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.