FRCP Rule 27 Testimony Guide

Rule 27(a): Preserving Testimony Before Filing Suit

Rule 27(a) addresses the most common scenario: you have a potential lawsuit but are not yet in a position to file it, and there is a real risk that testimony you need will be lost in the meantime. Perhaps a key witness is seriously ill, elderly, or about to leave the country permanently. Perhaps a knowledgeable corporate employee is about to resign and may become uncooperative after leaving. These are the situations Rule 27(a) was designed for.

To proceed under Rule 27(a), a petitioner files a verified petition in the federal district court of the district where the expected adverse party resides. The petition must describe the substance of the expected action, the facts the petitioner wants to establish through testimony, the reasons testimony may be lost, the names and addresses of persons to be examined, and the substance of what the petitioner expects to elicit from each witness.

After the petition is filed, notice is served on each expected adverse party as if a summons had been issued. The expected adverse parties have an opportunity to be heard on whether the petition should be granted. The court then decides whether to allow the deposition.

The standard the court applies is whether perpetuating the testimony may prevent a failure or delay of justice. Courts take this standard seriously. A Rule 27 petition is not a substitute for normal pre-trial discovery, and it is not a way to conduct early discovery when the petitioner has not yet decided whether to file suit. Courts will deny petitions that appear to be fishing expeditions or attempts to preview the opposing party's case before committing to litigation.

What the Court Must Find to Grant the Petition

Before granting a Rule 27(a) petition, the court must be satisfied that the petitioner cannot currently bring suit or cause it to be brought, and that failure to perpetuate the testimony would result in injustice. This requirement is interpreted to mean that there must be a specific, credible reason why filing the main lawsuit is not currently possible — not just that the petitioner needs more time to decide or to find additional evidence.

Common situations where courts grant Rule 27(a) petitions include: a witness with a terminal illness who holds unique knowledge about the subject matter of the anticipated litigation; a foreign national who is present in the United States temporarily and will return to a country where service and compelled testimony would be impossible; a key corporate decision-maker who is leaving the company and whose testimony about events leading to a dispute may later become unavailable through obstructive litigation tactics.

Courts generally reject petitions that amount to pre-litigation discovery fishing. If the petitioner already has enough information to file suit and simply wants to lock in testimony before the opponent can mount a defense, that is not the purpose Rule 27 serves. The rule is for genuine preservation emergencies, not tactical litigation positioning.

Rule 27(b): Perpetuating Testimony Pending Appeal

Rule 27(b) provides a separate mechanism for preserving testimony after a judgment has been entered and while an appeal is pending. If a party fears that testimony relevant to any further proceedings will be lost during the appellate process, they may apply to the district court for an order allowing depositions to perpetuate that testimony.

The district court retains jurisdiction to supervise Rule 27(b) depositions even after a notice of appeal has been filed, because perpetuating testimony is a matter separate from the merits of the appeal itself. The court uses the same procedure as in Rule 27(a) — notice to all interested parties and an opportunity to be heard before any deposition is authorized.

Rule 27(b) is used less frequently than Rule 27(a) because appellate proceedings generally proceed on the record from the district court proceedings. However, in cases where remand is anticipated and new factual proceedings would follow, or where there is a risk that remand proceedings will occur years later by which time witnesses may be unavailable, Rule 27(b) provides valuable protection.

How the Rule 27 Deposition Proceeds

Once a court grants a Rule 27 petition, the deposition itself is conducted under the same rules as any other deposition in federal court — Rules 28 through 32 apply. The deposition is taken before an authorized officer, the witness is placed under oath, and the opposing parties may cross-examine. The deposition transcript is then preserved as official court record.

Because the opposing parties may not yet be well-organized or fully represented at a pre-suit Rule 27 deposition, courts are attentive to fairness concerns. The expected adverse parties must receive adequate notice and an opportunity to participate. Courts sometimes impose conditions on the scope of the deposition to prevent the petitioner from using it as a general discovery tool.

At trial, the Rule 27 deposition transcript may be used in the same way as any other deposition under Rule 32 — to impeach a witness, as substantive evidence if the deponent is unavailable, or to refresh recollection. Preserving the testimony through Rule 27 ensures that the evidence survives even if the witness is unavailable when the case eventually goes to trial.

Common Rule 27 Mistakes

• ✗Using Rule 27 as early pre-suit discovery: Rule 27 is not a mechanism for investigating whether you have a case. You must already know you have a claim and be unable to file it. Courts dismiss petitions that look like fishing expeditions.
• ✗Filing in the wrong court: Rule 27(a) petitions must be filed where the expected adverse party resides, not where the petitioner prefers. Filing in the wrong district results in dismissal or transfer.
• ✗Not verifying the petition: Rule 27(a)(1) requires the petition to be verified — signed under penalty of perjury. An unverified petition is technically deficient.
• ✗Not serving all expected adverse parties: Notice must be served on all parties who would be adverse in the anticipated action. Missing even one can result in the deposition being excluded from later proceedings because that party had no opportunity to cross-examine.

Frequently Asked Questions About Rule 27