Rule 23 - Depositions Pending Action

1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action
Rule 23
DEPOSITIONS PENDING ACTION
A civil case is not a case of technicalities. The rules do not want surprises in civil
cases. You lay your cards on the table. You do not keep your opponent searching in the
dark and that principle is manifested in so many rules.
Example, when a defendant resorts to a specific denial, he is obliged not only to deny
the allegations in the complaint but also the facts that are denied. It is not fair to state that
my version is false, without stating your version. And if you do not make specific denial,
there is a general denial, an implied admission.
You cannot also deliberately confuse the defendant by making ambiguous ultimate
facts in the complaint to confuse him. He has the right to clarify the allegation by motion
for bill of particulars.
There is also the rule that objections or defenses not pleaded in the motion to dismiss
or in an answer are generally waived. So, if you do not invoke the defense because you
want to surprise the plaintiff, you will be the one who will be surprised because the courts
will not allow you. There is no such thing as surprise defense because under Rule 9,
defenses not raised are deemed waived. These provisions of the rules indicate the
principle: LAY YOUR CARDS ON THE TABLE.
BUT there is still an element of surprise whether you like it or not because I’m
obliged to state my cause of action or defense but I’m not obliged to state the facts
supporting that defense because the rules even say, evidentiary matters should not be
alleged in the pleading but is only proved in the trial.
A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that
sense there is still an element of surprise – you do not know my evidence until the trial or
pre-trial.
Q: But if you want to avoid any surprise, is there a way of knowing then?
A: YES. The correct remedy is to apply the modes of discovery.
Meaning of discovery
In general, a discovery is a device employed by a party to obtain information about

relevant matters on the case from the adverse party in preparation for the trial. (Riano
2007, p. 310)
As contemplated in the Rules, the device may be used by all the parties to the case.
Purpose of discovery
The modes of discovery are designed to serve as an additional device aside from a
pre-trial, to narrow and clarify the basic issues between the parties, to ascertain the facts
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Ateneo de Davao University College of Law
relative to the issues and to enable the parties to obtain the fullest possible knowledge of
the issues and facts before civil trials and thus prevent the said trials to be carried on in
the dark. It is intended to make certain that all issues necessary to the disposition of a
case are properly raised. Thus, to obviate the element of surprise, parties are expected to
disclose at a pre-trial conference all issues of law and fact and that they intend to raise at
the trial, except such as may involve privileged or impeaching matters (Tinio v. Manzano
307 SCRA 460; Mercader v. DBP 332 SCRA 82).
Note: Modes of discovery are intended to be cumulative and not alternative nor
mutually exclusive.
Discovery is not mandatory but failure to avail carries sanctions in Rules 25 and 26.
BAR QUESTION: How do you distinguish Bill of Particulars from Modes of

Discovery?
A: Bill of Particulars is Rule 12, when you compel the party to clarify vague
statements of ultimate facts, but it is not an instrument to compel the other party to reveal
evidentiary facts. The Modes of Discovery are intended to compel the other party to
reveal his evidence and evidentiary facts.
Duty of the court in relation to the modes of discovery
The modes of discovery are considered by the SC as vital components of case

management in pre-trial courts. Hence, aside from preparing the summons within one (1)
day from the receipt of the complaint, the court is required to issue an order requiring the
parties to avail of interrogatories to parties under Rule 25 and request for admission by
adverse party under Rule 26 or at their discretion make use of depositions under Rule 23
or other measures under Rules 27 and 28 within five (5) days from the filing of the
answer. A copy of this order shall be served upon the defendant together with the
summons. A copy of the order shall also be served upon the plaintiff (A.M. No. 03-1-09-
SC, July 13, 2004).
There are actually five (5) Modes of Discovery:
1. DEPOSITIONS – (a) pending action (Rule 23) and (b) before action or pending
appeal (Rule 24);
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27);
and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)
First Mode: Rule 23: DEPOSITION PENDING ACTION
This mode is the most popular among the five. Deposition has two (2) types –
deposition pending action (Rule 23) and depositions before action or pending appeal
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(Rule 24). But actually Rule 24 is not new because that is Rule 134 (Perpetuation of
Testimony).
EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B. Now,
of course, if A and B will testify, how will they testify, that I do not know. But I want to
know exactly what they will say during the trial, including you.
Q: How do I apply Rule 23?

A: I will take your deposition. Meaning, I will take your testimony in advance by
compelling you to appear before someone whom we call a Deposition Officer – the
judge, or any judge, or even a notary public - who can administer oath. And then before
him, I will be asking now questions and you have to answer under oath. Your answers
will then be recorded including that of your witnesses.
Therefore, during the trial, when you or your witnesses will testify, there is no more
surprise testimony that you can give me because I already heard you in advance. You
cannot contradict your answer. This is what you call deposition taking.
Now, if I can do that to you, you can also do that to me. The defendant can also use
that against the plaintiff.
Q: How do you define deposition?

A: DEPOSITION is the written testimony of a witness given in the course of a judicial
proceeding, in advance of the trial or hearing, upon oral examination or in response to
written interrogatories, and where an opportunity is given for cross-examination. (16 Am.
Jur. 699)
The Rules of Court and jurisprudence do not restrict a deposition to the sole function
of being a mode of discovery before trial. Under certain conditiocertain for certain
limited purposes, it may be taken even after trial has commenced and may be used
without the deponent being actually called to the witness stand.
Depositions may be used for the trial or for the hearing of a motion or an interlocutory
proceeding as provided in Section 4, Rule 23. (Jonathan Landoil International Co., Inc.
vs. Sps Mangudadatu, GR No. 155010, August 16, 2004).
When I take the deposition of somebody, my opponent has the right to cross-examine
the same witness. So practically, it’s a dress rehearsal for the trial when I ask questions,
my opponent can ask questions also. The questioning of the witnesses is done the way it
is done during the trial. The witness of the opponent has to undergo the same procedure
in the rules of evidence. That is Section 3:
Sec. 3. Examination and cross-examination.

Examination and cross-examination of deponents may
proceed as permitted at the trial under sections 3
to 18 of Rule 132. (3a, R24)
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Q: Distinguish a deposition from an affidavit.

A: Affidavit is also a sworn statement of a witness but the statement is taken ex-parte
(no cross-examination). But in deposition there is cross-examination, there is a
confrontation as if he is already testifying in court.
Affidavits are not admissible in evidence except in cases governed by the Rule
on Summary Procedure or in ordinary cases subject to cross-examination.
Depositions are intended as a means to compel disclosure of facts resting in

the knowledge of a party or other person, which are relevant in a
suit/proceeding.
Classification of Depositions
1. Depositions on oral examination and depisitions upon written

interrogatories;
2. depositions de bene esse - those taken for purposes of a pending action (R
23); and
3. Depositions in perpetual rei memoriam - those taken to perpetuate evidence
for purposes of an anticipated action or further proceedings in a case on appeal
(R 24)
Section 1. Depositions pending action, when may

be taken. By leave of court after jurisdiction has
been obtained over any defendant or over property
which is the subject of the action, or without such
leave after an answer has been served, the
testimony of any person, whether a party or not,
may be taken, at the instance of any party, by
deposition upon oral examination or written
interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in
Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a
person confined in prison may be taken only by
leave of court on such terms as the court
prescribes. (1a, R24)
Deposition-taking under Section 1 presupposes that there is a pending civil case, thus,
the title is depositions pending action. There is an existing civil case and I would like to
take the deposition of certain people.
Q: When there is a pending action, is it necessary that leave of court or permission

should be sought for deposition to be allowed?
A: The rule is, it DEPENDS if there is already an answer or no answer:
A. With leave of court

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1. after jurisdiction has been obtained over any defendant or over the property which
is the subject of the action but before an answer has been filed.
Reason: Leave of court is necessary because the issues are not yet joined and the
disputed facts are not yet clear.
2. Deposition of a person confined in prison.
B. Without leave of Court
After answer and deponent is not confined in prison.
In one case, petitioners contend that they have not yet served an answer to
respondents because the answers that they have filed were made ex abundanti
cautela. In other words, they do not consider the answers they filed in court and
served on respondents as answers contemplated under the Rules of Court on the
ground that same were filed ex abundanti cautela. They contend that since they
had not yet filed an answer, any deposition must be made with leave of court.
The court found the contention untenable and ruled:
“We find petitioners’ contention to be untenable. Ex abundanti cautela means

“out of abundant caution” or “to be on the safe side”. An answer ex abundanti
cautela does not make their answers less an answer. A cursory look at the
answers filed by petitioners shows that they contain their respective defenses.
An answer is a pleading in which a defending party sets forth his defenses and
the failure to file one within the time allowed therefore may cause a defending
party to be declared in default. Thus, petitioners, knowing fully well the effect
of the non-filing of an answer, filed their answers despite the pendency of their
appeal with the Court of Appeals on the denial of their motion to dismiss.”
(Rosete v. Lim GR No. 136051, June 8, 2006)
Q: Whose deposition can you take?

A: The law says, you can take the testimony of any person whether a party or not at
the instance of any party.
EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his
witnesses? Yes, including Mr. A’s deposition. I can also take the deposition of my own
witnesses, even my own deposition. At least, before I die, nakuha na yung testimony ko.
So I can take the deposition of anybody in the world. That’s why the law says, “the
testimony of any person whether a party or not may be taken at the instance of any
party.” And of course, Mr. A can also do what I was allowed to do.
Q: When you take deposition of this person, what do you call him?
A: The accurate term is that, he is called ‘DEPONENT.’ Some people call him
witness.
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Q: What are the modes of deposition taking?

A: Under the law, there are two (2) recognized modes:
1.) Deposition upon oral examination; and
2.) Deposition upon written interrogatories
The deposition upon oral examination is more popular because it is just like how you
question a witness in court: Questions and answers, then it is recorded. And then later on,
the other counsel would ask his questions and answer. Deposition upon written
interrogatories should not be confused with Rule 25 because the former is governed by
Rule 23. Although they use the same words.
Now, as we shall see, there must be a deposition officer and under the law, even a
notary public is qualified to act as deposition officer because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections
12,13 and 15.
Q: Suppose I would like to take the deposition of Ms. A before a notary public whose
office is located along San Pedro Street. How can I force Ms. A to go to the office of
that notary public? Can I force her?
A: If Ms. A is in court, the court can force you by subpoena. But I can also compel
Ms. A to attend this questioning for the purpose of deposition. Section 1 says, “the
attendance of witnesses may be compelled by the use of a subpoena as provided in Rule
21.”
Rule 21, Section 1. Subpoena and subpoena duces

tecum. Subpoena is a process directed to a person
requiring him to attend and to testify at the
hearing or the trial of an action, or at any
investigation conducted by competent authority, or
for the taking of his deposition. It may also
require him to bring with him any books, documents,
or other things under his control, in which case it
is called a subpoena duces tecum. (1a, R23)
PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your
witness to come here in Davao to help you and you are even willing to shoulder her
transportation, but she refuses.
Q: Can you ask the court in Davao to issue a subpoena compelling such witness to
come here and testify even if the distance is more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a
deposition officer and take her deposition.
Q: How can I compel her to go to the office of the notary public in Cebu for the
purpose of the deposition?
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A: You can get a subpoena from the Cebu court and that is allowed under Rule 21,
Section 2 [b] and under Rule 21, Section 5:
Rule 21, Sec. 2. By whom issued. The subpoena may

be issued by:
x x x x x
b) the court of the place where the deposition is
to be taken;
x x x x x
Sec. 5. Subpoena for depositions. Proof of

service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the
issuance of subpoenas for the persons named in said
notice by the clerk of the court of the place in
which the deposition is to be taken. The clerk
shall not, however, issue a subpoena duces tecum to
any such person without an order of the court. (5a,
R23)
In other words, I will send the notice to my opponent, “I am going to take the
deposition of my witness in Cebu.” And based on that notice, I will go to Cebu and ask
the clerk of court of the RTC of Cebu to issue a subpoena based on the notice to take
deposition on the Davao case. And under the Rules, the Cebu RTC has to issue a
subpoena even if the case is not pending in that (Cebu) court because this is only
deposition. Kaya nga under Rule 21, Section 2 [b], a subpoena may be issued by the
court of the place where the deposition is to be taken.
There was an instance before, a Manila lawyer who wanted to take the deposition of
somebody in Davao. Then he applied for a subpoena to require the deponent to appear
before a notary public here. At least, tama siya doon. Ang mistake niya, he applied for a
subpoena in the Manila court where the case is pending and the judge there, maybe he did
not read Rule 21, issued a subpoena addressed to the person in Davao to appear before
the notary public in Davao and the witness did not appear. So the lawyer realized na mali
siya. So he had to do it all over again in Davao, not in Manila. The subpoena has no
more effect beyond 100 kilometers. It should be filed not where the case is pending but at
the court of the place where the deposition is to be taken. In other words, the error was
corrected, but can you imagine the waste of time and effort.
Generally, depositions are taken at the start of the case before the trial. But in the case
of
DASMARIÑAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]
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ISSUE: Whether or not deposition taking is only allowed before the action
comes to trial. Can you still resort to deposition under Rule 23 when the trial is
already ongoing or it is only at the pre-trial?
HELD: “Depositions may be taken at any time after the institution of any
action, whenever necessary or convenient. There is no rule that limits
deposition-taking only to the period of pre-trial or before it; no prohibition
against the taking of depositions after pre-trial. Indeed, the law authorizes the
taking of depositions of witnesses before or after an appeal is taken from the
judgment of a Regional Trial Court to perpetuate their testimony for use in the
event of further proceedings in the said court and EVEN during the process of
execution of a final and executory judgment.”
Meaning, deposition taking is even allowed as part of the execution where the trial is
already terminated. This is called with another name in Rule 39 on execution, satisfaction
or effects of judgments. (c.f. Rule 39, Sections 36, 37 and 38)
What can be the subject matter of deposition taking? Section 2:
Sec. 2. Scope of examination. Unless otherwise

ordered by the court as provided by section 16 or
18 of this Rule, the deponent may be examined
regarding any matter, not privileged, which is
relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, 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 a 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.
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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 16 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.
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Scope of examination in deposition
1. matter which is relevant to the subject of the pending action;

2. not privileged; and
3. not restricted by a protective order (Secs. 16 and 18)
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 a
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
Where the witness is available to testify and the situation is not one of those excepted
under Section 4, his deposition is inadmissible in evidence and he should be made to
testify.
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
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and participate. So if a 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.
Summary of use:
1. Deponent is any person - - - can be used by any party to contradict or impeach the
testimony of said deponent;
2. deponent is a party or any one who 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 - - - can be used by any party for any purpose;
3. deponent is a witness, whether or not a party - - - can be used by any party for any
purpose under any of the following 5 instances:
a. the witness is dead;
b. the witness resides more than 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;
c. the witness is unable to testify because of age, sickness, infirmity, or imprisonment;
d. the party offering the deposition has been unable to procure the attendance of the
witness by subpoena; or
e. upon application and notice, that such exceptional circumstances exist as to make it
desirable in the interest of justice.
Note: Certiorari will not lie against an order admitting or rejecting a deposition in
evidence. The remedy is an appeal from the judgment.
The reason is because it is merely an error of law not grave abuse of discretion.
(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
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will no longer present him but instead I will present as evidence his deposition to take the
place of his oral testimony in court.
Q: Is that allowed? Can a deposition substitute for his oral testimony?

A: NO, a deposition can only be used for the purpose of contradicting or impeaching
the testimony of deponent as a witness. It does not exempt the witness from testifying in
court. It is only a means of knowing what the witness will testify.
When you take the deposition of a witness, you are already assured that this will be
his story. If I asked you the same question in court, naturally he will have the same
answer. So there are no more surprises. If I am asking a question identical to my
deposition, I expect the answer to be identical during the trial.
Q: Suppose the witness during the trial will reverse his testimony. His testimony in the
deposition is favorable to me but during the trial, pabor naman sa kalaban.
A: I can now use his deposition to destroy him. I will impeach him by showing that
the witness is not reliable. To IMPEACH the testimony of a witness is to destroy his
credibility. I will offer in evidence the deposition for impeachment purposes. This is
known as PRIOR INCONSISTENT STATEMENT under the rules on evidence. They
cannot change story during the trial because I can impeach them.
Therefore, a deposition is not a substitute for the testimony of the witness in court.
You still have to present him in court. He has to testify all over again but at least you
already have a guideline. So, if he deviates from the deposition, you can impeach him
using the deposition taken under oath earlier.
(b) The deposition of a party or of any one who

at the time of taking the deposition was an
officer, director, or managing agent of a public or
private corporation, partnership, or association
which is a party may be used by an adverse party
for any purpose;
Q: What is the difference between paragraphs [a] and [b]?

A: The following:
1.) In paragraph [a], it is the deposition of a WITNESS and not a party, while
In paragraph [b], it is the deposition of the PARTY himself.
2.) In paragraph [a], the deposition of witness can be used only for contradicting or
impeaching the testimony of deponent as a witness, while
In paragraph [b], the deposition of a party can be used for any purpose. So it is
broader than the first.
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ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party)

and I have already a record of his testimony. During the trial if he testifies contrary to the
deposition, I could use it to impeach him. But suppose the deposition is in my favor, I
could present the deposition as an admission in my favor. I could use it as evidence
against my opponent. Therefore, I can use it as evidence or I can use it as a tool to
impeach or contradict the other party.
In other words, the deposition of a mere WITNESS is for strict purpose (for
impeachment only) and the deposition of an ADVERSE PARTY is for any purposes
because I can use it to impeach or I can use it as evidence. And if a witness say something
in my favor, I cannot use it as evidence. I have to ask the witness to repeat his statement
in court. But if it is a party, I can use it as evidence already under the rule on admission of
evidence that the act or declaration of a PARTY maybe used as evidence against him
(Rule 130, Section 26). So, that is the difference between deposition of a party and a
witness.
Q: Suppose the adverse party is a corporation

A: Under paragraph [b], you can take the deposition of any of its officers, directors, or
managing agent of the corporation.
(c) The deposition of a witness, whether or not a

party, may be used by any party for any purpose if
the court finds: (1) that the witness is dead; or
(2) that the witness resides at a distance 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 (3) that the
witness is unable to attend or testify because of
age, sickness, 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) upon application and notice, that
such exceptional circumstances exist 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, to
allow the deposition to be used; and
Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a

deposition of a witness for contradicting or impeaching his testimony. It is only in
paragraph [b] which applies the use of deposition for any purpose but it refers to the
deposition of the adverse party.
Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose.
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DEATH
Q: I will take the deposition of Juan who is my witness. During the trial, my next
witness is Juan. Do I have to present Juan or only his testimony in the deposition as
evidence?
A: I have to present my witness Juan because under paragraph [a], the deposition is
only good for impeachment purposes but not a replacement for his oral testimony.
Q: Suppose, when I’m about to present Juan during the trial, a day before that he died.
So, I have no more witness. Can I now present his testimony in the deposition as
evidence?
A: YES. Under the law, his deposition will take the place of his oral testimony
because he is dead. However, if he is alive, apply paragraph [a] – you cannot substitute
his deposition to his oral testimony.
Now, it is true that when you take the deposition of your own witness, you are
supplying the other party a means to impeach the testimony of your witness. But if you
look at paragraph [c], it is also important to take the deposition of your witnesses. The
purpose is just in case your witness will die before he can testify in court. At least, kung
nakuha mo na ang deposition niya earlier, masuwerte ka.
THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE HUNDRED (100)

KILOMETERS FROM THE PLACE OF TRIAL OR HEARING, OR IS OUT OF THE
PHILIPPINES
EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel
him to come to Davao and testify in a case because of the 100-kilometer rule. The
remedy is to go to Cebu and take his deposition there. When the case in Davao is called,
I will tell the court that my next witness is from Cebu and the distance from Davao is
more than 100 kilometers. So I have no choice but to take his deposition there. In this
case, I can offer as evidence his deposition to take the place of his oral testimony. And
that is allowed as exception to paragraph [a].
And if your witness is leaving for abroad, you might as well take the deposition before
it is too late, or you might end up without any witness. That is the advantage of paragraph
[c].
WITNESS NOT FOUND
So, if I am unable to procure the attendance of my witness by subpoena means that the
witness can no longer be found. His whereabouts is already unknown but I was able to
take his deposition earlier.
(d) If only part of a deposition is offered in

evidence by a party, the adverse party may require
him to introduce all of it which is relevant to the
Lakas Atenista 14
part introduced, and any party may introduce any

other parts.
ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part
is in my favor but when he was cross-examined by the other party, he clarified his
answers and turned out that his original answers were not really in my favor.
So there are two parts of the deposition: PART ONE, in the general questions, the
answers seem to be in my favor; PART TWO, when the questions are specific, it turned
out that it was not in my favor. So if I am the lawyer what I will offer is the part one as
my evidence because it is in favor of my client. The other party will present the other
part.
In evidence, the party is not obliged to offer in evidence documents which are against
his cause. It is now the job of the other lawyer to offer the other part thereof (c.f. Section
17, Rule 132). So if this is so, the picture created will only be half of the whole picture.
Q: Is this unethical as it is suppressing the truth?

A: No, I am not suppressing the truth. Lawyers are not allowed to lie. Nowhere in the
Legal Ethics is it being espoused that lawyers are told to lie. In fact, a lawyer must be
honest and true for the administration of justice. It is the lawyer of the other side who has
the absolute right to complete the picture by offering the other half. I am not under
obligation to help the other side. A lawyer has no obligation to present everything. He is
only under the obligation to support the interest of my client. What is unethical is when
you present something against the interest of your client.
Q: Is it not twisting the truth?

A: NO. Twisting the truth is changing the facts. I am not changing the facts of the
story. I am only presenting one side of the story. But definitely the other party is not
precluded from testifying to present the other half of the story. If the other party fails to
present the other half of the story, that is their problem. Do not blame me.
Sec. 5. Effect of substitution of parties.

Substitution of parties does not affect the right
to use depositions previously taken; and, when an
action has been dismissed and another action
involving the same subject is afterward brought
between the same parties or their representatives
or successors in interest, all depositions lawfully
taken and duly filed in the former action may be
used in the latter as if originally taken therefor.
(5, R24)
Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the
parties died and there was substitution. Is there a need of taking depositions again? Will
the deposition already taken be also applicable to the same case although the parties are
now different?
Lakas Atenista 15
A: YES. The substitution of parties does not affect the right to use depositions
previously taken.
Q: Jolina files a case against Maya and depositions were taken. Later, the case is
dismissed without prejudice. Jolina re-filed the case. Is it necessary for depositions to be
taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still apply to the new
case. There is no need of repeating the whole process.
Sec. 6. Objections to admissibility. Subject to

the provisions of section 29 of this Rule,
objection may be made at the trial or hearing to
receiving in evidence any deposition or part
thereof for any reason which would require the
exclusion of the evidence if the witness were then
present and testifying. (6, R24)
Q: Can you object to the evidence which is being offered during the deposition
taking?
A: YES, however the deposition officer cannot rule but the objection is recorded. It is
the judge who will rule on the objection later during the trial.
Sec. 7. Effect of taking depositions. A party

shall not be deemed to make a person his own
witness for any purpose by taking his deposition.
(7, R24)
We know that deposition taking is a fishing expedition. If after taking a witness

deposition, he knows nothing, then he is useless as a witness to me. You are not my
witness.
If after taking your deposition, it turns out that everything you say is against me, am I
bound by your testimony? NO. In fact, it is the other party who will use you as his
witness. But definitely, you are not my witness.
General rule:
A party shall not be deemed to make a person his own witness for any purpose by
taking his deposition because depositions are taken for discovery and not for use as
evidence.
Exception:
If a party offers the deposition in evidence, then he is deemed to have made the
deponent his witness (Sec. 8)
Exception to the exception
Lakas Atenista 16
Unless the deposition is that of an opposing party or the deposition is used to impeach
or contradict the deponent (sec. 8).
Sec. 8. Effect of using depositions. The

introduction in evidence of the deposition or any
part thereof for any purpose other than that of
contradicting or impeaching the deponent makes the
deponent the witness of the party introducing the
deposition, but this shall not apply to the use by
an adverse party of a deposition as described in
paragraph (b) of section 4 of this Rule. (8, R24)
Sec. 9. Rebutting deposition. At the trial or

hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him
or by any other party. (9, R24)
It is just like a witness in court. If a witness says something in court, you can always
prove that that is not true. If it is a deposition, the same thing – you can always rebut the
truth of what he said in his deposition.
BEFORE WHOM DEPOSITIONS ARE TAKEN
If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act
as deposition officer? Section 10:
Sec. 10. Persons before whom depositions may be

taken within the Philippines. Within the
Philippines, depositions may be taken before any
judge, notary public, or the person referred to in
section 14 hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these persons before whom
depositions are taken?
A: The following:
1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can
request a judge in Manila to be the deposition officer and he will not be the one to
decide. He is only the deposition officer;
2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take
note that not all lawyers are notary public. To be a notary public, you have to apply
for commission in the court of the place where you are practicing. If you are a
notary public for Davao City, you cannot be a notary public in any other place. And
Lakas Atenista 17
usually, a commission for notary public is only good for 2 years. After 2 years,
you have to re-apply.
3.) PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding taking of

depositions. If the parties so stipulate in
writing, depositions may be taken before any
person authorized to administer oaths, at any
time or place, in accordance with these Rules,
and when so taken may be used like other
depositions. (24a, R24)
So, the parties may stipulate in writing that the deposition officer may not be a
judge or a notary public. It can be other person who is authorized to administer
oath such as prosecutors, clerk of court who is a lawyer, labor arbiters, etc.
Anyway, they are also authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to act as deposition

officer? Section 11:
Sec. 11. Persons before whom depositions may be

taken in foreign countries. In a foreign state or
country, depositions may be taken (a) on notice
before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of
the Republic of the Philippines; (b) before such
person or officer as may be appointed by commission
or under letters rogatory; or (c) the person
referred to in section 14 hereof. (11a, R24)
The amendment here again is the persons referred to under Section 14.
So, a secretary of the Philippine embassy or consulate abroad is authorized to act as

deposition officer, as well as the consul general, vice-consul, although on a SC circular, if
the judge will authorize the taking of deposition abroad, because this time leave of court
is required, you course it to the Department of Foreign Affairs. The parties are not
supposed to communicate directly to the Philippine Embassy.
Q: How about in places where we do not have embassy?

A: Those with country where we do not have diplomatic relations, you have to avail of
[b]. So in this case, the person who is authorize to take the deposition may be the one
who is authorized by commission, or if not by commission, by letters rogatory.
What do you mean by commission or a letters rogatory? Section 12:
Sec. 12. Commission or letters rogatory. A

commission or letters rogatory shall be issued only
Lakas Atenista 18
when necessary or convenient, on application and

notice, and on such terms and with such direction
as are just and appropriate. Officers may be
designated in notices or commissions either by name
or descriptive title and letters rogatory may be
addressed to the appropriate judicial authority in
the foreign country. (12a, R24)
By COMMISSION, somebody other than Philippine consul… like in Taiwan, we have

Philippine Trade Department in Taiwan because of our trade relations. The court will
issue a commission to the head of the trade mission there to act as deposition officer. Or
any other person appointed by the judge by court order.
A COMMISSION may be defined as an instrument issued by a court of justice, or

other competent tribunal, to authorize a person to take depositions, or do any other act by
authority of such court or tribunal.
So, suppose I would like to take the deposition of somebody who is staying in
Afghanistan where we have no consulate but I know of a Filipino lawyer who resides
there. I will request the court that this Filipino lawyer abroad be authorized to take the
deposition of a person there. If the court agrees, it will issue what is known as a
commission.
But suppose none at all, the court will send letters rogatory addressed to the court of a
foreign country.
Q: Define letters rogatory.

A: LETTERS ROGATORY is an instrument whereby the foreign court is informed of
the pendency of the case and the name of the foreign witnesses, and is requested to cause
their depositions to be taken in due course of law, for the furtherance of justice, with an
offer on the party of the court making the request, to do the like for the other, in a similar
case. (Ballentine’s Law Dict., 2nd Ed., p. 744)
It is an instrument sent in the name and by the authority of a judge or court to another,
requesting the latter to cause to be examined, upon interrogatories filed in a case pending
before the former, a witness who is within the jurisdiction of the judge or court to whom
such letters are addressed. (Feria, 2001, p. 518)
EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in
court for the court to issue a letters rogatory. The judge will make a formal
communication to the court in Pyongyang to please take W’s deposition with the
following request: to mail back the answer and offer to return the favor. If the request is
ignored, there is nothing that we can do. But normally, they comply.
So, letters rogatory is a request to the appropriate foreign judicial authority to take the
deposition of a witness who is in their jurisdiction and please send us a copy and we
assure you in the future, if you have the same problem, we will reciprocate.
Lakas Atenista 19
That is international law. Deposition can be understood by the officer in other country
because it is internationally known. If the officer in the foreign country will not do it, we
have no choice because it is only a request.
Distinctions between commission and letters rogatory
1. A comission is issued to a non-judicial foreign officer who will directly take the
testimony while letters are issued to the appropriate judicial officer of the foreign country
who will direct somebody in said foreign country to take down testimony.
2. The applicable rulfor of procedure for commission are those of the requesting court
while for letters, are those of the foreign country requested to act;
3. Commission is resorted to if permission of the foreign country is given while the

latter is resorted to if the execution of the commission is refused in the foreign country;
4. Leave of court is necessary for commission but necessary for letters.
The SC defined again commission and letters rogatory and distinguished one from the
other in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]
ISSUE #1: Distinguish a commission from letters rogatory.

HELD: “A COMMISSION may be defined as an instrument issued by a
court of justice, or other competent tribunal, to authorize a person to take
depositions, or do any other act by authority of such court or tribunal.”
“LETTERS ROGATORY, on the other hand, may be defined as an
instrument sent in the name and by the authority of a judge or court to another,
requesting the latter to cause to be examined, upon interrogatories filed in a
cause pending before the former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed.”
“A COMMISSION is addressed to officers designated either by name or
descriptive title, while LETTERS ROGATORY are addressed to some
appropriate judicial authority in the foreign state.”
“Noteworthy in this connection is the indication in the Rules that letters
rogatory may be applied for and issued only after a commission has been
‘returned unexecuted’ as is apparent from Form 21 of the Judicial Standard
Forms appended to the (1964) Rules of Court.” So as a matter of practice, the
court should first resort to commission. You must allege that the commission
has been returned unexecuted before resorting to letters rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the commission
on the ground that the deposition-taking will take place in a foreign jurisdiction
not recognized by the Philippines in view of its one-China policy. Can a
deposition be taken in Taiwan where the Philippines has no diplomatic relations
because of the one-Chine policy?
Lakas Atenista 20
HELD: YES. What matters is that the deposition is taken before a Philippine
official acting by authority of the Philippine Department of Foreign Affairs and
in virtue of a commission duly issued by the Philippine Court.
Sec. 13. Disqualification by interest. No

deposition shall be taken before a person who is a
relative within the sixth degree of consanguinity
or affinity, or employee or counsel of any of the
parties; or who is a relative within the same
degree, or employee of such counsel; or who is
financially interested in the action. (13a, R24)
You are disqualified to act as deposition officer if you are related to any of the parties
or the lawyer. You get somebody who is not related.
Sec. 15. Deposition upon oral examination;

notice; time and place. A party desiring to take
the deposition of any person upon oral examination
shall give reasonable notice in writing to every
other party to the action. The notice shall state
the time and place for taking the deposition and
the name and address of each person to be examined,
if known, and if the name is not known, a general
description sufficient to identify him or the
particular class or group to which he belongs. On
motion of any party upon whom the notice is served,
the court may for cause shown enlarge or shorten
the time. (15, R24)
There are 2 types of deposition taking: (1) deposition upon oral examination and (2)
deposition upon written interrogatories. The former is governed by Section 15 which is
the most popular: Question-answer and everything is recorded.
Take note that before deposition is taken, there should be notice to the adverse party.
The notice shall state the time and place for taking the deposition and the name and
address of each person to be examined.
The last sentence, “On motion of any party upon whom the noticed is served, the
court may for cause shown enlarge or shorten the time.” Suppose you will send me a
notice that you are going to take the deposition of a witness from February 1 to 20
morning and afternoon. Twenty days is too much. I can go to court and complain. That
should be reduced. The court may come in and enlarge or shorten the time. The court may
also do this even if leave of court is not required.
Lakas Atenista 21
Sec. 16. 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 that
the deposition shall not be taken, or that it may
be taken only at some designated place other than
that stated in the notice, or that it may be taken
only on written interrogatories, or that certain
matters shall not be inquired into, or 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 that after being sealed the
deposition shall be opened only by order of the
court, or that secret processes, developments, or
research need not be disclosed, or that the parties
shall simultaneously file specified documents or
information enclosed in sealed envelopes to be
opened as directed by the court; or the court may
make any other order which justice requires to
protect the party or witness from annoyance,
embarrassment, or oppression. (16a, R24)
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. Deposition is purely your concern provided nobody would come here and
complain. That is one of the limitations of deposition taking.
Q: What orders may court issue for the protection of parties and deponents; when may
orders be issued; what court has power to issue the orders?
A: 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 issue the following orders:
1.) That the deposition shall not be taken;

2.) That it may be taken only at some designated place other than that stated in the
notice;
3.) That it may be taken only on written interrogatories;
4.) That certain matters shall not be inquired into;
5.) That the scope of the examination shall be held with no one present except the
parties to the action and their officers or counsel;
6.) That after being sealed the deposition shall be opened only by order of the
court;
7.) That secret processes, developments, or research need not be disclosed;
8.) That the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court;
Lakas Atenista 22
9.) The court may make any other order which justice requires to protect the party
or witness from annoyance, embarrassment, or oppression. (Section 16)
Sec. 18. 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 the
examination is being conducted in bad faith or 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. (18a, R24)
Section 16 and 18 are similar. They both talk about the power of the court to control
the deposition taking. Section 16 is about protective orders BEFORE deposition taking.
Section 18 talks about protective orders DURING the deposition taking where the court
may stop or limit the deposition taking.
A motion to terminate or limit examination may be filed:

1. any time during the taking of the deposition;
2. on motion or petition of any party or of the deponent; and
3. upon showing that the examination is conducted in:
a. bad faith;
b. in such manner as unreasonably to annoy, embarrass, or oppress the deponent or
party.
When the constitutinal privilege against self-incrimination is invoked by the deponent

or his counsel, the trial court may stop the examination (Isabela Sugar Co. vs. Macadaeg
GR No. L-5924, Oct. 28, 1953)
Protection Order (Section 16) and Motion to Terminate or Limit Examination

(Sectactions
Lakas Atenista 23
1. The first provides protection to the party or witness before the taking of th
deposition, while the latter provides such protection during the taking of the testimony;
2. Motion for issuance of the first is filed with the court in which the action is pending
while theloather motion or petition is filed in the court in which the action is pending or
the RTC of the place where the deposition is being taken.
Sec. 17. 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. (17, R24)
Q: How is deposition in oral examination taken?

A: It must be under oath. The testimony will be taken by the stenographer. And
objections must be recorded. Evidence objected to shall be taken subject to the
objections.
Q: Can the deposition officer make a ruling on the objection/s?

A: NO. He cannot. But the objection will be noted and the deponent must answer.
Later on, if that deposition is offered as evidence in court, the court will now rule on the
objection. If the objection is overruled, the answer as recorded remains. If the objection
is sustained, the answer as recorded is erased as if it was never answered. That is the
meaning of “evidence objected to shall be taken subject to the objections.”
So, the deposition officer cannot make a ruling on the objection. It is only the judge of
the court where the case is pending who will make the ruling on it.
Take note that answers to depositions not objected to cannot be objected to in court
during the trial, UNLESS the objection is based on a new ground which only come up
after the deposition.
Lakas Atenista 24
Sec. 19. Submission to witness; changes; signing.

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 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. (19a, R24)
So after the deposition of the deponent is taken, the deposition officer shall submit the
deposition to the deponent for examination. He may change his answers but he must state
the reason for the change. And he signs it, unless the parties by stipulation waive the
signing, or the witness is ill, or cannot be found or refuses to sign. In the latter cases, the
deposition will be signed by the deposition officer.
Sec. 20. 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. (20, R24)
Sec. 21. Notice of filing. The officer taking the

deposition shall give prompt notice of its filing
to all the parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of

reasonable charges therefor, the officer shall
Lakas Atenista 25
furnish a copy of the deposition to any party or to

the deponent. (22, R24)
Any party can ask for a copy of the deposition upon payment of reasonable charges
therefor.
Sec. 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. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the
taking of a deposition of a witness in Davao. And he came over. But the deposition did
not proceed because the party sending the notice did not show up. So he caused the other
party a lot of inconvenience. The Manila lawyer can file a motion in court to ask for
reimbursement of all his expenses in this case.
Sec. 24. 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.
(24a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the
taking of a deposition of a witness in Davao. And he came over. The party sending the
notice is also present. But this time it is the witness who is absent because the party
sending the notice forgot to have the witness subpoenaed. Again, the Manila lawyer can
file a motion in court to ask for reimbursement of all his expenses.
Sec. 25. 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
Lakas Atenista 26
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. (25, R24)
The difference between a deposition upon oral examination and written interrogatories
is that in oral examination, the questions and the answers are oral.
In deposition upon written interrogatories, the questions are prepared already in

advance and that is direct interrogatories. And then they furnish you a copy and after
receiving it, you may also, within 10 days, prepare your questions or cross-interrogatories
and you also furnish them copies of it. And based on that, they can ask further questions.
If they are now sufficient, the deposition officer shall compound the question one by one
but every question requires an answer.
Practically, there is no personal confrontation of the witness. If your witness is abroad,

it is very expensive for you to go there and conduct an oral examination. So, the practical
means is only deposition upon written interrogatories.
Sec. 26. 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, 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. (26, R24)
Sec. 27. 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. (27, R24)
Sec. 28. 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,
Lakas Atenista 27
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. (28, R24)
So the protections provided under Sections 15, 16 and 18 are also applicable in oral
examinations.
Are the mistakes in deposition taking fatal?
Sec. 29. 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
Lakas Atenista 28
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. (29a, R24)
So, if you will notice, majority of all the errors are waived if objection thereto is not
promptly made.
Lakas Atenista 29

Rule 23 - Depositions Pending Action

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Rule 23 - Depositions Pending Action

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1997 Rules on Civil Procedure Rule 23

In general, a discovery is a device employed by a party to obtain information about

BAR QUESTION: How do you distinguish Bill of Particulars from Modes of

Duty of the court in relation to the modes of discovery

The modes of discovery are considered by the SC as vital components of case

There are actually five (5) Modes of Discovery:

First Mode: Rule 23: DEPOSITION PENDING ACTION

Q: How do I apply Rule 23?

Q: How do you define deposition?

Sec. 3. Examination and cross-examination.

Q: Distinguish a deposition from an affidavit.

Depositions are intended as a means to compel disclosure of facts resting in

1. Depositions on oral examination and depisitions upon written

Section 1. Depositions pending action, when may

Q: When there is a pending action, is it necessary that leave of court or permission

A. With leave of court

2. Deposition of a person confined in prison.

B. Without leave of Court

After answer and deponent is not confined in prison.

The court found the contention untenable and ruled:

“We find petitioners’ contention to be untenable. Ex abundanti cautela means

Q: Whose deposition can you take?

Q: What are the modes of deposition taking?

Rule 21, Section 1. Subpoena and subpoena duces

Rule 21, Sec. 2. By whom issued. The subpoena may

Sec. 5. Subpoena for depositions. Proof of

DASMARIÑAS GARMENTS, INC. vs. REYES

What can be the subject matter of deposition taking? Section 2:

Sec. 2. Scope of examination. Unless otherwise

Q: Is that allowed? Pataka lang ba ang style of asking questions.

LIMITATIONS IN DEPOSITION TAKING

Q: What are the limitations or prohibitions in deposition taking?

FIRST LIMITATION: That the matter inquired into is not privileged.

Other privileged communications: Lawyer-Client communication rule (Rule 130,

Scope of examination in deposition

1. matter which is relevant to the subject of the pending action;

Q: In what proceedings can a deposition be used?

Sec. 4. Use of depositions. At the trial or upon

Q: In what proceedings may a deposition be used?

Q: Against whom may a deposition be used?

and participate. So if a person appeared and participated, he is bound by the deposition.

(a) Any deposition may be used by any party for

Q: Is that allowed? Can a deposition substitute for his oral testimony?

(b) The deposition of a party or of any one who

Q: What is the difference between paragraphs [a] and [b]?

ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party)

Q: Suppose the adverse party is a corporation

(c) The deposition of a witness, whether or not a

Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a

THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE HUNDRED (100)

WITNESS NOT FOUND

(d) If only part of a deposition is offered in

part introduced, and any party may introduce any

Q: Is this unethical as it is suppressing the truth?

Q: Is it not twisting the truth?

Sec. 5. Effect of substitution of parties.

Sec. 6. Objections to admissibility. Subject to

Sec. 7. Effect of taking depositions. A party

We know that deposition taking is a fishing expedition. If after taking a witness

Exception to the exception

Sec. 8. Effect of using depositions. The

Sec. 9. Rebutting deposition. At the trial or

BEFORE WHOM DEPOSITIONS ARE TAKEN

Sec. 10. Persons before whom depositions may be