N. Modes of Discovery (Rules 23–29)

M. Modes of Discovery (Rules 23-29) (part 1 of 2)

> RULE 23 DEPOSITIONS PENDING ACTION Section 1. Depositions pending action, when may be taken. – Upon ex parte motion of a party, the testimony of any person, whether a party or not, may be taken 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) Section 2. Scope of examination. – Unless otherwise ordered by the court as provided by [S]ection 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) Section 3. Examination and cross-examination. – Examination and cross-examination of deponents may proceed as permitted at the trial under [S]ections 3 to 18 of Rule 132. (3) 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 the 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 or her 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 or her to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a) 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) Section 6. Objections to admissibility. – Subject to the provisions of [S]ection 29 of this Rule, objections 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) Section 7. Effect of taking depositions. – A party shall not be deemed to make a person his or her own witness for any purpose by taking his or her deposition. (7a) 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 [S]ection 4 of this Rule. (8) 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 her or by any other party. (9a) 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 [S]ection 14 hereof. (10) 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 [S]ection 14 hereof. (11) 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. (12) 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. (13) Section 14. Stipulations regarding taking of depositions. – If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. (14) 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 her or the particular class or group to which he or she belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15a) 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 the following orders:

(a) That the deposition shall not be taken; (b) That the deposition may be taken only at some designated place other than that stated in the notice; (c) That the deposition may be taken only on written interrogatories; (d) That certain matters shall not be inquired into; (e) That the deposition shall be taken only with no one present except the parties to the action and their officers or counsel; (f) That after being sealed the deposition shall be opened only by order of the court; (g) That secret processes, developments, or research need not be disclosed; or (h) That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a) 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 or her direction and in his or her 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 taking 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. (17a) 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 [S]ection 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 motion 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. (18) 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 or her, 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 given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under [S]ection 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) Section 20. Certification and filing by officer. – The officer shall certify on the deposition that the witness was duly sworn to by him or her and that the deposition is a true record of the testimony given by the witness. He or she 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. (20a) Section 21. Notice of filing. – The officer taking the deposition shall give prompt notice of its filing to all the parties. (21) 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) 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 or her and his or her counsel in so attending, including reasonable attorney’s fees. (23a) 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 or her and the witness because of such failure does not attend, and if another party attends in person or by counsel because he or she 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 or her and his or her counsel in so attending, including reasonable attorney’s fees. (24a) 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) calendar days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) calendar days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) calendar days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25a) 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 [S]ections 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 or her. (26a) 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) Section 28. Orders 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 [S]ections 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. (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 a 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 [S]ections 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) calendar 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 [S]ections 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)

M. Modes of Discovery (Rules 23-29) (part 2 of 2)

> RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Section 1. Depositions before action; petition. – A person who desires to perpetuate his or her 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) 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 or her interest therein; (c) the facts which he or she desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it; (d) the names or a description of the persons he or she 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 or she 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. (2a) 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) calendar 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) 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. (4) 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. (5) 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 subsequently brought in accordance with the provisions of [S]ections 4 and 5 of Rule 23. (6) 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 use 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 or she 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 depositions 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)

> RULE 25 INTERROGATORIES TO PARTIES Section 1. Interrogatories to parties; service thereof. – Upon ex parte motion, 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) Section 2. Answer to interrogatories. – The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) calendar days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. (2a) Section 3. Objections to interrogatories. – Objections to any interrogatories may be presented to the court within ten (10) calendar 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) Section 4. Number of interrogatories. – No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (4) Section 5. Scope and use of interrogatories. – Interrogatories may relate to any matters that can be inquired into under [S]ection 2 of Rule 23, and the answers may be used for the same purposes provided in [S]ection 4 of the same Rule. (5) 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. (6)

> 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. (1) 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) calendar 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 or she cannot truthfully either admit or deny those matters. Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his or her sworn statement as contemplated in the preceding paragraph and his or her compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. (2a) 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 or her for any other purpose nor may the same be used against him or her in any other proceeding. (3a) Section 4. Withdrawal. – The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. (4) Section 5. Effect of failure to file and serve request for admission. – Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (5)

> RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1. Motion for production or inspection; order. – Upon 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 or her possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his or her 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)

> 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 or her to submit to a physical or mental examination by a physician. (1a) 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. (2) Section 3. Report of findings. – If requested by the party examined, the party causing the examination to be made shall deliver to him or her a copy of a detailed written report of the examining physician setting out his or her 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 or her 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 or she 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 or her in respect of the same mental or physical condition. (4a)

> 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. (1) 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. (2) Section 3. Other consequences. – If any party or an officer or managing agent of a party refuses to obey an order made under [S]ection 1 of this Rule requiring him or her 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 or her 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 or her 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 the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and (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 or she may apply to the court for an order requiring the other party to pay him or her the reasonable expenses incurred in making such proof, including [reasonable] 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 or her 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 or her to pay reasonable expenses incurred by the other, including attorney’s fees. (5a) 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)

Depositions pending action; depositions before action or pending appeal

Upon ex parte motion of a party, 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.

Purpose of Rules of Discovery

The rules on discovery are intended to enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions; to obtain knowledge of material facts or admissions from the adverse party through written interrogatories; to obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admission; to inspect relevant documents or objects and lands or other property in the possession or control of the adverse party; and to determine the physical or mental condition of a party when such is in controversy. Thus, mutual discovery enables a party and thus facilitates an amicable settlement or expedites the trial of the case. All the parties are required to lay their cards on the table so that justice can be rendered on the merits of the case. (Koh v. Intermediate Appellate Court, G.R. No. 71388, 1986)

Modes of Discovery under the Rules of Court

• Depositions
• Interrogatories to Parties
• Admission by Adverse Party
• Production or Inspection of Documents or Things
• Physical and Mental Examination of Persons

Depositions in Civil vs. Criminal Proceedings

The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time or place within the Philippines; or, in a foreign country, through a method authorized by Rule 23, Section 11. In a pending civil action, a party may, upon ex parte motion, take any person's deposition upon oral examination or written interrogatories. The deposition of a person confined in prison requires leave of court (Rule 23, Sections 1, 10–11, Rules of Court, as amended by the 2019 Amendments to the Rules of Civil Procedure).

For purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would foreseeably be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure (Go v. People, G.R. No. 185527, 2012)

When DEPOSITIONS PENDING ACTION Are Taken

• Upon ex parte motion of a party, the testimony of any person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories. (Rule 23, Section 1, Rules of Civil Procedure, as amended by A.M. No. 19-10-20-SC)
• DEPOSITION OF PRISONER – only with leave of court and upon such terms as the court may prescribe.

There is no rule that limits deposition-taking only to the period of pre-trial or before it, neither against the taking after pre-trial. (Jonathan Landoil International Co., Inc. v. Mangudadatu G.R. No. 155010, 2004)

A Party Shall FILE AND SERVE Written Interrogatories

Upon ex parte motion, a party desiring to elicit material and relevant facts from an adverse party shall file and serve written interrogatories on that party. (Rule 25, Section 1, Rules of Civil Procedure, as amended by A.M. No. 19-10-20-SC)

The interrogatories shall be ANSWERED FULLY in writing and shall be signed and sworn to by the person making them. Such answer shall be filed and served to the party submitting the interrogatory within fifteen (15) days from service of such interrogatories UNLESS the court on motion and for good cause extends or shortens the time.

OBJECTIONS to the interrogatory may be presented to the court within ten (10) days after service thereof.

NO party may serve MORE THAN ONE set of interrogatories to be answered by the same party WITHOUT LEAVE OF COURT. (Riano, 2014, p. 520)

A deposition upon written interrogatories under Rule 23 is distinct from interrogatories served on an adverse party under Rule 25. (Riano, 2014, p.520)

CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR ADMISSION

The matters of which admission is requested shall be deemed admitted provided BOTH adverse party and counsel are served copy.

Under Rule 26, Section 2, a requested admission is deemed admitted unless the party to whom the request is directed timely files and serves a sworn statement specifically denying the matter or explaining why the party cannot truthfully admit or deny it.

Withdrawal of Admission

• Admissions made in this mode of discovery, whether express or implied, are NOT final and irrevocable.
• The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just.
• To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission. (Riano, p. 523)

That the Comment was not under oath is not a substantive, but merely a formal, defect which can be excused in the interest of justice conformably to the well-entrenched doctrine that all pleadings should be liberally construed as to do substantial justice. The filing of such Comment substantially complied with Rule 26. Consequently, the DBP cannot be deemed to have impliedly admitted the matters set forth in the Request for Admission for the mere reason that its Comment was not under oath. (DBP v CA, G.R. No. 153034, 2005)

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. [xxx] 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.

[xxx] Unless it serves that purpose, it is, as correctly observed by the Court of Appeals, "pointless, useless," and "a mere redundancy.” (Po v. CA, G.R. No. L-34341, 1988)

Purpose

To allow a party to seek an order from the court in which the action is pending to:

• Order any party to produce and permit the inspection and copying or photographing... of any designated document... NOT privileged, which constitute or contain evidence material to any matter.
• Order any party to permit entry upon designated land or other property in his possession or control.

This mode of discovery is not only for the benefit of a party, but also for the court and for it to discover all relevant and material facts in connection with the case before it. (Riano, p. 524, 2014)

The scope of discovery under this mode is to be liberally construed so as to provide the litigants with information essential to the fair and amicable settlement or expeditious trial of the case. While the grant of a motion for the production of a document is admittedly discretionary on the part of the trial court judge, nevertheless, it cannot be arbitrarily or unreasonably denied because to do so would bar access to relevant evidence that may be used by a party-litigant. The test to be applied by the trial judge in determining the relevancy of the documents is one of reasonableness and practicability. (Eagleridge Development Corporation v Cameron Granville 3 Asset Management Inc., G.R. No. 204700, 2013)

This remedial measure is intended to assist in the administration of justice by facilitating and expediting the preparation of cases for trial and guarding against undesirable surprise and delay; and it is designed to simplify procedure and obtain admissions of facts and evidence, thereby shortening costly and time-consuming trials. It is based on ancient principles of equity.

More specifically, the purpose of the statute is to enable a party-litigant to discover material information which, by reason of an opponent's control, would otherwise be unavailable for judicial scrutiny, and to provide a convenient and summary method of obtaining material and competent documentary evidence in the custody or under the control of an adversary.

It is a further extension of the concept of pretrial. Rule 27 of the Revised Rules of Court permits "fishing" for evidence, the only limitation being that the documents, papers, etc., sought to be produced are not privileged, that they are in the possession of the party ordered to produce them and that they are material to any matter involved in the action. However, fishing for evidence that is allowed under the rules is not without limitations. In Security Bank Corporation v. Court of Appeals, the Court enumerated the requisites in order that a party may compel the other party to produce or allow the inspection of documents or things, viz.:

• The party must file a motion for the production or inspection of documents or things, showing good cause therefor;
• Notice of the motion must be served to all other parties of the case;
• The motion must designate the documents, papers, books, accounts, letters, photographs, objects or tangible things which the party wishes to be produced and inspected;
• Such documents, etc., are not privileged;
• Such documents, etc., constitute or contain evidence material to any matter involved in the action, and
• Such documents, etc., are in the possession, custody or control of the other party.

However, Solidbank’s motion was fatally defective and must be struck down because of its failure to specify with particularity the documents it required Gateway to produce. Solidbank’s motion for production and inspection of documents called for a blanket inspection. Solidbank’s request for inspection of "all documents pertaining to, arising from, in connection with or involving the Back-end Services Agreement” was simply too broad and too generalized in scope.

A motion for production and inspection of documents should not demand a roving inspection of a promiscuous mass of documents. The inspection should be limited to those documents designated with sufficient particularity in the motion, such that the adverse party can easily identify the documents he is required to produce. (Solidbank Corporation v Gateway Electronics Corporation, G.R. No. 164805, 2008)

Filing of a Motion; Order of the Court

• The motion must be filed by the party seeking the production or inspection of documents and things, and the motion must show good cause supporting the same.
• 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.

This is essentially a mode of discovery limited to the parties to the action. This is to be differentiated from a subpoena duces tecum which is a means to compel the production of evidence, which may be directed to a person who may or may not be a party to the action. (Riano, 2014, p.525)

Right to Modes of Discovery

This is the right of the accused to move for the production of material evidence in the possession of the prosecution. Upon motion of the accused showing good cause, the court may order the prosecution to produce and permit inspection, copying, or photographing of nonprivileged material evidence within the scope of Rule 116, Section 10.

The purpose of such right is to prevent surprises to the accused and the suppression or alteration of evidence.

Such right is available even during preliminary investigation when such is necessary to protect the constitutional right to life, liberty and property of the accused. It enables the respondent to obtain evidence which he could incorporate in the counteraffidavits or to substantiate his allegations therein.

The accused’s motion for production or inspection of material evidence in the prosecution’s possession is governed by Rule 116, Section 10. Rule 119, Sections 12 and 13 govern conditional examination of witnesses. Rules 23 to 29 of the Rules of Court is not applicable.

REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY (Rule 29)

For Party or Deponent who Appears But REFUSES TO ANSWER Any Question Upon Oral Examination Or Interrogatory:

• The proponent may apply for a court order to compel an answer:
• If the motion is GRANTED– the court shall require the refusing party to answer. The court shall, after opportunity for hearing, 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, unless the opposition to the motion was substantially justified or other circumstances make an award of expenses unjust
• If the motion is DENIED - the court shall, after an opportunity for hearing, 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, unless the application was substantially justified or other circumstances make an award of expenses unjust
• If despite the court order, the party or deponent still refuses to answer, the refusal may be considered contempt of that court under Rule 29, Sec. 2. If the disobedient person is a party or an officer, director, or managing agent of a party, the court may also make such orders as are just under Rule 29, Sec. 3

Work-Product Doctrine

The doctrine that the trial preparation materials of a lawyer or his representative are protected from discovery unless the other party shows that it has a substantial need for the materials to prepare its case, and cannot, without undue hardship, obtain their substantial equivalent by other means. Trial preparation materials include written documents, such as records, notes, memorandums, and tangible things.

It is not a privilege but a special protective rule which limits discovery of an attorney’s work product. (Riguerra, p. 741)

The doctrine protects the attorney’s right to work with a certain degree of privacy in giving legal advice and in preparing for trial. If the lawyer’s trial preparation materials could be obtained by discovery, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. (Riguerra, pp. 741-742)

NOTE: While the work product doctrine is not expressly recognized in Philippine law and jurisprudence, it is submitted that it may be invoked in the Philippines pursuant to S16, R23 on motion for protective orders or to S18, R23 on motion to terminate or limit examination.

In an obiter dictum in Fortune Corp v. CA, 229 SCRA, 355, 372 (1994), the Supreme Court stated that a bare allegation of the “work product doctrine” is not sufficient to grant a motion for protective and limiting orders, thereby implying that such orders would be forthcoming if there is sufficient showing of the applicability of the doctrine. (Riguerra, pp. 746- 747).