Q: How is deposition in oral examination taken?
A: It must be under oath. The testimony will be taken by the stenographer.
And objections must be recorded. Evidence objected to shall be taken subject
to the objections.
Q: Can the deposition officer make a ruling on the objection/s?
A: NO. He cannot. But the objection will be noted and the deponent must
answer. Later on, if that deposition is offered as evidence in court, the court
will now rule on the objection. If the objection is overruled, the answer as
recorded remains. If the objection is sustained, the answer as recorded is
erased as if it was never answered. That is the meaning of “evidence
objected to shall be taken subject to the objections.”
So, the deposition officer cannot make a ruling on the objection. It is only the
judge of the court where the case is pending who will make the ruling on it.
Take note that answers to depositions not objected to cannot be objected to
in court during the trial, UNLESS the objection is based on a new ground
which only come up after the deposition.
Sec. 19. Submission to witness; changes; signing. When the testimony is
fully transcribed, the deposition shall be submitted to the witness
for examination and shall be read to or by him, unless such
examination and reading are waived by the witness and by the
parties. Any changes in form or substance which the witness desires
to make shall be entered upon the deposition by the officer with a
statement of the reasons given by the witness for making them. The
deposition shall then be signed by the witness, unless the parties by
stipulation waive the signing or the witness is ill or cannot be found
or refuses to sign. If the deposition is not signed by the witness, the
officer shall sign it and state on the record the fact of the waiver or
of the illness or absence of the witness or the fact of the refusal to
sign together with the reason given therefor, if any, and the
deposition may then be used as fully as though signed, unless on a
motion to suppress under section 29 (f) of this Rule, the court holds
that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part. (19a, R24)
So after the deposition of the deponent is taken, the deposition officer shall
submit the deposition to the deponent for examination. He may change his
answers but he must state the reason for the change. And he signs it, unless
the parties by stipulation waive the signing, or the witness is ill, or cannot be
found or refuses to sign. In the latter cases, the deposition will be signed by
the deposition officer.
Sec. 20. Certification and filing by officer. The officer shall certify on the
deposition that the witness was duly sworn to by him and that the
deposition is a true record of the testimony given by the witness. He
shall then securely seal the deposition in an envelope indorsed with
the title of the action and marked "Deposition of (here insert the
name of witness)" and shall promptly file it with the court in which
the action is pending or send it by registered mail to the clerk
thereof for filing. (20, R24)
Sec. 21. Notice of filing. The officer taking the deposition shall give
prompt notice of its filing to all the parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of reasonable charges
therefor, the officer shall furnish a copy of the deposition to any
party or to the deponent. (22, R24)
Any party can ask for a copy of the deposition upon payment of reasonable
charges therefor.
Sec. 23. Failure to attend of party giving notice. If the party giving the
notice of the taking of a deposition fails to attend and proceed
therewith and another attends in person or by counsel pursuant to
the notice, the court may order the party giving the notice to pay
such other party the amount of the reasonable expenses incurred by
him and his counsel in so attending, including reasonable attorney’s
fees. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of
the taking of a deposition of a witness in Davao. And he came over. But the
deposition did not proceed because the party sending the notice did not
show up. So he caused the other party a lot of inconvenience. The Manila
lawyer can file a motion in court to ask for reimbursement of all his expenses
in this case.
Sec. 24. Failure of party giving notice to serve subpoena. If the party
giving the notice of the taking of a deposition of a witness fails to
serve a subpoena upon him and the witness because of such failure
does not attend, and if another party attends in person or by
counsel because he expects the deposition of that witness to be
taken, the court may order the party giving the notice to pay to such
other party the amount of the reasonable expenses incurred by him
and his counsel in so attending, including reasonable attorney’s
fees. (24a, R24)
