FRCP 27: taking a deposition before the lawsuit exists

Rule 27 answers a narrow but real problem: a witness whose testimony you will need is elderly, ill, or about to leave the country, and you are not yet in a position to file suit.

It is not a discovery device. You cannot use it to investigate whether you have a claim, and the rule is drafted to make that clear — the petitioner must already expect to be a party to an action they cannot presently bring.

Who may petition, and where

Rule 27(a)(1):

A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name…

Note the venue: where any expected adverse party resides, not where the witness is and not where the eventual action would be brought.

What the petition must show

The rest of Rule 27(a)(1) — five items, all required:

(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner's interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent.

Item (A) is the gate. Two halves: you expect to be a party, and you cannot presently bring the action. A petitioner who could file today does not qualify — the remedy then is to file and take the deposition under Rule 30.

Item (C) requires reasons, not just a wish. Age, illness, imminent departure, or the impending destruction of the only record are the usual ones.

And item (E) requires the expected substance of each deponent's testimony — you must say what you think they will say.

Notice: 21 days, and a lawyer for the unserved

Rule 27(a)(2):

At least 21 days before the hearing date, 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. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise.

And a protection with few parallels in the rules:

The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented.

That appointment is mandatory. Because the proceeding may produce testimony usable against someone who never received Rule 4 service, the rule supplies them counsel — and specifically counsel to cross-examine.

Minors and incompetent persons: "If any expected adverse party is a minor or is incompetent, Rule 17(c) applies."

The order

Rule 27(a)(3):

If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories.

The standard is "may prevent a failure or delay of justice." Not certainty, and not the higher showings some provisional remedies require — but it is a finding the court must actually make.

Once made, the order is mandatory — "must issue."

Three required contents: who, what subject matter, and which method.

What follows: "The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35."

So the ordinary deposition machinery applies, and the court can add document production or a physical or mental examination on the Rule 34 and Rule 35 models.

A definitional bridge: "A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed." That makes every rule keyed to the pending-action court work in a proceeding where no action is pending.

Using it later

Rule 27(a)(4) governs use of the deposition in a later action. The deposition is available on the terms the rule sets, which is what makes the whole exercise worthwhile — a deposition taken under Rule 27 is not merely preserved, it is usable.

That is the point of the device, and it is why the cross-examination safeguards in subdivision (a)(2) matter: testimony taken without the adverse party having a real chance to cross-examine would be of little use.

Rule 27 compared with the alternatives

How the federal rule compares

Oregon's perpetuation track is worth contrasting because it runs within a pending case rather than before one: ORCP 39 requires 14 days' notice, the deposition to be taken at least seven days before trial, and — most sharply — treats every objection not made at the deposition as waived, since the testimony is the trial testimony. The guide on Oregon depositions covers it.

A short checklist

1. Ask first whether you can simply file. If you can, Rule 27 is not available and Rule 30 is faster.
2. Verify the petition, and file it in the district where an expected adverse party resides.
3. Plead all five items in Rule 27(a)(1) — especially why you cannot presently bring the action, and the reasons the testimony needs perpetuating.
4. State the expected substance of each deponent's testimony. Item (E) requires it.
5. Serve 21 days before the hearing, in the Rule 4 manner, inside or outside the district or state.
6. If you cannot serve someone with reasonable diligence, ask for publication or another method — and expect the court to appoint counsel to cross-examine on their behalf.
7. Ask the order to cover everything you need: the deponents, the subject matter, the method, and any Rule 34 or Rule 35 relief.
8. Remember the definitional bridge — for this proceeding, the court where you filed the petition is "the court where the action is pending" for every other rule.

Where these rules live

• FRCP 4 — Summons
• FRCP 17 — Plaintiff and defendant; capacity; public officers
• FRCP 26 — Duty to disclose; general provisions governing discovery
• FRCP 27 — Depositions to perpetuate testimony
• FRCP 30 — Depositions by oral examination
• FRCP 31 — Depositions by written questions
• FRCP 32 — Using depositions in court proceedings
• FRCP 34 — Producing documents, electronically stored information, and tangible things
• FRCP 35 — Physical and mental examinations

This page explains what the rules say. It isn't legal advice, and what counts as being unable to bring an action, or as a threatened failure of justice, is decided under case law this site doesn't cover.