MODES OF DICOVERY BASED ON ATTY.

DUANO’S DISCUSSION

- It depends on what stage of the action.

- Like, Rule 23 can be use at any stage of the action; Rule 24 can be used when there is no case
yet filed or there is a pending appeal

RULE 23 DEPOSITION PENDING ACTIONS

GR. You need to appear in open court before a judge to testify.

ETR. Depositions – not in court

Section 1:

 Who may avail?

At the instance of any party
 Who may be deposed?
Any person whether a party or not. (Prospective witness or the party’s own witness)
 What stage?
The action is still pending.
 When may be taken?
1. By leave of court after jurisdiction has been obtained over
a. any defendant; or
b. property which is the subject matter of the action.

REASON: The issues are not yet joined. The parties did not plead their own theories.

2. Without leave of court after an answer has been served.

Who is the proponent? A party who desires to take the testimony (deposition) of any person

Who is the deponent? Any person which may be taken of his testimony.

Steps:

A. File a motion under RULE 15

1. States the grounds
2. What type of deposition you will use.
a. Oral Examination (OE) Section 15
 A party desiring to take the deposition of any person upon OE shall give
reasonable notice in writing to every other party to the action.
 The notice shall state:
1. The time and place for the taking of the deposition
2. The name and address of each person to be examined, if known.
If not, (1) a general description sufficient to identify him or (2) the particular
class or group to which he belongs.

b. Written Interrogatories (WI) Section 25 (Series of question – Direct Examination)

  A party desiring to take the deposition of any person upon WI shall serve a
notice upon every other party.
 The notice shall state:
1. The name and the address of the person who is to answer them; and
2. The name or descriptive title and address of the officer before whom the
deposition is to be taken.
 Within 10 days after the notice has been served a party so served may serve
CROSS-INTERROGATORIES upon a party proposing to take the deposition.
 Within 5 days after of cross-interrogatories have been served the party
proposing to take the deposition may serve RE-DIRECT INTERROGATORIES upon
a party who has served cross-interrogatories.
 Within 3 days after the re-direct interrogatories have been served a party may
serve RECROSS-INTERROGATORIES upon a party proposing to take the
deposition.

To illustrate:

P – Proponent D – Deponent

❿ ❺ ❸
D may serve CI to P P may serve RDI to D D may serve RCI to P

- DISTINGUISH Rule 23 Section 25 v. Rule 25

Rule 25 does not require SUBPOENA whereas Rule 23 Section 25 requires.

3. Officers whom shall take the deposition. Sections 10-14

a. Section 10. Within the Philippines, depositions may be taken before any:
1. Judge;
2. Notary public; or
3. Person referred to in Section 14 of Rule 23.
b. Section 11.In a foreign state or country, deposition may be taken:
1. On notice before a:
a. secretary of embassy or legation;
b. consul general;
c. consul;
d. vice-consul;
e. consular agent of the ROP;
2. Before such person or officer as may be appointed by:
a. Commission; or
b. Under letters rogatory; or
Section 12.
  A commission or letters rogatory shall be issued only when:
1. Necessary or convenient, on application and notice; and
2. On such terms, and with such direction as are just and 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.

Letter Commission Letter Rogatory

(1) An instrument issued by a
court of justice, or other
competent tribunal to authorize
a person to take depositions or
do any other act by authority of
such court or tribunal;
(1) An instrument whereby a
foreign court is informed of the
pendency of a case and the
name of the foreign witness,
and is requested to cause their
depositions to be taken in due
course of law for the
furtherance of justice, with an
offer on the part of the court
making the request, to do the
like for the other, in a similar
case;

(2) Addressed to a non-judicial (2) Addressed to a judicial

foreign officer who will take the officer of a foreign country who
deposition; will direct the taking of the
deposition;
(3) The rules which are (3) The procedure applicable
applicable are those of the will that be of the higher court;
requesting court;
(4) It is allowed if the permission (4) It is allowed if commission
of the foreign court is given; was disallowed by the foreign
country;
(5) Leave of court is not (5) Leave of court is necessary
necessary
3. The persons referred to in Section 14 of Rule 23.
c. Section 14. Stipulations regarding taking of depositions.
Any person authorized to administer oaths at any time or place, in accordance with the
ROC, and when so taken may be used like other deposition.
 Provided, that, the parties so stipulate in writing depositions may be taken.

Note Section 13 Disqualification of interest.

No deposition shall be taken before a person who is:

1. A relative within sixth degree of consanguinity or affinity;

2. Employee or counsel of any of the parties;
3. A relative within the same degree or employee of such counsel; or
 4. Is financially interested in the action.

ONCE THE COURT GRANTED THE MOTION

B. Serve notice Sections 15 and 25

- Served every other parties
1. OE
2. WI
C. Subpoena Rule 21 Sections 5, 8, 9
 Section 5. Subpoena for Depositions.
Proof of service of a notice to take a deposition shall constitute sufficient authorization for the
issuance of subpoenas for the persons named in said notice by the clerk of court of the place in
which the deposition is to be taken.
However, the clerk of court shall not issue a subpoena duces tecum to any such person without
an order of the court.
 Section 8. Compelling attendance.
A person present in court before a judicial officer may be required to testify as if he were in
attendance upon a subpoena issued by such court or officer.
 Section 10. Contempt
Failure by any person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which the subpoena is issued.
If the subpoena was not issued by a court, the disobedience thereto shall be punished in
accordance with the applicable law or rule.
- Section 10 does not apply. EXCEPTIONS.

D. Protective Measure (Limit the order of depositions)

1. Section 15 last sentence
“On the motion of any party upon whom the notice is served, the court may for a cause
shown enlarge or SHORTEN the time”
2. Section 16
File a motion seasonably after the notice is served.
 After the service of notice for taking a deposition by OE a motion shall be seasonably
filed by:
1. Any party; or
2. The person to be examined
and for good cause shown
 Then the court in which the action is pending may make an order: (LIMITATIONS WHICH
MAY BE IMPOSED BY THE COURT)
a. that the deposition shall not be taken;
b. that it may be taken only at some designated place other than that stated in the notice;
c. that it may be taken only on written interrogatories;
 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 and counsel
f. that after being sealed the deposition shall be opened only by order of the court;
g. that the secret processes, developments, or research need not be disclosed;
h. that the parties shall simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court; or
i. the court may make any other order which justice requires to protect the party or
witness from annoyance, embarrassment, or oppression.
3. Section 18
File a 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 showing that the examination is being conducted in bad faith or
in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or
party,
 Then the court in which the action is pending or the RTC of the place where the
deposition is being taken may order the officer conducting the examination:
1. to cease forthwith from taking the deposition; or
2. may limit the scope and manner of the taking of the deposition as provided in Rule
16.
EFFECTS:
1. 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.
2. The taking of the deposition shall be suspended for the time necessary to make
a notice for an order upon the demand of the objecting party or deponent.
3. In granting or refusing such order, the court may impose upon either party or
upon witness the requirement to pay such costs or expenses as the court may
deem reasonable.
E. During the taking of deposition.
1. Section 17 (This happens during the taking of the depositions)
Record of examination; oath; objections.
 The officer before whom the deposition is to be taken shall:
1. Put the witness on oath; and
2. Record the testimony of the witness personally or by someone acting under his
direction and his presence.
GR. The testimony shall be taken stenographically
ETR. Unless the parties agree otherwise.
 All objections made at the time of time of the examination shall be noted by the
officer upon the deposition.
Objections may be made:
1. to the qualifications of the officer taking the deposition;
2. to the manner of taking it;
3. to the evidence presented; or
4. to the conduct of any party; and
 5. any other objection to the proceedings.
 Evidence objected to shall be taken subject to the objections.
 Remedy in case the deponent does not want to attend. (If not proponent’s witness/
deponent). In lieu of participating in the oral examination, parties served with notice
of taking deposition may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim.

2. Section 3. Examination and cross examination

Examination and cross-examination of deponents may proceed as permitted at the trial
under Sections 3 – 18 of Rule 132.
3. Section 2. Scope of Examination.
 GR. The deponent may be examined regarding any matter, not privileged:
a. Which is relevant to the subject of the pending action,
b. Whether relating to the claim or defense of any party,
c. Including the existence, description, nature and custody, condition, and location of any
books, documents, or other tangible things, and identity and location of persons having
the knowledge of relevant facts.
ETR. Unless otherwise ordered by the court as provided by Section 16 or 18 of Rule 23.
 Rule 130 Section 24 Disqualification by reason of privileged communication. The following
cannot testify as to matters learned in confidence in the following cases:
1. The husband and wife during or after the marriage, cannot be examined
without the consent of the other. Except in:
a. Civil cases by one against the other; or
b. Criminal case for a crime committed by one against the other or the latter’s
direct descendants or ascendants.
2. An attorney cannot be examined as to any communication made by the client
to him without his consent
3. A person authorized to practice medicine, surgery or obstetrics cannot be
examined in civil case without the consent of his patient.
4. A minister or priest cannot be examined as to any confession made to without
the consent of the person making the confession.
5. A public officer cannot be examined during his term of office or afterwards
when the court finds that the public interest would suffer by the disclosure.
F. If the deponent does not want to answer.
Rule 29 Section 1. Refusal to answer.
1. If a party or other deponent refuses to answer any question upon oral examination the
proponent of the question may prefer that:
a. The examination may be completed on the other matters; or
b. That the same be adjourned.
 Thereafter the proponent may apply an order to compel an answer to the proper court of
the place where the deposition is being taken.
 The same procedure may be availed of when a party or a witness refuses to answer any
interrogatory submitted under Rule 23 or 25.
2. If the application is GRANTED, the court shall require:
a. the refusing party or deponent to answer the question or interrogatory;
b. The refusing party or deponent or the counsel advising the refusal, or both of them, to pay
the proponent the amount of the reasonable expenses incurred in obtaining the order
including attorney’s fees if it also finds that the refusal to answer was without substantial
justification.
3. If the application is DENIED, and the court finds that it was filed without substantial justification,
the court may require that the refusing party or deponent be paid of the amount of the
reasonable expenses incurred in opposing the application including attorney’s fees by:
a. the proponent;
b. the counsel advising the application; or
c. both of them
G. When the deponent deposed already.
1. Section 19. Submission to witness; changes; signing.
A. When the testimony is fully transcribed, the deposition shall be:
1. Submitted to the witness for the examination; and
2. Read to or by him unless such examination and reading are waived by the witness
and by the parties.
B. Any changes in form or substance shall be entered upon the deposition by the officer
with a statement of the reasons given by the witness for making them.
C. GR. The deposition shall be then signed by the witness.
ETR. Unless:
1. The parties by stipulation waive the signing;
2. The witness is ill;
3. The witness cannot be found; or
4. The witness refuses to sign
D. GR. If the deposition is not signed by the witness, the officer shall:
1. sign it; and
2. state on the record the;
a. fact of the waiver;
b. illness;
c. absence of the witness; or
d. fact of the refusal to sign
3. together with the reason given therefor, if any
 and the deposition may then be used as fully though signed.
ETR. Unless on a motion to suppress under Section 29 (f) of Rule 23, the court holds that
the reasons given for the refusal to sign require rejection of the deposition in whole or
in part. (Remedy)
2. Section 20. Certification and filing by the officer.
The officer shall:
a. 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
b. Then securely seal the deposition in an envelope indorsed with the title of the actin and
marked “Deposition of (here insert the name of the witness)’; and
 c. Promptly file it with the court in which the court in which the action is pending or send it
by registered mail to the clerk thereof for filing.
3. Section 21. Notice of filing.
The officer taking the deposition shall give prompt notice of its filing to all the parties.
4. Section 22. Furnishing copies.
The officer shall furnish a copy of the deposition to any party or to the deponent upon
payment of reasonable charges therefor.
H. Consequences to pay attorney’s fees.
Section 23. Failure to attend of party giving notice.
 The court may order the other 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 attorney’s fees
 if the party giving the notice of the taking of the deposition fails to attend and proceed
therewith and another attends in person or by counsel pursuant to the notice.
I. Sections 25 & 26 (17,19,20)
1. Section 25 please refer to A.2.b
2. Section 26. Officers to take responses and prepare record
 A copy of the notice and copies of all interrogatories served and delivered by the
party taking the deposition to the officer designated in the notice.
 The officer designated shall proceed promptly:
a. to take the testimony of the witness in response to the interrogatories in the
manner provided by Sections 17, 19, and 20 of Rule 23; and
b. to prepare, certify, and file or mail the deposition, attaching thereto the copy of
the notice and the interrogatories received by him.
3. Section 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.
J. After taking the deposition. Now you will use it.
1. Section 4. Use of the deposition.
 Deposition may be used:
a. At the trial;
b. upon the hearing of a motion; or
c. upon hearing an interlocutory proceeding
 Any part or all of all of the deposition, so far as admissible under the rules of
evidence, may be used against any party who:
a. Was present or presented at the taking of the deposition; or
b. Had due notice of the taking of deposition

In accordance with any of the following:

1. Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness.
2. The deposition of a party or 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.
3. The deposition of a witness, whether or not a party, may be used by any party for
any purpose if the court finds:
a. That the witness is dead;
b. GR. 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
ETR. Unless it appears that his absence was procured by the party offering the
deposition.
c. That the witness is unable to attend or testify because of:
1. Age;
2. Sickness;
3. Infirmity; or
4. Imprisonment
d. That the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
e. Upon the application and notice to allow the deposition to be used, 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 .
4. If only part of a deposition is offered in evidence by the 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 part.
2. Section 5.Effect of substitution of parties.
 Substitution of parties does not affect the right to use deposition previously taken.
 When an action has been dismissed and another action involving the same parties is
afterward brought between the same parties or their representatives or successors
in interests, all depositions lawfully taken and duly filed in the former action may be
used in the subsequent actin as if originally taken therfor.
3. Section 6. Objection to admissibility.
 Objections may be made at the trail or hearing to receiving 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.
 Subject to the provision of Section 29 of Rule 23.
Effects of errors and irregularities in depositions
a. As to notice.
GR. All errors and irregularities in the notice for taking a deposition are waived.
ETR. Unless written objection is promptly served upon the party giving the
notice.
b. As to the disqualification of officer.
GR. Objection to taking of the deposition because of the disqualification of the
officer whom it is to be taken is waived.
ETR. Unless made:
1. before the taking of the deposition begins; or
 2. as soon thereafter as the disqualification becomes known or could be
discovered with reasonable diligence.
c. As to the competency or relevancy of the evidence
GR. Objections to the competency of a witness or the competency, relevancy, or
materiality of testimony are not waived by failure to make them before or
during the taking of the deposition.
ETR. Unless the ground of objection is one which might have been obviated or
removed if presented at that time.
d. As to oral examination and other particulars.
GR. Errors and irregularities occurring at the oral examination in the manner of
taking the deposition, in the form of the questions or answers, in the oath or
affirmation, or in the conduct of the parties and errors of any kind which might
be obviated, removed, or cured if promptly prosecuted are waived.
ETR. Unless reasonable objection thereto is made at the taking of the
deposition.
e. As to form of written interrogatories.
GR. Objections to the form of written interrogatories submitted under Section
25 and 26 of Rule 23 are waived.
ETR. Unless served in writing upon the party propounding them within the time
allowed for serving succeeding cross or other interrogatories and within three
(3) days after service of the last interrogatories authorized.
f. As to manner of preparation
GR. Errors and irregularities in the manner in which the testimony is transcribed
or the deposition is prepared, signed, certified, sealed, indorsed, transmitted,
filed, or otherwise dealt with by the officer under Sections 17, 19, 20, and 26 of
Rule 23 are waived.
ETR. Unless a motion to suppress the deposition or some part thereof is made
with reasonable promptness after such defect is, or with due diligence might
have been ascertained.
 Note: File the motion to suppress seasonably.

Effects of using and taking depositions.

GR. Section 7. Effect of taking deposition. (Subject to Privilege and Relevancy)

 A party shall not be deemed to make a person his own witness for purpose by taking his
deposition.

ETR. Section 8. Effect of using deposition. (Subject to Circumspection)

 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 a described in Rule 23
Section 4 (b).
 Section 9. Rebutting deposition.

Any party may rebut any relevant evidence contained in a deposition whether introduced by him or by
any other party at the trial or hearing.

RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

1. Depositions before action – Section 1

2. Depositions pending appeal – Section 7

Section 1. Deposition before action: petition

A person who desires to perpetuate:

1. His own testimony; or

2. Testimony of another person

regarding any matter that may be cognizable in any court of the Philippines.

 He may file a verified petition in the court of the place of the residence of any expected adverse
party.

Section 2. Contents of the petition.

The petition shall:

1. Be entitled in the name of the petitioner and

2. Show:
a. That the petitioner expects to be a party to an action in a court of the Philippines but is
presently unable to bring it or cause it to be brought;
b. The subject matter of the expected action and his interest therein;
c. The facts which he desires to establish by the proposed testimony and his reasons desiring
to perpetuate it;
d. The names or a description of the person he expects will be adverse parties and their
addresses so far as known; and
e. The names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each; and
3. Ask for an order authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their testimony.

Section 3. Notice and Service.

 The petitioner shall serve a notice upon each person named in the petition as an expected
adverse party.
 Together with a copy of the petition, stating that the petitioner will apply to the court for the
order described in the petition, at a time and place named therein.
 The court shall cause notice thereof to be served on the parties and prospective deponents in
the manner provided for the service of summons at least 20 days before the date of the hearing.
Section 4. Order and Examination.

 The court shall make an order:

1. designating or describing the persons whose deposition may be taken and specifying the
subject matter of the examination; and
2. Whether the deposition shall be taken upon oral examination or written interrogatories.
 If the court is satisfied that the perpetuation of the testimony may prevent a failure
or delay or justice.
 The deposition may then be taken in accordance with Rule 23 before the hearing

Section 5. Reference to court.

 For the purpose of applying Rule 23 to depositions for perpetuating testimony, each
reference therein to the court in which the action is pending shall be deemed to refer to the
court in which the petition for such deposition was filed.

Section 6. Use of deposition.

 If the deposition to perpetuate the testimony is taken under Rule 24, or if, although not
taken, it would be admissible in evidence, it may be used in any action involving the same
subject matter subsequently brought in accordance with the provisions of Rule 23 Sections 4
and 5.

Section 7. Deposition Pending Appeal.

 The court in which the judgment was rendered may allow the taking of depositions of
witnesses to perpetuate their testimony for use in the event of further proceedings in the said
court:
1. If an appeal has been taken from a judgement of a court, including the CA in proper cases;
or
2. Before the taking of appeal if the time therefor has not expired.
 Requirements in taking the deposition:
A. The party who desires to perpetuate the testimony:
1. May make a motion in said court for leave to take depositions;
2. Upon the same notice and service thereof as if the action was pending therein.
B. The motion shall state:
1. The names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each; and
2. The reason for perpetuating their testimony
 Actions of the court
A. If the court finds that the perpetuation of the testimony is proper to avoid a failure or
delay of justice:
1. May make an order allowing the depositions to be taken; and
2. Thereupon the depositions may be taken and used in the same manner and under
the same conditions as are prescribed in these rules for depositions taken in pending
actions.
RULE 25 INTERROGATORIES TO PARTIES

 Questions are in writing and exhibited that is addressed to a party to an action by an adverse
party and answered in writing under oath.
 Before trail of action
 In case of denial remedy is an appeal from adverse judgement.
 The order is interlocutory in nature

Section 1. Interrogatories to parties; service thereof.

 Under the same conditions specified in Section 1 Rule 23.

 How Interrogatories to parties be made:
Any party desiring to elicit material and relevant facts from any adverse parties shall file and serve
upon the adverse party written interrogatories to be answered:
1. by the party served; or
2. by an officer competent to testify in its behalf if the party served is a public or private
corporation or a partnership or association.

Section 2. Answer to Interrogatories

 The person making the interrogatories shall:

1. Be answered fully in writing; and
2. Be signed and sworn to
 Then the party upon whom the interrogatories have been served shall file and serve a copy of the
answer on the party submitting the interrogatories.
GR. Within 15 days after the service of the interrogatories
ETR. Unless the court extends or shortens the time upon motion and for good cause shown.

Section 3. Objections to interrogatories

 When to file objections – Objections to any interrogatories may be presented to the court within
10 days after service of the interrogatories with notice as in case of a motion.
 Effect of filing of objection – Answers shall be deferred until the objections are resolved, which
shall be as early a time as is practicable.