10 without prejudice

indispensable parties

Periods

Dismissal as a matter of right – before the service of an answer or of a motion for summary judgment
Dismissal as matter of court discretion – at any time of the proceedings after the service of an answer or of a
motion for summary judgment

Pre-Trial
[Within 5 days] After the last pleading has been filed and served – P makes ex parte motion to set the case for pre-
trial

Filing and service of pre-trial brief – ensure receipt at least three days before the pre-trial date

Effects of default

1. filing and serving answer

2. attendance to pre-trial
3. filing pre-trial brief
4. appear in the presentation of evidence in chief
Intervention
 Filing of motion to intervene (to which the pleading-in-intervention shall be attached) for indispensable
parties – any time, even after rendition of judgment as per Looyuko case
 Filing of motion to intervene (to where the pleading-in-intervention shall be attached) for all others– any
time before rendition of judgment by the trial court
 Who may intervene – legal interest (matter in lit, success of one, against both) & so situated to be
adversely affected
 Leave of court necessary to intervene; merely ancillary so if the main action is dismissed, intervention
must also be dismissed (jurisdiction)
 Considerations of the court on whether to allow intervention or not – unduly delay & full protection in
another proceeding
 Filing of the answer to the complaint in intervention – 15 days from notice of the order admitting the
same, unless otherwise ordered
o AJG: So court will either grant or deny motion to intervene; decision will be in the form of an
order, which shall be served to the parties??
Subpoena
 SAT – appear and testify at the hearing or any investigation or deposition
 SDT – appear and bring with him books, docs, other things under his control
 By whom issued – court, court, by law, SC or CA Justice; rule for subpoena for prisoners and prisoners
sentenced to D/RP/LI
 Cannot be issued when there is no pending action
 When CoC issues subpoena: SAT: pending case; SDT: pending case and court order
 SDT: relevance (prima facie relevant to the issues in controversy); definiteness (reasonable description)
 Motion to quash a subpoena:
o SDT: definiteness and relevancy test fail; witness and kilometrage fees not tendered when the
subpoena was served; production costs not tendered; unreasonable and oppressive (Salvador:
voluminous files requested)
o SAT: witness NOT BOUND THEREBY (not qualified; privileged); witness and kilometrage fees
not tendered when the subpoena was served
o NB: no tender needed if subpoena is on behalf of RP
o When to file: on or before the time stated in the subpoena
 Service of subpoena – same manner as personal or substituted service of summons; time – as to allow
reasonable time for preparation and travel
 Witness may be called to testify even without subpoena if he is personally present in court!
 Compelling attendance for non-appearing witness –
o court will check if there is proof of service of subpoena and then issue a bench warrant for
witness’ arrest
o witness pays of failure to appear is wilful and without just cause
 resides more than 100km away from court
 prisoner and no permission from court was obtained
o deemed to commit INDIRECT contempt
Computation of time
 Exclude day of event; include date of performance
 Sat, Sun, legal holiday – next working day
 INTERRUPTION: allowable period after interruption runs on the day after the notice of the cessation
of the cause thereof
Modes of Discovery
 Deposition – taking of testimony of any person at the instance of a party to the action, done out of court
 GR: deponent must be presented for oral examination in open court at the trial as required under the
rules of evidence; right of parties to object to their admissibility is retained; deposition not meant to be a
substitute for actual testimony (GR only, USES are exceptions. Meaning, the deponent need not be called
to the witness stand for direct and even cross-exam provided that any of the 5 circumstances is present)
 Summons have been served (to be more precise, after J has been acquired over any defendant or over
property which is the subject matter of the action)– w/ LOC so you need to file a motion; after an
answer has been served (even if it is just an answer ad cautelam) – w/o LOC so you can do it by mere
notice; deponent is prisoner – w/ LOC
 May subpoena to compel deposition
 There must be a circumstance allowing their admissibility; OBJECTION, which should be made during
the trial: Hearsay! as there was no opportunity to cross examine.
 Deponent may be examined or cross-examined following procedures for trial witnesses.
 Conditional exam of prosecution or defense witness in a criminal case for the purpose of taking his deposition
should be made before the court, or at least before the judge, where the case is pending and in the
presence of the accused (Manguera case!)
o too sick or infirm to appear at the trial or has to leave the Philippines with no definite date of
returning
o In sum, rules on depositions under Rule 23 cannot be applied in criminal cases. Ratio: Suppletory
application not allowed since CrimPro rules provide for that AND accused’s constitutional rights
 Can be availed of ANY TIME, even during the process of executing final and executor judgments (the
only question is WON LOC is required)
o pending action
o future action
o pending appeal
 NRFC can use depositions of their witnesses living abroad
 Scope of examination – not privileged AND relevant to the subject of the pending action
 MEMORIZE! Use of depositions (Rule 23, Section 4, p. 218)
o May use all or part
 If only part used, adverse party may require the introduction of all of it.
o May be used during:
 trial
 interlocutory proceeding
 hearing for a motion
o May be used against:
 any party who was present or represented at the taking
 any party who had due notice of the taking
o USES:
 any witness, by any party -- contradicting or impeaching testimony of the
deponent as witness (prior inconsistent statements)
 any witness, by any party – any purpose if witness is dead OR witness resides
more than 100km from court OR witness is out of the Phils, unless his absence is
procured by party offering his deposition
 any purpose by the adverse party – if deponent is a party or at the time of the
taking, an officer, director, or managing agent of a corporation, etc.
 unable to testify or attend due to age, sickness, imprisonment
 could not be compelled to attend thru subpoena (despite efforts to arrest him)
 exceptional cases, upon application and notice
 Requisites for the admission of a testimony or deposition given at a former case or proceeding
o The testimony or deposition of a witness who is deceased or otherwise unable to testify
o The testimony was given in a former case or proceeding, judicial or administrative
o Involving the same parties
o Relating to the same matter
o Adverse party having had the opportunity to cross-examine him (sufficiency of cross-exam
depends on the identity of issues in both cases).
 Substitution of parties does not affect the use of depositions previously taken.
 Taking v. using – The deponent becomes the party’s witness only when the deposition is used (cf taken)
by such party. E: first two items under USES
 Who can take depos in the Phils: any judge; NP; persons authorized by law to admin oaths when the
parties so stipulate in writing
 Who can take depos abroad: Sec of an embassy/legation; all types of consuls ; person or officer as
appointed by a commission or under letters rogatory; persons authorized by law to admin oaths when the
parties so stipulate in writing
o Commission – directive to official of the Phils; Phil. law applies
o Letters rogatory – request to foreign court; Foreign law applies
o SUBSTANTIAL COMPLIANCE: no sec of embassy and consuls and then letters rogatory was
ignored by Boston court  depo taken before a NY notary and was duly certified by Phil consul
(in NY?) and under Phil rules
  See Who are DQd to be depo officers (confusing commas) & when should objections based on D/Q be
raised (before taking or as soon as ground becomes known)
 ORAL DEPOSITIONS
o Reasonable notice to the other parties in writing.
o Any party or the person to be examined who objects to the deposition may file a motion based
on good cause. Serve objections thereto promptly, otherwise, waived
 Possible court action to such objections  Orders for the protection of the parties:
don’t take; take elsewhere; written interrog, not oral; do not inquire into some matters;
limited people in the taking; seal; IP rights protection
o Objections during the examination – motion or petition to terminate or limit the examination
 ground: taken in bad faith; taken in such a manner as unreasonably to annoy, embarrass,
or oppress the deponent or party; what is sought is irrelevant in the action
 where to apply: court where case is pending or RTC where the deposition is being taken
(as for the petition)
 effect if granted: court will order the OFFICER to terminate exam or limit exam. if the
former, court order needed to resume oral exam.
o Process: OATH, objections are noted; evidence are taken subject to objections; propounding of
questions of those who transmit written interrogatories; reading and signing by deponent, unless
waived
o Must be signed unless parties stipulate the waiver; witness is ill or cannot be found; or he refuses
to sign. UNSIGNED  officer shall sign and state reason for non-signing. Way to challenge:
Motion to suppress and if court says reason not valid, deposition may not be used partially or
entirely.
o Certification by officer: oath and true record; seal and write “depo of”; PF or RM to court where
the case is pending; notice to parties
o Errors and irregularities as to notice, qualification of the OFFICER, manner of taking – deemed
waived if not objected to before or during the taking
o Objections as to the competency of the WITNESS OR the competency and relevancy of the
testimony – can be made for the first time at the trial; need not be made at the time of taking
UNLESS they could be obviated or removed if presented at that time.
o Failure of party giving notice to attend and to serve subpoena – pay the other party the amount
of reasonable expenses incurred to attend
 WRITTEN INTERROGATORIES
o Notice to parties, manner of taking except for the preliminary step of collecting the
interrogatories, certifying, PF or RM, notice of filing (all the same with oral)
o 10-5-3 after being served, serve cross-interrogatories, redirect-interrogatories, recross-
interrogatories. After this, notice and all interrogatories are delivered by party taking depo to the
officer designated in the notice.
 Errors and irregularities (GR: waived unless objected to)
o Notice – written objection
o D/Q of officer – before the taking or as soon as the D/Q becomes known or ought to have
been known
o Oral exam, form of questions, oath, conduct of parties – during the taking
o Form of written interrogatories – in writing within the time allowed for serving succeeding
interrogatories and within 3 days after service of the last interrogatories authorized
o Competency or relevancy of evidence – not waived by failure to make them before or during the
trial UNLESS ground might have been obviated if presented at the time
o Manner of preparation (transcription stage up to filing stage) – motion to suppress the deposition
Depositions before action or pending appeal
 Perpetuation of own testimony or that of another person
 DEPOSITIONS BEFORE ACTION
o As to what: any matter possibly cognizable in any court in the Philippines
o File verified petition where: court of the place of the residence of any expected adverse party (since
there is no pending case as party is still unable to bring it; Salvador: Exception to general rules on
venue)
o Contents of petition: [lay basis], subject matter of the action, petitioner’s interest therein, facts
which he desires to establish and reasons for desiring to perpetuate it, names and addresses of
expected adverse parties and target deponents, substance of the testimony expected to be elicited
 o Serve notice [I will apply for the order authorizing me to take depositions of the persons named
in the petition] to expected adverse party.
o Court will cause notice to be serve on the parties and deponents at least 20 days before the date
of the hearing
o Reason for granting: perpetuation may prevent a failure or delay of justice
o Content of order: name/designation of deponent, subject matter of the exam, oral or written
o USE: any action subsequently brought involving the same subject matter
 DEPOSITIONS PENDING APPEAL
o When used: if an appeal has been taken from a judgment of a court OR before the taking of an
appeal if the time therefor has not expired (basically, before judgment becomes final and
executor)
o “Filed” where: court in which the judgment was rendered or the Court of Appeals, in proper
cases
o Make a motion for leave to take the depositions in the court which rendered the judgment (not
verified petition)
o Contents of motion: names and addresses of target deponents, substance of the testimony
expected to be elicited, reason for perpetuating
o USE: in the event of further proceedings
o Reason for granting: perpetuation may prevent a failure or delay of justice
o If what is pending is a certiorari, this does not apply. Follow Rule 23 instead.
o All else, same with rules for depositions taken in pending actions.
Interrogatories to parties
 Addressed only to parties, not to “parties and witnesses”
 No multiple exchanges of interrogatories, just one set of questions to be answered by the other party
(unless party asks for leave of court to serve more than one) and then the adverse party is obliged to
answer them in writing as well (signed and sworn to); if adverse party is a corp – any officer competent to
testify in its behalf will answer
 Written interrogatories are served directly upon the adverse party, not to the officer designated in the
notice
 Scope and use same as that under Rule 23 but there is no opportunity to cross-examine
 There is a fixed time to answer: 15 days after service of written interrogatories to respond. Time to
answer may be reduced or extended by the court on motion (by the party answering) and for good cause
shown.
 10 days after service of interrogatories to oppose (file in court, serve notice to other party serving
interrogatories). Filing and service of answers deferred until the objections are resolved.
 Why used: to elicit material and relevant facts from adverse party
 A.M. No. 3-1-9 mandates court to issue an order requiring parties to avail of Rule 25 or 26, but parties
may opt to use other modes.
 As opposed to an MBP, this is not directed to a particular pleading.
 Effect of failure to serve written interrogatories: A party not served with written interrogatories may not
be compelled by the adverse party to give testimony in open court or to give deposition pending
appeal, EXCEPT if allowed by the court for good cause shown and to prevent failure of justice.
 Effect of failure to answer SPECIFIC questions in written interrogatories: no default yet, proponent must
first move to compel the other party to answer.
 Effect of failure to answer ALL questions in written interrogatories: Follow Rule 29, Sec. 5!
Admission by adverse party
 When: any time after issues have been joined (meaning, after answer has been served); cf depositions
 How made: written request for admission filed and served upon any other party (not the counsel). Attach
the document.
 What is asked to be admitted:
o genuineness (not substance) of any material and relevant document described in and exhibited
with the request
 To avoid long process of authenticating documents
 Even if party admits genuineness, he can still contest the substance and circumstances of
the document
o truth of any material and relevant matter of fact set forth in the request
 No request for admissions are allowed in matters:
o precisely the issues in the cases
 o irrelevant matters
o opinions or conclusions of law
o privileged matters
o merely reiterations of allegations in the complaint
 Effect of failure to serve request for admission: The party who fails to file and serve the request shall not
be permitted to present evidence on facts that are material and relevant facts at issue which are
or ought to be within the personal knowledge of the latter
o EXCEPT if allowed by the court for good cause shown and to prevent failure of justice.
 Effect of failure to answer to the request: each of the matters of which an admission is required is
deemed admitted (in short, implied judicial admission)
 Effect of admission (AJG: express or implied): admission for the purpose of the pending action only;
shall not constitute an admission for any other purpose or proceeding
 Time to answer: not less than 15 days from the service of the request, or within such further time as the
court may allow
o sworn statement of either admission or denial
 admitting the matters requested to be so admitted
 specifically denying the matters of which admission is requested
 if he does not deny, reasons why he cannot truthfully admit or deny
 May opt to object instead of answer – within 15 days from the service of the request
o Effect: compliance with the request deferred
 Admissions here, either express or implied, are not final and irrevocable. Admitting party should file
motion to withdraw or amend his admissions.
Production or inspection of documents or things
 Motion for production or inspection made in the court in which an action is pending for good cause
shown; motion should describe the documents with particularity (blanket requests prohibited).
 Granting the motion subject to court’s discretion but it must be liberally granted; test: reasonableness and
practicability
 Purpose:
o Order any party to produce and permit the inspection and copying or photographing, by or on
behalf of the moving party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged (as in privileged communication under
rules on evidence), which constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control; or
o Order any party to permit entry upon designated land or other property in his possession or
control for the purpose or inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon.
 What the order should contain: time, place, and manner of inspection/entry
 Party requesting not obliged to present the evidence so obtained in court
 If presented, a witness must testify on it and identify it.
 SDT – form of compulsion; production order – mode of discovery
Physical and mental examination of persons
 When examination by a physician may be ordered: in an action in which the mental or physical condition
of a PARTY is in controversy
 Where to file motion for good cause shown: court in which the action is pending
o Salvador: court may order this motu proprio (the only one among modes)
 Provide notice to the party to be examined and to all other parties
 Content of order: time, place, manner, conditions, and scope of the examination & person to be
examined
 Party examined (X) may request the party causing the examination (Y) to deliver to him a copy of a
detailed written report of the examining physician’s findings and conclusions. Effects:
o In turn, Y entitled upon request to receive from X a like report of any examination,
previously or thereafter made, of the same condition. If X refuses, court on motion and
notice may make an order to compel X. Otherwise, the report (the re-exam) may be excluded
if offered at the trial.
o X waives any privilege (AJG: as in physician-doctor privilege) he may have in that action or
any other action involving the same controversy, regarding the testimony of every other
doctor who has examined or may thereafter examine him in respect of the same physical or
mental condition. This is also the effect if he takes the deposition of the examining physician.