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deposition pending action

Rule 23 outlines the process for depositions pending action, allowing parties to take testimony from witnesses before trial to prevent surprises during the proceedings. Depositions can be taken with or without court permission depending on whether an answer has been filed, and they can be conducted through oral examination or written interrogatories. The document also explains the use of subpoenas to compel witness attendance and distinguishes depositions from affidavits.

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3 views

deposition pending action

Rule 23 outlines the process for depositions pending action, allowing parties to take testimony from witnesses before trial to prevent surprises during the proceedings. Depositions can be taken with or without court permission depending on whether an answer has been filed, and they can be conducted through oral examination or written interrogatories. The document also explains the use of subpoenas to compel witness attendance and distinguishes depositions from affidavits.

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TrudgeOn
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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First Mode: Rule 23: DEPOSITION PENDING ACTION

This mode is the most popular among the five. Deposition has two (2) types –
deposition pending action (Rule 23) and depositions before action or pending
appeal (Rule 24). But actually Rule 24 is not new because that is Rule 134
(Perpetuation of Testimony).

But before we discuss Rule 23, I will give you a general idea about what Rule
23 is all about.

EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B.
Now, of course, if A and B will testify, how will they testify, that I do not know.
But I want to know exactly what they will say during the trial, including you.

Q: How do I apply Rule 23?

A: I will take your deposition. Meaning, I will take your testimony in advance
by compelling you to appear before someone whom we call a Deposition
Officer – the judge, or any judge, or even a notary public - who can
administer oath. And then before him, I will be asking now questions and you
have to answer under oath. Your answers will then be recorded including that
of your witnesses.

Therefore, during the trial, when you or your witnesses will testify, there is no
more surprise testimony that you can give me because I already heard you in
advance. You cannot contradict your answer. This is what you call deposition
taking.

Now, if I can do that to you, you can also do that to me. The defendant can
also use that against the plaintiff.

Q: How do you define deposition?


A: DEPOSITION is the written testimony of a witness given in the course of a
judicial proceeding, in advance of the trial or hearing, upon oral examination
or in response to written interrogatories, and where an opportunity is given
for cross-examination. (16 Am. Jur. 699)

When I take the deposition of somebody, my opponent has the right to cross-
examine the same witness. So practically, it’s a dress rehearsal for the trial
when I ask questions, my opponent can ask questions also. The questioning
of the witnesses is done the way it is done during the trial. The witness of the
opponent has to undergo the same procedure in the rules of evidence. That
is Section 3:

Sec. 3. Examination and cross-examination. Examination and cross-


examination of deponents may proceed as permitted at the trial
under sections 3 to 18 of Rule 132. (3a, R24)

Q: Distinguish a deposition from an affidavit.

A: Affidavit is also a sworn statement of a witness but the statement is taken


ex-parte (no cross-examination). But in deposition there is
cross-examination, there is a confrontation as if he is already testifying in
court.

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. (1a, R24)
Deposition-taking under Section 1 presupposes that there is a pending civil
case kaya nga, the title is depositions pending action. There is an existing
civil case and I would like to take the deposition of certain people.

Q: When there is a pending action, is it necessary that leave of court or


permission should be sought for deposition to be allowed?

A: The rule is, it DEPENDS if there is already an answer or no answer:

1.) If the defendant has already filed an answer and therefore jurisdiction
over the person of the defendant has been obtained, leave of court is
not required. All you have to do is send the questions to the other
party;

2.) But if there is no answer, where the court has not yet acquired
jurisdiction over the person of the defendant, it requires a motion.

Another instance where leave of court is required under Section 1 is when


what is to be taken is a deposition of a person confined in prison.

Q: Whose deposition can you take?

A: The law says, you can take the testimony of any person whether a party or
not at the instance of any party.

EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his
witnesses? Yes, including Mr. A’s deposition. I can also take the deposition of
my own witnesses, even my own deposition. At least, before I die, nakuha na
yung testimony ko. So I can take the deposition of anybody in the world.
That’s why the law says, “the testimony of any person whether a party or
not may be taken at the instance of any party.” And of course, Mr. A can also
do what I was allowed to do.

Q: When you take deposition of this person, what do you call him?
A: The accurate term is that, he is called ‘DEPONENT.’ Some people call him
witness.

Q: What are the modes of deposition taking?

A: Under the law, there are two (2) recognized modes:

1.) Deposition upon oral examination; and

2.) Deposition upon written interrogatories

The deposition upon oral examination is more popular because it is just like
how you question a witness in court: Questions and answers, then it is
recorded. And then later on, the other counsel would ask his questions and
answer. Deposition upon written interrogatories should not be confused with
Rule 25 because the former is governed by Rule 23. Although they use the
same words.

Now, as we shall see, there must be a deposition officer and under the law,
even a notary public is qualified to act as deposition officer because he can
administer oaths.

Deposition taking has a counterpart in criminal procedure. c.f. Rule 119,


Sections 12,13 and 15.

Q: Suppose I would like to take the deposition of Ms. A before a notary public
whose office is located along San Pedro Street. How can I force Ms. A to
go to the office of that notary public? Can I force her?

A: If Ms. A is in court, the court can force you by subpoena. But I can also
compel Ms. A to attend this questioning for the purpose of deposition.
Section 1 says, “the attendance of witnesses may be compelled by the use
of a subpoena as provided in Rule 21.”

Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a


process directed to a person requiring him to attend and to testify
at the hearing or the trial of an action, or at any investigation
conducted by competent authority, or for the taking of his
deposition. It may also require him to bring with him any books,
documents, or other things under his control, in which case it is
called a subpoena duces tecum. (1a, R23)

PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your
witness to come here in Davao to help you and you are even willing to
shoulder her transportation, but she refuses.

Q: Can you ask the court in Davao to issue a subpoena compelling such
witness to come here and testify even if the distance is more than 100
kilometers?

A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and
get a deposition officer and take her deposition.

Q: How can I compel her to go to the office of the notary public in Cebu for
the purpose of the deposition?

A: You can get a subpoena from the Cebu court and that is allowed under
Rule 21, Section 2 [b] and under Rule 21, Section 5:

Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:

xxxxx

b) the court of the place where the deposition is to be taken;

xxxxx

Sec. 5. Subpoena for depositions. Proof of service of a notice to take a


deposition, as provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of subpoenas for
the persons named in said notice by the clerk of the court of the
place in which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person without
an order of the court. (5a, R23)

In other words, I will send the notice to my opponent, “I am going to take the
deposition of my witness in Cebu.” And based on that notice, I will go to
Cebu and ask the clerk of court of the RTC of Cebu to issue a subpoena
based on the notice to take deposition on the Davao case. And under the
Rules, the Cebu RTC has to issue a subpoena even if the case is not pending
in that (Cebu) court because this is only deposition. Kaya nga under Rule 21,
Section 2 [b], a subpoena may be issued by the court of the place where the
deposition is to be taken.

There was an instance before, a Manila lawyer who wanted to take the
deposition of somebody in Davao. Then he applied for a subpoena to require
the deponent to appear before a notary public here. At least, tama siya
doon. Ang mistake niya, he applied for a subpoena in the Manila court where
the case is pending and the judge there, maybe he did not read Rule 21,
issued a subpoena addressed to the person in Davao to appear before the
notary public in Davao and the witness did not appear. So the lawyer
realized na mali siya. So he had to do it all over again in Davao, not in
Manila. The subpoena has no more effect beyond 100 kilometers. It should
be filed not where the case is pending but at the court of the place where the
deposition is to be taken. In other words, the error was corrected, but can
you imagine the waste of time and effort.

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