1997 Rules on Civil Procedure

Rule 21 Subpoena

Rule 21 SUBPOENA Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person requiring him to attend and to testi ! at the hearing or the trial o an action" or at an! in#estigation conducted b! competent authorit!" or or the ta$ing o his deposition. %t ma! also require him to bring &ith him an! boo$s" documents" or other things under his control" in &hich case it is called a subpoena duces tecum. '1a" R2() Rule 21 applies to both civil and criminal cases. Q: What are the types of subpoena under the law? A: The followin are the types of subpoena: 1.! "ubpoena Ad Testificandum# and 2.! "ubpoena $uces Tecum %ow& the first one is commonly 'nown as subpoena for short. "o& when you say that refers to the first one. Q: $efine "ubpoena Ad Testificandum. A: "()*+,%A A$ T,"T-.-/A%$(0 is a process directed to a person re1uirin him to attend and to testify at the hearin or trial of an action& or at any investi ation conducted by competent authority& or for the ta'in of his deposition. "o you are re1uired to appear there and testify in court. Q: $efine "ubpoena $uces Tecum. A: "()*+,%A $(/," T,/(0 is a process directed to a person where it re1uires him to brin with him any boo's& documents or other thin s under his control. "o& in other words we are more interested in his documents& which are in his custody. Whereas in ad testificandum& we are more interested in his oral testimony. %ow& ta'e note that a subpoena is a process which re1uires a witness to testify not only durin the hearin or the trial of his case but also any investi ation conducted by 2competent authority3 li'e 1uasi45udicial bodies such as the 6abor Arbiter or the "enate )lue Ribbon /ommittee. %ow& under "ection 1& you may wonder what do you mean by subpoena 2for the ta'in of his deposition3? That because that will clearer when we reach Rule 27. "o we will 5ust reserve tal'in deposition when we reach Rule 27. Sec. 2. By whom issued. *he subpoena ma! be issued b!+ a) the court be ore &hom the &itness is required to attend, b) the court o the place &here the deposition is to be ta$en, c) the o icer or bod! authori-ed b! la& to do so in connection &ith in#estigations conducted b! said o icer or bod!, or d) an! .ustice o the Supreme /ourt or o the /ourt o Appeals in an! case or in#estigation pending &ithin the Philippines. 0hen application or a subpoena to a prisoner is made" the 1udge or o icer shall e2amine and stud! care ull! such application to determine &hether the same is made or a #alid purpose. No prisoner sentenced to death" reclusion perpetua or li e imprisonment and &ho is con ined in an! penal institution shall be brought outside the said penal institution or appearance or attendance in an! court unless authori-ed b! the Supreme /ourt. '2a" R2() Q: Who are authori8ed to issue subpoena? A: The followin :

27

1997 Rules on Civil Procedure

Rule 21 Subpoena

1. The court before whom the witness is re1uired to attend 9 the most common is the court where the court is pendin # 2. The place where the deposition is to be ta'en 9 we will discuss that when we reach Rule 27# 7. The officer or body authori8ed by law to do so in connection with investi ations conducted by said officer or body 9 %ow& even administrative bodies or 1uasi45udicial officers are authori8ed to issue subpoena li'e the 6abor Arbiter in connection with investi ation conducted by said officer or body# :. Any ;ustice of the "upreme /ourt or of the /ourt of Appeals in any case or investi ation pendin within the *hilippines 9 "o& practically any 5ustice can issue a subpoena to attend a particular case althou h it is not before the "/. They are empowered to issue a subpoena. Q: /an you subpoena a *R-"+%,R to appear in court? A: <,"& but the law says that the 5ud e should be very careful to find out whether it is issued for a valid purpose because there is a ris'. -f a prisoner is oin to be brou ht out in 5ail because he has to testify in a case& that mi ht be an occasion for him to escape. "o& the court should be very careful about that. The court should have to find out whether it is necessary. And ta'e note& 2%o person sentenced to death& reclusion perpetua& or life imprisonment and who is confined in a penal institution shall be brou ht outside the said penal institution for appearance or attendance in any court unless authori8ed by the "upreme /ourt.3 This is somethin new. - thin' this last para raph is from the case of former Congressman %icanor de =u8man of %ueva ,ci5a who was convicted of un runnin . >e was sentenced in 0untinlupa then one day& because of subpoena to testify in his hometown& he was escorted in his hometown to attend the fiesta and then - thin' he 5ust used that as an e?cuse to attend the fiesta. And that was attac'ed by the media 9 why was he allowed to leave the national penitentiary when he is sentenced to reclusion perpetua? "o& this para raph now appears. <ou cannot remove him from any %ational *enal institution without authority of the "/. Sec. (. Form and contents. A subpoena shall state the name o the court and the title o the action or in#estigation" shall be directed to the person &hose attendance is required" and in the case o a subpoena duces tecum" it shall also contain a reasonable description o the boo$s" documents or things demanded &hich must appear to the court prima acie rele#ant. '(a" R2() %ow& actually that is simple. <ou are re1uired to testify on this date or time or you are re1uired to brin with you the followin documents& which was described in the subpoena duces tecum. %ow& can a subpoena be 1uashed? To 1uash means to have it dissolved. What are the rounds to 1uash a subpoena? "ection :: Sec. 3. Quashing a subpoena. *he court ma! quash a subpoena duces tecum upon motion promptl! made and" in an! e#ent" at or be ore the time speci ied therein i it is unreasonable and oppressi#e" or the rele#anc! o the boo$s" documents or things does not appear" or i the person in &hose behal the subpoena is issued ails to ad#ance the reasonable cost o the production thereo . *he court ma! quash a subpoena ad testi icandum on the ground that the &itness is not bound thereb!. %n either case" the subpoena ma! be quashed on the ground that the &itness ees

28

1997 Rules on Civil Procedure

Rule 21 Subpoena

and $ilometrage allo&ed b! these Rules &ere not tendered &hen the subpoena &as ser#ed. '3a" R2() 4ROUN5S *O 6UAS7 SUBPOENA 5U/ES *E/U8 Q: What are the rounds for 1uashin a subpoena duces tecum? A: The followin are the rounds: 1.! -f the subpoena duces tecum is unreasonable and oppressive# 2.! The relevancy of the boo's& thin s or documents does not appear# 7.! the person in whose behalf the subpoena is issued fails to advance the reasonable cost for the production thereof. First Ground: IF THE S B!"E#$ % CES TEC & IS #'E$S"#$B(E $#% "!!'ESSI)E Well& the best e?ample is if it violates "ection 7 9 it does not contain a reasonable description of the boo'& documents or thin s demanded. ,@A0*6,: - will subpoena a business man to a business company& 20r. 0ana er you are re1uired to brin to court all your led ers& all your receipts& and all your documents from 1AAB to the present.3 0y ollyC That would involve how many truc' loads. 0eanin & it would involve brin in to court thousand of documents. "o& it becomes unreasonable and oppressive. The subpoena duces tecum should be more specific. Second Ground: THE 'E(E)$#C* "F THE B""+S "' %"C &E#TS %"ES #"T $!!E$' 0eanin & there appears to be no connection between the documents which are bein sou ht& and the issues in the case. ,?ample& in a collection case& you were re1uired to brin your birth certificate& marria e contract& etc. 0y ollyC Anon pa'ialam n m a niyan sa collection case? Third Ground: THE !E'S"# I# ,H"SE BEH$(F THE S B!"E#$ IS ISS E% F$I(S T" $%)$#CE THE 'E$S"#$B(E !'"% CTI"# THE'E"F This is a very common situation: A ban' received his subpoena duces tecum& 2*resent to court the led er of the return chec' of somebody.3 And this chec' was issued and send to you four years a o. $o you 'now the inconvenience when a company is as'ed to brin to court documents especially Dyun mata al na? *ractically& the company has to assi n the employee out of his usual 5ob. >e is pulled out from his usual 5ob to loo' for these in the archives. -sa4isahin niya iyan. 0aybe it will ta'e him two or three days to locate and then he will be re1uired to o to court where you will miss your wor' because you will be in court and yet the person who demand the subpoena duces tecum has never been bothered to pay service fee for that. 0eanin & dapat ma bayad siya reasonable cost. +f course& the law does not say how much. "a obyerno n a papirma 'a lan diyan n isan pirma bayad 'a na n service fee. >ow much more in the private sector& where you are re1uirin a company to loo' for a document? >e is the one to loo' and then somebody will o to court. >e will not be reportin for 5ob and yet you have not even offered anythin to the company. We e?perienced this many times subpoena duces tecum& and then the mana er of the ban' will say& 2do we have to comply with these?3 Well& you do not want to comply. *uwede man.

29

1997 Rules on Civil Procedure

Rule 21 Subpoena

When you received the subpoena duces tecum& may bayad ba? $id the person offer any amount for the trouble in loo'in for these documents and in oin to court? 2Wala.3 +'ay& we will move to 1uash. -n other words& sometimes companies and ban's 5ust waived this. "i e lan & bayaan mo na. 0aliit na ba ay lan iyan. )ut it is a round for 1uashin a subpoena. 4ROUN5 *O 6UAS7 SUBPOENA A5 *ES*%9%/AN5U8 Q: >ow do you 1uash a subpoena ad testificandum? A: The court may 1uash a subpoena ad testificandum on the round that the witness is not bound thereby. Q: When is a witness not bound by a subpoena? A: The best answer is "ection 1B of this rule 9 if your residence is more than 1BB 'ilometers from the place of trial. "o& you cannot subpoena someone from /ebu to come to $avao because that is more than 1BB 'ms. )ut suppose you are willin to pay for his transportation? %ever mind& even if he is willin to pay the transportation. *a ayaw niya& wala 'an ma a awa because it is more than 1BB 'ms. -n either case& whether subpoena duces tecum or ad testificandum& the last sentence says& 2<ou must also tender the witness fees and 'ilometra e allowed by this rules.3 Ano ba Dyan witness fees? - thin' thatEs Rule 1:1& Dyun ban pamasahe. There is a computation there. >ow much you have to pay the witness for his transportation and witness fees. That is different from the reasonable cost and reproduction in the first para raph. "o& these are the rounds for 1uestionin a subpoena. Sec. :. Subpoena -or depositions. Proo o ser#ice o a notice to ta$e a deposition" as pro#ided in sections 1: and 2: o Rule 2(" shall constitute su icient authori-ation or the issuance o subpoenas or the persons named in said notice b! the cler$ o the court o the place in &hich the deposition is to be ta$en. *he cler$ shall not" ho&e#er" issue a subpoena duces tecum to an! such person &ithout an order o the court. ':a" R2() %ow& letEs us s'ip "ection F for the meantime because that is deposition. Sec. ;. Ser.ice. Ser#ice o a subpoena shall be made in the same manner as personal or substituted ser#ice o summons. *he original shall be e2hibited and a cop! thereo deli#ered to the person on &hom it is ser#ed" tendering to him the ees or one da!<s attendance and the $ilometrage allo&ed b! these Rules" e2cept that" &hen a subpoena is issued b! or on behal o the Republic o the Philippines or an o icer or agenc! thereo " the tender need not be made. *he ser#ice must be made so as to allo& the &itness a reasonable time or preparation and tra#el to the place o attendance. % the subpoena is duces tecum" the reasonable cost o producing the boo$s" documents or things demanded shall also be tendered. ';a" R2() The first sentence says& 2"ervice of the subpoena shall be made in the same manner as personal or substituted service of summons.3 That is a new provision. "o& the mode of service of summons& personal or substituted is also the manner of servin subpoena. "o there is now a substituted service of summons. <ou can leave it to the wife. (nder the old rule& it says there& the subpoena shall be served personally to the witness. There is no such thin as substituted service of subpoena because in most cases& when you subpoena somebody& you o to the house& the witness is not there but the wife is there. "o sabihin mo& 2-bi ay mo na lan sa husband mo ito.3 That is substituted service of subpoena. <ou must serve it personally to the witness. There is no such thin as substituted service of subpoena (nder the prior rule.

30

1997 Rules on Civil Procedure

Rule 21 Subpoena

)ut %+W& the rule has chan ed because "ection G is very clear: 2-t shall be made in the same manner as personal or substituted service of summons.3 Alri ht. And ta'e note that <ou e?hibit it to the witness. Then bayaran mo Dyon 'anyan pamasahe. <ou must serve the subpoena with a reasonable time to me to allow him to travel. -tEs very unbecomin that the witness be serve a subpoena today and he is suppose to testify tomorrow. "uppose he has other commitments& bi yan mo siya n time. And of course& as we discussed earlier& the reasonable cost of producin the boo's& documents or thin s demanded shall also be rendered. Sec. =. !ersona/ appearance in court. A person present in court be ore a 1udicial o icer ma! be required to testi ! as i he &ere in attendance upon a subpoena issued b! such court or o icer. '1>" R2() =,%,RA6 R(6,: <ou can be compelled to testify if you have not been serve with a subpoena. ,@/,*T-+%: "ection H 9 a person present in court before a 5udicial officer maybe re1uired to testify as if he is under subpoena. ,@A0*6,: $urin the trial& 0r. *o i is there. =usto niyan ma'ini eh. Audience lan siya. And then the lawyer will say& 2+ur first witness is 0r. *o i.3 "abi niya 2(y& uy& wala 'oy labot diri. - was not under subpoena.3 %+& <ou can be compelled because you are present in court. Any person present inside the courtroom can be compelled to testify as if he is under subpoena. "o& if 0r. *o i believes he will be called and ayaw niya& huwa siyan sumipot sa court. >uwa 'an ma tin in4tin in doon. -t happened several times. There was an instance - wanted to call a witness several times to surprise him. -f - will have him subpoena& ba'a ma'abantay. Alam din niya. And then -Ell tal' to him. 2+ punta 'a bu'as ha? "i urado ha.3 -n other words& -Ell have to tric' him into oin into courtroom and then once inside& my first witness is that uy. Wala 'an ma awa. )ecause any person present in court can be compelled to testify because if - will have him subpoena& he will be forewarn. "o - do not want to forewarn him. .A-6(R, T+ A**,AR# /+%",Q(,%/," Q: >ow do you compel a witness to attend? 0eanin & a witness was subpoena and he did not show up. What are the conse1uences of defyin a subpoena? A: The conse1uences are found in "ections I and A. Sec. ?. Compe//ing attendance. %n case o ailure o a &itness to attend" the court or 1udge issuing the subpoena" upon proo o the ser#ice thereo and o the ailure o the &itness" ma! issue a &arrant to the sheri o the pro#ince" or his deput!" to arrest the &itness and bring him be ore the court or o icer &here his attendance is required" and the cost o such &arrant and sei-ure o such &itness shall be paid b! the &itness i the court issuing it shall determine that his ailure to ans&er the subpoena &as &ill ul and &ithout 1ust e2cuse. '11" R2() Sec. @. Contempt. 9ailure b! an! person &ithout adequate cause to obe! a subpoena ser#ed upon him shall be deemed a contempt o the court rom &hich the subpoena is issued. % the subpoena &as not issued b! a court" the disobedience thereto shall be punished in accordance &ith the applicable la& or Rule. '12a" R2() Q: What are the conse1uences if the witness refuses to appear after he was subpoenaedJ

31

1997 Rules on Civil Procedure

Rule 21 Subpoena

A: The followin : 1.! <ou can as' the court to issue a warrant for his arrest. K"ection I! *aran criminal ba. ThatEs what you call a warrant to arrest a recalcitrant witness. <ou move to arrest the witness para puwersahin mo ba# 2.! $eclare him in contempt of court for failure to obey the subpoena K"ection A! EN9OR/EAB%A%*B O9 SUBPOENA Sec. 1>. E0ceptions. *he pro#isions o sections ? and @ o this Rule shall not appl! to a &itness &ho resides more than one hundred '1>>) $ilometers rom his residence to the place &here he is to testi ! b! the ordinar! course o tra#el" or to a detention prisoner i no permission o the court in &hich his case is pending &as obtained. '@a" R2() Q: When is a witness not bound by a subpoena? A: When his place of residence is more than 1BB 'ms. to the place of trial. Actually& the old rule is FB 'ms. lan . %ow& the new rule is double na 9 more than 1BB'ms. "o pa sobra n 1BB 'ms& you cannot compel the witness anymore to appear. Alri ht& clear so far? Althou h& this 1BB4'm distance does not apply if it is a criminal case where the accused would li'e to see' the compulsory process issued to secure the attendance of witnesses in his behalf because that is a superior ri ht. That is how the "/ interpreted it in the case of PEOPAE .s. 8ON*E.O K21 "/RA H22 L1AGFM!& reiterated in 4ENOR4A .s. 6U%*A%N KHI "/RA A:! that the FB4'm Know 1BB4'm! limitation applies only to civil cases& but not to criminal cases& especially if the person to be subpoenaed is a defense witness because of the constitutional ri ht of the accused which is a ri ht which cannot be curtailed by the Rules of /ourt. SU88ONS .s. SUBPOENA %ow& -Eve noticed amon laymen that there is a confusion between a summons and a subpoena. -Eve tried noticin that for years. The client will say& 2%a'atan ap a'o n subpoena.3 *a tin in mo summon man under Rule 1:. "ometimes& he will say& 2=i4summon a'o n court.3 -yon pala& subpoena. -n other words amon laymen& they thin' summon and subpoena are the same but actually we 'now that they are not. "ummons is in Rule 1: and one ood 1uestion is& distin uish summon from subpoena. - notice that there is no author has ever bothered to e?plain at least to outline an answer in his boo'. -Eve one to many boo's in remedial law& - still have to see an author who says in his commentaries& summons and subpoena are two different thin s and these are the distinctions? %ow& suppose that will be as'ed in the bar& do not be afraid simply because you have not read it in the boo'. -f you 'now an idea& a le al concept 9 summons& alam naman ninyo Dyan# subpoena 9 actually you can answer. <ou do not have to rely to any author in answerin the 1uestion. As a matter of fact& - remember when - was ta'in the )AR& - never bother to read the distinction of any author. Why? )ecause how can - memori8ed all of these distinctions in all sub5ect? -mpossible Dno? -tEs impossible for me to memori8e everythin that the author said about distinctions and - donEt have to rely on any boo'. ThatEs the best. %ow& yon m a author& they only try to ma'e your 5ob easier by outlinin the distinctions between this and that. )ut suppose there will be a 1uestion where you are as'ed to differentiate this from that and you have not read that in any boo'& ma 4panic 'a? >uwa 'an ma 4panic. -n other words& once you 'now the concept& you can easily ive an answer. Alri ht& there should be no confusion between a subpoena and a summons. There are 2 different processes& althou h laymen would tend to e1uate one with the other.

32

1997 Rules on Civil Procedure

Rule 21 Subpoena

Q: $istin uish "()*+,%A from "(00+%". A: The followin are the distinctions: 1.! "()*+,%A is directed to a witness# whereas "(00+%" is directed to a defendant in a civil case# 2.! -n "()*+,%A& the witness is directed to appear in court or to brin documents# whereas -n "(00+%"& the defendant is informed that a complaint is filed a ainst him and he must file a responsive pleadin within the period otherwise& 5ud ment can be rendered# 7.! -n "()*+,%A& the witness will be declared in contempt or his attendance can be compelled by the issuance of a warrant for his arrest# whereas -n "(00+%"& a 5ud ment in default will be rendered a ainst the defendant who fails to comply. :.! "()*+,%A applicable to both criminal and civil case# whereas "(00+%" applies only to civil cases. F.! -n "()*+,%A& there is a 1BB4'm limitation of its enforceability# whereas -n "(00+%"& there is no distance limitation.

33