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2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
Rule 23
DEPOSITIONS PENDING ACTION
We are now in Modes of Discovery. This is one of the hardest portions of Civil Procedure. I have to admit
even some lawyers and judges have a difficult time in comprehending Modes of Discovery.
A civil case is not a case of technicalities. The rules do not want surprises in civil cases. You lay your cards on
the table. You do not keep your opponent searching in the dark and that principle is manifested in so many rules.
Example, when a defendant resorts to a specific denial, he is obliged not only to deny the allegations in the
complaint but also the facts that is denied. It is not fair to state that my version is false, without stating your
version. And if you do not make specific denial, there is a general denial, an implied admission.
You cannot also deliberately confuse the defendant by making ambiguous ultimate facts in the complaint to
confuse him. He has the right to clarify the allegation by motion for bill of particulars.
There is also the rule that objections or defenses not pleaded in the motion to dismiss or in an answer are
generally waived. So, if you do not invoke the defense because you want to surprise the plaintiff, you will be the
one who will be surprised because the courts will not allow you. There is no such thing as surprise defense
because under Rule 9, defenses not raised are deemed waived. These provisions of the rules indicate the principle:
LAY YOUR CARDS ON THE TABLE.
BUT there is still an element of surprise whether you like it or not because Im obliged to state my cause of
action or defense but Im not obliged to state the facts supporting that defense because the rules even say,
evidentiary matters should not be alleged in the pleading but is only proved in the trial.
So, if I say I am in possession of a particular property for 30 years, you know very well what I intend to prove
but you do not know how I will prove it the kind of evidence I will present you know the factum probandum
but you do but you do not know the factum probans. You do not know what documents I will present in court
because I am not obliged to plead document which is not actionable one. You do not know who are my witnesses,
you do not know they will testify.
A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that sense there is still an
element of surprise you do not know my evidence until the trial or pre-trial.
Q: But if you want to avoid any surprise, is there a way of knowing then?
A: YES. The correct remedy is to apply the modes of discovery. While the modes of discovery is not so
popular among the Filipino lawyers, in America these modes of discovery are popular among lawyers because if
they see that the evidence is strong, they settle the case even before trial. Modes of discovery are not only allowed
but their use is encouraged.
BAR QUESTION: How do you distinguished Bill of Particulars from Modes of Discovery?
A: Bill of Particulars is Rule 12, when you compel the party to clarify vague statements of ultimate facts, but
it is not an instrument to compel the other party to reveal evidentiary facts. The Modes of Discovery are intended
to compel the other party to reveal his evidence and evidentiary facts.
1. DEPOSITIONS (a) pending action (Rule 23) and (b) before action or pending appeal (Rule 24);
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27); and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)
These are devises in the Rules of Court which are intended to compel the other party to reveal his evidences
before the trial. You cannot compel a party to reveal his evidence by a Bill of Particulars because Bill of
Particulars is only intended to clarify vague statements of ultimate facts but evidentiary facts cannot be compelled
so the remedy are Modes of Discovery.
Lakas Atenista 1
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
This is another neglected area of the Rules of Civil Procedure where lawyers do not seem to know how to use
the Modes of Discovery, just like the pre-trial, ba. So, long before the trial, I can compel your witnesses to reveal
their testimony under oath through Modes of Discovery. So that during the trial, I would not be surprised anymore
because meron na akong copy of your testimony which is also under oath. And if you have some documents to
present which you are hiding because they are not actionable, puwede man kitang pilitin ba, by applying Rule 27.
So with this, there are no more surprises.
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.
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.
When I take the deposition of somebody, my opponent has the right to cross-examine the same witness. So
practically, its 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:
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.
Lakas Atenista 2
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
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.
EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his witnesses? Yes, including Mr.
As 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. Thats 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.
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.
Lakas Atenista 3
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
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:
x x x x x
b) the court of the place where the deposition is to be taken;
x x x x x
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.
Generally, depositions are taken at the start of the case before the trial. But in the case of
ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can
you still resort to deposition under Rule 23 when the trial is already ongoing or it is only at the
pre-trial?
HELD: 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 pre-trial or
before it; no prohibition against the taking of depositions after pre-trial. 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
and EVEN during the process of execution of a final and executory judgment.
Meaning, deposition taking is even allowed as part of the execution where the trial is already terminated. This
is called with another name in Rule 39 on execution, satisfaction or effects of judgments. (c.f. Rule 39, Sections
36, 37 and 38)
Lakas Atenista 4
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
Q: When you take the deposition of a deponent what can you ask? What matters may be inquired into?
A: The law says, the deponent may be examined regarding any matter whether related to the claim or
defense of any other party.
Example: Suppose if there is a case between me and somebody and I suspect Pedro knows
something about the facts but I am not sure, so I will take his deposition. I will start asking questions to Pedro
wherein practically Im groping in the dark. I just start asking questions left and right hoping that, I may stumble
into something about the case.
1.) The matter inquired into is not privileged either under the rules on evidence or special law;
2.) The matter inquired into is relevant to the subject of the pending action;
3.) The court may issue orders to protect the parties and its deponents under Sections 16 or 18.
There are things which you cannot compel a person to reveal in court. EXAMPLE: You cannot compel the
wife to reveal in court what her husband told her in confidence during their marriage. That is known as the marital
privileged communication rule (Rule 130, Section 24 [a]).
Other privileged communications: Lawyer-Client communication rule (Rule 130, Section 24 [b]); Physician-
Patient communication rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule (Rule 130, Section 24
[d]). Or, business trade secrets such as the formula of your product.
So, if you cannot ask that in a trial, you cannot also ask that in a deposition taking.
SECOND LIMITATION: The matter inquired into is relevant to the pending action.
While deposition taking authorizes a fishing expedition, you are not allowed however, to go beyond the topic.
EXAMPLE: You will ask the witness about an incident which happened and she was supposed to be there.
Where were you on this date? I was there. Who was with you? I was with my boyfriend. When did he
become your boyfriend? or How often do you date each other? or Whats his favorite color? Malaki ba ang
tiyan niya? My golly! Those questions are irrelevant. Anong pakialam niyan sa topic? Walang connection ba!
THIRD LIMITATION: The court may issue orders to protect the parties and
its deponents under Sections 14 or 18 of this Rule.
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a
pending case and the court has control over the case. That is why, while leave of court is not necessary, any party
who is aggrieved can go to court and complain. And the court is authorized to issue orders to protect the parties
and its deponents under Sections 16 or 18 of this Rule.
Lakas Atenista 5
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
judgment to demonstrate that the party has no cause of action. In that sense, I will support my motions with
affidavit, depositions or documents.
USE OF DEPOSITIONS
x x x x x
So, the procedure for deposition taking is first, to notify the other party of the date, place and time of the
deposition taking of a person. The other party is free to go there and participate. So if person appeared and
participated, he is bound by the deposition. If he fails to appear but sent a representative, the same effect the
person is bound. Suppose a person received the notice and never bothered to go or participate, he is still bound
because the law says, for as long as you are notified, you are bound.
So whether you will come or not, you are bound by the deposition taking. In this case, you might as well
show up.
This is one area of procedure in which clients do not understand. Sometimes you will received a notice from
the opposing counsel that he is going to take the deposition of your client and witnesses. The client usually will
oppose because they thought that the only time you are going to tell the story is in court and not in the office of
Atty. Hong Hunk. The lawyer has a hard time explaining deposition taking to the client because the laymen
usually does not know this. They do not know that the other party could compel you under the law.
The process of deposition is so hard to explain to the laymen. He does not understand why the witnesses can
be compelled to testify long before the trial, not inside the courtroom but in somebodys place and everything is
recorded and under oath. The tendency is, samok kaayo ang imong client. Tell him, Do not ask questions
anymore, just believe me.
(a) Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of deponent as a witness;
EXAMPLE: I will take the deposition of Mr. Malaki as a possible witness. After listening to his testimony, his
testimony is in my favor. I tell the court during trial that my next witness is Mr. Malaki but since he is busy and
his deposition is taken beforehand, I will no longer present him but instead I will present as evidence his
deposition to take the place of his oral testimony in court.
When you take the deposition of a witness, you are already assured that this will be his story. If I asked you
the same question in court, naturally he will have the same answer. So there are no more surprises. If I am asking
a question identical to my deposition, I expect the answer to be identical during the trial.
Q: Suppose the witness during the trial will reverse his testimony. His testimony in the deposition is favorable
to me but during the trial, pabor naman sa kalaban.
A: I can now use his deposition to destroy him. I will impeach him by showing that the witness is not
reliable. To IMPEACH the testimony of a witness is to destroy his credibility. I will offer in evidence the
deposition for impeachment purposes. This is known as PRIOR INCONSISTENT STATEMENT under the rules on
evidence. They cannot change story during the trial because I can impeach them.
Therefore, a deposition is not a substitute for the testimony of the witness in court. You still have to present
him in court. He has to testify all over again but at least you already have a guideline. So, if he deviates from the
deposition, you can impeach him using the deposition taken under oath earlier.
(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;
1.) In paragraph [a], it is the deposition of a WITNESS and not a party, while
In paragraph [b], it is the deposition of the PARTY himself.
2.) In paragraph [a], the deposition of witness can be used only for contradicting or impeaching the
testimony of deponent as a witness, while
In paragraph [b], the deposition of a party can be used for any purpose. So it is broader than the first.
ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party) and I have already a
record of his testimony. During the trial if he testifies contrary to the deposition, I could use it to impeach him.
But suppose the deposition is in my favor, I could present the deposition as an admission in my favor. I could use
it as evidence against my opponent. Therefore, I can use it as evidence or I can use it as a tool to impeach or
contradict the other party.
In other words, the deposition of a mere WITNESS is for strict purpose (for impeachment only) and the
deposition of an ADVERSE PARTY is for any purposes because I can use it to impeach or I can use it as
evidence. And if a witness say something in my favor, I cannot use it as evidence. I have to ask the witness to
repeat his statement in court. But if it is a party, I can use it as evidence already under the rule on admission of
evidence that the act or declaration of a PARTY maybe used as evidence against him (Rule 130, Section 26). So,
that is the difference between deposition of a party and a witness.
(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
Lakas Atenista 7
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
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.
Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose.
DEATH
Q: I will take the deposition of Juan who is my witness. During the trial, my next witness is Juan. Do I have
to present Juan or only his testimony in the deposition as evidence?
A: I have to present my witness Juan because under paragraph [a], the deposition is only good for
impeachment purposes but not a replacement for his oral testimony.
Q: Suppose, when Im about to present Juan during the trial, a day before that he died. So, I have no more
witness. Can I now present his testimony in the deposition as evidence?
A: YES. Under the law, his deposition will take the place of his oral testimony because he is dead. However,
if he is alive, apply paragraph [a] you cannot substitute his deposition to his oral testimony.
Now, it is true that when you take the deposition of your own witness, you are supplying the other party a
means to impeach the testimony of your witness. But if you look at paragraph [c], it is also important to take the
deposition of your witnesses. The purpose is just in case your witness will die before he can testify in court. At
least, kung nakuha mo na ang deposition niya earlier, masuwerte ka.
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
EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel him to come to Davao
and testify in a case because of the 100-kilometer rule. The remedy is to go to Cebu and take his deposition there.
When the case in Davao is called, I will tell the court that my next witness is from Cebu and the distance from
Davao is more than 100 kilometers. So I have no choice but to take his deposition there. In this case, I can offer
as evidence his deposition to take the place of his oral testimony. And that is allowed as exception to paragraph
[a].
And if your witness is leaving for abroad, you might as well take the deposition before it is too late, or you
might end up without any witness. That is the advantage of paragraph [c].
So, if I am unable to procure the attendance of my witness by subpoena means that the witness can no longer
be found. His whereabouts is already unknown but I was able to take his deposition earlier.
ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part is in my favor but
when he was cross-examined by the other party, he clarified his answers and turned out that his original answers
were not really in my favor.
So there are two parts of the deposition: PART ONE, in the general questions, the answers seem to be in my
favor; PART TWO, when the questions are specific, it turned out that it was not in my favor. So if I am the
lawyer what I will offer is the part one as my evidence because it is in favor of my client. The other party will
present the other part.
In evidence, the party is not obliged to offer in evidence documents which are against his cause. It is now the
job of the other lawyer to offer the other part thereof (c.f. Section 17, Rule 132). So if this is so, the picture
created will only be half of the whole picture.
Lakas Atenista 8
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and there was
substitution. Is there a need of taking depositions again? Will the deposition already taken be also applicable to
the same case although the parties are now different?
A: YES. The substitution of parties does not affect the right to use depositions previously taken.
Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without prejudice.
Jolina re-filed the case. Is it necessary for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no need
of repeating the whole process.
Q: Can you object to the evidence which is being offered during the deposition taking?
A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will rule
on the objection later during the trial.
We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows nothing,
then he is useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa appendix ng
tao!] You are not my witness.
If after taking your deposition, it turns out that everything you say is against me, am I bound by your
testimony? NO. In fact, it is the other party who will use you as his witness. But definitely, you are not my
witness.
GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer
your deposition in court, you are now my witness, especially if your are dead or when you are residing more than
100 kilometers.
Lakas Atenista 9
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness.
1.) When I am offering your deposition to contradict or impeach you. So, when I am offering your
deposition to show the court that you are a liar, I am not making you as my witness;
2.) When you offer the deposition of your opponent (adverse party), you are not making him your
witness. That is obvious. Napaka-istupido mo naman! Take note that anything that your opponent
says in the deposition in favor of you will bind you. But if it is not in your favor, it will not bind you
precisely because he is not your witness he is not expected to say something in your favor.
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 by
any other party. (9, R24)
It is just like a witness in court. If a witness says something in court, you can always prove that that is not
true. If it is a deposition, the same thing you can always rebut the truth of what he said in his deposition.
If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer?
Section 10:
Sec. 10. Persons before whom depositions may be taken within the
Philippines. Within the Philippines, depositions may be taken before any judge,
notary public, or the person referred to in section 14 hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are taken?
A: The following:
1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a judge in
Manila to be the deposition officer and he will not be the one to decide. He is only the deposition officer;
2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all
lawyers are notary public. To be a notary public, you have to apply for commission in the court of the
place where you are practicing. If you are a notary public for Davao City, you cannot be a notary public in
any other place. And usually, a commission for notary public is only good for 2 years. After 2 years, you
have to re-apply.
So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary
public. It can be other person who is authorized to administer oath such as prosecutors, clerk of court who
is a lawyer, labor arbiters, etc. Anyway, they are also authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11:
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. (11a, R24)
The amendment here again is the persons referred to under Section 14.
So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer, as well
as the consul general, vice-consul, although on a SC circular, if the judge will authorize the taking of deposition
Lakas Atenista 10
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
abroad, because this time leave of court is required, you course it to the Department of Foreign Affairs. The
parties are not supposed to communicate directly to the Philippine Embassy.
By COMMISSION, somebody other than Philippine consul like in Taiwan, we have Philippine Trade
Department in Taiwan because of our trade relations. The court will issue a commission to the head of the trade
mission there to act as deposition officer. Or any other person appointed by the judge by court order.
So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we have no
consulate but I know of a Filipino lawyer who resides there. I will request the court that this Filipino lawyer
abroad be authorized to take the deposition of a person there. If the court agrees, it will issue what is known as a
commission.
But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country.
EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in court for the court to
issue a letters rogatory. The judge will make a formal communication to the court in Pyongyang to please take
Ws deposition with the following request: to mail back the answer and offer to return the favor. If the request is
ignored, there is nothing that we can do. But normally, they comply.
So, letters rogatory is a request to the appropriate foreign judicial authority to take the deposition of a witness
who is in their jurisdiction and please send us a copy and we assure you in the future, if you have the same
problem, we will reciprocate.
That is international law. Deposition can be understand by the officer in other country because it is
internationally known. If the officer in the foreign country will not do it, we have no choice because it is only a
request. (kung ayaw mo, huwag mo!)
The SC defined again commission and letters rogatory and distinguished one from the other in the case of
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2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
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 (1964) Rules of Court. So as a matter of practice,
the court should first resort to commission. You must allege that the commission has been returned
unexecuted before resorting to letters rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that the
deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in view of
its one-China policy. Can a deposition be taken in Taiwan where the Philippines has no diplomatic
relations because of the one-Chine policy?
HELD: YES. 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.
You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You get
somebody who is not related.
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 not known, a
general description sufficient to identify him or the particular class or group
to which he belongs. On motion of any party upon whom the notice is served, the
court may for cause shown enlarge or shorten the time. (15, R24)
There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon written
interrogatories. The latter is governed by Section 15 which is the most popular: Question-answer and everything
is recorded.
Take note that before deposition is take, there should be notice to the adverse party. The notice shall state the
time and place for taking the deposition and the name and address of each person to be examined.
The last sentence, On motion of any party upon whom the noticed is served, the court may for cause shown
enlarge or shorten the time. Suppose you will send me a notice that you are going to take the deposition of a
witness from February 1 to 20 morning and afternoon. Twenty days is too much. I can go to court and complain.
That should be reduced. The court may come in and enlarge or shorten the time. The court may also do this even
if leave of court is not required.
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 an order that the deposition shall not
be taken, or that it may be taken only at some designated place other than that
stated in the notice, or that it may be taken only on written interrogatories,
or that certain matters shall not be inquired into, or that the scope of the
examination shall be held with no one present except the parties to the action
and their officers or counsel, or that after being sealed the deposition shall
be opened only by order of the court, or that secret processes, developments, or
research need not be disclosed, or that the parties shall simultaneously file
specified documents or information enclosed in sealed envelopes to be opened as
directed by the court; or the court may make any other order which justice
requires to protect the party or witness from annoyance, embarrassment, or
oppression. (16a, R24)
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a
pending case and the court has control over the case. That is why, while leave of court is not necessary, any party
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2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
who is aggrieved can go to court and complain. Deposition is purely your concern provided nobody would come
here and complain. That is one of the limitations of deposition taking.
Q: What orders may court issue for the protection of parties and deponents; when may orders be issued; what
court has power to issue the orders?
A: 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:
Sec. 18. Motion to terminate or limit examination. At any time during the
taking of the deposition, on motion or petition of any party or of the deponent
and upon a showing that the examination is being conducted in bad faith or in
such manner as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the Regional Trial Court of
the place where the deposition is being taken may order the officer conducting
the examination to cease forthwith from taking the deposition, or may limit the
scope and manner of the taking of the deposition, as provided in section 16 of
this Rule. If the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the deposition shall be
suspended for the time necessary to make a notice for an order. In granting or
refusing such order, the court may impose upon either party or upon the witness
the requirement to pay such costs or expenses as the court may deem reasonable.
(18a, R24)
Section 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. Section 18 talks about protective orders
DURING the deposition taking where the court may stop or limit the deposition taking.
Sec. 17. Record of examination; oath; objections. The officer before whom
the deposition is to be taken shall put the witness on oath and shall
personally, or by some one acting under his direction and in his presence,
record the testimony of the witness. The testimony shall be taken
stenographically unless the parties agree otherwise. All objections made at the
time of the examination to the qualifications of the officer taking the
deposition, or to the manner of taking it, or to the evidence presented, or to
the conduct of any party, and any other objection to the proceedings, shall be
noted by the officer upon the deposition. Evidence objected to shall be taken
subject to the objections. 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. (17, R24)
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2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
as recorded remains. If the objection is sustained, the answer as recorded is erased as if it was never answered.
That is the meaning of evidence objected to shall be taken subject to the objections.
So, the deposition officer cannot make a ruling on the objection. It is only the judge of the court where the
case is pending who will make the ruling on it.
Take note that answers to depositions not objected to cannot be objected to in court during the trial, UNLESS
the objection is based on a new ground which only come up after the deposition.
So after the deposition of the deponent is taken, the deposition officer shall submit the deposition to the
deponent for examination. He may change his answers but he must state the reason for the change. And he signs
it, unless the parties by stipulation waive the signing, or the witness is ill, or cannot be found or refuses to sign. In
the latter cases, the deposition will be signed by the deposition officer.
Sec. 20. Certification and filing by officer. The officer shall 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 and
marked "Deposition of (here insert the name of witness)" and shall promptly file
it with the court in which the action is pending or send it by registered mail
to the clerk thereof for filing. (20, R24)
Sec. 21. Notice of filing. The officer taking the deposition shall give
prompt notice of its filing to all the parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to any party or to the deponent.
(22, R24)
Any party can ask for a copy of the deposition upon payment of reasonable charges therefor.
Sec. 23. Failure to attend of party giving notice. If the party giving the
notice of the taking of a deposition fails to attend and proceed therewith and
another attends in person or by counsel pursuant to the notice, the court may
order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending, including
reasonable attorneys fees. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a
witness in Davao. And he came over. But the deposition did not proceed because the party sending the notice did
not show up. So he caused the other party a lot of inconvenience. The Manila lawyer can file a motion in court to
ask for reimbursement of all his expenses in this case.
Sec. 24. Failure of party giving notice to serve subpoena. If the party
giving the notice of the taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of such failure does not attend, and
if another party attends in person or by counsel because he expects the
deposition of that witness to be taken, the court may order the party giving the
notice to pay to such other party the amount of the reasonable expenses incurred
by him and his counsel in so attending, including reasonable attorneys fees.
(24a, R24)
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1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a
witness in Davao. And he came over. The party sending the notice is also present. But this time it is the witness
who is absent because the party sending the notice forgot to have the witness subpoenaed. Again, the Manila
lawyer can file a motion in court to ask for reimbursement of all his expenses.
The difference between a deposition upon oral examination and written interrogatories is that in oral
examination, the questions and the answers are oral.
In deposition upon written interrogatories, the questions are prepared already in advance and that is direct
interrogatories. And then they furnish you a copy and after receiving it, you may also, within 10 days, prepare
your questions or cross-interrogatories and you also furnish them copies of it. And based on that, they can ask
further questions. If they are now sufficient, the deposition officer shall compound the question one by one but
every question requires an answer.
Practically, there is no personal confrontation of the witness. If your witness is abroad, it is very expensive for
you to go there and conduct an oral examination. So, the practical means is only deposition upon written
interrogatories.
Sec. 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, who shall proceed
promptly, in the manner provided by sections 17, 19 and 20 of this Rule, 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. (26, R24)
Sec. 27. Notice of filing and furnishing copies. When a deposition upon
interrogatories is filed, the officer taking it shall promptly give notice
thereof to all the parties, and may furnish copies to them or to the deponent
upon payment of reasonable charges therefor. (27, R24)
Sec. 28. Orders for the protection of parties and deponents. After the
service of the interrogatories and prior to the taking of the testimony of the
deponent, the court in which the action is pending, on motion promptly made by a
party or a deponent, and for good cause shown, may make any order specified in
sections 15, 16 and 18 of this Rule which is appropriate and just or an order
that the deposition shall not be taken before the officer designated in the
notice or that it shall not be taken except upon oral examination. (28, R24)
So the protections provided under Sections 15, 16 and 18 are also applicable in oral examinations.
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1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
So, if you will notice, majority of all the errors are waived if objection thereto is not promptly made.
published by
LAKAS ATENISTA 1997 1998: FOURTH YEAR: Anna Vanessa Angeles Glenda Buhion Joseph
Martin Castillo Aaron Philip Cruz Pearly Joan Jayagan Anderson Lo
Yogie Martirizar Frecelyn Mejia Dorothy Montejo Rowena Panales Regina Sison
Ruby Teleron Marilou Timbol Maceste Uy Perla Vicencio Liberty Wong Jude Zamora
Special Thanks to: Marissa Corrales and July Romena
SECOND YEAR: Jonalyn Adiong Emily Alio Karen Allones Joseph Apao
Melody Penelope Batu Gemma Betonio Rocky Cabarroguis Charina Cabrera
Marlon Cascuejo Mike Castaos Karen de Leon Cherry Frondozo Jude Fuentes Maila Ilao
Ilai Llena Rocky Malaki Jenny Namoc Ines Papaya Jennifer Ramos Paisal Tanjili
Lakas Atenista 16
Ateneo de Davao University College of Law