MODES OF DISCOVERY Purpose of the modes of The application of the rules on

Prior to the discovery procedures discovery modes of discovery rests upon the
provided under the Rules, a party The purpose of discovery sound discretion of the court.
would learn about the opponent’s procedures is to permit mutual
evidence only during trial proper. knowledge before trial of all It is the duty of the courts to
relevant facts gathered by both examine thoroughly the
Definition of Discovery parties so that either party may circumstances of each case and to
Discovery is a device employed compel the other to disgorge determine the applicability of the
by a party to obtain information facts whatever he has in his modes of discovery, bearing
about relevant matters on the possession. always in mind the aim to attain
case from the adverse party, in an expeditious administration of
preparation for the trial. Nature of Application of the justice.
Rules on Modes of Discovery

Modes of Discovery Application

RULE 23, Sec. 1 During the pendency of an action, the testimony of any person, whether a party
Deposition pending or not, may be taken by deposition upon oral examination or written
action interrogatories. (Rule 23, Sec. 1)
RULE 24, Sec. 1 A person who desires to perpetuate(continue) his own testimony or that of another
Deposition before person regarding any matter that may be cognizable in any court of the Philippines,
action may file a verified petition in the court of the place of the residence of any
expected adverse party. (Rule 24, Sec. 1)
RULE 24, Sec. 7 If an appeal has been taken from a judgment of a court, including the Court of
Deposition pending Appeals in proper cases, or before taking of an appeal if the time therefor has not
appeal expired, the court in which the judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their testimony for use in the event of further
proceedings in the said court. (Rule 24, Sec. 7)
RULE 25, Sec. 1 Any party desiring to elicit material and relevant facts from any adverse party shall
Interrogatories to file and serve upon the latter written interrogatories. (Rule 25, Sec. 1)
parties
(Interrogatories are written questions sent by one party to another as part of discovery)
RULE 26, Sec. 1 At any time after issues have been joined, a party may file and serve upon any
Admission by adverse other party a written request for the admission by the latter of:
party (a) the genuineness of any material and relevant document; or
(b) of the truth of any material and relevant matter of fact set forth in the request.
(Rule 26, Sec. 1)
RULE 27, Sec. 1 Upon motion of any party showing good cause therefor, the court in which an
Production or action is pending may order any party to:
inspection of (a) Produce and permit the inspection and copying of any designated documents;
documents or things or
(b) Permit entry upon designated land or other property in his possession or
control for the purpose of inspecting or photographing the property or any
designated relevant object or operation thereon. Rule 27, Sec. 1)
RULE 28, Sec. 1 In an action in which the mental or physical condition of a party is in
Physical and mental controversy, the court in which the action is pending may in its discretion order
examination of persons. him or her to submit to a physical or mental examination by a physician. (Rule 28.
Sec. 1)
DEPOSITIONS PENDING ACTION It is addressed to a judicial officer diligence might have been,
UNDER RULE 23 of a foreign country who will ascertained. (Rule 23, Sec. 29)
direct the taking of the
GENERAL PROVISION deposition. Disqualification by interest
Commencement No deposition be taken before a
Initiated thru notice The procedure applicable will person who is:
that be of the foreign court. (a)Relative w/in the sixth degree
At whose Instance may be taken of consanguinity or affinity;
Any party upon ex parte motion It is allowed if commission was (b)Employee or counsel of any of
(Sec. 1) Disallowed by the foreign the parties;
country. (c) Relative within the same
Whose testimony may be taken degree of such employee or
Any person, whether a party or not Leave of court is necessary. counsel;
(Sec. 1) (d)Who is financially interested in
How the action. (Rule 23, Sec. 13)
When By deposition upon oral
Before summons has been served examination or written DEPOSITION UPON ORAL
- with leave of court interrogatories. EXAMINATION
The party desiring to take the
After answer has been served - Objections to admissibility of a deposition of any party shall give
without leave of court (Sec. 1) deposition reasonable notice in writing to every
Subject to the provisions regarding other party to the action.
Against whom the effect of errors and irregularities
Any party who was present or in depositions (Rule 23, Sec. 6) The notice shall state the time and
represented at the taking of the place for taking the deposition and
deposition or who had due notice Effects of FAILURE TO OBJECT the name and address of each
thereof (Sec. 4) Before whom to Errors and Irregularities in person to be examined, if known.
Depositions (Rule 23, Sec. 29) If the name is not known, a
In the Philippines general description sufficient to
• Judge (1) As to notice identify him or her or the particular
• Notary public Waived unless written objection class or group to which he or she
• Any person authorized to is promptly served upon the party belongs.
administer oath as agreed by the giving the notice.
parties (Sec. 10) On motion of any party upon
(2) As to disqualification of whom the notice is served, the
Letter commission officer before whom deposition is court may, for cause show,
An instrument issued by a court taken enlarge or shorten the time (Rule
of justice, or other competent Waived unless made before the 23, Sec. 15).
tribunal to authorize a person to taking of the deposition begins or
take depositions, or do any other as soon thereafter as the DEPOSITION UPON WRITTEN
act by authority of such court or disqualification becomes known INTERROGATORIES (Rule 23,
tribunal. or could be discovered with Sec. 25)
reasonable diligence. (1)The party desiring to take the
Addressed to a non-judicial deposition of any person shall
foreign officer who will take the (3) As to competency or serve written interrogatories
deposition. relevancy of evidence upon every other party with a
Not waived by failure to make notice.
The procedures/rules which are them before or during the taking
applicable are those of the of the deposition, unless the (2)The notice shall state the name
requesting court. ground of the objection is one and address of the person who is
which might have been obviated to answer the written
It is allowed if the permission or removed if presented at that interrogatories and the name or
of the foreign country is given. time. descriptive title and address of
the officer before whom the
Leave of court is not necessary. (4) As to oral examination and deposition is to be taken.
other particulars
In foreign countries Waived unless reasonable (3)Within 10 calendar days
▪ Also, by persons mentioned objection thereto is made at the thereafter, a party so served may
above Secretary of Embassy or taking of the deposition. serve cross-interrogatories upon
legation, consul-general, consul, the party proposing to take the
vice-consul or consular agent (5) As to form of written deposition.
(Sec. 11) interrogatories
Waived unless served in writing (4)Within 5 calendar days
Letters rogatory upon the party propounding them thereafter, the party proposing to
An instrument whereby a foreign within the time allowed for take the deposition may serve
court is informed of the pendency serving succeeding cross or re-direct interrogatories upon a
of a case and the name of the other interrogatories party who has served cross-
foreign witness, and is requested interrogatories.
to cause their depositions to be (6) As to manner of preparation
taken in due course of law for the Waived unless a motion to (5)Within 3 calendar days after
furtherance of justice, with an suppress the deposition or some thereafter, a party may serve
offer on the part of the court part thereof is made with recross-interrogatories upon the
making the request, to do the like reasonable promptness after party proposing to take the
for the other, in a similar case. such defect is, or with due deposition.
Note: Under Rule 23, Sec. 25, all
questions are prepared BEFORE
the date of the deposition taking
DEPOSITIONS BEFORE ACTION (2)The petitioner shall serve a further proceedings in the said court
OR PENDING APPEAL (RULE 24) notice upon each person named (Rule 24, Sec. 7).
in the petition as an expected
 No Action. adverse party, together with a Use of Deposition Pending Appeal
 Pending appeal (Terminated copy of the petition (Rule 24, (a) To allow appellate court to
in the trial court but no entry Sec. 3). admit evidence;
of judgment.) (3)The petition shall state that the (b) Retrial;
petitioner will apply to the court, (c) New Trial;
Use of deposition under Rule 24 at a time and place named (d) Remand for Further
If a deposition to perpetuate therein, for the order described in Proceedings (Rule 24, Sec. 6)
testimony is taken under this Rule, the petition (Rule 24, Sec. 3).
or if, although not so taken, it would (4)At least 20 calendar days before When Applicable
be admissible in evidence, it may be the date of the hearing, the court (a) If an appeal has been taken
used in any action involving the shall cause notice thereof to be from a judgment of a court,
same subject matter subsequently served on the parties and including the CA in proper cases;
brought in accordance with the prospective deponents in the or
provisions of Sections 4 and 5 of manner provided for service of
Rule 23. summons (Rule 24, Sec. 3). (b) Before the taking of an appeal
(5)If the court is satisfied that the if the time therefor has not
BEFORE ACTION perpetuation of the testimony expired. (Rule 24, Sec. 7).
Commencement may prevent a failure or delay of
Verified petition justice, it shall make an order:
▪ Designating or describing
Scope the persons whose deposition Where taken
Any matter that may be cognizable may be taken; and In the court in which the judgment
in any court of the Philippines. ▪ Specifying the subject matter (which must be final BUT not
of the examination or written executory) was rendered (Rule 24,
Venue interrogatories (Rule 24, Sec. Sec. 7).
RTC of the place of the residence 4).
of any expected adverse party, (6)Depositions may then be taken in How taken
because this is an action accordance with Rule 23 before The party who desires to perpetuate
incapable of pecuniary estimation. the hearing (Rule 24, Sec. 4). the testimony may make a motion in
the said court for leave to take
Procedure PENDING APPEAL deposition, upon the same notice
(1)The petitioner files a verified Purpose: To perpetuate the and service as if the action was
petition. (Rule 24, Sec. 1). testimony for use in the event of pending therein (Rule 24, Sec. 4)

INTERROGATORIES TO PARTIES Only after answer has been

(RULE 25) served for the first set of Effect of Failure to Serve Written
interrogatories. (Rule 23, Sec. 1) Interrogatories
Purpose General Rule: A party not served
Availed of by a party to the action Objections to Interrogatories with written interrogatories may
for the purpose of eliciting material Objections may be presented to the NOT be compelled by the adverse
and relevant facts from any adverse court within 10 calendar days after party to give:
parties. (Rule 25, Sec. 1) the service thereof, with notice as in (a) Testimony in open court; or,
case of motion (Rule 25, Sec. 3). (b) Deposition pending appeal.
It is to assist the parties in clarifying
the issues and in ascertaining the Answers shall be deferred until the Exception: Unless thereafter
facts involved in a case. objections are resolved which shall allowed by the court for good
be at as early a time as is cause shown and to prevent a
Commencement practicable (Rule 25, Sec. 3). failure of justice. (Rule 25, Sec.
Ex parte motion 6)
Scope and Use of Interrogatories
How served Any matters that can be inquired Note: One of the purposes of the
With leave of court into under Section 2 of Rule 23, and above rule is to prevent fishing
Before answer has been served the answers may be used for the expeditions and needless delays; it
same purposes provided in Sec. 4 is there to maintain order and
Without leave of court of Rule 23. (Rule 25, Sec. 5) facilitate the conduct of trial.
ADMISSION BY ADVERSE fact set forth in the request (Rule If not denied under oath in
PARTY (RULE 26) 26, Sec. 1). accordance with Section 2, its
genuineness is deemed admitted.
Purpose Requirements in order that
The purpose of this mode of admission be admissible Period to Comply
discovery is to allow one party to To be admissible, an admission The period within (shall not be
request the adverse party, in must: less than fifteen (15) calendar
writing, to admit certain material and (1) Involve matters of fact, and not days after service thereof) which
relevant matters which, most likely, of law; to comply to the request for
will not be disputed during the trial. (2) Be categorical and definite; admission must be designated in
(3) Be knowingly and voluntarily the request.
In order to avoid the unnecessary made; and
inconvenience to the parties in (4) Be adversed to the admitter's Effect of Admission
going through the rigors of proof interests, otherwise it would be An admission under this mode of
before the trial, a party may request self-serving and inadmissible. discovery is for the purpose of the
the other to: pending action only and shall not be
(a) Admission of the Implied Admission deemed an admission by him or her
genuineness of any material and General Rule: Each of the matters for any other purpose. Moreover,
relevant document (not of which an admission is requested the admission cannot be used
actionable documents) shall be deemed admitted. against the admitting party in any
described in and exhibited with Exception: If, within a period other proceeding (Rule 26, Sec. 3).
the request; or designated in the request or within
(b) Admission of the truth of any such further time as the court may Withdrawal of Admission
material and relevant matter of allow on motion, the party to Admissions made under this mode
fact set forth in the request (Rule whom the request is directed files of discovery, whether express or
26, Sec. 1). and serves upon the party implied, are not final and are
requesting the admission, a sworn irrevocable. (Rule 26, Sec. 4).
When Request is Made statement:
A party may file and serve the (a) denying specifically the Effect of Not Filing a Written
written request at any time after matters of which an admission is Request for Admission
issues have been joined (Rule 26, requested; or, General Rule: The party who fails to
Sec. 1). (b) setting forth in detail the file and serve a request for
reasons why he or she cannot admission on the adverse party
A party may request the other to: truthfully either admit or deny shall NOT be permitted to present
(a) Admission of the genuineness those matters. (Rule 26, Sec. 2) evidence on such material and
of any material and relevant relevant facts at issue which are, or
document (not actionable A request for admission is proper ought to be, within the personal
documents) described in and when the genuineness of an knowledge of the adverse party.
exhibited with the request; or evidentiary document is sought to Exception: Unless otherwise
(b) Admission of the truth of any be admitted. allowed by the court for good
material and relevant matter of cause shown and to prevent a
failure of justice. (Rule 26, Sec. 5)

PRODUCTION OR INSPECTION OR Documents, papers, objects,

OF DOCUMENTS OR THINGS (b) to permit entry upon accounts, letters, photographs,
(RULE 27) designated land or other property objects and other tangible things
in his possession or control for which are privileged in character
Commencement the purpose of inspecting, and cannot be the subject of Rule
Motion with notice to the adverse measuring, surveying, or 27, as follows to wit:
party photographing the property or (a) Privileged communication
any designated relevant object or between husband and wife (Sec.
Purpose operation thereon. (Air 24[4], Rule130);
The provision under Section 1, Rule Philippines Corp. v. Pennswell, (b) Privileged communication
27 shows the production or Inc., G.R. No. 172835, between attorney and client
inspection of documents or things December 13, 2007) (Sec. 24/14, Rule 130);
as a mode of discovery sanctioned (c) Privileged communication
by the Rules of Court may be A motion for production or between physician and patient
availed of by any party upon a inspection of documents or things (Sec. 24[c], Rule 130);
showing of good cause therefor under Rule 27 is subject to the (d) Privileged communication
before the court in which an action requirement that the document or between priest and penitent
is pending. The court may order any things should not be privileged. (Sec.24[4], Rule130);
party: (e) Privileged communication of
(a) to produce and permit the Applicability public officers and public interest
inspection and copying or Applicable to a pending action and (Sec. 24[4], Rule 130);
photographing of any designated the documents or things subject of (f) Editors may not be compelled
documents, papers, books, the motion must be only those to disclose source of published
accounts, letters, photographs, within the possession, control, or news;
objects or tangible things, which custody of a party (Rule 27, Sec. 1). (g) Voters may not be compelled
are not privileged; which to disclose for whom they voted
constitute or Documents which are privileged (h) Trade secrets;
contain evidence material to any and cannot be the subject of (i) Information contained in tax
matter involved in the action; and production and inspection of census returns; and
which are in his possession, documents (j) Bank deposits.
custody or control;
PHYSICAL AND MENTAL (c) upon Notice to the party to be mental or physical condition. (Rule
EXAMINATION OF PERSONS examined and to all other parties. 28, Sec. 3)
(RULE 28) (d) The notice shall Specify the
time, place, manner, conditions Effect of refusal to deliver the
Controversy and scope of the examination report
Physical or mental condition and the person or persons by If a party refuses to deliver the
whom it is to be made (Rule 28, report upon request to the person
When examination may be ordered. Sec. 2). causing the examination to be
In an action in which the mental or made, the court may require its
physical condition of a party is in Report of findings delivery on such terms as are just.
controversy, the court in which the Obligation of the party causing
action is pending may in its the examination If the physician refuses or fails to
discretion order him to submit to a If requested by the party make a report, the court may
physical or mental examination examined, the party causing the exclude his testimony. (Rule 28,
by a physician. examination to be made shall Sec. 3)
deliver to him or her a copy of a
Applicability detailed written report of the Waiver of privilege
Examples of this action would be: examining physician setting out BY REQUESTING and
(a) An action for annulment of a his or her findings and OBTAINING a report of the
contract where the ground relied conclusions. (Rule 28, Sec. 3) examination so ordered or by taking
upon is insanity. the deposition of the examiner, the
(b) A petition for guardianship of Duty of party requested to be party examined waives any
a person alleged to be insane. examined privilege he or she may have in
After such request and delivery, that action or any other involving the
Order for Examination the party causing the examination same controversy, regarding the
The order for examination may be to be made shall be entitled upon testimony of every other person
made only: request to receive from the party who has examined or may
(a) on Motion; examined a like report of any thereafter examine him or her in
(b) for Good cause shown; and, examination, previously or respect of the same mental or
thereafter made, of the same physical examination

REFUSAL TO COMPLY WITH the aim to attain an expeditious party obtaining the order; (Rule
MODES OF DISCOVERY (RULE administration of justice. 29, Sec. 3[a]);
29) (5) Prohibition on the refusing
The application of the rules on Sanctions: party to produce evidence,
modes of discovery rests upon the (1) Those which are sought to be support or oppose the
sound discretion of the court. In the established are deemed designated claims or defenses
same vein, the determination of the established (Rule 29, Sec. 3[a]); (Rule 29, Sec. 3[b]);
sanction to be imposed upon a (2) Contempt; (Rule 29, Sec. 2) (6) Striking out pleadings, order
party who fails to comply with the (3) Payment of reasonable fees the dismissal of the action, or
modes of discovery rests on the (Rule 29, Sec. 1[4]) stay the action until compliance,
same sound judicial discretion. It is (4) The matter regarding which or to render judgment by default
the duty of the courts to examine the questions were asked, (Rule 29, Sec. 3[c]); and
thoroughly the circumstances of character or description of land, (7) Order the arrest of the
each case and to determine the et al., be taken to be in refusing party except in case of
applicability of the modes of accordance with the claim of the physical and mental examination
discovery, bearing always in mind (Rule 29, Sec. 3[d]).
 Refusal Effects
Refusal to
answer any (a) The court, upon proper application, shall order the deponent or refusing party
question upon to answer the question or interrogatory (Rule 29, Sec. 1).
oral
examination. A refusal to answer after being directed by the court may be considered as a contempt of
court (Rule 29, Sec. 2)

If the refusal is unjustified, the court may order the deponent, a party, or the counsel advising
the refusal, or both of them, to pay the proponent the amount of reasonable expenses
incurred in obtaining the order, including attorney’s fees (Rule 29, Sec. 1).
(b) If the application for an order to compel a deponent to answer is denied
because of the absence of a substantial justification, the court may require the proponent or
the counsel advising the application, or both of them, to pay to the refusing party or deponent
the amount of reasonable expenses incurred in opposing the application, including attorney’s
fees (Rule 29, Sec. 1).

Refusal to
answer (a) The court may order that the matters regarding which the questions were
designated or asked shall be taken as established for purposes of the action in accordance with the claim of
particular the party obtaining them (Rule 29, Sec. 3[a]).
questions or
refusal to (b) The court may issue an order refusing to allow the disobedient party to refuse
produce or support designated claims or defenses or prohibiting him from introducing in evidence
documents or designated documents or things or items of testimony, or from
thing or to
submit to introducing evidence of physical or mental condition (Rule 29, Sec. 3[b]).
physical or
mental (c) The court may issue an order striking out pleadings or parts thereof, or staying
examination 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 (Rule 29, Sec.
3[c]).

(d) The court may direct the arrest of any party or agent of a party for disobeying
any of the orders of the court, except an order to submit to a physical or mental examination
(Rule 29, Sec. 3[d]).

Refusal to be A refusal of a party to be sworn after being directed by the court may be considered as
sworn contempt of court (Rule 29, Sec. 2).
Refusal to If a party refuses to admit the genuineness of any document or the truth of any matter of fact
admit and serves a sworn denial thereof and if the other party later on proves the genuineness of
the document or the truth of such matter of fact, the court upon proper application, may order
the former to pay the
reasonable expenses in making such proof, including attorney ‘s fees (Rule 29, Sec. 4).
Failure to The court may:
attend (1) strike out all or any part of the pleading of that party, or
depositions or (2) dismiss the action or proceeding or any part thereof; or
to serve (3) enter a judgment by default against that party, and in its discretion;
answers to (4) order him to pay reasonable expenses incurred by the other, including attorney‘s fees
interrogatories (Rule 29, Sec. 5).

The consequences under Sec. 5 of Rule 29 will apply if a party refuses to answer the whole
set of written interrogatories, and not just a particular question. Where the party upon whom
the written interrogatories is served, refuses to answer a particular question in the set of
written interrogatories and despite an order compelling him to answer the particular question,
still refuses to obey the order, Sec. 3(c) of Rule 29 will apply (Zepeda vs. China Banking
Corporation, G.R. No. 172175, October 9, 2006).