Rule 23

Note: Please review in the recording the words in red. Thank you. Goodluck!
JS: discovery. Because if we were looking at the expiration of the finale. This is
actually one which will assess in the trial of the case. In fact, this mode of discovery
will actually help facilitate the case. in actual application of the case, when the
court issues a summon, we are supposed to issue also a model (1:11) in acquiring
from the parties, specifically the plaintiff, of the modes of discovery. And you notice
that this is justified because one of the sections will talk about an instance whether,
like a deposition, requires leave of court or without leave of court (1:40) that order
is justified.
If in case there is an order issued by the court inquiring from the parties
whether they would like to avail of any of the modes of discovery and no response
was submitted by either parties, one of the effects there either in Rule 29, the other
party is not allowed to present the other party as an adverse witness. That is one.
There are times when you can present the other parties as hostile or adverse
witness. That is one of the consequences if the court issues an order to the parties
inquiring if they would like to avail of the odes of discovery but they choose not to
respond to it. So while trial is going on, if the other party feels that they have to
present the other party as hostile or adverse witness, they could not do so because
of failure to respond to the court for them to avail of the rule of discovery. One of
the consequences of Rule 29.
But in reality, this is rarely used by lawyers, except in Rule 23, deposition.
That is the most common, particularly when the witness is sick, infirmed, disabled,
and cannot hear a word, your witness is living outside the Philippines and you do
not know when he will return and his testimony is dispensable or the instances
where the witness resides in more than 100 kilometers from the place of the court
where the trial is supposed to be dealt. More often than not, in reality, you can avail
of the first mode of discovery which is deposition pending action.
(Jalucilha called)
JS: Can you explain what are these modes of discovery?
J: The different modes of discovery are deposition before a trial
JS: Is it deposition before trial or pending action? There is a great difference to using
the words before trial and pending action. Next, under rule 24?
J: deposition before action or pending appeal.
JS: Next?
J: Preempt derogatoris (05:49) or admission by adverse parties.

JS: next.
J: Production or inspection of documents.
JS: Usually there are instances when a lawyer would not actually present all his
evidences. The test there is to file a motion for production of these documents para
you would know what these documents are. For example, you are for the defendant,
and you would like to protect the interest of your client because some of these
documents are actually withheld by the other party, you would do so. And the last?
This one is not so common.
J: Physical and mental examination of a witness.
JS: The most difficult part of these rules is rule 23, deposition pending action. The
other name for that is what? Deposition viten est (7:37). Take note of that. Okay.
And this one is used for a pending action. And if you are to make comparison of this
to rule 24, deposition before action or pending appeal, where has the deposition are
being distributed (08:06) in rule 23 and rule 24?
J: In a deposition for payment or for use of payment (08:24)
JS: Yeah, this is to perpetuate the testimony of the witness for use for future. It will
be the proceedings. As we sought before the case is filed in court or on appeal. And
if rule 23 is deposition ******* (8:55), rule 24 is ?
J: -----JS: okay, the 23 applies to deposition pending action while 24, this refers to
deposition wherein one perpetuate the testimony of a client for use for future
proceedings as when you want the sala match them later (9:38), or for purposes of
appeal. Thats why its called rain in making (9:47).
Now, we got o rule 23. If you want to avail of deposition pending action under
rule 23, is there a need for leave of court (10:20)?
J: There is a
JS: I repeat. If you want to avail of a deposition of a witness and there is a pending
case, will you have to file a motion in court to allow the taking of a testimony of a
witness by way of deposition?
J: It depends.
JS: What it depends?
J: It is necessary for service of answer, before the service of answer
JS: So leave of court, if this is made before service of answer was served by the
defendant to the plaintiff, and therefore?

J: It is necessary if
JS: Again, making it simpler , according to rule 23, leave of court is given (11:47), if
you want to make a deposition of a witness before service of the answer by the
defendant. Which means to say, if service of the answer of the defendant is already
made, then the making of the deposition of the witness is without merit. Is that
what you mean?
J: Yes sir.
JS: Correct. Okay. So it is now clear already. So leave of court is given if answer has
been served but leave of court is needed before a service of an answer but after the
court acquires jurisdiction over the person. I repeat. Leave of court is not required
after an answer has been served, so that if an answer has been served already , if
not yet served then leave of court is necessary.
What is the rationale behind this so? Why is it leave of court is not required if
answer is already served while leave of court is required if the answer is not yet
served by defendant to the plaintiff as long as the court will acquire jurisdiction of
the defendant? Do you know the rationale why is this so?
J: Plaintiff must avail during the issues
JS: Did we give a rationale why is this so? If the leave of court is required if no
service of answer but not required if answer was already served?
J: issues
JS: Would t mean that the rationale why is it that there has to be leave of court the
fact that the defendant did not file his answer yet?
J: Yes. It is the service of the answer which is
JS: I repeat. How come that the rationale [we could not leave this], what is the
reason why is it that leave of court is not required after an answer has been served
but required if the answer is not yet served as long as the court has already
acquired jurisdiction over the person of the defendant? So meaning to say there
must be a motion, did the author give you the rationale why is that so?
J: I did not
JS: I will not give you an explanation so sorry to tell if I had to tell you to read ore
reano more than regalado. Dapat pa la you more have to read regalado more than
reano. Okay. So we will deal on that tomorrow.
Now, what about if the deposition is for a reasoning? What is it?
J: If to file

JS: If you want to take the deposition of a prisoner, what does it mean?
J: It would mean that plaintiff is in prison. (16:41)
JS: what is the reason also why is it that making of a deposition of a prisoner is with
limit?
J: It refer on the courts
JS: In connection yan with our discussion with ***** (17:02)
[Kims voice: acquired jurisdiction]
JS: If one is judged by an offence punishable by death, reclusion perpetua , reclusion
, life imprisonment, and is a detention prisioner, it cannot be removed unless there
is an order by the Supreme Court. Did we take that up yesterday? Parang I did not
noh? That is very important because that is the reason why is it there has to be
leave of court because a witness cannot just testify and obey at the witness stand
unless it is authorized by the court and the court is authorized by the supreme
court. And that is another justification for one, not obey a subpoena, one, if he
resides more than 100 kilometers from the court when the trial is supposed to be
dealt, and in cases of detention prisoner because a detention prisoner cannot be
brought out to testify in court if the same is authorized by the supreme court. That
is the reason why is it that there has always to be a reason for leave of court if you
want to take the deposition of a prisoner. Very clear in one of the sections of this
particular rule.
So we are now clear. Now, before whom should a deposition be made?
J: If a deposition is
JS: You have to make a qualification whether a deposition will be taken in the
Philippines or the deposition is supposed to be taken outside of the Philippines. So if
the deposition is supposed to be taken outside or even in the Philippines, then
before whom should it be made?
J: It can be made before judge.
JS: Yeah, although it is not required to be made before a judge but nevertheless, it
can be made before a judge. Second?
J: Notary public.
JS: Notary public.
J: Any person.
JS: Any person who is authorized to administer oath. But there is a qualification
there. What is the qualification?

J: Stipulated by the parties.

JS: Yeah, as long as the same is actually stipulated by the parties. And these taking
of deposition is outside of the Philippines, it can be made before?
J: Secretary of the embassy, general or consul, any person authorized
JS: legation, consul, general, vice consul, consular agent of the republic of the
Philippines, any person authorized by Commission or letter rogatori (21:12), any
person authorized to administer oath as long as stipulation of the parties in writing.
Okay, last question. What is a commission and what is letter rogatori?
J: Comission is for administration of court of justice or other similar taking of
deposition. Letters of rogatori are instrument sent in the name of the judge or court
to another requesting the judge of the latter to be examined upon interpose (22:36)
JS: The most important is letter rogatori and what is important is that you know
how to make this. This is supposed to be part of your legal forms or legal writing
and conveyancing.
And that is the difference between a commission and letter rogatori. And if a
person is given a commission or letter rogatori then the taking of the deposition of a
witness outside of the Philippines can be made before it. Little similarity of in and
outside of the Philippine, we put emphasis, if we refer to the third person make
authorized to administer oath there is necessity , that it must always be stipulated
in writing by the parties whether it be in the Philippines or outside the Philippines.
We are clear on that point now. So, one by one. We take note of the difference
between rule 23 and rule 24. We took note, in reference to rule 23, leave of court is
required. And third, before oath to a judge and whether it is to be taken outside or
in the Philippines.
(Villalon called)
JS: what is the form when there is a making of a deposition?
V: It can be written or oral.
JS: Correct. It can be upon oral examination or it can be in writing in the form of
questions and answers. But most often than not, in reality, we resort to oral
examination because it is as if you are just presenting a witness while a witness
while away is testifying in court. That is usually what happens. It is not before a
judge, it can be before a judge or it can be of any person enumerated by the law.
But in connection with either oral or written examination in the form of questions
and answers, particularly upon oral examination, dapat how is this supposed to be
done before an oral examination of a deposition is supposed to be made?

V: There is a reasonable notice in writing of the parties before the action.

JS: and what is the purpose of that? There must be a notice to be sent to every
party in the action and what should be the content of that? Parang subpoena ano.
V: Name and time.
JS: yeah, stating the name and time of deposition is supposed to be made. And
after, lets say, the notice is served, will the court issue an approval?
V: Yes sir, upon motion of the defendant (27:06)
JS: yes, and that would be for the protection of the parties and the proponents. It
always goes along with the order issued by the court after notice was already
served and a copy for every party of the action, the court will make an order for the
protection of the parties and of the proponents. Because actually, in reality, para
talagang you are presenting a witness before that particular person to whom the
deposition is made. Therefore, there must be notice because the other party must
be present because they will also conduct their own cross examination. If not,
according to law, if the witness refuses, what will the court do?
V: sign the .
JS: The court will issue a subpoena to compel attendance of these particular
witnesses. Okay, the oral examination was already being made on the time and
place stipulated in the notice. While the deposition of the witnesses is being
undertaken, particularly on direct examination, the other party objected to such
questions, can the person to whom the deposition can take rule (29:03).
V: No sir.
JS: Take note of that when you become lawyers, the person to whom deposition is
being taken is not allowed to rule on whatever objections raised by the other party.
That will just be second to rule out by the court during trial of the case. So the
entirety of the deposition must be presented in court. You are not allowed to rule on
any objection. So it is free flowing testimony on direct examination and in cross
examination, redirect and be crossed if that is done by way of an oral examination.
What about if this is a deposition in writing made in questions and answers form,
what should be the rule?
V: The party proposing the inquisition shall serve notice to the party who will
answer stating the name and addresses of the parties.
JS: is it necessary that the other party is given notice in advance a copy of the
deposition in the form of question and answer? Is that necessary? Because earlier,
what we were discussing was oral examination. We should now to what we call as
written because that can be another rule. He is correct. There must also be a notice

stating the time and the place where the deposition is to be made. My question is,
must be the other parties be given a copy of that particular deposition in the form in
writing in question and answer form. Parang you are making actually a judicial
affidavit.
V: yes sir
JS: Yes. Because he has also make a written cross examination based on the
answers in the written deposition. So that is necessary. He must be served for him
to be also be prepared in writing his cross-examination. After all of this deposition is
completed, can this used? To whom can this be used?
V: any party present in the making of deposition and the parties to be notified in the
making of the deposition
JS: or, the one who was given notice of the deposition. It can be used against any
parties who was present or represented in the making of the deposition, against one
who had due notice of the deposition. And one last question, deposition can be used
in the following instances, memorize that.
V: if they are reaching (33:54) for a proponent as a witness.
JS: Correct. No. 2?
V: for any purpose of the adverse party, if the proponent is a defendant.
JS: Correct.
V: for any purpose, if the court finds the following: first, the witness is dead, two, if
its exercised beyond the regular place of the trial, no.3 if the witness is unable to
testify due to sickness, intermitage or represented (33:39), no. 4 the person
proposing the deposition was not able to secure the attendance of witness by
subpoena. No. 5, other exceptional circumstances of the witnesses.
JS: Thank you. Earlier, as you were listening to the answer Ms. Capoquian of Mr.
Villalon when I asked him whether the written in derogatoris, this is simply
(cellphone rings)
JS: if you dont mind the cellphone. In my court, 1 ring is 200 pesos. But I will not
impose it as it is not sanctioned at all. Okay
The other party must be given a copy of written in derogatori. Actually para
lang syang sworn statement in the form of question. Para lang syang actually a
judicial affidavit, question-answer. That is what we mean by written in derogatori. As
we have been told earlier, there must be a service attached to the other party
because it has to submit also cross in derogatoris. Within how many days?

C: 10 days
JS: 10 days from receipt of the written in derogatori. Tapos upon receipt of the cross
in derogatoris, the other party who submitted written in derogatori is given how
many days?
C: 5 days
JS: which to?
C: to file a re
JS: so para talagang representing a witness. Re? redirect? Derogatoris, how many
again? 5? And the other party again upon receipt of the redirect has also 3 days
within which to submit recross in derogatoris. Kasi, when you present a witness, you
conduct a direct examination. The other counsel will conduct a cross examination.
Now the cross examination in the court will ask any direct examination? now of
there us a direct examination, definitely there has to be a recross examination.
At the end of the day, you can now picture that para ding you are actually
presenting a witness in court.
Can this deposition be made by a way of an excuse for a witness to testify?
Can a deposition be made as an excuse ba to present a witness? Its not in the book
of reano
C: the deposition can be used at trial
JS: some would say that I will file a motion for a deposition of a witness because
my witness does not want to appear in court. Is that valid?
C: No sir.
JS: No. at the outset of the making of a deposition, should not be guarded as an
excuse for a witness to testify in court. Because at the end of the day, the preferred
mode is still for a witness to testify in court. Precisely, as mentioned by Mr. Villalon
Riel who memorized all the provisions. There may only be instances where this may
be resorted to, the witness is dead, the witness is a firm, is sick, the witness is might
be living outside of the Philippines because these are actually exception
circumstances. So it is not a resort to a witness who doesnt want to testify in court.
Because the preferred mode actually is for the witness to testify in court. Why?
Because under the rules of evidence. The judge has to observe the gesture, the
demeanor of a witness, and the trial court is at the best position to actually observe
the gesture, the demeanor of a person who is actually testifying in court. We have
this because there are instances where the witnesses cannot appear in court, the
court allows the taking of a deposition upon written or oral examination or upon
written in derogatoris.