Rule 23Note: Please review in the recording the words in red.
Thank you. Goodluck!JS: discovery. Because if we were looking at
the expiration of the finale. This is actually one which will
assess in the trial of the case. In fact, this mode of discovery
will actually help facilitate the case. in actual application of
the case, when the court issues a summon, we are supposed to issue
also a model (1:11) in acquiring from the parties, specifically the
plaintiff, of the modes of discovery. And you notice that this is
justified because one of the sections will talk about an instance
whether, like a deposition, requires leave of court or without
leave of court (1:40) that order is justified. If in case there is
an order issued by the court inquiring from the parties whether
they would like to avail of any of the modes of discovery and no
response was submitted by either parties, one of the effects there
either in Rule 29, the other party is not allowed to present the
other party as an adverse witness. That is one. There are times
when you can present the other parties as hostile or adverse
witness. That is one of the consequences if the court issues an
order to the parties inquiring if they would like to avail of the
odes of discovery but they choose not to respond to it. So while
trial is going on, if the other party feels that they have to
present the other party as hostile or adverse witness, they could
not do so because of failure to respond to the court for them to
avail of the rule of discovery. One of the consequences of Rule 29.
But in reality, this is rarely used by lawyers, except in Rule 23,
deposition. That is the most common, particularly when the witness
is sick, infirmed, disabled, and cannot hear a word, your witness
is living outside the Philippines and you do not know when he will
return and his testimony is dispensable or the instances where the
witness resides in more than 100 kilometers from the place of the
court where the trial is supposed to be dealt. More often than not,
in reality, you can avail of the first mode of discovery which is
deposition pending action. (Jalucilha called)JS: Can you explain
what are these modes of discovery?J: The different modes of
discovery are deposition before a trialJS: Is it deposition before
trial or pending action? There is a great difference to using the
words before trial and pending action. Next, under rule 24?J:
deposition before action or pending appeal. JS: Next?J: Preempt
derogatoris (05:49) or admission by adverse parties.JS: next. J:
Production or inspection of documents.JS: Usually there are
instances when a lawyer would not actually present all his
evidences. The test there is to file a motion for production of
these documents para you would know what these documents are. For
example, you are for the defendant, and you would like to protect
the interest of your client because some of these documents are
actually withheld by the other party, you would do so. And the
last? This one is not so common.J: Physical and mental examination
of a witness. JS: The most difficult part of these rules is rule
23, deposition pending action. The other name for that is what?
Deposition viten est (7:37). Take note of that. Okay. And this one
is used for a pending action. And if you are to make comparison of
this to rule 24, deposition before action or pending appeal, where
has the deposition are being distributed (08:06) in rule 23 and
rule 24? J: In a deposition for payment or for use of payment
(08:24)JS: Yeah, this is to perpetuate the testimony of the witness
for use for future. It will be the proceedings. As we sought before
the case is filed in court or on appeal. And if rule 23 is
deposition ******* (8:55), rule 24 is ?J: ------JS: okay, the 23
applies to deposition pending action while 24, this refers to
deposition wherein one perpetuate the testimony of a client for use
for future proceedings as when you want the sala match them later
(9:38), or for purposes of appeal. Thats why its called rain in
making (9:47).Now, we got o rule 23. If you want to avail of
deposition pending action under rule 23, is there a need for leave
of court (10:20)? J: There is a JS: I repeat. If you want to avail
of a deposition of a witness and there is a pending case, will you
have to file a motion in court to allow the taking of a testimony
of a witness by way of deposition?J: It depends.JS: What it
depends? J: It is necessary for service of answer, before the
service of answer JS: So leave of court, if this is made before
service of answer was served by the defendant to the plaintiff, and
therefore?J: It is necessary if JS: Again, making it simpler ,
according to rule 23, leave of court is given (11:47), if you want
to make a deposition of a witness before service of the answer by
the defendant. Which means to say, if service of the answer of the
defendant is already made, then the making of the deposition of the
witness is without merit. Is that what you mean?J: Yes sir.JS:
Correct. Okay. So it is now clear already. So leave of court is
given if answer has been served but leave of court is needed before
a service of an answer but after the court acquires jurisdiction
over the person. I repeat. Leave of court is not required after an
answer has been served, so that if an answer has been served
already , if not yet served then leave of court is necessary. What
is the rationale behind this so? Why is it leave of court is not
required if answer is already served while leave of court is
required if the answer is not yet served by defendant to the
plaintiff as long as the court will acquire jurisdiction of the
defendant? Do you know the rationale why is this so?J: Plaintiff
must avail during the issuesJS: Did we give a rationale why is this
so? If the leave of court is required if no service of answer but
not required if answer was already served?J: issuesJS: Would t mean
that the rationale why is it that there has to be leave of court
the fact that the defendant did not file his answer yet?J: Yes. It
is the service of the answer which is JS: I repeat. How come that
the rationale [we could not leave this], what is the reason why is
it that leave of court is not required after an answer has been
served but required if the answer is not yet served as long as the
court has already acquired jurisdiction over the person of the
defendant? So meaning to say there must be a motion, did the author
give you the rationale why is that so?J: I did not JS: I will not
give you an explanation so sorry to tell if I had to tell you to
read ore reano more than regalado. Dapat pa la you more have to
read regalado more than reano. Okay. So we will deal on that
tomorrow.Now, what about if the deposition is for a reasoning? What
is it?J: If to file JS: If you want to take the deposition of a
prisoner, what does it mean?J: It would mean that plaintiff is in
prison. (16:41)JS: what is the reason also why is it that making of
a deposition of a prisoner is with limit? J: It refer on the
courtsJS: In connection yan with our discussion with *****
(17:02)[Kims voice: acquired jurisdiction]JS: If one is judged by
an offence punishable by death, reclusion perpetua , reclusion ,
life imprisonment, and is a detention prisioner, it cannot be
removed unless there is an order by the Supreme Court. Did we take
that up yesterday? Parang I did not noh? That is very important
because that is the reason why is it there has to be leave of court
because a witness cannot just testify and obey at the witness stand
unless it is authorized by the court and the court is authorized by
the supreme court. And that is another justification for one, not
obey a subpoena, one, if he resides more than 100 kilometers from
the court when the trial is supposed to be dealt, and in cases of
detention prisoner because a detention prisoner cannot be brought
out to testify in court if the same is authorized by the supreme
court. That is the reason why is it that there has always to be a
reason for leave of court if you want to take the deposition of a
prisoner. Very clear in one of the sections of this particular
rule. So we are now clear. Now, before whom should a deposition be
made?J: If a deposition is JS: You have to make a qualification
whether a deposition will be taken in the Philippines or the
deposition is supposed to be taken outside of the Philippines. So
if the deposition is supposed to be taken outside or even in the
Philippines, then before whom should it be made?J: It can be made
before judge.JS: Yeah, although it is not required to be made
before a judge but nevertheless, it can be made before a judge.
Second? J: Notary public.JS: Notary public.J: Any person.JS: Any
person who is authorized to administer oath. But there is a
qualification there. What is the qualification?J: Stipulated by the
parties.JS: Yeah, as long as the same is actually stipulated by the
parties. And these taking of deposition is outside of the
Philippines, it can be made before?J: Secretary of the embassy,
general or consul, any person authorized JS: legation, consul,
general, vice consul, consular agent of the republic of the
Philippines, any person authorized by Commission or letter rogatori
(21:12), any person authorized to administer oath as long as
stipulation of the parties in writing. Okay, last question. What is
a commission and what is letter rogatori? J: Comission is for
administration of court of justice or other similar taking of
deposition. Letters of rogatori are instrument sent in the name of
the judge or court to another requesting the judge of the latter to
be examined upon interpose (22:36) JS: The most important is letter
rogatori and what is important is that you know how to make this.
This is supposed to be part of your legal forms or legal writing
and conveyancing. And that is the difference between a commission
and letter rogatori. And if a person is given a commission or
letter rogatori then the taking of the deposition of a witness
outside of the Philippines can be made before it. Little similarity
of in and outside of the Philippine, we put emphasis, if we refer
to the third person make authorized to administer oath there is
necessity , that it must always be stipulated in writing by the
parties whether it be in the Philippines or outside the
Philippines. We are clear on that point now. So, one by one. We
take note of the difference between rule 23 and rule 24. We took
note, in reference to rule 23, leave of court is required. And
third, before oath to a judge and whether it is to be taken outside
or in the Philippines. (Villalon called)JS: what is the form when
there is a making of a deposition?V: It can be written or oral.JS:
Correct. It can be upon oral examination or it can be in writing in
the form of questions and answers. But most often than not, in
reality, we resort to oral examination because it is as if you are
just presenting a witness while a witness while away is testifying
in court. That is usually what happens. It is not before a judge,
it can be before a judge or it can be of any person enumerated by
the law. But in connection with either oral or written examination
in the form of questions and answers, particularly upon oral
examination, dapat how is this supposed to be done before an oral
examination of a deposition is supposed to be made?V: There is a
reasonable notice in writing of the parties before the action.JS:
and what is the purpose of that? There must be a notice to be sent
to every party in the action and what should be the content of
that? Parang subpoena ano. V: Name and time.JS: yeah, stating the
name and time of deposition is supposed to be made. And after, lets
say, the notice is served, will the court issue an approval?V: Yes
sir, upon motion of the defendant (27:06) JS: yes, and that would
be for the protection of the parties and the proponents. It always
goes along with the order issued by the court after notice was
already served and a copy for every party of the action, the court
will make an order for the protection of the parties and of the
proponents. Because actually, in reality, para talagang you are
presenting a witness before that particular person to whom the
deposition is made. Therefore, there must be notice because the
other party must be present because they will also conduct their
own cross examination. If not, according to law, if the witness
refuses, what will the court do?V: sign the .JS: The court will
issue a subpoena to compel attendance of these particular
witnesses. Okay, the oral examination was already being made on the
time and place stipulated in the notice. While the deposition of
the witnesses is being undertaken, particularly on direct
examination, the other party objected to such questions, can the
person to whom the deposition can take rule (29:03). V: No sir.JS:
Take note of that when you become lawyers, the person to whom
deposition is being taken is not allowed to rule on whatever
objections raised by the other party. That will just be second to
rule out by the court during trial of the case. So the entirety of
the deposition must be presented in court. You are not allowed to
rule on any objection. So it is free flowing testimony on direct
examination and in cross examination, redirect and be crossed if
that is done by way of an oral examination. What about if this is a
deposition in writing made in questions and answers form, what
should be the rule? V: The party proposing the inquisition shall
serve notice to the party who will answer stating the name and
addresses of the parties.JS: is it necessary that the other party
is given notice in advance a copy of the deposition in the form of
question and answer? Is that necessary? Because earlier, what we
were discussing was oral examination. We should now to what we call
as written because that can be another rule. He is correct. There
must also be a notice stating the time and the place where the
deposition is to be made. My question is, must be the other parties
be given a copy of that particular deposition in the form in
writing in question and answer form. Parang you are making actually
a judicial affidavit. V: yes sirJS: Yes. Because he has also make a
written cross examination based on the answers in the written
deposition. So that is necessary. He must be served for him to be
also be prepared in writing his cross-examination. After all of
this deposition is completed, can this used? To whom can this be
used? V: any party present in the making of deposition and the
parties to be notified in the making of the depositionJS: or, the
one who was given notice of the deposition. It can be used against
any parties who was present or represented in the making of the
deposition, against one who had due notice of the deposition. And
one last question, deposition can be used in the following
instances, memorize that. V: if they are reaching (33:54) for a
proponent as a witness. JS: Correct. No. 2? V: for any purpose of
the adverse party, if the proponent is a defendant.JS: Correct.V:
for any purpose, if the court finds the following: first, the
witness is dead, two, if its exercised beyond the regular place of
the trial, no.3 if the witness is unable to testify due to
sickness, intermitage or represented (33:39), no. 4 the person
proposing the deposition was not able to secure the attendance of
witness by subpoena. No. 5, other exceptional circumstances of the
witnesses. JS: Thank you. Earlier, as you were listening to the
answer Ms. Capoquian of Mr. Villalon when I asked him whether the
written in derogatoris, this is simply(cellphone rings)JS: if you
dont mind the cellphone. In my court, 1 ring is 200 pesos. But I
will not impose it as it is not sanctioned at all. OkayThe other
party must be given a copy of written in derogatori. Actually para
lang syang sworn statement in the form of question. Para lang syang
actually a judicial affidavit, question-answer. That is what we
mean by written in derogatori. As we have been told earlier, there
must be a service attached to the other party because it has to
submit also cross in derogatoris. Within how many days?C: 10
daysJS: 10 days from receipt of the written in derogatori. Tapos
upon receipt of the cross in derogatoris, the other party who
submitted written in derogatori is given how many days? C: 5
daysJS: which to?C: to file a re JS: so para talagang representing
a witness. Re? redirect? Derogatoris, how many again? 5? And the
other party again upon receipt of the redirect has also 3 days
within which to submit recross in derogatoris. Kasi, when you
present a witness, you conduct a direct examination. The other
counsel will conduct a cross examination. Now the cross examination
in the court will ask any direct examination? now of there us a
direct examination, definitely there has to be a recross
examination. At the end of the day, you can now picture that para
ding you are actually presenting a witness in court. Can this
deposition be made by a way of an excuse for a witness to testify?
Can a deposition be made as an excuse ba to present a witness? Its
not in the book of reanoC: the deposition can be used at trial JS:
some would say that I will file a motion for a deposition of a
witness because my witness does not want to appear in court. Is
that valid?C: No sir.JS: No. at the outset of the making of a
deposition, should not be guarded as an excuse for a witness to
testify in court. Because at the end of the day, the preferred mode
is still for a witness to testify in court. Precisely, as mentioned
by Mr. Villalon Riel who memorized all the provisions. There may
only be instances where this may be resorted to, the witness is
dead, the witness is a firm, is sick, the witness is might be
living outside of the Philippines because these are actually
exception circumstances. So it is not a resort to a witness who
doesnt want to testify in court. Because the preferred mode
actually is for the witness to testify in court. Why? Because under
the rules of evidence. The judge has to observe the gesture, the
demeanor of a witness, and the trial court is at the best position
to actually observe the gesture, the demeanor of a person who is
actually testifying in court. We have this because there are
instances where the witnesses cannot appear in court, the court
allows the taking of a deposition upon written or oral examination
or upon written in derogatoris.#
