Rule 27.Depositions before action or pending appeal.

Rule 27(a) lets someone who expects to be a party to an action, but cannot yet bring or defend it, file a verified petition asking the court to let them take a deposition to preserve testimony. The petition states the subject matter of the expected action, the facts the petitioner wants to establish and the reasons for wanting to preserve them, the names and addresses of expected adverse parties so far as known, and the names, addresses, and expected testimony of the people to be examined. Those expected adverse parties are served with notice, or, if service cannot be made with due diligence, the court orders service by publication or otherwise and appoints an attorney to represent any party still not served; if an expected adverse party is a minor or incompetent, Rule 17(c)’s guardian ad litem provisions apply instead. If the court is satisfied that taking the deposition may prevent a failure or delay of justice, it orders the deposition taken under the same rules that govern depositions in a pending action, and may also order related document production or examinations under Rules 34 and 35; a deposition perpetuated this way may later be used in any action involving the same subject matter under the same rules that govern depositions taken in a pending case.

Rule 27(b) lets a party to a case already on appeal, or one whose time to appeal has not yet run, apply to the trial court for leave to take depositions to preserve testimony for further proceedings that may follow. Rule 27(c) makes clear that none of this limits a court’s independent power to entertain a traditional action to perpetuate testimony.