RULES 23 TO 29 – MODES OF DISCOVERY

WHAT IS DISCOVERY
 The methods used by the parties to a civil action to obtain information held
by the other party that is relevant to the action.

PURPOSES OF DISCOVERY
 The purposes of resort to discovery are: (a) It is a device to narrow down /
clarify the basic issues between the parties (b) It is a device to ascertain the
facts relative to the issues

WHAT ARE THE MODES OF DISCOVERY

 The modes of discovery (a) Deposition pending action (b) Deposition before
action or pending appeal (c) Interrogatories to parties (d) Request for
admission by adverse party (e) Production or inspection of documents /
things (f) Physical / mental examination of persons

WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN

1. WITH LEAVE OF COURT, after jurisdiction has been acquired / obtained over any
defendant or over property which is the subject of the action as the issues are
not yet joined and disputed facts are not yet clear OR if a person is confined in a
prison with LEAVE OF COURT ONLY, on such terms that the Court may prescribe.
2. WITHOUT LEAVE OF COURT, after an answer has been served.

WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM

Any person, whether a party or not, upon ORAL EXAMINATION OR WRITTEN

INTERROGATORIES upon the initiative of ANY PARTY.

SCOPE OF A DEPOSITION

GENERALLY, the deponent may be examined regarding any matter, NOT

PRIVILEGED, which is RELEVANT TO THE SUBJECT OF THE PENDING ACTION whether
it RELATES TO CLAIM OR DEFENSE of any other party. INCLUDING THE EXISTENCE,
DESCRIPTION, NATURE, CUSTODY, CONDITION, LOCATION of any BOOKS,
DOCUMENTS OR OTHER TANGIBLE THINGS and the IDENTITY and LOCATION of
persons having knowledge of relevant facts.

1. The limitation as to the taking and scope of a deposition after notice is served for
its taking by oral examination, UPON MOTION SEASONABLY FILED by a PARTY OR
of the PERSON to be examined, and for GOOD CAUSE shown, the court in which
the action is pending may order: (a) Deposition not be taken (b)It be taken
only at some designated place other than that stated in the notice (c)It be
taken only on written interrogatories (d) That certain matters shall not be
inquired into (e) That scope of the examination shall be held without anyone
present except the parties to the action, and their officers of counsel (f)That after
 depositions are sealed, they shall be opened only by order of the court (g)That
secret processes, developments or research need not be disclosed (h)That
parties shall simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the Court (i) That court may
make any order which justice requires to protect the party or witnesses from
annoyance embarrassment or oppression.

2. During the taking of the deposition, it shall be taken subject to the following
limitations:

2.1 During the taking of the deposition, on motion or petition of any party or the
deponent upon showing that the examination is being conducted in BAD FAITH on IN
SUCH MANNER as UNREASONABLY to ANNOY EMBARRASS OR OPPRESS the DEPONENT,
or a party – the COURT where the action is pending or the RTC of the place where
deposition is being taken may ORDER the officer taking the examination to cease
forthwith – or limit the scope as provided in Section 16.

2.2 If terminated, it shall be resumed thereafter only upon order of the Court in which
the action is pending. UPON DEMAND of the OBJECTING PARTY/DEPONENT, the taking
shall be suspended for the time necessary to make a notice for an order. In
granting/refusing such order, the court may impose upon either party or upon the
witness the requirement to pay costs/expenses as the Court may deem reasonable.

BEFORE WHOM MAY DEPOSITIONS BE TAKEN

1. WITHIN THE PHILIPPINES: a judge, notary public, or person authorized to administer

oaths, at any time or place if so stipulated in writing by the parties.

2. IN FOREIGN COUNTRIES: On notice before a secretary of the embassy or legation

or the diplomatic minister and his staff, consul general, consul, vice consul or consular
agent of the Republic of the Philippines, or before such person or officer as may be
appointed by commission or letters rogatory.

2.1 A Commission is an instrument issued by a court of justice or other competent

tribunal to authorize persons to take a deposition or do any other act by authority of
such court or tribunal. A Commission is addressed to officers designated by name or
descriptive title.

2.2 Letters Rogatory is an instrument sent in the name and by authority of a judge or
court to another, requesting the latter to cause to be examined, upon interrogatories
filed in a case pending before the former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed. Letters Rogatory are addressed to a
judicial authority in a foreign country AND may be applied for and issued only after a
commission has been returned unexecuted.

WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS

Person who is a relative within the 6th degree of consanguinity / affinity OR employee
or counsel of any of the parties OR relative within the same degree or employee of
counsel OR is financially interested in the action.

KINDS OF DEPOSITIONS – HOW TAKEN

A. DEPOSITION UPON ORAL EXAMINATION

1. Giving of reasonable notice in writing to every other party to the action, which
must state the time / place of the taking of the deposition and the name and address
of the person to be examined, if known, IF NOT KNOWN, a general description sufficient
to identify him or the particular class or group to which he belongs. ON MOTION OF
PARTY UPON WHOM NOTICE IS SERVED, the COURT, for CAUSE, may ENLARGE OR
SHORTEN THE TIME.

2. Officer taking the deposition shall put the witness under oath and shall
personally, or by someone acting under his direction and his presence record the
testimony of the witness stenographically unless the parties agree otherwise.

All objections as to QUALIFICATION OR OFFICER TAKING DEPOSITION, MANNER OF

TAKING EVIDENCE PRESENTED, CONDUCT OF PARTIES OR ANY OTHER OBJECTION – shall
be NOTED – ANY EVIDENCE OBJECTED TO SHALL BE TAKEN SUBJECT TO OBJECTIONS.
PARTIES SERVED WITH NOTICE, IN LIEU OF PARTICIPATING IN THE TAKING OF DEPOSITION,
may submit written interrogatories – which the officer taking the deposition shall
propound to the witness and record the answers VERBATIM.

3. After the taking of the deposition – and testimony is transcribed – it is submitted

to the witness for examination and shall be read to or by him, unless such is waived by
the witness and the parties. IF THERE ARE CHANGES – IN FORM / SUBSTANCE – which the
witness desires to make – it shall be entered upon the deposition by the officer with a
statement as to the reason given by the witness as why they are being made. The
deposition is then SIGNED BY THE WITNESS, unless the parties by stipulation waive the
signing, or the witness is ill OR cannot be found OR refuses to sign.

IF NOT SIGNED, officer shall sign it and state on the record why it was not signed
together with reasons. If there is refusal to sign, the EFFECT is that the deposition then
may be used fully as though signed, unless on a motion to suppress under Sec 29 (f)
{errors or irregularities in preparation}, the Court holds that the reason for refusal to sign
require rejection of the deposition in whole or in part.

4. Once signed, 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 of the witness.
He shall then securely seal the deposition in an envelope endorsed with the title of the
action and marked “deposition of _______” to be promptly FILED WITH THE COURT
WHERE ACTION IS PENDING – OR SENT BY REGISTERED MAIL TO THE CLERK THEREOF FOR
FILING.
5. Notice of filing shall then promptly be given by the officer to all parties and upon
payment of reasonable charges, he is to furnish copies of the deposition to any party or
the deponent.

EFFECT OF NON-APPEARANCE

1. IF PARTY GIVING NOTICE FAILS TO APPEAR AND ANOTHER ATTENDS IN PERSON OR

BY COUNSEL, the Court may order the party giving notice to pay reasonable expenses
incurred to attend, including reasonable attorney’s fees.

2. IF PARTY GIVING NOTICE DOES NOT SERVE SUBPOENA AND WITNESS DOES NOT
APPEAR, Court can order party giving notice to pay reasonable expenses for
attendance plus attorney’s fees to a party who appears in person or by counsel
(Section 24)

B. DEPOSITION UPON WRITTEN INTERROGATORIES

1. Party desiring to take the deposition upon WRITTEN INTERROGATORIES shall serve
them upon every other party with notice stating: (1) name and address of the person
who will answer them (2) descriptive title and address of the person who will take the
deposition (3) Within 10 days, party served may serve cross-interrogatories on the party
proposing to take the deposition (4) Within 5 days thereafter, the latter may serve re-
direct INTERROGATORIES upon the party serving cross–interrogatories (5) within 3 days
after being served of re-direct INTERROGATORIES, a party may serve re-cross
interrogatories upon party proposing to take deposition.

2. A copy of the notice and copies of all interrogatories shall be delivered by the
party taking the deposition to officer designated in the notice, who shall proceed
promptly in the manner provided by Sections 17, 19 and 20 to take the testimony of the
witness in response to the interrogatories and to prepare, certify, and file / mail the
deposition attaching copies of the notice and interrogatories.

3. Officer must promptly give notice of filing / and may furnish copies to parties and
deponent upon payment of reasonable charges.

NOTE: that Sections 15, 16 and 18 are applicable and that by motion, it can be asked
that the deposition be upon oral examination.

4. SEE: Gerochi vs. Dept of Energy GR 159796, April 5, 2005

DISTINGUISHED FROM INTERROGATORIES TO PARTIES UNDER RULE 25

An interrogatory under Rule 25 is allowed UNDER THE SAME CONDITIONS AS SPECIFIED IN

SECTION 1, RULE 23 as to when it is to be had and is for the purpose of enabling any
party desiring to elicit material facts / relevant facts from any ADVERSE PARTY by the
filing and service upon the latter of a written interrogatory to be answered by the party
served or if party is public / private corporation or a partnership / association by any
officer thereof competent to testify in its behalf.

HOW AND WHEN ANSWERED

Responses, which must be signed and sworn to, must be filed within 15 days from
service, unless the Court on motion and for good cause shown extends or shortens the
time

CAN THEY BE OBJECTED TO

Yes, objections may be presented to the court within 10 day after service of notice as in
the case of a motion, answers shall then be deferred until objections are resolved,
which shall be as early a time as is practicable.

HOW MANY INTERROGATORIES

No party may, without leave of court, serve more than one set of interrogatories to be
answered by the same party.

SCOPE AND USE

It may relate to any matters that can be inquired into under Section 2, Rule 23 and the
answers used for the same purpose provided for by Section 4, Rule 23

EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES

Unless thereafter allowed by the court for good cause shown and to prevent failure of
justice, a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court or give a deposition pending appeal.

FURTHER DISTINGUISHING DEPOSITION UPON WRITTEN INTERROGATORIES AND WRITTEN

INTERROGATORIES

1. Any person, party or not can be required to or compelled to give a deposition

upon written interrogatories, while only the adverse party may be compelled to
answer a written interrogatory.

2. A deposition upon written interrogatory is taken before an officer, while an

adverse party without appearing before an officer shall answer them in writing and
under oath.

C. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL UNDER RULE 24 (IN

PERPETUAM REI MEMORIAM)

HOW IS A DEPOSITION BEFORE ACTION OBTAINED

By the filing of a verified petition by a person desiring to perpetuate his testimony or that
of any person in relation to any matter cognizable in any court in the Philippines in the
Court in the place of residence of the expected adverse party.

1. The CONTENTS OF THE PETITION which shall be entitled in the name of the
petitioner and should show: (a) That petitioner expects to be a party to an action in a
Court in 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 that he
desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it (d) The names or description of the person he expects will be adverse
parties and their addresses so far as known (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 SHALL THEN 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.

2. To Perpetuate means to preserve or make available testimony for later use at a

trial by means of deposition.

WHAT IS DONE AFTER PETITION IS COMPLETED

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: he will apply to the
Court at a time and place stated therein, for the order described in the petition. At
least 20 days before the date of the hearing, the Court shall cause notice thereof to be
served on the parties and prospective deponents in the manner provided for service of
summons.

WHAT WILL OCCUR THEREAFTER

If the Court is satisfied that the perpetuation of testimony may prevent a failure of
justice or delay of justice, it shall make an order designating or describing the persons
whose depositions are to be taken, specifying the subject and whether it will be upon
oral execution or written interrogatories under Rule 23. For purposes of applying Rule 23,
references to the court in which the action is pending shall be deemed to refer to
thecourt in which petition for such deposition is filed.

USE OF DEPOSITION

Deposition taken under the Rule or although not so taken, it would be admissible in
evidence, it may be used in any action involving the same subject matter contained in
petition subsequently brought in accordance with Sections 4 and 5 of Rule 23.

WHEN DEPOSITIONS PENDING APPEAL ARE TAKEN

If appeal is taken from a judgment of a Court including the CA in proper cases or

before the taking of an appeal if the time therefore has not yet expired. The Court in
which judgment was rendered may allow taking of depositions of witnesses to
perpetuate their testimony for use in the event of further proceedings in the said Court.

HOW TAKEN

Party makes a motion in said Court for leave to take depositions – upon the said notice
and service thereof as if the action was pending therein – MOTION states (1) name and
addresses of persons to be examined and substance of testimony to be elicited (2)
reasons for perpetuating testimony.

If Court finds that it is proper to avoid failure or delay of justice – it may allow the
depositions to be taken and used in the same manner and under same conditions as
prescribed for depositions in pending actions.

EFFECT OF TAKING DEPOSITIONS

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

EFFECT OF USING DEPOSITIONS

If introduced in evidence in whole/part for any purpose OTHER THAN contradicting or

impeaching the deponent, such makes the deponent the witness of the party
introducing the deposition BUT it does not apply to the use of an adverse party of a
deposition as described in Par. (b) Section 4 of Rule 23.

USE OF DEPOSITION

When can it be used? – at the trial, upon the hearing of a motion or an interlocutory
proceeding – ANY PART or ALL OF A DEPOSITION, so far as admissible under the rules of
evidence may be used AGAINST any party who was present, or represented at the
taking or had due notice thereof, in ACCORDANCE WITH THE FOLLOWING:

a. May be used by any party for the purpose of contradicting or impeaching the
testimony of deponent as a witness

b. Deposition of a party or any one who at the time of the taking was an officer,
director, or managing agent of a public/private corporation partnership/association
which is a party may be used by an adverse party for any purpose

c. Deposition of a witness, party or not, may be used by any party for any purpose if
the court finds that: (1) witness is dead (2)witness resides more than 100 kilometers from
the place of trial/hearing or is out of the Philippines UNLESS, it appears that his absence
is procured by the party offering the deposition (3) witness is unable to attend/testify
because of age, sickness, infirmity or imprisonment (4) party offering the deposition has
been unable to procure the attendance of the witness by subpoena (5) upon
application and notice, 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
witness in open court, to allow the deposition to be used.

d. If only a part of the deposition is offered in evidence by a party, the adverse

party may require him to introduce all of which is relevant to the part introduced, and
any party may introduce the other parts.

WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED AS

EVIDENCE

1. If the deponent is a party, the opposing party can use it to prove his claim or
defense. It may also be used to impeach or contradict the party deponent if he
testifies.

2. If the deponent is only a witness, his deposition can only be used to

impeach/contradict him if he testifies BUT if Paragraph (c ) of Section 4 applies, it can
be used for any purpose.

WHEN DEPOSITIONS ARE PRESENTED – CAN THEY BE OBJECTED TO- WHEN

Subject to the provisions of Section 29, OBJECTION may be made at the TRIAL or
HEARING to receive in evidence any deposition or part thereof for any reason which
would require the exclusion of the evidence if the witness were then present and
testifying.

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

2. As to disqualification of the officer is waived unless make before the taking of the
deposition or as soon thereafter as the disqualification becomes known or could be
discovered with reasonable diligence.

3. As to competency relevancy of evidence – objections as to competency of the

witness or competence, relevancy or materiality of the evidence/testimony – are not
waived by the failure to make them before or during the taking of the deposition –
UNLESS the ground of the objection is one which a right have been OBVIATED or
REMOVED IF PRESENTED AT THAT TIME

4. As to oral examination and other particulars – Errors and irregularities occurring at

the oral examination in the manner of taking, the form of the questions and answers, in
the oath/affirmation, or the conduct of the parties and errors of any kind which might
be obviated, removed or cured it promptly, prosecuted, are WAIVED, unless
reasonable objection thereto is made at the taking of the deposition.

5. As to from of written interrogatories – objections are waived unless served in

writing upon party propounding them within the time allowed for the serving of
succeeding cross or other interrogatories and within 3 days after service of the last
interrogatory authorized.
6. As to manner of preparation – objections as to 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 are WAIVED, unless a
motion to suppress the deposition or part thereof is made with reasonable promptness
after such defect is, or with due diligence, might have been ascertained.

HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS BEEN USED, WHAT
CAN ADVERSE/ OTHER PARTIES DO

1. Generally, the deponent is called to testify. Hence he may be examined/cross-

examined as permitted at the trial under Sections 3 to 18, Rule 132.

2. 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. This is called rebutting a
deposition.

IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION WHEN IT WAS TAKEN

No, because substitution of parties does not affect the right to use depositions
previously taken, when the action is DISMISSED and another action involving the same
subject is afterward brought between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly filed in the former action
may be used in the latter as if originally taken therefor.

RULE 26 – REQUESTS FOR ADMISSIONS

WHAT IS A REQUEST FOR ADMISSION

It is a written request for the (1) admission of the genuiness of any material and relevant
document described in and exhibited with the request or (2) the truth of any material or
relevant matter of fact set forth in the request. A party may file and serve a request for
admission upon any other party at any time after the issues have been joined.

EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY

Each of the matters of which an admission is requested shall be deemed admitted

UNLESS, within a period designated in the request, which shall not be less than 15 days
after service thereof or such period which the Court will allow on motion, the party
served files and serves upon the requesting party a sworn statement, either denying
specifically the matters is setting forth in detail the reason why he cannot truthfully either
admit / deny.

Objections if any shall be submitted to the Court within the period for complying and
prior to filing of the Sworn Statement – compliance is then deferred until objections are
resolved which should be done as early as practicable.
EFFECT OF ADMISSIONS

It is for the purpose of the pending action only and shall not constitute an admission by
him for any purpose or used against him in any other proceeding
THOUGH any admission, express or implied may be allowed by the court to be
withdrawn or amended upon such terms as may be just.

EFFECT OF FAILURE TO SERVE

Unless otherwise allowed by the Court for good cause and to prevent failure of justice,
a party who fails to serve a request for admission of material / relevant facts at issue on
the adverse party, which are or ought to be within the latter’s personal knowledge, shall
not be permitted to present evidence on such facts.

RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS ON THINGS

HOW

On motion of any party showing GOOD CAUSE, the COURT where the action is pending
MAY ORDER, specifying the time, place and manner AND prescribing such terms and
conditions as are just:

1. Any party to produce and permit the inspection, copying, photographing, by or

on behalf of a having party of any designated DOCUMENT, PAPERS, BOOKS,
ACCOUNTS, LETTERS, PHOTOGRAPHS, OBJECTS OR TANGIBLE THINGS – NOT PRIVILEGED –
which CONSTITUTE OR CONTAIN EVIDENCE MATERIAL TO ANY MATTER INVOLVED IN THE
ACTION which are in his possession and control, OR

2. Permit entry upon designated land or other property in his possession / control for
the purpose of INSPECTING, MEASURING, SURVEYING, TAKING PHOTOGRAPHS of the
property or any designated RELEVANT OBJECT or OPERATION thereon.

RESORTED TO DETERMINE CONTENTS, STATUS OR PRESERVATION OF THE SAME.

RULE 28 – PHYSICAL / MENTAL EXAMINATION OF PERSONS

WHEN AVAILED OF

In an action in which the MENTAL / PHYSICAL condition of a party is in controversy, a

court in its discretion, can order him to submit to physical / mental examination by a
physician.

1. It can be ordered ONLY upon motion for good cause shown, with NOTICE to the
party to be examined and to all other parties, specifying the time, place, manner,
condition and scope of the examination and person/s by whom it is to be made.
2. ONCE EXAMINATION IS COMPLETED, the party examined may request that a
detailed written report of the examining physician setting forth his findings / conclusions.

2.1 If requested and delivered, the party causing examination to be made is entitled
to request and receive from examined party a like report of the same mental / physical
examination / condition PREVIOUSLY OR THEREAFTER MADE.

2.2 If request is refused, the court on motion may order delivery by the party
examined on such terms as are just. If the physician fails / refuses to make such report,
his testimony may be excluded if his testimony is offered at trial.

2.3 NOTE a WAIVER OF PRIVILEGE that is caused by requesting and obtaining a

report of the examination ordered or by taking the deposition of the examiner, party
examined WAIVES ANY PRIVILEGE he may have in that action or any other involving
the same controversy regarding the testimony of every other person who has examined
or may thereafter examine him in respect of the same mental / physical examination.
This refers primarily to the privilege between doctor and patient.

RULE 29 – REFUSAL TO COMPLY WITH MODES OF DISCOVERY

1. If he refuses to answer upon being directed to do so or refuses to be sworn, it will

constitute CONTEMPT OF COURT. A citation in contempt shall ensue after the following
steps have been followed or observed:

a. If the party/deponent refuses to answer any question upon oral examination, the
deposition may be completed on other matters or adjourned as the proponent may
prefer.

b. The proponent may then apply for an order to compel an answer in the proper
court where the deposition is being taken. This is also applicable to interrogatories.

c. If granted, the court can order that answer be made and if it finds that refusal is
without substantial justification – it may impose upon deponent / counsel advising that
no answer be given or both – reasonable expenses and attorney’s fees in obtaining the
order. If denied and the court finds application was filed without substantial justification
proponent / counsel advising application or both may in the same manner be
sanctioned.

2. Other consequences – (applicable to Sec 1, Rule 29, Rule 27 and Rule 28) the
Court may issue an:

a. order that the matters regarding which the questions are asked, character /
description of thing or land / contents of a paper or physical / mental condition of a
party shall be taken to be established in accordance with the claim of the party
obtaining the order.
b. order refusing to allow the disobedient party to support / oppose designated
claims / defenses – or prohibiting him from introducing in evidence the designated
things / documents or items of testimony or from introducing evidence of physical /
mental condition.

c. order striking out pleadings or parts thereof or staying proceedings until the order
is obeyed, dismissing the action or proceeding or any part thereof, or rendering
judgment by default against the disobedient party.

d. In lieu or in addition to orders, the disobedient party can be ordered arrested

except in relation to a physical / mental examination.

OTHER SANCTIONS

1. Expenses on refusal to admit – if requested party serves a sworn denial and party
serving request proves genuineness / truth, he may apply for an order directing the
requested party to pay expenses incurred in making proof plus attorney’s fees. Order is
issued except if court finds good reasons for denial or admissions were of no substantial
importance.

2. Failure of a party to willfully appear before the officer taking the deposition, after
being served with a proper notice, or fails to serve answers to written interrogatories
properly served, court may on motion and notice: (a)Strike out all or any part of the
pleading of that party (b) Dismiss the action / proceeding / part thereof (c) Enter
judgment by default against that party, (d) and ,in its discretion, order payment of
reasonable expenses and attorney’s fees BUT no expenses or fees are to be assessed
against the Republic of the Philippines.