The common-law proceeding to perpetuate testimony is abolished.
§ 8.01-420.1.Abolition of common-law perpetuation of testimony.
Chapter 14. Evidence · Article 9. Miscellaneous Provisions · Last amended 1977 · Last verified July 16, 2026
In one sentenceSection 8.01-420.1 abolishes the old common-law proceeding that let a party perpetuate testimony in anticipation of future litigation, leaving Virginia’s statutory and rule-based deposition procedures as the sole way to preserve testimony.
Full Text of § 8.01-420.1
Plain-English Summary
Before modern discovery rules existed, the common law offered a separate proceeding aimed only at preserving a witness’s testimony for use in litigation that had not started yet, or that might never start at all. This section eliminates that proceeding outright, in a single sentence.
What takes its place is the deposition framework built into the Rules of Court and the surrounding sections of this article — including the rules on where and how depositions are taken. A party who needs to preserve testimony now works within that statutory and rule-based system rather than the older common-law action.
Frequently Asked Questions
Does Virginia still recognize the common-law action to perpetuate testimony?
No. Section 8.01-420.1 abolishes that common-law proceeding.
What replaced the common-law perpetuation-of-testimony proceeding?
Virginia’s statutory and court-rule deposition procedures, including the provisions elsewhere in this article governing how and where depositions are taken.
Why would the legislature abolish the common-law proceeding?
Because modern deposition and discovery procedures already serve the purpose of preserving testimony, making a separate common-law action unnecessary.
Is this section itself a procedural rule for taking depositions?
No. It is purely an abolition provision — it does not set out any procedure of its own.
How long has this abolition been in effect?
Since 1977, when the section was enacted.
Amendment History
1977, c. 617.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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