Rule 57.02.Depositions Before Action or Pending Appeal.
Part I · Rule 57: Interrogatories and Depositions · Last amended January 1, 1994 · Last verified July 22, 2026
In one sentenceRule 57.02 lets someone who expects to be part of a future lawsuit petition the court to take and preserve testimony before the case can be filed, and lets a party pending appeal preserve testimony for use if the case returns to circuit court.
(1)Petition. A person who desires to perpetuate testimony of any person regarding any matter that may be cognizable in any court of Missouri may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be captioned 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 Missouri 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 desired to be established by the proposed testimony and the reasons for desiring to perpetuate it, (4) the names or a description of the persons expected to 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 that is expected to be elicited from each.
(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 days before the date of hearing, the notice shall be served either within or without the state in the manner provided 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 personally served with a summons in this state, 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 52.02 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. The depositions may then be taken in accordance with these Rules; and the court may make orders of the kind provided for by Rules 58.01 and 60.01. 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 considered as referring 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, it may be used in any action involving the same subject matter subsequently brought in a court of Missouri, in accordance with the provisions of Rule 57.07.
The petitioner shall ask for an order authorizing the taking of the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
(b)Pending Appeal. If an appeal has been taken from a judgment of a circuit court 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 the circuit court. In such case, the party who desires to perpetuate the testimony may make a motion in the circuit court for leave to take the depositions, upon the same notice and service thereof as if the action were pending in that court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony expected to be elicited from each and (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 deposition to be taken and may make orders of the character provided for in Rule 58.01 and Rule 60.01, 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 that court.
(c)Perpetuation by Action. This Rule does not limit the power of a court to entertain an action to perpetuate testimony.
This is substantially the same as Rule 27 of the Federal Rules of Civil Procedure except the time period which must elapse between service of notice and the hearing of the petition was lengthened to 30 days. Compare: Rule 27 of the Federal Rules of Civil Procedure.
Plain-English Summary
Rule 57.02 covers two situations where testimony needs to be locked in before the usual discovery window opens. The first is a verified petition filed before any lawsuit exists, brought in the county where an expected adverse party resides. The petition has to explain why the petitioner cannot yet bring the anticipated action, describe the subject matter and the petitioner’s interest in it, lay out the facts the testimony would establish and why preserving it now matters, and identify both the expected adverse parties and the people whose testimony is sought. Every named expected adverse party gets at least 30 days’ notice before the hearing, served the way a summons would be served; if a party cannot be found, the court can order service by publication and must appoint an attorney to represent and cross-examine on behalf of anyone not personally served.
If the court finds that taking the testimony now would prevent a failure or delay of justice, it designates who can be deposed, on what subjects, and by oral or written questions, and the deposition proceeds under the ordinary deposition rules, including the orders available under Rules 58.01 and 60.01. A deposition taken this way can later be used in the lawsuit it anticipated, under the same rules that govern using any other deposition in court, once that suit is filed in Missouri.
The second situation is a case already on appeal, or about to be. A party who wants to preserve a witness’s testimony for use if the case comes back to circuit court can move in the court that rendered the judgment, using the same notice and service required for the pre-suit petition, showing the witnesses’ names and expected testimony and the reasons for preserving it. If the court is satisfied that perpetuating the testimony avoids a failure or delay of justice, the deposition proceeds and can be used later exactly as it would in a pending case. None of this displaces a court’s separate power to entertain an independent lawsuit brought solely to perpetuate testimony.
Frequently Asked Questions
When would I use Rule 57.02 before filing a lawsuit?
When you expect to be a party to a future Missouri lawsuit but cannot yet bring it, and you need to preserve a witness’s testimony now — because the witness is elderly, ill, or otherwise at risk of becoming unavailable — before the case can be filed.
What has to be in the petition?
Five things: that you expect to be a party to a Missouri lawsuit you cannot yet bring, the subject matter of the expected action and your interest in it, the facts you want to establish and why preserving them now matters, the names and addresses of expected adverse parties, and the names, addresses, and expected testimony of the people to be examined.
How much notice do the expected adverse parties get?
At least 30 days before the hearing on the petition, served the way a summons is served. If a party cannot be found despite due diligence, the court can order publication or another form of substitute service and must appoint an attorney to represent that person at the deposition.
Can this rule be used to preserve testimony while a case is on appeal?
Yes. A party can move in the court that entered the judgment, using the same notice requirements, to preserve testimony for use if further proceedings happen in circuit court after the appeal.
Can the resulting deposition be used once the lawsuit is filed?
Yes, a deposition taken under this rule can be used in the later action involving the same subject matter, under the same rules that govern using any deposition in court.
Is a Rule 57.02 petition the only way to preserve testimony before a case exists?
No. The rule expressly says it does not limit a court’s power to entertain an independent action brought solely to perpetuate testimony.
Source & verification. Rule text and amendment history are
reproduced verbatim from the Missouri State & Federal Court Rules, adopted by the
Supreme Court of Missouri. Last verified July 22, 2026. ·
Official source
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