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So let's go first to subpoena.

So subpoena is the writ issued by the court to force a person to testify or to


present a document.

There are two types of subpoenas: Subpoena duces tecum and subpoena ad
testificandum. Duces tecum with respect to presentation of documents. Ad
testificandum, of course, for testimony.

So a subpoena is directed against a person requiring him to attend or to testify in


a hearing or to present other documents or things in his control.

So who issues a subpoena? It is the court.


Who applies for a subpoena? It is the parties whether the plaintiff or defendant
How do you apply for a subpoena? You file saan? Application for subpoena. There is
a pro forma form for application of subpoena. (Not many people know there are
actually forms attached to the ROC. One of those forms is the subpoena. So this is
an example of a subpoena. Don't look at me, look at your codal.)

So it is directed against a person not an object because it is the person that will
bring the document to the court or to testify before the court. So it states the
date, time and place of the required testimony before the court. Actually, there
are many forms here: MTD, M counterclaim, 3P 4P, request for admission.)

So it is the party that applies for the subpoena. Either the party is the plaintiff
or the defendant.

Can you apply for a subpoena with respect to a judicial affidavit?


The answer is Yes. Under the Rules on Affidavit, if the person who have taken the
judicial affidavit is hostile or non compliant, then the person can apply for a
subpoena in court and he will be forced to give a judicial affidavit before the
court. So the Rules on Subpoena also applies in judicial affidavits.

So who issues the subpena?


It can be the court where the witness is requiredto attend, thecourt where the
deposition will be taken or the officer authorized by the court where any justices
of the supreme court in a case.

So how do you serve subpoena?


Well, you serve it in the same manner as you serve a pleading, ay, where you serve
summons. It can either be personal or substituted service

Is it required for there to be a subpenan before a person is required to testify?


The answer is No. If the person is within the court premises during the trial or
during a hearing then he can be compelled to testify before the court even without
a subpoena. So a person present is sufficient in order to compel him to testify.

What happens when a witness fails to comply with a subpoena?


The Court shall order his arrest and take him before the court.

Is this mandatory?
The answer is No because it is upon discretion of the court. So if the court
determines that the witness to the subpoena is not material then he may not be
ordered arrested.

May a subpoena be quashed?


The answer is Yes, a subpoena may be quashed if it is unreasonable or oppressive.

Is there a motion required before a subpoena is quashed?


The answer is No, it can be quashed motu proprio.

What is the viatory right? Do you know what is a viatory right?/


Viatory right is the right of the witness to refuse to comply with a subpoena if
the court is more than 100km away.

Is the viatory right applicable in criminal cases?


The answer is No. If it is a criminal case, you cannot invoke your viatory right
because it is the state that is the plaintiff to the case. The State can compel
anyone to testify. So viatory right is only applicable in civil cases.

So that's it. That's my lecture on subpoena.

*******

The next one would be: Modes of Discovery.

So what is a mode of dicovery? It is a device employed to obtain information about


relevant matter. The purpose is to permit the mutual knowledge before trial on
facts

When do you avail of the modes of discovery?


Simultaneously when the summons are prepared. So when summons are prepared, there
is already a notice to the parties to apply the modes of discovery.

So there are five types of modes of discovery:


Deposition
Written Interrogatories
Request for Admission
Production or Inspection of Documents
Physical and Mental Examination of the witness

So let's go to the first type: Deposition.


Deposition is the taking of the testimony of a person, whether a party or not,
that is taken out of the court. There are 3 types of depositions:
1) Deposition Pending Action
2) Deposition for Before action
3) Deposition Pending Appeal

And there are two types of manner to take depositions.


1) Oral deposition which is a face-to-face and 2) deposition by written
interrogatories where the WI are given to the authorized offier who conducted the
deposition.

Before whom is the depositon taken?


It depends. If it is within the Philippines, it is taken before a notary public or
to a person authorized to administer an oath. The judge may also take deposition if
the parties so stipulate.

where can a deposition be taken?


It can be done anywhere. It can be done in the law office, it can be done in the
office of the notary public, it can be done at the office of the clerk of court as
long as it is done outside the court. But if the deposition shall be done outside
the Philippines, it shall be done before the Consul General, Secretary at the
Embassy and so on and so forth.

Can a person that is not a member of the consular officee become an authroized
person to take depositions?
The answer is Yes, as long as there are letters rogatory.
What is letters rogatory?
A letters rogatory are documents making a request through a foreign court to obtain
information or evidence for specific person within the jurisdiction of that court,
either through deposition or any other modes of discovery.

As long as there is a letters rogatory, a deposition can be taken by a person


outside the country.

So how do you give a deposition?


First, you must serve a notice of deposition to that particular person. It must
state the date time and place where the deposition shall be taken.

Suppose the person does not want to attend the deposition, he can be compelled
through a subpoena.

Suppose the person to be taken a deposition is outside of the 100km rules, what
will happen? What will you do?
What you will do is that you will go to the nearest court where that person is and
in that court where that person is, you will apply for a deposition - a petition to
take deposition of the witness and that person will be the one to compel that
person. So the viatory right is not applicable when there is a deposition. It is
only applicable during a trial. That's why class in the enumeration of the
authorities who can take depositions, those authorized to issue subpoena, it
enumerated twice the court: The court where the case is pending and the court where
the deposition shall be taken. That's the reason class.

So what will be done during the deposition?


Well, the person shall be examined. If it is oral, it shall be examined orally.
Then there shall also be cross examination. Also there can be redirect, there can
be cross. How abot the objetctions? The objectisn shall not be ruled upon by the
authorized officer, instead shall be merely noted.

When there is a deposition taken, does that mean that the perosn is already a
witness?
The answer is No. It depends whether the plaintiff shall use the deposition in his
favor. However, even if the plaintiff chooses deposition it does not automaticaly
convert him into a witness. If the deposition is only used to a specific witness
then that testimony in favor of plaintigff. That is also the same rule with respect
to adverse party. The adverse party uses the deposition in order to impeach a
witness not necessarily already a witness in favor of that adverse party.

What is the difference between a deposition and a judicial affidavit?


A deposition contains the direct examination, cross examination, directly or
indirectly, and that person may or may not be a witness but in a judicial
affidavit, it only contains the direct examination. There are no cross examinations
in judicial affidavit and again, that person in your judicial affidavit is your
witness.

Now let's go to deposition before action.


So deposition before action can be done to perpetuate a tesimony even though there
is no case yet.

How is this initiated?


You file a verified petition to perpetuate the testimony in the court where the
adverse party is expected.

When do you use this?


You usually use this in cases of succession. So if a party is thinking that he will
die in the future and there will probably be a problem with his estate, then he can
make a deposition to perpetuate his testimony once he dies.

The same concept applies to depositions pending appeal


When there is a pending appeal and the perpetuate his testimony and he thinks he
will not be able to stay allive during the appeal then he can also perpetuate his
testomony pending appeal.

Is deposition always taken by oral testimony?


The answer is No. There can also be deposition by written interrogatories wherein
the written interrogatory shall be addressed to the officer taking the depositions.

So now lets go to WI to adverse parties.


This is the second type of modes of discovery. The WI is addressed to the adverse
party which contains questions to elicit the material and relevant facts from the
adverse aprty. It differs from deposition through WI - in this case, under Rule 25,
it is adressed to the adverse party. Under Rule 23, it is addressed to the officer
conducting the deposition. So that is the main difference.

So in WI you are eliciting questions that are material and relevant to your case.

What is the effect of failure to serve WI. For example, the plaintiff did not file
for WI to the defendant, what happens? A party not served with WI may not be
compelled by the adverse party to give testmony in open court.

So for example Plaintiff did not serve WI to the Defendant and the petitioner wants
the defendant to be his witness - can he do that? Under the rules of evidence,
there can be an hostile witness but since the plaintiff fid not serve the WI to the
defendant, the defendant may refuse to become the hostile witness of the plaintif.

What is the effect if the adverse party did not comply with the request for WI? -
we will discuss that later in rule 39.

the nesxt mode of discovery is the request for admission


What is the purpose? There are two purposes: To admit the genuineness of a relevant
or material document or to admit the truth of any material or relevant fact.
Request for admission concerns a document or a material fact.

What is the effect of failure to serve request for admission?


A party shall not be permitted to present the evidence on material and relevant
fact within the personal knowledge of the adverse party. So just like in written
interrogatories, there shall be an effect if the parties did not serve any request
for admission.

What if the other party did not comply with the request for admission? What will
happen? Then the matter shall be deemed admitted. It's as easy as that. However the
admission shall only be for the pending action and shall not affect the other
actions.

The fourth type of modes of discovery is the production and inspection of documents
or things. The purpose is for the production and permission for the inspection of
the documents or things, or permit the entry on a designated property. So there are
two purposes. Production and Inspection as a mode of dsicovery is for the benefit
of the party and also of the court so the court can inspect the property.

The last type of mode of discovery is the physical and mental examination of a
witness. This applies when the mental or physical condition of a certain party is
material to the case.
Usually this is used in annulments, annulment of marriages, psychological
incapacity, guardianship cases, annulment of a contract based on insanity. It is
initiated through a motion and there must be a request for the report of the
examination. When there is a request for medical or physical examination, you waive
your right to certain privilege under the rules of evidence.

What is the consequence of failure to comply with the modes of discovery? Depends
what is refused. If it is oral examination, then the party can apply for order of
the court to compel the oral examination but if the refusal is to the answer to the
particular question or refusal to produce a document, then the court may order
either:
1) to strike out a pleading
2) stay the proceedings
3) dismiss an action or
4) render judgment of the court

So this is one of the instances class when there is an answer filed but thhere
shall still a default.