1997 Rules on Civil Procedure
2001 Edition <draft copy. pls. check for errors>
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.
Examples:
1. Denial must be specific and state your own
facts- 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 also
not fair to state that the other partys version is false,
you must also state your version. And if you do not
make specific denial, there is a general denial, an
implied admission.
2. Bill of particulars in case of ambiguous
allegation of ultimate fact- 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.
3. 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.
Reason behind modes of discovery-
BUT there is still an element of surprise whether you
like it or not because Im obliged to state my cause
of action or defense but Im not obliged to state the
facts supporting that cause of action or defense
because the rules even say, evidentiary matters
should not be alleged in the pleading but is only
proved in the trial.
Ateneo
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
Depositions Pending Action
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 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
Lakas Atenista
vague statements of ultimate facts, but
it is not an instrument to compel the
deother
Davaoparty to reveal evidentiary facts.
University College of Law
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
Rule 23
(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 (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?
1
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
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

heard you in advance. You cannot contradict your Procedure or in ordinary cases subject to Rule 21. Depositions shall
answer. This is what you call deposition taking. cross-examination. be taken only in accordance
with these Rules. The
Now, if I can do that to you, you can also do Depositions are intended as a deposition of a person
that to me. The defendant can also use that against means to compel disclosure of facts confined in prison may
the plaintiff. resting in the knowledge of a party or be taken only by leave of
other person, which are relevant in a court on such terms as
Q: How do you define deposition? suit/proceeding. the court prescribes. (1a,
A: DEPOSITION is the written testimony of R24)
a witness given in the course of a judicial Classification of Depositions
proceeding, in advance of the trial or hearing, Deposition-taking under Section 1 presupposes
upon oral examination or in response to 1. How taken: that there is a pending civil case, thus, the title is
written interrogatories, and where an (a) Depositions on oral examination depositions pending action. There is an existing civil
opportunity is given for cross-examination. (16 and case and I would like to take the deposition of
Am. Jur. 699) (b) depositions upon written certain people.
interrogatories;
The Rules of Court and jurisprudence do not Q: When there is a pending action, is it
restrict a deposition to the sole function of being a 2. Based on purpose: necessary that leave of court or permission should be
mode of discovery before trial. Under certain (a) depositions de bene esse - those sought for deposition to be allowed?
conditions for certain limited purposes, it may be taken for purposes of a pending action (R 23); A: The rule is, it DEPENDS if there is already
taken even after trial has commenced and may be and an answer or not.
used without the deponent being actually called to (b) Depositions in perpetua rei
the witness stand. memoriam - those taken to perpetuate Another classification of deposition pending
evidence for purposes of an anticipated action:
Uses of deposition- action or further proceedings in a case on A. With leave of court (discretionary)
Depositions may be used for the trial or appeal (R 24)
for the hearing of a motion or an interlocutory 1. after jurisdiction has been obtained
proceeding as provided in Section 4, Rule 23. Section 1. over any defendant or over the property which is the
(Jonathan Landoil International Co., Inc. vs. Sps Depositions pending subject of the action but before an answer has
Mangudadatu, GR No. 155010, August 16, 2004). action, when may be been served; or
taken. By leave of Reason: Leave of court is necessary
When I take the deposition of somebody, my court after because the issues are not yet joined and the
opponent has the right to cross-examine the same jurisdiction has disputed facts are not yet clear.
witness. So practically, its a dress rehearsal for the been obtained
trial when I ask questions, my opponent can ask over any defendant 2. Deposition of a person confined in
questions also. The questioning of the witnesses is or over property prison even if answer has been served already.
done the way it is done during the trial. The witness which is the subject
of the opponent has to undergo the same procedure of the action, but B. Without leave of Court
in the rules of evidence. That is Section 3: before answer (matter of right)
had been served
Sec. 3. Examination or without such After answer is served and also
and cross-examination. leave after an when the deponent is not confined
Examination and cross- answer has been in prison.
examination of served, the
deponents may proceed testimony of any Rosete v. Lim GR No.
as permitted at the trial
under sections 3 to 18 of
Lakas Atenista
person, whether a
party or not, may be
136051, June 8, 2006 2
Rule 132. (3a, R24) taken, at the Petitioners contend that they have not yet served an
Ateneo de Davao University College of Law
instance of any answer to respondents because the answers that
Q: Distinguish a deposition from an party, by they have filed were made ex abundanti cautela. In
affidavit. deposition upon other words, they do not consider the answers they
A: Affidavit is also a sworn statement of a oral examination filed in court and served on respondents as answers
witness but the statement is taken ex- parte (no or written contemplated under the Rules of Court on the
cross- -examination). But in deposition there is interrogatories. ground that same were filed ex abundanti cautela.
cross- -examination, there is a confrontation as if he The attendance of They contend that since they had not yet filed an
is already testifying in court. witnesses may be answer, any deposition must be made with leave of
compelled by the court.
Affidavits are not admissible in evidence except use of a subpoena
in cases governed by the Rule on Summary as provided in The court found the contention untenable and ruled:
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

qualified to act as deposition officer because A: NO, because of Section 10 of Rule 21. The
We find petitioners contention to be untenable. Ex he can administer oaths. remedy is you go to Cebu and get a deposition
abundanti cautela means out of abundant caution officer and take her deposition.
or to be on the safe side. An answer ex abundanti Deposition taking has a counterpart in
cautela does not make their answers less an answer. criminal procedure. c.f. Rule 119, Sections Q: How can I compel her to go to the office of
A cursory look at the answers filed by petitioners 12,13 and 15. the notary public in Cebu for the purpose of the
shows that they contain their respective defenses. An deposition?
answer is a pleading in which a defending party sets Subpoena to compel the A: You can get a subpoena from the Cebu
forth his defenses and the failure to file one within appearance of deponent- court and that is allowed under Rule 21, Section 2 [b]
the time allowed therefore may cause a defending Q: Suppose I would like to take the and under Rule 21, Section 5:
party to be declared in default. Thus, petitioners, deposition of Ms. A before a notary public
knowing fully well the effect of the non-filing of an whose office is located along San Pedro Rule 21, Sec. 2. By
answer, filed their answers despite the pendency of Street. How can I force Ms. A to go to the whom issued. The
their appeal with the Court of Appeals on the denial office of that notary public? Can I force her? subpoena may be issued
of their motion to dismiss. A: If Ms. A is in court, the court can by:
force you by subpoena. But I can also compel xxxxx
Ms. A to attend this questioning for the b) the court of the
Q: Whose deposition can you take and at purpose of deposition. Section 1 says, the place where the
whose instance? attendance of witnesses may be compelled deposition is to be taken;
A: The law says, you can take the testimony of by the use of a subpoena as provided in Rule xxxxx
any person whether a party or not at the instance 21.
of any party.
Rule 21, Sec. 5. Subpoena for
EXAMPLE: I will file a case against Mr. A. Can Section 1. depositions. Proof of
I take the depositions of his witnesses? Yes, Subpoena and service of a notice to
including Mr. As deposition. I can also take the subpoena duces take a deposition, as
deposition of my own witnesses, even my own tecum. Subpoena is provided in sections 15 and
deposition. At least, before I die, nakuha na yung a process directed to 25 of Rule 23, shall
testimony ko. So I can take the deposition of a person requiring constitute sufficient
anybody in the world. Thats why the law says, the him to attend and to authorization for the
testimony of any person whether a party or not may testify at the hearing issuance of subpoenas
be taken at the instance of any party. And of or the trial of an for the persons named in
course, Mr. A can also do what I was allowed to do. action, or at any said notice by the clerk of
investigation the court of the place in
Deponent of witness- conducted by which the deposition is to
Q: When you take deposition of this person, competent authority, be taken. The clerk shall
what do you call him? or for the taking not, however, issue a
A: The accurate term is that, he is called of his deposition. subpoena duces tecum
DEPONENT. Some people call him witness. It may also require to any such person
him to bring with without an order of the
him any books, court. (5a, R23)
Deposition by Oral examination is recorded- documents, or other
The deposition upon oral examination is more things under his In other words, I will send the notice to my
popular because it is just like how you question a control, in which opponent, I am going to take the deposition of my
witness in court: Questions and answers are done case it is called a witness in Cebu. And based on that notice, I will
orally, then, recorded by a stenographer. And then
later on, the other counsel would ask his questions
Lakas Atenista
subpoena
tecum. (1a, R23)
duces go to Cebu and ask the clerk of court of the RTC
of Cebu to issue a subpoena based on the notice
3
and answer. to take deposition on the Davao case. And under the
Ateneo de Davao University College of Law
PROBLEM: Your case is in Davao but Rules, the Cebu RTC has to issue a subpoena even if
Deposition upon written interrogatories The your witness is in Cebu. You asked your the case is not pending in that (Cebu) court because
examination is done through written questions witness to come here in Davao to help you this is only deposition. Kaya nga under Rule 21,
submitted to the deposition officer. Although they and you are even willing to shoulder her Section 2 [b], a subpoena may be issued by the
use the same words, it should not be confused with transportation, but she refuses. court of the place where the deposition is to be taken.
Rule 25.
Q: Can you ask the court in Davao to There was an instance before, where a Manila
Deposition officer- issue a subpoena compelling such witness to lawyer wanted to take the deposition of somebody in
Now, as we shall see, there must be a deposition come here and testify even if the Davao. Then he applied for a subpoena to require
officer and under the law, even a notary public is distance is more than 100 kilometers? the deponent to appear before a notary public in
Davao. At least, tama siya doon. Ang mistake niya,
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

he applied for a subpoena in the Manila court where What can be the subject matter of the course of a questioning. If I already know a fact,
the case is pending and the judge there, maybe he deposition taking? Section 2: there is nothing to discover. It is very broad that I
did not read Rule 21, issued a subpoena addressed may discover something in the course of questioning.
to the person in Davao to appear before the notary Sec. 2. Scope You can ask the deponent any matter related to the
public in Davao and the witness did not appear. So of examination. claim or defense but there are limitations.
the lawyer realized na mali siya. So he had to do it Unless otherwise
all over again in Davao, not in Manila. The subpoena ordered by the
has no more effect beyond 100 kilometers. It should court as provided LIMITATIONS IN DEPOSITION TAKING
be filed not where the case is pending but at the by section 16 or 18
court of the place where the deposition is to be taken. of this Rule, the Q: What are the limitations or prohibitions in
In other words, the error was corrected, but can you deponent may be deposition taking?
imagine the waste of time and effort. examined regarding A: The following are the limitations in
any matter, not Deposition Taking:
When to take deposition- privileged, which
Generally, depositions are taken at the start of the is relevant to the 1.) The matter inquired into is not
case before the trial. But in the case of subject of the privileged either under the rules on
pending action, evidence or special law;
DASMARIAS whether relating 2.) The matter inquired into is relevant to
GARMENTS, INC. vs. REYES to the claim or the subject of the pending action;
225 SCRA 622 [1993] defense of any 3.) The court may issue orders to
other party, protect the parties and its
ISSUE: Whether or not including the deponents under Sections 16 or 18.
deposition taking is only allowed existence,
before the action comes to trial. description,
Can you still resort to deposition nature, custody, Scope of examination in deposition
under Rule 23 when the trial is condition, and
already ongoing or it is only at the location of any 1. matter which is relevant to the subject of
pre- trial? books, documents, the pending action;
or other tangible 2. not privileged; and
HELD: Depositions may things and the 3. not restricted by a protective order (Secs.
be taken at any time after the identity and 16 and 18)
institution of any action, location of
whenever necessary or persons having
convenient. There is no rule that knowledge of FIRST LIMITATION: That the matter inquired into is
limits deposition-taking only to the relevant facts. (2, not privileged.
period of pre-trial or before it; no R24)
prohibition against the taking of There are things which you cannot compel a
depositions after pre-trial. Indeed, Q: When you take the deposition of a person to reveal in court. EXAMPLE: You cannot
the law authorizes the taking of deponent what can you ask? What matters compel the wife to reveal in court what her husband
depositions of witnesses before or may be inquired into? told her in confidence during their marriage. That is
after an appeal is taken from the A: The law says, the deponent may be known as the marital privileged communication rule
judgment of a Regional Trial Court examined regarding any matter whether (Rule 130, Section 24 [a]).
to perpetuate their testimony for related to the claim or defense of a party.
use in the event of further Other privileged communications: Lawyer-
proceedings in the said court and Example: Suppose if there is a case Client communication rule (Rule 130, Section 24
EVEN during the process of
execution of a final and executory
Lakas Atenista
between me and somebody and I suspect
Pedro knows something about the facts but I
[b]); Physician-Patient communication rule (Rule
130, Section 24 [c]); Priest-Penitent
4
judgment.
Ateneo deamDavao
not sure, so I will take his deposition. I
University College of Law communication rule (Rule 130, Section 24 [d]). Or,
will start asking my questions to Pedro business trade secrets such as the formula of your
Meaning, deposition taking is even wherein practically Im groping in the dark. I product.
allowed as part of the execution where the just start asking questions left and right
trial is already terminated. This is called by hoping that, I may stumble into something So, if you cannot ask that in a trial, you cannot
another name in Rule 39 on execution, satisfaction or about the case. also ask that in a deposition taking.
effects of judgments. (c.f. Rule 39, Sections 36, 37
and 38). Applies when the writ of execution is Q: Is that allowed? Pataka lang ba ang
returned unsatisfied. Deponent can be the judgment style of asking questions. SECOND LIMITATION: The matter inquired into is
obligor (Sec. 36), or a debtor of the judgment debtor A: YES, it is allowed. Precisely, the relevant to the pending action.
(Sec. 37) mode of discovery is a fishing expedition in
the hope that you will discover something in
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

While deposition taking authorizes a fishing A: The following: 1. When deponent is a mere
expedition, you are not allowed however, to go 1.) At the trial; witness-
beyond the topic. EXAMPLE: You will ask the witness 2.) Upon a hearing of a
about an incident which happened and she was motion; or a) Any deposition may be used by
supposed to be there. Where were you on this 3.) Upon a hearing of any party for the purpose of
date? I was there. Who was with you? I was interlocutory proceeding contradicting or impeaching the
with my boyfriend. When did he become your (e.g. issuance of a writ of testimony of deponent as a witness;
boyfriend? or How often do you date each other? preliminary injunction or
or Whats his favorite color? Malaki ba ang tiyan attachment) EXAMPLE: I will take the deposition of Mr.
niya? My golly! Those questions are irrelevant. Malaki as a possible witness. After listening to his
Anong pakialam niyan sa topic? Walang connection It can be used in supporting or opposing a testimony, his testimony is in my favor. I tell the
ba! motion. A good example is the remedy of court during trial that my next witness is Mr. Malaki
summary judgment under Rule 35. but since he is busy and his deposition is taken
beforehand, I will no longer present him but instead
THIRD LIMITATION: The court may issue orders to Example: I will present as evidence his deposition to take the
protect the parties and its deponents under Sections Under this Rule, a party can file a motion for place of his oral testimony in court.
16 or 18 of this Rule. summary judgment to demonstrate that the
party has no cause of action. In that sense, I
While it is true that leave of court is not will support my motions with affidavit, Q: Is that allowed? Can a deposition substitute
necessary anymore, you have to remember that it is depositions or documents. for his oral testimony?
related to a pending case and the court has control A: NO, a deposition can only be used for the
over the case. That is why, while leave of court is not purpose of contradicting or impeaching the testimony
necessary, any party who is aggrieved can go to Q: Against whom may a deposition of deponent as a witness. It cannot be used as a
court and complain. And the court is authorized to be used? substitute of an examination. It does not exempt the
issue orders to protect the parties and its deponents A: Against the following: witness from testifying in court. It is only a means of
under Sections 16 or 18 of this Rule. 1.) against any party who was knowing what the witness will testify.
present; or
2.) against a party who was When you take the deposition of a witness,
represented at the taking you are already assured that this will be his story. If
of the deposition; or I asked you the same question in court, naturally he
USE OF DEPOSITIONS 3.) against a party who did will have the same answer. So there are no more
not appear or represented surprises. If I am asking a question identical to my
Sec. 4. Use of but was duly notified of deposition, I expect the answer to be identical during
depositions. At the trial or the scheduled deposition the trial.
upon the hearing of a taking.
motion or an Q: Suppose the witness during the trial will
interlocutory proceeding, Procedure- reverse his testimony. His testimony in the deposition
any part or all of a So, the procedure for deposition taking is is favorable to me but during the trial, pabor naman
deposition, so far as first, to notify the other party of the sa kalaban.
admissible under the rules date, place and time of the deposition A: I can now use his deposition to destroy him.
of evidence, may be used taking of a person. The other party is free I will impeach him by showing that the witness is not
against any party who to go there and participate. So if a person reliable. To IMPEACH the testimony of a witness is to
was present or appeared and participated, he is bound by destroy his credibility. I will offer in evidence the
represented at the the deposition. If he fails to appear but sent deposition for impeachment purposes. This is known
taking of the deposition a representative, the same effect the as PRIOR INCONSISTENT STATEMENT under the
or who had due notice
thereof, in accordance
Lakas Atenista
person is bound. Suppose a person received
the notice and never bothered to go or
rules on evidence. They cannot change story
during the trial because I can impeach them.
5
with any one of the
Ateneo departicipate, he is still bound because the law
Davao University College of Law
following provisions: says, for as long as you are notified, you are Therefore, a deposition is not a
bound. substitute for the testimony of the witness in
xxxxx court. You still have to present him in court. He
So whether you will come or not, you has to testify all over again but at least you already
Where the witness is available to testify and are bound by the deposition taking. In this have a guideline. So, if he deviates from the
the situation is not one of those excepted under case, you might as well show up. deposition, you can impeach him using the
Section 4, his deposition is inadmissible in evidence deposition taken under oath earlier.
and he should be made to testify.
How to Use the deposition- 2. When deponent is a party to the
Q: In what proceedings may a deposition case-
be used?
1997 Rules on Civil Procedure
2001 Edition <draft copy. pls. check for errors>
b) The deposition of a party or of any A: Under paragraph [b], you can take
one who at the time of taking the the deposition of any of its officers, directors,
deposition was an officer, director, or or managing agent of the corporation.
managing agent of a public or private
corporation, partnership, or association
which is a party may be used by an 3. Exception to rule 1 (deposition of a
adverse party for any purpose; witness has limited use, i.e., to
contradict or impeach his testimony-
Q: What is the difference between paragraphs c) The deposition of a
[a] and [b]? witness, whether or not a
A: The following: party, may be used by any
party for any purpose if the
1.) In paragraph [a], it is the court finds: (1) that the
deposition of a WITNESS or witness is dead; or (2) that
any person other than a the witness resides at a
party, while distance more than one
In paragraph [b], it is the hundred (100) kilometers
deposition of the PARTY from the place of trial or
himself. hearing, or is out of the
Philippines, unless it appears
2.) In paragraph [a], the deposition that his absence was
of witness can be used only procured by the party
for contradicting or offering the deposition; or (3)
impeaching the testimony of that the witness is unable to
deponent as a witness, attend or testify because of
while age, sickness, infirmity, or
In paragraph [b], the deposition imprisonment; or (4) that
of a party can be used for the party offering the
any purpose. So it is deposition has been unable
broader than the first. to procure the attendance of
the witness by subpoena; or
ILLUSTRATION: Suppose I will take the (5) upon application and
deposition of my opponent (adverse party) and I notice, that such exceptional
have already a record of his testimony. During the circumstances exist as to
trial if he testifies contrary to the deposition, I could make it desirable, in the
use it to impeach him. But suppose the deposition is interest of justice and with
in my favor, I could present the deposition as an due regard to the importance
admission in my favor. I could use it as evidence of presenting the testimony
against my opponent. Therefore, I can use it as of witnesses orally in open
evidence or I can use it as a tool to impeach or court, to allow the
contradict the other party. deposition to be used; and
In other words, the deposition of a mere
WITNESS is for strict purpose (for impeachment only) Paragraph [c] is an exception to
and the deposition of an ADVERSE PARTY is for a
broader purpose (any purpose) because I can use it
Lakas Atenista
paragraph [a]. Paragraph [a] applies only to
a deposition of a witness for contradicting or
to impeach or I can use it as evidence. And if a
Ateneo deimpeaching his testimony.
Davao University College It is only in
of Law
witness say something in my favor, I cannot use it as paragraph [b] which applies to the use of
evidence. I have to ask the witness to repeat his deposition for any purpose but it refers to the
statement in court. But if it is a party, I can use it as deposition of the adverse party.
evidence already under the rule on admission of
evidence that the act or declaration of a PARTY Now, paragraph [c] allows the use of
maybe used as evidence against him (Rule 130, the deposition of a WITNESS for any purpose.
Section 26). So, that is the difference between
deposition of a party and a witness. DEATH
Q: Suppose the adverse party is a corporation Q: I will take the deposition of Juan
who is my witness. During the trial, my next
Rule 23
Depositions Pending Action
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 Im 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.
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].
6
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.
Summary of use:
1997 Rules on Civil Procedure
2001 Edition <draft copy. pls. check for errors>
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 to go to trial and in
case of an unfavorable judgment, appeal from
the judgment and assign the erroneous order
as error.
The reason is because while said order is
interlocutory, it is merely an error of law not grave
abuse of discretion.
Rule when only a part of the deposition is
offered in evidence-
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 part introduced, and any
party may introduce any other parts.
ILLUSTRATION: Suppose I will take the
Ateneo
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
Depositions Pending Action
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
Lakas Atenista
been dismissed and another
action involving the same subject
deis Davao
afterward brought between
University College of Law
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,
Rule 23
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?
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)
Raising objections to admissibility during
the taking allowed but only the judge can rule
on the objections-
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. 7
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.
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

Exception: Q: If the deposition taking is in the foreign countries. In a

Philippines, who are these persons before foreign state or country,
If a party offers the deposition in evidence, whom depositions are taken? depositions may be taken
then he is deemed to have made the deponent his A: The following: on notice before
witness (Sec. 8) (a)a secretary of
1.) ANY JUDGE. So, it is not embassy or legation,
Exception to the exception necessary the judge acting consul general, consul,
on the case. In fact, you can vice-consul, or consular
Unless the deposition is that of an request a judge in Manila to be agent of the Republic of
opposing party or the deposition is used to the deposition officer and he will the Philippines;
impeach or contradict the deponent (sec. 8). not be the one to decide. He is (b) before such person
only the deposition officer; or officer as may be
Sec. 8. Effect of using depositions. The appointed by
introduction in evidence of the 2.) NOTARY PUBLIC. A notary public commission or under
deposition or any part thereof for is authorized by law to letters rogatory; or
any purpose other than that of administer oath. Take note that (c) the person referred
contradicting or impeaching the not all lawyers are notary public. to in section 14 hereof.
deponent makes the deponent the To be a notary public, you have (11a, R24)
witness of the party introducing the to apply for commission in the
deposition, but this shall not apply court of the place where you are The amendment here again is the persons
to the use by an adverse party of a practicing. If you are a notary referred to under Section 14.
deposition as described in public for Davao City, you cannot
paragraph (b) of section 4 of this be a notary public in any other So, a secretary of the Philippine embassy or
Rule. (8, R24) place. And usually, a commission consulate abroad is authorized to act as deposition
for notary public is only good for officer, as well as the consul general, vice-consul,
2 years. After 2 years, you have although on a SC circular, if the judge will authorize
to re-apply. the taking of deposition abroad, because this time
Sec. 9. Rebutting deposition. At the leave of court is required, you course it to the
trial or hearing, any party may 3.) PERSON REFERRED TO IN Department of Foreign Affairs. The parties are not
rebut any relevant evidence SECTION 14: supposed to communicate directly to the Philippine
contained in a deposition whether Embassy.
introduced by him or by any other Sec. 14. Stipulations regarding
party. (9, R24) taking of depositions. If the Q: How about in places where we do not have
parties so stipulate in writing, embassy?
It is just like a witness in court. If a witness depositions may be taken A: Those with country where we do not have
says something in court, you can always prove that before any person diplomatic relations, you have to avail of [b]. So in
that is not true. If it is a deposition, the same authorized to administer this case, the person who is authorize to take the
thing you can always rebut the truth of what he oaths, at any time or place, in deposition may be the one who is authorized by
said in his deposition. accordance with these Rules, commission, or if not by commission, by letters
and when so taken may be rogatory.
BEFORE WHOM DEPOSITIONS ARE TAKEN used like other depositions.
(24a, R24) What do you mean by commission or a
(1) If the deposition is to be taken WITHIN letters rogatory? Section 12:
THE PHILIPPINES, who are authorized to act as So, the parties may stipulate in writing that
deposition officer? Section 10: the deposition officer may not be a judge or a Sec. 12. Commission or letters

Sec. 10. Persons

Lakas Atenista
notary public. It can be other person who is
authorized to administer oath such as
rogatory. A commission or letters
rogatory shall be issued only
8
before whom depositions Ateneo deprosecutors, clerk of court who is a lawyer,
Davao University College of Law when necessary or
may be taken within the labor arbiters, etc. But he/she must be convenient, on
Philippines. Within the authorized to administer oaths. application and notice,
Philippines, depositions and on such terms and
may be taken before any (2) If the deposition is to be taken with such direction as
judge, notary public, or ABROAD, who are authorized to act as are just and appropriate.
the person referred to in deposition officer? Section 11: Officers may be
section 14 hereof. (10a, designated in notices or
R24) Sec. 11. commissions either by
Persons before name or descriptive title
whom depositions and letters rogatory may
may be taken in be addressed to the
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

appropriate judicial So, letters rogatory is a request to the authority of such court or
authority in the foreign appropriate foreign judicial authority to take tribunal.
country. (12a, R24) the deposition of a witness who is in their LETTERS ROGATORY, on
jurisdiction and please send us a copy and we the other hand, may be defined as
By COMMISSION, somebody other than assure you in the future, if you have the an instrument sent in the name
Philippine consul like in Taiwan, we have Philippine same problem, we will reciprocate. and by the authority of a judge or
Trade Department in Taiwan because of our trade court to another, requesting the
relations. The court will issue a commission to the That is international law. Deposition latter to cause to be examined,
head of the trade mission there to act as deposition can be understood by the officer in other upon interrogatories filed in a
officer. Or any other person appointed by the judge country because it is internationally known. If cause pending before the former,
by court order. the officer in the foreign country will not do it, a witness who is within the
we have no choice because it is only a jurisdiction of the judge or court
A COMMISSION may be defined as an request. to whom such letters are
instrument issued by a court of justice, or addressed.
other competent tribunal, to authorize a Distinctions between commission A COMMISSION is
person to take depositions, or do any other act and letters rogatory addressed to officers designated
by authority of such court or tribunal. either by name or descriptive title,
1. A commission is issued to a non- while LETTERS ROGATORY are
So, suppose I would like to take the deposition judicial foreign officer who will directly take addressed to some appropriate
of somebody who is staying in Afghanistan where we the testimony while letters are issued to the judicial authority in the foreign
have no consulate but I know of a Filipino lawyer appropriate judicial officer of the foreign state.
who resides there. I will request the court that this country who will direct somebody in said Noteworthy in this
Filipino lawyer abroad be authorized to take the foreign country to take down testimony. connection is the indication in the
deposition of a person there. If the court agrees, it Rules that letters rogatory may be
will issue what is known as a commission. 2. The applicable rules of procedure for applied for and issued only after a
commission are those of the requesting court commission has been returned
But suppose none at all, the court will send while for letters, are those of the foreign unexecuted as is apparent from
letters rogatory addressed to the court of a foreign country requested to act; Form 21 of the Judicial Standard
country. Forms appended to the (1964)
3. Commission is resorted to if Rules of Court. So as a matter of
Q: Define letters rogatory. permission of the foreign country is given practice, the court should first
A: LETTERS ROGATORY is an instrument while the latter is resorted to if the execution resort to commission. You must
whereby the foreign court is informed of the of the commission is refused in the foreign allege that the commission has
pendency of the case and the name of the foreign country; been returned unexecuted before
witnesses, and is requested to cause their resorting to letters rogatory.
depositions to be taken in due course of law, for the 4. Leave of court is not necessary for
furtherance of justice, with an offer on the party of commission but necessary for letters. ISSUE #2: Petitioner
the court making the request, to do the like for the however prevent the carrying out
other, in a similar case. (Ballentines Law Dict., 2nd The SC defined again commission and of the commission on the ground
Ed., p. 744) letters rogatory and distinguished one from that the deposition-taking will take
the other in the case of place in a foreign jurisdiction not
It is an instrument sent in the name and by recognized by the Philippines in
the authority of a judge or court to another, DASMARIAS view of its one-China policy. Can
requesting the latter to cause to be examined, upon GARMENTS, INC. vs. a deposition be taken in Taiwan
interrogatories filed in a case pending before the REYES where the Philippines has no
former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed.
Lakas Atenista 225 SCRA 622
[1993]
diplomatic relations because of the
one-Chine policy?
9
(Feria, 2001, p. 518) HELD: YES. What matters
Ateneo de Davao University College of Law
ISSUE #1: is that the deposition is taken
EXAMPLE: The case is in Davao. W lives in Distinguish a commission before a Philippine official acting
North Korea. P should file a motion in court for the from letters rogatory. by authority of the Philippine
court to issue a letters rogatory. The judge will make HELD: A Department of Foreign Affairs and
a formal communication to the court in Pyongyang to COMMISSION may be in virtue of a commission duly
please take Ws deposition with the following request: defined as an instrument issued by the Philippine Court.
to mail back the answer and offer to return the favor. issued by a court of justice,
If the request is ignored, there is nothing that we or other competent
can do. But normally, they comply. tribunal, to authorize a Who cannot be a deposition officer-
person to take depositions,
or do any other act by
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

Sec. 13. you will send me a notice that you are going any party who is aggrieved can go to court and
Disqualification by interest. to take the deposition of a witness from complain. Deposition is purely your concern provided
No deposition shall be February 1 to 20 morning and afternoon. nobody would come here and complain. That is one
taken before a person Twenty days is too much. I can go to court of the limitations of deposition taking.
who is a relative within and complain. That should be reduced. The
the sixth degree of court may come in and enlarge or shorten Q: What orders may the court issue for the
consanguinity or affinity, the time. The court may also do this even if protection of parties and deponents; when may
or employee or counsel leave of court is not required. orders be issued; what court has power to issue the
of any of the parties; or orders?
who is a relative within A: After notice is served for taking a deposition
the same degree, or Sec. 16. Orders for the by oral examination, upon motion seasonably made
employee of such protection of parties and by any party or by the person to be examined and
counsel; or who is deponents. After notice is for good cause shown, the court in which the action
financially interested in served for taking a is pending may issue the following orders:
the action. (13a, R24) deposition by oral
examination, upon motion Orders issued before the taking to
You are disqualified to act as deposition officer seasonably made by any protect parties and deponents:
if you are related to any of the parties or the lawyer. party or by the person to be
You get somebody who is not related. examined and for good cause 1.) That the deposition shall not be
shown, the court in which taken;
Procedure in taking deposition thru the action is pending may 2.) That it may be taken only at some
oral examination- make an order that the designated place other than that
deposition shall not be taken, stated in the notice;
Sec. 15. Deposition upon oral or that it may be taken only 3.) That it may be taken only on
examination; notice; time and place. A at some designated place written interrogatories;
party desiring to take the other than that stated in the 4.) That certain matters shall not be
deposition of any person upon oral notice, or that it may be inquired into;
examination shall give reasonable taken only on written 5.) That the scope of the examination
notice in writing to every other interrogatories, or that shall be held with no one present
party to the action. The notice shall certain matters shall not be except the parties to the action
state the time and place for taking inquired into, or that the and their officers or counsel;
the deposition and the name and scope of the examination 6.) That after being sealed the
address of each person to be shall be held with no one deposition shall be opened only by
examined, if known, and if the present except the parties to order of the court;
name is not known, a general the action and their officers 7.) That secret processes,
description sufficient to identify or counsel, or that after developments, or research need
him or the particular class or group being sealed the deposition not be disclosed;
to which he belongs. shall be opened only by 8.) That the parties shall
order of the court, or that simultaneously file specified
On motion of any party upon whom secret processes, documents or information
the notice is served, the court may developments, or research enclosed in sealed envelopes to be
for cause shown enlarge or shorten need not be disclosed, or opened as directed by the court;
the time. (15, R24) that the parties shall 9.) The court may make any other
simultaneously file specified order which justice requires to
There are 2 types of deposition taking: (1) documents or information protect the party or witness
deposition upon oral examination and (2) deposition
upon written interrogatories. The former is governed
Lakas Atenista
enclosed in sealed envelopes
to be opened as directed by
from
embarrassment,
annoyance, 10
or
by Section 15 which is the most popular: Question-
Ateneo dethe court; or the court may
Davao University College of Law oppression. (Section 16)
answer and everything is recorded. make any other order which
justice requires to protect
Take note that before deposition is taken, the party or witness from Orders to protect during the taking-
there should be notice to the adverse party. The annoyance, embarrassment,
notice shall state the time and place for taking the or oppression. (16a, R24) Sec. 18. Motion to terminate or limit
deposition and the name and address of each person examination. At any time during the
to be examined. While it is true that leave of court is taking of the deposition, on motion
not necessary anymore, you have to or petition of any party or of the
The last sentence, On motion of any party remember that it is related to a pending case deponent and upon a showing that
upon whom the noticed is served, the court may for and the court has control over the case. That the examination is being conducted
cause shown enlarge or shorten the time. Suppose is why, while leave of court is not necessary, in bad faith or in such manner as
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

unreasonably to annoy, embarrass, 2. Motion for issuance of the first is with notice of taking a
or oppress the deponent or party, filed with the court in which the action is deposition may transmit
the court in which the action is pending while the latter motion or petition is written interrogatories
pending or the Regional Trial Court filed in the court in which the action is to the officers, who shall
of the place where the deposition is pending or the RTC of the place where the propound them to the
being taken may order the officer deposition is being taken. witness and record the
conducting the examination to answers verbatim. (17,
cease forthwith from taking the R24)
deposition, or may limit the scope Sec. 17.
and manner of the taking of the Record of Q: How is deposition in oral examination taken?
deposition, as provided in section examination; oath; A: It must be under oath. The testimony will
16 of this Rule. If the order made objections. The be taken by the stenographer. And objections must
terminates the examination, it shall officer before be recorded. Evidence objected to shall be taken
be resumed thereafter only upon whom the subject to the objections.
the order of the court in which the deposition is to be
action is pending. Upon demand of taken shall put Q: Can the deposition officer make a ruling on
the objecting party or deponent, the witness on the objection/s?
the taking of the deposition shall be oath and shall A: NO. He cannot. But the objection will be
suspended for the time necessary personally, or by noted and the deponent must answer. Later on, if
to make a notice for an order. In some one acting that deposition is offered as evidence in court, the
granting or refusing such order, the under his court will now rule on the objection. If the objection
court may impose upon either party direction and in is overruled, the answer as recorded remains. If the
or upon the witness the his presence, objection is sustained, the answer as recorded is
requirement to pay such costs or record the erased as if it was never answered. That is the
expenses as the court may deem testimony of the meaning of evidence objected to shall be taken
reasonable. (18a, R24) witness. The subject to the objections.
testimony shall be
Section 16 and 18 are similar. They both taken So, the deposition officer cannot make a ruling
talk about the power of the court to control stenographically on the objection. It is only the judge of the court
the deposition taking. Section 16 is about unless the parties where the case is pending who will make the ruling
protective orders BEFORE deposition taking. agree otherwise. on it.
Section 18 talks about protective orders All objections
DURING the deposition taking where the court made at the time Take note that answers to depositions not
may stop or limit the deposition taking. of the objected to cannot be objected to in court during the
examination to trial, UNLESS the objection is based on a new ground
A motion to terminate or limit examination the qualifications which only come up after the deposition.
may be filed: of the officer
1. any time during the taking of the deposition; taking the Sec. 19. Submission
2. on motion or petition of any party or of the deposition, or to to witness; changes; signing.
deponent; and the manner of When the testimony is
3. upon showing that the examination is taking it, or to the fully transcribed, the
conducted in: evidence deposition shall be
a. bad faith; presented, or to submitted to the witness
b. in such manner as unreasonably to annoy, the conduct of for examination and
embarrass, or oppress the deponent or party. any party, and shall be read to or by him,

When the constitutional privilege against self-

Lakas Atenista
any other
objection to the
unless such examination and
reading are waived by the
11
incrimination is invoked by the deponent or his proceedings, shall witness and by the
Ateneo de Davao University College of Law
counsel, the trial court may stop the examination be noted by the parties. Any changes in
(Isabela Sugar Co. vs. Macadaeg GR No. L-5924, Oct. officer upon the form or substance which
28, 1953) deposition. the witness desires to
Evidence objected make shall be entered
Protection Order (Section 16) and Motion to shall be taken upon the deposition by
to Terminate or Limit Examination (Section 18) subject to the the officer with a
distinguished: objections. In lieu statement of the reasons
1. The first provides protection to the party or of participating in given by the witness for
witness before the taking of the deposition, while the the oral making them. The
latter provides such protection during the taking of examination, deposition shall then be
the testimony; parties served signed by the witness,
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

unless the parties by And he came over. But the deposition did not
stipulation waive the Sec. 21. proceed because the party sending the notice did not
signing or the witness is Notice of filing. The show up. So he caused the other party a lot of
ill or cannot be found or officer taking the inconvenience. The Manila lawyer can file a motion in
refuses to sign. If the deposition shall court to ask for reimbursement of all his expenses in
deposition is not signed give prompt this case.
by the witness, the notice of its filing
officer shall sign it and to all the parties. Sec. 24. Failure of
state on the record the (21, R24) party giving notice to serve
fact of the waiver or of subpoena. If the party
the illness or absence of Sec. 22. giving the notice of the
the witness or the fact of Furnishing copies. taking of a deposition of
the refusal to sign Upon payment of a witness fails to serve a
together with the reason reasonable subpoena upon him and
given therefor, if any, charges therefor, the witness because of
and the deposition may the officer shall such failure does not
then be used as fully as furnish a copy of attend, and if another
though signed, unless on the deposition to party attends in person
a motion to suppress any party or to or by counsel because he
under section 29 (f) of the deponent. (22, expects the deposition
this Rule, the court holds R24) of that witness to be
that the reasons given taken, the court may
for the refusal to sign Any party can ask for a copy of the order the party giving
require rejection of the deposition upon payment of reasonable the notice to pay to such
deposition in whole or in charges therefor. other party the amount
part. (19a, R24) of the reasonable
expenses incurred by
So after the deposition of the deponent is Sec. 23. him and his counsel in so
taken, the deposition officer shall submit the Failure to attend of attending, including
deposition to the deponent for examination. He may party giving notice. reasonable attorneys
change his answers but he must state the reason for If the party giving fees. (24a, R24)
the change. And he signs it, unless the parties by the notice of the
stipulation waive the signing, or the witness is ill, or taking of a Suppose the opposing counsel is from Manila
cannot be found or refuses to sign. In the latter deposition fails to was notified of the schedule of the taking of a
cases, the deposition will be signed by the deposition attend and deposition of a witness in Davao. And he came over.
officer. proceed The party sending the notice is also present. But this
therewith and time it is the witness who is absent because the
Sec. 20. Certification another attends party sending the notice forgot to have the witness
and filing by officer. The in person or by subpoenaed. Again, the Manila lawyer can file a
officer shall certify on counsel pursuant motion in court to ask for reimbursement of all his
the deposition that the to the notice, the expenses.
witness was duly sworn court may order
to by him and that the the party giving
deposition is a true the notice to pay Procedure in deposition upon
record of the testimony such other party written interrogatories-
given by the witness. He
shall then securely seal
Lakas Atenista
the amount of the
reasonable Sec. 25. Deposition upon
12
written
the deposition in an expenses incurred
Ateneo de Davao University College of Law interrogatories; service of notice and of
envelope indorsed with by him and his interrogatories. A party desiring to
the title of the action counsel in so take the deposition of any person
and marked "Deposition attending, upon written interrogatories shall
of (here insert the name including serve them upon every other party
of witness)" and shall reasonable with a notice stating the name and
promptly file it with the attorneys fees. address of the person who is to
court in which the action (23a, R24) answer them and the name or
is pending or send it by descriptive title and address of the
registered mail to the Suppose the opposing counsel is from officer before whom the deposition
clerk thereof for filing. Manila was notified of the schedule of the is to be taken. Within ten (10) days
(20, R24) taking of a deposition of a witness in Davao. thereafter, a party so served may
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

serve cross-interrogatories upon notice and the examination. (28, R24)

the party proposing to take the interrogatories
deposition. Within five (5) days received by him. So the protections provided under Sections 15,
thereafter, the latter may serve re- (26, R24) 16 and 18 are also applicable in oral examinations.
direct interrogatories upon a party
who has served cross- Sec. 27.
interrogatories. Within three (3) Notice of filing and Mistakes in deposition taking and raising
days after being served with re- furnishing copies. objections-
direct interrogatories, a party may When a
serve recross-interrogatories upon deposition upon Sec. 29. Effects of
the party proposing to take the interrogatories is errors and irregularities in
deposition. (25, R24) filed, the officer depositions.
taking it shall (a) As to notice. All
The difference between a deposition upon oral promptly give errors and irregularities
examination and written interrogatories is that in oral notice thereof to in the notice for taking a
examination, the questions and the answers are oral. all the parties, deposition are waived
and may furnish unless written objection
Exchange of written interrogatories between copies to them or is promptly served upon
the parties then submitted to the deposition to the deponent the party giving the
officer who now direct the interrogatories for upon payment of notice.
the deponent to answer- reasonable (b) As to
charges therefor. disqualification of officer.
In deposition upon written interrogatories, the (27, R24) Objection to taking a
questions are prepared already in advance and that deposition because of
is direct interrogatories. And then they furnish you a Sec. 28. disqualification of the
copy and after receiving it, you may also, within 10 Orders for the officer before whom it is
days, prepare your questions or cross-interrogatories protection of parties to be taken is waived
and you also furnish them copies of it. And based on and deponents. unless made before the
that, they can ask further questions. If they are now After the service taking of the deposition
sufficient, the deposition officer shall compound the of the begins or as soon
question one by one but every question requires an interrogatories thereafter as the
answer. and prior to the disqualification becomes
taking of the known or could be
Practically, there is no personal testimony of the discovered with
confrontation of the witness. If your witness is deponent, the reasonable diligence.
abroad, it is very expensive for you to go there and court in which the (c) As to competency
conduct an oral examination. So, the practical means action is pending, or relevancy of evidence.
is only deposition upon written interrogatories. on motion Objections to the
promptly made by competency of a witness
Sec. 26. Officers to a party or a or the competency,
take responses and prepare deponent, and for relevancy, or materiality
record. A copy of the good cause of testimony are not
notice and copies of all shown, may make waived by failure to
interrogatories served any order make them before or
shall be delivered by the specified in during the taking of the
party taking the
deposition to the officer
Lakas Atenista
sections 15, 16
and 18 of this
deposition, unless the ground
of the objection is one which
13
designated in the notice, Rule which is might have been
Ateneo de Davao University College of Law
who shall proceed appropriate and obviated or removed if
promptly, in the manner just or an order presented at that time.
provided by sections 17, that the (d) As to oral
19 and 20 of this Rule, deposition shall examination and other
to take the testimony of not be taken particulars. Errors and
the witness in response before the officer irregularities occurring
to the interrogatories designated in the at the oral examination
and to prepare, certify, notice or that it in the manner of taking
and file or mail the shall not be taken the deposition, in the
deposition, attaching except upon oral form of the questions or
thereto the copy of the answers, in the oath or
1997 Rules on Civil Procedure Rule 23
2001 Edition <draft copy. pls. check for errors> Depositions Pending Action

affirmation, or in the
conduct of the parties
and errors of any kind
which might be obviated,
removed, or cured if
promptly prosecuted,
are waived unless
reasonable objection
thereto is made at the
taking of the deposition.
(e) As to form of
written interrogatories.
Objections to the form of
written interrogatories
submitted under
sections 25 and 26 of
this Rule are waived
unless served in writing
upon the party
propounding them
within the time allowed
for serving succeeding
cross or other
interrogatories and
within three (3) days
after service of the last
interrogatories
authorized.
(f) As to manner of
preparation. Errors and
irregularities in the
manner in which the
testimony is transcribed
or the deposition is
prepared, signed,
certified, sealed,
indorsed, transmitted,
filed, or otherwise dealt
with by the officer under
sections 17, 19, 20 and
26 of this Rule are
waived unless a motion
to suppress the
deposition or some part
thereof is made with
reasonable promptness
after such defect is, or
Lakas Atenista 14
with due diligence might
Ateneo de Davao University College of Law
have been, ascertained.
(29a, R24)

So, if you will notice, majority of all the errors

are waived if objection thereto is not promptly made.