Rule 27.Depositions before action or pending appeal.
Last amended 2011 · Last verified July 3, 2026
In one sentenceRule 27 lets a person who expects to be a party to a future lawsuit petition the court to take and preserve a deposition before the action is filed, and lets any party do the same while a case is on appeal, so testimony that might otherwise be lost stays available.
(1)Petition. – A person who desires to perpetuate that person's own testimony or the testimony of another person regarding any matter may file a verified petition in the appropriate court in a county where any expected adverse party resides. The petition shall be entitled in the name of the petitioner and shall show: (i) that the petitioner expects that the petitioner, or the petitioner's personal representative, heirs or devisees, will be a party to an action cognizable in any court, but that the petitioner is presently unable to bring it or cause it to be brought, (ii) the subject matter of the expected action and the petitioner's reasons for desiring to perpetuate it, (iii) the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it, (iv) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (v) 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.
(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 (or within such time as the court may direct) the notice shall be served in the manner provided in Rule 4(j)(1) or (2) 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(j)(1) or (2), an attorney who shall represent them, in case they are not otherwise represented. 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. 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 United States or the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a court of this State in accordance with the provisions of Rule 32(a), or in any other court under whose rules it is admissible.
(b)Pending appeal. – If an appeal has been taken from the determination of any court or if petition for review or certiorari has been served and filed, or before the taking of an appeal or the filing of a petition for review or certiorari if the time therefor has not expired, the court in which the determination was made may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the trial court. In such case the party who desires to perpetuate the testimony may make a motion in the trial court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the trial court. The motion shall show (i) the names and addresses of the persons to be examined and the substance of the testimony which the party expects to elicit from each; (ii) 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 actions pending in the trial court.
(c)Perpetuation by action. – This rule does not limit the power of a court to entertain an action to perpetuate testimony.
Amendment History
(1967, c. 954, s. 1; 1975, c. 762, s. 2; 2011-284, s. 5.)
Plain-English Summary
Rule 27(a) lets someone who expects to be a party to an action, but cannot yet bring or defend it, file a verified petition asking the court to let them take a deposition to preserve testimony. The petition states the subject matter of the expected action, the facts the petitioner wants to establish and the reasons for wanting to preserve them, the names and addresses of expected adverse parties so far as known, and the names, addresses, and expected testimony of the people to be examined. Those expected adverse parties are served with notice, or — if unknown or unable to be served — represented by a court-appointed guardian ad litem in a manner similar to Rule 17’s guardian ad litem procedure. If the court is satisfied that taking the deposition may prevent a failure or delay of justice, it orders the deposition taken under the same rules that govern depositions in a pending action, and may also order related document production or examinations under Rules 34 and 35; a deposition perpetuated this way may later be used in any action involving the same subject matter under the same rules that govern depositions taken in a pending case.
Rule 27(b) lets a party to a case already on appeal, or one whose time to appeal has not yet run, apply to the trial court for leave to take depositions to preserve testimony for further proceedings that may follow. Rule 27(c) makes clear that none of this limits a court’s independent power to entertain a traditional action to perpetuate testimony.
Frequently Asked Questions
Can testimony be preserved before a lawsuit is even filed?
Yes. Rule 27(a) lets someone who expects to be a party file a verified petition asking the court to allow a deposition to preserve testimony that might otherwise be lost.
What must a Rule 27 petition to perpetuate testimony include?
The subject matter of the expected action, the facts the petitioner wants to establish and why, the names and addresses of expected adverse parties so far as known, and the names, addresses, and expected testimony of the people to be examined.
Can depositions be taken to preserve testimony while a case is on appeal?
Yes. Rule 27(b) lets a party apply to the trial court for leave to take depositions to preserve testimony for further proceedings, whether the appeal is already pending or the time to appeal has not yet run.
Source & verification. The rule text and history citation are reproduced verbatim from the
official North Carolina General Statutes, Chapter 1A (N.C. R. Civ. P. 27). Enacted by the North Carolina General Assembly (S.L. 1967, c. 954, codified at N.C.G.S. § 1A-1). The plain-English summary is original and written by us. Last verified July 3, 2026. ·
Official source
Also known as:perpetuation of testimonydepositions before filing suitpre-litigation depositiondeposition pending appealpetition to preserve testimony