Using a Notary Public - No Court Involvement
Perpetuate Testimony - M.G.L. c. 233 § 46
Perpetuating testimony is a formal legal procedure under Massachusetts law used to preserve a witness's sworn testimony for future legal proceedings. Perpetuating testimony is important because it preserves crucial evidence before it can be lost, ensuring that a witness’s sworn statements remain available for a future legal proceeding even if the witness later becomes unavailable due to age, illness, relocation, or other circumstances. It is not dependent on a court case already being filed—in fact, the whole purpose of M.G.L. c. 233 § 46 is to allow testimony to be taken when no case is yet pending, but there is a reasonable expectation that one will be brought. This process protects the integrity of future litigation by securing reliable, sworn evidence early, preventing disputes from collapsing simply because a key witness cannot testify later.
Perpetuating testimony is a formal legal procedure under Massachusetts law used to preserve a witness's sworn testimony for future legal proceedings. Perpetuating testimony is important because it preserves crucial evidence before it can be lost, ensuring that a witness’s sworn statements remain available for a future legal proceeding even if the witness later becomes unavailable due to age, illness, relocation, or other circumstances. It is not dependent on a court case already being filed—in fact, the whole purpose of M.G.L. c. 233 § 46 is to allow testimony to be taken when no case is yet pending, but there is a reasonable expectation that one will be brought. This process protects the integrity of future litigation by securing reliable, sworn evidence early, preventing disputes from collapsing simply because a key witness cannot testify later.
Summary of Steps to Perpetuate Testimony in Accordance with M.G.L. c. 233 § 46
1.) Prepare a written application
The person seeking to preserve testimony must submit a written application requesting that a deposition be taken to perpetuate testimony.
2.) Apply to the correct officials
The application must be made to two officials, specifically:
3.) State the required information in the application
The application must briefly and substantially include:
4.) Request the taking of the deposition
The applicant must explicitly request that the officials take the deposition of the applicant or the witness whose testimony is to be preserved.
The person seeking to preserve testimony must submit a written application requesting that a deposition be taken to perpetuate testimony.
2.) Apply to the correct officials
The application must be made to two officials, specifically:
- Two justices of the peace or notaries public, or
- One justice of the peace and one notary public,
- And at least one of them must be an attorney at law.
3.) State the required information in the application
The application must briefly and substantially include:
- The applicant's title, claim, or interest in the subject matter
- The names of all other persons who are interested or believed to be interested
- The name of the witness whose testimony is to be perpetuated
4.) Request the taking of the deposition
The applicant must explicitly request that the officials take the deposition of the applicant or the witness whose testimony is to be preserved.
Using the Court - Formal Process
Summary of Rule 27 of the Massachusetts Rules of Civil Procedure: Depositions to Preserve Testimony
Sometimes a person needs to record someone’s testimony before a court case even starts—usually because the witness may become unavailable later. Rule 27 explains how this works in Massachusetts.
(1) Before a Case Is Filed
If someone expects to file a lawsuit in the future but cannot file it yet, they can ask the court for permission to take a deposition early. To do this, they must file a petition that explains:
After filing, the petitioner must notify the expected opposing parties and give them a chance to attend the hearing.
If someone cannot be located despite reasonable efforts, the court can allow alternative notice and will appoint an attorney to protect that person’s interests during the deposition.
If the court agrees that preserving the testimony is necessary to prevent a failure of justice, it will issue an order allowing the deposition to be taken.
(2) While a Case Is on Appeal
If a case has already gone to judgment and an appeal is pending (or the appeal period hasn’t expired), a party can ask the trial court to preserve testimony for possible future proceedings.
They must show:
If the court agrees, it will authorize the deposition.
(3) Using the Preserved Testimony
A deposition taken under Rule 27 can be used later in any case involving the same subject matter, as long as it meets the normal rules for using depositions in court.
(4) Separate Actions to Preserve Testimony
Rule 27 also makes clear that a person can file a stand‑alone lawsuit whose only purpose is to preserve testimony.
Sometimes a person needs to record someone’s testimony before a court case even starts—usually because the witness may become unavailable later. Rule 27 explains how this works in Massachusetts.
(1) Before a Case Is Filed
If someone expects to file a lawsuit in the future but cannot file it yet, they can ask the court for permission to take a deposition early. To do this, they must file a petition that explains:
- They expect to be involved in a future lawsuit but can’t file it right now
- What the future case will be about
- Why the testimony needs to be preserved now (for example, a witness is elderly, ill, or moving away)
- Who the opposing parties will likely be
- Who needs to be deposed and what information they are expected to provide
After filing, the petitioner must notify the expected opposing parties and give them a chance to attend the hearing.
If someone cannot be located despite reasonable efforts, the court can allow alternative notice and will appoint an attorney to protect that person’s interests during the deposition.
If the court agrees that preserving the testimony is necessary to prevent a failure of justice, it will issue an order allowing the deposition to be taken.
(2) While a Case Is on Appeal
If a case has already gone to judgment and an appeal is pending (or the appeal period hasn’t expired), a party can ask the trial court to preserve testimony for possible future proceedings.
They must show:
- Who they want to depose
- What the witness is expected to say
- Why the testimony needs to be preserved now
If the court agrees, it will authorize the deposition.
(3) Using the Preserved Testimony
A deposition taken under Rule 27 can be used later in any case involving the same subject matter, as long as it meets the normal rules for using depositions in court.
(4) Separate Actions to Preserve Testimony
Rule 27 also makes clear that a person can file a stand‑alone lawsuit whose only purpose is to preserve testimony.
