Rule 27.Discovery before action or pending appeal.
Last amended April 16, 2010 · Last verified July 6, 2026
In one sentenceRule 27 lets someone who is not yet able to file a lawsuit, or who has a case pending on appeal, ask a court for permission to take depositions or other discovery early so that testimony or evidence is not lost before the case can move forward.
(1)PETITION. A person who desires to perpetuate that person’s own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit 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: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner’s interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it, (4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (5) 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 or to seek discovery under Rule 34 or Rule 35 from the persons named in the petition.
(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 thirty (30) days before the date of hearing the notice shall be served in the manner provided in Rule 4(c) 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 in the manner provided in Rule 4(c), 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 provisions of Rule 17(c) apply.
(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 questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). The discovery may then be taken in accordance with these rules. For the purpose of applying these rules to discovery before action, 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 discovery 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 this state in accordance with the provisions of Rule 32(a) and (b).
(b)Pending Appeal. If an appeal has been taken from a judgment of a court to which these rules apply or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony or may allow discovery under Rule 34 or Rule 35 for use in the event of further proceedings in such court. In such case the party who desires to perpetuate the testimony or obtain the discovery may make a motion in the court therefor upon the same notice and service thereof as if the action was pending in the circuit court. The motion shall show (1) the names and addresses of the persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the party expects to elicit from each; (2) the reasons for perpetuating their testimony or seeking such other discovery. If the court finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, it may make an order as provided in paragraph (3) of subdivision (a) of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in actions pending in the circuit court.
(c)Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.
(dc)District court rule. Rule 27 does not apply in the district court.
Amendment History
[Amended eff.10-1-95; Amended eff. 4-16-2010.]
Committee Comments
Committee Comments, as Amended Effective April 5, 1988
This rule superseded Code of Alabama 1940, Title 7, §§ 491-505. The rule is similar to the statute—compare Rule 27(a)(1) with Title 7, § 492—in requiring that the petition state the facts which the petitioner desires to establish by the proposed testimony. The statute was interpreted as requiring “a narrative of the testimony to be given by the witness.” American Life Insurance Co. v. Powell, 259 Ala. 70, 78, 65 So.2d 516 (1953). The rule is intended to be somewhat more liberal and to permit the facts to be stated in a brief, generalized form, as distinguished from a particularized and detailed statement of the proposed testimony.
As is true of the corresponding federal rule, the primary purpose of Rule 27, like that of the state statutes it superseded, is to perpetuate testimony rather than to make discovery.
See 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2071 (1970).
However, this rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules. This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated. See Vermont Rule 27; 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2074 (1970). The discovery permitted under Rule 27(a) and (b) is expressly limited to that available under Rule 34 and Rule 35. Thus, the modifications from Federal Rule 27 do not contemplate any other method of “discovery” before the filing of an action or pending appeal.
Committee Comments to October 1, 1995, Amendment to Rule 27
The amendment is technical. No substantive change is intended. Note from the reporter of decisions: The order amending Rule 27(a)(2), Alabama Rules of Civil Procedure, effective April 16, 2010, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.
Plain-English Summary
Normally discovery only starts once a lawsuit is filed. Rule 27 is the exception, built for situations where waiting would mean losing evidence for good — an elderly or ill witness, a piece of evidence that will disappear, or facts that need to be pinned down before a claim can even be brought. A person who expects to be involved in a future case, but cannot yet file it, can petition the circuit court in the county where an expected opposing party lives. The petition has to lay out why the case cannot be brought yet, what the dispute is about, what facts the petitioner wants to establish, and who the petitioner expects to depose or examine. Everyone who is expected to become an adverse party gets formal notice and a chance to show up and cross-examine, and the court appoints a lawyer to protect the interests of anyone who cannot be found or served. If the court is convinced that taking the testimony now will prevent a future failure or delay of justice, it authorizes the depositions, document requests, or physical or mental exams to go forward, and the resulting evidence can later be used in the eventual lawsuit.
The second half of Rule 27 covers a related but different problem: a case that is already over in the trial court and now sits on appeal, where a party wants to preserve testimony in case the appeal leads to further proceedings back in that court. The mechanism is similar — a motion instead of a petition, but the same kind of showing, the same kind of notice, and the same goal of locking in evidence before it disappears. Rule 27 does not exist to give anyone a head start on ordinary discovery or a way around the normal sequence of filing a complaint and then discovering the case; courts read it narrowly, and it is not available in the district courts at all. It is a safety valve for preserving evidence, not a substitute for filing the lawsuit itself.
Frequently Asked Questions
Can I use Rule 27 just to find out if I have a case worth filing?
No. Rule 27 exists to preserve testimony or evidence that might otherwise be lost, not to let someone investigate or fish for facts before deciding whether to sue. The petition has to show the case cannot yet be brought and that the delay itself threatens the evidence.
Who has to be notified if I file a Rule 27 petition?
Every person you expect to become an adverse party in the future lawsuit must be formally served with notice and a copy of the petition, generally at least thirty days before the hearing, and the court will appoint a lawyer to represent anyone who cannot be located or served.
Can Rule 27 be used while a case is on appeal?
Yes. If a judgment has been appealed, or the time to appeal has not yet run, the court that issued the judgment can allow depositions or other discovery to preserve testimony or evidence in case the appeal results in further proceedings in that court.
Is testimony taken under Rule 27 automatically usable at the eventual trial?
It can be used in a later action involving the same subject matter, subject to the same rules that govern using any deposition at trial, so it functions much like discovery taken after the case is filed rather than as a separate, lesser form of evidence.
Source & verification. The rule text, amendment history, and Committee Comments are reproduced verbatim from the
official Alabama Rules of Civil Procedure (Ala. R. Civ. P. 27). Prescribed by the Supreme Court of Alabama (Ala. Const. amend. 328, § 6.11). The plain-English summary is original and written by us. Last verified July 6, 2026. ·
Official source
Also known as:perpetuate testimonydiscovery before lawsuit filedpreserve testimony pending appealpetition to perpetuate testimonyAla. R. Civ. P. 27