Date: November 25, 1997

1997 Rules on Civil Procedure

2001 Edition Rule 23

Depositions Pending Action

Rule 23

DEPOSITIONS PENDING ACTION

We are now in Modes of Discovery. This is one of the hardest portions of Civil Procedure. I have to admit even some lawyers and judges have a difficult time in comprehending Modes of Discovery.

A civil case is not a case of technicalities. The rules do not want surprises in civil cases. You lay your cards on the table. You do not keep your opponent searching in the dark and that principle is manifested in so many rules.

Example, when a defendant resorts to a specific denial, he is obliged not only to deny the allegations in the complaint but also the facts that is denied. It is not fair to state that my version is false, without stating your version. And if you do not make specific denial, there is a general denial, an implied admission.

You cannot also deliberately confuse the defendant by making ambiguous ultimate facts in the complaint to confuse him. He has the right to clarify the allegation by motion for bill of particulars.

There is also the rule that objections or defenses not pleaded in the motion to dismiss or in an answer are generally waived. So, if you do not invoke the defense because you want to surprise the plaintiff, you will be the one who will be surprised because the courts will not allow you. There is no such thing as surprise defense because under Rule 9, defenses not raised are deemed waived. These provisions of the rules indicate the principle: LAY YOUR CARDS ON THE TABLE.

BUT there is still an element of surprise whether you like it or not because Im obliged to state my cause of action or defense but Im not obliged to state the facts supporting that defense because the rules even say, evidentiary matters should not be alleged in the pleading but is only proved in the trial.

So, if I say I am in possession of a particular property for 30 years, you know very well what I intend to prove but you do not know how I will prove it the kind of evidence I will present you know the factum probandum but you do but you do not know the factum probans. You do not know what documents I will present in court because I am not obliged to plead document which is not actionable one. You do not know who are my witnesses, you do not know they will testify.

A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that sense there is still an element of surprise you do not know my evidence until the trial or pretrial.

Q: But if you want to avoid any surprise, is there a way of knowing then?

A: YES. The correct remedy is to apply the modes of discovery. While the modes of discovery is not so popular among the Filipino lawyers, in America these modes of discovery are popular among lawyers because if they see that the evidence is strong, they settle the case even before trial. Modes of discovery are not only allowed but their use is encouraged.

BAR QUESTION: How do you distinguished Bill of Particulars from Modes of Discovery?

A: 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.

There are actually five (5) Modes of Discovery:

1. DEPOSITIONS (a) pending action (Rule 23) and (b) before action or pending appeal (Rule 24);

2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);

3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);

4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27); and

5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)

These are devises in the Rules of Court which are intended to compel the other party to reveal his evidences before the trial. You cannot compel a party to reveal his evidence by a Bill of Particulars because Bill of Particulars is only intended to clarify vague statements of ultimate facts but evidentiary facts cannot be compelled so the remedy are Modes of Discovery.

This is another neglected area of the Rules of Civil Procedure where lawyers do not seem to know how to use the Modes of Discovery, just like the pre-trial, ba. So, long before the trial, I can compel your witnesses to reveal their testimony under oath through Modes of Discovery. So that during the trial, I would not be surprised anymore because meron na akong copy of your testimony which is also under oath. And if you have some documents to present which you are hiding because they are not actionable, puwede man kitang pilitin ba, by applying Rule 27. So with this, there are no more surprises.

First Mode: Rule 23: DEPOSITION PENDING ACTION

This mode is the most popular among the five. Deposition has two (2) types deposition pending action (Rule 23) and depositions before action or pending appeal (Rule 24). But actually Rule 24 is not new because that is Rule 134 (Perpetuation of Testimony).

But before we discuss Rule 23, I will give you a general idea about what Rule 23 is all about.

EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B. Now, of course, if A and B will testify, how will they testify, that I do not know. But I want to know exactly what they will say during the trial, including you.

Q: How do I apply Rule 23?

A: I will take your deposition. Meaning, I will take your testimony in advance by compelling you to appear before someone whom we call a Deposition Officer the judge, or any judge, or even a notary public - who can administer oath. And then before him, I will be asking now questions and you have to answer under oath. Your answers will then be recorded including that of your witnesses.

Therefore, during the trial, when you or your witnesses will testify, there is no more surprise testimony that you can give me because I already heard you in advance. You cannot contradict your answer. This is what you call deposition taking.

Now, if I can do that to you, you can also do that to me. The defendant can also use that against the plaintiff.

Q: How do you define deposition?

A: DEPOSITION 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. (16 Am. Jur. 699)

When I take the deposition of somebody, my opponent has the right to cross-examine the same witness. So practically, its a dress rehearsal for the trial when I ask questions, my opponent can ask questions also. The questioning of the witnesses is done the way it is done during the trial. The witness of the opponent has to undergo the same procedure in the rules of evidence. That is Section 3:

Sec. 3. Examination and cross-examination. Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24)

Q: Distinguish a deposition from an affidavit.

A: Affidavit is also a sworn statement of a witness but the statement is taken exparte (no crossexamination). But in deposition there is crossexamination, there is a confrontation as if he is already testifying in court.

Section 1. Depositions pending action, when may 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. (1a, R24)

Deposition-taking under Section 1 presupposes that there is a pending civil case kaya nga, the title is depositions pending action. There is an existing civil case and I would like to take the deposition of certain people.

Q: When there is a pending action, is it necessary that leave of court or permission should be sought for deposition to be allowed?

A: The rule is, it DEPENDS if there is already an answer or no answer:

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.

Another instance where leave of court is required under Section 1 is when what is to be taken is a deposition of a person confined in prison.

Q: Whose deposition can you take?

A: The law says, you can take the testimony of any person whether a party or not at the instance of any party.

EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his witnesses? Yes, including Mr. As deposition. I can also take the deposition of my own witnesses, even my own deposition. At least, before I die, nakuha na yung testimony ko. So I can take the deposition of anybody in the world. Thats why the law says, the testimony of any person whether a party or not may be taken at the instance of any party. And of course, Mr. A can also do what I was allowed to do.

Q: When you take deposition of this person, what do you call him?

A: The accurate term is that, he is called DEPONENT. Some people call him witness.

Q: What are the modes of deposition taking?

A: Under the law, there are two (2) recognized modes:

1.) Deposition upon oral examination; and

2.) Deposition upon written interrogatories

The deposition upon oral examination is more popular because it is just like how you question a witness in court: Questions and answers, then it is recorded. And then later on, the other counsel would ask his questions and answer. Deposition upon written interrogatories should not be confused with Rule 25 because the former is governed by Rule 23. Although they use the same words.

Now, as we shall see, there must be a deposition officer and under the law, even a notary public is qualified to act as deposition officer because he can administer oaths.

Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections 12,13 and 15.

Q: Suppose I would like to take the deposition of Ms. A before a notary public whose office is located along San Pedro Street. How can I force Ms. A to go to the office of that notary public? Can I force her?

A: If Ms. A is in court, the court can force you by subpoena. But I can also compel Ms. A to attend this questioning for the purpose of deposition. Section 1 says, the attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21.

Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. (1a, R23)

PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your witness to come here in Davao to help you and you are even willing to shoulder her transportation, but she refuses.

Q: Can you ask the court in Davao to issue a subpoena compelling such witness to come here and testify even if the distance is more than 100 kilometers?

A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a deposition officer and take her deposition.

Q: How can I compel her to go to the office of the notary public in Cebu for the purpose of the deposition?

A: You can get a subpoena from the Cebu court and that is allowed under Rule 21, Section 2 [b] and under Rule 21, Section 5:

Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:

x x x x x

b) the court of the place where the deposition is to be taken;

x x x x x

Sec. 5. Subpoena for depositions. 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. (5a, R23)

In other words, I will send the notice to my opponent, I am going to take the deposition of my witness in Cebu. And based on that notice, I will go to Cebu and ask the clerk of court of the RTC of Cebu to issue a subpoena based on the notice to take deposition on the Davao case. And under the Rules, the Cebu RTC has to issue a subpoena even if the case is not pending in that (Cebu) court because this is only deposition. Kaya nga under Rule 21, Section 2 [b], a subpoena may be issued by the court of the place where the deposition is to be taken.

There was an instance before, a Manila lawyer who wanted to take the deposition of somebody in Davao. Then he applied for a subpoena to require the deponent to appear before a notary public here. At least, tama siya doon. Ang mistake niya, he applied for a subpoena in the Manila court where the case is pending and the judge there, maybe he did not read Rule 21, issued a subpoena addressed to the person in Davao to appear before the notary public in Davao and the witness did not appear. So the lawyer realized na mali siya. So he had to do it all over again in Davao, not in Manila. The subpoena has no more effect beyond 100 kilometers. It should be filed not where the case is pending but at the court of the place where the deposition is to be taken. In other words, the error was corrected, but can you imagine the waste of time and effort.

Generally, depositions are taken at the start of the case before the trial. But in the case of

DASMARIAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]

ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can you still resort to deposition under Rule 23 when the trial is already ongoing or it is only at the pretrial?

HELD: Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court to perpetuate their testimony for use in the event of further proceedings in the said court and EVEN during the process of execution of a final and executory judgment.

Meaning, deposition taking is even allowed as part of the execution where the trial is already terminated. This is called with another name in Rule 39 on execution, satisfaction or effects of judgments. (c.f. Rule 39, Sections 36, 37 and 38)

What can be the subject matter of deposition taking? Section 2:

Sec. 2. Scope of examination. Unless otherwise ordered by the court as provided by section 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, R24)

Q: When you take the deposition of a deponent what can you ask? What matters may be inquired into?

A: The law says, the deponent may be examined regarding any matter whether related to the claim or defense of any other party.

Example: Suppose if there is a case between me and somebody and I suspect Pedro knows something about the facts but I am not sure, so I will take his deposition. I will start asking questions to Pedro wherein practically Im groping in the dark. I just start asking questions left and right hoping that, I may stumble into something about the case.

Q: Is that allowed? Pataka lang ba ang style of asking questions.

A: YES, it is allowed. Precisely, the mode of discovery is a fishing expedition in the hope that you will discover something in the course of a questioning. If I already know a fact, there is nothing to discover. It is very broad that I may discover something in the course of questioning. You can ask the deponent any matter related to the claim or defense but there are limitations.

LIMITATIONS IN DEPOSITION TAKING

Q: What are the limitations or prohibitions in deposition taking?

A: The following are the limitations 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.

FIRST LIMITATION: That the matter inquired into is not privileged.

There are things which you cannot compel a person to reveal in court. EXAMPLE: You cannot compel the wife to reveal in court what her husband told her in confidence during their marriage. That is known as the marital privileged communication rule (Rule 130, Section 24 [a]).

Other privileged communications: Lawyer-Client communication rule (Rule 130, Section 24 [b]); Physician-Patient communication rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule (Rule 130, Section 24 [d]). Or, business trade secrets such as the formula of your product.So, if you cannot ask that in a trial, you cannot also ask that in a deposition taking.SECOND LIMITATION: The matter inquired into is relevant to the pending action.

While deposition taking authorizes a fishing expedition, you are not allowed however, to go beyond the topic. EXAMPLE: You will ask the witness about an incident which happened and she was supposed to be there. Where were you on this date? I was there. Who was with you? I was with my boyfriend. When did he become your boyfriend? or How often do you date each other? or Whats his favorite color? Malaki ba ang tiyan niya? My golly! Those questions are irrelevant. Anong pakialam niyan sa topic? Walang connection ba!

THIRD LIMITATION: The court may issue orders to protect the parties and

its deponents under Sections 14 or 18 of this Rule.

While it is true that leave of court is not necessary anymore, you have to remember that it is related to a pending case and the court has control over the case. That is why, while leave of court is not necessary, any party who is aggrieved can go to court and complain. And the court is authorized to issue orders to protect the parties and its deponents under Sections 16 or 18 of this Rule.

Q: In what proceedings can a deposition be used?

A: It can be used later during the trial of the case, or in supporting or opposing the motion. A good example is the remedy of summary judgment under Rule 35. Under this Rule, a party can file a motion for summary judgment to demonstrate that the party has no cause of action. In that sense, I will support my motions with affidavit, depositions or documents.

USE OF DEPOSITIONS

Sec. 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:

x x x x x

Q: In what proceedings may a deposition be used?

A: The following:

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)Q: Against whom may a deposition be used?

A: Against the following:

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 represented but was duly notified of the scheduled deposition taking.

So, the procedure for deposition taking is first, to notify the other party of the date, place and time of the deposition taking of a person. The other party is free to go there and participate. So if person appeared and participated, he is bound by the deposition. If he fails to appear but sent a representative, the same effect the person is bound. Suppose a person received the notice and never bothered to go or participate, he is still bound because the law says, for as long as you are notified, you are bound.

So whether you will come or not, you are bound by the deposition taking. In this case, you might as well show up.

This is one area of procedure in which clients do not understand. Sometimes you will received a notice from the opposing counsel that he is going to take the deposition of your client and witnesses. The client usually will oppose because they thought that the only time you are going to tell the story is in court and not in the office of Atty. Hong Hunk. The lawyer has a hard time explaining deposition taking to the client because the laymen usually does not know this. They do not know that the other party could compel you under the law.

The process of deposition is so hard to explain to the laymen. He does not understand why the witnesses can be compelled to testify long before the trial, not inside the courtroom but in somebodys place and everything is recorded and under oath. The tendency is, samok kaayo ang imong client. Tell him, Do not ask questions anymore, just believe me.(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness;

EXAMPLE: I will take the deposition of Mr. Malaki as a possible witness. After listening to his testimony, his testimony is in my favor. I tell the court during trial that my next witness is Mr. Malaki but since he is busy and his deposition is taken beforehand, I will no longer present him but instead I will present as evidence his deposition to take the place of his oral testimony in court.

Q: Is that allowed? Can a deposition substitute for his oral testimony?

A: NO, a deposition can only be used for the purpose of contradicting or impeaching the testimony of deponent as a witness. It does not exempt the witness from testifying in court. It is only a means of knowing what the witness will testify.

When you take the deposition of a witness, you are already assured that this will be his story. If I asked you the same question in court, naturally he will have the same answer. So there are no more surprises. If I am asking a question identical to my deposition, I expect the answer to be identical during the trial.

Q: Suppose the witness during the trial will reverse his testimony. His testimony in the deposition is favorable to me but during the trial, pabor naman sa kalaban.

A: I can now use his deposition to destroy him. I will impeach him by showing that the witness is not reliable. To IMPEACH the testimony of a witness is to destroy his credibility. I will offer in evidence the deposition for impeachment purposes. This is known as PRIOR INCONSISTENT STATEMENT under the rules on evidence. They cannot change story during the trial because I can impeach them.

Therefore, a deposition is not a substitute for the testimony of the witness in court. You still have to present him in court. He has to testify all over again but at least you already have a guideline. So, if he deviates from the deposition, you can impeach him using the deposition taken under oath earlier.

(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;

Q: What is the difference between paragraphs [a] and [b]?

A: The following:

1.) In paragraph [a], it is the deposition of a WITNESS and not a party, whileIn paragraph [b], it is the deposition of the PARTY himself.

2.) In paragraph [a], the deposition of witness can be used only for contradicting or impeaching the testimony of deponent as a witness, while

In paragraph [b], the deposition of a party can be used for any purpose. So it is broader than the first.

ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party) and I have already a record of his testimony. During the trial if he testifies contrary to the deposition, I could use it to impeach him. But suppose the deposition is in my favor, I could present the deposition as an admission in my favor. I could use it as evidence against my opponent. Therefore, I can use it as evidence or I can use it as a tool to impeach or contradict the other party.

In other words, the deposition of a mere WITNESS is for strict purpose (for impeachment only) and the deposition of an ADVERSE PARTY is for any purposes because I can use it to impeach or I can use it as evidence. And if a witness say something in my favor, I cannot use it as evidence. I have to ask the witness to repeat his statement in court. But if it is a party, I can use it as evidence already under the rule on admission of evidence that the act or declaration of a PARTY maybe used as evidence against him (Rule 130, Section 26). So, that is the difference between deposition of a party and a witness.

Q: Suppose the adverse party is a corporation

A: Under paragraph [b], you can take the deposition of any of its officers, directors, or managing agent of the corporation.(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

Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a deposition of a witness for contradicting or impeaching his testimony. It is only in paragraph [b] which applies the use of deposition for any purpose but it refers to the deposition of the adverse party.

Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose.

DEATH

Q: I will take the deposition of Juan who is my witness. During the trial, my next witness is Juan. Do I have to present Juan or only his testimony in the deposition as evidence?

A: I have to present my witness Juan because under paragraph [a], the deposition is only good for impeachment purposes but not a replacement for his oral testimony.

Q: Suppose, when Im about to present Juan during the trial, a day before that he died. So, I have no more witness. Can I now present his testimony in the deposition as evidence?

A: YES. Under the law, his deposition will take the place of his oral testimony because he is dead. However, if he is alive, apply paragraph [a] you cannot substitute his deposition to his oral testimony.

Now, it is true that when you take the deposition of your own witness, you are supplying the other party a means to impeach the testimony of your witness. But if you look at paragraph [c], it is also important to take the deposition of your witnesses. The purpose is just in case your witness will die before he can testify in court. At least, kung nakuha mo na ang deposition niya earlier, masuwerte ka.THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE HUNDRED (100) KILOMETERS FROM THE PLACE OF TRIAL OR HEARING, OR IS OUT OF THE PHILIPPINESEXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel him to come to Davao and testify in a case because of the 100-kilometer rule. The remedy is to go to Cebu and take his deposition there. When the case in Davao is called, I will tell the court that my next witness is from Cebu and the distance from Davao is more than 100 kilometers. So I have no choice but to take his deposition there. In this case, I can offer as evidence his deposition to take the place of his oral testimony. And that is allowed as exception to paragraph [a].

And if your witness is leaving for abroad, you might as well take the deposition before it is too late, or you might end up without any witness. That is the advantage of paragraph [c].

WITNESS NOT FOUND

So, if I am unable to procure the attendance of my witness by subpoena means that the witness can no longer be found. His whereabouts is already unknown but I was able to take his deposition earlier.

(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.

ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part is in my favor but when he was cross-examined by the other party, he clarified his answers and turned out that his original answers were not really in my favor.

So there are two parts of the deposition: PART ONE, in the general questions, the answers seem to be in my favor; PART TWO, when the questions are specific, it turned out that it was not in my favor. So if I am the lawyer what I will offer is the part one as my evidence because it is in favor of my client. The other party will present the other part.

In evidence, the party is not obliged to offer in evidence documents which are against his cause. It is now the job of the other lawyer to offer the other part thereof (c.f. Section 17, Rule 132). So if this is so, the picture created will only be half of the whole picture.

Q: Is this unethical as it is suppressing the truth?

A: No, I am not suppressing the truth. Lawyers are not allowed to lie. Nowhere in the Legal Ethics is it being espoused that lawyers are told to lie. In fact, a lawyer must be honest and true for the administration of justice. It is the lawyer of the other side who has the absolute right to complete the picture by offering the other half. I am not under obligation to help the other side. A lawyer is no obligation to present everything. He is only under the obligation to support the interest of my client. What is unethical is when you present something against the interest of your client. Yaaann!

Q: Is it not twisting the truth?

A: NO. Twisting the truth is changing the facts. I am not changing the facts of the story. I am only presenting one side of the story. But definitely the other party is not precluded from testifying to present the other half of the story. If the other party fails to present the other half of the story, that is their problem. Do not blame me. [hmp!]Sec. 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, R24)

Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and there was substitution. Is there a need of taking depositions again? Will the deposition already taken be also applicable to the same case although the parties are now different?

A: YES. The substitution of parties does not affect the right to use depositions previously taken.

Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without prejudice. Jolina re-filed the case. Is it necessary for depositions to be taken all over again?

A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no need of repeating the whole process.

Sec. 6. Objections to admissibility. Subject to the provisions of section 29 of this Rule, 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. (6, R24)

Q: Can you object to the evidence which is being offered during the deposition taking?

A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will rule on the objection later during the trial.

Sec. 7. Effect of taking depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (7, R24)

We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows nothing, then he is useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa appendix ng tao!] You are not my witness.

If after taking your deposition, it turns out that everything you say is against me, am I bound by your testimony? NO. In fact, it is the other party who will use you as his witness. But definitely, you are not my witness.

Sec. 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 section 4 of this Rule. (8, R24)

GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer your deposition in court, you are now my witness, especially if your are dead or when you are residing more than 100 kilometers.

EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness.

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 offer the deposition of your opponent (adverse party), you are not making him your witness. That is obvious. Napaka-istupido mo naman! Take note that anything that your opponent says in the deposition in favor of you will bind you. But if it is not in your favor, it will not bind you precisely because he is not your witness he is not expected to say something in your favor.

Sec. 9. Rebutting deposition. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. (9, R24)

It is just like a witness in court. If a witness says something in court, you can always prove that that is not true. If it is a deposition, the same thing you can always rebut the truth of what he said in his deposition.BEFORE WHOM DEPOSITIONS ARE TAKEN

If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer? Section 10:

Sec. 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 section 14 hereof. (10a, R24)

Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are taken?

A: The following:

1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a judge in Manila to be the deposition officer and he will not be the one to decide. He is only the deposition officer;

2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all lawyers are notary public. To be a notary public, you have to apply for commission in the court of the place where you are practicing. If you are a notary public for Davao City, you cannot be a notary public in any other place. And usually, a commission for notary public is only good for 2 years. After 2 years, you have to re-apply.3.) PERSON REFERRED TO IN SECTION 14:Sec. 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. (24a, R24)

So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary public. It can be other person who is authorized to administer oath such as prosecutors, clerk of court who is a lawyer, labor arbiters, etc. Anyway, they are also authorized to administer oaths.If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11:

Sec. 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 section 14 hereof. (11a, R24)

The amendment here again is the persons referred to under Section 14.

So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer, as well as the consul general, vice-consul, although on a SC circular, if the judge will authorize the taking of deposition abroad, because this time leave of court is required, you course it to the Department of Foreign Affairs. The parties are not supposed to communicate directly to the Philippine Embassy.

Q: How about in places where we do not have embassy?

A: Those with country where we do not have diplomatic relations, you have to avail of [b]. So in this case, the person who is authorize to take the deposition may be the one who is authorized by commission, or if not by commission, by letters rogatory.

What do you mean by commission or a letters rogatory? Section 12:

Sec. 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. (12a, R24)

By COMMISSION, somebody other than Philippine consul like in Taiwan, we have Philippine Trade Department in Taiwan because of our trade relations. The court will issue a commission to the head of the trade mission there to act as deposition officer. Or any other person appointed by the judge by court order.

So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we have no consulate but I know of a Filipino lawyer who resides there. I will request the court that this Filipino lawyer abroad be authorized to take the deposition of a person there. If the court agrees, it will issue what is known as a commission.But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country.

Q: Define letters rogatory.

A: LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the case and the name of the foreign witnesses, and is requested to cause their depositions to be taken in due course of law, for the furtherance of justice, with an offer on the party of the court making the request, to do the like for the other, in a similar case. (Ballentines Law Dict., 2nd Ed., p. 744)

EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in court for the court to issue a letters rogatory. The judge will make a formal communication to the court in Pyongyang to please take Ws deposition with the following request: to mail back the answer and offer to return the favor. If the request is ignored, there is nothing that we can do. But normally, they comply.

So, letters rogatory is a request to the appropriate foreign judicial authority to take the deposition of a witness who is in their jurisdiction and please send us a copy and we assure you in the future, if you have the same problem, we will reciprocate.

That is international law. Deposition can be understand by the officer in other country because it is internationally known. If the officer in the foreign country will not do it, we have no choice because it is only a request. (kung ayaw mo, huwag mo!)

The SC defined again commission and letters rogatory and distinguished one from the other in the case of

DASMARIAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]

ISSUE #1: Distinguish a commission from letters rogatory.

HELD: A COMMISSION may be defined as an instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal.

LETTERS ROGATORY, on the other hand, may be defined as an instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed.

A COMMISSION is addressed to officers designated either by name or descriptive title, while LETTERS ROGATORY are addressed to some appropriate judicial authority in the foreign state.

Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied for and issued only after a commission has been returned unexecuted as is apparent from Form 21 of the Judicial Standard Forms appended to the (1964) Rules of Court. So as a matter of practice, the court should first resort to commission. You must allege that the commission has been returned unexecuted before resorting to letters rogatory.

ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that the deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in view of its one-China policy. Can a deposition be taken in Taiwan where the Philippines has no diplomatic relations because of the one-Chine policy?

HELD: YES. What matters is that the deposition is taken before a Philippine official acting by authority of the Philippine Department of Foreign Affairs and in virtue of a commission duly issued by the Philippine Court.

Sec. 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. (13a, R24)

You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You get somebody who is not related.Sec. 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 the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15, R24)

There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon written interrogatories. The latter is governed by Section 15 which is the most popular: Question-answer and everything is recorded.Take note that before deposition is taken, there should be notice to the adverse party. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined.The last sentence, On motion of any party upon whom the noticed is served, the court may for cause shown enlarge or shorten the time. Suppose you will send me a notice that you are going to take the deposition of a witness from February 1 to 20 morning and afternoon. Twenty days is too much. I can go to court and complain. That should be reduced. The court may come in and enlarge or shorten the time. The court may also do this even if leave of court is not required.Sec. 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 an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a, R24)

While it is true that leave of court is not necessary anymore, you have to remember that it is related to a pending case and the court has control over the case. That is why, while leave of court is not necessary, any party who is aggrieved can go to court and complain. Deposition is purely your concern provided nobody would come here and complain. That is one of the limitations of deposition taking.Q: What orders may court issue for the protection of parties and deponents; when may orders be issued; what court has power to issue the orders?

A: 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 issue the following orders:

1.) That the deposition shall not be taken;

2.) That it may be taken only at some designated place other than that stated in the notice;3.) That it may be taken only on written interrogatories;4.) That certain matters shall not be inquired into;5.) That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel;6.) That after being sealed the deposition shall be opened only by order of the court; 7.) That secret processes, developments, or research need not be disclosed;8.) That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;9.) The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (Section 16)Sec. 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 section 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 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. (18a, R24)

Section 16 and 18 are similar. They both talk about the power of the court to control the deposition taking. Section 16 is about protective orders BEFORE deposition taking. Section 18 talks about protective orders DURING the deposition taking where the court may stop or limit the deposition taking.

Sec. 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 direction and in his 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. (17, R24)

Q: How is deposition in oral examination taken?

A: It must be under oath. The testimony will be taken by the stenographer. And objections must be recorded. Evidence objected to shall be taken subject to the objections.Q: Can the deposition officer make a ruling on the objection/s?

A: NO. He cannot. But the objection will be noted and the deponent must answer. Later on, if that deposition is offered as evidence in court, the court will now rule on the objection. If the objection is overruled, the answer as recorded remains. If the objection is sustained, the answer as recorded is erased as if it was never answered. That is the meaning of evidence objected to shall be taken subject to the objections.So, the deposition officer cannot make a ruling on the objection. It is only the judge of the court where the case is pending who will make the ruling on it.Take note that answers to depositions not objected to cannot be objected to in court during the trial, UNLESS the objection is based on a new ground which only come up after the deposition.

Sec. 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, 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 section 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, R24)

So after the deposition of the deponent is taken, the deposition officer shall submit the deposition to the deponent for examination. He may change his answers but he must state the reason for the change. And he signs it, unless the parties by stipulation waive the signing, or the witness is ill, or cannot be found or refuses to sign. In the latter cases, the deposition will be signed by the deposition officer.Sec. 20. Certification and filing by officer. The officer shall 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 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. (20, R24)

Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the parties. (21, R24)

Sec. 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, R24)

Any party can ask for a copy of the deposition upon payment of reasonable charges therefor.

Sec. 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 and his counsel in so attending, including reasonable attorneys fees. (23a, R24)

Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a witness in Davao. And he came over. But the deposition did not proceed because the party sending the notice did not show up. So he caused the other party a lot of inconvenience. The Manila lawyer can file a motion in court to ask for reimbursement of all his expenses in this case.

Sec. 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 and the witness because of such failure does not attend, and if another party attends in person or by counsel because he 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 and his counsel in so attending, including reasonable attorneys fees. (24a, R24)

Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a witness in Davao. And he came over. The party sending the notice is also present. But this time it is the witness who is absent because the party sending the notice forgot to have the witness subpoenaed. Again, the Manila lawyer can file a motion in court to ask for reimbursement of all his expenses.

Sec. 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) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross- interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25, R24)

The difference between a deposition upon oral examination and written interrogatories is that in oral examination, the questions and the answers are oral.

In deposition upon written interrogatories, the questions are prepared already in advance and that is direct interrogatories. And then they furnish you a copy and after receiving it, you may also, within 10 days, prepare your questions or cross-interrogatories and you also furnish them copies of it. And based on that, they can ask further questions. If they are now sufficient, the deposition officer shall compound the question one by one but every question requires an answer.

Practically, there is no personal confrontation of the witness. If your witness is abroad, it is very expensive for you to go there and conduct an oral examination. So, the practical means is only deposition upon written interrogatories.

Sec. 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 sections 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. (26, R24)

Sec. 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, R24)

Sec. 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 sections 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, R24)

So the protections provided under Sections 15, 16 and 18 are also applicable in oral examinations.

Are the mistakes in deposition taking fatal?

Sec. 29. Effects 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 sections 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) 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 sections 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, R24)

So, if you will notice, majority of all the errors are waived if objection thereto is not promptly made.published byLAKAS ATENISTA 1997 1998: FOURTH YEAR: Anna Vanessa Angeles Glenda Buhion Joseph Martin Castillo Aaron Philip Cruz Pearly Joan Jayagan Anderson Lo

Yogie Martirizar Frecelyn Mejia Dorothy Montejo Rowena Panales Regina Sison

Ruby Teleron Marilou Timbol Maceste Uy Perla Vicencio Liberty Wong Jude Zamora Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong Emily Alio Karen Allones Joseph Apao

Melody Penelope Batu Gemma Betonio Rocky Cabarroguis Charina Cabrera

Marlon Cascuejo Mike Castaos Karen de Leon Cherry Frondozo Jude Fuentes Maila Ilao Ilai Llena Rocky Malaki Jenny Namoc Ines Papaya Jennifer Ramos Paisal Tanjili

LAKAS ATENISTA 20012002: REVISION COMMITTEE: Melissa Suarez Jessamyn Agustin Judee Uy Janice Joanne Torres Genie Salvania Pches Fernandez Riezl Locsin

Kenneth Lim Charles Concon Roy Acelar Francis Ampig Karen Cacabelos

Maying Dadula Hannah Examen Thea Guadalope Myra Montecalvo Paul Ongkingco Michael Pito Rod Quiachon Maya Quitain Rina Sacdalan Lyle Santos Joshua Tan Thaddeus Tuburan John Vera Cruz Mortmort

PAGE 17Lakas Atenista

Ateneo de Davao University College of Law