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CIV PRO Feb. 16, 2014
Rule 23
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N.B. Difference between subject matter and issues

N.B. Rule 72: as far as practicable, rules for ordinary civil actions apply to
special civil actions
action has been dismissed dismissal of the previous action was without
prejudice
Transfer of interest during the pendency of an action will not affect the right to
use the depositions previously taken. Depositions may still be used as if
nothing happened. (VAA)
Transferee v. substitute; see Rule 3, 19
Rationale: It involves the same interest; only the bearer changed.

Rule 25
Pros of Rule 25 over Rule 23:
o Rule 25 is more expeditious; (1) party does not have to go through a
deposition officer and may go directly to the adverse party, (2) objections
must be ruled on by the court (vis--vis Rule 23, where they are merely noted)
o Under Rule 25, the answer is evidence already, i.e. need not be offered in
evidence anymore (basis: there is no mention of offering); under Rule 23, the
deposition must be offered first (see Rule 23, 7, 8N.B. deposition is the
only mode where it must be offered first).
Note also that in Rule 25 and 26, it is the party who files and serves;
compare with Rule 23, 20, where it is the deposition officer who files
and serves
2:
o 10 days for objections, 15 days for answer rule made to avoid a partial
objection, partial answer (see Omnibus Motion Rule)
o Objections are embodied in an Omnibus] motion (3); they must be heard.
If they are not embodied in a motion, the objections are waived.
Without a hearing, it would be a mere scrap of paper.
VAA: There is no sense in limiting Rule 25 to adverse parties (see 1). Per the context,
it may be used against any party.
o Co-parties can sue each other. There should be no reason why they cannot
use this mode of discovery against each other.
o Compare Rule 26, which can only be against the adverse party.
N.B. Admissions are used in two senses:
Admission in the procedural sense
Admission in the evidentiary sense seeking to trap an
adverse party in making a statement against his (the adverse
partys) own interest (see Rule 130.26); elements: (1) there is a
party, (2) he did or omitted to say something, whether in or out
of court (judicially or extrajudicially), (3) so long as the act,
omission or statement is to a relevant fact
Hence, if admission in Rule 26 is in the evidentiary sense, it is the
reason why it is limited to particular admissions: only a party who has
an interest in the adverse partys admission may raise it.
If what is sought is admission in the procedural sense, use Rule 25
How answers in R. 25 may be used R. 23, 4
6: only exceptions are (1) good cause shown, and (2) to prevent a failure of justice

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VAA: But generally, courts are not strict (because were not used to modes of
discovery; in the US, 90% of cases are settled because of advanced use of
modes of discovery)

Rule 26
1:
At any time after issues have been joined," i.e. at the filing (?) of an answer
Limited to documents, i.e. written words, figures, etc. that represent the truth
of what it contains (hence, photographs not included), in whatever medium
2: Implied admission when there is neither objection nor sworn statement;
o Three types:
1. No sworn statement
2. No sworn statement but no specific denial
3. No sworn statement but no details regarding the denial
o Objections would be deemed waive
3: [Implied] admissions strictly only for this case
o VAA: Common sense tells you that:
Express admission under Rule 26 is a judicial admission, i.e. it
cannot be controverted subject only to two exceptions
Implied admission is not a judicial admission. Under Rule 129,
judicial admissions are verbal. The implied admission only has value in
that particular context. It would be unfair, baseless and illogical
to construe it as an admission in any other context.
o VAA: Hence, 3 does not contemplate express admission.
4: Withdrawal limited to implied admissions and allowed precisely because they
are not judicial admissions
o VAA: It would not make sense if the rule would apply to express admissions,
which are judicial (and therefor cannot be withdrawn)
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Rule 27: Motion for Production and Inspection of Documents or Things

1: Court may order only a party, not any person
o Rationale:
o Q: Can a private party secure documents via subpoena duces tecum as a
mode of discovery?
A: NO. Reasonable description requirement. Applicant must already
know the document he seeks to procure.
Remedy: Deposition (R. 23)! So you can find out what documents to
seek.
N.B. Subpoena is not a mode of discovery.
Requisites: (1) relevant, (2) not privileged, (3) under the control, custody, and
possession
Spirit of the rule would allow video recordings to be included in the enumeration
under (a) [also, ejusdem generis]
Under (b), property need not be the subject of litigation; for as long as it is relevant to
the action.
o Neet not be real property. VAA: Pwede yacht, pwede car.
Operation, i.e. processes (e.g. manufacturing)
Rule is silent as to when this can be used, but VAA thinks Rule 26 standard should be
applied (since Rule 27 is highly intrusive).
Rule 28: Physical and Mental Examination of Persons
Limited to persons. (VAA: Di kasama dogs!)

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Rule also silent as to when, but VAA also thinks that Rule 26 standard must apply
more so, since Rule 28 is more intrusive than Rule 27.
Only (1) physical, or (2) mental (condition of the mind, e.g. sanity).
Examination of the present condition (e.g. so in an action for annulment of
marriage, cannot be granted; might be irrelevant [unless the allegation is the nature
of the illness is prolonged and continuous, e.g. schizophrenia]) But see Chan v.
Chan
1: Physician = with a govt license; so if a psychiatrist has a medical license, he is
qualified under R. 28
o VAA: The reason why psychologists (not physicians) are allowed in declaration
of nullity cases is because of jurisprudence, not because of R. 28
Peculiar rules in 3-4
o VAA: Whether you request or not must depend on your strategy
o Duty is on the party to deliver. ( 3) Duty is on the physician to make the
report. (Id.)
o Physician who made the report that was not delivered cannot testify.
Note: Physician-patient (as in lawyer-client relationship) is not a ground for
dismissal; it can only be invoked (i.e. objection) when the physician is testifying.
o Past medical reports may be the proper subject of discovery.
o Rule 130.24(c) cannot be invoked.
o Remedy of the plaintif (e.g. insurance company): DEPOSITION!
VAA: As to non-parties, this is the standard solution
Q: Can the party to be examined invoke Rule 130.24(c) during taking of the
deposition?
A: No. Objection noted down only (Rule 23, 6)
Bottom line: Privilege under Rule 130.24 cannot be invoked in a Rule 28
examination.
o VAA: Rationale is in the philosophy of discovery; eh di bakit ka pa nagdiscovery kung covered naman ng Rule 130.24?

Rule 29
Reliefs
Refusal to answer (under R. 23, 25)
a) Order of the court to compel (recalcitrant) deponent to answer
b) Payment of expenses
c) [As to Rule 25] Rule 29.5
a. Strike out
b. Dismiss the action or any part thereof
c. Enter a judgment by default against that party (i.e. any claim of that
party)
d. [Payment of reasonable expenses]
d) [After Order and deponent still refuses to answer] Contempt (Rule 29.2)
e) [After Order and deponent refuses any of the ff.] Rule 29.3
a. R. 27: Deemed to be established basis is judicial notice
b. R. 28: Refusing to allow part to support or opposed (i.e. cannot
present evidence)
c. Striking out pleadings
d. Arrest, except for R. 28 (Rationale: against human rights)
Refusal of admission (under R. 26)
o Payment of reasonable expenses
o Exceptions: (1) good reasons for denial, or (2) admissions sought were of no
substantial importance