"The taking of a deposition is a mode of discovery."
"The taking of a deposition is a mode of discovery."
To some lawyers, the taking of a deposition is of minimum legal value. Why take a deposition when the deponent is expected to evade the questions or simply deny material and relevant facts within his knowledge? This was the question I received more than a decade ago when I delivered a Mandatory Continuing Legal Education lecture to lawyers.
The taking of a deposition is a mode of discovery. It is taken under oath in the presence of any judge in the Philippines, a notary public, or any person authorized to administer an oath stipulated in writing by the parties (Section 10, Rule 23, 2019 Amendments to the Rules of Civil Procedure [ARCP]). The deponent may be examined on any matter, not privileged or confidential, which is relevant to the subject of the pending case or action.
The deposition or examination, whether oral or written, is in a question and answer form. It may be mistaken for an examination in court if taken before a judge, but it is different from an examination taken during trial. To fully appreciate its legal significance, the understanding of its uses is imperative. A deposition may be used to contradict or impeach the testimony of the deponent as a witness (Section 4, Rule 23 ARCP). This happens when the deponent who is presented as a witness in court is impeached with the use of his or her own deposition that contains inconsistent statements.
The deposition of a deceased witness may be used as the latter’s testimony in a court proceeding. However, the deposition of the deceased witness given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may only be given in evidence against the adverse party who had the opportunity to cross-examine him or her (Section 49, Rule 130, 2019 Amended Rules on Evidence).
It is also possible that the witness resides more than 100 kilometers from the place of the trial or hearing, such as when he or she is abroad or in a remote place in the Philippines (Section 4, Rule 23, ARCP). The deposition is commonly used for this purpose since the attendance of a witness in court cannot be compelled by a subpoena for the said reason. A warrant to arrest the witness cannot be issued to require attendance in court nor can the court hold the non-attending witness by reason of distance of more than 100 kilometers in contempt (Section 10, Rule 21, ARCP).
When a witness is sick, infirm or of advanced age, a deposition can be taken as his or her testimony in court. I was once faced with such a predicament when my septuagenarian client, who had a serious heart ailment, told me that he cannot physically testify in court because it may cost him his life. Aside from filing a Motion to take his Written Interrogatories with supporting documents to prove his deteriorating physical condition, he had to be brought to court with an ambulance for a visual examination of the judge.
Depositions may also be taken in a foreign country before: (a) a consular office of the Republic of the Philippines; (b) a person or officer appointed by commission or under letters rogatory; and (c) any person authorized to administer an oath stipulated in writing by the parties (Section 11, Rule 23, ARCP). A commission is “an instrument issued by a court of justice … directed to an individual by name … authorizing him to take the depositions of the witnesses named therein, while letters rogatory is a request to a foreign court to give its aid, backed by its power to secure the desired information” (Dulay v. Dulay, G.R. No. 158857, November 11, 2005).
The manner of taking the deposition by the deposition officer is as follows: (1) to put the deponent/witness on oath; (2) to record by stenography the testimony unless the parties agree otherwise; (3) to note the objection of any party; (4) to submit to the deponent the transcribed examination for review and signature, unless the reading and signing are waived by the witness and the parties; and (5) to enter the changes, if any, in the form or substance desired by the witness/deponent (Section 17, Rule 23, ARCP).
The same procedure must be followed for written interrogatories under Rule 23 of the ARCP, except that all the written examinations will be submitted to the deposition officer who will, in turn, read the questions to the witness/deponent. The transcribed oral deposition or written interrogatories will be certified by the officer as duly sworn to by the deponent/witness and that these are the true record of the testimony. The deposition will be placed in a sealed envelope and thereafter promptly filed in court (Section 20, Rule 23, ARCP). If the manner of its taking is not observed the adverse party may file a Motion to Suppress the Deposition (Section 29, Rule 23, ARCP).
It does not mean, however, that the questions to be asked of the deponent are boundless. The court may issue orders to protect the party or witness from annoyance, embarrassment, or oppression, and to limit the scope and manner of the taking of the deposition. (Sections 16 and 18, Rule 23, ARCP). The refusal of a deponent/witness to answer question/s despite an order compelling him to answer may expose him to contempt or arrest (Sections 2 and 3, Rule 29, ARCP).
If the refusal to answer the question/s is by a deponent who is a party, the court can order that the disobedient party not be allowed to present evidence to: support or oppose his or her claims or defenses; order to strike out pleadings or parts thereof; or establish the facts sought to be elicited from him or her. The refusing party can also be placed in contempt or ordered arrested (Section 3, Rule 29, ARCP).
It is interesting to note that depositions can be applied before a suit is instituted to enforce a right or vindicate a wrong. The action to perpetuate or take the deposition of the persons named in a petition is solely for the said purpose and will not resolve any controversy between the parties (Rule 24, ARCP). This is the reason why this legal option is rarely used in our country, because the client foresees that he or she will be shouldering the attorney’s fees and cost of litigation even before his claims are determined by the court in a separate action.
Similar to a court action where the judge can be inhibited or disqualified from further handling a court case, the deposition officer can also be disqualified. He or she can be disqualified if: (a) he is a relative within the sixth degree of affinity or consanguinity of the party, the latter’s employee or counsel of any party; (b) he is related within the same degree to the employee of the counsel; or (c) he is financially interested in the subject of the action (Section 13, Rule 23, ARCP).
The importance of depositions cannot be underestimated as a mode to elicit material and relevant facts in a pending action. In fact, the commitment of a lawyer to avail of the modes of discovery that include deposition is part of the lawyer’s certificate when he or she signs pleadings and court related documents (Section 3 (a), Rule 7, ARCP). While a deposition is not automatically admitted as evidence, it is undoubtedly an important legal instrument to obtain evidence that is hard to gather.