RULE 23

DEPOSITIONS PENDING ACTION

Discovery is defined as a device employed by a party to obtain information about

relevant matters on the case from the adverse party in preparation for the trial.

Importance of Modes of Discovery:

 Effectively shorten the period of litigation and speed up adjudication.
 Serve as a device, along with pre-trial hearing under Rule 18, to narrow and clarify
the basic issues between the parties, and
 As a device for ascertaining the facts relative to those issues.

Purposes of the Rules of Discovery:

1. To enable a party to obtain knowledge of material facts within the knowledge of the
adverse party or of third parties through depositions;
2. To obtain knowledge of material facts or admissions from the adverse party through
written interrogatories;
3. To obtain admissions from the adverse party regarding the genuineness of relevant
documents or relevant matters of fact through requests for admissions;
4. To inspect relevant documents or objects, and lands or other property in the
possession and control of the adverse party; and
5. To determine the physical or mental condition of a party when such is in controversy.
1

Modes of discovery under the Rules of Court

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

RULE 23

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

This rule authorizes the taking of a deposition in a pending action either to make
discovery in preparation for, or to be used as evidence upon the trial of such action.2

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.
Deposition may either be in the form of an oral examination, or written interrogatories.

There are two instances when deposition may be taken, to wit:

1
(Koh v. IAC, 144 SCRA 259)
2
Bachrach v. General Investment Corporation, 31 F. Supp. 84 (1940)

1
 a. During a pending action (Rule 23) ; or
b. Before action or Pending appeal (Rule 24).

When leave of court is required before taking deposition

Leave of court is necessary when it is to be obtained before service of an answer

but after the jurisdiction has been acquired over the defendant or over the property
subject of the action and if the deposition to be taken is that of a prisoner.

The same section also provides that leave of court is not necessary when the
answer has been served.

SECTION 2. Scope of examination. — Unless otherwise ordered by the court as provided by

section 16 or 18 of this Rule, the deponent may be examined 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, 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.

Scope of the examination of the deponent

1. Existence;
2. Description;
3. Nature;
4. Custody;
5. Condition;
6. Location of any books, documents, or other tangible things; and
7. The identity and location of persons having knowledge of relevant facts.

While the deponent may be examined regarding any matter, the recognized
exemptions to such scope are those matters which are privileged and those that are
irrelevant to the case, as prohibited by Sections 16 and 18 of this rule. It is worth noting,
however, that “fishing expeditions” are allowed so that the parties are required to lay
their cards on the table in order to facilitate a settlement of the case before the trial and
to do away with secrecy and surprises in the preparation and trial of cases.3

SECTION 3. Examination and cross-examination. — Examination and cross-examination of

deponents may proceed as permitted at the trial under , sections 3 to 18 of Rule 132.

Discovery; Modes of Discovery; Refusal to Comply (2010 BAR)

On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in
Legaspi City 100,000 pieces of century eggs. The shipment arrived in Manila totally
damaged on August 14, 2008. A filed before the Metropolitan Trial Court (MeTC) of
Manila a complaint against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis, for
recovery of damages amounting to P167,899. He attached to the complaint the Bill of
Lading.
On July 21, 2009, B Lines served on A a "Notice to Take Deposition," setting the
deposition on July 29, 2009 at 8:30 a.m. at the office of its counsel in Makati. A failed to

3
Mutuc v. Agloro, 105 SCRA 642 (1981).

2
appear at the deposition-taking, despite notice. As counsel for B Lines, how would you
proceed? (3%)

Suggested Answer:
As counsel for B lines (which gave notice to take the deposition), I shall proceed
as follows:
Find out why A failed to appear at the deposition taking, despite notice;
(a) If failure was for valid reason, then set another date for taking the deposition.
(b) If failure to appear at deposition taking was without valid reason, then I would
file a motion/application in the court where the action is pending, for and order
to show cause for his refusal to submit to the discovery; and
(c) For the court to issue appropriate Order provided under Rule 29 of the Rules, for
noncompliance with the show-cause order, aside from contempt of court.

SECTION4. Use of depositions. — At the trial or upon the hearing of a motion or an

interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules
of evidence, may be used against any party who was present or represented at the taking of
the deposition or who had due notice thereof, in accordance with any one of the following
provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching
the testimony of deponent as a witness;

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

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

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require
him to introduce all of it which is relevant

to the part introduced, and any party may introduce any other parts.
Use of depositions
Depositions are generally used during trial as evidence, but they are not meant
to substitute the actual testimony of a party or a witness in open court. Hence, as a
cardinal rule, the deponent must be presented for oral examination in open court at the
trial or hearing.

3
 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.4

Depositions can also be used during hearing of motions (Sec. 7, Rule 133), bases
for a summary judgment (Rule 35) and during hearing of an interlocutory proceeding
(Sec. 13, Rule 57).

Depositions may be used against:

1. Any party who was present or represented at the taking of the deposition; or
2. who had due notice thereof

Purpose of Usage of Depositions

A deposition may be used in all cases by any party of impeachment purposes.
It may be used for contradicting or impeaching the testimony of deponent and
not as proof of specific facts. If the deponent does not testify and is not a party, the
deposition cannot be used for this purpose. The requirement in Section 13, Rule 132,
however, must be complied, to wit:

How witness impeached by evidence of inconsistent statements - Before a

witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be
related to him, with the circumstances of the times and places and the persons
present, and he must be asked whether he made the statements, and if so,
allowed to explain them. If the statements be in writing they must be shown to
the witness before any question is put to him concerning them.

A deposition can be used by the adverse party as an admission or for other

purposes, provided that the deponent is a party when the deposition was
taken.

While the rule states that 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, this does not mean that the party shall be deemed to make a
person his own witness for any purpose by taking his deposition.5

The adverse party can use the admission of the same deponent in his deposition
to contradict his statements in the open court. In which case, if the deponent persistently
makes false statements, he can be prosecuted for perjury.

A deposition can be used for any purpose whether the deponent is a party or
not

This provision is a recognized exemption to the requirement that a deponent must

be presented in open court for his testimony to be admitted and not expunged on the
ground of hearsay. However, for the deposition to be used for any purpose, either of
following situations must be present:
1. Death of Witness

4
Sales v. Sabino, GR. No. 133154, December 9, 2005.
5
Section 7, Rule 23, Rules of Court.

4
 2. Non-Residence of deponent. 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.
3. Disability of witness. The witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment.
4. Inability to procure the attendance of witness by subpoena. That the
party offering the deposition has been unable to procure the attendance of the
witness by subpoena
5. Exceptional circumstances

Procedure of offering a deposition as evidence:

1. A party can offer only a part of a deposition as evidence.
2. If objections are raised, the objecting party may require him to introduce all of it
which is relevant to the part introduced.
3. The court shall determine the competency, materiality and relevancy of the evidence
presented.

Section 5. Effect of substitution of parties - Substitution of parties does not affect the
right to use depositions previously taken; 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, all depositions lawfully taken
and duly filed in the former action may be used in the latter as if originally taken
therefor.

A deposition previously taken can be used in a latter action provided, that:

1. Substitution of parties took place in an action; or
2. An action has been dismissed and another action was filed involving the same subject
and it involves the same parties or their representatives or successors in interest.

Section 6. Objections to admissibility - Subject to the provisions of section 29 of this rule,

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
the present and testifying.

As a general rule, objections can 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 present and testifying.

However, when the instances enumerated in Section are not properly raised as
objections, the same would amount to a waiver. The following are the instances
enumerated in Section 29 of the same rule, to wit:

1. Errors and irregularities in the notice for taking a deposition;

2. Disqualification of the officer before whom the deposition is to be taken;
3. Incompetency of the witness;
4. Irrelevancy or immateriality of testimony
5. Errors and irregularities occurring at the oral examination;
6. Form of written interrogatories (Sec. 29, Rule 23)

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 SECTION 7. Effect of taking depositions. — A party shall not be deemed to make a person
his own witness for any purpose by taking his deposition.

Stated otherwise, a person whose deposition is taken by a party does not, by

reason of such deposition, make such person a witness of said party.
The reason for this rule is that depositions may be taken for discovery and not for use
as evidence.6
Also, deposition taking is a fishing expedition. Remember that under Section 2 of
the same Rule, it says that the deponent may be examined regarding any matter related
to the claim or defense of any other party, provided it is relevant and not a privileged
matter. A party may ask questions left and right until he stumbles into something about
the case. If after taking the deposition, the deponent knows nothing, then, he is useless
as a witness to the party taking the deposition – he is not his witness. And if it turns out
that everything the deponent says is against the party taking the deposition, the latter
is not bound by the testimony. In fact, it will be the other party who will use the said
deponent as their witness. 7 Hence, as a rule, if a party takes a deposition of a person,
it does not necessarily make the latter his witness.

SECTION 8. Effect of using depositions. — The introduction in evidence of the

deposition or any part thereof for any purpose other than that of contradicting or
impeaching the deponent makes the deponent the witness of the party introducing the
deposition, but this shall not apply to the use by an adverse party of a deposition as
described in paragraph (b) of section 4 of this rule.

The general rule states that the taking of the deposition of a person does not
make that person a witness of the party using his deposition (Sec 7, Rule 23). However,
the introduction in evidence of the deposition, or any part thereof, makes the deponent
the witness of the party introducing the deposition (Sec. 8, Rule 23).

But if the offering of the evidence is used for impeaching or contradicting the
deponent (Sec. 8, Rule 23); or If the adverse party uses the deposition of the other party
[Sec. 4(b), Rule 23], it does not have the effect of making the deponent the witness of
the adverse party. Of course, if the adverse party offers A’s deposition to show the court
that he is a liar, the adverse party is not making A as their witness.

SECTION 9. Rebutting deposition. — At the trial or hearing any party may rebut any
relevant evidence contained in a deposition whether introduced by him or by any other
party.
A party may offer in evidence only part of a deposition, in which case 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. (Sec. 4, Rule 23). In such a case, he may rebut
the other parts offered in evidence by the adverse party.

SECTION10. Persons before whom depositions may be taken within the Philippines. —
Within the Philippines, depositions may be taken before any judge, notary public or the
person referred to in section 14 hereof.

6
Civil Procedure Annotated 2013, Feria and Noche
7
The 1997 Rules of Civil Procedure 2014, Lakas Atenista

6
 If the parties so stipulate in writing, depositions may be taken before any person
authorized to administer oaths, at any time or place, in accordance with these Rules
and when so taken may be used like other depositions. 8 The Revised Administrative
Code enumerates those parties who have the authority to administer oaths:
The following officers have general authority to administer oaths, to wit:
(a) President;
(b) Vice-President;
(c) Members and Secretaries of both Houses of the Congress;
(d) Members of the Judiciary;
(e) provincial governors and lieutenant-governors;
(f) city mayors;
(g) municipal mayors; bureau directors;
(h) regional directors;
(i) clerks of courts;
(j) registrars of deeds;
(k) and other civilian officers in the Philippine public service whose appointments
are vested in the President of the Philippines and are subject to confirmation
by the Commission of Appointments;
(l) all other constitutional officers;
(m) and notaries public.
(n) A person who by authority of law shall serve in the capacity of the officers
mentioned above shall possess the same power.9

The judge referred herein in the rules is not necessarily the judge holding the
case wherein deposition is to be taken. As to the notary public, it is required that they
take depositions within the place they may practice.

Depositions before a Judge

A judge is any person who is clothed with judicial power who may hear and decide
a case. The judge referred to in this section may be the judge of the court where the
case is pending. The judge, after an order granting a request or motion to take a
deposition may issue a subpoena to compel a witness to come to court where such
witness may be orally examined10 (the counsel for the party who is requesting deposition
usually asks the questions to the deponent before the judge).

Subject to the rule11 that only witnesses residing within 100 kilometers of the
court may be under the compelling power of the subpoena, a party requesting a
deposition of a person who is beyond 100 kilometer may have such request routed to
the court which is within 100 kilometers from of the residence of the deponent. In which

8
Section 14, Rule 23, Rules of Court
9
Section 21, Revised Administrative Code
10
Section 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject of the action, or without such leave after an
answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any
party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with
these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as
the court prescribes.

11
Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a witness who
resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the
ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was
obtained. (9a, R23)

7
case, the judge to whom the request was routed may issue a subpoena for the sole
purpose of compelling the attendance of such person for the deposition12.

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

SECTION 12. Commission or letters rogatory. — A commission or letters rogatory shall

be issued only when necessary or convenient, on application and notice, and on such
terms and with such directions as are just and appropriate. Officers may be designated
in notices or commissions either by name or descriptive title and letters rogatory may
be addressed to the appropriate judicial authority in the foreign country.

Section 11 and 12, describes the rule on extraterritorial discovery. The main issue
to be resolved again is authority of the deposing officer to administer oaths and how the
law may be validly given force in places beyond the Philippine court’s jurisdiction and
compelling power.

Figure 1. Chart illustrating the persons authorized to take deposition under section 11,
rule 23 of the RULES OF COURT.

Depositions on Notice

Depositions on Notice are those deposition whose deposing officer may be

requested by a Notice from a court, after such party applies or petition for such notice
to be routed to a Consular office. This is done when a party wishes to conduct before
Consular Officers particularly, secretary of embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of the Philippines, must comply with OCA
Circular 209-2017. The circular provides an annex document from the Department of
Foreign Affairs, Office of Legal Affairs on service of processes and litigation. The

12
Section 2. By whom issued. — The subpoena may be issued by —
(b) the court of the place where the deposition is to be taken;

8
document is entitled, “Guidelines in Taking of Deposition before Philippine Consular
Officers”.

The guideline details a process flow as described on Figure 2 below.

Figure 2. Flowchart of process for a deposition on notice as prescribed in OCA

CIRCULAR 209-2017.
1. REQUESTING
COUNSEL (RC) -moves/
applies before the Court
to request for the DFA’s
assistance in taking 7. DEPOSITION PROPER 8. the consular officer-
deposition (The deposing party shall deposing officer shall
coordinate with transmit all written
deponent and will be the interrogatories,
one responsible for transcripts and
deponent's attendance) documents to the OLA.
1.a COURT
GRANTS/ISSUES
ORDER
6. payment of
9. OLA transmits all
required consular
record to the relevant
fees by deposing
COURT.
party.
2. RC- submits the request
letter, order granting
request for court assistance
, and written
interrogatories (if the 5.OLA communicates
deposition is through the details to deposing
same) to the DFA-OFFICE OF counsel.
LEGAL AFFAIRS.

4. Philippine Foreign
3. OLA- transmits All
Service Post-comment on
documents to the foreign
acceptability and
service post nearest the
schedule and give
residence of the
deposing officer's name
deponent.
and designation to OLA.

Depositions on Commission and Letters Rogatory.

A Commission, is an instrument addressed to any authority in a foreign country

authorized therein to take down depositions and the taking of such deposition is subject
to the rules laid down by the court issuing the commission13. Letters Rogatory are
documents addressed to a judicial authority in the foreign country and the taking of such
deposition is subject to the rules laid down by such foreign judicial authority14 (see Table
1 for the list of known distinctions).

13
Dasmarinas Garments vs. Reyes etc. et. Al. GR No. 108229, Aug 24, 1993.
14
Ibid.

9
Table. 1. Distinctions Between Commission and Letters Rogatory.

Commission is clothing a particular PERSON or descriptive title while Letter’s

rogatory may be addressed to the appropriate judicial authority in the foreign country.
Letters Rogatory may only be applied for ONLY AFTER a commission has been returned
unexecuted15. This may be further gleaned from Form 21 of the "Judicial Standard
Forms" appended to the Rules of Court, which requires the inclusion in a "petition for
letters rogatory" of the following paragraph, viz.:

3. A commission issued by this Court on the ______ day of ______, 19__, to take
the testimony of (here name the witness or witnesses) in (here name the foreign
country in which the testimony is to be taken), before _________________
(name of officer), was returned unexecuted by

__________________ on the ground that ____________, all of which more fully

appears from the certificate of said __________ to said commission and made a
part hereof by attaching it hereto (or state other facts to show commission is
inadequate or cannot be executed) (emphasis supplied).

Case: Dulay vs Dulay, 200316

Issue. Whether the admission of a deposition through the notary public in New
York despite the explicit order or directive for letters rogatory was proper;

Held: Yes, the admission was proper. When the letters rogatory cannot be effected,
the resort to a deposition via a notary public was a valid alternative:

Based on two (2) reasons:

1. 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;

2. Respondent substantially complied with the requirements for depositions taken

in foreign countries.

In the Dulay case the court expounded on the essence of deposition and
why such discretion was applied to the case. Here, the court explained that the use
Distinction Commission Letters Rogatory
Purpose To depose a person outside the consular jurisdiction or those
without consular offices or it it more covenient;
Issuing The court were the action is The court where the action is
authority pending pending
Deposing officer The officer designated by name The appropriate judicial
or the person to whom the authority requested
descriptive title pertains
Rules applied The rules of the court which The rules of the foreign court
issued the commission requested
of discovery procedures is directed to the sound discretion of the trial courts which,
in general, are given wide latitude in granting motions for discovery in order to

15
Ibid.
16
Dulay vs.Dulay, G.R. No. 158857, November 11, 2005.

10
enable the parties to prepare for trial or otherwise to settle the controversy prior
thereto;

It was not within the trial courts power, much less the respondents to force
the Clerk of Court of Boston to have the deposition taken before it. After all, while
a court had the authority to entertain a discovery request, it is not required to
provide judicial assistance thereto. This reality was recognized by the trial court
when it ordered respondent to have the questioned depositions authenticated by
the Philippine consulate. The court ruled that refusing the allowance of the
depositions in issue would be going directly against the purpose of taking the
depositions in the first place, that is, the disclosure of facts which are relevant to
the case.

SECTION 13. Disqualification by interest. — No deposition shall be taken before a

person who is a relative within the sixth degree of consanguinity or affinity, or
employee or counsel of any of the parties; or who is a relative within the same
degree, or employee of such counsel; or who is financially interested in the action.

The following are the persons are not allowed to take depositions, to wit:
1. One who is related to the deponent within the 6th degree of
consanguinity or affinity;
2. An employee or attorney of one of the parties;
3. One who is related to the attorney of the deponent within the same
degree or employee of such attorney; and
4. One who is financially interested in the action.

However, objection this error is deemed waived unless the objection is made
before the taking of the deposition begins or as soon as the disqualification
becomes known or could be discovered with reasonable diligence.17

SECTION 14. Stipulations regarding taking of deposition. — If the parties so stipulate

in writing, depositions may be taken before any person authorized to administer
oaths, at any time or place, in accordance with these Rules, and when so taken may
be used like other depositions.

SECTION 15. Deposition upon oral examination; notice; time and place. — A party
desiring to take the deposition of any person upon oral examination shall give
reasonable notice in writing to every other party to the action. The notice shall state
the time and place for taking the deposition and the name and address of each
person to be examined, if known, and if the name is not known, a general description
sufficient to identify him or the particular class or group to which he belongs. On
motion of any party upon whom the notice is served, the court may for cause shown
enlarge or shorten the time.

17
Section 29(b), Rule 23, Rules of Court.

11
 The parties may stipulate in writing as to the person authorized to administer
oaths, as to the time and place, but not as to the manner of taking depositions
which should be in accordance with the rules. 18

Requirement before taking deposition upon oral examination

A party desiring to take the deposition of any person upon oral examination
shall give reasonable notice in writing to every other party to the action (Sec.
15, Rule 23).

Contents of the notice

It shall state the:

1. Time and place for taking the deposition and

2. Name and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him or the
particular class or group to which he belongs. (Sec. 15, Rule 23)

Subpeona for deposition-taking

Under Section 5, Rule 21, proof of service of a notice to take deposition shall
constitute sufficient authorization for clerk of court to issue a subpoena for the
named person. On motion of any party upon whom the notice is served, the court
may for cause shown enlarge or shorten the time.

Formal defects and irregularities not affecting right of adverse party are
disregarded

Section 28(d) of this rule provides, errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of the parties and errors of any
kind which might be obviated, removed, or cured if promptly prosecuted, are waived
unless reasonable objection thereto is made at the taking of the deposition.

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

After notice is served for taking a deposition by oral examination, upon motion
seasonably made by any party or by the person to be examined and for good cause
shown, the court in which the action is pending may issue the following orders:
1. That the deposition shall not be taken;

18
Feria and Noche, Civil Procedure Annotated, 2013.

12
 2. That it may be taken only at some designated place other than that stated
in the notice;
3. That it may be taken only on written interrogatories;
4. That certain matters shall not be inquired into;
5. That the scope of the examination shall be held with no one present except
the parties to the action and their officers or counsel;
6. That after being sealed the deposition shall be opened only by order of the
court;
7. That secret processes, developments, or research need not be disclosed;
8. That the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court;
9. The court may make any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or oppression.

The matter of good cause is to be determined by the court in the exercise of

judicial discretion. Good cause means a substantial reason-one that affords a legal
excuse. Whether or not substantial reasons exist is for the court to determine. A
particular and specific demonstrations of facts is required to establish good cause for the
issuance of a protective order.

SECTION17. Record of examination; oath; objections. — The officer before whom the
deposition is to be taken shall put the witness on oath and shall personally, or by some
one acting under his direction and in his presence, record the testimony of the witness.
The testimony shall be taken stenographically unless the parties agree otherwise. All
objections made at the time of the examination to the qualifications of the officer
taking the deposition, or to the manner of taking it, or to the evidence presented, or
to the conduct of any party, and any other objection to the proceedings, shall be noted
by the officer upon the deposition. Evidence objected to shall be taken subject to the
objections. In lieu of participating in the oral examination, parties served with notice
of taking a deposition may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim.

Oral examinations must be under oath. The testimony will be taken by the
stenographer. And objections must be recorded. Evidence objected to shall be taken
subject to the objections.

Objections to be noted by the officer upon the deposition

All objections made at the time of the examination to the:

1. Qualifications of the officer taking the deposition;

2. Manner of taking the depositions;
3. Evidence presented;
4. Conduct of any party; or
5. Any other objection to the proceedings.

Evidence objected to shall be taken, subject to the objections

The officer before whom the deposition is to be taken has no authority to rule on
the objections. The objection will only be noted and the deponent must answer. Later
on, if that deposition is offered as evidence in court, the court will now rule on the
objection. If the objection is overruled, the answer as recorded remains. If the objection
is sustained, the answer as recorded is erased as if it was never answered.

13
 Answers to depositions not objected to cannot be objected to in court during the
trial, UNLESS the objection is based on a new ground which only come up after the
deposition.19

ISABELA SUGAR Co., Inc., vs MACADAEG

93 Phil.995 (1953)
RULING:

When the deposition of a witness is being taken under this provision, the party
objecting to a question claimed to be immaterial or irrelevant may object thereto, but
such party cannot prevent the witness from answering the question because the
relevancy or materiality will only be decided upon the trial when the deposition is
introduced as evidence.

An exception to this general rule obtains when the questions propounded are annoying,
embarrassing, or oppressive to the deponent in which case the matter may be submitted
to the trial judge for a ruling, or when the constitutional privileges against self-
incrimination is invoked by the deponent or by counsel on his behalf.

So, the deposition officer cannot make a ruling on the objection. It is only the
judge of the court where the case is pending who will make the ruling on it.

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

A motion to terminate or limit examination may be filed:

1.) any time during the taking of the deposition;
2.) on motion or petition of any party or of the deponent; and
3.) upon showing that the examination is conducted in:
a) bad faith;
b) in such manner as unreasonably to annoy, embarrass, or oppress the deponent or
party.

Hyatt Industrial vs. LEY Construction

GR. No. 147143, March 10, 2006
Facts:
The RTC cancelled the scheduled deposition on the ground that the taking of depositions
would cause unnecessary duplicity as the intended deponents shall also be called as
witness during the trial.

19
Feria and Noche, Civil Procedure Annotated, 2013.

14
RULING:
While it is true that depositions may be disallowed by the trial courts if the examination
is conducted in bad faith; or in such a manner 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, such circumstances however are
absent in the case at bar.
The argument that the taking of the depositions would cause unnecessary duplicity as
the intended deponent shall be called as witness during the trial is also without merit.

The RTC cites the delay in the case as a reason for cancelling the scheduled deposition.
While speedy disposition of cases is important, such consideration however should not
outweigh a thorough and comprehensive evaluation of cases, for the ends of justice are
reached not only through the speedy disposal of cases but more importantly, through a
meticulous and comprehensive evaluation of the merit of the case.

Protection Order (Section 16) and Motion to Terminate or Limit Examination

(Section 18)

1. The first provides protection to the party or witness before the taking of the
deposition, while the latter provides such protection during the taking of the testimony;
2. Motion for issuance of the first is filed with the court in which the action is pending
while the latter motion or petition is filed in the court in which the action is pending or
the RTC of the place where the deposition is being taken.

The following are the things that the officer who took the deposition shall
do after taking the deposition of a person, to wit:

a. The deposition shall be submitted to the deponent for examination;

b. The deposition shall be read to or by him, unless such examination and reading
are waived by the witness and the parties;
c. Any changes in form or substance which the witness desires to make shall be
entered upon the deposition by the officer with a statement of the reasons given
by the witnesses for making them;
d. The deposition shall then be signed by the witness, unless the parties by
stipulation waive the signing, or the witness is ill or cannot be found or refuses to
sign;
e. If the deposition is not signed by the witness, the officer shall sign it and state on
the record the fact of the waiver or of the illness or absence of the witness or the
fact of refusal to sign together with the reason, if any, given therefor;
f. He shall certify on the deposition that the witness was duly sworn to by him and
that it is a true record of the testimony of the witness, and then he shall securely
seal the deposition in an envelope, duly marked, and promptly file it with the
court where the action is pending; and
g. The officer taking the deposition shall give prompt notice of its filing to all the
parties.

15
 Section 19.Submission to witness; changes; signing. — When the testimony is
fully transcribed, the deposition shall be submitted to the witness for examination and
shall be read to or by him, unless such examination and reading are waived by the
witness and by the parties. Any changes in form or substance which the witness
desires to make shall be entered upon the deposition by the officer with a statement
of the reasons given by the witness for making them. The deposition shall then be
signed by the witness, unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is not signed by the
witness, the officer shall sign it and state on the record the fact of the waiver or of the
illness or absence of the witness or the fact of the refusal to sign together with the
reason be given therefor, if any, and the deposition may then be used as fully as
though signed, unless on a motion to suppress under section 29 (f) of this Rule, the
court holds that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.20 (19a, R24)

When the testimony is fully transcribed

General Rule: The deposition shall be submitted to the witness for examination
and shall be read to or by him.
Exception: If such examination and reading are waived by the witness and by
the parties
NOTE:A waiver of the examination and reading of the transcript of the
deposition must be made by the witness and by the parties.
Necessity of signing depositions
After the deposition of the deponent is taken, the deposition officer shall
submit the deposition to the deponent for examination. He may change his
answers but must state the reason for the change. After which, he signs it unless
the parties by stipulation waive the signing, or the witness is ill, or cannot be
found or refuses to sign. In the latter cases, the deposition shall be signed by the
deposition officer.
General Rule: Deposition shall be signed by the witness.
Exceptions
a. Parties by stipulation waive the signing; or
b. Witness is ill; or
c. Witness cannot be found; or
d. Witness refuses to sign.

When deposition is not signed by the witness

The officer shall sign it and shall state on the record the fact of: (1) the
waiver; or (2) the illness; or (3) absence of the witness; or (4) the fact of refusal
to sign together with the reason given therefor, if any, and the deposition may
then be used as fully as though signed unless on a motion to suppress under
Sec. 29 (f) of the same rule, the court holds that the reasons given for the refusal
to sign require rejection of the deposition in whole or in part.
Section 29 (f) of this rule which provides that:

Section 29.Effect of errors and irregularities in depositions. —

(f) 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

20
Section 19, 1997 Rules on Civil Procedure

16
 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.21

Query: May the deposition be admitted in evidence despite failure of the

deponent to sign the same?

In Ayala Land vs. Tagle, G.R. No. 153667, August 11, 2005,22 the Supreme
Court held that on the objection owing to the lack of signature of the deponent,
it should be noted that a deposition not signed does not preclude its use during
the trial. A deponent’s signature to the deposition is not in all events indispensable
since the presence of signature goes primarily to the form of the deposition.

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
admissability of the deposition does not preclude the determination of its
probative value at the appropriate time.

Section 20.Certification, and filing by officer. — The officer shall certify on the
deposition that the witness was duly sworn to by him and that the deposition is a true
record of the testimony given by the witness. He shall then securely seal the deposition
in an envelope indorsed with the title of the action and marked "Deposition of (here
insert the name of witness)" and shall promptly file it with the court in which the action
is pending or send it by registered mail to the clerk thereof for filing.23 (20, R24)

What must be certified?

1. Witness was duly sworn to by the officer;

2. Deposition is a true record of testimony of witness.

Procedure

1. Seal the deposition in an envelope;

2. Indorsed with the title of action and marked, “DEPOSITION OF ______”;
3. Promptly file with court where case is pending or send by registered mail to
the clerk thereof for filing.

Section 21.Notice of filing. — The officer taking the deposition shall give prompt
notice of its filing to all the parties.24 (21,R24)

Failure to give notice of filing; effect:

In the case of Philippine National Bank vs. Olila, 98 Phil. 1002 (1956),25
the Court held that exhibits V and W are the depositions of TeofiloLasin and
Catalina Jaravelo de Lasin who are the real payees of the treasury warrants and

21
Section 29, 1997 Rules on Civil Procedure
22
Ayala Land vs. Tagle, G.R. No. 153667, August 11, 2005
23
Section 20, 1997 Rules on Civil Procedure
24
Section 21, 1997 Rules on Civil Procedure
25
Philippine National Bank vs. Olila, 98 Phil. 1002 (1956)

17
 which are disputed because certain requirements of the rules with regard to their
taking had not been complied with.

It is true that the justice of the peace who took the depositions failed to
send to counsel the notice of the sending of the depositions to the clerk of court
as required by Section 21, Rule 18 (now Section 21, Rule 23) but this is a mere
defect in form which cannot affect the admissibility of said depositions. And the
fact that the depositions were signed only by said justice of the peace cannot also
affect their validity unless said officer is proven to be disqualified.

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

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

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

Proof of service of a notice to take a deposition, as provided in sections 15 and

25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for
the persons named in said notice by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum
to any such person without an order of the court.26

The above rule implies that if the party giving the notice of the taking of the
deposition does not take the necessary steps to have the witness subpoenaed in time,
he may be made to pay for his negligence and in causing disturbance to other party. 27
Note that a subpoena is necessary when jurisdiction over the witness was not yet
obtained by the court. A party to an action need not be served with subpoena for the
purpose of taking his deposition. It is sufficient to serve him notice of the taking of the
deposition.28

26
Section 5, Rule 21, Rules of Court
27
Feria and Noche, Civil Procedure Annotated, 2013.
28
Ibid.

18
 SECTION 25. Deposition upon written interrogatories; service of notice and of
interrogatories. — A party desiring to take the deposition of any person upon written
interrogatories shall serve them upon every other party with a notice stating the name
and address of the person who is to answer them and the name or descriptive title
and address of the officer before whom the deposition is to be taken. Within ten (10)
days thereafter, a party so served may serve cross-interrogatories upon the party
proposing to take the deposition. Within five (5) days thereafter the latter may serve
re- direct interrogatories upon a party who has served cross- interrogatories. Within
three (3) days after being served with re- direct interrogatories, a party may serve
recross-interrogatories upon the party proposing to take the deposition. (25, R24)

This mode of deposition is available if the deponent is in a distant place or

foreign country.

Procedure in taking a deposition upon written interrogatories

1. A party desiring to take the deposition of any person upon written interrogatories
shall serve them upon every other party with a notice stating the name and
address of the person who is to answer them and the name or descriptive title of
the officer before whom the deposition is to be taken.
2. Within ten (10) days thereafter, a party so served may serve cross-interrogatories
upon the party proposing to take the deposition.
3. Within five (5) days thereafter, the latter may serve redirect interrogatories upon
the party who has served cross-interrogatories.
4. Within three (3) days after being served with re-direct interrogatories, a party
may serve recross-interrogatories upon the party proposing to take the deposition
(Section 25, Rule 23).
5. The party taking the deposition shall deliver the notice to take deposition and
copies of all interrogatories to the officer before whom the deposition shall be
taken. (Section 26, Rule 23)
6. The officer shall propound the written interrogatories to the witness and record
the answers verbatim (Section 17, Rule 23).
7. When the testimony of the witness is fully transcribed, it shall be submitted to the
witness for examination and reading, unless such examination and reading are
waived by the witness (Section 16, Rule 23).
8. Any changes in form and substance which the witness desires to make shall be
entered upon the deposition with a statement of the reasons given therefor (Ibid.)
9. The deposition shall then be signed by the witness, unless signing is waived by
the parties, or the witness is ill, cannot be found, or refuses to sign (Ibid.)
10. If the deposition is not signed by the witness, the officer shall sign it with a
statement of the waiver, or of the illness or absence of the witness or his refusal
to sign (Ibid.)
11. The officer shall then certify, and file or mail the deposition, attaching thereto a
copy of the notice and the interrogatories received by him (Sec. 26, Rule 24)
12. The officer shall promptly give notice of such filing to all the parties (Section 27,
Rule 23).29

29
Albano, Remedial Law Reviewer, 2004.

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

DUTY OF A DEPOSITION OFFICER IF DEPOSITION

WAS TAKEN UPON WRITTEN INTERROGATORIES:

1. Serve a copy of the notice and all interrogatories to both parties;

2. Take the testimony of witness in response to interrogatories;
3. Prepare, certify and file or mail the deposition together with the copy of the
notice and interrogatories received by him to the Clerk of Court.

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

After the deposition upon interrogatories is filed, the deposition officer shall:

1. Give notice to all the parties of the filing thereof;

2. Furnish them copies, upon payment of reasonable charges.

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

How to ask for protective orders:

1. File motion to court where action is pending;

2. Good cause must be shown;
3. It must be done after service of interrogatories and prior to taking of testimony
of deponent.

Protective Orders in Depositions Upon Written Interrogatories:

1. Order to enlarge/ shorten time within which to take the testimony of deponent
(Section 15, Rule 23)
2. Order that testimony in answer to written interrogatories shall not be taken
(Section 16, Rule 23)
3. Order to terminate /limit taking of testimony (Section 18, Rule 23)
4. Order that deposition not to be taken before officer designated (Section 28, Rule
23)

20
 5. Order that testimony not to be taken except upon oral examination (Section 28,
Rule 23)

Section 29. Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served upon the
party giving the notice.
(b) As to disqualification of officer. — Objection to taking a deposition
because of disqualification of the officer before whom it is to be taken is
waived unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered
with reasonable diligence.
(c) As to competency or relevancy of evidence. — Objections to the
competency of witness or the competency, relevancy, or materiality of
testimony are not waived by failure to make them before or during the taking
of the deposition, unless the ground, of the objection is one which might
have been obviated or removed if presented at that time.
(d) As to oral examination and other particulars. — Errors and irregularities
occurring at the oral examination in the manner of taking the deposition in
the form of the questions or answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind which might be obviated,
removed, or cured if promptly prosecuted, are waived unless reasonable
objection thereto is made at the taking of the deposition.
(e) As to form of written interrogatories. — Objections to the form of written
interrogatories submitted under sections 25 and 26 of this Rule are waived
unless served in writing upon the party propounding them within the time
allowed for serving succeeding cross or other interrogatories and within
three (3) days after service of the last interrogatories authorized.
(f) 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.
EFFECTS OF ERRORS AND IRREGULARITIES
AS TO OBJECTIONS EFFECT: UNLESS:
TO:
1. Errors and irregularities in Waived Written objection is
the notice for taking a promptly served upon
deposition the party giving the
notice.
2. Disqualification of the Waived Made before the taking
officer before whom it is of the deposition begins
to be taken or as soon thereafter as
the disqualification
becomes known or could
be discovered with
reasonable diligence.
3. Competency of a Not waived by failure to The ground of the
witness or the make them before or objection is one which
competency, during the taking of the might have been
relevancy or deposition.

21
 materiality of
testimony.
4. Oral examination in Waived
the manner of taking
the deposition in the
form of the questions
or answers, in the
oath or affirmation, or
in the conduct of the
parties and errors of
any kind which might
be obviated, removed,
or cured if promptly
prosecuted
5. Objections to the form Waived
of written
interrogatories
submitted under
sections 25 and 26
6. Manner in which the Waived
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.
obviated or removed if
presented at that time.
Reasonable objection
thereto is made at the
taking of the deposition.
Served in writing upon
the party propounding
them within the time
allowed for serving
succeeding cross or
other interrogatories and
within three (3) days
after service of the last
interrogatories
authorized.
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.
22