1997 Rules on Civil Procedure Rule 21

2001 Edition Subpoena

Rule 21
SUBPOENA

Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed

to a person requiring him to attend and to testify at the hearing or the trial
of an action, or at any investigation conducted by competent authority, or for
the taking of his deposition. It may also require him to bring with him any
books, documents, or other things under his control, in which case it is called
a subpoena duces tecum. (1a, R23)

Rule 21 applies to both civil and criminal cases.

Q: What are the types of subpoena under the law?

A: The following are the types of subpoena:
1.) Subpoena Ad Testificandum; and
2.) Subpoena Duces Tecum

Now, the first one is commonly known as subpoena for short. So, when you say that refers to the
first one.

Q: Define Subpoena Ad Testificandum.

A: SUBPOENA AD TESTIFICANDUM is a process directed to a person requiring him to attend and
to testify at the hearing or trial of an action, or at any investigation conducted by competent authority,
or for the taking of his deposition. So you are required to appear there and testify in court.

Q: Define Subpoena Duces Tecum.

A: SUBPOENA DUCES TECUM is a process directed to a person where it requires him to bring
with him any books, documents or other things under his control. So, in other words we are more
interested in his documents, which are in his custody. Whereas in ad testificandum, we are more
interested in his oral testimony.

Now, take note that a subpoena is a process which requires a witness to testify not only during the
hearing or the trial of his case but also any investigation conducted by “competent authority” like
quasi-judicial bodies such as the Labor Arbiter or the Senate Blue Ribbon Committee. Now, under
Section 1, you may wonder what do you mean by subpoena “for the taking of his deposition”? That
because that will clearer when we reach Rule 23. So we will just reserve talking deposition when we
reach Rule 23.

Sec. 2. By whom issued. The subpoena may be issued by:

a) the court before whom the witness is required to attend;
b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with
investigations conducted by said officer or body; or
d) any Justice of the Supreme Court or of the Court of Appeals in any case
or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer
shall examine and study carefully such application to determine whether the same
is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life imprisonment and
who is confined in any penal institution shall be brought outside the said penal
institution for appearance or attendance in any court unless authorized by the
Supreme Court. (2a, R23)

Q: Who are authorized to issue subpoena?

A: The following:
1. The court before whom the witness is required to attend – the most common is the court where
the case is pending;

2. The place where the deposition is to be taken – we will discuss that when we reach Rule 23;

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3. The officer or body authorized by law to do so in connection with investigations conducted by

said officer or body – Now, even administrative bodies or quasi-judicial officers are authorized
to issue subpoena like the Labor Arbiter in connection with investigation conducted by said
officer or body;

4. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation
pending within the Philippines – So, practically any justice can issue a subpoena to attend a
particular case although it is not before the SC. They are empowered to issue a subpoena.

Q: Can you subpoena a PRISONER to appear in court?

A: YES, but the law says that the judge should be very careful to find out whether it is issued for a
valid purpose because there is a risk. If a prisoner is going to be brought out in jail because he has to
testify in a case, that might be an occasion for him to escape. So, the court should be very careful about
that. The court should have to find out whether it is necessary.

And take note, “No person sentenced to death, reclusion perpetua, or life imprisonment and who is
confined in a penal institution shall be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court.” This is something new.

I think this last paragraph is from the case of former Congressman Nicanor de Guzman of Nueva
Ecija who was convicted of gun running. He was sentenced in Muntinlupa then one day, because of
subpoena to testify in his hometown, he was escorted in his hometown to attend the fiesta and then I
think he just used that as an excuse to attend the fiesta. And that was attacked by the media – why was
he allowed to leave the national penitentiary when he is sentenced to reclusion perpetua? So, this
paragraph now appears. You cannot remove him from any National Penal institution without
authority of the SC.

Sec. 3. Form and contents. A subpoena shall state the name of the court and
the title of the action or investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena duces tecum, it shall also
contain a reasonable description of the books, documents or things demanded
which must appear to the court prima facie relevant. (3a, R23)

Now, actually that is simple. You are required to testify on this date or time or you are required to
bring with you the following documents, which was described in the subpoena duces tecum.

Now, can a subpoena be quashed? To quash means to have it dissolved. What are the grounds to
quash a subpoena? Section 4:

Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon
motion promptly made and, in any event, at or before the time specified therein
if it is unreasonable and oppressive, or the relevancy of the books, documents
or things does not appear, or if the person in whose behalf the subpoena is
issued fails to advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the ground that the
witness is not bound thereby. In either case, the subpoena may be quashed on the
ground that the witness fees and kilometrage allowed by these Rules were not
tendered when the subpoena was served. (4a, R23)

GROUNDS TO QUASH SUBPOENA DUCES TECUM

Q: What are the grounds for quashing a subpoena duces tecum?

A: The following are the grounds:
1.) If the subpoena duces tecum is unreasonable and oppressive;
2.) The relevancy of the books, things or documents does not appear;
3.) the person in whose behalf the subpoena is issued fails to advance the reasonable cost for
the production thereof.

First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE AND OPPRESSIVE

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Well, the best example is if it violates Section 3 – it does not contain a reasonable description of the
book, documents or things demanded.

EXAMPLE: I will subpoena a business man to a business company, “Mr. Manager you are required
to bring to court all your ledgers, all your receipts, and all your documents from 1990 to the present.”
My golly! That would involve how many truck loads. Meaning, it would involve bringing to court
thousand of documents. So, it becomes unreasonable and oppressive. The subpoena duces tecum
should be more specific.

Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS DOES NOT APPEAR

Meaning, there appears to be no connection between the documents which are being sought, and
the issues in the case. Example, in a collection case, you were required to bring your birth certificate,
marriage contract, etc. My golly! Anong pakialam ng mga niyan sa collection case?

Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS ISSUED FAILS
TO ADVANCE THE REASONABLE PRODUCTION THEREOF

This is a very common situation:

A bank received his subpoena duces tecum, “Present to court the ledger of the return check of
somebody.” And this check was issued and send to you four years ago. Do you know the
inconvenience when a company is asked to bring to court documents especially ‘yung matagal na?
Practically, the company has to assign the employee out of his usual job. He is pulled out from his
usual job to look for these in the archives. Isa-isahin niya iyan. Maybe it will take him two or three days
to locate and then he will be required to go to court where you will miss your work because you will be
in court and yet the person who demand the subpoena duces tecum has never been bothered to pay
service fee for that. Meaning, dapat magbayad siya reasonable cost.

Of course, the law does not say how much. Sa gobyerno nga papirma ka lang diyan ng isang pirma
bayad ka na ng service fee. How much more in the private sector, where you are requiring a company
to look for a document? He is the one to look and then somebody will go to court. He will not be
reporting for job and yet you have not even offered anything to the company. We experienced this
many times subpoena duces tecum, and then the manager of the bank will say, “do we have to comply
with these?” Well, you do not want to comply. Puwede man.

When you received the subpoena duces tecum, may bayad ba? Did the person offer any amount
for the trouble in looking for these documents and in going to court? “Wala.” Okay, we will move to
quash. In other words, sometimes companies and banks just waived this. Sige lang, bayaan mo na.
Maliit na bagay lang iyan. But it is a ground for quashing a subpoena.

GROUND TO QUASH SUBPOENA AD TESTIFICANDUM

Q: How do you quash a subpoena ad testificandum?

A: The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby.

Q: When is a witness not bound by a subpoena?

A: The best answer is Section 10 of this rule – if your residence is more than 100 kilometers from the
place of trial. So, you cannot subpoena someone from Cebu to come to Davao because that is more
than 100 kms. But suppose you are willing to pay for his transportation? Never mind, even if he is
willing to pay the transportation. Pag ayaw niya, wala kang magagawa because it is more than 100
kms.

In either case, whether subpoena duces tecum or ad testificandum, the last sentence says, “You
must also tender the witness fees and kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I
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think that’s Rule 141, ‘yun bang pamasahe. There is a computation there. How much you have to pay
the witness for his transportation and witness fees. That is different from the reasonable cost and
reproduction in the first paragraph. So, these are the grounds for questioning a subpoena.

Sec. 5. Subpoena for depositions. Proof of service of a notice to take a

deposition, as provided in sections 15 and 25 of Rule 23, shall constitute
sufficient authorization for the issuance of subpoenas for the persons named in
said notice by the clerk of the court of the place in which the deposition is to
be taken. The clerk shall not, however, issue a subpoena duces tecum to any such
person without an order of the court. (5a, R23)

Now, let’s us skip Section 5 for the meantime because that is deposition.

Sec. 6. Service. Service of a subpoena shall be made in the same manner as

personal or substituted service of summons. The original shall be exhibited and
a copy thereof delivered to the person on whom it is served, tendering to him
the fees for one day’s attendance and the kilometrage allowed by these Rules,
except that, when a subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof, the tender need not be made. The
service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the subpoena is duces
tecum, the reasonable cost of producing the books, documents or things demanded
shall also be tendered. (6a, R23)

The first sentence says, “Service of the subpoena shall be made in the same manner as personal or
substituted service of summons.” That is a new provision. So, the mode of service of summons,
personal or substituted is also the manner of serving subpoena. So there is now a substituted service of
summons. You can leave it to the wife.

Under the old rule, it says there, the subpoena shall be served personally to the witness. There is no
such thing as substituted service of subpoena because in most cases, when you subpoena somebody,
you go to the house, the witness is not there but the wife is there. So sabihin mo, “Ibigay mo na lang sa
husband mo ito.” That is substituted service of subpoena. You must serve it personally to the witness.
There is no such thing as substituted service of subpoena Under the prior rule.

But NOW, the rule has changed because Section 6 is very clear: “It shall be made in the same
manner as personal or substituted service of summons.” Alright.

And take note that You exhibit it to the witness. Then bayaran mo ‘yong kanyang pamasahe. You
must serve the subpoena with a reasonable time to me to allow him to travel. It’s very unbecoming
that the witness be serve a subpoena today and he is suppose to testify tomorrow. Suppose he has
other commitments, bigyan mo siya ng time. And of course, as we discussed earlier, the reasonable
cost of producing the books, documents or things demanded shall also be rendered.

Sec. 7. Personal appearance in court. A person present in court before a

judicial officer may be required to testify as if he were in attendance upon a
subpoena issued by such court or officer. (10, R23)

GENERAL RULE: You can be compelled to testify if you have not been serve with a subpoena.
EXCEPTION: Section 7 – a person present in court before a judicial officer maybe required to testify
as if he is under subpoena.

EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig eh. Audience lang siya. And
then the lawyer will say, “Our first witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot diri. I was
not under subpoena.” NO, You can be compelled because you are present in court. Any person present
inside the courtroom can be compelled to testify as if he is under subpoena.

So, if Mr. Pogi believes he will be called and ayaw niya, huwag siyang sumipot sa court. Huwag
kang magtingin-tingin doon. It happened several times. There was an instance I wanted to call a
witness several times to surprise him. If I will have him subpoena, baka makabantay. Alam din niya.
And then I’ll talk to him. “O punta ka bukas ha? Sigurado ha.” In other words, I’ll have to trick him
into going into courtroom and then once inside, my first witness is that guy. Wala kang magawa.
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Because any person present in court can be compelled to testify because if I will have him subpoena, he
will be forewarn. So I do not want to forewarn him.

FAILURE TO APPEAR; CONSEQUENCES

Q: How do you compel a witness to attend? Meaning, a witness was subpoena and he did not
show up. What are the consequences of defying a subpoena?
A: The consequences are found in Sections 8 and 9.

Sec. 8. Compelling attendance. In case of failure of a witness to attend,

the court or judge issuing the subpoena, upon proof of the service thereof and
of the failure of the witness, may issue a warrant to the sheriff of the
province, or his deputy, to arrest the witness and bring him before the court or
officer where his attendance is required, and the cost of such warrant and
seizure of such witness shall be paid by the witness if the court issuing it
shall determine that his failure to answer the subpoena was willful and without
just excuse. (11, R23)

Sec. 9. Contempt. Failure by any person without adequate cause to obey a

subpoena served upon him shall be deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued by a court, the disobedience
thereto shall be punished in accordance with the applicable law or Rule. (12a,
R23)

Q: What are the consequences if the witness refuses to appear after he was subpoenaed>
A: The following:
1.) You can ask the court to issue a warrant for his arrest. (Section 8) Parang criminal ba. That’s
what you call a warrant to arrest a recalcitrant witness. You move to arrest the witness para
puwersahin mo ba;
2.) Declare him in contempt of court for failure to obey the subpoena (Section 9)

ENFORCEABILITY OF SUBPOENA

Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule shall
not apply to a witness who resides more than one hundred (100) kilometers from
his residence to the place where he is to testify by the ordinary course of
travel, or to a detention prisoner if no permission of the court in which his
case is pending was obtained. (9a, R23)

Q: When is a witness not bound by a subpoena?

A: When his place of residence is more than 100 kms. to the place of trial. Actually, the old rule is
50 kms. lang. Now, the new rule is double na – more than 100kms. So pag sobra ng 100 kms, you
cannot compel the witness anymore to appear. Alright, clear so far?

Although, this 100-km distance does not apply if it is a criminal case where the accused would like
to seek the compulsory process issued to secure the attendance of witnesses in his behalf because that is
a superior right.

That is how the SC interpreted it in the case of PEOPLE vs. MONTEJO (21 SCRA 722 [1965]),
reiterated in GENORGA vs. QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation applies
only to civil cases, but not to criminal cases, especially if the person to be subpoenaed is a defense
witness because of the constitutional right of the accused which is a right which cannot be curtailed by
the Rules of Court.

SUMMONS vs. SUBPOENA

Now, I’ve noticed among laymen that there is a confusion between a summons and a subpoena.
I’ve tried noticing that for years. The client will say, “Nakatanggap ako ng subpoena.” Pagtingin mo
summon man under Rule 14. Sometimes, he will say, “Gi-summon ako ng court.” Iyon pala, subpoena.
In other words among laymen, they think summon and subpoena are the same but actually we know
that they are not.
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Summons is in Rule 14 and one good question is, distinguish summon from subpoena. I notice that
there is no author has ever bothered to explain at least to outline an answer in his book. I’ve gone to
many books in remedial law, I still have to see an author who says in his commentaries, summons and
subpoena are two different things and these are the distinctions?

Now, suppose that will be asked in the bar, do not be afraid simply because you have not read it in
the book. If you know an idea, a legal concept – summons, alam naman ninyo ‘yan; subpoena –
actually you can answer. You do not have to rely to any author in answering the question.

As a matter of fact, I remember when I was taking the BAR, I never bother to read the distinction of
any author. Why? Because how can I memorized all of these distinctions in all subject? Impossible ‘no?
It’s impossible for me to memorize everything that the author said about distinctions and I don’t have
to rely on any book. That’s the best. Now, yong mga author, they only try to make your job easier by
outlining the distinctions between this and that. But suppose there will be a question where you are
asked to differentiate this from that and you have not read that in any book, mag-panic ka? Huwag
kang mag-panic. In other words, once you know the concept, you can easily give an answer.

Alright, there should be no confusion between a subpoena and a summons. There are 2 different
processes, although laymen would tend to equate one with the other.

Q: Distinguish SUBPOENA from SUMMONS.

A: The following are the distinctions:

1.) SUBPOENA is directed to a witness; whereas

SUMMONS is directed to a defendant in a civil case;

2.) In SUBPOENA, the witness is directed to appear in court or to bring documents; whereas
In SUMMONS, the defendant is informed that a complaint is filed against him and he must
file a responsive pleading within the period otherwise, judgment can be rendered;

3.) In SUBPOENA, the witness will be declared in contempt or his attendance can be compelled
by the issuance of a warrant for his arrest; whereas
In SUMMONS, a judgment in default will be rendered against the defendant who fails to
comply.

4.) SUBPOENA applicable to both criminal and civil case; whereas

SUMMONS applies only to civil cases.

5.) In SUBPOENA, there is a 100-km limitation of its enforceability; whereas

In SUMMONS, there is no distance limitation.

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