Rule 27.Depositions before action or pending appeal

Some testimony can't wait for a lawsuit to catch up to it. A witness may be dying, moving away, or likely to forget the details by the time a case is finally ready to file. Rule 27 gives a person facing that problem a way to lock in testimony early, before there's even a case pending.

To use it before an action exists, a person expecting to become a party files a verified petition in the district court of the county where an expected adverse party lives. The petition has to explain why the petitioner can't yet bring the anticipated suit, describe the subject matter and the petitioner's stake in it, lay out the facts the testimony would establish and why preserving it matters now, and identify the expected adverse parties and the witnesses to be examined. The petitioner then serves notice at least 21 days before the hearing, using the same service methods as a summons under Rule 4(d). If an expected adverse party can't be found, the court can order service by publication and will appoint a lawyer to represent — and cross-examine on behalf of — anyone who isn't otherwise represented. Rule 17(c) governs if that party turns out to be a minor or incompetent person.

If the court is convinced that taking the deposition now could prevent a failure or delay of justice, it enters an order identifying who can be deposed, on what subjects, and by oral examination or written questions. From there the deposition proceeds like any other, with the court free to issue the kind of protective and discovery-management orders available under Rules 34 and 35. A deposition taken this way — or one that would otherwise be admissible — can later be used in any Utah action involving the same subject matter, under the same terms as any other deposition offered under Rule 32(a).

The rule also covers the appeal side of the same problem. Once a judgment has been appealed, or before the appeal deadline has run, the district court that entered the judgment can allow depositions to preserve testimony for use if the case comes back for further proceedings. The party seeking that testimony files a motion — not a petition — using the same notice and service rules, and has to show who will be examined, what they're expected to say, and why preserving it now is necessary. Finally, the rule makes clear it isn't the exclusive route: it doesn't cut off a court's independent power to entertain a freestanding action to perpetuate testimony.