Dulay v. Dulay | G.R No. 158857 | November 11, 2005 | Tinga, J.

Nature: Petition for review of the decision of the CA

Petitioners: Pfeger; Godofredo, Sr.; Rowena; Endzelius; Godofredo Jr.; Jimpsey; Sheryl; Flordeliza; Benita; and
Maricor – all surnamed Dulay
Respondents: Rodrigo Dulay
TOPIC: Modes of Discovery: Rule 23 (Depositions Pending Action) > depositions in foreign country
SUMMARY: Complaint of an American citizen with the Philippine courts. He requested the taking of depositions of
witnesses in the US. Court ordered the depositions be taken before the Clerk of Court of Boston. It was taken before a
notary public in New York instead. The Court ordered them authenticated by the Philippine consul, which was complied
with. The Petitioners move to dismiss the complaint, and to hold the interrogatories (depositions) as inadmissible since
they were not taken in accordance with our rules (that they be taken before the Clerk of Court of Boston, as ordered).
The Court held them admissible, because of substantial compliance with our rules. Respondent should not be faulted
for the non-cooperativeness of the Clerk of Court of Boston.

Depositions in foreign countries may be taken:

- On notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of
the Republic of the Philippines;
- Before such person or officer as may be appointed by commission or under letters rogatory; or
- Before any person authorized to administer oaths as stipulated in writing by the parties.

When leave of court is necessary:

- NOT required when the deposition is to be taken before a secretary of embassy or legation, consul general,
consul, vice-consul or consular agent of the Republic of the Philippines and the defendants answer has already
been served.
- REQUIRED if the deposition is to be taken in a foreign country where the Philippines has no secretary of embassy
or legation, consul general, consul, vice-consul or consular agent. In such a case, it may be taken only before
such person or officer as may be appointed by commission or under letters rogatory.

Procedural history:
1. Complaint by Rodrigo
2. Petition for issuance of letter rogatory by Rodrigo  Granted
3. Motion to dismiss by Petitioners  Denied
4. Motion to reiterate motion to dismiss by Petitioners  Denied
5. Order by the court to authenticate the interrogatories
6. Motion to withdraw interrogatories by Rodrigo to authenticate it  Granted
7. Omnibus motion by Petitioners to declare the interrogatories inadmissible and to dismiss the complaint  Denied
8. Motion for reconsideration by Petitioners  Denied
9. Original action for certiorari with the CA by Petitioners  Denied
10. Petitioner for review the decision of CA by Petitioners  Denied

FACTS
 Rodrigo Dulay is a naturalized American citizen. He opened a trust account in the Bank of Boston in favor of
his nephew Pfeger out of love and trust, after the latter took care of him. 5 months later, Pfeger left him. It
turned out that Pfeger returned to the Philippines and went on a spending binge. Rodrigo discovered that
Pfeger emptied the account.
 Rodrigo filed a complaint for recovery of his bank deposit. Pfezer insisted that the money in the account was
his own.
 Rodrigo filed a petition for the issuance of letters rogatory to get depositions of several witnesses residing
abroad.
 o RTC granted the petition for the letters rogatory. [Basically, the court requested the Clerk of Court of
Boston to conduct depositions and send them to the Philippines.]
 There was a delay in the depositions, because the Clerk of Court of Boston did not cooperate. The depositions
were instead taken before a notary public in New York.
o Petitioners filed a motion to dismiss on the ground of failure to prosecute (delay), which was denied.
o Petitioners prayed that the written interrogatories be declared inadmissible [because it was not taken
before the Clerk of Court of Boston, as was directed by the RTC].
o Court ordered instead for the Philippine consul in the US to authenticate the depositions taken before
the notary public.  Interrogatories were authenticated by the Consul.
 Petitioners’ motions to dismiss from the RTC to the CA were all denied.

ISSUE: WON the interrogatories are admissible? – YES

 Petitioners: the documents were not taken in substantial compliance with the directive of the RTC, in violation of
Secs 11, 12, and 14 of Rule 23.
 Court: Respondent Rodrigo substantially complied with the requirements for depositions taken in foreign
countries.
 Depositions in foreign countries may be taken:
 On notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent
of the Republic of the Philippines;
 Before such person or officer as may be appointed by commission or under letters rogatory; or
 Before any person authorized to administer oaths as stipulated in writing by the parties.
 Commission v. Letter Rogatory
 C: an instrument issued by a court of justice, or other competent tribunal, directed to a magistrate by his
official designation or to an individual by name, authorizing him to take the depositions of the witnesses
named therein. They are taken in accordance with the rules of the court issuing the commission.
 LR: a request to a foreign court to give its aid, backed by its power, to secure desired information. The
methods of procedure are under the control of the foreign tribunal.
 When leave of court is necessary:
 NOT required when the deposition is to be taken before a secretary of embassy or legation, consul general,
consul, vice-consul or consular agent of the Republic of the Philippines and the defendants answer has
already been served.
 REQUIRED if the deposition is to be taken in a foreign country where the Philippines has no secretary of
embassy or legation, consul general, consul, vice-consul or consular agent.  In such a case, it may be
taken only before such person or officer as may be appointed by commission or under letters rogatory.
 In the instant case: the authentication made by the consul was a ratification of the authority of the notary public
who took the questioned depositions. The deposition was, in effect, obtained through a commission, and no longer
through letters rogatory. With the ratification of the depositions in issue, there is no more impediment to their
admissibility.
 [From what I understood, the deposition before a notary public should not have been allowed, if it was
obtained through a letter rogatory, maybe because the laws of US don’t allow it. But since we consider
the deposition as obtained through a commission, the order of the issuing court prevails. The Court
ordered that the interrogatories be authenticated by the Philippines consul, and they were, therefore
there are no more impediment to their admissibility.]

Other issue: WON the complaint should be dismissed for failure to prosecute? – NO
 Rodrigo and the RTC could not be faulted for the delay/allowing the delay since it was due to the Clerk of Court of
Boston’s uncooperativeness. Our courts have no power to compel the Clerk of Court of Boston to cooperate.
 Save for the complaint of delay in the proceedings, petitioners were unable to point out any injury. Rules of
procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of
justice. The ends of justice are reached not only through the speedy disposal of cases, but more importantly,
through a meticulous and comprehensive evaluation of the merits of the case.
 Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the
purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during
the preparation for trial. To dismiss the case on technicalities will frustrate the purpose of deposition.
DISPOSITION: WHEREFORE, premises considered, the petition is DENIED. Costs against petitioners.

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