Rule 23-29: Modes of Discovery

● Take note, Rule 29 is not a mode of discovery but refers to the consequences of non-
compliance. Therefore, the modes of discovery, strictly, are covered by Rule 23 down to
Rule 28.

Rule 23: Depositions Pending Action

● 70% of the Modes of Discovery is knowledge of Rule 23.
● Outline of Rule 23:
○ Sections 1-14: General Provisions—things you have to know whether it be oral
depositions or written interrogatories.
○ Section 15-24: Oral Depositions.
○ Section 25-28: Written Interrogatories
○ Section 29: Errors, Irregularities, Consequences
● [The motion/notice rule is found only the 1997 Rules] Manner of application: file a
motion to take deposition after the court acquires jurisdiction and before the filing of an
answer. After the filing of an answer, you will have to file a notice to take deposition.

Jurisprudence: Rosete v. Lim , June 8, 2006, G.R. No. 136051

A party made an issue out of the answer that was filed—answer ex abudanti ad cautelam (an
answer filed by reason of abundant caution, i.e. to prevent being declared in default).
● Answer ex abundanti ad cautelam: If you file an MTD and its denied, the tendency of
the party is to go up on certiorari, and during that time, the reglementary period
continues to run, and without a TRO/Writ of Preliminary Injunction, you could be
declared in default. So this is what parties would do in the past: this means that he is
not surrendering/rendering moot his petition for certiorari.
Ultimately, the court said that regardless of what you call it, as long as it is an answer, an
answer has been filed. Thus, a notice to take deposition is proper.

● Rule 23: Deposition Pending Action: Applies if the case is alive. This is different from
deposition pending appeal, in which case it is still pending, but if there is already a
judgement and a pending appeal, you apply Rule 24 instead of Rule 23. That’s the only
instance. But, Rule 23 covers all of the other instances where the action is pending.
● Rule 23 could apply to a party or to a non-party, who would be a witness in the case.
● Rule 25, which discusses interrogatories to parties, has a very narrow application, as it
allows only written interrogatories upon the adverse party, or to a party in general. Again,
Rule 23 can apply to anyone.
● What are the two kinds of deposition under Rule 23?:
 ○ Oral Deposition (The whole proceeding is oral)
○ Written Interrogatories
● Process for Oral Depositions:
○ [Transcriber’s note: The motion/notice rule is based on the 1997 Rules of
Civil Procedure. The amendments are discussed later, specifically, ex parte
motion.] Prepare the motion or a notice (note: in a motion there is a prayer, in a
notice there’s no prayer). You will identify the person whose deposition is to be
taken, the place where the deposition is to be taken, the officer who will take the
deposition, the time, and the place. You need a little background or a statement as
to why the deposition has to be taken.
■ There is another Section (2) that says any matter could be subject of the
deposition, as long as it is relevant and not privileged or excluded.
○ This will be served upon the other party, and the person whose deposition is to be
taken.
○ Once a party avails of this mode of discovery, the court has a duty to avail of a
subpoena. If it is the court before whom the deposition is to be taken, the court
can issue a subpoena pursuant to Rule 21, Section 5.
○ On the date of the taking of the deposition, the deponent should be present, and
here, in an oral deposition, the deponent will be asked direct examination
questions by the person who applied for the deposition.
■ This is just like on a regular presentation of witnesses, except not as
formal.
○ After which, the other party may conduct his cross-deposition on the deponent.
○ Then, a re-direct, then a re-cross. Then it is complete.
○ Note that all of this, the entire process, will have to be recorded. This is covered
by Section 17, 19, 20, 21. It’s not as simple as just appearing and asking
questions.
○ The deposition is under the control and direction of the deposition officer.
○ The deposition officer can, by himself, record the proceedings, or have someone
else record the proceedings. Ideally, you have a stenographer or someone else
who takes note of all the questions and answers so that it will be a faithful
reproduction of what truly happened during the taking of the deposition.
○ The deposition shall be presented by the deposition officer before the deponent,
who will examine it as transcribed by the deposition officer/stenographer. The
deponent, if everything appears to be in order, will have to affix his signature, an
indication that he has read everything and that it is accurate.
○ Assuming that the deponent signs, then there is no problem.
○ There is a certification at the bottom to be signed by the deposition officer, that he
attests to the voluntariness of the conduct of the deposition.
○ This will then be placed in a sealed envelope, on the dorsal portion of which, it
will say, ‘Deposition of Juan De La Cruz,” indicating the court where it will be
submitted. And it will be submitted. The envelope cannot be open, it should be
sealed, and the deposition must be folded and placed inside.