MODES OF DISCOVERY

The rules providing for pre-trial discovery of testimony, pre-trial inspection of documentary
evidence and other tangible things, and the examination of property and person, was an
important innovation in the rules of procedure. The promulgation of this group of rules
satisfied the long-felt need for a legal machinery in the courts to supplement the pleadings for
the purpose of disclosing the real points of dispute between the parties and affording an
adequate factual basis in preparation for trial (Fortune Corporation vs. Court of Appeals, G.R.
No. 108119, January 19, 1994, 229 SCRA 355). The Circular on the Conduct of Pre-Trial and
Use of Deposition-Discovery Measures now requires the court to issue an order requiring the
parties to avail of the Modes of Discovery (A.M. 03-1-09-SC, which took effect on August
16, 2004; See also Rule 18).

What are the purposes of modes of discovery?

[1] As a device, along with the pre-trial hearing under Rule 18, to narrow and clarify the basis
issues between the parties;

[2] As a device for ascertaining the facts relative to those issues.

The time-honored cry of ‘fishing expedition’ can no longer provide a reason to prevent a
party from inquiring into the facts underlying the opposing party’s case through the discovery
procedures. In Republic v. Sandiganbayan (G.R. No. 90478,November 21, 1991, 204 SCRA
212, 200) it was held:

. . . Indeed it is the purpose and policy of the law that the parties – before the trial if not
indeed even before the pre-trial – should discover or inform themselves of all the facts
relevant to the action, not only those known to them individually, but also those known to
their adversaries; in other words, the desideratum is that civil trials should not be carried on
in the dark; and the Rules of Court make this ideal possible through the deposition-discovery
mechanism set forth in Rules 24 to 29 (Ong v. Mazo, G.R. No. 145542, June 4, 2004, 431
SCRA 56, 63).

The rules on discovery are intended to (a) enable a party to obtain knowledge of material
facts within the knowledge of the adverse party or of third parties through deposition; (b)
obtain knowledge of material facts or admissions from the adverse party through written
interrogatories; (c) obtain admissions from the adverse party regarding the genuineness of
relevant documents or relevant matters of fact through requests for admission; (d) inspect
relevant documents or objects and lands or other property in the possession or control of the
adverse party; and (e) determine the physical or mental condition of a party when such is in
controversy. This mutual discovery enables a party to discover the evidence of the adverse
party and thus facilitates an amicable settlement or expedites the trial of the case. All parties
are required to lay their cards on the table so that justice can be rendered on the merits of the
case.

What is the importance of modes of discovery?

Justice, later on Chief Justice, Andres Narvasa lamented that among far too many lawyers
(and not a few judges), there are, if not a regrettable unfamiliarity and even outright
ignorance about the nature, purpose, and operation of the modes of discovery, at least a
strong yet unreasoned and unreasonable disinclination to resort to them –-which is a great
pity for the intelligent and adequate use of the deposition-discovery mechanism, coupled with
pre-trial procedure, could, as the experience of other jurisdictions convincingly demonstrates,
effectively shorten the period of litigation and speed up adjudication (Republic vs.
Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212, 200).

To ensure that availment of the modes of discovery is otherwise untrammeled and

efficacious, the 'law imposes serious sanctions on the party who refuses to make discovery,
such as dismissing the action or proceeding or part thereof, . . .; taking the matters inquired
into as established in accordance with the claim of the party seeking discovery; refusal to
allow the disobedient party support or oppose designated claims or defenses’ (Marcelo vs.
Sandiganbayan, G.R. No. 156605, August 28, 2007).

When do modes of discovery apply?

The application of the rules on modes of discovery rests upon the sound discretion of the
court. In the same vein, the determination of the sanction to be imposed upon a party who
fails to comply with the modes of discovery rests on the same sound judicial discretion. It is
the duty of the courts to examine thoroughly the circumstances of each case and to determine
the applicability of the modes of discovery,bearing always in mind the aim to attain an
expeditious administration of justice (Lanada vs. CA, G.R. No. 102390, February 1, 2002,
375 SCRA 543;; Limos vs. Spouses Odones, G.R. No. 186979, August 11, 2010)

What are the scope and purpose of discovery procedure?

Evidentiary matters may be inquired into.

What are the different modes of discovery under the Rules of Court?

[1] Depositions pending action (Rule 23)

[2] Depositions before action or pending appeal (Rule 24)
[3] Interrogatories to parties (Rule 25)
[4] Admission by adverse party (Rule 26)
[5] Production or inspection of documents, or things (Rule 27)
[6] Physical and mental examination of persons (Rule 28)

Modes of discovery, cumulative.

The fact that a party has resorted to a particular method of discovery will not bar subsequent
use of other discovery devices. On the other hand, leave of court is required as regards
discovery by (a) production or inspection of documents or things in accordance with Rule 27,
or (b) physical and mental examination of persons under Rule 28, which may be granted upon
due application and a showing of due cause (Fortune Corporation vs. Court of Appeals, G.R.
No. 108119, January 19, 1994, 229 SCRA 355).

Discovery modes, still available even if motion for bill of particulars denied.

That the matters on which discovery is desired are the same matters subject of a prior motion
for bill of particulars denied for lack of merit is beside the point. Indeed xxx a bill of
particulars may elicit only ultimate facts, not so called evidentiary facts. The latter are
without a doubt proper subject of discovery (Republic vs. Sandiganbayan, G.R. No. 90478,
November 21, 1991, 204 SCRA 212).

Limitations of modes of discovery

Limitations inevitably arise when it can be shown that the examination is being conducted in
bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the
inquiry (See Secs. 16 and 18, Rule 23).

And further limitations come into existence when the inquiry touches upon the irrelevant or
encroaches upon the recognized domains of privilege.

The liberty of a party to make discovery is almost unrestricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is made in good faith and within the
bounds of law (Republic v. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA
212).

While there are limitations to the rules of discovery, even when permitted to be undertaken
without leave and without judicial intervention, such limitations inevitably arise when it can
be shown that the examination is being conducted in bad faith; or in such a manner as to
annoy, embarrass, or oppress the person subject to the inquiry; or when the inquiry touches
upon the irrelevant or encroaches upon the recognized domains of privilege (San Luis vs.
Rojas, G.R. No. 159127, March 3, 2008).

Modes of Discovery

MODES OF DISCOVERY

Rules 23-28 provide for the DIFFERENT MODES OF DISCOVERY.

DISCOVERY - is the procedure by which one party in an action is enabled to obtain before
trial knowledge of relevant facts and of material evidence in the possession of the adverse
party or of a witness.

*** Rationale of discovery: to enable the parties to obtain the fullest possible knowledge of
the issues and evidence long before the trial to prevent such trial from being carried on in the
dark.

*** Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and
26.

KIND of DISCOVERY MANNER & TIME TO/BY WHOM &

PURPOSE
1) Deposition pending action Ex Parte Motion To any person whether a
upon oral or written party or not at the instance of
interrogatories any party.

Purpose: to get oral or

2) Deposition before action
3) Deposition pending appeal
written admissions from a
witness.
a) by a verified petition in the By any person who desires to
court of the place of perpetuate his own testimony
residence of any expected or that of another.
adverse party/
Purpose: future action
By leave of court if an appeal By appelle or appellant
 has been taken or before
taking it before expiration Purpose: for appeal or future
period proceedings

4) Interrogatories Ex parte motion By and to any party desiring

to elicit material and relevant
facts

Purpose: to elicit material

5) Request for Admission
and relevant facts
By a written request for By any party filed and served
admission after issues have upon adverse party
been joined
Purpose: for admission of:

a) Genuineness of any
material documents
b) Truth of material facts
6) Production or inspection Upon motion to the court and By and to any party for
of documents or things showing good cause with
notice to all Purposes:
a) Produce, inspect and copy
documents, objects or things
not privilege and material
evidence to a case

b) Entry and inspection of

7) Physical and mental Upon motion to the court and
examination showing good cause with
notice to all mental or
physical condition of a party
is in controversy.
place.
By any party against the
party whose mental or
physical condition is in
controversy
Purposes: Ascertain the
physical or mental condition
of a party material to the
action

*** The various modes of discovery are clearly intended to be cumulative, and not
alternative or mutually exclusive

*** Fishing expeditions are allowed in discovery, EXCEPT in motions for

productions of documents

PRINCIPAL BENEFITS IN MODES OF DISCOVERY

1. Great assistance in ascertaining the truth and preventing injury because the witness
is not coached and memory still fresh;
2. Effective in detecting fake, fraudulent or sham claims;
3. Simple, convenient and inexpensive way of obtaining facts;
4. Educates the parties of the real values of their claims thereby encouraging
settlements;
 5. Expedite proceedings and helps unclog court dockets;
6. Safeguard against surprise trials;
7. Facilitates preparation and trial of cases.

PURPOSE OF THE MODES OF DISCOVERY:

to narrow and clarify basic issues between the parties,
as a device for ascertaining the facts relative to those issues
to support a motion for summary judgment (Rule 35)

BILL OF PARTICULARS MODES OF DISCOVERY

To make ultimate facts more definite, not to To discover evidentiary facts
supply evidentiary matters
To prepare for responsive pleading To prepare for trial (abbreviates trial)

v Denial of Bills of Particulars does not bar the use of the Modes of Discovery.

It is cumulative

LIMITATIONS OF MODES OF DISCOVERY

1. When it can be shown that the examination is being conducted in bad faith
2. When it can be shown that the examination is being conducted is such a manner as to
annoy, embarrass, or oppress the person subject to the inquiry
3. Irrelevant
4. Privileged matters

Definition:
a. Letters rogatory or letters of request are a formal request from a court to a foreign court
for some type of judicial assistance. The most common remedies sought by letters rogatory
are service of process and taking of evidence.

b. fishing expedition

1: an inquiry (as by the use of discovery) that is unnecessarily extensive or unrelated to the
lawsuit
2: an investigation that does not stick to a stated objective but hopes to uncover incriminating
or newsworthy evidence

c. Interrogatories. In a civil action, an interrogatory is a list of questions one party sends to

another as part of the discovery process.
d. Deposition is a witness's sworn out-of-court testimony. It is used to gather information as
part of the discovery process and, in limited circumstances, may be used at trial. The witness
being deposed is called the "deponent."

e. Privileged communication is one made bona fide upon any subject matter in which the
party communicating has an interest, or in reference to which he has a duty. [12] Discussing
the scope of this rule, former Chief Justice Fernando, in Mercado v. CFI of Rizal, [13]
explained that:

Even when the statements are found to be false, if there is probable cause for belief in their
truthfulness and the charge is made in good faith, the mantle of privilege may still cover the
mistake of the individual. But the statements must be made under an honest sense of duty
(Fortich vs. CA G. R. No. 120769, February 12, 1997)