MODES OF DISCOVERY IN GENERAL
It has been repeatedly held that deposition
MEANING OF DISCOVERY
In general, a discovery is a device employed by a
party to obtain information about relevant matters
on the case from the adverse party in preparation
for the trial. As contemplated by the Rules, the
device may be used by all the parties to the case. It
is the term used to describe a category of
procedural devices employed by a party to an
action, prior to trial, to require the adverse party to
disclose information that is essential for the
preparation of the requesting party's case and that
the other party alone knows or possesses. Discovery
devices narrow the issues of a lawsuit, obtain
evidence not readily accessible to the applicant for
use at trial, and ascertain the existence of
information that might be introduced as evidence at
trial.
A court will deny discovery if the party is using it
as a fishing expedition
to ascertain information for the
purpose of starting an action or developing a
defense. A court is responsible for protecting
against the unreasonable investigation into a
party's affairs and must deny discovery if it is
intended to annoy, embarrass, oppress, or injure the
parties or the witnesses who will be subject to it. A
court will stop discovery when used in bad faith.
AIM OR PURPOSE OF DISCOVERY PROCEDURES:
LITIGATION SHOULD NOT BE CARRIED IN THE
DARK
REPUBLIC vs. SANDIGANBAYAN 204 SCRA 213,
November 21, 1991
The various modes or instruments of discovery are
meant to serve (1) as a device, along with the pre-
trial hearing under Rule 20, to narrow and clarify the
basic issues between the parties, and (2) as a device
for ascertaining the facts relative to those issues.
The evident purpose is, to repeat, to enable the
parties, consistent with recognized privileges, to
obtain the fullest possible knowledge of the issues
and facts before civil trials and thus prevent that
said trials are carried on in the dark. XXX
LIBERAL APPLICATION AND TREATMENT
discovery rules are to be accorded a broad and
liberal treatment and should not be unduly
restricted if the matters inquired into are otherwise
relevant and not privileged, and the inquiry is made
in good faith and within the bounds of law.
Otherwise, the advantage of a liberal discovery
procedure in ascertaining the truth and expediting
the disposal of litigation would be defeated
(RAMON GERARDO B. SAN LUIS vs. HON. PABLITO
M. ROJAS, ET AL., G.R. No. 159127, March 3, 2008).
MODES OF DISCOVERY UNDER THE RULES OF
COURT
The following are the modes of discovery under the
Rules of Court:
a. Depositions pending action (Rule 23);
b.Depositions before action or pending appeal (Rule
24); c. Interrogatories to parties (Rule 25);
d.Admission by adverse Party (Rule 26);
e. Production or inspection of documents and
things (Rule 27); and
f. Physical and mental examination of persons (Rule
28).
DEPOSITION
It refers to 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.
INTERROGATORIES
These are the questions in writing served directly on
the adverse party to be answered by him or by his
officer. Its scope is as broad as the field of inquiry
which a person interrogated is called upon to testify
in an actual trial.
PRODUCTION OR INSPECTION OF DOCUMENTS OR
THINGS
This mode of discovery is an exception to the
constitutional guarantee of privacy of
communication and correspondence. It allows the
production or inspection of documents and other
things but does not allow them to be distrained
without the knowledge of their lawful owner or
possessor.
ADMISSION BY ADVERSE PARTY
This may be made at any time after the pleadings
are closed. This may be availed of by a party by
serving upon the other party a written request for
the admission by the latter of the genuineness of
any relevant documents described in and exhibited
with the request, or of the truth of any relevant
matters of fact set forth therein.
APPLICABILITY TO CRIMINAL CASES (BAR 2009)
The accused in a criminal case has the right to avail
of the various modes of discovery. There is nothing
in the Rules of Court which limit the defendant’s
right to avail of the various modes of discovery only
to civil cases. Corollarily, there are “modes of
discovery” under Rule 119 of the Rules on Criminal
Procedure although they are not called depositions,
etc. but are called other names. For instance, the
procedure under Sections 12 and 15 of Rule 119,
although similar to depositions, is called conditional
examination of witnesses. (See Sections 12 to 15,
Rule 119)
RULE 23 DEPOSITIONS PENDING ACTION
SECTION 1. Depositions pending action, when may
be taken.— 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. (1a)
DEPOSITION DEFINED
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, REPUBLIC
OF THE PHILIPPINES vs. SANDIGANBAYAN, G.R. No.
112710, May 30, 2001).
Simply, it is the testimony of a witness reduced to
writing in due form of law, taken by virtue of a
commission or other authority of a competent
tribunal.
PEOPLE OF THE PHILIPPINES vs. HUBERT JEFFREY P.
WEBB G.R. No. 132577, August 17, 1999
As defined, a deposition is the testimony of a
witness taken upon oral question or written
interrogatories, not in open court, but in pursuance
of a commission to take testimony issued by court,
or under a general law or court rule on the subject,
and reduce to writing and duly authenticated, and
intended to be used in preparation and upon the
trial of a civil or a criminal prosecution. A pretrial
discovery device by which one party (through his or
her attorney) ask oral questions of the other party
or of a witness for the other party. The person who
is deposed is called the deponent. The deposition is
conducted under oath outside of the court room,
usually in one of the lawyer's offices. A transcript —
word for word account — is made of the deposition.
Testimony of [a] witness, taken in writing, under
oath or affirmation, before some judicial officer in
answer to questions or interrogatories
PURPOSES OF DEPOSITION-TAKING
The purposes of taking depositions are to:
1. Give greater assistance to the parties in
ascertaining the truth and in checking and
preventing perjury;
2. Provide an effective means of detecting and
exposing false, fraudulent claims and defenses;
3. Make available in a simple, convenient and
inexpensive way, facts which otherwise could not be
proved except with great difficulty;
4. Educate the parties in advance of trial as to the
real value of their claims and defenses thereby
encouraging settlements;
5. Expedite litigation;
6. Safeguard against surprise; 7. Prevent delay;
8. Simplify and narrow the issues; and
9. Expedite and facilitate both preparation and trial.
TYPES OF DEPOSITIONS
A deposition is the taking of the testimony of any
person, whether he be a party or not, but at the
instance of a party to the action. This testimony is
taken out of court. It may be either by (a) an oral
examination, or by (b) a written interrogatory(Sec. 1,
Rule 23, Rules of Court). A deposition may be
sought for use in a future action (Rule 24), during a
pending action (Rule 23) or for use in a pending
appeal (Rule 24).
If the deposition is for use during a pending trial
action, it is commonly called a deposition DE BENNE
ESSE and is governed by Rule 23. If it is to
perpetuate a testimony for use in future
proceedings as when it is sought before the
existence of an action, or for cases on appeal, it is
called a deposition IN PERPETUAM REI MEMORIAM.
DEPOSITION PENDING ACTION MAY BE TAKEN
WHETHER OR NOT AN ANSWER HAS BEEN FILED
WHO MAY APPLY FOR THE TAKING OF A
DEPOSITION?
Section 1 provides that the taking of a deposition
may be at the instance of A PARTY (i.e. the plaintiff
and defendant). As to who may be a deponent,
Section 1 provides that it may be any person,
whether a party or not.
CAN A NON-RESIDENT FOREIGN CORPORATION
APPLY FOR DEPOSITION-TAKING?
Yes, for as long as it is a party. See next slide.
SAN LUIS vs. ROJAS, ET AL. G.R. No. 159127, March
3, 2008
Unequivocally, the rule does not make any
distinction or restriction as to who can avail of
deposition. The fact that private respondent is a
nonresident foreign corporation is immaterial. The
rule clearly provides that the testimony of any
person may be taken by deposition upon oral
examination or written interrogatories, at the
instance of any party. Depositions serve as a device
for ascertaining the facts relative to the issues of the
case. The evident purpose is to enable the parties,
consistent with recognized privileges, to obtain the
fullest possible knowledge of the issues and facts
before civil trials and thus prevent the said trials
from being carried out in the dark.
WHEN MAY DEPOSITIONS BE TAKEN?
Depositions may be taken before action, at pre-trial,
while the action is pending or even pending appeal.
They may also be taken during the period of
execution of a final judgment.
DASMARIÑAS GARMENTS, INC. vs. HON. RUBEN T.
REYES G.R. No. 108229, August 24, 1993
Depositions may be taken at any time after the
institution of any action, whenever necessary or
convenient. There is no rule that limits deposition
taking only to the period of pretrial or before it; no
prohibition against the taking of depositions after
pretrial. Indeed, the law authorizes the taking of
depositions of witnesses before or after an appeal is
taken from the judgment of a Regional Trial Court
"to perpetuate their testimony for use in the event
of further proceedings in the said court" (Rule 134,
Rules of Court), and even during the process of
execution of a final and executory judgment (East
Asiatic Co. v. C.I.R., 40 SCRA 521, 544).
SEC. 2. Scope of examination.—Unless otherwise
ordered by the court as provided by Section 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
books, documents, or other tangible things and the
identity and location of persons having knowledge
of relevant facts. (2)
SUBJECT MATTER OF DEPOSITIONS
The deponent may be examined regarding any
matter, whether relating to the claim or defense of
any other 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.
While the deponent may be examined as to any
matter, this very broad scope of examination is
subject to the following limitations:
1. The matter inquired into must not be privileged;
Section 24 of Rule 130 draws the types of
disqualification by reason of privileged
communication, to wit: (a) communication between
husband and wife; (b) communication between
attorney and client; (c) communication between
physician and patient; (d) communication between
priest and penitent; and (e) public officers and
public interest.
There are, however, other privileged matters that
are not mentioned by Rule 130. Among them are
the following: (a) editors may not be compelled to
disclose the source of published news; (b) voters
may not be compelled to disclose for whom they
voted; (c) trade secrets; (d) information contained in
tax census returns; and (d) bank deposits.
2. The matter inquired into must be relevant to the
subject matter of the pending action; and
Under Rule 128, Section 4, evidence must have such
a relation to the fact in issue as to induce belief in
its existence or non-existence. Furthermore,
evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to
establish the probability or improbability of the fact
in issue.
Thus, the deponent must be examined only with
respect to matters that constitute RELEVANT
EVIDENCE, or evidence which has a tendency in
reason to establish the probability or improbability
of the fact in issue in the case.
3. The examination is always subject to reasonable
regulation of the court under Sections 16 and 18 of
Rule 23.
While it is true that leave of court in certain
instances is not required for the purpose of taking a
deposition, depositions under Rule 23 relate to
pending actions over which the court has control.
The court is authorized to issue orders to protect
the parties and deponents under Section 16 or to
terminate or limit the examination under Section 18
of this Rule.
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. (3)
However, are there instances when the deponent is
not subjected to cross-examination at all and his
testimony is not considered hearsay?

YES.
A. Under Section 4(c), the deposition of a
witness may be used as his direct testimony. For
instance, the deponent’s testimony was taken but
he died before he was allowed to testify in court.
B. Also, under Section 4, the deposition of a
witness may be taken without and used against the
adverse party for as long as he was duly notified of
the taking of the deposition but simply ignores the
notice and fails to appear. The adverse party thus
loses the right to cross-examine. Despite lack of
cross-examination, the deposition will not constitute
hearsay and is thus admissible as the deceased
witness’ testimony.
SEC. 4. Use of depositions.—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 any one 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 any one 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,
sickness, 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)
WHEN MAY A DEPOSITION BE USED IN A PENDING
ACTION?
Any part or all of a deposition may be used:
1. At the trial itself, as when the parties are
presenting their respective evidence-in-chief;
2. Upon the hearing of a motion;
An example of this is Rule 35 on Summary
Judgment.
Section 1. Summary judgment for claimant. — A
party seeking to recover upon a claim, counterclaim,
or crossclaim or to obtain a declaratory relief may,
at any time after the pleading in answer thereto has
been served, move with supporting affidavits,
depositions or admissions for a summary judgment
in his favor upon all or any part thereof.
3. Upon the hearing of an interlocutory proceeding.
An example of this is Rule 61 on Support Pendente
Lite.
AGAINST WHOM MAY A DEPOSITION BE USED?
Any part or all of a deposition may be used against:
1.any party who was present; or
2.a party who was represented at the taking of the
deposition; or
3.a party who did not appear or represented but
was duly notified of the scheduled deposition
taking.

USES OF DEPOSITION
RULE TO REMEMBER
Note, that a deposition is never intended as an easy
substitute for actual testimony in court. The
principle therefore to remember is that the
deponent’s testimony must be repeated in court for
it to be admitted as evidence. The deponent is not
exempt from testifying in court, as a general rule. An
exception to this is when the deponent is the
adverse party under paragraph (b).
Depositions are principally made available by law to
the parties as a means of informing themselves of
all the relevant facts; they are not therefore
generally meant to be a substitute for the actual
testimony in open court of a party or witness. The
deponent must as a rule be presented for oral
examination in open court at the trial or hearing
(DASMARIÑAS GARMENTS, INC. vs. HON. RUBEN T.
REYES, G.R. No. 108229, August 24, 1993) This is a
requirement of the rules of evidence.
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
In both the taking of a deposition and the
presentation of testimonial evidence in court, the
deponent or witness is sworn to an oath to tell the
truth. Any falsehood in these occasions opens the
witness to perjury.
The deposition of an intended witness in court may
be taken in advance. In essence, the taking of his
deposition under oath preserves the testimony for
later use in trial. It is only a means of knowing what
the witness will testify about.
IMPEACHMENT
Suppose that the deponent is presented as a
witness. The parties, adverse or not, may espouse a
reasonable expectation that the deponent will
testify exactly according to how he testified when
his deposition was taken. Suppose further that the
deponent reversed his story and totally contradicted
his own deposition. Any party may then use his
deposition to contradict or impeach the testimony
of the deponent as a witness, in relation to Rule 132,
Section 11:
Note that under Rule 132, Section 11, it is the
adverse party who can impeach the witness. The
party who presented the witness has no right to
impeach his own witness, as a general rule, under
Rule 132, Section 12:
Section 12. Party may not impeach his own witness.
Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his
credibility.
Paragraphs (d) and (e) of Section 10 refer to an
unwilling or hostile witness and to a witness who is
an adverse party or an officer, director, or managing
agent of a public or private corporation or of a
partnership or association which is an adverse party,
respectively.
(b) The deposition of a party or of any one 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;
Note that paragraph (b) is similar to Rule 132,
Section 10 (e). Here the deponent is himself a party.
His deposition may be used by the adverse party for
any purpose, including impeachment. Because the
use of the deposition is not limited to impeachment,
this paragraph is an exception to the rule that the
deponent must still testify in court. Hence, any
admission made by the party-deponent in his
deposition can be used as evidence against him
without having to present him as a witness in court.
Note that, if the party-deponent makes admissions
that are favorable to him, such admissions do not
bind the adverse party. These admissions are in the
concept of SELF-SERVING ADMISSION and are
therefore inadmissible.

REQUISITES OF SELF-SERVING EVIDENCE
1)The testimony is favorable to the declarant; 2)It is
made extrajudicially; and
3)It is made in anticipation of litigation.
REASONS FOR INADMISSIBILITY
1.A man may be safely believed if he declares
against his own interest, but not if he advocates his
interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84
Phil. 342)
2.It is excluded on the same ground as any hearsay
evidence, that, the lack of opportunity for cross-
examination by the adverse party. (National
Development Co., v. Workmen's Compensation
Commission, 19 SCRA 865)
(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 absence was procured by the party
offering the deposition, or (3) that the witness is
unable to attend or testify because of age, sickness,
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
Paragraph [c] is an exception to paragraph [a].
Paragraph [a] applies only to a deposition of a
witness for contradicting or impeaching his
testimony. It is only in paragraph [b] which applies
the use of deposition for any purpose but it refers
to the deposition of the adverse party.
Paragraph [c] allows the use of the deposition of a
WITNESS for any purpose. Stated otherwise, and by
necessary implication, the instances referred to
under paragraph [c] are also exceptions to the
principle that a deponent is not exempt from
testifying in court. A deposition taken under
paragraph [c] can be used as a substitute for oral
testimony.
These situations highlightthe
importance of cross-
examination and making timely objections during
deposition -taking. If the deposition is admitted as a
substitute for oral testimony, there is no more
opportunity to cross-examine or object later during
trial. At least, when there was prior cross-
examination and objections during deposition-
taking, the admission of the deposition in place of
oral testimony will always be subject to the said
objections.
The principle conceding admissibility to a
deposition when the deponent is dead, out of the
Philippines, or otherwise unable to come to court to
testify, is consistent with another rule of evidence,
found in Section 47, Rule 132 of the Rules of Court.
SEC. 47. Testimony or deposition at a former
proceeding. — The testimony or deposition of a
witness deceased or unable to testify, given in a
former case or proceeding, judicial or
administrative, involving the same parties and
subject matter, may be given in evidence against
the adverse party who had the
opportunity to crossexamine him.
SANTAMARIA vs. CLEARY G.R. No. 197122, June 15,
2016
This case stems from a motion for court
authorization to take deposition in Los Angeles by
respondent Thomas Cleary, an American citizen and
Los Angeles resident who filed a civil suit against
petitioners Ingrid Sala Santamaria, Astrid Sala Boza,
and Kathryn Go-Perez before the Regional Trial
Court of Cebu.
Issue: Whether or not a foreigner plaintiff residing
abroad who chose to file a civil suit in the
Philippines is allowed to take deposition abroad for
his direct testimony on the ground that he is "out of
the Philippines" pursuant to Rule 23, Section 4(c)(2)
of the Rules of Court.
On January 22, 2009, Cleary moved
for court authorization to take
deposition. He prayed that his deposition be taken
before the Consulate-General of the Philippines in
Los Angeles and be used as his direct testimony.
Santamaria and Boza opposed the Motion and
argued that the right to take deposition is not
absolute. They claimed that Cleary chose the
Philippine system to file his suit, and yet he
deprived the court and the parties the opportunity
to observe his demeanor and directly propound
questions on him.
Go-Perez filed a separate Opposition,arguing that
the oral deposition was not intended for discovery
purposes if Cleary deposed himself as plaintiff. Since
he elected to file suit in the Philippines, he should
submit himself to the procedures and testify before
the Regional Trial Court of Cebu. Moreover, Go-
Perez argued that oral deposition in the United
States would prejudice, vex, and oppress her and
her co-petitioners who would need to incur costs to
attend.
RULING:
As regards the taking of depositions, Rule 23,
Section 1 is clear that the testimony of any person
may be taken by deposition upon oral examination
or written interrogatories at the instance of any
party.
San Luis explained any distinction or deposition.”
that this provision "does not make restriction as to
who can avail of
On the use of depositions taken, we refer to Rule
23, Section 4 of the Rules of Court. This Court has
held that "depositions may be used without the
deponent being actually called to the witness stand
by the proponent, under certain conditions and
for certain limited purposes.”
These exceptional cases are enumerated in Rule 23,
Section 4(c) as follows:
(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 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 absence was procured by the party
offering the deposition; or (3) that the witness is
unable to attend or testify because of age, sickness,
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[.]
The difference between the taking of depositions
and the use of depositions taken is apparent in Rule
23, which provides separate sections to govern
them. Jurisprudence has also discussed the
importance of this distinction and its implications:
The availability of the proposed deponent to testify
in court does not constitute "good cause" to justify
the court’s order that his deposition shall not be
taken. That the witness is unable to attend or testify
is one of the grounds when the deposition of a
witness may be used in court during the trial. But
the same reason cannot be successfully invoked to
prohibit the taking of his deposition.
The right to take statements and the right to use
them in court have been kept entirely distinct. The
utmost freedom is allowed in taking depositions;
restrictions are imposed upon their use. As a result,
there is accorded the widest possible opportunity
for knowledge by both parties of all the facts before
the trial. Such of this testimony as may be
appropriate for use as a substitute for viva voce
examination may be introduced at the trial; the
remainder of the testimony, having served its
purpose in revealing the facts to the parties before
trial, drops out of the judicial picture.

. . . [U]nder the concept adopted by the new Rules,
the deposition serves the double function of a
method of discovery —with use on trial not
necessarily contemplated — and a method of
presenting testimony. Accordingly, no limitations
other than relevancy and privilege have been placed
on the taking of depositions, while the use at the
trial is subject to circumscriptions looking toward
the use of oral testimony wherever practicable.
(Emphasis supplied)
The rules and jurisprudence support greater leeway
in allowing the parties and their witnesses to be
deposed in the interest of collecting information for
the speedy and complete disposition of cases.
In light of the general philosophy of full discovery of
relevant facts and the board statement of scope in
Rule 24, and in view of the power of the court under
Sections 16 and 18 of said Rule to control the
details of time, place, scope, and financing for the
protection of the deponents and parties, it is fairly
rare that it will be ordered that a deposition should
not be taken at all. All motions under these
subparagraphs of the rule must be supported by
"good cause" and a strong showing is required
before a party will be denied entirely the right to
take a deposition. A mere allegation, without proof,
that the deposition is being taken in bad faith is not
a sufficient ground for such an order. Neither is an
allegation that it will subject the party to a penalty
or forfeiture. The mere fact that the information
sought by deposition has already been obtained
through a bill of particulars, interrogatories, or other
depositions will not suffice, although if it is entirely
repetitious a deposition may be forbidden. The
allegation that the deponent knows nothing about
the matters involved does not justify prohibiting the
taking of a deposition, nor that whatever the
witness knows is protected by the "work product
doctrine," nor that privileged information or trade
secrets will be sought in the course of the
examination, nor that all the transactions were
either conducted or confirmed in writing.
Paragraph 9.02 of the Agreement is clear that the
parties "waive any other preferential jurisdiction by
reason of domicile.” If respondent filed the suit in
the United States—which he had the option to do
under the Agreement—this would have been even
more costly, time-consuming, and disadvantageous
to petitioners who are all Filipinos residing in the
Philippines. There is no question that respondent
can file the case before our courts. With respondent
having elected to file suit in Cebu, the bone of
contention now is on whether he can have his
deposition taken in the United States. The trial court
ruled that respondent should consequently submit
himself to the processes and procedures under the
Rules of Court.
Respondent did avail himself of the processes and
procedures under the Rules of Court when he filed
his Motion. He invoked Rule 23, Section 4(c)(2) of
the Rules of Court and requested to have his
deposition taken in Los Angeles as he was "out of
the Philippines."
Moreover, Rule 23, Section 1 of the Rules of Court
no longer requires leave of court for the taking of
deposition after an answer has been served.
According to respondent, he only sought a court
order when the Department of Foreign Affairs
required one so that the deposition may be taken
before the Philippine Embassy or Consulate.
That neither the presiding judge nor the parties will
be able to personally examine and observe the
conduct of a deponent does not justify denial of the
right to take deposition. This objection is common
to all depositions.Allowing this reason will render
nugatory the provisions in the Rules of Court that
allow the taking of depositions.
As suggested by the Court of Appeals, the parties
may also well agree to take deposition
by written interrogatories to afford
petitioners the opportunity to cross-examine
without the need to fly to the United States.
That respondent is "not suffering from any
impairment, physical or otherwise" does not address
the ground raised by respondent in his Motion.
Respondent referred to Rule 23, Section 4(c)(2) of
the Rules of Court, in that he was "out of the
Philippines.” This Section does not qualify as to the
condition of the deponent who is outside the
Philippines.
Petitioners rely on Northwest in that absent any
compelling or valid reason, the witness must
personally testify in open court. They add that the
more recent Republic v. Sandiganbayan reiterated
the rulings in Northwest; specifically, that Northwest
emphasized that the "court should always see to it
that the safeguards for the protection of the parties
and deponents are firmly maintained.” Moreover,
"[w]here the deposition is taken not for discovery
purposes, but to accommodate the deponent, then
the deposition should be rejected in evidence.”
Northwest and Republic are not on all fours with
this case.
Northwest involved a deposition in New York found
to have been irregularly taken. The deposition took
place on July 24, 1995, two (2) days before the trial
court issued the order allowing deposition. The
Consul that swore in the witness and the
stenographer was different from the Consulate
Officer who undertook the deposition proceedings.
In this case, on the other hand, deposition taking
was not allowed by the trial court to begin with.
In Northwest, respondent Camille Cruz’s opposition
to the notice for oral deposition
included a suggestion for
written interrogatories as an
alternative.This would have allowed cross-
interrogatories, which would afford her the
opportunity to rebut matters raised in the
deposition in case she had contentions. However,
this suggestion was denied by the trial court for
being time-consuming. In this case, petitioners
argued even against written interrogatories for
being a mile of difference from open-court
testimony.
In Republic, the issue involved Rule 23, Section 4(c)
(3) of the Rules of Court in relation to Rule 130,
Section 47 on testimonies and depositions at a
former proceeding. The deposition of Maurice Bane
was taken in London for one case, and what the
court disallowed was its use in another case.
In sum, Rule 23, Section 1 of the Rules of Court
gives utmost freedom in the taking of depositions.
Section 16 on protection orders, which include an
order that deposition not be taken, may only be
issued after notice and for good
cause shown. However, petitioners’
arguments in support of the trial court’s Order
denying the taking of deposition fails to convince as
good cause shown.
The civil suit was filed pursuant to an agreement
that gave respondent the option of filing the case
before our courts or the courts of California. It
would have been even more costly, time-
consuming, and disadvantageous to
petitioners had respondent filed the case in the
United States.
In any case, Rule 23 of the Rules of Court still allows
for objections to admissibility during trial. The
difference between admissibility of evidence and
weight of evidence has long been laid down in
jurisprudence. These two are not to be equated.
Admissibility considers factors such as competence
and relevance of submitted evidence. On the other
hand, weight is concerned with the persuasive
tendency of admitted evidence.
COMPARATIVE TABLE REGARDING USES OF
DEPOSITIONS
PARAGRAPH A
The deponent is any witness, whether a party or not.
PARAGRAPH B
The deponent is a party or an officer of a party.
PARAGRAPH C
The deponent is any witness, whether a party or not,
who is dead, not bound by a subpoena,
incapacitated by age, sick,infirm, or
imprisoned, or unable to attend despite being
subpoenaed.
The deposition may be used by ANY PARTY for any
purpose, but logically excluding
impeachment as the witness cannot testify in
court.
A deposition taken under paragraph
[c] can be used as a substitute for oral testimony.
Deponent
Use of Deposition The deposition may be used by
ANY PARTY to impeach the testimony of the
deponent as a witness. The deposition may be
used by AN ADVERSE PARTY for any purpose, incl.
impeachment.
Need for Testimony in Court The deponent
must be subsequently presented as a witness in
court to serve the purpose of impeachment. The
deponent need not be presented so that any
admission contained in the deposition may be used
against him. Any admission embodied in the
deposition is
evidence per se.
(d) If only part of a deposition is offered in evidence
by a party, the adverse party may require him to
introduce all of it which is relevant to the part
introduced, and any party may introduce any other
parts.
Paragraph [d] simply means that no party may limit
the full use of a deposition simply because only
some part of it is favorable to him. The rule allows
the following remedies available to the adverse
party:
1. To require the proponent to introduce all of the
deposition relevant to the part introduced;
2. To introduce any other parts himself.
SEC. 5. Effect of substitution of parties.—
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. (5)
IMMUTABILITY OF DEPOSITIONS
Section 5 provides in substance that a deposition,
once lawfully taken, is immutable, for lack of a
better term. A deposition may thus be used
notwithstanding:
1. The substitution of parties;
2. The dismissal of the action and the subsequent
filing of another action involving the same subject
between the same parties or their representatives or
successors in interest.
Hence, all depositions lawfully taken and duly filed
in the former action may be used in the latter as if
originally taken therefor.
SEC. 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)
SEC. 7. Effect of taking depositions.—A party shall
not be deemed to make a person his or her own
witness for any purpose by taking his or her
deposition. (7a)
NO ESTOPPEL
A party cannot be estopped by resorting to
depositions as a mode of discovery. Since it is
precisely a mode of discovery, a party who discovers
nothing useful or favorable, through the deposition
of a person, is not bound to present the said
deponent as a witness. Had the rule been otherwise,
the law will in effect penalize resort to the modes of
discovery.
Take note, however, that there is no prohibition on
the part of the adverse party to use the deposition
against the party who applied for its taking or to
make the deponent his witness.
SEC. 8. Effect of using depositions.—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 Section 4 of this Rule. (8)
USE, NOT TAKING, OF DEPOSITION MAKES A
DEPONENT A PARTY’S WITNESS
Simply taking a person’s deposition does not make
him the party’s witness. However, once the
deposition is offered in court, the deponent
becomes the party or proponent’s witness.
By way of exception, offering a deposition still does
not make the deponent a party’s witness:
1. When the deposition is offered to contradict or
the deponent as witness;
2. When the deposition of the adverse party is
offered.
impeach
the one
FORTUNE CORPORATION vs. COURT OF APPEALS
G.R. No. 108119, January 19, 1994
The right to take statements and the right to use
them in court have been kept entirely distinct. The
utmost freedom is allowed in taking depositions;
restrictions are imposed upon their use. As a result,
there is accorded the widest possible opportunity
for knowledge by both parties of all the facts before
the trial. Such of this testimony as may be
appropriate for use as a substitute for viva voce
examination may be introduced at the trial; the
remainder of the testimony, having served its
purpose in revealing the facts to the parties before
trial, drops out of the judicial picture.
Under the concept adopted by the new Rules, the
deposition serves the double function of a method
of discovery with use on trial not necessarily
contemplated and a method of presenting
testimony. Accordingly, no limitations other than
relevancy and privilege have been placed on the
taking of depositions, while the use at the trial is
subject to circumscriptions looking toward the use
of oral testimony wherever practicable.
SEC. 9. Rebutting deposition.—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. (9a)
SEC. 10. Persons before whom depositions may be
taken within the Philippines.— Within the
Philippines, depositions must be taken before any
judge, or person referred to in Section 14 hereof.
(10)
BEFORE WHOM TAKEN (DEPOSITIONS PENDING
ACTION)
WITHIN THE PHILIPPINES
Within the Philippines, a deposition need not be
taken before a judge, although it may be taken
before one. It may also be taken before a notary
public (Sec. 10, Rule 23, Rules of Court) or before
any person authorized to administer oaths if the
parties so stipulate in writing (Sec. 14, Rule 23, Rules
of Court). Examples of other persons authorized to
administer oaths can be found in the Revised
Administrative Code of 1987, as follows:
Sec. 41. Officers Authorized to Administer Oath. —
The following officers have general authority to
administer oaths: President; VicePresident; Members
and Secretaries of both Houses of the Congress;
Members of the Judiciary; Secretaries of
Departments; provincial governors and lieutenant-
governors; city mayors; municipal mayors; bureau
directors; regional directors; clerks of courts;
registrars of deeds; other civilian officers in the
public service of the government of the Philippines
whose appointments are vested in the President
and are subject to confirmation by the Commission
on Appointments; all other constitutional officers;
and notaries public."
SEC. 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. (11)
BEFORE WHOM TAKEN (DEPOSITIONS PENDING
ACTION) OUTSIDE THE PHILIPPINES
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) (b) such person or officer as may be appointed
by commission or letters rogatory; or (c) a person
authorized to administer oaths by written
stipulation of the parties.
SEC. 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
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. (12)
DISTINCTIONS BETWEEN LETTERS ROGATORY AND
COMMISSIONS
DULAY vs. DULAY
G.R. No. 158857, November 11, 2005
FACTS: In a complaint for recovery of his bank
deposit with prayer for a writ of attachment and
damages, Rodrigo S. Dulay, a naturalized American
citizen, alleged that upon his petition sometime in
October of 1996, his brother Godofredo S. Dulay, Sr.
and nephew Pfeger R. Dulay immigrated to the
United States of America. Having nurtured affection,
love and trust for his nephew Pfeger, Rodrigo
opened a trust account with the Bank of Boston on
27 January 1997 with a deposit of Two Hundred
Thirty Thousand U.S. Dollars ($230,000.00), naming
Pfeger as trustee thereof. Pfeger emptied the
account. Rodrigo filed a petition for the issuance of
letters rogatory in order to get the depositions of
several witnesses residing abroad through the Clerk
of Court of Boston, Ma., USA. Petitioners, on the
other hand, moved to be allowed to file cross-
examination questions to respondent’s written
interrogatories, which the trial court granted.
Meanwhile, petitioners filed a motion to dismiss the
complaint on the ground of failure to prosecute.
This was however denied by the trial court, which
instead allowed Rodrigo to complete his
depositions. As it turned out, however, the
depositions could not be taken before the Clerk of
Court of Massachusetts, but were taken instead
before a notary public in New York.
On 2 February 2000, Rodrigo submitted to the trial
court his answers to the interrogatories and cross
interrogatories of petitioners given before a notary
public in the United States. Thereafter, petitioners
filed their Motion Reiterating Motion to Dismiss
Dated July 10, 2000, which the trial court denied in
its 28 September 2000 Order. In the same Order, the
trial court directed respondent to have the written
and cross interrogatories taken by the notary public
authenticated by the consulate. Thus, respondent
filed a motion to withdraw the answers so that he
could have them authenticated by a Philippine
consul in the United States.
On 10 January 2001, petitioners filed an Omnibus
Motion, praying that the written interrogatories be
declared inadmissible and reiterating their prayer
for the dismissal of the complaint. The lower court
denied the motion on 20 February 2001, at the
same time directing the archival of the case while
waiting for the documents from the United States.
According to the trial court, the dismissal of the
case is improper considering that Rodrigo had
already commenced presenting his evidence and
that it is mandated to hear the evidence on the
counterclaims of the petitioners. Anent the
objection to the admission of the answers to the
written interrogatories, the trial court stated that the
deposition taken before the Notary Public from
New York, whose authority was duly certified by the
Philippine Consul in New York, substantially
complied with the Rules of Court.
While the letters rogatory issued by the trial court
specifically directed the Clerk of Court of Boston to
take the depositions needed in the case, it became
impossible to follow the directive since the Clerk of
Court of Boston merely brushed it aside and refused
to cooperate. Respondent cannot be faulted for the
resultant delay brought about by this circumstance.
Neither can the trial court be faulted for allowing
the admission of the depositions taken not in strict
adherence to its original directive, nor for directing
the petitioner to have the depositions
authenticated. It was not within the trial court’s
power, much less the respondent’s to force the
Clerk of Court of Boston to have the deposition
taken before it. 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.
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. Indeed,
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.
More importantly, the Court finds that
respondent substantially complied with the
requirements for depositions taken in foreign
countries.
In our jurisdiction, depositions in foreign countries
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) before any person authorized to
administer oaths as stipulated in writing by the
parties. While letters rogatory are
requests to foreign tribunals,
commissions are directives to officials of the issuing
jurisdiction.
If the deposition is to be taken in a foreign country
where the Philippines has no secretary of embassy
or legation, consul general, consul, vice-consul or
consular agent, it may be taken only before such
person or officer as may be appointed by
commission or under letters rogatory.
In the instant case, the authentication made by the
consul was a ratification of the authority of the
notary public who took the questioned depositions.
The deposition was, in effect, obtained through a
commission, and no longer through letters rogatory.
It must be noted that this move was even
sanctioned by the trial court by virtue of its Order
dated 28 September 2000. With the ratification of
the depositions in issue, there is no more
impediment to their admissibility.
Besides, the allowance of the deposition can not be
said to have caused any prejudice to the adverse
party. They were given the opportunity to cross-
examine the witnesses through their cross-
interrogatories, which were in turn answered by the
deponents. Save for the complaint of delay in the
proceedings, petitioners were unable to point out
any injury they suffered as a result of the trial court’s
action.
The ends of justice are reached not only through
the speedy disposal of cases, but more importantly,
through a meticulous and comprehensive
evaluation of the merits of the case. The parties’
right to be given full opportunity to ventilate their
cases should not be hindered by a strict adherence
to technicalities. After all, as this Court has so often
enunciated, rules of procedure are not inflexible
tools designed to hinder or delay, but to facilitate
and promote the administration of justice. A strict
and rigid application of rules, resulting in
technicalities that tend to frustrate rather than
promote substantial justice, must be avoided.
DASMARIÑAS GARMENTS, INC. vs. HON. RUBEN T.
REYES G.R. No. 108229, August 24, 1993
A commission may be defined as "(a)n 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" (Feria, J., Civil Procedure, 1969 ed., p. 415,
citing Cyclopedic Law Dictionary, p. 200). Letters
rogatory, on the other hand, may be defined as
"(a)n instrument sent in the name and by the
authority of a judge or court to another, requesting
the latter to cause to be examined, upon
interrogatories filed in a cause pending before the
former, a witness who is within the jurisdiction of
the judge or court to whom such letters are
addressed" (Feria, J., op. cit., citing Cyclopedic Law
Dictionary, p. 653). Section 12, Rule 24 just quoted
states that a commission is addressed to
"officers . . . designated . . . either by name or
descriptive title," while letters rogatory are
addressed to some "appropriate judicial authority in
the foreign state." Noteworthy in this connection is
the indication in the Rules that letters rogatory may
be applied for and issued only after a commission
has been "returned unexecuted" as is apparent 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.:
xxx xxx xxx
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 returnedunexecuted 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).
CAN DEPOSITION TAKING UNDER SECTION 12
TAKE PLACE IN A COUNTRY NOT RECOGNIZED BY
THE PHILIPPINES?
DASMARIÑAS GARMENTS, INC. vs. HON. RUBEN T.
REYES G.R. No. 108229, August 24, 1993
Petitioner would however prevent the carrying out
of the commission on various grounds. The first is
that the depositiontaking will take place in "a
foreign jurisdiction not recognized by the
Philippines in view of its 'oneChina policy.'" This is
inconsequential. What matters is that the deposition
is taken before a Philippine official acting by
authority of the Philippine Department of Foreign
Affairs and in virtue of a commission duly issued by
the Philippine Court in which the action is pending,
and in accordance, moreover, with the provisions of
the Philippine Rules of Court pursuant to which
opportunity for cross examination of the deponent
will be fully accorded to the adverse party.
SEC. 13. Disqualification by
interest.—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. (13)
SEC. 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. (14)
SEC. 15. Deposition upon oral examination; notice;
time and place.—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 at 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. (15a)
SEC. 16. Orders for the protection of parties and
deponents.— 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;
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. That secret
processes, developments, or research need not be
disclosed;
8. That the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court;

c) That the deposition may be taken only on written The court may make any other order which justice
interrogatories; requires to protect the party or witness from
annoyance, embarrassment, or oppression.

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.

The court may make any other order which justice

requires to protect the party or witness from
annoyance, embarrassment, or oppression. (16a)

PROTECTIVE ORDERS

What orders may court issue for the protection of

parties and deponents? 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:

1. That the deposition shall not be taken;

2. That it may be taken only at some designated
place other than that stated in the notice;