Rule 27.Depositions Before Action or Pending Appeal.

Current through July 1, 2026 · Last verified September 11, 2026

In one sentenceRule 27 allows a deposition before an action is filed to perpetuate testimony, and another while an appeal is pending.

Full Text of Rule 27

Text sizeJump to: (a) (b) (c)

(a) (a) Before action.

(1) (1) PETITION. A person who desires to perpetuate testimony may file a verified petition in the family court in the circuit of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show:

(A) (A) that the petitioner expects to be a party to an action cognizable in a family court of this State but is presently unable to bring it or cause it to be brought,

(B) (B) the subject matter of the expected action and the petitioner’s interest therein,

(C) (C) the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it,

(D) (D) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and

(E) (E) the names and addresses of the persons to be examined and the substance of the testimony the petitioner expects to elicit from each. The petition shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined and named in the petition, for the purpose of perpetuating their testimony.

(2) (2) NOTICE AND SERVICE. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. Unless otherwise ordered by the court, at least 20 days before the date of hearing the notice shall be served either within or without the State in the manner provided in Rule 4(d) of these Rules for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4(d) of these Rules, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent, the provisions of Rule 17(c) of these Rules apply.

(3) (3) ORDER AND EXAMINATION. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing 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 shall then be taken in accordance with these Rules; and the court may make orders of the character provided for by Rules 34 and 35 of these Rules. For the purpose of applying these Rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

(4) (4) 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, territory or insular possession of the United States in which it is taken, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Rule 32(a) of these Rules.

(b) (b) Pending appeal. If an appeal has been taken from a judgment of a family court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show

(1) (1) the names and addresses of the persons to be examined and the substance of the testimony the party expects to elicit from each, and

(2) (2) the reasons for perpetuating their testimony.

If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35 of these Rules, and thereupon the depositions may be taken and 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.

(c) (c) Perpetuation by action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

End

Amendment History

The Hawaiʻi State Judiciary’s compiled text of this rule carries no amendment order for this rule. For the adopting orders and any later amendments, see the Hawaiʻi State Judiciary’s rules page.

Plain-English Summary

Testimony that might be lost can be preserved before there is a case. A person who expects to be a party to an action cognizable in a Hawaii family court, but cannot bring it yet, files a verified petition in the circuit where an expected adverse party lives. The petition must set out the subject matter of the expected action and the petitioner interest, the facts to be established and why they need preserving, the expected adverse parties and their addresses so far as known, and the people to be examined with the substance of what each is expected to say.

Notice goes to each expected adverse party with a copy of the petition. If the court is satisfied that perpetuating the testimony may prevent a failure or delay of justice, it orders the depositions, designating who is to be examined and how. A deposition taken this way may be used in any later action in a Hawaii family court involving the same subject matter.

Subdivision (b) covers the period around an appeal. Once an appeal is taken from a family court judgment, or before it while the time still runs, the court that rendered the judgment may allow depositions to perpetuate testimony for use if the case comes back. The motion names the people to be examined, the substance of the expected testimony and the reasons. The rule ends by preserving the court separate power to entertain an action to perpetuate testimony.

Frequently Asked Questions

Can I take a deposition before filing a family court case in Hawaii?

Yes, to perpetuate testimony, by verified petition in the family court of the circuit where an expected adverse party resides.

What must the petition say?

That the petitioner expects to be a party but cannot bring the action yet, the subject matter and the petitioner interest, the facts to be established and why they need preserving, the expected adverse parties, and the witnesses with the substance of their expected testimony.

What standard does the court apply?

Whether the perpetuation of the testimony may prevent a failure or delay of justice.

Can a deposition be taken while an appeal is pending?

Yes. The court that rendered the judgment may allow depositions to perpetuate testimony for use in the event of further proceedings.

Does this rule replace an action to perpetuate testimony?

No. Subdivision (c) says the rule does not limit the power of a court to entertain such an action.

Source & verification. The rule text is reproduced verbatim from the official Hawaii Family Court Rules (Haw. Fam. Ct. R. 27). Prescribed by the Supreme Court of Hawaii. The plain-English summary is original and written by us. Last verified September 11, 2026. · Official source

Also known as: perpetuate testimony hawaii family courtdeposition before filing hawaiideposition pending appeal hawaiihawaii family court rule 27