Rule 27.Depositions to perpetuate testimony

Title V: Discovery · Last amended July 1, 2016 · Last verified July 14, 2026

In one sentenceRule 27 lets a person preserve testimony through a deposition before a lawsuit can be filed or while an appeal is pending, when waiting for the normal discovery process would risk losing that testimony to time.

Full Text of Rule 27

Text sizeJump to: (a) (b) (c)

(a) Before an action is filed.

(1) Petition. A person who wants to perpetuate testimony about any matter cognizable in any court in the state of Idaho may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:

(A) that the petitioner expects to be a party to an action cognizable in a court of the state of Idaho but cannot presently bring it or cause it to be brought;

(B) the subject matter of the expected action and the petitioner's interest;

(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each deponent.

(2) Notice and service; Appointment of attorney. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the county or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.

(3) Order and examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.

(4) Using the deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.

(b) Pending appeal.

(1) In general. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.

(2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show:

(A) the name, address, and expected substance of the testimony of each deponent; and

(B) the reasons for perpetuating the testimony.

(3) Court order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending district-court action.

End

Amendment History

(Adopted March 1, 2016, effective July 1, 2016.)

Plain-English Summary

Some testimony can't wait for a lawsuit to formally begin. Rule 27 lets a person who expects to be a party to a future Idaho case, but can't yet bring it, file a verified petition asking the district court for permission to depose named witnesses ahead of time. The petition has to explain the expected case and the petitioner's stake in it, the facts the petitioner wants to establish and why preserving them now matters, and identify the expected adverse parties and the deponents, including what each deponent is likely to say. Expected adverse parties must get at least 21 days' notice of the hearing, and if one can't be reached through ordinary service, the court can order service by publication and must appoint an attorney to represent that person's interests and cross-examine the witness. If the court is satisfied that taking the deposition now may prevent a failure or delay of justice, it issues an order describing who may be deposed, the subject matter, and whether the questioning will be oral or written. A deposition taken this way can later be used in any district-court case involving the same subject matter.

The rule covers a second, related situation: preserving testimony while a case is on appeal. The court that entered the judgment being appealed may let a party depose witnesses to lock in their testimony for any further proceedings in that same court, on a motion showing each deponent's expected testimony and the reason preservation is needed. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, it can authorize the depositions, which are then taken and used like any other deposition in the case. Neither part of Rule 27 limits a court's independent power to entertain a separate action brought solely to perpetuate testimony.

Frequently Asked Questions

When can someone use Rule 27 to take a deposition before filing suit?

When the person expects to be a party to a future Idaho case but cannot yet bring it, and needs to preserve testimony that might otherwise be lost before the case can be filed.

What must the petition to perpetuate testimony include?

The expected action and the petitioner's interest in it, the facts to be established and the reasons for preserving them, the expected adverse parties and their addresses, and the name, address, and expected testimony of each proposed deponent.

What happens if an expected adverse party can't be served in the usual way?

The court may order service by publication or another method, and must appoint an attorney to represent that person's interests and cross-examine the deponent.

Can Rule 27 be used to preserve testimony while a case is on appeal?

Yes. The court that issued the judgment being appealed can allow depositions to preserve testimony for use in further proceedings in that same court.

Can a deposition taken to perpetuate testimony be used later in the actual lawsuit?

Yes, it may be used under Rule 32(a) in a later-filed district-court action involving the same subject matter.

Source & verification. Rule text are reproduced verbatim from the Idaho Rules of Civil Procedure, adopted by the Supreme Court of Idaho. Last verified July 14, 2026. · Official source

Also known as: perpetuate testimony before lawsuitdeposition before filing suitpreserve witness testimony pending appealpre-suit deposition idahopetition to take deposition early