Rule 27.Depositions Before Action or Pending Appeal

Chapter V: Depositions and Discovery · Not amended since adoption on record · Last verified July 14, 2026

In one sentenceRule 27 lets a person who expects to be involved in a future lawsuit, or a party with a judgment on appeal, petition the court to take and preserve testimony before the underlying action can otherwise be brought or resolved, so the testimony survives for later use.

Full Text of Rule 27

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 state may file a verified petition in the circuit or chancery 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 this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and his interest therein, (3) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, (4) the names or a description of the persons he expects will 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 which he 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, 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 twenty days before the date of hearing the notice shall be served in the same manner 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 by law, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent.

(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 interrogatories. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rule 34. 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, it may be used in any action involving the same subject matter subsequently brought in a circuit, chancery or county court in accordance with Rule 32(a).

(b) Pending Appeal. If an appeal has been taken from a judgment of a 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 court. In such case the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action were pending in the court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (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 depositions to be taken and may make orders of the character provided for by Rule 34, 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 court.

(c) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

End

Plain-English Summary

Rule 27(a) addresses testimony that might be lost before a lawsuit can even be filed. A person who expects to be a party to an action but cannot yet bring it may file a verified petition in the circuit or chancery court where an expected adverse party resides. The petition has to show the petitioner's expected but not-yet-available claim, the subject matter and the petitioner's interest in it, the facts to be established and the reasons for perpetuating them, the expected adverse parties and their addresses if known, and the people to be examined along with the substance of their expected testimony. The petitioner then serves notice on each expected adverse party at least 20 days before the hearing, using the same methods as service of a summons; if that is not possible, the court can order service by publication or another method and must appoint an attorney to represent any unserved persons and cross-examine the deponent on their behalf.

If the court finds that perpetuating the testimony may prevent a failure or delay of justice, it enters an order naming the people to be deposed, describing the subject matter, and specifying whether the depositions will proceed by oral examination or written questions, with the usual discovery rules and protective-order powers applying from there. A deposition taken this way can later be used in any action involving the same subject matter that is later filed in a circuit, chancery, or county court.

Rule 27(b) covers the same idea after a judgment already exists — when an appeal has been taken, or the time to appeal has not yet run, the court that rendered the judgment may allow depositions to preserve testimony for use if further proceedings occur. The party seeking that testimony moves in that same court, on the same notice and service requirements, showing who will be examined, what they are expected to say, and why perpetuating the testimony is necessary. Rule 27(c) makes clear that this rule does not cut off a court's separate, traditional power to entertain an action whose purpose is to perpetuate testimony.

Frequently Asked Questions

Can I take a deposition before I've even filed my lawsuit?

Yes, if you expect to be a party to an action you are not yet able to bring. Rule 27(a) lets you file a verified petition explaining your expected claim and asking the court to authorize depositions to perpetuate testimony that might otherwise be lost.

What has to be in a Rule 27 petition to perpetuate testimony?

The petition must show that you expect to be a party to an action you cannot presently bring, describe the subject matter of the expected action and your interest in it, state the facts you want to establish and why you want to preserve them, identify the expected adverse parties and their addresses if known, and identify the people to be examined along with the substance of their expected testimony.

How much notice do I have to give before a Rule 27 hearing?

Rule 27(a)(2) requires notice to be served on each expected adverse party at least 20 days before the hearing date, using the same manner as service of a summons, unless the court orders an alternative method because service cannot be made with due diligence.

Can testimony taken under Rule 27 be used later if I do end up filing suit?

Yes. Rule 27(a)(4) allows a deposition taken to perpetuate testimony to be used in any later action involving the same subject matter, filed in a circuit, chancery, or county court, consistent with the rules on using depositions in court proceedings.

Can I preserve testimony while a case is on appeal?

Yes. Rule 27(b) allows the court that rendered the judgment to permit depositions to perpetuate testimony for use in further proceedings, whether an appeal has already been taken or the time to appeal has not yet expired, on a motion showing the witnesses involved, their expected testimony, and the reasons for perpetuating it.

Source & verification. Rule text and Advisory Committee Notes are reproduced verbatim from the Mississippi Rules of Civil Procedure, adopted by the Supreme Court of Mississippi. Last verified July 14, 2026. · Official source

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