Taking of deposition vs. Use of deposition

 Posted By: je froilan m. clerigo
20-Nov-2007

 

 

 

Is the use of a deposition a matter of right? After the answer to the complaint is served, yes it seems to be so, because, if we read Rule 23, deposition can be taken even without leave of court. Cases decided by the Supreme Court seem to say that, because there is no need for leave of court, it is the intent of the rules to make deposition-taking a process without court intervention.

How to use this right? We give notice to the other party, stating the time and place for taking the deposition, and the names and addresses of the persons to be deposed.

What if the deponent does not appear? Rule 23 says witnesses may be compelled to attend by a subpoena "as provided in Rule 21." Section 5 of Rule 21, in turn, says that if we present the notice of taking of deposition, the proof of service will "constitute sufficient authorization" for the issuance of subpoenas for the persons named in the notice.

So that time is not wasted, what we do in practice is to send out the notice for deposition, have them received, and then file with the court a motion for subpoena, attaching the proof of service of the notice.

That's clear enough, ain't it? Nope. In one case, our motion for subpoena was denied because we, as the applicant, did not show ground why the deposition should be taken. The court said there is no need for the deposition because we could choose to present the supposed deponent as an adverse witness, anyway. But, we thought that the deposition was a matter of right, so that we need not justify it; that the one who should justify why it should not be taken was the oppositor? That's correct; but the court is not denying our right to take the deposition, what it is denying is our motion for the subpoena.

What the…?!