*O1 Deposition Pending Action (Rule 23) Codal

Question 1

Definition

Answer 1

*Ex parte motion– testimony of a person, whether a pty or not
– deposition upon oral examination or written interrogatories

L: Upon ex parte motion of a party, the testimony of any person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

Question 2

Section 1. Depositions pending action, when may be taken.

Answer 2

*Ex parte motion
-Deposition upon oral exam or written interrogatories
*Attendance may be compelled by the use of a SUBPOENA
*Depo of person in prison

Upon ex parte motion of a party, the testimony of any person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories.

The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules.

The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

Question 3

Section 2. Scope of examination

Answer 3

*Matters to examine:
a. matters not privileged (relevant to subject/ relating to claim or defense)
b. inc. ednc-cl of any books & docus

Unless otherwise ordered by the court as provided by [S]ection 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any book s, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.

Question 4

Section 3. Examination and cross-examination

Answer 4

Examination and cross-examination of deponents may proceed as permitted at the trial under [S]ections 3 to 18 of Rule 132. (3)

Question 5

Section 4. Use of depositions.

Answer 5

*At the trial or upon hearing of a motion/ interlocutory proceeding
-any part or all of deposition
- admissible undr the ROE
- may be used against any pty who was present at the taking of the depo or who had due notice
a. contradicting/ impeaching the testi of deponent as witness
b. at the time of taking was an officer, director, man agent (public or pvt corp), pat, assoc- may be used by any adverse pty for any purpose
c. the depo whether a pty or not, may be used if the pty finds
1. dead
2. witness resides more than 100km
3. witness unable to testify– asii
4. pty offering the depo- unable to procure the attendance of witness
5. upon application & notice- in the ineterst of justice & with due regard presenting the testi of witness in open ct
d. If only part of a deposition is offered in evidence by a party- introduce all of it which is relevant to the part introduced

L: At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with anyone of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;

(b) The deposition of a party or of anyone 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;

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(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, sick ness, infirmity, or imprisonment; or

(4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(5) 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; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him or her to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a)

Question 6

Section 5. Effect of substitution of parties

Answer 6

“Substitution of parties does not affect the right to use depositions previously taken”

L:Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

Question 7

Section 6. Objections to admissibility.

Answer 7

*where made: trial or hearing
* for any reason wc wud require the exclusion of the evidence if the witness were then present & testifying

Subject to the provisions of [S]ection 29 of this Rule, objection~ may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

Question 8

Section 7. Effect of taking depositions

Answer 8

*not automatic your witness if u take his depo

A party shall not be deemed to make a person his or her own witness for any purpose by taking his or her deposition.

Question 9

Section 8. Effect of using depositions

Answer 9

*introduction in evid of the deposition for anyy purpose other than contradicting or impeaching the deponent
*effect: deponent the witness lf the pty introducing the deposition

The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of [S]ection 4 of this Rule.

Question 10

Section 9. Rebutting deposition

Answer 10

*rebut relevant evidence contained in a depo

At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or her or by any other party.

Question 11

Section 10. Persons before whom depositions may be taken within the Philippines.

Answer 11

*in PH:
a. b4 any judge
b. notary
c. any person authorized to administer oaths,

Within the Philippines, depositions may be taken before any judge, notary public, or the person referred to in [S]ection 14 hereof.

Question 12

Section 11. Persons before whom depositions may be taken in foreign countries.

Answer 12

*Foreign country:

a. sec of embassy or legation. con gen, con, v-con, con agent of RP;
b. apptd by comm under letters rogatory
c. person authorized to administer oaths,

L: In a foreign state or country, depositions may be taken

(a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines;

(b) before such person or officer as may be appointed by commission or under letters rogatory; or

(c) the person referred to in [S]ection 14 hereof.

Question 13

Section 12. Commission or letters rogatory.

Answer 13

*Comm/ Lett Rog- only when necessary & convenient.
*Officers designated by name or descriptive title
*Letters Rogatory: approp judicial authority in foreign ct

A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country.

Question 14

Section 13. Disqualification by interest.

Answer 14

*No depo- if relative within 6th degree of consanguinity or affinity
- employee/ counsel of ptys
- relative wtin same degree/ emp of such counsel
- financially interested in the action

*No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity,

or employee or counsel of any of the parties;

or who is a relative within the same degree, or employee of such counsel;

or who is financially interested in the action.

Question 15

Section 14. Stipulations regarding taking of depositions.

Answer 15

*Before any person authorizd to admin oaths- if ptys stipul8 in writing

L: If the parties so stipulate in writing,

depositions may be taken before any person authorized to administer oaths,

at any time or place, in accordance with these Rules,

and when so taken may be used like other depositions.

Question 16

Section 15. Deposition upon oral examination; notice; time and place.

Answer 16

• desiring to take depo- give rsnable notice in writing
• state the time & place/ name & address of person 2b examined/ general description suff 2 identify him
  *enlarge or shorten the time

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 the time and place for taking the deposition and 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 her or the particular class or group to which he or she belongs.

On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.

Question 17

Section 16. Orders for the protection of parties and deponents

Answer 17

*When: after notice is served
How: motion seasonably made by any pty or person examined
Condition: for good cause shown

Ct make ff orders:
a. depo not taken
b. depo taken at designatd place other than that stated in notice
c. depo taken only on written interr
d. certain matters shall not b inqrd into
e. scope of exam: held wt no 1 present xcpt ptys & officers or counsel
f. depo opened only upon order of the ct
g. secret processes
h. simult file specified docus

L:
After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make the following orders:

(a) That the deposition shall not be taken;

(b) That the deposition may be taken only at some designated place other than that stated in the notice;

(c) That the deposition may be taken only on written interrogatories;

(d) That certain matters shall not be inquired into;

(e) That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel;

(f) That after being sealed the deposition shall be opened only by order of the court;

(g) That secret processes, developments, or research need not be disclosed; or

(h) That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

Question 18

Section 17. Record of examination; oath; objections.

Answer 18

*a. officer shall record
b. testimony taken stenog
-qualifications of officer
-manner of taking it
-evid presented
- conduct of pty
-any other objection to proceeding

(3) Evidence objected to shall be taken subject to the objections.
-parties served with notice of taking a deposition may transmit written interrogatories

L:The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his or her direction and in his or her presence, record the testimony of the witness.

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.

Question 19

Section 18. Motion to terminate or limit examination.

Answer 19

*Any time during taking of depo (motion or petition of pty or deponent)
-show: exam is conducted in BF
-Manner: rsnably annoy, embarass or oppress
-ct wr action is pending / RTC may order to cease from taking depo
-limit the scope & manner of the taking

• Upon demand of the objecting pty or deponent, taking of depo suspended for time necessary to make notice for an order.

(1)

(1)
At any time during the taking of the deposition, on motion or petition of any party or of the deponent and 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, 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 may limit the scope and manner of the taking of the deposition, as provided in [S]ection 16 of this Rule.

(2) 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.

(3) 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.

(4) 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 20

Section 19. Submission to witness; changes; signing.

Answer 20

*Once full transcribed- submitted for exam & read to him or her.
*Any changes- entered upon the deposition by the officer
*signed by witness-unless WICR
*not signed
-sign it and state on the record the fact of the waiveR, illness or absence

the witness

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, unless on a motion to suppress under [S]ection 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 21

Section 20. Certification and filing by officer.

Answer 21

*Sworn to by him or her & that the depo is a true record of testi
**securely seal the deposition

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.

He or she shall then securely seal the deposition in an envelope indorsed with the title of the action and mark ed 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.

Question 22

Section 21. Notice of filing.

Answer 22

*prompt notice of its filing to all the parties.

The officer taking the deposition shall give prompt notice of its filing to all the parties.

Question 23

Section 23. Failure to attend of party giving notice.

Answer 23

*fails to attend and proceed therewith
*another attends in person or by counsel
*order the party giving the notice to pay such other party the amount of the reasonable expenses
*reasonable attorney’s fees.

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.

Question 24

Section 24. Failure of party giving notice to serve subpoena.

Answer 24

*party giving the notice-fails to serve a subpoena
* witness because of such failure does not attend
*if another party attends in person or by counsel because he or she expects the deposition of that witness to be taken,
*court may order the party giving the notice to pay to such other party the amount of the reasonable expenses

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.

Question 25

Section 25. Deposition upon written interrogatories; service of notice and of interrogatories.

Answer 25

*notice stating the name and address of the person who is to answer them etc
*name etc 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
*Within five (5) calendar days thereafter, serve re-direct interrogatories
*Within three (3) calendar days after re-direct interrogatories-recross-interrogatories

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 re-direct interrogatories upon a party who has served cross-interrogatories.

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

Question 26

Section 26. Officers to take responses and prepare record.

Answer 26

*copy of the notice and copies of all interrogatories served - delivered by the party taking the deposition to the officer designated in the notice
* to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition

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.

Question 27

Section 27. Notice of filing and furnishing copies.

Answer 27

*deposition upon interrogatories is filed,-give notice thereof to all the parties
*furnish copies to them
*deponent upon payment of reasonable charges therefor.

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.

Question 28

Section 28. Orders for the protection of parties and deponents.

Answer 28

• After the service of the interrogatories
  *prior to the taking of the testimony of the deponent
  -the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown
  -Order-not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination.

After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in [S]ections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination.

Question 29

Section 29. Effect of errors and irregularities in depositions. ­

(a) As to notice.

Answer 29

*All errors and irregularities in the notice for taking a deposition are waived unless written objection

(a) As to notice. - All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

Question 30

Section 29. Effect of errors and irregularities in depositions.

­(b) As to disqualification of officer.

Answer 30

*disqualification- unless made before the taking of the deposition begins
*as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

L: (b) As to disqualification of officer. -

Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived 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.

Question 31

Section 29. Effect of errors and irregularities in depositions. ­

(c) As to competency or relevancy of evidence.

Answer 31

*Objections to the competency of a witness
*competency, relevancy, or materiality of testimony
* not waived by failure to make them before or during the taking of the deposition
*unless the ground of the objection is one which might have been obviated or removed if presented at that time.

Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

Question 32

Section 29. Effect of errors and irregularities in depositions. ­

(d) As to oral examination and other particulars.

Answer 32

*Errors and irregularities occurring at the oral examination- which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition.

(d) As to oral examination and other particulars. - Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition.

Question 33

Section 29. Effect of errors and irregularities in depositions. ­

(e) As to form of written interrogatories.

Answer 33

*Objections to the form of written interrogatories–waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories
-within three (3) calendar days after service of the last interrogatories authorized.

(e) As to form of written interrogatories. - Objections to the form of written interrogatories submitted under [S]ections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) calendar days after service of the last interrogatories authorized.

Question 34

Section 29. Effect of errors and irregularities in depositions. ­

(f) As to manner of preparation.

Answer 34

*Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared– waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness
-after defect is ascertained.

(f) As to manner of preparation. - Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under [S]ections 17, 19, 20 and 26 of this Rules are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.