DEPOSITION

RULE 23: DEPOSITIONS PENDING ACTIONS

DEPOSITION – is the testimony of a witness taken upon oral examination or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution.

            It is a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party

v  Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding.

DEPOSITIONS	AFFIDAVITS
Written testimony of witness in course of judicial proceedings, in advance of trial and hearing	Mere sworn written statements
Opportunity for cross-examination	Ex-parte statements without formal interrogation and  cross-examination
Can be competent testimonial evidence	Little probative value (hearsay) Not admissible in evidence except in cases governed by the Rule on Summary Procedure

GENERAL PROVISIONS ON DEPOSITIONS (Sections 1-14)

SECTION 1: Depositions pending action, when may be taken.—By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (1a, R24)

 WHAT ARE THE USES OF DEPOSITIONS:

SEC. 4. Use of depositions.—At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

(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 of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;

(c)  The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and

(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. (4a, R24)

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)

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

SEC. 9. Rebutting deposition.—At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. (9, R24)

SEC. 10. Persons before whom depositions may be taken within the Philippines.—Within the Philippines, depositions must be taken before any judge, notary public, on the person referred to in section 14 hereof. (10a, R24)

SEC. 11. Persons before whom depositions may be taken in foreign countries.—In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) the person referred to in section 14 hereof. (11a, R24)

SECTION 12: SEC. 12. Commission or letters rogatory.—A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. (12n, R24)

SEC. 13. Disqualification by interest.—No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (13a, R24)

SEC. 14. Stipulations regarding taking of depositions.—If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. (14a, R24)

SEC. 15. Deposition upon oral examination; notice; time and place.—A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is at known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15, R24)

SEC. 16. Orders for the protection of parties and deponents.— After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall b opened only by order of the court, or that secret processes developments, or research need not be disclosed, or that the parties shall simultaneously filed specified documents or information enclosed in sealed envelope to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a, R24)

SEC. 17. Record of examination; oath; objections.—The officer before whom the deposition is to be taken shall put the witness or oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17, R24)

SEC. 18. Motion to terminate or limit examination.—At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner, as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. (18a, R24)

WHEN TO FILE:

(a)   any time during the taking of the deposition

(b)   on motion or petition of any party  or of the deponent; or

(c)    upon showing that the examination is conducted in bad faith in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party

SEC. 19. Submission to witness; changes; signing.—When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection Of the deposition in whole or in part. (19a, R24)

SEC. 20. Certification and filing by officer.—The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked “Deposition of (here insert the name of witness)” and shall promptly file it  with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. (20, R24)

SEC. 21. Notice of filing.—The officer taking the deposition shall give prompt notice of its filing to all the parties. (21, R24)

SEC. 22. Furnishing copies.--Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (22, R24)

PASTE PROCEDURE TO DEPONENT P. 44 & 45

SEC. 23. Failure to attend of party giving notice.—If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending including reasonable attorney’s fees. (23a, R24)

SEC. 24. Failure of party giving notice to serve subpoena.— If  the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending including reasonable attorney’s fees. (24a, R24)

SEC. 25. Deposition upon written interrogatories; service of notice and of interrogatories.—A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name of descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25, R24)

SEC 25. Depositions upon written interrogatories

à  Party desiring to take such deposition shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name and descriptive title of the officer before whom the deposition is to be taken;

à  Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter

à  Re-direct interrogatories served within 5 days

à  Re-cross interrogatories served within 3 days

SEC. 26. Officers to take responses and prepare record.—A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and filed or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (26, R24)

SEC. 27. Notice of filing and furnishing copies.—When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (27, R24)

SEC. 28. Orders for the protection of parties and deponents.—After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (28a, R24)

RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

SECTION 1. Depositions before action; petition.—A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may filed a verified petition in the court of the place of the residence of any expected adverse party. (1a, R134)

Section 1. Depositions before action; petition.

A person desiring to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Phils may file a verified petition in the court of the place of the residence of any expected adverse party, which petition shall be entitled in the name of the petitioner and shall show:

   1) That petitioner expects to be a party to an action in a court of the Phils but is presently unable to bring it or cause it to be brought;

   2) The subject matter of the expected action and his interest therein;

   3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;

   4) The names or description of the persons he expects will be the adverse parties and their addresses so far as known;

   5) The name and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each.

***  This Rule regulates the taking of depositions in perpetuam rei memoriam.

***  Depositions under this Rule are also taken conditionally, to be used at the trial only in case the deponent is not available.

***  Depositions under this Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had.  However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.

SEC. 2. Contents of petition.—The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (2, R134)

SEC. 3. Notice and service.—The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3a, R134)

SEC. 4. Order and examination.—If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4a, R134)

SEC. 5. Reference to court.—For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (5a, R134)

SEC. 6. Use of deposition.—If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134)

Section 6. Use of deposition.

***  If deposition is taken under this Rule, it may be used in any action involving the SAME SUBJECT MATTER subsequently brought.

SEC. 7. Depositions pending appeal.—If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, R134)

Section 7. Depositions pending appeal.

***  Sec. 7 is the procedure in perpetuating testimony AFTER JUDGMENT IN THE RTC and  DURING THE PENDENCY OF AN APPEAL.

***  Deposition pending appeal – a case is dismissed by the TC before witnesses could be presented and the party desiring it, expects the dismissal to be reversed on appeal.