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TAGGED WITH CIVIL PROCEDURE – RULES 21-30

Civil Procedure – Rules 21-30

Rule 21 Subpoena

1. Subpoena issued by:

The court before whom witness is required to attend;

The court of the place where the deposition is to be taken;

The officer or body authorized by law to do so in connection with its investigations;

Any Justice of the SC or CA in any case or investigation pending within the Phils

2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any
penal institution shall be brought outside said institution for appearance or attendance in any court
unless authorized by the SC.

3. Grounds for quashing subpoena duces tecum

4. Ground for quashing subpoena ad testificandum

It is unreasonable or oppressive

The articles sought to be produced do not appear to be relevant

Person asking for subpoena does not advance cost of production

The witness is not bound thereby – if witness resides more than 100 km from the place where he is to
travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained
from the court in which his case is pending

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à This is known as the “viatory right” of the witness; NOTE, however, that the right is available only in
CIVIL cases

Witness fees and kilometrage allowed by rules not tendered when subpoena served.

5. Service of subpoena made in the same manner as personal or substituted service of summons.

6. Person present in court before a judicial officer may be required to testify as if he were in attendance
upon a subpoena.

7. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed
a contempt of the court from which subpoena issued.

Rule 22 Computation of Time

1. Computing for any period of time: day of the act or event from which designated period of time
begins to run is to be excluded and the date of performance included.

2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits, the time shall
not run until the next working day.

3. If there is effective interruption of period, it shall start to run on the day after notice of the cessation
of the cause of the interruption. The day of the act that caused the interruption is excluded in the
computation of the period.

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Rule 23 Depositions Pending Action

DEPOSITIONS DE BENE ESSE – taken for purposes of pending action

1. Depositions pending action

2. Scope of examination – deponent may be examined regarding any matter not privileged relevant to
the subject of the action

3. Examination and cross-examination proceeds as in trials

4. Depositions and Affidavits distinguished

Taken by leave of court after court obtains jurisdiction over any defendant or property subject of the
action

Taken without leave after an answer has been served

Upon the instance of any party

May be deposition upon oral examination or written interrogatories

Depositions

Affidavits

Written testimony of witness in course of judicial proceedings, in advance of trial and hearing Mere
sworn written statements

Opportunity for cross-examination No cross-examination

Can be competent testimonial evidence Little probative value (hearsay)

5. Use of depositions

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à Any part or all of a deposition which is admissible in evidence may be used against any party who was
present or represented during the taking of the deposition or who had notice thereof as follows:

Deposition of

May be used by

Purpose

A witness Any party To contradict or impeach the deponent’s testimony as a witness

Any party, or anyone who at the time of taking the deposition was an officer, director, or managing agent
of a public or private corporation An adverse party For any purpose

Of any witness, whether a party or not Any party For any purpose, IF court finds that:

Witness is dead;
 b. Witness resides at a distance more than 100 km from place of trial, UNLESS absence procured by
party offering the deposition

c. Witness is unable to testify because of age, sickness, infirmity, or imprisonment;

d. Party offering the deposition has been unable to procure the attendance of the witness by
subpoena; OR

e. Other exceptional circumstances make it desirable to allow deposition to be used.

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à Deponent is made the witness of the party offering the deposition.

à If only part of the deposition is introduced, adverse party may require that all of it which is relevant to
the part introduced be introduced.

6. Persons before whom depositions may be taken

a. Within the Philippines

Judge

Notary public

Any person authorized to administer oaths if the parties so stipulate in writing

b. In foreign countries

On notice, before a secretary of any embassy or legation, consul-general, consul, vice-consul, consular
agent of the Phils

Before such person or officer as may be appointed by commission or under letters-rogatories

Any person authorized to administer oaths if the parties so stipulate.

Commission – addressed to any authority in a foreign country authorized therein to take down
depositions; the taking of such depositions is subject to the rules laid down by the court issuing the
commission

Letters Rogatory – addressed to judicial authority in the foreign country; the taking of the depositions is
subject to the rules laid down by such foreign judicial authority.

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7. Persons disqualified to take depositions

Relative within 6th degree of consanguinity or affinity of any party

Employee of any party

Counsel of any party

Relative within the same degree of party’s counsel

Employee of party’s counsel

Anyone financially interested in the action

8. Depositions upon written interrogatories

à Party desiring to take such deposition shall serve them upon every other party with a notice stating
the name and address of the person who is to answer them and the name and descriptive title of the
officer before whom the deposition is to be taken;

à Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter

à Re-direct interrogatories served within 5 days

à Re-cross interrogatories served within 3 days

9. Effects of errors and irregularities in the depositions

As to notice – waived unless written objection is promptly served upon the party giving the notice

As to disqualification of officer – waived unless made before the taking of the deposition begins or as
soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence

As to competency or relevancy of evidence – NOT waived by failure to make them before or during the
taking of the deposition, unless ground is one which might have been obviated or removed if presented
at that time

As to oral exam and other particulars – Errors occurring at the oral exam in the manner of taking the
deposition, in the form of questions and answers, in oath or affirmation, or in conduct of parties, and
errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless
reasonable objection is made at the taking of the deposition.

As to form of written interrogatories – waived unless served in writing upon party propounding them
within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the
service of the last interrogatories authorized.

As to manner of preparation – errors as to 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 are waived unless a motion to suppress the deposition or some part of it is made with
reasonable promptness after such defect is, or with due diligence might have been, ascertained.

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à A deposition, in keeping with its nature as a mode of discovery, should be taken before and not during
trial. IN fact, the rules on criminal practice – particularly on the defense of alibi – states that when a
person intends to rely on such a defense, that person must move for the taking of the deposition of his
witness within the time provided for filing a pre-trial motion.

Rule 24 Depositions Pending Action

DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case or appeal.

1. Depositions before action

A person desiring to perpetuate his own testimony or that of another person regarding any matter that
may be cognizable in any court of the Phils may file a verified petition in the court of the place of the
residence of any expected adverse party, which petition shall be entitled in the name of the petitioner
and shall show:

That petitioner expects to be a party to an action in a court of the Phils but is presently unable to bring it
or cause it to be brought;

The subject matter of the expected action and his interest therein;

The facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it;

The names or description of the persons he expects will be the adverse parties and their addresses so far
as known;

The name and addresses of the persons to be examined and the substance of the testimony which he
expects to elicit from each.

2. Use of deposition

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If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in
evidence may be used in any action involving the same subject matter subsequent brought in
accordance with the provisions of Rule 23.

Rule 25 Interrogatories to Parties

Interrogatories and the answers thereto should be filed in court and served on adverse parties, so that
the answers may constitute judicial admissions.

Effect of failure to serve written interrogatories – a party not served with such may NOT be compelled by
the adverse party to give testimony in open court or deposition pending appeal.

Rule 26 Admission by Adverse Party

1. Request for admission

A written request for the admission of the other party of the genuineness of any material or document
or request for the truth of any material and relevant matter of fact set forth in the request may be filed
and served upon the other party at any time after issues have been joined.

2. Implied admission

Each of the matter requested to be admitted shall be deemed admitted within a period designated in the
request, which shall not be less than 15 days after service thereof or within such further time as the
court may allow on motion, UNLESS, party requested serves upon the party requesting a sworn
statement either specifically denying or setting forth in detail the reasons why he cannot truthfully either
admit or deny those matters.

3. Effect of admission

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Admission is only for the purpose of the pending action and shall NOT constitute an admission for any
other person nor may it be used against him in any other proceeding.

4. A party who fails to file and serve a request for admission on the adverse party of material facts
within the personal knowledge of the latter shall not be permitted to present evidence thereon,

Rule 27 Production or Inspection of Documents or Things

Any party may move for the court in which the action is pending to order any party to:

Produce and permit the inspection and copying or photographing of any designated documents, papers,
books, accounts, letters, photographs, objects or tangible things, not privileged, which:

Constitute or contain evidence material to any matter involved in the action AND

Are in his possession, custody or control.

Permit entry upon designated land or other property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or any designated relevant object or
operation thereon.

The order:

Shall specify the time, place and manner of making the inspection and taking copies AND

May prescribe such terms and conditions which are just.

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Rule 28 Physical and Mental Examination of Persons

If the mental or physical condition of a party is in controversy, the court may order him to submit to a
physical or mental examination by a physician.

The party examined waives any privilege he may have in that action regarding the testimony of the
person who has examined or may examine him with respect to that same mental or physical examination
by:

Requesting and obtaining a report of the examination so ordered OR

Taking the deposition of the examiner.

Rule 29 Refusal to Comply with the Modes of Discovery

1. If a party/deponent refused to answer:

The examination may be completed on other matters

The examination may be adjourned

The proponent may apply to the court for order to compel answer

à The court may then order:

The refusing party or his counsel to pay the expenses incurred in obtaining the order, including the
attorney’s fees (if it finds the refusal to answer without substantial justification)

The proponent or his counsel to pay the expenses incurred in opposing the application, including
attorney’s fees (if it finds the application to be without substantial justification)

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2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court, the
refusal may be considered contempt of that court.

If a party/officer or managing agent of a party refuses to obey an order requiring him:

a. To answer designated questions

b. To produce a thing for inspection or to permit entry upon property

To submit to a physical or mental examination

à the court may order:

That the matters regarding which the questions were asked, or the character of the land or the thing, or
the physical and mental condition of the party be taken to be established.

The disallowance of the disobedient party’s claims

The prohibition of the disobedient party to present evidence

The striking out of the pleadings or parts thereof

The dismissal of the action or parts thereof

Rendering judgment by default against the disobedient party OR

The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental
examination.

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4. If a party refuses to attend or serve answers, the court may:

Strike out all or any part of any pleading of that party.

Dismiss the action or any part thereof.

Enter a judgment by default against that party, OR/AND

Order that party to pay reasonable expenses incurred, including attorney’s fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this
Rule.

Rule 30 Trial

1. Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

The plaintiff shall adduce evidence in support of his complaint;

The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim, and third-
party complaint;

The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim, and 4th
party complaint;

The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;
The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in
support of their defense, in the order to be prescribed by the court;

The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons
and in the furtherance of justice, permits them to adduce evidence upon their original case; and

Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court
directs the parties to argue or to submit their respective memoranda or any further pleadings.

2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case
where the parties so agree in writing, the court may delegate the reception of evidence to its clerk of
court who is a member of the bar. The clerk shall have no power to rule on objections to any question or
to the admission of exhibits, which objections shall be resolved by the court upon submission of his
report and the transcripts within 10 days from the termination of the hearing.

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Reference:

Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001

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