C.r.c.p. 27

As amended through Rule Change 2024(12), effective July 28, 2024

Rule 27 - Depositions Before Action or Pending Appeal

(a)Before Action

(1)Petition; Order; Notice. A person who desires to perpetuate his own testimony or that of other persons may file in a district court a petition verified by his oath (or, if there be more than one petitioner, then by the oath of at least one of them) stating either:

(1) That the petitioner expects to be a party to an action in a court in this state and, in such case, the name of the persons who he expects will be adverse parties; or (2) that the proof of some facts is necessary to perfect the title to property in which petitioner is interested or others similarly situated may be interested or to establish any other matter which it may hereafter become material to establish, including marriage, divorce, birth, death, descent or heirship, though no action may at any time be anticipated, or, if anticipated, the expected adverse parties to such action are unknown to petitioner. The petition shall also state the names of the witnesses to be examined and their places of residence and a brief outline of the facts expected to be proved, and if any person named in the petition as an expected adverse party is known to the petitioner to be an infant or incompetent person the petition shall state such fact. If the expected adverse parties are unknown, it shall be so stated. The court shall make an order allowing the examination and directing notice to be given, which notice, if the expected adverse parties are named in the petition, shall be personally served on them in the manner provided in Rule 4(e) and, if the expected adverse parties are stated to be unknown, and if real property is to be affected by such testimony a copy of such notice shall be served on the county clerk and recorder, or his deputy, of the county where the property to be affected by such testimony or some part of such property is situated but in any event said notice shall be published for not less than two weeks in some newspaper to be designated by the court making the order in such manner as may be designated by such court. If service of said notice cannot with due diligence be made, in the manner provided in Rule 4(e), upon any expected adverse party named in the petition, the court may make such order as is just for service upon him by publication or otherwise and shall appoint, for persons named in the petition as expected adverse parties who are not served in the manner provided in Rule 4(e), an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the witness. Such notice shall state the title of the proceeding, including the court and county in which it is pending, the time and place of the examination and either a brief outline of the facts expected to be proved or a description of the property to be affected by such testimony. Any notice heretofore given which contains the above required matters shall be deemed sufficient. Any personal service required by the provisions hereof shall be made at least 14 days before the testimony is taken. If any person named in the petition as an expected adverse party is stated in any paper filed in such proceeding to be an infant or incompetent person, the provisions of Rule 17(c) apply, but no guardian ad litem need be appointed for any expected adverse party whose name is unknown.

(2)Testimony Taken. Upon proof of the service of the notice the court shall take the testimony of the witnesses named in the petition upon the facts therein set forth; and the taking of same may be continued from time to time, in the discretion of the court, without giving any further notice. The testimony shall be taken on question and answer unless the court otherwise direct, and any party to the proceeding may question witnesses either orally or upon written interrogatories. The testimony, when taken, shall be signed and sworn to in writing by each respective witness and certified by the court. If any witness is absent from the county in which the proceedings are pending, the court shall designate some person authorized to administer oaths, by name or otherwise, to take and certify his testimony and the person so designated shall take his testimony in manner aforesaid and certify and return same to the court with his certificate attached thereto showing that he has complied with the requirements of said order.

(3)Proofs Prima Facie Evidence. The affidavit, return, certificate and other proofs of compliance with the provisions of this section (a), or certified copies thereof, shall be prima facie evidence of the facts therein stated.

(4)How and When Used. If a trial be had in which the petitioner named in the petition or any successor in interest of such petitioner or any person similarly situated shall be a party, or between any parties, in which trial it may be material to establish the facts which such testimony proves or tends to prove, upon proof of the death or insanity of the witness or witnesses, or of his or their inability to attend the trial by reason of age, sickness, infirmity, absence or for any other cause, any testimony, which shall have been taken as herein provided, or certified copies thereof, may be introduced and used by either party to such trial.

(b)After Judgment or After Appeal. If an appeal of a judgment is pending, or, if none is pending, then at any time within 35 days from the entry of such judgment, 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 such 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 were pending in such court. The motion shall show:

(1) The names and addresses of the persons to be examined and the substance of the testimony, so far as known, 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 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 trial courts.

C.r.c.p. 27

Source: a1 and b amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1 b.

Annotation I. General Consideration. Law reviews. For article on Colorado Rules of Civil Procedure concerning depositions, discovery, and pretrial procedure, see 21 Rocky Mt. L. Rev. 38 (1948). For article, "Depositions and Discovery, Rules 26 to 37 ", see 28 Dicta 375 (1951). For article, "Depositions and Discovery: Rules 26-37 ", see 23 Rocky Mt. L. Rev. 562 (1951). For article, "Marketable Title: What Certifiable Copies of Court Papers Should Appear of Record", see 34 Dicta 7 (1957). For article, "Plaintiff's Advantageous Use of Discovery, Pre-Trial and Summary Judgment", see 40 Den. L. Ctr. J. 192 (1963). For comment on Rozek v. Christen appearing below, see 36 U. Colo. L. Rev. 565 (1964). For article, "Determination of Heirship by Special Proceedings and Temporary Conservatorship", see 14 Colo. Law. 1781 (1985). For article, "Alternative Depositions: Practice and Procedure", see 19 Colo. Law. 57 (1990). For article, "Enforcing Civility: The Rules of Professional Conduct in Deposition Settings", see 33 Colo. Law. 75 (March 2004). Under the common law, depositions could not be taken in cases to be filed, pending, or at all. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). At common law, in actions at law, it was deemed the right of the parties to have witnesses produced and examined viva voce and the right to take depositions was unknown; litigants, therefore, were obliged to resort to chancery or to procure the consent of the adverse party, which the court could compel by deferring the trial or by refusing to render judgment. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). Subsequently, statutes were enacted empowering common-law courts to authorize the taking of depositions. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). Such subsequent statutes must be strictly complied with. Statutory provisions for taking of depositions are generally considered in derogation of the common law, and, although they are to be liberally construed, such statutes must be strictly or substantially complied with. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). C.R.C.P. 26 to 37 must be construed together along with the requirement that the plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plaintiff's right to discovery of defendant's financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Applied in Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 626 P.2d 159 (Colo. 1981); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981). II. Before Action A. Petition; Order; Notice. Statutory or rule authority for perpetuating testimony has since territorial days continuously been available in Colorado. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). Present authority for perpetuating testimony supplants the ancient chancery equitable procedures, inherent in the use of which is the element of good faith, seeking justice. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). This rule takes the place of the equitable bill in "memoriam sui perpetuam", the origin of which has been traced to canon law, which, taking hold of men's consciences, extended its right to all cases in which it was important in the interest of justice to register testimony which would otherwise be lost, the object being to preserve evidence, to assist courts, to prevent future litigation, and especially to secure and preserve such testimony as might be in danger of being lost before the matter to which it related could be made the subject of investigation. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). In a proceeding to perpetuate testimony,a court of equity will not entertain the bill if it is possible that the matter in controversy can be made the subject of immediate judicial investigation by the party who seeks to perpetuate the testimony, and it must appear that the testimony may be lost by delay. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). "Absolute rights" are not granted by this rule, which conditions exercise of the right on many expressed factors: Going to court; paying a docket fee; preparing, verifying, and filing a petition containing certain material; notifying others; and the implied condition that one who seeks justice shall proceed in good faith in efforts to attain his goal. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). The right to take depositions in "perpetuam memoriam" as provided by this rule is conditioned on proceeding in good faith to avail oneself of the privileges of the rule. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). A petitioner to perpetuate testimony fails to comply with the provisions of this rule where he does not state in unequivocal language that "he expects to be a party to an action" in that he is not proceeding in good faith to avail himself of the privileges granted by the rule. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). Where the statement that the petitioner seeking to perpetuate testimony "expects to be a party" is followed by the statement that others will be named as adverse parties "in the event a complaint is filed", such is not such a direct and positive statement by petitioner as to constitute strict compliance with the requirements of this rule when considered in light of the party plaintiff provisions of C.R.C.P. 3. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). An application to perpetuate testimony must be made in good faith for the purpose of obtaining, preserving, and using material testimony, and a sham application must be denied. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). The taking of a deposition will not be permitted where it is evidence that applicant is not proceeding in good faith, as where the application is a "fishing expedition" to discover in advance of the trial what the witness will testify to. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). Statutes for the perpetuation of testimony are not discovery statutes. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). Where the record was convincing that petitioner was not proceeding in good faith to perpetuate testimony in an expected libel suit, but rather as a guise to embark upon a "fishing expedition" on matters wholly unrelated to libel and to conduct an inquisition designed to help resolve a "political" matter in a manner acceptable to petitioner, the court could not grant a petition under this rule. Rozek v. Christen, 153 Colo. 597, 387 P.2d 425 (1963). For cases construing former provisions as to perpetuation of testimony, see Darrow v. People ex rel. Norris, 8 Colo. 417, 8 P. 661 (1885); Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888). B. How and When Used. The deposition of a witness may be used by any party if the court finds that the witness is unavailable at the time of trial for any of the reasons listed in this rule. J. R. Watkins Co. v. Smith, 29 Colo. App. 340, 483 P.2d 988 (1971). In order that a deposition may be admitted into evidence, the party offering the deposition must make a sufficient showing of the unavailability of the deponent at the time of trial. J. R. Watkins Co. v. Smith, 29 Colo. App. 340, 483 P.2d 988 (1971). Where plaintiff failed to make any effort to establish the unavailability of a witness whose testimony comprised a deposition, the deposition should not have been admitted into evidence. J. R. Watkins Co. v. Smith, 29 Colo. App. 340, 483 P.2d 988 (1971).

For personal service of process, see C.R.C.P. 4(e); for capacity of infants or incompetents as parties, see C.R.C.P. 17(c); for subpoena for taking depositions, see C.R.C.P. 45(d); for period of publication, see § 24-70-106 , C.R.S.; for persons before whom depositions may be taken, see C.R.C.P. 28; for depositions upon oral examination, see C.R.C.P. 30; for depositions upon written questions, see C.R.C.P. 31; for evidence, see C.R.C.P. 43; for appeals from judgments, see applicable rules in C.A.R.