Rule 27.Depositions Before Action or Pending Appeal
Group V: Depositions and Discovery · Last amended March 1, 2011 · Last verified July 15, 2026
In one sentenceRule 27 lets someone who expects to be a party to a future lawsuit, or a party with a judgment already on appeal, ask a district court for permission to depose witnesses now so their testimony is preserved before a delay would put it out of reach.
(1)Petition. A person who wants to perpetuate testimony about any matter may file a verified petition in the district court of the county where any expected opposing party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
(A)that the petitioner expects to be a party to an action but cannot presently bring it or cause it to be brought;
(B)the subject matter of the expected action and the petitioner's interest;
(C)the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
(D)the names or a description of the persons whom the petitioner expects to be opposing parties and their addresses, so far as known; and
(E)the name, address, and expected substance of the testimony of each deponent.
(2)Notice and service. At least 21 days before the hearing date, the petitioner must serve each expected opposing party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected opposing party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected opposing party is a minor or is incompetent, Rule 17(b) applies.
(3)Order and examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions must be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.
(4)Using the deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the United States or of the state in which it is taken.
(1)In general. The court where the judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.
(2)Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the court. The motion must show:
(A)the name, address, and expected substance of the testimony of each deponent; and
(B)the reasons for perpetuating the testimony.
(3)Court order. If the court finds that perpetuating the testimony prevents a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending action.
(c)Perpetuation by an action. This rule does not limit a court's power to entertain an action to perpetuate testimony.
Explanatory Note
Rule 27 was amended, effective March 1, 1990; March 1, 2007; March 1, 2011. This rule is derived from Fed.R.Civ.P. 27. Paragraph (a)(2) was amended, effective March 1, 2007. The language and organization of the paragraph were changed to make it more easily understood. Paragraph (a)(2) was amended, effective March 1, 2011, to change the time to serve a notice of hearing from 20 days before the hearing date to 21 days. Rule 27 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended. Rule 27 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Plain-English Summary
Rule 27(a) covers depositions taken before a lawsuit is even filed. A person who wants to preserve testimony files a verified petition in the district court of the county where an expected opposing party resides, and the petition must show that the petitioner expects to be a party to an action but cannot presently bring it, describe the subject matter and the petitioner's interest, lay out the facts the petitioner wants to establish and why they need preserving now, and identify both the expected opposing parties and the deponents, including the expected substance of each deponent's testimony. The petitioner must serve every expected opposing party with the petition and a hearing notice at least 21 days before the hearing, using the service methods in Rule 4, with publication available if reasonable diligence cannot reach someone; the court appoints an attorney to represent and cross-examine on behalf of anyone who cannot be served that way, and Rule 17(b) applies if an expected opposing party is a minor or incompetent.
If the court is satisfied that perpetuating the testimony may prevent a failure or delay of justice, it must issue an order naming the deponents, specifying the subject matter, and stating whether the deposition will be oral or by written questions — and it may issue supporting orders like those available under Rules 34 and 35. A deposition taken this way can later be used under Rule 32(a) in any action that is eventually filed involving the same subject matter, as long as it either followed these rules or would be admissible in the courts of the United States or the state where it was taken.
Rule 27(b) covers the other end of a case: perpetuating testimony while a judgment is on appeal or still appealable. The court that rendered the judgment may let a party depose witnesses for use in further proceedings there, on a motion showing each deponent's name, address, and expected testimony, and the reasons perpetuation is needed, served on the same notice as if the action were still pending. If the court finds that perpetuating the testimony would prevent a failure or delay of justice, it may allow the depositions and issue Rule 34 and 35-style orders, and the testimony can then be used like any other deposition in a pending action. Rule 27(c) makes clear this rule does not cut off a court's independent power to entertain a freestanding action to perpetuate testimony outside this procedure.
Frequently Asked Questions
Can I take a deposition before I've filed a lawsuit?
Yes, under Rule 27(a). You file a verified petition showing that you expect to be a party to an action you cannot presently bring, describing the subject matter and the facts you want to establish, and identifying the expected opposing parties and deponents. The court must find that perpetuating the testimony may prevent a failure or delay of justice before it will authorize the deposition.
How much notice do I have to give expected opposing parties before the hearing on my petition?
Rule 27(a)(2) requires service of the petition and hearing notice at least 21 days before the hearing date, using the service methods available under Rule 4, with publication available if someone cannot be reached with reasonable diligence.
What happens if an expected opposing party can't be found or is a minor?
The court must appoint an attorney to represent an unserved person and to cross-examine the deponent on their behalf. If an expected opposing party is a minor or incompetent, Rule 17(b) governs.
Can I depose a witness while my case is on appeal?
Yes. Rule 27(b) lets the court that rendered the judgment permit a party to depose witnesses to perpetuate their testimony for further proceedings in that court, on a motion showing the deponent's expected testimony and the reasons perpetuation is needed.
Can I use a deposition taken under Rule 27 once my lawsuit is filed?
Yes. Rule 27(a)(4) allows a deposition to perpetuate testimony to be used under Rule 32(a) in a later-filed action involving the same subject matter, so long as it was taken under these rules or would otherwise be admissible in federal or state court.
Source & verification. Rule text and the Explanatory Note are
reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the
Supreme Court of North Dakota. Last verified July 15, 2026.
· Official source
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