Rule 27.Perpetuation of Testimony—Depositions Before Action or Pending Appeal

Division (A) lets a person who may become a party to an action they are not yet able to bring or defend file a verified petition in the common pleas court where an expected adverse party resides, asking to depose a witness before any lawsuit exists. The petition must describe the anticipated case and the petitioner’s interest in it, attach any written instrument whose validity or construction may be at issue, state the facts the petitioner wants to establish and why perpetuation is needed, and identify the expected adverse parties and the witnesses to be examined along with the expected subject of their testimony.

The petitioner must then serve notice and a copy of the petition on each expected adverse party at least twenty-eight days before the hearing, using the same methods available for serving a summons, or in another manner the court directs if actual notice is otherwise impossible; if an expected adverse party cannot be given actual notice, the court appoints an attorney, paid as costs, to cross-examine the deponent on that party’s behalf. If the court finds the petition may prevent a failure or delay of justice and that the petitioner cannot yet bring or defend the case, it orders the testimony perpetuated, naming the deponents and the manner of examination, and the deposition proceeds under the ordinary discovery rules. Because the deposition is not a discovery device, its later use in any action is governed by the same limitations that would apply if the deponent testified live, and, apart from a party’s own deposition offered against that party, the deposition may be used only if the deponent is unavailable at trial.

Division (B) allows a similar procedure once an appeal has been taken from a judgment, letting a party move in the trial court for leave to preserve testimony in case the matter is remanded for a new trial. The remaining divisions confirm that Rule 27 does not limit a court’s inherent power to entertain an action to perpetuate testimony, require depositions taken under the rule to be filed with the court where the petition or motion was brought, put the cost of the deposition on the party who took it unless the court orders otherwise, make a similarly taken out-of-state deposition admissible to the same extent as one taken under this rule, and direct that the rule be construed to keep Ohio’s practice consistent with other states that have adopted similar procedures.