Domestic and Extraterritorial Depositions

By. Krisha Faye F. Ambol

I. Persons before whom depositions may be taken within the

Philippines.

Section 10. Persons before whom depositions may be taken within

the Philippines. — Within the Philippines depositions may be taken
before any judge, notary public, or the person referred to in section
14 hereof. (10a, R24);

REPORTER’S NOTES:

I.1 Overview.

It is important that the deposition of a witness or deponent be taken

before those who are authorized to do so, otherwise such deposition may be
objected to1 on the ground of such lack of authority2. This will make the
whole laborious process of applying and taking depositions a waste of
precious time.

Section 10 of Rule 23, enumerates the authorized person’s who may take
depositions here in the Philippines, who are the following:

1. Any judge;
2. Notary public; and
3. The person referred to in section 14.

The reason for this rule is that such authority is essential in the process
of obtaining any information which may incriminate or prejudice private or
public persons. Persons authorized to take such oaths have the sworn duty
to ascertain whether such statement elicited during the course of the
deposition are done according to law and that the person giving such
information are competent individuals and no vitiation of consent or any
duress is attendant during the course of the interrogation.

1
Section 6. Objections to admissibility. — Subject to the provisions of section 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 (6, R24);

2
Rule 23, Section 29 Effect of errors and irregularities in depositions. —, (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.

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 Furthermore, willful and deliberate false testimony or any
misrepresentations before such authorized person likewise may make the
liar liable to perjury3.

I.1.a. Depositions before a Judge.

A judge is any person who is clothed with judicial power who may hear
and decide a case. The judge referred to in this section may be the judge of
the court where the case is pending. The judge, after an order granting a
request or motion to take a deposition may issue a subpoena to compel a
witness to come to court where such witness may be orally examined4 (the
counsel for the party who is requesting deposition usually asks the questions
to the deponent before the judge).

Subject to the rule5 that only witnesses residing within 100 kilometers
of the court may be under the compelling power of the subpoena, a party
requesting a deposition of a person who is beyond 100 kilometer may have
such request routed to the court which is within 100 kilometers from of the
residence of the deponent. In which case, the judge to whom the request
was routed may issue a subpoena for the sole purpose of compelling the
attendance of such person for the deposition6.

I.1.b. Depositions before a Notary Public.

“Notary Public” and “Notary” refer to any person commissioned to

perform official acts under the Rules on Notarial Practice.7 Particularly, a
notary public has the authority to administer acts or affirmation to wit8:

3
RT. 183. False testimony in other cases and perjury in solemn affirmation. — The penalty of arresto mayor
in its maximum period to prision correccional in its minimum period shall be imposed upon any person who,
knowingly making untruthful statements and not being included in the provisions of the next preceding
articles, shall testify under oath, or to make an affidavit, upon any material matter before a competent
person authorized to administer an oath in cases in which the law so requires.
4
Section 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has
been obtained over any defendant or over property which is the subject of the action, or without such leave
after an answer has been served, the testimony of any person, whether a party or not, may be taken, at
the instance of any party, 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.

5
Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a witness
who resides more than one hundred (100) kilometers from his residence to the place where he is to
testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which
his case is pending was obtained. (9a, R23)

6
Section 2. By whom issued. — The subpoena may be issued by —
(b) the court of the place where the deposition is to be taken;

7
SEC. 9. Notary Public and Notary. - A.M. No. 02-8-13-SC , 2004 Rules on Notarial Practice
8
A.M. No. 02-8-13-SC , 2004 Rules on Notarial Practice
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 SEC. 2. Affirmation or Oath. - The term “Affirmation” or “Oath”
refers to an act in which an individual on a single occasion: chan robles
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(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the

notary public through competent evidence of identity as defined by
these Rules; and

(c) avows under penalty of law to the whole truth of the contents
of the instrument or document.

I.1c. Depositions before the person referred to in section 14.

Section 14. Stipulations regarding taking of depositions. — 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. (14a, R24)

Section 21 of the Revised Administrative Code provides:

Section 21. Officials authorized to administer oath.—The following

officers have general authority to administer oaths, to wit:
a) President;
b) Vice-President;
c) Members and Secretaries of both Houses of the Congress;
d) Members of the Judiciary;
e) Secretaries of Departments;
f) provincial governors and lieutenant-governors;
g) city mayors;
h) municipal mayors; bureau directors;
i) regional directors;
j) clerks of courts;
k) registrars of deeds;
l) and other civilian officers in the Philippine public service
whose appointments are vested in the President of the
Philippines and are subject to confirmation by the
Commission of Appointments;
m) all other constitutional officers;
n) and notaries public.
o) A person who by authority of law shall serve in the capacity
of the officers mentioned above shall possess the same
power.

It must be noted that the authority to take the deposition under

section 14 arises only when both of the party agree in writing to such
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 persons as the deposing officer. Without such written stipulation no
deposition may be allowed to be taken with such persons as the
deposing officer.

II. Persons before whom depositions may be taken in foreign

countries.

Section 11. Persons before whom depositions may be taken in

foreign countries. — 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 section 14 hereof. (11a,
R24);

Section 12. Commission or letters rogatory. — 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. (12a, R24);

REPORTER’S NOTES:

Section 11 and 12, describes the rule on extraterritorial discovery. The

main issue to be resolved again is authority of the deposing officer to
administer oaths and how the law may be validly given force in places
beyond the Philippine court’s jurisdiction and compelling power.

Figure 1. Chart illustrating the persons authorized to take deposition under

section 11, rule 23 of the RULES OF COURT.

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II.a. Depositions on Notice

Depositions on Notice are those deposition whose deposing officer may

be requested by a Notice from a court, after such party applies or petition
for such notice to be routed to a Consular office. This is done when a party
wishes to conduct before Consular Officers particularly, secretary of embassy
or legation, consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines, must comply with OCA Circular 209-2017. The
circular provides an annex document from the Department of Foreign Affairs,
Office of Legal Affairs on service of processes and litigation. The document
is entitled, “Guidelines in Taking of Deposition before Philippine Consular
Officers”.

The guideline details a process flow as described on Figure 2 below.

Figure 2. Flowchart of process for a deposition on notice as prescribed in

OCA CIRCULAR 209-2017.

1. REQUESTING
COUNSEL (RC) -moves/
applies before the Court
to request for the DFA’s
7. DEPOSITION PROPER 8. the consular officer-
assistance in taking
deposition (The deposing party shall deposing officer shall
coordinate with transmit all written
deponent and will be the interrogatories,
one responsible for transcripts and
deponent's attendance) documents to the OLA.
1.a COURT
GRANTS/ISSUES
ORDER
6. payment of
9. OLA transmits all
required consular
record to the relevant
fees by deposing
COURT.
party.
2. RC- submits the request
letter, order granting
request for court assistance
, and written
interrogatories (if the 5.OLA communicates
deposition is through the details to deposing
same) to the DFA-OFFICE counsel.
OF LEGAL AFFAIRS.

4. Philippine Foreign
3. OLA- transmits All
Service Post-comment on
documents to the foreign
acceptability and
service post nearest the
schedule and give
residence of the
deposing officer's name
deponent.
and designation to OLA.

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II.a. Depositions on Commission and Letters Rogatory.

A Commission, is an instrument addressed to any authority in a foreign

country authorized therein to take down depositions and the taking of such
deposition is subject to the rules laid down by the court issuing the
commission9. Letters Rogatory are documents addressed to a judicial
authority in the foreign country and the taking of such deposition is subject
to the rules laid down by such foreign judicial authority10(see Table 1 for the
list of known distinctions).

Table. 1. Distinctions Between Commission and Letters Rogatory.

Distinction Commission Letters Rogatory

Purpose To depose a person outside the consular jurisdiction or those

without consular offices or it it more covenient;
Issuing The court were the action is The court where the action is
authority pending pending
Deposing The officer designated by The appropriate judicial
officer name or the person to whom authority requested
the descriptive title pertains
Rules applied The rules of the court which The rules of the foreign court
issued the commission requested
Commission is clothing a particular PERSON or descriptive title while
Letter’s rogatory may be addressed to the appropriate judicial authority in
the foreign country. Letters Rogatory may only be applied for ONLY AFTER
a commission has been returned unexecuted11. This may be further gleaned
from Form 21 of the "Judicial Standard Forms" appended to the Rules of
Court, which requires the inclusion in a "petition for letters rogatory" of the
following paragraph, viz.:

3. A commission issued by this Court on the ______ day of ______,

19__, to take the testimony of (here name the witness or witnesses)
in (here name the foreign country in which the testimony is to be
taken), before _________________ (name of officer), was returned
unexecuted by __________________ on the ground that
____________, all of which more fully appears from the certificate of
said __________ to said commission and made a part hereof by
attaching it hereto (or state other facts to show commission is
inadequate or cannot be executed) (emphasis supplied).

9
Dasmarinas Garments vs. Reyes etc. et. Al. GR No. 108229, Aug 24, 1993.
10
Ibid.
11

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 Case: Dulay vs Dulay 200312
Issue. Whether the admission of a deposition through the
notary public in New York despite the explicit order or directive
for letters rogatory was proper;
Held: Yes, the admission was proper. When the letters
rogatory cannot be effected, the resort to a deposition via a
notary public was a valid alternative:

Based on two (2) reasons:

1. It would be illogical and unreasonable to expect respondent

to comply with the letters rogatory without the cooperation of
the very institution or personality named in the letters rogatory
and requested to examine the witnesses;
2. Respondent substantially complied with the requirements
for depositions taken in foreign countries.

In the Dulay case the court expounded on the essence of

deposition and why such discretion was applied to the case. Here, the
court explained that the use of discovery procedures is directed to the
sound discretion of the trial courts which, in general, are given wide
latitude in granting motions for discovery in order to enable the parties
to prepare for trial or otherwise to settle the controversy prior thereto;

It was not within the trial courts power, much less the respondents
to force the Clerk of Court of Boston to have the deposition taken before
it. After all, while a court had the authority to entertain a discovery
request, it is not required to provide judicial assistance thereto. This
reality was recognized by the trial court when it ordered respondent to
have the questioned depositions authenticated by the Philippine
consulate. The court ruled that refusing the allowance of the depositions
in issue would be going directly against the purpose of taking the
depositions in the first place, that is, the disclosure of facts which are
relevant to the proceedings in court.

12
Dulay vs.Dulay, G.R. No. 158857, November 11, 2005.
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