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MODES OF DISCOVERY

Meaning of DISCOVERY?
A device employed by a party to obtain information about relevant
matters on the case from the adverse party in preparation for trial. Device
may be used by ALL parties.
PURPOSE?
Permit mutual knowledge of relevant facts
Serves as an additional device aside from a pre-trial (narrow and
clarify basic issues)
DUTY OF THE COURT?
Prepare the summons within 1 day from the receipt of the
complaint
Issue an order requiring the parties to:
o avail of interrogatories to parties under Rule 25
o request for admission by adverse party under 26
o or at their discretion, make use of depositions under 23
o or other measures under 27 and 28 within 5 days from
filing the answer
o copy of this would served upon the defendant together
with the summons
o copy shall also be served upon the plaintiff
MODES OF DISCOVERY?
1.) depositions pending action
2.) depositions before action or pending appeal
3.) interrogatories to parties
4.) admission by adverse party
5.) production or inspection of documents or things
6.) physical and mental examination of persons
DEPOSITIONS
MEANING?
Taking of the testimony of any person, whether he be a party or not, BUT
at the instance of a party to the action. This is taken OUT OF COURT.
METHODS?
1.) oral examination
2.) written interrogatory
DEPOSITION DE BENNE ESSE= for use during a pending action; 23

DEPOSITION IN PERPETUAM REI MEMORIAM= future proceedings,


cases on appeal; 24
DEPOSITIONS PENDING ACTION; LEAVE OF COURT WHEN
REQUIRED
Required= before the service of a answer but after jurisdiction has been
acquired over any defendant or over the property subject of the action
Not required= after an answer has been served
DEPOSITION OF A PRISONER
May be taken only with leave of court and upon such terms as the court
may prescribe
BEFORE WHOM TAKEN
1.) WITHIN THE PHILIPPINES: need not be take before a judge,
although pwede naman. Notary public or before any person authorized to
administer oaths if the parties so stipulate in writing
2.) OUTSIDE THE PHILIPPINES:
a secretary of an embassy or legation; consul general, consul, viceconsul or consular agent of the RP
such person or officer as may be appointed by commission or
letters rogatory
a person authorized to administer oaths by written stipulation of
the parties
3.) NO DEPOSITION SHALL BE TAKEN BEFORE A PERSON WHO IS
a relative within the 6th degree of consanguinity of affinity, or
employee or counsel of any of the parties
relative within the same degree or employee of such counsel
one who is financially interested in the action
EXAMINATION OF DEPONENT
1.) oral examination= party desiting -> reasonable notice in writing to
EVERY party to the action
stating the time and place for taking the deposition and
the name and address of each person to be examined
after the notice is served= court may make any order for the
protection of the parties and the deponents
2.) the attendance of witnesses may be compelled by the use of a subpoena
3.) the deponent may be examined or cross-examined following the
procedures for witnesses in a trial; may be asked questions on direct,

cross, re-direct or re-cross; has the same rights as a witness and may be
impeached like a court witness
4.) UNLESS OTHERWISE ORDERED BY THE COURT, the deponent
may be examined regarding any matter not privileged, which is relevant
to the pending action, whether relating to the claim or defense of any
party, including the existence... or other tangible things and the identity
and location of persons having knowledge of relevant facts
5.) The officer before whom the deposition is taken has no authority to
rule on the objections interposed during the course of the deposition
although any objections shall be noted by the officer. Any evidence that is
objected to shall still be taken BUT subject to the objection.

(v) when exceptional circumstances exists, upon application and


notice
EFFECT OF SUBSTITUTION OF PARTIES (Sec. 5, Rule 23)
EFFECT OF TAKING OF DEPOSITION OF A PERSON: doesnt, by
reason of such deposition, make such person the witness of said party
BUT EFFECT OF USING THE DEPOSITION IS DIFFERENT: use of
any/part makes the deponent the witness IF used for a purpose other than
that of contradiction or impeaching the deponent. Di rin to applicable to
the use by an adverse party.
ORAL DEPOSITION

USE OF DEPOSITIONS PENDING ACTION


1. Any part or all of the deposition, so far as admissible under the rules of
evidence, may be used
(a) against any party who was present or represented at the
taking of the deposition, or
(b) against one who had due notice of the deposition.
The deposition or any of its parts, may be used at the trial or upon the
hearing of a motion or an interlocutory proceeding.
2. The deposition may be used for the following purposes:
(a) For contradicting or impeaching the testimony of the deponent
as a witness;
(b) For any purpose by the adverse party where the deponent is a
party or at the time of the deposition was an officer, director, or
managing agent of a public or private corporation, partnership or
association which is a party;
(c) For any purpose by any party, where the deponent is a witness,
whether or not a party, if the court finds that:
(i) the witness is dead,
(ii) that the witness resides 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
(iii) that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or
(iv) that the party offering the deposition has been unable to
procure the attendance of witnesses by subpoena; or

1. A party desiring to take the deposition of any person upon oral


examination shall give to every party to the action a reasonable notice in
writing. Such notice is required to contain the following:
(a) the time and place for taking the deposition; and
(b) the name and address of each person to be examined, if known;
if not known, there must be a general description sufficient to
identify him or the particular class or group to which he belongs
2. Certain guidelines for oral depositions provided for under Sec. 17 of
Rule 23 must be observed. These are:
(a) The officer before whom the deposition is taken shall put the
witness on oath;
(b) The testimony of the witness or deponent must be recorded
and shall be taken stenographically unless the party agree
otherwise;
(c) All objections made at the time of the examination shall be
noted;
(d) Evidence objected to shall be taken but subject to the
objections.
3. 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
4. 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 is waived by the witness and by the parties.
The witness may desire some changes in form and substance, in which
case such changes shall be entered upon the deposition by the officer with

a statement of the reasons of the witness for making such changes. The
deposition shall be signed by the witness UNLESS the signing is waived
by the parties by stipulation or the deposition cannot be signed because
the witness is ill, cannot be found or if he refuses to sign
5. If the deposition is not signed by the witness, the officer shall sign it
and state on the record the attendant facts together with the reason given
for the non-signing of the deposition. This having been done, the
deposition may be used as fully as though it was signed unless on a
motion to suppress under Sec. 29[f] of Rule 23 and the court holds that the
reasons given for the refusal to sign require rejecting the deposition in
whole or in part
6. The officer is required to 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 Deposition of (name of
witness). He shall likewise promptly file it with the court in which the
action is pending or send it by registered mail to the clerk thereof for
filing. All parties shall promptly be notified of its filing by the officer
taking the deposition and upon payment of reasonable charges, the officer
shall furnish a copy of the deposition to any party or to the deponent.

4. 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. He shall proceed promptly 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
DEPOSITIONS BEFORE ACTION
Availed of when a person desires to perpetuate his own testimony or that
of another person regarding any matter that may be cognizable in any
court
PERPETUATION OF TESTIMONY BEFORE ACTION
1. done by filing a verified petition in the place of the residence of any
expected adverse party
2. Notices shall be sent in accordance with the Rules (Sec. 3) and if the
court is satisfied that the perpetuation of the testimony may prevent a
failure or delay of justice, it shall make the appropriate order for the
taking of the deposition
3. is admissible in evidence in any action subsequently brought involving
the same subject matter
DEPOSITIONS PENDING APPEAL

DEPOSITIONS UPON WRITTEN INTERROGATORIES


1. A deposition need not be conducted through an oral examination.
Pwedeng written interrogatories
2. A party desiring to take the deposition of any person upon written
interrogatories shall serve the interrogatories upon every other party
with:
a notice stating the name and address of the person who is to
answer them,
the name and descriptive title and address of the officer before
whom the deposition is to be taken
3. The party served with the interrogatories may also serve crossinterrogatories upon the party proposing to take the deposition within ten
(10) days from service of the written interrogatories. The latter may,
within five (5) days, serve re-direct 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

1. If an appeal has been taken from a judgment of a court or before the


taking of an appeal if the time has not expired, the court may allow the
taking of depositions to perpetuate their testimony for use in the event of
further proceedings in said court
2. The party who desires to do so may make a motion in said court for
leave to take the depositions. The notice and service to be made shall be
made in the same manner as if the action is pending
3. The motion shall state the
(a) names and addresses of the persons to be examined;
(b) the substance of the testimony he expects to elicit from each of the
persons to be examined; (c) and the reason for perpetuating their
testimony
4. The court shall allow the depositions if it finds that the perpetuation of
the testimony is proper to avoid a failure or delay of justice. The
depositions may be taken and used in the same manner and under the
same conditions prescribed for depositions taken in pending actions

II. INTERROGATORIES TO PARTIES (RULE 25)


PURPOSE OF INTERROGATORIES TO PARTIES
1. availed of by a party to the action for the purpose of eliciting material
and relevant facts from any adverse party
2. within one day from receipt of the complaint, the rule mandates not
only the preparation of the summons but also the issuance of an order
requiring the parties to avail of interrogatories to parties under Rule 25
and request for admission by adverse party under Rule 26.
Distinguished from a bill of particulars
A bill of particulars is directed to a pleading and is designed to seek for a
more definite statement or for particulars of any matter not averred with
sufficient definiteness in a pleading. Interrogatories to parties are not
directed against a particular pleading. Instead, they seek the disclosure of
all material and relevant facts from a party.
Distinguished from written interrogatories in a deposition
Written interrogatories in a deposition are not served upon the adverse
party directly. They are instead delivered to the officer designated in the
notice. The service of written interrogatories is a mode of deposition
separate and distinct from interrogatories to parties. Interrogatories to
parties are served directly upon the adverse party.
Procedure
1. availed of by filing and serving upon the adverse party written
interrogatories to be answered by the party served. If juridical entity,
shall be answered by any of its officers competent to testify in its behalf
2. No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party.
3. The interrogatories shall be answered fully in writing and shall be
signed and sworn to by the person making them. The party upon whom
the interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen (15)
days after service thereof. This period may, upon motion and for good
cause shown, be extended or shortened by the court.

4. The party against whom it is directed may make objections to the


interrogatories. If he does so, said objections shall be presented to the
court within ten (10) days after service of the interrogatories. The filing of
the objections shall have the effect of deferring the filing and service of
the answer to the interrogatories until the objections are resolved.
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, unless allowed by the court or to prevent a failure of
justice
III. Admission by Adverse Party (Rule 26)
Purpose of admission by adverse party
to allow one party to request the adverse party in writing to admit certain
material and relevant matters which most likely will not be disputed
during the trial. To avoid unnecessary inconvenience to the parties in
going through the rigors of proof, before the trial, a party may request the
other to:
(a) admit the genuineness of any material and relevant document
described in and exhibited with the request; or
(b) admit the truth of any material and relevant matter of fact set forth in
the request
When request is made
A party may file and serve the written request at any time after issues
have been joined.
Effect of not filing a written request for admission
As a consequence of the failure to avail of this mode of discovery, the

party who fails to file and serve the request shall not be permitted to
present evidence on facts that are material and relevant and which are, or
ought to be within the personal knowledge of the other party, unless

otherwise allowed by the court for good cause shown and to prevent a
failure of justice
Effect of failure to file and serve a sworn statement of denial
1. It is advisable for the party to whom the written request is directed to
file and serve upon the party requesting the admission a sworn statement
either (a) specifically denying the matters of which admission is
requested, or (b) if he does not deny the same, to set forth in detail the
reasons why he cannot truthfully admit or deny those matters. This sworn
statement shall be filed and served within the period designated in the

request but which shall not be less than fifteen (15) days from the service
of such request, or within such further time as the court may allow
2. If the party to whom the written request for admission does not file the
required sworn statement, each of the matters of which an admission is
requested shall be deemed admitted

TEST TO BE APPLIED BY THE TRIAL JUDGE IN DETERMINING


THE RELEVANCY OF THE DOCUMENTS: reasonableness and
practicality

Effect of admission
Any admission made by a party as a consequence of the failure to comply
with the request is only for the purpose of the pending action and shall
not be deemed an admission for any other purpose.

Filing of a motion; order of the court


1. A motion must be filed by the party seeking the production or
inspection of documents and things and the motion must show good cause
supporting the same
2. The order shall specify the time, place and manner of making the
inspection and taking copies and photographs, and may prescribe such
terms and conditions as are just

Deferment of compliance
To avoid the implied admission, the party requested may have the
compliance of the filing and service of the sworn statement deferred. This
deferment may be effected by the filing with the court objections to the
request for admission. Compliance shall be deferred until such objections
are resolved by the court
Withdrawal of admission
Admissions made under this mode of discovery, whether express or
implied are not final and irrevocable. The court may allow the party
making the admission to withdraw or amend the admission upon such
terms as may be just (Sec. 4, Rule 26, Rules of Court). To effect the
withdrawal, the admitting party should file a motion to be relieved of the
effects of his admission.
IV. Production or Inspection of Documents or Things (Rule 27)
Purpose
1. to allow a party to seek an order from the court in which the action is
pending to:
(a) order any party to produce and permit the inspection and
copying or photographing, by or on behalf of the moving party, of
any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control;
(b) order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting,
measuring, surveying, or photographing the property or any
designated relevant object or operation thereon
2. also for the benefit of the court to discover all the relevant and material
facts; to be liberally construed; required to lay their cards on the title;

3. has a limitation: di pwedeng privileged

Privileged documents
1. Rule 27 provides that the documents, papers, books, accounts, letters,
photographs, objects or tangible things that may be produced and
inspected should not be privileged. The documents must not be privileged
against disclosure. On the ground of public policy, the rules providing for
production and inspection of books and papers do not authorize the
production or inspection of privileged matter; that is, books and papers
which, because of their confidential and privileged character, could not be
received in evidence. Such a condition is in addition to the requisite that
the items be designated and must constitute or contain evidence material
to any matter involved in the action and which are in the partys
possession, custody or control
2. Section 24 of Rule 130 draws the types of disqualification by reason of
privileged communication:
(a) communication between husband and wife;
(b) communication between attorney and client;
(c) communication between physician and patient;
(d) communication between priest and penitent; and
(e) public officers and public interest.
There are, however, other privileged matters that are not mentioned by
Rule 130. Among them are the following: (a) editors may not be compelled
to disclose the source of published news; (b) voters may not be compelled
to disclose for whom they voted; (c) trade secrets; (d) information
contained in tax census returns; and (d) bank deposits

V. Physical and Mental Examination of Persons (Rule 28)

Applicability
This mode of discovery applies to an action in which the mental or
physical condition of a party is in controversy. Examples of this action
would be:
(a) An action for annulment of a contract where the ground relied upon is
insanity.
(b) A petition for guardianship of a person alleged to be insane;
(c) An action to recover damages for personal injury where the issue is the
extent of the injuries of the plaintiff.
Procedure
1. A motion must showing good cause for the examination, with notice to
the other parties as well aside from the party to be examined. The motion
shall likewise specify the time, place, manner, conditions and scope of the
examination and by the person or persons by whom it is to be made
2. The party examined may request the party causing the examination to
be made to deliver to him a copy of a detailed written report of the
examining physician setting out his findings and conclusions. After such
request and delivery, the party causing the examination to be made shall
be entitled upon request to receive from the party examined a like report
of any examination, previously or thereafter made, of the same mental or
physical condition.
If the party examined refuses to deliver the report, the court may make
an order requiring the delivery on such terms as are just. If it is the
physician who fails or refuses to make a report, the court may exclude his
testimony if offered at the trial.
Waiver of privilege
By requesting and obtaining a report of the examination or by taking the
deposition of the examiner, the party examined waives any privilege he
may have in that action or any other 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
VI. Refusal to Comply with the Modes of Discovery
The sanctions for refusal to comply with the modes of discovery may be
summarized as follows:
A. Refusal to answer any question upon oral examination
(a) The court may upon proper application, compel a deponent who
refuses to answer an oral examination. The same applies to a witness who

refuses to answer an interrogatory submitted. A refusal to answer after


being directed by the court may be considered as a contempt of court
IF THE APPLICATION IS GRANTED, the court shall order the deponent
or refusing party to answer the question or interrogatory. If the refusal is
unjustified, the court may require the refusing party or deponent or
counsel, or both, to pay the proponent the amount of reasonable expenses
incurred in obtaining the order pati attys fees. Refusal to answer after
being directed to do so, may be considered contempt.
(b) If the application for an order to compel a deponent to answer is
denied because of the absence of a substantial justification, the court may
require the proponent or the counsel advising the application, or both of
them, to pay to the refusing party or deponent the amount of reasonable
expenses incurred in opposing the application, including attorneys fees.
B. Refusal to answer designated or particular questions or refusal to
produce documents or things or to submit to physical or mental
examination
(a) The court may order that the matters regarding which the questions
were asked shall be taken as established for purposes of the action in
accordance with the claim of the party obtaining them.
(b) The court may issue an order refusing to allow the disobedient party to
refuse or support designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items of
testimony, or from introducing evidence of physical or mental condition.
(c) The court may issue an order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment by
default against the disobedient party.
(d) The court may direct the arrest of any party or agent of a party for
disobeying any of the orders of the court, except an order to submit to a
physical or mental examination.
C. Refusal to be sworn
A refusal of a party to be sworn after being directed by the court may be
considered as contempt of court
D. Refusal to admit
If a party refuses to admit the genuineness of any document or the truth
of any matter of fact and serves a sworn denial thereof and if the other
party later on proves the genuineness of the document or the truth of such
matter of fact, the court upon proper application, may order the former to
pay the reasonable expenses in making such proof, including attorneys
fees

E. Failure to attend depositions or to serve answers to interrogatories


(Bar 2010)
1. The court may (a) strike out all or any part of the pleading of that
party, or dismiss the action or proceeding or party, and in its discretion,
(c) order him to pay reasonable expenses incurred by the other, including
attorneys fees
2. The consequences under Sec. 5 of Rule 29 will apply if a party refuses to
answer the whole set of written interrogatories, and not just a particular
question. Where the party upon whom the written interrogatories is
served, refuses to answer a particular question in the set of written
interrogatories and despite an order compelling him to answer the
particular question, still refuses to obey the order, Sec. 3(c) of Rule 29 will
apply.
The following are the consequences provided for in Sec. 3(c) of Rule 29:
(a) The court may issue an order striking out pleadings or parts
thereof;
(b) The court may issue an order staying further proceedings until
the order is obeyed;
(c) The court may issue an order dismissing the action or
proceeding or any part thereof; or
(d) The court may issue an order rendering a judgment by default
against the disobedient party.
3. The matter of how, and when, the above sanctions should be applied is
one that primarily rests on the sound discretion of the court where the
case is pending, having always in mind the paramount and overriding
interest of justice.