Rule 29

REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Rule 29 forms part of the study of the modes of discovery. The policy on modes of discovery is that it is
allowed and encouraged to determine, at earlier time, essential issues and to promote settlement or expeditious
trial. Lawyers should avail of the modes of discovery because they are very helpful in determining the issues and
will even provoke a settlement if you believe na wala kang laban.

And there were circulars issued by the SC on this matter. Example Circular No. 13-87 (July 13, 1987) where
the SC said that lawyers and parties should encourage to avail the modes of discovery procedures provided for in
the rules. This is a neglected area in judicial process. Its use will expedite the determination of cases.

Mode of discovery are popular in the US. 99 percent of lawyers in the US avail of these procedures.
Practically, all parties avail the same even before the trial. At pre-trial stage, all evidence are already prepared for
the case. In the Philippines, it is the exact opposite. Filipino lawyers rarely resort to modes of discovery despite
the admonition by the SC. Siguro, it is our culture. As much as possible we want to keep things to ourselves.
[pinapalabas na lang sa pwet! he! he!]

Remember DBP vs. CA on the issue of pre-trial where Justice Narvasa complained of the courts and the
parties to avail 100% of the process of pre-trial? There is another case naman involving the modes of discovery
where the same Justice lamented the inability of lawyers and even judges to effectively apply the modes of
discovery. I’m referring to the case of

REPUBLIC vs. SANDIGANBAYAN

204 SCRA 212

HELD: “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 operation
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.”
“Evidentiary matters may be inquired into and learned by the parties before the trial. The
desideratum is that civil trials should not be carried on in the dark. The Rules of Court make this ideal
possible through the deposition-discovery mechanism set forth. The experience in other jurisdictions
has been that ample discovery before trial, under proper regulation, accomplished one of the most
necessary ends of modern procedure: it not only eliminates unessential issues from trials thereby
shortening them considerably, but also requires parties to play the game with the cards on the table so
that the possibility of fair settlement before trial is measurably increased.”
“The various modes or instruments of discovery are meant to serve (1) as a device, along with the
pre-trial hearing under Rule 18, to narrow and clarify the basic issues between the parties, and (2) as a
device for ascertaining the facts relative to those issues.”
“Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer
can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts
underlying his opponent’s 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 ill his possession. The deposition-discovery procedure simply advances the stage at which the
disclosure can be compelled from the time of trial to the period preceding it, thus reducing the
possibility, of surprise.”

SEC. 1.

Refusal to answer. - If a party or other deponent refuses to

answer any question upon oral examination, the examination may be
completed on other matters or adjourned as the proponent of the
 question may prefer. The proponent may thereafter apply to the
proper court of the place where the deposition is being taken, for
an order to compel an answer. The same procedure may be availed
of when a party or a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
If the application is granted, the court shall require the
refusing party or deponent to answer the question or interrogatory
and if it also finds that the refusal to answer was without
substantial justification, it may require the refusing party or
deponent or the counsel advising the refusal, or both of them, to
pay the proponent the amount of the reasonable expenses incurred
in obtaining the order, including attorney's fees.
If the application is denied and the court finds that it was
filed without substantial justification, the court may require the
proponent or the counsel advising the filing of the application,
or both of them, to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in opposing the
application, including attorney's fees. (1a)

Q: If a party or deponent refuses to answer a question on oral examination or written interrogatories under
Rule 25, what is your remedy?
A: You go to court and get an order to compel him to answer. And he can be held liable for the reasonable
expenses incurred in obtaining the order including attorney’s fees.

SEC. 2. Contempt of court. - If a party or other witness

refuses to be sworn or refuses to answer any question after being
directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a
contempt of that court. (2a)

SEC. 3. Other consequences. - If any party or an officer or

managing agent of a party refuses to obey an order made under
section 1 of this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce any document or
other thing for inspection, copying, or photographing or to permit
it to be done, or to permit entry upon land or other property, or
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:
(a) An order that the matters regarding which the questions
were asked, or the character or description of the thing or land,
or the contents of the paper, or 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;
(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, or from introducing evidence of physical or
mental condition;
(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 any of such orders except an order to submit
to a physical or mental examination. (3a)

These are other consequences in addition to Section 1. These refer to the refusal to obey an order under Rule
27 and Rule 28 which can even cost your case. The court will make an order that would make the disobedient
party suffer. If he is the plaintiff, his complaint will be stricken out.

Or if he is the defendant, judgment of default can be rendered against him although the judgment of default
can only be done if he failed to file an answer. But his refusal to comply with a mode of discovery is the
exception to the case. This is one instance when a judgment by default can be rendered against a defendant who
filed an answer. And that is the worst penalty for refusing to cooperate.

SEC. 4. Expenses on refusal to admit. - If a party after being

served with a request under Rule 26 to admit the genuineness of
any document or the truth of any matter of fact, serves as 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 to the court for an order
requiring the other party to pay him the reasonable expenses
incurred in making such proof, including attorney's fees. Unless
the court finds that there were good reasons for the denial or
that admissions sought were of no substantial importance, such
order shall be issued. (4a)

Section 4 pertains to Rule 26 on request for admission. If X was able to prove something that Y refused to
admit, Y can be held liable for expenses and attorney's fees for refusing to admit something which turned out to
be true. If it is something true, you might as well admit it. Do not put the other party into trouble for you might
be held liable for the expenses later on.

SEC. 5. Failure of party to attend or serve answers. - 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, or 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
attorney's fees. (5)

Section 5 is identical to previous consequences. If a party is served with interrogatories and he refuses to
answer under Rule 25, he can be penalized with the ultimate penalty of dismissal of the case or judgment by
default. Thus, the ultimate effect is that, a party who refuses to cooperate may lose the case ultimately.

Normally, default judgment applies only to a defendant who failed to file an answer. But Rule 29 allows a
default judgment even if you filed an answer for failure to comply with the modes of discovery. So, this is one
instance when a judgment by default can be rendered against a defendant who filed an answer.

INSULAR LIFE ASSURANCE CO., LTD. vs. COURT OF APPEALS

238 SCRA 88 [1994]

FACTS: There was a refusal here of one party to answer an interrogatory. So the other party
asked the court to issue an order. The court then ordered the other party to answer, but he still refused.
 So, the plaintiff filed a motion for judgment of default against the defendant (or dismissal of the
case) citing Section 5 – where if one refuses to cooperate, the case will be dismissed or a judgment of
default can be rendered against the party.
But the judge ruled that the case shall continue. The party now went to the SC contending that the
judge committed a grave abuse of his discretion in refusing to apply the sanctions allowed by law.

HELD: While it is true that there are sanctions allowed by law in cases of refusal to comply with
the modes of discovery, the same is DISCRETIONARY. Meaning, let the court decide whether
justice will be served by going to trial or not. So there was no grave abuse of discretion on the part of
the judge.
“The matter of how, and when, the above sanctions should be applied is one that primarily rests
on the sound discretion of the court where the case is pending, having always in mind the paramount
and overriding interest of justice. For while the modes of discovery are intended to attain the
resolution of litigations with great expediency, they are not contemplated, however, to be ultimate
causes of injustice. It behooves trial courts to examine well the circumstances of each case and to
make their considered determination thereafter. It is only in clear cases of grave abuse of that
discretion when appellate courts will interfere in their judgment.”
In other words, courts are still given the leeway of whether or not to apply the ultimate sanctions.

NOTE: The ruling in this case was reiterated in the 1996 case of SANTIAGO LAND
DEVELOPMENT CO. vs. CA, July 9, 1996 (258 SCRA 535) and the 1998 case of DELA TORRE
vs. PEPSI-COLA PRODUCTS, October 30, 1998 (298 SCRA 363)

FORTUNE CORPORATION vs. COURT OF APPEALS

229 SCRA 355

ISSUE: Are the 5 modes of discovery cumulative or exclusive? Can a party resort to any modes
of discovery or are they intended to be an exclusion of the other?

HELD: “The various methods of discovery as provided for in the Rules are clearly INTENDED
TO BE CUMULATIVE, as opposed to alternative or mutually exclusive.”
“Under the present Rules the fact that a party has resorted to a particular method of discovery will
not bar 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.”

There was a time when I did this. I used a variety or combination of the different modes. I was interested in
knowing some evidence from the other party. So, interrogatories, then sagot. I asked them on how they were
going to prove it and whether they going to present witnesses and documents. Yes daw. So, I used production
and inspection na naman. So may order na naman. If they have witnesses to be presented, then deposition na
naman. In other words, we can avail all of this.

There was this veteran practitioner who was one of my idols. He’s already retired but his style was that he
handled only about four cases a year para total effort and attention ang maibigay niya. But he charges big. In the
millions for his fees, aaraw-arawin ka niyan ng modes of discovery. So the other counsel will have no time.
That’s why pag-sinabi ng cliente na si Atty. so and so ang kalaban, dino-double nila ang charge because they
know na maraming trabaho kapag siya ang kalaban. After a while, the lone case will become 10 cases already
para sa iyo sa dami ng trabaho if he is the counsel of your opponent.

So the modes of discovery can be used to really squeeze everything out of your opponent.

Q: To summarize, what are the instances when a defendant shall be considered in default even if such
defendant has already filed an answer?
A: The following are the instances:
Failure to appear at the pre-trial conference (Rule 18); and
 Failure to cooperate in the mode of discovery (Section 5, Rule 29).

<

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>
Rule 29 – Refusal to Comply with
Modes of Discovery

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Lakas Atenista
Ateneo de Davao University College of Law