Va. Sup. Ct. R. 4:2

(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 Commonwealth

may file a verified petition in the circuit court in the county or city of the residence of any

expected adverse party. The petition must be entitled in the name of the petitioner and

must show: (A) that the petitioner expects to be a party to an action cognizable in a court

of this Commonwealth but is presently unable to bring it or cause it to be brought; (B) the

subject matter of the expected action and his interest therein; (C) the facts which he

desires to establish by the proposed testimony and his reasons for desiring to perpetuate

it; (D) the names or a description of the persons he expects will be adverse parties and

their addresses so far as known; and (E) the names and addresses of the persons to be

examined and the substance of the testimony which he expects to elicit from each, and

must 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 must 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 21 days before the date of hearing

the notice must be served either within the Commonwealth in the manner provided for

service of a complaint or without the Commonwealth in the manner provided by Code §

8.01-320; 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 may appoint, for persons not so served, an attorney who

will represent them, and, in case they are not otherwise represented, may cross- examine

the deponent. If any expected adverse party is a person under a disability, a guardian ad

litem must be appointed to attend on his behalf.

(3) Order and Examination. If the court is satisfied that the perpetuation of the

testimony may prevent a failure or delay of justice, it will 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 will be taken upon oral examination or

written interrogatories. The depositions may then be taken in accordance with these

Rules. The attendance of witnesses may be compelled by subpoena, and the court may

make orders of the character provided for by Rules 4:9 and 4:10. For the purpose of

applying these Rules to depositions for perpetuating testimony, each reference therein to

the court in which the action is pending will be deemed to refer to the court in which the

petition for such deposition was filed.

(4) Cost. The cost of such depositions must be paid by the petitioner, except that the

other parties in interest who produce witnesses on their behalf or who make use of

witnesses produced by others must pay their proportionate part of the cost of the

transcribed testimony and evidence taken or given on behalf of each of such parties.

(5) Filing. The depositions must be certified as prescribed in Rule 4:5 and then

returned to and filed by the clerk of the court which ordered its taking.

(6) 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, it may be used in any action involving the same subject matter

subsequently brought in a court of this Commonwealth in accordance with the provisions

of Rule 4:1.

(b) Pending Appeal. — If an appeal has been taken from a judgment of a court of

record 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 that court. In such

case the party who desires to perpetuate the testimony may make a motion in the court in

which the judgment was rendered for leave to take the depositions, upon the same notice

and service thereof as if the action was pending therein. The motion must show (1) the

names and addresses of persons to be examined and the substance of the testimony which

he expects to elicit from each; and (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 orders of the character provided for by Rules 4:9 and 4:10, 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 pending actions.

(c) Perpetuation of Testimony. — This Rule provides the exclusive procedure to

perpetuate testimony.