RULE CR 27
                    PERPETUATION OF TESTIMONY


    (a) Perpetuation Before Action.

    (1) Petition. A person who desires to perpetuate his 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 his interest therein;

    (C) the facts which he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it;

    (D) the names or a description of the persons he 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 he 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 he 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.


[Adopted effective July 1, 1967; Amended effective September 1, 2005.]