Report On Civil Procedure.docx

Domestic and Extraterritorial Depositions By. Krisha Faye F. Ambol I. Persons before whom depositions may be taken within the Philippines.

Section 10. Persons before whom depositions may be taken within the Philippines. — Within the Philippines depositions may be taken before any judge, notary public, or the person referred to in section 14 hereof. (10a, R24); REPORTER’S NOTES: I.1 Overview. It is important that the deposition of a witness or deponent be taken before those who are authorized to do so, otherwise such deposition may be objected to1 on the ground of such lack of authority2. This will make the whole laborious process of applying and taking depositions a waste of precious time. Section 10 of Rule 23, enumerates the authorized person’s who may take depositions here in the Philippines, who are the following: 1. Any judge; 2. Notary public; and 3. The person referred to in section 14. The reason for this rule is that such authority is essential in the process of obtaining any information which may incriminate or prejudice private or public persons. Persons authorized to take such oaths have the sworn duty to ascertain whether such statement elicited during the course of the deposition are done according to law and that the person giving such information are competent individuals and no vitiation of consent or any duress is attendant during the course of the interrogation.

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Section 6. Objections to admissibility. — Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing, to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (6, R24); 2

Rule 23, Section 29 Effect of errors and irregularities in depositions. —, (b) As to disqualification of officer. — Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. Page 1 of 7

Furthermore, willful and deliberate false testimony or any misrepresentations before such authorized person likewise may make the liar liable to perjury3. I.1.a. Depositions before a Judge. A judge is any person who is clothed with judicial power who may hear and decide a case. The judge referred to in this section may be the judge of the court where the case is pending. The judge, after an order granting a request or motion to take a deposition may issue a subpoena to compel a witness to come to court where such witness may be orally examined4 (the counsel for the party who is requesting deposition usually asks the questions to the deponent before the judge). Subject to the rule5 that only witnesses residing within 100 kilometers of the court may be under the compelling power of the subpoena, a party requesting a deposition of a person who is beyond 100 kilometer may have such request routed to the court which is within 100 kilometers from of the residence of the deponent. In which case, the judge to whom the request was routed may issue a subpoena for the sole purpose of compelling the attendance of such person for the deposition6. I.1.b. Depositions before a Notary Public. “Notary Public” and “Notary” refer to any person commissioned to perform official acts under the Rules on Notarial Practice.7 Particularly, a notary public has the authority to administer acts or affirmation to wit8:

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RT. 183. False testimony in other cases and perjury in solemn affirmation. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or to make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. 4 Section 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. 5

Section 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) 6

Section 2. By whom issued. — The subpoena may be issued by — (b) the court of the place where the deposition is to be taken;

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SEC. 9. Notary Public and Notary. - A.M. No. 02-8-13-SC , 2004 Rules on Notarial Practice A.M. No. 02-8-13-SC , 2004 Rules on Notarial Practice Page 2 of 7

SEC. 2. Affirmation or Oath. - The term “Affirmation” or “Oath” refers to an act in which an individual on a single occasion: chan robles virtual law library (a) appears in person before the notary public; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) avows under penalty of law to the whole truth of the contents of the instrument or document. I.1c. Depositions before the person referred to in section 14.

Section 14. Stipulations regarding taking of depositions. — If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules and when so taken may be used like other depositions. (14a, R24) Section 21 of the Revised Administrative Code provides:

Section 21. Officials authorized to administer oath.—The following officers have general authority to administer oaths, to wit: a) President; b) Vice-President; c) Members and Secretaries of both Houses of the Congress; d) Members of the Judiciary; e) Secretaries of Departments; f) provincial governors and lieutenant-governors; g) city mayors; h) municipal mayors; bureau directors; i) regional directors; j) clerks of courts; k) registrars of deeds; l) and other civilian officers in the Philippine public service whose appointments are vested in the President of the Philippines and are subject to confirmation by the Commission of Appointments; m) all other constitutional officers; n) and notaries public. o) A person who by authority of law shall serve in the capacity of the officers mentioned above shall possess the same power. It must be noted that the authority to take the deposition under section 14 arises only when both of the party agree in writing to such Page 3 of 7

persons as the deposing officer. Without such written stipulation no deposition may be allowed to be taken with such persons as the deposing officer. II. Persons before whom depositions may be taken in foreign countries.

Section 11. Persons before whom depositions may be taken in foreign countries. — In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) the person referred to in section 14 hereof. (11a, R24); Section 12. Commission or letters rogatory. — A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms, and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. (12a, R24); REPORTER’S NOTES: Section 11 and 12, describes the rule on extraterritorial discovery. The main issue to be resolved again is authority of the deposing officer to administer oaths and how the law may be validly given force in places beyond the Philippine court’s jurisdiction and compelling power. Figure 1. Chart illustrating the persons authorized to take deposition under section 11, rule 23 of the RULES OF COURT.

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II.a. Depositions on Notice Depositions on Notice are those deposition whose deposing officer may be requested by a Notice from a court, after such party applies or petition for such notice to be routed to a Consular office. This is done when a party wishes to conduct before Consular Officers particularly, secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, must comply with OCA Circular 209-2017. The circular provides an annex document from the Department of Foreign Affairs, Office of Legal Affairs on service of processes and litigation. The document is entitled, “Guidelines in Taking of Deposition before Philippine Consular

Officers”.

The guideline details a process flow as described on Figure 2 below. Figure 2. Flowchart of process for a deposition on notice as prescribed in OCA CIRCULAR 209-2017. 1. REQUESTING COUNSEL (RC) -moves/ applies before the Court to request for the DFA’s assistance in taking deposition

1.a COURT GRANTS/ISSUES ORDER

2. RC- submits the request letter, order granting request for court assistance , and written interrogatories (if the deposition is through the same) to the DFA-OFFICE OF LEGAL AFFAIRS.

3. OLA- transmits All documents to the foreign service post nearest the residence of the deponent.

7. DEPOSITION PROPER (The deposing party shall coordinate with deponent and will be the one responsible for deponent's attendance)

8. the consular officerdeposing officer shall transmit all written interrogatories, transcripts and documents to the OLA.

6. payment of required consular fees by deposing party.

9. OLA transmits all record to the relevant COURT.

5.OLA communicates details to deposing counsel.

4. Philippine Foreign Service Post-comment on acceptability and schedule and give deposing officer's name and designation to OLA.

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II.a. Depositions on Commission and Letters Rogatory. A Commission, is an instrument addressed to any authority in a foreign country authorized therein to take down depositions and the taking of such deposition is subject to the rules laid down by the court issuing the commission9. Letters Rogatory are documents addressed to a judicial authority in the foreign country and the taking of such deposition is subject to the rules laid down by such foreign judicial authority10(see Table 1 for the list of known distinctions). Table. 1. Distinctions Between Commission and Letters Rogatory.

Distinction

Commission

Letters Rogatory

Purpose

To depose a person outside the consular jurisdiction or those without consular offices or it it more covenient;

Issuing authority

The court were the action is pending

The court where the action is pending

Deposing officer

The officer designated by name or the person to whom the descriptive title pertains

The appropriate judicial authority requested

Rules applied

The rules of the court which issued the commission

The rules of the foreign court requested

Commission is clothing a particular PERSON or descriptive title while Letter’s rogatory may be addressed to the appropriate judicial authority in the foreign country. Letters Rogatory may only be applied for ONLY AFTER a commission has been returned unexecuted11. This may be further gleaned from Form 21 of the "Judicial Standard Forms" appended to the Rules of Court, which requires the inclusion in a "petition for letters rogatory" of the following paragraph, viz.:

3. A commission issued by this Court on the ______ day of ______, 19__, to take the testimony of (here name the witness or witnesses) in (here name the foreign country in which the testimony is to be taken), before _________________ (name of officer), was returned unexecuted by __________________ on the ground that ____________, all of which more fully appears from the certificate of said __________ to said commission and made a part hereof by attaching it hereto (or state other facts to show commission is inadequate or cannot be executed) (emphasis supplied). 9

Dasmarinas Garments vs. Reyes etc. et. Al. GR No. 108229, Aug 24, 1993.

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Ibid.

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Case: Dulay vs Dulay 200312 Issue. Whether the admission of a deposition through the notary public in New York despite the explicit order or directive for letters rogatory was proper; Held: Yes, the admission was proper. When the letters rogatory cannot be effected, the resort to a deposition via a notary public was a valid alternative: Based on two (2) reasons: 1. It would be illogical and unreasonable to expect respondent

to comply with the letters rogatory without the cooperation of the very institution or personality named in the letters rogatory and requested to examine the witnesses; 2. Respondent substantially complied with the requirements for depositions taken in foreign countries.

In the Dulay case the court expounded on the essence of deposition and why such discretion was applied to the case. Here, the court explained that the use of discovery procedures is directed to the sound discretion of the trial courts which, in general, are given wide latitude in granting motions for discovery in order to enable the parties to prepare for trial or otherwise to settle the controversy prior thereto; It was not within the trial courts power, much less the respondents to force the Clerk of Court of Boston to have the deposition taken before it. After all, while a court had the authority to entertain a discovery request, it is not required to provide judicial assistance thereto. This reality was recognized by the trial court when it ordered respondent to have the questioned depositions authenticated by the Philippine consulate. The court ruled that refusing the allowance of the depositions in issue would be going directly against the purpose of taking the depositions in the first place, that is, the disclosure of facts which are relevant to the proceedings in court.

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Dulay vs.Dulay, G.R. No. 158857, November 11, 2005. Page 7 of 7