Notes on modes of discovery


The rules providing for pre-trial discovery of testimony, pre-trial inspection of documentary evidence and other tangible things, and the examination of property and person, was an important innovation in the rules of procedure. The promulgation of this group of rules satisfied the long-felt need for a legal machinery in the courts to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis in preparation for trial (Fortune Corporation vs. Court of Appeals, G.R. No. 108119, January 19, 1994, 229 SCRA 355). The Circular on the Conduct of Pre-Trial and Use of Deposition-Discovery Measures now requires the court to issue an order requiring the parties to avail of the Modes of Discovery (A.M. 03-1-09-SC, which took effect on August 16, 2004; See also Rule 18).

What are the purposes of modes of discovery?

[1] As a device, along with the pre-trial hearing under Rule 18, to narrow and clarify the basis issues between the parties;

[2] As a device for ascertaining the facts relative to those issues. 

The time-honored cry of ‘fishing expedition’ can no longer provide a reason to prevent a party from inquiring into the facts underlying the opposing party’s case through the discovery procedures. In Republic v. Sandiganbayan (G.R. No. 90478,November 21, 1991, 204 SCRA 212, 200) it was held:

. . . 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 (Ong v. Mazo, G.R. No. 145542, June 4, 2004, 431 SCRA 56, 63).

The rules on discovery are intended to (a) enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through deposition; (b) obtain knowledge of material facts or admissions from the adverse party through written interrogatories; (c) obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admission; (d) inspect relevant documents or objects and lands or other property in the possession or control of the adverse party; and (e) determine the physical or mental condition of a party when such is in controversy. This mutual discovery enables a party to discover the evidence of the adverse party and thus facilitates an amicable settlement or expedites the trial of the case. All parties are required to lay their cards on the table so that justice can be rendered on the merits of the case.

What is the importance of modes of discovery?

Justice, later on Chief Justice, Andres Narvasa lamented that among far too many lawyers (and not a few judges), there are, if not a regrettable unfamiliarity and even outright ignorance about the nature, purpose, 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 (Republic vs. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212, 200).

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, . . .; 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’ (Marcelo vs. Sandiganbayan, G.R. No. 156605, August 28, 2007).
When do modes of discovery apply?

The application of the rules on modes of discovery rests upon the sound discretion of the court. In the same vein, the determination of the sanction to be imposed upon a party who fails to comply with the modes of discovery rests on the same sound judicial discretion. It is the duty of the courts to examine thoroughly the circumstances of each case and to determine the applicability of the modes of discovery,bearing always in mind the aim to attain an expeditious administration of justice (Lanada vs. CA, G.R. No. 102390, February 1, 2002, 375 SCRA 543;; Limos vs. Spouses Odones, G.R. No. 186979, August 11, 2010)

What are the scope and purpose of discovery procedure?


Evidentiary matters may be inquired into.

What are the different modes of discovery under the Rules of Court?

[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)
[6] Physical and mental examination of persons (Rule 28)

Modes of discovery, cumulative.

The fact that a party has resorted to a particular method of discovery will not bar subsequent use of other discovery devices. 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 (Fortune Corporation vs. Court of Appeals, G.R. No. 108119, January 19, 1994, 229 SCRA 355).

Discovery modes, still available even if motion for bill of particulars denied.

That the matters on which discovery is desired are the same matters subject of a prior motion for bill of particulars denied for lack of merit is beside the point. Indeed xxx a bill of particulars may elicit only ultimate facts, not so called evidentiary facts. The latter are without a doubt proper subject of discovery (Republic vs. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212).

Limitations of modes of discovery

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, embarrass, or oppress the person subject to the inquiry (See Secs. 16 and 18, Rule 23).

And further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.

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 (Republic v. Sandiganbayan, G.R. No. 90478, November 21, 1991, 204 SCRA 212).

While there are limitations to the rules of discovery, even when permitted to be undertaken without leave and without judicial intervention, such 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, embarrass, or oppress the person subject to the inquiry; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege (San Luis vs. Rojas, G.R. No. 159127, March 3, 2008).

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