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Presentation on theme: "EFFECTIVE USE OF MODES OF

DISCOVERY By: Atty. Rogelio A. Vinluan." Presentation


transcript:
1

EFFECTIVE USE OF MODES OF DISCOVERY By: Atty. Rogelio A. Vinluan

2 2 A.Introduction x x x Now, it appears to the Court that among far too many lawyers
(and not a few judges), there is, if not a regrettable unfamiliarity and even outright
ignorance about the nature, purposes and operations 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 pre-trial procedure, could, as the experience of other jurisdictions
convincingly demonstrates, effectively shorten the period of litigation and speed up
adjudication. x x x.
3

3 To compel or prod lawyers to avail of modes of discovery, the 1997 amendments to


the rules of civil procedure have now imposed sanctions for failure to avail of some of
them.

4 4 Thus, if you fail to take advantage of the discovery tool allowed by Rule 25 which
relates to service of written interrogatories on the adverse party, the latter may not be
compelled to give testimony in open court or to give a deposition pending appeal.
5 5 Also, if you fail to serve upon the opposing party a written request for the admission
by the latter of the genuineness of any material and relevant document or of the truth
of any material and relevant matter of fact, you will not be permitted to present
evidence on such facts during the trial unless allowed by the court for good cause
shown and to prevent a failure of justice.
6

6 The primary purpose of discovery procedures is to enable the litigants to obtain a


more informed picture of the facts of the case more quickly and at less expense than
they could by relying on their own unaided initiative.

7 Otherwise stated, the underlying goal of the discovery rules is to cause disclosure
of relevant information before trial in order to render the judicial process more accurate
and fair.

8 8 As stated in a landmark California case: [D]iscovery tends to make a trial less a


game of blindmans buff and more a fair contest with the basic issues and facts
disclosed to the fullest practical extent.
9 9 That a party is engaged in a fishing expedition is not a defense or a bar to
discovery.
10

10 In Hickman v. Taylor, the U.S. Supreme Co urt pointedly stated: No longer can
the time-honored cry of fishing expedition serve to preclude a party from inquiring

into the facts underlying his opponents case. Mutual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation. To that end, either party may
compel the other to disgorge whatever facts he has in his possession.

11 11 In Republic v. Sandiganbayan, our Supreme Court explained the elemental


purpose of the discovery procedure as follows: The various modes or instruments of
discovery are meant to serve (1) as a device, along with the pre-trial hearing under Rule
20, to narrow and clarify the basic issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The evident purpose, is, to repeat, 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 that said trials are
carried on in the dark.
12

12 The principal benefits derivable from the availability and operation of a liberal
discovery procedure, according to our Supreme Court, are the following: 1. It is of great
assistance in ascertaining the truth and in checking and preventing perjury. The reasons
for this are:

13 13 (a) The witness (including a party) is examined while his memory is fresh; (b)
The witness including a party) is generally not coached in preparation for a pre-trial oral
examination with the result that his testimony is likely to be more spontaneous. Where
the examination is upon written interrogatories, however, it appears that some lawyers
furnish the witness with copies of the interrogatories and thereby enable him to prepare
his answers in advance.
14

14 (c) A party or witness whose deposition has been taken at an early stage in the
litigation cannot, at a later date, readily manufacture testimony in contradiction to his
deposition (d) Testimony is preserved, so that if a witness unexpectedly dies or become
unavailable at the trial, his deposition is available.

15

15 2. I t is an effective means of detecting and exposing false, fraudulent, and sham


claims and defenses. 3. It makes available in a simple, convenient, and often
inexpensive way facts which otherwise could not have been proved, except with great
difficulty and sometimes not at all.

16 16 4. It educates the parties in advance of trial as to the real value of their claims
and defenses, thereby encouraging settlements out of court. 5. It expedites the disposal
of litigation, saves the time of the courts, and clears the docket of many cases by
settlements and dismissals which otherwise would have to be tried.
17

17 6. It safeguards against surprise at the trial, prevents delays, and narrows and
simplifies the issues to be tried, thereby expediting the trial. 7. It facilitates both the
preparation and the trial of cases.

18

18 B. Functions of Discovery Devices Discovery promotes or encourages


settlement by increasing the quantum of information available to the parties;
Discovery operates to isolate issues and facts over which there is no material
controversy;

19 19 The discovery process ensures that important testimony is available at the


time of trial for example, aged, ill or immobile witnesses may be available for
discovery but not accessible later when the case goes to trial;
20

20 Discovery presents the opportunity for skillful counsel to compel a witness to


commit himself to one version of the facts; and Discovery presents the opportunity for
observation of the demeanor, attitudes, and responses of a witness and opposing
counsel.

21 21 C. Modes of Discovery The various modes of discovery provided under the rules
are the following: (1)Deposition pending action under Rule 23; (2)Interrogatories to
parties under Rule 25; (3)Request for admission under Rule 26; (4)Motion for production
or inspection under Rule 27; (5)Physical and mental examination of persons under Rule
28.
22

22 D.Depositions Pending Action Rule 23 of the Rules of Court regulates the taking
of depositions pending actions.

23

23 Section 1 of said rule provides: 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

24 24 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.
25 25 The scope of examination is defined by Section 2 of Rule 23, which reads:
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,
26

26 condition, and location of any books, documents, or other tangible things and
the identity and location of persons having knowledge of relevant facts.

27 27 As provided by Section 1, a deposition may be taken upon oral examination or


written interrogatories.
28 28 Generally speaking, a deposition on oral examination is the most widely used,
and probably the most efficient, discovery device allowed under the Rules.
29 29 Advantages of a deposition over written interrogatories: 1. Examination by
interrogatories is more cumbersome and less efficient. 2. In actual effectiveness,
interrogatories are far inferior to the oral examination. 3. Depositions are preferable if a
searching interrogation of the other party is desired. At a deposition, the examining

party has great flexibility and can frame his questions on the basis of answers to
previous questions.

30 30 With respect to the deposition of an adverse witness, an oral deposition is far


more satisfying than a deposition by written interrogatories because of your better
opportunity to protect against evasive or ambiguous answers.
31

31 The deposition of any person whether a party or not may be taken.

32

32 One of the principal advantages in the use of oral depositions is the opportunity
it gives counsel to ascertain the nature and extent of the deponents knowledge and the
testimony to be expected at the trial.

33

33 An obvious advantage of the oral deposition is that the deponent, whether


witness or party, can be discredited if he attempts to deviate from his story at the trial.
Also, if the deponent is unavailable to testify at the trial, the deposition serves to
preserve his testimony.

34 34 1. Use of depositions Section 4 of Rule 23 delineates the purposes for which a


deposition may be used, to wit:
35 35 Section 4. 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:
36

36 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;

37 37 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
38

38 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 only in open court, to allow the
deposition to be used; and

39

39 d)If only part of the 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.

40 40 It should be noted that a deposition may be used at the trial for two purposes:
(1) as direct evidence, if the deponent is a party or an officer, director or managing
agent of a juridical entity or association which is an adverse party, or if the witness is
dead or resides at a distance more than one hundred kilometers from the place of trial
or is out of the Philippines, or is unable to attend because of age, sickness, infirmity or
imprisonment, or whose attendance cannot be procured by subpoena; and (2) to
impeach a deponent if he testifies at the trial.
41

41 2. Practice Pointers (a) Timing of depositions. On the timing of depositions, it is


essential that you take depositions at the earliest opportunity to avoid being forced to
trial before you have completed your preparations.

42 42 (b) Demeanor of lawyer during oral depositions. What should your demeanor
be during the oral deposition of a witness you are taking? Most lawyers believe that you
obtain more satisfactory depositions for discovery purposes with a friendly manner than
with a hostile one.
43 43 (c) Detail and length of depositions. How detailed and lengthy should the
deposition be? When you are taking a deposition primarily to record testimony for use
as evidence during trial, in most respects you should proceed as nearly as possible in
the same manner as you would in examining the witness at trial. For discovery
purposes, you need a very thorough deposition. A good deposition for discovery is a
thorough one.
44

44 (d) Subject matter of deposition questions. - On the subject matter of deposition


questions, if you are taking the deposition primarily for discovery purposes, you should
not tie the scope and subject matter of your questions closely to your own theory of the
case or to the facts as indicated by your investigation file.

45 45 Another limitation on the subject matter of questions during depositions is that


you should not ask questions disclosing impeaching evidence in your possession when
advance notice to the witness would reduce the effectiveness of the impeaching
evidence.
46 46 (e) Form of deposition questions - Questions on deposition, like those during
examination of a witness at trial, should be simple and clear.
47

47 3. Sanctions for failure to attend or answer If a party or an officer or managing


agent of a party willfully fails to appear before the officer who is to take his deposition,
after being served with a proper notice, the court, on motion and notice, may strike out
all or any part of any pleading of that party, or dismiss the action or proceeding or any
part thereof, or enter a judgment by default against that party, and in its discretion,
order him to pay reasonable expenses incurred by the other, including attorneys fees.

48 48 If a party or other deponent refuses to answer any question upon oral


examination, after an order of the court requiring him to do so, the court, aside from
requiring the deponent to pay the proponent the amount of the reasonable expenses
incurred in obtaining the order, may make such orders in regard to the refusal as are
just, among which are the following: (a) an order that the matters regarding which

questions were asked or any other designated facts shall be taken to be established for
the purposes of the

49 49 action in accordance with the claim of the party obtaining the order; (b) an order
refusing to allow the disobedient party to support or oppose designated claims or
defenses; (c) an order striking out pleadings or parts thereof or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient party; and (d) in
lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of
any party or agent of a party for disobeying the order.
50

50 E. INTERROGATORIES TO PARTIES Rule 25 on interrogatories to parties provides


for an economical and efficient discovery tool that has three prime functions, as do
depositions and requests for admission: (1) to ferret out relevant information which may
constitute admissible evidence in the case or which may lead to discovery of admissible
evidence; (b) to bind the answering party to the facts set forth in the response, and (c)
to reduce the burden of preparing for trial by confining and narrowing the issues.

51 51 Sections 1 and 2 of Rule 25 read as follows: Section 1. Interrogatories to parties;


service thereof. Under the same conditions specified in section 1 of Rule 23, any party
desiring to elicit material and relevant facts from any adverse parties shall file and
serve upon the latter written interrogatories to be answered by the party served or, if
the party served is a public or private corporation or a partnership or association, by
any officer thereof competent to testify in its behalf.
52

52 Section. 2. Answer to interrogatories. The interrogatories shall be answered


fully in writing and shall be signed and sworn to by the person making them. The party
upon whom the interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen (15) days after service
thereof, unless the court, on motion and for good cause shown, extends or shortens the
time.

53 53 Interrogatories may be employed before taking another partys deposition to


establish routine facts and to enable the attorney effectively to plan his deposition
questioning or, after deposition, to inquire as to matters that were overlooked at the
taking of the deposition or to elicit further information.
54 54 The fact that a party has resorted to a particular method of discovery will not bar
the subsequent use of other discovery devices, as long as the party is not attempting to
circumvent a ruling of the court, or to harass or oppress the other party.
55

55 As a matter of practice, it will often be desirable to resort to both interrogatories


and depositions in one or the other sequence. As explained by our Supreme Court in the
Fortune Corporation case: As a matter of practice, it will often be desirable to resort to
both interrogatories and depositions in one or the other sequence. Additional lines of
inquiry may come to light after the deposition has been taken, as to which written
interrogatories probably would be adequate, and there is no reason why the examining

56 56 party should not be entitled to obtain all relevant information he desires if no


substantial prejudice is done to the party from whom discovery is sought. On the other

hand, interrogatories may well be used as a preliminary to the taking of depositions, in


order to ascertain what individuals have the information sought. And, of course, if the
answers to interrogatories are evasive or unsatisfactory, the interrogating party should
be able to utilize the more effective method of oral examination rather than have to
reframe interrogatories. Ordinarily, however, there will be no occasion for a party to use
both methods at the same time, at least to obtain the same information.

57 57 They are excellent for routine questions designed to elicit simple, uncomplicated
facts, for obtaining information needed in order to make later use of other discovery
procedures, for obtaining details about matters on which the pleadings are vague or
obscure, and for narrowing the issues by securing admissions from the adversary party.
58

58 Written interrogatories, if effectively employed, may accomplish the following


results in the adversary process: 1. Particularize vague and uncertain pleadings; 2.
Narrow issues for trial; 3. Determine facts usable as a basis for planning further
discovery;

59 59 4. Elicit information that may lead to the procurement of evidence; 5. Test the
merit of a claim or defense; 6. Harass the timid, exaggerating, or false claimant; 7.
Harass the blustering, arrogant, or defenseless tort-feasor;
60 60 8. Permit precise discovery where there exists the obstacle of foreign language,
speech impediment, or hearing impairment; 9 Augment or particularize insufficient oral
examination; 10. Pierce the veil of a corporate tort-feasor;
61

61 11. Elicit information by which to impeach the credibility of witness, on oral


discovery or at trial; 12. Support a motion for summary judgment; 13. Obtain valuable
admissions to be used as evidence at trial;

62

62 14. Obtain an occasional written statement or document for use at trial; 15.
Update discovery by use of successive interrogatories before trial, and even during
trial.

63 63 1. Practice Pointers (a)Each interrogatory should be a single direct question


phrased so as to inform the other party what is requested of him.
64 64 (b)Interrogatories are more useful than a request for admission if your
information is incomplete; that is, interrogatories are more useful for discovery
purposes.
65

65 2. Sanctions for failure of party to serve answers. If a party or an officer or


managing agent of a party fails to serve answers to interrogatories submitted under
Rule 25 after proper service of such interrogatories, the court, on motion and notice,
may strike out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against that party, and in
its discretion, order him to pay reasonable expenses incurred by the other, including
attorneys fees.

66 66 F. REQUEST FOR ADMISSION Another valuable discovery tool is provided by Rule


26, sections 1 and 2 of which read as follows:
67 67 Section 1. Request for admission. At any time after issues have been joined, a
party may file and serve upon any other party a written request for the admission by
the latter of the genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant matter of fact set
forth in the request. Copies of the documents shall be delivered with the request unless
copies have already been furnished.
68

68 Section 2. Implied admission. Each of the matters of which an admission is


requested shall be deemed admitted unless, within a period designated in the request,
which shall not be less than fifteen (15) days after service thereof, or within such further
time as the court may allow on motion, the party to whom the request is directed files
and serves upon the party requesting the admission a sworn statement either denying
specifically the matters of which an admission is requested or setting forth in detail the
reasons why he cannot truthfully either admit or deny those matters.

69 69 Objections to any request for admission shall be submitted to the court by the
party requested within the period for and prior to the filing of his sworn statement as
contemplated in the preceding paragraph and his compliance therewith shall be
deferred until such objections are resolved, which resolution shall be made as early as
practicable.
70

70 Requests for admissions are not a means of ascertaining the relevant facts of the
case; they are a means of ascertaining the opposing partys position with respect to
these facts.

71 71 Requests for admissions enable one party to request another to admit, for the
purpose of the pending action, the following: (a) the genuineness of any relevant
document described in and exhibited with the request, and (b) the truth of any relevant
matter of fact set forth in the request.
72 72 1. Tactical Advantages If the party to whom a request for admission is addressed
does nothing, his silence may amount to an admission.
73

73 Admissions secured in response to the formal request procedure are conclusive


as against the party making them, whereas admissions made in interrogatories or
depositions are merely evidentiary and can be contradicted at the trial.

74

74 2. Practice Pointers (a)Requests for admissions should be simple and direct, and
limited to singular, relevant facts.

75 75 The facts stated should be asserted in separately numbered paragraphs, each


dealing with a single fact.
76 76 (b)A party framing a request for admissions must bear in mind the proper scope
of inquiry.

77 77 Under Section 2 of Rule 26, the party on whom a request for admissions is
served may object to any such request within fifteen (15) days or such further time
allowed by the court.
78

78 The attorney should consider whether his request for admission, as drawn, is
objectionable for any of the following reasons: (i)The admission requested is privileged.
(ii)The request calls for an irrelevant admission. (iii)Under some exclusionary rule of
evidence, the admission would be inadmissible at trial.

79

79 (iv)The subject matter of the request is a disputed contention. (v)The request


attempts to cover the entire case. (vi)The answering party, because of insufficient
knowledge, is unable to determine the truth or falsity of the matter whose admission is
requested.

80 80 (vii)The admission requested is a matter of opinion or law rather than a


matter of fact.
81 81 (c)In drafting a request for admissions, the attorney should steer as far away as
possible from matters of law and opinion. The objective should be designed solely to
obtain an admission as to the truth of a stated fact.
82

82 (d)If you anticipate a dispute as to the propriety of a particular form of statement


of fact which is the subject of your request for admission, you may be able to
accomplish your purpose with another form of statement that would not be subject to
the objection.

83

83 (e)As to the form of the request for admission, some lawyers customarily phrase
the request in the form of questions: Do you admit that? The better practice,
however, is to phrase your request as follows:

84 84 You are requested to admit the truth of the following statements of fact,
pursuant to Rule 26, under the terms of which these matters will be deemed admitted if
you do not serve a response in accordance with that rule on or before 1. That 2.
That(reciting a single fact in each paragraph).
85 85 With respect to the individual statements, keep them as simple and precise as
possible. A complex statement including several different elements is likely to be false
because of only one of the several elements, furnishing an excuse for either a denial or
explanatory comment that weakens the effectiveness of the qualified admission.
86

86 3. Sanctions for refusal to admit If a party after being served with a request
under Rule 26 refuses to admit the genuineness of any document or the truth of any
matter of fact or serves a sworn denial thereof and if the party requesting the
admissions thereafter proves the genuineness of such document or the truth of any
such matter of fact, he may apply for an order requiring the other party to pay him the
reasonable expenses

87 87 in making such proof, including attorneys fees. Unless the court finds that there
were good reasons for the denial or that the admissions sought were of no substantial
importance, such order shall be issued.
88

88 G. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1 of Rule


27 provides as follows:

89

89 Section 1. Motion for production or inspection; order. Upon motion of any party
showing good cause therefor, the court in which an action is pending may (a) order any
party to produce and permit the inspection and copying or photographing, by or on
behalf of the moving party, of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, not privileged, which constitute or
contain evidence material to any matter

90 90 involved in the action and which are in his possession, custody or control; or (b)
order any party 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. The order shall specify
the time, place and manner of making the inspection and taking copies and
photographs, and may prescribe such terms and conditions as are just.
91

91 The producible items are described as any designated documents, papers,


books, accounts, letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the action and which
are in the possession, custody or control of the opposing party.

92

92 A motion to produce and allow inspection is generally used in conjunction with


other discovery methods. A motion to produce ordinarily follows up on information
initially developed through oral depositions or written interrogatories concerning the
existence of particular items or classes of items, from the inspection of which movants
counsel hopes to secure valuable evidence or leads.

93 93 Written interrogatories afford an appropriate and economical means of obtaining


the necessary information on which a later motion to produce can be based.
94 94 Counsel must use his imagination and submit interrogatories concerning all
possible items that the opposition can be required to produce. The questions can be
drafted in a general form, yet necessitate specific answers.
95

95 An example of such interrogatories is the following: State whether or not you,


your representative, agents, servants or employees have made any photographs of the
place where the collision occurred. If your answer is in the affirmative: (1) State where
and by whom the photographs were taken; (2) where said photographs are now located;
(3) where the negatives of such photographs are now located; and (4) whether or not
any of the said photographs are presently in the possession of your attorney.

96 96 A showing of good cause is a prerequisite for the grant of a motion for


production or inspection.

97 97 There must be both allegation and proof of facts and not mere conclusions as
to the existence of good cause.
98 98 The motion must allege facts and not mere conclusions as to why the requested
information is material to the issues involved in the litigation, or why it may be expected
to lead to the discovery of material evidence.
99

99 For general guidance, the following explanation in American Jurisprudence may


help a little:

100

100 Generally speaking, the good cause which must be shown for production of
material for inspection should be such as will satisfy an impartial tribunal that the
request may be granted without abuse of the inherent rights of the adversary, and
good cause appears without special factual proof where the information is relevant
under the pleadings, is normally unobtainable by other means, and in its nature is
within the opposite partys exclusive knowledge, or is present where

101 101 the information sought is within an adversarys exclusive knowledge, [and]
there is inequality of investigative opportunity These factors, standing alone or in
combination, will justify discovery if the other requirements of the rule have been met.
102

102 1. Practice Pointers (a)A motion for production and inspection must be used in
conjunction with other discovery methods.

103

103 (b)In the identification of the items sought, to avoid relevant material
escaping discovery, you should describe the material that you want in both specific and
general terms.

104 104 (c)For the form of the motion, the following official form suggested for use by
the Federal Rules of Civil Procedure may serve as a good starting point model in drafting
a motion to produce:
105 105 MOTION FOR PRODUCTION OF DOCUMENTS, ETC., UNDER RULE 27 Plaintiff
A.B. moves the court for an order requiring defendant C.D. 1. To produce and to permit
plaintiff to inspect and to copy each of the following documents: ( Here list the
documents and describe each of them.)
106

106 2. To produce and permit plaintiff to inspect and to photograph each of the
following objects: ( Here list the object and describe each of them.) 3.To permit plaintiff
to enter ( here describe property to be entered ) and to inspect and to photograph
( here describe the portion of the real property and the objects to be inspected and
photographed ).

107 107 Defendant C.D. has the possession, custody, or control of each of the
foregoing documents and objects and of the above mentioned real estate. Each of them
constitutes or contains evidence relevant and material to a matter involved in this
action, as is more fully shown in Exhibit A hereto attached. Signed: ____________________
Counsel for Plaintiff Address:

108 108 2. Sanctions for refusing production or inspection The court may make such
orders in regard to the refusal as are just, and among others the following: (a)An order
that the character or description of the thing or land, or the contents of the paper, or
any other designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;
109

109 (b)An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence
designated documents or things or items of testimony;

110

110 (c)An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceedings or any
part thereof, or rendering judgment by default against the disobedient party;

111 111 (d)In lieu of the foregoing orders or in addition thereto, an order directing the
arrest of any party or agent of a party for disobeying the order.
112 112 H.PHYSICAL AND MENTAL EXAMINATION OF PERSONS Sections 1 and 2 of the
said rule provide as follows: Section 1. W hen examination may be ordered. In an
action in which the mental or physical condition of a party is in controversy, the court in
which the action is pending may in its discretion order him to submit to a physical or
mental examination by a physician.
113

113 Section 2. Order for examination. The order for examination may be made
only on motion for good cause shown and upon notice to the party to be examined and
to all other parties, and shall specify the time, place, manner, conditions and scope of
the examination and the person or persons by whom it is to be made.

114 114 Note that there are two requirements which must be met before an order for
the physical or mental examination of the opposing party may be issued, to wit: (a) the
physical or mental condition of the party must first be shown to be in controversy, and
(b) the party moving for examination must show good cause.
115 115 Rule 28s good cause requirement is not a mere formality but is a plainly
expressed limitation on the use of the rule as in the case of a motion for production or
inspection. The requirement, in the words of the U.S. Supreme Court, is not met by
mere conclusionary allegations of the pleadings nor by mere relevance to the case
but require an affirmative showing by the movant that each condition as to which the
examination is sought is really and genuinely in controversy and that good cause exists
for ordering each particular examination.
116

116 1. Practice Pointers (a)A motion for physical or mental examination may not
be necessary in most cases. The most common method of obtaining an examination of
a party is through an agreement between counsel.

117 117 (b)If you are counsel for the defendant where the mental or physical condition
of the plaintiff is in issue, should you demand an examination of the plaintiff? Yes, if the
plaintiff is apparently malingering and his doctor is fooled, or is deliberately winking at
the situation, or is notoriously generous in his estimates of injury and disability.

118 118 On the other hand, if it appears to you that the plaintiff is entirely honest and
that his doctor is competent and reliable, there is little to be gained by another
examination that is likely to confirm the plaintiffs claims.
119

119 (c)As a practical matter, if you are the defendants lawyer, before resorting to
Rule 28, you should consider making a written request for the examination by letter
addressed to the plaintiff through his lawyer, explaining the terms of your request,
naming more than one physician satisfactory to you, giving the plaintiff an option, and
indicating that you will be willing to have the judge appoint a doctor to make the
examination if the plaintiff is not willing to go to any of the doctors whom you named.

120 120 (d)The motion under Rule 28 should satisfy the requirements of good cause
and condition in controversy prescribed by Section 1 thereof. Specific facts, and not
mere conclusions, must be alleged from which the court can determine the existence of
these requirements.
121 121 The following is a suggested model for a motion under Rule 28: 8.14 Form
Motion for Physical or Mental Examination of Party ______________ [Name], defendant
herein, files this motion under Rule 28 of the Rules of Court for a ________________
[physical or mental or physical and mental] examination of plaintiff, as is more
specifically set forth herein, and for his showing of good cause alleges as follows:
122

122 I. This is an action by plaintiff against the defendant for personal injuries
alleged to have been sustained by plaintiff as a proximate result of alleged negligence
on the part of the defendant. The injuries claimed by plaintiff include the following:
_____________ [specify physical injuries, or mental disease, or both as alleged by plaintiff
in his petition]. Defendant has reason to believe, and does believe, that plaintiffs claim
of severe personal injuries, as above described, is grossly exaggerated, and that
plaintiffs injuries, if any, are very slight and not disabling, as he contends. Plaintiffs
______________ [physical condition or mental condition or physical and mental condition]
______ [is or are] in controversy within the meaning of Rule 28.

123 123 II. In order for defendant to ascertain the true nature and extent of plaintiffs
injuries, if any, and to prepare for trial on the issue of damages, it is necessary that
defendant have plaintiff examined by ___________ [designate the type or types of
medical practitioner, whether general practitioner or one or more types of specialists].
There is no other means by which or source from which defendant can ascertain the
truth regarding plaintiffs condition. Good cause therefore exists for the granting of
defendants present motion.
124

124 III. Defendant has previously requested plaintiffs attorney to produce plaintiff
for a __________ [specify type] examination by ___________ [a doctor or doctors] of
defendants choice; however, plaintiffs attorney has rejected defendants request and
has refused to have such an examination made by mutual agreement and arrangement.
It is therefore necessary for this court to order plaintiff to submit to an examination and
to appoint ______________ [a doctor or doctors] to perform the same.

125 125 IV. Defendant requests that the court appoint the following ____________
[doctor or doctors] to make said examination, or that the court appoint ____________ [a
doctor or doctors] of its own selection: ______________ [ state names or names and

address or addresses of doctor or doctors nominated by defendant, together with the


specialty, if any, that each practices ]. Defendant alleges that the said ____________
[doctor or doctors] ___________ [is or are] qualified, experienced and competent, and, as
defendant verily believes, will make an impartial and accurate examination and
diagnosis of plaintiffs condition.

126 126 Defendant prays that this motion be set by the court for hearing, and that on
such hearing this court select _________ [a physician or physicians] to make a thorough
and impartial examination of the plaintiff; and that in its order to be entered hereon this
court designate the time, place, manner and conditions, and the scope of the
examination to be made, and the ___________ [person or persons] by whom it is to be
made. [Signature and address of defendants attorney]
127

127 2. Sanctions for refusal to submit to a Physical or Mental Examination Under


Rule 29, if any party or an officer or managing agent of a party refuses to obey an order
made under Rule 28 requiring him to submit to a physical or mental examination, the
court may make such orders in regard to the refusal as are just, and among others the
following:

128 128 (a)An order that the physical or mental condition of the party or any other
designated facts shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
129 129 (b)An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing evidence of physical
or mental condition; and
130

130 (c)An order striking out pleadings or parts thereof or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient party.

131 131 I.CONCLUSION For the most effective use of the modes of discovery, an
evaluation of the salient features of the various discovery devices suggests the
following order or sequence in the discovery process:
132 132 (a) The discovery process should be commenced by written interrogatories to
parties under Rule 25 to obtain the names and addresses of potential witnesses known
to the other party, ascertain or verify the existence of documentary evidence suspected
or known to be in his possession, obtain details about matters on which the pleadings
are vague or obscure, and to obtain other relevant information which may lead to
discovery of admissible evidence.
133

133 (b)Written interrogatories should be followed by deposition of the party and


other important witnesses on oral examination.

134

134 (c)If because of financial or time constraints the counsel has to choose
between written interrogatories to a party and an oral deposition, the advice of experts
is that when a thorough-going examination of an adverse party is desired before trial,
his deposition should be taken upon oral examination.

135 135 (d)With respect to documentary evidence in the possession or control of the
opposing party disclosed by the response to the written interrogatories or the
depositions, counsel can then file a motion for the production and inspection of the
documents under Rule 27.
136

136 (e)Once the information is complete and the facts have been fully revealed,
counsel can then serve upon the opposing party a request for admission under Rule 26.
A request for admission, as already noted, is not a means of ascertaining the relevant
facts of the case; it is a means of ascertaining the opposing partys position with respect
to the facts.

137

EFFECTIVE USE OF MODES OF DISCOVERY By: Atty. Rogelio A. Vinluan