MODES OF DISCOVERY
deposition?
Difference between bill of particulars and modes of
discovery?
Bill of Particulars is Rule 12, when you compel the party
to clarify vague statements of ultimate facts, but it is not
an instrument to compel the other party to reveal
evidentiary facts. The Modes of Discovery are intended to
compel the other party to reveal his evidence and
evidentiary facts.
Rule 23 Deposition Pending Action
What is deposition?
Depositions is the 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.
When/how may depositions pending action be
taken?
By leave of court after jurisdiction has been
obtained over any defendant or over property
which is the subject of the action, or without
such leave after an answer has been served,
the testimony of any person, whether a party or
not, may be taken,
at the instance of any party,
by deposition upon oral examination or written
interrogatories.
The attendance of witnesses may be compelled
by the use of a subpoena as provided in Rule 21.
Depositions shall be taken only in accordance
with these Rules.
The deposition of a person confined in prison
may be taken only by leave of court on such
terms as the court prescribes.
When there is a pending action, is it necessary
that leave of court or permission should be sought
for deposition to be allowed?
It depends.
1.) If the defendant has already filed an answer and
therefore jurisdiction over the person of the defendant
has been obtained, leave of court is not required. All you
have to do is send the questions to the other party;
2.) But if there is no answer, where the court has not yet
acquired jurisdiction over the person of the defendant, it
requires a motion.
Two modes of deposition taking?
1. Deposition upon oral examination
2. Deposition upon written interrogatories
How can a person be compelled to take a
Use of depositions?
Subpoena.
--if person lives in different city, lawyer goes to that city
to take deposition. Lawyer can get subpoena from court
of that place to compel the person to go to the notary
public for the purpose of deposition.
Requirement for the issuance of subpoenas for
deposition?
Proof of service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall constitute
sufficient authorization for the issuance of subpoenas for
the persons named in said notice by the clerk of the court
of the place in which the deposition is to be taken. The
clerk shall not, however, issue a subpoena duces tecum
to any such person without an order of the court.
What are the subject matter of deposition taking?
Unless otherwise ordered by the court as provided by
section 16 or 18 of this Rule, the deponent may be
examined
1. regarding any matter, not privileged,
2. which is relevant to the subject of the pending action,
3. whether relating to the claim or defense of any other
party,
4. including the existence, description, nature, custody,
condition, and location of any books, documents, or
other tangible things and
5. the identity and location of persons having knowledge
of relevant facts.
What are the limitations or prohibitions in
deposition taking?
1.) The matter inquired into is not privileged either under
the rules on evidence or special law;
2.) The matter inquired into is relevant to the subject of
the pending action;
3.) The court may issue orders to protect the parties and
its deponents under Sections 16 or 18.
In what proceedings may a deposition be used?
1.) At the trial;
2.) Upon a hearing of a motion; or
3.) Upon a hearing of interlocutory proceeding (e.g.
issuance of a writ of preliminary injunction or
attachment)
Against whom may it be used?
1.) against any party who was present; or
2.) against a party who was represented at the taking of
the deposition; or
3.) against a party who did not appear or was not
represented but was duly notified of the scheduled
deposition taking.
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the testimony of
deponent as a witness;
---witness still required to appear in court during trial.
Deposition will not exempt witness from testifying in
court.
---a refers to a witness, but not a party
---purpose is to impeach testimony of deponent only
(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;
---b refers to a party to the case.
---broader purpose; can be used for impeachment and as
evidence.
(c) The deposition of a witness, whether or not a
party, may be used by any party for any purpose if the
court finds:
(1) that the witness is dead, or
(2) that the witness resides at a distance more
than one hundred (100) kilometers from the place of trial
or hearing, or is out of the Philippines, unless it appears
that his absence was procured by the party offering the
deposition, or
(3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment, or
(4) that the party offering the deposition has
been unable to procure the attendance of the witness by
subpoena; or
(5) upon application and notice, that such
exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used;
and
---EXCEPTION TO PARAGRAPH A
(d) If only part of a deposition is offered in evidence
by a party, the adverse party may require him to
introduce all of it which is relevant to the part introduced,
and any party may introduce any other parts. (4a, R24)
Effect on 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. (Sec 5)
Can a person object to the evidence which is being
offered during the deposition taking?
Yes. Judge will rule on the objection later during trial.
Is the person who takes part in a deposition
automatically made a witness of the party?
GENERAL RULE: By simply taking your deposition, it will
not make you as my witness. But once I o2er your
deposition in court, you are now my witness, especially if
youre are dead or when you are residing more than 100
kilometers.
EPN: 1.) When I am offering your deposition to contradict
or impeach you. So, when I am offering your deposition
to show the court that you are a liar, I am not making you
as my witness;
2.) When you o2er the deposition of your opponent
(adverse party), you are not making him your witness.
Can you rebut deposition as evidence? Yes.
At the trial or hearing any party may rebut any relevant
evidence contained in a deposition whether introduced What are letters rogatory?
by him or by any other party. A commission or letters rogatory shall be issued only
when necessary or convenient, on application and notice,
Before whom may depositions be made (locally)? and on such terms, and with such direction as are just
1. Judge and appropriate. Officers may be designated in notices or
2. Notary public commissions either by name or descriptive title and
3. Persons authorized to administer oaths, if the letters rogatory may be addressed to the appropriate
parties so stipulate in writing. judicial authority in the foreign country.
Before whom may depositions be made (foreign)? --applies to places where we have no embassy, consul or
1. On notice, before a any relations.
a. Secretary general of embassy or
litigation When is a deposition officer disqualified to take
b. Consul general deposition?
c. Consul 1. a relative within the sixth degree of consanguinity or
d. Vice consul affinity, or
e. Consular agent of the Republic of the 2. employee or counsel of any of the parties; or who is a
Ph relative within the same degree,
2. Such person or officer as may be appointed by 3. or employee of such counsel;
commission or under letters rogatory. 4. or who is financially interested in the action.
3. Person referred to in sec 14 (persons authorized
to administer oaths)