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1997 Rules on Civil Procedure Rule 29 – Refusal to Comply

2001 Edition <draft copy. pls. check for errors> with


Modes of Discovery

Rule 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Rule 29 forms part of the study of the modes of discovery. The policy on
modes of discovery is that it is allowed and encouraged to determine, at
earlier time, essential issues and to promote settlement or expeditious trial.
Lawyers should avail of the modes of discovery because they are very helpful
in determining the issues and will even provoke a settlement if you believe na
wala kang laban.

And there were circulars issued by the SC on this matter. Example Circular
No. 13-87 (July 13, 1987) where the SC said that lawyers and parties should be
encouraged to avail the modes of discovery procedures provided for in the
rules. This is a neglected area in judicial process. Its use will expedite the
determination of cases.

Modes of discovery are popular in the US. 99 percent of lawyers in the US


avail of these procedures. Practically, all parties avail the same even before the
trial. At pre-trial stage, all evidence are already prepared for the case. In the
Philippines, it is the exact opposite. Filipino lawyers rarely resort to modes of
discovery despite the admonition by the SC. Siguro, it is our culture. As
much as possible we want to keep things to ourselves. [pinapalabas na lang sa
pwet! he! he!]

Remember DBP vs. CA on the issue of pre-trial where Justice Narvasa


complained of the courts and the parties to avail 100% of the process of pre-
trial? There is another case naman involving the modes of discovery where
the same Justice lamented the inability of lawyers and even judges to
effectively apply the modes of discovery. I’m referring to the case of

REPUBLIC vs. SANDIGANBAYAN


204 SCRA 212

HELD: “It appears to the Court that among far too many lawyers
(and not a few judges), there is, if not a regrettable unfamiliarity and
even outright ignorance about the nature, purposes and operation of
the modes of discovery, at least a strong yet unreasoned and
unreasonable disinclination to resort to them— which is a great pity
for the intelligent and adequate use of the deposition-discovery
mechanism, coupled with pre-trial procedure, could, as the
experience of other jurisdictions convincingly demonstrates,
effectively shorten the period of litigation and speed up
adjudication.”
Lakas Atenista 32
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

“Evidentiary matters may be inquired into and learned by the


parties before the trial. The desideratum is that civil trials should not
be carried on in the dark. The Rules of Court make this ideal possible
through the deposition-discovery mechanism set forth. The
experience in other jurisdictions has been that ample discovery before
trial, under proper regulation, accomplished one of the most
necessary ends of modern procedure: it not only eliminates
unessential issues from trials thereby shortening them considerably,
but also requires parties to play the game with the cards on the table
so that the possibility of fair settlement before trial is measurably
increased.”
“The various modes or instruments of discovery are meant to
serve (1) as a device, along with the pre-trial hearing under Rule 18,
to narrow and clarify the basic issues between the parties, and (2) as a
device for ascertaining the facts relative to those issues.”
“Hence, the deposition-discovery rules are to be accorded a broad
and liberal treatment. No longer can the time-honored cry of ‘fishing
expedition’ serve to preclude a party from inquiring into the facts
underlying his opponent’s case. Mutual knowledge of all the relevant
facts gathered by both parties is essential to proper litigation. To that
end, either party may compel the other to disgorge whatever facts he
has ill his possession. The deposition-discovery procedure simply
advances the stage at which the disclosure can be compelled from the
time of trial to the period preceding it, thus reducing the possibility,
of surprise.”

SEC. 1. Refusal to answer. - If a party or


other deponent refuses to answer any question
upon oral examination, the examination may be
completed on other matters or adjourned as the
proponent of the question may prefer. The
proponent may thereafter apply to the proper
court of the place where the deposition is being
taken, for an order to compel an answer. The
same procedure may be availed of when a party or
a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
If the application is granted, the court shall
require the refusing party or deponent to answer
the question or interrogatory and if it also
finds that the refusal to answer was without
substantial justification, it may require the
refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the
proponent the amount of the reasonable expenses
Lakas Atenista 33
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

incurred in obtaining the order, including


attorney's fees.
If the application is denied and the court
finds that it was filed without substantial
justification, the court may require the
proponent or the counsel advising the filing of
the application, or both of them, to pay to the
refusing party or deponent the amount of the
reasonable expenses incurred in opposing the
application, including attorney's fees. (1a)

Refusal to comply with modes of discovery and sanctions


A. Refusal to answer any question - - 1. the court may, upon proper
application, compel a refusing deponent to answer (sec. 1)

a.) if granted and refusal to answer is without substantial justification, the


court may require the refusing party to pay the proponent the amount of the
reasonable expenses incurred in obtaining the order, including attorney's fees;
b.) if denied and filed without substantial justification, the court may
require the proponent to pay the refusing party the amount of the reasonable
expenses incurred in obtaining the order, including attorney's fees.

2. a refusal to answer after being directed to do so may be considered as


contempt of court. (Sec. 2)

B. Refusal to be sworn - - - cite the deponent in contempt of court;

C. Refusal to answer designated questions or refusal to produce documents


or to submit to physical or mental examination (Sec. 3) - - - the court may
make the following orders:
1. prohibit the disobedient party from introducing evidence of physical or
mental condition;
2. refuse to allow the disobedient party to support or oppose claims or
defenses;
3. strike out pleadings or parts thereof;
4. stay further proceedings;
5. dismiss the action or proceeding or any part thereof;
6. render a judgment by default gainst disobedient party;
7. direct the arrest of any party or agent of a party disobeying any of such
orders except an order to submit to a physical or mental examination;

D. Refusal to admit under Rule 26 (Sec. 4) - - - the court, upon proper


application, issue an order requiring the other party to pay him reasonable
expenses incurred, including attorney's fees;

Lakas Atenista 34
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

E. Failure of Party to attend or serve answers to written interrogatories (sec.


5) - - - the court, on motion and notice:
1. strike out all or any part of any pleading of disobedient party;
2. dismiss the action or proceeding or any part thereof;
3. enter a judgment by default against disobedient party;
4. order payment of reasonable expenses incurred by the other including
attorney's fees.

If a party refuses to answer the whole written interrogatories, Sec. 5 of R 29


applies.

Where a party refuses to answer a particular question in the set of written


interrogatories and despite an order compelling him to answer, still refuses to
obey the order, Sec. 3(c) will apply (Zepeda vs. China Bank GR No. 172175,
Oct. 9, 2006).

expenses and attorney's fees are not to be imposed upon the Republic of
the Philippines.

SEC. 2. Contempt of court. - If a party or


other witness refuses to be sworn or refuses to
answer any question after being directed to do so
by the court of the place in which the deposition
is being taken, the refusal may be considered a
contempt of that court. (2a)

SEC. 3. Other consequences. - If any party or


an officer or managing agent of a party refuses
to obey an order made under section 1 of this
Rule requiring him to answer designated
questions, or an order under Rule 27 to produce
any document or other thing for inspection,
copying, or photographing or to permit it to be
done, or to permit entry upon land or other
property, or an order made under Rule 28
requiring him to submit to a physical or mental
examination, the court may make such orders in
regard to the refusal as are just, and among
others the following:
(a) An order that the matters regarding
which the questions were asked, or the character
or description of the thing or land, or the
contents of the paper, or the physical or mental
condition of the party, or any other designated
facts shall be taken to be established for the
Lakas Atenista 35
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

purposes of the action in accordance with the


claim of the party obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose designated
claims or defenses or prohibiting him from
introducing in evidence designated documents or
things or items of testimony, or from introducing
evidence of physical or mental condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a
judgment by default against the disobedient
party; and
(d) In lieu of any of the foregoing orders
or in addition thereto, an order directing the
arrest of any party or agent of a party for
disobeying any of such orders except an order to
submit to a physical or mental examination. (3a)

These are other consequences in addition to Section 1. These refer to the


refusal to obey an order under Rule 27 and Rule 28 which can even cost your
case. The court will make an order that would make the disobedient party
suffer. If he is the plaintiff, his complaint will be stricken out.

Or if he is the defendant, judgment of default can be rendered against him


although the judgment of default can only be done if he failed to file an
answer. But his refusal to comply with a mode of discovery is the exception to
the case. This is one instance when a judgment by default can be rendered
against a defendant who filed an answer. And that is the worst penalty for
refusing to cooperate.

SEC. 4. Expenses on refusal to admit. - If a


party after being served with a request under
Rule 26 to admit the genuineness of any document
or the truth of any matter of fact, serves as
sworn denial thereof and if the party requesting
the admissions thereafter proves the genuineness
of such document or the truth of any such matter
of fact, he may apply to the court for an order
requiring the other party to pay him the
reasonable expenses incurred in making such
proof, including attorney's fees. Unless the
court finds that there were good reasons for the
denial or that admissions sought were of no

Lakas Atenista 36
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

substantial importance, such order shall be


issued. (4a)

Section 4 pertains to Rule 26 on request for admission. If X was able to


prove something that Y refused to admit, Y can be held liable for expenses
and attorney's fees for refusing to admit something which turned out to be
true. If it is something true, you might as well admit it. Do not put the other
party into trouble for you might be held liable for the expenses later on.

SEC. 5. Failure of party to attend or serve


answers. - If a party or an officer or managing
agent of a party willfully fails to appear before
the officer who is to take his deposition, after
being served with a proper notice, or fails to
serve answers to interrogatories submitted under
Rule 25 after proper service of such
interrogatories, the court on motion and notice,
may strike out all or any part of any pleading of
that party, or dismiss the action or proceeding
or any part thereof, or enter a judgment by
default against that party, and in its
discretion, order him to pay reasonable expenses
incurred by the other, including attorney's fees.
(5)

Section 5 is identical to previous consequences. If a party is served with


interrogatories and he refuses to answer under Rule 25, he can be penalized
with the ultimate penalty of dismissal of the case or judgment by default.
Thus, the ultimate effect is that, a party who refuses to cooperate may lose
the case ultimately.

Normally, default judgment applies only to a defendant who failed to file


an answer. But Rule 29 allows a default judgment even if you filed an answer
for failure to comply with the modes of discovery. So, this is one instance
when a judgment by default can be rendered against a defendant who filed an
answer.

INSULAR LIFE ASSURANCE CO., LTD. vs. COURT OF


APPEALS
238 SCRA 88 [1994]

FACTS: There was a refusal here of one party to answer an


interrogatory. So the other party asked the court to issue an order.
The court then ordered the other party to answer, but he still refused.
Lakas Atenista 37
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

So, the plaintiff filed a motion for judgment of default against the
defendant (or dismissal of the case) citing Section 5 – where if one
refuses to cooperate, the case will be dismissed or a judgment of
default can be rendered against the party.
But the judge ruled that the case shall continue. The party now
went to the SC contending that the judge committed a grave abuse of
his discretion in refusing to apply the sanctions allowed by law.

HELD: While it is true that there are sanctions allowed by law in


cases of refusal to comply with the modes of discovery, the same is
DISCRETIONARY. Meaning, let the court decide whether justice will
be served by going to trial or not. So there was no grave abuse of
discretion on the part of the judge.
“The matter of how, and when, the above sanctions should be
applied is one that primarily rests on the sound discretion of the
court where the case is pending, having always in mind the
paramount and overriding interest of justice. For while the modes of
discovery are intended to attain the resolution of litigations with
great expediency, they are not contemplated, however, to be ultimate
causes of injustice. It behooves trial courts to examine well the
circumstances of each case and to make their considered
determination thereafter. It is only in clear cases of grave abuse of
that discretion when appellate courts will interfere in their
judgment.”
In other words, courts are still given the leeway of whether or not
to apply the ultimate sanctions.

NOTE: The ruling in this case was reiterated in the 1996 case of
SANTIAGO LAND DEVELOPMENT CO. vs. CA, July 9, 1996 (258
SCRA 535) and the 1998 case of DELA TORRE vs. PEPSI-COLA
PRODUCTS, October 30, 1998 (298 SCRA 363)

FORTUNE CORPORATION vs. COURT OF APPEALS


229 SCRA 355

ISSUE: Are the 5 modes of discovery cumulative or exclusive?


Can a party resort to any modes of discovery or are they intended to
be an exclusion of the other?

HELD: “The various methods of discovery as provided for in the


Rules are clearly INTENDED TO BE CUMULATIVE, as opposed to
alternative or mutually exclusive.”

Lakas Atenista 38
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

“Under the present Rules the fact that a party has resorted to a
particular method of discovery will not bar subsequent use of other
discovery devices, as long as the party is not attempting to
circumvent a ruling of the court, or to harass or oppress the other
party.”

There was a time when I did this. I used a variety or combination of the
different modes. I was interested in knowing some evidence from the other
party. So, interrogatories, then sagot. I asked them on how they were going to
prove it and whether they going to present witnesses and documents. Yes
daw. So, I used production and inspection na naman. So may order na naman.
If they have witnesses to be presented, then deposition na naman. In other
words, we can avail all of this.

The consequences under Sec. 5 will apply if a party refuses to answer the
whole set of written interrogatories, and not just a particular question. Where
the party upon whom the written interrogatories is served, refuses to answer
a particular question in the set of written interrogatories and despite an order
compelling him to answer the particular question, still refuses to obey the
court, Sec. 3© of Rule 29 will apply (Cepeda v. China Banking Corporation GR
No. 172175, October 9, 2006).

The following are the consequences provided for in Sec. 3©:

(a) The court may issue an order striking out pleadings or parts thereof;
(b) The court may issue an order staying further proceedings until the order
is obeyed; or
(c) The court may issue an order rendering a judgment by default against
the disobedient party.

The matter of how, and when, the above sanctions should be applied is one
that primarily rests on the sound discretion of the court where the case is
pending, having always in mind the paramount and overriding interest of
justice. For while the modes of discovery are intended to attain the resolution
of litigations with great expediency, they are not contemplated, however, to
be ultimate causes of injustice. It behooves trial courts to examine well the
circumstances of each case and to make their considered determination
thereafter (Zepeda vs. China Banking Corporation)

Q: To summarize, what are the instances when a defendant shall be


considered in default even if such defendant has already filed an answer?

Lakas Atenista 39
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 29 – Refusal to Comply
2001 Edition <draft copy. pls. check for errors> with
Modes of Discovery

A: The following are the instances:


1.) Failure to appear at the pre-trial conference (Rule 18); and
2.) Failure to cooperate in the mode of discovery (Section 5, Rule 29).

Lakas Atenista 40
Ateneo de Davao University College of Law