Rule 37.Perpetuation of Testimony or Evidence Before Action or Pending Appeal
Current through June 1, 2026 · Last verified July 11, 2026
In one sentenceRule 37 lets someone who can’t yet file a lawsuit, or who has a judgment on appeal, petition a circuit court for permission to depose witnesses or pursue other discovery early so that evidence isn’t lost before the case can proceed.
(1)Petition. A person who desires to perpetuate testimony or to obtain discovery to perpetuate evidence under Rule 43 or Rule 44 regarding any matter that may be cognizable in any court of this state may file a petition in the circuit court in the county of such person's residence or the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner, or the petitioner's personal representatives, heirs, beneficiaries, successors, or assigns are likely to be a party to an action cognizable in a court of this state and are presently unable to bring such an action or defend it, or that the petitioner has an interest in real property or some easement or franchise therein, about which a controversy may arise, which would be the subject of such action; (b) the subject matter of the expected action and petitioner's interest therein and a copy, attached to the petition, of any written instrument the validity or construction of which may be called into question or which is connected with the subject matter of the expected action; (c) the facts which petitioner desires to establish by the proposed testimony or other discovery and petitioner's reasons for desiring to perpetuate; (d) the names or a description of the persons petitioner expects will be adverse parties and their addresses so far as one is known; and, (e) the names and addresses of the parties to be examined or from whom discovery is sought and the substance of the testimony or other discovery which petitioner expects to elicit and obtain from each. The petition shall name persons to be examined and ask for an order authorizing the petitioner to take their depositions for the purpose of perpetuating their testimony, or shall name persons in the petition from whom discovery is sought and shall ask for an order allowing discovery under Rule 43 or Rule 44 from such persons for the purpose of preserving evidence.
(2)Notice and service. The petitioner shall thereafter serve a notice upon each person named 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. The notice shall be served either within or without the state in the manner provided for service of summons in Rule 7, but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served with summons in the manner provided in Rule 7, an attorney who shall represent them and whose services shall be paid for by petitioner in an amount fixed by the court, and, in case they are not otherwise represented, shall cross examine the deponent. Testimony and evidence perpetuated under this rule shall be admissible against expected adverse parties not served with notice only in accordance with the applicable rules of evidence. If any expected adverse party is a minor or incompetent, the provisions of Rule 27 apply.
(3)Order and examination. If the court is satisfied that the perpetuation of the testimony or other discovery to perpetuate evidence may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 43 specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 44. Discovery may then be had in accordance with these rules. For the purpose of applying these rules to discovery before action, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such discovery was filed.
B.PENDING APPEAL If an appeal has been taken from a judgment of a court to which these rules apply or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony or may allow discovery under Rule 43 or Rule 44 for use in the event of further proceedings in such court. In such case the party who desires to perpetuate the testimony or obtain the discovery may make a motion in the court therefor upon the same notice and service thereof as if the action was pending in the circuit court. The motion shall show: (1) the names and addresses of the persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the party expects to elicit from each; and (2) the reasons for perpetuating their testimony or seeking such other discovery. If the court finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, it may make an order as provided in subsection (3) of section A. of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in actions pending in the circuit court.
C.PERPETUATION BY ACTION This rule does not limit the power of a court to entertain an action to perpetuate testimony.
D.FILING OF DEPOSITIONS Depositions taken under this rule shall be filed with the court in which the petition is filed or the motion is made.
Amendment History
[CCP 12/2/78]
Plain-English Summary
Rule 37 addresses a timing problem: a witness’s memory can fade, or a witness can become unavailable, before a lawsuit is even filed or before an appeal is resolved. Section A lets a person who expects to be a party to a future Oregon lawsuit, but can’t yet bring or defend it, file a petition asking a circuit court for permission to depose a witness or seek other discovery ahead of time. The petition must identify the expected opposing parties, describe the controversy, and explain what the petitioner hopes to establish through the testimony or discovery. If personal service under Rule 7 isn’t possible despite diligent effort, the court can authorize service by publication or another method, and it must appoint a lawyer, paid by the petitioner, to represent and cross-examine on behalf of any expected adverse party who wasn’t personally served. Testimony taken this way is freely usable later against parties who were notified; if an expected adverse party received no notice at all, it can be used against that party only to the extent the ordinary rules of evidence otherwise allow.
Section B extends the same idea to a pending appeal: the trial court that issued the judgment being appealed can allow depositions or other discovery to preserve evidence in case the matter returns to that court for further proceedings. Sections C and D round out the rule — a separate action to perpetuate testimony remains available outside this rule, and any deposition taken under Rule 37 must be filed with the court where the petition or motion was filed.
Frequently Asked Questions
Who can file a petition to perpetuate testimony before a lawsuit exists?
A person who expects to become a party to an Oregon lawsuit but can’t presently bring or defend it, or someone who holds an interest in real property, an easement, or a franchise that could become the subject of a future dispute. Personal representatives, heirs, beneficiaries, successors, and assigns of such a person can petition too.
What has to be in the petition?
It must explain why the petitioner can’t yet bring or defend the expected lawsuit, or describe the petitioner’s interest in the property, easement, or franchise involved; describe the subject matter of the expected case and attach any related written instrument; explain what facts the petitioner hopes to establish and why perpetuating them matters; name the expected adverse parties and their addresses so far as known; and name the people to be examined along with the substance of what they’re expected to say.
What happens if an expected adverse party can’t be personally served?
The court can authorize service by publication or another method, and it must appoint a lawyer, paid by the petitioner, to represent that party and cross-examine the witness. If an expected adverse party receives no notice at all, the testimony can be used against that party later only to the extent the ordinary rules of evidence otherwise allow.
Can Rule 37 be used while a case is on appeal?
Yes. Section B lets the trial court that issued the judgment being appealed allow depositions or other discovery to preserve evidence in case the matter returns to that court for further proceedings. The party seeking it files a motion using the same notice and service required for a pre-action petition.
Where does a deposition taken under Rule 37 get filed?
With the court where the petition was filed or the motion was made.
Source & verification. The rule text is reproduced verbatim from the
official Oregon Rules of Civil Procedure (ORCP 37). Prescribed by the Council on Court Procedures (ORS 1.735), subject to amendment, repeal, or supplementation by the Oregon Legislative Assembly. The plain-English summary is original and written by us. Last verified July 11, 2026. ·
Official source
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