Beruflich Dokumente
Kultur Dokumente
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
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
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.
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.
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
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
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
26 condition, and location of any books, documents, or other tangible things and
the identity and location of persons having knowledge of relevant facts.
party has great flexibility and can frame his questions on the basis of answers to
previous questions.
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
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
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
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
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
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
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.
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
74
74 2. Practice Pointers (a)Requests for admissions should be simple and direct, and
limited to singular, relevant facts.
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
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
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
92
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
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
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
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
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