(1) BEFORE ACTION. (a) Petition. A person who desires to perpetuate personal testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in any such court in this state. The petition shall be entitled in the name of the petitioner and shall show that the petitioner expects to be a party to an action; the subject matter of the expected action and the petitioner’s interest therein; the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it; the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known; and the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony. (b) 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 move the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the state in the manner provided in s. 801.11 for service of summons; 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 in the manner provided in s. 801.11, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or is an individual adjudicated or alleged to be incompetent, s. 803.01 (3) applies. (c) Order and examination. If the court is satisfied that the perpetuation of the testimony 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 interrogatories. The depositions may then be taken in accordance with this chapter; and the court may make orders of the character provided for by ss. 804.09 and 804.10. For the purpose of applying this chapter to depositions for perpetuating testimony, 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 deposition was filed. (d) Use of deposition. If a deposition to perpetuate testimony is taken under this section, or if, although not so taken, it would be otherwise admissible in the courts of this state, it may be used in any action involving the same subject matter subsequently brought in this state in accordance with s. 804.07.
804.02.Perpetuation of testimony by deposition.
Ch. 804: Depositions and Discovery · Last amended 2021 · Last verified July 15, 2026
In one sentenceSection 804.02 lets a person who expects to be part of a future lawsuit petition a court to take depositions in advance to preserve testimony that might otherwise be lost, and separately lets a party to an already-decided case preserve testimony for use if the case comes back after appeal.
Full Text of Section 804.02
(2) PENDING APPEAL. (a) If an appeal has been taken from a judgment of a court of this state 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 for use in the event of further proceedings in the court. (b) In such case, the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show all of the following: 1. The names and addresses of persons to be examined and the substance of the testimony which the moving party expects to elicit from each of those persons. 2. The reasons for perpetuating the testimony of the persons under subd. 1. (c) If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by ss. 804.09 and 804.10 and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this chapter for depositions taken in actions pending in the court.
Plain-English Summary
Before an action is filed, someone who expects to be a party to it may file a verified petition showing their expected role and interest in the future action, the facts the proposed testimony would establish and why preserving them matters, the expected adverse parties and their known addresses, and the deponents along with the substance of their expected testimony, asking the court for authority to take those depositions. Expected adverse parties get at least 20 days’ notice, served within or outside Wisconsin the way a summons would be served, with alternatives like court-ordered publication and an appointed attorney to represent and cross-examine on behalf of anyone who cannot be served that way; if an expected adverse party is a minor or an alleged or adjudicated incompetent person, the procedure in section 803.01(3) applies.
If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court designates who may be deposed and the scope and format of the examination, and the depositions proceed under the ordinary discovery-chapter rules, including protective and discovery-motion orders under sections 804.09 and 804.10. A deposition taken this way, or one that would otherwise be admissible, can later be used in an actual Wisconsin action on the same subject matter under section 804.07.
Separately, while an appeal is pending, or before the time to appeal has expired, the court that rendered the judgment may allow depositions to preserve witness testimony for use in further proceedings. The party seeking this moves the court on the same notice and service as if the action were still pending, showing the deponents’ names and addresses, the substance of their expected testimony, and the reasons for preserving it; if the court finds that preserving the testimony is proper to avoid a failure or delay of justice, it may allow the depositions under the same procedures, and later uses, that apply to depositions taken in a pending action.
Frequently Asked Questions
Can I take a deposition in Wisconsin before I’ve filed a lawsuit?
Yes. Section 804.02(1) lets someone who expects to be a party to a future action file a verified petition asking the court to authorize depositions to preserve testimony.
What has to be in a petition to perpetuate testimony before an action begins?
The petitioner’s expected role and interest in the future action, the facts the testimony would establish and why preserving them matters, the expected adverse parties and their known addresses, and the deponents and the substance of their expected testimony.
How much notice do expected adverse parties get before this kind of deposition?
At least 20 days, served within or outside Wisconsin the same way a summons would be served, with alternatives like publication and an appointed attorney if someone cannot be served that way.
Can testimony be preserved by deposition while a case is on appeal?
Yes. Section 804.02(2) lets the court that rendered the judgment allow depositions to preserve witness testimony for further proceedings, whether an appeal has already been taken or the time to appeal has not yet expired.
Can a deposition taken to perpetuate testimony be used later in an actual lawsuit?
Yes. If it was taken under section 804.02, or would otherwise be admissible, it can be used in a later Wisconsin action involving the same subject matter under section 804.07.
Amendment History
History: Sup. Ct. Order, 67 Wis. 2d 585, 660 (1975); 1975 c. 218; 1993 a. 486; 2005 a. 387; 2021 a. 238 s. 45.
Source & verification. Section text and official notes are
reproduced verbatim from the Wisconsin Statutes, published by the
Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026.
· Official source
Also known as: deposition before filing a lawsuit wisconsinperpetuate testimony wisconsinpreserve testimony pending appeal wisconsinpetition to take a deposition before action wisconsin