RULE 22 AND RULE 24 OF THE PROPOSED REVISED RULES OF CIVIL PROCEDURE

(FULL TEXT)
By: jlp | February 4, 2015 in Litigation, Obiter/News
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FROM THE DESK OF:

ATTY. MA. LOURDES E.B. OLIVEROS

Chief Justice Staff Head
Office of Chief Justice Maria Lourdes P. A. Sereno

11 August 2014

ATTY. ENRIQUETA ESGUERRA-VIDAL

Clerk of Court
En Banc

Dear Atty. Vidal:

Pursuant to the 18 March 2014 Resolution of the Court en banc in A.M. No. 14- 03-02-SC and the
Memorandum of the Office of the Court Administrator dated 5 August 2014 providing a list of courts to
pilot test Rules 22 and 24 of the proposed Revised Rules of Civil Procedure, we request for the
[p]ublication of Rules 22 and 24 of the proposed Revised Rules of Civil Procedure in a newspaper of
general circulation at least 6 months before the start of their actual piloting in the selected stations, as
attached.

Thank you for your usual prompt attention.

cc: HON. JOSE MIDAS P. MARQUEZ

Office of the Court Administrator

Very truly yours,

MA. LOURDES E.B. OLIVEROS

ANNOUNCING THE PILOTING OF

A NEW SYSTEM FOR SPEEDY COURT TRIAL

The Supreme Court has approved by Resolution A.M. 14-03-02-SC dated March 8, 2014 the piloting of
Rules 22 and 24 of the draft Revised Rules of Civil Procedure, reproduced below. These Rules shall,
beginning February 16, 2015, apply to all civil actions in the following first and second level courts that
have not yet undergone pre- trial:

Rule 22

PRELIMINARY CONFERENCE

SECTION 22.1. Policy of the Rule. It is the policy of this Rule in relation to the Rule on Trial of issues
to:

(a) Require the parties to make a full disclosure of the known facts of the case early in the proceedings
and submit to the court the affidavits and documents that prove their claims, for the purpose of enabling
the court to accurately identify the issues between the parties and facilitate the process of settling their
disputes amicably or, if this is not possible, to considerably limit the scope of trial;

(b) Treat litigations not as a contest pitting the resources and skills of the parties in building up their cases
and destroying those of the others, but as a collective effort of all to search for the truth and to render
justice to all;

(c) Empower the judge to take a direct role in examining the witnesses during the trial and elicit from them
the answers needed for rendering a just judgment;

(d) Make maximum use of the courts time and shorten trial without sacrificing the quality of hearing and
adjudication;

(e) Require the parties and their counsels to assist the court in doing work they can properly perform to
enable the judge to do his judicial duties with greater dispatch and efficiency; and

(f) Raise the level of professionalism of judges and counsels in terms of promptness in starting court
proceedings and meeting deadlines.
SEC. 22.2. Mandatory disclosure of evidence. If the parties do not settle their disputes during the
JDR [Judicial Dispute Resolution stage], the case shall be raffled to a different branch for further
proceedings. The parties may, however, instead file a joint written motion or manifestation requesting the
court that concluded the JDR to continue with the case. In either case, the parties shall then submit to the
court and disclose to each other the evidence in the case that are known and available to them in the
following manner:

(a) The court shall, motu proprio or on motion, give notice to the parties to simultaneously submit to the
court within thirty (30) days from notice and serve upon each other, the following:

1. The judicial affidavits of their witnesses in support of their allegations, which shall take the place of
such witnesses direct testimonies; and

2. The parties documentary or object evidence, if any, which shall be attached to the judicial affidavits,
identified and marked as Exhibits P, P-1, P-2, and so on in the case of the plaintiff or petitioner, Exhibits
C, C-1, C-2, and so on in the case of the complainant, Exhibits D, D-1, D-2, and so on in the case of
the defendant, Exhibits R, R-1, R-2, and so on in the case of the respondent, and duly identified and
authenticated by the proper witness or witnesses.

(b) A party may, if he or she so desires, submit reply judicial affidavits respecting matters not touched by
his or her initial affidavits within fifteen (15) days from receipt of the adverse partys judicial affidavits. No
further judicial affidavit may be submitted without prior leave of court which shall be granted only on
justifiable grounds.

(c) Should a party or a witness desire to retain possession of the original document or object evidence, he
or she may, after it has been identified, marked as exhibit, and authenticated, warrant in his or her judicial
affidavit that the copy, reproduction, or picture attached to such affidavit is a faithful copy, reproduction, or
picture of the original. In addition, the party or witness shall bring to court the original document or object
evidence to enable the adverse party to compare the original document with its copy or reproduction or
the object evidence with its picture. The comparison shall be done by the adverse party before the branch
clerk of court prior to the date of the preliminary conference. The comparison shall then be duly noted by
the branch clerk of court on the attached copy, reproduction, or picture before the date of the preliminary
conference. Unless the comparison is done or deemed waived by the non- appearance of the adverse
party, the copy attached to the judicial affidavit shall not be admitted.

(d) If the requested witness, who is neither the witness of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant
books, documents, or other things under his or her control available for copying, authentication, and
eventual production in court, the requesting party may avail himself or herself of a subpoena ad
testificandum or duces tecum under the Rules of Court. The party requesting the issuance of a subpoena
shall be responsible for ensuring its personal service upon the witness, and shall bear the cost of such
personal service and the expenses of the witness in appearing before the lawyer who will prepare or
supervise the preparation of his or her judicial affidavit.

(e) A party who fails to submit the required judicial affidavits and exhibits when they are due shall be
deemed to have waived such submission and the right to present evidence in support of his or her case.
Still, the court may, for good cause shown and not later than fifteen (15) days from receipt of the adverse
partys judicial affidavits and exhibits, allow but once the late submission of the requirements. It may also,
if no good cause is shown, still allow such late submission but once, provided that the defaulting party or
his or her counsels, whoever may appear at fault, pays a fine set by the court which shall not be less than
P1,000.00 or more than P5,000.00.

(f) If a vital witness is (1) outside the Philippines, or (2) is shown to be under an exceptional or compelling
predicament at the time his or her judicial affidavit is needed for submission, the counsel may, with leave
of court, prepare such affidavit through video conferencing and submit it to the court with the counsels
attestation regarding its authenticity, conditioned on the witness appearing at the hearing to sign it, affirm
its truth, and submit to an examination by the court and the parties.

(g) The court may, on motion, allow a witness who, because of exceptional and compelling reasons, has
been unable to execute a judicial affidavit to testify in court by way of a narration of what he or she needs
to relate in relation to the case which shall be restricted to relevant facts, provided that the motion is filed
within the period for submission of judicial affidavits and the movant states in the motion the substance of
the testimony of such witness. This shall include government employees or officials who are unable to
execute judicial affidavits by reason of the demands of their official work.

(h) In case a party submits judicial affidavits that do not conform to the content requirements, the court
shall issue an order excluding such affidavits from the record. The court may, however, allow but once
and for good cause shown the subsequent submission of the compliant replacement affidavits within ten
days from receipt of the exclusion order. If no good cause is shown, the court may still allow such
subsequent submission provided that the erring party or his or her counsels, whoever may appear
responsible for their preparation and submission, pays a fine set by the court which shall not be less than
P1,000.00 or more than P5,000.00.
(i) The direct testimony of a witness shall be deemed offered and admitted upon submission in court of
his or her judicial affidavit, subject to motions for exclusion of inadmissible testimonies at the appropriate
time and to the examination of such witness. The documents and object evidence that the parties
previously marked as their exhibits shall also be deemed offered and admitted upon their submission in
court as part of the testimony of the witness who testifies on their existence, execution, or functions for
the purposes that such testimony indicates, whether expressly or impliedly, subject to motions for
exclusion at the appropriate time and to the examination of the witness.

SEC. 22.3. Use of certain discovery procedures. A party who desires to avail himself or herself of
the modes of discovery shall do so in accordance with Rules 27 to 31. Such party shall take steps to
complete the process and submit the material portions of the record of the proceedings, previously
undisclosed documents or facts, and the necessary judicial affidavits pertaining to the fruits of the
discovery within sixty (60) days from the start of the discovery process.

SEC. 22.4. Preparation of the Terms of Reference. The Court shall, taking into account the
submissions of the parties and counsels, prepare the Terms of Reference of the case that will control the
scope of trial.

(a) After the parties shall have submitted their respective judicial affidavits, documentary and object
exhibits, and the results of the discovery procedures they have undertaken, the court shall issue an order
requiring each party through their respective counsels as officers of the court, to simultaneously submit to
it and serve on the other party within fifteen (15) days from notice a brief, concise, and fair draft of the
Terms of Reference of the case, containing:

1. A summary of the admitted facts;

2. A statement that the documents attached to judicial affidavits or object evidence referred to are faithful
copies, reproductions, or pictures of their originals if such be the case;

3. A summary of the totality of the facts that the plaintiffs evidence appears to have established;

4. A summary of the totality of the facts that the defendants evidence appears to have established;

5. Based on the two summaries above, a statement of the factual issue or issues that the conflicting
evidence of the parties present;

6. A list of the witnesses from either side who, based on their judicial affidavits and exhibits, are
competent to testify on each of the factual issues or related factual issues in the case; and

7. A statement of the legal issues that the case presents once the factual issues and related factual
issues have been resolved.

(b) An issue is factual when the contending parties cannot agree that a thing exists or has actually
happened. An issue is legal when the contending parties assume a thing exists or has actually happened
but disagree on its legal significance or effect on their rights or obligations.

(c) Only relevant and significant issues need be tried. An issue is relevant and significant when its
resolution will help decide the case on its merits. Otherwise, it is irrelevant and need not be tried.

(d) Every factual issue should be adequately stated. The statement of an issue is adequate when it
contains words describing the ultimate facts that the party bearing the burden of proving the affirmative of
such issue must establish by his or her evidence.

(e) The facts alleged by the parties in their complaint, answer, and judicial affidavits, when not put in issue
in the Terms of Reference, shall be deemed admitted or otherwise regarded as irrelevant to the resolution
of the dispute.

(f) If a partys counsel fails to submit his or her draft of the Terms of Reference, he or she shall be
deemed to have waived the submission of such draft, without prejudice to appropriate sanctions for failure
to comply with the order of the court.

(g) Within fifteen (15) days of its receipt of the drafts of the Terms of Reference, or after the lapse of the
period to submit such drafts, the court shall prepare its final version, taking such drafts into account. (n)

SEC. 22.5. Notice of Preliminary Conference. The branch clerk of court shall, through phone calls
and electronic messages, consult the parties, through their counsels, on their availability before setting
the case for preliminary conference. In addition, the branch clerk shall serve a written notice of such
conference on the parties, through their counsels, requiring the parties and their counsels to appear
before the court for a preliminary conference on the date and time that it has set. It shall be the duty of the
counsels to promptly inform their clients regarding the setting and the need for them to be present as well.
(n)
SEC. 22.6. Appearance of parties. It shall be the duty of the parties and their counsels to appear at
the preliminary conference. A partys non-appearance may be excused only for valid cause shown or if he
or she is represented by another person who is fully authorized to act on his behalf respecting all the
matters subject of the conference. (n)

SEC. 22.7. Decision as in default against absentee. In the event a party or his counsels fails to
appear at the preliminary conference, the court shall, within thirty (30) days from the date of the
scheduled preliminary conference, render a decision, adjudicating the other partys claims, if warranted,
after the courts ex parte examination of such partys witness or witnesses based on their judicial
affidavits. (n)

SEC. 22.8. Decision as in default, when set aside. The court may, however, set aside a judgment
rendered under Section 22.7 if, within fifteen (15) days from notice of the decision, the party concerned
files a motion with the court with prior notice to the adverse party that his or her failure to comply with
what was required of him or her has been due to extrinsic fraud or unavoidable accident. Only when the
ground is clearly meritorious will the court grant the motion. The court may at its discretion, however,
where the ground is not clearly meritorious, still grant the motion, set aside the decision of default, and
reschedule another preliminary conference for the last time, upon admission of error or neglect by the
party or his or her counsel and after payment of a fine set by the court which shall not be less than P
1,000.00 or more than P 5,000.00. (n)

SEC. 22.9. Matters to be taken up at the preliminary conference. The court shall take the following
actions during the preliminary conference in the order listed below:

(a) The court shall determine, in consultation with the parties and their counsels, if there is a need to
make changes in the contents or wordings of the Terms of Reference that it earlier prepared. If there is
such a need, the court shall enter the changes on the document.

(b) If a party asks the court to try an excluded issue, the court shall include it for trial provided that such
party makes a deposit for court costs amounting to not less than P 10,000.00 but not more than P
50,000.00, at the discretion of the court. Should the trial court or, on appeal, a higher court find the
additional issue a sham, it shall order the deposit forfeited to the court; otherwise it shall have the same
refunded to the party concerned.

(c) The court may adjourn the preliminary conference once if there is a chance of settlement and the
parties need time to consider the matter; otherwise, the court shall proceed with the conference.

(d) The court shall, in consultation with the parties:

1. Fix the order in which the issues are to be tried;

2. Identify the witnesses who need to be present to testify on each of the issues;

3. Set the specific dates for reception of evidence on each issue or related issues;

4. Determine whether the circumstances warrant an alternate or face-to-face trial of issues and in the
latter case, whether it shall be a simple or regular trial of issues as provided below, and determine who
among the witnesses are exempt from face-to-face examination;

5. Determine the need to refer certain issues to trial by commissioners; and

6. Summarize the foregoing arrangements towards the end of the preliminary conference and issue an
Order of Trial, copy furnished the parties, which shall reflect such arrangements.

(e) The court may, as a result of the preliminary conference or in the course of it when the circumstances
warrant, render judgment or dismiss the action. If evidence is required for adjudicating a ground for
dismissal, the court shall set the case for reception of such evidence and then dismiss the action if
warranted.

Rule 24

TRIAL OF ISSUES

SECTION 24.1. Alternate trial. An alternate trial is one where parties take turns in presenting their
witnesses respecting the first factual issue or related issues stated in the order of trial. The party who
bears the burden of proving the affirmative of the issue under consideration shall be the first to present a
witness.

SEC. 24.2. Face-to-face trial. A face-to-face trial is one wherein witnesses from the contending sides
appear together before the court, sit face-to-face around a table in a non-adversarial environment, and
answer questions from the court as well as the parties counsels respecting the factual issue under
consideration.

SEC. 24.3. Options for trying the issues. The court shall have the option to try the issues embodied
in the Terms of Reference either by alternate or face-to-face trial. In the latter case, the court may
conduct either simple or regular face-to-face trial, whichever it considers more suitable. The parties may
by unanimous agreement, however, choose to have an alternate trial in lieu of a face-to-face trial.

SEC. 24.4. Common rules. The following common rules shall govern both alternate and face-to-face
trials:

(a) Each factual issue shall be tried strictly in the sequence provided in the Order of Trial although two or
more closely related issues may be simultaneously tried.

(b) A party may move on proper ground to disqualify a witness before he or she is examined and strike
out his judicial affidavit or exclude any of the answers found in it on ground of inadmissibility. This motion
shall be resolved in accordance with Sections 24.8 and 24.9 below.

(c) A party may also move to exclude any of the exhibits attached to the judicial affidavit of a witness on
ground of inadmissibility. This motion shall be resolved also in accordance with Sections 24.8 and 24.9
below. The objecting party shall make his motion in writing before the trial if the exhibits are voluminous to
facilitate its resolution. The rulings of the court respecting the exclusion of testimonies and exhibits based
on public policy grounds shall be without prejudice to a tender of excluded evidence under the
appropriate rule.

(d) The court and the counsels of the parties shall examine the witnesses and determine the truthfulness
of the judicial affidavits that constitute their direct testimonies in the case.

(e) A witness may testify on one or more issues.

SEC. 24.5. Rules governing alternate trial. In an alternate trial:

(a) The parties shall take turns in presenting their witnesses respecting the first factual issue or related
issues stated in the Order of Trial.

(b) The party who bears the burden of proving the affirmative of the issue under consideration shall be the
first to present a witness. If the party has more than one witness, the witnesses will be presented
successively respecting such issue. The opposing party shall afterwards present the witness or witnesses
for that issue.

(c) The court shall be the first to examine each of the witnesses thus presented. The parties shall then
take their turns to conduct the cross, re-direct, and re-cross of the particular witness. This is without
prejudice to the right of the court to ask additional questions of the same witness.

(d) The examination by the court and by the parties shall entirely focus on the issue or issues at hand and
not dwell on matters outside of and totally unrelated to such issue or issues.

(e) After all the witnesses from both sides have been examined respecting the issue or related issues
under consideration, the trial shall move on to the next issue or related issue in the Order of Trial until all
the issues shall have been tried.

SEC. 24.6. Ground rules governing a face-to-face trial. In a face-to-face trial:

(a) The witnesses from the contending sides shall appear together before the court and simultaneously
swear to the truth of their respective testimonies.

(b) The witnesses shall sit face-to-face around the table in a non-adversarial environment and answer
questions from the court and the parties counsels respecting the factual issue under consideration;

(c) Only one person at a time shall speak during the face-to-face trial and always with prior permission
from the court which shall take steps to ensure that the person who speaks is identified for the record;

(d) The witnesses shall address their answers to the examining judge or counsels; and

(e) The witnesses shall not pose questions to the other witnesses relating to their testimonies but shall be
given equal opportunity to respond to the questions.

SEC. 24.7. Two-phase examination of witnesses in a face-to-face trial. The examination of the
witnesses from the contending sides in the face-to-face trial shall consist of two phases: the first phase
shall be by the court and the second phase by the parties respective counsels.
(a) In the first phase, the court shall examine the witnesses regarding the issue or related issues at hand
in no particular sequence and may also direct its questions to one or more of the witnesses from the
contending sides.

(b) When the questions from the court are directed to a specific witness, the other witnesses from the
same side may seek permission to supplement, clarify, or qualify the answers that the first witness has
given.

(c) In turn, the court shall give the witnesses from the other side equal time and opportunity to reply.

(d) The court may allow the witnesses from the contending sides to continue their divergent exchanges
provided new facts or new arguments are introduced and the testimonies have not become repetitive.

(e) The court may also stop the exchanges if the answers from the contending sides have sufficiently
clarified their positions and the points of their disagreement.

(f) The court may, before moving the examination of the witnesses from first phase to second phase,
summarize its own understanding of the positions of the parties and the testimonies of their witnesses on
the issue or related issues at hand.

(g) In the second phase, the court shall allow counsels from the contending sides to cross-examine, re-
direct, and re-cross the witnesses based on their judicial affidavits, the attached exhibits, the answers the
witnesses gave during the courts first-phase examination, or their testimonies. This second phase
examination shall be without prejudice to the courts further examination of the witnesses already
examined by counsels.

(h) Where there are multiple parties involved (the plaintiff, the defendant, the third, fourth, or fifth-party
plaintiffs or defendants, or the intervenors) the court shall fix the order of cross, re-direct, and re-cross
examination by the various counsels involved, making sure that a party is able to examine the witness
whose testimony is adverse. A party may adopt a favorable testimony.

(i) After the counsels have concluded their examinations of the witnesses, the court shall terminate the
second phase respecting the particular issue or related issues and move to the examination of the
witnesses respecting the next issue or related issues if such examination is likewise in the agenda of the
court for that days setting. The reception of evidence for the next issue or related issues may be
scheduled on another setting in accordance with the Order of Trial.

SEC. 24.8. Exceptions to the courts examination of the witnesses. The counsel for any party may,
in the course of the courts examination of the witnesses, take exceptions to objectionable questions that
it poses to one or some of them. The exceptions shall simply state the legal grounds for objection with no
further explanation. The court shall act on the exceptions in the following manner:

(a) In case of exceptions as to form, such as when the questions from the court are perceived to be
argumentative, leading, multiple, repetitive, vague, improper characterization, confusing, or unfair, the
counsels shall state the ground for exception after the question has been answered. The court shall take
note of the exception or, where warranted, strike out the answer and rephrase the question;

(b) Exceptions as to substance such as when the questions from the court are perceived to elicit answers
that are inadmissible on public policy grounds including those relating to the rights against self-
incrimination, privileged communication, disqualification, and to the Statute of Frauds, rape shield law,
bank secrecy laws, Anti- Money Laundering Act, and other laws or rules that prohibit disclosure of
information or data, may be made before the witness answers the questions. The counsels may also
move to strike out any answer already given on the same grounds. In either case, the court shall promptly
rule on such exceptions or motions.

(c) In case of exceptions to admissibility under the rules governing best evidence, parol evidence,
conclusion or opinion evidence, hearsay evidence, irrelevant evidence, or character evidence, the
counsels shall state the ground for exception after the question has been answered. The court shall take
note of the exception and consider the same when deciding the case.

SEC. 24.9. Objections to the questions of counsels. (a) It is the counsels duty to fairly elicit only
admissible evidence from a witness, either by way of preparing the judicial affidavit constituting the direct
examination or by way of cross, re-direct, or re- cross examination.

(b) The counsels for one side may move to exclude the whole or part of the testimony embodied in the
judicial affidavit of a witness presented by the other side on ground of inadmissibility.

(c) Objections as to form in Section 24.8 (a) and admissibility in Section 24.8 (c) shall be made after the
questions have been answered. Objections as to substance in Section 24.8 (b) may be raised before the
questions are answered; if the answers have already been given, motions to strike out may be made.
(d) The court shall act on the motion or objection in the same manner it would act on exceptions from
questions of the court as provided under Section 24.8 above.

SEC. 24.10. When face-to-face examination of witnesses shall not apply. The face-to-face
examination of witnesses shall not apply when one of the witnesses to the factual issue under
consideration is either (a) a child covered by the Rule on Examination of a Child Witness, or (b) a person
who is mentally, psychologically, or physically challenged, or has a similar condition that puts such
witness at a disadvantage in a face- to-face confrontation. In such a case, the witnesses on that issue
shall be examined separately. The face-to-face examination shall, however, proceed with respect to the
other issues that do not involve the child or disadvantaged witness.

The face-to-face trial shall also not be required in: (a) special civil actions; (b) special proceedings; and (c)
where the court perceives the danger of uncontrollable passion arising from deep animosity between the
parties.

SEC. 24.11. Examination of Expert Witnesses in a face-to-face trial of issues. The examination of
expert witnesses in a face-to-face trial of issues shall follow the same procedure provided in Section 24.7
With leave of court, however, an expert witness may ask questions directed to the other partys expert
witness on any matter covered by the testimony of the latter on the issue or related issues at hand.

SEC. 24.12. Regular or summary face-to-face trial schedules. The schedules for holding face-to-
face trial of issues shall either be simple or regular based on the circumstances of each case.

(a) Where the issues are complex or numerous and the evidence from both sides consist of the
testimonies of several witnesses or involve numerous pieces of evidence, the court shall hold a regular
face-to-face trial, with the hearings spread over a period of time.

(b) Where the issues are simple and few, the court shall hold a simple one-time face-to-face trial, with an
oral judgment rendered at the end of such trial. But if in the course of such trial, the court discovers that
the issues are after all complex or numerous, it shall suspend the proceedings and direct the conduct of a
regular trial in the succeeding settings.

SEC. 24.13. Memorandum, oral argument, and judgment. The court may hear the parties argue
their respective positions before rendering judgment in the case, as follows:

(a) In an alternate or regular face-to-face trial of issues:

1. The court shall, after all the issues in the case have been heard, direct the parties to simultaneously
submit their respective memorandum or draft decision within thirty (30) days from the date the trial ended,
accompanied by a softcopy of the document in a format acceptable to the court.

2. Furthermore, the court shall, within ten (10) days from receipt of such memorandum or draft decision,
set the case for oral argument on a date and time the court and the parties may agree on.

3. The court shall render a written decision within ninety (90) days after hearing the parties on their oral
argument. It may wholly or partially adopt or use the memorandum or draft decision of the winning party
for its decision or prepare its own.

(b) In a simple face-to-face trial of issues:

1. The court may, immediately after all the witnesses have been examined, hear the parties briefly on oral
argument and afterwards orally state its rulings on the issue or issues involved and announce the
dispositive part of its judgment.

2. Such oral judgment shall be recorded in the minutes of the proceedings which, together with the
resolution of each issue, shall be signed by the parties or their counsels as evidence of notification. If a
party or his counsels refuses to sign, the refusal shall be reflected in the same minutes.

3. The court shall then direct the winning party to submit within thirty (30) days from the oral judgment a
memorandum or draft of the decision based on the oral judgment then rendered, accompanied by
softcopy of the document in a format acceptable to the court.

4. In place of oral judgment, the court shall have the option of requiring each party to submit a
memorandum or draft decision within thirty (30) days from the date the face-to-face trial ended,
accompanied by a softcopy of the document in a format acceptable to the court.

5. Whether or not the court adopts a partys memorandum or draft decision, it shall promulgate its written
decision in the case within sixty (60) days from the oral judgment, if any, or from the date the face-to-face
trial ended.
6. The period to appeal from the judgment of the court in this case shall be reckoned from the date of
receipt of written decision by the appealing party.

SEC. 24.14. Trials shall be intransferable. (a) Because of the numerous

persons involved in, and the complex preparations required for, the conduct of trial, especially the face-to-
face trial, the dates set for trials shall be intransferable except on grounds of fortuitous event or serious
illness of a counsel or witness. The party seeking postponement or resetting of the hearing has the
burden of proving with satisfactory evidence the ground invoked. Otherwise, such party shall be deemed
to have waived the appearance of counsel and witnesses at the scheduled face-to-face trial.

(b) No motion for postponement or resetting shall be granted on ground of serious illness of a counsel or
witness, unless the party concerned presents a medical certificate issued by a physician stating that the
illness is of such gravity as to prevent the counsel or witness from attending the scheduled hearing. The
judge may require the physician to appear before the court or order another physician either government-
employed or retained by the adverse party, to verify the truth of the certification. If such certification turns
out to be false, the certifying physician shall be held in contempt of court and punished accordingly.

(c) If the ground for postponement or resetting turns out to be false, the party or counsel who sought it
shall also be subject to contempt of court.

SEC. 24.15. Consequences of failure to appear at the trial.

(a) The failure of counsel to appear at the pre-agreed face-to-face trial without obtaining a prior
postponement shall be considered a waiver of appearance and trial shall proceed without such counsel.
The absent counsels witnesses, if present, shall be regarded as witnesses procured by the court
concerning the case and shall be examined in the usual course.

(b) In the event of the failure of a witness to appear, the court shall order such witness judicial affidavit
expunged, without prejudice to the adverse party using it as a judicial admission if the witness is also a
party.

SEC. 24.16. Newly-discovered evidence; new issues evolving during trial. A party may, in the
course of trial, file a motion to admit newly-discovered evidence subject to the rule governing its
admission. A party may, without amending the pleadings, also file a motion to amend the Order of Trial to
include a new issue or issues that may have since arisen.

SEC. 24.17. Language used during trial. The court shall require the witnesses in the trial of issues to
testify either in English or Filipino, whichever language would enable such witnesses, the court, and the
counsels to have fair exchanges. If any of the witnesses cannot take part in such exchanges because of
language difficulty, the examination of the witness shall be conducted in the language or dialect known to
such witness. In this case, the judge or examining counsels shall make use of an interpreter of their
choosing who shall assist them in propounding questions to, and appreciating the answers of, the
witness. Nevertheless, the recording of the actual answers given by the witness, not their English or
Filipino translation, will constitute the official and binding testimony of the witness. When quoting in a
pleading, motion, memorandum, petition, or other court submission, the text of questions and answers of
a witness given in a local dialect, the counsels shall indicate the translations into English or Filipino in
appropriate brackets.

24The Court also approved the Rule on Examination of a child witness which allows live-link
television testimony in criminal cases where the child is a victim or a witness (Section 25), which
took effect on December 15, 2000.

The early applications of videoconferencing in the States in the United States courts primarily
focused on video arraignments and probable cause hearings. As courts began to appreciate
the costs savings and the decreased security risks of the technology, other uses became
apparent. Videoconferencing is an effective tool for parole interviews, juvenile detention
hearings, mental health hearings, domestic violence hearings, pretrial conferences, remote
witness testimony, and depositionsto name a few. The technology will prove even more
valuable in an age of international terrorist trials with witnesses from around the world.
Videoconferencing has become quite commonplace in State Courts per the Report. The last
comprehensive report: "Use of Interactive Video for Court Proceedings: Legal Status
and Use Nationwide." Published in 1995, by the National Institute of Corrections, is that
videoconferencing is used in 50 states in the United States of America.

24Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference
with a group of persons in South Korea relating to business transactions or corporate governance.

G.R. No. 152392 May 26, 2005

EXPERTRAVEL & TOURS, INC., petitioner,
vs.
COURT OF APPEALS and KOREAN AIRLINES, respondent.

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-
G.R. SP No. 61000 dismissing the petition for certiorari and mandamus filed by Expertravel and
Tours, Inc. (ETI).

The Antecedents

Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and
licensed to do business in the Philippines. Its general manager in the Philippines is Suk Kyoo Kim,
while its appointed counsel was Atty. Mario Aguinaldo and his law firm.

On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint2 against ETI with the
Regional Trial Court (RTC) of Manila, for the collection of the principal amount of P260,150.00, plus
attorneys fees and exemplary damages. The verification and certification against forum shopping
was signed by Atty. Aguinaldo, who indicated therein that he was the resident agent and legal
counsel of KAL and had caused the preparation of the complaint.

ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to
execute the verification and certificate of non-forum shopping as required by Section 5, Rule 7 of the
Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was its resident agent and
was registered as such with the Securities and Exchange Commission (SEC) as required by the
Corporation Code of the Philippines. It was further alleged that Atty. Aguinaldo was also the
corporate secretary of KAL. Appended to the said opposition was the identification card of Atty.
Aguinaldo, showing that he was the lawyer of KAL.

During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to file
the complaint through a resolution of the KAL Board of Directors approved during a special meeting
held on June 25, 1999. Upon his motion, KAL was given a period of 10 days within which to submit a
copy of the said resolution. The trial court granted the motion. Atty. Aguinaldo subsequently filed
other similar motions, which the trial court granted.

Finally, KAL submitted on March 6, 2000 an Affidavit3 of even date, executed by its general manager
Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference on June 25,
1999, which he and Atty. Aguinaldo attended. It was also averred that in that same teleconference,
the board of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of
non-forum shopping and to file the complaint. Suk Kyoo Kim also alleged, however, that the
corporation had no written copy of the aforesaid resolution.

On April 12, 2000, the trial court issued an Order4 denying the motion to dismiss, giving credence to
the claims of Atty. Aguinaldo and Suk Kyoo Kim that the KAL Board of Directors indeed conducted a
teleconference on June 25, 1999, during which it approved a resolution as quoted in the submitted
affidavit.

ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate for the
court to take judicial notice of the said teleconference without any prior hearing. The trial court
denied the motion in its Order5dated August 8, 2000.

ETI then filed a petition for certiorari and mandamus, assailing the orders of the RTC. In its comment
on the petition, KAL appended a certificate signed by Atty. Aguinaldo dated January 10, 2000,
worded as follows:

SECRETARYS/RESIDENT AGENTS CERTIFICATE

KNOW ALL MEN BY THESE PRESENTS:

I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and appointed Corporate
Secretary and Resident Agent of KOREAN AIRLINES, a foreign corporation duly organized
and existing under and by virtue of the laws of the Republic of Korea and also duly registered
and authorized to do business in the Philippines, with office address at Ground Floor, LPL
Plaza Building, 124 Alfaro St., Salcedo Village, Makati City, HEREBY CERTIFY that during a
special meeting of the Board of Directors of the Corporation held on June 25, 1999 at which
a quorum was present, the said Board unanimously passed, voted upon and approved the
following resolution which is now in full force and effect, to wit:
 RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates
or any of its lawyers are hereby appointed and authorized to take with whatever legal
action necessary to effect the collection of the unpaid account of Expert Travel &
Tours. They are hereby specifically authorized to prosecute, litigate, defend, sign and
execute any document or paper necessary to the filing and prosecution of said claim
in Court, attend the Pre-Trial Proceedings and enter into a compromise agreement
relative to the above-mentioned claim.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th day of January,
1999, in the City of Manila, Philippines.

(Sgd.)

MARIO A. AGUINALDO
Resident Agent

SUBSCRIBED AND SWORN to before me this 10th day of January, 1999, Atty. Mario A.
Aguinaldo exhibiting to me his Community Tax Certificate No. 14914545, issued on January
7, 2000 at Manila, Philippines.

Doc. No. 119; (Sgd.)

Page No. 25; ATTY. HENRY D. ADASA
Book No. XXIV Notary Public
Series of 2000. Until December 31, 2000
PTR #889583/MLA 1/3/20006

On December 18, 2001, the CA rendered judgment dismissing the petition, ruling that the verification
and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the
Rules of Court. According to the appellate court, Atty. Aguinaldo had been duly authorized by the
board resolution approved on June 25, 1999, and was the resident agent of KAL. As such, the RTC
could not be faulted for taking judicial notice of the said teleconference of the KAL Board of
Directors.

ETI filed a motion for reconsideration of the said decision, which the CA denied. Thus, ETI, now the
petitioner, comes to the Court by way of petition for review on certiorari and raises the following
issue:

DID PUBLIC RESPONDENT COURT OF APPEALS DEPART FROM THE ACCEPTED AND
USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT RENDERED ITS QUESTIONED
DECISION AND WHEN IT ISSUED ITS QUESTIONED RESOLUTION, ANNEXES A AND B
OF THE INSTANT PETITION?7

The petitioner asserts that compliance with Section 5, Rule 7, of the Rules of Court can be
determined only from the contents of the complaint and not by documents or pleadings outside
thereof. Hence, the trial court committed grave abuse of discretion amounting to excess of
jurisdiction, and the CA erred in considering the affidavit of the respondents general manager, as
well as the Secretarys/Resident Agents Certification and the resolution of the board of directors
contained therein, as proof of compliance with the requirements of Section 5, Rule 7 of the Rules of
Court. The petitioner also maintains that the RTC cannot take judicial notice of the said
teleconference without prior hearing, nor any motion therefor. The petitioner reiterates its submission
that the teleconference and the resolution adverted to by the respondent was a mere fabrication.

The respondent, for its part, avers that the issue of whether modern technology is used in the field of
business is a factual issue; hence, cannot be raised in a petition for review on certiorari under Rule
45 of the Rules of Court. On the merits of the petition, it insists that Atty. Aguinaldo, as the resident
agent and corporate secretary, is authorized to sign and execute the certificate of non-forum
shopping required by Section 5, Rule 7 of the Rules of Court, on top of the board resolution
approved during the teleconference of June 25, 1999. The respondent insists that "technological
advances in this time and age are as commonplace as daybreak." Hence, the courts may take
judicial notice that the Philippine Long Distance Telephone Company, Inc. had provided a record of
corporate conferences and meetings through FiberNet using fiber-optic transmission technology,
and that such technology facilitates voice and image transmission with ease; this makes constant
communication between a foreign-based office and its Philippine-based branches faster and easier,
allowing for cost-cutting in terms of travel concerns. It points out that even the E-Commerce Law has
recognized this modern technology. The respondent posits that the courts are aware of this
development in technology; hence, may take judicial notice thereof without need of hearings. Even if
such hearing is required, the requirement is nevertheless satisfied if a party is allowed to file
pleadings by way of comment or opposition thereto.
In its reply, the petitioner pointed out that there are no rulings on the matter of teleconferencing as a
means of conducting meetings of board of directors for purposes of passing a resolution; until and
after teleconferencing is recognized as a legitimate means of gathering a quorum of board of
directors, such cannot be taken judicial notice of by the court. It asserts that safeguards must first be
set up to prevent any mischief on the public or to protect the general public from any possible fraud.
It further proposes possible amendments to the Corporation Code to give recognition to such
manner of board meetings to transact business for the corporation, or other related corporate
matters; until then, the petitioner asserts, teleconferencing cannot be the subject of judicial notice.

The petitioner further avers that the supposed holding of a special meeting on June 25, 1999
through teleconferencing where Atty. Aguinaldo was supposedly given such an authority is a farce,
considering that there was no mention of where it was held, whether in this country or elsewhere. It
insists that the Corporation Code requires board resolutions of corporations to be submitted to the
SEC. Even assuming that there was such a teleconference, it would be against the provisions of the
Corporation Code not to have any record thereof.

The petitioner insists that the teleconference and resolution adverted to by the respondent in its
pleadings were mere fabrications foisted by the respondent and its counsel on the RTC, the CA and
this Court.

The petition is meritorious.

Section 5, Rule 7 of the Rules of Court provides:

SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify
under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a
sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not
theretofore commenced any action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or
claim is pending therein; (b) if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he should thereafter learn that the same or
similar action or claim has been filed or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been
filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment
of the complaint or other initiatory pleading but shall be cause for the dismissal of the case
without prejudice, unless otherwise provided, upon motion and after hearing. The submission
of a false certification or non-compliance with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the corresponding administrative and criminal
actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum
shopping, the same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative sanctions.

It is settled that the requirement to file a certificate of non-forum shopping is mandatory8 and that the
failure to comply with this requirement cannot be excused. The certification is a peculiar and
personal responsibility of the party, an assurance given to the court or other tribunal that there are
no other pending cases involving basically the same parties, issues and causes of action. Hence,
the certification must be accomplished by the party himself because he has actual knowledge of
whether or not he has initiated similar actions or proceedings in different courts or tribunals. Even his
counsel may be unaware of such facts.9 Hence, the requisite certification executed by the plaintiffs
counsel will not suffice.10

In a case where the plaintiff is a private corporation, the certification may be signed, for and on
behalf of the said corporation, by a specifically authorized person, including its retained counsel, who
has personal knowledge of the facts required to be established by the documents. The reason was
explained by the Court in National Steel Corporation v. Court of Appeals,11 as follows:

Unlike natural persons, corporations may perform physical actions only through properly
delegated individuals; namely, its officers and/or agents.

The corporation, such as the petitioner, has no powers except those expressly conferred on
it by the Corporation Code and those that are implied by or are incidental to its existence. In
turn, a corporation exercises said powers through its board of directors and/or its duly-
authorized officers and agents. Physical acts, like the signing of documents, can be
performed only by natural persons duly-authorized for the purpose by corporate by-laws or
by specific act of the board of directors. "All acts within the powers of a corporation may be
 performed by agents of its selection; and except so far as limitations or restrictions which
may be imposed by special charter, by-law, or statutory provisions, the same general
principles of law which govern the relation of agency for a natural person govern the officer
or agent of a corporation, of whatever status or rank, in respect to his power to act for the
corporation; and agents once appointed, or members acting in their stead, are subject to the
same rules, liabilities and incapacities as are agents of individuals and private persons."

For who else knows of the circumstances required in the Certificate but its own retained
counsel. Its regular officers, like its board chairman and president, may not even know the
details required therein.

Indeed, the certificate of non-forum shopping may be incorporated in the complaint or appended
thereto as an integral part of the complaint. The rule is that compliance with the rule after the filing of
the complaint, or the dismissal of a complaint based on its non-compliance with the rule, is
impermissible. However, in exceptional circumstances, the court may allow subsequent compliance
with the rule.12 If the authority of a partys counsel to execute a certificate of non-forum shopping is
disputed by the adverse party, the former is required to show proof of such authority or
representation.

In this case, the petitioner, as the defendant in the RTC, assailed the authority of Atty. Aguinaldo to
execute the requisite verification and certificate of non-forum shopping as the resident agent and
counsel of the respondent. It was, thus, incumbent upon the respondent, as the plaintiff, to allege
and establish that Atty. Aguinaldo had such authority to execute the requisite verification and
certification for and in its behalf. The respondent, however, failed to do so.

The verification and certificate of non-forum shopping which was incorporated in the complaint and
signed by Atty. Aguinaldo reads:

I, Mario A. Aguinaldo of legal age, Filipino, with office address at Suite 210 Gedisco Centre,
1564 A. Mabini cor. P. Gil Sts., Ermita, Manila, after having sworn to in accordance with law
hereby deposes and say: THAT -

1. I am the Resident Agent and Legal Counsel of the plaintiff in the above entitled case and
have caused the preparation of the above complaint;

2. I have read the complaint and that all the allegations contained therein are true and
correct based on the records on files;

3. I hereby further certify that I have not commenced any other action or proceeding involving
the same issues in the Supreme Court, the Court of Appeals, or different divisions thereof, or
any other tribunal or agency. If I subsequently learned that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any tribunal or agency, I will notify the court, tribunal or agency within
five (5) days from such notice/knowledge.

(Sgd.)

MARIO A. AGUINALDO
Affiant
CITY OF MANILA

SUBSCRIBED AND SWORN TO before me this 30th day of August, 1999, affiant exhibiting
to me his Community Tax Certificate No. 00671047 issued on January 7, 1999 at Manila,
Philippines.

Doc. No. 1005; (Sgd.)

Page No. 198;
Book No. XXI ATTY. HENRY D. ADASA
Series of 1999. Notary Public
Until December 31, 2000
PTR No. 320501 Mla. 1/4/9913

As gleaned from the aforequoted certification, there was no allegation that Atty. Aguinaldo had been
authorized to execute the certificate of non-forum shopping by the respondents Board of Directors;
moreover, no such board resolution was appended thereto or incorporated therein.
While Atty. Aguinaldo is the resident agent of the respondent in the Philippines, this does not mean
that he is authorized to execute the requisite certification against forum shopping. Under Section
127, in relation to Section 128 of the Corporation Code, the authority of the resident agent of a
foreign corporation with license to do business in the Philippines is to receive, for and in behalf of the
foreign corporation, services and other legal processes in all actions and other legal proceedings
against such corporation, thus:

SEC. 127. Who may be a resident agent. A resident agent may either be an individual
residing in the Philippines or a domestic corporation lawfully transacting business in the
Philippines: Provided, That in the case of an individual, he must be of good moral character
and of sound financial standing.

SEC. 128. Resident agent; service of process. The Securities and Exchange Commission
shall require as a condition precedent to the issuance of the license to transact business in
the Philippines by any foreign corporation that such corporation file with the Securities and
Exchange Commission a written power of attorney designating some persons who must be a
resident of the Philippines, on whom any summons and other legal processes may be served
in all actions or other legal proceedings against such corporation, and consenting that
service upon such resident agent shall be admitted and held as valid as if served upon the
duly-authorized officers of the foreign corporation as its home office.14

Under the law, Atty. Aguinaldo was not specifically authorized to execute a certificate of non-forum
shopping as required by Section 5, Rule 7 of the Rules of Court. This is because while a resident
agent may be aware of actions filed against his principal (a foreign corporation doing business in the
Philippines), such resident may not be aware of actions initiated by its principal, whether in the
Philippines against a domestic corporation or private individual, or in the country where such
corporation was organized and registered, against a Philippine registered corporation or a Filipino
citizen.

The respondent knew that its counsel, Atty. Aguinaldo, as its resident agent, was not specifically
authorized to execute the said certification. It attempted to show its compliance with the rule
subsequent to the filing of its complaint by submitting, on March 6, 2000, a resolution purporting to
have been approved by its Board of Directors during a teleconference held on June 25, 1999,
allegedly with Atty. Aguinaldo and Suk Kyoo Kim in attendance. However, such attempt of the
respondent casts veritable doubt not only on its claim that such a teleconference was held, but also
on the approval by the Board of Directors of the resolution authorizing Atty. Aguinaldo to execute the
certificate of non-forum shopping.

In its April 12, 2000 Order, the RTC took judicial notice that because of the onset of modern
technology, persons in one location may confer with other persons in other places, and, based on
the said premise, concluded that Suk Kyoo Kim and Atty. Aguinaldo had a teleconference with the
respondents Board of Directors in South Korea on June 25, 1999. The CA, likewise, gave credence
to the respondents claim that such a teleconference took place, as contained in the affidavit of Suk
Kyoo Kim, as well as Atty. Aguinaldos certification.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court.
The principal guide in determining what facts may be assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and
facts of general notoriety.[15] Moreover, a judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy
cannot reasonably be questionable.16

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of
men generally in the course of the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and unquestioned demonstration.
Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such universal notoriety and so
generally understood that they may be regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a wide variety of particular facts
have been judicially noticed as being matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which
the court has no constructive knowledge.17

In this age of modern technology, the courts may take judicial notice that business transactions may
be made by individuals through teleconferencing. Teleconferencing is interactive group
communication (three or more people in two or more locations) through an electronic medium. In
general terms, teleconferencing can bring people together under one roof even though they are
separated by hundreds of miles.18 This type of group communication may be used in a number of
ways, and have three basic types: (1) video conferencing - television-like communication augmented
with sound; (2) computer conferencing - printed communication through keyboard terminals, and (3)
audio-conferencing-verbal communication via the telephone with optional capacity for telewriting or
telecopying.19

A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first

introduced in the 1960s with American Telephone and Telegraphs Picturephone. At that time,
however, no demand existed for the new technology. Travel costs were reasonable and consumers
were unwilling to pay the monthly service charge for using the picturephone, which was regarded as
more of a novelty than as an actual means for everyday communication.20 In time, people found it
advantageous to hold teleconferencing in the course of business and corporate governance,
because of the money saved, among other advantages include:

1. People (including outside guest speakers) who wouldnt normally attend a distant FTF
meeting can participate.

2. Follow-up to earlier meetings can be done with relative ease and little expense.

3. Socializing is minimal compared to an FTF meeting; therefore, meetings are shorter and
more oriented to the primary purpose of the meeting.

4. Some routine meetings are more effective since one can audio-conference from any
location equipped with a telephone.

5. Communication between the home office and field staffs is maximized.

6. Severe climate and/or unreliable transportation may necessitate teleconferencing.

7. Participants are generally better prepared than for FTF meetings.

8. It is particularly satisfactory for simple problem-solving, information exchange, and

procedural tasks.

9. Group members participate more equally in well-moderated teleconferences than an FTF

meeting.21

On the other hand, other private corporations opt not to hold teleconferences because of the
following disadvantages:

1. Technical failures with equipment, including connections that arent made.

2. Unsatisfactory for complex interpersonal communication, such as negotiation or

bargaining.

3. Impersonal, less easy to create an atmosphere of group rapport.

4. Lack of participant familiarity with the equipment, the medium itself, and meeting skills.

5. Acoustical problems within the teleconferencing rooms.

6. Difficulty in determining participant speaking order; frequently one person monopolizes the
meeting.

7. Greater participant preparation time needed.

8. Informal, one-to-one, social interaction not possible.22

Indeed, teleconferencing can only facilitate the linking of people; it does not alter the complexity of
group communication. Although it may be easier to communicate via teleconferencing, it may also
be easier to miscommunicate. Teleconferencing cannot satisfy the individual needs of every type of
meeting.23

In the Philippines, teleconferencing and videoconferencing of members of board of directors of

private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange
Commission issued SEC Memorandum Circular No. 15, on November 30, 2001, providing the
guidelines to be complied with related to such conferences.24 Thus, the Court agrees with the RTC
that persons in the Philippines may have a teleconference with a group of persons in South Korea
relating to business transactions or corporate governance.

Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference
along with the respondents Board of Directors, the Court is not convinced that one was conducted;
even if there had been one, the Court is not inclined to believe that a board resolution was duly
passed specifically authorizing Atty. Aguinaldo to file the complaint and execute the required
certification against forum shopping.

The records show that the petitioner filed a motion to dismiss the complaint on the ground that the
respondent failed to comply with Section 5, Rule 7 of the Rules of Court. The respondent opposed
the motion on December 1, 1999, on its contention that Atty. Aguinaldo, its resident agent, was duly
authorized to sue in its behalf. The respondent, however, failed to establish its claim that Atty.
Aguinaldo was its resident agent in the Philippines. Even the identification card25 of Atty. Aguinaldo
which the respondent appended to its pleading merely showed that he is the company lawyer of the
respondents Manila Regional Office.

The respondent, through Atty. Aguinaldo, announced the holding of the teleconference only during
the hearing of January 28, 2000; Atty. Aguinaldo then prayed for ten days, or until February 8, 2000,
within which to submit the board resolution purportedly authorizing him to file the complaint and
execute the required certification against forum shopping. The court granted the motion.26 The
respondent, however, failed to comply, and instead prayed for 15 more days to submit the said
resolution, contending that it was with its main office in Korea. The court granted the motion per its
Order27 dated February 11, 2000. The respondent again prayed for an extension within which to
submit the said resolution, until March 6, 2000.28 It was on the said date that the respondent
submitted an affidavit of its general manager Suk Kyoo Kim, stating, inter alia, that he and Atty.
Aguinaldo attended the said teleconference on June 25, 1999, where the Board of Directors
supposedly approved the following resolution:

RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of
its lawyers are hereby appointed and authorized to take with whatever legal action necessary
to effect the collection of the unpaid account of Expert Travel & Tours. They are hereby
specifically authorized to prosecute, litigate, defend, sign and execute any document or
paper necessary to the filing and prosecution of said claim in Court, attend the Pre-trial
Proceedings and enter into a compromise agreement relative to the above-mentioned
claim.29

But then, in the same affidavit, Suk Kyoo Kim declared that the respondent "do[es] not keep a written
copy of the aforesaid Resolution" because no records of board resolutions approved during
teleconferences were kept. This belied the respondents earlier allegation in its February 10, 2000
motion for extension of time to submit the questioned resolution that it was in the custody of its main
office in Korea. The respondent gave the trial court the impression that it needed time to secure a
copy of the resolution kept in Korea, only to allege later (via the affidavit of Suk Kyoo Kim) that it had
no such written copy. Moreover, Suk Kyoo Kim stated in his affidavit that the resolution was
embodied in the Secretarys/Resident Agents Certificate signed by Atty. Aguinaldo. However, no
such resolution was appended to the said certificate.

The respondents allegation that its board of directors conducted a teleconference on June 25, 1999
and approved the said resolution (with Atty. Aguinaldo in attendance) is incredible, given the
additional fact that no such allegation was made in the complaint. If the resolution had indeed been
approved on June 25, 1999, long before the complaint was filed, the respondent should have
incorporated it in its complaint, or at least appended a copy thereof. The respondent failed to do so.
It was only on January 28, 2000 that the respondent claimed, for the first time, that there was such a
meeting of the Board of Directors held on June 25, 1999; it even represented to the Court that a
copy of its resolution was with its main office in Korea, only to allege later that no written copy
existed. It was only on March 6, 2000 that the respondent alleged, for the first time, that the meeting
of the Board of Directors where the resolution was approved was held via teleconference.

Worse still, it appears that as early as January 10, 1999, Atty. Aguinaldo had signed a
Secretarys/Resident Agents Certificate alleging that the board of directors held a teleconference on
June 25, 1999. No such certificate was appended to the complaint, which was filed on September 6,
1999. More importantly, the respondent did not explain why the said certificate was signed by Atty.
Aguinaldo as early as January 9, 1999, and yet was notarized one year later (on January 10, 2000);
it also did not explain its failure to append the said certificate to the complaint, as well as to its
Compliance dated March 6, 2000. It was only on January 26, 2001 when the respondent filed its
comment in the CA that it submitted the Secretarys/Resident Agents Certificate30 dated January 10,
2000.

The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999 never
took place, and that the resolution allegedly approved by the respondents Board of Directors during
the said teleconference was a mere concoction purposefully foisted on the RTC, the CA and this
Court, to avert the dismissal of its complaint against the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 61000 is REVERSED and SET ASIDE. The Regional Trial Court of
Manila is hereby ORDERED to dismiss, without prejudice, the complaint of the respondent.

SO ORDERED.

Puno, Acting C.J., (Chairman), Austria-Martinez, and Chico-Nazario, JJ., concur.

Tinga, J., out of the country.

Footnotes

1Penned by Associate Justice Elvi John S. Asuncion, with Associate Justices Romeo A.
Brawner (now Presiding Justice) and Juan Q. Enriquez, Jr., concurring; Rollo, pp. 27-30.

2 Rollo, pp. 53-56.

3 Rollo, p. 109.

4 Id. at 47-50.

5 Rollo, pp. 51-52.

6 Rollo, p. 108.

7 Id. at 18.

8 Melo v. Court of Appeals, G.R. No. 123686, 16 November 1999, 318 SCRA 94.

9Digital Microwave Corporation v. Court of Appeals, G.R. No. 128550, 16 March 2000, 328
SCRA 286.

United Residents Dominican Hill, Inc. v. COSLAP, G.R. No. 135945, 7 March 2001, 353
10

SCRA 782.

11 G.R. No. 134468, 29 August 2002, 388 SCRA 85.

12Uy v. Land Bank of the Philippines, G.R. No. 136100, 24 July 2000, 336 SCRA 419;
and National Steel Corporation v. Court of Appeals, supra.

13 Rollo, pp. 55-56.

14 These provisions are the basis of Section 12, Rule 14 of the Rules of Court, which reads:

SEC. 12. Service upon foreign private juridical entity. When the defendant is a
foreign private juridical entity which has transacted business in the Philippines,
service may be made on its resident agent designated in accordance with law for that
purpose, or, if there be no such agent, on the government official designated by law
to that effect, or on any of its officers or agents within the Philippines.

15 State Prosecutors v. Muro, A.M. No. RTJ-92-876, 19 September 1994, 236 SCRA 505.

16 Wood v. Astleford, 412 N.W. 2d 753 (1987).

17 Trepanier v. Toledo & D. C. Ry, Co., 130 N.E. 558.

18J. Carroll, Teleconferencing, CIX Duns Business Month, 1 (1982), pp. 130-34, cited in R.
Rogan and G. Simons, Teleconferencing, 22 Journal of Extensions 5, 20 (September 1984)
available at http:// joe.org/joe/1984 September/a4 html. (last visited 20 May 2005).

19 Ibid.

R. Johansen, J. Vallee, and K. Spangler, Electronic Meetings: Utopian Dreams and

20

Complex Realities, The Futurist, XII (No. 5, 1978), 313-19, supra.

 21J. Bartlett, Interesting Highlights of the Growing Teleconferencing Boom, XVII
Communication News 12 (1980), 42; Sonneville, Teleconferencing Enters Its Growth Stage;
Stu Sutherland, Extension Teleconferencing in the 1980s, LII Extension Service Review 2
(1981), 12-16; L. Parker, M. Baird, and M. Monson, Introduction to
Teleconferencing (Madison: University of Wisconsin-Extension, Center for Interactive
Programs, 1982); and Rogan and others, Audioconferencing, supra.

Johansen, Vallee, and Spangler, Electronic Meetings; Parker, Baird, and

22

Monson, Introduction to Teleconferencing; Rogan and others, Audioconferencing; and

Sonneville, Teleconferencing Enters its Growth Stage, supra.

23 Ibid.

24The Court also approved the Rule on Examination of a child witness which allows live-link
television testimony in criminal cases where the child is a victim or a witness (Section 25),
which took effect on December 15, 2000.

The early applications of videoconferencing in the States in the United States courts
primarily focused on video arraignments and probable cause hearings. As courts
began to appreciate the costs savings and the decreased security risks of the
technology, other uses became apparent. Videoconferencing is an effective tool for
parole interviews, juvenile detention hearings, mental health hearings, domestic
violence hearings, pretrial conferences, remote witness testimony, and depositions
to name a few. The technology will prove even more valuable in an age of
international terrorist trials with witnesses from around the world. Videoconferencing
has become quite commonplace in State Courts per the Report. The last
comprehensive report: "Use of Interactive Video for Court Proceedings: Legal
Status and Use Nationwide." Published in 1995, by the National Institute of
Corrections, is that videoconferencing is used in 50 states in the United States of
America.

25 Rollo, p. 68.

26 Id. at 86.

27 Id. at 87.

28 Rollo, pp. 90-91.

29 Id. at 93.

30 Rollo, p. 108.

G.R. No. 108229 August 24, 1993

DASMARIAS GARMENTS, INC., petitioner,

vs.
HON. RUBEN T. REYES, Judge, Regional Trial Court, Manila, Branch 50, and AMERICAN
PRESIDENT LINES, LTD., respondents.

Sobrevias, Diaz, Haudini & Bodegon Law Offices for petitioner.

Tan, Manzano & Velez Law Offices for private respondent.

RESOLUTION

NARVASA, C.J.:

Sometime in September, 1987, in the Regional Trial Court of Manila, the American President Lines,
Ltd. sued Dasmarias Garments, Inc. to recover the sum of US $53,228.45 as well as an amount
equivalent to twenty-five percent (25%) thereof as attorney's fees and litigation expenses.

In its answer dated December 1, 1987, Dasmarias Garments, Inc. (hereafter, simply Dasmarias)
specifically denied any liability to the plaintiff (hereafter simply APL), and set up compulsory
counterclaims against it.
The case was in due course scheduled for trial on April 27, 1988. On that date APL presented its
first witness whose testimony was completed on November 12, 1988. The case was reset to May 3,
1989 for reception of the testimony of two (2) more witnesses in APL's behalf.

At the hearing of May 3, 1989, instead of presenting its witnesses, APL filed a motion praying that it
intended to take the depositions of H. Lee and Yeong Fang Yeh in Taipei, Taiwan and prayed that
for this purpose, a "commission or letters rogatory be issued addressed to the consul, vice-consul or
consular agent of the Republic of the Philippines in Taipei . . . " Five (5) days later APL filed an
amended motion stating that since the Philippine Government has no consulate office in Taiwan in
view of its "one China policy," there being in lieu thereof an office set up by the President "presently
occupied by Director Joaquin Roces which is the Asia Exchange Center, Inc.," it was necessary
and it therefore prayed "that commission or letters rogatory be issued addressed to Director
Joaquin Roces, Executive Director, Asian Executive Exchange Center, Inc., Room 901, 112
Chunghsiao, E. Road, Section 1, Taipe, Republic of China, to hear and take the oral deposition of
the aforenamed persons . . . ."

The motion was opposed by Dasmarias. It contended that (a) the motion was "fatally defective in
that it does not seek . . . that a foreign court examine a person within its jurisdiction;" (b) issuance of
letters rogatory was unnecessary because the witnesses "can be examined before the Philippine
Court;" and
(c) the Rules of Court "expressly require that the testimony of a witness must be taken orally in open
court and not by deposition."

Extensive argument on the matter thereafter followed, through various pleadings filed by the parties,
in the course of which APL submitted to the Trial Court (a) the letter received by its counsel from
Director Joaquin R. Roces of the Asian Exchange Center, Inc., dated November 20, 1989, advising
that "this Office can only take deposition upon previous authority from the Department of Foreign
Affairs," this being "in consonance with the Supreme Court Administrative Order requiring courts or
judicial bodies to course their requests through the Department of Foreign Affairs;" and (b) a letter
sent by "fax" to the same counsel by a law firm in Taipei, Lin & Associates Maritime Law Office,
transmitting information inter alia of the mode by which, under the "ROC Civil Procedure Code," "a
copy or an abridged copy" of documents on file with a Taiwan Court may be obtained.

By Order dated March 15, 1991, the Trial Court resolved the incident in favor of APL, disposing as
follows:

ACCORDINGLY, the motion to take testimonies of plaintiff's Taiwanese witnesses,

Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) is
hereby GRANTED. The Asian Exchange Center, Inc. thru Director Joaquin R. Roces
is hereby COMMISSIONED to take down the deposition. Compliance with the Rules
on the taking of testimony by deposition upon written interrogatories under Sections
25-29 of Rule 24, Rules of Court is enjoined.

Let this Order be coursed through the Department of Foreign Affairs, Manila,
pursuant to Supreme Court Administrative Circular No. 4 dated April 6, 1987.

The Court opined that "the Asian Exchange Center, Inc. being the authorized Philippine
representative in Taiwan, may take the testimonies of plaintiff's witnesses residing there by
deposition, but only upon written interrogatoriesso as to give defendant the opportunity to cross-
examine the witnesses by serving cross-examination."

Dasmarias sought reconsideration by motion filed June 25, 1991 on the following grounds: (1)
authority of the Asian Exchange Center, Inc. (AECI) to take depositions has not been established, it
not being one of those so authorized by the Rules of Court to take depositions in a foreign state; (2)
AECI's articles of incorporation show that it is not vested with any such authority; (3) to permit
deposition-taking by commission without the authority of the foreign state in which deposition is
taken constitutes infringement of judicial sovereignty; and (4) depositions by written interrogatories
have inherent limitations and are not suitable to matters dependent on the credibility of witnesses;
oral testimony in open court remains the "most satisfactory method of investigation of facts'" and
"'affords the greatest protection to the rights and liberties of citizens."

By Order dated July 5, 1991, the motion for reconsideration was denied because "filed out of time"
and being a mere rehash of arguments already passed upon. In the same Order, APL was directed
"to take the necessary steps to implement the order authorizing the . . . (deposition-taking) of its
witnesses not later than the end of this month, otherwise the Court will consider inaction or lack of
interest as waiver to adduce additional evidence by deposition."

Dasmarias instituted a special civil action of certiorari in the Court of Appeals to nullify the orders of
the Trial Court just described. Said Appellate Court restrained enforcement of the orders of March
15, 1991 and July 5, 1991 "in order to maintain the status quo and to prevent the infliction of
irreparable damage and injury upon the petitioner."

After due proceedings, the Court of Appeals (Third Division) rendered judgment on September 23,
1992 denying Dasmarias petition for certiorari and upholding the challenged orders of the Trial
Court. Once again, Dasmarias sought reconsideration of an adverse disposition, and once again,
was rebuffed. Its motion for reconsideration was denied in a Resolution of the Court of Appeals
dated December 11, 1992.

Once again Dasmarias has availed of the remedy of appeal. It has come to this Court and prays for
the reversal of the Appellate Court's Decision of September 23, 1992 and Resolution dated
December 11, 1992. Once again, it will fail.

Dasmarias ascribes to the Court of Appeals the following errors, to wit:

1) "in holding that a party could, during the trial of the case, present its evidence by
taking the deposition of its witnesses in a foreign jurisdiction before a private entity
not authorized by law to take depositions in lieu of their oral examination in open
Court considering that:

a) the taking of deposition is a mode of pretrial discovery to be

availed of before the action comes to trial;

b) no urgent or compelling reason has been shown to justify the

departure from the accepted and usual judicial proceedings of
examining witnesses in open court where their demeanor could be
observed by the trial judge;"

2) "in disregarding the inherently unfair situation in allowing private respondent, a

foreign entity suing in the Philippines, to present its evidence by mere deposition of
its witnesses away from the 'penetrating scrutiny' of the trial Judge while petitioner is
obligated to bring and present its witnesses in open court subject to the prying eyes
and probing questions of the Judge;" and

3) "in sanctioning the deposition taking of . . . (APL's) witnesses in Taipei, Taiwan, a

foreign jurisdiction not recognized by the Philippines in view of its 'one-China policy,'
before the AECI, a private entity not authorized by law to take depositions."

Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of
facts resting in the knowledge of a party or other person which are relevant in some suit or
proceeding in court. Depositions, and the other modes of discovery (interrogatories to parties;
requests for admission by adverse party; production or inspection of documents or things; physical
and mental examination of persons) are meant to enable a party to learn all the material and
relevant facts, not only known to him and his witnesses but also those known to the adverse party
and the latter's own witnesses. In fine, the object of discovery is to make it possible for all the parties
to a case to learn all the material and relevant facts, from whoever may have knowledge thereof, to
the end that their pleadings or motions may not suffer from inadequacy of factual foundation, and all
the relevant facts may be clearly and completely laid before the Court, without omission or
suppression.

Depositions are principally made available by law to the parties as a means of informing themselves
of all the relevant facts; they are not therefore generally meant to be a substitute for the actual
testimony in open court of a party or witness. The deponent must as a rule be presented for oral
examination in open court at the trial or hearing. This is a requirement of the rules of evidence.
Section 1, Rule 132 of the Rules of Court provides:

Sec. 1. Examination to be done in open court. The examination of witnesses

presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the question calls for a
different mode of answer, the answers of the witness shall be given orally.

Indeed, any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the
actual oral testimony of the deponent in open court, may be opposed and excluded on the ground
that it is hearsay; the party against whom it is offered has no opportunity to cross-examine the
deponent at the time that his testimony is offered. It matters not that that opportunity for cross-
examination was afforded during the taking of the deposition; for normally, the opportunity for cross-
examination must be accorded a party at the time that the testimonial evidence is actually presented
against him during the trial or hearing.
However, depositions may be used without the deponent being actually called to the witness stand
by the proponent, under certain conditions and for certain limited purposes. These exceptional
situations are governed by Section 4, Rule 24 of the Rules of Court.

Sec. 4. Use of depositions. At the trial or upon the hearing of a motion of an

interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, in
accordance with any of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any
purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for
any purpose if the court finds: (1) that the witness is dead; or (2) that the witness if
out of the province and at a greater distance than fifty (50) kilometers from the place
of trial or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or (3) that the witness is unable to
attend to testify because of age, sickness, infirmity, or imprisonment; or (4) that the
party offering the deposition has been unable to procure the attendance of the
witness by subpoena; or (5) upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used;

(d) If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the part introduced, and any
party may introduce any other parts.

The principle conceding admissibility to a deposition when the deponent is dead, out of the
Philippines, or otherwise unable to come to court to testify, is consistent with another rule of
evidence, found in Section 47, Rule 132 of the Rules of Court.

Sec. 47. Testimony or deposition at a former proceeding. The testimony or

deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to
cross-examine him.

It is apparent then that the deposition of any person may be taken wherever he may be, in the
Philippines or abroad. If the party or witness is in the Philippines, his deposition "shall be taken
before any judge, municipal or notary public" (Sec. 10, Rule 24, Rules of Court). If in a foreign state
or country, the deposition "shall be taken: (a) on notice before a secretary or embassy or legation,
consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, or (b)
before such person or officer as may be appointed by commission or under letters rogatory" (Sec.
11, Rule 24).

Leave of court is not necessary where the deposition is to be taken before "a secretary or embassy
or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines,"
and the defendant's answer has already been served (Sec. 1 Rule 24). After answer, whether the
deposition-taking is to be accomplished within the Philippines or outside, the law does not authorize
or contemplate any intervention by the court in the process, all that is required being that
"reasonable notice" be given "in writing to every other party to the action . . . (stating) the time and
place for taking the deposition and the name and address of each person to be examined, if known,
and if the name is not known, a general description sufficient to identify him or the particular class or
group to which he belongs. . . . " (Sec. 15, Rule 24). The court intervenes in the process only if a
party moves (1) to "enlarge or shorten the time" stated in the notice (id.), or (2) "upon notice and for
good cause shown," to prevent the deposition-taking, or impose conditions therefor, e.g., that
"certain matters shall not be inquired into" or that the taking be "held with no one present except the
parties to the action and their officers or counsel," etc. (Sec. 16, Rule 24), or
(3) to terminate the process on motion and upon a showing that "it is being conducted in bad faith or
in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party" (Sec 18,
Rule 24).
Where the deposition is to be taken in a foreign country where the Philippines has no "secretary or
embassy or legation, consul general, consul, vice-consul, or consular agent," then obviously it may
be taken only "before such person or officer as may be appointed by commission or under letters
rogatory. Section 12, Rule 24 provides as follows:

Sec. 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 directions 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 (here name the
country)."

DEPOSITIONS

G.R. No. 132577 August 17, 1999

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HUBERT JEFFREY P. WEBB, respondent.

YNARES-SANTIAGO, J.:

Challenged in this petition for review on certiorari is the Decision of the Court of Appeals in CA-G.R.
SP No. 45399 entitled "Hubert Jeffrey P. Webb v. Hon. Amelita Tolentino, in her capacity as
Presiding Judge of Branch 274 of the Regional Trial Court of Paraaque, People of the Philippines
and Lauro Vizconde" which set aside the order of respondent judge therein denying herein
respondent Hubert Jeffrey P. Webb's request to take the depositions of five (5) citizens and
residents of the United States before the proper consular officer of the Philippines in Washington
D.C. and California, as the case may be. 1wphi1.nt

The factual and procedural antecedents are matters of record or are otherwise uncontroverted.

Respondent Hubert Jeffrey P. Webb is one of the accused in Criminal Case No. 95-404 for Rape
with Homicide entitled "People of the Philippines v. Hubert Jeffrey P. Webb, et al." presently pending
before Branch 274 of the Regional Trial Court of Paraaque, presided by Judge Amelita G.
Tolentino.

During the course of the proceedings in the trial court, respondent filed on May 2, 1997, a Motion To
Take Testimony By Oral Deposition1 praying that he be allowed to take the testimonies of the
following:

1.] Steven Bucher

Acting Chief, Records Services Branch

U.S. Department of Justice

Immigration and Naturalization Service

425 Eye Street, N.W.

Washington D.C. 20536

U.S.A.

2.] Debora Farmer

Records Operations, Office of Records

U.S. Department of Justice

Immigration and Naturalization Service

Washington D.C.

U.S.A.
 3.] Jaci Alston

Department of Motor Vehicles

Sacramento, California

U.S.A.

4.] Ami Smalley

Department of Motor Vehicles

Sacramento, California

U.S.A.

5.] John Pavlisin

210 South Glasell, City of Orange

California, 92666

U.S.A.

before the general consul, consul, vice-consul or consular agent of the Philippines in lieu of
presenting them as witnesses in court alleging that the said persons are all residents of the United
States and may not therefore be compelled by subpoena to testify since the court had no jurisdiction
over them.

Respondent further alleged that the taking of the oral depositions of the aforementioned individuals
whose testimonies are allegedly "material and indispensable" to establish his innocence of the crime
charged is sanctioned by Section 4, Rule 24 of the Revised Rules of Court which provides that:

Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible under the rules of evidence,
may be used against any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any one of the following
provisions:

(a) Any deposition may by used by any party for the purpose of contradicting or
impeaching the testimony of the deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any
purpose;

(c) The deposition of a witness whether or not a party, may be used by any party for
any purpose if the court finds: (1) that the witness is dead; (2) that the witness is out
of the province and a greater distance than fifty (50) kilometers from the place of trial
or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or (3) that the witness is unable to
attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the
party offering the deposition has been unable to procure the attendance of the
witness by subpoena or (5) upon application and notice, that such exceptional
circumstances exist as to make it desirable in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used;

(d) If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the part introduced and any
party may introduce any other parts. (emphasis supplied).

The prosecution thereafter filed an opposition to the said motion averring that: 1.] Rule 24, Section 4
of the Rules of Court, contrary to the representation of respondent-accused, has no application in
criminal cases; 2.] Rule 119, Section 4 of the Rules of Court on Criminal Procedure, being a mode of
discovery, only provides for conditional examination of witnesses for the accused before trial not
during trial; 3.] Rule 19, Section 5 of the Rules of Court on Criminal Procedure does not sanction the
conditional examination of witnesses for the accused/defense outside Philippine Jurisdiction.2

In an Order dated June 11, 1997, the trial court denied the motion of respondent on the ground that
the same is not allowed by Section 4, Rule 24 and Sections 4 and 5 of Rule 119 of the Revised
Rules of Court.3

A motion for reconsideration4 thereto on the grounds that: 1.] The 1997 Rules of Court expressly
allows the taking of depositions, and 2.] Section 11 of Rule 23 of the 1997 Rules of Court expressly
allows the taking of depositions in foreign countries before a consul general, consul, vice-consul or
consular agent of the Republic of the Philippines, was likewise denied by the trial court in an order
dated July 25, 1997.5

Dissatisfied, respondent elevated his cause to the Court of Appeals by way of a petition
for certiorari6 naming as respondents therein the Presiding Judge Amelita G. Tolentino, the People
and private complainant Lauro Vizconde. In the petition, docketed as CA-G.R. SP No. 45399,
respondent Webb argued that: 1.] The taking of depositions pending action is applicable to criminal
proceedings; 2.] Depositions by oral testimony in a foreign country can be taken before a consular
officer of the Philippine Embassy in the United States; and, 3.] He has the right to completely and
fully present evidence to support his defense and the denial of such right will violate his
constitutional right to due process.

Commenting7 on the petition, the People contended that the questioned orders of the Presiding
Judge are well within the sphere of her judicial discretion and do not constitute grave abuse of
discretion amounting to lack or excess of jurisdiction and that if at all, they may be considered
merely as errors of judgment which may be corrected by appeal in due time because: a.] The motion
failed to comply with the requirements of Section 4, Rule 119 of the Rules of Court; b.] The
conditional examination must be conducted before an inferior court; and c.] The examination of the
witnesses must be done in open court.

In his Comment,8 private respondent Lauro Vizconde sought the dismissal of the petition contending
that:

1.] The public respondent did not commit grave abuse of discretion in denying petitioner [now
herein respondent] Webb's motion to take testimony by oral deposition dated 29 April 1997
as well as petitioner's motion for reconsideration dated 23 June 1997 for not being
sanctioned by the Rules of Court.

a.] The public respondent correctly held that Rule 23, Section 1 of the 1997 Revised
Rules of Civil Procedure finds no application in criminal actions such as the case at
bar.

b.] The public respondent correctly ruled that Rule 119, Section 4 of the Rules of
Criminal Procedure only provides for conditional examination of witnesses before trial
but not during trial.

c.] The public respondent correctly ruled that Rule 119 of the Rules on Criminal
Procedure does not sanction the conditional examination of witnesses for the
accused/defense outside of Philippine jurisdiction.

2.] The public respondent did not commit any grave abuse of discretion in denying petitioner
Webb's motion to take testimony by oral deposition considering that the proposed deposition
tends only to further establish the admissibility of documentary exhibits already admitted in
evidence by the public respondent.

On February 6, 1998, the Fourth Division9 of the Court of Appeals rendered judgment,10 the
dispositive portion of which reads:

WHEREFORE, the petition is GRANTED. The orders of respondent judge dated 11 June
1997 (Annex "A" of the Petition) and 25 July 1997 (Annex "B" of the Petition) are hereby
ANNULLED and SET ASIDE. It is hereby ordered that the deposition of the following
witnesses be TAKEN before the proper consular officer of the Republic of the Philippines in
Washington D.C. and California, as the case maybe:

(a) Mr. Steven Bucher;

(b) Ms. Deborah Farmer;

(c) Mr. Jaci Alston;

 (d) Ms. Ami Smalley; and

(e) Mr. John Pavlisin.

SO ORDERED.

From the foregoing, the People forthwith elevated its cause to this Court by way of the instant
petition dispensing with the filing of a motion for reconsideration for the following reasons: 1.] The
rule that the petitioner should first file a motion for reconsideration applies to the special civil action
of certiorari under Rule 65 of the 1997 Rules of Civil Procedure and there is no similar requirement
in taking an appeal from a final judgment or order11 such as the present appeal by certiorari; 2.]
Section 4, Rule 45 in requiring a petition for review on certiorari which indicates that "when a motion
for new trial or reconsideration, if any, was filed" implies that petitioner need not file a motion for
reconsideration; 3.] The questions being raised before the Court are the same as those which were
squarely raised before the Court of Appeals;12 4.] The issues being raised here are purely legal;13 5.]
There is an urgent need to resolve the issues considering that the trial of the accused in the criminal
case is about to end; and, 6.] The nature of this case requires a speedy and prompt disposition of
the issues involved.14

What are challenged before this Court are interlocutory orders and not a final Judgment. The
respondent has filed his Comment15 which We treat as an Answer. The petitioner, in turn, filed a
Reply.16 The petition is ripe for decision.

In urging this Tribunal to exercise its power of review over the assailed decision of the Appellate
Court, petitioner asserts that the Court of Appeals committed serious and reversible error

IN RULING THAT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE IS APPLICABLE TO

CRIMINAL PROCEEDINGS.

II

IN RULING THAT THE DEPOSITION MAY BE TAKEN BEFORE A CONSULAR OFFICER OF THE
PHILIPPINES WHERE THE PROSPECTIVE WITNESSES RESIDE OR ARE OFFICIALLY
STATIONED.

III

IN RULING THAT RESPONDENT WAS DEPRIVED OF DUE PROCESS OF LAW BY THE TRIAL
COURT.

which can be reduced to the primordial issue of whether or not the trial judge gravely abused her
discretion in denying the motion to take testimony by oral depositions in the United States which
would be used in the criminal case before her Court.

In setting aside the order of the trial judge, the Appellate Court's Fourth Division reasoned, inter alia,
thus:

Settled is the rule that the whole purpose and object of procedure is to make the powers of
the court fully and completely available for justice. Thus, as the Supreme Court has ruled
in Manila Railroad Co. vs. Attorney General and reiterated in subsequent cases:

. . . The most perfect procedure that can be devised is that which give the opportunity
for the most complete and perfect exercise of the powers of the court within the
limitations set by natural justice. It is that one which, in other words, gives the most
perfect opportunity for the powers of the court to transmute themselves into concrete
acts of justice between the parties before it. The purpose of such a procedure is not
to restrict the jurisdiction of the court over the subject matter, but to give it effective
facility in righteous action. It may be said in passing that the most salient objection
which can be urged against procedure today is that it so restricts the exercise of the
court's powers by technicalities that part of its authority effective for justice between
the parties is many times an inconsiderable portion of the whole. The purpose of
procedure is not to thwart justice. Its proper aim is to facilitate the application of
justice to the rival claims of the contending parties. It was created not to hinder and
delay but to facilitate and promote the administration of justice. It does not constitute
the thing itself which the courts are always striving to secure the litigants. It is
designed as the as the means best adapted to obtain that thing. In other words, it is a
means to an end. It is the means by which the powers of the court are made effective
 in just judgments. When it loses the character of the one and takes on the other [,]
the administration of justice becomes incomplete and unsatisfactory and lays itself
open to grave criticism.17

In the light of the foregoing judicial precedent, this Court finds that the public respondent
gravely abused her discretion in denying the motion to take the deposition of the witnesses
for petitioner. While petitioner had invoked Rule 23, Section 1 of the Rule of Court, which is
found under the general classification of the Civil Procedure, it does not prevent its
application to the other proceedings, provided the same is not contrary to the specific rules
provided therein. Indeed, the Rules of Court is to be viewed and construed as a whole, and if
the Supreme Court had compartmentalized the same into four divisions, it was, as petitioner
had claimed, for the purpose of organization and expediency and not, for exclusivity.

To be sure, a reading of the rules on criminal procedure, specifically Section 4, Rule 119 vis-
-vis Section 1, Rule 23 would reveal no inconsistency so as to exclude the application of the
latter rule in criminal proceedings. Section 4, Rule 119 refers to the conditional examination
of witnesses for the accused beforetrial, while Section 1, Rule 23 refers to the taking of
deposition witnesses during trial. . . .

xxx xxx xxx

While the taking of depositions pending trial is not expressly provided [for] under the Rules
on Criminal Procedure, we find no reason for public respondent to disallow the taking of the
same in the manner provided for under Section 1 of Rule 23 under the circumstances of the
case. To disallow petitioner to avail of the specific remedies provided under the Rules would
deny him the opportunity to adequately defend himself against the criminal charge of rape
with homicide now pending before the public respondent and, further, [it] loses sight of the
object of procedure which is to facilitate the application of justice to the rival claims of
contending parties.

xxx xxx xxx

Even granting arguendo that Rule 23 is to be exclusively applied to civil actions, the taking of
the deposition of petitioner's US-based witnesses should be still allowed considering that the
civil action has been impliedly instituted in the criminal action for rape with homicide. Since
public respondent has jurisdiction over the civil case to recover damages, she exercised full
authority to employ all auxiliary writs, processes and other means to carry out the jurisdiction
conferred and [to] adopt any suitable process or mode of proceeding which includes the
application of the rule on depositions pending action under Rule 23 in the case pending
before her.

Second. Depositions obtained during trial in a foreign state or country may be taken before a
consular office of the Republic of the Philippines where the deponent resides or is officially
stationed.18 Section 5, Rule 119 of the Rules of Court is thus clearly inapplicable in the
instant case since the same relates to the examination of witnesses under Section 4 thereof
and not Section 1 of Rule 23. Consistent with the procedure provided [for] under Rule 23, the
deposition of the petitioner's witnesses, which include four (4) officials of the United States
government, will be taken before a consular officer of the Philippines where these witnesses
reside or are officially stationed, as the case may be.

The denial of petitioner's right to present his witnesses, who are residing abroad, based on a
very Shaky technical ground, is tantamount to depriving him of his constitutional right to due
process. This Court recognizes the impossibility of enforcing the right of petitioner to secure
the attendance of the proposed witnesses through compulsory process considering that they
are beyond the jurisdiction of Philippine Courts. Petitioner, however, is not without any
remedy and he correctly sought to secure the testimonies of his witness through the process
of taking their depositions pending the trial of Criminal Case No. 95-404 in the court below
under Rule 23 of the Rules of Court. In any event the prosecution would have the opportunity
to cross-examine the witnesses for accused Hubert Webb (petitioner herein) since they will
be given the opportunity to cross-examine the deponents as in accordance with Section 3 to
18 of Rule 132.19

Furthermore, no prejudice would be suffered in the taking of the depositions of petitioner's

US-based witness(es). On the other hand, a denial of the same would be prejudicial to
petitioner-accused since he would be denied an opportunity to completely present his
evidence, which strikes at the very core of the due process guarantee of the Constitution. To
reiterate, it is not the function of this Court to second-guess the trial court on its ruling on the
admissibility of the pieces of documentary evidence as well as the latter's witnesses,20 but it
is definitely within this court's inherent power to scrutinize, as it does in the case at bench,
 the acts of respondent judge and declare that she indeed committed grave abuse discretion
in issuing the questioned Orders.

In the final analysis, this Court rules that the denial of the deposition-taking amount to the
denial of the constitutional right to present his evidence and for the production of evidence in
his behalf. The denial is not justified by the flimsy reason that Sec. 1 of Rule 23 of the Rules
of Court is not applicable to the criminal proceedings. To rule that petitioner cannot take the
testimony of these witnesses by deposition it to put [a] premium on technicality at the
expense of the constitutional rights of the accused, which this court is not inclined to do.
Particularly where the issue of the guilt or innocence of the petitioner is bound to hinge
heavily upon the testimonies of his US-based witnesses, it behooves upon public respondent
not only to guarantee that accused is given a reasonable opportunity to present his evidence,
but also to allow him a certain latitude in the presentation of his evidence, lest he may be so
hampered that the ends of justice may eventually be defeated or appear to be defeated.
Finally, even if respondent's contention is correct, it cannot be denied that the case at bar
includes the recovery of the civil liability of the accused, which normally is done through a
civil case.

We disagree.

As defined, a deposition is

The testimony of a witness taken upon oral question or written interrogatories, not in open
court, but in pursuance of a commission to take testimony issued by court, or under a
general law or court rule on the subject, and reduce to writing and duly authenticated, and
intended to be used in preparation and upon the trial of a civil or a criminal prosecution. A
pretrial discovery device by which one party (through his or her attorney) ask oral questions
of the other party or of a witness for the other party. The person who is deposed is called the
deponent. The deposition is conducted under oath outside of the court room, usually in one
of the lawyer's offices. A transcript word for word account is made of the deposition.
Testimony of [a] witness, taken in writing, under oath or affirmation, before some judicial
officer in answer to questions or interrogatories . . .21

and the purposes of taking depositions are to: 1.] Give greater assistance to the parties in
ascertaining the truth and in checking and preventing perjury; 2.] Provide an effective means of
detecting and exposing false, fraudulent claims and defenses; 3.] Make available in a simple,
convenient and inexpensive way, facts which otherwise could not be proved except with great
difficulty; 4.] Educate the parties in advance of trial as to the real value of their claims and defenses
thereby encouraging settlements; 5.] Expedite litigation; 6.] Safeguard against surprise; 7.] Prevent
delay; 8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both preparation and
trial.22 As can be gleaned from the foregoing, a deposition, in keeping with its nature as a mode of
discovery, should be taken before and not during trial. In fact, rules on criminal practice
particularly on the defense of alibi, which is respondent's main defense in the criminal proceedings
against him in the court below states that when a person intends to rely on such a defense, that
person must move for the taking of the deposition of his witnesses within the time provided for filing
a pre-trial motion.23

It needs to be stressed that the only reason of respondent for seeking the deposition of the foreign
witnesses is "to foreclose any objection and/or rejection of, as the case may be, the admissibility of
Defense Exhibits "218" and "219"." This issue has, however, long been rendered moot and
academic by the admission of the aforementioned documentary exhibits by the trial court in its order
dated July 10, 1998.24

In fact, a circumspect scrutiny of the record discloses that the evidence to be obtained through the
deposition-taking would be superfluous or corroborative at best. A careful examination of Exhibits
"218" and "219" readily shows that these are of the same species of documents which have been
previously introduced and admitted into evidence by the trial court in its order dated July 18, 1997
which We noted in Webb, et al. v. People of the Philippines, et al.25 wherein We pointed out, among
others, "[t]hat respondent judge reversed this erroneous ruling and already admitted these 132
pieces of evidence after finding that "the defects in (their) admissibility have been cured though the
introduction of additional evidence during the trial on the merits"."26

Indeed, a comparison of Exhibit "218-A" which is a U.S. Department of State Certification issued by
Joan C. Hampton, Assistant Authenticating Officer of the said agency, for and in the name of
Madeleine K. Albright, stating that the documents annexed thereto were issued by the U.S.
Department of Justice as shown by seal embossed thereon,27 with other exhibits previously offered
as evidence reveals that they are of the same nature as Exhibits "42-H"28 and "42-M".29 The only
difference in the documents lies in the fact that Exhibit "218-A" was signed by Joan C. Hampton for
and in behalf of the incumbent Secretary of State, Madeleine K. Albright whereas, Exhibits "42-H"
and "42-M" were signed by Authenticating Officer Annie R. Maddux for and in behalf of former
Secretary of State Warren Christopher.30

A comparison of Exhibit "218-B"31 with the other documentary exhibits offered by respondent,
likewise discloses that its contents are the same as Exhibits "42-I"32 and "42-N."33 The only difference
in the three exhibits, which are actually standard issue certification forms issued by the U.S.
Department of Justice with blanks to be filled up, is that Exhibit "218-B" is dated February 5, 1997
and signed by one of the U.S. Attorney General's several Deputy Assistant Attorneys for
Administration for and in her behalf, while Exhibits "42-I" and "42-N" are both dated September 21,
1995 with another of the said deputies signing both documents.34

Still comparing respondent's Exhibit "218-F,"35 which is likewise a standard issue U.S. Department of
Justice Certification Form, with other documents previously introduced as evidence reveals that it is
the same as Exhibits "39-D"36 and "42-C."37 The only differences in these documents are that Exhibit
"218-F" is dated October 13, 1995 and is signed by Debora A. Farmer while Exhibits "39-D" and "42-
C" are both dated August 31, 1995 and signed by Cecil G. Christian, Jr., Assistant Commissioner,
Officer of Records, INS.38

Still further scrutinizing and comparing respondent's Exhibit "218-G"39 which was also introduced and
admitted into evidence as Defense Exhibit "207-B"40 shows that the document has been earlier
introduced and admitted into evidence by the trial court an astounding seven (7) times, particularly
as Exhibits "34-A", "35-F", "39-E", "42-D", "42-P", "50" and "50-F."41 The only difference in these
document is that they were printed on different dates. Specifically, Exhibits "218-G" as with Exhibits
"34-A", "35-F", "50", and "52-F" were printed out on October 26, 199542 whereas Exhibit "207-B" as
with Exhibits "39-E", "42-D" and "42-F" were printed out on August 31, 1995.43

In fact, the records show that respondent's: a.] application for Non-Commercial Driver's License; b.]
Documentary records based on Clet's Database Response; c.] Computer-generated thumb-print; d.]
Documentary records based on still another Clet's Database Response, and e.] The Certification
issued by one Frank Zolin, Director of the State of California's Department of Motor Vehicles, were
already introduced and admitted into evidence as Defense Exhibits "66-J", "66-K", "66-H", "66-I" and
"66-L", respectively.44

It need not be overemphasized that the foregoing factual circumstances only; serves to underscore
the immutable fact that the depositions proposed to be taken from the five U.S. based witnesses
would be merely corroborative or cumulative in nature and in denying respondent's motion to take
them, the trial court was but exercising its judgment on what it perceived to be a superfluous
exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of
the evidence already on record. In this regard, it bears stressing that under Section 6, Rule 113 of
the Revised Rules of Court:

Sec. 6. Power of the court to stop further evidence. The court may stop the introduction of
further testimony upon any particular point when the evidence upon it is already so full that
more witnesses to the same point cannot be reasonably expected to be additionally
persuasive. But this power should be exercised with caution. (emphasis and italics supplied.)

Needless to state, the trial court can not be faulted with lack of caution in denying respondent's
motion considering that under the prevailing facts of the case, respondent had more than ample
opportunity to adduce evidence in his defense. Certainly, a party can not feign denial of due process
where he had the opportunity to present his side.45It must be borne in mind in this regard that due
process is not a monopoly of the defense. Indeed, the State is entitled to due process as much as
the accused.46 Furthermore, while a litigation is not a game of technicalities, it is a truism that every
case must be prosecuted in accordance with the prescribed procedure to insure an orderly and
speedy administration of justice.47

The use of discovery procedures is directed to the sound discretion of the trial judge.48 The
deposition taking can not be based nor can it be denied on flimsy reasons.49 Discretion has to be
exercised in a reasonable manner and in consonance with the spirit of the law. There is no indication
in this case that in denying the motion of respondent-accused, the trial judge acted in a biased,
arbitrary, capricious or oppressive manner. Grave abuse of discretion ". . . implies such capricious,
and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where
the power is exercised in an arbitrary and despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act all in contemplation of Law."50

Certiorari as a special civil action can be availed of only if there is concurrence of the
essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has
acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
or in excess or jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate
remedy in the ordinary course of law for the purpose of annulling or modifying the
 proceeding. There must be a capricious, arbitrary and whimsical exercise of power for it to
prosper.51

To question the jurisdiction of the lower court or the agency exercising judicial or quasi-
judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules
of Court. The petitioner in such cases must clearly show that the public respondent acted
without jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction. Grave abuse of discretion defies exact definition, but generally refers to
"capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be patent and gross as to amount to an evasion of positive duty or
a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.

It has been held, however, that no grave abuse of discretion may be attributed to a court
simply because of its alleged misappreciation of facts and evidence. A writ of certiorari may
not be used to correct a lower tribunal's evaluation of the evidence and factual findings. In
other words, it is not a remedy for mere errors of judgment, which are correctible by an
appeal or a petition for review under Rule 45 of the Rules of Court.

In fine, certiorari will issue only to correct errors of jurisdiction, not errors of procedure or
mistakes in the findings or conclusions of the lower court. As long as a court acts within its
jurisdiction, any alleged errors committed in the exercise of its discretion will amount to
nothing more than errors of judgment which are reviewable by timely appeal and not by
special civil action for certiorari.52

Whether or not the respondent-accused has been given ample opportunity to prove his innocence
and whether or not a further prolongation of proceedings would be dilatory is addressed, in the first
instance, to the sound discretion of the trial judge. If there has been no grave abuse of discretion,
only after conviction may this Court examine such matters further. It is pointed out that the defense
has already presented at least fifty-seven (57) witnesses and four hundred sixty-four (464)
documentary exhibits, many of them of the exact nature as those to be produced or testified to by
the proposed foreign deponents. Under the circumstances, we sustain the proposition that the trial
judge commits no grave abuse of discretion if she decide that the evidence on the matter sought to
be proved in the United States could not possibly add anything substantial to the defense evidence
involved. There is no showing or allegation that the American public officers and the bicycle store
owner can identify respondent Hubert Webb as the very person mentioned in the public and private
documents. Neither is it shown in this petition that they know, of their own personal knowledge, a
person whom they can identify as the respondent-accused who was actually present in the United
States and not in the Philippines on the specified dates.

WHEREFORE, in view of all the foregoing, the petition is hereby GRANTED. The decision of the
Court of Appeals dated February 6, 1998 in CA-G.R. SP No. 45399 is hereby REVERSED and SET
ASIDE. The Regional Trial Court of Paraaque City is ordered to proceed posthaste in the trial of the
main case and to render judgment therein accordingly.

Kapunan and Pardo, JJ., concur.

Davide, Jr., C.J., please see separate opinion.
Puno, J., please see concurring opinion.

Can I Testify via Skype? Using

Videoconferencing Technology to
Enhance Remote
Witness Testimony
 Can I testify via Skype?
This great question was first posed to us by an international family law client two years ago. While it
seemed like a basic inquiry to our client, it took two years to arrive at a definitive answer. The Court of
Appeals would only offer guidance once the same case was appealed, on the basis that the trial court
abused its discretion when Skype testimony was ultimately allowed. On Feb. 20, 2014, the Court of
Appeals Division II issued a decision upholding the use of Skype in Marriage of Swaka. (Marriage
of Swaka, 319 P.3d 69 (2014))
We have long supported the use of court calls and witness testimony by phone, but what about Skype, or
a similar program that allows for the contemporaneous transmission of testimony without losing the ability
for the court to observe the physical attributes, mannerisms, and body language of a witness? What if we
could save litigants and witnesses the cost and burden of long-distance travel and increase the
information available to the court?
In Marriage of Swaka, the relocating parent was residing in Spain with her children while awaiting trial in
Kitsap County on the fathers objection to her relocation. Before trial, the mother requested that she,
her fianc, and other witnesses be allowed to testify via Skype due to the incredible burden of
traveling to the United States. The transatlantic journey would not only be costly, but it would also
remove her children from school and greatly disrupt their lives. Conversely, if the children remained
in Spain, they would be alone in a foreign country without their primary parent. The mother also described
the fathers previous false allegations of abuse and neglect made against her and her significant other,
and his efforts to have her falsely deported. As a result, there was great concern about what else
would happen if she brought herself and the children to Washington. This required us to devise a
creative solution.
Skype Testimony: The Benefits
Attorneys already use Skype with some regularity to communicate with clients who travel extensively or
live abroad, but we still prefer face-to-face conversations. The question became whether this was
permissible or even possible in a trial court. While there were compelling reasons for the mother
in this case not to travel, there were risks with her absence from the courtroom, as there is something lost
in testimony that does not allow the court to observe the witness, their body language, their presentation,
and the like. In this case, the party and her significant other presented well as healthy, kind, intelligent,
and energetic individuals who would be valuable to the court in a trial setting. There is no substitute for
eye contact with the court when addressing serious allegations regarding parenting.
By the same token, it is useful for a litigant to have the ability to view the courtroom in order to understand
and trust the process. Using Skype allows the client witness to view the judge or judicial officer making
the decision, the additional witnesses who testify, and of course, their attorneys during the course of
representation. The use of Skype makes common sense in almost every way and met all the
requirements of Washington CR 43, which allows for contemporaneous transmissions to provide
testimony in certain situations.
Skype Testimony: The Drawbacks
Using Skype has its drawbacks. Many courts are not set up for this type of interaction, and at the time,
Kitsap County Superior Court had very limited resources. It took the dedication of court staff and
technology experts, a private IT employee to set up the connection, a large screen television, two laptops,
and a trustworthy high-speed Internet connection to transmit the witness testimony successfully. (Its
worth noting that since the trial, Wi-Fi has been installed throughout many courthouses in Washington.)

There are also some concerns with Skype testimony. During our trial, legal counsel for the father asked if
someone else was in the room or if the other witness testifying via Skype had been in the room while
testimony was being given. While this was not occurring in our trial, there is a risk that someone
could potentially be coached or listen in to the testimony while remaining out of sight. The court
does relinquish a certain amount of control over the proceedings in this way, but no more so than
with telephonic testimony. In fact, given the allowance for eye contact and physical observation, Skype
may actually be a more secure way to testify outside of the courtroom, in that the judge can assess the
physical behavior of the witness.
Skype Testimony: Looking Ahead
As technology advances during a time when budget concerns are at the forefront of many public
institutions, the use of Skype or videoconferencing is only likely to increase. While it is always
preferable to have a litigant or witness physically present in the courtroom, if it is not practical,
Skype might prove to be an attractive alternative to parties in future cases.
About the Author
Jamie Walker and Laura Carlsen. Jamie and Laura are attorneys at McKinley Irvin. Jamie handled the
Relocation Trial (including the Motion to Allow Testimony by Skype) and Laura handled the appeal and
underlying Petition for Modification/Adequate Cause Motion. For more information,
visithttp://www.McKinleyIrvin.com.
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Evidence can be recorded through

video conferencing: Supreme Court
April 02, 2003 18:56 IST

In a path breaking development, the Supreme Court held that a trial judge
could record evidence of witnesses staying abroad through video
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Interpreting Section 273 of the Criminal Procedure Code in the light of
technological advancements, a bench comprising Justice S N Variava and
Justice B N Agrawal said recording of evidence through video conferencing
would be perfectly legal.
The judgment relates to a case in which a US-based doctor had opined
against operation of a cancer patient through video conferencing. Ignoring
the advice, two Indian doctors operated on the lady, who later passed away.

News on your Desktop The patient's family went to court against the doctors. However, the US-
based doctor, Ernest Greenberg, refused to come to India, but expressed
willingness to give evidence through video conferencing.

But the Bombay high court did not allow the trial court to go ahead citing Section 273, which lays down
the procedure for recording evidence.

The husband of the deceased, P C Singhi and the Maharashtra government had appealed against the
high court order in the Supreme Court.

The prosecution has alleged that the two Indian doctors -- Praful B Desai and A K Mukherjee -- did not
take good care of the patient after the operation as a result of which she suffered a lot before her death.

Speaking for the bench, Justice Variava said, "In cases where the attendance of a witness cannot be
procured without an amount of delay, expense or inconvenience, the court could consider issuing a
commission to record evidence by way of video conferencing."
"Normally a commission would involve recording of evidence at the place where the witness is. However,
advancement in science and technology has now made it possible to record such evidence by way of
video conferencing in the town/city where the court is," he said.

Referring to the chances of witness abusing the trial judge during video conferencing, the apex court said,
"As a matter of prudence, evidence by video-conferencing in open court should be accepted only if the
witness is in a country which has an extradition treaty and under whose laws contempt of court and
perjury are punishable."

The court then directed the Mumbai court to set up a commission and take help of VSNL in recording Dr
Greenberg's statement through video conferencing in the presence of the two accused doctors. It also
allowed the two accused to cross-examine the US-based doctor.

The court directed the Maharashtra government to bear the cost of video conferencing.

Rejecting all arguments about inferior video quality, disruption of link and other technical problems, the
bench said by now science and technology has progressed enough to not worry about video image/audio
interruptions or disruptions.

The counsel for the two doctors argued that the rights of the accused under Article 21 could not be
subjected to a procedure involving 'virtual reality'.

Rejecting the argument, the bench said video conferencing has nothing to do with virtual reality and gave
the example of the telecast of the cricket World Cup.

It could not be said that those who watched the World Cup on television were witnessing virtual reality as
they were not in the stadium where the match was taking place, the court pointed out.

"This is not virtual reality, it is actual reality. Video conferencing is an advancement of science and
technology which permits one to see, hear and talk with someone far away with the same facility as if he
is present before you, that is, in your presence," the apex court said.

"Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that
evidence be recorded in the presence of the accused," it said.

Courts turn to video-conference testimony

to cut costs
Open this photo in gallery:
In this Jan. 11, 2011 file photo, the Skype logo is reflected in the eye of a reader using a
handheld smartphone, in Berlin, Germany.

PATRICK SINKEL/AP
KIRK MAKIN
JUSTICE REPORTER
MARCH 26, 2017MAY 14, 2012

Faced with increasing costs and delays associated with hearing cases, a growing number
of judges are trying to drag the court system into the electronic age, including using
video links to allow witnesses to testify from afar.

Legal traditionalists are aghast at the prospect of cross-examining witnesses via video,
but others believe the new moves will enhance justice and keep the courts credible and
accessible.

"The legal system is going to be exposed to ridicule if we don't move forward with
innovative ways of taking evidence," said Brian Gover, a veteran Toronto lawyer at
Stockwoods LLP. "One of the great issues for us in a time of austerity is going to be cost
control and delivering justice in an efficient way. Technology has provided an answer to
the problem."

Two recent rulings broke new ground, opening the door to testimony by Skype and
teleconferencing.
The first case involved a witness in a child custody case, Linda Veronica Paiva, who said
she could not afford to travel to Toronto from her home in Denmark to testify. Family
lawyer Phil Epstein persuaded Madam Justice Ellen Murray of the Ontario Superior
Court to allow her to testify via Skype.

"Skype is now in HD and has an internal automatic checking system," Mr. Epstein said
in an interview. "You can see people in the courtroom and they can see you. This is
clearly the way of the future."

In the second case, the Ontario Court of Appeal overturned aggravated assault
convictions against two alleged Asian gang members. It criticized their trial judge for
not exploring the feasibility of letting a key Crown witness testify and be cross-examined
by teleconference from Singapore.

The two rulings exposed a sharp division of opinion within the legal profession. While
lawyers such as Mr. Gover see technology as a way to relieve pressure on a fraying court
system, critics insist that only in-court testimony can permit judges and juries to
properly observe a witness's demeanour.

Steven Benmor, a lawyer who represents Ms. Paiva's estranged husband, Michael
Corpening, said the Skype arrangement approved by Judge Murray threatens the
integrity of testimony.

"The very nature of the right to trial is to allow a judge to see, hear and experience a
witness's demeanour so as to assess not only the answers but 'how' they are delivered,"
Mr. Benmor said in an interview. "If demeanour were not important, we would have
trials by affidavits and paper records."

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He said that family law cases involve highly nuanced questions about the quality of
parenting, the ability of a parent to meet the child's needs and the reasons one parent
wants to limit the other parent's access to a child.

"Skype and other technological advances in communication are applauded, but do not
replace the need for a judge to look the person in the eye and 'judge' them," he said. Mr.
Benmor also worries that use of such technology will impede settlements, which
frequently benefit from the dynamics of having all parties in the same room.

Mr. Gover said that what critics are missing is a growing realization that analyzing an
individual's demeanour is a poor way to judge honesty. Wrongful convictions have
frequently been rooted in erroneous conclusions a judge or jury drew from a defendant's
voice and body language, he said.

In fact, legislation permitting the use of video technology has been on the books for
several years, but few lawyers and judges were willing to explore it.

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We solely performs paternity testing and human identification services.

"Legal" DNA Testing

Legal paperwork that accompanies DNA tests typically includes verification of the collected parties
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Millions around the world were tuned in to hear the announcementthat Birkhead is the father. For
cases in the Philippines that would need a DNA expert witness a video conference call could be
arrange with our courts.

Fake Addresses
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but instead operate only on the Internet and have resellers in different areas, samples are sent to
another laboratory for testing.
We dont have resellers we treat every case with strict confidentiality

Minimal or No Customer Service

Another cost-cutting measure for labs offering inexpensive DNA tests is a lack of customer service.
To reduce overhead, these companies will minimise or eliminate customer service representatives,
which maximises their profit from inexpensive tests. This means that if clients have questions about
their paternity DNA test, they will have great difficulty contacting the company or talking with a
trained customer service representative.
We offers unbeatable customer service from highly trained and knowledgeable representatives.