CIVIL PROCEDURE; RIANO/SALAZAR NOTES | Atty.

Obra 2021-22[1ST]

him or her and his or her counsel in attending, including reasonable attorney’s
MODES OF DISCOVERY
fees.

RULE 23: DEPOSITION PENDING ACTIONS

If a party or an officer or managing agent of a party WILLFULLY FAILS to appear
before the officer who is to take his or her depositions, the court on motion and
DEPOSITION - the testimony of a witness, put or taken in writing, under oath or notice, may strike out all or any part of any pleading of that party, or dismiss the
affirmation, before a commissioner, examiner or other judicial officer, in answer to action, or enter a judgment by default against that party, and in its discretion, order
interrogatory or cross-interrogatory, and usually subscribed by the witness. him or her to pay reasonable expenses incurred by the other party, including
payment of attorney’s fees.
FUNCTIONS
- To supplement the pleadings for the purpose of disclosing the real points [CASE: DISINI v. SANDIGANBAYAN - In regard to the Motion for Leave to Take
of dispute between the parties and afford an adequate factual basis Deposition filed by petitioner, it is important to note that there are 2 instances
during the preparation for trial. when the defendant can take depositions under SEC 1 Rule 23; 1. After the party
- It serves as a device for ascertaining the facts relative to the issues of the has acquired jurisdiction over the defendant or the property subject of the action;
case. and 2. After an answer has been served.
- To obtain the fullest possible knowledge of the issues and facts before By seeking relief contained in Rule 23, petitioner is deemed to have
civil trials and thus prevent the same from being carried out in the dark.® voluntarily submitted himself to the jurisdiction of the Sandiganbayan. Thus,
petitioner may be held to have waived his objections regarding the lack of
DEPOSITION PENDING ACTION During the pendency of an action, the jurisdiction over his person by seeking affirmative relief through the said
testimony of any person, whether a party or not, may be taken by deposition upon provision.]
oral examination or written interrogatories.
DEPOSITION OF A PERSON CONFINED IN PRISON may ONLY by LEAVE OF
WHO MAY AVAIL? The rule does NOT make a distinction or restriction as to COURT on such term as the court prescribes.
who can avail of deposition. Thus, the fact that it is being availed of by a non-
resident foreign corporation is immaterial. [CASE: PEOPLE v. M.C SERGIO - Under SEC 5 Rule 119, the prosecution may,
- MOTION to avail of this remedy, an ex-parte motion must be filed in under Rule 23, take the deposition of its witness who is in prison awaiting
court where the action is pending. execution in a foreign country.]

NOTICE it shall state the time and place for taking the deposition and the name SUBPOENA the attendance of witnesses may be compelled by the use of
and address of each person to be examined, if known. If the name is not known, a subpoena as provided under Rule 21.
general description sufficient to identify him or her or the particular class or group
to which he or she belongs. EFFECTS OF FAILURE TO SERVE SUBPOENA
- The court may order the party giving the notice to pay such other party the
EFFECTS OF FAILURE TO ATTEND The court may order the party giving the amount of the reasonable expenses incurred by him or her and his or her
notice to pay such other party the amount of the reasonable expenses incurred by counsel in so attending.

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MANNER OF TAKING DEPOSITION

1. Shall put the witness on oath participating in the oral examination, parties served with notice of taking a
2. Personally record the testimony of the witness. This can also be done by deposition may instead transmit written interrogatories to the officers. Said
some one acting under his/her direction and in his/her presence. officers shall then propound these questions to the witness and record the
NOTE: Testimonies shall be taken stenographically unless the parties agree answers in verbatim.
otherwise.
EXAMINATION OF DEPONENT
Before Whom Depositions May be Taken? At the trial or hearing, any party may rebut any relevant evidence contained in the
● Within the Philippines; it shall before; deposition whether introduced by him or her or by any other party.
- Any judge or notary public
- Any person authorized to administer oaths, if so stipulated by the SCOPE OF EXAMINATION
parties in writing GR: The deponent may be examined regarding any matter which is relevant to
● Foreign States or Countries the subject of the pending action EXCEPT when such matter is privileged.
- A secretary of embassy or legation, consul general, consul,
vice-consul, or consular agent of the PH. NOTE: the court may order certain restrictions or conditions as provided under
- Employee or counsel of any of the parties; SEC 16 and 18, Rule 23. Thus, when the court allowed the taking of the deposition
- A relative within the same degree or employee of such counsel; but issued an order directing that certain matters shall not be inquired into, the
- One who is financially interested in the action. deponent cannot be examined on such matters.

[CASE: DASMARINAS GARMENTS v. REYES - Petitioner objects to the taking of MATTERS WHICH THE COURT MAY ORDER THE TAKING OF ORAL DEPOSITIONS
deposition of two witnesses of the adverse party in Taipei on various grounds. Any party or the person to be examined may, for good cause, file a motion before
However the court held that what matters is that the deposition is taken before a the court where the action is pending to issue the following orders:
Philippine official acting by authority of the Philippine Department of Foreign - That the deposition shall not be taken;
Affairs and in virtue of a commission duly issued by the PH courts. - That the deposition may be taken only at some designated place other
Depositions may be taken AT ANY TIME after the institution of any action, than that stated in the notice
whenever necessary or convenient. There is no rule that limits deposition-taking - That the deposition may be taken only on written interrogatories;
only to the period if pre-trial or before it; no prohibition against the taking of - That certain matters shall not be inquired into;
depositions after pre-trial.] - That the scope of examination shall be held with no one present except
the parties to the action and their officers or counsel;
OBJECTIONS; following shall be noted by the officer upon the deposition, to wit: - That after being sealed, the deposition shall be opened only by order of
- The qualification of the officer taking the deposition; the court;
- The manner of taking it; - That secret processes, developments, or research need not be disclosed;
- The evidence presented; - That the parties shall simultaneously file specified documents or
- The conduct of any party; information enclosed in sealed envelopes to be opened as directed by the
- Any other objection to the proceeding court.

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[CASE: PEOPLE v. WEBB - it was held that the trial court judge did not commit CHANGES Any changes in form or substance which the witness desires to
grave abuse of discretion when she denied Webb’s motion to take deposition by make shall be entered upon the deposition by the officer with a statement of the
oral examination of the 5 US based defense witnesses. The trial court was correct reasons given by the witness for making them.
in opining that the depositions proposed by accused Webb to be taken from the 5
U.S. based witnesses would be merely corroborative or cumulative in nature. The UNSIGNED DEPOSITION If the deposition is not signed by the witness, the
trial court also correctly observed that allowing the taking of deposition would officer shall sign it and state on record the fact of waiver or of the illness or
only be a superfluous exercise that will not reasonably add to the persuasiveness absence of the witness or the fact of the refusal to sign together with the reason
of the evidence already on record.] given therefor, if any. Then, the deposition may be used fully as though it was
signed.
[CASE: VDA. DE MANGUERRA v. RISOS - the deposition of a prosecution witness
who claimed to be too sick to travel and appear before the court where the case is The court, however, upon motion to suppress under Section 29(f), Rule 23, may
pending CANNOT be taken under RULE 23. Such prosecution witness may only hold that the reasons given for the refusal to sign require rejection of the
testify and be examined before the court where the case is pending under SEC 15 deposition in whole or in part.
of Rule 119.
The conditional examination of a prosecution witness for the purpose of FILING OF DEPOSITION The officer shall certify on the deposition that the
taking his deposition should be MADE BEFORE THE COURT, or at least before the witness was duly sworn to by him or her and that the deposition is a true record of
judge. If the deposition is made elsewhere, as allowed by Rule 23, the accused the testimony given by the witness.
may NOT be able to attend, as when he is under detention. Section 15 of Rule 119
is designed mainly for the protection of the accused’s constitutional rights.] NOTICE OF FILING The officer taking the deposition shall give prompt notice of
its filing to all the parties. Upon payment of reasonable charges therefore, the
MOTION TO TERMINATE OR LIMIT EXAMINATION at any time during the officer shall furnish a copy of the deposition to any party or the deponent.
taking of the deposition, any party or the deponent may file a motion or petition
showing that the examination is being conducted in bad faith. USE OF DEPOSITION; any part or all of a deposition may be used against any party
who was present or represented at the taking of the deposition or who had due
Where to File Motion or Petition? may be filed in the court in which the action is notice thereof in accordance with any of the following:
pending or in the Regional Trial Court of the place where the deposition is being a. Any deposition may be used by any party for the purpose of contradicting
taken. or impeaching the testimony of the deponent as a witness;
b. The deposition of a party or any one whoat the time of taking the
COURT ACTION court may order the officer conducting the examination to deposition was an officer, director, or managing agent of a public or
cease forthwith from taking the deposition or it may simply limit the scope and private corporation, partnership or association which is a party may be
manner of the taking of such deposition. used by an adverse party for any purpose;
c. The deposition of a witness, whether or not a party, may be used by any
SUBMISSION TO WITNESS FOR SIGNING It shall be submitted to the witness party for any purpose if the court finds:
for examination and shall be read to or by him/her. Such examination and reading - that the witness is dead;
may be waived by the witness and by the parties.

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- that the witness resides at a distance more than 100 km from the However in the case of PEOPLE VS. SERGIO, the SC allowed the taking and the
place of trial or hearing, or is out of the PH. use of the testimony of the witness given through a written interrogatory
- hat the witness is unable to attend or testify because of age, reasoning liberal application of the rules due to its silence at that time on the
sickness, infirmity, or imprisonment; peculiar situation wherein the witness cannot testify because she was suffering
- That the witness is unable to attend or testify because of age, from imprisonment in a foreign country and facing a death sentence.
sickness, infirmity, or imprisonment;
- the party offering the deposition has been unable to procure the EFFECT OF USING DEPOSITION makes the deponent the witness of the party
attendance of the witness by subpoena; introducing the deposition. This, however, does not apply for purposes of
- upon application or notice, that such exceptional circumstances contradicting or impeaching the deponent. It is also not applicable to the use by
exist as to make it desirable, in the interest of justice an adverse party of a deposition for any purpose as described in Section 4(b) of
d. If only part of a deposition is offered in evidence by a party, the adverse this Rule.
party may require him or her to introduce all of it which is relevant to the
part introduced SUBSTITUTION OF PARTIES → it does not affect the right to use the depositions
previously taken.
[CASE: GO v. PEOPLE - To take the deposition of the prosecution witness
elsewhere and not before the very same court where the case is pending would DEPOSITION UPON WRITTEN INTERROGATION A party desiring to take the
not only deprive a detained accused of his right to attend the proceedings but also deposition of any person upon written interrogatories shall serve them upon every
deprive the trial judge of the opportunity to observe the prosecution witness' other party with a notice stating the name and address of the person who is to
deportment and properly assess his credibility, which is especially intolerable answer them and the name or descriptive title and address of the officer before
when the witness' testimony is crucial to the prosecution's case against the whom the deposition is to be taken.
accused.
While the prosecution has the right to preserve the testimony of its CROSS-INTERROGATORIES A party so served by such written interrogatories
witness in order to prove its case, the rules which are designed mainly for the may serve cross-interrogatories upon the party proposing to take the deposition
protection of the accused constitutional rights should prevail. The giving of within ten 10 days from service thereof.
testimony during trial is the general rule. The conditional examination of a witness
outside of the trial is ONLY an exception, and as such, calls for a strict REDIRECT INTERROGATORIES The party desiring to take the deposition then
construction of the rules. ] shall serve re-direct interrogatories upon the party who has served
cross-interrogatories within 5 days from such service.
UNUSUAL CIRCUMSTANCES
The testimony of deposition given in a former case or proceeding, judicial or RECROSS INTERROGATORIES proposing to take the deposition within 3
administrative, involving the same parties and subject matter, by a witness who is calendar days from service of the redirect interrogatories.
already deceased or out of the PH or one who cannot be found therein with due
diligence or is unavailable or otherwise unable to testify, may be given in evidence OBJECTIONS ON ERRORS AND IRREGULARITIES
against the adverse party who had the opportunity to cross-examine him or her. It should be promptly served upon the party giving notice. Otherwise, such
objections are deemed waived.

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d. the names or a description of the persons he or she expects will be

Objection to taking a deposition because of disqualification of the officer adverse parties and their addresses so far as known
before whom it is to be taken should be made before the taking of the deposition e. the names and addresses of the persons to be examined and the
begins or as soon thereafter as the disqualification becomes known or could be substance of the testimony which he or she expects to elicit from each
discovered with reasonable diligence. f. 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
Objections to the competency of a witness or the competency, relevancy, or perpetuating their testimony.
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 DUTY OF PETITIONER The petitioner shall serve a notice upon each person
have been obviated or removed if presented at that time. Otherwise, such named in the petition as an expected adverse party.
objections are waived.
GRANT OF PETITION may prevent a failure or delay of justice, it shall make an
Errors and irregularities occurring at the oral examination in the manner of order designating or describing the person whose deposition may be taken and
taking the deposition, in the form of the questions or answers, in the oath or specifying the subject matter of the examination and whether the depositions
affirmation, or in the conduct of the parties and errors of any kind which might be shall be taken upon oral examination or written interrogatories.
obviated, removed or cured if promptly prosecuted, are waived unless reasonable
objection thereto is made at the taking of the deposition. NOTE: For the purpose of applying Rule 23, each reference therein to the court in
which the action is pending shall be deemed to refer to the court in which the
Objections to the form of written interrogatories submitted under Sections 25 petition was filed.
and 26 of Rule 23 must be in writing and served upon the party propounding them
within the time allowed for serving succeeding cross or other interrogatories and USE OF DEPOSITION it would be admissible in evidence, it may be used in any
within 3 days after service of the last interrogatories authorized under the Rule. action involving the same subject matter subsequently brought in accordance with
Otherwise, such objections are waived. the provisions of Sections 4 and 5 of Rule 23.

PENDING APPEAL
LEAVE OF COURT; The motion shall state:
RULE 24: DEPOSITION BEFORE ACTION OR PENDING APPEAL a. the names and addresses of the persons to be examined and the
substance of the testimony which he or she expects to elicit from each;
VERIFIED PETITION b. the reason for perpetuating their testimony.
a. The petitioner expects to be a party to an action in a court, of the PH but is
presently unable to bring it or cause it to be brought GRANT OF MOTION The court may grant the perpetuation of the testimony if it
b. The subject matter of the expected action and his or her interest therein; finds that it is proper to avoid failure or delay of justice.
c. The facts which he or she desires to establish by the proposed testimony
and his or her reasons for desiring to perpetuate it;

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RULE 23 APPLIES, the depositions may be taken and used in the same manner the court, on motion and notice, may strike out all or any part of any pleading of
and under the same conditions as are prescribed in the rules for depositions taken that party, or dismiss the action or proceeding or any part thereof, or enter uv
in pending actions judgment by default against that party.

OBJECTIONS If there are objections to the written interrogatories, the same

RULE 25: INTERROGATORIES TO PARTIES may be presented to the court within 10 days from service of such written
interrogatories. Such objections must be served with notice as in case of a
It is done by filing an ex parte motion attaching thereto the written interrogatories. motion.
The adverse party shall be furnished with a copy of said motion and that of the
written interrogatories. NUMBER OF INTERROGATORIES ALLOWED Only 1 set of interrogatories may
be filed to be answered by the same party. Beyond that number, leave of court is
SCOPE OF INTERROGATORIES required.
- any matter that can be inquired into in a deposition pending action under
Rule 23. FAILURE TO SERVE WRITTEN INTERROGATORIES
A party not served with written interrogatories may not be compelled by the
ANSWER TO WRITTEN INTERROGATORIES adverse party to give testimony in open court or to give a deposition pending
shall be answered fully in writing by the party served and shall serve the copy of appeal. The court, however, may allow the giving of such testimony or deposition
the answer on the party submitting the interrogatories within 15 days from service for good reason and to prevent a failure of justice.
of the written interrogatories. However, the court, on motion and for good cause, [CASE: AFULUGENCIA v. METRO BANK - SEC 6 of RULE 25 provides that a party
may extend or shorten the time to answer. not served with written interrogation may not be compelled by the adverse party to
give testimony in open court, or to give deposition pending appeal. The purpose of
[CASE: PHIL HEALTH v. OUR LADY OF LOURDES - In an adamin case, a party’s said provision is to PREVENT FISHING EXPEDITION and needless delays. It will be
motion to avail modes of discoveries such as WRITTEN INTERROGATIONS under presumed that a party who does not serve written interrogatories on the adverse
Rule 25 may be DENIED in the following instances; party beforehand will most likely be unable to elicit facts useful to its case if it
- The facts sought to be elicited from through the written interrogation later opts to call the adverse party to the witness stand as its witness.]
could already be seen from the allegations
- The written interrogations are mistakenly addressed to an officer of the NOTE: the rule does not only protect the adverse party from unwarranted surprises
adverse party who has no personal knowledge of the facts sought to be or harassment. It likewise prevents the calling party from conducting a fishing
elicited expedition or bungling its own case.
- All the facts and issued that the movant wants to determine through the Hence, a party cannot compel the adverse party to bring to the court
written interrogations could be addressed in the summary hearing documents through a subpoena duces tecum or give a deposition pending appeal
- If the resort to the mode of discovery is clearly intended to delay the if said adverse party was not previously served with written interrogatories.
summary proceeding of the administrative case. ]

EFFECT OF FAILURE TO SERVE ANSWER

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NOTE: Failure to comply with the request within the period as discussed above
RULE 26: ADMISSION BY ADVERSE PARTY
shall cause each of the matters requested for admission to be deemed admitted.

A party may file and serve upon any other party a written request for the EFFECTS OF ADMISSION
admission by the admission by the latter of; Any other admission made by a party PURSUANT to such request is only for the
- the genuineness of any material and relevant documents described in and purpose of pending action only, it shall not constitute as admission by him/her for
exhibited with the request; any other purposes nor may the same be used against him/her in any other
- the truth of any material and relevant matter of fact set forth in the proceeding.
request.
OBJECTIONS must be submitted to the court prior to the filing of said sworn
[CASE: DUQUE v. YU - SEC 2 Rule 26 provides that when a party to whom a request statement.
from admission as to the truth of any material relevant matter of fact fails to file a
sworn statement answering it, he shall be DEEMED to have admitted each of the FAILURE TO FILE REQUEST FOR ADMISSION it shall not be permitted to
matters of which admission was requested. present evidence on such facts. The court, however, may allow the presentation of
It DOES NOT apply however when the party to whom such request for such evidence for good cause and to prevent a failure of justice.
admission was served had already controverted the matters subject of such in his
earlier pleading.]
RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
RATIONALE: Admissions by an adverse party as a mode of discovery
contemplates of interrogatories that would clarify and tend to shed light on the SEC 1. Motion for production or inspection; order;
truth or falsity of the allegations in a pleading, and does not refer to a mere ● order any party to produce and permit the inspection and copying or
reiteration of what has already been alleged in the pleadings. photographing, by or on behalf of the moving party, of any designated
document, paper, books, accounts, letters, photographs, objects or
PERIOD TO COMPLY period must not be less than 15 days after service. tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his or her
EFFECT OF FALSE DENIAL the party requesting the admissions may apply to possession, custody or control;
the court for an order requiring the other party to pay him or her the reasonable ● order any party to permit entry upon designated land or other property in
expenses incurred in making such proof, including payment of reasonable his or her possession or control for the purpose of inspecting, measuring,
attorney's fees. surveying, or photographing the property or any designated relevant object
or operation thereon.
However, the court may not order such payment if it finds that there were good
reasons for the denial or that the admissions sought were of no substantial EFFECTS OF REFUSAL TO OBEY
importance. Similarly, such payment of expenses and attorney's fees cannot be The court may issue an order, inter alia, that the character or description of the
imposed upon the PH. thing, or land, or the contents of the paper, shall be taken to be established for the

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purposes of the action in accordance with the claim of the party obtaining the
order. RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVERY

SEC 1, REFUSAL TO ANSWER - If a party or other deponent refuses to answer any

question upon oral examination, the examination may be completed on other
RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS matters or adjourned as the proponent of the question may prefer. The Proponent
may thereafter apply to the proper court of the place where the deposition is being
Motion is required however, may be made only upon motion showing good cause taken for an order to compel an answer.
and upon notice to the party to be examined and to all other parties. The order
shall specify the time, place, manner, conditions and scope of the examination and EFFECTS OF GRANT OF APPLICATION
the person or persons by whom it is to be made. the court shall require the refusing party or deponent to answer the question or
interrogatory. If it also finds that the refusal to answer was without substantial
EFFECTS OF REFUSAL TO OBEY justification, it may require the refusing party or deponent or the counsel advising
the court may issue an order, among others, that the physical or mental the refusal, or both of them, to pay the proponent the amount of the reasonable
condition of the party shall be taken to be established for the purposes of the expenses incurred in obtaining the order.
action in accordance with the claim of the party obtaining the order. This is
without prejudice to the court issuing an order for the arrest of the person who EFFECT OF REFUSAL TO OBEY
disobeyed the order. It shall constitute contempt of that court under SEC 2, RULE 29 and the court
may make such an order as enumerated in SEC 3.
EFFECTS OF FAILURE TO DELIVER REPORT
the court on motion and notice may make an order requiring delivery on such The court may issue an order, among others, that the matters regarding which the
terms as are just. questions were asked shall be taken to be established for the purposes of the
If a physician fails or refuses to make such a report, the court may action in accordance with the claim of the party obtaining the order.
exclude his/her testimony if offered at the trial.
EFFECTS OF DENIAL OF APPLICATION
WAIVER OF PRIVILEGE; SEC 4 - By requesting and obtaining a report of the the court may require the proponent or the counsel advising the filing of the
examination so ordered or by taking the deposition of the examiner, the party application, or both of them, to pay the refusing party or deponent the amount of
examined waives any privilege he or she may have in that action or any other the reasonable expenses incurred in opposing the application, including payment
involving the same controversy, regarding the testimony of every other person who of attorney's fees.
has examined or may thereafter examine him or her in respect of the same mental
or physical examination. CONTEMPT OF COURT, if a party or other witness refuses to be sworn or refuses
to answer any question after being directed to do so by the court of the place in
which the deposition is being taken, the refusal may be considered a contempt of
that court.

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EFFECTS OF REFUSAL TO OBEY

The court may make such orders in regard to the refusal as are just and among
others the following;
a. An order that the matters regarding which the questions were asked, or
the character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party, or any other
designated facts shall! be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order
b. An order refusing to allow the disobedient party to support or oppose
designated claims or defense or prohibiting him or her from introducing in
evidence designated documents or things or items of testimony
c. an order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default against
the disobedient party;
d. an order directing the arrest of any party or agent of a party for disobeying
any of such orders except an order to submit to a physical or mental
examination.

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