Rule 4:2.Depositions Before Action or Pending Appeal.

Part Four: Pretrial Procedures, Dispositions and Production at Trial · Last amended 2021 · Last verified July 16, 2026

In one sentenceRule 4:2 lets a person who is not yet able to file suit — or a party awaiting further proceedings after an appeal — petition the circuit court for leave to take a deposition solely to preserve testimony that might otherwise be lost before it can be used.

Full Text of Rule 4:2

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

(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 of this Commonwealth may file a verified petition in the circuit court in the county or city of the residence of any expected adverse party. The petition must be entitled in the name of the petitioner and must show: (A) that the petitioner expects to be a party to an action cognizable in a court of this Commonwealth but is presently unable to bring it or cause it to be brought; (B) the subject matter of the expected action and his interest therein; (C) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (D) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (E) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and must 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 must 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 must be served either within the Commonwealth in the manner provided for service of a complaint or without the Commonwealth in the manner provided by Code § 8.01-320; 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 may appoint, for persons not so served, an attorney who will represent them, and, in case they are not otherwise represented, may cross- examine the deponent. If any expected adverse party is a person under a disability, a guardian ad litem must be appointed to attend on his behalf.

(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it will 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 will be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with these Rules. The attendance of witnesses may be compelled by subpoena, and the court may make orders of the character provided for by Rules 4:9 and 4:10. For the purpose of applying these Rules to depositions for perpetuating testimony, each reference therein to

the court in which the action is pending will be deemed to refer to the court in which the petition for such deposition was filed.

(4) Cost. The cost of such depositions must be paid by the petitioner, except that the other parties in interest who produce witnesses on their behalf or who make use of witnesses produced by others must pay their proportionate part of the cost of the transcribed testimony and evidence taken or given on behalf of each of such parties.

(5) Filing. The depositions must be certified as prescribed in Rule 4:5 and then returned to and filed by the clerk of the court which ordered its taking.

(6) 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 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 Commonwealth in accordance with the provisions of Rule 4:1.

(b) Pending Appeal. — If an appeal has been taken from a judgment of a court of record 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 the court in which the judgment was rendered for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion must show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit 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 orders of the character provided for by Rules 4:9 and 4:10, 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.

Plain-English Summary

Rule 4:2 addresses a narrow problem: a witness whose testimony might disappear before a lawsuit can even be filed. Before an action exists, a person who expects to become party to one may file a verified petition in the county or city where an expected adverse party resides. The petition must explain the expected claim, why the petitioner cannot yet bring it, the facts the petitioner hopes to establish, and who the petitioner wants to depose. Every expected adverse party must be served with notice at least 21 days before the hearing, and the court may appoint counsel or a guardian ad litem for parties who cannot be reached or who are under a disability.

If the court finds that perpetuating the testimony may prevent a failure or delay of justice, it enters an order identifying the witnesses and the scope of examination, and the deposition proceeds under the ordinary deposition rules, with subpoena power available to compel attendance. The petitioner pays the cost, though other parties who use the testimony share the transcript expense. The deposition is certified and filed the same way as any other deposition under Rule 4:5, and it may later be used in any action involving the same subject matter.

Rule 4:2(b) extends the same tool to a case already decided: while an appeal is pending, or before the time to appeal has run, a party may move in the trial court for leave to preserve testimony for use if the case returns for further proceedings. The showing and procedure mirror the pre-action petition. Rule 4:2(c) makes clear this is the only way to perpetuate testimony outside a pending action — there is no alternative route.

Frequently Asked Questions

Can you take a deposition in Virginia before filing a lawsuit?

Yes, under Rule 4:2(a), by filing a verified petition showing you expect to be a party to an action you cannot yet bring, and explaining what testimony you want to preserve and why.

How much notice does an expected adverse party get before a pre-action deposition?

At least 21 days before the hearing on the petition, served in the same manner as a complaint or, for parties outside Virginia, as provided by Code § 8.01-320 (Rule 4:2(a)(2)).

Who pays for a deposition taken to perpetuate testimony?

The petitioner pays the cost, though other interested parties who produce or use witnesses at the deposition pay their share of the transcript cost (Rule 4:2(a)(4)).

Can you preserve testimony while a case is on appeal?

Yes. Rule 4:2(b) lets a party move in the court that rendered judgment for leave to depose witnesses to preserve their testimony for further proceedings if the appeal results in a remand.

Is Rule 4:2 the only way to perpetuate testimony in Virginia outside a pending case?

Yes. Rule 4:2(c) states that this rule provides the exclusive procedure for perpetuating testimony before an action is filed or while an appeal is pending.

Amendment History

Last amended by Order dated November 23, 2020; effective March 1, 2021.

Source & verification. Rule text and amendment history are reproduced verbatim from the Rules of Supreme Court of Virginia, published by the Supreme Court of Virginia. Last verified July 16, 2026. · Official source

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