Rule 27.Discovery before an action or pending appeal
Group V: Depositions and Discovery · Last amended January 1, 2018 · Last verified July 14, 2026
In one sentenceRule 27 lets someone who is not yet able to bring a lawsuit, or who is waiting on appeal, petition the court to perpetuate testimony or obtain other discovery before the underlying case can otherwise proceed.
(1)Petition. A person who desires to perpetuate testimony or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of the state may file a verified petition in the superior court in the county of the residence of any 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 cognizable in a court of the state 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 or other discovery and the petitioner’s reasons for desiring to perpetuate or obtain 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 or from whom other discovery is sought and the substance of the testimony or other discovery which the petitioner expects to elicit or obtain 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 or to seek discovery under Rule 34 or 35 from the persons named in the petition.
(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 21 days before the date of hearing the notice shall be served either within or without the state in the manner provided in Rule 4(d), (e), or (k), 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(d), (e), or (k), an attorney who shall represent them and whose services shall be paid for by the petitioner in an amount fixed by the court, 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(b) apply.
(3)Order and Examination. If the Presiding Judge is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice, the judge 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; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). Discovery may then be had in accordance with these rules. For the purpose of applying these rules to discovery before action 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 discovery 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 state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in any court of this state, in accordance with the provisions of Rules 32(a) and (b).
(b)Pending Appeal. If an appeal has been taken from a judgment of a superior court or before the taking of an appeal if the time therefor has not expired, the superior court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony or may allow discovery under Rule 34 or 35 for use in the event of further proceedings in the superior court. In such case the party who desires to perpetuate the testimony or obtain the discovery may make a motion therefor in the superior court, upon the same notice and service as if the action was pending in the superior court. The motion shall show (1) the names and addresses of persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the party expects to elicit or obtain from each; (2) the reasons for perpetuating their testimony or seeking such other discovery. If the Presiding Judge finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, the judge shall make an order as provided in paragraph (3) of subdivision (a) of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in actions pending in a superior court.
(c)Recording With Superior Clerk. Any deposition to perpetuate testimony taken before action or pending appeal together with the verified petition therefor and certificate of the officer before whom it was taken shall, within 90 days after the taking, be recorded in the office of the clerk of the county where the land or any part of it lies, if the deposition relates to real estate; if not, of the county where the parties or any of them reside.
Notes
Reporter’s Notes—2018 Amendment: Rule 27(a)(2) is amended to extend its 20-day time period to 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.
Reporter’s Notes: This rule is based on Federal Rule 27, as modified to fit requirements of state practice. The procedure under it is the equivalent of that under 12 V.S.A. §§ 1281-1286 (now superseded), with the principal difference that the rule also permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not a deposition is taken. In this respect the rule clarifies an ambiguity in the federal rule. See 8 Wright & Miller, Federal Practice and Procedure § 2074 (1970). Rule 27(a)(1) provides for a verified petition for perpetuation of testimony or other appropriate discovery before action similar to the affidavit required by 12 V.S.A. § 1281, except that the petition is somewhat more detailed and is to be filed in a county court and acted upon by the Presiding Judge. For perpetuation in the District Court, see D.C.C.R. 27. Rule 27(a)(2) provides for service of the petition upon expected adverse parties in accordance with applicable provisions of Rule 4. See 12 V.S.A. §§ 1282, 1283. The rule provides for the appointment of counsel for persons not served personally and for further protection for minors or incompetents. The provision that counsel for parties not personally served shall be paid by petitioner is taken from Maine Rule 27(a)(2). Rules 27(a)(3) and (4) provide for the taking and use of the discovery in accordance with other applicable discovery rules. See 12 V.S.A. §§ 1284, 1286(b). There is no equivalent in the rule of 12 V.S.A. § 1285, providing for appointment of a commissioner to take a deposition outside the state, because Rule 28, incorporated by Rule 27(a)(3), applies to such cases. Rule 27(b) provides for discovery pending an appeal on motion in the county court in accordance with the procedure for discovery before appeal. Although the rule is more specific as to procedure, it is the same in effect as 12 V.S.A. § 1238 (now superseded). Rule 27(c) is not in the federal rule, but is taken from Maine Rule 27(c) and is identical in effect to 12 V.S.A. § 1286. Recording under the former statute has been held to mean more than mere filing and is a prerequisite to admissibility in evidence. Clark’s Adm’r v. Wilmington Sav. Bank, 89 Vt. 6, 93 A. 265 (1915). There is no equivalent in the rule of Federal Rule 27(c), saving an independent action to perpetuate testimony. Proceedings under the former statute, replaced by the rule, were held to have taken the place of a separate bill in equity for this purpose. In re Petition of Central Vermont Public Service Corp., 115 Vt. 204, 55 A.2d 201 (1947).
Amendment History
Amended Sept. 20, 2017, eff. Jan. 1, 2018.
Plain-English Summary
Some evidence cannot wait for a lawsuit to catch up to it - a witness may be dying, moving away, or otherwise unlikely to be available once a case can be filed. Rule 27(a) addresses that problem before any action begins: a person who expects to be a party to a future case, but cannot yet bring it, can file a verified petition explaining the expected case, the petitioner's interest in it, the facts to be established, and who the expected adverse parties and witnesses are. Notice and a copy of the petition must go to each expected adverse party at least 21 days before the hearing, using the same service methods as a summons; if a party cannot be found, the court can order service by publication and must appoint a lawyer to represent - and cross-examine on behalf of - anyone not personally served.
If the judge is satisfied that perpetuating the testimony or obtaining the discovery would prevent a failure or delay of justice, the judge authorizes depositions, discovery under Rule 34, or a physical or mental examination under Rule 35, and the case proceeds under the ordinary discovery rules from there. A deposition taken this way can later be used in any court case in Vermont involving the same subject matter. Subdivision (b) extends similar relief to a party awaiting appeal, or before the time to appeal has run, letting that party preserve testimony or other discovery for use if the case returns to the superior court. Subdivision (c) requires that any deposition taken to perpetuate testimony, along with the petition and the officer's certificate, be recorded with the county clerk within 90 days - in the county where the land lies if the case concerns real estate, or otherwise where the parties reside.
Frequently Asked Questions
Who can petition to perpetuate testimony before filing a lawsuit?
A person who expects to be a party to an action but is presently unable to bring it may file a verified petition describing the expected action, the petitioner's interest in it, and the facts the petitioner wants to establish through the proposed testimony or discovery.
How much notice must expected adverse parties receive of the petition hearing?
Notice, together with a copy of the petition, must be served on each expected adverse party at least 21 days before the hearing, using the methods Rule 4 prescribes for serving a summons.
What happens if an expected adverse party cannot be served?
The court may order service by publication or another appropriate method, and must appoint an attorney to represent anyone not personally served, paid by the petitioner, who cross-examines the deponent on that person's behalf.
What standard must the judge apply before authorizing the discovery?
The judge must be satisfied that perpetuating the testimony or obtaining the discovery may prevent a failure or delay of justice before ordering that depositions be taken or that discovery proceed under Rule 34 or 35.
Can Rule 27 be used to preserve testimony while a case is on appeal?
Yes. Under Rule 27(b), a party may move in the superior court that rendered judgment to perpetuate testimony or obtain discovery for use if further proceedings occur, using the same notice and service required for actions pending in the superior court.
Source & verification. Rule text, official Reporter's Notes, and
amendment history are reproduced verbatim from the Vermont Rules of Civil Procedure,
adopted by the Vermont Supreme Court. Last verified July 14, 2026.
· Official source
Also known as:perpetuate testimonydeposition before lawsuit filedVRCP 27pre-action discoverypreserve testimony pending appeal