§ 9-11-27.Depositions before action or pending appeal

Sometimes testimony needs preserving before a lawsuit even exists — a witness may be aging, ill, or about to become unreachable. Subsection (a) lets someone who expects to become a party file a verified petition in the superior court where the witness resides, showing that litigation is coming but can’t yet be brought, describing the subject matter and the petitioner’s interest, the facts to be established and why they need preserving, the names of expected adverse parties, and the names and expected testimony of those to be deposed. Notice has to reach every expected adverse party at least 20 days before the hearing, with publication and a court-appointed attorney available for anyone who can’t be found, and a guardian ad litem for any expected minor or incompetent adverse party. If the court is satisfied that perpetuating the testimony might prevent a failure or delay of justice, it designates who may be deposed and on what subjects, and the deposition proceeds like any other under the chapter.

Testimony preserved this way isn’t limited to the case that prompted it — it can be used in any later action between the same parties involving the same subject matter, whether or not it was taken through this exact petition procedure, so long as it would otherwise be admissible.

Subsection (b) provides the appellate counterpart: once a judgment has been entered, the trial court that rendered it may allow depositions to preserve testimony for use if the case returns there after an appeal, on a motion that shows the same kind of information as the pre-action petition and the same notice and service. And subsection (c) makes clear this section doesn’t cut off a court’s independent power to entertain a stand-alone action to perpetuate testimony outside this procedure altogether.