1997 Rules on Civil Procedure Rule 24 Depositions Before

2001 Edition <draft copy. pls. check for errors> Action or Pending Appeal

Rule 24 expected adverse party.

DEPOSITIONS BEFORE ACTION (1a, R134)
OR PENDING APPEAL
Who may file the petition- Any person:
Need to file a petition to take the deposition- 1. who wants to perpetuate his own testimony;
TWO TYPES OF DEPOSITION TAKING: or
1.) Deposition Pending Action (Rule 23) and EXAMPLE: Suppose there is a case which I would like 2. who wants to perpetuate the testimony of
2.) Deposition Before Action or Pending Appeal (Rule 24) to file against B. But for the moment I cannot file it another person.
yet. I intend to file a case against him. So there is
In Rule 23, you take a testimony or deposition of people in an expected case between us in the future only there In what cases available-
relation to a pending case. There is already a pending case in court, are certain things that I still have to do. But if I file a It may be availed only in civil cases and not in
so everything is based on a pending action. case against B, I have some witnesses who are all criminal cases.
ready like A and C. But the trouble is, I learned
The next rule (Rule 24) is deposition before a case is filed. lately that A will die soon. He has cancer and C will Where to you file the petition or venue-
That is why it is called Depositions Before Action. Actually, the have to leave for abroad, never to come back. A: In the court of the place of the residence
concept of depositions before action is not really new. This is also Definitely, if I will file the case, there are no more of any expected adverse party because there is
found in the Rules prior to 1997 but was found in another rule. It witnesses available. still no case.
was called Perpetuation of Testimony (Rule 134 of the old Rules of
Court). What the new rules did was simply to transfer Rule 134 to Q: Is there a way of taking testimony or So you have to file an independent petition
Rule 24. deposition in advance even before wala pang kaso? under Rule 24
A: YES, by applying Rule 24. I will file a
A deposition before action and a deposition pending appeal petition before the court known as Petition to Sec. 2. Contents of
are referred to as perpetuation of testimony or perpetua rei Perpetuate the Testimony of A and C. Well, petition. The petition
memoriam because their objective is to perpetuate the testimony of even if there is as yet no case, I will just file a shall be entitled in the
a witness for future use. petition under Rule 24. If I can prove really that the name of the petitioner
testimony would be relevant or important the court and shall show: (a) that
Depositions under this Rule are also taken will issue an order allowing me to take deposition in the petitioner expects to
conditionally to be used at the trial only in case the advance. be a party to an action in
deponent is not available. a court of the Philippines
but is presently unable
Depositions under this Rule do not prove the existence of Section 1. to bring it or cause it to
any right or of the facts, which they relate, as it can be Depositions before action; be brought; (b) the
controverted at the trial in the same manner as though no petition. A person who subject matter of the
perpetuation of testimony was ever had. desires to perpetuate his expected action and his
own testimony or that of interest therein; (c) the
However, in the absence of any objection to its taking, another person facts which he desires to
and even if the deponent did not testify at the hearing, the regarding any matter establish by the
perpetuated testimony constitutes prima facie proof of facts that may be cognizable proposed testimony and
referred to in the deposition. in any court of the his reasons for desiring
Philippines, may file a to perpetuate it; (d) the
For example, the petitioner has a cause of action which has verified petition in the names or a description
not yet accrued. In such a case, inasmuch as he cannot bring the court of the place of the of the persons he
action until the cause of action accrues, he may perpetuate his residence of any expects will be adverse
testimony or that of another person (Feria, 2001 p. 534) parties and their

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1997 Rules on Civil Procedure Rule 24 Depositions Before
2001 Edition <draft copy. pls. check for errors> Action or Pending Appeal

addresses so far as known; and (e) So it automatically refers to the court in which the
the names and addresses of the Sec. 4. Order and petition for the perpetuation was filed.
persons to be examined and the examination. If the court
substance of the testimony which he is satisfied that the Sec. 6. Use of
expects to elicit from each, and (f) perpetuation of the deposition. If a deposition
shall ask for an order authorizing the testimony may prevent a to perpetuate testimony
petitioner to take the depositions of failure or delay of justice, is taken under this Rule,
the persons to be examined named in it shall make an order or if, although not so
the petition for the purpose of designating or taken, it would be
perpetuating their testimony. (2, describing the persons admissible in evidence,
R134) whose deposition may it may be used in any
be taken and specifying action involving the
The petition shall be verified and the subject matter of the same subject matter
shall be filed in the place of residence of examination and subsequently brought in
any expected adverse party. It shall contain whether the depositions accordance with the
the matters set forth in Sec. 2 of Rule 24. shall be taken upon oral provisions of sections 4
examination or written and 5 of Rule 23. (6a,
Sec. 3. Notice and service. The interrogatories. The R134)
petitioner shall serve a notice upon depositions may then be
each person named in the petition as taken in accordance with
an expected adverse party, together Rule 23 before the If deposition is taken under this Rule, it may
with a copy of the petition, stating hearing. (4a, R134) be used in any action involving the same
that the petitioner will apply to the subject matter subsequently brought.
court, at a time and place named If the petition is granted, the court will now
therein, for the order described in the allow the deposition of these people to be taken and Q: How do you use the perpetuation of
petition. At least twenty (20) days they are taken simply by following Rule 23. testimony?
before the date of the hearing, the A: The same uses of an ordinary deposition
court shall cause notice thereof to be Sec. 5. Reference to for impeachment, for any other purpose like the
served on the parties and prospective court. For the purpose of witness is already dead the same under Rule 23.
deponents in the manner provided for applying Rule 23 to So the rule under Rule 23 is also applicable to Rule
service of summons. (3a, R134) depositions for 24.
perpetuating testimony,
Notice to expected adverse party of petition to take deposition- each reference therein Sec. 7. Depositions
The petitioner shall serve a notice upon each person named in the to the court in which the pending appeal. If an
petition as an expected adverse party, together with a copy of the action is pending shall appeal has been taken
petition stating that the petitioner will apply to the court, at the time be deemed to refer to from a judgment of a
and place stated therein; the court in which the court, including the
petition for such Court of Appeals in
2. Notice of hearing- At least 20 deposition was filed. (5a, proper cases, or before
days before the date of hearing, the R134) the taking of an appeal if
court shall cause notice thereof to be the time therefor has
served on the parties and prospective Rule 23 says, the court in which the action is not expired, the court in
deponents in the manner provided for pending. But there is still no pending action here. which the judgment was
in the service of summons. rendered may allow the

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1997 Rules on Civil Procedure Rule 24 Depositions Before
2001 Edition <draft copy. pls. check for errors> Action or Pending Appeal

taking of depositions of witnesses to EXAMPLE: There is a case between K and B. K

perpetuate their testimony for use in lost. After he received a copy of the decision, he
the event of further proceedings in discovered a material witness whom he failed to
the said court. In such case the party present. So this is a newly discovered evidence
who desires to perpetuate the (NDE). Had K known of his existence, he would have
testimony may make a motion in the won the case. So, K will file a motion for new trial
said court for leave to take the based on NDE. If his motion is granted, there will be
depositions, upon the same notice and new trial.
service thereof as if the action was
pending therein. The motion shall But, if his motion is denied, K will appeal.
state (a) the names and addresses of While waiting for the decision of the court, the
the persons to be examined and the witness tells him that he will be leaving for
substance of the testimony which he Afghanistan and will come back no more. So, K will
expects to elicit from each; and (b) use Section 7. He will file a motion asking to take the
the reason for perpetuating their deposition of a witness pending appeal in the event
testimony. If the court finds that the that his motion for new trial is granted, because the
perpetuation of the testimony is witness has to go and cannot wait for the new trial.
proper to avoid a failure or delay of
justice, it may make an order allowing So in the event that if I win the appeal, the
the depositions to be taken, and case will go back. I can present the testimony
thereupon the depositions may be because by that time he may already be dead. In
taken and used in the same manner effect, it is a deposition before appeal is perfected.
and under the same conditions as are So it is also perpetuating the testimony of a possible
prescribed in these Rules for witness, in the event the appeal is decided in your
depositions taken in pending actions. favor. Thats why it is called deposition pending
(7a, R134) appeal.

Depositions are taken pending appeal with the view to

their being used in the event the appeal is granted and thus,
there will be further proceedings in the court of origin or
appellate court.

For example, a party may perpetuate the testimony of a

witness, which was objected by the adverse party and ruled out by
the court. If the appellate court should reverse the decision/order of
the lower court, it could admit the deposition as additional evidence
or remand the case back to the lower court for such admission in
accordance with Sections 4 and 5 of Rule 23 (Feria 2001, p. 537)

Q: What is deposition PENDING APPEAL?

A: Obviously, there is a case already on appeal. So how do
you apply Rule 24 under this kind of situation?

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