EFFECTIVE USE OF MODES OF DISCOVERY By: Atty. Rogelio A. Vinluan.

EFFECTIVE USE OF MODES OF DISCOVERY

By: Atty. Rogelio A. Vinluan

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A. Introduction

“x x x Now, it appears to the Court that among far too many lawyers (and not a few judges), there is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and operations 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. x x x.”

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To compel or prod lawyers to avail of modes of discovery, the 1997 amendments to the rules of civil procedure have now imposed sanctions for failure to avail of some of them.

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Thus, if you fail to take advantage of the discovery tool allowed by Rule 25 which relates to service of written interrogatories on the adverse party, the latter may not be compelled to give testimony in open court or to give a deposition pending appeal.

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Also, if you fail to serve upon the opposing party a written request for the admission by the latter of the genuineness of any material and relevant document or of the truth of any material and relevant matter of fact, you will not be permitted to present evidence on such facts during the trial unless allowed by the court “for good cause shown and to prevent a failure of justice”.

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The primary purpose of discovery procedures is to enable the litigants to obtain a more informed picture of the facts of the case more quickly and at less expense than they could by relying on their own unaided initiative.

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Otherwise stated, the underlying goal of the discovery rules is to cause disclosure of relevant information before trial in order to render the judicial process more accurate and fair.

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As stated in a landmark California case:

[D]iscovery tends to “make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent”.

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That a party is engaged in a “fishing expedition” is not a defense or a bar to discovery.

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In Hickman v. Taylor, the U.S. Supreme Co urt pointedly stated:

No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.

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In Republic v. Sandiganbayan, our Supreme Court explained the elemental purpose of the discovery procedure as follows:

The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing under Rule 20, 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 the fullest possible knowledge of the issues and facts before civil trials and thus prevent that said trials are carried on in the dark.

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The principal benefits derivable from the availability and operation of a liberal discovery procedure, according to our Supreme Court, are the following:

“1. It is of great assistance in ascertaining the truth and in checking and preventing perjury. The reasons for this are:

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(a) The witness (including a party) is examined while his memory is fresh;

(b) The witness including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous. Where the examination is upon written interrogatories, however, it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare his answers in advance.

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(c) A party or witness whose deposition has been taken at an early stage in the litigation cannot, at a later date, readily manufacture testimony in contradiction to his deposition’

(d) Testimony is preserved, so that if a witness unexpectedly dies or become unavailable at the trial, his deposition is available.

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2. It is an effective means of detecting and exposing false, fraudulent, and sham claims and defenses.

3. It makes available in a simple, convenient, and often inexpensive way facts which otherwise could not have been proved, except with great difficulty and sometimes not at all.

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4. It educates the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements out of court.

5. It expedites the disposal of litigation, saves the time of the courts, and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried.

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6. It safeguards against surprise at the trial, prevents delays, and narrows and simplifies the issues to be tried, thereby expediting the trial.

7. It facilitates both the preparation and the trial of cases.”

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B. Functions of Discovery Devices

Discovery promotes or encourages settlement by increasing the quantum of information available to

the parties;

Discovery operates to isolate issues and facts over which there is no

material controversy;

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The discovery process ensures that important testimony is available at the time of trial – for example, aged, ill or

immobile witnesses may be available for discovery but not accessible later when the case goes to trial;

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Discovery presents the opportunity for skillful counsel to compel a witness to commit himself to one version of the

facts; and

Discovery presents the opportunity for observation of the demeanor,

attitudes, and responses of a witness and opposing counsel.

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C. Modes of Discovery

The various modes of discovery provided under the rules are the following:

(1) Deposition pending action under Rule 23;

(2) Interrogatories to parties under Rule 25;

(3) Request for admission under Rule 26;

(4) Motion for production or inspection under Rule 27;

(5) Physical and mental examination of persons under Rule 28.

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D.Depositions Pending Action

Rule 23 of the Rules of Court regulates the taking of depositions pending actions.

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Section 1 of said rule provides:

“Section 1. Depositions pending action, when may be taken. - By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination

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or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.”

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The scope of examination is defined by Section 2 of Rule 23, which reads:

“Section 2. Scope of examination. - Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody,

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condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.

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As provided by Section 1, a deposition may be taken “upon oral examination or written interrogatories”.

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Generally speaking, a deposition on oral examination is the most widely used, and probably the most efficient, discovery device allowed under the Rules.

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Advantages of a deposition over written interrogatories:

1. Examination by interrogatories is more cumbersome and less efficient.

2. In actual effectiveness, interrogatories are far inferior to the oral examination.

3. Depositions are preferable if a searching interrogation of the other party is desired. At a deposition, the examining party has great flexibility and can frame his questions on the basis of answers to previous questions.

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With respect to the deposition of an adverse witness, an oral deposition is far more satisfying than a deposition by written interrogatories because of your better opportunity to protect against evasive or ambiguous answers.

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The deposition of any person “whether a party or not” may be taken.

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One of the principal advantages in the use of oral depositions is the opportunity it gives counsel to ascertain the nature and extent of the deponent’s knowledge and the testimony to be expected at the trial.

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An obvious advantage of the oral deposition is that the deponent, whether witness or party, can be discredited if he attempts to deviate from his story at the trial. Also, if the deponent is unavailable to testify at the trial, the deposition serves to preserve his testimony.

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1. Use of depositions

Section 4 of Rule 23 delineates the purposes for which a deposition may be used, to wit:

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Section 4. Use of depositions. – At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

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a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness;

b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;

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c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party

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offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses only in open court, to allow the deposition to be used; and

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d) If only part of the deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

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It should be noted that a deposition may be used at the trial for two purposes: (1) as direct evidence, if the deponent is a party or an officer, director or managing agent of a juridical entity or association which is an adverse party, or if the witness is dead or resides at a distance more than one hundred kilometers from the place of trial or is out of the Philippines, or is unable to attend because of age, sickness, infirmity or imprisonment, or whose attendance cannot be procured by subpoena; and (2) to impeach a deponent if he testifies at the trial.

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2. Practice Pointers

(a) Timing of depositions. – On the timing of depositions, it is essential that you take depositions at the earliest opportunity to avoid being forced to trial before you have completed your preparations.

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(b) Demeanor of lawyer during oral depositions. – What should your demeanor be during the oral deposition of a witness you are taking? Most lawyers believe that you obtain more satisfactory depositions for discovery purposes with a friendly manner than with a hostile one.

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(c) Detail and length of depositions. – How detailed and lengthy should the deposition be? When you are taking a deposition primarily to record testimony for use as evidence during trial, in most respects you should proceed as nearly as possible in the same manner as you would in examining the witness at trial. For discovery purposes, you need a very thorough deposition. A good deposition for discovery is a thorough one.

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(d) Subject matter of deposition questions. - On the subject matter of deposition questions, if you are taking the deposition primarily for discovery purposes, you should not tie the scope and subject matter of your questions closely to your own theory of the case or to the facts as indicated by your investigation file.

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Another limitation on the subject matter of questions during depositions is that you should not ask questions disclosing impeaching evidence in your possession when advance notice to the witness would reduce the effectiveness of the impeaching evidence.

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(e) Form of deposition questions - Questions on deposition, like those during examination of a witness at trial, should be simple and clear.

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3. Sanctions for failure to attend or answer

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, the court, on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees.

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If a party or other deponent refuses to answer any question upon oral examination, after an order of the court requiring him to do so, the court, aside from requiring the deponent to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, may make such orders in regard to the refusal as are just, among which are the following: (a) an order that the matters regarding which questions were asked or any other designated facts shall be taken to be established for the purposes of the

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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; (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 the order.

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E . INTERROGATORIES TO PARTIES

Rule 25 on interrogatories to parties provides for an economical and efficient discovery tool that has three prime functions, as do depositions and requests for admission: (1) to ferret out relevant information which may constitute admissible evidence in the case or which may lead to discovery of admissible evidence; (b) to bind the answering party to the facts set forth in the response, and (c) to reduce the burden of preparing for trial by confining and narrowing the issues.

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Sections 1 and 2 of Rule 25 read as follows:

Section 1. Interrogatories to parties; service thereof. – Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.

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Section. 2. Answer to interrogatories. – The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time.

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Interrogatories may be employed before taking another party’s deposition to establish routine facts and to enable the attorney effectively to plan his deposition questioning or, after deposition, to inquire as to matters that were overlooked at the taking of the deposition or to elicit further information.

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The fact that a party has resorted to a particular method of discovery will not bar the subsequent use of other discovery devices, as long as the party is not attempting to circumvent a ruling of the court, or to harass or oppress the other party.

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As a matter of practice, it will often be desirable to resort to both interrogatories and depositions in one or the other sequence. As explained by our Supreme Court in the Fortune Corporation case:

“As a matter of practice, it will often be desirable to resort to both interrogatories and depositions in one or the other sequence. Additional lines of inquiry may come to light after the deposition has been taken, as to which written interrogatories probably would be adequate, and there is no reason why the examining

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party should not be entitled to obtain all relevant information he desires if no substantial prejudice is done to the party from whom discovery is sought. On the other hand, interrogatories may well be used as a preliminary to the taking of depositions, in order to ascertain what individuals have the information sought. And, of course, if the answers to interrogatories are evasive or unsatisfactory, the interrogating party should be able to utilize the more effective method of oral examination rather than have to reframe interrogatories. Ordinarily, however, there will be no occasion for a party to use both methods at the same time, at least to obtain the same information.”

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They are excellent for routine questions designed to elicit simple, uncomplicated facts, for obtaining information needed in order to make later use of other discovery procedures, for obtaining details about matters on which the pleadings are vague or obscure, and for narrowing the issues by securing admissions from the adversary party.

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Written interrogatories, if effectively employed, may accomplish the following results in the adversary process:

1. Particularize vague and uncertain pleadings;

2. Narrow issues for trial;

3. Determine facts usable as a basis for planning further discovery;

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4. Elicit information that may lead to the procurement of evidence;

5. Test the merit of a claim or defense;

6. Harass the timid, exaggerating, or false claimant;

7. Harass the blustering, arrogant, or defenseless tort-feasor;

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8. Permit precise discovery where there exists the obstacle of foreign language, speech impediment, or hearing impairment;

9 Augment or particularize insufficient oral examination;

10. Pierce the veil of a corporate

tort-feasor;

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11. Elicit information by which to impeach the credibility of witness, on oral discovery or at trial;

12. Support a motion for summary judgment;

13. Obtain valuable admissions

to be used as evidence at trial;

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14. Obtain an occasional written statement or document for use at trial;

15. Update discovery by use of successive interrogatories before trial, and even during trial.

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(a) Each interrogatory should be a single direct question phrased so as to inform the other party what is requested of him.

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(b) Interrogatories are more useful than a request for admission if your information is incomplete; that is, interrogatories are more useful for discovery purposes.

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2. Sanctions for failure of party to serve answers.

If a party or an officer or managing

agent of a party 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 that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees.

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F . REQUEST FOR ADMISSION

Another valuable discovery tool is provided by Rule 26, sections 1 and 2 of which read as follows:

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Section 1. Request for admission. – At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished.

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Section 2. Implied admission. – Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

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Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable.

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Requests for admissions are not a means of ascertaining the relevant facts of the case; they are a means of ascertaining the opposing party’s position with respect to these facts.

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Requests for admissions enable one party to request another to admit, for the purpose of the pending action, the following: (a) the genuineness of any relevant document described in and exhibited with the request, and (b) the truth of any relevant matter of fact set forth in the request.

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1. Tactical Advantages

If the party to whom a request for admission is addressed does nothing, his silence may amount to an admission.

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Admissions secured in response to the formal request procedure are conclusive as against the party making them, whereas admissions made in interrogatories or depositions are merely evidentiary and can be contradicted at the trial.

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(a) Requests for admissions should be simple and direct, and limited to singular, relevant facts.

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The facts stated should be asserted in separately numbered paragraphs, each dealing with a single fact.

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(b) A party framing a request for admissions must bear in mind the proper scope of inquiry.

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Under Section 2 of Rule 26, the party on whom a request for admissions is served may object to any such request within fifteen (15) days or such further time allowed by the court.

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The attorney should consider whether his request for admission, as drawn, is objectionable for any of the following reasons:

(i) The admission requested is privileged.

(ii) The request calls for an irrelevant admission.

(iii) Under some exclusionary rule of evidence, the admission would be inadmissible at trial.

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(iv) The subject matter of the request is a disputed contention.

(v) The request attempts to cover the “entire case”.

(vi) The answering party, because of insufficient knowledge, is unable to

determine the truth or falsity of the matter whose admission is requested.

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(vii) The admission requested is a matter of “opinion” or “law”

rather than a matter of fact.

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(c) In drafting a request for admissions, the attorney should steer as far away as possible from matters of law and opinion. The objective should be designed solely to obtain an admission as to the truth of a stated fact.

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(d) If you anticipate a dispute as to the propriety of a particular form of statement of fact which is the subject of your request for admission, you may be able to accomplish your purpose with another form of statement that would not be subject to the objection.

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(e) As to the form of the request for admission, some lawyers customarily phrase the request in the form of questions: “Do you admit that…?” The better practice, however, is to phrase your request as follows:

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You are requested to admit the truth of the following statements of fact, pursuant to Rule 26, under the terms of which these matters will be deemed admitted if you do not serve a response in accordance with that rule on or before … 1. That… 2. That…(reciting a single fact in each paragraph).

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With respect to the individual statements, keep them as simple and precise as possible. A complex statement including several different elements is likely to be false because of only one of the several elements, furnishing an excuse for either a denial or explanatory comment that weakens the effectiveness of the qualified admission.

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3. Sanctions for refusal to admit

If a party after being served with a request under Rule 26 refuses to admit the genuineness of any document or the truth of any matter of fact or 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 for an order requiring the other party to pay him the reasonable expenses

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in making such proof, including attorney’s fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, such order shall be issued.

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G. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Section 1 of Rule 27 provides as follows:

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Section 1. Motion for production or inspection; order. – Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter

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involved in the action and which are in his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just.

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The producible items are described as “any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action” and which are in the “possession, custody or control” of the opposing party.

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A motion to produce and allow inspection is generally used in conjunction with other discovery methods. A motion to produce ordinarily follows up on information initially developed through oral depositions or written interrogatories concerning the existence of particular items or classes of items, from the inspection of which movant’s counsel hopes to secure valuable evidence or leads.

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Written interrogatories afford an appropriate and economical means of obtaining the necessary information on which a later motion to produce can be based.

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Counsel must use his imagination and submit interrogatories concerning all possible items that the opposition can be required to produce. The questions can be drafted in a general form, yet necessitate specific answers.

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An example of such interrogatories is the following:

“State whether or not you, your

representative, agents, servants or employees have made any photographs of the place where the collision occurred. If your answer is in the affirmative: (1) State where and by whom the photographs were taken; (2) where said photographs are now located; (3) where the negatives of such photographs are now located; and (4) whether or not any of the said photographs are presently in the possession of your attorney.”

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A showing of “good cause” is a prerequisite for the grant of a motion for production or inspection.

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There must be “both allegation and proof of facts” and not mere conclusions as to the existence of good cause.

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The motion must allege facts and not mere conclusions as to why the requested information is material to the issues involved in the litigation, or why it may be expected to lead to the discovery of material evidence.

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For general guidance, the following explanation in American Jurisprudence may help a little:

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“Generally speaking, the “good cause” which must be shown for production of material for inspection should be such as will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary, and ‘good cause’ appears without special factual proof where the information is relevant under the pleadings, is normally unobtainable by other means, and in its nature is within the opposite party’s exclusive knowledge, or is present where

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the information sought is within an adversary’s exclusive knowledge, [and] there is inequality of investigative opportunity… These factors, standing alone or in combination, will justify discovery if the other requirements of the rule have been met.”

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(a) A motion for production and inspection must be used in conjunction with other discovery methods.

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(b) In the identification of the items sought, to avoid relevant material escaping discovery, you should describe the material that you want in both specific and general terms.

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(c) For the form of the motion, the following official form suggested for use by the Federal Rules of Civil Procedure may serve as a good starting point model in drafting a motion to produce:

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“MOTION FOR PRODUCTION OF

DOCUMENTS, ETC., UNDER RULE 27

Plaintiff A.B. moves the court for an order requiring defendant C.D.

1. To produce and to permit plaintiff to inspect and to copy each of the following documents: (Here list the documents and describe each of them.)

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2. To produce and permit plaintiff to inspect and to photograph each of the following objects: (Here list the object and describe each of them.)

3. To permit plaintiff to enter (here describe property to be entered) and to inspect and to photograph (here describe the portion of the real property and the objects to be inspected and photographed).

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Defendant C.D. has the possession, custody, or control of each of the foregoing documents and objects and of the above mentioned real estate. Each of them constitutes or contains evidence relevant and material to a matter involved in this action, as is more fully shown in Exhibit A hereto attached.

Signed: ____________________

Counsel for PlaintiffAddress:

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2. Sanctions for refusing production or inspection

The court may make such orders in regard to the refusal as are just, and among others the following:

(a) An order that the character or

description of the thing or land, or the contents of the paper, 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;

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(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 documents or things or items of testimony;

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(c) An order striking out pleadings

or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any part thereof, or rendering judgment by default against the disobedient party;

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(d) In lieu of the foregoing orders or

in addition thereto, an order directing the arrest of any party or agent of a party for disobeying the order.

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H. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Sections 1 and 2 of the said rule provide as follows:

Section 1. When examination may be ordered. – In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician.

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Section 2. Order for examination. – The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

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Note that there are two requirements which must be met before an order for the physical or mental examination of the opposing party may be issued, to wit: (a) the physical or mental condition of the party must first be shown to be in controversy, and (b) the party moving for examination must show “good cause”.

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Rule 28’s good cause requirement is not a mere formality but is a plainly expressed limitation on the use of the rule – as in the case of a motion for production or inspection. The requirement, in the words of the U.S. Supreme Court, is “not met by mere conclusionary allegations of the pleadings – nor by mere relevance to the case – but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination”.

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(a) A motion for physical or mental examination may not be necessary in most cases. The most common method of obtaining an examination of a party is through an agreement between counsel.

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(b) If you are counsel for the defendant where the mental or physical condition of the plaintiff is in issue, should you demand an examination of the plaintiff? Yes, if the plaintiff is apparently malingering and his doctor is fooled, or is deliberately winking at the situation, or is notoriously generous in his estimates of injury and disability.

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On the other hand, if it appears to you that the plaintiff is entirely honest and that his doctor is competent and reliable, there is little to be gained by another examination that is likely to confirm the plaintiff’s claims.

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(c) As a practical matter, if you are the defendant’s lawyer, before resorting to Rule 28, you should consider making a written request for the examination by letter addressed to the plaintiff through his lawyer, explaining the terms of your request, naming more than one physician satisfactory to you, giving the plaintiff an option, and indicating that you will be willing to have the judge appoint a doctor to make the examination if the plaintiff is not willing to go to any of the doctors whom you named.

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(d) The motion under Rule 28 should satisfy the requirements of “good cause” and condition “in controversy” prescribed by Section 1 thereof. Specific facts, and not mere conclusions, must be alleged from which the court can determine the existence of these requirements.

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The following is a suggested model for a motion under Rule 28:

8.14 Form – Motion for Physical or Mental Examination of Party

______________ [Name], defendant herein, files this motion under Rule 28 of the Rules of Court for a ________________ [physical or mental or physical and mental] examination of plaintiff, as is more specifically set forth herein, and for his showing of good cause alleges as follows:

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I.This is an action by plaintiff against the defendant for personal injuries alleged to have been sustained by plaintiff as a proximate result of alleged negligence on the part of the defendant. The injuries claimed by plaintiff include the following: _____________ [specify physical injuries, or mental disease, or both as alleged by plaintiff in his petition]. Defendant has reason to believe, and does believe, that plaintiff’s claim of severe personal injuries, as above described, is grossly exaggerated, and that plaintiff’s injuries, if any, are very slight and not disabling, as he contends. Plaintiff’s ______________ [physical condition or mental condition or physical and mental condition] ______ [is or are] in controversy within the meaning of Rule 28.

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II.

In order for defendant to ascertain the true nature and extent of plaintiff’s injuries, if any, and to prepare for trial on the issue of damages, it is necessary that defendant have plaintiff examined by ___________ [designate the type or types of medical practitioner, whether general practitioner or one or more types of specialists]. There is no other means by which or source from which defendant can ascertain the truth regarding plaintiff’s condition. Good cause therefore exists for the granting of defendant’s present motion.

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III.

Defendant has previously requested plaintiff’s attorney to produce plaintiff for a __________ [specify type] examination by ___________ [a doctor or doctors] of defendant’s choice; however, plaintiff’s attorney has rejected defendant’s request and has refused to have such an examination made by mutual agreement and arrangement. It is therefore necessary for this court to order plaintiff to submit to an examination and to appoint ______________ [a doctor or doctors] to perform the same.

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IV.

Defendant requests that the court appoint the following ____________ [doctor or doctors] to make said examination, or that the court appoint ____________ [a doctor or doctors] of its own selection: ______________ [state names or names and address or addresses of doctor or doctors nominated by defendant, together with the specialty, if any, that each practices]. Defendant alleges that the said ____________ [doctor or doctors] ___________ [is or are] qualified, experienced and competent, and, as defendant verily believes, will make an impartial and accurate examination and diagnosis of plaintiff’s condition.

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Defendant prays that this motion be set by the court for hearing, and that on such hearing this court select _________ [a physician or physicians] to make a thorough and impartial examination of the plaintiff; and that in its order to be entered hereon this court designate the time, place, manner and conditions, and the scope of the examination to be made, and the ___________ [person or persons] by whom it is to be made.

[Signature and address of defendant’s attorney]

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2. Sanctions for refusal to submit to a Physical or Mental Examination

Under Rule 29, if any party or an officer or managing agent of a party refuses to obey 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:

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(a) An order that the 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;

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(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing evidence of physical or mental condition; and

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(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.

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I. CONCLUSION

For the most effective use of the modes of discovery, an evaluation of the salient features of the various discovery devices suggests the following order or sequence in the discovery process:

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(a) The discovery process should be commenced by written interrogatories to parties under Rule 25 to obtain the names and addresses of potential witnesses known to the other party, ascertain or verify the existence of documentary evidence suspected or known to be in his possession, obtain details about matters on which the pleadings are vague or obscure, and to obtain other relevant information which may lead to discovery of admissible evidence.

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(b) Written interrogatories should be followed by deposition of the party and other important witnesses on oral examination.

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(c) If because of financial or time constraints the counsel has to choose between written interrogatories to a party and an oral deposition, the advice of experts is that “when a thorough-going examination of an adverse party is desired before trial, his deposition should be taken upon oral examination.”

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(d) With respect to documentary evidence in the possession or control of the opposing party disclosed by the response to the written interrogatories or the depositions, counsel can then file a motion for the production and inspection of the documents under Rule 27.

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(e) Once the information is complete and the facts have been fully revealed, counsel can then serve upon the opposing party a request for admission under Rule 26. A request for admission, as already noted, is not a means of ascertaining the relevant facts of the case; it is a means of ascertaining the opposing party’s position with respect to the facts.

EFFECTIVE USE OF MODES OF DISCOVERY

By: Atty. Rogelio A. Vinluan

EFFECTIVE USE OF MODES OF DISCOVERY By: Atty. Rogelio A. Vinluan.

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