Civil Procedure: Rule 29 Refusal to Comply with Modes of Discovery

Section 1.  Refusal to answer. – If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed  on other matters or adjourned as the proponent of the question may prefer.  The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer.  The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.

If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees.

If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees.

Sec. 2. Contempt of court. – If the party or other witness refuses to be sworn to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court.

Sec. 3. Other  consequences – If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection copying or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical  or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:

(a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper , or physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated document or things or items of testimony, or from introducing evidence of physical or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and

(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any such orders except an order to submit to a physical or mental examination.

Sec. 4. Expenses on refusal to admit. – If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney’s fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued.

Sec. 5. Failure of party to attend or serve answers. – If a party or an officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of the party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against the party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees.

Sec. 6. Expenses against the Republic of the Philippines. – Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule.

 

Republic v. Sandiganbayan, 204 SCRA 212

            The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing, 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 fullest possible knowledge of the issues and facts before civil trails 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 relevant facts before the trial as to obtain evidence for use upon said trial.

In line with the principle of according liberal treatment to the deposition-discovery mechanism, such modes of discovery as a) depositions (whether by oral examination or written interrogatories), (b) interrogatories to parties, and (c) requests for admissions, 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 course.

            Po v. CA, 164 SCRA 668

A party should not be compelled to admit matters of  fact  already admitted by his pleading and concerning which there is no issue, nor should he be required to make a second denial of those already denied in his answer to the complaint. A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party’s cause of action or defense.

            Bribonera v. CA, 216 SCRA 607

(Same ruling as in Po v. CA.)

The request for admission should be served upon the party himself and not upon counsel.


            Revilla v. CA, 217 SCRA 583

Evidence is negative when the witness states that he did not see or know the occurrence of a fact, and positive when the witness affirms  that a fact did or did not occur. Don Cayetano’s declaration that he did not execute a second will, constitutes positive evidence of a fact personally known to himself: that he did not make a second will.

NOTES ON DISCOVERY:

Modes of Discovery allowed by the Rules:

1. Depositions

2. Written interrogatories of the parties

3. Admissions of the adverse party

4. Production or inspection of document or things

5. Motion for physical and mental examination of persons

Two Kinds of Depositions:

1. Oral examination

2. Written Interrogatories – different from two above

Motions:  Don’t forget:

Notice, signatures

Request for admission, questions are answerable by yes or no

Attach receipt of registered mail in the pleading to be sent to the court.

Purpose for suppression of evidence – based on form.

Purpose of provisional remedies – to prevent judgment from being useless, judgment can be satisfied

DISCOVERY                                                PROVISIONAL

PURPOSE      to discover evidence                           prevent judgment from being ineffective

NATURE        ancilliary                                              ancilliary

-may be extrajudicial   -should be applied for before the court where the action is pending

MODES          1. Deposition                                       1. Preliminary attachment; pending appeal                            2. Written Interrogatories                                   2. Preliminary injunction

3. Admission of adverse party                        3. Receivership – pending appeal

4. Production/Inspection of Doc.                   4. Replevin

5. Physical & mental examination                   5. Support pendente lite – pending appeal

 

Reference:  University of the Philippines

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About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on December 18, 2011, in Civil Procedure and tagged . Bookmark the permalink. Leave a comment.

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