(1) Petition. A person who resides in this state and expects to be a party to an action in a court hereof, or who, being a nonresident of this state, has an interest in real property herein, concerning which he expects to be a party to an action in a court hereof; and who desires to perpetuate the testimony of witnesses, may file in the circuit court of the county of the residence of any expected adverse party, or in which the real property is situated, a verified petition entitled in the name of the petitioner, showing: (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 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 testimony which he 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.
Rule 27.01.Before action.
Current through June 18, 2026 · Last verified July 9, 2026
In one sentenceLets a person who expects to be a party to a future lawsuit (or who has an interest in Kentucky real property) petition the circuit court for leave to depose witnesses before the case is filed, so testimony that might otherwise be lost is preserved for later use.
Full Text of Rule 27.01
(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 an order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the county in the manner provided in Rule 4 for service of summons; but if such service cannot be made upon any expected adverse party named in the petition, the procedure provided in Rule 4 for constructive service shall apply. If any expected adverse party is a person under disability the provisions of Rule 17 shall 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 37. 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 state in which it is taken, or in any United States court sitting in this state, it may be used in any action involving the same subject matter subsequently brought in a court of this state, in accordance with the provisions of Rule 32.01.
Amendment History
(Amended effective October 1, 1971; amended October 18, 1977, effective January 1, 1978.)
Plain-English Summary
Rule 27.01 covers a narrow problem: what happens when someone needs to lock in a witness's testimony before a lawsuit even exists. Maybe a witness is elderly, ill, or about to leave the state, and the facts they know will matter once a case is filed. This rule lets the petitioner go to court first and ask for permission to take that testimony early.
The petitioner files a verified petition in the circuit court for the county where an expected adverse party lives, or where the real property at issue sits if the case involves land. The petition has to lay out the expected lawsuit, why the petitioner cannot bring it yet, the facts the petitioner wants to establish, who the likely opposing parties will be, and who the petitioner wants to depose and what those witnesses are expected to say. Each named expected adverse party then gets served with notice and a copy of the petition at least 20 days before the hearing, following the same service rules used for a summons; if a party cannot be found, the constructive-service procedure applies, and if an expected adverse party is under a legal disability, Rule 17 governs.
If the court is satisfied that taking the testimony now could prevent a failure or delay of justice, it enters an order naming the witnesses, describing the subject matter, and setting whether the depositions will be oral or written. From there the depositions proceed like any other deposition under these rules, and the court handling the petition can issue the same kind of orders a trial court could under Rules 34 and 37. A deposition taken this way, or one that would otherwise be admissible in Kentucky courts or a federal court sitting in Kentucky, can later be used in an action on the same subject matter under Rule 32.01.
Frequently Asked Questions
Can I depose a witness before I file a lawsuit in Kentucky?
Yes. Rule 27.01 lets a person who expects to be a party to a future action, or a nonresident with an interest in Kentucky real property, petition the circuit court for permission to depose a witness before the case is filed, in order to preserve testimony that might otherwise be lost.
What has to be in a petition to perpetuate testimony?
The verified petition must show that the petitioner expects to be a party to an action but cannot yet bring it, describe the subject matter of the expected case and the petitioner's interest in it, state the facts the petitioner wants to establish and why, name the expected adverse parties and their addresses so far as known, and name the witnesses to be examined along with the substance of their expected testimony.
How much notice does an expected adverse party get before the hearing?
At least 20 days before the hearing date, the petitioner must serve notice and a copy of the petition on each person named as an expected adverse party, using the same service method as service of a summons under Rule 4, or the constructive-service procedure if the party cannot be served directly.
Source & verification. The rule text is reproduced verbatim from the
official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 27.01). Prescribed by the Supreme Court of Kentucky (Ky. Const. § 116). The plain-English summary is original and written by us. Last verified July 9, 2026. ·
Official source
Also known as: deposition before filing a lawsuitperpetuating testimony before actionpreserve witness testimony before suingpetition to perpetuate testimony Kentuckydepose a witness before a case is filed