Modes of Discovery

Discovery is a device employed by a party to obtain information about relevant matters on the case
from the adverse party in the preparation for trial. This may be used by all the parties to the case.
Purpose:
To enable the parties to obtain the fullest possible knowledge of the issues and evidence long
before the trial to prevent such trial from being carried on the dark.
Importance: To shorten the period of litigation and speed up adjudication.

- Not mandatory but failure to avail carries sanctions in Rule 25

- Discovery still applies even if Motion for Bill of Particulars denied
Modes of Discovery:
1. Depositions pending action
2. Depositions before action or pending appeal
3. Interrogatories to parties
4. Admission by adverse party
5. Production or inspection of documents
6. Physical and mental examination of persons

RULE 23 DEPOSITIONS PENDING ACTION (Deposition de benne esse)

Deposition:

- the written testimony of a witness given in the course of a judicial proceeding, in advance of the
trial or hearing upon oral examination or in response to written interrogatories and where an
opportunity is given for cross examination (Republic vs Sandiganbayan)

- intended as a means to compel disclosure of facts resting in the knowledge of a party or other
person, which are relevant in a suit.
Two Methods:
1

Oral Examination - presence of deponent and the counsels are necessary

7. Written interrogatory - the presence of deponent and counsels are not necessary

Deponent

- any person used by any party for contradicting or impeaching testimony of deponent as witness.
- a party or any one who at the time of deposition was an officer, director or managing agent of a
public or private corporation, partnership or association.

- Witness, whether or not a party.

Sec.1 When may be taken

With Leave of Court

1. Before service of answer but after
jurisdiction over the person of defendant

Without Leave of Court

1. After answer has been served

2. Deposition of a person confined in prison 2. Answer ex abundant cautela

3. Person not confined in prison

Whom may be taken

Any person, whether a party or not, may be taken, at the instance of any party
Sec. 2 Scope of Examination
The deponent may be examined on all matters:
1. Not privileged
2. Relevant to the subject of pending action made by the pleadings
3. Not restricted by a protective order (Sections 16 and 18)

Sec. 3 Examinations and Cross-Examinations

Deponent may be examined or cross-examined following the procedures for witnesses in a
trial. He has the same rights as a witness.

Sec. 4 Use of Depositions

Used of Deposition
1. Trial

Used against Whom

Present at the time of taking

2. Hearing of motion

Represented at the time of taking

3. Hearing of an interlocutory order

Notified at its taking

Instances where deposition of any witness may be used for any purpose:
a. Witness is dead
b. Resides more than 100km from the place of trial or hearing, or is out of the country,
unless his absence was procured by the party offering the deposition
c. Witness in 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
e. Upon application and notice, that such exceptional circumstances exist
Note: Certiorari will not lie against an order admitting or rejecting a deposition in evidence. Remedy
is an appeal from final judgment assigning as error the admission or rejection of a deposition.

Sec. 5 Effect of Substitution

Substitution of parties does not effect the right to use depositions previously taken.

Sec. 6 Objections to Admissibility

Made at the trial or hearing to receiving in evidence any deposition or part
Sec. 9 Rebutting Deposition
At the trial or hearing, any party whether introduced by him or by any other party may rebut
any relevant evidence contained in a deposition.

Effect of Taking Deposition (Sec. 7)

General Rule

Effect of Using Deposition (Sec. 8)

A party shall not be deemed to make a

Introduction of deposition binds the

person his own witness

party who introduces it, makes the

deponent his witness

Exception

A party offers the deposition in evidence 1. Introduced to impeach or

contradict the witness
2. Deposition of an opposing party

Exemption to

(1) deposition is that of an opposing

the exception:

party or (2) deposition is used to

impeach or contradict the deponent

Persons before
whom
deposition may
be taken

Sec. 10 within the Philippines

Sec. 11 in foreign countries

One notice before a secretary of embassy

Judge

or legation, consul general, consul, viceconsul or consular agent of the Phil

person or officer as may be appointed by

Notary Public

commission or under letters rugatory

Any person authorised to

Any person authorised to administer

administer oaths, as stipulated by

oaths, as stipulated by the parties in

the parties in writing

writing

Sec. 12 Commission or Letters Rugatory

Commission

Letters Rugatory

an instrument or order issued by a court of justice to

authorise a person take depositions

a request issued by the local court addressed to a

foreign court, requesting the latter to take deposition
of person who is within its territorial jurisdiction

issued to a non-judicial foreign officer

issued tio appropriate judicial officer of the foreign

country who will direct somebody to take down
testimony

rules of procedure of the requesting court applies

rules of procedure of the foreign court applies

leave of court is not necessary

leave of court is necessary

Sec. 13 Disqualification by interest

No deposition shall be taken before a person who is:
1. A relative within the 6th degree of affinity or consanguinity
2. An employee or counsel of any parties
3. A relative within the same degree, or employee of such counsel
4. Financially interested in the action

Sec. 14 Stipulations regarding taking of depositions

Within the country, a deposition may be taken, before any person authorised to administer
oaths if the parties so stipulate in writing

Sec. 16 Orders for protection of parties and deponents

Perpetuation of Testimony - instance where the deposition of a person be taken every before a
case is filed.

- petition to be filed for purpose of perpetuating testimony must be filed in with the RTC because it
is a petition incapable of pecuniary estimation.

- no summons issued since no defendant yet.

- court will issue notice that will inform potential adversaries of the request for the perpetuation of
testimony.
Sec. 28 Orders for protection
After service of interrogates and prior to taking of testimony, the court in which action is
pending, on motion by party or deponent, and for good cause may make:
1

any order under Sec. 15, 16 and 18 which is appropriate and just

8. order that (a) deposition shall not be taken before the officer designated in the notice; or (b)
shall not be taken except upon oral examination.

Sec. 18 Motion to terminate

May be filed:
1

Any time during the taking of deposition

9. Motion or petition of any party or deponent

10. Upon showing that examination conducted is: (a) bad faith or (b) in such manner as
unreasonably to annoy, embarrass or oppress the deponent or party
Note: When right against self-incrimination is invoked by deponent or his counsel, the trial court
may stop examination

Protection Order (Sec. 16)

Motion to Terminate or Limit Examination
(Sec. 18)
Protection to party or witness before the taking

provides protection during the taking of

of deposition

deposition

Motion is filed with the court in which the action

Motion or petition is filed in court which the

is pending

action is pending or the RTC of the place where

the deposition is taken

Sec. 19 Submission to witness

- Testimony fully transcribed, shall be submitted to witness for examination and shall be read to
him, unless it is waived by the witness and parties.

- if there may be some changes in form and substance, the officer shall entered such in the
deposition with a statement reasons given by witness

- signed by witness, unless parties waived the signing or witness is ill or cannot be found
- if not signed, the officer shall signed it and state the record the fact of waiver with the reasons.
- deposition may be used as fully as though signed unless on a motion to suppress under sec. 29.
- refusal to sign require rejection of the deposition
Failure to attend of party giving notice (Sec. 23)
1. Party giving the notice fails to attend and proceed

Failure of party giving notice to serve subpoena

(Sec. 24)
1. Party giving the notice of taking of deposition of
witness fails to serve a subpoena upon him

2. Another attends in person or by counsel pursuant

to notice

2. Witness fails the attend because of failure to

serve subpoena
3. Another party attends in person or by counsel

Note: In both cases, the court ay order the party giving notice to pay such other party the amount
of the reasonable expenses incurred bu him and his counsel in attending, including reasonable
attorneys fees.
Sec. 15 Deposition upon oral examinations
A party designated to take deposition of any person upon oral examination shall give
reasonable notice in writing to every party to the action.
Notice shall state:
1

The time and place

11. Name and address of each person to be examined, if known. If name is not known, a general
description sufficient to identify him or the particular class or group to which he belongs
Note: Parties participating in the oral examination may be served with written interrogatories to the
officers, who shall propound them to the witness and records the answer verbatim.
Sec. 25 Deposition upon written interrogatories
1

Serve them upon very other party

12. With a notice stating:

a. name and address of person who is to answer to them
b. name or descriptive title and address of the officer before whom the deposition is to be
taken.

- within 10 days, a party served may cross-interrogatories upon the party proposing to take
deposition

- within 5 days, the latter may serve re-direct interrogatories upon a party who has served crossinterrogatories.

- within 3 days after service with re-direct, a party may served recross-interrogatories upon the
party promising to take deposition.

Sec. 17 Record of examination

Duty of officer before whom the deposition is to be taken:
1

put the witness on oath

13. personally or by some one acting under his direction and presence, record the testimony

- testimony must be stenographically taken unless the parties agreed otherwise.

- objections made at the time of examination to qualification or manner of taking it or to evidence
or to conduct of any party or any other objection shall be noted by the officer.

- Evidence objected to shall be taken subject to objections.

Sec. 26 Officers to take and prepare record

- copy of notice and all interrogatories served shall be received by the party taking into the officer
designated in the notice

- officer shall proceed promptly to take the testimony of witness in response to the interrogatories
and to prepare, certify and file the deposition, attaching the copy of notice and the
interrogatories received by him
Sec. 27 Notice of taking and furnishing copies
When deposition upon interrogatories is filed, the officer shall promptly give notice to all the
parties, and may furnish copies to them or to deponent upon payment of reasonable charges

Sec. 29 Effect of Error and Irregularities

1

As to notice - waived unless written objection is served upon the party going notice.

14. Disqualification of officer - waived unless made before the taking of deposition beings or as
soon as the disqualification become known
15. Competency and relevancy of evidence - not waived by failure to make them before or during
the taking unless the ground for objection is one which might have been removed if presented
at the time.
16. Oral Examination - waived unless reasonable objection is made at the taking of deposition
17. Form of written interrogatories - waived unless served in writing upon the party propounding
them within the time allowed.
18. Manner of preparation - waived unless a motion to suppress the deposition or some part is
made with reasonable promptness after such defect or with due diligence might have been
ascertain.

Sample of Deposition of Witness

Republic of the Philippines

REGIONAL TRIAL COURT
__________________________________
Branch ___________, Quezon City
PEOPLE OF THE PHILIPPINES
Plaintif
-versus_________________________
Respondent
x------------------------------------------x

SEARCH WARRANT NO.____

For
_________________________

DEPOSITION OF WITNESSES
We, _______________________________ after having been duly sworn to testifies, as follow:
A
A.

What is your name and other personal circumstance?

We are_______________ and _________________ both of legal ages, and (civil status) and presently
assigned with the _________________;

A
A.

Do you know ____________________, the applicant for Search Warrant?

A
A-

Do you know the premises of _____________________________,

Do you have personal knowledge that in said premises the following properties are being kept, being
used or intended to be used without proper documents, to wit: _______________

AA
AA
A.

Do you know who is or who is the person or persons who have or have control of him above-described
properties?
How did you know that the said properties are kept in his/her premises which are subject of the
offense?
We conducted discreet surveillance and it was confirmed that ________________ is keeping
___________________ in his/her premises/ residence.
__________________________
Affiant

__________________________
Affiant

SUBSCRIBED AND SWORN to before me this ___________ day of _______________ 1999 at

________________________.

_________________________
Judge