Rule 27.Depositions Before Action or Pending Appeal.
Last amended July 1, 2004 · Last verified July 3, 2026
In one sentenceRule 27 lets a person preserve testimony by deposition before a lawsuit is filed, or while an appeal is pending, when waiting could mean losing that testimony for good.
(1)PETITION. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of this State may file a verified petition in the circuit 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) that the petitioner expects to be a party to an action cognizable in a court of this State but is presently unable to bring it or cause it to be brought, (B) the subject matter of the expected action and the petitioner’s interest therein, (C) the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, (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) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
(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. 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) 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), 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) apply.
(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 may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. 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)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 the Hawai‘i courts in accordance with the provisions of Rule 32(a).
(b)Pending Appeal. If an appeal has been taken from a judgment of a circuit 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) the names and addresses of the persons to be examined and the substance of the testimony which the party expects to elicit from each; and (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, 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)Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.
Amendment History
Amended May 7, 2004, effective July 1, 2004
Plain-English Summary
Before a lawsuit exists, a person who expects to be a party to a future action but can't yet bring it may file a verified petition asking the circuit court to authorize depositions to perpetuate testimony. The petition must show why the action can't yet be brought, describe the expected adverse parties and the subject matter, explain the facts to be established and the reasons for preserving them now, and identify the witnesses to be examined. Notice goes to each expected adverse party at least 20 days before the hearing, served the same way as a summons; if a party can't be reached, the court can order service by publication and appoint an attorney to represent that party's interests and cross-examine the witness. If the court is satisfied the deposition may prevent a failure or delay of justice, it authorizes the examination, and the resulting deposition can later be used in any action on the same subject matter that reaches a Hawai'i court.
The same idea applies after a judgment, while an appeal is pending or before the time to appeal has run out: a party may move in the court that entered the judgment for leave to depose witnesses to preserve their testimony for further proceedings, showing the names of the witnesses, the substance of their expected testimony, and the reasons for perpetuating it now. If the court agrees the deposition would help avoid a failure or delay of justice, it authorizes the same kind of order available before an action is filed. Rule 27(c) makes clear this rule doesn't limit a court's separate power to entertain an actual lawsuit whose sole purpose is to perpetuate testimony.
Frequently Asked Questions
Why would someone want to depose a witness before filing a lawsuit?
Because there's a real risk the witness's testimony will be lost before the case can be brought, for example if the witness is elderly, ill, or about to leave the jurisdiction, and Rule 27(a) lets a person petition the court to preserve that testimony now.
What must the pre-suit petition include?
Why the petitioner can't yet bring the expected action, the subject matter and the petitioner's interest in it, the facts to be established and the reasons for preserving them, and the names and addresses of the expected adverse parties and the witnesses to be examined.
Can testimony be preserved while a case is on appeal?
Yes. Rule 27(b) lets a party move in the court that entered judgment for leave to depose witnesses to preserve their testimony for further proceedings in the case.
Source & verification. The rule text and History are reproduced verbatim from the
official Hawaii Rules of Civil Procedure (Haw. R. Civ. P. 27). Prescribed by the Supreme Court of Hawaii (Haw. Rev. Stat. § 602-11; Haw. Const. art. VI, § 7). The plain-English summary is original and written by us. Last verified July 3, 2026. ·
Official source
Also known as:depositions before lawsuit filedperpetuate testimonypre-suit depositiondeposition pending appeal