Remedial Law Review 1

Transcribed Notes
Justice Zenaida T. Galapate-Laguilles

Newest Case on who can sign a Certificate of Non-Forum Shopping

Certificate of Non-Forum Shopping where the president now could sign even without a board resolution. Just
last week the Supreme Court came out with another decision BOARD OF INVESTMENTS V. SR METALS
INC. Where the Supreme Court cited an earlier decision where certain officials even without a board
resolution could properly sign the verification and certification of non-forum shopping. This includes now
your OIC, your officer in charge, your chairman of the board, the accountant and one who has been appointed
to sign by the government is likewise authorized.

Enumeration under BOARD OF INVESTMENTS V. SR METALS INC.

OIC, Chairperson of BOD, the president of the Corporation, the general manager or acting general
manager, the personnel officer, the employment specialist in a labor case, and other officials and
employees who are ― in a position to verify the truthfulness and correctness of the allegations in the
petition.
In this case, the Court considers OIC Halili- Dichosa to be in a position to verify the truthfulness and
correctness of the allegations stated in the instant Petition.

Your BOARD OF INVESTMENTS V. SR METALS Case is the newest case on the matter. So we see now
the slackening of the rigid stance of the Supreme Court. We see now the relaxing of that rigidity which we
used to base last year and 2 years time.

The test here now is if the person who signed the certificate and the verification is somebody who is capable of
making it known to the (liar 2 07 38) corporation or has the capacity to attest to the truth of the allegations by
reason of his position then this person would sign the certificate even without any board resolution. Take note
the key words, duties, functions, exposure of this person, making this person totally aware as to the truth or
veracity of his allegations. So it becomes less stricter.

Intervention

I noted repeatedly that the distinguishing feature of this rule has something to do with the fact that the would
be intervenor is an outsider. He has nothing to do with the case from the start but eventually there is realization
in his part that Ooops, he stands to be benefitted or injured of the outcome of the case because he has an
interest therein, and his interest according to the Supreme Court in order to warrant intervention would be to
(AMDi) Actual, material and direct. If you do not have that AMDi then we rule out motion for intervention.
The other opposite of intervention as we said is your 3rd party complaint.

Q: Where does the initiative come from in a 3rd party or 4th party complaint?
A: From the inside. The initiative comes from the existing litigants.

Q: What does this existing litigant want?

A: He wants to obtain compensation, remuneration. He wants to obtain reimbursement, contribution from
other persons who he would like to be involved in the existing case contribution, indemnification and
subrogation.

Q: Your Motion for Intervention has a definite timeline meaning when can he possibly file a motion for
intervention?
A: At any time before judgment.

1
 Mahilig tayo class sa timelines Yung prosecution ng Civil Actions sa Criminal Actions when do we make the
reservation? At any time before the prosecution starts presenting its evidence.

Q: Yung discharge of an accused to become a state witness?

A: That must be before the prosecution rests.

Itong Intervention It has to remain before judgment. At anytime before judgment. So you see when it comes to
intervention the timline appears to be a lot longer. The opportunity to which to intervene appears to be longer.

Q: What is the attitude of courts, when it comes to an attempt to intervene?

A: Well the attitude of the court is one of caution, as you distinguish it from the Rule on Default. Sa Rule on
Default, the attitude of the court is one of liberality, almost always the court will grant it because the objective
there is to enable the other party who is sought to be declared in default or who has been declared to be in
default to be able to present his case as fully as he can.

But when it comes to Intervention the court has an attitude of caution, as much as possible it does not want to
allow this Intervention, why? Because of the possibility of delay, plus the fact that whatever it is that the
would be intervenor would like to bring in to the existing case could be the subject of a separate case.

Now we correlate it to your Necessary Party, anu sabi natin sa necessary party? Pwede siyang di kasama sa
umpisa kasi, pwede naman siyang maghabla o magsampa ng kaso kalaunan, the case does not die simply
because the necessary party is not included. This is the same attitude that the court displays when it is faced
with Intervention, sabi niya ―kung pwede namang pagusapan sa isang separate case, pwede nang hindi mag-
intervene dito kasi baka makakatagal sa kaso‖, it might cause delay. However, the court is not ending its
attitude there; the court must make a determination, Whether or not, what is it really that the would be
intervenor is saying, ―meron nga ba siyang pakialam dito sa kasong ito?‖, yun ang tanung ng court. The court
asks itself, what is the interest really of this person who would like to intervene. Maapektuhan nga ba siya ng
ibibigay kong hatol? That is the question of the court. The court has to debate itself. What if this would be
intervenor will simply pursue his claim in a separate case? But if the court sees that allowing this would be
intervenor now to participate, would it lead to enable him to present it at this early stage his claim which
obviously from the looks of it appears to be indeed very material, that is alright, ―saan na nga ba ako?, the
court will ask again itself, what is the stage that I am in now, ah okay wala pa akong judgment, I can allow this
would be intervenor to participate‖.

The Motion to Intervene should be accompanied by the copy of the Complaint-in-Intervention, so

yung motion to intervene does not mean that he is already allowed, No. The same should still be the subject of
a prior hearing meaning the other party will be given the opportunity within which to comment to this motion
to intervene, the court can ask the existing parties ―Oh what can you say? This person would like to participate
because according to him he has an interest to protect.‖ The existing parties could very well say ―it is not true
at all, his interest is merely inchoate, his interest is not actual, his interest is not direct‖, that could be the gist
of the opposition of the parties. Can we expect the existing parties to have this immediate opposition? Yes.
Why? Because, maybe they will suffer, in what sense? They will be delayed. The disposition of the case will
definitely be delayed.

So we see the delicate balancing act between the interest of the would be intervenor vis-a-vis the
interest of the existing parties plus the discretion of the court. This is higly discretionary. But if the court uses
its discretion, it has to look for the qualities of the interest of the would be intervenor, ―is it actual, is it an
existing interest, is it material, is it direct? In short, will these would this would be intervenor be affected by
the judgment. If the answers to all of these is in the affirmative, then the court will allow the motion to
intervene.

Rule on Default

2
Q: What document is required to be appended to the Motion to lift the order and its purpose?
A: We go back to your rule on default. If the defendant who has been declared in default, asks the court for
another opportunity within which to present his side, what is it that must be appended to the Motion to lift the
order? A copy of his answer. Why is there a need to attach a copy of his answer? In order to give the court an
opportunity to make a cursory assessment as to whether or not, indeed there is a meritorious defense, yun ang
objective dun, kung bakit kailangan mag-attach ng kopya ng answer, yung motion to lift the order or judgment.

Q: Sa motion to intervene bakit kailangan mag-attach ng complaint-in-intervention?

A: Because it is from there where the court can see the degree of interest that the would be intervenor has
towards the case. So it is obvious if the judgment has been rendered, nakapagdesisyon na ang court,
intervention is removed.

Q: What is the remedy of that person who should have intervened?

A: To file a separate action.
Do you have questions on intervention? (NOTHING)

Q: Okay, if a complaint-in-intervention is another pleading of course there is a need for existing parties to
file their answer thereto, right? Ano na lang ang hindi nila sasagutin? Yung complaint-in-intervention,
they have to answer the said complaint and what is the timeline given to the existing parties?
A: Sec. 4, Rule 19 we have 15 days from notice of the order admitting the same. In short, before these existing
parties would submit their answer they would wait as to what the court would do. Will the court grant
ordinarily the motion to intervene, if the court grants they have 15 days from receipt of the order within which
to file their responsive pleading.

Q: May there be a different period to do this?

A: Yes, depending upon the court‘s discretion.

Q: Could it be longer?
A: Yes.

Q: Could it be a subject of a motion for extension of time?

A: Yes obviously, that too could be possible.

Okay, let‘s skip calendar of cases.

Subpoena

Q: We go to Subpeona. Notice here class that „Oh ba‟t Subpeona na?‟ it has garnered that reputation that
it has to be dreaded, it has acquired the conotation that it is something that cannot be refused and both
impressions are correct. Why?
If it is subpeona, it is definitely coersive process, take note of the descriptive word, coersive process. Sa ayaw
mo at sa gusto mayroong epekto ang subpeona na yun, bahala ka na lang kung susundin mo. It is coersive.
Now, tha subpeona is actually a notice but not simply a notice but a demand for the appearance of the
receipient.

Q: A demand for the appearance of the receipient upon where?

A: Before the court at a certain appointed time. Ad testificandum if he would testify, and duces tecum if he will
simply bring documents. But if the purpose is both, it is subpoena ad testificandum and subpoena duces tecum.
Now, of course if you are the recipient of the subpoena, as much as possible, we would like to avoid it. You
look for reasons as to how to ―kill‖ the subpoena. But we do not use the word ―kill‖. The term is ―quash‖. We
quash a subpoena – meaning, we seek its disregard. We ask the court to take it back.

Q: And when can we possibly quash a subpoena?

A: When the same is oppressive. This is the word: If the same is oppressive.

3
Q: When do we say that a subpoena is oppressive?
A: If it requires or directs the intended recipient to appear before the court within an unreasonable period of
time. For example, the notice is very short. It requires you to appear tomorrow immediately. What if you are
living somewhere else, at a distance of more than 100 kilometers from the court? That certainly poses
oppression.

If the subpoena does not comply with the general standards for reasonableness, then we can move for its
quashal.

Take note of the ones who can issue a subpoena:

1. The court before whom the witness is required to attend;
2. The court of the place where the deposition is to be taken;
3. The officer or body authorized by law to do so, in connection with investigations;
„Eto yung mga public prosecutors. „Eto rin yung mga NBI agents.
4. Any justice of the Supreme Court or the Court of Appeals in any case or investigation within the
Philippines.

Q: Can you subpoena a prisoner at will? Can you subpoena him at any moment‟s notice?
A: The answer is no. Take note, he is serving a sentence. He could be preventively imprisoned. Either of the
two.

Q: Why do we say that he cannot be subpoenaed at will?

A: There has to a prior determination by the jail warden.

Q: Of what? To determine what?

A: To determine the existence of a valid purpose. Because you cannot just bring out a prisoner, for obvious
reasons. You do not want the prisoner to be possibly exposing himself to risk while at the custody of the
government facility.

Q: Okay, what about a prisoner who has been sentenced to suffer the supreme penalties? What are the
supreme penalties?
A: Well, under the Rules, it still includes death. But, we disregard death, because we do not have that
anymore. Reclusion perpetua or life imprisonment.

Q: Can you subpoena a prisoner who is serving these kinds of sentences?

A: Yes, if it is authorized by the Supreme Court.

Q: When we were still with the lower courts, how did we deal with cases involving prisoners who have been
meted out with penalties like this?
A: We had those serving sentences at the death row or at the maximum-security compound of NBP. Anong
ginagawa? Kami mismo ang pumupunta doon. We conducted trials there at the National Bilbid Prison.

Q: For what kind of prisoners again?

A: For prisoners who are currently serving sentences.

Q: For what?
A: Life imprisonment or reclusion perpetua. They cannot be brought out of the facility.

Q: What is the exception?

A: If so authorized by the Supreme Court. So, at the NBP, we do have a court house facility where the inmate
could be brought by simply walking. Kami ang nag-aadjust. It is the court that adjusts.

4
Now, of course, just to give you a little insight into these situations: Before the court goes there – before the
judge goes there – everything has to be sanitized. And we say ―sanitized‖, I do not mean disinfection. We
mean to say that the authorities would have to scour every nook and cranny of the facility. Because it
happened in the past that while a judge was presiding, little did they suspect that there were knives hidden
underneath the table of the judge. And that was taken advantage of, starting a riot. The riot among the inmates
because they were armed.

Effect of Subpoena; Computation of time

Q: What is the effect of not honoring the subpoena?

A: We now go to Section 8. If the recipient does not appear, the following things may happen: the witness who
is supposed to appear by virtue of the subpoena served could be directed to show cause. We call it show cause
order. Could be directed to show cause.

Q: Why?
A: He should not be cited in contempt of court or why he should not be the subject of a warrant of arrest.
Dalawa yan. Dalawang panakot ng court yan pag di ka sumipot.
Again, the witness could be directed, explain why he should not be cited in contempt of court or why he
should not be subject to a warrant of arrest.

Q: What do we call this order?

A: Show cause order. Explain why. Explain why you should not be cited in contempt explain why you
should not ____ (preterse?)

Q: Why do we have this show cause order?

A: Because as I‘ve said earlier, it has a coercive effect. The witness is being coerced/compelled by the court to
appear.

Indirect Contempt

Section 9 of Rule 10 is indirect contempt. Your section 9 you should write there the contempt here is always
indirect contempt.

This is now an advance lesson of your contempt under Rule 71. Ito ang scope natin class ha for the enntire
course up to Rule 71. You‘re Rule 71 speaks of 2 kinds of contempt.

One is direct contempt which punsishes misbehavior. It is an open defiance to the dignity of the court. In
short, something is done or an act is performed which defies, which is equivalent to disrespect of court.
Example: The act of banging the books in front of the judge out of frustration that could be direct contempt.
There is open or full display of disrespect of the court.

Your indirect contempt refers to simply disobedience to an order of the court. Now if you don‘t follow the
subpoena or if you do not honor the subpoena, that is indirect contempt.

Now you might ask, which is harsher? Is it direct contempt or indirect contempt? The punishment for both
could be either imprisonment or fine. But I say the punishment for indirect contempt is above harsher because
the stay of the contempnor yun ang term dun sa recite na contempt because the penalty for the contempnor
could be indefinite imprisonment. Oh diba ang sakit non. Indefinite imprisonment. We do not know when you
are going to be released. You will be released only if you are compliant with the law. And along this line I
mentioned to you last meeting ba yun yung case ni Arvin Balag. Which is a good case by the way. Modifying
Arnault. The first lesson that you have. No not the first lesson but among the highlights of your political law.
Arnault v. Nazareno.

5
With respect to the computation of time, the only thing worth reiterating here is that we exclude the first day
and include the last day. If the last day falls on a weekend, either a Saturday or Sunday, then of course the last
day would be the day after that weekend. Or if the last day falls on a holiday, then the last day would be the
next day after the holiday. But there should be no difficulty here because of your Neypes Rule where the
adverse party is given a fresh period of 15 days from denial of his motion for reconsideration or motion for
new trial.

The courts are liberal when it comes to extensions of time.

Q. When does this become more relevant?

A: When it comes to filing of notices of appeal because appeal must be made only within 15 days. But there
are instances that your 15 days is extended, extended perhaps by one day or 2 days if there are highly
compelling or unique reasons for the relaxation of the rules.

Modes of Discovery

Your modes of discovery are very important because they contribute to the expeditious resolution of cases and
these are matters that all the times emphasized by the Supreme Court in all courts of the land, as a matter of
fact in summons given to the defendant there is a note there suggesting the availment of modes of discovery
In your Pre-trial, availment of Modes of discovery is one of the highlights of the lessons under Rule 18
Q. How does this expedite the proceeding?
A. Because once you understand how they operate, you will become so appreciative and conscious of them.
They allow the presentation in advance of a witness. They allow taking the testimony of a witness in advance.
As for example, the scheduled date is January 30, 2019, because of your modes of discovery, you can now be
assured that you don‘t need to wait by January 30, 2019, you can now ask the Court that the deposition of the
witness be made now as the witness appears to be fragile, old and sickly.

Q. What is deposition?
A: When you depose, you give a statement, you become a deponent. It is an act of giving testimony outside
the courtroom. When we speak outside the courtroom, we only refer to a civil case not a criminal case. In the
case of People v Harry Go, if it is a criminal case, the deposition must be made always in the courtroom, it
needs to preserve the constitutional right to confrontation or also known as cross examination.

Kinds of depositions:
1. Deposition pending action. There is already an existing case or a case has already been filed
2. Depositions before action- No case has been filed.

It is the act of giving a statement or testimony outside the courtroom or ahead of the appointed time given by
the court. Take note: Outside of the courtroom.

But kindly put an asterisk in ―outside of the courtroom‖. When we allow deposition outside of the courtroom
handling the case, we are referring only to a civil case. Because if it is a criminal case, you cannot have
deposition outside of the courtroom handling the case because of the case of PEOPLE V. HARRY GO.

If it is a criminal case, we repeat: the deposition taking shall be at the courtroom which is handling the
criminal case. The reason for that is the need to preserve the constitutional right to confrontation. And when
we say confrontation we refer to cross-examination.

Now, your depositions are of three times.

The first one as appearing in the Rules of Court is depositions pending actions. So it simply means that there is
an existing case. The case is already filed. The case is already alive, it is there and you would like to take the
testimony in advance or ahead of the appointed time. The next deposition is deposition before action.
Meaning no case has been filed.

6
Q: What impels you to take the deposition of a certain person before the filing of the case? Bakit mo
aabalahin ang sarili mo na kunin na ang deposition ng isang testigo eh wala pa namang nakasampang
kaso?
A: That is the wonderment there.

Q: Why deposition before action?

A: It is easy to understand yung deposition pending action kasi mayroon nang nakasampang kaso. Pero ito,
deposition before action. Wala pang kaso.

Q: What drives you to take the deposition before the filing of an action?
A: What is the word? Perpetuate. We want to perpetuate the testimony of this prospective deponent because
this deponent could be dying, could be killed anytime because of several death threats that he receives. In
short, you want to preserve. Kaya nga perpetuate. You want to preserve his testimony. You do not want
miscarriage of justice to take place. Kasi kung hindi mo pa kunin ang statement ng testigong yan, baka abutin
ka ng indulto. Meaning you are overtaken by events, wala ka nang magagawa. Patay na yung testigo wala ka
pang ginawa. To avoid that predicament, you resort to deposition before action.

Remember the classic example: yung matanda who in his twilight years suddenly realizes the unfairness of the
unfolly during his younger days when he sired with nary a care children left and right outside of wedlock. And
then suddenly when he is already old and gray he realizes that he will soon be meeting his maker and he would
like to put things aright. Sabi niya, ―Oo nga, may mga anak ako sa labas na kawawa. Gusto ko bago ko iwan
ang mundong ito maitama ko ang lahat.‖ What does he do? He wants that these poor illegitimate children of
his would be getting their fair share of his assets. Pero sabi niya, ―Pero siyempre hindi papayag ang pamilya ko
dito. Aawayin ako ng asawa ko. Pero kahit na. I want to put things aright. Gusto ko habang buhay pa ako,
habang malakas pa ang aking memorya, gusto ko isiwalat ang buong katotohanan. Ano ang katotohanan na
‗yon? Na itong batang ito na matagal ko nang pinapatawag sa akin na tito ay anak ko talaga.‖ So what does he
do? He gives a statement acknowledging the fact that he is my son by Maria so and so. That me and Maria
were actually lovers in the 70s or in the 60s, that this is the fruit of our relationship. And that I would like this
child to have a fair share of my assets.

Well, you can ask, bakit hindi na lang siya gumawa ng will? Sabihin na lang niya sa will niya, mag-de-
deposition pa ‗yan. Pwede naman siyang gumawa ng testament. Possible. But he could say, ―I want a clearer
declaration. Baka i-oppose pa yung will ko.‖ Which is the usual thing.

Deposition Pending Appeal

Yung isa, Deposition Before Action, wala pang kaso na naisasampa. Itong isa, mayroon nang kaso at
nadesisyunan na.

Q: Kailangan mo pa rin ng Deposition AFTER the judgment has been rendered?

A: Yes, provided that the judgment is on appeal.

Q: Anong maibibigay na role nito sa atin?

A: Well, it becomes a tool again for aiding justice IF while the case is on appeal, habang nirereview namin sa
CA, we see that there is a need to remand the case and this sometimes happens. For instance the CA is in the
process of reviewing the decision of the RTC and then we suddenly notice, ―Oh itong part na ito hindi
napasadahan‖, ―Itong crucial point na ito, hindi naasikaso‖, ―The evidence is lacking‖, in short we can not
render a judgment as to whether or not the RTC was correct in its appreciation of the case because something
was left out.

If that is the case, what we do is to stop. We do not proceed in the rendition of judgment on our part, whether
we sustain or reverse the RTC. What we do is remand. Remand or return back the case or the records to the
lower court. And if the lower court goes [through] with the case again, the RTC could again receive
depositions.

7
While the case is being remanded, and while the RTC is authorized to receive depositions, the case is
technically still on appeal. Ang status ng kaso pa rin kahit ni-remand namin ay on appeal. Even if the records
are returned to the lower court, the status of the case remains to be that of ―on appeal‖. Do not forget this
specification. Depositions can still be taken even if the case is on appeal.

These three kinds, Deposition Pending Action, Deposition Before Action, Deposition Pending Appeal.

Q: If it is a Deposition PENDING ACTION, what is the attitude of the courts when you tell me “Your
Honor, we would like to move for the taking of the deposition of Mr. Pedro Santos on ____”. What is the
attitude of the court?
A: The attitude is one of leniency. In short, as much as possible, the court grants any attempt to avail of the
modes of discovery.

The modes of discovery are intended to illicit material facts, they‘re intended to compel the parties to disclose
everything that he is in possession of, insofar as his cause of action or defense is concerned.

Q: Bakit naman pipilitin ilabas lahat ng nalalaman ng party?

A: Because you want to expect the other side to know what will be asked during the trial. Gone are the days
when the style is to keep to one‘s self his defenses. Pipilitin kang ilabas mo na ang lahat dokumento na nasa
iyo through the modes of discovery.

Q: So yung pagbibigay ng depositions, sabi natin kanina it will be outside of the courtroom, okay. If it is
outside of the courtroom, who is the hearing officer?
A: If it is outside of the courtroom, we call the hearing officer the deposing officer.

Q: Kung outside of the courtroom, walang role si judge pag nagbibigay ng deposition. Sino ngayon ang
tatanggap ng sasabihin?
A: The deposing officer will be the one to receive the statement of the deponent. Lahat ng isasalaysay ni
deponent ay pakikinggan ni Deposing Officer.

Q: Now who is qualified to act as a Deposing Officer?

A: He could be another judge. Not the same judge who is actually handling the case. Kasi pwedeng niyang
sabihin ―Pwede po ba Your Honor kukunin namin ang deposition ni Pedro Santos doon sa RTC Palawan.‖
That is allowed. The deposing officer there could be the executive judge in Palawan. The deposing officer
there could be the executive judge in Palawan.

Q: Paano kung walang judge sa Palawan? Sino pa ang pwedeng maging deposing officer?
A: Any notary public.

Q: Why notary public?

A: Because a notary public is one who is authorized to administer an oath. So, yun ang key noon.
Nakakapagpanumpa ang notary public. The significance of that is if you are giving a statement under oath,
you are actually warned that you could be charged for perjury if you are found later to be lying. So, deposing
officer. He could be a judge, he could be a notary public.

Q: Could it be anyone other than a judge or a notary public?

A: YES. If the parties so agree in writing. But this person receiving the deposition should also be authorized to
administer an oath. Sino ang mga yun? He could be a clerk of court. A clerk of court can now notarize
documents but only with respect to his functions, meaning, yun lang ang mga dokumentong relevant sa
kanyang functions.

There is a new case. This is more of Ethics, but nevertheless I‘ll give it to you just to emphasize the power of
the Notary Public. The notary public can authenticate documents. Remember your rules on evidence, sa

8
disputable presumptions, what is the effect of a notarized document? It is presumed to be valid. But the
presumption there is disputable. It is presumed to be indeed the product of the meeting of the minds of the
parties as appearing in the notarized document. It is genuine, authentic, a product of freewill. It can never be
questioned as the product of falsification. If it is notarized what will prevail is that it is genuine.
So a notary public coud receive testimonies of deposition. A judge can also receive. May other parties be
allowed to receive depositions? Yes, provided that the parties agreed in writing. Sino and mga yun? Fiscal
(public prosecutor), a brach clerk of court.

Two ways of giving deposition:

1) Oral examination
2) Upon written interrogatories.

Upon oral examination – Q&A type. It‘s just like conducting trial. The order of trial is as you know is:
a) Direct examination
b) Cross examination
c) Redirect examination
d) Re-cross examination

Q: Yan di baa ng nangyayari sa deposition upon oral examination?

A: Yes.

Q: What if a question is objectionable? Halimbawa, yung abogado ng deponent ay nagtanong ng isang bagay
na di dapat itanong?
A: Take note of your grounds: irrelevant, immaterial, inadmissible, violation of a privilege, there could be
several.

Q: Now what if the question propounded was objectionable? Does the hearing officer have the authority to
rule on the objections?
A: NO. Wala siyang karapatan. Eh anong mangyayari sa question? It will continue to be subject to the
manifestation of the other party that the same is objectionable. That is simple noted in the records.

Q: Will there be a ruling?

A: Wala. Walang kapangyarihan/ karapatan yung deposing officer na magrule. Hindi niya pwedeng sabihin na
“Objection sustained” or ―Objection overruled”. He does not have that authority.

Q: What will now happen to the question?

A: That objection will be determined later on by the judge who is actually handling the case. Ako halimbawa
yung talagang judge na humahawak sa kasong to. Then one of the parties move for the taking of the deposition
____.
Q: What do you call that deposition?
A: Deposition pending action kasi mayroon nang kaso sakin. Now I granted the motion to take the deposition
and so I said “Alright will be taking the deposition” before the RTC Judge of Sta. Cruz, Laguna. When the
RTC Judge of Sta. Cruz Laguna was taking the testimony of the deponent, sabi ng kabila “Your Honor RTC
Judge of Sta. Cruz, I object to that question because the same is bla bla bla”- You cite the motion to dismiss.
The RTC Judge of Sta. Cruz now cannot rule, cannot say “Objection is sustained” or “Objection overruled”.
No. What he will do is to simply take note of the objection and which objection by resolved later.
Q: You might be asking, pwede ba na ang function ng procedural law ay mapabilis ang takbo ng kaso?
Bakit kaya hinihintay natin makabalik pa ang kaso sa judge, sa first judge? Why can‟t the deposing officer
simply rule on the objection? Isn‟t that while we wait for the Judge actually handling the case, there could
be delay?
A: Wrong. Because the deposing officer has actually no idea about the whole case. His only business is to
receive the testimony of deponent. In short, the deposition of the case including the deception of the so-called
admissible errors are still with the judge who is actually handling the case.

9
Okay so I‘ll relate to you an actual case. This happened again to my sala. There was a deed of sale entered into
by OFW in Switzerland. Naconsummate na yung contract (?) but eventually dispute arose and venue was
chosen at the place where I am sitting as a Presiding Judge. Now, fast forward, there was taking deposition of
the deponent. While deposition was going on, several persons were objecting and the one who was taking the
deposition was a Consular Officer in Philippine Embassy in Switzerland. O ayan yung nakalimutan ma-
include ko kanina. Bukod sa judge, Notary Public, Clerk of Court, pwede ang Consular Officers or Embassy
People as long as they can administer an oath.

Alright, we go back to the objections. Ang daming mga objections, ang sabi ko kanina and this I emphasized
with you, those depositions will only be ruled upon by the judge actually taking the case.

Q: Now how did the Consular officer in Geneva Switzerland treat the objections?
A: He simply noted them and the event contained on and together with the recorded or transcribed testimony
of the Deponent, transferred it to my court.

Q: How did they transfer the records of depositions?

A: By sealing them. Sealed them. The sealed envelope shall be opened only by the Judge actually handling the
case in open court. We do it by simply stating for the record that “Make it of record that today the Swiss
embassy has forwarded to this court a sealed record of the deposition given by Mr. so and so on blank today”.
The sealed envelope is now being opened. I opened the envelope. And what did I see? I saw for the first time
that the testimony was quite long and that deposition was made with objections. So I had to go to the
objections one by one and I had to make a ruling. But I have to admit. Was it a difficult task to make a ruling
on all the propounded questions coming from the foreign country? Yes, because the ruling has to be studied.
So what did we do? We deferred making a ruling. We have 5 days within which to study the case and then we
rendered the ruling. So you see the the rulings are deferred and resolved ONLY by the judge actually handling
the case. Now that‘s deposition through oral interrogatories. What about deposition upon written
interrogatories? I‘m bringing you attention to the word ―interrogatories‖.

Q: What is the etymology of that word interrogatories?

A: The root word is ―interrogate‖. When you say interrogatories, you are actually sending series of questions
through the other party and still the one supposed to answer written interrogatories is the deponent. So there is
an advanced sending of series of questions.

Q: May the other side or the deponent who receive these written interrogatories be given an opportunity
within which to answer the same?
A: Yes, we can answer the same by sending cross interrogatories. In short sasagutin niya yung written
interrogatories and mayroon din siyang pwedeng itanong and we call it cross interrogatories.
So I had to go through the objections one by one and I had to make a ruling. But I have to admit.
Was it a difficult task? To make a ruling on the propounded objections coming from a foreign country?
Yes, because the ruling has to be studied, what did we do? We deferred making a ruling, we had 5 days within
which to study the objections and then we rendered the ruling.
So you see the ruling are referred and resolved only by the judge actually handling the case and now that is
deposition through oral examination.

Q: What about deposition upon written interrogatories? Written interrogatories, I‟m bringing your
attention to the word interrogatories. What is the etymology of the word interrogatories?
A: The root word is interrogate. When you say interrogatories you are actually sending series of questions.
Series of questions to the other party and still, the one who is supposed to answer the interrogatories is called
the deponent. So there is an advanced sending of series of questions.

Q: May the other side or the deponent who received these written interrogatories be given the opportunity
within which to answer the same?
A: Yes, he can answer the same by sending cross interrogatories. In short sasagutin niya yung interrogatories
na yun pero meron din siyang pwedeng itanong and you call them cross interrogatories.
10
Q: Within how many days may the written interrogatories be answered?
A: The same period that we have when it comes to ordinary cases.

Disqualification by interest
Okay disqualification, this is common sense no? if a judge could be inhibited because of interest, either in the
case or because of relationship with one of the parties there could also be a similar disqualification when it
comes to deposition.

In short we can object to the qualification of the deposing officer if we see that he or she is chammy
chammy(??) with the other side or related by blood or affinity with the other side. Disqualification by interest.
(PS. Late ata narecord yung part na ‗to)

It could be anything under the sun, there are two limitations:

1. Privilege; and
2. Relevancy

Meaning you cannot ask a question that is covered by a privilege and let‘s review your evidence again. What
are the privileged communications?
1. Husband and wife privilege rule;
2. Attorney- client;
3. Physician- patient;
4. Priest and the penitent;
5. Industrialist Privilege (Businessman/ industrialist cannot be compelled to disclose his trade
secrets);
6. Journalist privilege( you cannot compel a reporter or journalist to reveal his source);
7. Voter‘s privilege (you cannot compel a voter to reveal who he voted for)

Q: So that is privilege, if a question that is covered by privilege is asked what happens?

A: That question becomes incompetent. It is an incompetent question. Another limitation is if the question is
irrelevant.

Q: When do we say it is irrelevant?

A: When it has no tendency to establish a fact, the fact in issue. When it has nothing to do with the fact in
issue. No connection at all, then it becomes irrelevant.

DEPOSITIONS
…when it has nothing to do with the totality of the issue – no connection at all – then it becomes irrelevant. If
we have these two limitations, your deposition will not be allowed.

Q: But what if the deposition is already getting annoying because the questions that are being asked appear
to be vexatious – intended not to illicit material facts but to vex, to harass, to embarrass – could there be a
protective measure that can be given by the court?
A: Yes. Such as issuing an order to the effect that these annoying or embarrassing questions be not covered by
the deposition.

Q: What is the use of the depositions?

A: Sec. 4
1. It can be used against any party who was present during the deposition taking;
2. It can be used for purposes of impeaching the credibility of the deponent in another proceeding;
3. If there is a person during the time of the taking of the deposition who was an officer of a public or
private corporation or association, then that deposition could be used by the adverse party. In short,
this officer of a public or private corporation was present when the deposition taking was made.

11
Q: How will it be used against that officer?
A: Well, the question could be asked in this manner: During the taking of the deposition of blank, you were
around, right? Yes, I was around. And you have heard that at the time, the assets of the corporation was in the
vicinity of around five to six billion pesos, correct? Yes, I heard. And you did not dispute this figure that was
mentioned by the deponent? Yes, I did not dispute it. You did not dispute it because the figure that was quoted
by the deponent was accurate, correct? The officer concerned could be saying that the figure is not accurate or
he could filibuster or he could be refusing to answer the question because he did not want to reveal that the
assets of the corporation was in the vicinity of five to six billion pesos. If he does not answer the question or if
he tends to be fascinating in giving a very clear answer, you could use the copy of the deposition of the
deponent by showing to the court now, to this other court, that when this was made – when the deponent said
that the assets was around five to six billion pesos – this officer was around and he did not say anything.

In short, it could be an impeaching tool.

Q: Can it be used in all kinds of proceedings?

A: Yes, civil, criminal, or administrative.

Q: Even if the deponent is already dead?

A: Yes.

Q: What is the sole requirement before the same could be totally introduced despite the death of the
deponent?
A: Provided that the deponent was subjected to cross examination. That is why before the deposition could
start, the other party is notified. Oh, take note, I will be taking the deposition of Maria Santos on January 5,
2019. The purpose of notifying you is:

1. You have to listen to what he says

2. For you to be able to cross-examine the deponent

Once she has been cross-examined, we repeat what we have stated – the deposition can be used in ALL kinds
of proceedings: civil, criminal, and administrative.

Q: How is it used?
A: As an impeaching tool.

Q: May the time that the parties have been substituted by reason of the death of the original litigants affect
the right to use depositions?
A: The answer is no.

Q: What is the rule on substitution again?

A: The parties could be substituted if one or some of them have died provided that the nature of the case is one
that survives.

Q: When is an action considered as one that survives? And when is an action considered as one that does
not survive again?
A: It‘s one that survives if the action has something to do with property rights, or real rights. It is an action that
does not survive if the subject matter are intransmissible rights or obligations such as an action for support, an
action for legal separation. Anything that is so personal to the litigant concerned.

Q: What do you do if the action is one that survives and the party litigant dies?
A: Substitution.

Q: Who substitutes the deceased if he dies?

A: His heirs. His heirs, or his legal representative.

12
Q: How will the court know?
A: Well, it is the duty of the counsel. The counsel has the duty to inform the court about the fact of death
within how many days? 30 days.

Q: Ngayon, binanggit nanaman ngayon ang substitution sa deposition. If the parties are substituted, will
the right to lose or take the decisions be affected?
A: The answer is no.

Q: How do you contradict the deposition given by the deponent?

A: By resorting to what is known as rebutting deposition. Kung halimbawa yung plaintiff nagpresent ng isang
deponent at sinabi nya ay prejudicial sa defendant. The defendant in turn can present rebutting deposition. But
presenting also another deponent to rebut the deposition of the first deponent.

Okay. Take note of the individuals in a foreign jurisdiction before whom deposition can be taken. Okay, still
on Rule 23, take note of the following: secretary of embassy or legation, consul general, consul, vice-consul,
or consular agent (of the Republic of the Philippines). Before such person or officers may be appointed by
commission.

Q: When we say commission, what is that?

A: Local deposing officer.

And if it is a foreign deposing officer, we call it (???rogutor* di ko nakuha).

Q: If you notice that the deposition taking is going nowhere. Paikot-ikot na, wala ng saysay mga
tinatanong, the questions appear to be as irrelevant already, what do you do?
A: You file a motion to terminate. Motion to terminate the taking of deposition.
Alright. I would like to train or bring your attention to defense of non-availing the modes of discovery.

Q: Ah Okay. This is a very interesting point. Diba I told you kanina class that before the taking of the
deposition, the other party has to be notified?
A: The purpose of which is to allow that party to notified to cross-examine the deponent.

Q: What if it is the party that instead to give or to take deposition who failed to attend, or failed to appear?
A:While we were having this case of NAIA Terminal 3, the opposing litigants, were Japanese and Filipino
contractors. There were taking of depositions in Germany and in Singapore, because of the presence of our
contractors. The other contractors were Germans, some were Singaporians. ..And so one day, the parties
agreed before my court that the taking of depositions shall be in Hamburg, Germany. Ok. So the Japanese
group proceeded to Hamburg. Prepared the procedures, for the taking of the depositions. But the Filipino
Contractor, unfortunately, did not appear. So ano ang nangyari? Hindi natuloy ang depositions. If that happens,
is there any sanction that could be enforced against the non-appearing party? Kasi the party has to appear diba?
For what purpose again? For purposes of cross-examination.

Of course there is a sanction. What could that be? It could be:

Reimbursement of Expenses
- Everything the other party has incurred on the belief that the depositions shall push through shall
be reimbursed.

The Filipino delegation, unfortunately, had to swallow this bitter pill. At nag present ng evidence yung
Japanese at German parties as to how much they incurred. Everything was written down up to the last centavo,
such as: transportation, telephone call, documentation, plane fare, hotel accommodation, transport of the
witness, represented during the deposition taking. And all these were calculated and completed in dollars, or in
US dollars. The Filipino group had to reimburse all these. Kaya ang pag-charge pa naman ng Japanese, by the

13
minute. The moment they lift the phone for purposes of legal consultation, the time is already ticking. And the
same is thing is true with respect to the big legal offices in this jurisdiction: by the minute ang consultation. So
if only to inspire you class, there is indeed profit in this lucrative practice if you decide to go to practice later
on.

So Sec. 23, Reimbursement. Reimbursement of reasonable expenses. Ok. All the way up to 24, that is
reimbursement.

Interrogatories to Parties
Ok. I told you already it will be answered within 15 days. How many sets? Only 1 set.
Ok we continue tomorrow with Admission by Adverse party, Rule 26.

You take note again of the effects of not complying with the Modes of Discovery. I was looking for the exact
provision earlier. It is under Rule 29, just to emphasize to you the consequences of not complying with the
modes of discovery. It could range from citation in contempt to fine to establishment of the thing you want to
establish through the modes of discovery. They are steep consequences.

So what time are we going to meet tomorrow? I can never be sure of your answer.
Jonathan: Kasi ma‘am may conflict. Sino may mga may conflict ng 10am? 9-12.
Ma‘am: You have conflict because? You have a conflict because we have another class? Is that it? What time
is your conflict? 10? O try to be at least present by 9. Ok? Sakripisyo nating lahat no? I have sacrifices myself.
You see, I still have a hearing at 2pm tomorrow. That is why when Jonathan told me that you have classes. I
told you no, Jonathan that I cannot make meet you tomorrow at 2pm because I have a hearing. So we meet at
9 o clock. Same room?
Jonathan: I have to check the room… (end)

So yesterday we were having the modes of discovery. Uhm I just would like to emphasize to you that the fact
that your rule on the said written interrogatories are directed only to the parties to the case. Only to the parties
to the case. ok? What if there are objections to the set of interrogatories that were sent? (*not sure if sent or
set) Would there be a need for the court to resolve first the objections before an answer to the written
interrogatories could be made? Those..ye.. the answer is yes. Those objections should first be resolved by the
court but do not be confused with what I said yesterday when we said that the deposing officer has no
authority to rule on the objections.

Take note when we discuss deposition yesterday, I emphasize that to you, a deposing officer has no authority
to rule on the objections. Those objections we said should be resolved or ruled upon by the judge actually
handling the case. But when it comes to written interrogatories, note that the matter is addressed not to any
other court, not to any other judge, but to the same judge handling the case. So it is this judge who should first
resolve the objections before the party served with written interrogatories could be expected to file his answer.
What could be the objections of the parties served with the written interrogatories? The ordinary objections
under your rules of evidence will come into play. It could be that well the usual ground from objecting. The
question is relevant to the subject matter or to the fact in issue. That could be a ground for objection.
Incompetence of evidence that could be a ground for objection. What about the fact that there‘s no need for the
set of written interrogatories because of the admissions made by lets say the defendant already in his answer.

We have a case Po vs. Reboneria. Ah there is no need to repeat or send another set of questions if these
questions are already answered in the answer submitted by the defendant. There‘s no need to reiterate. There‘s
no need to vexed anew the defendant if these matters have been adequately answered in the pleading submitted
by the latter. We referred to likewise yesterday about the possibility of sending cross-interrogatories, right?
They are in the form of ah.. well, they are questions also. They are interrogatories also in the strictly sense of
the word. That should be answered by the descending (*not sure) party, by the plantiff.. probably, the
defendant is of the uhm.. position that he or she could not possibly or intelligently answer yet because there are
matters to be clarified. That‘s why the need to set cross-interrogatories.

14
What is that procedural device again that we have resort to, when the defendant finds something vague in the
complaint, motion for bill of particulars. Now, if the set of interrogatories uhm.. demonstrate a certain
vagueness or something nebulous in so far as the defendant is concern then the defendant by all means, has the
right to ask for clarification. And this attempt to clarify could be incorporated in the cross-interrogatories. Ok.
We go to request for admission. Request for admission by.. by whom, by the adverse party. Take note ah, we
are not referring to admission by the defendant or admission by the plaintiff. It could be both. It is an
admission elicited from either party. It is a request for admission. Why? What is the subject matter of the
request? A document. We repeat the subject matter of the request is a document.
Q: What is it that we try to elicit from the adverse party whenever we are confronted with a document.
A:
1. The authorship thereof. Sino ang gumawa ng documentong yan. Who are the parties to the document.
That‘s one.
2. Genuineness of the document. Genuineness or authenticity.

These are the things that are addressed whenever we have a request for admission.
However, I will direct your attention but to pre-trial. Rules 18 noh. Under Rules 18, one of the things that the
parties could tackle is also et ah..stipulation. A stipulation, we said is synonymous to admission because you
stipulate or you admit that blank blank blank.. that is one of the things that is tackled during pre-trial we said.
And the purpose of that is obviously to expedite the proceedings because if something has been admitted of
course you do not need to present evidence. But your stipulations or admissions under Rule 18 could be
referring to anything. I repeat, anything. Which the proponent or the one seeking the admission might feel ah
would expedite the proceedings. But under your request for admission as a mode of discovery, the subject
matter is only a document. Just a document, not any other matter but just a document. We repeat, under Rules
18 the subject matter of the stipulation or admission could be anything … ranging from the jurisdiction of the
courts, the identity of the accused, the identity of the defendant , the identity of the plaintiff, relationship
between the parties. Anything could be asked for stipulation,

Q: but in request for admission, what is it again that is the subject matter?
A: A document.

Q: And when we speak of document, what are our concerns about it?
A: Genuineness, authenticity, authorship and more, for as long as it has something to do with the document.

During my time as an RTC Judge in Makati, there were a lot of request for admissions in civil cases involving
commercial contracts. We all know that Makati is one of the premier cities where business is
__________(00:14:24). Business is local, business is international. That is why when we were there, we had a
good time and a great way to apply this particular mode of discovery. Just imagine the commercial contracts
entered into by the multinational companies. This contracts could be this thick. It could be this thick (gestures).
Just imagine the delay that it would cost the court and tot he parties, if we have to so thorough and so exacting
bordering on what, on being unnecessarily meticulous. We can say that. Or bordering on unnecessarily
preoccupied with the nitty gritty, when you should not be doing that. So if, let‘s say, one corporation says, this
particular contract, particularly annex ―A‖ as an addendum to the main contract or to the container contract is
genuine, you do away with the rest. You do not bother yourself anymore with respect to the other
accompanying little things. You get what I mean class? Kung mayroon ng admission sa authenticity ng buong
contracts, that exbihit ―AA‖ or ―BB‖ is already included. The party who made the admission is already
precluded from raising little things. And these little things could definitely be _____________(00:16:00). We
have a term for that. This preoccupation with little things during trial is called ―nitpicking‖. You‘re a nitpicker.
It is nitpicking that we try to avoid and we successfully avoid if we use this request for admission.

Q: what is the effect of not serving written interrogatories to the other party?
A: Look at this consequence. If you fail to serve your set of interrogatories, the other party later on cannot be
compelled to testify on what? on the subject matters that you would have very well included in your set of
interrogatories. Another consequence, you cannot likewise compel the other party not served to testify or give

15
deposition pending appeal. But this consequence is so severe, right? The consequence is so severe, but it could
lead to dire consequences.

Q: but is it absolute, that if the parties not served, he cannot be compelled to testify eventually?
A: this is now a matter of judicial discretion. The court is not deprived of discretion as to whether or not it will
allow the party even though not served. If the court feels that the greater ends of justice could be best served if
this other party not served with written interrogatories will testify. So, the court is not shorn of discretion at all.
P wede pa rin i-utos ng korte kahit na sinasabi ng rules, hindi ka na pwedeng mag-testify. Did you that phrase?
―unless for a good cause shown”. In other words, the court may allow it if there is a compelling reason. If
there is a compelling reason for this party to testify although not served with the written interrogatories.

Q: Is there a prescribed form for the written interrogatories? Mayroon bang sinasabi ang rules kung anong
form dapat?
A: None. There is no prescribed form.

Q: so what should be the form?

A: it is in the form of a simple question. That‘s all.

Q: if it is a question, is there a need for such question to be accompanied by, let‟s say a document?
A: well if needed, why not? For after all, yung request for admission for instance refers to a document, diba?
So that document of course, has to be appended.

Q: eh paano kung written interrogatories, kailangan pa bang bigyan ng dokumento halimbawa?

A: if necessary. If only to enlighten further the other side.

Class you take note that we are so repetitive on emphasizing this point. The usage or availment of your modes
of discovery are not constricted. Which means, almost always, the court will grant your request to use the
same or to avail of the same. what did I say the other day? Or was it yesterday? There are only two limitations
to your resort to the modes of discovery:

1. privilege, we said. The other one is;

2. relevancy.

If the question is covered by a privilege, then definitely, it will not be allowed even though your usage if via a
mode of discovery. If the question is irrelevant, that mode of discovery will not likewise be allowed.

What else on admission?

Admission what is the duty of the party so requested to make an admission?

A: Well he has to determine for himself whether or not it is beneficial for him to admit. If indeed there is a
need for him to admit.

Q: What if he cannot admit anything?

A: Then he has to make a denial and which denial is specific. We have emphasized this when we were in
cause of action. In cause of action we say is based on an actionable document.

Q: Anong obligasyon ng defendant?

A: To deny specifically under oath that document under oath. But there is no need to put the one making
denial under oath if he is not a party on the document. Remember? Ganun din dito sa request for admission.

Q: What is the duty of the defendant?

A: To deny if he is minded to deny, but the denial should be specific. What was our explanation before when it
comes to specific denial. It is not enough that he denies. The denial should be accompanied by a little

16
justification why he is making that denial. He cannot simply say ―I specifically deny.‖ By using the words
specifically or specific does not make the denial specific indeed.

Q: What is the result again of not making the specific denial?

A: The allegation shall be deemed admitted.

Q: And what will happen if there is an admission?

A: It could possibly be lead in two things: judgment on the pleadings or summary judgment. Rule 34 and Rule
35. Alright. There is another mode of discovery and that is what is our pneumonic again DIAPP. So we are
done with Admission.

Q: What is the first P?

A: Physical and mental examination. That is the next mode of discovery. What is important to remember here
class is it is the physical or the mental condition that is the primary subject matter of the case. A suit for
paternity could warrant a recourse to physical examination.

Under the current rules, what could that be? DNA examination. A petition for annulment grounded on the
wife‘s frustration with the husband because of the latter‘s inability to consummate the marital act could
likewise warrant the application of this mode of discovery. Ano ulit yun? Chi Ming Tsoi? And a petition for
correction of entries in the birth certificate where unfortunately a male person is reflected therein as a female, a
physical examination could likewise thus abbreviating the proceedings.

Remember the story that I gave you, was it with this class? There was this nursing student who graduated from
nursing school and was about to take the board examinations. We all know that what is required in this case is
the submission of the birth certificate. Correct? Unfortunately for the poor student he was reflected to be a
female, so his predicament was that he cannot possibly be submitting a false certificate or certificate with false
or incorrect entries. So what did he do? He run to our court filed a petition for correction.

Q: What is it that could be corrected?

A: The gender. Nakalagay dun female siya when from his looks he is really a male.

Q: So what did we do?

A: We apply this. Physical examination. It was not me who conducted the physical examination. We simply
ordered the student to submit himself to the PGH. Isang araw lang. oh you go to the PGH show this court order
directing the director thereat to submit you to physical examination by any of the doctors. The only purpose of
the examination is to determine your gender and make sure to come back to the court armed with the
certification. Two days after he went back to court of course with the certification that after due examination
the patient is anatomically a male. So that‘s it. We granted his petition. In a matter of few days, we directed the
local civil registrar to correct the birth certificate. What ordinarily could take 6 months, was done in a matter
of few days. Ganun ang bisa ng ating mga modes of discovery. Ganyan din sa written interrogatories.

Q: What if the defendant practically admitted 7 out of 10 questions propounded to him?

A: Halos tapos na ang laban. Probably the court now can consider summary judgment. So they are tools
intended really to abbreviate trials. Okay next mode of discovery.

Q: Is your next P. What is the second P?

A: Production or inspection of documents.

Q: Is it documents only?
A: No things, objects, parcels of land, buildings they are all included. Anything susceptible to ocular
inspection is included under the last P. Of course if it is a building you cannot produce that to the court. If it is
something not susceptible of handling you can simply take a reproduction or photograph and bring that to
court. But your physical and mental examination, your production and inspection of documents should both be
preceded by a hearing.

17
But your physical and mental examination, your production and inspection of documents both should be
preceded by a hearing. Magkakaroon muna kayo ng hearing. A hearing that is compliant with Rule 15, your
rule on motions. What is required there? There has to be compliance with the three-day notice rule. You do
not set the hearing without the three days requirement. Ano nga ulit class ang mangyayari if you do not
observe the three days notice rule? Your motion shall be treated as a mere scrap of paper. You‘ll present
nothing. The court will not consider anything, if that is the case.

Q: What is the purpose of that hearing?

A: The purpose of that hearing is for (1) of physical and mental examination or the proponent or the movant to
give the court his/her reasons. Bakit gusto mo ipaexamine ang pangangatawan ng iyong asawa? That question
will be answered during the hearing. Sabihin ng movant, kasi po ganito kasi po ganyan. The court will have to
make a determination whether there is a need for physical examination. Wait. We are talking of civil cases
here.

Q: Can we apply this in a criminal case?

A: Yes, we can likewise apply this in a criminal case. In a rape case, one of the defenses, actually this his
carnival defense, the carnival defense of the accused was, I am already very old, he is 84 when he was charged
with rape and I am so afflicted with many ailments that are understandably hidden. Ano daw yung ailments na
yun? Ang dami daw niyang bukol. Okay? Oh, bukol? What are bukols? Bukol na in his word was,
nakakadiring tignan, okay, and those bukols according to him extended to his genitals. These bukols according
further to the accused, gave him so much pain, such that the possibility of thinking something mischievous is
remote, if not impossible. So, he offered himself for examination. I can submit myself for physical
examination. Just to see my physical condition inside. So, it was the accused himself who moved for physical
examination. The issue that confronted the Supreme Court was this: is this relevant in a rape case? Is an old
man with this condition assuming that his description is accurate enough to render a conclusion that rape could
have not been possible. That was the question. Because some other people might say, well, even if he is an old
man if he is seized by that sense of desire, he can still do it. The others say that there is no way because of his
age, particularly when he is likewise afflicted with other illnesses. But the Supreme Court nonetheless
sustained the trial court. When the RTC allowed the physical examination of the accused. But of course there
were parties who said, but the physical examination does not show whether he is capable of erection. But
nonetheless, the Supreme Court said, as to whether or not he is guilty is not the point. The question is can we
apply this mode of discovery? And the answer was in the affirmative. This is not exclusive to civil or
administrative proceedings it can also be used in a criminal case.

The other P, Production. If he is capable of manual delivery. Pwedeng dalhin sa court but during the hearing,
the movant should be able to tell the court the adequate description. Adequate description. But we are not
saying exact description. You recall your search warrant. Anong sinabi natin kahapon? As much as possible, it
is an exact description. Enough to make it separable or identifiable from the rest. So the general description is
not allowed in search warrant. It has to be adequeate if not unique description. Just to show you how it was
applied, there was a petition for support.

I think I already told you of this in our first meeting when we were taking up the bird‘s eye view of the
developmental stages of a civil case, anyway, there was a petition for support filed by the wife against the
husband, she was claiming P50,000 a month. Okay, the husband of course, did his best to oppose the motion,
he said, there is no way I can be able to give your P50,000 a month, because I my earning is only this much.
But the wife said, your honor may we resort to mode of discovery of production. What re you going to
produce? The employment records of my husband. Can we not ask the HR department of the place where he
works for him to bring the court of his employment records. What possible employment records? Anything
your honor pertaining to his position. We allowed because what is the attitude of the court, one of the
liberality. Two things lang ang limitations, remember? Relevancy and privilege. Sabi ng wife, pwede ba natin
tawagin ang HR department? And so since she prayed that the employment records … And so, since she
prayed, that the employment records be brought in Court, the HR department indeed turned it over. And she
brought: one, the job description of the husband. Of course that job description would be followed by the

18
salary. And the salary is followed by the other benefits like allowances, bonuses, etc. The Husband swore in
high heavens that he could not afford the 50k pesos monthly support but his salary showed that he is capable
of giving three 50ks. So 150k pala ang kanyang sahod at that time.

So because of these revelations showed by the documents, the husband was made to pay 50k monthly support.
Mabilis na because of the modes of discovery.

Repeat of Modes of Discovery

Q: What is D-I-A-P-P?
A:

D – Depositions
a. Pending action
b. Before action
c. Pending Appeal

Di ba dapat ang arrangement deposition before action, deposition pending action and deposition pending
appeal? But the rules put first Deposition Pending Action. And you know very well how they operate now.
Yung tatlong yan.

NOTE: If it is a civil case – deposition could be taken or allowed anywhere outside of the court where the case
is pending. But that is not so when it comes to criminal case. PEOPLE v. HARRY GO. In a criminal case –
the deposition-taking should be made right before the court where the criminal case is pending.

I – Interrogatories (Interrogatories to Parties)

NOTE: But your deposition could be made through oral examination or upon written interrogatories.

A – Admission (Request for Admission)

Q: What is the subject matter?

A: Documents.

P – Physical and Mental Examination

Q: What is the subject matter?

A: Obviously, the physical and mental condition of the litigant concerned.

P – Production or Inspection of Documents or Things

These last two (P-P) should be preceded by a hearing.

TOPIC: CONSEQUENCES OF NOT COMPLYING WITH THE MODES OF DISCOVERY

Q: If the party so served with the written interrogatories does not answer, wala lang, inignore niya yung
written interrogatories, what could possibly be done?
A: The other party can ask the Court to issue an order directing him (the refusing party) to comply. In short:
compulsion.

Compulsion could be a consequence.

Q: What other consequences could there be?

A: There could be citation for Indirect Contempt.

19
Q: Another consequence? Ayaw niya mag-comply.
A: Pagbayarin mo siya. For him to reimburse reasonable fees or reasonable amount rather.

And in the example we have given yesterday, remember the foreign group of companies? They were supposed
to have deposition-taking somewhere else but the other side did not appear. What did they do? The Makati
RTC directed the non-appearing party to reimburse.

What else…

Q: In your Request for Admission we said that the subject matter is a document – what is the effect of not
even denying the document?
A: The allegation with respect to that document is deemed admitted. So whatever it is that the proponent, or,
for example, production and inspection of a land, shall be considered deemed established.

E.g. If for example the proponent says: ―May we ask Your Honor for the ocular inspection of the subject
parcel of land for us to see that it really is surrounded by three immovable making it impossible for the
plaintiff to have an access to the main road.‖ This is for an action for easement, for example.

If the other party does not comply, or does not cooperate with the intended inspection – then the description of
the movant that indeed that parcel of land is surrounded by immovable shall be deemed established.

That is the effect. Imagine the effect? How could you possibly dispute that if you were the negligent party.
Humihingi yung other party ng pagkakataon na tignan natin yung lupa Your Honor, kasi po napaligiran na ng
iba-ibang buildings. Hindi ka nagcooperate. What is the effect? The effect is that the allegation that the land is
surrounded by immovables shall be deemed established. And the defendant cannot refute that.

Trial

There are several things that happen in a trial. When we say trial, it presupposes that tapos na yung mga nauna.
Remember the outline that we have given, it started with the cause of action, right of action, preparation of the
complaint, determination of the jurisdiction, service of the complaint and the summons, and then possibilities
of filing an answer, possibility of filing a motion for a bill of particulars, possibility of filing a motion to
dismiss. And then after that, Pre-Trial. And there were so many other things that are supposed to be discussed
there under Rule 18. After all that Pre-Trial, including your Modes of Discovery, the case is now ripe for Trial.
This is now the stage that we are in. It is during that stage that the parties are made to testify.
Q: To testify on what?
A: For the plaintiff to testify on his main allegations in the complaint.

Q: What is it that is contained in the complaint again?

A: The ultimate facts. The things that comprise the cause of action.

Q: Ano na sasabihin niya ngayong mag-tetestify na siya sa witness stand?

A: He will now testify on the details about the ultimate facts alleged in the complaint. He will give the what,
the when, the where, the how, the why of his own story. It is the act of giving an oral narrative. The plaintiff
takes the witness stand, he tells everything in detail to build his ultimate facts consisting of his cause of action.

Judicial Affidavit Rule

During these days, we have adopted the Judicial Affidavit Rule. It is intended to abbreviate the proceedings.

Q: How will it abbreviate the proceedings?

A: By directing first the witness who is supposed to testify to submit his judicial affidavit.

20
Q: Bakit Judicial Affidavit?
A: Because it will be his testimony on direct examination. So instead of him narrating before the court from
top to bottom orally, everything is already in his judicial affidavit. But that judicial affidavit of course has been
given to the other side. In short class, before the witness, particularly the plaintiff takes the witness stand, alam
nang kabila kung ano ang sasabihin niya. Because the kabila has been given a copy of the judicial affidavit.

Q: So ano na mangyayari? Diba sabi natin magtetestify na si plaintiff sa kanyang what where when why.
A: Well the plaintiff will simply identify his judicial affidavit. Imagine the time that will be saved. The
plaintiff will be simply asked “Plaintiff are you the same Jonathan Santos who is the affiant here?” And the
witness will of course say “Yes ma‟am, I am the same Jonathan Santos”. Then he is asked again, “I am
showing you an affidavit marked as exhibit A, will you go over the same and tell us if this is yours?” and
Jonathan Santos will say ―Yes ma‟am that is my judicial affidavit”. Third question “Over the typewritten name
Jonathan Santos is a signature, will you please tell us whose signature is this? And Jonathan will say “That is
my signature”. Last question ―Do you affirm and confirm all the is stated here in this affidavit?” and Jonathan
will say “Yes ma‟am”. Tapos.
Whereas before, questions would start such as “Mr. plaintiff, are you the same Jonathan Santos who is
referred to in this case as the plaintiff?” “Yes, ma‟am” “Why are you in this court?” “Because I want to file a
case against the defendant” “Why are you filing a case against the defendant?” “Because he damaged my
property” “When did he damaged your property?” “Last April 15, 2015” “Do you have any proof?” And so
on and so forth. It will take probably three days for this witness to narrate his story. Whereas in your Judicial
Affidavit Rule, everything is already in the affidavit.

Q: In short, after the four or five questions propounded to Jonathan, what will happen next?
A: The other party is now ready to cross-examine. Napabilis ang lahat. That is the importance of your
Judicial Affidavit Rule.

Re-Direct Examination

Q: After the Cross-examination what happens?

A: The counsel for the plaintiff will conduct again a re-direct examination.

Q: What is the purpose of that?

A: To save ―whatever it is that is destroyed‖ during the cross-examination. In other words, the purpose of the
re-direct examination is to prop up anew, bubuhayin niya ulit kung ano man ang nagiba ng cross-examiner.

Q: And what will the other side do after the plaintiff is successful is propping up the case in the re-direct?
A: Gigibain ulit ng defendant through re-cross examination.

Trial in Open Court

Q: What do we mean when we say Trial should be conducted in open court? Are we being literal when we
say open as in the door is open?
A: It simply means that the trial is open to anyone, to the public. Anyone who is minded or interested to go
there would go in and he could not be prevented. The only thing that he can be taken out of the court is when
he makes misbehavior.

Another exception, it could not be an open court trial if what is involved is highly sensitive or offensive to
ones sensibilities. Often times, in criminal case, we have rape cases, particularly incestuous rape because
studies confirm that a child could not really give her/his story or simply narrate when the court is open and the
witness is there.
Under the Child Witness Protection Rule or Child Witness Examination Rule, there are certain measures
adopted to protect the child.
Family Court cases are not supposed to be open to the public.

21
Adjournment vs. Postponement
It is an adjournment only if the case in the meanwhile is terminated for the purpose of continuing it to another
day.

It is postponed if practically, the Court does not conduct any proceeding because the parties requested that the
continuity of the proceeding be set to another day.

The postponement could either be initiated by the parties themselves or by one coming from the Court. But
postponement could not be taken to be automatically granted.

Order of Trial

The plaintiff is the first who will present. The plaintiff who has the burden of proving by preponderance of
evidence his case.

PREPONDERANCE OF EVIDENCE–it is that degree of evidence which shows to the court that the same is
more credible, more believable in terms of weight. It is more believable because it is persuasive. It includes the
number of pieces of evidence.
In criminal cases, the quantum of evidence required is proof beyond reasonable doubt. It means that something
satisfy the senses of the Court.

SEC.6 “AGREEMENT OF STATEMENT OF FACTS” these are the stipulation of facts.

NOTE: We first encounter stipulation of facts during pre—trial
Synonym of stipulation is admission.

Q: Kailan ulit natin makikita ang admission?

A: Sa modes of discovery. Admission made by the adverse Party

Q: If there are agreed statement of facts, can we expect the court to render a decision based on the admitted
facts?
A: definitely yes. The court could be placed in a situation, to where it could be expected to render a judgment.
And we call it SUMMARY JUDGMENT.

Q: What if there are other remaining matters that could not be agreed upon by the parties?
A: The trial will be only limited to the disputed facts.

Q: Is it possible for the Court to render partial judgment?

A: Yes
Q: if it is in the nature of a partial judgment, will that be a separate judgment from that rendered
subsequently?
A: Yes. Rule 36 (Separate Judgment)
Section 17 is self—explanatory that is why the Courts are referred to as COURTS OF RECORD.

Q: Why are they referred to as Courts of Record?

A: because everything that has been uttered before the Court during the proceeding is everything that the judge
says including his, I hope no one does this, his curses is included. But the judges today are so conscious of that
because of the clear possibility of an administrative sanction. Everything that the counsel says, everything that
the witness says or the litigant says is recorded.

If something is already admitted, it becomes a judicial admission and judicial admissions cannot be taken
back.

Q: Under what instances can it be taken back?

A:

22
1. By showing that the same is a result of a palpable mistake;
2. By showing that no such admission was made.

Q: How do you prove #2?

A: By resorting to the recordings. The stenographer is assisted by a tape recorder and the stenographer swears
to the accuracy of recording. So if you say “Your Honor, I never made that admission.” and the other party
insists, your recourse is the recording. That is why courts here are referred to as ―courts of record‖.

Suspension of Actions

Q: What action is this?

A: We are referring to civil actions.

Q: When can we possibly suspend the proceedings?

A: Well, when the parties are minded to, let‘s say have a breathing period of sixty (60) days, that‘s too much
within which to finalize and explore further the possibility of an amicable settlement, then fine, We suspend
the proceedings.

Q: Is it possible that in the meanwhile the proceedings will be suspended pending the result of the ocular
suspension?
A: Yes.

Q: Pending the results of the geodetic engineer in a land or boundary dispute?

A: Yes.

Q: While the doctors are at the peak of determining whether or not the litigant is of sound mind?
A: Yes.
Criteria: So any valid reason for suspension could be used.

Q: What is the duration of the suspension?

A: Within a period of sixty (60) days.

Q: May it be extended?
A: Yes.

Segue: Now, let me bring you again to Criminal Procedure. The arraignment of the accused could be deferred
in fact it could be suspended in three (3) cases. They are:

1. If there is a pending petition for review before the Department of Justice (DOJ);
2. If the accused is of unsound mind; and
3. If there is (existence of) a prejudicial question.

So we see that in criminal cases there can be suspension and in civil cases too, there could likewise be
suspension.

Delegation to the Clerk of Court

Q: What about the possibility of delegating to the clerk of court the reception of evidence?
A: Sometimes the clerk of court is referred to as the ―little judge‖ and rightly so because sometimes he/she acts
like a judge but he/she CANNOT rule. That function is exclusively lodged with the judge.

Q: What happens to the clerk of court if he/she oversteps his/her authority and makes rulings?
A: He/she could be charged for usurpation of office for the criminal case and not to mention the administrative
case.

23
Q: What are those that can be delegated to the clerk of court?
(review)
Q: What happens again to the defendant who does not submit his reply or answer?
A: He can be declared in default.

Q: And if he is declared in default, anong pwedeng gawin ng plaintiff?

A: He can present his evidence ex parte.

Q: What is the meaning of that phrase “ex parte”?

A: In the absence of the other party. Now if the defendant has been declared in default, he loses his standing in
court. Para siyang non-existent. Wala siya kahit nandun siya sa sulok ng husgado, nakikinig, nanunood but he
cannot participate.

Q: What is that right the he (defendant declared in default) retains?

A: He retains the right to receive copies of the orders of the court. But he has a remedy – FAMEN (fraud,
accident, mistake, excusable negligence). So if the defendant did not answer, the plaintiff can still proceed. He
can present his evidence ex parte. If it is in the absence of the other party, it could be the same – that the court
allows the clerk of court to receive the plaintiff‘s evidence. So the clerk of court could just be there taking note
of the proceedings while the plaintiff is narrating his story and recorded by the stenographer. Yun, pwedeng i-
delegate sa clerk of court.

Topic: Summary of the Discussions: Jurisdiction to Trial

 After completion of verification and certification against non-forum shopping you are now ready to go to
court. But which court? You will now determine jurisdiction.
Note: Jurisdiction should not be confused with venue.

 After determining the propriety of the court, you are now ready for the service of the complaint and the
summons. This is now where your personal, substituted, publication, extraterritorial mode shall be seen.

 After the service of summons it is now the turn of the defendant, to either: (a) answer; (b) file a motion to
dismiss; (c) file a motion of bill of particulars; or (d) not to answer at all. At ang daming pwedeng
mangyari dyan. Motion to dismiss under Rule 16—you should know them by now. Remedies of
defendant who shall be declared inn default—you should know the remedy.

 After the defendant had filed an Answer, the issues are now joined—the case is now ready for pre-trial.
And again we have discussed the various things the parties and the court may tackle during pre-trial
including modes of discovery.
Note: Acronym for Modes of Discovery—DIAPP

 After pre-trial? Trial.

 After Trial? They are simply the other important provisions following but the more important ones are (a)
judgement on the pleadings and (b) summary judgment.

Yehey!!! We are done!

Q: What if the sheriff is about to serve the service of summons to the defendant, and when he is about to enter
the village, the guard told him that the defendant is out. The sheriff went back, still the defendant is out but it
was found out that the defendant actually instructed the sheriff to tell anything that will say that ―I am out.‖ In
short, the defendant exerted efforts to thwart the service of summons. What would be the remedy?

24
A: Leave it to the guard because the defendant exerted all his efforts to thwart the service of summons.
(Manotoc Case)

Note: Tandaan nyo yang circumstance na yan kasi darating tayo sa revival of judgment. Your judgment would
be executed within 5 years upon mere motion but if the judgment is not implemented within 5 years the
remedy is revival of judgment. Action na yan, but there is an exception— if the defendant thwarted the
execution; if through his own fault despite the question that you are propounding then that fault could not be
ascribe to the prevailing pa

25