1997 Rules on Civil Procedure Rule 23

2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

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

DASMARIÑAS 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
pre-trial?

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,

Lakas Atenista 4
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

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 I’m 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 “What’s 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.

Lakas Atenista 5
Ateneo de Davao University College of Law