7. La carrera espacial
7.1.3. Carteles que hacen referencia a la paz y la libertad
WHAT IS DISCOVERY
1. The methods used by the parties to a civil action to obtain information held by the other party that is relevant to the action.
PURPOSES OF DISCOVERY
1. The purposes of resort to discovery are: (a) It is a device to narrow down / clarify the basic issues between the parties (b) It is a device to ascertain the facts relevant to the issues.
1.1 Relevancy is determined by its logical tendency to prove or disprove a fact or to make the fact more or less probable.
WHAT ARE THE MODES OF DISCOVERY
1. The modes of discovery (a) Deposition pending action (b) Deposition 485
before action or pending appeal 486(c) Interrogatories to parties (d) Request for 487
admission by adverse party (e) Production or inspection of documents / 488
things (f) Physical / mental examination of persons 489 490
WHAT IS A DEPOSITION
1. A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action.
1.1 This testimony is taken out of court by oral examination or written interrogatory.
WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN
Supra, Rule 23 485 Supra, Rule 24 486 Supra, Rule 25 487 Supra, Rule 26 488 Supra, Rule 27 489 Supra, Rule 28 490
1. With leave of court, after jurisdiction has been acquired / obtained over any defendant or over property which is the subject of the action as the issues are not yet joined and disputed facts are not yet clear or if a person is confined in a prison with leave of court only, on such terms that the Court may prescribe. 2. Without leave of court, after an answer has been served. 491
WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM
1. Any person, whether a party or not, upon oral examination or written interrogatory upon the initiative of any party.
SCOPE OF A DEPOSITION
1. The deponent may be examined regarding any matter, not privileged , which is relevant to the subject of the pending action whether it relates to a claim or a defense of any other party.
1.1 Including the existence, description, nature, custody, condition, location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts. 492
2. The taking and scope of a deposition after notice is served for its taking by oral examination may be limited.
2.1 Upon motion seasonably filed, by a party or the person to be examined, and for good cause shown, the court in which the action is pending may order: (a) Deposition not be taken (b)It be taken only at some designated place other than that stated in the notice (c)It be taken only on written interrogatories (d) That certain matters shall not be inquired into (e) That scope of the examination shall be held without anyone present except the parties to the action, and their officers of counsel (f)That after depositions are sealed, they shall be opened only by order of the court (g)That secret processes, developments or research need not be disclosed (h)That parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court (i) That court may make any order which justice requires to protect the party or witnesses from annoyance embarrassment or oppression. 493
Supra, Section 1, Rule 23
491
Supra, Section 2, Rule 23
492
Supra, Section 16, Rule 23
3. During the taking of the deposition, it shall be taken subject to the additional limitations:
3.1 During the taking of the deposition, on motion or petition of any party or the deponent upon showing that the examination is being conducted in bad faith or in such manner as to unreasonably annoy, embarrass or oppress the deponent or a party, the court where the action is pending or the RTC of the place where deposition is being taken may order the officer taking the examination to cease forthwith or limit the scope as provided in Section 16.
3.2 If terminated, it shall be resumed thereafter only upon order of the Court in which the action is pending. Upon demand of the objecting party/deponent, the taking shall be suspended for the time necessary to make a notice for an order. In granting/refusing such order, the court may impose upon either party or upon the witness the requirement to pay costs/expenses as the Court may deem reasonable. 494
BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1. Within the Philippines: a judge, notary public, or person authorized to administer oaths, at any time or place if so stipulated in writing by the parties. 495
2. In foreign countries: On notice before a secretary of the embassy or legation or the diplomatic minister and his staff, consul general, consul, vice consul or consular agent of the Republic of the Philippines, or before such person or officer as may be appointed by commission or letters rogatory. 496
2.1 A Commission is an instrument issued by a court of justice or other competent tribunal to authorize persons to take a deposition or do any other act by authority of such court or tribunal. A Commission is addressed to officers designated by name or descriptive title.
2.2 Letters Rogatory is an instrument sent in the name and by authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. Letters Rogatory are addressed to a judicial authority in a foreign country and may be applied for and issued only after a commission has been returned unexecuted.
Supra, Section 18, Rule 23
494
Supra, Sections 10 and 14, Rule 23
495
Supra, Sections 11, 12, and 14, Rule 23
WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS
1. A Person who is a relative within the 6th degree of consanguinity / affinity
or employee or counsel of any of the parties or relative within the same degree or employee of counsel or is financially interested in the action. 497
TAKING OF A DEPOSITION UPON AN ORAL EXAMINATION
1. The taking is initiated by the giving of reasonable notice in writing to every other party to the action, which must state the time / place of the taking of the deposition and the name and address of the person to be examined, if known, If not known, a general description sufficient to identify him or the particular class or group to which he belongs.
1.1 On motion of a party upon whom notice is served, the court , for cause, may enlarge or shorten the time. 498
2. Officer taking the deposition shall put the witness under oath and shall personally, or by someone acting under his direction and his presence record the testimony of the witness stenographically unless the parties agree otherwise. 3. All objections as to the qualifications of the officer taking the deposition, the manner of taking the evidence presented, conduct of the parties or any other objection shall be noted. Any evidence objected to shall be taken subject to the objections.
4. Parties served with notice, in lieu of participating in the taking of the deposition, may submit written interrogatories, which the officer taking the deposition shall propound to the witness and record the answers verbatim. 499
5. After the taking of the deposition, and testimony is transcribed, it is submitted to the witness for examination and shall be read to or by him, unless such is waived by the witness and the parties. If there are changes, in form or substance which the witness desires to make, it shall be entered upon the deposition by the officer with a statement as to the reason given by the witness as why they are being made.
6. The deposition is then 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.
Supra, Section 13, Rule 23
497
Supra, Section 15, Rule 23
498
Supra, Section 17, Rule 23
7. If not signed, the officer shall sign it and state on the record why it was not signed together with reasons. If there is refusal to sign, the effect is that the deposition then may be used fully as though signed, unless on a motion to suppress under Sec 29 (f) , pertaining to errors or irregularities in preparation, the Court holds that the reason for refusal to sign require rejection of the deposition in whole or in part. 500
8. Once signed, 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 of the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “deposition of _______” to be promptly filed with the court where the action is pending or sent by registered mail to the clerk thereof for filing. 501
9. Notice of filing shall then promptly be given by the officer to all parties 502
and upon payment of reasonable charges, he is to furnish copies of the deposition to any party or the deponent. 503
TAKING OF A DEPOSITION UPON WRITTEN INTERROGATORIES
1. Party desiring to take the deposition upon written interrogatories shall serve them upon every other party with notice stating: (a) name and address of the person who will answer them (b) descriptive title and address of the person who will take the deposition (c) Within 10 days, party served may serve cross- interrogatories on the party proposing to take the deposition (d) Within 5 days thereafter, the latter may serve re-direct interrogatories upon the party serving cross–interrogatories (5) within 3 days after being served of re-direct interrogatories, a party may serve re-cross interrogatories upon party proposing to take deposition. 504
2. A copy of the notice and copies of all interrogatories shall be delivered by the party taking the deposition to officer designated in the notice, who shall proceed promptly in the manner provided by Sections 17, 19 and 20 to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file / mail the deposition attaching copies of the notice and interrogatories. 505
Supra, Section 19, Rule 23
500
Supra, Section 20, Rule 23
501
Supra, Section 21, Rule 23
502
Supra, Section 22, Rule 23
503
Supra, Section 25, Rule 23
504
Supra, Section 26, Rule 23
3. Officer must promptly give notice of filing / and may furnish copies to parties and deponent upon payment of reasonable charges. 506
4. Note that Sections 15, 16 and 18 are applicable and that by motion, it can be asked that the deposition be upon oral examination.
EFFECT OF NON-APPEARANCE
1. If party giving notice fails to appear and another attends in person or by counsel, the Court may order the party giving notice to pay reasonable expenses incurred to attend, including reasonable attorney’s fees. 507
2. If party giving notice does not serve subpoena and the witness does not appear, court can order party giving notice to pay reasonable expenses for attendance plus attorney’s fees to a party who appears in person or by counsel 508
TAKING OF DEPOSITIONS BEFORE ACTION OR PENDING APPEAL OR DEPOSTIONS IN PERPETUAM REI MEMORIAM
1. A deposition before action is initiated by the filing of a verified petition by a person desiring to perpetuate his testimony or that of any person in relation to any matter cognizable in any court in the Philippines in the Court in the place of residence of the expected adverse party. 509
1.1 The contents of the petition which shall be entitled in the name of the petitioner and should show: (a) That petitioner expects to be a party to an action in a Court in 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 that he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it (d) The names or description of the person he expects will be adverse parties and their addresses so far as known (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 then 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. 510
Supra, Section 27, Rule 23
506
Supra, Section 23, Rule 23
507
Supra, Section 24, Rule 23
508
Supra, Section 1, Rule 24
509
Supra, Section 2, Rule 24
1.2 To Perpetuate means to preserve or make available testimony for later use at a trial by means of deposition.
2. After the petition is completed, 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: he will apply to the Court at a time and place stated therein, for the order described in the petition.
2.1 At least 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.
3. If the Court is satisfied that the perpetuation of testimony may prevent a failure of justice or delay of justice, it shall make an order designating or describing the persons whose depositions are to be taken, specifying the subject and whether it will be upon oral execution or written interrogatories under Rule 23. 511
3.1 For purposes of applying Rule 23, references to the court in which the action is pending shall be deemed to refer to the court in which petition for such deposition is filed. 512
4. A deposition taken under the Rule or although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter contained in petition subsequently brought in accordance with Sections 4 and 5 of Rule 23. 513
5. A deposition pending appeal can be had If appeal is taken from a judgment of a Court including the CA in proper cases or before the taking of an appeal if the time therefore has not yet expired.
5.1 The Court in which judgment was rendered may allow taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said Court.
5.2 It is initiated by a party making a motion in said Court for leave to take depositions – upon the said notice and service thereof as if the action was pending therein, the motion should state: (a) name and addresses of persons to
Supra, Section 3, Rule 24 Supra, Section 4, Rule 24
511
Supra, Section 5, Rule 24
512
Supra, Section 6, Rule 24
be examined and substance of testimony to be elicited (b) reasons for perpetuating testimony.
5.3 If Court finds that it is proper to avoid failure or delay of justice, it may allow the depositions to be taken and used in the same manner and under same conditions as prescribed for depositions in pending actions. 514
EFFECT OF TAKING AND USING DEPOSITIONS
1. A party shall not be deemed to make a person his own witness by taking his deposition. 515
2. If introduced in evidence in whole/part for any purpose other than contradicting or impeaching the deponent, such makes the deponent the witness of the party introducing the deposition.
2.1 But it does not apply to the use of an adverse party of a deposition as described in Par. (b) Section 4 of Rule 23. 516
USE OF DEPOSITION
1. A deposition can be used at the trial, upon the hearing of a motion or an interlocutory proceeding.
1.1 Any part of 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 or had due notice thereof, in accordance with the following:
a. May be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness
b. Deposition of a party or anyone who at the time of the taking was an officer, director, or managing agent of a public/private corporation partnership/ association which is a party may be used by an adverse party for any purpose c. Deposition of a witness, party or not, may be used by any party for any purpose if the court finds that: (1) witness is dead (2)witness resides more than 100 kilometers from the place of trial/hearing or is out of the Philippines unless, it appears that his absence is procured by the party offering the deposition (3)
Supra, Section 7, Rule 24
514
Supra, Section 7, Rule 23
515
Supra, Section 8, Rule 23
witness is unable to attend/testify because of age, sickness, infirmity or imprisonment (4) party offering the deposition has been unable to procure the attendance of the witness by subpoena (5) upon application and notice, 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 witness in open court, to allow the deposition to be used.
d. If only a part of the deposition is offered in evidence by a party, the adverse party may require him to introduce all of which is relevant to the part introduced, and any party may introduce the other parts. 517
WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED AS EVIDENCE
1. If the deponent is a party, the opposing party can use it to prove his claim or defense.
1.1 It may also be used to impeach or contradict the party deponent if he testifies.
2. If the deponent is only a witness, his deposition can only be used to impeach/contradict him if he testifies but if Paragraph (c ) of Section 4 applies, it can be used for any purpose.
RESOLUTION OF OBJECTIONS WHEN DEPOSITIONS ARE PRESENTED 1. Subject to the provisions of Section 29, objections may be made at the trial or hearing to receive 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.
2. Specific objections are resolved as follows:
2.1 As to notice, they are waived unless written objection is promptly served upon the party giving the notice
2.2 As to disqualification of the officer, it is waived unless made before the taking of the deposition or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
2.3 As to competency relevancy of evidence, as to competency of the witness or competence, relevancy or materiality of the evidence/testimony, they are not
Supra, Section 4, Rule 23
waived by the failure to make them before or during the taking of the deposition unless the ground of the objection is one which might have been obviated or removed if presented at that time
2.4 As to oral examination and other particulars – Errors and irregularities occurring at the oral examination in the manner of taking, the form of the questions and answers, in the oath/affirmation, or the conduct of the parties and errors of any kind which might be obviated, removed or cured it promptly, prosecuted, are waived, unless reasonable objection thereto is made at the taking of the deposition.
2.5 As to the form of written interrogatories, the objections are waived unless served in writing upon party propounding them within the time allowed for the serving of succeeding cross or other interrogatories and within 3 days after