Rule 27.Perpetuation of testimony

Group 5: Depositions and Discovery · Last amended April 28, 2015 · Last verified July 13, 2026

In one sentenceRule 27 lets a person who expects to be part of a future lawsuit, or a party awaiting an appeal, ask the court for permission to take a deposition ahead of time so that testimony that might otherwise be lost gets preserved before the case is even filed or while it sits on appeal.

Full Text of Rule 27

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

(a) Perpetuation before action.

(1) Petition. A person who desires to perpetuate one’s own testimony or that of another person regarding any matter that may be cognizable in any superior court may file a verified petition in the superior court in the county of the residence of any expected adverse party. 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 superior court 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 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 20 days before the date of hearing the notice shall be served in the manner provided by law 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 personally in the manner provided by law, 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 court shall make such order as deemed appropriate for the protection of the minor or incompetent as provided in RCW 4.08.050 and 4.08.060.

(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 these rules; and the court may make orders of the character provided for by rules 34 and 35. For the purpose of applying these rules 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 these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a superior court of this state, in accordance with the provisions of rule 32(a).

(b) Perpetuation pending appeal. If an appeal has been taken from a judgment of a superior court or before the taking of an appeal if the time therefor has not expired, the superior 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 superior court. In such case the party who desires to perpetuate the testimony may make a motion in the superior court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the superior court. 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 rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the superior court.

(c) Perpetuation by action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

End

Amendment History

Prior: RPPP Rule 27. Adopted May 5, 1967, effective July 1, 1967; amended June 2, 2005, effective Sept. 1, 2005; amended, effective April 28, 2015.

Plain-English Summary

Sometimes evidence won't wait for a lawsuit to catch up. Rule 27(a) lets a person who expects to become a party to a future case, but can't yet bring it, file a verified petition asking the court to authorize depositions that will preserve testimony. The petition has to lay out why the petitioner can't yet bring the expected action, describe its subject matter and the petitioner's stake in it, state the facts the petitioner wants to establish and why preserving them now matters, and identify the expected adverse parties and the witnesses to be examined along with what they're expected to say.

Notice matters as much as the petition itself. The petitioner must serve each expected adverse party at least 20 days before the hearing, using the method used to serve a summons; if that's not practical, the court can order service by publication or another method and appoint an attorney to represent and cross-examine on behalf of anyone who can't be served personally. If the court is satisfied that taking the deposition now will prevent a failure or delay of justice, it enters an order describing who may be deposed, the subject matter, and whether the examination will be oral or written. A deposition taken this way can later be used in a subsequently filed superior court action involving the same subject matter, under the same rules that govern using any other deposition at trial.

Rule 27(b) extends the same idea to a case that's already been decided: if a judgment has been appealed, or the time to appeal hasn't yet run, the superior court that entered the judgment may allow depositions to preserve testimony for use if the case comes back for further proceedings. And Rule 27(c) makes clear this rule doesn't take away a court's independent power to entertain a freestanding action brought solely to perpetuate testimony.

Frequently Asked Questions

Who can ask a Washington court to preserve testimony before filing a lawsuit?

Rule 27(a) lets anyone who expects to become a party to a superior court action, but who can't yet bring it, file a verified petition asking the court to authorize a deposition to perpetuate testimony.

What has to be in the petition to perpetuate testimony?

The petition must show that the petitioner expects to be a party to an action but can't yet bring it, describe the subject matter and the petitioner's interest, state the facts to be established and why they need preserving, and name the expected adverse parties and the witnesses along with the substance of their expected testimony.

How much notice do expected adverse parties get before the hearing?

Rule 27(a)(2) requires service at least 20 days before the hearing date, in the manner used for serving a summons. If personal service isn't practical, the court can order service by publication and appoint an attorney to represent unserved parties.

Can testimony be preserved while a case is on appeal?

Yes. Rule 27(b) lets the superior court that entered the judgment allow depositions to preserve testimony for use if the case returns for further proceedings, whether the appeal has already been filed or the time to appeal hasn't yet expired.

Can I file a separate lawsuit just to preserve testimony rather than petition under Rule 27?

Rule 27(c) confirms that this rule doesn't limit a court's power to entertain an independent action brought to perpetuate testimony.

Source & verification. Rule text and amendment history are reproduced verbatim from the Washington Superior Court Civil Rules, adopted by the Supreme Court of Washington. Last verified July 13, 2026. · Official source

Also known as: perpetuate testimony before lawsuit fileddeposition before an action Washingtonpreserve testimony pending appealCR 27 petition to perpetuate testimony