MODES OF DISCOVERY (Rules 23-28) DISCOVERY is a device employed by a party to obtain information about relevant matters on the case

from the adverse party in the preparation for trial. Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and 26. (1) Modes of discovery: (a) Depositions pending action (Rule 23); (b) Depositions before action or pending appeal (Rule 24); (c) Interrogatories to parties (Rule 25) (d) Admission by adverse party (Rule 26); (e) Production or inspection of documents and things (Rule 27); and (f) Physical and mental examination of persons (Rule 28).

(2) The importance of the rules of discovery is that they shorten the period of litigation and speed up adjudication. The evident purpose is to enable the parties, consistent with recognized principles, to obtain the fullest possible knowledge of the facts and issues before civil trials and thus prevent said trials from being carried on in the dark. The rules of discovery serve as (a) devices, along with the pre-trial hearing under Rule 18, to narrow and clarify the basis issues between the parties; and (b) devices for ascertaining the facts relative to those issues (Republic vs. Sandiganbayan, 204 SCRA 212). (3) The basic purposes of the rules of discovery are: (a) To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions; (b) To obtain knowledge of material facts or admissions from the adverse party through written interrogatories; (c) To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions; (d) To inspect relevant documents or objects, and lands or other property in the possession and control of the adverse party; and (e) To determine the physical or mental condition of a party when such is in controversy (Koh vs. IAC, 144 SCRA 259). Depositions Pending Action (Rule 23) Depositions before action or pending appeal Meaning of Deposition (1) A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. It may be either by oral examination, or by a written interrogatory (Sec. 1, Rule 23). (2) Deposition is a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination. Depositions vs. Affidavits Depositions are different from affidavits since the latter are ex parte statements without formal interrogation and opportunity for crossexamination. Affidavits are not admissible in evidence except in cases governed by the Rule on Summary Procedure or in ordinary cases subject to cross-examination. Kinds of depositions: (a) Deposition de bene esse one taken pending action (Sec. 1, Rule 23); and (b) Deposition in perpetua rei memoriam one taken prior to the institution of an apprehended or intended action (Rule 134). (c) Uses (1) A deposition may be sought for use in a future action (Rule 24), during a pending action (Rule 23), or for use in a pending appeal (Rule 24). If the deposition is for use during a pending action, it is commonly called a deposition benne esse and is governed by Rule 23. If it is to perpetuate a testimony for use in future proceedings as when it is sought before the existence of an action, or for cases on appeal, it is called a deposition in perpetuam rei memoriam. Any or all of the deposition, so far as admissible under the rules of evidence, may be used (a) against any party who was present or represented at the taking of the deposition, or (b) against one who had due notice of the deposition (Sec. 4, Rule 23). (2) The deposition may be used for the following purposes: (a) For contradicting or impeaching the testimony of the deponent as a witness;

(b) proceeding; (c) (d)

To compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in suit /

For any purpose by the adverse party where the deponent is a party; For any purpose by any party, where the deponent is a witness if the court finds that: (1) The witness is dead; (2) The witness resides more than 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; (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 witnesses by subpoena; or (5) When exceptional circumstances exist (Sec. 4, Rule 23).

Scope of examination (1) Unless otherwise ordered by the court as provided by Sec. 16 or 18, the deponent may be examined regarding any matter not privileged, which is relevant to 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 (Sec. 2). When may Objections to Admissibility be Made (1) Subject to the provisions of Sec. 29, 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 (Sec. 6). When may taking of deposition be terminated or its scope limited (1) At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon showing that the examination is being conducted in bad faith or in such manner as reasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the RTC 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 Sec. 16, Rule 23. 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 (Sec. 18). Written interrogatories to adverse parties Consequences of refusal to answer (1) 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 attorneys 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 attorneys fees (Sec. 1, Rule 29). (2) 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 (Sec. 2, Rule 29). (3) 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 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 (Sec. 3, Rule 29). Effect of failure to serve written interrogatories (1) 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 (Sec. 6, Rule 25). This provision encourages the use of written interrogatories 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. Request for admission (Rule 26) (1) A party, although not compelled by the Rules, is advised to file and serve a written request for admission on the adverse party of those material and relevant facts at issue which are, or ought to be, within the personal knowledge of said adverse party. The party who fails to file and serve the request shall not be permitted to present evidence on such facts (Sec. 5, Rule 26). Implied admission by adverse party (1) 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 (Sec. 2, par. 1). (2) 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 sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable (Sec. 2, par. 2). Consequences of failure to answer request for admission (1) The facts or documents are deemed admitted. Under the Rules, 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 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 matter of which an admission is requested or setting forth in detail the reason why he cannot truthfully either admit or deny those matters. Effect of admission (1) 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 (Sec. 3). Effect of failure to file and serve request for admission (1) 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 (Sec. 5). Production of inspection of documents or things (Rule 27) 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 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. (2) Requirements for the production or inspection of documents or things: (a) A motion must be filed by a party showing good cause therefor; (b) The motion must sufficiently describe the document or thing sought to be produced or inspected; (c) The motion must be given to all the other parties; (d) The document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action; (e) The document or thing sought to be produced or inspected must not be privileged; and (f) The document or thing sought to be produced or inspected must be in the possession of the adverse party or, at least under his control (Sec. 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175) (1) (1) Physical and mental examination of persons (Rule 28) Requirements of physical and mental examination of persons: (a) The physical or mental condition of a party must be in controversy in the action; (b) A motion showing good cause must be filed; and (c) Notion of the motion must be given to the party to be examined and to all the other parties (Secs. 1 and 2).

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Rules governing the rights of parties on the report of the examining physician regarding the physical or mental condition of party examined: (a) The person examined shall, upon request, be entitled to a copy of the detailed written report of the examining physician setting out his findings and conclusions; (b) 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 physical or mental condition; (c) If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery; (d) If a physician fails or refuses to make such report, the court may exclude his testimony if offered at the trial; (e) The party examined who obtains a reports of the examination or takes the deposition of the examiner waives any privilege he may have in that action or any other action 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 (Sec. 4).