. The applicant shall thereafter serve a notice upon each person
named in the application as an expected adverse party, together with a copy of the application, stating
that the application will come on for hearing at a time and place named therein. The notice shall be
served as provided for the service of original notices other than by publication at least 20 days before
the date of hearing. If service cannot with due diligence be so made upon any expected adverse
party named in the application, the court may make such order as is just for service by publication
or otherwise, or may, upon a showing of extraordinary circumstances, prescribe a hearing upon less
than 20 days’ notice.
[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]
Rule 1.724 Guardian ad litem. Before hearing the application, the court shall appoint an attorney
to act as guardian ad litem for any person under legal disability or not personally served with notice,
who shall cross-examine for the ward if any deposition is ordered, and unless an attorney has been so
appointed the deposition shall not be admissible against such person in any subsequent action.
[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]
Rule 1.725 Order allowing application. If satisfied that the application is not for the purpose
of discovery, and that its allowance may prevent future delay or failure of justice, and that the
applicant is unable to bring the contemplated action or cause it to be brought, the court shall order
the testimony perpetuated. In its order, the court shall designate the deponents, the subject matter
of their examination, the time, location and officer before whom the depositions shall be taken, and
whether orally or on written interrogatories.
[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]
Rule 1.726 Taking and filing testimony. Depositions shall be taken as directed in the court’s order;
and shall be otherwise governed by rules 1.708 to 1.713 and 1.717. For the purpose of applying
these rules to depositions for perpetuating testimony, each reference therein to the court in which the
petition was filed shall be deemed to refer to the court in which the application for such deposition
was filed. Unless the court enlarges the time, all such depositions must be filed therein within 30 days
after the date fixed for taking them, and if not so filed cannot be later received in evidence.
[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]
Rule 1.727 Limitations on use. Any party to any later action involving any expected adverse party
who was named in the application and who was served with notice as required in rule 1.723 or the
privies or successors in interest of such expected adverse party, may use such deposition, or a certified
copy thereof, if the deponent is dead, mentally ill or if the deponent’s attendance cannot be obtained.
[Report 1943; amended by 58GA, ch 152, §202; October 31, 1997, effective January 24, 1998; November 9,
2001, effective February 15, 2002]