Rule 27.Depositions Before Action or Pending Appeal

Part V: Discovery · Last amended 2006 · Last verified July 16, 2026

In one sentenceRule 15-6-27 lets someone who expects to be a party to a future South Dakota lawsuit petition the court to take and preserve testimony before the action can be filed, and lets a party awaiting appeal move to preserve testimony for later proceedings in the same court.

Full Text of Rule 15-6-27

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

(a) Deposition before action.

(1) Petition. A person who desires to perpetuate the person’s own 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 the circuit court in any county which would be the proper place of trial of such matter. The petition shall be entitled in the name of the petitioner and shall show:

(A) That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought;

(B) The subject matter of the expected action and the petitioner’s interest therein;

(C) The facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it;

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

(E) 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.

(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. At least twenty days before the date of hearing the notice shall be served either within or without the state in the manner provided in § 15-6-4(d) 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 § 15-6-4(d), 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 incompetent the provisions of § 15-6-17(c) apply.

(3) 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 §§ 15-6-34 and 15-6-35. 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.

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under this chapter or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, or the courts of the United States, it may be used in any action involving the same subject matter subsequently brought in a court of this state, in accordance with the provisions of § 15-6-32(a).

(b) Deposition pending appeal. If an appeal has been taken from a judgment of a trial court of record 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 said court. In such case the party who desires to perpetuate the testimony may make a motion in such court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show:

(1) The names and addresses of the persons to be examined and the substance of the testimony which the party expects to elicit from each;

(2) The reasons for perpetuating their testimony. 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 §§ 15-6-34 and 15-6-35, 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 pending actions.

(c) Action to perpetuate testimony. Section 15-6-27 does not limit the power of a court to entertain an action to perpetuate testimony.

End

Plain-English Summary

Subdivision (a) lets a person who wants to preserve their own testimony or another’s, on a matter that could end up in a South Dakota court, file a verified petition in the county where the future case would properly be tried. The petition must show that the petitioner expects to become a party to an action but cannot yet bring it, describe the subject matter and the petitioner’s interest, lay out the facts to be established and the reasons for perpetuating the testimony, and name the expected adverse parties and the persons to be examined, along with the substance of the testimony expected from each.

Each expected adverse party must be served with notice and a copy of the petition at least twenty days before the hearing, using the same methods as service of a summons under § 15-6-4(d); if diligent service fails, the court can order service by publication or another method and must appoint an attorney to represent unserved persons and cross-examine on their behalf. Minors and incompetent persons get the added protection of § 15-6-17(c). If the court is satisfied that perpetuating the testimony may prevent a failure or delay of justice, it orders the depositions taken, specifies the subject matter and whether they proceed by oral examination or written questions, and may issue the same kind of orders available under §§ 15-6-34 and 15-6-35. A deposition taken this way, or one that would otherwise be admissible, may later be used in any South Dakota action on the same subject matter under § 15-6-32(a).

Subdivision (b) covers testimony pending appeal: the court that rendered the judgment may allow depositions to perpetuate testimony for further proceedings in that same court, on a motion served with the same notice as if the action were still pending, showing the names, addresses, and substance of the expected testimony and the reasons for perpetuating it. If the court finds perpetuation proper to avoid a failure or delay of justice, the depositions proceed and may be used under the same conditions as depositions in a pending action. Subdivision (c) makes clear that none of this limits a court’s separate power to entertain an action to perpetuate testimony.

Frequently Asked Questions

Can testimony be taken in South Dakota before a lawsuit has even been filed?

Yes. Rule 15-6-27(a) lets a person who expects to be a party file a verified petition asking the court to authorize depositions to perpetuate testimony before the action can be brought.

What must the petition include to get testimony preserved before filing suit?

Under Rule 15-6-27(a)(1), the petition must show the petitioner’s expected but presently unavailable status as a party, the subject matter and interest involved, the facts and reasons for perpetuating the testimony, and the names and addresses of expected adverse parties and of the persons to be examined.

How much notice does an expected adverse party get before the hearing on the petition?

At least twenty days, served either within or outside South Dakota using the same method provided for service of a summons under § 15-6-4(d), as required by Rule 15-6-27(a)(2).

Can testimony be preserved for use in later proceedings while a case is on appeal?

Yes. Rule 15-6-27(b) lets the court that rendered the judgment allow depositions to perpetuate testimony for use if further proceedings occur in that court.

Does this rule replace a court’s other power to preserve testimony through a lawsuit?

No. Rule 15-6-27(c) states that this section does not limit the power of a court to entertain an action to perpetuate testimony.

Amendment History

(a)SDC 1939 & Supp 1960, §§ 36.0524 to 36.0527; SD RCP, Rule 27 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 3; 2006, ch 291 (Supreme Court Rule 06-17).

(b)SDC 1939 & Supp 1960, § 36.0528; SD RCP, Rule 27 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; 2006, ch 292 (Supreme Court Rule 06-18).

(c)SDC 1939 & Supp 1960, § 36.0529; SD RCP, Rule 27 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

Source & verification. Rule text and History are reproduced verbatim from the South Dakota Codified Laws, published by the South Dakota Legislative Research Council. Last verified July 16, 2026. · Official source

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