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
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

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 somebody’s 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.

Lakas Atenista 6
Ateneo de Davao University College of Law