Rule 23

DEPOSITIONS PENDING ACTION

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.
PURPOSES OF TAKING DEPOSITION ARE TO:
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
defences
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 defences
thereby encouraging settlements
5. Expedite litigation
6. Safeguard against surprise
7. Prevent delay
8. Simplify and narrow issues
9. Expedite and facilitate both preparation and trial.
A deposition may be sought for use in a (a) pending action Rule23 commonly called a
deposition de benne esse, (b) a future action Rule 24, or (c) for use in a pending appeal Rule 25.
How may deposition be taken? (Rule 23 sec1)
a. By an oral examination
b. By a written interrogatory
What are the distinction between Deposition upon Written Interrogatories and Written
Interrogatories?
DEPOSITION UPON WRITTEN
INTERROGATORIES
WRITTEN INTERROGATORIES
Who may be compelled to
give a deposition or to answer
written interrogatories?
Any person, whether party to
the case or not
Only the adverse party may
require to answer the written
interrogatories served upon
him by the other party
Where it shall be taken? Taken before an officer The adverse party, without
appearing before an officer,
shall simply answer in writing
and under oath the written
interrogatories served upon
him by the party.


Deposition pending action; leave of court when required
- Leave of court is not required after an answer has been served but leave of court is
required before the service of an answer but after jurisdiction has been acquired over
any defendant or over the property subject of the action (Sec.1, Rule 23)
Reason: before filing of the answer, the issues are not yet joined and the disputed facts are not
clear.
Deposition of a Prisoner
- When it is the deposition of a prisoner that to be taken, his deposition may be taken
only with leave of court and upon such terms as the court may prescribe (Sec. 1, Rule
23)
Before whom taken
1. Within the Philippines, a deposition need not be taken before a judge, although it may
be taken before one. It may be also be taken before a notary public (Sec. 10, Rule 23) or
before any person authorized to administer oaths if the parties so stipulate in writing
(See. 14, Rule 23)
2. Outside the Philippines, a deposition may be taken before (a) 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); (b) such person or officer as may be appointed by
commission or letters rogatory; or (c) a person authorized to administer oaths by
written stipulation of the parties (Sec. 14, Rule 23)
3. No deposition shall be taken before a person who is a relative within 6
th
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 (Sec.13, Rule 23)



Examination of the deponent
1. A party desiring to take a deposition of any person upon oral examination shall give
reasonable notice in writing to every party to the action stating the time and place for
taking the deposition and the name and address of each person to be examined (Sec.15,
Rule 23)

After the notice is served, the court may make any order for the protection of the
parties and the deponents (Sec.16, Rule23)

2. The attendance of witnesses may be compelled by the use of subpoenas (Sec. 1, Rule
23)
3. The deponent may be examined or cross examined following the procedure for
witnesses in a trial. He may ask questions on direct, cross re-direct or re-cross. He has
the same rights as a witness and may be impeached like a court witness because Secs. 3
to 18 of Rule 128 apply to a deponent (Sec. 3, Rule 23)
4. Unless otherwise ordered by the court, 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 party. (Sec.2, Rule 23)
5. The officer before whom the deposition is taken has no authority to rule on the
objections interposed during the course of the deposition although any objections shall
be noted by the officer upon the deposition. Any evidence that is objected to shall still
be taken but subject to the objection (Sec.17, Rule 23)
Use of depositions pending action
a. Against whom may a deposition be used?
Any part or all of the deposition, so far as admissible under 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. The deposition or any of its parts may be
used at the trial or upon the hearing of a motion or an interlocutory proceeding (Sec. 4, Rule
23)
b. The deposition may be used for the following purposes:
1. For contradicting or impeaching the testimony of the deponent as a witness
2. For any purpose by the adverse party where the deponent is a party or at the time of
the deposition was an officer, director, or managing agent of a public or private
corporation, partnership or association which is a party
3. For any purpose by any party, where the deponent is a witness, whether or not a party,
if the court finds that:
i. Witness is dead
ii. That the witness resides more than 100 kilometers from the place of trial and
hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition
iii. That the witness is unable to attend or testify, because of age, sickness, infirmity,
or imprisonment
iv. That the party offering the deposition has unable to procure the attendance of
witnesses by subpoena
v. When exceptional circumstances exists, upon application and notice.
Effect of substitution of parties
The substitution of parties does not affect the right to use the deposition previously taken (Sec.
5, Rule 23). The same rule also provides that when an action has been dismissed and another
action involving the same subject and between the same parties or their representatives or
successors in interest, is afterwards brought, all the depositions lawfully taken and duly filed in
the former action may be used in the latter as if originally taken.
Effect of taking of deposition of a person
A person whose deposition is taken by a party does not, by reason of such deposition, make
such person the witness of said party. Sec. 7 of Rule 23 clearly declares that a party shall not be
deemed to make a person his own witness for any purpose by taking his deposition.
Effect of using the deposition of a person
While the taking of the deposition of a person does not make the person a witness of the party
taking his deposition, the introduction of the deposition or any part thereof makes the
deponent the witness of the party introducing the deposition if used for a purpose other than
that of contradicting or impeaching the deponent (Sec.8, Rule 23). The same provision,
however, does not make this rule applicable to the use by an adverse party of a deposition
mentioned in paragraph (b) of Sec. 4 of Rule 23




ORAL DEPOSITION
1. A party desiring to take a deposition of any person upon oral examination shall give to
every party to the action a reasonable notice in writing. Such notice is required to
contain the following:
a. The time and place for taking the deposition and
b. The name and address of each person to be examined, if known, if not known, there
must be a general description sufficient to identify him or the particular class or
group to which he belongs (Sec.15, Rule 23)
2. Certain guidelines for oral depositions provided for under Sec.17 of Rule 23 must be
observed. These are:
a. The officer before whom the deposition is taken shall put the witness on oath
b. The testimony of the witness or deponent must be recorded and shall be taken
stenographically unless the party agree otherwise
c. All objections made at the time of the examination shall be noted
d. Evidence objected to shall be taken but subject to the objections.
3. 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 (Sec 17, Rule 23)
4. When the testimony is fully transcribed, the deponent shall be submitted to the witness
for examination and shall be read to or by him, unless such examination is waived by the
witness and by the parties. The witness may desire some changes in form and
substance, in which case such changes shall be entered upon the deposition by the
officer with a statement of the reasons of the witness for making such changes. The
deposition shall signed by the witness unless the signing is waived by the parties by
stipulation or the deposition cannot be signed because the witness is ill, cannot be
found or if he refuses to sign (Sec.19, Rule 23)
5. If the deposition is not signed by the witness, the officer shall sign it and state on the
record the attendant facts together with the reason given for the non-signing of the
deposition. This having been done, the deposition may be used as fully as though it was
signed unless on a motion to supress under Sec.29(f), Rule 23 and the court holds that
the reasons given for the refusal to sign require rejecting the deposition in whole or in
part (Sec. 19, Rule 23)
6. The officer is required to 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 Deposition of (name of witness). He shall likewise promptly file it with the court
in which the action is pending or send it by registered mail to the clerk thereof for filling
(Sec.20, Rule 23). All parties shall promptly be notified of its filling by the officer taking
the deposition (Sec. 21, Rule 23) and upon payment of reasonable charges, the officer
shall furnish a copy of the deposition to any party or to the deponent (Sec 22, Rule 23)
Deposition upon written interrogatories
1. A deposition need not be conducted through an oral examination. It may be conducted
through written interrogatories (Sec. 1, Rule 23)
2. A part desiring to take the deposition of any person upon written interrogatories shall
serve he interrogatories upon every other parties with a notice stating the name and
address of the person who is to answer them, the name and descriptive title and
address of the officer before whom the deposition is to be taken (Sec.25, Rule 23)
3. The party served with the interrogatories may also serve cross-interrogatories upon the
party proposing to take the deposition within 10 days from service of the written
interrogatories. The latter may within 5 days, serve re-direct interrogatories. Within
3days after being served with re-direct interrogatories, a party may serve re-cross
interrogatories upon the party proposing to take the deposition. (Sec.25, Rule23)
4. 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. He shall proceed
promptly 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 (Sec. 26, Rule 23)
May a deposition be used as evidence?
If the deposition is that of a party, the opposing party can use it as evidence like proving his
claim (if he is the plaintiff) or his defense (if he is the defendant). It may also be used for
impeaching or contradicting the party-deponent if he testifies. In other words, the deposition of
a party can be used by the opposing party for any purpose.
If the deponent is only a witness but not a party, his deposition cannot be used as evidence.
The deposition of a witness who is not a party can be used only for impeaching or contradicting
testimony.
Thus, the deposition of a deponent who is not a party but who is available to testify, offered
during a trial to prove the facts therein set out, in lieu of the actual oral testimony of the
deponent in open court, may be opposed and excluded on the ground that it is hearsay.