Rule 27.Depositions before action or pending appeal
Current through July 1, 2026 · Last verified July 13, 2026
In one sentenceTrial Rule 27 lets a person preserve a witness’s testimony through a deposition before a lawsuit is filed or while a judgment is on appeal, when waiting until normal discovery opens might mean losing that testimony to death, distance, or time.
(1)Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court in which the action may be commenced, may file a verified petition in any such court of this state. The petition shall be entitled in the name of the petitioner and shall state facts showing:
(a)that the petitioner expects to be a party to an action cognizable in a court of this or another state;
(b)the subject-matter of the expected action and his interest therein;
(c)the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;
(d)the names or a description of the persons he 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 testi- mony which he expects to elicit from each, and shall ask for an order authorizing the peti- tioner 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 twenty [20] days before the date of hearing the notice shall be served in the manner provided in Rule 4 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, 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 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 court of the state in which it is taken, it may be used in any action involving the same subject-matter subsequently brought in a court of this state in accordance with the provision of Rule 32.
(B)Pending appeal. If an appeal has been taken from a judgment of any 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 such 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 testi- mony which he expects to elicit from each;
(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.
(D)Filing deposition. The filing or custody of any deposition or evidence obtained under this rule shall be in accord- ance with Trial Rule 5(E).
Amendment History
This rule’s current text took effect January 1, 2005. For the full history of earlier amendments and adoption orders, see the Indiana Office of Court Services.
Plain-English Summary
Ordinary discovery only opens once a case is filed. Rule 27 fills the gap before that — and after a case has already ended — when someone might lose important testimony while waiting. Subsection (A) lets a person who isn’t yet able to file suit ask a court for permission to depose a witness anyway, in order to preserve that testimony for later. The petition has to be verified and has to lay out, in detail, that the petitioner expects to become a party to a case that could be brought in a court of Indiana or another state; what the expected case is about and the petitioner’s stake in it; what facts the petitioner hopes to establish through the deposition and why preserving them now matters; who the expected opposing parties are, so far as known; and who the petitioner wants to depose and what that testimony is expected to cover.
Notice matters as much as the petition itself. Every person named as an expected adverse party has to be served with a copy of the petition and notice of the hearing at least twenty days ahead of time, using the same service rules that apply to a summons. If an expected adverse party can’t be found or served despite due diligence, the court can order service by publication or some other method, and it has to appoint a lawyer to represent anyone who still isn’t reached — that lawyer cross-examines the witness at the deposition if the unserved person has no other representation. The usual protections for minors and incompetent persons apply here just as they would in any other proceeding.
If the court is satisfied that preserving the testimony now could prevent a failure or delay of justice, it issues an order naming who can be deposed and what the deposition will cover, and the deposition proceeds under the normal deposition rules from there. A deposition taken this way — or one that would be admissible even without following this procedure — can later be used in any Indiana case that involves the same subject matter, under the rule governing the use of depositions generally.
Subsection (B) covers the mirror-image situation: a case has already gone to judgment, an appeal has been filed or the time to appeal hasn’t run out yet, and a party wants to lock in testimony for whatever proceedings might follow. Instead of a petition, the party files a motion in the court that entered the judgment, with the same notice requirements, showing who will be deposed, what they’re expected to say, and why preserving that testimony now is necessary. If the court agrees that doing so would prevent a failure or delay of justice, the deposition goes forward and can be used later just as if the case were still actively pending.
Subsections (C) and (D) round out the rule. Rule 27 doesn’t take away a court’s independent power to hear a separate lawsuit filed solely to perpetuate testimony, and any deposition or evidence gathered under this rule gets filed and kept in the same way as any other deposition in the case.
Frequently Asked Questions
What is a Rule 27 deposition, and when would I need one?
It’s a deposition taken to preserve a witness’s testimony outside the normal window when discovery would be available — either before you’re able to file a lawsuit, or after a case has ended and is on appeal. You’d use it when you’re worried a witness might become unavailable, through death, distance, or fading memory, before your case reaches the point where ordinary discovery would let you depose them.
Can I use Rule 27 to figure out who to sue or where to file my case?
No. This rule exists to preserve testimony you already know you’ll need, not to investigate whether you have a case or who the right defendant is. A petition used as a general fact-finding tool, rather than one aimed at preserving specific, identified testimony, falls outside what the rule allows.
What has to be in a Rule 27 petition filed before a lawsuit exists?
A verified petition has to show that you expect to become a party to a case that could be brought in a court here or elsewhere, describe what that expected case is about and your interest in it, explain what facts you want to establish through the deposition and why you need to preserve them now, identify the people you expect will be your opposing parties, and name the people you want to depose along with what you expect them to say.
How much notice do I have to give the person I expect to sue?
At least twenty days before the hearing on your petition, served the same way you’d serve a summons. If you can’t locate or serve someone despite due diligence, the court can allow service by publication or another method, but it also has to appoint a lawyer to represent that person and, if they have no other representation, to cross-examine the witness at the deposition on their behalf.
Can I take a deposition to preserve testimony while my case is on appeal?
Yes. Rule 27(B) lets you file a motion, rather than a petition, in the court that entered judgment, once an appeal is underway or the time to appeal hasn’t yet run out. You have to show who you want to depose, what you expect them to say, and why preserving that testimony now is necessary. If the court agrees it would prevent a failure or delay of justice, the deposition can go forward and be used later in the case.
Can I use a Rule 27 deposition from an earlier case in a new lawsuit?
Yes, as long as the new case involves the same subject matter. A deposition taken under Rule 27 — or one that would have been admissible even without following this procedure — can be used in any later Indiana case that shares that subject matter, subject to the rule governing how depositions are used generally.
Source & verification. The rule text is reproduced verbatim from the
official Indiana Rules of Trial Procedure (T.R. 27). Prescribed by the Supreme Court of Indiana, under its inherent constitutional rulemaking power (reaffirmed by Ind. Code 34-8-1-1 and 34-8-2-1); originally enacted by the Indiana General Assembly in 1969. The plain-English summary is original and written by us. Last verified July 13, 2026. ·
Official source
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