Mode of discovery

Deposition is one of the modes of discovery available to the parties to a case as a means of informing themselves of all the relevant facts. Generally, they are not meant to be a substitute for the actual testimony in open court of a party or witness, on the ground that it is hearsay since the party against whom it is offered has no opportunity to cross-examine the deponent at the time his testimony is offered at the trial or hearing. But there are also instances when depositions may be used without the deponent being called to the witness stand. This case of a corporation organized and existing under US Laws (BII) is an example.

On July 12, 2001, BII with main office in San Francisco USA filed a complaint for a sum of money against Gerry, a local businessman engaged in the trading of seafood. The action was only to enforce its rights by virtue of an isolated transaction with Gerry in June 1997 wherein the latter allegedly received from it $150,335.75 originally meant partly as a loan and partly for investment in two corporations (SNC and SBC) engaged in seafood business, but subsequently treated as Gerry’s personal loan since Gerry did not allegedly transfer to BII any single share in the companies.

In his answer, Gerry admitted having received only $141,994.71 with instruction to deduct his commission of $23,748.00 and use the rest to purchase 70% of SNC. But he said that he never agreed to treat the amount received as his own personal loan, thereby raising the sole issue of the existence of an oral contract of loan.

Before the scheduled presentation of its evidence, BII filed a motion to authorize deposition taking through written interrogatories alleging that all of its witnesses are Americans who reside or hold office in the US; that one witness is already of advanced age and travel to the Philippines may be dangerous or difficult in the aftermath of the September 11, 2002 terrorist attack and that written interrogatories are ideal in this case since the factual issues are already very few besides saving precious time and undue delay.

Gerry however opposed the motion. He claimed that the right to take depositions upon written interrogatories in lieu of oral testimony in open court would result in grave injustice to him as BII, a non-resident foreign corporation, is seeking to establish the existence of an oral contract by having all its witnesses, all of whom are foreigners to testify through deposition upon written interrogatories, thus depriving the RTC from testing the credibility of the witnesses and curtailing his right to cross-examine them as he would be limited to written cross interrogatories instead of spontaneous cross examination in open court. Was Gerry correct?

No. Section 1, Rule 23 of the Rules of Court clearly provides that the testimony of any person may be taken by deposition upon oral examination or written interrogatories at the instance of any party. They are allowed as a departure from the accepted and usual judicial proceeding of examining witnesses in open court where their demeanor could be observed by the trial judge; and the procedure is not on that account rendered illegal nor is the deposition thereby taken, inadmissible.

 Such deposition may be used by any party for any purpose if the court finds (1) that the witness is dead; or (2) that the witness is out of the province or at greater distance than 100 kilometers from the place of trial and 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 to testify because of age, sickness or 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) that such exceptional circumstances exist allowing the use of the deposition 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 (Section 4, Rule 23, Rules of Court).

The situation of BII is one of those provided in Section 4 for the admissibility of the deposition; that the witnesses are out of the Philippines unless their absence is procured by the party offering the deposition. Deposition discovery rules are to be accorded a broad and liberal treatment and should not be unduly restricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is in good faith and within the bounds of law. There is nothing in the rules limiting the use of depositions in case of oral contract as alleged by Gerry.

In any event, the admissibility of the deposition does not preclude the determination of its probative value at the appropriate time. The admissibility of evidence should not be equated with weight of evidence. The admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade (San Luis vs. Rojas etc. G.R. 159127, March 3, 2008).

 Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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