SECTION 8. This Decree shall take effect immediately
XVII. Pre-Trial (Rule 18) When conducted
2. shall be read to or by him,
Orders for the protection of parties and deponents.
After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order
a) that the deposition shall not be taken, or
b) that it may be taken only at some designated place other than that stated in the notice, or
c) that it may be taken only on written interrogatories, or
d) that certain matters shall not be inquired into, or e) that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or
f) that after being sealed the deposition shall be opened only by order of the court, or
g) that secret processes, developments, or research need not be disclosed, or
h) that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;
i) or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (Sec. 16, Rule 23)
Record of examination; oath; objections.
The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness.
The testimony shall be taken stenographically unless the parties agree otherwise.
All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the objections. 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. (Sec. 17, Rule 23)
Motion to terminate or limit examination.
At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that
a. the examination is being conducted in bad faith or b. in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party,
the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending.
Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. (Sec.
18, Rule 23)
Submission to witness; changes; signing.
When the testimony is fully transcribed, the deposition
1. shall be submitted to the witness for examination and
2. shall be read to or by him,
UNLESS such examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.
The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.
If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (Sec. 19, Rule 23)
Certification and filing by officer.
The officer shall 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 and marked
"Deposition of (here insert the name of witness)" and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing.
(Sec. 20, Rule 23)
Notice of filing.
The officer taking the deposition shall give prompt notice of its filing to all the parties. (Sec. 21, Rule 23)
Furnishing copies.
Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (Sec. 22, Rule 23)
Failure to attend of party giving notice.
If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to
pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney's fees. (Sec. 23, Rule 23)
Failure of party giving notice to serve subpoena.
If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney's fees. (Sec. 24, Rule 23)
Deposition upon written interrogatories; service of notice and of interrogatories.
A party desiring to take the deposition of any person upon written interrogatories 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 or descriptive title and address of the officer before whom the deposition is to be taken.
Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition.
Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross- 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. (Sec. 25, Rule 23)
Officers to take responses and prepare record.
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, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule,
a. to take the testimony of the witness in response to the interrogatories and
b. to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (Sec. 26, Rule 23)
Notice of filing and furnishing copies.
When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (Sec. 27, Rule 23)
Orders for the protection of parties and deponents.
After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (Sec. 28, Rule 23)
Effects of errors and irregularities in depositions.
(a) As to notice.
All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
(b) As to disqualification of officer.
Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is 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.
(c) As to competency or relevancy of evidence.
Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(d) As to oral examination and other particulars.
Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition.
(e) As to form of written interrogatories.
Objections to the form of written interrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized.
(f) As to manner of preparation.
Errors and irregularities in the 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 under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
Regalado Notes:
What are the kinds of depositions?
As to the form of deposition, there is 1. depositions on oral examination and 2. depositions upon written interrogatories.
As to the purpose of the deposition, there is 1. deposition de bene esse
- those taken for purposes of a pending action) and 2. depositions in perpetuam rei memoriam
- those taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal)
Is leave of court necessary to take a deposition?
It depends. Section 1, Rule 23 provides that a deposition may be resorted to after jurisdiction has been obtained over ANY defendant, NOT ALL defendants.
Leave of court is NOT necessary to take a deposition after an answer to the complaint has been filed.
But such leave is required where NO answer has yet been filed (even if jurisdiction has been
obtained over any defendant), since before the filing of the answer, the disputed facts are not clear.
Before service of such answer, leave of court may be granted but only in exception or unusual situations.
(Republic v. Sandiganbayan, 30 May 2001)
Are depositions substitutes for testimony in open court?
Generally, depositions are not meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must, as a rule be presented for oral examination in open court at the trial.
Any deposition offered to prove the facts therein at the trial of the case, in lieu of actual testimony of the deponent in court, may be opposed and excluded for being HEARSAY, except in those specific instances authorized by the Rile under particular conditions and for certain limited purposes.
(Dasmarinas Garments, Inc., v. Reyes, 24 August 1993)
Does the introduction of the deposition bind the party who introduces it?
As a general rule, yes, the introduction of the deposition binds the part who introduces it, since he thereby makes the deponent his witness.
EXCEPT,
a. if it is introduced to impeach or contradict the witness.
b. if it is the deposition of the opposing party.
Differentiate a commission and letters rogatory.
Commission Letters Rogatory.
Addressed
to who? Any authority in a foreign country authorized
therein to take down depositions.
A judicial
authority in the foreign country.
Rules that
govern? Subject to the rules laid down by the COURT ISSUING THE COMMISSION
Subject to the rules laid down by such FOREIGN JUDICIAL
AUTHORITY When are letters rogatory resorted to?
Letters rogatory are resorted to when there is a difficulty or impossibility of obtaining the deposition by commission.
Letters rogatory may be applied for and issued only AFTER a commission has been returned unexecuted. (Dasmarinas Garments, Inc. v. Reyes)
Bautista Notes:
What are depositions and what is their importance?
The deposition is perhaps the most thorough and comprehensive mode of discovery. Deposition-taking is a trial like examination of a witness, called the deponent, before a deposition officer who
presides over the proceeding but with limited authority to rule on the admissibility of evidence.
The deposition may or may not be introduced in court as evidence since it may have been resorted to for purely discovery purposes. The deposition may be taken pending action or even before any action is filed in court or pending appeal.
Why are depositions taken?
Deposition are taken to preserve testimony – to avoid flip-flopping. Counsel should try to take the deposition right away when the impressions are still fresh.
What are the kinds of written interrogatories?
1. Direct
2. Cross. (10 days from notice of interrogatories) 3. Re-direct. (5 days from notice of cross) 4. Re-cross. (3 days from notice of re-direct)
Parties may take the deposition of ANY PERSON.
What is the difference if the deponent is a party to the action or a non-party?
The difference lies in their use.
If the deposition is that of a PARTY to the action, the deposition may be used for any purpose.
Any purpose means to use as substantive evidence – to prove the truth. For example, the deposition of Atong Ang can show that his cook makes P2,000.
If the deposition is that of a NON PARTY, the deposition may be used for impeachment purposes.
For example, it may be used to prove a prior inconsistent statement.
However, under Sec. 4(c), Rule 23, the deposition of a NON-PARTY may be used for both impeachment or evidentiary purposes if it falls under any of the 5 circumstances.
Hearsay is an out-of-court statement offered for the truth of the matter asserted. Do depositions fall under the hearsay rule?
Depositions are exceptions to the hearsay rule. Depositions are really hearsay in the cases enumerated in Sec. 4(c), Rule 23. But this is balanced by oath taken and the cross examination.
Can the deponent officer rule on the objections to the deposition?
The person before whom the deposition is taken cannot rule on the objections. However, these objection must be made right away or else they are waived.
A deponent refuses to answer a question propounded upon oral examination. What can the party proposing the question do?
The proponent has two options:
a. STOP the examination, or
b. COMPLETE the examination on other matters.
In either case, the proponent may then take the necessary steps to secure an order from the court compelling the deponent to answer.
Suppose the deponent, in the abovementioned example, persists and still refuses to answer the question even after a court order, what can be done?
The court may make such orders as are just, and among others, the following:
1. an order that matters regarding which the questions were asked shall be taken to be established.
2. an order refusing to allow the disobedient party to support/oppose designated claims/defenses.
3. an order striking out pleadings/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.
4. an order directing the arrest of the party.
Why is there a need to ask for leave of court to take depositions before an answer is filed?
So that the court can give limiting orders to protect the deponent as in Sections 16 and 18 of Rule 23.
When is the only instance where one always needs leave of court before taking depositions?
Where the deponent is in jail.
Can you take the deposition of a person who resides within 100 kilometers from the place of the trial?
What is the 100 km limit for?
Yes, you can take such deposition. The 100 km limit modifies the USE of the deposition but NOT the right to take a deposition. If the deponent resides beyond the 100 km limit, his deposition can be used as a substantive evidence in court as an exception to the hearsay rule.
Do you make the deponent your witness by taking his deposition? Is determining whether the deponent is you witness or not actually important?
No, the deponent does not automatically become your witness by merely taking his deposition.
This is significant because when the deponent is not your witness, the four kinds of impeaching evidence (contradictory evidence, prior inconsistent statements, reputation evidence and prior conviction) can be used against him.
If the deponent is you witness, reputation evidence is not allowed.
Avena Notes ( 22 Jan 05)
Can Philippine courts subpoena anybody outside the Philippines?
Generally, they cannot, unless the subpoena is for deposition under Rule 23, Section 4.
What is the right to subpoena?
It is the right to get evidence from the person, whether testimonial or documentary.
In a case in QC RTC, A sues B. But B is in LA. A applies for a subpoena in LA. Is the subpoena valid?
No. Subpoena should be issued by QC RTC.
The LA court does not issue the subpoena.
Can the MTC issue a subpoena, even if it is a lower court?
Yes.
The subpoena issued by a court is applicable only within the jurisdiction of the issuing court. True or False.
True. The power of Philippine process will not go beyond Philippine soil. Subpoena and other processes will not work outside of the Philippines.
Who can take depositions in a foreign country?
1. ambassador, consul
2. commission or letters rogatory
3. person stipulated by writing, who is authorized to administer an oath
What is the difference between a commission and letters rogatory?
A commission is addressed to a person in the foreign country appointed by the court and the
A commission is addressed to a person in the foreign country appointed by the court and the