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Deposition is one of the modes of discovery available to the parties to

a case as a means of informing themselves of all the relevant facts.


Generally, they are not meant to be a substitute for the actual testimony in
open court of a party or witness, on the ground that it is hearsay since the
party against whom it is offered has no opportunity to cross-examine the
deponent at the time his testimony is offered at the trial or hearing. But
there are also instances when depositions may be used without the
deponent being called to the witness stand. This case of a corporation
organized and existing under US Laws (BII) is an example.
On July 12, 2001, BII with main office in San Francisco USA filed a
complaint for a sum of money against Gerry, a local businessman engaged
in the trading of seafood. The action was only to enforce its rights by virtue
of an isolated transaction with Gerry in June 1997 wherein the latter
allegedly received from it $150,335.75 originally meant partly as a loan and
partly for investment in two corporations (SNC and SBC) engaged in
seafood business, but subsequently treated as Gerrys personal loan since
Gerry did not allegedly transfer to BII any single share in the companies.
In his answer, Gerry admitted having received only $141,994.71 with
instruction to deduct his commission of $23,748.00 and use the rest to

purchase 70% of SNC. But he said that he never agreed to treat the
amount received as his own personal loan, thereby raising the sole issue of
the existence of an oral contract of loan.
Before the scheduled presentation of its evidence, BII filed a motion
to authorize deposition taking through written interrogatories alleging that
all of its witnesses are Americans who reside or hold office in the US; that
one witness is already of advanced age and travel to the Philippines may
be dangerous or difficult in the aftermath of the September 11, 2002
terrorist attack and that written interrogatories are ideal in this case since
the factual issues are already very few besides saving precious time and
undue delay.
Gerry however opposed the motion. He claimed that the right to take
depositions upon written interrogatories in lieu of oral testimony in open
court would result in grave injustice to him as BII, a non-resident foreign
corporation, is seeking to establish the existence of an oral contract by
having all its witnesses, all of whom are foreigners to testify through
deposition upon written interrogatories, thus depriving the RTC from testing
the credibility of the witnesses and curtailing his right to cross-examine

them as he would be limited to written cross interrogatories instead of


spontaneous cross examination in open court. Was Gerry correct?
No. Section 1, Rule 23 of the Rules of Court clearly provides that the
testimony of any person may be taken by deposition upon oral examination
or written interrogatories at the instance of any party. They are allowed as a
departure from the accepted and usual judicial proceeding of examining
witnesses in open court where their demeanor could be observed by the
trial judge; and the procedure is not on that account rendered illegal nor is
the deposition thereby taken, inadmissible.
Such deposition may be used by any party for any purpose if the
court finds (1) that the witness is dead; or (2) that the witness is out of the
province or at greater distance than 100 kilometers from the place of trial
and hearing, or is out of the Philippines, unless it appears that his absence
was procured by the party offering the deposition; or (3) that the witness is
unable to attend to testify because of age, sickness or infirmity or
imprisonment; or (4) that the party offering the deposition has been unable
to procure the attendance of the witness by subpoena; or (5) that such
exceptional circumstances exist allowing the use of the deposition as to
make it desirable in the interest of justice and with due regard to the

importance of presenting the testimony of witnesses orally in open court


(Section 4, Rule 23, Rules of Court).
The situation of BII is one of those provided in Section 4 for the
admissibility of the deposition; that the witnesses are out of the Philippines
unless their absence is procured by the party offering the deposition.
Deposition discovery rules are to be accorded a broad and liberal treatment
and should not be unduly restricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is in good faith and
within the bounds of law. There is nothing in the rules limiting the use of
depositions in case of oral contract as alleged by Gerry.
In any event, the admissibility of the deposition does not preclude the
determination of its probative value at the appropriate time. The
admissibility of evidence should not be equated with weight of evidence.
The admissibility of evidence depends on its relevance and competence,
while the weight of evidence pertains to evidence already admitted and its
tendency to convince and persuade (San Luis vs. Rojas etc. G.R. 159127,
March 3, 2008).

Read more: http://www.philstar.com/opinion/54995/modediscovery#ixzz3U6tMjmgo


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