Rule 23

Rule 23
DEPOSITIONS PENDING ACTION
 Rule 23 rule regulates Depositions de bene esse or those taken for the purpose of a
pending action as a mode of discovery.
 Rule 24 regulates Depositions perpetuam in rei memoriam or those taken to
perpetuate evidence for purposes of an anticipated action or further proceedings in a
case on appeal.
 DISCOVERY - (Koh vs. IAC)
a. To obtain knowledge through depositions; through written interrogatories
b. To obtain admission from adverse party;
c. To inspect relevant documents or objects and lands or other property;
d. To determine the physical and mental condition of a party.
 AM No. 03-1-09-SC – (July 13, 2004) provides the guidelines in the conduct of pre-trial
and use of deposition discovery measures.
 Under the guideline, the trial courts are directed to issue orders requiring the parties
to avail of interrogatories to parties under Rule 45 and request for admission of
adverse party under Rule 26 or at their discretion make use of depositions under Rule
23 or other measures under Rule 27 and 28 within 5 days from filing of the answer.
 The parties are likewise required to submit, at least 3 days before the pretrial, pre-trial
briefs, containing among others, a manifestation of their having availed or their
intention to avail of discovery procedures.
 Discovery procedures discretionary on parties concerned.
 When deposition may be taken:
 a. By leave of court after such jurisdiction has been obtained over any defendant or
over property which is the subject of the action; or
b. Without such leave after the answer has been filed.
 Different Modes of Discovery
1. Depositions Pending Action (Rule 23)
2. Deposition Before Action or Pending Appeal (Rule 24)
3. Admission by Adverse Party (Rule 26)
4. Production or Inspection of Documents or Things (Rule 27) and
5. Physical and Mental examination of Persons (Rule 28)
 Deposition is not a condition sine qua non to the holding of the pre-trial. Therefore, it
is not a valid ground to suspend the holding of pre-trial and trial on the merits.
 Discovery procedure thru modes of discovery must be done after filing of complaint
or after answer is filed without unduly delay.
 Difference between deposition and trial. Deposition is for the purpose of
“discovering” evidence while trial is for the purpose of “presenting” evidence to the
court.
 If the petitioners’ concern was the delay in the disposition of the case, the remedy is
to expedite the taking of the depositions, not terminate them altogether.
 While speedy disposition of cases is important, such consideration should not
outweigh a thorough and comprehensive evaluation of cases.
 Pending petition for certiorari without restraining order is not a ground to postpone
pre-trial.
 Exception: Unless certiorari is filed in good faith and meritorious as party needs to
obtain critical evidence through discovery.

 A deposition should be allowed, unless there is a showing that taking it would
prejudice any party.
 Attendance of witnesses may be compelled by the use of a subpoena.
 The deposition of a person confined in prison may be taken only by leave of court on
such terms as court prescribes .
 Availability of deponent to testify in court does not constitute “good cause” to justify
court’s order that his deposition shall not be taken.
 Deposition is not generally a substitute for the actual testimony. If available, a party’s
of witness’ deposition is inadmissible in evidence for being hearsay.
 The exceptions however to the inadmissibility of such deposition are provided for in
Rule 23, Section 4, as follows:
a. Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;
b. The deposition of a party or any one who at the time of taking the deposition was
an officer, director or managing agent of a public or private corporation,
partnership or association which is a party may be used by an adverse party for
any purpose;
c. The deposition of a witness, whether or not a party , may be used by any party
for any purpose if the court finds:
1. That the witness is dead; or
2. That the witness resides at a distance more than 100 km from the place of
trial or hearing, or is out of the Philippines, unless his absence is procured by
the party offering the deposition, or
3. That the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment, or
4. That the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
5. Upon application and notice, that such exceptional circumstance exist as to
make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open court, to
allow the deposition to be used; and
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.
 A judgment by default may be rendered against a party who fails to serve his answer
to written interrogatories
 Scope of Examination: regarding any matter, not privileged, which is relevant to the
subject of the pending action.
 In the absence of a prayer for general relief, the moving party usually is confined to
the relief asked for in the motion or specified in its notice; at most, relief necessarily
incident to what was asked for may be granted.
 Examination and cross-examination of deponents may proceed as permitted at the
trial under sections 3 to 18 of Rule 132.
 Under Sec. 17, the officer before the deposition is taken does not have the power to
rule upon the objections to the questions. He should merely have such objections
noted in the deposition.
 Depositions are generally not meant to be a substitute for actual testimony in open
court of a party or witness.

 Depositions may be used without the deponent being called to the witness stand by
the proponent, provided conditions is first satisfactorily established. Among these is
when the witness is out of the Philippines.
 Trial court’s admission of deposition must be respected.
 Republic Act No. 8493, otherwise known as “The Speedy Trial Act of 1998,”
stipulations entered into during the pre-trial which are approved by the trial court and
formed part of the records of the case is binding.
 Admissibility of deposition may still be objected on the ground it is hearsay inspite of
the opportunity of cross-examination during the taking of deponent’s deposition.
 As a rule, the inadmissibility of testimony taken by deposition is anchored on the
ground that such testimony is hearsay, i.e. the party against whom it is offered has
no opportunity to cross examine the deponent at the time his testimony is offered.
But as jurisprudence teaches, it matters NOT that opportunity for examination must
be accorded a party at the time of testimonial evidence is actually presented against
him during the taking of the deposition cannot, without more, be considered a waiver
of the right to object to its admissibility in court as evidence in the taking of the
deposition, BUT objecting to its admissibility in court as evidence, petitioner did not
assume inconsistent positions. He is not, thus, stopped from challenging the
admissibility of the deposition just because he participated in the taking thereof.
 Deposition is not be used when the deponent is at hand.
 Objections to errors and irregularities in depositions are deemed waived if not
objected to before or during the taking of the deposition.
 Objections to the competency of a witness or the competency, relevancy, or
materiality of testimony may be made for the first time at trial.
 Certiorari will not lie against an order admitting or rejecting a deposition, the remedy
being an appeal from the final judgment.
 The primary function of depositions is to supplement the pleadings for the purpose of
disclosing the real points of dispute.
 The use of discovery procedures is directed to the sound discretion of the trial
courts.
 Deposition in foreign country is not within the trial court’s power, much less the
respondent’s to force the Clerk of Court of foreign country to have the deposition
taken before it. After all, while a court had the authority to entertain a deposition
request, it is not required to provide judicial assistance thereto.
 How depositions in foreign countries may be taken: In our jurisdiction
a. On notice before a secretary of embassy or legation, consul general, consul, vice
consul, or consular agent of the Republic of the Philippines,
b. Before such person or officer as may be appointed by commission or under letters
rogatory; or
c. Before any person authorized to administer oaths as stipulated in writing by the
parties.
 While letters rogatory are requests to foreign tribunals, commissions are directives to
officials of the issuing jurisdiction.
COMMISSION LETTERS ROGATORY
Is an instrument issued by a court of justice, or
other competent tribunal , directed to a
magistrate by his official designation or to an
individual by name, authorizing him to take the
Is a request to a foreign court to give its
aid, backed by its power, to secure
desired information.

depositions of the witnesses named therein
is taken in accordance with the rules laid down
by the court issuing the commission.
The methods of procedure are under the
control of foreign tribunal.
 The authentication made by the consul was a ratification of the authority of the
notary public who took the questioned depositions. (The deposition was, in effect,
obtained through a commission and no longer through letters rogatory.)
 When leave of court not required: when the deposition is to be taken before a
secretary of embassy or legation, consul, general, consul, vice-consul or consular
agent of the Republic of the Philippines and the defendant’s answer has already been
served.
 Deposition is not restricted to sole function of being a mode of discovery before trial;
it may be taken even after trial has commenced and may be used without the
deponent being actually called to the witness stand.
 There is no prohibition against the taking of depositions after pre-trial.
 Depositions are allowed, provided they are taken in accordance with the provisions of
the ROC.
 Court discretion in deposition is not unlimited. Taking of deposition should not be
allowed when:
a. A deposition does not conform to essential requirements of the law and may
materially cause injury to the adverse party;
b. The ends of justice would be better served if the witness was brought to the trial
court to testify.
c. The trial court had already admitted the exhibits on which the witnesses would
have testified.
 Remedy of adverse party if only part of a deposition is offered in evidence: Require to
introduce all of it which is relevant to the part introduced, and any party may
introduce any other parts.
_________________________________________
Sections 17 to 29 do not have annotations.

Rule 23

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Rule 23