§ 3227.Depositions Before Action Or Pending Appeal A. BEFORE ACTION.
Chapter 41: Discovery Code · Last amended November 1, 2004 · Last verified August 3, 2026
In one sentenceLets a person who cannot yet bring a lawsuit, or a party awaiting an appeal, petition or move the court to take and preserve testimony that might otherwise be lost before the case can proceed, Oklahoma's counterpart to FRCP 27.
1.PETITION. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court may file a verified petition in the district court in the county of the residence of any expected adverse party for such perpetuation of testimony. The petition shall be entitled in the name of the petitioner and shall show:
a.That the petitioner or his personal representative, heirs, beneficiaries, successors or assigns may be a party to an action cognizable in a court 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, and a copy, attached to the petition, of any written instrument the validity or construction of which may be called in question or which is connected with the subject matter of the requested deposition.
c.The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.
d.The names or, if the names are unknown, a description of the persons he expects will be adverse parties and their addresses so far as known.
e.The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each.
The petition shall request an order authorizing the petitioner to take the depositions of the persons named in the petition to be examined for the purpose of perpetuating their testimony.
2.NOTICE AND SERVICE. The petitioner shall thereafter serve a notice upon each person named or described 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 the order described in the petition. At least twenty (20) days before the date of hearing, the notice shall be served either within or without the state in the manner provided for personal service of summons. If such service cannot, with due diligence, be made upon any expected adverse party named or described in the petition, the court may enter such order as is just for service by publication or otherwise, and shall appoint, for persons not served by personal service, an attorney who shall represent them and, if they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the court shall appoint a guardian ad litem for any such minor or incompetent not legally represented.
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 enter an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and how the depositions shall be taken. The depositions may then be taken in accordance with the Oklahoma Discovery Code, Section 3224 et seq. of this title. The court may enter orders of the character provided for by Sections 3234 and 3235 of this title. For the purpose of applying the Oklahoma Discovery Code to depositions for perpetuating testimony, each reference 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 the Oklahoma Discovery Code, 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 subsection A of Section 3232 of this title.
B.PENDING APPEAL. If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, the district 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 district court. In such case, the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show:
1.The names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each;
2.The reasons for perpetuating the testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may enter an order allowing the depositions to be taken and may make orders of the character provided for by Sections 3234 and 3235 of this title, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in the Oklahoma Discovery Code for depositions taken in actions pending in the district court.
C.PERPETUATION BY ACTION. The procedures prescribed in this section do not limit the power of a court to entertain an action to perpetuate testimony.
D.FILING OF DEPOSITION. Depositions taken under this section shall not be filed with the court in which the petition is filed or the motion is made except on order of the court or unless they are attached to a motion, response thereto, or are needed for use in a trial or hearing.
E.COSTS. The attorney taking any deposition under this section shall pay the costs thereof unless otherwise ordered by the court.
F.DEPOSITIONS TAKEN IN OTHER JURISDICTIONS ADMISSIBLE. A deposition taken under procedures of another jurisdiction, which are similar to those in this section, is admissible in this state to the same extent as a deposition taken under this section.
Amendment History
Added by Laws 1982, HB 1912, c. 198, §4, eff. 10/1/1982; Amended by Laws 1989, HB 1154, c.
129, §3, eff. 11/1/1989; Renumbered from 12 O.S. § 3204 by Laws 1989, HB 1154, c. 129, §14, eff.
11/1/1989; Amended by Laws 1994, SB 1076, c. 343, §14, eff. 9/1/1994; Amended by Laws 2004, SB 1618,
c. 293, §1, eff. 11/1/2004.
Plain-English Summary
Section 3227 covers depositions taken outside the normal course of a pending action. Before any action is filed, a person who expects to be a party but can't yet bring the suit may file a verified petition identifying the expected adverse parties, the subject matter, the facts to be established, and the persons to be examined. After serving notice on the expected adverse parties and holding a hearing, the court -- if satisfied that perpetuating the testimony may prevent a failure or delay of justice -- enters an order describing who may be deposed and how, and the deposition then proceeds under the ordinary rules of the Discovery Code.
Once a judgment has been appealed, or before the time to appeal has expired, the same idea runs the other way: a party may move the district court, on the same notice as if the action were still pending, for leave to depose witnesses to preserve their testimony for further district-court proceedings.
Depositions taken under this section aren't filed with the court except by order, or unless attached to a motion or needed for a trial or hearing, and the attorney who takes the deposition bears its costs unless the court orders otherwise. A deposition taken under a similar procedure in another jurisdiction is admissible in Oklahoma to the same extent as one taken under this section.
Frequently Asked Questions
Can I take a deposition before I've filed a lawsuit?
Yes. If you can't yet bring the action but need to preserve testimony, you may file a verified petition under subsection A, and the court will authorize the deposition if satisfied it may prevent a failure or delay of justice.
What has to be in the petition?
The petitioner's interest in the expected action, the subject matter, the facts to be established and the reasons for perpetuating them, the names or descriptions of expected adverse parties, and the names, addresses, and expected testimony of the persons to be examined.
What happens once a case is on appeal?
The district court may allow depositions to perpetuate testimony for further proceedings; the party seeking them moves the court, on the same notice as if the action were pending, and shows the names and expected testimony of the witnesses and the reasons for perpetuating it.
Are these depositions automatically filed with the court?
No. Subsection D keeps them out of the court file except on order of the court or unless attached to a motion, a response, or needed for a trial or hearing.
Who pays for a deposition taken under this section?
The attorney taking it, unless the court orders otherwise.
Source & verification. Section text is reproduced verbatim from
Title 12 of the Oklahoma Statutes, enacted by the Oklahoma Legislature.
Last verified August 3, 2026.
· Official source
Also known as:oklahoma depositions to perpetuate testimony12 O.S. § 3227depositions before lawsuit filed oklahomapreserve testimony pending appeal oklahoma