If an appeal has been taken from a judgment of a trial court or before the taking of an appeal if the time therefor has not expired, the trial 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 trial court. In such case the party who desires to perpetuate the testimony may make a motion in the trial court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the trial court. The motion shall show (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; (b) 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 trial court.
Rule 27.02.Pending appeal.
Current through June 18, 2026 · Last verified July 9, 2026
In one sentenceAllows a trial court to authorize depositions to preserve witness testimony while a case is on appeal, or before an appeal is taken if the time to appeal has not run out, so the testimony survives for any further trial-court proceedings.
Full Text of Rule 27.02
Amendment History
(Amended effective July 1, 1976; amended October 18, 1977, effective January 1, 1978.)
Plain-English Summary
Once a case has gone to judgment and heads to appeal, the trial court loses its grip on most of the case. Rule 27.02 carves out one exception: preserving testimony in case the case comes back down. If an appeal has already been taken, or the deadline to appeal has not yet passed, the trial court that entered the judgment can allow depositions aimed at keeping witness testimony available for further proceedings back in that court.
The party who wants to preserve the testimony files a motion in the trial court, using the same notice and service that would apply if the case were still pending there. The motion has to name the witnesses and describe what they are expected to say, and explain why the testimony needs to be preserved now. If the court finds that perpetuating the testimony would help avoid a failure or delay of justice, it can allow the depositions and issue the same kind of supporting orders available under Rules 34 and 35. Once taken, the depositions can be used later just as they would be in an ordinary pending action.
Frequently Asked Questions
Can testimony be preserved while a case is on appeal?
Yes. Rule 27.02 allows the trial court that entered the judgment to permit depositions to perpetuate testimony for use in any further trial-court proceedings, either after an appeal has been taken or before an appeal if the time to appeal has not yet expired.
What must a motion to perpetuate testimony pending appeal include?
The motion must give the names and addresses of the witnesses to be examined and the substance of the testimony expected from each, and explain the reasons for perpetuating that testimony.
Does the trial court still have power over the case once it's on appeal?
Rule 27.02 gives it one specific power during that window: allowing depositions to preserve testimony for use if the case returns to the trial court after the appeal.
Source & verification. The rule text is reproduced verbatim from the
official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 27.02). 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: preserve testimony during appealdepositions pending appeal Kentuckymotion to perpetuate testimony on appealtrial court authority while case is on appeal