Rule 27.Depositions Before Action or Pending Appeal

Part V. Depositions and Discovery · Last amended July 1, 1996 · Last verified September 4, 2026

In one sentenceRule 27 lets a person perpetuate testimony before an action is filed, or while an appeal is pending, when doing so may prevent a failure or delay of justice.

Full Text of Rule 27

Text sizeJump to: (a) (b) (c)

(Identical to Mass.R.Civ.P. 27)

(a) 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 court where these rules apply may file a verified petition in the Superior Court in the county or District Court in the judicial district, as the case may be, 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 where these rules apply but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and his interest therein, 3, the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, 4, the names or a description of the persons he 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 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 either within or without the Commonwealth in the manner provided in Rule 4 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, 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(b) 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 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 Commonwealth, it may be used in any action involving the same subject matter subsequently brought in such a court, in accordance with the provisions of Rule 32(a).

(b) Pending Appeal. If an appeal has been taken from a judgment of a court of this Commonwealth 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 for use in the event of further proceedings in that court. In such case the party who desires to perpetuate the testimony may make a motion in that court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in that court. The motion shall show (1) the names and addresses of 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 pending actions.

(c) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

End

Rule History

Amended May 3, 1996, effective July 1, 1996.

Plain-English Summary

Rule 27 is identical to its civil counterpart, and the source says so in a line of its own before subsection (a). It answers a narrow problem: a witness whose testimony may be lost before there is a case to take it in.

Before the action

A person who wants to perpetuate their own testimony or another's files a verified petition in the county or judicial district where an expected adverse party resides. The petition is entitled in the petitioner's name and must show five things: that the petitioner expects to be a party but cannot presently bring the action; the subject matter and the petitioner's interest; the facts to be established and the reasons for perpetuating them; the names or description and addresses of expected adverse parties; and the names and addresses of the people to be examined with the substance of the expected testimony.

Notice plus a copy of the petition is served on each expected adverse party at least 20 days before the hearing, in the manner Rule 4 provides for a summons, inside or outside the Commonwealth. Where diligent service cannot be made, the court may order service by publication or otherwise, and must appoint an attorney to represent anyone not served under Rule 4 — who, if they are not otherwise represented, cross-examines the deponent. Rule 17(b) applies where an expected adverse party is a minor or incompetent.

The order issues if the court is satisfied that perpetuation may prevent a failure or delay of justice. It designates who may be deposed, the subject matter, and whether the deposition is oral or on written questions. For these depositions, every reference in the rules to the court where the action is pending means the court where the petition was filed.

Pending appeal

Subsection (b) covers the other end. After a judgment, or before an appeal if the time has not expired, the court that rendered the judgment may allow depositions to perpetuate testimony for use in further proceedings in that court. The motion shows the witnesses, the substance of the expected testimony, and the reasons; the standard is whether perpetuation is proper to avoid a failure or delay of justice.

Subsection (c) preserves any independent action to perpetuate testimony that already exists.

Frequently Asked Questions

Can I take a deposition before filing a case?

Rule 27(a) allows it on a verified petition to perpetuate testimony, filed where an expected adverse party resides. The court makes the order if satisfied that the perpetuation may prevent a failure or delay of justice.

How much notice does a Rule 27 petition need?

At least 20 days before the date of the hearing, served in the manner Rule 4 provides for service of a summons, either within or outside the Commonwealth.

What happens if an expected adverse party cannot be served?

The court may order service by publication or otherwise, and must appoint an attorney to represent anyone not served in the manner Rule 4 provides. If those persons are not otherwise represented, the appointed attorney cross-examines the deponent.

Can testimony be perpetuated after judgment?

Rule 27(b) allows it where an appeal has been taken, or before one if the time has not expired. The court that rendered the judgment may allow depositions for use in the event of further proceedings in that court, if perpetuation is proper to avoid a failure or delay of justice.

Source & verification. Rule text and Rule History reproduced verbatim from the Massachusetts Rules of Domestic Relations Procedure as published by the Massachusetts Trial Court Law Libraries, current through amendments effective May 1, 2010. Promulgated by the Supreme Judicial Court of Massachusetts. Last verified September 4, 2026. · Official text

Also known as: perpetuate testimonydeposition before actionverified petitionpre-action discoverydeposition pending appeal