¶1*149Conrad K. Harper, James M. Nabrit, III, New York City, for appellants.
¶2Dewey Hayes, Douglas, Arthur K. Bolton, Atty. Gen., Carter A. Setliff, G. Ernest Tidwell, Joel M. Feldman, Asst. Attys. Gen., Atlanta, Ga., for appellee.
¶3Before TUTTLE, THORNBERRY, and GODBOLD, Circuit Judges.
¶5These are appeals from orders of the United States District Court for the Southern District of Georgia denying appellants’ motions, filed under F.R.Civ.Proc. 27, to perpetuate testimony.
¶6Appellants were imprisoned in Georgia penal institutions. They expected, if necessary for what they conceive to be preservation of their rights, to commence federal habeas corpus actions against state officials on the ground their convictions and sentences to death on charges of raping white women had resulted from state policy and practice of racial discrimination in violation of the 14th Amendment to the United States Constitution. They could not bring habe-as corpus actions at the time because they bad not exhausted state remedies (28 U.S.C.A. § 2254).1
¶7Appellant sought authority to depose three residents of California, alleged to have participated in field research in Georgia,2 handling data taken from trial *150transcripts and other sources regarding rape prosecutions in various parts of Georgia over an extended period. The survey was designed to determine what factors account for imposition of the death penalty in some cases of rape, or related offenses, and not in others, by exhaustively examining the facts of a large sample of cases.3 The testimony was sought as a predicate to introduction in evidence of the survey and as expert testimony concerning statistical computations based on data in the survey. Each deponent was to be examined on how he was selected as a researcher, his qualifications as such, the nature of his training and the manner, accuracy and objectivity of the actual conduct of the research. Appellants’ reason for perpetuating the testimony of witness Farnsworth, stated to be a “field captain” of the survey, was his imminent departure for Peru with a possible loss of his testimony before appellants’ habeas corpus actions could be brought. Perpetuation at the same time and place of testimony of witnesses Olson and Davis was sought on the basis they too were residents of California and money and effort would be saved by handling all of the depositions together.
¶8The petitions met the five substantive requirements of Rule 27(a) (1), except that the names and addresses of the expected adverse parties apparently were not complete.
¶9The court denied the petitions holding: “After due consideration, the Court finds that there has been no sufficient showing of necessity that Farnsworth, the California resident about to depart for Peru, be deposed or either justice fail or be delayed, inasmuch as it is not shown that his testimony, based on his position as a field researcher, would be other than cumulative to the testimony of the other two California residents whom it is not shown will not be available for deposing in the event an action is brought later in this Court.”
¶10The fundamental premise of the District Court, that Farnsworth’s testimony was not shown to be other than cumulative to that of Olson and Davis who were not shown to be unavailable if an action ever was filed, is plainly erroneous. The petition indicates that Farnsworth’s testimony would not be merely cumulative4
¶11The appellants did not comply with the 20-day notice provision of Rule 27(a) (2), stating their attorney had been notified of Farnsworth’s imminent departure too late to comply. In fact the period of time from the filing of the petitions, the hearing thereon, and the date on which the depositions were proposed to be taken all was less than 20 days.5
¶12*151Upon giving the names and addresses of expected adverse parties, and compliance with notice and service provisions of Rule 27, appellants are entitled to an order allowing perpetuation.
¶13After the court denied the orders sought appellants perpetuated the testimony of the three witnesses, without further notice of their intent to do so, at the time and place originally named, and filed copies with the District Court pending disposition of this appeal. It has been made known to this court on oral argument that the testimony thus taken is brief, and counsel for appellees has been furnished copies thereof. While no party is bound to do so, in the interest of avoiding further expenditures of time, effort and expense by parties, attorneys, and courts to preserve evidence which may be material and competent in further actions which may be filed, it is suggested that the parties explore fully all reasonable possibilities of the testimony taken to date being utilized insofar as consistent with the rights of all and not genuinely prejudicial to the rights of any.
¶14Nothing said in this opinion is to be taken as indicating the materiality, competency, admissibility or weight in any proceeding (state or federal) that may be filed, of the evidence sought to be perpetuated. All that is before us are questions of how to make a record of testimony, not what may be done with it.
¶15Remanded for proceedings consistent with this opinion.
¶22(concurring specially):
¶23Being uncertain as to exactly what disposition has been made of this case by the majority, I feel compelled to state briefly my own views in this matter.
¶24The precise issue before the Court is whether on the facts of this case the district court abused its discretion in failing to grant appellants’ Rule 27 motions.1 As I read the majority opinion, however, this issue is never reached. The majority does intimate that if the notice and service requirements of subsection (a) (2) of Rule 27 had been complied with, denial of appellants’ motions would have constituted an abuse of discretion. With this position I fully concur, as the substantive prerequisites of subsection (a) (1) were clearly satisfied by appellants’ motion.2 The case presented for our determination, however, is a more difficult one, rendered so by appellants’ attempt to avoid the notice and service requirements of subsection (a) (2). Since I do not write here for the Court, I will not attempt to explore the heretofore unanswered questions concerning the degree of strictness with which the requirements of subsections (a) (2) and (a) (3) are to be applied. I do feel, however, that these issues are clearly presented for determination by the facts before us, and that the failure of the Court to meet them has resulted in a disposition likely to cause confusion in future Rule 27 proceedings. I state merely that upon the facts of this case, the district court did not, in my mind, *152abuse its discretion in denying appellants’ motions.
¶25Even though I would affirm the district court’s action, I join the majority in strongly urging the parties to reach an agreement which will make possible, through future court action, the perpetuation of the depositions already taken in behalf of appellants.
¶28ON PETITION FOR REHEARING EN BANC
¶30The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25a, subpar. (b), the Petition for Rehearing En Banc is denied.