Rule 27.Deposition before Action or Pending Appeal

Last amended January 1, 2020 · Last verified July 1, 2026

In one sentenceRule 27 lets someone preserve a witness’s testimony through a deposition before a lawsuit has even been filed, or while an appeal is pending, when there is a real risk the testimony could otherwise be lost.

Full Text of Rule 27

Text sizeJump to: (27.01) (27.02) (27.03)

27.01 Before Action

(a) Petition. A person who desires to perpetuate testimony regarding any matter may file a verified petition in the district court of the county of the residence of an 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 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 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.

The petition shall ask for an order authorizing the petitioner to take the deposition of those persons to be examined as named in the petition, for the purpose of perpetuating their testimony.

(b) 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 21 days before the date of hearing, the notice shall be served either within or outside the state in the manner provided in Rule 4.03 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 4.03, 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 17.02 apply.

(c) Order and Examination. If the court is satisfied that the perpetuation of testimony may prevent a failure or delay of justice, it shall make an order designating and 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 deposition may then be taken in accordance with these rules and the court may make orders authorized 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.

(d) Use of Deposition. If a deposition to perpetuate testimony is taken pursuant to 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 32.01.

27.02 Pending Appeal If an appeal has been taken from a judgment or order, or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment or order was rendered may allow the taking of the deposition of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case, the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show the names, addresses, the substance of the testimony expected to be elicited from each person to be examined, and 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 authorized 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 actions pending in the district court.

27.03 Perpetuation by Action This rule does not limit the power of the court to entertain an action to perpetuate testimony.

End

Advisory Committee Comments

Advisory Committee Comment—2020 Amendments

Rule 27.01(b) is amended as part of the extensive amendments made to the timing provisions of the rules. These amendments implement the adoption of a standard “day” for counting deadlines under the rules—counting all days regardless of the length of the period and standardizing the time periods, where practicable, to a 7-, 14-, 21- or 28-day schedule. The only change to this rule lengthens the 20-day notice requirement before hearing a petition to 21 days. This change affects only the time limits, and is not intended to have any other effect.

Amendment History

(Amended effective January 1, 2020.)

Plain-English Summary

Normally depositions happen after a lawsuit is underway, as part of discovery. Rule 27 covers the narrower situation where testimony needs to be locked in before that is possible. A person who expects to be involved in a future lawsuit, but is not yet able to bring it, can file a verified petition asking the court for permission to depose specific people in order to preserve their testimony. The petition has to identify the subject matter of the expected case, the facts the petitioner hopes to establish, who the expected opposing parties are, and who will be deposed and about what.

Once the petition is filed, the petitioner has to notify each expected adverse party, serving them with the petition at least 21 days before the hearing, generally using the same methods used to serve a summons. If a party cannot be found or served despite diligent effort, the court can authorize service by publication or another method, and it appoints an attorney to represent and cross-examine on behalf of anyone who could not be served. If the court is satisfied that preserving the testimony could prevent a failure or delay of justice, it issues an order identifying who will be deposed and how. A deposition taken this way, or one that would otherwise be admissible in Minnesota courts even if taken differently, can later be used in any subsequent lawsuit involving the same subject matter.

The rule also covers depositions taken while an appeal is pending, or before an appeal is filed if the time to appeal has not run out. In that situation, a party can move in the district court, using similar notice, for permission to depose witnesses to preserve their testimony in case further proceedings happen in the district court later. And the rule makes clear it does not limit a court’s separate power to hear an actual lawsuit whose purpose is to perpetuate testimony.

Frequently Asked Questions

Can I take a deposition before I have filed a lawsuit?

Yes, if you expect to be a party to a future action but cannot yet bring it, you can file a verified petition asking the court for permission to depose specific people to preserve their testimony.

How much notice do expected opposing parties get before this type of deposition?

The notice, along with a copy of the petition, must be served at least 21 days before the hearing date.

What if I cannot locate or serve an expected adverse party?

The court can order service by publication or another method, and will appoint an attorney to represent and cross-examine on behalf of anyone who was not personally served.

Can I use one of these depositions later in an actual lawsuit?

Yes, a deposition taken under this rule can be used in any subsequent action involving the same subject matter, under the general rules for using depositions.

Does this rule apply while a case is on appeal?

Yes, a party can move in the district court for permission to depose witnesses to preserve testimony for possible further district court proceedings, even while an appeal is pending or before one is filed.

Source & verification. The rule text and Advisory Committee Comments are reproduced verbatim from the official Minnesota Rules of Civil Procedure (Minn. R. Civ. P. 27). Prescribed by the Supreme Court of Minnesota (Minn. Stat. § 480.051). The plain-English summary is original and written by us. Last verified July 1, 2026. · Official source

Also known as: deposition to perpetuate testimony rule