DISCOVERY

> MODES OF DISCOVERY: DEPOSITION_WHEN MAY BE AVAILED OF

1. PAJARILLA v. CA (570 SCRA 347 | 2008)

FACTS:

Private respondent Thomas K. Kalangeg filed with the RTC of Bontoc, Mt. Prrovince, a complaint for a sue of money with damages against petitioner Isidro Pajarillaga. On March 10, 1997, private respondent presented his first witness. At the next scheduled hearing on August 8, 1997, neither petitioner nor his counsel appeared despite notice. Upon private respondent’s motion, the trial court allowed him to present his remaining two witnesses subject to petitioner’s cross-examination on the next scheduled hearing on September 2, 1997. But when the case was called on that date, petitioner and his counsel were again absent. Upon private respondent’s motion, the trial court declared petitioner to have varied his right to cross-examination and allowed private respondent to make a formal offer of evidence, which the trial court admitted.

The trial court scheduled petitioner’s presentation of evidence but the petitioner moved to reset the hearing. The TC granted the motion. Five days before the scheduled hearing, the petitioner filed a Motion for Leave of Court to Take the Deposition of the Defendant Upon Written Interrogatories.

a. Petitioner resides in Manila which is more than four hundred (400) kilometers from Bontoc, Mt. Province;

b. Petitioner is suffering from an illness which prohibits him from doing strenuous activities.

Private respondent opposed the motion.

On December 15, 1997, neither petitioner nor his counsel again appeared. Nonetheless, the trial court reset the case to January 12, 1998 for the presentation of petitioner’s evidence.

In an Order dated January 29, 1998, the trial court denied petitioner’s motion. Petitioner’s MR: DENIED. CA affirmed.

a. Denial of petitioner’s motion was not tainted with grave abuse of discretion since the trial court gave petitioner full opportunity to present his evidence.

b. Petitioner’s motion came much too late in the proceedings since private respondent has already rested his case.

c. The medical certificate which petitioner submitted to validate his allegation of illness merely contained a remark that the “patient is advised to avoid strenuous activity.” It did not state that the travel from Manila to Mt. Province for the scheduled hearings was too strenuous to endanger petitioner’s health.

d. The treats to petitioner’s life by private respondent’s relatives were belatedly alleged only in his motion for reconsideration.

ISSUE:

Whether the taking of petitioner’s deposition by written interrogatories is proper and should have been granted by the court. - NO

HELD:

Petitioner’s arguments: (a) This discovery measure may be availed of by a party as a matter of right; (b) has good reasons for invoking his right to this discovery measure, i.e., he resided in Manila which is more than four hundred (400) kilometers from Bontoc, Mt. Province, (c) he is suffering from an illness which prohibits him from doing strenuous activities; (d) there are serious threats to his life by private respondent’s relatives.

Respondent’s answer: (a) petitioner could no longer avail of this discovery measure since the trial court has already given him sufficient time to present his evidence and yet he failed to do so; (b) petitioner’s motion was made purposely to further delay the resolution of the case as it was invoked during the late stage of the proceedings; (c) the medical certificate submitted to show petitioner’s illness does not contain any statement that he could not travel from Manila to Mt. Province for the scheduled hearings.

1. Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. It should be allowed absent any showing that taking it would prejudice any party. It is accorded a broad and liberal treatment and 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 law. It is allowed as a departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge, consistent with the principle of promoting just, speedy and inexpensive disposition of every action and proceeding; and provided it is taken in accordance with the provisions of the Rules of Court, i.e., with leave of court if summons have been served, and without such leave if an answer has been submitted; and provided further that a circumstance for its admissibility exists.

2. There is nothing in the Rules of Court or in jurisprudence which restricts a deposition to the sole function of being a mode of discovery before trial. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. There is no rule that limits deposition-taking only to the period

DISCOVERY

> MODES OF DISCOVERY: REQUESTS FOR ADMISSION

2. SIME DARBY EMPLOYEES ASSOCIATION v. NLRC (510 SCRA 204)

FACTS:

On October 1995, Sime Darby Employees Association submitted its proposal to Sime Darby Pilipinas, Inc. for the remaining two years of their existing CBA. The company gave its counter-proposal but the parties failed to reach a mutual settlement. The company declared in its letter to the union president a deadlock in negotiations. The company sought intervention from the DOLE by filing a notice of CBA deadlock and request for preventive mediation. The Union did not agreed on that thus objecting the deadlock and filed its opposition to the Assumption of Jurisdiction/Certification to Arbitration.

The company filed a Notice of Lockout on June 21, 1995 on the ground of deadlock in the collective bargaining negotiations and sent a Notice of Lockout Vote to the NCMB. On the other hand, the union conducted its Strike Vote Referendum and filed its Strike Vote Result Report to NCMB also on July 24, 1995. The company declared and implemented a lockout against all the hourly employees of its tire factory on the ground of sabotage and work slowdown.

On September 1995, the union filed a complaint for illegal lockout before the DOLE-NLRC. The stockholders of the company approved the sale of the company's tire manufacturing assets and business operation. They issued a Memorandum informing all its employees of the plan to sell the tire manufacturing assets and operations. The company filed with the DOLE a Closure and Sale of tire manufacturing operation. The company individually served notices of termination to all the employees, including the individual petitioners. On account of the lockout, the employees were barred from entering the company premises and were only allowed to enter to get their personal belongings and their earned benefits. During that time the employees were to receive their separation pay equivalent to 150% of the base rate for every year of credited service; they also signed and executed individual quitclaims and releases.

The company filed with the DOLE a Notice of Termination of Employees covering all its employees in the tire manufacturing and support operations effective December 15, 1995. The company sold its tire manufacturing plant and facilities to Goodyear on April 24, 1996. Under a Memorandum of Agreement. They filed a Motion to Conduct Ocular Inspection of the tire factory premises to establish that it was sold to Goodyear. The motion was opposed by the union. The company then filed a motion for the return of the separation pay received by the complainants, pending the resolution of the case.

The Labor Arbiter on August 25, 1998 issued an Order directing the parties to file their respective memorandum. The union, without filing the memorandum ordered by the Labor Arbiter, filed an Appeal Memorandum with a Petition for Injunction and/or Temporary Restraining Order before the NLRC. The Labor Arbiter on October 29, 1998 rendered its decision in the consolidated cases, dismissing the same for lack of merit on the petitioner’s complaints against the company for illegal lockout, illegal dismissal and ULP. The Labor Arbiter found the lockout valid and legal and justified by the incidents of continued work slowdown, mass absences and consistent low production output, high rate of waste and scrap tires and machine breakdown. The mass termination of all employees was declared valid and authorized termination of employment due to closure of establishment, the company having complied with the requirements in Article 283 of the Labor Code. The claim of ULP, the Labor Arbiter found no evidence to substantiate the same, and that the record merely showed that the closure of and eventual cessation from business was justified by the circumstances in order to protect the company's investments and assets.

The Labor Arbiter ruled that the quitclaims and receipts signed by the petitioners were voluntarily signed and that settlement was reached by the petitioners and the company just and reasonable. Petitioners appealed the Labor Arbiter’s decision to the NLRC, but were dismissed for lack of merit. The NLRC affirmed the Labor Arbiter's decision. The petitioner's Motion for Reconsideration was also denied, prompting them to file a petition for certiorari with the CA claiming grave abuse of the discretion on the part of the NLRC. The CA denied the petition for lack of merit and affirmed the decision of the NLRC. The court declared that the Labor Arbiter was not divested of its jurisdiction over the consolidated cases when petitioners filed their appeal Memorandum Order which they sought to appeal is interlocutory in nature. Thus the Labor Arbiter's decision has the force and effect of a valid judgment. Petitioners sought reconsideration of the CA's decision, but their motion was denied for lack of merit. The petitioners, in their instant petition reiterate that they were dismissed right on the day they were handed down their termination letters that as required by law they should have been given a 30-day notice. They also contended that the Labor Arbiter lost jurisdictional competence to issue its October 29, 1998, making said decision void. They also alleged that the decisions of the CA and the NLRC lack evidentiary report.

ISSUE: Whether or not the holding of formal hearing is discretionary with the Labor Arbiter.

HELD: The SC denied their petition. Petition DENIED. Decision affirmed as the labor arbiter never lost its jurisdiction to decide on the case and has decided the case without grave abuse of discretion. The Court gives due credence to the factual findings of the labor arbiter and NLRC.

The order by the labor arbiter to the parties to submit their respective memorandum is in the nature of an interlocutory order. An interlocutory order is not appealable until after the rendition of the judgment on the merits for a contrary rule would delay the administration of justice and unduly burden the courts. Nor could the Court finds any grave abuse of discretion on the labor arbiter’s part. For one, the holding of an adversarial trial is discretionary on the labor arbiter and the parties cannot demand it as a matter of right. The New Rules of Procedure of the NLRC grants the labor arbiter wide latitude to determine, after the submission by the parties of their position papers/memoranda, if there is need for a formal trial or hearing.

Petitioners’ argument that had the labor arbiter allowed respondents to present their evidence during the formal trial, the Decision would have been different, cannot be sustained. As previously stated, the labor arbiter enjoys wide discretion in determining whether there is a need for a formal hearing in a given case, and he or

she may use all reasonable means to ascertain the facts of each case without regard to technicalities. When the parties submitted their position papers and other pertinent pleadings to the labor arbiter, it is understood / given /deemed that they have included therein all the pieces of evidence needed to establish their respective cases. A formal hearing is not compulsory in consonance with the need for speedy disposition of labor cases. If it were necessary, the parties may then willfully withhold their evidence and disclose the same only during the formal hearing, thus creating surprises which could merely complicate the issues and prolong the trial. There is a dire need to lessen technicalities in the process of settling labor disputes.

Well-settled is the rule that hearings and resolutions of labor disputes are not governed by the strict and technical rules of evidence and procedure observed in the regular courts of law. Technical rules of procedure are not applicable in labor cases, but may apply only by analogy or in a suppletory character, for instance, when there is a need to attain substantial justice and an expeditious, practical and convenient solution to a labor problem.

Petitioners claim that the alleged failure of the company to notify them of their termination renders their dismissal illegal, and thus they should be reinstated and paid with full backwages or given separation pay, following the Court’s ruling in Serrano v. Court of Appeals. The argument does not hold. The ruling in Serrano has already been superseded by the case of Agabon v. National Labor Relation Commission. The Agabon enunciates the new doctrine that if the dismissal is for just cause but statutory due process was not observed, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be held liable for non-compliance with the procedural requirements of due process.

But in any case, the issue of illegal dismissal had already been resolved by the NLRC and the Court of Appeals, which both found that the company had an authorized cause and had complied with the requirements of due process when it dismissed petitioners.

DISCOVERY

> MODES OF DISCOVERY: EXAMINATION OF PERSONS

3. REPUBLIC v. SANDIGANBAYAN (204 SCRA 212) – no facts and issues

FACTS: On December 17, 1991, petitioner Republic, through the Presidential Commission on GoodGovernment (PCGG), represented by the Office of the Solicitor General (OSG), filed a petition for forfeiture against Marcos properties before the Sandiganbayan. In said case, petitioner sought the declaration of the aggregate amount of US$356 million (now estimated to be more than US$658 million inclusive of interest) deposited in escrow in the PNB, as ill-gotten wealth. The funds were previously held by the following five account groups, using various foreign foundations in certain Swiss banks. In addition, the petition sought the forfeiture of US$25 million and US$5 million in treasury notes which exceeded the Marcos couple's salaries, other lawful income as well as income from legitimately acquired property.

A General Agreement and the Supplemental Agreements dated December 28, 1993 were executed by the Marcos children and then PCGG Chairman Magtanggol Gunigundo for a global settlement of the assets of the Marcos family. The agreements included a stipulation that the US$356 million presumed to be owned by the Marcoses under some conditions. Respondent Mrs. Marcos filed a manifestation on May 26, 1998 claiming she was not a party to the motion for approval of the Compromise Agreement and that she owned 90% of the funds with the remaining 10%

belonging to the Marcos estate. Republic prayed for a summary judgment over the controversy which was opposed by respondent Marcos.

Sandiganbayan granted the prayer of petitioner Republic and rendered a judgment in favour of the latter, declaring the Swiss deposits which were transferred to and now deposited in escrow at the Philippine National Bank in the total aggregate value equivalent to US$627,608,544.95 as of August 31, 2000 together with the increments thereof forfeited in favor of the State. However, in 2002 and upon the motion of Mrs. Araneta who adopted the motion for reconsideration of the respondent Marcoses, the Sandiganbayan reversed its 2000 decision stating there was no basis for the forfeiture because there was no proof that the Marcoses owned the funds in escrow from the Swiss Banks.

ISSUE: Whether or not respondents raised any genuine issue of fact which would either justify or negate summary judgment? - No. The Court held that respondent Marcoses failed to raise any genuine issue of fact in their pleadings. Thus, on motion of petitioner Republic, summary judgment should take place as a matter of right.

RATIO: In the early case of Auman vs. Estenzo, summary judgment was described as a judgment which a court may render before trial but after both parties have pleaded. It is ordered by the court upon application by one party, supported by affidavits, depositions or other documents, with notice upon the adverse party who may in turn file an opposition supported also by affidavits, depositions or other documents. This is after the court summarily hears both parties with their respective proofs and finds that there is no genuine issue between them. Summary judgment is sanctioned in this jurisdiction by Section 1, Rule 35 of the 1997 Rules of Civil Procedure. The theory of summary judgment is that, although an answer may on its face appear to tender issues requiring trial, if it is demonstrated by affidavits, depositions or admissions that those issues are not genuine but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for petitioner Republic. The pleadings filed by respondent Marcoses are replete with indications of a spurious defense: In their answer, respondents failed to specifically deny each and every allegation contained in the petition for forfeiture in the manner required by the rules. All they gave were stock answers like "they have no sufficient knowledge" or "they could not recall because it happened a long time ago," and, as to Mrs. Marcos, "the funds were lawfully acquired," without stating the basis of such assertions.

Section 10, Rule 8 of the 1997 Rules of Civil Procedure, provides:A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial.

The purpose of requiring respondents to make a specific denial is to make them disclose facts which will disprove the allegations of petitioner at the trial, together with the matters they rely upon in support of such denial. Our jurisdiction adheres to this rule to avoid and prevent unnecessary expenses and waste of time by compelling both parties to lay their cards on the table, thus reducing the controversy to its true terms. On the part of Mrs. Marcos, she claimed that the funds were “lawfully acquired”. However, she failed to particularly state the ultimate facts surrounding the lawful manner or mode of acquisition of the subject funds.

Despite the serious and specific allegations against them, the Marcoses responded by simply saying that they had no knowledge or information sufficient to form a belief as to the truth of such allegations. Such a general, self-serving claim of ignorance of the facts alleged in the petition for forfeiture was insufficient to raise an issue. Respondent Marcoses should have positively stated how it was that they were supposedly ignorant of the facts alleged. Example of the allegations that were not specifically denied: The Marcoses used dummies/nominees, fronts or agents who formed those foundations or corporate entities, they opened and maintained numerous bank

accounts to amass the $356M and hide it. The Marcoses just replied that the said amount was “lawfully acquired” or “they had no knowledge” of such facts.

Evidently, this particular denial had the earmark of what is called in the law on pleadings as a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, has been held that the qualifying circumstances alone are denied while the fact itself is admitted.

Respondents' answer was thus a denial pregnant with admissions of the following substantial facts: (1) the Swiss bank deposits existed and (2) that the estimated sum thereof was US$356 million as of December, 1990.

Therefore, the allegations in the petition for forfeiture on the existence of the Swiss bank deposits in the sum of about US$356 million, not having been specifically denied by respondents in their answer, were deemed admitted by them pursuant to Section 11, Rule 8 of the 1997 Revised Rules on Civil Procedure. Their claim of “lack of knowledge” of several matters, transactions and documents was also disproved (regarding the foundations and the money). The Marcoses had their signatures on some of the documents that proved the transactions in issue proving that they indeed had knowledge thereof.

When matters regarding which respondents claim to have no knowledge or information sufficient to form a belief are plainly and necessarily within their knowledge, their alleged ignorance or lack of information will not be considered a specific denial. An unexplained denial of information within the control of the pleader, or is readily accessible to him, is evasive and is insufficient to constitute an effective denial.

Furthermore, the heirs of FM are bound by the general denial/admissions made by FM thus the children cannot claim also claim “lack of knowledge”.

It is settled that judicial admissions may be made: (a) in the pleadings filed by the parties; (b) in the course of the trial either by verbal or written manifestations or stipulations; or (c) in other stages of judicial proceedings, as in the pre-trial of the case.

Thus, facts pleaded in the petition and answer, as in the case at bar, are deemed admissions of petitioner and respondents, respectively, who are not permitted to contradict them or subsequently take a position contrary to or inconsistent with such admissions.

Moreover, the opposition filed by Mrs. Marcos to the motion for summary judgment dated March 21, 2000 of petitioner Republic was merely adopted by the Marcos children as their own opposition to the said motion. However, it was again not accompanied by affidavits, depositions or admissions as required by Section 3, Rule 35 of the 1997 Rules on Civil Procedure.

The absence of opposing affidavits, depositions and admissions to contradict the sworn declarations in the Republic's motion only demonstrated that the averments of such opposition were not genuine and therefore unworthy of belief.

In the Compromise/Supplemental Agreements, respondent Marcoses sought to implement the agreed distribution of the Marcos assets, including the Swiss deposits. This was, to the Court, an unequivocal admission of ownership by the Marcoses of the said deposits.Summary:Mere denials, if unaccompanied by any fact which will be admissible in evidence at a hearing, are not sufficient to raise genuine issues of fact and will not defeat a motion for summary judgment. A summary judgment is one

granted upon motion of a party for an expeditious settlement of the case, it appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact posed and, therefore, the movant is entitled to a judgment as a matter of law. A motion for summary judgment is premised on the assumption that the issues presented need not be tried either because these are patently devoid of substance or that there is no genuine issue as to any pertinent fact. It is a method sanctioned by the Rules of Court for the prompt disposition of a civil action where there exists no serious controversy. Summary judgment is a procedural device for the prompt disposition of actions in which the pleadings raise only a legal issue, not genuine issue as to any material fact. The theory of summary judgment is that, although an answer may on its face appear to tender issues requiring trial, if it is established by affidavits, depositions or admission that those issues are not genuine but fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for petitioner.

FROM ANOTHER SOURCE:

The landmark case of Republic of the Philippines vs. Sandiganbayan (204 SCRA 212, 200) highlighted the significance and importance of the various modes of discovery. The Philippine Supreme Court said, thus: “now, if 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 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.”

Under Section 2, Rule 25 of the 1997 Rules of Civil Procedure, the written interrogatories must be answered by the party to whom it is directed, thus: “Section 2. Answer to interrogatories. – The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers fifteen (15) days after service thereof, unless the court on motion and for good cause shown, extends or shortens the time.”

Perforce a party served with the written interrogatories is bound to answer the questions propounded therein under pain of the penalties provided for in Rule 29 of the Rules of Civil Procedure among which is the dismissal of the complaint.

The various modes of discovery enumerated and provided for in the Rules of Civil Procedure is expressly made applicable to criminal proceedings (Agpalo, Handbook on Criminal Procedure, 2001 Edition, p. 351; citing Section 3, Rule 1 of the Rules of Civil Procedure).

It is of no moment that the questions are a sort of “fishing expedition” considering that the new rules explicitly allow it. The Supreme Court of the Philippines has repeatedly reminded the trial courts that they should encourage the use of deposition procedure and allow the adverse party to serve interrogatories to expedite the proceedings of the case.

In the aforementioned case of Republic of the Philippines vs. Sandiganbayan (supra), it was pronounced that “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.”

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In Republic v. Sandiganbayan (Fourth Division[3]), this Court laid down the following rules to determine whether a court’s disposition is already a final order or merely an interlocutory order and the respective remedies that may be availed in each case, thus:

Case law has conveniently demarcated the line between a final judgment or order and an interlocutory one on the basis of the disposition made. A judgment or order is considered final if the order disposes of the action or proceeding completely, or terminates a particular stage of the same action; in such case, the remedy available to an aggrieved party is appeal. If the order or resolution, however, merely resolves incidental matters and leaves something more to be done to resolve the merits of the case, the order is interlocutory and the aggrieved party’s remedy is a petition for certiorari under Rule 65. Jurisprudence pointedly holds that:

As distinguished from a final order which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, an interlocutory order does not dispose of a case completely, but leaves something more to be adjudicated upon. The term “final” judgment or order signifies a judgment or an order which disposes of the case as to all the parties, reserving no further questions or directions for future determination.

On the other hand, a court order is merely interlocutory in character if it leaves substantial proceedings yet to be had in connection with the controversy. It does not end the task of the court in adjudicating the parties’ contentions and determining their rights and liabilities as against each other.In this sense, it is basically provisional in its application.

4. DASMARINAS GARMENTS v. REYES (225 SCRA 622)

FACTS:

APL sued Dasmariñas Garments for sum of money at the hearing. Instead of presenting its witness, APL filed a motion praying that it intended to take the depositions of some Taiwan nationals. The lower court granted the deposition which was in compliance with the rules on taking of testimony by deposition upon written interrogatories under ROC. CA affirmed.

ISSUE:

Whether or not a party could present its evidence by taking the deposition of its witness in a foreign jurisdiction before a private entity.

RULING:

Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person which are relevant in some suit or proceeding in court. Depositions are principally made by law to the parties as a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party witness. Leave of court is not necessary where the deposition is to be taken before a secretary or embassy or legation, consul gen. etc., and the defendants answer has already been served.

Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition. Taking only to the period of pre-trial or before it; no prohibition against the taking of deposition after pre-trial… the law authorizes the taking of depositions before or after an appeal is taken from the judgment of RTC “to perpetuate their testimony for use in event of further proceedings in court… or during the process of execution of a final and executor judgment.”

Where the deposition is to be taken in a foreign country where the Philippines has no "secretary or embassy or legation, consul general, consul, vice-consul, or consular agent," then obviously it may be taken only "before such a person or officer as may be appointed by commission or under letters rogatory.

In the case at bar, the RTC has issued a commission to the Asian Exchange Center thru Director Roces. It also appears that the commission is to be coursed through the DFA to course all requests for the taking of deposition of witnesses residing abroad to enable it and the Phil Foreign Service establishments to act on the matter in a judicious and expeditious manner to avoid delay in the deposition-taking.

That the deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in view of the one-China Policy is inconsequential. what matters is that the deposition is taken before a Philippine official acting by authority of the Phil DFA and in virtue of a commission duly issued by the Phil Court, in accordance with the Phil Rules of Court, pursuant to which opportunity for cross-examination of the deponent will be fully accorded to the adverse party.

Depositions may be used, without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.

(c) xxx or (2) that the witness is out of the province and at a greater distance than 50 kms 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 xxx.

5. AYALA LAND v. TAGLE (466 SCRA 521)

6. HYATT INDUSTRIAL v. LEY CONSTRUCTION (G.R. No. 147143 | March 10, 2006)

FACTS:Ley Construction and Development Corporation (LCDC) filed a complaint for specific performance and damages with the RTC of Makati against Hyatt Industrial Manufacturing Corporation (Hyatt) claiming that Hyatt reneged in its obligation to transfer 40% of the pro indiviso share of a real property in Makati in favor of LCDC despite LCDC’s full payment of the purchase price of P2,634,000.00; and that Hyatt failed to develop the said property in a joint venture, despite LCDC’s payment of 40% of the pre-construction cost. LCDC filed amended complaints impleading Princeton Development Corporation (Princeton) and Yu He Ching (Yu) President of Hyatt as additional defendants claiming that Hyatt sold the subject property to Princeton in fraud of LCDC and alleging that LCDC paid the purchase price of P2, 634,000.00 to Hyatt through Yu.

LCDC filed notices to take the depositions of Yu; Pacita Tan Go, Account Officer of Rizal Commercial Banking Corporation (RCBC); and Elena Sy, Finance Officer of Hyatt. Hyatt also filed notice to take deposition of Manuel Ley, President of LCDC, while Princeton filed notice to take the depositions of Manuel and Janet Ley. The RTC ordered the deposition-taking to proceed.

However, at the scheduled deposition of Elena Sy, Hyatt and Yu prayed that all settings for depositions be disregarded and pre-trial be set instead, contending that the taking of depositions only delay the resolution of the case. The RTC agreed and on the same day ordered all depositions cancelled and pre-trial to take place. LCDC moved for reconsideration which the RTC denied due to the following reasons 1) said depositions will only delay the early termination of the case; 2) had the Court set the case for pre-trial conference and trial thereafter, the case would have been terminated earlier; 3) what the parties would like to elicit from their deponents would

probably be elicited at the pre-trial conference; 4) no substantial rights of the parties would be prejudiced, if pre-trial conference is held, instead of deposition.

On the scheduled date of the pre-trial, LCDC filed an Urgent Motion to Suspend Proceedings Due to Pendency of Petition for Certiorari in the Court of Appeals (12th Division), which sought to annul the order regarding the cancellation of the deposition-taking. RTC denied plaintiff’s motion to suspend proceedings and gave LCDC two (2) options: enter into a pre-trial conference, advising plaintiff that what it would like to obtain at the deposition may be obtained at the pre-trial conference; and, terminate the pre-trial conference and apply for deposition later on.

The pre-trial proceeded as scheduled and with the refusal of LCDC to enter into pre-trial, Hyatt, Yu and Princeton moved to declare LCDC non-suited which the RTC granted.

For LCDC’s failure to enter into pre-trial conference without any valid reason the complaint and the counterclaims were dismissed by the RTC.

LCDC filed a motion for reconsideration which was also denied compelling it file an appeal with CA (7th Division). CA’s 12th Division denied LCDC’s petition for certiorari declaring that the granting of the petition and setting aside of the RTC Orders are manifestly pointless considering that the complaint itself had already been dismissed.

Meanwhile CA’s 7th Division finds the appeal meritorious and remanded the case to the RTC for further hearing and to proceed with the deposition taking. Hyatt and Princeton filed their respective motions for reconsideration which the CA denied. Hence, this petition for review on certiorari.

ISSUES:Whether or not the CA erred in remanding the case to the trial court and order the deposition-taking to proceed. RULING: No. A deposition should be allowed; absent any showing that taking it would prejudice any party. It is accorded a broad and liberal treatment and 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 law. It is allowed as a departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge, consistent with the principle of promoting just, speedy and inexpensive disposition of every action and proceeding; and provided it is taken in accordance with the provisions of the Rules of Court, i.e., with leave of court if summons have been served, and without such leave if an answer has been submitted; and provided further that a circumstance for its admissibility exists (Section 4, Rule 23, Rules of Court). The rules on discovery should not be unduly restricted; otherwise, the advantage of a liberal discovery procedure in ascertaining the truth and expediting the disposal of litigation would be defeated.

Sec. 1, Rule 23 of the 1997 Rules of Court which provides as follows:

SECTION 1. Depositions pending action, when may be taken.--- By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (Emphasis supplied).

LCDC complied with the above quoted provision as it made its notice to take depositions after the answers of the defendants have been served, thus, erred in canceling the previously scheduled depositions. While it is true that depositions may be disallowed by trial courts if the examination is conducted in bad faith; or in such a manner as to annoy, embarrass, or oppress the person who is the subject of the inquiry, or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege, such circumstances, however are absent in the case at bar. The taking of depositions would not cause unnecessary duplicity even though the intended deponents shall also be called as witnesses during trial, as explained in Fortune Corp. v. Court of Appeals:

The availability of the proposed deponent to testify in court does not constitute “good cause” to justify the court’s order that his deposition shall not be taken. That the witness is unable to attend or testify is one of the grounds when the deposition of a witness may be used in court during the trial. But the same reason cannot be successfully invoked to prohibit the taking of his deposition.

x x x Under the concept adopted by the new Rules, the deposition serves the double function of a method of discovery - with use on trial not necessarily contemplated - and a method of presenting testimony. Accordingly, no limitations other than relevancy and privilege have been placed on the taking of depositions, while the use at the trial is subject to circumscriptions looking toward the use of oral testimony wherever practicable. In Republic v. Sandiganbayan the Court held:

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.

The trial court erred in forcing LCDC to choose only from the options given by the trial court and in dismissing the complaint upon LCDC’s refusal to choose either of the two. The information LCDC seeks to obtain through the depositions, may not be obtained at the pre-trial conference, as the said deponents are not parties to the pre-trial conference. As also pointed out by the CA: x x x To unduly restrict the modes of discovery during trial, would defeat the very purpose for which it is intended, as a pre-trial device. By then, the issues would have been confined only on matters defined during pre-trial. The importance of the modes of discovery cannot be gainsaid in this case in view of the nature of the controversy involved and the conflicting interest claimed by the parties. Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real matters of dispute between the parties and affording an adequate factual basis during the preparation for trial. Further, in Republic v. Sandiganbayan the Court explained that:

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 their 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 the 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 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 the parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent that said trials are carried on in the dark.

In this case, the information sought to be obtained through the depositions of Elena and Pacita are necessary to fully equip LCDC in determining what issues will be defined at the pre-trial. Without such information before pre-trial, LCDC will be forced to prosecute its case in the dark --- the very situation which the rules of discovery seek to prevent. Indeed, the rules on discovery seek to make trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. Petition is denied for lack of merit.

7. SIME DARBY v. CA (510 SCRA 204)

Request for admission not answered

FACTS:On Oct 1995, Sime Darby Employees Association (Union) submitted its proposal to Sime Darby (Company) for the remaining 2 years of their then existing CBA. The Company gave its counter-proposal, but the parties failed to reach a mutual settlement. The Company declared a deadlock in the negotiations and subsequently sought the intervention of DOLE by filing a Notice of CBA Deadlock and Request for Preventive Mediation. The Union objected to the deadlock and filed an opposition to the Assumption of Jurisdiction/Certification to Arbitration.

The Company filed a Notice of Lockout on June 21, 1995 on the ground of the deadlock in the CB negotiations and sent a Notice of Lock Out Vote to the NCMB. On the other hand, the Union conducted its strike vote referendum and filed its Strike Vote Result to NCMB on July 25, 1991. On Aug 1995, the Company declared and implemented a lockout against all the hourly employees of its tire factory on the ground of sabotage and work slowdown. On Sept. 1995, the Union filed a complaint for illegal lockout before DOLE.

Meanwhile, on Oct 1995, the stockholders of the Company approved the sale of its tire manufacturing assets and business operations. The Company issued a memorandum dated Oct. 20, 1995 informing all its employees of the plan to sell the tire manufacturing assets and operations. On Oct. 27, 1995, the Company filed w/ DOLE a Closure and Sale of Tire Manufacturing Operation. On Nov. 15, 1995, the Company individually served notices of termination to all its employees, including individual petitioners.

Because of the lockout, the employees were barred from entering the company premises and were only allowed to enter to get their personal belongings and their earned benefits on Nov. 21-22, 1995. The employees also received their separation pay and executed individual quitclaims and releases. On Nov. 1995, the Company filed w/ DOLE a

Notice of Termination of Employees covering all its employees in the tire manufacturing and support operations effective Dec. 15, 1995.

In Nov. 1995, petitioners filed a complaint for illegal dismissal before the DOLE while on Jan 1996, they filed a complaint for ULP. The cases for illegal dismissal, illegal lockout and unfair labor practice were then consolidated. Subsequently, the Company then filed a motion to return separation pay by the complainants pending resolution of the case. The Labor Arbiter issued an Order in view of the Motion requiring both parties to submit their respective Memoranda. Instead of complying, the petitioners filed its Memorandum of Appeal w/ an application for TRO w/ the NLRC.

The Labor Arbiter dismissed the cases for lack of merit. The LA found the lockout valid and legal, justified by the incidents of continued work slowdown, mass absences, and consistent low production output. They also found that due process was followed.

The NLRC affirmed en toto the decision of the Labor Arbiter. Petitioner filed a petition for certiorari with the CA which it dismissed. Petitioners appeal the decision of the CA.

ISSUE:Whether petitioner’s Request for Admission should have been granted and the evidence included therein should have been admitted since respondents’ reply/objection thereto were not made under oath.

HELD: No. Petition dismissed.

A request for admission is a remedy provided by Rule 26 of the Rules of Court, which allows a party to file and serve upon any other party a written request for the admission of: (i) the genuineness of any material and relevant document described in and exhibited with the request; or (ii) the truth of any material and relevant matter of fact set forth in the request. Said request must be answered under oath within the period indicated in the request, otherwise the matters of which admission were requested should be deemed admitted. Petitioners claim that respondents, instead of filing an answer under oath, filed an unsworn reply/objection thereto. Thus, the admissions should be deemed admitted in their favor.

Petitioners’ Request for Admission does not fall under Rule 26 of the Rules of Court. A review of said Request for Admission shows that it contained matters which are precisely the issues in the consolidated cases, and/or irrelevant matters; for example, the reasons behind the lockout, the company’s motive in the CBA negotiations, lack of notice of dismissal, the validity of the release and quitclaim, etc.

Rule 26 as a mode of discovery contemplates of interrogatories that would clarify and tend to shed light on the truth or falsity of the allegations in a pleading. That is its primary function. It does not refer to a mere reiteration of what has already been alleged in the pleadings.

Otherwise stated, petitioner's request constitutes "an utter redundancy and a useless, pointless process which the respondent should not be subjected to." The rule on admission as a mode of discovery is intended "to expedite trial and to relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry." Thus, if the request for admission only serves to delay the proceedings by abetting redundancy in the pleadings, the intended purpose for the rule will certainly be defeated.

More importantly, well-settled is the rule that hearings and resolutions of labor disputes are not governed by the strict and technical rules of evidence and procedure observed in the regular courts of law. Technical rules of procedure are not applicable in labor cases, but may apply only by analogy or in a suppletory character, for instance, when there is a need to attain substantial justice and an expeditious, practical and convenient solution to a labor problem. In view of the nature of the matters requested for admission by the petitioners, their request for admission would have only served to delay the proceedings.

8. SECURITY BANK v. CA (323 SCRA 330)

9. SOLIDBANK v. GATEWAY (G.R. No. 164805 | April 30, 2008)

Documents to be produced should be described with particularity

FACTS GATEWAY obtained a loan from SOLIDBANK, covered by promissory notes. As a security for said loan, GATEWAY assigned to Solidbank the proceeds of its Back-end Services Agreement with Alliance Semiconductor (ALLIANCE). GATEWAY failed to pay. When demands to pay were unheeded, SOLIDBANK filed a complaint for collection of a sum of money. A motion for production and Inspection of Documents was filed on the basis of information received from ALLIANCE that GATEWAY had already received from ALLIANCE payment for the Back-end Agreement. RTC granted the motion was. Gateway presented the invoices representing the billings sent by Gateway to Alliance in relation to the Back-end Services Agreement. Unsatisfied with the documents produced by GATEWAY, SOLIDBANK filed a motion to cite the former in contempt for refusal to produce documents. GATEWAY opposed saying they complied with the Order. RTC denied Motion but the court reprimanded GATEWAY for not exerting diligent efforts to produce the documents and thereafter, pronounced as established, documents not produced by GATEWAY. CA nullified the ruling of the trial court. It ruled that both the Motion for Production of Documents and the of the trial court failed to comply with the provisions of Section 1, Rule 27 of the Rules of Court. It further held that the trial court committed grave abuse of discretion in ruling that the matters regarding the contents of the documents sought to be produced but which were not produced by Gateway shall be deemed established in accordance with Solidbank’s claim.

ISSUE W/N SOLIDBANK’s Motion for Production and Inspection complies with the Rules of Court. – NO.

HELDSection 1, Rule 27 of the Rules of Court provides the mechanics for the production of documents and the inspection of things during the pendency of a case. It also deals with theinspection of sources of evidence other than documents, such as land or other property in the possession or control of the other party. The purpose of the statute is to enable a party litigant to discover material information which, by reason of an opponent's control, would otherwise be unavailable for judicial scrutiny, and to provide a convenient and summary method of obtaining material and competent documentary evidence in the custody or under the control of an adversary. It is a further extension of the concept of pretrial. Rule 27 of the Revised Rules of Court permits “fishing” for evidence, the only limitation being that the documents, papers, etc., sought to be produced are not privileged, that they are in the possession of the party ordered to produce them and that they are material to any matter involved in the action. Mutual knowledge of all relevant facts gathered by both parties is essential to proper litigation either party may compel the other to disgorge whatever facts he has in his possession. In this case, GATEWAY assigned to SOLIDBANK the proceeds of its Back-end Services Agreement with Alliance and by virtue of the assignment, GATEWAY was obligated to remit to SOLIDBANK all payments received from ALLIANCE. Solidbank was able to show good cause for the production of the documents and why these are material to the action. However, the motion was fatally defective because of its failure to specify with particularity the documents it required Gateway to produce. Since the motion for production and inspection of documents called for a blanket inspection. SOLIDBANK’s request for inspection of "all documents pertaining to, arising from, in connection with or involving the Back-end Services Agreement" was simply too broad and too generalized in scope. SC held that a motion for production and inspection of documents should not demand a roving inspection of a promiscuous mass of documents. The inspection should be limited to those documents designated with sufficient particularity in the motion, such that the adverse party can easily identify the documents he is required to produce.

OTHER NOTES:The requisites in order that a party may compel the other party to produce or allow the inspection of documents or things (according to Security Bank vs. CA)

a) The party must file a motion for the production or inspection of documents or things, showing good cause therefore;

b) Notice of the motion must be served to all other parties of the case;c) The motion must designate the documents, papers, books, accounts, letters, photographs, objects or tangible

things which the party wishes to be produced and inspected;d) Such documents, etc., are not privileged;e) Such documents, etc., constitute or contain evidence material to any matter involved in the action, andf) Such documents, etc., are in the possession, custody or control of the other party

ADDITIONAL RULING (from another source):

Section 1, Rule 27 of the Rules of Court provides the mechanics for the production of documents ans the inspection of the things during the pendency of a case. It also deals with the inspection of sources of evidence other than documents, such as land or other property in the possession or control of the other party.

The MODES OF DISCOVERY are accorded a broad and liberal treatment. Rule 27 of the Revised Rules of Court permits "fishing" for evidence, the only limitation being that the documents, papers, etc., sought to be produced are not privileged, that they are in the possession of the party ordered to produce them and that they are material to any matter involved in the action. The lament against a fishing expedition no longer precluded a party from prying into the facts underlying his opponent's case. Mutual knowledge of all either party may compel the other to disgorge whatever facts he has in his possession. However, fishing for evidence that is allowed under the rules is not without limitations. In Security Bank v. CA, the Court enumerated the requisites in order that a party may compel the other party to produce or allow the inspection of documents or things, viz:

1. the party must file a motion for the production or inspection of documents or things, showing good cause therefor;

2. notice of the motion must be served to all other parties of the case;3. the motion must designate the documents, papers, books, or tangible things which the party wishes to be

produced and inspected;4. such documents, etc, are not privileged;5. such documents, etc. are in the possession, custody, or control of the other party.

Solidbank was able to show good cause for the production of the documents. It had also shown that said documents are material or contain evidence relevant to an issue involved in the action. However, Solidbank's motion was fatally defective and must be struck down because of its failure to specify with particularity the documents it requires Gateway to produce. Solidbank's motion for production and inspection of documents called for a blanket inspection. Solidbank's request for inspection of "all documents pertaining to, arising from, in connection with or involving the Back-end Services Agreement" was simply too broad and too generalized in scope.

The trial court committed grave abuse of discretion in issuing the aforesaid order. It is not fair to penalize Gateway for not complying with the request of Solidbank for the production and inspection of documents, considering that the documents sought were not particularly described. Gateway and its officers can only be held liable for unjust refusal to comply with the modes of discovery if it is shown that the documents sought to be produced were specifically described, material to the action and in the possession, custody, or control of Gateway.

Neither can it be said that Gateway did not exert effort in complying with the order for production and inspection of documents since it presented the invoices representing the billings sent by Gateway in relation to the Back-end

Services Agreement. Good faith effort to produce the required documents must be accorded to Gateway, absent any finding that it acted willfully, in bad faith or was at fault in failing to produce to documents sought to be produced.

10. ROSETE v. LIM (G.R. No. 136051 | June 8, 2006)

FACTS:

Spouses Lim sued Rosete, BPI, Register of Deeds, Espreme Realty and AFP-RSBS for Annulment of Deed of Sale and Specific Performance. The spouses wanted the Deed of Sale over a parcel of land executed by AFP-RSBS in favor of Espreme Realty annulled and consequently, that the titles of Espreme be cancelled and land be restored to the spouses by the Register of Deeds. Several Motions to Dismiss were filed by Rosete et al on the ground of lack of jurisdiction and venue being improperly laid. These were all dismissed prompting Rosete et al to file a petition for certiorari. While the certiorari suit was pending, the spouses filed a Motion to Serve Supplemental Allegations against BPI and Rosete. The RTC granted prompting Rosete et al to again bring the ruling on certiorari. Meanwhile, Rosete et al filed an Ex Parte Motion to Admit Answer Ex Abudanti Cautela (meaning “out of abundant caution”). On the other hand the spouses filed a Notice to Take Deposition upon Oral Examination. This was opposed by Rosete et al saying that leave of court was necessary as there was no answer filed by them yet and the issues have not yet been joined because their Answer was filed Ex Abudanti Cautela pending resolution of their certioraris. Also, Rosete et al contend that since there are pending criminal cases against them on the same facts, their right to self-incrimination may be violated the allegations of fact the spouses are seeking are the same allegations of fact in the criminal action. Both the RTC and CA ruled in favor of the spouses

ISSUE: Whether or not leave of court is necessary to serve written depositions and interrogatories – NO

HELD: When to serve written depositions and interrogatories is spelled clearly in Section 1, Rule 23 of the Rules of Court. Before an answer has been filed but after the court obtained jurisdiction over the defendant or property subject of an action, leave of court is necessary. If an answer has been filed no leave of court is necessary. In this case, the Answer Ex Abundati Cautela does not make the answer less of an answer. It has all the attributes of an answer namely, that it sets out the litigants’ defenses. There being a complaint and an answer which completely defines each side’s claims and defenses, there is no reason to believe why the issues have not yet been joined as argued by Rosete et al.

11. JOWEL SALES v. SABINO (G.R. No. 133154 | December 9, 2005)

Deposition not a substitute for actual testimony

FACTS: Respondent Sabino filed an action for damages against, among others, Sales who was the driver of the vehicle involved in an accident which ultimately caused the death of Sabino’s son. Before an answer was filed, Sabino notified the defendant that he will take the deposition of Buaneres Corral. The deposition was taken before the clerk of court, where the counsel of Sales participated and cross-examined Corral. The deposition, together with a certification from the Bureau of Immigration (BOI), attesting to the departure of Corral for abroad, was offered in evidence by Sabino. This was opposed to by Sales on the ground that the jurisdiction requirements for their admission under Sec. 4, Rule 23 were not complied with. He argued that the certification by the BOI only showed that Corral left the country on the date mentioned therein, and that it does not prove that he has not returned since then and is unavailable to be present in court to personally testify. TC admitted the evidence. On certiorari, CA agreed with the TC.

ISSUE: W/N the TC and CA were correct in admitting the deposition.

HELD/RATIO: SC agreed with CA. It ruled that the situation falls w/in one of the exceptions in Sec. 4, Rule 23 (specifically, that the witness is out of the Philippines).

General Rule:Depositions are not meant to substitute for the actual testimony in open court of a party or witness. It is not to be used when the deponent is at hand. If it does not fall within any of the exceptions enumerated in Sec. 4, Rule 23, it may be opposed to and excluded on the ground of hearsay.

Exceptions1. 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;

Depositions1. Witness is dead;2. Witness resides 100kms 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;3. Witness is unable to attend because of age, sickness, infirmity, or imprisonment;4. Party offering the deposition has been unable to procure the attendance of the witness by subpoena; or5. 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.

NB: The party against whom the deposition is sought to be used should have been present or represented at the taking of the deposition, or at least had due notice thereof. SC said here that the certification by the Bureau of Immigration provided the necessary evidentiary support to prove that Corral was out of the country when the deposition was offered.

Also, on waiver…Sabino argued that there was a waiver of the objection to the admission of the deposition when Sales’ counsel participated in the taking of the deposition. SC did not agree holding that, according to Sec. 29, Rule 3, objections to competency of witness or competence, relevancy or materiality of testimony are not waived unless they could have been obviated at the time the deposition was taken. Remember, in depositions taking is different from using.

TRIAL

> REVERSE TRIAL WHEN COMPLAINT IS ADMITTED

12. YU v. MAGPAYO (44 SCRA 163)

TRIAL

> REVERSE TRIAL WHEN COMPLAINT IS ADMITTED

13. REPUBLIC v. VDA DE NERI (G.R. No. 139588 | March 4, 2008)

14. SPS. CALO v. SPS TAN (G.R. No. 151266 | November 29, 2005)