FINALS from Pointers Flashcards
(112 cards)
1
Q
What is an amendment?
A
A modification or correction of an already filed pleading (such as complaint, answer or reply) in order to conform to the evidence, correct errors, or clarify allegations, subject to the rules and discretion of the court.
2
Q
How are pleadings amended? (5, 2A2C)
A
- Adding or striking out an allegation
- adding or striking out a name of any party
- correcting a mistake in the name of a party
- Correcting a mistake or inadequate allegation
- Correcting a mistaken or inadequate description in or any other aspect
3
Q
When is amendment a matter of right?
A
According to section 2 of rule 10, an amendment is a matter of right if the pleading does not require a responsive pleading.
The pleading must be done 10 calendar days after it is served.
4
Q
How many times can a pleading be amended as a matter of right?
A
If done without needing court permission, a pleading can be amended ONCE before a responsive pleading is filed.
5
Q
What is the period for filing an amendment as a matter of right?
A
It must be filed within 10 calendar days after it is served.
6
Q
When is an amended pleading done by leave of court?
A
Section 3 Rule 10 admonishes that a leave of court is required when a responsive pleading has already been served.
This rule assumes more force when the amendment is substantial, as it may be made only upon leave of court after a responsive pleading. The court exercises discretion, ensuring that amendments are not made to delay
7
Q
what is the effect if the court refuses to admit an amended pleading when its exercise is a matter of right?
A
This my be correctible by mandamus because the duty to admit an amended complaint as a matter of right is purely minesterial
8
Q
What is the effect of amendment on original pleading
A
- Once amended, the original pleading is deemed abandoned
- Only the amended pleading governs the trial
Legal Basis: An amended pleading supersedes the original one which it amends
9
Q
What is the effect of amendment on admissions in original pleadings?
A
- Can still be used as evidence against the pleader
- No longer judicial admissions
- Now considered as extrajudicial admissons
- Must be formally offered in evidence to have legal effect
10
Q
What is the effect of amendment on superseded pleadings:
A
- These disappear from the record
- Lose status as pleadings
- Claims/defenses not repleaded are deemed waived
Still usable if formally offered as extrajudicial admissions
11
Q
What are supplemental pleadings
A
Section 6 Rule 10 divulges that these are pleadings filed to allege matters that arose after the original pleading.
12
Q
Is leave of court required for supplemental pleadings?
A
Yes, leave of court is required for supplemental pleadings, and motion must also be filed with notice to all parties.
It does not amend the original complaint-it supplements it
13
Q
What is the difference between amendment and supplemental pleadings?
A
An amendment supersedes the original pleading while supplemental pleading does not replace the original complaint but merely supplements it.
14
Q
What are the requisites for a supplemental pleading?
A
- The Cause of Action must be related to that in the original pleading (Asset Privatization Trust v. CA)
- New facts must be germane and connected to the original issues (Chan v Chan)
15
Q
Is an answer mandatory for a supplemental pleading?
A
An answer is not mandatory. If no new answer is filed, the answer to the original pleading serves as the answer to the supplemental one.
Section 7, or Rule 11 governs the conditions should the party file an answer to supplemental pleadings. The answer must be filed within 20 calendar days from notice of the order admitting the supplemental pleading.
16
Q
What are pleadings?
A
Rule 6 of the Rules of Court defines pleadings as the written statements of the respective claims and defenses of the parties submitted for the court for trial and judgement.
Pleadings are initiated to enable the court to know and understand the issues in a case and to help ensure that the parties are put on notice of the claims and defenses being raised.
17
Q
What are motions?
A
Rule 15 governs motions.
A motion is an application for relief other than by a pleading.
Unlike pleadings which assert claims/defenses, motions are procedural devices used to request the court to rule or act on certain issues incidental to the main case.
18
Q
What is the difference between a motion and a pleading?
A
Pleadings are used to articulate the legal and factual claims or defenses, shaping the ultimate controversy to be decided by the court, while motions request a SPECIFIC JUDICIAL RELIEF OR RULING on a procedural aspect, during the pendency of a case, but do not themselves frame the primary claims or defenses.
19
Q
What do pleadings contain? NTDDSR
A
Rule 7 requires pleadings to contain (NTDDSF)
1. the name of the court
2. Title of the Action
3. Docket number (when assigned)
4. Designation of the pleading
5. Statement of the cause of action or defense
6. Relief prayed for.
20
Q
What are the contents of a motion?
A
Enclosed in Rule 15, motions must be:
1. in writing (except for those made in open court or in the court of a hearing or trial)
2. specify the grounds
3. set forth the relief sought
4. Conform to the formal requirements under the Rules, including notice of hearing (with certain exceptions under the 2019 amendments)
21
Q
What are non-litigious motions?
A
Non-litigious motions are governed by Rule 15 Section 4.
Accordingly, these do not require a hearing and the court may act upon these motions without waiting for a comment or opposition from the other party (though in practice, courts may still require service and an opportunity to comment in some scenarios)
22
Q
What are litigious motions?
A
Litigious motions according to Rule 15, section 5 require:
1. a written motion stating the grounds and the relief sought
2. Notice of hearing (date and time) to all parties
3. proof of service
4. an opportunity for the opposing party(ies) to file a comment or opposition.
23
Q
what are the common examples of non-litigious motions?
A
- Motion for issuance of an alias summons
- motion for extension to file an answer
- motion for postponement
- motion for the issuance of a writ of execution
- Certain ex-parte or urgent motions that the court may resolve without any hearing.
24
Q
What are examples of litigious motions?
A
- motion to dismiss (except if filed under rule 6)
- Motion for reconsideration
- Motion for new trial
- Motion for summary judgement
- Motion for execution pending an appeal
- Motion to declare defendant in default (if not resolved ex parte)
- Motion to quash service of summons
- Other motions that involve contentious issues and require parties’ positions to be heard.
25
What are prohibited motions?
Under rule 15 of the Rules of Court (2019, Amendments)
1. Motion to dismiss (with exceptions)
2. Motion to hear affirmative defenses
3. motion for reconsideration of the court's action on AFFIRMATIVE defenses
4. Motion to suspend proceedings without a temporary restraining order (TRO) or injunction
5. Motion for extension of time (EXCEPT: motion to file an answer, cannot exceed 30 calendar days)
6. Other motions of similar nature intended for delay.
26
What are prohibited pleadings and motions in procedure for small claims?
Rules of Procedure on Small Claims Section 15
1. Motion to dismiss
2. Motion for bill of particulars
3. Motion for new trial, or for reconsideration of a judgment, or reopening of trial
4. Petition for relief from judgment
5. Motion for extension
6. memoranda
7. petition for certiorary, mandamus or prohibition
8. motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply and rejoinder
11. third party complaints
12. Interventions
27
What are prohibited motions and pleadings in the expedited rules?
Rule 2 of the Rules on Expedited procedures declare the following as prohibited motions and pleadings
1. Motion to dismiss
2. Motion to hear and/or resolve affirmative defenses;
3. Motion for bill of particulars
4. Motion for New trial, reconsideration and judgement on merits or for reopening of proceedings
5. Petition for relief from judgement;
Motion for Extension
6. Memoranda
7. Motion to declare the defendant in default
8. Dilatory motions for Postponement
9. Rejoinder
10. third-party complaints
11. Motion for and complaint in intervention
12. Motion to admit late judicial affidavits/position papers, or other evidence
13. motion for judicial determination of probable cause in criminal case
28
What is res judicata in the cause of action or bar by prior judgement?
Recognized under Section 47 rule 39 of the Rules of Court, bar by prior judgement/res judicata in the cause of action constitutes an absolute bar to a subsequent action involving:
1. the same parties (or their successors-in-interest)
2. The same subject matter; and
3. The same cause of action
This means that once the court had conclusively decided a cause of action, the losing party cannot bring another suit on the same cause of action, for the same relief, against the same party.
This principle is designed to ensure finality of litigation and stability in legal relations.
29
What are the requisites of Bar by Prior judgement?
All the elements must concur:
1. Finality of judgement
2. Court must be of competent jurisdiction
3. Judgement must have resolved the controversy based on merits
4. The same parties must be involved in both suits
5. The subject matter in both suits must be the same
6. The cause of action (or claims) asserted in the prior action must be identical to that in the second action.
30
What is the effect of bar by prior judgement
When a second action is barred by prior judgement, the effect is to prevent litigation of the entire cause of action again, specifically:
1. Extinguishment of the Claim
2. Prevents Re-litigation
3. The rights and obligations adjudged in the prior case become binding and conclusive with that cause of action, as between the same parties (or their privies)
31
What is the difference between Bar by prior judgement and conclusiveness of judgement
Bar by prior judgement precludes the filing of a subsequent action altogether when all four requisites concur, while conclusiveness of judgement only applies where the second action is based on a different cause of action from that in the first.
Bar by prior judgement also bars the ENTIRE cause of action, including all issues that were raised or could have been raised in the first suit, while in conclusiveness of judgement, the issues adjudicated in the first case cannot be litigated anew, even if presented under a different cause of action.
In summary, bar by prior judgement forecloses a second suit on the same cause of action, while conclusiveness of a judgement only binds the parties as to the issues actually litigated and decided in a prior case, even if the second suit is different.
32
What is dismissal of actions?
Dismissal of actions is governed by rule 17 of the rules of court providing mechanisms for both voluntary (plaintiff-initiated) and involuntary (court-imposed due to plaintiff's fault) dismissals
33
When can a plaintiff file a notice of dismissal?
Section 1 Rule 17 establishes that the plaintiff may file a notice of dismissal at any time before the service of an answer or a motion for summary judgement by the adverse party.
This does not require court approval id done within the stated time-frame
34
Effect of Dismissal upon notice by plaintiff
GR: Dismissal without prejudice to the plaintiff's right to refile the case
E: Two-dismissal rule: If the plaintiff has previously dismissed the same claim in another court or the same court, the second dismissal operates via notice as an adjudication on the merits.
Thus, under the two-dismissal rule, once the same claim is dismissed by way of notice, the plaintiff is forever barred from refiling that claim.
35
Conditions for the application of the two-dismissal rule
In heirs of Arcadio Castro v Lozada the following conditions for the application of the two-dismissal rule was emphasized:
1. The same parties must be involved
2. Same cause of action must have been dismissed twice
3. Both dismissals must have been made by notice (rule 17, sec. 1) and not by court-approved motion
36
Exceptions to the two-dismissal rule
1. If the first dismissal was without prejudice
2. If the second dismissal was by court order (Rule 7, Section 2), the two-dismissal rule does not apply
37
Effect of motion to dismiss
GR: the dismissal is without prejudice, unless the court's order states otherwise. The court may impose conditions or terms to ensure fairness to the defendant, especially if the defendant has already incurred substantial expenses.
37
When is a dismissal upon motion by plaintiff done?
Section 2 or Rule 17 governs dismissal y motion.
If an answer or motion for summary judgment has already been served by the defendant, the plaintiff must move for dismissal by filing a motion in court.
The dismissal is not a matter of right; it is subject to the approval of the court and usually upon just and equitable terms the court may impose
37
Is court approval required in motion to dismiss?
Unlike Section 1 of Rule 17, Section 2 requires court dismissal after an answer or motion for summary judgement.
The court must consider whether the dismissal would cause prejudice to the defendant before granting it.
37
Is dismissal under section 2, always counted for 2-dismissal rule?
No, it does not automatically count within the said rule if the original dismissal was under section 1. Although courts have nuanced interpretations depending on the exact nature of dismissals.
38
Grounds for dismissal due to fault of plaintiff
This type of dismissal is governed by Section 3 of Rule 17 of the Rules of Court.
The court may motu proprio or upon a defendant's motion, dismiss an action based on the plaintiff's fault including: (PCA)
1. Failure to Prosecute for an unreasonable length of time
2. Failure to comply with Rules of Court or any order of the court
3. Failure to appear on the date of the presentation of evidence or at pre-trial, in certain circumstances
39
Effect of dismissal due to fault of plaintiff
Generally, it will operate as an adjudication on the merits unless the court expressly provides otherwise.
This type of dismissal bars the plaintiff from refiling the same claim, given that it is equivalent to FINAL ADJUDICATION.
40
What is a subpoena?
Rule 21 defines the specifics of a subpoena.
This is a legal document issued by a court or a legal authority, compelling an individual to appear in court or to produce documents relevant to a case.
41
Types of subpoenas
1. Subpoena ad testificandum
- requires a person to testify before a court or other legal authority
2. subpoena duces tecum
- Compels a person to produce documents or other pieces of evidence
42
Subpoena vs Summons
A summons is used to acquire jurisdiction over the person of the defendant, while subpoenas are orders compelling a person's presence before a court to testify as witness or to produce documentary evidence.
43
Contents and Validity of a Subpoena ad testificandum
1. Name of the court or issuing authority
2. Title of the proceeding and its docket number
3. Specific action required of the recipient
4. Date, time and place of compliance
4. Signature of the judge, clerk of court, or authorized official.
44
Subpoenas in criminal vs. civil cases
In criminal cases, the prosecution has the burden of securing compliance to ensure the accused's right to a fair trial
45
Contents of a subpoena duces tecum
1. Adequately describe the documents/things to be produced
2. Show materiality/relevance of those documents/things to the issues of the case;
3. Not be unreasonable or oppressive in scope.
46
What is pre-trial
Enclosed in Rule 18 of the Rules of Court, Pre-trial is a conference held after the filing of the last pleading but prior to trial, wherein the parties and the court take active steps to:
a.) Consider the possibility of amicable settlement or alternative dispute resolution (ADR)
b.) Define and simplify the issues;
c.) Consider the propriety of the application of the rules on early neutral evaluation; and
d.) achieve other objectives such as expiditious trial.
47
Is pre-trial mandatory?
Yes, pre-trial is mandatory in civil cases.
According to section 2 of Rule 18, the court shall set the case for pre-trial after the issues have been joined after the filing of the last responsive pleading.
It also dictates that it should be terminated promptly
48
What are the purposes of a pre-trial?
As enumerated in section 2, rule 18 of the rules of court, the following are the purposes of a pre-trial
1.) The possibility of an AMICABLE SETTLEMENT or of a SUBMISSION to alternative modes of dispute resolution;
2.) Simplification of the issues;
3.)Possibility of obtaining stipulations or admissions of facts arid of documents to avoid unnecessary proof;
4.Limitation of the number and identification of witness and the setting of trial dates;
5. Advisability of a preliminary reference of issues to a commissioner;
6. The propriety of rendering judgment on the pleadings, or summary judgment or of dismissing the action should a valid ground therefor be found to exist;
49
When is a notice for pre-trial set?
Sections 1 to 3 of Rule 18 governs the notice and conduct of pre trial.
Accordingly, dates for pre-trial is conducted within five (5) calendar days from filing of the last responsive pleading.
A pre-trial conference on the other hand is set not later than 60 calendar days form the filing of the last responsive pleading.
50
Who issues notice of pre-trial?
The branch clerk of court may issue said notice
51
Contents of a notice of pre-trial
1. Date and time of the place of pre-trial;
2.) Court-Annexed mediation
3.) Judicial Dispute Resolution (if necessary)
52
Contents of a pre-trial brief for the plaintiff
As per section 6 rule 18: (CSMPDNB)
(a) A concise statement of the case and the reliefs prayed for;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The main factual and legal issues to be tried or resolved;
(d) The propriety of referral of factual issues to commissioners;
(e) The documents or other object evidence to be marked, stating the purpose thereof;
(f) The names of the witnesses and the summary of their respective testimonies; and
(g) A brief statement of points of law and citation of authorities.
53
Effect of non-filing of pre-trial brief
Section 6 of Rule 18 provides that it failure to file pre-trial brief has the same effect as failure to appear at the pre-trial.
Hence, if the party who failed to file a pre-trial brief is the plaintiff, then he/she may be declared non-suited, and their case may be dismissed.
54
Effect if defendant fails to file pre-trial brief
The plaintiff may be allowed to present his evidence ex parte and the court may render judgment on the basis thereof.
55
When should a pre-trial brief be filed?
At least 3 calendar days before the date of the pre-trial
56
Contents of a pre-trial order
a.) enumeration of the admitted facts;
b.) Minutes of the pre-trial conference;
c.) legal and factual issue/s to be tried;
d.) applicable law rules, and jurisprudence;
e.) Evidence marked;
f.) specific trial dates for continuous trial, which shall be within the period specified by the rules;
g.) Case flowchart to be determined by the court (contains the different stages of the proceedings up to the promulgation of the decision and the use of time frames for each stage in setting the trial dates;
h.) Statement that one-day examination of witness rule and most important witness rule shall be strictly followed;
i.) Statement that the court shall render judgement on the pleadings or summary judgment as the case may be
57
Who should appear in pre-trial proeceedings?
Both parties must be present or at least be represented by an individual fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and documents.
58
Effect of non-appearance of plaintiff without just cause
Rule 18 presents that this may result in the dismissal of the case, with prejudice, unless otherwise ordered by the court.
The plaintiff also cannot re-file the same action or cause, except for lawful exceptions such as extraordinary circumstances recognized by jurisprudence.
59
Effect of non-appearance of defendant without just cause
It would allow the plaintiff to proceed to ex parte presentation of evidence within ten (10) calendar days from termination of the pre-trial and the court to render judgment on the basis thereof
60
Excusable reasons for non-appearance in pre-trial (GFD)
GFD
1. Acts of God
2. Force Majeure
3. Duly substantiated physical inability
61
Can parties be declared in default for non-appearance?
The current rules no longer use the phrase "as in default," but they retain the effects of a default judgment. According to the Supreme Court E-Library, Section 4 of Rule 18 still requires parties and their counsel to appear at the pre-trial. Section 5 of the same rule specifies the consequences of non-appearance.
Consequences of non-appearance:
For the plaintiff: Failure to appear can result in dismissal of the case, with or without prejudice.
For the defendant: Failure to appear can allow the plaintiff to present their evidence ex parte (without opposition), and the court can render judgment based on that evidence.
62
Pre-trial in civil vs criminal cases.
1. Pre-trial in civil cases is mandatory while it is also mandatory in criminal cases after arraignment.
2. Non-appearance may be grounds for dismissal of the case with prejudice for plaintiff while ex parte reception of evidence will be allowed for the defendant's absence
In criminal cases, non-appearance would lead to forfeiture or bail, possible issuance of warrant should the accused be absent.
The prosecutor's absence on the other hand may lead to his potential dismissal for failure to prosecute.
3. In civil cases, admissions and stipulations need not be signed by both parties and typically less stringent formalities, but must be in writing and/or recorded in the pre-trial order
In criminal cases, the accused's admissions or stipulations must be voluntary, in writing and signed by both accused and counsel to protect constitutional rights
4. Lastly, a pre-trial brief is specifically required in civil cases but not in criminal cases.
63
Purpose of discovery
Permit mutual knowledge before trial of all relevant facts gathered by both parties so that either may compel the other to disgorge facts whatever he has in his possession.
64
6 Modes of Discovery (Rules 24-28)
1. Depositions Pending action (Rule 23)
2. Depositions before action or pending appeal (Rule 24)
3. Interrogatories (Rule 25)
4. Admission by adverse party (Rule 26)
5. Production or inspection of documents of things (Rule 27)
6. Physical and mental examination of persons (Rule 28)
65
Define Deposition
The provisions on Depositions pending action is enclosed in Rules 23 and 24 of the rules of court.
Deposition de benne esse is for deposition used during trial
Deposition in perpetuam rei memoriam is used to perpetuate a testimony for use in future proceedings, as when it is sought before the existence of an action, or for cases on appeal.
66
Term used to refer to the person whos testimony is to be taken
Deponent
67
Scope for examination for deposition
He may be examined regarding any matter which is relevant to the subject of the pending action as long as the subject of the matter does not involve matters that are privileged
He may also be asked about the existence, description, nature, custody, condition and location of any books or documents or other tangible things.
He may also be asked to answer questions as to the identity and location of persons having knowledge of facts relevant to the case.
68
Two modes of taking deposition
Oral Examination and Written interrogatory
69
May the deponent be cross-examined during a deposition?
During the deposition, the deponent may be examined and cross-examined following the rules on examination of witnesses.
70
Where can depositions be used?
Any or all part of the deposition, so far as admissible under the rules on evidence, may be used:
a.) Against any party who was present or represented at the taking of the deposition;
b.) against one who had due notice of the depositionrp
71
Purpose of depositions
a. contradicting or impeaching the testimony of the deponent as a witness;
b. any purpose by the adverse party where the deponent is a party or at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, association which is a party;
c. For any purpose by any party where the deponent is a witness
d. If only part of a deposition is offered in evidence by a party
72
How to compel the attendance of deponents/witnesses
The attendance of witnesses to be examined may be compelled by the used of a subpoena.
Failure to obey a subpoena, without justifiable cause, shall be deemed a contempt of the court.
The party or deponent who refuses to answer a question, after being ordered to do so by the court, may be held in contempt of court.
73
Effect of substitution of parties in Rule 23 or deposition pending action
It does not affect the right to use depositions previously taken.
This means that the depositions taken in an action which has been dismissed can be used in another action involving the same subject and parties, as if originally taken in the said proceedings.
74
Effect of taking deposition of a person
”A party shall not be deemed to make a person his or her witness for any purpose by taking his or her deposition (Sec. 7 of Rule 23).”
In short, a person cannot be used as witness by taking his deposition.
75
Effect of using the deposition of a person
Taking the deposition does not make the deponent a witness, but using any or all parts of his deposition makes him a witness IF used for a purpose other than that of contradicting or impeaching the deponent. (Section 4, Rule 23)
76
Who can take a deposition in the philippines?
1. No need before a judge, but can be or;
2. Notary public or
3. Any person authorized to administer oaths id the parties stipulate it in writing
77
Who can take a deposition outside the Philippines
1. Secretary of an embassy or legation, consul general, consul, vice-sonsul or consular agent of the republic
2. person or officer appointed by commission of letters rogatory
3. a person authorized to administer oaths by written stipulation of the parties
78
Prohibited persons to take a deposition
1. relative within 6th degree of consanguinity, employee or counsel of any of the parties
2. relative within the same degree or employee of such counsel
3. one financially interested in the action
79
What is a deposition before action or pending appeal?
Provided for in Rule 24 of the Rules of Court, a deposition before action is availed of when a person wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines.
80
How are depositions before action done?
It is done by filing a verified petition in the place of the residence of any expected adverse party.
81
What is the effect of taking depositions before an action?
Depositions under this Rule is admissible as evidence in any action subsequently brought involving the same subject matter.
82
What are depositions pending appeal?
If an appeal has been taken from a judgment of court or before the taking of an appeal if the time thereof has not expired, the court in which the judgment was rendered may allow the taking od depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in said court.
83
What should a motion for deposition with leave of court contain?
a. names and addresses of the persons to be examined
b. substance of the testimony he or she expects to elicit from each of the persons to be examined
c. reason for perpetuating their testimony
84
What is an oral deposition?
An oral deposition as per rule 23, an oral deposition is taken upon oral examination.
85
Is a notice needed for oral deposition
Yes, a reasonable notice should be given to the party in writing containing:
1.) time and place for taking the deposition
2.) The name and address of each person to be examined (if not known, there must be general description sufficient to identify him/her or the particular class or group to which he or she belongs)
After service of the notice, the court, upon motion by any party or by the person to be examined and for good cause, shown, issue an order for the protection of the parties and the deponent.
86
Who can conduct an oral deposition?
Under Section 7 of Rule 23, the officer before whom the deposition is taken shall put the witness on oath; he/she will also personally or in his presence, record the testimony of the witness or the recording may be done by someone acting under his/her direction.
87
What are the requirements when taking an oral deposition
1. must be recorded and taken stereographically, unless parties agree otherwise;
2. All objections shall be noted and evidence objected to shall be taken but subejct to the objections
88
Deposition upon written interrogatories
This may be availed of by a party to the action for the purpose of eliciting material and relevant facts from any adverse party.
The purpose of written interrogatories is to assist the parties in clarifying the issues and in ascertaining the facts involved in a case.
89
differentiate bill of particulars from interrogatories
BoP are directed to a pleading and designed to seek for a more definite statement or for particulars of any matter not averred with sufficient definiteness in a pleading while interrogatories are not directed against a particular pleading, instead, they SEEK THE DICLOSURE OF ALL MATERIAL AND RELEVANT FACTS FROM A PARTY.
Aside from this, interrogatories are also post-pleadings discoveries, that extract information directly from a party.
90
How are interrogatories different from depositions?
Interrogatories are written Q and A's while depositions are oral testimonies recorded verbatim.
No live follow-ups are allowed in interrogatories while depositions allow for interactivity.
91
Difference between Interrogatories to parties v Written interrogatories in Deposition (Rule 25 vs. Rule 23)
Rule 25 or interrogatories to Parties is directly received by the adverse party while written interrogatories in Deposition or Rule 23 is received by the court officer overseeing the deposition.
Rule 25 only applies to the parties to the case while Rule 23 applies to any person whether or not they are parties to the case.
In terms of purpose, interrogatories to parties are used to clarify facts from the opposing party while depositions are used to preserve testimony for trial.
92
What is the effect of failure to serve written interrogatories
A party not served with written interrogatories may not compelled by the adverse party to give testimony in open court, or give deposition pending appeal, unless allowed by the court for good cause shown and to prevent failure of justice
93
What is a request for admission?
In Rule 26, a party may file and serve the written request at any time after issues have been joined.
the purpose of this mode of discovery is to allow one party to request the adverse party, in writing, to admit certain material and relevant matters, which, most likely, will not be disputed during the trialW
94
What is requested in a request for admission?
1. Admission of the genuineness of any material and relevant document described in and exhibited with request or
2. Admit the truth of any material and relevant matter of fact set forth in the request
95
Consequence of Failure to answer request for admission
For the party requested: each of the matters of which an admission is requested shall be deemed admitte
96
Can a request for admission be the basis of a summary judgment?
Yes, when its subject is deemed to have been admitted by the party as a result of that party's failure to respond to the request
97
Production and Inspection of Documents or Things
According to Rule 27, the purpose of this mode of discovery is to allow a party to seek an order from the court in which the action is pending to:
1. order the party to produce and permit the inspection and copying or photography...
2. Order any party to permit entry upon designated land or other property in his/her possession or control for the purpose of inspecting, measuring, surveying...
98
Limitation on documents requested to be produced in Rule 27
The documents to be disclosed must not be privileged (those protected from mandatory disclosure during discovery or trial)
99
Examples of privileged communication
a. communication between husband and wife
b. communication between attorney and client
c. communication between physician and patient
d. communication between priest and penitent
e. communication of public officers involving public interest
100
Applicability of physical and mental examination of witnesses (Rule 28)
This mode of discovery applies in an action where the mental or physical condition of a party is in controversy.
101
Examples of actions where Rule 28 may be applicable
a. An action for annulment of a contract where the ground relied upon is insanity.
b. A petition for guardianship of a person alleged to be insane.
c. An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.
102
Refusal to comply with modes of discovery
Rule 29 provides for the consequences in refusal to comply with modes of discovery.
103
Refusal to Answer any Question Upon Oral Examination
a. Proponent may apply to the proper court for an order to compel an answer
b. If refusal is unjustified, court may request deponent to pay the proponent the amount of the reasonable expenses incurred in obtaining the order including attorney's fees
c. contempt of court
d. if justification is substantial: proponent/advising counsel/both to pay the deponent the amount of reasonable expenses incurred in opposing the application including attorney's fees
104
Refusal to Answer Designated or Particular Questions or Refusal to Produce Documents or Things or to Submit to Physical or Mental Examination
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The court may order that the matters, regarding which the questions were asked, shall be taken as established for purposes of the of the action in accordance with the claim of the party obtaining them.
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The court may issue an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him or her from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition.
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The court may issue 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.
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The court may direct the arrest of any party or agent of a party for disobeying any of the orders of the court, except an order to submit to a physical or mental examination.
105
Refusal to be Sworn
contempt of that court.
106
Refusal to Admit
IF, refuses to admit and the other party later proves the genuiness of the documents, the court may order the former to pay the reasonable expenses in making such proof, including attorney's fees
107
Failure to Attend Depositions of to Serve Answers to Interrogatories
If a party refuses to answer the whole set of written interrogatories, and not just a particular question, the court may:
a. Strike out all or any part of the pleading of that party
b. Dismiss the action or proceeding or any part thereof
c. Enter a judgment by default against that party
d. In its discretion, order him or her to pay reasonable expenses incurred by the other including attorney’s fees
108
What can the court do if a party refuses to answer a particular question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order
a. striking out pleadings or parts thereof
b. staying further proceedings until the order is obeyed
c. dismissing the action or proceeding or any part thereof
d. rendering a judgment by default against the disobedient party
109
What is a judgment
it is the final ruling by a court of competent jurisdiction regarding the rights or other matters submitted to it in an action or proceeding.
It is also termed as the court's official and final consideration and determination of the respective rights and obligations of the parties
