Use of Deposition

and
Discovery Measures

Atty. Peter B. Cañamo

(Remedial Law Review 2020)

Sources: Primer-Reviewer, Riguera; Remedial
Law, Herrera; Regalado.
Rules 23-29 OR Rule 22-28 (New Civ Pro)

– Rule 23 – Depositions pending actions

– Rule 24 – Depositions before
actions/Depositions Pending Appeal
– Rule 25 – Interrogatories to Parties
– Rule 26 – Admission by adverse party
– Rule 27 – Production or inspection of things or
document
– Rule 28 – Physical and Mental Examination
– Rule 29 - Refusal to comply with the modes of
discovery
Deposition is a method of
pre-trial discovery which
consists in taking the
testimony of a person under
oath upon oral examination
(oral deposition) or upon
written interrogatories. The
term deposition also refers
to the testimony or
statement so taken.
 • Deposition may either be upon oral
examination or upon written
interrogatories;

-Deposition upon written

interrogatories should not be
confused with written interrogatories to
parties which is a separate method of
KINDS OF discovery under R25;

DEPOSITION • Depositions pending actions are those taken

during the pendency of a case before the
court a quo;

• Depositions may be taken even before the

filing of an action or during the pendency of
an appeal (R24)
 • While an affidavit is also under
oath, it is distinguished from a
Distinguish deposition in that it is executed
Deposition ex parte without
opportunity for the other
any

from parties to attend and cross

examine the affiant. Hence an
Affidavit affidavit is hearsay and
inadmissible in evidence while
deposition is admissible in
evidence under the conditions
and situations set forth in
Section 4, Rule 23 of ROC.
 • NOTE3: No amendment in Sec. 2 (Scope of examination),
Sec. 3 (Examination and cross-examination), Sec. 5 (Effect
of substitution of parties), Sec. 6 (Objections to
admissibility), Sec. 8 (Effect of using depositions), Sec. 10
(Persons before whom depositions may be taken within the
Philippines), Sec. 11 (Persons before whom depositions
may be taken in foreign countries), Sec. 12 (Commission or
letters rogatory), Sec. 13. (Disqualification by interest), Sec.
14 (Stipulations regarding taking of depositions), Sec. 16
(Orders for the protection of parties and deponents), Sec.
18 (Motion to terminate or limit examination), Sec. 21
(Notice of filing), Sec. 22 (Furnishing copies), Sec. 27
(Notice of filing and furnishing copies) and Sec. 28 (Orders
for the protection of parties and deponents)
Summary of
Amendments, • NOTE4: The amendments in Sec. 4 (Use of depositions),
Sec. 7 (Effect of taking depositions), Sec. 9 (Rebutting
depositions), Sec. 15 (Deposition upon oral examination;
Rule 23 notice; time and place), Sec. 17 (Record of examination;
oath; objection), Sec. 19 (Submission to witness; changes;
signing), Sec. 20 (Certification and filing by officer), Sec.
23. (Failure to attend of party giving notice), Sec. 24
(Failure of party giving notice to serve subpoena), and Sec.
26 (Officers to take responses and prepare record) are
merely gender-based.

• Amendments: Section 1, Section 25, and Section 29.

NOTES by: Deputy Court Administrator RAUL B. VILLANUEVA

• OCA-Supreme Court
 • KINDS
a) Oral Examinations/Depositions
b) Written Interrogatories
DEPOSITIONS • WHEN MAY A DEPOSITION BE TAKEN?

PENDING -Upon ex parte motion of a party, the

testimony of any person, whether a party or
not, may be taken, at the instance of any party,
ACTIONS by deposition upon oral examination or written
interrogatories.
(Rule 23) - The attendance of witnesses may be
compelled by the use of a subpoena as
provided in Rules of
Court (Subpoena).

- The deposition of a person confined in

prison may be taken only by leave of court on
such terms as the court prescribes.
SECTION 1.
Scope of Examination

Any relevant matter, not privileged,

which is relevant to the subject of the
pending action, whether relating to
the claim or defense of any party.
(Sec. 2)

Includes the following:

Existence, description, nature,
custody, condition and location of any
books, documents, or other tangible
things, and the identity and location
of persons. (S2)
• May deponents be examined or
cross-examined?
Yes, Section 3, Rule 23, ROC

• In what proceedings may a deposition be

used?
At the trial or upon the
hearing of a motion or an
interlocutory proceeding
(Section 4, R 23, ROC)
 Use of Deposition (Sec. 4)

a) Contradicting or impeaching the testimony of deponent as a

witness

b) Deposition, of a party or of any one who at the time of taking

the deposition was an officer, director or managing agent of a
public or private corporation, partnership or association which is
a party, may be used by an adverse party for any purpose.
c) The deposition of a witness
whether or not a party, may be
used by any party for any purpose if
the court finds that:
1. The witness is dead;
2. The witness resides at a distance more than one hundred kilometers from the place
of trial or hearing or is out of the Philippines; or
3. The witness is unable to attend or testify because of age, sickness, infirmity or
imprisonment, or
4. The party offering the deposition has been unable to procure the attendance of the
witness by subpoena or
5. Exceptional circumstances
• What is the effect of taking depositions?

A party shall not be deemed to make a person his own

witness for any purpose by taking his deposition (Section 7,
Rule 23, ROC);

• What is the effect of using depositions?

The rule is that the introduction in evidence of the

deposition or any part thereof makes the deponent the witness
of the party introducing the deposition (Section 8, R23, ROC);

Exceptions:
1) For contradicting or impeaching
the deponent;
2) Use by adverse party.
 ▪ Within the Philippines (Sec. 10)
- Judge
- Notary Public
- A person authorized to administer oaths if
the parties so stipulate (Sec. 14)
Persons
▪ In Foreign Countries (Sec. 11)
before - Before a secretary of embassy or legation,
consul general, consul, vice-consul, or
whom consular agent of the Republic of the
Philippines
depositions
- Person or officer as may be appointed by
maybe commission or under letters rogatory

taken - A person authorized to administer oaths if

the parties so stipulate
 • Both are devices for taking deposition of a
person in a foreign State or Country;

• Commission is an instrument issued by a

court or tribunal directed to a magistrate or
Distinguish a an individual authorizing him to take
deposition of the witness named therein,
Commission from while a letters rogatory is a request to a
foreign court to give its aid, backed by its
a Letters power, to secure desired information.

Rogatory
• They are distinguished in that commissions
are taken down in accordance with the
rules laid down by the court issuing the
commission, while in letters rogatory, the
methods of procedure are under the
control of the foreign tribunal (Dulay v.
Dulay, Nov. 11, 2005).
 • As to competency or relevancy of
When evidence – when it is offered in
evidence

should the • As to form of notice and as to

disqualification of officer – errors and
objections irregularities waived unless written
objection is promptly served upon the
to a party giving the notice; - waived unless
made before the taking of the
deposition deposition begins or as soon thereafter
as the disqualification becomes known
or could be discovered with reasonable
be made? diligence.

• Check Section 29, for no. of Calendar Days

 • General Rule: Waived
• Unless promptly served
to party giving notice
As To Notice

EFFECT OF
ERRORS AND
• General Rule: Not
IRREGULARITIES Waived
• Unless the ground for
As to objection is one which
competence or may be obviated or
relevancy of removed if presented
evidence
• As to disqualification of officer
General Rule: Waived
Unless made before taking of the
deposition begins or as soon
thereafter as the disqualification
becomes known.

• As to oral examination and other

particulars
General Rule: Waived
Unless reasonable objection is
made
• As to form of written interrogatories
General Rule: Waived
Unless served in writing upon the party
propounding them within the time
allowed for serving cross or counter
interrogatories

• As to manner of preparation
General Rule: Waived
Unless a motion to suppress the
deposition or some part thereof is promptly
made.
 Taking of testimony by stenographic notes
Process of Signing of witnesses
Deposition Certification of the Officer

(Sections Placing in a sealed envelope

19, 20, 21) Filing in Court

Notice of Filing
DEPOSITION BEFORE PENDING ACTION
(RULE 24)

General Concept:
A person who desires to perpetuate his own testimony
or that of another person regarding any matter that may me
cognizable in any court of the Philippines

Mode: Verified Petition

Venue: Place of residence of any expected adverse party

 Contents of Petition

a. Petitioner who expects to be a party but is

presently unable to bring it;
b. The subject matter of the expected action and his
interest therein;
c. Facts which he desires to establish by the
proposed testimony and his reasons for
perpetuating it;
d. The names and description of the persons he
expects will be adverse parties and their
addresses;
e. The names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit: and
f. Ask for an order authorizing the petitioner to take
depositions of persons to be examined
Mode: (Section 3, R24)
Motion upon notice and
service

Contents of Motion:

a. Names and addresses of

persons to be examined and
the substance of the testimony
which he expects to elicit from
each; and

b. The reason for perpetuating the

testimony
 Perpetuate testimony
General Concept: for use in the event of
further proceedings.

DEPOSITIONS Where:

BEFORE
ACTION OR Before Action- Court of residence of
any expected adverse party;
PENDING
APPEAL (RULE Pending Appeal-Court in which the
24) judgment was rendered

At anytime before
judgment becomes
When: final; Anytime before
institution of action;
 INTERROGATORIES
TO PARTIES(RULE 25)
General Concept:

A pretrial discovery method in which written questions are

propounded by one party and served on the adverse party,
who must serve written replies thereto under oath.

Any party desiring to elicit material and relevant facts from

any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served,
or

if the party served is a public or private corporation or a

partnership or association, by any officer thereof competent
to testify in its behalf.

How and When may a party serve interrogatories upon an

adverse party?

Upon ex parte motion, any party…

Effect of Failure to Serve Written
Interrogatories:

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.
Period to Answer:
Within fifteen (15) calendar days
after service

Period to Object or Oppose:

Within 10 calendar days after service

• What is the consequence is a party

fails to serve answers to
interrogatories?

– The court on motion and notice

may strike out all or any part of
any pleading of that party, or
dismiss the action or proceeding or
any part thereof, or enter a
judgment by default against that
party, and in its discretion, order
him or her to pay reasonable
expenses incurred by the other,
including attorney’s fees. Section
5, R 25, ROC
 • The refusal to answer written
interrogatories on the ground that
they constitute a “fishing
Ong v. expedition” is not a meritorious
ground. Precisely the purpose of
Mazo, 4 discovery is to enable a party to
obtain relevant facts from the
June 2004 other party so as to facilitate
settlement or to expedite the
trial.
 General Concept:
A party may file and serve
upon any other party a written
request for the admission by the
latter, at any time after the issues
have been joined, of the –

ADMISSION a. Genuineness of any material and

BY ADVERSE relevant document described in
and exhibited with the request; or
PARTY (RULE b. Truth of any material and relevant
26) matter of fact set forth in the
request. (Sec. 1)

Note: It must be served directly upon

the party requested. Answer may
be made through counsel.
Lañada v. CA, G.R. No. 102390 February
1, 2002

A request for admission is not proper where the

subject matters thereof are the same as the ultimate
facts alleged in the requesting party’s complaint for
which the requested party had already denied in his
answer. A party should not be required to make second
denial of those already denied in his answer to the
complaint.
 • Each of the matters of which an
admission is requested shall be
deemed admitted (Section 2, R
26, ROC);
What is the
effect if a • Any admission, whether express
request for or implied, is for the purpose of
the pending action only and
admission is not shall not constitute an admission
by him for any other purpose
answered? not may the same be used
against him in any other
proceedings (Section 3, R 26,
ROC);
• Period to File sworn
Statement or to Oppose:

- Not less than fifteen

(15) days after service

• Effect of failure to file and

Serve Request for
Admission:

- 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 within the personal
knowledge of the latter, shall
not be permitted to present
evidence on such facts
(Sec. 5)
 By serving Sworn
Statement either:
How shall an
• Denying specifically the
answer to a matters of which an
admission is requested;
request for or
admission be • 2. Setting forth in
detail the reasons why
made? he cannot truthfully
either admit or deny
those matters (S2, R26)
• S 3, R26;

Any admission
whether express or
implied, is for the
purpose of the
pending action only
and shall not
constitute an
admission by him for Teknot ☺
any other purpose
nor may the same be
used against him in
any other
proceeding.
 PRODUCTION OR
INSPECTION OF THINGS OR
DOCUMENTS (RULE 27)

Mode: Motion filed in Court; Upon motion of any party

showing good cause therefore, the court in which the
action is pending may:
Order requested from Court:

a. Order any party to produce and permit inspection and

copying or photographing of any designated
documents, papers, books, accounts, letters,
photographs or objects not privileged, or

b. Order any party to permit entry upon land or property

in the possession or control for the purposes of
inspecting, measuring, surveying or photographing
the property or any relevant object or operation.
Note: Differentiate with Subpoena
Duces Tecum

• A showing of good cause and upon motion

is required under R 27, while subpoena
duces tecum may issue an ex parte
application;

• An order under R 27 can only be directed

to a party, while a subpoena duces tecum
may be directed to a nonparty;

• R 27 is a pre-trial discovery (in preparation

for trial) and may opt not to use such facts
or documents, while subpoena duces
tecum is a process used during the trial
that the party applying contemplates
presenting it for in evidence;
 When Examination may be
Ordered:

Requisites:
1. There should be a
motion for good cause shown
and upon notice to the party
PHYSICAL AND to be examined and to all
other parties;
MENTAL 2. Such motion shall
specify the time, place,
EXAMINATION manner, conditions and scope
of the examination and the
(RULE 28) person by whom it is to be
made;
3. The action in which
the motion is made is one in
which the mental or physical
condition of a party is in
controversy (S1 & S2, R28)
Example:

1. In an action for annulment of marriage

on the ground of impotency;

2. Annulment of contract on the ground

of insanity at the time of execution
(lack of consent);

3. In an action against an insurer for

accident or disability benefits;

4. In an action for support by wife and

husband counterclaimed of adultery
and the child is spurious – wife moved
for blood grouping test;
 The rules are the following:

1. 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; S3, R28
What are the rules
2. The party causing the examination to be made shall be
governing the entitled upon request to receive from the party
rights of the parties examined, like report of any examination previously
or thereafter made, of the same physical or mental
on the report of condition;

the examining 3. If the party examined refuses to deliver such report, the
physician regarding court on motion and notice may make an order
requiring delivery;
the physical or
4. If a physician fails or refuses to make such report, the
mental condition of court may exclude his testimony if offered at the trial;
a party examined? 5. The party examined who obtains a report 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. (S4, R28)
 Other Refusal to Answer
consequences
REFUSAL TO • Arising from refusal to
• - Secure an order to
compel an answer
(Sec. 1)
answer or to comply
COMPLY an Order under Rules
27 and 28
• - Refuses to be sworn
or to answer any
question, the refusal
WITH • Order that the facts
shall not be taken to
establish the purpose
may be considered in
contempt of court.
(Sec. 2)
MODES OF of the action
• Order refusing to allow
the disobedient party
• - Aside from contempt,
striking out of

DISCOVERY to support or oppose

designated claims or
defenses.
pleading, dismissal of
action, judgment by
default payment of

(RULE 29) reasonable fees (Sec.

5)
-end-