L.A. Batch Unitas Personae No.
543/FabianCPA  170 | P a g e
MODES OF DISCOVERY IN GENERAL
(Based on the lectures of Deans Willard Riano and
Hildegardo Iñigo and Atty. Jess Zachael Espejo)
MEANING OF DISCOVERY
 a discovery is a device employed by a party to obtain
information about relevant matters on the case from the
adverse party in preparation for the trial.
 the device may be used by all the parties to the case.
 It is the term used to describe a category of procedural devices
employed by a party to an action, prior to trial, to require the
adverse party to disclose information that is essential for the
preparation of the requesting party's case and that the other
party alone knows or possesses.
IMPORTANCE OF DISCOVERY
a) narrow the issues of a lawsuit,
b) obtain evidence not readily accessible to the applicant for use
at trial, and
c) ascertain the existence of information that might be introduced
as evidence at trial.
DENIAL OF DISCOVERY
 A court will deny discovery if the party is using it as a fishing
expedition to ascertain information for the purpose of starting
an action or developing a defense.
 A court is responsible for protecting against the unreasonable
investigation into a party's affairs and must deny discovery if it
is intended to annoy, embarrass, oppress, or injure the parties
or the witnesses who will be subject to it.
 A court will stop discovery when used in bad faith.
AIM OR PURPOSE OF DISCOVERY PROCEDURES:
LITIGATION SHOULD NOT BE CARRIED IN THE DARK
 The modes of discovery are designed:
a) to serve as an additional device aside from a pre-trial,
b) to narrow and clarify the basic issues between the parties,
c) to ascertain the facts relative to the issues and
d) to enable the parties to obtain the fullest possible
knowledge of the issues and facts before civil trials and
thus prevent the said trials to be carried on in the dark.
REPUBLIC vs. SANDIGANBAYAN
[204 SCRA 213, November 21, 1991]
Indeed, it is the purpose and policy of the law that the parties
— before the trial if not indeed even before the pre-trial — should
discover or inform themselves of all the facts relevant to the action,
not only those known to them individually, but also those known to
their adversaries. It requires parties to play the game with the cards
on the table so that the possibility of fair settlement before trial is
measurably increased.
The various modes or instruments of discovery are meant to
serve (1) as a device, along with the pre-trial hearing under Rule 20,
to narrow and clarify the basic issues between the parties, and (2) as
a device for ascertaining the facts relative to those issues. The
evident purpose is, to repeat, to enable the parties, consistent with
recognized privileges, to obtain the fullest possible knowledge of
the issues and facts before civil trials and thus prevent that said
trials are carried on in the dark. XXX
“Be fearful of Mediocrity.”
Unity, excellence, equality
LIBERAL APPLICATION AND TREATMENT
 It has been repeatedly held that deposition discovery rules are
to be accorded a broad and liberal treatment and should not
be unduly restricted if the matters inquired into are otherwise
relevant and not privileged, and the inquiry is made in good
faith and within the bounds of law. Otherwise, the advantage of
a liberal discovery procedure in ascertaining the truth and
expediting the disposal of litigation would be defeated
(RAMON GERARDO B. SAN LUIS vs. HON. PABLITO M. ROJAS, ET
AL., G.R. No. 159127, March 3, 2008).
DUTY OF THE COURT IN RELATION TO THE MODES OF
DISCOVERY (A.M. No. -03-1-09-SC, July 13, 2004)
 Considered as vital components of case management in pre-
trial courts.
 Hence, aside from preparing the summons within one (1) day
from the receipt of the complaint, the court is required to issue
an order requiring the parties to avail of interrogatories to
parties under Rule 25 and request for admission by adverse
party under Rule 26 or at their discretion make use of
depositions under Rule 23 or other measures under Rules 27
and 28 within five (5) days from the filing of the answer. A copy
of this order shall be served upon the defendant together with
the summons. A copy of the order shall also be served upon the
plaintiff.
MODES OF DISCOVERY UNDER THE RULES OF COURT
1) Rule 23 - Depositions pending action
2) Rule 24 - Depositions before action or pending appeal
3) Rule 25 - Interrogatories to parties
4) Rule 26 - Admission by adverse Party
5) Rule 27 - Production or inspection of documents and things
6) Rule 28 - Physical and mental examination of persons
Deposition versus Interrogatories
DEPOSITION INTERROGATORIES
It refers to the testimony of a These are the
witness given in the course of a questions in writing served
judicial proceeding, in advance directly on the adverse party to
of the trial or hearing, upon oral be answered by him or by his
examination or in response to officer. Its scope is as broad as
written interrogatories, and the field of inquiry which a
where an opportunity is given person interrogated is called
for cross-examination. upon to testify in an actual trial.
Follows the testimony type of A set of questions furnished
taking facts from a witness upon the adverse party
NB: PROPONENT – Person who proposes the examination of a
witness or that a witness take the witness stand. The proponent asks
questions. DEPONENT - Person who is deposed
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
 Exception to the constitutional guarantee of privacy of
communication and correspondence.
 It allows the production or inspection of documents and other
things but does not allow them to be distrained without the
knowledge of their lawful owner or possessor.
 Example: Ocular inspections by the Court to see if there
really is an overlapping of the land occupied

ADMISSION BY ADVERSE PARTY
 This may be made at any time after the pleadings are closed.
 This may be availed of by a party by serving upon the other
party a written request for the admission by the latter of the
genuineness of any relevant documents described in and
exhibited with the request, or of the truth of any relevant
matters of fact set forth therein.
APPLICABILITY TO CRIMINAL CASES (BAR 2009)
 The accused in a criminal case has the right to avail of the
various modes of discovery. There is nothing in the Rules of
Court which limit the defendant‘s right to avail of the various
modes of discovery only to civil cases.
 ―modes of discovery‖ under Rule 119 of the Rules on
Criminal Procedure similar to depositions: the procedure
under Sections 12 and 15 of Rule 119, called conditional
examination of witnesses.
RULE 23
DEPOSITIONS PENDING ACTION
Section 1. Depositions pending action, when may be taken. —
By leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action, or
without such leave after an answer has been served, the testimony
of any person, whether a party or not, may be taken, at the instance
of any party, by deposition upon oral examination or written
interrogatories. The attendance of witnesses may be compelled by
the use of a subpoena as provided in Rule 21. Depositions shall be
taken only in accordance with these Rules. The deposition of a
person confined in prison may be taken only by leave of court on
such terms as the court prescribes. (1a, R24)
NB: last sentence similar to Rule 21 Sec. 2
DEPOSITION DEFINED
 Simply, it is the testimony of a witness reduced to writing in due
form of law (under oath), taken by virtue of a commission or
other authority of a competent tribunal (deposition officer).
PEOPLE OF THE PHILIPPINES vs. HUBERT JEFFREY P. WEBB
[G.R. No. 132577, August 17, 1999]
As defined, a deposition is the testimony of a witness taken
upon oral question or written interrogatories, not in open court, but
in pursuance of a commission to take testimony issued by court, or
under a general law or court rule on the subject, and reduce to
writing and duly authenticated, and intended to be used in
preparation and upon the trial of a civil or a criminal prosecution. A
pretrial discovery device by which one party (through his or her
attorney) ask oral questions of the other party or of a witness for the
other party. The person who is deposed is called the deponent. The
deposition is conducted under oath outside of the court room,
usually in one of the lawyer's offices. A transcript — word for word
account — is made of the deposition. Testimony of [a] witness, taken
in writing, under oath or affirmation, before some judicial officer in
answer to questions or interrogatories
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  171 | P a g e
PURPOSES OF DEPOSITION-TAKING
1) Give greater assistance to the parties in ascertaining the truth
and in checking and preventing perjury;
2) Provide an effective means of detecting and exposing false,
fraudulent claims and defenses;
3) Make available in a simple, convenient and inexpensive way,
facts which otherwise could not be proved except with great
difficulty;
4) Educate the parties in advance of trial as to the real value of
their claims and defenses thereby encouraging settlements;
5) Expedite litigation;
6) Safeguard against surprise;
7) Prevent delay;
8) Simplify and narrow the issues; and
9) Expedite and facilitate both preparation and trial.
CROSS-EXAMINATION IN DEPOSITION TAKING
Section 3. Examination and cross-examination. – Examination
and cross-examination of deponents may proceed as permitted at
the trial under sections 3 to 18 of Rule 132.
 RULE 132
Section 6. Cross-examination; its purpose and extent. –
Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party as to
many matters stated in the direct examination, or
connected therewith, with sufficient fullness and freedom
to test his accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all important
facts bearing upon the issue. (8a)
 When there is no opportunity to meaningfully cross-examine a
witness because he is testifying merely on what others related
to him, the testimony is considered hearsay and as such is not
admissible in evidence.
 The opportunity to cross-examine a witness is as important in
the taking of a deposition as it is important to testimonies made
in open court.
 While the rules of evidence are applied in the taking of a
deposition, the deposition officer, or the person before whom
the deposition is taken, has no power to rule on objections
regarding the admissibility of evidence. Thus, it is vital that the
adverse party must register timely objections and have the
same recorded so that the objection can be ruled upon later on
in court.
 Despite the taking of a deposition, it is not intended as a
substitute for a testimony made in court. Hence, if the purpose
of the taking of a deposition is to have the same in advance of a
trial or hearing where the deponent is intended as a witness, he
must still testify in court and repeat his testimony there. In
effect, the deponent may be cross-examined twice: first, during
the taking of his deposition and second, during his time
testifying in court. This is important for the judge to assess
demeanor evidence.
WHEN DEPOSITION OF A WITNESS MAY BE USED AS HIS
DIRECT TESTIMONY EVEN WITHOUT CROSS EXAMINATION
 Despite lack of cross-examination, the deposition will not
constitute hearsay and is thus admissible as the deceased
witness‘ testimony: When the failure to cross examine was not
due to the fault of the supposed cross-examiner.

 Example:
 It was the fault of the court or the proponent of the witness.
 Under Section 4(c), the deponent‘s testimony was taken
but he died before he was allowed to testify in court.
 Under Section 4 still, the adverse party was duly notified of
the taking of the deposition but simply ignores the notice
and fails to appear. The adverse party thus loses the right
to cross-examine.
TYPES OF DEPOSITIONS
 According to where found:
a) Rule 23 - Depositions pending action
(deposition DE BENNE ESSE)
b) Rule 24 - Depositions before action or pending appeal
(deposition IN PERPETUAM REI MEMORIAM)
 ―In perpetuam rei memoriam‖ means to perpetuate
the memory – so that it may be used later on
 According to method of taking:
a) oral examination,
b) written interrogatory
 According to use:
a) Rule 23 - for use during a pending action
b) Rule 24 - for use in a future action
c) Rule 24 - for use in a pending appeal
WHEN LEAVE OF COURT IS REQUIRED FOR TAKING A
DEPOSITION PENDING ACTION
 Leave of court is REQUIRED
a) BEFORE the service of an answer but after jurisdiction has
been acquired over the defendant or over the property
subject of the action
 Jurisdiction over the person of the defendant is
obtained after valid service of summons upon him.
 Reason why leave of court is required before service
of an answer:
(a) in order to avoid a fishing expedition on the part
of the plaintiff and
(b) because the defendant may file a motion to
dismiss questioning the jurisdiction of the court
over his person
b) when it is the deposition of a PRISONER that is to be taken
 Leave of court is NOT REQUIRED
a) AFTER an answer has been served
WHO MAY APPLY FOR THE TAKING OF A DEPOSITION
 As to who may apply for the taking of a deposition
 It may be at the instance of ANY PARTY (i.e. the plaintiff
and defendant).
 As to who may be a deponent
 It may be ANY PERSON, whether a party or not.
Jurisprudence: A non-resident foreign corporation can APPLY
for deposition-taking for as long as it is a party.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  172 | P a g e
SAN LUIS vs. ROJAS, ET AL.
[[G.R. No. 159127, March 3, 2008]
FACTS: Under the corporation law, a non-resident foreign
corporation without license may be sued but cannot sue.
ISSUE: WON a non-resident foreign corporation without license
can apply for deposition-taking
HELD: Yes. Unequivocally, the rule does not make any
distinction or restriction as to who can avail of deposition. The fact
that private respondent is a non-resident foreign corporation is
immaterial. The rule clearly provides that the testimony of any
person may be taken by deposition upon oral examination or
written interrogatories, at the instance of any party. Because non-
resident foreign corporation without license is still a party to the
case, as a defendant.
WHEN MAY DEPOSITIONS BE TAKEN?
a) before action
b) at pre-trial
c) while the action is pending
d) while the action is pending appeal
e) during the period of execution of a final judgment
 Example: the purpose is to determine which
properties you can execute.
DASMARIÑAS GARMENTS, INC. vs. HON. RUBEN T. REYES
[G.R. No. 108229, August 24, 1993]
Depositions may be taken at any time after the institution of any
action, whenever necessary or convenient. There is no rule that
limits deposition-taking only to the period of pre-trial or before it;
no prohibition against the taking of depositions after pre-trial.
Indeed, the law authorizes the taking of depositions of witnesses
before or after an appeal is taken from the judgment of a Regional
Trial Court "to perpetuate their testimony for use in the event of
further proceedings in the said court", and even during the process
of execution of a final and executory judgment.
Section 2. Scope of examination. — Unless otherwise ordered
by the court as provided by section 16 or 18 of this Rule, the
deponent may be examined regarding any matter, not privileged,
which is relevant to the subject of 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. (2, R24)
LIMITATION TO THE SUBJECT MATTER OF DEPOSITIONS
1. The matter inquired into must not be privileged;
 RULE 130, Section 24. Disqualification by reason of
privileged communication.
(a) communication between husband and wife;
(b) communication between attorney and client;
(c) communication between physician and patient;
(d) communication between priest and penitent; and
(e) public officers and public interest.
(f) editors may not be compelled to disclose the source of
published news;
(g) voters may not be compelled to disclose for whom they
voted;
(h) trade secrets;
(i) information contained in tax census returns; and
(j) bank deposits.

2. The matter inquired into must be relevant to the subject matter
of the pending action; and
 RULE 128, Section 4. - Evidence must have such a relation
to the fact in issue as to induce belief in its existence or
non-existence. Furthermore, evidence on collateral
matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability or
improbability of the fact in issue.
3. The examination is always subject to reasonable regulation of
the court under Sections 16 and 18 of Rule 23.
 RULE 23, Section 16. Orders for the protection of
parties and deponents.
 RULE 23, Section 18. Motion to terminate or limit
examination.
Section 4. Use of depositions. — At the trial or upon the
hearing of a motion or an interlocutory proceeding, any part or all of
a deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness;
(b) The deposition of a party or of any one who at the time of taking
the deposition was an officer, director, or managing agent of a
public or private corporation, partnership, or association which
is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds: (1) that the
witness is dead, or (2) that the witness resides at a distance
more than one hundred (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, or
(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 the witness by subpoena; or (5) upon application
and notice, that such exceptional circumstances exist as to
make it desirable, in the interest of justice and with due regard
to the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by a party, the
adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce
any other parts. (4a, R24)
WHEN MAY A DEPOSITION BE USED IN A PENDING ACTION
 Any part or all of a deposition may be used:
1) At the trial itself, as when the parties are presenting their
respective evidence-in-chief (that evidence tending to
prove your claim or defense);
2) Upon the hearing of a motion;
Example:
 RULE 35. Summary Judgment.
Section 1. Summary judgment for claimant. - A
party seeking to recover upon a claim, counterclaim,
or cross-claim or to obtain a declaratory relief may, at
any time after the pleading in answer thereto has
been served, move with supporting affidavits,
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  173 | P a g e
depositions or admissions for a summary judgment in
his favor upon all or any part thereof.
 Meaning: You can use deposition for the
purpose of applying for summary judgment.
3) Upon the hearing of an interlocutory proceeding.
Example:
 RULE 61. Support Pendente Lite.
Section 1. Application. - At the commencement of
the proper action or proceeding, or at any time prior
to the judgment or final order, a verified application
for support pendente lite may be filed by any party
stating the grounds for the claim and the financial
conditions of both parties, and accompanied by
affidavits, depositions or other authentic documents
in support thereof. (1a)
AGAINST WHOM MAY A DEPOSITION BE USED
 Any part or all of a deposition may be used against:
1) any party who was present; or
2) a party who was represented at the taking of the
deposition; or
3) a party who did not appear or represented but was duly
notified of the scheduled deposition taking.
 The procedure for deposition taking is first, to notify the other
party of the date, place and time of the deposition taking of a
person. The other party is free to go there and participate. So if
person appeared and participated, he is bound by the
deposition. If he fails to appear but sent a representative, the
person is still bound. Suppose a person received the notice and
never bothered to go or participate, he is still bound because
the law says, for as long as you are notified, you are bound. So
whether you will come or not, you are bound by the deposition
taking. In this case, you might as well show up because
otherwise it may still be taken against you.
NB: A deposition is never intended as an easy substitute for actual
testimony in court. The principle therefore to remember is that the
deponent‘s testimony must be repeated in court for it to be admitted
as evidence.
General Rule
 The deponent is not exempt from testifying in court, as a
general rule
 RULE 132 of the Rules of Court provides:
SECTION 1. Examination to be done in open court. —
The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer, the
answers of the witness shall be given orally.
Exception
 An exception to this is when the deponent is the adverse
party under paragraph (b)

USES OF DEPOSITION
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness;
 In both the taking of a deposition and the presentation of
testimonial evidence in court, the deponent or witness is sworn
to an oath to tell the truth. Any falsehood in these occasions
opens the witness to perjury. The deposition of an intended
witness in court may be taken in advance. In essence, the
taking of his deposition under oath preserves the testimony for
later use in trial. It is only a means of knowing what the witness
will testify about.
IMPEACHMENT - Destroying the credibility of the witness
General Rule
 It is the adverse party who can impeach the witness. The
party who presented the witness has no right to impeach
his own witness.
Exception
 The party who caused the taking of the deposition and
who presented the deponent as witness CAN impeach his
own witness if the witness is previously declared as an
(Sec 10d) unwilling or hostile witness or he is a (Section
10e) witness who is an adverse party or an officer,
director, or managing agent of a public or private
corporation or of a partnership or association which is an
adverse party, respectively.
 If not previously declared by the court as unwilling or
hostile witness, the proponent can ask the court to declare
the witness as an unwilling or hostile witness.
 RULE 132
Section 11. - Impeachment of adverse party's witness. –
A witness may be impeached by the party against whom
he was called, by contradictory evidence, by evidence
that his general reputation for truth, honestly, or integrity
is bad, or by evidence that he has made at other times
statements inconsistent with his present testimony, but not
by evidence of particular wrongful acts, except that it may
be shown by the examination of the witness, or the record
of the judgment, that he has been convicted of an offense.
 RULE 132
Section 12. Party may not impeach his own witness. —
Except with respect to witnesses referred to in paragraphs
(d) and (e) of Section 10, the party producing a witness is
not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if
so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness
stand.
The unwilling or hostile witness so declared, or the
witness who is an adverse party, may be impeached by
the party presenting him in all respects as if he had been
called by the adverse party, except by evidence of his
bad character. He may also be impeached and cross-
examined by the adverse party, but such cross-
examination must only be on the subject matter of his
examination-in-chief. (6a, 7a)
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  174 | P a g e
 RULE 132
Section 13. How witness impeached by evidence of
inconsistent statements. - Before a witness can be
impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances
of the times and places and the persons present, and he
must be asked whether he made such statements, and if
so, allowed to explain them. If the statements be in writing
they must be shown to the witness before any question is
put to him concerning them. (16)
(b) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing
agent of a public or private corporation, partnership, or
association which is a party may be used by an adverse party
for any purpose;
 Similar to Rule 132, Section 10 (e).
 His deposition may be used by the adverse party for any
purpose, including impeachment. Hence, any admission made
by the party-deponent in his deposition can be used as
evidence against him immediately, without having to present
him as a witness in court.
 The reason why the proponent uses the deposition of the
adverse party is that there may be something in that deposition
which is favorable to him and against the interest of the adverse
party himself. The admission which might not have been made
in court as a judicial admission but merely in a deposition
made before the case is filed in court. Because such admission
against the interest against the defendant is automatically
evidence.
SELF-SERVING ADMISSION
 Admissions favorable to the party making it, such admissions
do not bind the adverse party and are therefore inadmissible.
 Self-serving evidence is evidence made by a party out of court
at one time and which is favorable to the party making it. It is
excluded on the same ground as any hearsay evidence, that is,
the lack of opportunity for cross-examination by the adverse
party and on the consideration that its admission would open
the door to fraud and to fabrication of testimony. (NATIONAL
DEVELOPMENT COMPANY vs. WORKMEN'S COMPENSATION
COMMISSION, ET AL., G.R. No. L-21724, April 27, 1967)
REQUISITES OF SELF-SERVING EVIDENCE
1) The testimony is favorable to the declarant;
2) It is made extrajudicially; and
3) It is made in anticipation of litigation.
REASONS FOR INADMISSIBILITY
1) A man may be safely believed if he declares against his
own interest, but not if he advocates his interest.
2) It is excluded on the same ground as any hearsay
evidence, that, the lack of opportunity for cross-
examination by the adverse party.
WHEN SELF-SERVING OR FAVORABLE ADMISSIONS ARE
ADMISSIBLE:
1) If made in open court
2) giving full opportunity to the adverse party
3) to exercise his right of cross-examination.
 L.A. Batch Unitas Personae No. 543/FabianCPA  175 | P a g e

HEIRS OF ZURBANO vs. HEIRS OF BIEN SAN LUIS vs. ROJAS, ET AL.
[G.R. No. 155508, September 11, 2006] [G.R. No. 159127, March 3, 2008]

"Self-serving evidence" is not to be taken literally to mean any Depositions are allowed as a departure from the accepted and
evidence that serves its proponent's interest. The term, if used with usual judicial proceedings of examining witnesses in open court,
any legal sense, refers only to acts or declarations made by a party where their demeanor could be observed by the trial judge; and the
in his own interest at some place and time out of court, and it does procedure is not on that account rendered illegal nor is the
not include testimony that he gives as a witness in court. Evidence of deposition, thereby taken, inadmissible. It precisely falls within one
this sort is excluded on the same ground as any hearsay evidence, of the exceptions where the law permits such a situation, i.e., the use
that is, lack of opportunity for cross-examination by the adverse of a deposition in lieu of the actual appearance and testimony of the
party and on the consideration that its admission would open the deponent in open court and without being subject to the prying
door to fraud and fabrication. In contrast, a party's testimony in court eyes and probing questions of the Judge. Depositions are consistent
is sworn and subject to cross-examination by the other party, and with the principle of promoting just, speedy and inexpensive
therefore, not susceptible to an objection on the ground that it is disposition of every action or proceeding. Depositions are allowed
self-serving. provided the deposition is taken in accordance with the applicable
provisions of the Rules of Court; that is, with leave of court if the
summons have been served, without leave of court if an answer has
(c) The deposition of a witness, whether or not a party, may be been submitted; and provided, further, that a circumstance for their
used by any party for any purpose if the court finds: (1) that the admissibility exists.
witness is dead, or (2) that the witness resides at a distance more
than one hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his COMPARATIVE TABLE REGARDING USES OF DEPOSITIONS
absence was procured by the party offering the deposition, or (3)
that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment, or (4) that the party offering PARAGRAPH [A] PARAGRAPH [B] PARAGRAPH [C]
the deposition has been unable to procure the attendance of the
 As to Deponent
witness by subpoena; or (5) upon application and notice, that such
The deponent is any The deponent is an The deponent is any
exceptional circumstances exist as to make it desirable, in the
witness, whether a adverse party or an witness, whether a
interest of justice and with due regard to the importance of
party or not. officer of an adverse party or not, who is
presenting the testimony of witnesses orally in open court, to
party. dead, not bound by
allow the deposition to be used; and
a subpoena,
incapacitated by
SUMMARY age, sick, infirm, or
 Paragraph [a] applies only to a deposition of a WITNESS for imprisoned, or
contradicting or IMPEACHING his testimony. unable to attend
 Paragraph [b] applies the use of deposition for ANY PURPOSE despite being
but it refers to the deposition of the ADVERSE PARTY. subpoenaed.
 Paragraph [c] allows the use of the deposition of a WITNESS for  As to use of Deposition
ANY PURPOSE. The deposition may The deposition may The deposition may
be used by ANY be used by AN be used by AN
 ―Any purpose‖ includes impeachment and means that the PARTY to impeach ADVERSE PARTY for ADVERSE PARTY for
deposition can be used as a substitute for oral testimony made the testimony of the any purpose, incl. any purpose, but
in open court deponent as a impeachment. logically excluding
. witness. impeachment as the
 If the deposition is admitted as a substitute for oral testimony, witness cannot
there is no more opportunity to cross-examine or object later testify in court.
during trial. At least, when there was prior cross-examination  As to the need for Testimony in Court
and objections during deposition-taking, the admission of the
The deponent must The deponent need A deposition taken
deposition in place of oral testimony will still be subject to the
be subsequently not be presented so under paragraph [c]
said objections.
presented as a that any admission can be used as a
witness in court to contained in the substitute for oral
 The reasons why it can be used as a substitute for oral
serve the purpose of deposition may be testimony.
testimony are as follows:
impeachment. used against him.
(1) Because it is already impossible
Any admission
(2) Because he is beyond the coercive processes of the court
embodied in the
(3) Because of the possibility that he can no longer testify
deposition is
(4) Because he might have gone into hiding or, worse, hidden
evidence per se.
by the adverse party
(5) Because of the interest of justice subject to the discretion
of the court
(d) If only part of a deposition is offered in evidence by a party, the
adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any
other parts.

 No party may limit the full use of a deposition simply because

only some part of it is favorable to him. A deposition is not a
jigsaw puzzle.

“Be fearful of Mediocrity.”

Unity, excellence, equality

 The rule allows the following remedies available to the adverse
party:
1) To require the proponent to introduce all of the deposition
relevant to the part introduced;
2) To introduce any other parts himself.
Section 5. Effect of substitution of parties. — Substitution of
parties does not affect the right to use depositions previously taken;
and, when an action has been dismissed and another action
involving the same subject is afterward brought between the same
parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may
be used in the latter as if originally taken therefor. (5, R24)
IMMUTABILITY OF DEPOSITIONS
 A deposition, once lawfully taken, is immutable and may thus
be used notwithstanding:
1) The substitution of parties;
2) The dismissal of the action and the subsequent filing of
another action involving the same subject between the
same parties or their representatives or successors in
interest.
Section 6. Objections to admissibility. — Subject to the
provisions of section 29 of this Rule, 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 (6, R24)
Section 7. Effect of taking depositions. — A party shall not be
deemed to make a person his own witness for any purpose by
taking his deposition. (7, R24)
NO ESTOPPEL
 A party cannot be estopped by resorting to depositions as a
mode of discovery. Since it is precisely a mode of discovery, a
party who discovers nothing useful or favorable, through the
deposition of a person, is not bound to present the said
deponent as a witness. Had the rule been otherwise, the law
will in effect penalize resort to the modes of discovery. But
once you use the deposition, you are bound to whatever is
stated therein.
 There is no prohibition on the part of the adverse party to use
the deposition against the party who applied for its taking or to
make the deponent his witness.
General Rule
 Sec 7 – A deposition may be altogether disregarded and the
part is not bound to make the deponent his witness.
Exception
 Sec 4d – But once you introduce a tiny portion of the
deposition, you can be compelled to introduce everything.
Section 8. Effect of using depositions. — The introduction in
evidence of the deposition or any part thereof for any purpose other
than that of contradicting or impeaching the deponent makes the
deponent the witness of the party introducing the deposition, but
this shall not apply to the use by an adverse party of a deposition as
described in paragraph (b) of section 4 of this Rule. (8, R24)
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  176 | P a g e
General Rule
 Simply taking a person‘s deposition does not make him the
party‘s witness. However, once the deposition is offered in
court, the deponent becomes the party or proponent‘s witness.
Effect is that, if he‘s your witness, you cannot impeach him
anymore.
Exception
 Offering a deposition still does not make the deponent a party‘s
witness:
1) When the deposition is offered to contradict or impeach
the deponent as witness;
2) When the deposition of the adverse party is the one
offered.
FORTUNE CORPORATION vs. COURT OF APPEALS
[G.R. No. 108119, January 19, 1994]
The right to take statements and the right to use them in court
have been kept entirely distinct. The utmost freedom is allowed in
taking depositions; restrictions are imposed upon their use. As a
result, there is accorded the widest possible opportunity for
knowledge by both parties of all the facts before the trial. Such of
this testimony as may be appropriate for use as a substitute for viva
voce examination may be introduced at the trial; the remainder of
the testimony, having served its purpose in revealing the facts to the
parties before trial, drops out of the judicial picture.
Under the concept adopted by the new Rules, the deposition
serves the double function of a method of discovery - with use on
trial not necessarily contemplated - and a method of presenting
testimony. Accordingly, no limitations other than relevancy and
privilege have been placed on the taking of depositions, while the
use at the trial is subject to circumscriptions looking toward the use
of oral testimony wherever practicable.
Section 9. Rebutting deposition. — At the trial or hearing any
party may rebut any relevant evidence contained in a deposition
whether introduced by him or by any other party. (9, R24)
Section 10. Persons before whom depositions may be taken
within the Philippines. — Within the Philippines depositions may
be taken before any judge, notary public, or the person referred to
in section 14 hereof. (10a, R24)
BEFORE WHOM TAKEN (DEPOSITIONS PENDING ACTION)
 WITHIN THE PHILIPPINES
(a) any judge,
(b) a notary public (Sec. 10, Rule 23, Rules of Court) or
(c) any person authorized to administer oaths if the parties so
stipulate in writing (Sec. 14, Rule 23, Rules of Court).
 Examples
 Revised Administrative Code of 1987, as follows:
Sec. 41. Officers Authorized to Administer Oath. — The
following officers have general authority to administer oaths:
a) President;
b) Vice-President;
c) Members and Secretaries of both Houses of the Congress;
d) Members of the Judiciary;
e) Secretaries of Departments;
f) provincial governors and lieutenant-governors;
 L.A. Batch Unitas Personae No. 543/FabianCPA  177 | P a g e

g) city mayors; PFEGER DULAY vs. DULAY

h) municipal mayors; [G.R. No. 158857, November 11, 2005]
i) bureau directors;
j) regional directors; HELD: While the letters rogatory issued by the trial court
k) clerks of courts; specifically directed the Clerk of Court of Boston to take the
l) registrars of deeds; depositions needed in the case, it became impossible to follow the
m) other civilian officers in the public service of the directive since the Clerk of Court of Boston merely brushed it aside
government of the Philippines whose appointments are and refused to cooperate. Respondent cannot be faulted for the
vested in the President and are subject to confirmation by resultant delay brought about by this circumstance. Neither can the
the Commission on Appointments; trial court be faulted for allowing the admission of the depositions
n) all other constitutional officers; and notaries public." taken not in strict adherence to its original directive, nor for
directing the petitioner to have the depositions authenticated.
Obviously, it was not within the trial court‘s power, much less the
Section 14. Stipulations regarding taking of depositions. — If respondent‘s to force the Clerk of Court of Boston to have the
the parties so stipulate in writing, depositions may be taken before deposition taken before it. It would be illogical and unreasonable to
any person authorized to administer oaths, at any time or place, in expect respondent to comply with the letters rogatory without the
accordance with these Rules and when so taken may be used like cooperation of the very institution or personality named in the
other depositions. (14a, R24) letters rogatory and requested to examine the witnesses. After all,
while a court had the authority to entertain a discovery request, it is
 Applies also to depositions taken outside the Philippines. not required to provide judicial assistance thereto.

In the instant case, the authentication made by the consul was a

Section 11. Persons before whom depositions may be taken in
foreign countries. — In a foreign state or country, depositions may
be taken (a) on notice before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines, (b) before such person or officer as may
be appointed by commission or under letters rogatory; or (c) the
person referred to in section 14 hereof. (11a, R24)
ratification of the authority of the notary public who took the
questioned depositions. The deposition was, in effect, obtained
through a commission, and no longer through letters rogatory.
DASMARIÑAS GARMENTS, INC. vs. HON. RUBEN T. REYES
[G.R. No. 108229, August 24, 1993]

A commission may be defined as "(a)n instrument issued by a

 OUTSIDE THE PHILIPPINES
(c) a secretary of an embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of the
Philippines(Sec. 11, Rule 23, Rules of Court);
(d) such person or officer as may be appointed by commission or
letters rogatory; or
(e) a person authorized to administer oaths by written stipulation of
the parties (Sec. 14, Rule 23, Rules of Court).
Section 12. Commission or letters rogatory. — A commission
or letters rogatory shall be issued only when necessary or
convenient, on application and notice, and on such terms, and with
such direction as are just and appropriate. Officers may be
designated in notices or commissions either by name or descriptive
title and letters rogatory may be addressed to the appropriate
judicial authority in the foreign country. (12a, R24)
court of justice, or other competent tribunal, to authorize a person to
take depositions, or do any other act by authority of such court or
tribunal". Letters rogatory, on the other hand, may be defined as
"(a)n instrument sent in the name and by the authority of a judge or
court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a cause pending before the former, a
witness who is within the jurisdiction of the judge or court to whom
such letters are addressed".
ISSUE: Can deposition-taking take place in a country not
recognized by the Philippines in view of its 'one-China policy?
HELD: Yes, This is inconsequential. What matters is that the
deposition is taken before a Philippine official acting by authority of
the Philippine Department of Foreign Affairs and in virtue of a
commission duly issued by the Philippine Court in which the action
is pending, and in accordance, moreover, with the provisions of the
Philippine Rules of Court pursuant to which opportunity for cross-
examination of the deponent will be fully accorded to the adverse
party.

LETTERS ROGATORY versus COMMISSIONS
LETTER ROGATORY
Letters rogatory are requests
to foreign tribunals. The court
requesting another court.
A letter rogatory is a request to
a foreign court to give its aid,
backed by its power, to secure
desired information.
In letters rogatory, the methods
of procedure are under the
control of the foreign tribunal.
COMMISSION
Commissions are directives to
officials of the issuing
jurisdiction.
A commission is an instrument
issued by a court of justice, or
other competent tribunal,
directed to a magistrate by his
official designation or to an
individual by name, authorizing
him to take the depositions of the
witnesses named therein.
Commissions are taken in
accordance with the rules laid
down by the court issuing the
commission
“Be fearful of Mediocrity.”
Unity, excellence, equality
Section 13. Disqualification by interest. — No deposition shall
be taken before a person who is a relative within the sixth degree of
consanguinity or affinity, or employee or counsel of any of the
parties, or who is a relative within the same degree, or employee of
such counsel; or who is financially interested in the action. (13a,
R24)
Section 15. Deposition upon oral examination; notice; time
and place. — A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in writing, to
every other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each
person to be examined, if known, and if the name is not known, a
general description sufficient to identify him or the particular class
or group to which he belongs. On motion of any party upon whom
the notice is served, the court may for cause shown enlarge or
shorten the time. (15, R24)

Section 16. Orders for the protection of parties and
deponents. — After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any party or by the
person to be examined and for good cause shown, the court in
which the action is pending may make an order that the deposition
shall not be taken, or that it may be taken only at some designated
place other than that stated in the notice, or that it may be taken only
on written interrogatories, or that certain matters shall not be
inquired into, or that the scope of the examination shall be held with
no one present except the parties to the action and their officers or
counsel, or that after being sealed the deposition shall be opened
only by order of the court, or that secret processes, developments,
or research need not be disclosed, or that the parties shall
simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court or the court
may make any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or oppression.
(16a, R24)
– It is the duty of the court to prevent the taking of depositions if it is
proper for it to do so.
PROTECTIVE ORDERS (in Oral Examinations)
1) That the deposition shall not be taken;
2) That it may be taken only at some designated place other
than that stated in the notice;
3) That it may be taken only on written interrogatories;
4) That certain matters shall not be inquired into;
5) That the scope of the examination shall be held with no
one present except the parties to the action and their
officers or counsel;
6) That after being sealed, the deposition shall be opened
only by order of the court;
7) That secret processes, developments, or research need
not be disclosed;
8) That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes to
be opened as directed by the court;
9) The court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression.
Jurisprudence: The availability of the proposed deponent to
testify in court does not constitute "good cause" to justify the
court’s order that his deposition shall not be taken.
HYATT INDUSTRIAL vs. LEY CONSTRUCTION
GR No. 147143, March 10, 2006
FACTS: The RTC cancelled scheduled depositions on the
ground of delay and that the taking of depositions would cause
unnecessary duplicity as the intended deponents shall also be
called as witnesses during trial
HELD: The RTC cites the delay in the case as reason for
canceling the scheduled depositions. While speedy disposition of
cases is important, such consideration however should not outweigh
a thorough and comprehensive evaluation of cases, for the ends of
justice are reached not only through the speedy disposal of cases
but more importantly, through a meticulous and comprehensive
evaluation of the merits of the case. Records also show that the delay
of the case is not attributable to the depositions sought by LCDC but
was caused by the many pleadings filed by all the parties including
petitioners herein.
The availability of the proposed deponent to testify in court
does not constitute "good cause" to justify the court‘s order that his
deposition shall not be taken. That the witness is unable to attend or
testify is one of the grounds when the deposition of a witness may be
used in court during the trial. But the same reason cannot be
successfully invoked to prohibit the taking of his deposition.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  178 | P a g e
Section 17. Record of examination, oath; objections. — The officer
before whom the deposition is to be taken shall put the witness on
oath and shall personally, or by some one acting under his direction
and in his presence, record the testimony of the witness. The
testimony shall be taken stenographically unless the parties agree
otherwise. All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of
talking it, or to the evidence presented, or to the conduct of any
party, and any other objection to the proceedings, shall be noted by
the officer upon the deposition. Evidence objected to shall be taken
subject to the objections. In lieu of participating in the oral
examination, parties served with notice of taking a deposition may
transmit written interrogatories to the officers, who shall propound
them to the witness and record the answers verbatim. (17, R24)
 NB: answers to depositions not objected to cannot be objected
to in court during the trial, unless the objection is based on a
new ground which only come up after the deposition.
Section 18. Motion to terminate or limit examination. — At
any time during the taking of the deposition, on motion or petition of
any party or of the deponent, and upon a showing that the
examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the Regional Trial
Court 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 section 16 of this Rule. 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. (18a, R24)
LIMITATIONS (Similar to Sec. 16)
1) the examination is being conducted in bad faith; or
2) the examination is being conducted in such a manner as to
annoy, embarrass, or oppress the person subject to the
inquiry; or
3) the inquiry touches upon the irrelevant; or
4) the inquiry encroaches upon the recognized domains of
privilege.
Section 19. Submission to witness; changes; signing. — When
the testimony is fully transcribed, the deposition shall be submitted
to the witness for examination and shall be read to or by him, unless
such examination and reading are waived by the witness and by the
parties. Any changes in form or substance which the witness
desires to make shall be entered upon the deposition by the officer
with a statement of the reasons given by the witness for making
them. The deposition shall then be signed by the witness, unless the
parties by stipulation waive the signing or the witness is ill or cannot
be found or refuses to sign. If the deposition is not signed by the
witness, the officer shall sign it and state on the record the fact of the
waiver or of the illness or absence of the witness or the fact of the
refusal to sign together with the reason be given therefor, if any,
and the deposition may then be used as fully as though signed,
unless on a motion to suppress under section 29 (f) of this Rule, the
court holds that the reasons given for the refusal to sign require
rejection of the deposition in whole or in part. (19a, R24)

Section 20. Certification, and filing by officer. — The officer
shall certify on the deposition that the witness was duly sworn to by
him and that the deposition is a true record of the testimony given
by the witness. He shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked
"Deposition of (here insert the name of witness)" and shall
promptly file it with the court in which the action is pending or send
it by registered mail to the clerk thereof for filing. (20, R24)
Section 21. Notice of filing. — The officer taking the deposition
shall give prompt notice of its filing to all the parties. (21, R24)
Section 22. Furnishing copies. — Upon payment of reasonable
charges therefor, the officer shall furnish a copy of the deposition to
any party or to the deponent. (22, R24)
Section 23. Failure to attend of party giving notice. — If the
party giving the notice of the taking of a deposition fails to attend
and proceed therewith and another attends in person or by counsel
pursuant to the notice, the court may order the party giving the
notice to pay such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending, including
reasonable attorney's fees. (23a, R24)
Section 24. Failure of party giving notice to serve subpoena.
— If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon him and the witness because
of such failure does not attend, and if another party attends in
person or by counsel because he expects the deposition of that
witness to be taken, the court may order the party giving the notice
to pay to such other party the amount of the reasonable expenses
incurred by him and his counsel in so attending, including
reasonable attorney's fees. (24a, R24)
Section 25. Deposition upon written interrogatories; service of
notice and of interrogatories. — A party desiring to take the
deposition of any person upon written interrogatories shall serve
them upon every other party with a notice stating the name and
address of the person who is to answer them and the name or
descriptive title and address of the officer before whom the
deposition is to be taken. Within ten (10) days thereafter, a party so
served may serve cross-interrogatories upon the party proposing to
take the deposition. Within five (5) days thereafter, the latter may
serve re-direct interrogatories upon a party who has served cross-
interrogatories. Within three (3) days after being served with re-
direct interrogatories, a party may serve recross-interrogatories
upon the party proposing to take the deposition. (25, R24)
DEPOSITION UPON WRITTEN INTERROGATORIES
- Copies of all these interrogatories shall be delivered to the
officer before whom the deposition is taken and who shall take
the responses and prepare the record (Sec. 26, Rule 23, Rules
of Court).
 ATTY. ESPEJO: written interrogatories actually defeat the
purpose of having prompt resolution.
Jurisprudence: Cross-interrogatories are equivalent to cross-
examination therefore, when cross-interrogatories are served,
you cannot later on complaint that you were not given the right
to cross examine when the deposition was introduced in court.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  179 | P a g e
Section 26. Officers to take responses and prepare record. —
A copy of the notice and copies of all interrogatories served shall be
delivered by the party taking the deposition to the officer
designated in the notice, who shall proceed promptly, in the manner
provided by sections 17, 19 and 20 of this Rule, to take the testimony
of the witness in response to the interrogatories and to prepare,
certify, and file or mail the deposition, attaching thereto the copy of
the notice and the interrogatories received by him. (26, R24)
Section 27. Notice of filing and furnishing copies. — When a
deposition upon interrogatories is filed, the officer taking it shall
promptly give notice thereof to all the parties, and may furnish
copies to them or to the deponent upon payment of reasonable
charges therefor. (27, R24)
Section 28. Order for the protection of parties and deponents.
— After the service of the interrogatories and prior to the taking of
the testimony of the deponent, the court in which the action is
pending, on motion promptly made by a party or a deponent, and
for good cause shown, may make any order specified in sections
15, 16 and 18 of this Rule which is appropriate and just or an order
that the deposition shall not be taken before the officer designated
in the notice or that it shall not be taken except upon oral
examination. (28a, R24)
PROTECTIVE ORDERS (in Written interrogatories)
1) Order to enlarge or shorten the time within which to take
the testimony of the deponent (Section 15);
2) Order that the testimony in answer to the written
interrogatories shall not be taken, etc. (Section 16);
3) Order to terminate or limit the taking of testimony (Section
18);
4) Order that the deposition shall not be taken before the
officer designated (Section 28);
5) Order that the testimony shall not be taken except upon
oral examination (Section 28).
Section 29. Effect of errors and irregularities in depositions.
(a) As to notice. — All errors and irregularities in the notice for
taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
(b) As to disqualification of officer. — Objection to taking a
deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking
of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with
reasonable diligence.
(c) As to competency or relevancy of evidence. — Objections to
the competency of witness or the competency, relevancy, or
materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the
ground, of the objection is one which might have been
obviated or removed if presented at that time.
(d) As to oral examination and other particulars. — Errors and
irregularities occurring at the oral examination in the manner
of taking the deposition in the form of the questions or answers,
in the oath or affirmation, or in the conduct of the parties and
errors of any kind which might be obviated, removed, or cured
if promptly prosecuted, are waived unless reasonable
objection thereto is made at the taking of the deposition.
(e) As to form of written interrogatories. — Objections to the
form of written interrogatories submitted under sections 25 and
26 of this Rule are waived unless served in writing upon the
party propounding them within the time allowed for serving

succeeding cross or other interrogatories and within three (3)
days after service of the last interrogatories authorized.
(f) As to manner of preparation. — Errors and irregularities in
the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are waived unless a
motion to suppress the deposition or some part thereof is made
with reasonable promptness after such defect is, or with due
diligence might have been, ascertained. (29a, R24)
RULE 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
- Apply the same principles under Rule 23. The only difference is
the context of the deposition taking. In Rule 23, it is pending
action. In Rule 24, it is before action or pending appeal.
Section 1. Depositions before action; petition. — A person
who desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court of
the Philippines may file a verified petition in the court of the place of
the residence of any expected adverse party. (1a R134)
Section 2. Contents of petition. — The petition shall be entitled
in the name of the petitioner and shall show: (a) that the petitioner
expects to be a party to an action in a court of the Philippines but is
presently unable to bring it or cause it to be brought; (b) the subject
matter of the expected action and his interest therein; (c) the facts
which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it; (d) the names or a description
of the persons he expects will be adverse parties and their
addresses so far as known; and (e) the names and addresses of the
persons to be examined and the substance of the testimony which
he expects to elicit from each, and shall ask for an order authorizing
the petitioner to take the depositions of the persons to be examined
named in the petition for the purpose of perpetuating their
testimony. (2, R134)
Section 3. Notice and service. — The petitioner shall serve a
notice upon each person named in the petition as an expected
adverse party, together with a copy of the petition, stating that the
petitioner will apply to the court, at a time and place named therein,
for the order described in the petition. At least twenty (20) days
before the date of the hearing, the court shall cause notice thereof
to be served on the parties and prospective deponents in the
manner provided for service of summons. (3a, R134)
Section 4. Order and examination. — If the court is satisfied
that the perpetuation of the testimony may prevent a failure or delay
of justice, it shall make an order designating or describing the
persons whose deposition may be taken and specifying the subject
matter of the examination and whether the depositions shall be
taken upon oral examination or written interrogatories. The
depositions may be taken in accordance with Rule 23 before the
hearing. (4a, R134)
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  180 | P a g e
Section 5. Reference to court. — For the purpose of applying
Rule 23 to depositions for perpetuating testimony, each reference
therein to the court in which the action is pending shall be deemed
to refer to the court in which the petition for such deposition was
filed. (5a, R134)
Section 6. Use of deposition. — If a deposition to perpetuate
testimony is taken under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be used in any action
involving the same subject matter sub-sequently brought in
accordance with the provisions of sections 4 and 5 of Rule 23. (6a,
R134)
Section 7. Depositions pending appeal. — If an appeal has
been taken from a judgment of a court, including the Court of
Appeals in proper cases, or before the taking of an appeal if the
time therefor has not expired, the court in which the judgment was
rendered may allow the taking of depositions of witnesses to
perpetuate their testimony for in the event of further proceedings in
the said court. In such case the party who desires to perpetuate the
testimony may make a motion in the said court for leave to take the
depositions, upon the same notice and service thereof as if the
action was pending therein. The motion shall state (a) the names and
addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and (b) the reason
for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or delay
of justice, it may make an order allowing the deposition to be taken,
and thereupon the depositions may be taken and used in the same
manner and under the same conditions as are prescribed in these
Rules for depositions taken in pending actions. (7a, R134)
RULE 25
INTERROGATORIES TO PARTIES
Section 1. Interrogatories to parties; service thereof. — Under
the same conditions specified in section 1 of Rule 23, any party
desiring to elicit material and relevant facts from any adverse
parties shall file and serve upon the latter written interrogatories to
be answered by the party served or, if the party served is a public
or private corporation or a partnership or association, by any officer
thereof competent to testify in its behalf. (1a)
INTERROGATORIES
- Interrogatories are simply written questions. Instead of
questions and answers orally made, interrogatories are in
writing to be answered as well by the recipient of the
interrogatory in writing.
PURPOSE OF INTERROGATORIES TO PARTIES
- This mode of discovery which is availed of by a party to the
action is for the purpose of ELICITING MATERIAL AND
RELEVANT FACTS FROM ANY ADVERSE PARTY (Sec. 1, Rule
25, Rules of Court).
 Adverse party, not just any witness.
 L.A. Batch Unitas Personae No. 543/FabianCPA  181 | P a g e

INTERROGATORIES versus BILL OF PARTICULARS
 A BILL OF PARTICULARS is designed to clarify ambiguities in a
pleading or to state with sufficient definiteness allegations in a
pleading. A bill of particulars therefore, is directed to a
pleading (Sec. 1, Rule 12, Rules of Court).
 INTERROGATORIES to parties are not directed to a particular
pleading. Instead, they seek to disclose all material and
relevant facts from a party (Sec. 1, Rule 23, Rules of Court).
- Section 2 is a rare provision. In general, when the Rules allow a
period within which to comply, the party who is required to
make compliance is entitled to the entire period and he may
even ask for reasonable extensions of time for as long as not
dilatory and consistent with the interest of justice. Section 2,
however, allows shortening of a period within which
compliance must be made. Since shortening a period is not the
norm, there must be a motion and a good cause for the
abbreviation of time.

Section 3. Objections to interrogatories. — Objections to any

INTERROGATORIES versus WRITTEN INTERROGATORIES IN
A DEPOSITION
 WRITTEN INTERROGATORIES in a deposition are not served
upon the adverse party directly. They are instead delivered to
the officer before whom the deposition is to be taken (Sec. 26,
Rule 23, Rules of Court).
 INTERROGATORIES to Parties are served directly upon the
adverse party (Sec. 1, Rule 25, Rules of Court).
interrogatories may be presented to the court within ten (10) days
after service thereof, with notice as in case of a motion; and answers
shall be deferred until the objections are resolved, which shall be at
as early a time as is practicable. (3a)
OBJECTIONS TO INTERROGATORIES
- Section 3 provides that within 10 days from service of the
interrogatories, the party must raise the objection. He need not
answer in the meantime. Rather, he can wait until after the court
shall have resolved the objection.

DEPOSITION UPON Grounds: impropriety, immateriality, inadmissibility or privilege.

INTERROGATORIES TO
WRITTEN
PARTIES
INTERROGATORIES
FORM OF OBJECTION
The deposition is taken before a There is no deposition officer. - Logically in writing because it requires notice as in the case of
deposition officer who will ask This is strictly a party to party a motion and because they are not made in open court.
the questions. activity.
Questions are prepared Questioning is direct. Plaintiff  Related to:
beforehand. They are submitted questions defendant, defendant  RULE 15, Section 2. Motions must be in writing. — All
to the deposition officer who will questions the plaintiff. There is motions shall be in writing except those made in open
ask the deponent the questions no third person who will court or in the course of a hearing or trial. (2a)
and he will record the answers. intervene
The deposition of any person You can send interrogatories
may be taken, whether he is a only to parties, not to witness or DEPOSITION UPON INTERROGATORIES TO
party or not. strangers. WRITTEN PARTIES
INTERROGATORIES
Objections made in the course Objections are presented
WHETHER LEAVE OF COURT IS REQUIRED of the deposition taking are directly to the court.
- ―under the same conditions specified in Section 1 of Rule 23.‖ taken note of by the deposition
 leave of court is NOT NECESSARY - If an answer has already officer. He does not rule on it.
been served
 leave of court is NECESSARY - If no answer has been served,
although the court has already acquired jurisdiction over the
Section 4. Number of interrogatories. — No party may, without
defendant
leave of court, serve more than one set of interrogatories to be
answered by the same party. (4)
Section 2. Answer to interrogatories. — The interrogatories
General Rule
shall be answered fully in writing and shall be signed and sworn to
- Only ONE SET
by the person making them. The party upon whom the
Exception
interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen - May have MORE THAN one set if with leave of court
(15) days after service thereof unless the court on motion and for
good cause shown, extends or shortens the time. (2a)
Section 5. Scope and use of interrogatories. — Interrogatories
may relate to any matters that can be inquired into under section 2
REQUIREMENTS: ANSWER TO INTERROGATORIES of Rule 23, and the answers may be used for the same purposes
provided in section 4 of the same Rule. (5a)
1) Fully in writing;
2) Signed by the party answering;  Rule 23, Section 2 may be asked which may be anything that is
3) Made under oath or sworn to by the party answering; not covered by privilege and is related to the claim or defense
4) Filed and served on the party submitting the provided it is relevant.
interrogatories within 15 days after service, unless the
court on motion and for good cause, extends or shortens  Rule 23, Section 4 the answers to the interrogatories can then
the time. be used for the purpose of impeachment or any other purpose
such as proving an admission already made by the adverse
party.
“Be fearful of Mediocrity.”
Unity, excellence, equality

Section 6. Effect of failure to serve written interrogatories. —
Unless thereafter allowed by the court for good cause shown and to
prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal. (n)
EFFECT OF FAILURE TO SERVE WRITTENINTERROGATORIES
- 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.
- This provision encourages the use of written interrogatories
and 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.
NB: An adverse party may be made to testify for his opponent, but it
is rarely done. One cannot expect his opponent to give testimony in
his favor.
TESTIMONY OF PARTY
Can a party be made to testify by the adverse party?
- YES. However, he must be served with written interrogatories
first. Otherwise, he may not be compelled by the adverse party
to give testimony in open court.
Can he be asked leading questions?
- YES, under Rule 132, Section 10, leading questions are allowed
because a party cannot be expected to voluntarily give
information. He may thus be asked questions answerable by
yes or no.
Can he be impeached?
- YES, under Rule 132, Section 12, by way of exception to the
general rule.
Can he be deposed?
- YES, under Rule 23, Section 1 and related provisions.
What are the uses of his deposition?
- He can be impeached by the statements he made in the
deposition as evidence that he has made a previous
inconsistent statement. His deposition may also be used for any
purpose such as proving that he made an admission adverse to
his interest.
RULE 26
ADMISSION BY ADVERSE PARTY
Section 1. Request for admission. — At any time after issues
have been joined, a party may file and serve upon any other party a
written request for the admission by the latter of the genuineness of
any material and relevant document described in and exhibited
with the request or of the truth of any material and relevant matter of
fact set forth in the request. Copies of the documents shall be
delivered with the request unless copies have already been
furnished. (1a)
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  182 | P a g e
AT ANY TIME AFTER ISSUES HAVE BEEN JOINED
- Means that the answer of the defendant had already been filed
and served.
PURPOSE OF ADMISSION BY ADVERSE PARTY
- To allow one party to request the adverse party in writing to
admit certain material and relevant matters which most likely
will not be disputed during the trial. To avoid unnecessary
inconvenience to the parties in going through the rigors of
proof, before the trial, a party may request the other to:
(a) admit the genuineness of any material and relevant
document described in and exhibited with the request; or
(b) admit the truth of any material and relevant matter of fact
set forth in the request (Sec. 1, Rule 26, Rules of Court).
LEAVE OF COURT
- Leave of court is not required to avail of a request for
admission.
- Under Rule 26, the answer has already been served because of
the phrase ―at any time after issues have been joined.‖
MEANING of Last sentence: ―Copies of the documents shall be
delivered with the request unless copy have already been
furnished.‖
- Example: ACTIONABLE DOCUMENT.
 An actionable document may already be attached to the
complaint or answer itself. In other words, a copy has
already been furnished. There is no need to deliver a
copy with the request for admission.
 RULE 8
Section 7. Action or defense based on document. —
Whenever an action or defense is based upon a written
instrument or document, the substance of such instrument
or document shall be set forth in the pleading, and the
original or a copy thereof shall be attached to the pleading
as an exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set forth in
the pleading. (7)
APPLICATION:
- In an action for collection of a sum of money plus interest:
1) Do you admit that the debt has been paid?
2) If you admit that the debt has been paid, do you admit
having issued a receipt?
3) If you admit 1 and 2, do you admit the genuineness and
due execution of the attached receipt dated September 29,
2009?
4) Do you admit the genuineness and due execution of the
contract of loan dated March 10, 2009?
5) Do you admit that there is no stipulation as to payment of
interest in the said contract of loan?

INTERROGATORIES TO PARTIES versus REQUEST FOR
ADMISSION
INTERROGATORIES TO
REQUEST FOR ADMISSION
PARTIES
RULE 26
RULE 25
In both, the answers must be under oath.
In both, it is purely between parties to the action
It must be in writing and to be answered in writing as well
In both, any objection to the questions are submitted directly to the
court.
In both, the answers may be deferred pending the court‘s ruling of
the objections.
Specific details or evidentiary Admissions are sought. Thus,
matters are sought. The questions the questions are answerable
asked are WHO, WHAT, WHEN, by YES or NO.
WHERE, etc.
Can be availed of if there is an Can be availed of without
answer served or none yet, with leave of court.
leave of court in the latter case.
The period to object is 10 days The period to object is not
after service of the interrogatories. less than 15 days from the
date of service of the request
for admission.
Period to answer may be Period to answer may be
shortened or extended. extended but not shortened.
ADMISSIONS BY ADVERSE PARTY
1) Out of court, as in the case of extrajudicial admissions,
whether by act or omission;
 EXTRAJUDICIAL ADMISSION. Under this rule, the
admission is admissible only if it is against the
interest of the admitter (otherwise it is a self-serving
statement).
 Example: Flight is considered a disserving act,
since it is prejudicial to the interest of the
accused. Flight is considered as circumstantial
evidence of the guilt of the accused. BUT non-
flight cannot be used as evidence to prove his
innocence, because that will be considered as an
act that is favorable to the interest of the accused.
2) In court, as in the case of testimony made as a witness,
either in direct, cross, re-direct, re-cross examination;
3) In the pleadings, as in the case of an admission in an
answer or any other paper submitted before the court;
4) By failing to make a proper denial, as in the case of a
general denial when a specific one is required or in the
case of a denial of an actionable document not under oath.
 Example: For an allegation that defendant is ―without
knowledge or information sufficient to form a belief
as to the truth of a material averment made in the
complaint‖ to constitute denial, it must be shown that
the defendant indeed was in no position to know the
truth of the averment in the complaint. But if it can be
demonstrated that he in fact was in a position to
know, then the denial is ineffective and the averment
is deemed admitted.
5) During the pre-trial stage;
6) By silence;
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  183 | P a g e
 Rule 130, Section 32. Admission by silence. - An
act or declaration made in the presence and within
the hearing or observation of a party who does or
says nothing when the act or declaration is such as
naturally to call for action or comment if not true, and
when proper and possible for him to do so, may be
given in evidence against him. (23a)
7) Through others, as in the case of the exceptions to the RES
INTER ALIOS ACTA rule in evidence;
 Section 28. Admission by third party. - The rights of
a party cannot be prejudiced by an act, declaration,
or omission of another, except as hereinafter
provided. (25a)
 Section 29. Admission by co-partner or agent. -
The act or declaration of a partner or agent of the
party within the scope of his authority and during the
existence of the partnership or agency, may be given
in evidence against such party after the partnership
or agency is shown by evidence other than such act
or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other
person jointly interested with the party. (26a)
 Section 30. Admission by conspirator. - The act or
declaration of a conspirator relating to the conspiracy
and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is
shown by evidence other than such act of declaration.
(27)
 Section 31. Admission by privies. - Where one
derives title to property from another, the act,
declaration, or omission of the latter, while holding
the title, in relation to the property, is evidence
against the former. (28)
8) Expressly in an answer to a request for admission under
Rule 26;
9) Impliedly under Rule 26, Section 2.
Section 2. Implied admission. — 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.
CONSEQUENCE OF FAILURE TO FILE AND SERVE REQUIRED
SWORN STATEMENT
- It is advisable for the party to whom the written request is
directed to file and serve upon the party requesting the
admission a sworn statement either:
(a) specifically denying the matters of which admission is
requested; or
(b) if he does not deny the same, to set forth in detail the
reasons why he cannot truthfully admit or deny those
matters.
- Otherwise, each of the matters of which an admission is
requested shall be deemed admitted.

- This sworn statement shall be filed and served within the
period designated in the request but which shall not be less
than fifteen (15) days from the service of such request, or within
such further time as the court may allow.
SPECIFIC DENIAL
 RULE 8
Section 10. Specific denial. — A defendant must specify each
material allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance of the
matters upon which he relies to support his denial. Where a
defendant desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall deny only
the remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material
averment made to the complaint, he shall so state, and this shall
have the effect of a denial. (10a)
GENERAL DENIAL
- If the party did not set forth the substance of the matters relied
upon to support his denial it has the effect of automatically
admitting the allegations.
CANNOT TRUTHFULLY ADMIT OR DENY
 Examples:
1. Where the party is without knowledge or information
sufficient to form a belief as to the truth of a material
averment, he shall so state, and this shall have the effect of
a denial;
2. In a request for admission of a document, a party can
neither admit nor deny if he was not privy to the
document.
General Rule
A party may be made to admit the same allegation twice.
Because failure to comply with Section 2 of Rule 26 amounts to
an implied admission. Thus, a party may, IN THEORY, be asked
to admit the same thing twice.
Exception: Case of Po vs. CA
PRISCILLA SUSAN PO vs. COURT OF APPEALS
[G.R. No. L-34341, August 22, 1988]
HELD: The "fact" set forth in the request for admission,
including the amount of damages claimed, are the same factual
allegations set forth in her complaint which the defendant either
admitted or denied in his answer. A party should not be compelled
to admit matters of fact already admitted by his pleading and
concerning which there is no issue, nor should he be required to
make a second denial of those already denied in his answer to the
complaint. A request for admission is not intended to merely
reproduce or reiterate the allegations of the requesting party's
pleading but should set forth relevant evidentiary matters of fact, or
documents described in and exhibited with the request, whose
purpose is to establish said party's cause of action or defense.
Unless it serves that purpose, it is, as correctly observed by the
Court of Appeals, "pointless, useless," and "a mere redundancy."
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  184 | P a g e
THE PARTY TO WHOM THE REQUEST IS DIRECTED
Jurisprudence: The request for admission may be answered by
the counsel but it should be served to the party himself, not to
his counsel.
1. Can a lawyer answer a request for admission on behalf of his
client? Yes.
LAÑADA V. CA & NESTLE PHILIPPINES v. CA
[February 1, 2002]
ISSUE: May the counsel of a party to whom a written request for
admission is addressed under Section 1, Rule 26 of the Rules of
Court, answer such request for his client? The issue for resolution
thus calls for an interpretation of the phrase ―the party to whom the
request is directed.‖. Whether or not the answer to the request for
admission under Rule 26 ―should be made by the party himself and
nobody else, not even his lawyer,‖.
HELD: The argument is untenable. When Rule 26 states that a
party shall respond to the request for admission, it should not be
restrictively construed to mean that a party may not engage the
services of counsel to make the response in his behalf.
In the case at bar, neither is there a showing that petitioners
Nestle and Santos did not authorize their respective counsel to file in
their behalf the respective answers requested of them by private
respondents in the latter‘s written request for admission. As this
Court has said, there is no reason to strictly construe the phrase ―the
party to whom the request is directed‖ to refer solely or personally
to the petitioners themselves.
2. If a lawyer is allowed to make the answer, can the request for
admission be served upon him instead? NO it has to be serve to
the party.
SALVADOR D. BRIBONERIA vs. COURT OF APPEALS
[G.R. No. 101682, December 14, 1992]
Under Section 1, Rule 26 of the Rules of Court, the request for
admission must be served directly upon the party; otherwise, the
party to whom the request is directed cannot be deemed to have
admitted the genuineness of any relevant document in and
exhibited with the request or relevant matters of fact set forth
therein, on account of failure to answer the request for admission.
Section 3. Effect of admission. — 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. (3)
EXCLUSIVE USE OF ADMISSIONS MADE UNDER RULE 26
- When you‘re talking about request of admission, you can only
use such admission made by a party for the purpose of the
pending action only and shall not constitute an admission for
any other purpose nor be used in any other proceeding.
 L.A. Batch Unitas Personae No. 543/FabianCPA  185 | P a g e

RULE 23 versus RULE 26
DEPOSITIONS PENDING
ACTION
RULE 23
A deposition may thus be used
notwithstanding:
1. The substitution of parties;
2. The dismissal of the action
and the subsequent filing of
another action involving
the same subject between
the same parties or their
representatives or
successors in interest.
Hence, all depositions lawfully
taken and duly filed in the
former action may be used in
the latter as if originally taken
therefor.
REQUEST FOR ADMISSION
RULE 26
An 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.
Section 3 of Rule 26 therefore is
an EXCLUSIONARY RULE OF
EVIDENCE.
defendant a request for admission. Suppose he does not
send the defendant a request because, anyway the
plaintiff will just try to prove it during trial. The adverse
party can object because under Section 5, the plaintiff
cannot present evidence to prove something which the
defendant could have admitted in a request for admission.
This is something which the party could have admitted had
the other resorted to a request for admission under Rule
26, and since he did not, t defendant can now prevent him
from proving it. Hence, this is a very dangerous provision.
It is practically places the other party in estoppel.
 The adverse party can therefore bar the other from
proving anything simply because he failed to avail of
the modes of discovery. However, the Rules allow an
exception: ―Unless otherwise allowed by the court
for good cause and to prevent a failure of justice.‖

RULE 27
Section 4. Withdrawal. — The court may allow the party PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
making an admission under the Rule, whether express or implied, to
withdraw or amend it upon such terms as may be just. (4)

Section 1. Motion for production or inspection; order. — Upon

WITHDRAWAL OR AMENDMENT UPON SUCH TERMS AS MAY
BE JUST
- When you admit something in a request for admission, it has
the effect of a judicial admission.
 RULE 129
Section 4. Judicial admissions. - An admission, verbal or
written, made by the party in the course of the
proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it
was made through palpable mistake or that no such
admission was made. (2a)
- Section 4 of Rule 129 can be applied to Section 4 of Rule 26.
Thus, if the admission was made through palpable mistake or
the party never intended his statements to be construed as an
admission, he may withdraw or amend his admission. However,
in such a case, leave of court is required.
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. (1a)
PURPOSE
- To allow a party to seek an order from the court in which the
action is pending to:

(a) order any party to produce and permit the inspection and
Section 5. Effect of failure to file and serve request for copying or photographing, by or on behalf of the moving
admission. — Unless otherwise allowed by the court for good cause party, of any designated documents, papers, books,
shown and to prevent a failure of justice a party who fails to file and accounts, letters, photographs, objects or tangible things,
serve a request for admission on the adverse party of material and not privileged, which constitute or contain evidence
relevant facts at issue which are, or ought to be, within the personal material to any matter involved in the action and which are
knowledge of the latter, shall not be permitted to present evidence in his possession, custody or control;
on such facts. (n)
(b) order any party to permit entry upon designated land or
- ―A party who FAILS to FILE and SERVE a request for admission other property in his possession or control for the purpose
on the adverse party of material and relevant facts in issue of inspecting, measuring, surveying, or photographing the
which are or ought to be within the personal knowledge of the property or any designated relevant object or operation
latter shall not be permitted to present evidence on such facts.‖ thereon (Sec. 1, Rule 27, Rules of Court)
- This is a mandatory mode of discovery.
- This is A VERY HARSH RULE. - a new rule which again shows
the intention of the law to compel the lawyers to avail of the
modes of discovery.

 Example:
Assume that there is a fact which the plaintiff wants to
prove and he knows that it is within the defendant‘s
knowledge. Under the rules, the plaintiff has to send the

“Be fearful of Mediocrity.”

Unity, excellence, equality

SIX PROCEDURAL REQUISITES
1) The party must file a motion for the production or
inspection of documents or things, showing good cause
therefor;
2) Notice of the motion must be served to all other parties of
the case;
3) The motion must designate the documents, papers, books,
accounts, letters, photographs, objects or tangible things
which the party wishes to be produced and inspected;
4) Such documents, etc. are not privileged;
5) Such documents, etc. constitute or contain evidence
material to any matter involved in the action; and
6) Such documents, etc. are in the possession, custody or
control of the other party.
―MODE OF DISCOVERY‖ UNDER THE AMPARO RULE
GEN. ALEXANDER B. YANO vs. SANCHEZ and MEDINA
[G.R. No. 186640, February 11, 2010]
Section 14 of the Amparo Rule provides for interim or provisional
reliefs that the courts may grant in order to, inter alia, protect the
witnesses and the rights of the parties, and preserve all relevant
evidence, viz:
SEC. 14. Interim Reliefs. — Upon filing of the petition or at
anytime before final judgment, the court, justice or judge may grant
any of the following reliefs:
(b) Inspection Order. — The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession or
control of a designated land or other property, to permit entry for the
purpose of inspecting, measuring, surveying, or photographing the
property or any relevant object or operation thereon.
The motion shall state in detail the place or places to be
inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced disappearance
or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of
the privileged nature of the information, the court, justice or judge
may conduct a hearing in chambers to determine the merit of the
opposition.
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be threatened or
violated.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other conditions
to protect the constitutional rights of all parties. The order shall expire
five (5) days after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. — The court, justice, or judge, upon
verified motion and after due hearing, may order any person in
possession, custody or control of any designated documents, papers,
books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to produce and permit
their inspection, copying or photographing by or on behalf of the
movant.
The motion may be opposed on the ground of national security or
of the privileged nature of the information, in which case the court,
justice or judge may conduct a hearing in chambers to determine the
merit of the opposition. The court, justice or judge shall prescribe
other conditions to protect the constitutional rights of all the parties.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  186 | P a g e
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
versus SUBPOENA DUCES TECUM
Production or Inspection of Subpoena Duces Tecum under
Documents or Things under Rule 21
Rule 27
A mode of discovery A means of compelling
production of evidence which
must be brought to court
Limited to parties in the action May be directed to any person,
whether a party or not
The order under Rule 27 is A subpoena duces tecum under
issued only upon motion with Rule 21 may be issued upon an
notice to the adverse party. ex-parte application.
RULE 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
Section 1. When examination may be ordered. — In an action
in which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental examination
by a physician. (1)
APPLICABILITY
- This mode of discovery applies to an action in which the mental
or physical condition of a party is in controversy.
 Examples:
1) An action for annulment of a contract where the ground
relied upon is insanity or dementia;
2) A petition for guardianship of a person alleged to be insane;
3) An action to recover damages for personal injury where the
issue is the extent of the injuries of the plaintiff;
4) Action for declaration of nullity of marriage on the ground of
psychological incapacity;
5) Action for annulment under Article 45 of the Family Code on
the grounds of insanity, physically incapacity of
consummating the marriage with the other and such
incapability continues and appears to be incurable and
affliction with a sexually-transmissible disease found to be
serious and appears to be incurable;
6) An action for damages based on quasi-delict that led to
physical injuries.
Section 2. Order for examination. — The order for examination
may be made only on motion for good cause shown and upon notice
to the party to be examined and to all other parties, and shall
specify the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made.
Section 3. Report of findings. — If requested by the party
examined, the party causing the examination to be made shall
deliver to him a copy of a detailed written report of the examining
physician setting out his findings and conclusions. After such
request and delivery, 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 mental or physical condition. If the party examined refuses
to deliver such report, the court on motion and notice may make an
order requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report the court may
exclude his testimony if offered at the trial. (3a)

Section 4. Waiver of privilege. — By requesting and obtaining
a report of the examination so ordered or by taking the deposition
of the examiner, the party examined waives any privilege he may
have in that action or any other 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. (4)
RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Section 1. Refusal to answer. — 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 attorney's 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 attorney's fees. (1a)
Section 2. Contempt of court. — 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.
Section 3. Other consequences. — 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
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  187 | P a g e
the action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party; an
(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. (3a)
Section 4. Expenses on refusal to admit. — If a party after
being served with a request under Rule 26 to admit the genuineness
of any document or the truth of any matter of fact serves a sworn
denial thereof and if the party requesting the admissions thereafter
proves the genuineness of such document or the truth of any such
matter of fact, he may apply to the court for an order requiring the
other party to pay him the reasonable expenses incurred in making
such proof, including attorney's fees. Unless the court finds that
there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued. (4a)
Section 5. Failure of party to attend or serve answers. — If a
party or an officer or managing agent of a party wilfully fails to
appear before the officer who is to take his deposition, after being
served with a proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper service of
such interrogatories, the court on motion and notice, may strike out
all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default
against that party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees. (5)
Section 6. Expenses against the Republic of the Philippines.
— Expenses and attorney's fees are not to be imposed upon the
Republic of the Philippines under this Rule. (6)
SUMMARY OF SANCTIONS FOR REFUSAL TO COMPLY WITH
THE MODES OF DISCOVERY
A. Refusal to answer any question
a. The court may upon proper application, compel a
deponent who refuses to answer an oral examination. The
same applies to a witness who refuses to answer an
interrogatory submitted (Sec. 1, Rule 29, Rules of Court). A
refusal to answer after being directed by the court may be
considered as a contempt of court (Sec. 2, Rule 29, Rules of
Court).
The court may order the deponent, a party, or the counsel
advising the refusal, or both of them, to pay the proponent
the amount of reasonable expenses incurred in obtaining
the order, including attorney's fees (Sec. 1, Rule 29, Rules
of Court).
b. If the application for an order to compel a deponent to
answer is denied because of the absence of a substantial
justification, the court may require the proponent or the
counsel advising the application, or both of them, to pay to
the refusing party or deponent the amount of reasonable
expenses incurred in opposing the application, including
attorney's fees (Sec. 1, Rule 29, Rules of Court).
 L.A. Batch Unitas Personae No. 543/FabianCPA  188 | P a g e

B. Refusal to answer designated or particular questions or
refusal to produce documents or things or to submit to physical
or mental examination
a. The court may order that the matters .regarding which the
questions were asked shall be taken as established for
purposes of the action in accordance with the claim of the
party obtaining them (Sec. 3[a], Rule 29, Rules of Court).
b. The court may issue an order refusing to allow the
disobedient party to refuse or support 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 (Sec. 3[b], Rule 29, Rules of Court).
c. The court may issue 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 (Sec. 3[c], Rule 29, Rules of
Court).
d. The court may direct the arrest of any party or agent of a
party for disobeying any of the orders of the court, except
an order to submit to a physical examination.
CONSEQUENCES PROVIDED FOR IN SEC. 3(C) OF RULE 29:
(a) The court may issue "an order striking out pleadings or
parts thereof;
(b) The court may issue an order staying further proceedings
until the order is obeyed; or
(c) The court may issue an order rendering a judgment by
default against the disobedient party.
The matter of how, and when, the above sanctions should be
applied is one that primarily rests on the sound discretion of the
court where the case is pending, having always in mind the
paramount and overriding interest of justice. For while the modes of
discovery are intended to attain the resolution of litigations with
great expediency, they are not contemplated, however, to be
ultimate causes of injustice. It behooves trial courts to examine well
the circumstances of each case and to make their considered
determination thereafter (Zepeda vs. China Banking Corporation,
supra).

C. Refusal to be sworn

A refusal of a party to be sworn after being directed by the

court may be considered as contempt of court (Sec. 2, Rule 29, Rules
of Court).

D. Refusal to admit

If a party refuses to admit the genuineness of any document or

the truth of any matter of fact and serves a sworn denial thereof and
if the other party later on proves the genuineness of the document
or the truth of such matter of fact, the court upon proper application,
may order the former to pay the reasonable expenses in making
such proof, including attorney's fees (Sec. 4, Rule 29, Rules of
Court).

E. Failure to attend depositions or to serve answers to

interrogatories

The court may:

(a) strike out all or any part of the pleading of that party, or
dismiss the action or proceeding or any part thereof, or
(b) enter a judgment by default against that party, and in its
discretion,
(c) order him to pay reasonable expenses incurred by the
other, including attorney's fees (Sec. 5, Rule 29, Rules of
Court).

The consequences under Sec. 5 of Rule 29 will apply if a party

refuses to answer the whole set of written interrogatories, and not
just a particular question. Where the party upon whom the written
interrogatories is served, refuses to answer a particular question in
the set of written interrogatories and despite an order compelling
him to answer the particular question, still refuses to obey the order,
Sec. 3(c) of Rule 29 will apply (ZEPEDA vs. CHINA BANKING
CORPORATION, G.R. No. 172175, October 9,2006).

“Be fearful of Mediocrity.”

Unity, excellence, equality
 L.A. Batch Unitas Personae No. 543/FabianCPA  189 | P a g e

c) RULE 18/ ARTICLE 2028 CC – Where the parties enter into a

RULE 30
TRIAL
DEFINITION OF A TRIAL
 A trial is the judicial process of investigating and determining
the legal controversies, starting with the production of
evidence by the plaintiff and ending with his closing arguments
(Acosta vs. People, 5 SCRA 774).
 A trial is a judicial examination and determination of facts and
legal issues arising between parties, specifically in our case, to
parties in a civil action.
 It‘s the principal, and more or less the most often resulted to,
method of resolving legal disputes that parties cannot settle by
themselves or through less formal methods.
PURPOSE OF TRIAL
- The chief purpose of trial is to secure fair and impartial
administration of justice between the parties to the action.
- A trial seeks to ascertain the truth of the matters and issues
between the parties and apply the law on the matters.
- A trial provides a final legal determination of the dispute
between the parties.
IMPORTANCE OF TRIAL
- It is importance in Philippine Law because we have that belief
that the adversarial system is the best way to determine
conflicting claims and defenses between parties.
- In civil cases, trial is an important part of due process.
compromise agreement or an amicable settlement either
before or during trial.
d) Where the complaint has been dismissed with prejudice.
 Example: RULE 16 MOTION TO DISMISS – that the court
has no jurisdiction over the subject matter of the claim.
e) Where the case falls under the operation of the Rules on
Summary Procedure.
 However, trial is not necessarily dispensed with because
there is still that presentation of evidence only a shorter
version.
f) RULE 30 SECTION 6 - Where the parties agree in writing upon
the facts involved in the litigation and submit the case for
judgment based on a stipulation of facts.
g) RULE 16 - When a case is dismissed upon a motion to dismiss
because there is no longer a trial and presentation of evidence
on the main claim.
h) RULE 17 SECTION 1,2,3 - If it is dismissed by the plaintiff by a
matter of right upon a notice of dismissal or upon order of the
court or because of the plaintiff‘s fault.
i) RULE 9 SECTION 3 - Where the defendant is declared in default
and the court renders a judgment in favor of the plaintiff or
orders the plaintiff to present evidence ex-parte.
j) RULE 18 SECTION 5 – if the case is decided for failure of the
parties and their counsel to appear during pre-trial, in which
case the plaintiff becomes ―non-suited‖ and the defendant is
declared as ―in default‖.

k) RULE 18 SECTION 2(g) – where the court finds, after pre-trial,

TRIAL versus HEARING the propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid
TRIAL HEARING
ground therefor be found to exist;
When you hear and determine May be for any other
the merits of the case interlocutory matter
A broader term. It is not Section 1. Notice of trial. - Upon entry of a case in the trial
confined to trial and calendar, the clerk shall notify the parties of the date of its trial in
presentation of evidence such manner as shall ensure his receipt of that notice at least five (5)
because it actually embraces days before such date.
several stages of investigation.

Ex:  ADMINISTRATIVE CIRCULAR NO. 3-99.

 A motion is required to be SUBJECT: STRICT OBSERVANCE OF SESSION HOURS OF
heard not necessarily a trial. TRIAL COURTS AND EFFECTIVE MANAGEMENT OF
 Hearings which do not deal CASES TO ENSURE THEIR SPEEDY DISPOSITION.
with the merits of the case. The session hours of all Regional Trial Courts,
 Pre-trial is a hearing not Metropolitan Trial Courts, Municipal Trial Courts in Cities,
necessarily a trial. Municipal Trial Court, and Municipal Circuit Trial Courts shall
be from 8:30 A.M. to noon and from 2:00 P.M. to 4:30 P.M., from
General Rule Monday to Friday.
Trial is the general rule; it‘s a minimum due process The hours in the morning shall be devoted to the conduct
consideration for civil cases. of trial, while the hours in the afternoon shall be utilized for [1]
the conduct of pre-trial conferences; [2] writing of decisions,
Exceptions resolutions, or orders; or [3] the continuation of trial on the
Non-trial is the exception to the general rule, where a civil case merits whenever rendered necessary as may be required by
may be adjudicated without a need for a trial. the Rules of Court, statutes, or circulars in specified cases.

a) RULE 34 JUDGMENT ON THE PLEADINGS - Where the  ADMINISTRATIVE CIRCULAR NO. 1

pleadings of the parties tender no issue. Unless the docket of the Court requires otherwise, not
more than four (4) cases shall be scheduled for trial daily.
b) RULE 35 SUMMARY JUDGMENTS - Where from the
affidavits, pleadings, depositions, and other papers, there  In Actual Practice: This is not being followed.
appears to be no genuine issue to be tried.

“Be fearful of Mediocrity.”

Unity, excellence, equality

Sec. 2. Adjournments and postponements. - A court may adjourn a
trial from day to day, and to any stated time, as the expeditious and
convenient transaction of business may require, but shall have no
power to adjourn a trial for a longer period than one month for each
adjournment, nor more than three months in all, except when
authorized in writing by the Court Administrator, Supreme Court.
 ADMINISTRATIVE CIRCULAR NO. 1-89.
SUBJECT: GUIDELINES TO BE OBSERVED BY
DESIGNATED BRANCHES OF THE TRIAL COURTS IN THE
CONDUCT OF MANDATORY CONTINUOUS TRIAL.
The trial shall be terminated within ninety (90) days from
initial hearing.
 In Actual Practice: Still not being followed. For courts,
these are mere directory provisions.
 Postponement is not a matter of right. It is addressed to the
sound discretion of the court (Garces vs. Valenzuela, 170 SCRA
745). You have the option to postpone but only for the most
meritorious reasons.
 A motion for postponement should not be filed on the last hour
especially when there is no reason why it could not have been
presented earlier (Republic vs. Sandiganbayan, 301 SCRA 237).
 Atty Espejo: In cases when the reason for postponement is
one which is raised time and time again, I invoke the
administrative powers of the court to control its processes
in furtherance of justice.
Sec. 3. Requisites of motion to postpone trial for absence of
evidence. - A motion to postpone a trial on the ground of absence of
evidence can be granted only upon affidavit showing the
materiality or relevancy of such evidence, and that due diligence
has been used to procure it. But if the adverse party admits the
facts to be given in evidence, even if he objects or reserves the
right to their admissibility, the trial shall not be postponed.
REQUISITES OF MOTION TO POSTPONE TRIAL FOR
ABSENCE OF EVIDENCE
(1) Trial may be postponed on the ground of absence of evidence
upon compliance with the following:
a) A motion for postponement must be filed;
b) The motion must be supported by an affidavit or sworn
certification showing (1) the materiality or relevancy of the
evidence, and (2) that due diligence has been used to
procure it.
IMPORTANCE OF LAST SENTENCE
- If the adverse party ADMITS the facts to be given in evidence,
the trial shall not be postponed even if he objects or reserves
the right to their admissibility of the evidence.
 There is no ground to postpone the trial because there is
no need to present that evidence anymore which was the
reason for the postponement in absence thereof.
 EFFECT: The proponent of that evidence is constrained to
move forward and present other evidence. But in actual
practice, despite this rule, lawyers still move for the
postponement of the case.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  190 | P a g e
Sec. 4. Requisites of motion to postpone trial for illness of party or
counsel. - A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if it appears upon affidavit or
sworn certification that the presence of such party or counsel at the
trial is indispensable and that the character of his illness is such as to
render his non-attendance excusable.
REQUISITES OF MOTION TO POSTPONE TRIAL ILLNESS OF
PARTY OR COUNSEL
(1) A motion for postponement must be filed;
(2) The motion must be supported by an affidavit or sworn
certification showing that (a) the presence of the party or
counsel at the trial is indispensable, and (b) that the character
of his illness is such as to render his non-attendance excusable.
Sec. 5. Order of trial. - Subject to the provisions of section 2 of Rule
31, and unless the court for special reasons otherwise directs, the
trial shall be limited to the issues stated in the pre-trial order and
shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his
defense, counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his
defense, counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of
the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of their
defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence
only, unless the court, for good reasons and in the furtherance
of justice, permits them to adduce evidence upon their original
case; and
(g) Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further
pleadings.
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the court
shall determine the relative order of presentation of their evidence.
PRE-TRIAL ORDER
 RULE 18 SECTION 7
Should the action proceed to trial, the order shall explicitly
define and limit the issues to be tried. The contents of the order
shall control the subsequent course of the action, unless
modified before trial to prevent manifest injustice.
 It is by the pre-trial order that the court determines the
relative order of presentation of evidence if there are
several claims, counter-claims, etc.
NB: If the court misapplies section 5, it is a ground for disciplinary
action against the judge. (Office of the Court Administrator vs. Judge
Vestil)
 L.A. Batch Unitas Personae No. 543/FabianCPA  191 | P a g e

HOW TO DETERMINE WHERE THE INITIAL BURDEN OF BURDEN OF PROOF versus BURDEN OF EVIDENCE
PROOF LIES
BURDEN OF PROOF BURDEN OF EVIDENCE
- By reference to the pleadings
Burden of proof is the obligation Burden of evidence is the
Generally: upon the plaintiff imposed upon a party who burden of going forward with
- If by the COMPLAINT, the allegations of the plaintiff establish a alleges the existence of a fact or the evidence or that logical
prima facie case against the defendant. thing necessary in the necessity which rests on a party
 If so, the burden of evidence would shift to the defendant prosecution or defense of an at any particular time during the
because now the defendant would have to present action to establish it by proof. trial to create a prima facie case
evidence to refute whatever was proven or presented by in his favor, or to overthrow one
the plaintiff. when created against him.
 If the allegations of the plaintiff fail to establish a prima Burden of proof is the duty of a Burden of evidence is the duty
facie case, meaning there is insufficient evidence to prove party to present evidence on the of the party to go forward with
the claim of the plaintiff, the defendant is not required to facts in issue necessary to the evidence to overthrow a
present anything. In fact the defendant is entitled to file a establish his claim or defense by prima facie presumption or a
DEMURRER TO THE EVIDENCE presented by the plaintiff. the amount of evidence required prima facie case against him.
by law.
Exception: upon the defendant What you need to discharge in What you use to overthrow a
- If the defendant sets up AFFIRMATIVE DEFENSES in his ANWER order to prove your case. presumption or a prima facie
because there will be a Reverse Trial Order. The initial burden case against you.
of proof now shifts to the defendant to prove his affirmative  Burden of proof of the plaintiff:  Burden of evidence of the
defenses. But if the defendant admits everything, plaintiff the elements of his cause of plaintiff: one that is needed to
entitled to file a JUDGMENT ON THE PLEADINGS (Rule 34) action, that he has a valid cause be discharged to overthrow a
of action against the defendant. presumption. Initially there is
 Burden of proof of the no burden of evidence there.
―BURDEN OF PROOF‖ defendant: to refute or to  Burden of evidence of the
- The burden of proof rests on who asserts, not on who denies. - present evidence regarding defendant: if the plaintiff
ei incumbit probatio qui dicit, non qui negat his defense. establishes a prima facie case,
there is burden of evidence on
 RULE 131Burden of Proof and Presumptions the part of the defendant.
Section 1. Burden of proof. — Burden of proof is the duty Burden of proof never shifts Burden of evidence is
of a party to present evidence on the facts in issue transferred from one litigant to
necessary to establish his claim or defense by the amount another depending on the
of evidence required by law. (1a, 2a) progress of the trial,
depending on whether there is
Test for determining where the Burden of proof lies a prima facie case that is
- Which party to the action or suit will fail if he offers no established.
evidence competent to show the facts averred as the basis
of the relief he seeks to obtain.
 Example: In a case for collection of sum of money, the EFFECT IF THE COURT FINDS THE EVIDENCES OF THE
plaintiff has the burden of proof because if he does PARTIES TO BE EQUAL
not present evidence, the defendant will not be
required to present evidence as well. QUANTUM OF PROOF
 Proof beyond reasonable doubt – if criminal case
 Preponderance of evidence – if civil case
―BENEFIT OFASSUMPTION‖  Substantial evidence – if administrative cases
- The benefit in favor of the party defending that in the
meantime, since there is no evidence presented and there is If Criminal Case – if evidence of the prosecution and the defense is
nothing proven yet, the he will be assumed not to be liable. equal, the judgment is rendered in favor of the accused because of
the constitutional presumption of innocence, meaning the state was
- Normally, when the plaintiff presents his evidence and the not able to prove its case beyond reasonable doubt.
defendant denied all the allegations, the burden of proof rest
on the plaintiff and the defendant has the benefit of assumption. If Civil Case – if evidence of the plaintiff and the defendant is equal,
Once the plaintiff has finished presenting his evidence and the judgment is rendered against the party who has the initial
rested his case and if the plaintiff is able to establish a prima burden of proof. Generally, defendant will win, plaintiff will lose.
facie case, the plaintiff now has the benefit of assumption and This is the doctrine of equipoise. However, if the defendant raises
the burden of evidence now shifts to the defendant. But if he affirmative defense and the evidences are equal, the plaintiff will
was not able to establish a prima facie case, the defendant does win and the defendant will lose.
not lose the benefit of assumption and the burden doesn‘t shift.
- It is different when the defendant sets up an affirmative  DOCTRINE OF EQUIPOISE/EQUIPONDERANCE RULE- Refers
defense, because the initial burden of proof shifts to the to a situation where the evidence of the parties are evenly
defendant to prove his affirmative defenses and the plaintiff has balanced or there is doubt to which side the evidence
the benefit of assumption initially. preponderates, in this case the decision should be against the
party who has the initial burden of proof.
NB: The one who has the opportunity to present evidence first will
depend on which party has the initial burden of proof.  Atty. Espejo – In real life there is no equiponderance because
cases are won subjectively. The judge can‘t help being partial.
Pero naay tabla (according to sir) in civil cases if there is a
compromise. Nobody wins, nobody loses.

“Be fearful of Mediocrity.”

Unity, excellence, equality

SITUATIONS WHICH MAY LEAD TO A REVERSE TRIAL ORDER
1) If the defendant interposes AFFIRMATIVE DEFENSES in his
answer – the defendant is given a hearing to defend his
affirmative defenses
2) When a presumption of RES IPSA LOQUITUR applies - under
tort law, negligence would already be presumed on the part of
the defendant and he has the initial burden of proof that he was
not negligent.
EFFECTS OF PRESENTING NO EVIDENCE
 In a criminal case the prosecution does not present evidence –
the accused is acquitted.
 In a civil case defendant does not file an answer and does not
present evidence – plaintiff wins by default
 If defendant files an answer but sets up purely negative
defenses and no evidence is presented by either plaintiff or
defendant – defendant wins because the plaintiff was not able
to discharge his burden of proof
 If defendant files an answer but sets up affirmative defenses
and no evidence is presented by either plaintiff or defendant –
plaintiff wins because by setting up affirmative defenses
defendant hypothetically admitted the allegations of the
plaintiff.
EVIDENCES PRESENTED
Plaintiff Defendant
Evidence-in-chief
Evidence-in-chief
Rebuttal evidence
Sur-rebuttal evidence
 REBUTTAL EVIDENCE
- The evidence of the plaintiff to rebut or controvert the
evidences presented by the defendant.
 SUR-REBUTTAL EVIDENCE
- The evidence of the defendant to rebut the rebuttal
evidence of the plaintiff. The defendant has the last say.
General Rule
You are not supposed to present evidence-in-chief during the
rebuttal stage.
Exception
1) If the evidence is newly discovered evidence
2) If the evidence was omitted through inadvertence or
mistake that the court considers to be excusable
3) If the purpose is to correct evidence previously offered
(Lopez vs. Liboro, 81 Phil. 429)
4) If the additional evidence offered is material and not
merely cumulative or impeaching
Sec. 6. Agreed statement of facts. - The parties to any action may
agree, in writing, upon the facts involved in the litigation, and
submit the case for judgment on the facts agreed upon, without the
introduction of evidence.
If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court shall
prescribe.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  192 | P a g e
WHEN STIPULATION OF FACTS CAN BE MADE
 During pre-trial (Rule18 Sec 2)
 During the conduct of discovery procedures (Rule 23)
 During trial(Rule 30 Sec 6)
 During trial by commissioners (Rule 32 Sec 12)
 During on appeal preliminary conference (Rule 48 Sec 1)
 During the execution stage
 Example: If during the execution the defendant says
his money is insufficient to pay the debt but the
plaintiff is willing to accept it despite insufficiency,
the plaintiff may admit that that is the only amount that
he can execute from the defendant.
EFFECTS OF STIPULATION OF FACTS
- (Rule 18) During pre-trial you are encouraged make stipulation
of a fact, the effect of which is to limit the issues to be tried and
bars the presentation of unnecessary proof.
- (Rule 18 Sec 4) When you appear by a representative, that
representative must have the authority to enter into stipulations
or admissions of facts and of documents.
- (Rule 32 Sec 12) When the parties stipulate that a
commissioner‘s findings of fact shall be final, only questions of
law shall thereafter be considered.
- Postponement due to absence of evidence is no longer allowed
if the testimonies of witnesses or documentary evidences are
already admitted. There is no need to present such evidences.
- (Rule 30 Sec 6) Stipulation of facts can be used to rendered
judgment even without introduction of documentary or
testimonial evidence. The court only has to apply the law based
on that set of facts.
Sec. 7. Statement of judge. - During the hearing or trial of a case
any statement made by the judge with reference to the case, or to
any of the parties, witnesses or counsel, shall be made of record in
the stenographic notes.
 Atty. Espejo: This is not being followed in actual practice
because the judge still says ―off the record‖ and the things he
says will not be a part of the stenographic notes.
Sec. 8. Suspension of actions. - The suspension of actions shall be
governed by the provisions of the Civil Code.
WHEN CAN THERE BE SUSPENSION OF ACTIONS
 Art. 2030 CC. Every civil action or proceeding shall be
suspended:
(1) If willingness to discuss a possible compromise is
expressed by one or both parties; or
(2) If it appears that one of the parties, before the
commencement of the action or proceeding, offered to
discuss a possible compromise but the other party refused
the offer.
Sec. 9. Judge to receive evidence; delegation to clerk of court. -
The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties. However, in
default or ex parte hearings, and in any case where the parties
agree in writing, the court may delegate the reception of evidence
to its clerk of court who is a member of the bar. The clerk of court
shall have no power to rule on objections to any question or to the
admission of exhibits, which objections shall be resolved by the
court upon submission of his report and the transcripts within ten
(10) days from termination of the hearing.
 L.A. Batch Unitas Personae No. 543/FabianCPA  193 | P a g e

WHEN THE CLERK OF COURT MAY RECEIVE EVIDENCE

1) In default hearings(Rule 9 Sec 3) RULE 35

2) In ex parte applications SUMMARY JUDGMENTS
 Example: to litigate as a pauper litigant (Rule 3)
3) In any case by written agreement by the parties (Rule 30 Sec 9)

NB: The judge cannot delegate the reception of evidence for the
purpose of issuing a warrant of arrest or a search warrant to the
clerk of court in criminal cases because of the constitutional
requirement that no warrant of arrest or search warrant may issue
except upon probable cause to be determined personally by the
judge.
Section 1. Summary judgment for claimant. - A party seeking to
recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor upon
all or any part thereof.

LEADING versus MISLEADING QUESTIONS DEFINITION

LEADING QUESTIONS MISLEADING QUESTIONS  A SUMMARY JUDGMENT also called an ACCELERATED
JUDGMENT is proper where, upon a motion filed and after the
A question that suggests to the Assumes to be true a fact that issues had been enjoined and on the basis of the pleadings and
witness what the lawyer wants was not yet testified to by the papers filed, the court finds that there is no genuine issue as to
him to answer witness any material fact except as to the amount of damages.
Answerable by yes or no  That except as to the amount of damages, there is no genuine
―You were there at the scene of ―While you were there at the issue as to any material fact and that the moving party is
the crime correct?‖ scene of the crime, what did you entitled to a judgment as a matter of law a summary judgment
do?‖ may be rendered.
Can be corrected by rephrasing Cannot be corrected by
the question rephrasing the question
NATURE OF THE AUTHORITY OF THE COURT TO GRANT
RELIEF BY SUMMARY JUDGEMENT
THE CLERK OF COURT CANNOT RULE ON OBJECTIONS
 The clerk of court can receive evidence but shall have no Rule 35 of the 1997 Rules of Civil Procedure as amended, which
power to rule on objections to any question or to the admission gives authority to trial courts to grant relief by summary
of exhibits. judgment is intended to expedite or promptly dispose of cases
 The objections shall be resolved by the court upon submission where the facts appear undisputed and certain from the
of his report and the transcripts within ten (10) days from pleadings, admissions and affidavits. This rule does not vest in
termination of the hearing. the court summary jurisdiction to try the issues on pleadings
 Example: Trial by commissioners – only makes and affidavits but gives the court limited authority to enter
recommendations before the court but it is still the court summary judgment only if it clearly appears that there is no
that ultimately decides whether or not that finding should genuine issue of material fact.
be allowed.  Meaning – Summary Judgment is an exception, it is not the
norm
NB: Non-members of the bar have no ability to receive evidence ex
parte delegated by the judge (Nieva vs Alvarez-Edad, January 31
2007) NO GENUINE ISSUE

When the law says ―no genuine issue‖ it means no genuine

factual issue. What triggers summary judgment is the absence
REVIEW ONTRIAL of a genuine factual issue. It is not proper where there are
factual issues to be resolved by the presentation of evidence.
General Rule Even if there is a complicated question of law, if there is no
Trial is the general rule; it‘s a minimum due process issue as to the facts, a summary judgment is not barred.
consideration for civil cases.
A "genuine issue" is an issue of fact that requires the
Exceptions presentation of evidence as distinguished from a sham,
Non-trial is the exception to the general rule, where a civil case fictitious, contrived or false claim. (Eland Philippines vs. Garcia,
may be adjudicated without a need for a trial. February 17, 2010)

a) RULE 34 JUDGMENT ON THE PLEADINGS - Where the  Example: In an action for foreclosure of mortgage, the
pleadings of the parties tender no issue.
b) RULE 35 SUMMARY JUDGMENTS - Where from the
affidavits, pleadings, depositions, and other papers, there
appears to be no genuine issue to be tried.
 Atty Espejo: Summary judgment is a mode of accelerated
judgment because where the answer reveals that there is really
no genuine issue as to any material fact, the answer is actually
just a sham para naa kay maingon pero in fact there is really no
issue.
“Be fearful of Mediocrity.”
Unity, excellence, equality
material facts are the existence of the debt and its
demandability. Defendant admits the existence of the debt
and raises an issue as to the demandability of the debt or
the interest rate involved because of an alleged
contemporaneous agreement between the parties; the
issues tendered are sham, fictitious, and unsubstantial. A
summary judgment would be proper because there is no
genuine factual issue. It is tantamount to saying: factually
speaking there is no dispute, there is no genuine issue. All
the defendant is saying is that under the law you are not
 L.A. Batch Unitas Personae No. 543/FabianCPA  194 | P a g e

allowed to recover, I am imposing purely legal defenses

or pure questions of law.
 Example: The genuineness of an actionable document are
already deemed admitted for failure of the defendant to
deny the same under oath. A summary judgment is not
proper. (Asian development vs. PCIB, April 25, 2006)
The Hearing here is not a full blown trial; it is not based on the
merits. Its purpose is merely to determine whether the issues are
genuine or not, and not to receive evidence on the issues set up in
the pleading.

Sec. 4. Case not fully adjudicated on motion. - If on motion under

JUDGMENT ON THE PLEADINGS
JUDGMENT
JUDGMENT ON THE
PLEADINGS
The answer either does not
tender an issue or otherwise
admits all the allegations in the
plaintiffs complaint
Limited only to claiming parties:
The plaintiff, counterclaimant,
cross-claimant, third party
plaintiff can avail of the remedy
of judgment on the pleadings
Based solely on the pleadings
There is no specific requirement
that the motion will be served to
the opposing party hence it
should be served at least 3 days
before the date of the hearing
which in turn must not be later
than 10 days after the filing of
the motion. It follows the general
rule under Rule 15.
versus SUMMARY
SUMMARY JUDGMENT
The answer renders some issue
but these issues are not genuine
so that they require no judicial
determination
May be asked by the claimant or
the defending party
Based not only on the pleadings
but also on affidavits,
admissions, depositions, and
other documents
Shall be served at least 10 days
before the date specified for
hearing which in turn must not
be later than 10 days after the
filing of the motion.
this Rule, judgment is not rendered upon the whole case or for all
the reliefs sought and a trial is necessary, the court at the hearing of
the motion, by examining the pleadings and the evidence before it
and by interrogating counsel shall ascertain what material facts exist
without substantial controversy and what are actually and in good
faith controverted. It shall thereupon make an order specifying the
facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as
are just. The facts so specified shall be deemed established, and the
trial shall be conducted on the controverted facts accordingly.
 Meaning: There can be partial summary judgment and total
summary judgment.
TOTAL SUMMARY JUDGMENT
- If there is a summary judgment for the entire case already, it
totally disposes of the case. If you are aggrieved by the
dismissal because of the motion for summary judgment, the
remedy is APPEAL.
PARTIAL SUMMARY JUDGMENT
- The order of partial summary judgment is an interlocutory
order from which you CANNOT APPEAL.

Sec. 5. Form of affidavits and supporting papers. - Supporting and

Sec. 2. Summary judgment for defending party. - A party against
whom a claim, counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his
favor as to all or any part thereof.
opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein. Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto or served
therewith.

An examination of Section 1 and 2 would tell you that the movant can
either be the claiming party or the defending party. Whoever that
party may be, claiming or defending, the burden is upon him to
demonstrate clearly the absence of any genuine issue of fact or that
the issue post in the complaint is so patently insubstantial as not to
constitute a genuine issue for trial and any doubt as to the existence
of such an issue is resolved against the movant.
 Because it is exceptional, it is an exception rather than a
general rule. That is why in case of doubt; do not grant the
motion for summary judgment.
Sec. 6. Affidavits in bad faith. - Should it appear to its satisfaction at
any time that any of the affidavits presented pursuant to this Rule are
presented in bad faith, or solely for the purpose of delay, the
court shall forthwith order the offending party or counsel to pay to
the other party the amount of the reasonable expenses which the
filing of the affidavits caused him to incur, including attorney‘s fees.
It may, after hearing, further adjudge the offending party or counsel
guilty of contempt.

NB: Testimonial evidence is not needed, only documentary

evidence to prove the absence of genuine issues.

Sec. 3. Motion and proceedings thereon. - The motion shall be

served at least ten (10) days before the time specified for the
hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the
hearing. After the hearing, the judgment sought shall be rendered
forthwith if the pleadings, supporting affidavits, depositions, and
admissions on file, show that, except as to the amount of damages,
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.

“Be fearful of Mediocrity.”

Unity, excellence, equality

RULE 36
JUDGMENT, FINAL ORDERS AND ENTRY THEREOF
(BY: JST)
Section 1. Rendition of judgments and final orders—A judgment
or final order determining the merits of the case shall be in
writing personally and directly prepared by the judge, stating
clearly and distinctly the facts and the law on which it is based,
signed by him, and filed with the clerk of court.
JUDGMENT is the final consideration and determination by a court of
the right of the parties as those rights presently exists, upon matters
submitted to it in an action or proceeding.
 As defined, it is ―a judgment or final order determining
the merits of the case…‖
 Judgment is usually the last par graph, or the fallo of the
case. WHEREAS, Decision is the entire written effort from
the first sentence.
 Thus, RULE: in case of conflict, the resolution of the court
in a given issue, as embodied in the dispositive part of the
decision, is the controlling factor that determines and
settles the rights of the parties and the issues presented
therein. (Manalang v. Rickards)
EXCEPTION: Where the inevitable conclusion from
the body of the decision is so clear as
to show that there was a mistake in the
dispositive portion, the body of the
decision will prevail. (Asian Center v.
NLRC)
It has the following REQUISITES FOR A VALID JUDGMENT:
1. The court rendering the judgment has JURISDICTION over the
SM;
2. The court rendering the judgment has JURISDICTION over the
defendant, or res, as the case may be;
3. The court rendering the judgment has JURISDICTION over the
issues;
4. The court rendering the judgment must be a validly constituted
court and judge de jure or de facto. 1
5. The judgment must be rendered after a lawful hearing.
 Note that even in defaults, there is due process because
s/he is given an opportunity to be heard.
FORMAL REQUISITES 2 OF A JUDGMENT
1. It shall be in writing;
 As such, you do not include in counting the period to
appeal the date when you heard the decision, or when it
was orally pronounced.
Q: Why does it have to be in writing and clearly state the fact and
law on which it is based?
A: Because of the possibility of appeal.
2. It shall be personally and directly prepared by the judge;
3. It shall state clearly and distinctly the facts and the law on
which it is based; and
1 To this, note the rule in criminal cases that if the judgment is
promulgated after the judge has already retired, the same is void.
2 As a requirement of due process.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  195 | P a g e
 This is constitutional requirement under Article VIII,
Section 14. In fact, what applies to decision writing also
applies to answering questions in the Bar. (Dean Inigo
transcript.)
 As such, there must be a discussion of the facts and law on
which the decision was based and not mere conclusions.
 By way of exception, however, the Judiciary Law allows
Memorandum Decisions (Section 40, BP 129), which is now
found under Rule 51, Section 5.
 The caveat to this is that the law allows this in simple
cases.
4. It shall be signed by the judge and filed with the clerk of the
court. (Section 1)
Section 2. Entry of judgments and final orders—If no appeal or
motion for new trial or reconsideration is filed within the time
provided in these rules, the judgment or final order shall
forthwith be entered by the clerk in the book of entries of
judgments. The date of finality of the judgment or final order
shall be deemed to be the date of its entry. The record shall
contain the dispositive part of the judgment or final order and
shall be signed by the clerk, with a certificate that such
judgment or final order has become final and executory.
ENTRY OF JUDGMENTS AND FINAL ORDERS, SECTION 2
1. If no appeal or motion for new trial or reconsideration is filed
within the time provided in these Rules, the judgment or final
order shall forthwith be entered by the clerk in the book of
entries of judgments.
2. The date of finality of the judgment or final order shall be
deemed to be the date of its entry.
 Usually, the date of finality is different from the date of
entry as the latter is done later. In such a case, under the
new rules, the date of entry retroacts to the date of entry.
Q: why is it important to know when a judgment becomes final?
A: Because after the date of finality takes place then there can no
longer be any appeal that can be had.
3. The record shall contain the dispositive part of the judgment or
final order and shall be signed by the clerk, within a certificate
that such judgment or final order has become FINAL AND
EXECUTORY. In such a case, the following are the effects:
a. The writ or execution becomes a ministerial duty of the
court;
b. The court rendering the judgment loses jurisdiction over the
case, subject to certain exceptions;
c. Res adjudicata applies.
RULE: When a final judgment becomes executory, it
becomes immutable and unalterable. The
judgment may no longer be modified in an
respect, even if the modification is meant to
correct what is perceived to be an erroneous
conclusion of fact or law.
EXCEPTIONS
1. Clerical Errors;
2. Nunc Pro Tunc entries which cause no
prejudice to any party;
3. Void judgments;
4. Judgment for Support;

TYPES OF JUDGMENT, AS TO EXTENT
Section 3. Judgment for and against one or more of several
parties—Judgment may be given for or against several
plaintiffs, and for or against several defendants. When justice
so demands, the court may require the parties on each side to
file adversary pleadings as between themselves and determine
their ultimate rights and obligations.
1. Judgment for or against one or more of several parties (Section 3)
 This is because adjudication on the merits does not
necessarily carry with it the resting of the other claims,
especially when the causes of actions or defenses are not
the same.
 As such, when justice so demands, the court may require
the parties on each side to file adversary pleadings as
between themselves and determine their ultimate rights
and obligations.
Section4. Several judgments—In an action against several
defendants, the court may, when a several judgment is proper,
render judgment against one or more of them, leaving the
action to proceed against the others.
2. Several judgments (Section 4)
 In an action against several defendants, the court may,
when a several judgment is proper, render judgment
against one or more of them, leaving the action to proceed
against the others. The following are its REQUISITES:
a. It applies when there are several defendants;
b. It implies that the liability of each party is separable
and could be the subject of separate suits. Thus, it
does not apply in actions against solidary debtors (De
Leon v. CA).
 This is different with partial judgments under Rule 35,
Section 4. In said rule, it involves several claims between
the same parties and the same applies when some matters
are resolved on the motion for SJ and the others require
trial.
WHEREAS in Section 5, Rule 36, it involves several parties
and it seems to be the result of trial on the merits.
Section 5. Separate judgments—When more than one claim for
relief is presented in an action, the court, at any stage, upon a
determination of the issues material to a particular claim and
all counterclaims arising out of the transaction or occurrence
which is the subject matter of the claim, may render a separate
judgment disposing of such claim. The judgment shall
terminate the action with respect to the claim so disposed of and
the action shall proceed as to the remaining claims. In case a
separate judgment is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgment or
judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered.
3. Separate judgments (Section 5)
 This refers to judgments at periods or stages of
proceedings. Thus, it applies where there are several
claims for relief in an action.
Section 6. Judgment against entity without juridical
personality—When judgment is rendered against two or more
persons sued as an entity without juridical personality, the
judgment shall set out their individual or proper names, if
known.
4. Judgment against entity without juridical personality (Section 6).
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  196 | P a g e
REMEDIES OF THE LOSING PARTY
Post-judgment remedies of Default
Who is a defaulted defendant? He is one who fails to file and serve
his answer within the time provided fpr by the Rules of Court.
The effects of the declaration of default—Of course you lose your
standing in court; and the court may decide either to grant the relief
as prayed for or require the plaintiff to present his evidence ex
parte.
What are your remedies when you are declared in default, because
technically speaking, you already lost?
BEFORE JUDGMENT:
 Motion for relief from order of default
AFTER JUDGMENT:
 You can choose either to proceed by way of a DIRECT
ACTION or proceeding to annul the judgment or by motion
in another case if in the latter case the court had no
jurisdiction t enter the order or to pronounce the
judgment.
 You can also subject the same to a COLLATERAL ATTACK in
which the purpose of the proceeding is to obtain such
relief other than the vacation or setting aside of the
judgment and the attack must be incidental; or
 You may also file a petition for relief from judgment or
order.
So, there are remedies which the losing party may exercise prior to
the rendition of judgment, or after the rendition of judgment but
before the judgment itself becomes final, and he also has remedies
after the finality of judgment.
What are the remedies that a party may avail after the rendition of
judgment but before its finality?
 Motion for reconsideration
 Motion for New Trial
 Appeal
NOTE: The remedy of appeal is available even if the first two
remedies above had been denied. And appeal must be the
judgment itself not from the order denying the motions (MFR or
MFNT)
Nevertheless, when the period to appeal has expired, there are
POST-JUDGMENT REMEDIES.
 Petition for relief from judgment under Rule 38 on the
ground of fraud, accident, mistake or excusable
negligence.
 Action for annulment of judgment under Rule 47 based on
(1) Extrinsic fraud and (2) Lack of jurisdiction.
 Petition for certiorari if the judgment is void on its face.
When does a judgment become final and executory?
A final judgment or order or one that disposes of the action or
proceeding becomes final and executory upon the expiration of the
period to appeal. (Rule 39)

RULE 37
MOTION FOR NEW TRIAL OR RECONSIDERATION
(BY: JST)
Section 1. Grounds of and period for filing motion for new trial
or reconsideration—within the period for taking an appeal, the
aggrieved party may move the trial court to set aside the
judgment or final order and grant a new trial for one or more of
the following causes materially affecting the substantial rights
of said party:
(a) Fraud, accident, mistake or excusable negligence
which ordinary prudence could not have guarded
against and by reason of which such aggrieved party
has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced
at the trial, and which if presented would probably
alter the result.
Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded
are excessive, that the evidence is insufficient to justify the
decision or final order, or that the decision or final order is
contrary to law.
PRINCIPLES
1. These motions are filed before the judgment has become final
and executory, meaning within the 15 day period to appeal.
TAKE NOTE: Under Rule 40, an appeal may be taken within 15 days
after the notice to the appellant of the judgment or final order
appealed from. Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal within 30 days
after the notice of the judgment or final order.
As such: When does the 15-day period start?
1.
UPON RECEIPT OF THE JUDGMENT OR FINAL ORDER. However,
under Rule 36, Section 1, it would seem that the period to
appeal is different for the plaintiff and defendant. Hence, the
period to appeal shall commence only:
2. From the date of ACTUAL RECEIPT by the plaintiff or
defendant, as the case may be.
NOTE: That notice must always be served to the COUNSEL.
The remedies of motion for new trial and motion for reconsideration
are remedies that can be exercised in lieu of an appeal.
2. Grounds of motion for new trial:
(a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the
trial, and which if presented would probably alter the result.
The aggrieved party may also move for reconsideration upon the
grounds that:
 The damages awarded are excessive,
 The evidence is insufficient to justify the decision or final
order, or
 The decision or final order is contrary to law.
NOTE: Motions for new trail and motion for reconsideration are not
independent actions, unlike appeal where you are practically filing
a new case again. They are mere motions, such that Rule 15 applies.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  197 | P a g e
3. This Rule applies only to parties to proceedings where the
assailed judgment is rendered. As such, in cases of land
proceedings, where one seeks to intervene, he may not avail of
Rule 37, rather, litigate his claim in a separate proceeding.
(Alaban v. CA, 2005)
ALABAN VS CA
HELD: A motion for new trial or reconsideration and a petition for
relief from judgment are remedies available only to parties in the
proceedings where the assailed judgment is rendered. In fact, it has
been held that a person who was never a party to the case, or even
summoned to appear therein, cannot avail of a petition for relief
from judgment.
However, petitioners in this case are mistaken in asserting that they
are not or have not become parties to the probate proceedings.
Under the Rules of Court, any executor, devisee, or legatee named
in a will, or any other person interested in the estate may, at any
time after the death of the testator, petition the court having
jurisdiction to have the will allowed. Notice of the time and place for
proving the will must be published for three (3) consecutive weeks,
in a newspaper of general circulation in the province, as well as
furnished to the designated or other known heirs, legatees, and
devisees of the testator. Thus, it has been held that a proceeding for
the probate of a will is one in rem, such that with the corresponding
publication of the petition the court's jurisdiction extends to all
persons interested in said will or in the settlement of the estate of
the decedent.
4. If one filed a motion for new trial or reconsideration, and the
same is denied, one can still appeal.
 However, it is not the motion itself that is appealable,
rather, the final judgment itself. Hence, under Section 9:
an order denying a motion for new trial or reconsideration is
not appealed, the remedy being an appeal from the
judgment or final order.
 It would seem also though that one cannot file a petition
for certiorari under Rule 65 to orders denying the motions
for NT and Recon, in view of AM No. 07-7-12-SC,
December 4, 2007.
5. Filing motions under herein shall interrupt the period to
appeal.
6. Note that in filing Motions to Dismiss, you have the 5-day
minimum rule to file responsive pleadings.
Before, the rule was that this does not apply to Motions for NT
and Recon. However, in the case of Sumiran v. Sps Damaso
(2009), the ruling now was that the party is given a fresh period
to appeal. This ruling has also been given a retroactive effect.
As to its applicability, the case of Neypes provides:
NEYPES VS CA
HELD: To standardize the appeal periods provided in the Rules and
to afford litigants fair opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of 15 days within which to
file the notice of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial or motion for
reconsideration.
Henceforth, this "fresh period rule" shall also apply to:
 Rule 40 governing appeals from the Municipal Trial Courts
to the Regional Trial Courts;
 Rule 42 on petitions for review from the Regional Trial
Courts to the Court of Appeals;
 Rule 43 on appeals from quasi-judicial agencies to the
Court of Appeals and
 Rule 45 governing appeals by certiorari to the Supreme
Court.
The new rule aims to regiment or make the appeal period uniform,
to be counted from receipt of the order denying the motion for new
trial, motion for reconsideration (whether full or partial) or any final
order or resolution.

NEW TRIAL
REMEMBER: The grounds for new trial are not available as grounds
for motion for reconsideration.
First off, we distinguish this with Rule 9, Section 3:
RULE 9, SECTION 3 [B] RULE 37
ON MOTION FOR RELIEF FROM JUDGMENT
OF DEFAULT
This remedy is availed of when the The defaulted defendant avails
defendant was declared in default of this if there has been
but before judgment; judgment already. Thus, if Rule
9 is not granted, he avails of
this rule.
If, however, Rule 37 fails, then
he may avail of Rule 38.
This is limited to a defaulted This may be availed of by the
defendant; plaintiff or defendant;
The grounds here thus are cumulative, but of different periods.
WHEN: Within the period for taking an appeal, the aggrieved party
may move the trial court to set aside the judgment or final order and
grant a new trial for one or more of the following causes materially
affecting the substantial rights of said party: GROUNDS:
NOTE: The grounds in NT may not be used in filing an MFR, unless
the court allows so, upon its discretion.
a) Fraud, Accident, Mistake or Excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or
1. FRAUD. To be a ground for new trial, THE FRAUD MUST BE
EXTRINSIC. This is the type of fraud which has prevented a
party from having a trial or from presenting his case in the
court.
This is as opposed to INTRINSIC FRAUD where the same is based
only the acts of a party in litigation during the trial, such as the
use of a forged instrument or perjured testimony, which did not
affect the presentation of the case, but did prevent the fail and
just determination of the case. In such a case, you remedy is to
expose the perjured testimony and falsified evidence.
2. ACCIDENT. It is something that is not foreseen. Example of this
is when the party has become physically incapacitated or
becomes sick minutes before the trial or in the middle of the
trial the lawyer of the party becomes sick with that the case was
dismissed and there was judgment.
3. MISTAKE. To this, note the RULE that A LAWYER‘S MISTAKE BINDS A
CLIENT. THE MISTAKE OF THE LAWYER‘S STAFF BINDS THE LAWYER;
THEREFORE, IT BINDS THE CLIENT AS WELL.
HOWEVER, IF THE PARTY HIMSELF WAS NEGLIGENT, THE SAME WILL NOT
BIND THE LAWYER. (Que v. CA, 2005)
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  198 | P a g e
SALAZAR VS SALAZAR:
The defendant receives summons and the complaint. The defendant
instead of seeking assistance of a lawyer went to the plaintiff and
asked for a settlement but in the meantime the period to file an
answer was also running, 15 days had already passed but they did
not settle yet. Plaintiff moved for the defendant be declared in
default, the court granted the motion and issued judgment by
default. The defendant‘s counsel filed for motion for new trial for
mistake and the court granted it.
RAGUDO VS FABELLA ESTATE TENANTS
HELD: It has been repeatedly enunciated that ‗a client is bound by
the action of his counsel in the conduct of a case and cannot be
heard to complain that the result might have been different had he
proceeded differently. A client is bound by the mistakes of his
lawyer. If such grounds were to be admitted and reasons for
reopening cases, there would never be an end to a suit so long as
new counsel could be employed who could allege and show that
prior counsel had not been sufficiently diligent or experienced or
learned. x x x Mistakes of attorneys as to the competency of a
witness, the sufficiency, relevancy or irrelevancy of certain
evidence, the proper defense, or the burden of proof, x x x failure
to introduce certain evidence, to summon witnesses and to argue
the case are not proper grounds for a new trial, unless the
incompetency of counsel is so great that his client is prejudiced and
prevented from properly presenting his case.‘
4. EXCUSABLE NEGLIGENCE. In section 1, negligence must be
excusable and generally imputable to the party because if it is
imputable to counsel it is binding on the party. So if it is
mistake or negligence of counsel, it cannot be a ground for
new trial.
EXCEPTIONS:
A. When the incompetency or negligence of the party‘s
counsel in the conduct of the case is so great that the
party‘s rights are prejudiced and he is prevented from
presenting his cause of action or defense
B. Where the application of the rule will result in the outright
deprivation of the client‘s liberty or property;
C. Where the interests of justice so requires.
In order to determine what is excusable, we must know first the
standard of care required in this case:
THE STANDARD OF CARE REQUIRED OF A PARTY IS THAT WHICH AN
ORDINARILY PRUDENT MAN BESTOWS ON HIS IMPORTANT BUSINESS.
(GAYLORD V. BERRY)
b) NEWLY DISCOVERED EVIDENCE
REQUISITES
1. That the evidence was discovered after trial;
 Thus, if it was forgotten, or if it can be shown that it has
been in your possession since then, ≠ NDE.
2. That it could not, with reasonable diligence, have been
discovered and produced at the trial; and
3. That which if presented would probably alter the result.
NOTE: This does not presuppose that the evidence did not exist at
the time of the trial.

NEW TRIAL RE-OPENING OF TRIAL
DEAN INIGO
Caveat: This is not found in the
law, but is admittedly recognized
by the courts.
This is invoking the discretionary
power of the court to reopen the
case for the introduction of
additional evidence,
After Judgment; Before Judgment;
The grounds are defined by the The only ground is in the
Rules of Court; interest of justice;
This availed upon motion of the This may be done by the court
aggrieved party; motu proprio or upon motion.
Both have FAME as their grounds.
ARCE VS ARCE (re-opening of trial)
HELD: It is elementary that trial courts, before rendering judgment,
have full control of the proceedings before them and, as judge of
Court of First Instance are judge of both fact and law, if after hearing
all the evidence adduced by the attorneys, the court is not satisfied,
he may, in the exercise of his sound discretion, on his own motion
and in furtherance of Justice call additional witnesses or recall some
of the same witnesses, for the purpose of questioning them himself
in order to satisfy his mind with reference to particular facts or
issues involved in the case.3 This is more so where the defendant is
in default and not in a position to controvert or scrutinize the
evidence of the plaintiff. And the opening of a case for the reception
of further evidence, before any judgment has been entered therein,
is not the granting of a new trial as would require a formal motion by
any of the parties.
MOTION FOR RECONSIDERATION
 This is different from petitions for certiorari. This is directed to
interlocutory judgments, such as judgment on defaults, unless
the order of default is also the judgment itself.
 Note that MFR of an interlocutory order is a pre-requisite for
the filing of a petition for certiorari.
WHEN: Within the period for taking an appeal, the aggrieved party
may also move for reconsideration upon the GROUNDS that:
1. The damages awarded are excessive;
2. That the evidence is insufficient to justify the decision or
final order; or
3. That the decision or final order is contrary to law.
Section 2.Contents of motion for new trial or reconsideration
and notice thereof—The motion shall be made in writing stating
the ground or grounds therefor, a written notice of which shall
be served by the movant on the adverse party.
A motion for new trial shall be proved in the manner provided
for proof of motions. A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported by
affidavit of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such evidence
is expected to be given, or by duly authenticated documents
which are proposed to be introduced in evidence.
A motion for reconsideration shall point out specifically the
findings or conclusions of the judgment or final order which are
not supported by the evidence or which are contrary to law,
making express reference to the testimonial or documentary
evidence or t the provisions of law alleged to be contrary to such
findings or conclusions.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  199 | P a g e
A pro forma motion for new trial or reconsideration shall not
toll the reglementary period of appeal.
FORMAL REQUIREMENTS, IN GENERAL
1. In writing;
2. State the ground/s;
3. A written notice served by the movant on the adverse party.
A MOTION FOR NEW TRIAL shall be proved in the manner provided
for proof of motion.
1. Ground (a) shall be supported by the following affidavits:
a. AFFIDAVIT OF ABSOLUTORY CAUSE, stating the nature and
character of the absolutory cause, i.e. FAME;
b. AFFIDAVITS OF MERITS which may be rebutted by
affidavits; CIP: PCIB v. Ortiz, 1987
2. Ground (b) shall be supported by:
a. AFFIDAVIT OF ABSOLUTORY CAUSE, stating the nature of
the absolutory cause, i.e. NDE;
b. AFFIDAVITS OF THE WITNESSES by whom such evidence
is expected to be given; or
c. DULY AUTHENTICATED DOCUMENTS which are proposed
to be introduced in evidence.
An AFFIDAVIT OF MERIT is one which:
a. Recites the nature and character of FAME one which the
motion is based;
b. States the movant‘s good and substantial cause (not
technical grounds) of action or defense and the evidence
he intends to present if granted, which evidence should
be such as too warrant reasonable belief that the result of
the case would probably be otherwise.
This is required to be attached in the following cases:
1. Motion to lift the order of default (Rule 9);
2. Leave of court Rule 14, Section 17;
3. Rule 37, on Motion for NT or Recon;
4. Rule 38, on petition for relief from judgment;
5. Rulee 30, Section 3 and 4;
6. Motion for Summary Judgment;
7. Motion for Preliminary Attachment (Rule 57);
8. Prayer for Preliminary Injunction (Rule 58);
9. Application for Replevin (Rule 60);
10. Support Pendete Lite (Rule 61);
11. Petition for clerical errors and change of name Republic
under Act No. 9048.
PCIB VS ORTIZ
HELD: A motion for new trial grounded on fraud, accident, mistake
or excusable negligence should thus ordinarily be accompanied by
two (2) affidavits: one, setting forth the facts and circumstances
alleged to constitute such fraud, accident, mistake, or excusable
negligence; and the other, an affidavit of merits, setting forth the
particular facts claimed to constitute the movant's meritorious cause
of action or defense. 27 The reason for the first is quite obvious: it is
to enable the court to determine if the movant's claim of fraud, etc.,
is not a mere conclusion but is indeed borne out by the relevant
facts. The reason for the second is equally evident: it would be
useless, a waste of time, to set aside the judgment and reopen the
case to allow the movant to adduce evidence when he has no valid
cause of action or meritorious defense. 28
Where, therefore, a motion for new trial on the ground of fraud, etc.,
is unaccompanied by either or both affidavits, the motion is pro
forma a scrap of paper, as it were, and will not interrupt the running
of the period of appeal. 29 But where, as here, the motion for new
trial is founded not only on fraud, accident, mistake or excusable
negligence, but also on the ground of "award of excessive

damages," 30 as to which no affidavit of fraud, etc., or of merits is
required, what being required of the movant being to "point out
specifically the findings or conclusions of the judgment"
demonstrating the invoked ground, the motion cannot be denied
as pro forma simply because no affidavit of merits is appended
thereto, provided there be a specification of the findings or
conclusions of the judgment alleged to be erroneous because
awarding excessive damages. The tenability of the grounds is
dependent upon different premises. The untenability of one does
not of itself, render the other unmeritorious.
A MOTION FOR RECONSIDERATION:
1. Shall point out a specifically the findings or conclusions of
the judgment or final order which are not supported by
the evidence or which are contrary to law;
2. Shall make express reference to the testimonial or
documentary evidence or to the provisions of law alleged
to be contrary to such findings or conclusions.
 Note, however, that when your MFR is denied, it does
not means that your motion is pro-forma;
 Moreover, the circumstance that the MFR deals with
the same issues and arguments posed and resolved
by the trial court in its decisions does not necessarily
mean that the motion must be characterized as
merely pro-forma. (Marikina Valley v. Flojo)
MARIKINA VALLEY VS FLOJO
In their present Petition for Review on Certiorari, petitioners aver
once more that their motion for reconsideration filed before the trial
court was sufficient in form and substance and was not pro forma.
They reiterate that their motion had effectively suspended the
running of the reglementary period, and that their notice of appeal
filed three (3) days from receipt of the order denying their motion
for reconsideration had been filed well within the remaining period
to perfect an appeal.
The rule in our jurisdiction is that a party aggrieved by a decision of
a trial court may move to set aside the decision and reconsideration
thereof may be granted when (a) the judgment had awarded
"excessive damages;" (b) there was "insufficiency of the evidence to
justify the decision;" or (c) "the decision was against the law." 2
A motion for reconsideration based on ground (b) or (c) above must
point out specifically the findings and conclusions of the judgment
which are not supported by the evidence or which are contrary to
law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such
findings and conclusions. 3
A motion for reconsideration, when sufficient in form and substance
— that is, when it satisfies the requirements of Rule 37 of the Rules of
Court — interrupts the cunning of the period to perfect an
appeal.4 A motion for reconsideration that does not comply with
those requirements will, upon the other hand, be treated as pro
forma intended merely to delay the proceedings and as such, the
motion will not stay or suspend the reglementary period. 5 The net
result will be dismissal of the appeal for having been unseasonably
filed.
The circumstance that a motion for reconsideration deals with the
same issues and arguments posed and resolved by the trial court in
its decision does not necessarily mean that the motion must be
characterized as merely pro forma.
Non-compliance: A PRO FORMA MOTION for new trial or
reconsideration shall not toll the reglementary period of appeal.
(Section 2)
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  200 | P a g e
A PRO-FORMA MOTION is one that is filed for the sake of filing;
hence, you do not really have grounds. Its effect is that it shall not
interrupt the period to appeal.
As to Motions for New Trial, they are the following:
1. A motion for New Trial not supported by the Affidavit of
Merits or one which does not comply in substance or in
form with Section 2;
2. A second motion for New Trial on a ground available to
the party when the first motion was filed (Section 5).
Q: Suppose you‘re a victim of fraud, accident, mistake and
excusable negligence and at the same time the damages awarded
were excessive. Can you file both, a motion for new trial and motion
for reconsideration?
A: In PCIB vs Ortiz, there can be a simultaneous invocation of the
motions provided in Rule 37. It can be hybridized. The tenability of
the grounds is dependent upon different premises. The untenability
of one does not of itself, render the other unmeritorious.
Q: What is the treatment of the motion when you filed a motion for
new trial on the ground of excessive damages or motion for
reconsideration on the ground of FAME?
A: The court has the liberty to treat is as the motion that it should
be. It is the substance and not the nomenclature that matters.
Section 4. Resolution of motion—A motion for new trial or
reconsideration shall be resolved within 30 days from the time
it is submitted for resolution.
ACTIONS ON THE MOTION
PERIOD: A motion for new trial or reconsideration shall be
resolved within thirty (30) days from the time it is
submitted for resolution.
Q: Why not 30 days from receipt or 30 days from date the
opposition thereto is submitted by the adverse party?
A: Because this is a motion. In other words, there is still hearing on
the motion, thus it is only after that hearing that the court will know
whether the parties will submit the same already for resolution.
Section 3. Action upon motion for new trial or reconsideration—
the trial court may set aside the judgment or final order and
grant a new trial, upon such terms as may be just, or may deny
the motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the
evidence or law, it may amend such judgment or final order
accordingly.
1. [A
AS to NEW TRIAL] The trial court may:
a. SET ASIDE the judgment or final order; and
b. GRANT a new trial, upon such terms as may be just.
c. DENY the motion.
2. [A
AS TO MFR] If the court finds that excessive damages have
been awarded or that the judgment or final order is contrary to
the evidence or law, it may AMEND such judgment or final order
accordingly. (Section 3)
Section 6. Effect of granting of motion for new trial—If a new
trial is granted in accordance with the provisions of this Rule,
the original judgment or final order shall be vacated, and the
action shall stand for trial de novo; but the recorded evidence
taken upon the former trial, in so far as the same is material
and competent to establish the issues, shall be used at the new
trial without retaking the same.

If a new trial is granted:
1. The original judgment or final order shall be
VACATED; and
2. The action shall stand for TRIAL DE NOVO.
 But the recorded evidence taken upon the former trial,
insofar as the same is material and competent to
establish the issues, shall be used at the new trial without
retaking the same.
Section 5. Second motion for new trial—A motion for new trial
shall include al grounds then available and those not so
included shall be deemed waived. A second motion for new
trial, based on the ground not existing nor available when the
first motion was made, may be filed within the time herein
provided excluding the time during which the first motion had
been pending.
No party shall be allowed a second motion for reconsideration
of a judgment or final order.
SECOND MOTIONS
RULE: They are regarded as Pro-forma motions;
EXCEPTION: When they are made in good faith.
1. [Allowed in New trial] Under Section 5, a motion for new trial
shall include all grounds then available and those not so
included shall be deemed waived.
 However, a second motion for new trial, based on a
ground neither existing nor available (this is especially
important if the second ground is NDE) when the first
motion was made, may be filed within the time herein
provided excluding the time during which the first motion
had been pending.
 A second motion for new trial is possible only when you
have as a ground FAME on the first motion and then newly
discovered evidence on the second motion.
2. [NOT allowed in motion for reconsideration] No party shall be
allowed a second motion for reconsideration of a judgment or
final order.
Section 7. Partial new trial or reconsideration—If the grounds
for a motion under this Rule appear to the court to affect the
issues as to only a part, or less than all of the matter in
controversy, or only one, or less than all, of the parties to it, the
court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or
final order upon the rest.
The order granting may be PARTIAL. [This applies to MFR as well.]
 If the grounds for a motion under this Rule appear to the
court to affect the issues as to only a part, or less than an
of the matter in controversy, or only one, or less than all,
of the parties to it, the court may order a new trial or
grant reconsideration as to such issues if severable
without interfering with the judgment or final order upon
the rest.
 In such a case, there shall be separate trials under Rule 31,
Section 2.
Section 8. Effect of order for partial new trial—When less than
all of the issues are ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the enforcement of
such judgment or final order until after the new trial.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  201 | P a g e
Section 9. Remedy against order denying a motion for new trial
or reconsideration—An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal
from the judgment or final order.
REMEDY:
 To appeal the judgment or final order and not the motions.
Q: Can you certiorari Section 9?
A: Before the answer used to be in the affirmative, however,
effective December 27, 2007, it is submitted that an order denying
an order for motion of reconsideration is no longer assailable by
certiorari because of the amendment of Rule 41 (before you cannot
appeal MFR and MFNT, but now you can).
RULE 38
PETITIONS FOR RELIEF
(BY:JST)
Section 1. Petition for relief from judgment, order, or other
proceedings—When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he
may file a petition in such court and in the same case praying
that the judgment, order or proceeding be set aside.
Section 2. Petition for relief from denial of appeal—When a
judgment or final order is rendered by any court in a case, and a
party thereto, by fraud, accident, mistake or excusable
negligence, has been prevented from taking an appeal, he may
file a petition in such court and in the same case praying that
the appeal be given due course.
Q: What is this petition for relief from judgment, orders or other
proceedings?
A: It‘s a remedy whereby a party seeks to set aside a judgment
rendered by the court whenever he was unjustly deprived of a
hearing or was prevented from taking an appeal because of fraud,
accident, mistake or excusable negligence.
This is a remedy in equity to be availed of in exceptional cases when
there is no other available or adequate remedy.
FRANCISCO VS PUNO
A party who has filed a timely motion for new trial cannot file a
petition for relief after his motion has been denied. These two
remedies are exclusive of each other. It is only in appropriate cases
where a party aggrieved by a judgment has not been able to file a
motion for new trial that a petition for relief can be filed.
This is different from appeal in terms of effect. In here, you are not
asking the court to change its decision. When petition herein is
granted, the decision will be set aside as if it was never rendered.
GROUNDS:
 When a judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the
same case praying that the judgment, order or proceeding
be set aside.
 When a judgment or final order is rendered by any court
in a case, and a party thereto, by fraud, accident, mistake
or excusable negligence, has been prevented from taking

an appeal, he may file a petition in such court and in the
same case praying that the appeal be given due course.
TAKE NOTE: In both grounds, you file in such court and in the same
case, which means that the proper court for filing a petition for relief
from judgment, final order or other proceeding is the court in the
same case. It can be filed in the MTC or RTC but not in the CA and
SC.
It must be filed ―in such court and in the same case,‖ meaning, in the
very court where the judgment was rendered. This remedy may not
be filed with the Court of Appeals. (Dela Cruz v. Andres)
Also note further that, only the parties to the proceeding where the
assailed judgment is rendered may file the petition.
A petition for relief is available not only against a judgments or final
order it is also available when any other proceeding is thereafter
taken against the petitioner in any court through FAME. Thus it was
held that a petition for relief from judgment is also applicable to a
proceeding taken after the entry of judgment of final order such as
an order for execution.
Section 3. Time for filing petition; contents and verification—A
petition provided for in either of the preceding sections of this
rule must be verified, filed within 60 days after the petitioner
learns of the judgment , final order, or other proceeding to be
set aside, and not more than 6 months after such judgment or
final order was entered, or such proceeding was taken; and
must be accompanied with affidavits showing the fraud,
accident, mistake, or excusable negligence relied upon, and
the facts constituting the petitioner’s good and substantial
cause of action or defense, as the case may be.
FORM: A petition provided for in either of the preceding cases must
be:
1. Verified;
2. Filed within sixty (60) days after the petitioner learns of
the judgment, final order, or other proceeding to be set
aside, and not more than six (6) months after such
judgment or final order was entered, or such proceeding
was taken;
 These two periods must concur
 The periods fixed are non-extendible and is never
interrupted; nor can it be subject to any condition or
contingency because it is itself devised to meet a
condition or contingency. (Smith and Bell v. Phil.
Milling Co.)
3. AFFIDAVIT OF MERITS accompanied with Affidavit of
Absolutory Cause, that is one showing the fraud, accident,
mistake, or excusable negligence relied upon, and the
facts constituting the petitioner's good and substantial
cause of action or defense, as the case may be. (Section 3)
 What if you only submitted one affidavit? Absence of
a separate affidavit is of the minimist importance
because there is a liberal policy regarding affidavits
and substantial compliance will suffice.
Section 4. Order to file an answer—If the petition is sufficient in
form and substance to justify relief, the court in which it s filed,
shall issue an order requiring the adverse parties to answer the
same within 15 days from the receipt thereof. The order shall be
served in such manner as the court may direct, together with
copies of the petition and the accompanying affidavits.
NOTE: Since you are filing it in the same case, there is no need for
new summons BUT there is a need to file an answer within 15 days.
“Be fearful of Mediocrity.”
Unity, excellence, equality
L.A. Batch Unitas Personae No. 543/FabianCPA  202 | P a g e
Section 5. Preliminary Injunction pending proceedings—The
court in which the petition is filed, may grant such preliminary
injunction as may be necessary for the preservation of the
rights of the parties, upon the filing by the petitioner of a bond
in favor of the adverse party, conditioned that if the petition is
dismissed or the petitioner fails on the trial of the case upon its
merits, he will pay the adverse party all damages and costs that
may be awarded to him by reason of the issuance of such
injunction or the other proceedings following the petition; but
such injunction shall not operate to discharge or extinguish any
lien which the adverse party may have acquired upon the
property of the petitioner.
Preliminary injunction
 Mandatory Injunction—your commanded to do
something
 Prohibitive—not allowed to do something.
Note that under Section 5, a PRELIMINARY INJUNCTION PENDING
PROCEEDINGS may be issued, thus:
The court in which the petition is filed may grant
such preliminary injunction as may be necessary
for the preservation of the rights of the parties,
upon the filing by the petitioner of a bond in favor
of the adverse party, conditioned that if the petition
is dismissed or the petitioner fails on the trial of the
case upon its merits, he will pay the adverse party
all damages and costs that may be awarded to him
by reason of the issuance of such injunction or the
other proceedings following the petition, but such
injunction shall not operate to discharge or
extinguish any lien which the adverse party may
have acquired upon, the property, of the
petitioner.
Section 6. Proceedings after answer is filed—After the filing of
the answer or the expiration of the period therefor, the court
shall hear the petition and if after such hearing, it finds that the
allegations thereof are not true, the petition shall be dismissed;
but if it finds said allegations to be true, it shall set aside the
judgment or final order or other proceeding complained of upon
such terms as may be just. Thereafter the case shall stand as if
such judgment, final order or other proceedings had never been
rendered, issued or taken. The court shall then proceed to hear
and determine the case as if a timely motion for a new trial or
reconsideration had been granted by it.
Section 7. Procedure where the denial of an appeal is set aside—
where the denial of an appeal is set aside, the lower court shall
be required to give due course to the appeal and to elevate the
record of the appealed case as if a timely and proper appeal had
been made.
HEARINGS: After the filing of the answer or the expiration of the
period therefore, the court shall hear the petition:
(a) (1st hearing) Hearing to determine whether the judgment
or order complained of should be set aside;
 This is when it finds that the allegations thereof are
not true, in which case, the petition shall be DISMISSED;
(b) (2nd hearing) But if it finds said allegations to be true, there
shall be a hearing on the merits of the principal case.
 It shall set aside the judgment or final order or other
proceeding complained of upon such terms as may
be just.
 L.A. Batch Unitas Personae No. 543/FabianCPA  203 | P a g e

Motion for new trial Petition for relief from

judgment, final order and
other proceedings RULE 40
(1) FAME Grounds FAME and that the APPEAL
(2) Newly discovered petitioner has been (BY: JST)
evidence deprived of the hearing
therein or that he has been
prevented from taking an Principles
appeal  This is the most common mode available if the motion for new
Should be filed within Time of within sixty (60) days after trial and reconsideration has been denied.
the period for appeal filing the petitioner learns of the  Q: Is it constitutional, the right to appeal?
which means that the judgment, final order, or A: NO! The right to appeal is not a constitutional right. It is not
judgment has not other proceeding to be set part of due process but a mere statutory privilege that has to be
attained finality. aside, and not more than exercised in the manner and in accordance with provisions of
six (6) months after such law. And being a mere privilege the Rules of Appeal are strictly
judgment or final order was applied in a way that compliance thereof is a must for the party
entered, or such seeking to exercise it. Furthermore, it is not a natural right.
proceeding was taken  GR: The remedy to obtain a reversal or modification of
which means that the judgment on the merits is appeal even if one of the errors of the
petion can be filed even court in rendering judgment is lack of jurisdiction over the
after the judgment has subject matter.
become final and So a party is not allowed to question the judgment on the merits
executory. and also the extraordinary remedy of certiorari under Rule 65.
Trial de Novo Effect if Trial de novo And an ordinary appeal under Rule 41 cannot be allowed since
granted one remedy will necessarily cancel out the other.
So in case of doubt as to the proper remedy—Appeal! But you
cannot appeal and at the same time go to Rule 65, it cancels the
LINA VS CA other out.
Under the Rules of Court, the remedies available to a defendant in  An appeal may be taken only from final judgment or an order
the Court of First Instance (now Regional Trial Court) are: that completely disposes of the case. And therefore, an
interlocutory order cannot be appealed until after the finality of
a) The defendant in default may, at any time after discovery thereof judgment on the merits.
and before judgment, file a motion, under oath, to set aside the  What are the orders or judgments that cannot be subject of an
order of default on the ground that his failure to answer was due to appeal: Rule 41, Section 1.
fraud, accident, mistake or excusable neglect, and that he has a
meritorious defense; (Sec. 3, Rule 18)
Section 1. Subject of appeal—An appeal may be taken from a
b) If the judgment has already been rendered when the defendant judgment or final order that completely disposes of the case, or
discovered the default, but before the same has become final and of a particular matter therein when declared by these Rules to
executory, he may file a motion for new trial under Section 1 (a) of be appealable.
Rule 37;
No appeal may be taken from:
c) If the defendant discovered the default after the judgment has (a) An order denying a petition for relief or any similar
become final and executory, he may file a petition for relief under motion seeking relief from judgment;
Section 2 of Rule 38; and NOTE: But appeal may be taken from the final judgment
itself.
d) He may also appeal from the judgment rendered against him as (b) An interlocutory order;
contrary to the evidence or to the law, even if no petition to set aside (c) An order disallowing or dismissing an appeal;
the order of default has been presented by him. (Sec. 2, Rule 41) Remedy: Rule 38
(d) An order denying a motion to set aside a judgment
e) Petition for Certiorari to declare the nullity of a judgment by by consent, confession or compromise on the
default is available if the party was improperly declared in default. ground of fraud, mistake or duress or any other
(Pasete vs Cariaga) ground vitiating consent;
Remedy: Repudiate the compromise. But in case of
Espejo: judgment by consent, you can appeal the judgment itself
 Before rendition of judgment: or annul the action under Rule 47.
 Petition to lift order of default (e) An order of execution;
 Simple Motion for reconsideration Remedy: Rule 38, because Execution is considered other
proceedings or certiorari if there is GAD.
 Certiorari
(f) A judgment or final order for or against one or more of
 After rendition of judgment but before finality
several parties or in separate claims,
 Rule 37
counterclaims, cross-claims and third-party
 Rule 40 or 41 complaints, while the main case is pending, unless
 After finality of judgment the court allows an appeal therefrom; and
 Rule 38 NOTE: One case= One appeal
 Rule 47 (g) An order dismissing an action without prejudice.
 Certorari Remedy: re-file the case.
In any of the foregoing circumstances, the aggrieved party may
file an appropriate special civil action as provided in Rule 65.

“Be fearful of Mediocrity.”

Unity, excellence, equality
 L.A. Batch Unitas Personae No. 543/FabianCPA  204 | P a g e

 Q: When you foreclose a mortgage and you want to have it

sold at a public auction to answer for the debt, you need a
writ of possession, can an order granting the issuance of a
writ of possession, is it appealable?
A: In San Fernando vs Pampanga, it is considered a final
order and therefore it is appealable.

 Q: Can a party change his theory of the case on appeal

(from prescription to payment)?
A: NO! Under Rule 44, Section 15. Questions that may be
raised on appeal—Whether or not the appellant has filed a
motion for new trial in the court below, he may include in
his assignment of errors any question of law or fact that
has been raised in the court below and which is within the
issues framed by the parties.

 Q: Can an appellate court discuss an issue that was not

discussed by the parties?
A: General rule, NO! But with a very very loose exception.
So when may error not raised on appeal be considered?
(a) When it is an error which affects the jurisdiction over the
subject matter;
(b) If it is an error that affects the validity of judgment
appealed from;
(c) If it is an error that affects the validity of the proceeding
itself;
(d) If it is an error closely related to or dependent on an
assigned error properly argued in the brief of the parties
(e) Plain and clerical error
(f) Jurisprudence: the Supreme court is clothed with act of
authority to review matters even if they are not assigned
as errors on appeal.

 Payment of appellate docket fee within the period is

mandatory for the perfection of the appeal.

“Be fearful of Mediocrity.”

Unity, excellence, equality