Modes of Discovery

Rule 21 Subpoena
1. 1. Subpoena issued by:
1. The court before whom witness is required to attend;
2. The court of the place where the deposition is to be taken;
3. The officer or body authorized by law to do so in connection with its investigations;
4. Any Justice of the SC or CA in any case or investigation pending within the Phils
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in
any penal institution shall be brought outside said institution for appearance or attendance in any
court unless authorized by the SC.
1. 3. Grounds for quashing subpoena duces tecum
2. 4. Ground for quashing subpoena ad testificandum
1. It is unreasonable or oppressive
2. The articles sought to be produced do not appear to be relevant
3. Person asking for subpoena does not advance cost of production
1. The witness is not bound thereby if witness resides more than 100 km from the place where
he is to travel by the ordinary course of travel, or if he is a detention prisoner and no
permission is obtained from the court in which his case is pending
This is known as the viatory right of the witness; NOTE, however, that the right is available
only in CIVIL cases
2. Witness fees and kilometrage allowed by rules not tendered when subpoena served.
1. 5. Service of subpoena made in the same manner as personal or substituted service of
summons.
2. 6. Person present in court before a judicial officer may be required to testify as if he were
in attendance upon a subpoena.
3. 7. Failure by any person without adequate cause to obey a subpoena served upon him shall
be deemed a contempt of the court from which subpoena issued.
Rule 22 Computation of Time
1. 1. Computing for any period of time: day of the act or event from which designated period
of time begins to run is to be excluded and the date of performance included.
2. 2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits,
the time shall not run until the next working day.
3. 3. If there is effective interruption of period, it shall start to run on the day after notice of
the cessation of the cause of the interruption. The day of the act that caused the
interruption is excluded in the computation of the period.
Rule 23 Depositions Pending Action
DEPOSITIONS DE BENE ESSE taken for purposes of pending action
1. 1. Depositions pending action
1. 2. Scope of examination deponent may be examined regarding any matter not
privileged relevant to the subject of the action
2. 3. Examination and cross-examination proceeds as in trials
3. 4. Depositions and Affidavits distinguished
1. Taken by leave of court after court obtains jurisdiction over any defendant or property
subject of the action
2. Taken without leave after an answer has been served
3. Upon the instance of any party
4. May be deposition upon oral examination or written interrogatories
 Depositions Affidavits

Written testimony of witness in course of

judicial proceedings, in advance of trial and
hearing Mere sworn written statements

Opportunity for cross-examination No cross-examination

Can be competent testimonial evidence Little probative value (hearsay)

1. 5. Use of depositions

Any part or all of a deposition which is admissible in evidence may be used against any party who
was present or represented during the taking of the deposition or who had notice thereof as
follows:

Deponent is made the witness of the party offering the deposition.

If only part of the deposition is introduced, adverse party may require that all of it which is
relevant to the part introduced be introduced.

6. Persons before whom depositions may be taken

a. Within the Philippines

1. Judge
2. Notary public
3. Any person authorized to administer oaths if the parties so stipulate in writing

b. In foreign countries

1. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-

consul, consular agent of the Phils
1. Before such person or officer as may be appointed by commission or under letters-
rogatories
2. Any person authorized to administer oaths if the parties so stipulate.
Commission addressed to any authority in a foreign country authorized therein to take down
depositions; the taking of such depositions is subject to the rules laid down by the court issuing the
commission
Letters Rogatory addressed to judicial authority in the foreign country; the taking of the
depositions is subject to the rules laid down by such foreign judicial authority.

7. Persons disqualified to take depositions

1. Relative within 6th degree of consanguinity or affinity of any party

2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of partys counsel
5. Employee of partys counsel
6. Anyone financially interested in the action
8. Depositions upon written interrogatories

Party desiring to take such deposition shall serve them upon every other party with a notice
stating the name and address of the person who is to answer them and the name and descriptive
title of the officer before whom the deposition is to be taken;

Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter

Re-direct interrogatories served within 5 days

Re-cross interrogatories served within 3 days

9. Effects of errors and irregularities in the depositions

1. As to notice waived unless written objection is promptly served upon the party giving the
notice
2. As to disqualification of officer waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or could be discovered
with reasonable diligence
3. As to competency or relevancy of evidence NOT waived by failure to make them before or
during the taking of the deposition, unless ground is one which might have been obviated or
removed if presented at that time
4. As to oral exam and other particulars Errors occurring at the oral exam in the manner of
taking the deposition, in the form of questions and answers, in oath or affirmation, or in
conduct of parties, and errors of any kind which might be obviated, removed, cured if
promptly prosecuted are waived unless reasonable objection is made at the taking of the
deposition.
5. As to form of written interrogatories waived unless served in writing upon party
propounding them within the time allowed for serving succeeding cross or other
interrogatories and within 3 days after the service of the last interrogatories authorized.
6. As to manner of preparation errors as to manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed or
otherwise dealt with by the officer are waived unless a motion to suppress the deposition or
some part of it is made with reasonable promptness after such defect is, or with due
diligence might have been, ascertained.

A deposition, in keeping with its nature as a mode of discovery, should be taken before and not
during trial. IN fact, the rules on criminal practice particularly on the defense of alibi states
that when a person intends to rely on such a defense, that person must move for the taking of the
deposition of his witness within the time provided for filing a pre-trial motion.

Rule 24 Depositions Pending Action

DEPOSITIONS IN PERPETUAM REI MEMORIAM taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case or appeal.
1. 1. Depositions before action

A person desiring to perpetuate his own testimony or that of another person regarding any matter
that may be cognizable in any court of the Phils may file a verified petition in the court of the
place of the residence of any expected adverse party, which petition shall be entitled in the name
of the petitioner and shall show:

1. That petitioner expects to be a party to an action in a court of the Phils but is presently
unable to bring it or cause it to be brought;
2. The subject matter of the expected action and his interest therein;
3. The facts which he desires to establish by the proposed testimony and his reasons for
desiring to perpetuate it;
4. The names or description of the persons he expects will be the adverse parties and their
addresses so far as known;
5. The name and addresses of the persons to be examined and the substance of the testimony
which he expects to elicit from each.
1. 2. Use of deposition

If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in
evidence may be used in any action involving the same subject matter subsequent brought in
accordance with the provisions of Rule 23.

Rule 25 Interrogatories to Parties

1. Interrogatories and the answers thereto should be filed in court and served on adverse
parties, so that the answers may constitute judicial admissions.
2. Effect of failure to serve written interrogatories a party not served with such may NOT be
compelled by the adverse party to give testimony in open court or deposition pending
appeal.

Rule 26 Admission by Adverse Party

1. 1. Request for admission

A written request for the admission of the other party of the genuineness of any material or
document or request for the truth of any material and relevant matter of fact set forth in the
request may be filed and served upon the other party at any time after issues have been joined.

1. 2. Implied admission

Each of the matter requested to be admitted shall be deemed admitted within a period designated
in the request, which shall not be less than 15 days after service thereof or within such further time
as the court may allow on motion, UNLESS, party requested serves upon the party requesting a
sworn statement either specifically denying or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.

1. 3. Effect of admission

Admission is only for the purpose of the pending action and shall NOT constitute an admission for
any other person nor may it be used against him in any other proceeding.

1. 4. A party who fails to file and serve a request for admission on the adverse party of
material facts within the personal knowledge of the latter shall not be permitted to present
evidence thereon,
 Rule 27 Production or Inspection of Documents or Things
1. Any party may move for the court in which the action is pending to order any party to:
1. Produce and permit the inspection and copying or photographing of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things,
not privileged, which:
1. Constitute or contain evidence material to any matter involved in the action
AND
2. Are in his possession, custody or control.
3. 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. The order:
1. Shall specify the time, place and manner of making the inspection and taking copies
AND
2. May prescribe such terms and conditions which are just.

Rule 28 Physical and Mental Examination of Persons

1. If the mental or physical condition of a party is in controversy, the court may order him to
submit to a physical or mental examination by a physician.
2. The party examined waives any privilege he may have in that action regarding the testimony
of the person who has examined or may examine him with respect to that same mental or
physical examination by:
1. Requesting and obtaining a report of the examination so ordered OR
2. Taking the deposition of the examiner.
3.
Rule 29 Refusal to Comply with the Modes of Discovery
1. If a party/deponent refused to answer:
1. The examination may be completed on other matters
2. The examination may be adjourned
3. The proponent may apply to the court for order to compel answer

The court may then order:

1. The refusing party or his counsel to pay the expenses incurred in obtaining the order,
including the attorneys fees (if it finds the refusal to answer without substantial
justification)
2. The proponent or his counsel to pay the expenses incurred in opposing the application,
including attorneys fees (if it finds the application to be without substantial justification)

2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court,

the refusal may be considered contempt of that court.

1. If a party/officer or managing agent of a party refuses to obey an order requiring him:

a. To answer designated questions

b. To produce a thing for inspection or to permit entry upon property

1. To submit to a physical or mental examination

 The court may order:

1. That the matters regarding which the questions were asked, or the character of the land or
the thing, or the physical and mental condition of the party be taken to be established.
2. The disallowance of the disobedient partys claims
3. The prohibition of the disobedient party to present evidence
4. The striking out of the pleadings or parts thereof
5. The dismissal of the action or parts thereof
6. Rendering judgment by default against the disobedient party OR
7. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or
mental examination.

4. If a party refuses to attend or serve answers, the court may:

1. Strike out all or any part of any pleading of that party.

2. Dismiss the action or any part thereof.
3. Enter a judgment by default against that party, OR/AND
4. Order that party to pay reasonable expenses incurred, including attorneys fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorneys fees under
this Rule.

Rule 30 Trial
1. 1. Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

1. The plaintiff shall adduce evidence in support of his complaint;

2. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim,
and third-party complaint;
3. The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-
claim, and 4th party complaint;
4. The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by
them;
5. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to be prescribed by the court;
6. The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their
original case; and
7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the
court directs the parties to argue or to submit their respective memoranda or any further
pleadings.
1. 2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings
and in any case where the parties so agree in writing, the court may delegate the reception
of evidence to its clerk of court who is a member of the bar. The clerk shall have no power
to rule on objections to any question or to the admission of exhibits, which objections shall
be resolved by the court upon submission of his report and the transcripts within 10 days
from the termination of the hearing.
 Purpose
Deposition of May be used by

To contradict or impeach the

A witness Any party deponents testimony as a witness

Any party, or anyone who at

the time of taking the
deposition was an officer,
director, or managing agent
of a public or private
corporation An adverse party For any purpose

For any purpose, IF court finds that:

Of any witness, whether a
party or not
1. Witness is dead;
2. b. Witness resides at a
distance more than 100 km from
place of trial, UNLESS absence
procured by party offering the
deposition
3. c. Witness is unable to
testify because of age, sickness,
infirmity, or imprisonment;
4. d. Party offering the
deposition has been unable to
procure the attendance of the
witness by subpoena; OR
5. e. Other exceptional
circumstances make it desirable
Any party to allow deposition to be used.

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 MANNER & TO/BY WHOM

DISCOVERY TIME & PURPOSE

1) Deposition pending a) by leave of court after To any person whether a party or

action upon oral or jurisdiction obtained over the not at the instance of any party.
written interrogatories person or subject.

Purpose: to get oral or written

b) without leave after answer admissions from a witness.
have been served.
2) Deposition before a) by a verified petition in the
action court of the place of residence of
any expected adverse party/
3) Deposition pending By leave of court if an appeal has
appeal been taken or before taking it
before expiration period
4) Interrogatories a) by leave of court after
jurisdiction obtained over the
person or subject
b) without leave after answer
have been served
5) Request for Admission By a written request for
admission after issues have been
joined
6) Production or Upon motion to the court and
inspection of documents showing good cause with notice
or things to all
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.
By any person who desires to
perpetuate his own testimony or
that of another.
Purpose: future action
By appelle or appellant
Purpose: for appeal or future
proceedings
By and to any party desiring to
elicit material and relevant
facts
Purpose: to elicit material and
relevant facts
By any party filed and served
upon adverse party
Purpose: for admission of:
a) Genuineness of any material
documents
b) Truth of material facts
By and to any party for
Purposes:
a) Produce, inspect and copy
documents, objects or things not
privilege and material evidence
to a case
b) Entry and inspection of
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:

1. to narrow and clarify basic issues between the parties,

2. as a device for ascertaining the facts relative to those issues
3. 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