N. MODES OF DISCOVERY

Question 1

Deposition

Answer 1

Deposition: taking of testimony out of court of any person, whether party to the action or not but at the instance of a party to the action. It is taken out of court. [1 Riano 438, 2016 Bantam Ed.]

Question 2

Depositions pending action; depositions before action or pending appeal (Rule 23)

Answer 2

Pending action (Rule 23)
The testimony of any person may be taken upon ex parte motion of a party. 

Note: The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 21. [Sec. 1, Rule 23]

Before action/pending appeal (Rule 24)
Referred to as perpetuation of testimony because their objective is to perpetuate the testimony of a witness for future use, in the event of further proceedings.

Requisites

1. Any person who desires to perpetuate
2. his own testimony; or
3. the testimony of another person
4. Regarding any matter that may be cognizable in any court of the Philippines.

Question 3

When depositions may be taken (R23, S1)

Answer 3

[DEPOSITIONS PENDING ACTION[
Upon ex parte motion of a party

[DEPOSITIONS BEFORE ACTION/PENDING APPEAL]

1. Before Action: By filing a verified petition
2. Pending Appeal: By motion for leave of court

Question 4

What may be asked or the scope of examination in the taking of the deposition (Rule 23, Sec. 2)

Answer 4

1. Any matter NOT privileged

2. Must be relevant to the subject of the pending action

Question 5

Before whom the deposition can be taken (Rule 23, Sections 10, 11, 12, 13 and 14)

Answer 5

Within the Philippines, it may be taken before a [Sec. 10, Rule 23]

1. Judge,
2. Notary public, or
3. Any person authorized to administer oaths, as stipulated by the parties in writing. [Sec. 14, Rule 23]

Within a foreign state or country, it may be taken [Sec. 11, Rule 23]

1. On notice before a secretary of embassy or legation, consul general, consul, vice- consul, or consular agent of the Philippines,
2. Before such person or officer as may be appointed by commission or under letters rogatory, or
3. Any person authorized to administer oaths as stipulated by parties in writing. [Sec. 14, Rule 23]

[Disqualification by interest]
No deposition shall be taken before a person who is
1. A relative within the 6th degree of consanguinity or affinity,
2. An employee or counsel of any of the parties,
3. A relative within the same degree, or employee of such counsel, or
4. Any person financially interested in the action. [Sec. 13, Rule 23]

Question 6

Use of depositions

Answer 6

[General uses of deposition]
Intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit or proceeding. [1 Regalado 349, 2010 Ed.]

General rule: A deposition is not a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay. [Dasmarinas Garments Inc. v. Reyes, G.R. No. 108229 (1993)]

Exception: Depositions may be used as evidence under the circumstances in Sec. 4, Rule 23.

Question 7

In case deposition is used by any party (Rule 23, Sections 3, 6 and 9)

Answer 7

1. There may be examination and cross-examination of deponents (Sec. 3)
2. Objections may be made for any reason which would require the exclusion of evidence if the witnesses were present and testifying (Sec. 6)
3. Any party may rebut any relevant evidence included in a disposition (Sec. 9)

Question 8

Effect on the taking and use of deposition (Rule 23, Sections 5, 7 and 8)

Answer 8

[Effect of TAKING a deposition]
A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. [Sec. 7, Rule 23]

cc
[Effect of USING a disposition]
General rule: The introduction in evidence of the deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition

Exceptions:
1. The deposition is used to contradict or impeach the deponent.
2. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose. [Sec. 4(b), Rule 23]
[Sec. 8, Rule 23]

Effect of only using a PART of the deposition:
If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. [Sec. 4(d), Rule 23]

Specific uses of depositions:

1. Any deposition - may be used by ANY PARTY for contradicting or impeaching the testimony of the deponent as wtness
2. Deposition of a party or anyone who was at the time of the deposition was an officer, director, or managing agent of a public or private coporation, partnership, or association which is a party - may be used by the ADVERSE PARTY for any purpose
3. Depisition of a witness whther or not a party to the case - may be used by ANY PARTY for any purpose if the court finds those enumerated in S4(c) R23

Purposes under S4(c) R23:
1. that the witness is dead; or
2. that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his or her absence was procured by the party offering the deposition; or
3. that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
4. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;

Question 9

Oral deposition – How is it done? (Rule 23, Sec. 15)

Answer 9

A party desiring to take the deposition of any person upon oral examination shall give REASONABLE NOTICE in writing to every other party to the action.

The notice shall state:
1. The time and place for taking the deposition,
2. The name and address of each person to be examined, if known, and
if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.

Note: On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time [Sec. 15, Rule 23]

Question 10

Things done during the taking of the deposition (Rule 23, Sections 17 and 19)

Answer 10

Section 17. Record of examination; oath; objections. —

(1) The officer before whom the deposition is to be taken shall put the witness on OATH and
(2) shall personally, or by some one acting under his or her direction and in his or her presence, RECORD the testimony of the witness.
(3) The testimony shall be taken STENOGRAPHICALLy unless the parties agree otherwise.

ALL OBJECTIONS made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be NOTED by the officer upon the deposition.

Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim.

Section 19. Submission to witness; changes; signing. — When the testimony is fully transcribed, the deposition shall be SUBMITTED to the witness for examination and shall be read to or by him or her, unless such examination and reading are waived by the witness and by the parties.

Any CHANGES in form or substance which the witness desires to make shall be ENTERED upon the deposition by the officer with a statement of the REASONS given by the witness for making them.

The deposition shall then be SIGNED by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.

If the deposition is not signed by the witness, the officer shall sign it and STATE on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed,

ETE: Unless on a motion to suppress under Section 29(f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

Question 11

What officer has to do after the deposition has been taken (Rule 23, Sections 20, 21 and 22)

Answer 11

1,. The officer shall CERTIFY on the deposition that the witness was duly sworn to by him or her and that the deposition is a true record of the testimony given by the witness.

2. He or she shall then securely SEAL the deposition in an envelope indorsed with the title of the action and marked Deposition of (here insert the name of witness) and shall promptly FILE it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. (S20R23)
3. The officer taking the deposition shall give prompt NOTICE of its filing to all the parties. (S21R23)
4. Upon payment of reasonable charges therefor, the officer shall furnish a COPY of the deposition to any party or to the deponent. (S22R23)

Question 12

Written deposition – How is it done? (Rule 23, Sec. 25)

Answer 12

A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a NOTICE stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken.

Within ten (10) calendar days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition.

Within five (5) calendar days thereafter, the latter may serve redirect interrogatories upon a party who has served cross-interrogatories.

Within three (3) calendar days after being served with redirect interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (S25R23)

A COPY of the notice and copies of all interrogatories served shall be DELIVERED by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by [S]ections 17, 19 and 20 of this Rule,

To take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him or her. (S26R23)

What officer has to do after the deposition has been taken (Rule 23, Sec. 27)
When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (S27R23)

Question 13

Instances when court intervenes in oral deposition proceeding

Answer 13

[Orders of the court for the protection of parties and deponents]
After notice is served for taking a deposition by oral examination,
a. upon motion by any party or
b. by the person to be examined, and for good cause shown, the court may order that:

1. That the deposition shall not be taken;
2. That the deposition may be taken only at some designated place other than that stated in the notice;
3. That the deposition may be taken only on written interrogatories;
4. That certain matters shall not be inquired into;
5. That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel;
6. That after being sealed the deposition shall be opened only by order of the court;
7. That secret processes, developments, or research need not be disclosed; or
8. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
9. The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

During the taking of the deposition (Rule 23, Sec. 18)
1. The court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or
2. may limit the scope and manner of the taking of the deposition, as provided in [S]ection 16 of this Rule
at any time during the taking of the deposition, on motion or petition of any party or of the deponent upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party

If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending.
Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order.
In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable.

Question 14

Instances when court intervenes in written deposition taking

Answer 14

Rule 23, Sec. 28 – same as Sections 15, 16 and 18

When: After the service of the interrogatories and prior to the taking of the testimony of the deponent
Who: On motion promptly made by a party or a deponent
Where: The Court in which the action is pending
What: The Court may for good cause shown:
1. Make any order specified in Secs. 15, 16 and 18 of Rule 23.
a. Order that the deposition shall not be taken before the officer designated in the notice
b. Order that the deposition shall not be taken except upon oral examination

1. To order that the deposition shall not be taken before the officer designated in the notice
2. To order that it shall not be taken except upon oral deposition

Question 15

Sanctions

Answer 15

Section 23. Failure to attend of party giving notice. - If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him or her and his or her counsel in so attending, including reasonable attorney’s fees. (23a)

Section 24. Failure of party giving notice to serve subpoena. - If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him or her and the witness because of such failure does not attend, and if another party attends in person or by counsel because he or she expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him or her and his or her counsel in so attending, including reasonable attorney’s fees. (24a)

Question 16

Effects of errors and irregularities in depositions (Rule 23, Sec. 29)

Answer 16

General Rule: Errors and irregularities are waived
Exceptions:
1. No waiver in cases of the competency or relevancy of evidence

ETE: Unless the ground of the objection is one which might have been obviated or removed if presented at the time

2. If some objection or procedure is fulfilled to not constitute a waiver

[As to notice]
General Rule: Waived
Exception: unless written objection is promptly served upon the party giving the notice

[As to disqualification of officer]
General Rule: Waived
Exception: unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence

[As to competency or relevancy of evidence]
General Rule: NOT waived by failure to make them before or during the taking of the deposition.
Exception: Unless the ground of the objection is one which might have been obviated or removed if presented at the time

[As to oral examination and other particulars]
General Rule: Waived
Exception: Unless reasonable objection thereto is made at the taking of the deposition

[As to form of written interrogatories]
General Rule: Waived
Exception: Unless served in writing upon the party, propounding them, within the time allowed for serving, succeeding cross or, other interrogatories, and within 3 days after service of last interrogatories authorized

[As to manner of preparation]
General Rule: Waived
Exception: Unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is ascertained, or with due diligence might have been, ascertained

Question 17

Depositions before action or pending appeal (Rule 24)

Answer 17

Who may file: Any person who wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines may file a verified petition (S1R24)

Where to file: Court of the place/residence of any expected adverse party

Notice and service:

1. Petitioner shall serve a notice upon each person named in the petition as an expected adverse party.
2. Notice must state that the petitioner will apply to the court for the order described in the petition.

Question 18

Written interrogatories to adverse parties (Rule 25)

Answer 18

[Purpose and NATURE]
Written interrogatories elicit material and relevant facts from any adverse party.

cc: Written interrogatories IN A DEPOSITION
Written interrogatories to parties differ from the written interrogatories in a deposition since such are not served upon the adverse party directly but rather on the officer designated in the notice. [1 Riano 447, 2016 Bantam Ed.]

[Service thereof (S1R25)]
UPON EX PARTE MOTION, party desiring to elicit material and relevant facts shall file and serve upon the adverse parties the written interrogatories to be answered by the party served.

If adverse party is a public or private corporation, partnership, or association, by any officer thereof competent to testify in its behalf.

[Objections (S3R25)]

• May be made within 10 calendar days after service thereof, with notice as in the case of motions.
• Answers shall be deferred until the objections are resolved, which shall be at the earliest possible time.

Number of interrogatories (S4R25)
No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.

Scope and use of interrogatories

• May relate to any matters that can be inquired into under Sec. 25 of Rule 23
• Answers may be used for the same purposes provided in Sec. 4 of Rule 23

Question 19

Consequences of refusal to answer and Effect of failure to serve written interrogatories

Answer 19

[i. Consequences of Refusal to Answer]

If a party or an officer or managing agent of a party fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court ON MOTION AND NOTICE, may:

1. STRIKE OUT all or any part of any pleading of the party,
2. DISMISS the action or proceeding or any part thereof, or
3. Enter a JUDGMENT BY DEFAULT against the party, and
4. In its discretion, order him to PAY REASONABLE EXPENSES incurred by the other, including attorney’s fees.

Note: Such consequences also apply for willful failure to appear before the officer who is to take his deposition.

[ii. Effect of Failure to Serve Written Interrogatories]
General Rule: A party not served with written interrogatories MAY NOT BE COMPELLED by adverse party to:
1. GIVE TESTIMONY in open court; or
2. GIVE A DEPOSITION pending appeal.

Exception: Allowed by the court FOR GOOD CAUSE shown and to prevent a failure of justice.
[Sec. 6, Rule 25]

Question 20

Implied admission by adverse party

Answer 20

There is an implied admission of each of the matters of which an admission is requested
if the party to whom the request is made DOES NOT FILE AND SERVE a sworn statement either:
1. DENYING SPECIFICALLY the matters of which an admission is requested
2. Setting forth the REASONS WHY he cannot either admit or deny those matters

Period: Within 15 days after service thereof or with such further time as the court may allow on motion.

Objections: Objections to any request for admission shall be submitted within 15 days within the period for and prior to the filing of his sworn statement. Compliance therewith shall be deferred until such objections are resolved.

Question 21

Consequences of failure to answer request for admission

Answer 21

The proponent may apply to the proper court for an ORDER TO COMPEL an answer. [Sec. 1, Rule 29]

If application is granted, the court

1. Shall require the refusing party to answer; and
2. May require the refusing party or counsel to pay reasonable expenses for obtaining the order, if the court finds that the refusal to answer was without substantial justification.

Question 22

Effect of admission

Answer 22

Any admission made by a party pursuant to such request is FOR THE PURPOSE OF THE PENDING ACTION ONLY and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding [Sec. 3, Rule 26]

Question 23

Effect of failure to file and serve request for admission

Answer 23

General Rule: A party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, SHALL NOT BE PERMITTED TO PRESENT EVIDENCE ON SUCH FACTS.

Exception: Allowed by the court FOR GOOD CAUSE shown and to prevent a failure of justice.
[Sec. 5, Rule 29]

Question 24

Production or inspection of documents or things (Rule 27)

Answer 24

Purpose:
This mode of discovery is not only for the benefit of a party, but also for the court and for it to discover all the relevant and material facts in connection with the case. [1 Riano 451, 2016 Edition]

Procedure for production/inspection of documents or things:

a. Upon MOTION of any party,
b. Showing GOOD CAUSE therefor,
c. The court in which an action is pending MAY ORDER any party to:
i. Produce and permit the INSPECTION or COPYING or PHOTOGRAPHING, by or on behalf of the moving party, of ANY DESIGNATED DOCUMENTS, papers, books, accounts, letters, photographs, objects or tangible things NOT PRIVILEGED, which constitute or contain evidence material to any matter involved in the action and which are in his possession custody or control; or
ii. Permit ENTRY upon DESIGNATED LAND or other property IN HIS POSSESSION AND CONTROL for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon

Note: The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just.
[Sec. 1, Rule 27]

Question 25

Physical and mental examination of persons (Rule 28)

Answer 25

When examination may be ordered:
Such may be ordered in an action in which the mental or physical condition of a party is IN CONTROVERSY. [Sec. 1, Rule 28]

Procedure:
A MOTION FOR THE EXAMINATION is filed in the court where the action is pending:
a. Showing good cause for the examination,
b. With notice to the party to be examined, and to all other parties, and
c. Specifying the time, place, manner, conditions, scope, and person conducting the examination.
[Sec. 2, Rule 28]

Report of findings:
A copy of the detailed examination report shall be given by the party causing the examination upon request by the party examined.

Note: The party causing the examination shall then be entitled, upon request, to receive from the party examined, a report of any examination previously or subsequently made.
[Sec. 3, Rule 28]

Refusal to deliver the report:
If the party examined refuses to deliver such report, the court ON MOTION AND NOTICE may make an ORDER requiring delivery on such terms as are just.

If a physician fails or refuses to make such a report the court may EXCLUDE HIS TESTIMONY if offered at the trial.
[Sec. 3, Rule 28]

Waiver of privilege:
The party examined WAIVES any privilege regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental/physical examination by:
a. REQUESTING AND OBTAINING a report of the examination ordered, or
b. TAKING THE DEPOSITION of the examiner.
[Sec. 4, Rule 28]

Note: Since the results of the examination are intended to be made public, the same are NOT covered by physician-patient privilege under Sec. 24(b), Rule 130 [1 Regalado 376, 2010 Ed.]

Question 26

Consequences of refusal to comply with modes of discovery (Rule 29)

Answer 26

1. Refusal to answer any question -> the proponent may apply for an ORDER TO COMPEL AN ANSWER.

The penalized party will be made to pay the amount of reasonable expenses, when the court finds that were was no substantial justification for the filing or refusal.

Refusal may be considered a contempt of the court.

2. Refusal to be sworn - CONTEMPT
3. Refusal to answer designated questions/refusal to produce documents/to submit to physical or mental examination -> the court may make such ORDERS as are just which may be:

a. Facts taken to be established
b. Refusal to allow the disobedient party to support/oppose claims by prohibiting introduction of evidence
c. Striking out pleadings or parts or staying further proceedings, or dismissing the action in whole or in part, or rendering a judgment by default
d. Arrest EXCEPT for disobedience of the order of physical/mental examination

4. Refusal to admit under Rule 26 -> order UPON PROPER APPLICATION to pay reasonable expensens UNLESS:
   a. There were good reasons for denial
   b. Admissions sought were of no importance
5. Failure of party to attend or serve answers to written interrogatories -> may on MOTION and NOTICE

a. Strike out the pleading
b. Dismiss the action
c. Enter a judgment by default and
d. (discretionary) Order payment of reasonable expenses

Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under Rule 29. [Sec. 6, Rule 29]