RULE 23

DEPOSITION PENDING ACTION

DEPOSITION
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. This testimony is
taken out of court. It may be either by oral examination, or by a written
interrogatory (Sec. 1, Rule 23).
Meaning and purpose of deposition
(a) 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.
(b) The liberty of a party to avail of such modes of discovery is
unrestricted if the matters inquired into are relevant and not privileged,
and the inquiry is made in good faith and within the bounds of the law.
(c) Limitations would arise if the examination is conducted in bad faith;
or in such a manner as to annoy, embarrass or oppress the person under
examination; or when the inquiry touches upon the irrelevant or
encroaches upon the recognized domains of privilege.
(d) 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. [Jonathan Landoil v
Mangudadatu (2006)]
USES OF DEPOSITION PENDING ACTION
At the trial or upon the hearing of a motion or an interlocutory proceeding,
any part or all of a deposition, so far as admissible under the rules of
evidence, may be used against any party who was present or represented at
the taking of the deposition or who had due notice thereof.
A deposition may be sought for use in a future action (Rule 24), during a
pending action (Rule 23), or for use in a pending appeal (Rule 24).
deposition benne esse taken for use during a pending action (Rule
23).

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 deposition in perpetuam rei memoriam taken to perpetuate a

testimony for use in future proceedings as when it is sought before the
existence of an action, or for cases on appeal.
Any or all of the deposition, so far as admissible under the rules of evidence,
may be used (a) against any party who was present or represented at the
taking of the deposition, or (b) against one who had due notice of the
deposition (Sec. 4, Rule 23).
Dasmarias Garments,Inc. v. Reyes (1993)
GENERAL RULE: A deposition is not generally supposed to be a substitute
for the actual testimony in open court of a party or witness. If the witness
is available to testify, he should be presented in court to testify. If available
to testify, a partys or witness deposition is inadmissible in evidence for
being hearsay.
EXCEPTIONS:
The deposition may be used for the following purposes:
1) For contradicting or impeaching the testimony of the deponent as a
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) For any purpose by any party, where the deponent is a witness if the
court finds that:
a) The witness is dead;
b) The witness resides more than 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;
c) That the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or
d) That the party offering the deposition has been unable to procure
the attendance of witnesses by subpoena; or
e) When exceptional circumstances exist (Sec. 4, Rule 23).
Before whom taken?
General Rule: Depositions may be taken before any judge, notary
public, or the person referred to in section 14 (which refers to any person
authorized to administer oaths designated by the parties by stipulation).

Exceptions: In our jurisdiction, depositions in foreign countries

may be taken:
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(a) on notice before a secretary of embassy or legation, consul

general, consul, vice consul, or consular agent of the Republic of the
Philippines;
(b) before such person or officer as may be appointed by commission
or under letters rogatory; or
(c) before any person authorized to administer oaths as stipulated in
writing by the parties.
No deposition shall be taken before a person who is: [Rule 23, sec.
13]
(a) a relative within the sixth degree of consanguinity or affinity, or
(b) employee or counsel of any of the parties, or who is a relative
within the same degree, or employee of such counsel; or
(c) who is financially interested in the action.

PROCEDURE
A party desiring to have the deposition of any person upon oral examination
shall give reasonable notice in writing to every party of the actionsatint th time
and plave fo takin the deposition and the name and address of each peron to be
examined. [rule 23, Sec. 15]

After the notice is served the court may make any order for the protection of the
parties and the deponent. [Rule 23, Sec. 16]

The attendance of the witness may be compelled by the use of

subpoenas. [Rule 23, Sec. 1]
T
The deponent may be examined or cross examined following the
procedures for witnesses in trial. He may be asked on questions on direct
or cross, re-direct or re-cross. He has the same rights as the witness and
may be impeached like a court witness because Sections 3-18 of uRle 132
apply to a deponent.
T
The officer before whom the deposition is being taken has no authority to
rule on objections interposed during the course of deposition although
any obbjections shall be noted by him upon te deposition. Any evidence
that is objective shall still be taken but subject to the objection. [Rule 23,
Se. 17]

When may
limited

taking

of

deposition

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be

terminated

or

its scope

The court in which the action is pending or the RTC of the place where the
deposition is being taken may order
the
officer
conducting
the
examination to cease from taking the deposition, or may limit the
scope and manner of taking the deposition
When: At any time during the taking of the deposition, on the motion
or petition of any party or
of the deponent
Ground: that the examination is being conducted in bad faith or in
such a manner as unreasonably to annoy, embarrass or oppress the
deponent or party [Rule 23, Sec. 18]
If the order made terminates the examination, it shall be resumed only
upon the order of the court in which the action is pending.
WHEN MAY OBJECTIONS TO ERRORS AND IRREGULARITIES BE MADE
[R,23, sec. 29]
OBJECTION

WHEN MADE
Waived, unless WRITTEN objection is PROMPTLY
As to NOTICE to parties
served upon party giving notice
Waived, unless made BEFORE the taking of the
Deposition Officer is
deposition or as soon as the disqualification
disqualified
becomes known or could be discovered with
reasonable certainty
Lack of relevance,
Not waived by the failure to make them before or
materiality and competence during the taking of the deposition, unless the
of the deposition to the
ground for objection is one which might have been
action
obviated or removed if presented at that time
Error in the manner of
Waived, unless reasonable objection is made at the
taking the deposition
taking of the deposition
Waived, unless served in writing upon the party
Error in the form of written
propounding them within the time allowed for
interrogatories
serving succeeding cross of other interrogatories
and within 3 days after service of the last
interrogatories
Waived, unless a motion to suppress the deposition
Error in the manner of
or some part thereof is made with reasonable
preparing the deposition
promptness after such defect is, or with reasonable
diligence might have been, ascertained

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OTHER RULES
Effect of substitution of parties [Rule 23, Sec. 5]
(a) Substitution of parties does not affect the right to use depositions
previously taken;
(b) and, 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,
(c) all depositions lawfully taken and duly filed in the former action MAY BE
USED IN THE LATTER AS IF ORIGINALLY TAKEN THEREFOR.
Effect of taking deposition [Rule 23, Sec. 7]
A party shall not be deemed to make a person his own witness for any
purpose by taking his deposition.
Effect of using deposition [Rule 23, Sec. 8]
General Rule: Introduction in evidence of deposition or any part thereof
for any purpose makes the deponent the witness of the party
introducing the deposition.
Exception: if the purpose is to contradict or impeach the deponent.
Leave of court [Rule 23, Sec. 1]
(a) Leave of court is NOT required after an answer has been served.
(b) It is required before the service of an answer but after jurisdiction has
been acquired over the
defendant or over the property subject of the action.
(c) Only instance when one always needs leave of court before taking
depositions: Where the deponent is in jail.
WRITTEN INTERROGATORIES UNDER RULE 23
(a) A deposition need not be conducted through an oral examination. It
may be conducted through written interrogatories which shall be
served upon every other party.
(b) The party served may also serve crossinterrogatories upon the
party proposing to take the deposition within 10 days from service of the
written interrogatories. The latter may, within 5 days serve re-direct
interrogatories and within 3 days the other party may serve re-cross
interrogatories [Rule 23, Sec. 25]
(c) Copies of all these interrogatories shall be delivered to the officer
before whom the deposition is taken and who shall take the responses
and prepare the record. [Rule 23, Sec. 26]
People v. Hubert Webb (1999): DEPOSITION, WHEN AVAILABLE IN
CRIMINAL CASES:
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A deposition, in keeping with its nature as a mode of discovery,

should be taken BEFORE AND NOT DURING TRIAL. In fact, rules on criminal
practice - particularly on the defense of alibi, which is respondents main
defense in the criminal proceedings against him in the court below states that when a person intends to rely on such a defense, that person
must move for the taking of the deposition of his witnesses within the
time provided for filing a pre-trial motion.
The use of discovery procedure in criminal cases is directed to the
sound discretion of the trial judge.
The deposition taking cannot be based nor can it be denied on flimsy
reasons. Discretion has to be exercised in a reasonable manner and in
consonance with the spirit of the law.
Dasmarias Garments v. Reyes (1993):
Any deposition offered to prove the facts therein at the trial of the
case, in lieu of actual testimony of the deponent in court, may be
opposed and excluded for being hearsay save in specific instances under
the Rules.
SCOPE OF EXAMINATION
Unless otherwise ordered by the court as provided by Sec. 16 or 18, the
deponent may be examined regarding:
a) any matter not privileged
b) which is relevant to the pending action, whether relating to the claim
or defense of any other party, including the existence, description,
nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having
knowledge of relevant facts
c) Not restricted by a protective order.
WHEN OBJECTIONS TO ADMISSIBILITY MAY BE MADE
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 (Sec. 6).

WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR ITS SCOPE LIMITED

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At any time during the taking of the deposition, any party or deponent may
ask for the termination or limiting of the scope of the deposition upon
showing:
1) that the examination is being conducted in bad faith; or
2) that it is conducted in such manner as reasonably to annoy,
embarrass, or oppress the deponent or party.
WRITTEN INTERROGATORIES TO ADVERSE PARTIES
CONSEQUENCES OF REFUSAL TO ANSWER
The party who fails to serve his answer to written interrogatories may be the
subject of a judgment by default
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
A party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give deposition pending
appeal, unless allowed by the court or to prevent a failure of justice (Sec. 6,
Rule 25).
This provision encourages the use of written interrogatories although a party
is not compelled to use this discovery procedure, the rule imposes sanctions
for his failure to serve written interrogatories by depriving him of the
privilege to call the adverse party as a witness or to give a deposition
pending appeal.

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