May, J.
Cleveland Range, LLC (“Cleveland”) appeals an order permitting Lincoln Fort Wayne Associates, LLC (“Lincoln”) to depose three of Cleveland’s witnesses even though Lincoln has not yet initiated litigation. As that order was not an abuse of the trial court’s discretion, we affirm.
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Discovery is generally allowed only after an action has been commenced. However, Indiana Trial Rule 27 creates an exception to this rule and authorizes deposition discovery where necessary to perpetuate the testimony of a party or witness. 22 Ind. Prac., Civil Trial Practice § 22.25 (2d ed.). Deposition by oral or written examination is one of the permissible methods of discovery. Id.
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We have acknowledged in prior decisions an “impediment requirement,” Hartson-Kennedy, 857 N.E.2d at 1037; that is, a Rule 27(A) petitioner must show why a lawsuit could not be brought at the time the petition is made. Sowers, 577 N.E.2d at 253. We have justified the impediment requirement by stating: To allow a prospective litigant to petition for perpetuation of testimony when there is no impediment to bringing the suit would promote an abuse of the rule. Litigants could then use the rule as a “fishing expedition” to discover grounds for a lawsuit, and, if found, to determine against whom the action should be initiated. These uses are not contemplated by Rule 27. Hartson-Kennedy, 857 N.E.2d at 1037 (quoting Sowers, 577 N.E.2d at 253).
Even though Lincoln is not “technically precluded” from initiating a lawsuit, allowing perpetuation of testimony was not an abuse of discretion. In Hartson-Kennedy, we noted “the liberal approach that should be taken to Rule 27(A) motions,” 857 N.E.2d at 1037, and we said requests under that rule should be granted only when “there is evidence supporting a petitioner’s expectations to be a party to a suit.” Id. (quoting State v. Jablonski, 590 N.E.2d 598, 602 (Ind. Ct. App. 1992)). In the case before us there is ample evidence the petitioner, Lincoln, could expect to be a party to a lawsuit. [13] The parties’ filings to the trial court indicated Cleveland’s lease with Lincoln provided that Cleveland would be responsible for environmental damage to Lincoln’s real estate. Lincoln had notified Cleveland of contamination and demanded it take responsibility. Lincoln and Cleveland entered into an Environmental Cost Sharing Agreement, but Cleveland had not made some payments to Lincoln and had sought to revise the agreement. Lincoln knew it could file a lawsuit but, for tactical reasons, did not yet want to do so. There was ample evidence supporting the petitioner’s expectations to be a party to a suit.
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Rule 27 is not a substitute for discovery; it is available in special circumstances to preserve testimony that could otherwise be lost. Sowers, 577 N.E.2d at 252. The rule is to be used when a witness’ testimony might become unavailable over time, and not to provide a method of discovery to determine whether a cause of action exists.[Footnote omitted.] Id. In other words, the rule may be invoked to memorialize evidence that is already known, rather than as a pre-trial discovery device. Id. Litigants should not “use the rule as a ‘fishing expedition’ to discover grounds for a lawsuit, and, if found, to determine against whom the action should be initiated.” Id. at 253 (emphasis added). [17] Lincoln’s petition was no such “fishing expedition.” It is apparent from the record that Lincoln knows the specific grounds for its potential lawsuit, and it knows Cleveland is the party against whom the action would be initiated. Its petition clearly was not brought to provide a method of discovery “to determine whether a cause of action exists”; its lengthy and detailed list of proposed topics for questioning so reflects. (See Br. of Appellant at 20) ([Lincoln] intended these depositions as proverbial “fishing expeditions” to uncover facts rather than to preserve specific, known key facts.”). Lincoln’s petition satisfied Rule 27(A).
Failure or Delay of Justice
Once the impediment requirement is satisfied, a Rule 27(A) petition is permissible if the court is satisfied that perpetuation of the testimony may prevent a failure or delay of justice. Hartson-Kennedy, 857 N.E.2d at 1038. There is a failure or delay of justice when a certain witness’s testimony might become unavailable over time. Id. Some special circumstances that justify perpetuation of testimony include cases where the witness is aged such that the witness might be unavailable before the complaint is filed. Id. See, e.g., Texaco, Inc. v. Borda, 383 F.2d 607, 609 (3rd Cir. 1967) (abuse of discretion to deny leave to perpetuate testimony of seventy-one-year-old witness where events forming the basis of the proposed action occurred 11 years earlier and action was indefinitely stayed); De Wagenknecht v. Stinnes, 250 F.2d 414, 417 (D.C. Cir. 1957) (“[t]here can be no certainty that this testimony with [sic] still be available when the controversy is ready for litigation, since the witness is at present seventy-four years of age”) (both cited in Sowers, 577 N.E.2d at 252). The witnesses Lincoln wanted to depose ranged in age, at the time of its petition, from sixty-seven to seventy-eight. The environmental remediation process could continue for years. We cannot say the trial court abused its discretion in determining there could be a failure or delay of justice based on the age of the witnesses.
Conclusion
The grant of Lincoln’s petition was within the trial court’s discretion, as there was evidence supporting Lincoln’s expectations it might be a party to a suit, Lincoln seeks to preserve specifically identified facts probative to a key issue, and declining to permit the depositions could result in a failure or delay of justice based on the age of the witnesses. We accordingly affirm.
Affirmed.
Crone, J., and Bradford, J., concur.