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Rule 27.Depositions Before Action or Pending Appeal

Last amended July 1, 1979 · Last verified July 2, 2026

In one sentenceRule 27 lets a person who expects to be a party to a future Tennessee lawsuit, or a party with an appeal already pending, petition the court to take and preserve testimony that might otherwise be lost before the action can be filed or the appeal resolved.

Full Text of Rule 27

Text sizeJump to: (27.01) (27.02) (27.03) (27.04)

27.01 Before Action.
(1) PETITION. A person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court of Tennessee may file a verified petition in any court of record 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 Tennessee 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 and the reasons for desiring to perpetuate 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 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 the notice shall be served in the manner provided in Rule 4.04 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 4.04, an attorney who shall represent them, 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 17.03 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 state in which it is taken, or in the courts of the United States, 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 32.01.
27.02 Pending Appeal. If an appeal has been taken from a judgment 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 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 that court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which the party 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 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.
27.03 Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.
27.04 Filing and Recording. When a deposition to perpetuate testimony is taken under these rules, the deposition shall be promptly filed in the office of the clerk of the court in which the action is pending or if no action is pending in the office of the clerk of the court in which the petition was filed. A copy of the deposition may also be sent to the register of the county where the petition was filed, and the register shall spread the same at length upon the records of the register's office.
End

Advisory Commission Comments

Advisory Commission Comments.

Rule 27.01(3) requires that the judge before granting the petition seeking to take depositions to perpetuate evidence must find that the perpetuation of testimony may prevent a failure or delay of justice. Rule 27.01(4) allows depositions to perpetuate testimony to be used under the same conditions as are other types of depositions under Rule 32.01. Rule 27.02 permits depositions to perpetuate testimony to be taken pending an appeal, subject to the same conditions and requirements as for depositions taken before action. Rule 27.04 requires that the depositions be filed with the clerk of the appropriate court, and allows them to be filed also with the register.

Amendment History

  • Added July 1, 1979.

Plain-English Summary

Rule 27.01 lets a person who expects to become a party to a cognizable Tennessee action, but who cannot yet bring it, file a verified petition in the county where an expected adverse party resides. The petition has to show the petitioner's expected role in the future action and interest in it, the facts the petitioner wants to establish through the proposed testimony and the reason for preserving it now, the expected adverse parties and their known addresses, and the people to be examined along with the substance of the testimony expected from each. The petitioner then serves notice on every expected adverse party at least 20 days before the hearing, using the same service methods as for a summons, with the court able to order substitute service, or even appoint an attorney to represent and cross-examine on behalf of parties who cannot be served. 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 depositions proceed under the ordinary discovery rules. A deposition taken this way — or one that would otherwise be admissible in a Tennessee or federal court — can later be used in any Tennessee action involving the same subject matter.

Rule 27.02 offers a comparable procedure once an action already exists and an appeal has been or may be taken: instead of a petition, the party who wants to preserve testimony for further proceedings in the trial court files a motion in that same court, on the same notice and service requirements, showing the witnesses to be examined, the substance of their expected testimony, and the reasons for perpetuating it. Rule 27.03 makes clear that this rule does not limit a court's separate power to entertain an action to perpetuate testimony, and Rule 27.04 requires a deposition taken under this rule to be promptly filed with the clerk of the court where the action is pending, or, if no action is yet pending, with the clerk of the court where the petition was filed.

Frequently Asked Questions

Can I use Rule 27 to investigate whether I have a claim worth bringing?

No. Rule 27 exists to preserve testimony that might otherwise be lost before an anticipated action can be filed — it is not meant as a general pre-filing investigative tool, and courts read it narrowly for that purpose.

What must a Rule 27.01 petition show before the court will allow depositions?

The petition must show the petitioner's expected role in a future action and interest in it, the facts to be established and the reasons for preserving them, the expected adverse parties and their addresses, and the witnesses to be examined along with the substance of their expected testimony.

Can testimony be preserved once an appeal is already pending?

Yes. Rule 27.02 lets a party preserve testimony for further proceedings in the trial court by motion, on the same notice and service requirements as a Rule 27.01 petition, once an appeal has been taken or the time to appeal has not yet expired.

Source & verification. The rule text and Advisory Commission Comments are reproduced verbatim from the official Tennessee Rules of Civil Procedure (Tenn. R. Civ. P. 27). Prescribed by the Supreme Court of Tennessee (Tenn. Code Ann. §§ 16-3-402 to 16-3-407, 16-3-601). The plain-English summary is original and written by us. Last verified July 2, 2026. · Official source
Also known as: perpetuation of testimonydeposition before actionpreserving testimony pending appeal