Modes of Discovery Outline Rev 2011 New

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MODES OF DISCOVERY -OutlineJustice Magdangal M. De Leon A. CONCEPT The rules providing for pre-trial discovery of testimony, pre-trial inspection of documentary evidence and other tangible things, and the examination of property and person, was an important innovation in the rules of procedure. The promulgation of this group of rules satisfied the long-felt need for a legal machinery in the courts to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis in preparation for trial (Fortune Corporation vs. Court of Appeals G.R. No. 108119, January 19, 1994, 229 SCRA 355). The Circular on the Conduct of Pre-Trial and Use of Deposition-Discovery Measures now requires the court to issue an order requiring the parties to avail of the Modes of Discovery (A.M. 03-1-09-SC, which took effect on August 16, 2004; See also Rule 18). B. PURPOSE 1. As a device, along with the pre-trial hearing under Rule 18, to narrow and clarify the basis issues between the parties; 2. As a device for ascertaining the facts relative to those issues. The time-honored cry of ‘fishing expedition’ can no longer provide a reason to prevent a party from inquiring into the facts underlying the opposing party’s case through the discovery procedures. In Republic v. Sandiganbayan (G.R. No. 90478, November 21, 1991, 204 SCRA 212, 200) it was held: . . . Indeed it is the purpose and policy of the law that the parties – before the trial if not indeed even before the pre-trial – should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to their adversaries; in other words, the desideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the deposition-discovery mechanism set forth in Rules 24 to 29 (Ong v. Mazo, G.R. No. 145542, June 4, 2004, 431 SCRA 56, 63). The rules on discovery are intended to (a) enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through deposition; (b) obtain knowledge of material facts or admissions from the adverse party through written interrogatories; (c) obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admission; (d) inspect relevant documents or objects and lands or other property in the possession or control of the adverse party; and (e) determine the physical or mental condition of a party when such is in controversy. This mutual discovery enables a party to discover the evidence of the adverse party and thus facilitates an amicable settlement or expedites the trial of the case. All parties are required to lay their cards on the table so that justice can be rendered on the merits of the case. C. IMPORTANCE Justice, later on Chief Justice, Andres Narvasa lamented that among far too many lawyers (and not a few judges), there are, if not a regrettable unfamiliarity and even outright ignorance about the nature, purpose, 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 pretrial procedure, could, as the experience of other jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up adjudication (Republic vs. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212, 200). To ensure that availment of the modes of discovery is otherwise untrammeled and efficacious, the 'law imposes serious sanctions on the party who refuses to make discovery, such as dismissing the action or proceeding or part thereof, . . .; taking the matters

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2 inquired into as established in accordance with the claim of the party seeking discovery; refusal to allow the disobedient party support or oppose designated claims or defenses’ (Marcelo vs. Sandiganbayan, G.R. No. 156605, August 28, 2007). D. DETERMINATION OF APPLICATION The application of the rules on modes of discovery rests upon the sound discretion of the court. In the same vein, the determination of the sanction to be imposed upon a party who fails to comply with the modes of discovery rests on the same sound judicial discretion. It is the duty of the courts to examine thoroughly the circumstances of each case and to determine the applicability of the modes of discovery, bearing always in mind the aim to attain an expeditious administration of justice (Lanada vs. CA, G.R. No. 102390, February 1, 2002, 375 SCRA 543;; Limos vs. Spouses Odones, G.R. No. 186979, August 11, 2010) E. SCOPE AND PURPOSE OF DISCOVERY PROCEDURE: Inquired Into

Evidentiary Matters May be

F. MODES OF DISCOVERY 1. 2. 3. 4. 5. 6.

Depositions pending action (Rule 23) Depositions before action or pending appeal (Rule 24) Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26) Production or inspection of documents, or things (Rule 27) Physical and mental examination of persons (Rule 28)

G. THESE MODES ARE CUMULATIVE The fact that a party has resorted to a particular method of discovery will not bar subsequent use of other discovery devices. On the other hand, leave of court is required as regards discovery by (a) production or inspection of documents or things in accordance with Rule 27, or (b) physical and mental examination of persons under Rule 28, which may be granted upon due application and a showing of due cause (Fortune Corporation vs. Court of Appeals, G.R. No. 108119, January 19, 1994, 229 SCRA 355). H. DISCOVERY STILL APPLIES EVEN IF MOTION FOR BILL OF PARTICULARS DENIED That the matters on which discovery is desired are the same matters subject of a prior motion for bill of particulars denied for lack of merit is beside the point. Indeed xxx a bill of particulars may elicit only ultimate facts, not so called evidentiary facts. The latter are without a doubt proper subject of discovery (Republic vs. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212). I. LIMITATIONS Limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry (See Secs. 16 and 18, Rule 23). And further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege. The liberty of a party to make 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 law (Republic v. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212). While there are limitations to the rules of discovery, even when permitted to be undertaken without leave and without judicial intervention, such limitations inevitably arise when it can be shown that the examination is being conducted in bad faith; or in such a manner as to annoy,

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3 embarrass, or oppress the person subject to the inquiry; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege (San Luis vs. Rojas, G.R. No. 159127, March 3, 2008).

DEPOSITIONS A. DEFINITION 1. In a broad sense, it refers to any written statement verified by oath. 2. Technically – A deposition is the testimony of a witness, put or taken in writing, under oath or affirmation, before a commissioner, examiner or other judicial officer, in answer to interlocutory and cross-interlocutory, and usually subscribed by the witnesses (Ayala Land, Inc. vs. Tagle et. al., G.R. No. 153667, August 11, 2005). Depositions are different from affidavits. Affidavits are ex parte statements without formal interrogation and opportunity for crossexamination. They are not admissible in evidence except in cases governed by the Rule on Summary Procedure. 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. B. FUNCTION 1. Depositions are chiefly a mode of discovery Depositions are principally made available by law to the parties as a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open court at the trial or hearing. This is a requirement of Section 1, Rule 132, Rules of Evidence (Jonathan Landoil International Co., Inc. vs. Mangudadatu, G.R. No. 155010, August 16, 2004, 436 SCRA 559, 573, reiterating the earlier case of Republic vs. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212). 2. Dual Function of Deposition (a) A method of discovery Deposition is chiefly a mode of discovery. This purpose is evident from Section 2 of Rule 23 on the broad scope of examination regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, the only requirement is that it be relevant and not privileged. Deposition is allowed as a departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge, consistent with the principle of promoting just, speedy and inexpensive disposition of every action and proceeding; and provided it is taken in accordance with the provisions of the Rules of Court, i.e., with leave of court if summons have been served, and without such leave if an answer has been submitted; and provided further that a circumstance for its admissibility exists. (Pajarillaga vs. Court of Appeals, G.R. No. 163515, October 31, 2008 ) A deposition should be allowed, absent any showing that taking it would prejudice any party. It is accorded a broad and liberal treatment and the liberty of a party to make 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 law (Hyatt Industrial Manufacturing Corp. vs. Ley Construction and Development Corp., G.R. No. 147143, March 10, 2006). (b) An alternative mode of testimony Section 4 of Rule 23 on the use of deposition is clearly indicative of the use of deposition as an alternative mode of testimony in view of distance, death or disability of the deponent.

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4 This is the same situation in criminal cases allowing conditional examination of witnesses for the accused (See Section 13, Rule 119) or for the prosecution (See Section 15, Rule 119). So also is the deposition allowed under the Rule of Examination of a Child Witness. If the purpose is only for use as testimony – the ground therefor is not solely relevancy but there must be a showing of necessity or unavailability of the deponent to appear and testify in court. C. CLASSIFICATION 1. Deposition de bene esse – One taken in a pending action. 2. Deposition in perpetuam rei memoriam -- Those taken prior to the institution of an apprehended or intended action. 3. For: Videotaped deposition. Rule on Examination of Child Witness (A.M. 00-4-07, which took effect on December 15, 2000) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape (Sec.27). If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape (Sec.27). The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition (Sec.27). D. PURPOSE 1. Assist the parties in ascertaining the truth and in checking and preventing perjury; 2. Provide an effective means of detecting and exposing false, fraudulent claims and defenses; 3. Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with greater difficulty; 4. Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; 5. Expedite litigation; 6. Safeguard against surprise; 7. Prevent delay; 8. Simplify and narrow the issues; 9. Expedite and facilitate both preparation and trial (Ayala Land, Inc. vs. Tagle et. al., G.R. No. 153667, August 11, 2005, citing People v. Webb, G.R. No. 132577, August 17, 1999, 312 SCRA 573, 585-586) 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.(San Luis vs. Rojas, G.R. No. 159127, March 3, 2008)

RULE 23. DEPOSITION PENDING ACTION BENE ESSE A. WHEN TAKEN (Sec. 1) This provision applies to actions pending in a Municipal or Metropolitan Trial Court and in a Regional Trial Court.

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5 1. With Leave Of Court a. After jurisdiction has been obtained over any defendant or over the property which is the subject of the action but BEFORE an answer has been filed; b. Deponent is in prison. 2. Without Leave Of Court AFTER an answer has been served, and deponent is not in prison. In regard to the Motion for Leave to Take Deposition, it is important to note that there are two instances when the defendant can take depositions under Section 1 of Rule 23: (1) after the court has acquired jurisdiction over the defendant or the property subject of the action; and (2) after an answer has been served. Both instances presuppose that the court has already acquired jurisdiction over the defendant. By seeking the relief contained in this provision, petitioner is deemed to have voluntarily submitted himself to the jurisdiction of the Sandiganbayan. Thus, petitioner may be held to have waived his objections regarding the lack of jurisdiction over his person by seeking affirmative relief through the said provision. (Disini vs. Sandiganbayan, G.R. No. 175730, July 5, 2010) B. SCOPE OF EXAMINATION IN DEPOSITIONS (Sec. 2) 1. Matter is relevant to the subject of the pending action made by the pleadings or likely to arise under the pleadings. 2. It is not privileged. 3. It is not restricted by a protective order (See Sec. 16 for protective orders before taking of deposition and Sec. 18 for protective orders during taking of deposition; See also Sec. 28). Protection orders before examination Section 16. Orders for the protection of parties and deponents a. Outline 1) Requirements: (a) After notice is served for taking a deposition by oral examination, (b) Upon motion seasonably made by any party or by the person to be examined and (c) For good cause shown, 2) The court in which the action is pending may make an order: a) that the deposition shall not be taken; b) that it may be taken only at some designated place other than that stated in the notice; c) that it may be taken only on written interrogatories; d) that certain matters shall not be inquired into; e) that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; f) that after being sealed, the deposition shall be opened only by order of the court, or that secret processes, developments, research need not be disclosed, g) that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; h) the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. b. Comment (1) Good cause means substantial reason – one that affords a substantial excuse. A particular and specific demonstration of facts, as distinguished from conclusory statements, is required to establish good cause for the issuance of a protective order. (2) Allegation that petitioner merely intended to annoy, harass or oppress the proposed deponent cannot ably support the setting aside of a notice to take deposition in the absence of proof.

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6 (3) Inconvenience to the party whose deposition is to be taken is not a valid objection to the taking of his deposition. Protection orders during examination Section 18. Motion to terminate or limit examination. a. Outline 1) Requirements: (a) At any time during the taking of the deposition (b) On motion or petition of any party or of the deponent; (c) 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. 2) The court in which the action is pending or the RTC of the place where the deposition is being taken may order either: (a) Cessation or termination of the deposition; or (b) Limiting the scope and manner of the taking of the deposition, as provided in Section 16. b. Comment This section refers to protection orders during examination either by the court in which the action is pending or where the deposition is being taken. When the constitutional privilege against self-incrimination is invoked by deponent or his counsel, the trial court may stop the examination to protect the deponent’s constitutional right. Other grounds, such as bad faith which unreasonably annoy, embarrass or harass deponent or party may likewise be invoked. C. USE OF DEPOSITIONS (Sec. 4) The deposition may be used against any party who was present or was represented at the taking of the deposition or who had due notice thereof, in accordance with ANY one of the following provisions: 1. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as witness; 2. 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; 3. Instances where deposition of any witness may be used for any purpose: a. Death b. Non-residence of deponent c. Disability of a witness d. Non procurement by subpoena e. Exceptional circumstances 4. 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 While depositions may be used as evidence in court proceedings, they are generally not meant to be a substitute for the actual testimony in open court of a party or witness. Stated differently, a deposition is not to be used when the deponent is at hand. Indeed, any deposition offered during a trial to prove the facts therein set out, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground of hearsay. However, depositions may be used without the deponent being called to the witness stand by the proponent, provided the existence of certain conditions is first satisfactorily established. Five (5) exceptions for the admissibility of a deposition are listed in Section 4 (Sales vs. Sabino, G.R. No. 133154, December 9, 2005).

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Depositions are allowed as a departure from the accepted and usual judicial proceedings of examining witnesses in open court, where their demeanor could be observed by the trial judge; and the procedure is not on that account rendered illegal nor is the deposition, thereby taken, inadmissible. (San Luis vs. Rojas. G.R. No. 159127, March 3, 2008) Petitioners' objection to the admission in evidence of the testimony of the notary public who supposedly notarized the deed of sale taken in another case in which petitioners were not parties is persuasive. Such testimony does not qualify as an exception to the hearsay rule under Sec. 47, Rule 130 of the Rules of Court. None of the circumstances for the admission of the testimony given at a former proceeding obtains in this case. Not only were petitioners not parties to the former proceeding and hence without opportunity to cross-examine the notary public, there was also no proof that the notary public was already deceased or unable to testify. Hence, the testimony should not have been accorded any probative weight (Ilao-Quianay vs. Mapile, G.R. No. 154087, October 25, 2005). . Depositions may be used for the trial or for the hearing of a motion or an interlocutory proceeding. The present case involved a circumstance that fell under the above-cited Section 4(c)(2) of Rule 23 — the witnesses of petitioner in Metro Manila resided beyond 100 kilometers from Sultan Kudarat, the place of hearing. Petitioner offered the depositions in support of its Motion to Quash (the Writ of Execution) and for the purpose of proving that the trial court’s Decision was not yet final. As previously explained, despite the fact that trial has already been terminated, a deposition can still be properly taken (Jonathan Landoil International Co., Inc. vs. Spouses Mangudadatu, G.R. No. 155010, August 16, 2004). The testimony or deposition of a witness given in a former case or proceeding may be given in evidence against the adverse party where the witness is deceased, out of or cannot with due diligence be found in the Philippines, unavailable or otherwise unable to testify. (Section 47, Rule 130 of the Rules of Evidence in relation to Rule 115, Section 1(f) of the Rules of Court) The preconditions set forth must be strictly complied with. The inability to testify does not cover the case of witnesses who were subpoenaed but did not appear. The inability must proceed from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech (Cariaga vs. Court of Appeals, G.R. No. 143561, June 6, 2001). There is nothing in the Rules of Court or in jurisprudence which restricts 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. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition exists against the taking of depositions after pre-trial. There can be no valid objection to allowing them during the process of executing final and executory judgments, when the material issues of fact have become numerous or complicated. (Pajarillaga vs. Court of Appeals, G.R. No. 163515, October 31, 2008) Leave of Court for Use of Deposition Leave of court for taking deposition which is not necessary after answer has been filed unless the deponent is confined in prison should be distinguished from use of deposition where the court has occasion to exercise its discretion, the proper time being when the deposition is formally offered in evidence (Veran vs. Court of Appeals, G.R. No. L-41154, January 29, 1988, 157 SCRA 438); See also Dulay vs. Dulay, G.R. No. 1558857, November 11, 2005,).

D. PROCEDURE 1. Preliminary Steps 2. General Rule

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The general rule is that a plaintiff may not be permitted to take depositions before answer is served. Plaintiff must await joinder of issues because if the discovery is to deal with matters relevant to the case, it is difficult to know exactly what is relevant until some progress has been made toward developing the issues. Ordinarily, the issues are made up before the need for discovery arises, hence prior to the time of delineation of the issues, the matter is in control of the court (Republic vs. Sandiganbayan, G.R. No. 112710, May 30, 2001, 358 SCRA 284). 3. Deposition Before Answer -- Only in “Exceptional” or “Unusual” cases If the witness is aged or infirm, or about to leave the court’s jurisdiction, or is only temporarily in the jurisdiction, leave may be granted (Republic vs. Sandiganbayan, G.R. No. 112710, May 30, 2001, 358 SCRA 284). 4. When and How Depositions are Conducted Depositions may be either upon oral examination or upon written interrogatories within or outside the Philippines. Petitioner's claim that his right to cross-examine private respondent's witnesses will be curtailed has no merit since petitioner is fully accorded the opportunity for cross-examination under Section 25, Rule 23 of the Rules of Court (San Luis vs. Rojas. G.R. No. 159127, March 3, 2008). As exceptions, Rules 23 to 28 of the Rules of Court provide for the different modes of discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses. It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that the criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise. (Cuenco vs. Risos, G.R. No. 152643, August 28, 2008) Commission or letters rogatory (Sec. 12) Commission An 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.

Issued to a non-judicial foreign officer who will directly take the testimony. Applicable rules of procedure are those of the requesting court; the rules of procedure in issuing a commission are entirely under its control. Resorted to if permission of the

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Letters Rogatory 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 cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. Issued to the appropriate judicial officer of the foreign country; such officer will then direct somebody in said foreign country to take down the testimony The methods of procedure must, from the nature of the case, be altogether under the control of the foreign tribunal which is appealed to for assistance in the administration of justice. Resorted to if the execution of the

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9 foreign country is given. Leave of court is not necessary.

commission is refused in the foreign country. Leave of court is necessary.

It would be illogical and unreasonable to expect respondent to comply with the letters rogatory without the cooperation of the very institution or personality named in the letters rogatory and requested to examine the witnesses. While a court had the authority to entertain a discovery request, it is not required to provide judicial assistance thereto (Dulay et al. vs. Dulay, G.R. No. 158857. November 11, 2005). The subsequent appearance of the said security officer before the Philippine consul in Geneva on September 19, 1994 and the answer to the cross-interrogatories propounded by the private respondent was transmitted to the trial court by the Philippine consul in Geneva on September 23, 1994 should be deemed as full compliance with the requisites of the right of the private respondent to cross-examine the petitioner's witness. The deposition filed by the petitioner should be reinstated as part of the evidence and considered together with the answer to the cross-interrogatories (American Airlines vs. Court of Appeals, G.R. Nos. 116044-45. March 9, 2000). 5. Disqualification by Interest (Sec. 13) A person is disqualified to be a deposition officer: th

1. If s/he is related to the deponent within the 6 degree of consanguinity or affinity; 2. If s/he is an employee or attorney of one of the parties; 3. If s/he is related to the attorney of the deponent within the same degree, or employee of such counsel; and 4. Financially interested in the action. 6. Examination and Cross-Examination (Sec. 3) may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. 7. Effect of Substitution Of Parties (Sec. 5) 1. Substitution of parties does not affect the right to use depositions previously taken; and 2. When an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore. 8. Objections to Admissibility (Sec. 6) Subject to the provisions of Section 29, objection may be made at the trial or hearing to receiving 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. Waiver of objections The act of cross-examining the deponent during the taking of the deposition cannot be considered a waiver of the right to object to its admissibility as evidence in the trial proper. A party is not estopped from challenging the admissibility of the deposition just because he participated in the taking thereof. Under Section 29, Rule 23 of the Rules of Court, while errors and irregularities in depositions as to notice, qualifications of the officer conducting the deposition, and manner of taking the deposition 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 the trial and need not be made at the time of the taking of the deposition, unless they could be obviated at that point. Certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment (Sales vs. Sabino, G.R. No. 133154, December 9, 2005).

10 In Bembo v. Court of Appeals (G.R. No. 116845, November 29, 1995, 250 SCRA 404), this Court ruled that the sufficiency of a written notice is irrelevant where it is a matter of record that counsel and parties actually knew of the scheduled hearing, as in this case. It bears emphasis that both counsel agreed to reset the deposition to August 21, 1997. Petitioner also admitted that its counsel of record received the notice at around four o'clock in the afternoon of August 20, 1997. According to Atty. Belaro, he received a copy of the facsimile transmission only at 7:00 p.m. of August 21, 1997 after the proceedings. It appears that it was his secretary who received the notice one (1) day earlier. That she failed to inform him immediately is not our concern (Cathay Pacific Airways vs. Spouses Fuentebella, G.R. No. 142541, December 15, 2005). 9. Rebutting deposition (Sec. 9) 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. E. EFFECT OF TAKING DEPOSITIONS (Sec. 7) A party shall not be deemed to make a person his witness for any purpose by taking his deposition Reason: Because depositions are taken for discovery and not for evidence. F. EFFECT OF USING DEPOSITIONS (Sec. 8) 1. The deposition must be formally offered in evidence although it need not actually be read in court. A formal offer is necessary because judges are mandated to rest their findings of fact and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court (Heirs of Pedro Pasag vs. Sps. Parocha, G.R. No. 155483. April 27, 2007). 2. Introduction of deposition by a party makes the deponent his witness, except: a. If the deposition is used to contradict or impeach the deponent; and b. If the adverse party uses the deposition of the other party or of anyone who at the time of taking the deposition was an officer, disrector, or managing agent of a public or private corporation, partnership, or association which is a party. G. EFFECTS OF ERRORS AND IRREGULARITIES IN DEPOSITIONS A deposition not signed does not preclude its use during the trial. The requirement that the deposition must be examined and signed by the witness is only to ensure that the deponent is afforded the opportunity to correct any errors contained therein and to ensure its accuracy. In any event, the admissibility of the deposition does not preclude the determination of its probative value at the appropriate time. The admissibility of evidence should not be equated with weight of evidence. The admissibility of evidence depends on its relevance and competence while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade (Ayala Land, Inc. vs. Tagle, G.R. No. 153667, August 11, 2005). The deposition-discovery rules are to be accorded a broad and liberal treatment and the liberty of a party to make 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 (Ayala Land, Inc. vs. Tagle, G.R. No. 153667, August 11, 2005; See also Dulay vs. Dulay, G.R. No. 158857, November 11, 2005). RULE 24. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL PERPETUATION OF TESTIMONY or PERPETUAM REI MEMORIAM

11

--called as such because their objective is to perpetuate the testimony of a witness for use in the future --a deposition under this rule is also used for the same purposes as those embodied in Secs. 4 and 5 of Rule 23 (Sec. 6) A. NATURE AND PURPOSE B. FILING THE PETITION (Sec.1) A petition may be filed by any person— 1. Who wants to perpetuate his own testimony; or 2. Who wants to perpetuate the testimony of another person. C. FORMAL AND JURISDICTIONAL REQUISITES The petition shall be verified and shall be filed in the place of residence of any expected adverse party. D. CONTENTS OF PETITION (Sec. 2) 1. 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; 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 and addresses of the persons he expects will be adverse parties and their addresses so far as known; 5. 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. E. NOTICE AND SERVICE (Sec. 3) 1. 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 the time and place stated therein; 2. At least 20 days before the date of hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for in the service of summons. F. ORDER AND EXAMINATION (Sec. 4) 1. Contents of the Order a. Designates or describes the persons whose deposition may be taken; b. Specifies the subject matter of the examination; and c. Specifies whether the depositions shall be taken upon oral examination or written interrogatories. 2. The deposition may then be taken in accordance with Rule 23 before the hearing. G. REFERENCE TO COURT (Sec. 5) 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. H. USE OF DEPOSITION (Sec. 6) If a deposition to perpetuate testimony -1. is taken under this Rule; or 2. although not so taken, 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 Sec. 4 & 5 of Rule 23.

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Depositions under Rule 24 should be taken conditionally. They are to be used at the trial or proceeding only if deponent is not available. If the deposition is not taken in accordance with this rule, it may be used as prior inconsistent statements to impeach the testimony of the deponent, provided the predicate is laid in accordance with Section 13 of Rule 132. I. DEPOSITIONS PENDING APPEAL (Sec. 7) These are taken with the view to their being used in the event of further proceedings in the court of origin or the appellate court. Example: A party may perpetuate the testimony of a witness which was objected by the adverse party and ruled out by the court. If the appellate court should reverse the decision or order of the lower court, it could admit the deposition as ADDITIONAL EVIDENCE or remand the case to the lower court for such admission in accordance with Secs. 4 and 5 of Rule 23.

RULE 25. INTERROGATORIES TO PARTIES A. CHANGES IN RULE B. PURPOSE AND NATURE 1. Written interrogatories elicit facts from any adverse party (Note: answers may also be used as admissions of the adverse party). 2. Distinguished from BILL of PARTICULARS. The trial court order denying the written interrogatories was interlocutory in nature. And the extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court, the proper remedy in such cases being an ordinary appeal from an adverse judgment where incorporated in said appeal are the grounds for assailing the interlocutory order. Nonetheless, this by no means is an absolute rule. This Court finds that the order disallowing petitioner’s written interrogatories are patently erroneous, hence, the resort to certiorari is warranted (Ong vs. Mazo, G.R. No. 145542, June 4, 2004). Petitioners are not entirely without an adequate remedy if their only objective in amending the complaint is to provide details or amplification to their allegations in the original complaint. Petitioners can present the details sought to be introduced in the original complaint by listing them as admitted facts. If there are no admissions on these factual matters, then these details can be proposed as stipulation of facts which will be scrutinized and discussed during the pre-trial conference. Petitioners can avail of written interrogatories under Rule 25 to obtain information from respondents on the proposed amendments or make use of the request for admission by adverse party under Rule 26 to procure categorical answers under oath from the adverse party relating to the alleged details (Locsin et al vs. Sandiganbayan et al.,G.R. No. 134458. August 9, 2007). C. WRITTEN INTERROGATORIES 1. Service (Sec. 1) a. Without Leave Of Court – after answer has been served b. With Leave Of Court – 1) before answer has been served (REASON: at that time, the issues are not yet joined and the disputed facts are not yet clear) 2) When more than one set of interrogatories is to be served. 2. Failure to serve, effect of (Sec. 6) Gen. Rule: Unless a party had been served written interrogatories, he may not be compelled by the adverse party to:

13 a. give testimony in open court; or b. give a deposition pending appeal. Exc: The court allows it for good cause shown and to prevent failure of justice Note: The sanction adopted by the Rules is not one of compulsion in the sense that the party is being compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him. D. ANSWER TO INTERROGATORIES (Sec. 2) E. OBJECTIONS TO INTERROGATORIES (Sec. 3) F. NUMBER OF INTERROGATORIES (Sec. 4) Only one set of interrogatories by the same party is allowed. necessary for succeeding sets of interrogatories.

Leave of court is

G. SCOPE AND USE OF INTERROGATORIES (Sec. 5) Although the field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as witness to testify orally at trial, the inquiry must only extend to what is RELEVANT and MATERIAL to the issue subject of the suit as provided for in Section 5 of Rule 25 (Gerochi vs. Dept. of Energy, G.R. No. 159796, April 5, 2005).

. Depositions (Rule 23) Written Interrogatories (Rule 25) Interrogatories are Only to an adverse party delivered to officer duly authorized to take the deposition who shall take note of the answer thereto.

Upon whom served

Availability of cross interrogation On whom answers are binding

Time to answer

Available No cross interrogation Any party who was Only on the party served present or was represented or who had due notice or had the opportunity to serve cross-interrogatories. No specific provided

period

Within 15 days after service, unless extended or reduced by the court.

H. SANCTIONS (Sec. 6) If the plaintiff fails or refuses to answer the interrogatories, it may be a good basis for the dismissal of his complaint for non-suit unless he can justify such failure or refusal. The Rules of Court prescribes the procedures and defines all the consequence/s for refusing to comply with the different modes of discovery (Marcelo vs. Sandiganbayan, G.R. No. 156605. August 28, 2007).

RULE 26. ADMISSION BY ADVERSE PARTY A. REQUEST FOR ADMISSION (Sec. 1)

14 1. Change in rule 2. Purpose To relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry. Petitioners sought to compel respondents to deny once again the very matters they had already denied, a redundancy, which if abetted, will serve no purpose but to delay the proceedings and thus defeat the purpose of the rule on admission as a mode of discovery which is "to expedite trial and relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry." (Limos vs. Spouses Odones, G.R. No. 186979, August 11, 2010) 3. When request may be made a. At any time AFTER the issues have been joined (after the responsive pleading has been served). b. The request for admission must be served directly upon the party; otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited with the request or relevant matters of fact set forth therein on account of failure to answer the request for admission. 4. Scope a. Admission of the genuineness of any material and relevant document described in and exhibited with the request; b. Admission of the truth of any material and relevant matter of fact set forth in the request; c. A matter of fact not related to any documents may be presented to the other party for admission or denial. 5. Procedure May the COUNSEL of a party to whom a written request for admission is addressed under Section 1, Rule 26 ANSWER such request for his client?

YES. However, as the Court has observed in Briboneria vs. CA (216 SCRA 607 [1992]), Sec. 1 of Rule 26 requires that the request for admission must be SERVED directly upon the PARTY REQUESTED. Otherwise, that party cannot be deemed to have admitted the genuineness of any relevant matters of fact set forth therein on account of failure to answer the request for admission. Private respondents’ failure to serve copies of the request for admission directly upon the petitioners themselves suffices to warrant denial of the motion to strike out petitioners’ responses to said request (Nestle Philippines, Inc. and Santos vs. Court of Appeals And Sps. Hemedez, G. R. No. 102404. February 1, 2002). Records show that only the counsel of the respondents was furnished copies of the requests. Consequently, the requests for admissions made by the petitioners were not validly served and therefore, private respondents cannot be deemed to have admitted the truth of the matters upon which admissions were requested (Duque vs. Court of Appeals, GR no. 125383, July 2, 2002). We have held in Po v. Court of Appeals (G.R. No. L-34341, 22 August 1988, 164 SCRA 668, 670]) that a party should not be compelled to admit matters of fact already admitted by his pleading and … to make a second denial of those already denied in his answer to the complaint. It becomes, therefore, unnecessary to dwell on the issue of the propriety of an UNSWORN response to the request for admission. A request for admission that merely reiterates the allegations in an earlier pleading is inappropriate under Rule 26, which, as a mode of discovery, contemplates of interrogatories that would CLARIFY and tend to shed light on the truth or falsity of the allegations in the pleading. Even assuming that a reply to the request is needed, it is undisputed that the DBP filed its Comment either admitting or specifically denying again the matters sought to be admitted and stating the reasons therefor. That the Comment was not under oath is not a substantive, but merely a formal, defect which can be excused in the interest of justice

15 conformably to the well-entrenched doctrine that all pleadings should be liberally construed as to do substantial justice. The filing of such Comment substantially complied with Rule 26. (DBP vs. Court of Appeals, GR No. 153034 , September 20, 2005). B. IMPLIED ADMISSION: Failure to Reply to a Request for Admission (Sec. 2) 1. Change in rule 2. Effects: a. Each of the matters of which an admission is requested is deemed admitted; b. May result in summary judgment. Each matter must be denied specifically under oath setting forth in detail the reason why he cannot truthfully admit or deny. The silence of defendant on the plaintiff’s request for admission amounts to an implied acceptance of the facts set forth therein with the effect that plaintiff’s claim stood undisputed (Manzano vs. Despabiladeras, G.R. No. 148786, December 16, 2004). 3. Remedy Motion to be relieved of consequences of implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment. Under these rules, a party who fails to respond to a Request for Admission shall be deemed to have impliedly admitted all the matters contained therein. In this case, the redundant and unnecessarily vexatious nature of petitioners’ Request for Admission rendered it ineffectual, futile, and irrelevant so as to proscribe the operation of the implied admission rule in Section 2, Rule 26 of the Rules of Court. There being no implied admission attributable to respondents’ failure to respond, the argument that a preliminary hearing is imperative loses its point (Limos vs. Spouses Odones, G.R. No. 186979, August 11, 2010). C. EFFECT OF ADMISSION (Sec. 3) An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings. An admission is in the nature of evidence and its legal effects become part of the records of the case; hence, it could be availed of by any party including the party who was subsequently impleaded and not necessarily only the party who filed the request for admission (See Bay View Hotel, Inc., vs. Ker & Co., Ltd., 116 SCRA 327 [1982] ). D. WITHDRAWAL OR AMENDMENT (Sec. 4) The court may allow the party making an admission under this Rule, whether EXPRESS or IMPLIED, to withdraw or amend it upon such terms as may be just. E. EFFECT OF FAILURE TO FILE AND SERVE REQUEST (Sec. 5) 1. Scope: Material and relevant facts at issue which are, or ought to be, within the personal knowledge of the adverse party. (DBP vs. Court of Appeals, G.R. No. 1 5 3 0 3 4 , September 20, 2005). The r ul e a ut hor izin g a par ty to cal l on the ot her part y to mak e an admissio n implie s the makin g of demand s for adm ission of relevan t and m ater ial matt er s of fa ct and NOT f o r adm is sion of matt ers of LAW, CONC LU SION S, or OP IN IONS 2. Not es a.

Sectio n 5 admit s of som e difficult y for it l eave s to a part y the deter m ination of wh at are the mat erial and relevant fa ct s at issue

16 whic h are, or ough t to be w i th in the peculia r knowledge of the advers e pa rty . b. Unde r the r u le on specifi c denial s ( R ul e 8) . Th e denia l mus t onl y refe r to ma tt er s whi ch ar e not pl ain ly an d nec ess ari l y w i t hi n d efe ndan t’ s kn o wl edg e (mus t be mad e in goo d faith) , ot her w ise, it shal l be deeme d as an admissio n. 3. Sanctions Gen. Rule: The party who fails to file and serve a request for admission shall not be permitted to present evidence on such fact. EXC: The court allows such request for good cause shown and to prevent failure of justice.

RULE 27. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS A. CHANGE IN RULE B. FIRST PART OF THE RULE 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. Rule 27 permits "fishing" for evidence. The lament against a fishing expedition no longer precludes a party from prying into the facts underlying his opponent's case. Mutual knowledge of all 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 in his possession. However, fishing for evidence that is allowed under the rules is not without limitations (Solidbank Corporation, now known As Metropolitan Bank And Trust Company vs. Gateway Electronics Corporation et al., G.R. No. 164805, April 30, 2008). Production or Inspection of Documents or Things

Subpoena duces tecum

Essentially a mode of discovery The Rules are limited to the PARTIES to the action.

Means of compelling production of evidence May be directed to a non-party

May be asked before and/or during trial May be asked only during trial The order under this Rule is issued May be issued upon an ex parte application. only upon motion with notice to the adverse party.

The rule on discovery "requires the parties to play the game with cards on the table so that the possibility of fair settlement before trial is measurably increased" (Security Bank Corporation (SBC) vs. Court of Appeals, G.R. No. 135874, January 25, 2000). The provision shows that the production or inspection of documents or things as a mode of discovery sanctioned by the Rules of Court may be availed of by any party upon a showing of good cause therefor before the court in which an action is pending. The court may order any party: a) to produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, which are not privileged; which constitute or contain evidence material to any matter involved in the action; and which are in his possession, custody or control; or b) to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. (Air Philippines Corporation vs. Pennswell, Inc., G.R. No. 172835, December 13, 2007 ) C. SECOND PART OF THE RULE

17 This rule also provides for an order of entry upon designated land or other property “for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.”

RULE 28.

PHYSICAL AND MENTAL EXAMINATION OF PERSON

A. WHEN APPLICABLE (Sec.1) 1. There must be a pending action; and 2. A party’s mental or physical condition is in controversy. B. ORDER OF EXAMINATION (Sec. 2) Requisites to obtain an Order for Examination: 1. 2. 3. 4.

A motion must be filed for the physical and mental examination; The motion must show good cause for the examination; Notice to the party to be examined and to all other parties; The motion shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is made.

Note: An order to submit to a physical examination is an interlocutory order, thus no appeal is allowed. D. REPORT OF FINDINGS (Sec. 3) E. WAIVER OF PRIVILEGE (Sec. 4)

RULE 29. REFUSAL TO COMPLY WITH MODES OF DISCOVERY Sanctions: A. Compel a party or deponent to answer questions (Sec. 1, pars. 1 and 2) When availed: 1. A party or other deponent refuses to answer any question upon oral examination; or 2. A party or witness refuses to answer any interrogatory submitted under Rule 23 or Rule 25. Venue: Court of the place where the deposition is being taken The CA rightly held that the court a quo erred in rendering a judgment by default against the defendants for refusal or failure to answer written interrogatories, without first requiring an application by the proponent to compel an answer. This is the requisite procedure under Section 1 of Rule 29 of the 1997 Rules of Civil Procedure. (Jaravata vs. Karolus, G.R. No. 154988, June 21, 2007) B. Require the party or his advising counsel or both to pay the amount of reasonable expenses incurred including attorney’s fees Sec.1, par.2 -, Requisites: 1. The application for an ORDER TO COMPEL an answer is GRANTED by the court; and 2. The court finds that the REFUSAL to answer was WITHOUT SUBSTANTIAL JUSTIFICATION. Sec. 4 – Requisites:

18 A party is served with a REQUEST under Rule 26 TO ADMIT the genuineness of any document or truth of any matter of fact; Such party serves a SWORN DENIAL thereof; The party requesting the admissions thereafter PROVES THE GENUINENESS of such document or the truth of any such matter or fact; The party requesting the admissions applies to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof; The court issues the order of payment.

1. 2. 3. 4. 5.

Note: The consequence under Section 4 for refusal to admit is the payment of the expenses incurred in PROVING the document or fact denied, as contrasted with the consequences in the other modes of discovery. C. Cite the disobedient deponent in contempt of court (Sec. 2); D. Other consequences (Sec. 3): If any party REFUSES TO OBEY-1. The order directing him to answer designated questions under Sec. 1 of Rule 29; 2. The order to produce any document or other thing for inspection, copying or photographing or to permit it to be done under Rule 27; or 3. The order to submit to physical or mental examination under Rule 28, or The court may issue any of the following orders: a. b. c. d. e. f. g. h. i. j.

Making the FACTS OR DOCUMENTS or MENTAL OR PHYSICAL CONDITION sought to be discovered as ESTABLISHED for purposes of the action; REFUSING to allow the disobedient party to support or oppose CLAIMS or DEFENSES PROHIBITING the disobedient party from INTRODUCING in evidence designated documents or items of testimony; PROHIBITING the disobedient party from INTRODUCING evidence of physical or mental condition; STRIKING OUT all or any part of the pleading of the disobedient party; STAYING further proceedings until order is obeyed; DISMISSING the action or proceeding or any part thereof; Rendering DEFAULT JUDGMENT against the disobedient party; Directing the ARREST of the party concerned, except in a refusal to submit to a physical or mental examination; Directing PAYMENT of REASONABLE EXPENSES incurred by the other, including attorney’s fees.

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. (Solidbank Corporation, now known as Metropolitan Bank and Trust Company vs. Gateway Electronics Corporation, G.R. No. 164805, April 30, 2008) According to former Justice Florenz D. Regalado, failure to file a responsive pleading within the reglementary period, and not failure to appear at the hearing, is the sole ground for an order of default (Rosario, et al. vs. Alonzo, et al., L-17320, June 29, 1963), except the failure to appear at a pre-trial conference wherein the effects of a default on the part of the defendant are followed, that is, the plaintiff shall be allowed to present evidence ex parte and a judgment based thereon may be rendered against the defendant (Section 5, Rule 18). Also, a default judgment may be rendered, even if the defendant had filed his answer, under the circumstance in Sec. 3(c), Rule 29. (Monzon vs. Sps. Relova, G.R. No. 171827, September 17, 2008)

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(Sec. 5): If a party – 1. FAILS TO APPEAR before the officer who is to take his deposition; 2. FAILS TO SERVE ANSWERS to interrogatories submitted under Rule 25 The court may issue any of the following orders: a. STRIKING OUT all or any part of the pleading of the disobedient party b. DISMISSING the action or proceeding or any part thereof; c. Rendering DEFAULT JUDGMENT against the disobedient party; d. Directing PAYMENT of REASONABLE EXPENSES incurred by the other, including attorney’s fees. The consequences enumerated in Section 3(c) of Rule 29 (Pls. see letters e, f, g, h above) would only apply 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 order. Since petitioners refused to answer the WHOLE SET of written interrogatories, not just a particular question, respondent bank should have filed a motion based on Section 5 and not Section 3(c) of Rule 29. Moreover, the imposition of sanctions under Section 5 is within the sound discretion of the trial court (Sps. Zepeda vs. China Banking Corporation, G.R. No. 17217, October 9, 2006). The determination of the sanction a court should impose for failure of a party to comply with the modes of discovery rests on sound judicial discretion, taking into account the overriding interest of justice and the circumstances of each case (Lañada vs. Court of Appeals, G. R. No. 102390, February 1, 2002 and Nestle Phil., Inc. vs. Court of Appeals, G. R. No. 102404, February 1, 2002) 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. (Sps. Zepeda vs. China Banking Corporation, G.R. No. 17217, October 9, 2006, citing Insular Life Assurance Co., Ltd. v. CA, G.R. No. 97654, November 14, 1994, 238 SCRA 88, 93).