Depositions Under Rule 23

General Uses
o Intended as a means to compel disclosure of facts resting in the
knowledge of a party or other person, which are relevenat in a
suit of proceeding.
o Dual Functions:
Method of Discovery
Method of presenting testimony in lieu of oral open court
testimony
o General Rule: Depositions are not generally meant to be a
substitute for the actual testimony in open court of a party or
witness. (Dasmarinas Garments v Reyes G.R. No. 108229).
Where a witness is available to testify and the situation is not
one of those excepted under Sec. 4 of Rule 23, the deposition
taken is inadmissible (Vda. De Sy-Quia v CA)
Objection to Admissibility. Any deposition offered to
prove the facts therein set out during a trial or hearing, in
lieu of the actual oral testimony of the deponent in open
court, may be opposed and excluded on the ground that it
is hearsay; the party against whom it is offered has no
opportunity to cross-examine the deponent at the time
that his testimony is offered.
Even if the opportunity for cross-examination was
afforded during the taking of the deposition, the
opportunity for cross-examination must be accorded a
party at the time that the testimonial evidence is actually
presented against him during the trial or hearing.
o Exceptions: Section 4
The use of depositions depends on whether deponent is a
party or not.
1. For the contradicting or impeaching the testimony of the
former deponent, now testifying as a witness.
Only used to contradict, not as proof of specific
acts
Cannot be used for this person if deponent does
not testify
2. For any purpose, if the deponent was an adverse party
May be used as an admission
Cannot, however, be used in a trial of a case
against a defendant who was not a party to the
action when the deposition was taken
3. Deposition of a witness of party may be used under the
following the following circumstances
a. Witness-deponent is dead there must be proof or
presumption of death, and proof that the deposition
was lawfully taken

b. Witness resides more than 100km from the place of

trial or hearing, or is out of the country unless
absence was procured by the by the proponent of
the deposition
c. Disability of a witness due to age, sickness,
infirmity, or imprisonment proven by certificate of
attending physician
The medical certificate has to be specific
because in the case of Pajarillaga v CA (G.R. No.
163515) the medical certificate submitted
merely contained a remark that the "patient is
advised to avoid strenuous activity" The SC
remarked that this claim of illness is not
believable.
d. Inability to procure attendance of witness by
subpoena
e. Exceptional circumstances
When Taken (Section 1)
o With leave of court
After jurisdiction over any defendant or over the property
subject of the action, BUT
Before an answer has been served.
o Without leave of court after an answer has been served.
o Depositions maybe taken at anytime after the institution of any
action, whenever necessary or convenient. (Dasmarias
Garments, Inc. v. Reyes)
Before Whom Taken (Section 10)
o If within the Philippines
Judge
Notary Public
If the parties stipulate in writing, any person authorized to
administer oaths. (Section 14)
Except (Section 13)
A relative by affinity or consanguinity within the 6th
degree of any party
An employee or counsel of any of the parties
A relative within the same degree or employee of
such counsel
Any person financially interested in the action
Scope of Examination (Section 2)
o Deponent may be examined as to any matter
Not privileged
Relevant to the subject of the pending action
Under such limitations as the court may order under
Section 16 (Orders for protection of parties and
deponents) and Section 18 (Orders to terminate or limit
examination)
Order for protection of parties and deponents

Termination of taking of deposition or limitation of

scope
1. A motion or petition for termination or limit
examination is filed by any party or of the
deponent
2. Filed in the court where the action if pending OR
the RTC of the place where the deposition is
taken
At any time during the taking of the deposition
GROUNDS: That the deposition is being
conducted:
o In bad faith
o In such a manner as unreasonably to
annoy, embarrass, or oppress the
deponent or part
If the order made terminates the examination, it
shall be resumed 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. These may relate to:
i. Any claim or defense of any other party
ii. The existence, description, nature, custody,
condition, and location of books, documents,
and other tangible things
iii. The identity or location of persons having
knowledge of relevant facts

HOW:
1. 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. (Section 15)
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.
2. After the notice is served, the court may make an order of
protection of the parties or the deponents. (Section 16)

3.
4.

5.

6.

7.

This must be 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 the
following orders:
i. That the deposition shall not be taken
ii. that it may be taken only at some designated
place other than that stated in the notice
iii. that it may be taken only on written
interrogatories
iv. that certain matters shall not be inquired into
v. that the scope of the examination shall be held
with no one present except the parties to the
action and their officers or counsel
vi. that after being sealed the deposition shall be
opened only by order of the court
vii. that secret processes, developments, or
research need not be disclosed
viii. that the parties shall simultaneously file
specified documents or information enclosed in
sealed envelopes to be opened as directed by
the court
ix. any other order which justice requires to protect
the party or witness from annoyance,
embarrassment, or oppression. (Section 16)
The attendance of the witnesses may compelled by
subpoena (Section 1)
The deponent may be examined following the procedures for
witnesses in a trial. And may be asked questions on direct,
cross, re-direct, or re-cross. Deponent also has the same
rights as a witness and may be impeached like a witness.
(Section 3; Rule 132 Sections 2-18)
The officer before whom the deposition is to be taken shall
put the witness under oath and shall personally, OR by
someone acting under his direction and in his presence,
record the testimony of the witness. (Section 17)
The testimony shall be taken stenographically unless
the parties agree otherwise.
The parties served with notice of taking a deposition
will transmit written interrogatories to the officers, who
shall propound them to the witness and record the
answers verbatim.
The officer before whom the deposition is being taken has no
authority to rule on objections interposed during the course
of the deposition but he shall note any objections in the
deposition. Any evidence that is objected to shall be taken
subject to the objection. (Section 17)
The deposition has to be sealed, examined and signed by the
deponent, and also certified, sealed and signed by the
deposition officer.

A deponents signature to the deposition is not in all

events indispensable since the presence of signature
goes primarily to the form of 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.
(Phil cases cites the following US cases Will Docter
Meat Co. v. Hotel Kingsway, 232 S. W. 2d 821; Ikerd v.
Lapworth, 435 F., 2d 197; Smith v. Henwood, 349 Mo.
396, 161 S. W.2d 232; Hoyberg v. Henshe, 153 Mo. 63,
55 S.W. 83)
8. Tape recorders and a video camera may be utilized to record
the proceedings. (Ayala Land v Tagle)
It has been repeatedly held that deposition discovery rules
are to be accorded a broad and liberal treatment and should
not be unduly restricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is
made in good faith and within the bounds of law. (San Luis v
Rojas G.R. No. 159127)
Effect of Using a Deposition (Section 8)
o If a party offers the deposition in evidence, it binds him and he is
deemed to have made the deponent his witness.
o Except if the deposition is that of the opposing party or it is used
to impeach a witness.
o The admissibility of the deposition does not preclude the
determination of its probative value at the appropriate time
(Ayala Land v Tagle)
Effect of Errors and Irregularities in Deposition (Section 29)
o As to notice - waived unless written objection is promptly served
upon the party giving the notice.
o As to disqualification of officer - 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
o As to competency or relevancy of evidence - not waived by
failure to make them before or during the taking of the
deposition, unless the ground, of the objection is one that might
have been obviated or removed if presented at that time.
o As to oral examination and other particulars (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) waived unless reasonable objection
thereto is made at the taking of the deposition.
o 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) 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.
EXAMPLES
1. AYALA LAND, INC. v TAGLE G.R. No. 153667 August 11, 2005
Plaintiff filed a Motion for Leave to take testimony by deposition upon
oral examination of Emerito Ramos, Sr., citing Section 4(c), Rule 24 of
the Revised Rules of Court stating that Emerito Ramos, Sr. was already
87 years old and although he was of sound mind there is always the
possibility that he may not be able to testify on plaintiffs behalf in the
course of the trial on the merits.
This was allowed because of his advance age but the deposition was
taken in the presence of the Clerk of Court at the RTC.
2. REPUBLIC v SANDIGANBAYAN G.R. No. 152375 December 16, 2011
Sandiganbayan granted the request for the taking of the deposition of
Maurice V. Bane. In October 1996, during the deposition-taking,
Maurice V. Bane was already 72 years old and residing in England.
Clearly, under Section 4(c)(2) of Rule 23, the deposition of Maurice V.
Bane can be used as direct evidence.
The SC looks at the value of the deposition to the case when it holds
that the deposition reveals that it is a critical and vital evidence in the
case of petitioner against private respondents.
3. GO v PEOPLE G.R. No. 185527 July 18, 2012
This is a Criminal Case where the SC admonished the prosecution for
failing to act with zeal and foresight in having his deposition or
testimony taken when the witness old age and fragile constitution
should have been unmistakably apparent
This applies Rule 119 which is deposition for criminal Cases.