GENEVIVE S.

DIZON
LLB II-B
CIVIL PROCEDURE

Five (5) Modes of Discovery:

1. Depositions (a) Pending Action (Rule 23); and (b)Before Action or
Pending Appeal (Rule 24)
2. Interrogatories to Parties (Rule 25)
3. Admission by Adverse Party (Rule 26)
4. Production or Inspection of Documents or Things (Rule 27)
5. Physical and Mental Examination of Persons (Rule 28)

Rule 23
Depositions Pending Action

A deposition is the taking of the testimony of any person, whether he

be a party or not, upon oral examination or in response to written
interrogatories, in advance of trial or hearing, but at the instance of a party
to the action, and where an opportunity is given for the opponent for cross-
examination. This testimony is taken out of Court.

Difference between Affidavit and Deposition

An Affidavit is also a sworn statement but the statement is taken ex-
parte (no cross-examination) but in a Deposition, there is cross-examination,
there is a confrontation as if the witness is already testifying in Court.

SECTION 1. Deposition Pending Action, When May Be Taken

1. Leave of court is not required after an answer has been served.

2. But leave of court is required before the service of an answer but
after jurisdiction has been acquired over any defendant or over the
property subject of the action.
3. When it is the deposition of a prisoner that is to be taken, his
deposition may be taken only with leave of court and upon such
terms as the Court may prescribe.

You can take the testimony of any person whether a party or not at the
instance of any party to the action.

Rule 23 provides for either of two (2) methods for taking deposition. It
may be either by:
a. Upon an oral examination, or
b. By a written interrogatory

The attendance of witnesses may be compelled by the use of a

subpoena as provided in Rule 21.

SECTION 2. Scope of Examination

Unless otherwise ordered by the Court, the deponent may be examined

regarding any matter not privileged, which is relevant to the pending action,
whether relating to the claim or defense of any party, including the
existence, description, nature, custody, condition and location of any books,
documents, or other tangible things and the identity and location of persons
having knowledge of relevant facts.
Limitations in Deposition Taking:
1. The matter inquired into is not privileged under the Rules on Evidence
or Special Law - such as Lawyer-Client Communication Rule, Physician-
Patient Communication Rule, Priest-Penitent Communication Rule, or
Business Trade Secrets such as formula of your product.
2. The matter inquired into is relevant to the subject matter of the
pending action while deposition authorizes a fishing expedition, you
are not allowed however, to go beyond the topic.
3. The Court may issue orders to protect the parties and its deponents
under Section 16 or 18.

SECTION 3. Examination and Cross-Examination

The deponent may be examined or cross-examined following the

procedures for witnesses in a trial. He may be asked questions on direct,
cross, re-direct, or re-cross. He has the same rights as a witness and may be
impeached like a Court witness because Sections 3 to 18 of Rule 132 apply to
deponent.

SECTION 4. Use of Deposition

Any part or all of the deposition, so far as admissible under the rules
on evidence, may be used:
a. Against any party who was present or represented at the taking of
the deposition, or
b. Against one who had due notice of the deposition.

The deposition, or any of its parts, may be used:

1. At the trial; or
2. Upon hearing of a motion; or
3. Upon hearing of an interlocutory proceeding (e.g. issuance of a writ
of preliminary injunction or attachment).

A deposition is not a substitute for the testimony of the witness in

Court. It may only be used for the following purposes:

a. For contradicting or impeaching the testimony of the deponent as a

witness;
b. For any purpose by the adverse party where the deponent is a party
or, 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.
c. For any purpose by any party, where the deponent is a witness,
whether or not a party, if the Court finds that:
1. The witness is dead;
2. That the witness resides more than 100 kilometers from the
place of trial or hearing, or is out of the Philippines, unless it
appears that his absence was procured by the party offering
the deposition;
3. That the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment;
4. That the party offering the deposition has been unable to
procure the attendance of witnesses by subpoena; or
5. When exceptional circumstances exists, upon application and
notice.
SECTION 5. Effect of Substitution of Parties

The substitution of parties does not affect the right to use the
depositions previously taken. The same rule also provides that when an
action has been dismissed and another action involving the same subject
and between the same parties, or their representatives or successors-in-
interest, is afterwards brought, all the depositions lawfully taken and duly
filed in the former action may be used in the latter as if originally taken.

SECTION 6. - Objections to Admissibility

SECTION 7. Effect of Taking Deposition

A person whose deposition is taken by a party does not, by reason of

such deposition, make such person the witness of said party. Section 7 of
Rule 23 clearly declares that A party shall not be deemed to make a person
his own witness for any purpose by taking his deposition.

SECTION 8. Effect of Using Depositions

While the taking of the deposition of a person does not make that
person a witness of the party taking his deposition, the introduction of the
deposition, or any part thereof, makes the deponent the witness of the party
introducing the deposition if used for a purpose other than that of
contradicting or impeaching the deponent.

SECTION 9 Rebutting Deposition

SECTION 10. Persons before Whom Depositions May Be Taken

Within the Philippines

Within the Philippines, a deposition may be taken before:

1. Any judge;
2. A notary public; or
3. Any person authorized to administer oaths if the parties so stipulate
in writing (Section 14) such as Prosecutors, Clerk of Court who is a
lawyer, and Labor Arbiters.

SECTION 11. Persons before Whom Depositions May Be Taken in

Foreign Countries

Outside the Philippines, a deposition may be taken before:

a. A secretary of an embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the Philippines;
b. Such person or officer as may be appointed by commission or
letters rogatory;
c. A person authorized to administer oaths by written stipulation of the
parties (Section 14).

SECTION 12. Commission or Letters Rogatory

Commission is an instrument issued by a court of justice, or other

competent tribunal, to authorize a person to take depositions, or do any
other act by authority of such court or tribunal. It is addressed to officers
designated either by name or descriptive title.
 Letters Rogatory an instrument whereby the foreign court is informed
of the pendency of the case and the name of the foreign witnesses, and is
requested to cause their depositions to be taken in due course of law, for the
furtherance of justice, with an offer on the party of the court making the
request, to do the like for the other, in similar case.

SECTION 13. Disqualification by Interest

No deposition shall be taken before a person who is:

a. A relative within the 6th degree of consanguinity or affinity, or
employee or counsel of any of the parties;
b. A relative within the same degree, or employee of such counsel; or
c. One financially interested in the action.

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 and place.

SECTION 15. Deposition upon Oral Examination

A party desiring to take the deposition of any person upon oral

examination shall give to every party to the action a reasonable notice in
writing. Such notice is required to contain the following:
a. The time and place for taking the deposition; and
b. The name and address of each person to be examined, if known; if
not known, there must be a general description sufficient to identify
him or the particular class or group to which he belongs.

SECTION 16. Orders for the Protection of Parties and Deponents;

Any party who is aggrieved can go to court and complain.

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 issue the
following orders for the protection of parties and deponents:

1. That the deposition shall not be taken.

2. That it may be taken only at some designated plaice other than that
stated in the notice.
3. That it 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. The secret processes, developments, or research need not be
disclosed.
8. That the parties shall simultaneously file specific 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.

SECTION 17. Record of Examination; Oath; Objections

 Certain guidelines for oral depositions must be observed. These are:
a. The officer before whom the deposition is taken shall put the
witness on oath;
b. The testimony of the witness or deponent must be recorded and be
taken stenographically, unless the parties agree otherwise;
c. All objections made at the time of the examination shall be noted;
d. Evidence objected to shall be taken but subject to the objections.

The officer before whom the deposition is taken has no authority to

rule on the objections interposed during the course of the deposition
although any objections shall be noted by the officer upon the deposition.
Any evidence that is objected to shall be taken but subject to the objection.

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 18. Motion to Terminate or Limit Examination

Sections 16 and 18 are similar. They both talk about the power of the
Court to control the deposition taking. Section 16 is about protective orders
BEFORE deposition taking while Section 18 talks about protective orders
DURING the deposition taking where the court may stop or limit the
deposition taking.

SECTION 19. Submission to Witness; Changes; Signing

When the testimony is fully transcribed, the deposition shall be

submitted to the witness for examination and read to or by him, unless such
examination is waived by the witness and the parties. The witness may
desire some changes in form and substance, in which case such changes
shall be entered upon the deposition by the officer with a statement of the
reasons of the witness for making such changes. The deposition shall be
signed by the witness, unless the signing is waived by the parties by
stipulation or, the deposition cannot be signed because the witness is ill,
cannot be found or if refuses to sign.

If the deposition is not signed by the witness, the officer shall sign it
and state in the record the attendant facts, together with the reason given
for the non-signing of the deposition. This having been done, the deposition
may be used as fully as though it was signed, unless on a motion to suppress
under Section 29 (f) of Rule 23 and the Court holds that the reasons given for
the refusal to sign require rejecting the deposition in whole or in part.

SECTION 20. Certification and Filing by Officer

The officer is required to certify on the deposition that the witness was
duly sworn to by him and that the deposition is a true record of the
testimony given by the witness. He shall then securely seal the deposition in
an envelope indorsed with the title of the action Deposition of (name of
witness). He shall likewise, promptly file it with the Court in which the action
is pending or send it by registered mail to the Clerk thereof for filing.
SECTION 21. Notice of Filing

All parties shall promptly be notified of its filing by the officer taking
the deposition.

SECTION 22. Furnishing Copies

Upon payment of reasonable charges, the officer shall furnish a copy of

the deposition to any party or to the deponent.

SECTION 23. Failure to Attend of Party Giving Notice

SECTION 24. Failure of Party Giving Notice to Serve Subpoena

SECTION 25. Deposition upon Written Interrogatories; Service of

Notice and of Interrogatories

A party desiring to take the deposition of any person upon written

interrogatories shall serve the interrogatories upon every other party with a
notice stating the name and address of the person who is to answer them,
the name and descriptive title and address of the officer before whom the
deposition is to be taken.

The party served with the interrogatories may also serve cross-
interrogatories upon the party proposing to take the deposition within ten
(10) days from the service of the written interrogatories. The latter may,
within five (5) days, serve re-direct interrogatories. Within three (3) days
after being served with re-direct interrogatories, a party may serve re-cross
interrogatories upon the party proposing to take the deposition.

SECTION 26. Officers to Take Responses and Prepare Record

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. He shall proceed promptly 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.

SECTION 27. Notice of Filing and Furnishing of Copies

SECTION 28. Orders for the Protection of Parties and Deponents

SECTION 29. Effect of Errors and Irregularities in Deposition