Rule 23 Depositions Pending Action

DEPOSITIONS DE BENE ESSE – taken for purposes of pending action

1. 1. Depositions pending action

1. 2. Scope of examination – deponent may be examined regarding any matter
not privileged relevant to the subject of the action
2. 3. Examination and cross-examination proceeds as in trials
3. 4. Depositions and Affidavits distinguished
1. Taken by leave of court after court obtains jurisdiction over any defendant or property
subject of the action
2. Taken without leave after an answer has been served
3. Upon the instance of any party
4. May be deposition upon oral examination or written interrogatories

Depositions Affidavits
Written testimony of witness in course of Mere sworn written statements
judicial proceedings, in advance of trial and
hearing

Opportunity for cross-examination No cross-examination

Can be competent testimonial evidence Little probative value (hearsay)

1. 5. Use of depositions

à Any part or all of a deposition which is admissible in evidence may be used against any
party who was present or represented during the taking of the deposition or who had
notice thereof as follows:

Deposition of May be used by

Purpose
A witness Any party To contradict or impeach the deponent’s
testimony as a witness

Any party, or anyone who at An adverse party For any purpose

the time of taking the
deposition was an officer,
director, or managing agent
of a public or private
corporation

Of any witness, whether a Any party For any purpose, IF court finds that:
party or not 1. Witness is dead;
2. b. Witness resides at a
distance more than 100 km from
place of trial, UNLESS absence
procured by party offering the
deposition
3. c. Witness is unable to
 testify because of age, sickness,
infirmity, or imprisonment;
4. d. Party offering the
deposition has been unable to
procure the attendance of the
witness by subpoena; OR
5. e. Other exceptional
circumstances make it desirable to
allow deposition to be used.

à Deponent is made the witness of the party offering the deposition.

à If only part of the deposition is introduced, adverse party may require that all of it
which is relevant to the part introduced be introduced.

6. Persons before whom depositions may be taken

a. Within the Philippines

1. Judge
2. Notary public
3. Any person authorized to administer oaths if the parties so stipulate in writing

b. In foreign countries

1. On notice, before a secretary of any embassy or legation, consul-general, consul,

vice-consul, consular agent of the Phils
1. Before such person or officer as may be appointed by commission or under
letters-rogatories
2. Any person authorized to administer oaths if the parties so stipulate.

Commission – addressed to any authority in a foreign country authorized therein to take

down depositions; the taking of such depositions is subject to the rules laid down by the
court issuing the commission

Letters Rogatory – addressed to judicial authority in the foreign country; the taking of
the depositions is subject to the rules laid down by such foreign judicial authority.

7. Persons disqualified to take depositions

1. Relative within 6th degree of consanguinity or affinity of any party

2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of party’s counsel
5. Employee of party’s counsel
6. Anyone financially interested in the action

8. Depositions upon written interrogatories

à Party desiring to take such deposition 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
and descriptive title of the officer before whom the deposition is to be taken;

à Party so served may serve cross-interrogatories upon the proponent within 10 days
thereafter

à Re-direct interrogatories served within 5 days

à Re-cross interrogatories served within 3 days

9. Effects of errors and irregularities in the depositions

1. As to notice – waived unless written objection is promptly served upon the party giving the
notice
2. As to disqualification of officer – 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
3. As to competency or relevancy of evidence – NOT waived by failure to make them before
or during the taking of the deposition, unless ground is one which might have been obviated
or removed if presented at that time
4. As to oral exam and other particulars – Errors occurring at the oral exam in the manner of
taking the deposition, in the form of questions and answers, in oath or affirmation, or in
conduct of parties, and errors of any kind which might be obviated, removed, cured if
promptly prosecuted are waived unless reasonable objection is made at the taking of the
deposition.
5. As to form of written interrogatories – waived unless served in writing upon party
propounding them within the time allowed for serving succeeding cross or other
interrogatories and within 3 days after the service of the last interrogatories authorized.
6. As to manner of preparation – errors as to 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 are waived unless a motion to suppress the deposition or
some part of it is made with reasonable promptness after such defect is, or with due
diligence might have been, ascertained.

à A deposition, in keeping with its nature as a mode of discovery, should be taken before
and not during trial. IN fact, the rules on criminal practice – particularly on the defense
of alibi – states that when a person intends to rely on such a defense, that person must
move for the taking of the deposition of his witness within the time provided for filing a
pre-trial motion.

Rule 24 Depositions Pending Action

DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes

of an anticipated action or further proceedings in a case or appeal.

1. 1. Depositions before action

A person desiring to perpetuate his own testimony or that of another person regarding
any matter that may be cognizable in any court of the Phils may file a verified petition in
the court of the place of the residence of any expected adverse party, which petition
shall be entitled in the name of the petitioner and shall show:

1. That petitioner expects to be a party to an action in a court of the Phils but is presently
unable to bring it or cause it to be brought;
2. The subject matter of the expected action and his interest therein;
3. The facts which he desires to establish by the proposed testimony and his reasons for
desiring to perpetuate it;
4. The names or description of the persons he expects will be the adverse parties and their
addresses so far as known;
5. The name and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each.
1. 2. Use of deposition

If deposition to perpetuate testimony is taken under this rule or if not so taken is still
admissible in evidence may be used in any action involving the same subject matter
subsequent brought in accordance with the provisions of Rule 23.

Rule 25 Interrogatories to Parties

1. Interrogatories and the answers thereto should be filed in court and served on adverse
parties, so that the answers may constitute judicial admissions.
2. Effect of failure to serve written interrogatories – a party not served with such may NOT
be compelled by the adverse party to give testimony in open court or deposition pending
appeal.

Rule 26 Admission by Adverse Party

1. 1. Request for admission

A written request for the admission of the other party of the genuineness of any material
or document or request for the truth of any material and relevant matter of fact set forth
in the request may be filed and served upon the other party at any time after issues have
been joined.

1. 2. Implied admission

Each of the matter requested to be admitted shall be deemed admitted within a period
designated in the request, which shall not be less than 15 days after service thereof or
within such further time as the court may allow on motion, UNLESS, party requested
serves upon the party requesting a sworn statement either specifically denying or setting
forth in detail the reasons why he cannot truthfully either admit or deny those matters.

1. 3. Effect of admission

Admission is only for the purpose of the pending action and shall NOT constitute an
admission for any other person nor may it be used against him in any other proceeding.
 1. 4. A party who fails to file and serve a request for admission on the adverse party of
material facts within the personal knowledge of the latter shall not be permitted to present
evidence thereon,

Rule 27 Production or Inspection of Documents or Things

1. Any party may move for the court in which the action is pending to order any party to:
1. Produce and permit the inspection and copying or photographing of any
designated documents, papers, books, accounts, letters, photographs, objects or tangible
things, not privileged, which:
1. Constitute or contain evidence material to any matter involved in the
action AND
2. Are in his possession, custody or control.
3. 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.
2. The order:
1. Shall specify the time, place and manner of making the inspection and taking
copies AND
2. May prescribe such terms and conditions which are just.

Rule 28 Physical and Mental Examination of Persons

1. If the mental or physical condition of a party is in controversy, the court may order him to
submit to a physical or mental examination by a physician.
2. The party examined waives any privilege he may have in that action regarding the
testimony of the person who has examined or may examine him with respect to that same
mental or physical examination by:
1. Requesting and obtaining a report of the examination so ordered OR
2. Taking the deposition of the examiner.

Rule 29 Refusal to Comply with the Modes of Discovery

1. If a party/deponent refused to answer:

1. The examination may be completed on other matters

2. The examination may be adjourned
3. The proponent may apply to the court for order to compel answer

à The court may then order:

1. The refusing party or his counsel to pay the expenses incurred in obtaining the order,
including the attorney’s fees (if it finds the refusal to answer without substantial
justification)
2. The proponent or his counsel to pay the expenses incurred in opposing the application,
including attorney’s fees (if it finds the application to be without substantial justification)

2. If a party/witness refuses to be sworn or to answer after being directed to do so by

the court, the refusal may be considered contempt of that court.
 1. If a party/officer or managing agent of a party refuses to obey an order requiring him:

a. To answer designated questions

b. To produce a thing for inspection or to permit entry upon property

1. To submit to a physical or mental examination

à the court may order:

1. That the matters regarding which the questions were asked, or the character of the land
or the thing, or the physical and mental condition of the party be taken to be established.
2. The disallowance of the disobedient party’s claims
3. The prohibition of the disobedient party to present evidence
4. The striking out of the pleadings or parts thereof
5. The dismissal of the action or parts thereof
6. Rendering judgment by default against the disobedient party OR
7. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or
mental examination.

4. If a party refuses to attend or serve answers, the court may:

1. Strike out all or any part of any pleading of that party.

2. Dismiss the action or any part thereof.
3. Enter a judgment by default against that party, OR/AND
4. Order that party to pay reasonable expenses incurred, including attorney’s fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorney’s
fees under this Rule.

Rule 30 Trial

1. 1. Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shall proceed as
follows:

1. The plaintiff shall adduce evidence in support of his complaint;

2. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim,
and third-party complaint;
3. The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim,
cross-claim, and 4th party complaint;
4. The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by
them;
5. 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;
6. 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
7. 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.
1. 2. Judge should personally receive evidence EXCEPT that in default or ex
parte hearings and in any case where the parties so 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 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 10 days from the termination of the hearing.