Rule 27.Depositions to perpetuate testimony

Current through January 1, 2025 · Last verified July 8, 2026

In one sentenceRule 27 lets a person who expects to be a party to a future lawsuit -- or a party to a case that's already on appeal -- petition the court for permission to depose witnesses now, in order to preserve their testimony against the risk that it won't be available later.

Full Text of Rule 27

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

(a) Before an action is filed.

(1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a West Virginia court may file a verified petition in in the circuit court for the circuit where any expected adverse party resides. The petition shall ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition shall be titled in the petitioner’s name and shall show:

(A) that the petitioner expects to be a party to an action cognizable in a West Virginia court but cannot presently bring it or cause it to be brought;

(B) the subject matter of the expected action and the petitioner's interest;

(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each deponent.

(2) Notice and service. At least 21 days before the hearing date, or such other time as agreed by the parties or ordered by the court, the petitioner shall serve in the manner provided in Rule 4 for service of process each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court shall appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.

(3) Order and examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court shall issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.

(4) Using the deposition. If a deposition to perpetuate testimony is taken under these rules, or if, although not so taken, it would be admissible in a federal district court, 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 Rule 32(a).

(b) Pending appeal.

(1) In general. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.

(2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending. The motion shall show:

(A) the name, address and expected substance of the testimony of each deponent; and

(B) the reasons for perpetuating the testimony.

(3) Court order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending action.

End

Amendment History

The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.

Plain-English Summary

Some testimony can't wait for a lawsuit to formally begin. Rule 27 lets a person who expects to bring or defend a future action, but can't yet do so, petition the circuit court where an expected adverse party resides for permission to depose witnesses ahead of time. The petition has to explain the expected case, the petitioner's interest in it, the facts the petitioner wants to preserve, and who the likely adverse parties and witnesses are. Expected adverse parties get notice and a chance to be heard, and the court appoints an attorney to represent and cross-examine on behalf of anyone who can't be found and served.

If the court is satisfied that taking the testimony now could prevent a failure or delay of justice later, it authorizes the depositions, and they can be used afterward in any case in West Virginia courts involving the same subject matter.

The rule works the same way after a judgment, while an appeal is pending or still available: a party can move to depose witnesses to preserve their testimony in case further proceedings are needed once the appeal is resolved. And neither part of this rule limits a court's independent power to entertain an action whose sole purpose is perpetuating testimony.

Frequently Asked Questions

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

Yes, if you expect to be a party to a future action you can't yet bring, Rule 27(a) lets you petition the court for permission to depose witnesses to preserve their testimony.

What has to be in a petition to perpetuate testimony before an action is filed?

The petitioner's expected role in the future case, the subject matter and the petitioner's interest in it, the facts to be established and the reasons to preserve them, the expected adverse parties, and the name, address, and expected testimony of each deponent.

Can a deposition to perpetuate testimony be taken while a case is on appeal?

Yes. Rule 27(b) lets a party depose witnesses to preserve their testimony for further proceedings if an appeal has been or may still be taken.

Source & verification. The rule text is reproduced verbatim from the official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 27). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. · Official source

Also known as: perpetuating testimonydeposition before lawsuit filedpreserve testimony pending appeal