MODES OF DISCOVERY COMPLETE.ppt
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Law on evidence Atty. Espejo...
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Cristina Diman, Et Al. vs. Florentino M. Alumbres, Et Al. G.R. No. 131466. November 27, 1998
1. Deposition Taking under 2 rules: (Rule 23) Depositions Pending Action (Rule 24) Depositions Before Action or Pending Appeal 2. (Rule 25) Interrogatories to Parties 3. (Rule 26) Admission by Adverse Party 4. (Rule 27) Production or Inspection of Documents or Things 5. (Rule 28) Physical and Mental Examination of Persons
Jonathan Landoil International Co. vs. Sps. Suharto and Miriam Sangki Mangudadatu G.R. No. 155010. August 16, 2004
The Rules of Court and jurisprudence, however, do not restrict a deposition to the sole function of being a mode of discovery before trial. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. In Dasmariñas Garments v. Reyes, we allowed the taking of the witnesses‟ testimonies through deposition, in lieu of their actual presence at the trial.
a.
Yes, if
1.)
2.)
done after service of summons but before the fling of an answer. deponent is a person confined in prison No, if done after the filing of an answer.
ACTIONS IN PERSONAM
b.
ACTIONS IN REM OR QUASI –IN REM Yes, after acquisition of jurisdiction over the res. No, if there is a defendant and he has already filed an answer. (SECTION 1 OF RULE 23)
Jonathan Landoil International Co. vs. Sps. Suharto and Miriam Sangki Mangudadatu G.R. No. 155010. August 16, 2004 A deposition may be taken with leave of court after jurisdiction has been obtained over any defendant or over property that is the subject of the action; or, without such leave, after an answer has been served. Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. The liberty of a party to avail itself of this procedure, as an attribute of discovery, is “well-nigh unrestricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law.”
Liberality Does not apply if conducted in bad faith “Limitations would arise, though, if the examination is conducted in bad faith; or in such a manner as to annoy, embarrass, or oppress the person who is the subject of the inquiry; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.”
Republic vs. Sandiganbayan G.R. No. 90478. November 21, 1991
“What is chiefly contemplated is the discovery of every bit of information which may be useful in the preparation for trial, such as the identity and location of persons having knowledge of relevant facts; those relevant facts themselves; and the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things. 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. . . ."
(1)
(2)
(3)
The deponent may not be examined regarding any privileged matter.
The deponent may only be examined regarding any matter which is relevant to the subject of the pending action. The court may issue orders to protect the parties and deponents and to limit examination under Sec. 16 or 18 of these Rules. (Section 2 of Rule 23)
At the TRIAL or the hearing of a MOTION or an INTERLOCUTORY PROCEEDING (Section 4 Rule 23)
Against whom can I use the deposition? It may be used against any party who was present during the taking of the deposition. Or he may not be present but he was represented. Or, even if he was not present or he was not represented but he had due notice thereof.
GENERAL RULE: Deposition of an ordinary witness may be used ONLY for the purpose of contradicting or impeaching the testimony of the deponent as a witness
EXCEPTION The deposition of A PARTY may be used for ANY PURPOSE Example: If the deposed party does not appear, the deposition can be utilized as his testimony.
Exception to the Exception: The deposition of an ORDINARY witness can be used for ANY PURPOSE if the court finds:
A. B.
C.
D.
E.
that the witness is dead; or 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 that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 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;
Ramon Gerardo B. San Luis vs. Hon Pablito M. Rojas G.R. No. 159127, March 3, 2008 “the rule does not make any distinction or restriction as to who can avail of deposition. The fact that private respondent is a nonresident foreign corporation is immaterial. The rule clearly provides that the testimony of any person may be taken by deposition upon oral examination or written interrogatories, at the instance of any party. Depositions serve as a device for ascertaining the facts relative to the issues of the case. The evident purpose is to enable the parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent the said trials from being carried out in the dark” NOTE: In this case the depositions could replace oral testimony since all of the witnesses are “out of the Philippines” (Sec. 4 (c) par 2 Rule
23)
GENERAL RULE “Taking the deposition of a person does not make him your own witness”
EXCEPTION If the deposition is formally offered in court, the deponent becomes the offeror‟s witness.
EXCEPTIONS TO THE EXCEPTION
(1) When you offer in evidence the deposition to use it as a method of contradicting or impeaching,
(2) When you introduce in evidence the deposition of your opponent under par. (b) of Sec. 4..
a. b. c.
Depositons in the Philippines Judge Notary Public; or any person authorized to administer oaths agreed upon in writing by the parties
Depositions taken abroad
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. any person authorized to administer oaths agreed upon in writing by the parties
Northwest Airlines vs. Camille T. Cruz G.R. No. 137136. November 3, 1999
The deposition document clearly indicates that while the consul swore in the witness and the stenographer, it was another officer in the Philippine Consulate who undertook the entire proceedings thereafter. Respondent Northwest argues on the presumption of regularity of official functions and even obtained a certification to this effect plus an assertion that none of the participants in the Consulate were in any way related to the respondent or their counsel. But presumptions should fail when the record itself bears out the irregularity
DASMARINAS GARMENTS INC. vs. REYES (225 SCRA 622) A commission may be defined as "(a)n instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p. 415, citing Cyclopedic Law Dictionary, p. 200).
Letters rogatory, on the other hand, may be defined as "(a)n instrument sent in the name and by the 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" (Feria, J., op. cit., citing Cyclopedic Law Dictionary, p. 653). Section 12, Rule 24 just quoted states that a commission is addressed to "officers . . . designated . . . either by name or descriptive title," while letters rogatory are addressed to some "appropriate judicial authority in the foreign state." Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied for and issued only after a commission has been "returned unexecuted."
Upon Oral Examination 1. Motion for Leave if necessary 2. Service of Notice of Deposition indicating time and place of deposition taking and identity of deponents 3. Request for Subpoena* 4. Deposition taking proper 5. Submission of TSN to the witness and entry of desired changes. 6. Signing of the deposition by the witness and the parties. 7. Certification by deposition officer who will seal the depositon and file it with the court. Note: Requests for Subpoena shall be made with the clerk of court of the place where the
Upon Written Interrogatories
1. Motion for Leave if necessary 2. Service of Notice of deposition indicating identity of deponents and deposition officer. 3. Exchange of interrogatories 4. Transmission of notice and interrogatories to deposition officer. 5. Request for Subpoena* 5. Deposition taking proper. 6. Submission of TSN to the witness and entry of desired changes. 7. Signing of the deposition by the witness and the parties. 8. Certification by deposition officer who will seal the depositon and file it with the court.
Upon Oral Examination 1. Seasonable Motion for Orders to protect the parties or the deponents filed with the court where the case is pending which can disallow the deposition, limit the scope or manner thereof , prohibit certain matters, etc. (S16 R23) 2. Motion to Terminate of Limit the Examination during the deposition taking upon a showing that it is being done in bad faith or to annoy, embarrass, or oppress the deponent or party filed with the court where the case is pending or the RTC of the place where the deposition is being taken. (S18, R23)
Upon Written Interrogatories
1. Objections to the form of interrogatories which must be made within the period to serve succeeding interrogatories or within three (3) days after the service of the last interrogatories. (S29 (f), R23) 2. Seasonable Motion for Orders to protect the parties or the deponents filed with the court where the case is pending which can disallow the deposition, limit the scope or manner thereof , prohibit certain matters, etc Motion for Leave if necessary (S28, R23)
NOTE: If the examination is ordered terminated, only the court where the case is pending can order a resumption. Likewise, the objecting party has the right to demand the suspension of the deposition in order to file a motion to terminate or
As to notice. – WAIVED unless promptly objected to As to disqualification of officer. – WAIVED unless objected to before the deposition takin g or as soon as the disqualification becomes known or could be discovered with reasonable diligence. As to competency or relevancy of evidence – NOT WAIVED unless the ground of the objection is one which might have been obviated or removed if presented at that time. As to errors or irregularities in the manner of taking the deposition, in the form of the questions or answers, in the oath or the affirmation, or in the conduct of the parties and the other particulars. – WAIVED unless reasonable objection thereto is made at the taking of the deposition. As to form of written interrogatories. - WAIVED unless objected to within the period to serve succeeding interrogatories. 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 with due diligence might have been, ascertained.
Procedure: 1. File a verified petition in the RTC of the place of residence of any expected adverse party.
2. Serve a notice to all expected adverse parties with a copy of the petition of the date and place of the application.
3. At least 20 days before the hearing , the court will cause service of notice to all parties and prospective deponents under the rule on summons.
4. If allowed by the court, an order will be issued designating the deponents to be deposed and the manner of taking the deposition
5. Deposition taking will proceed as under Rule 23.
Defense Witness (Sec. 12-13, Rule 119)
File a motion identifying the witness and the substance of the testimony citing the following grounds:
a. the witness is too sick or infirm to attend trial; b. or resides more than one hundred (100) kilometers from the place of trial c. or that other similar circumstances exist
Manner of Examination
an order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein
Prosecution Witness (Sec. 15, Rule 119)
a . the witness too sick or infirm to attend trial; b. or has to leave the Philippines with no definite date of return. Manner of Examination “he may forthwith be conditionally examined before the court where the case is pending.
Concepcion Cuenco Vda de Manguerra Et Al vs. Raul Risos, Et Al, G.R. No. 152643, August 28, 2008 Unlike an examination of a defense witness which, pursuant to Section 5, Rule 119 of the previous Rules, and now Section 13, Rule 119 of the present Revised Rules of Criminal Procedure, may be taken before any “judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or, if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein,” the examination of a witness for the prosecution under Section 15 of the Revised Rules of Criminal Procedure (December 1, 2000) may be done only “before the court where the case is pending.”
Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. (1a)
1. Serve interrogatories to opposing party; 2. Opposing parties can raise objections within 10 days from service 3. Unless the court rules otherwise, a sworn Answer to the interrogatories shall be filed within (15) days from service or as directed by the court
Sec. 1. Request for admission. - At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. (1a)
1.
2.
3.
ALL matters requested to be admitted will be DEEMED ADMITTED if the requested party fails to file AN ANSWER within the period provided. (Sec. 2, rule 26) Any admission made under this rule may be used for the PENDING ACTION ONLY and not for any purpose or any other proceeding. (Sec. 3, Rule 26 Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (n) (Section 5, Rule 26)
4.
5
6.
Matters which have already been denied in the pleadings should not be made the subject of a request for admission. The requested party shall be under no obligation to deny it again. (Po vs. Court of Appeals, 154 SCRA 688 reiterated in Socorro Limos, Et Al vs. Spouses Francisco Odones, Et Al G.R. No. 186979. August 11, 2010 A request for admission may be answered by the counsel of the requested party under his implied authority (Rey Lañada vs. Court of Appeals, G.R. No. 102390, Feb. 1, 2002) A request for admission MUST be served upon the PARTY and service to counsel alone will not be sufficient ( Reboneria vs. Court of Appeals, 216 SCRA 607)
Uses:
1. To compel the production any document or thing in the possession of the opposing party for purposes of inspection, copying, or photographing; 2. To compel entry upon property in the control of the opposing party for purposes of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.
1. There must be a motion (leave of court) filed by a party showing good cause therefor. 2. That notice of the motion must be given to all the parties. 3. The motion must sufficiently describe the document or thing sought to be produced. 4. The document or thing must contain evidence material to the pending action. 5. That document or thing must not be privileged. 6. That document or thing must be in the possession of the adverse party, or at least in his control.
„A motion for production and inspection of documents should not demand a roving inspection of a promiscuous mass of documents. The inspection should be limited to those documents designated with sufficient particularity in the motion, such that the adverse party can easily identify the documents he is required to produce
1. The physical or mental condition of a party must be in controversy in the action. 2. Under Sec. 2, there must be a motion showing good cause which must be filed. And; 3. Notice of the motion must be given to the party to be examined and to all other parties.
Arnel L. Agustin vs. Court of Appeals G.R. No. 162571. June 15, 2005 “Over the years, we have expressly excluded several kinds of object evidence taken from the person of the accused from the realm of self-incrimination. These include photographs, hair, and other bodily substances. We have also declared as constitutional several procedures performed on the accused such as pregnancy tests for women accused of adultery, expulsion of morphine from one's mouth and the tracing of one's foot to determine its identity with bloody footprints. In Jimenez v. Cañizares, we even authorized the examination of a woman's genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its results, per our ruling in Yatar, are now similarly acceptable.”
REFUSING TO ANSWER A QUESTION (Deposition or Interrogatories) a. The proponent can apply for an order to compel an answer in the court where the deposition is being taken. (Sec. 1 Rule 29) If the court finds the refusal unjustified, the expenses of obtaining the order can be charged to the refusing witness or party but if the court finds the refusal justified, the proponent can be held liable for the expenses of opposing the application.
b.
If an order is issued by the court for the deponent to answer and it is still refused, the court can hold the deponent in contempt.
a. Order the matter sought to be established through the applied discovery procedure to be DEEMED ESTABLISHED b. Prohibit the disobedient party from opposing designated claims or defenses or from introducing desginated evidence. c. strike out pleadings, staying further proceedings even dismissing the action or part thereof or rendering a default judgment against the disobedient party. d. Order the arrest of the disobedient party. (Not applicable to refusal to submit to a physical or mental examination)
e. If a fact or document requested for admission is denied under oath but is later proven to be genuine, the denying party can be held liable for the cost of proving the genuiness of the document or truth of the fact.( Section 4) f.
If a party fails to attend for the taking of his deposition or fails to answer interrogatories, the court, on motion, can order the striking out of pleadings, dismiss the action, render a judgment by default, or order the payment of expenses including attorneys fees.
We hold that the trial court committed grave abuse of discretion in issuing the aforesaid Order. It is not fair to penalize Gateway for not complying with the request of Solidbank for the production and inspection of documents, considering that the documents sought were not particularly described. Gateway and its officers can only be held liable for unjust refusal to comply with the modes of discovery if it is shown that the documents sought to be produced were specifically described, material to the action and in the possession, custody or control of Gateway.
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