VII.

MODES OF DISCOVERY (Rules 23-28)

(1)

Modes of discovery:

(a)

Depositions pending action (Rule 23);

(b)

Depositions before action or pending appeal (Rule 24);

(c)

Interrogatories to parties (Rule 25)

(d)

Admission by adverse party (Rule 26);

(e)

Production or inspection of documents and things (Rule 27); and

(f)

Physical and mental examination of persons (Rule 28).

(2)
The importance of the rules of discovery is that they shorten the
period of litigation and speed up adjudication. The evident purpose is to
enable the parties, consistent with recognized principles, to obtain the
fullest possible knowledge of the facts and issues before civil trials and thus
prevent said trials from being carried on in the dark. The rules of discovery
serve as (a) devices, along with the pre-trial hearing under Rule 18, to
narrow and clarify the basis issues between the parties; and (b) devices for
ascertaining the facts relative to those issues (Republic vs. Sandiganbayan,
204 SCRA 212).
(3)

The basic purposes of the rules of discovery are:

(a)
To enable a party to obtain knowledge of material facts within the
knowledge of the adverse party or of third parties through depositions;
(b)
To obtain knowledge of material facts or admissions from the
adverse party through written interrogatories;
(c)
To obtain admissions from the adverse party regarding the
genuineness of relevant documents or relevant matters of fact through
requests for admissions;
(d)
To inspect relevant documents or objects, and lands or other
property in the possession and control of the adverse party; and
(e)
To determine the physical or mental condition of a party when such
is in controversy (Koh vs. IAC, 144 SCRA 259).

Depositions Pending Action (Rule 23)

Depositions before action or pending appeal
Meaning of Deposition
(1)
A deposition is the taking of the testimony of any person, whether he
be a party or not, but at the instance of a party to the action. This
testimony is taken out of court. It may be either by oral examination, or by
a written interrogatory (Sec. 1, Rule 23).
(2)
Kinds of depositions:
(a)
Deposition de bene esse one taken pending action (Sec. 1, Rule
23); and

(b)
Deposition in perpetua rei memoriam one taken prior to the
institution of an apprehended or intended action (Rule 134).
Uses
(1)
A deposition may be sought for use in a future action (Rule 24),
during a pending action (Rule 23), or for use in a pending appeal (Rule
24). If the deposition is for use during a pending action, it is commonly
called a deposition benne esse and is governed by Rule 23. If it is to
perpetuate a testimony for use in future proceedings as when it is sought
before the existence of an action, or for cases on appeal, it is called a
deposition in perpetuam rei memoriam. Any or all of the deposition, so
far as admissible under the rules of evidence, may be used (a) against any
party who was present or represented at the taking of the deposition, or
(b) against one who had due notice of the deposition (Sec. 4, Rule 23).
(2)
The deposition may be used for the following purposes:
(a)
For contradicting or impeaching the testimony of the deponent as a
witness;
(b)
For any purpose by the adverse party where the deponent is a party;
(c)
For any purpose by any party, where the deponent is a witness if the
court finds that:
(1)
The witness is dead;
(2)
The witness resides more than 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;
(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 witnesses by subpoena; or
(5)
When exceptional circumstances exist (Sec. 4, Rule 23).
Scope of examination
(1)
Unless otherwise ordered by the court as provided by Sec. 16 or 18,
the deponent may be examined regarding any matter not privileged, which
is relevant to the pending action, whether relating to the claim or defense
of any other party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things
and the identity and location of persons having knowledge of relevant
facts (Sec. 2).
When may Objections to Admissibility be Made
(1)
Subject to the provisions of Sec. 29, objection may be made at the
trial or hearing to receiving 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 (Sec. 6).
When may taking of deposition be terminated or its scope limited
(1)
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 manner as reasonably to annoy,
embarrass, or oppress the deponent or party, 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 to cease forthwith from taking
the deposition, or may limit the scope and manner of the taking of the
deposition, as provided in Sec. 16, Rule 23. 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 (Sec. 18).

Written interrogatories to adverse parties

Consequences of refusal to answer
(1)
If a party or other deponent refuses to answer any question upon
oral examination, the examination may be completed on other matters or
adjourned as the proponent of the question may prefer. The proponent may
thereafter apply to the proper court of the place where the deposition is
being taken, for an order to compel an answer. The same procedure may
be availed of when a party or a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or
deponent to answer the question or interrogatory and if it also finds that
the refusal to answer was without substantial justification, it may require
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 attorneys fees.
If the application is denied and the court finds that it was filed without
substantial justification, the court may require the proponent or the counsel
advising the filing of the application, or both of them, to pay to the refusing
party or deponent the amount of the reasonable expenses incurred in
opposing the application, including attorneys fees (Sec. 1, Rule 29).
(2)
If a party or other witness refuses to be sworn or refuses to answer
any question after being directed to do so by the court of the place in which
the deposition is being taken, the refusal may be considered a contempt of
that court (Sec. 2, Rule 29).
(3) If any party or an officer or managing agent of a party refuses to obey
an order made under section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27 to produce any document
or other thing for inspection, copying, or photographing or to permit it to
be done, or to permit entry upon land or other property, or an order made
under Rule 28 requiring him to submit to a physical or mental examination,
the court may make such orders in regard to the refusal as are just, and
among others the following:
(a) An order that the matters regarding which the questions were asked, or
the character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party, or any other
designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in
evidence designated documents or things or items of testimony, or from
introducing evidence of physical or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further

proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default against
the disobedient party; and)
(d) In lieu of any of the foregoing orders or in addition thereto, an order
directing the arrest of any party or agent of a party for disobeying any of
such orders except an order to submit to a physical or mental
examination (Sec. 3, Rule 29).
Effect of failure to serve written interrogatories
(1)
A party not served with written interrogatories may not be compelled
by the adverse party to give testimony in open court, or to give deposition
pending appeal, unless allowed by the court or to prevent a failure of
justice (Sec. 6, Rule 25). This provision encourages the use of written
interrogatories although a party is not compelled to use this discovery
procedure, the rule imposes sanctions for his failure to serve written
interrogatories by depriving him of the privilege to call the adverse party as
a witness or to give a deposition pending appeal.
Request for admission (Rule 26)
(1)
A party, although not compelled by the Rules, is advised to file and
serve a written request for admission on the adverse party of those
material and relevant facts at issue which are, or ought to be, within the
personal knowledge of said adverse party. The party who fails to file and
serve the request shall not be permitted to present evidence on such
facts (Sec. 5, Rule 26).
Implied admission by adverse party
(1)
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 fifteen (15) days after service thereof, or within such
further time as the court may allow on motion, the party to whom the
request is directed files and serves upon the party requesting the admission
a sworn statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters (Sec. 2, par. 1).
(2)
Objections to any request for admission shall be submitted to the
court by the party requested within the period for and prior to the filing of
his sworn statement as contemplated in the preceding paragraph and his
compliance therewith shall be deferred until such objections are resolved,
which resolution shall be made as early as practicable (Sec. 2, par. 2).

Consequences of failure to answer request for admission

(1)
The facts or documents are deemed admitted. Under the Rules, 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 within such further time as
the court may allow on motion, the party to whom the request is directed
files and serves upon the party requesting the admission a sworn
statement either denying specifically the matter of which an admission is

requested or setting forth in detail the reason why he cannot truthfully

either admit or deny those matters.
Effect of admission
(1)
Any admission made by a party pursuant to such request is for the
purpose of the pending action only and shall not constitute an admission by
him for any other purpose nor may the same be used against him in any
other proceeding (Sec. 3).

Effect of failure to file and serve request for admission

(1)
A party who fails to file and serve a request for admission on the
adverse party of material and relevant facts at issue which are, or ought to
be, within the personal knowledge of the latter, shall not be permitted to
present evidence on such facts (Sec. 5).
Production of inspection of documents or things (Rule 27)
(1)
Upon motion of any party showing good cause therefor, the court in
which an action is pending may:
(a)
Order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, 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 which are in his
possession, custody or control; or
(b)
Order any party to 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 photographs,
and may prescribe such terms and conditions as are just.
(2)
Requirements for the production or inspection of documents or
things:
(a)

A motion must be filed by a party showing good cause therefor;

(b)
The motion must sufficiently describe the document or thing sought
to be produced or inspected;
(c)

The motion must be given to all the other parties;

(d)
The document or thing sought to be produced or inspected must
constitute or contain evidence material to the pending action;
(e)
The document or thing sought to be produced or inspected must not
be privileged; and
(f)
The document or thing sought to be produced or inspected must be
in the possession of the adverse party or, at least under his control (Sec. 1,
Rule 27; Lime Corp. vs. Moran, 59 Phil. 175)

Physical and mental examination of persons (Rule 28)

(1)

Requirements of physical and mental examination of persons:

(a)
The physical or mental condition of a party must be in controversy in
the action;
(b)

A motion showing good cause must be filed; and

(c)
Notion of the motion must be given to the party to be examined and
to all the other parties (Secs. 1 and 2).
(2)
Rules governing the rights of parties on the report of the examining
physician regarding the physical or mental condition of party examined:
(a)
The person examined shall, upon request, be entitled to a copy of
the detailed written report of the examining physician setting out his
findings and conclusions;
(b)
The party causing the examination to be made shall be entitled upon
request to receive from the party examined, a like report of any
examination previously or thereafter made, of the same physical or mental
condition;
(c)
If the party examined refuses to deliver such report, the court on
motion and notice may make an order requiring delivery;
(d)
If a physician fails or refuses to make such report, the court may
exclude his testimony if offered at the trial;
(e) The party examined who obtains a reports of the examination or takes
the deposition of the examiner waives any privilege he may have in that
action or any other action 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 or physical examination(Sec.
4).
Consequences of refusal to comply with modes of discovery (Rule
29)
(1)
The following are the consequences of a plaintiffs refusal to make
discovery:
(a)
The examining party may complete the examination on the other
matters or adjourn to the same (Sec. 1);
(b)
Thereafter, on reasonable notice to all persons affected thereby, he
may apply to the court of the province where the deposition is being taken
for an order compelling answer;
(c)
If the court finds that the refusal was without substantial
justification, it may order the refusing party or the attorney advising him or
both of them to pay the examining party the amount of reasonable
attorneys fees;

(d)
The refusal to answer may be considered as contempt of court (Sec.
2);
(e)
The court may order that the facts sought to be established by the
examining party shall e taken to be established for the purpose of the
action in accordance with the claim of the party obtaining the order (Sec.
3[a]);
(f)
The court may issue an order refusing to allow the disobedient party
to support or oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items of
testimony (Sec. 3[b]);
(g)
The court may order the striking out of pleadings or party
thereof (Sec. 3[c]);
(h)

The court may stay further proceedings until the order is obeyed;

(i)
The court may dismiss the action or proceeding or any party
thereof, or render judgment by default against the disobedient party (Sec.
5);
(j)
The court may order the arrest of any party who refuses to admit
the truth of any matter of fact or the genuineness of any document to pay
the party who made the request and who proves the truth of any such
matters or the genuineness of such document, reasonable expenses
incurred in making such proof, including reasonable attorneys fees (Sec.4)