WRITTEN REPORT ON RULE 24 SECTION 6 RULES OF COURT

A Written Report submitted to

Judge Ronald S. Tolentino

In Partial Fulfillment of the Requirements for the subject

of
Civil Procedure
LLB 231
By

Alaan Galagala
Aragon Hibaler
Anduyan Ibrahim
Buenaflor Ramirez
Maynabay
Amir Essam N. Ibrahim
This report serves as the introductory report of the group
and tackles the following concepts:
1. Discovery in general;
2. Depositions in general; and
3. Rule 24 in general.
___________________________________________________
DISCOVERY
The former Chief Justice Andres Narvasa had an occasion
to discuss the wisdom of the Rules of discovery and lament on
the unfamiliarity and disinclination towards resort to the Modes of
Discovery in the case of Republic vs Sandiganbayan1:
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 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. Hence, a few words
about these remedies is not at all inappropriate.
The resolution of controversies is, as everyone
knows, the raison d'etre of courts. This essential function
is accomplished by first, the ascertainment of all the
material and relevant facts from the pleadings and from the
evidence adduced by the parties, and second, after that
determination of the facts has been completed, by the
application of the law thereto to the end that the

1
G.R. No. 90478 November 21, 1991, (204 SCRA 212)
 controversy may be settled authoritatively, definitely and
finally.
It is for this reason that a substantial part of the
adjective law in this jurisdiction is occupied with assuring
that all the facts are indeed presented to the Court; for
obviously, to the extent that adjudication is made on the
basis of incomplete facts, to that extent there is faultiness
in the approximation of objective justice. It is thus the
obligation of lawyers no less than of judges to see that this
objective is attained; that is to say, that there no
suppression, obscuration, misrepresentation or distortion
of the facts; and that no party be unaware of any fact
material a relevant to the action, or surprised by any factual
detail suddenly brought to his attention during the trial.
Seventy-one years ago, in Alonso v. Villamor2, this
Court described the nature and object of litigation and in
the process laid down the standards by which judicial
contests are to be conducted in this jurisdiction. It said:
A litigation is not a game of technicalities in which
one, more deeply schooled and skilled in the subtle art of
movement and position, entraps and destroys the other. It
is, rather a contest in which each contending party fully and
fairly lays before the court the facts in issue and then
brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks
that justice be done on the merits. Lawsuits, unlike duels,
are not to be won by a rapier's thrust. Technicality, when it
deserts its proper office as an aid to justice and becomes
its great hindrance and chief enemy, deserves scant
consideration from courts. There should be no vested right
in technicalities. . . .

2
16 Phil. 315, 322 (July 26, 1910)
 The message is plain. It is the duty of each
contending party to lay before the court the facts in issue-
fully and fairly; i.e., to present to the court all the material
and relevant facts known to him, suppressing or
concealing nothing, nor preventing another party, by clever
and adroit manipulation of the technical rules of pleading
and evidence, from also presenting all the facts within his
knowledge.
Initially, that undertaking of laying the facts before
the court is accomplished by the pleadings filed by the
parties; but that, only in a very general way. Only "ultimate
facts" are set forth in the pleadings; hence, only the barest
outline of the facfual basis of a party's claims or defenses
is limned in his pleadings. The law says that every pleading
"shall contain in a methodical and logical form, a plain,
concise and direct statement of the ultimate facts on which
the party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere evidentiary
facts."
Parenthetically, if this requirement is not observed,
i.e., the ultimate facts are alleged too generally or "not
averred with sufficient definiteness or particularity to
enable . . (an adverse party) properly to prepare his
responsive pleading or to prepare for trial," a bill of
particulars seeking a "more definite statement" may be
ordered by the court on motion of a party. The office of a
bill of particulars is, however, limited to making more
particular or definite the ultimate facts in a pleading. It is
not its office to supply evidentiary matters. And the
common perception is that said evidentiary details are
made known to the parties and the court only during the
trial, when proof is adduced on the issues of fact arising
from the pleadings.
The truth is that "evidentiary matters" may be
inquired into and learned by the parties before the trial.
Indeed, it is the purpose and policy of the law that the
parties — before the trial if not indeed even before the pre-
trial — should discover or inform themselves of all the facts
relevant to the action, not only those known to them
individually, but also those known to adversaries; in other
words, the desideratum is that civil trials should not be
carried on in the dark; and the Rules of Court make this
ideal possible through the deposition-discovery
mechanism set forth in Rules 24 to 29. The experience in
other jurisdictions has been that ample discovery before
trial, under proper regulation, accomplished one of the
most necessary of modern procedure: it not only
eliminates unessential issue 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. . ."
As just intimated, the deposition-discovery
procedure was designed to remedy the conceded
inadequacy and cumbersomeness of the pre-trial functions
of notice-giving, issue-formulation and fact revelation
theretofore performed primarily by the pleadings.
The various modes or instruments of discovery are
meant to serve (1) as a device, along with the pre-trial
hearing under Rule 20, to narrow and clarify the basic
issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The evident
purpose is, to repeat, to enable parties, consistent with
recognized privileges, to obtain the fullest possible
knowledge of the issues and facts before trials and thus
prevent that said trials are carried on in the dark.
To this end, the field of inquiry that may be covered
by depositions or interrogatories is as broad as when the
interrogated party is called as a witness to testify orally at
trial. The inquiry extends to all facts which are relevant,
whether they be ultimate or evidentiary, excepting only
those matters which are privileged. The objective is as
much to give every party the fullest possible information of
all the relevant facts before the trial as to obtain evidence
for use upon said trial. The principle is reflected in Section
2, Rule 24 (governing depositions) 34 which generally
allows the examination of a deponent —
1) "regarding any matter, not privileged, which is
relevant to the subject of the pending action, whether
relating to the claim or defense of any other party;"
2) as well as:
(a) "the existence, description, nature, custody,
condition and location of any books, documents, or other
tangible things" and
(b) "the identity and location of persons having
knowledge of relevant facts."
What is chiefly contemplated is the discovery of
every bit of information which may be useful in the
preparation for trial, such as the identity and location of
persons having knowledge of relevant facts; those relevant
facts themselves; and the existence, description, nature,
custody, condition, and location of any books, documents,
or other tangible things. 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 in 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, . . .
 In line with this principle of according liberal
treatment to the deposition-discovery mechanism, such
modes of discovery as (a) depositions (whether by oral
examination or written interrogatories) under Rule 24, (b)
interrogatories to parties under Rule 25, and (c) requests
for admissions under Rule 26, may be availed of without
leave of court, and generally, without court intervention.
The Rules of Court explicitly provide that leave of court is
not necessary to avail of said modes of discovery after an
answer to the complaint has been served. It is only when
an answer has not yet been filed (but after jurisdiction has
been obtained over the defendant or property subject of
the action) that prior leave of court is needed to avail of
these modes of discovery, the reason being that at that
time the issues are not yet joined and the disputed facts
are not clear.
On the other hand, leave of court is required as
regards discovery by (a) production or inspection of
documents or things in accordance with Rule 27, or (b)
physical and mental examination of persons under Rule
28, which may be granted upon due application and a
showing of due cause.
To ensure that availment of the modes of discovery
is otherwise untrammeled and efficacious, the law imposes
serious sanctions on the party who refuses to make
discovery, such as dismissing the action or proceeding or
part thereof, or rendering judgment by default against the
disobedient party; contempt of court, or arrest of the party
or agent of the party; payment of the amount of reasonable
expenses incurred in obtaining a court order to compel
discovery; taking the matters inquired into as established
in accordance with the claim of the party seeking
discovery; refusal to allow the disobedient party support or
oppose designated claims or defenses; striking out
pleadings or parts thereof; staying further proceedings.
 Of course, there are limitations to discovery, even
when permitted to be undertaken without leave and without
judicial intervention. "As indicated by (the) Rules . . .,
limitations inevitably arise when it can be shown that the
examination is being conducted in bad faith or in such a
manner as to annoy, embarass, or oppress the person
subject to the inquiry. And . . . further limitations come into
existence when the inquiry touches upon the irrelevant or
encroaches upon the recognized domains of privilege."
In fine, the liberty of a party to make discovery is
well-nigh unrestricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is
made in good faith and within the bounds of the law.
Discovery, in general, is defined as the disclosure of facts
resting in the knowledge of the defendant, or as the production of
deeds, writings, or things in his possession or power, in order to
maintain the right or title of the party asking it, in a suit or
proceeding. 3
Trial judges should encourage the use of the different
modes of discovery since a knowledge of the evidence of the
adverse party may facilitate an amicable settlement or expedite
the trial of the case. Since resort thereto is not mandatory, if the
parties chose not to avail of discovery procedures, the pre-trial
should be set accordingly.4 According to Justice Regalado, this
impasse is sought to be remedied by the Revised Rules of Court.
In fact, the Supreme Court promulgated Administrative Matter No.
03-1-09 on July 13, 2004, recognizing the importance of
discovery procedures, which provided for the guidelines to be
observed by trial court judges and clerks of court in the conduct
of pre-trial and use of deposition discovery. Under AM No. 03-1-
09 SC, trial courts are directed to issue orders requiring parties to

3
Insular Life Assurance Co., Ltd. V. Court of Appeals, 238 SCRA 88
4
Koh v. IAC, G.R. No. 71388, Sept. 23, 1986
avail of the modes of discovery within five (5) days from the filing
of the answer.
In the sensational case of People vs Hubert Webb5, before
Hubert Webb was acquitted in Lejano vs People6 by the Supreme
Court after serving 15 years in prison, in 1999 a decision was
promulgated by the Supreme Court regarding depositions. This
was so because one of Hubert Webb’s defenses which led to his
acquittal later on was the defense of alibi. In order to establish
that it was physically and logically impossible for him to have
participated in the Vizconde massacre, his party sought to use
deposition taken in the United States of people who were not able
to testify in the Philippines. Thus, the Supreme Court declared
that “the use of discovery procedures is directed to the sound
discretion of the trial judge. The deposition taking cannot be
based nor can it be denied on flimsy reasons. Discretion has to
be exercised in a reasonable manner and in consonance with the
spirit of the law”. On this ground, the Supreme Court rejected the
ruling of the Court of Appeals that the denial of petitioner’s right
to present his witnesses, who are residing abroad, based on a
very shaky technical ground, is tantamount to depriving him of his
constitutional right to due process. Ultimately, the trial judge
commits no grave abuse of discretion if she decided that the
evidence on the matter sought to be proved in the US could not
possibly add anything substantial to the defense evidence
involved.
The following are the modes of discovery under the
Revised Rules:
1. Depositions pending action (Rule 23);
2. Depositions before action or pending appeal (Rule 24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or inspection of documents or things (Rule 27);

5
G.R. No. 132577. August 17, 1999
6
Lejano v. People, G.R. No. 176389, December 14, 2010
 6. Physical and mental examination of persons (Rule 28);
and
7. Rule 29 provides for the legal consequences for the refusal
on the part of a party to comply with such modes of
discovery lawfully resorted to by the adverse party.
DEPOSITIONS
Deposition is defined as the testimony of a witness taken
upon oral question or written interrogatories, not in open court,
but in pursuance of a commission to take testimony issued by a
court, or under a general law or court rule on the subject, and
reduced to writing and duly authenticated, and intended to be
used in preparation and upon the trial of a civil or criminal
prosecution. It is a pretrial discovery device by which one party
(through his or her attorney) asks oral questions of the other party
or of a witness for the other party. The person who is deposed is
called the deponent. The deposition is conducted under oath
outside of the court room, usually in one of the lawyers offices. A
transcript – word for word account – is made of the deposition.
Testimony of [a] witness, taken in writing, under oath or
affirmation, before some judicial officer in answer to questions or
interrogatories.7
Depositions are not exclusive only to civil cases, it is also
applicable in criminal cases. Under the Revised Rules of Criminal
Procedure, Rule 119 Section 13 provides for examination of
defense witness how made and Section 15 thereof provides for
examination of witness for the prosecution. These are actually
deposition only that it is called conditional examination. Under
Section 13, the examination of defense witness may be made
before any member of the bar in good standing or the judge of an
inferior court designated by the judge of the court where the case
is pending, while examination may be made only before the judge
or the court where the case is pending. This is so because the
prosecution representing the State is presumed to have all the

7
People vs. Webb, 312 SCRA 573,7
resources of the government available to it to cause the
production of its witnesses.
Now the more important question is whether or not
depositions before action or pending appeal under Rule 24 of the
Rules of Court are also applicable to Criminal Cases. The matter
is not yet settled by jurisprudence. Interestingly, two legal titans
differ on their view on the applicability of Rule 24 of the Rules of
Court.
According to Justice Florenz D. Regalado, one of the
brightest legal mind ever produced in the Philippines, deposition
before action may not be availed of in criminal cases, but the
procedure in depositions pending appeal is available in all
actions, including criminal cases8. On the other hand, an
oppositive view is maintained by Dean Willard Riano, also a
recognized remedial law authority. According to Dean Riano, Sec.
1 of Rule 24 allows the perpetuation of one’s own testimony or
that of another person regarding “any matter”. The terms any
matter are sufficiently broad to cover criminal proceedings. To
claim that such matters have reference to civil cases only is to
stretch the rules of logic too far.9
However it seems that such question is rendered moot with
regard to the applicability of Rule 23 in criminal cases by the ruling
in Cuenco vs Risos10. It was argued there that Rule 23 is
applicable to criminal cases because the civil procedure applies
suppletorily to criminal cases. However, the Supreme Court
disagreed ruling that “it is true that Section 3, Rule 1 of the Rules
of Court provides that the rules of civil procedure apply to all
actions, civil or criminal, and special proceedings. In effect, it says
that the rules of civil procedure have suppletory application to
criminal cases. However, it is likewise true that the criminal
proceedings are primarily governed by the Revised Rules of
Criminal Procedure. Considering that Rule 119 adequately and

8
Remedial Law Compendium by Justice Florenz D. Regalado (1999)
9
Civil Procedure Volume 1 (The Bar Lecture Series) by Dean Willard Riano (2014)
10
G.R. No. 152643, August 28, 2008
squarely covers the situation in the instant case, we find no
cogent reason to apply Rule 23 suppletorily or otherwise.”
The classifications of depositions are the following:
1. Deposition on oral examination and deposition upon
written interrogatories; or
2. Depositions de bene esse and depositions in perpetuam
rei memoriam
3. Depositions de bene esse are those taken for purposes of
a pending action and are regulated by Rule 23, while
depositions in perpetuam rei memoriam are those taken to
perpetuate evidence for purposes of an anticipated action
or further proceedings in a case on appeal and are now
regulated by Rule 24.
RULE 24: Depositions before action or pending appeal
According to Justice Regalado, although there is no local
jurisprudence on the matter, depositions under this rule, just like
any other deposition, are taken conditionally, to be used at the
trial or proceeding only in case the deponent is not available. This
view appears to be sustained by the fact that under Sec. 6 of this
rule, depositions in perpetuam rei memoriam may be used in the
action in accordance with the of Sec. 4 and 5 of Rule 23 which
provides, inter alia, for situations wherein the deponent cannot
testify as a witness during the trial.
In the case of Alonso et al vs Lagdameo11 it was held that
depositions taken under this Rule 24 do not prove the existence
of any right and the testimony therein perpetuated is not in itself
conclusive proof, either of the existence of any right nor even of
the facts to which they relate, as it can be controverted at the trial
in the same manner as though no perpetuation of testimony was
ever had. However, as held in Rey vs Morales12 in the absence
of any objection to the taking thereof and even if the deponent did
not testify at the hearing of the case, the perpetuated testimony

11
Alonso, et al. vs. Lagdameo, 7 Phil. 75
12
Rey vs Morales, 35 Phil. 230
constitutes prima facie proof of the facts referred to in his
deposition.

Aragon, Glazyle Gamy

Section 1. Depositions before action; petition.

A person who desires to perpetuate his own testimony or

that of another person regarding any matter that may be
cognizable in any court of the Philippines, may file a
verified petition in the court of the place of the residence
of any expected adverse party.

This is also known as a Petition for Perpetuation of Testimony

This rule was originally Rule 19 in the 1940 Rules of Court. It was
transposed to the Rules of Evidence under Rule 134 of the 1964
Rules of Court, because it was not strictly a mode of discovery. It
was intended to preserve known testimony against danger or loss
and hence, the rule was entitled “Perpetuation of Testimony.”
Now, it has been put back where it was in the 1940 Rules of Court.
To further explain this, let’s know the 2 types of deposition taking:
1. Deposition Pending Action (Rule 23)
2. Deposition Before Action or Pending Appeal (Rule 24)
In rule 23, you take a testimony or deposition of people in relation
to a pending case. There is already a pending case in court, so
everything is based on a pending action. The next rule, Rule 24
is a deposition before a case is filed. That is why it is called
Depositions Before Action.
Now, how can one apply deposition taking if there is no case filed
yet? That is why it was known as Perpetuation of Testimony under
Rule 134.
An example of this is suppose there is a case which I would like
to file against A. But for the moment I cannot file it yet. I intend to
file a case against him. So there is an expected case between us
in the future only there are certain things that I still have to do like
condition precedents. But if I file a case against A, I have some
witnesses who are all ready like B and C. But the trouble is, I
learned lately that B will die soon. He has cancer and C will have
to leave for abroad, never to come back. Definitely, If I will file a
case, there are no more witnesses available.
NOW THE QUESTION IS, IS THERE A WAY OF TAKING
TESTIMONY OR DEPOSITION IN ADVANCE EVEN BEFORE
THERE IS no CASE FILED YET? Yes, by applying Rule 24. I will
file a petition before the court known as Petition to Perpetuate the
Testimony of B and C. Well, even if there is no case yet, I will just
file a petition under Rule 24. If I can prove really that the testimony
would be relevant or important the court will issue an order
allowing me to take deposition in advance.
Now, where will you file it? You shall file it, in the court of the place
of the residence of any expected adverse party because there is
still no case. So you have to file an independent petition under
Rule 24.
This rule also:
 Can apply to a prospective plaintiff of prospective
defendant to a case
 Deposition can include those of any probable witness
 May include situations where cause of action has not yet
accrued
Buenaflor, Allen Patrick P.
Section 2. Contents of petition.
The petition shall be entitled in the name of the petitioner
and shall show: (a) that the petitioner expects to be a
party to an action in a court of the Philippines but is
presently unable to bring it or cause it to be brought; (b)
the subject matter of the expected action and his interest
therein; (c) the facts which he desires to establish by the
proposed testimony and his reasons for desiring to
perpetuate it; (d) the names or a description of the
persons he expects will be adverse parties and their
addresses so far as known; and (e) the names and
addresses of the persons to be examined and the
substance of the testimony which he expects to elicit
from each, and shall ask for an order authorizing the
petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of
perpetuating their testimony.

This Section is the enumeration of what is needed to be placed

in the Petition for Perpetuation of Testimony.

The Section begins with the first requisite, though not included in
the enumeration, yet still required to be placed on the Petition
itself: The Petition shall be entitled in the name of the Petitioner.
This requires that the Petitioner himself must be named, and not
another party to the action. He must make known his intent to
take the Deposition in his name.

The second requisite is that the petitioner must declare that he

expects to be a party to an action, and that he must squarely
state that he is unable to bring it or cause it to be brought. This
requisite is complied with by merely stating the circumstances
that surround the case and an explanation why such action
cannot be brought.
The third requisite is that the petitioner must state the subject
matter of the expected action and his interest. The would comply
with the requisites of a pleading that there must be a cause of
action, the lack of which would lead to the dismissal of the
action, and in this case, the dismissal of the Petition itself.

The fourth requisite is that the petitioner must state the facts
which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it. This requisite serves to
limit the line of questioning to be asked by the petitioner, and for
the deponent to aptly prepare himself to answer satisfactorily the
questions to be asked. The petitioner must also state the reason
as to why he wishes to perpetuate such facts. The court may
weigh the importance and relevance of such facts and may
decide upon it as grounds to approve or deny the petition.

The fifth requisite is that the petitioner must state the names or a
description of the persons he expects will be adverse parties
and their addresses so far as known. This is for the purpose of
identifying who must be served a copy of the petition and who
may be interested in the action to be brought in the future.

The sixth requisite is that the petitioner must state the names
and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each.
The purpose of such requisite is to identify who may be subject
to the deposition and what facts may be established from their
testimonies. If the court finds that a person need not be included
nor a fact to be established is not material to the action to be
brought by the petitioner, it may be ground for the denial of the
petition.
The final requisite is that the petitioner must ask for an order
authorizing him/her to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating
their testimony. As the petition partakes of the nature of a
pleading, there must be a prayer to the court to allow the
petitioner to take the deposition. Lacking such, the court does
not have anything to decide upon.

The requisites enumerated are not an exclusive list of what must

be included in the petition. The petition itself must be signed and
must be accompanied by a Verification subscribed and sworn to
by the petitioner.

Galagala, Ralph
Section 3- Notice and Service
Rationale
As part and parcel of appreciating the concept of law and
due process, the rules of court was able to device within its
internal procedures specific rules wherein a system of giving
notice and service thereof is being observed, pursuant to the
constitutional mandate of right to notice and hearing.
In connection to this, the rules on discovery, specifically Rule
24, Section 3 observes the adherence to the above-mentioned
principle by creating a system of notice and service which will
basically inform prospective deponents that a petition to take a
deposition even before a case is filed is being applied before the
court.
Section 3, Rule 24
Notice and service. — The petitioner shall serve a
notice upon each person named in the petition as an
expected adverse party, together with a copy of the
petition, stating that the petitioner will apply to the
court, at a time and place named therein, for the order
described in the petition. At least twenty (20) days
before the date of the hearing, the court shall cause
notice thereof to be served on the parties and
prospective deponents in the manner provided for
service of summons.
First Notice
Notice given personally by Petitioner
The notice given by the petitioner-applicant must
be given to all persons named in the petition as prescribed in
relation to Rule 24 Section 2 (d)
“ the names or the description of the
persons he expects will be adverse parties and
their addresses So far as known”

As stipulated, the persons named in the petition

are those persons which are going to be the expected adverse
party. Emphasis supplied in the word “expected” since the
deposition taken under this rule is entertained even before a
case is filed in court.

What are the attachments included in the notice?

A copy of the petition for deposition before action should
be attached together with the notice.
 What is the effect when the copy of the petition was
not attached?
The failure to attach a copy of the petition is considered a
defect that will render such notice ineffective. Ergo, if the notice
is ineffective, it is as if there was no notice given.
What is the effect when such notice was not given?
The effect of not having to hand a notice to the prospective
adverse party will render the petition for taking a deposition void.
The basis for such submission is taken upon cross-
referencing Rule 13 Section 2 Paragraph 2 of the Rules of Court:

xxx

Service is the act of providing a party with a copy of the pleading

or paper concerned.

Service as defined in this section is phrased to connote

that the purpose of which is to provide a copy of the petition to the
party concerned. In the same vein, The first part of section 3 rule
24 is also phrased in such a way as to convey that the notice
given by the petitioner is purposed to inform the expected adverse
party that a petition for a deposition before an action is being filed
before a court.

Notice and service. — The petitioner shall serve a

notice upon each person named in the petition as an
expected adverse party, together with a copy of the
petition, stating that the petitioner will apply to the
court, at a time and place named therein, for the order
described in the petition. At least twenty (20) days
before the date of the hearing, the court shall cause
notice thereof to be served on the parties and
prospective deponents in the manner provided for
service of summons.
 The annotations under Rule 13, Section 2 provides that the
failure to serve a notice or to provide an adverse party of a copy
of any paper concerned will render such document ineffective or
it is as if the petition was never filed. Therefore, it is logical to
conclude that if the petition was granted without notice to the
expected adverse parties and the deposition went through, the
deposition taken in this case is not admissible.

Second Notice
Notice given by the Court

“At least twenty (20) days before the date of the

hearing, the court shall cause notice thereof to
be served on the parties and prospective
deponents in the manner provided for service of
summons.”

When given?
The notice given by the court is served 20 Days before
the hearing on the propriety of the petition to take deposition
before action.
Who are the persons included in the notice given by the
court?
1. Expected adverse parties
2. Petitioner-Applicant
3. Prospective Deponents

What rules govern the service of notice given by the court?

Rules on Service of Summons (Rule 14 of the Rules of
Court)
Brief run-through of the Rules on service of summons
Summons: Writ by which the defendant is notified of the action
brought against it.
• Issuance thereof is ministerial and mandatory
upon coc.
• Served by sheriff, his deputy, other proper court
officer, or person authorized by court.
• Directed upon defendant.
• Made upon: filing and payment of docket fees.
• Purpose: due process
Anduyan, Kareen Mae
Section 4 – Order and Examination
If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make an order
designating or describing the persons whose deposition may be
taken and specifying the subject matter of the examination and
whether the depositions shall be taken upon oral examination or
written interrogatories. The depositions may be taken in
accordance with Rule 23 before the hearing.

Process to request approval to take deposition before action

Summons

Order

ORDER is issued by the Court after when?

After the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice
How to satisfy the court?
(1) A substantial expectancy of a future action to which
petitioner will be a party, and
(2) a distinct possibility that either the testimony will become
unavailable or its acquisition will cause substantial delay in the
prospective litigation

What are the contents of an Order?

1. Designation and description of the persons whose
deposition may be taken
2. Specification of the subject matter of the
examination
3. Whether the deposition is to be taken upon oral
examination or written interrogatories.

May an Order be subject of a Motion for Reconsideration?

G.R. No. 209057
Martinez vs Ongsiangko (March 15, 2017)
The petitioner and other adverse parties filed a Motion for
Reconsideration and the court allowed the parties to
orally argue their grounds in support of, or against, the
reconsideration of the Resolution granting the Petition.
Maynabay,
Section 5 of Rule 24 talks about refence to court. It states:
Section 5. Reference to court. — For
the purpose of applying Rule 23 to
depositions for perpetuating
testimony, each reference therein to
the court in which the action is
pending shall be deemed to refer to
the court in which the petition for such
deposition was filed. (5a, R134)
This is section is a very straight forward provision.
Nonetheless, we shall dissect the section to understand it deeper
and further grasp the essence of what the law is all about.
To begin with, the first line of the section, For the purpose
of applying Rule 23 to depositions for perpetuating testimony,
generally talks about how depositions may now be taken in
accordance with Rule 23 before a hearing. As mentioned in
Section 4 of the same Rule, when the court allow for the
deposition to be taken, they will be taken simply by following Rule
23. It is worthy to remember that perpetuating testimonies, are
despositions that are taken before an action is filed.
The next line “each reference therein to the court in which
the action is pending” made mention of the status of the action.
Let us recall that in Rule 23, the action is already pending in court.
This means that an action is already filed, hence in Rule 23 there
is already a venue.
By applying Rule 23 to Section 5 of Rule 24, it seems that
a conflict exists. That is because Rule 23 refers to depositions
pending action however, Rule 24 refers to depositions before
an action is filed. How should this conflict be resolved?
The last line of the section provided for the answer which
states “SHALL BE DEEMED TO REFER to the court in which
the petition for such deposition was filed.” What does the word
“court” mean in the last line? It simply means that it is in the court
of the place of the residence of any expected adverse party.
Furthermore, the word petition mentioned in the line refers to
Petition for Perpetuation of Testimony which is filed in the
court of the place of the residence of any expected adverse party.
As a summary, when the court allows for depositions to be
taken and Rule 23 will be applied, the court that will take
cognizance therein will be the court in which the Petition for
Perpetuation of Testimony is filed, which is in the court of the
place of the residence of ant expected adverse party.

Ramirez, Ray
SECTION 6. Use of deposition. — If a deposition to
perpetuate testimony is taken under this Rule, or if, although
not so taken, it would be admissible in evidence, it may be
used in any action involving the same subject matter
subsequently brought in accordance with the provisions of
Sections 4 and 5 of Rule 23. (6a, R134)”

RULE 23
DEPOSITIONS PENDING ACTIONS
Sec. 4. Use of depositions.
At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible
under the rules of evidence, may be used against any party who
was present or represented at the taking of the deposition or who
had due notice thereof, in accordance with any one of the
following provisions:

(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;

(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 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 orally in open court, to allow the deposition to
be used; and

(d) If only part of a 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.

Sec. 5. Effect of substitution of parties.

Substitution of parties does not affect the right to use

depositions previously taken; and, when an action has been
dismissed and another action involving the same subject is
afterward brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the former action may be used in the latter
as if originally taken therefor.
“Impeaching the testimony of deponent”
“If the deposition is not taken in accordance with this rule,
it may be used as prior inconsistent statements to impeach
the testimony of the deponent, provided the predicate is laid
in accordance with section with Section 13 of Rule 132 of the
Rules of Court.”
RULE 132- PRESENTATION OF EVIDENCE
Sec. 13. How witness impeached by evidence of
inconsistent statements. — Before a witness can be
impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of the
times and places and the persons present, and he must be asked
whether he made such statements, and if so, allowed to explain
them. If the statements be in writing they must be shown to the
witness before any question is put to him concerning them. (16)
Sample Motion for Deposition:
Hibaler, Kristine B
Summary of Rule 24
Depositions Before Action or Pending Appeal

What is Discovery?
Discovery, in general, is defined as the disclosure of facts
resting in the knowledge of the defendant, or as the production
of deeds, writings, or things in his possession or power, in order
to maintain the right or title of the party asking it, in a suit or
proceeding. (Insular Life Assurance Co., Ltd. V. Court of
Appeals, 238 SCRA 88)

What is Deposition?
The testimony of a witness taken upon oral question or written
interrogatories, not in open court, but in pursuance of a
commission to take testimony issued by a court, or under a
general law or court rule on the subject, and reduced to writing
and duly authenticated, and intended to be used in preparation
and upon the trial of a civil or criminal prosecution.

Classifications of depositions
As to form:
• Deposition on oral examination and deposition upon written
interrogatories; or
As to nature:
• Depositions de bene esse and depositions in perpetuam rei
memoriam
Classifications of depositions

Section 1. DEPOSITIONS BEFORE ACTION; PETITION

A party seeking to perpetuate testimony must file a verified

petition.

Section 2. CONTENTS OF PETITION

The petition shall show the following :

• That the petitioner expects to be a party to an action in a
court of the Philippines but is presently unable to bring it or
cause it to be brought;
• The subject matter of the expected action and his interest
therein;

• The facts which he desires to establish by the proposed

testimony and his reasons for desiring to perpetuate it;
• The names or a description of the persons he expects will be
adverse parties and their addresses so far as known;
• The names and addresses of the persons to be examined
and the substance of the testimony which he expects to elicit
from each.
• And shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.

Section 3. NOTICE AND SERVICE

The petitioner shall serve a notice upon each person named in

the petition as an expected adverse party.

Section 4. ORDER AND EXAMINATION

Section 5. REFERENCE TO COURT

Section 6. USE OF DEPOSITION

Section 7. DEPOSITIONS PENDING APPEAL

The Motion shall state:

a) the names and addresses of the persons to be examined and
the substance of the testimony which he expects to elicit from
each; and
b) the reason for perpetuating their testimony.