3.13.

SUBPOENA

Two kinds of subpoena – “In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena
ad testificandum and subpoena duces tecum. The first is used to compel a person to testify, while the
second is used to compel the production of books, records, things or documents therein specified”
(Roco v Contreras).

3.13.1. Subpoena duces tecum

a. Definition
“The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum
with the exception that it concludes with an injunction that the witness shall bring with him
and produce at the examination the books, documents, or things described in the subpoena”
(H.C. Liebenow v. The Philippine Vegetable Oil Company).

b. Requisites for the issuance of a subpoena duces tecum – “Well-settled is the rule that
before a subpoena duces tecum may issue, the court must first be satisfied that the following
requisites are present: (1) the books, documents or other things requested must appear
prima facie relevant to the issue subject of the controversy (test of relevancy); and (2) such
books must be reasonably described by the parties to be readily identified (test of
definiteness)” (Roco v. Contreras).

c. Test of relevancy – “Under Philippine law, evidence is relevant when it relates directly to
a fact in issue as to induce belief in its existence or non-existence. The books, documents or
other things indicated in the subpoena duces tecum are said to be relevant if these have
reasonable connection to the facts in issue. To pass the test of relevancy, there must be a
connection between the documents sought to be produced and to the crime of plunder for
which accused Senator Estrada is being charged. Relevancy is, therefore, determinable by the
rules of logic and human experience. It deals with the rational relationship between the
evidence and the fact to be proved” (People of the Philippines v. Estrada, et al.).

“There is no precise and universal test of relevancy provided by law. However, the
determination of whether particular evidence is relevant rests largely at the discretion of the
court, which must be exercised according to the teachings of logic and everyday experience”
(People v. Galleno, 291 SCRA 761).

3.13.2. Subpoena ad testificandum

Requisite – “For a subpoena ad testificandum to issue, it must first appear that the person or
documents sought to be presented are prima facie relevant to the issue subject of the
controversy” (Lozada v. Macapagal-Arroyo).

3.13.3. Service of subpoena

Modes of service; effort required – Personal service and substituted service are the two
modes of serving a subpoena, and service shall be made in the same manner as personal or
substituted service of summons. The process server must diligently exert his best effort to
ascertain the true whereabouts of the recipient (Macaspac v. Flores).
3.13.4. Compelling attendance of witnesses; contempt

When would contempt lie? – “Should the court find the subpoena to have been properly
issued, it shall order compliance therewith, and it is only upon failure to comply that a
contempt proceeding would lie” (In re: Dolores Sison).

3.13.5. Quashing of subpoena

Issuing a subpoena on the adverse party – “As a rule, in civil cases, the procedure of calling
the adverse party to the witness stand (via a subpoena) is not allowed, unless written
interrogatories are first served upon the latter.” (Spouses Afulugencia v. Metropolitan Bank &
Trust Co.).
3.14. MODES OF DISCOVERY

3.14.1. Deposition pending action; Deposition before action or pending appeal

Leave of court is not required for a deposition pending action after an answer has
been served, even if such answer was filed ex abudanti cautela (Rosete v. Lim, (490 SCRA 125).

Compliance with the rules of evidence for the admissibility of a deposition pending
action – Before a party can make use of the deposition taken at the trial of a pending action,
Section 4, Rule 23 of the Rules of Court does not only require due observance of its sub-
paragraphs (a) to (d); it also requires, as a condition for admissibility, compliance with the
rules on evidence. Thus, even Section 4, Rule 23 of the Rules of Court makes an implied
reference to Section 47, Rule 130 of the Rules of Court before the deposition may be used in
evidence” (Republic v. Sandiganbayan, Africa, G.R. No. 152375).

3.14.1.1. Meaning of deposition

3.14.1.2. Uses, Scope of examination

For purposes of taking the deposition in criminal cases, more particularly of a

prosecution witness who would forseeably be unavailable for trial, the testimonial
examination should be made before the court, or at least before the judge, where the case
is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of
Criminal Procedure. Rule 23, particularly Section 10, of the Revised Rules of Civil
Procedure cannot be applied. The deposition, in this case, can only be taken before the
judge of the court where the case is pending, and not just any judge, notary public, nor any
person authorized to administer oaths (Vda. de Manguerra v Risos, 563 SCRA 499).

3.14.1.3. When may objections to admissibility be made

3.14.1.4. When may taking of deposition be terminated or its scope limited

3.14.2. Written interrogatories to adverse parties

3.14.2.1. Consequences of refusal to answer

3.14.2.2. Effect of failure to serve written interrogatories

“As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is
not allowed, unless written interrogatories are first served upon the latter.” (Spouses
Afulugencia v. Metropolitan Bank & Trust Co.).

3.14.3 Request for Admission

A request for admission is not intended to merely reproduce or reiterate the

allegations of the requesting party’s pleading but should set forth relevant evidentiary
matters of fact described in the request, whose purpose is to establish said party’s cause of
action or defense. Unless it serves that purpose, it is pointless, useless and a mere redundancy
(Limos v. Odones, G.R. No. 186979).
 3.14.3.1. Implied admission by adverse party

3.14.3.2. Consequences of failure to answer request for admission

a. Burden of proof; silence – The burden of affirmative action is on the party upon whom
notice is served to avoid the admission rather than upon the party seeking the admission.
The silence of the receiving party is an admission of the facts stated in the request (Allied
Agri-business Development Co., Inc. v. Court of Appeals, G.R. No. 118438).

b. Counsel may make the response in the party’s behalf – When Rule 26 states that a
party shall respond to the request for admission, it should not be restrictively construed
to mean that a party may not engage the services of counsel to make the response in his
behalf (Lañada v. Court of Appeals, G.R. No. 102390).

c. Exceptions; instances when a party may not answer a re quest for

admission – A party should not be compelled to admit matters of fact
already admitted by his pleading and to make a second denial of those
already denied i n his answer to the complaint ( Po v. Court of Appeal s ).

If the factual allegati ons in the complai nt are the very same allegations
set forth in the request for admission and have already been specifically
denied or otherwise dealt with in the ans wer, a response to the request is
no longer required ( C oncrete Aggregates Co. v. Court of Appeal s ).

3.14.3.3. Effect of admission

3.14.3.4. Effect of failure to file and serve request for admission

3.14.4. Production or inspection of documents or things

Leave of court required – “[L]eave of court is required as regards discovery by (a)

production or inspection of documents or things in accordance with Rule 27, or (b)
physical and mental examination of persons under Rule 28, which may be granted upon
due application and a showing of due cause” (Republic v. Sandiganbayan, G.R. No. 90478).

3.14.5. Physical and mental examination of persons

3.14.6. Consequences of refusal to comply with modes of discovery

3.15 TRIAL

3.15.1 Adjournments and postponements

a. Limitations on the authority to adjourn – A motion for postponement should not be

filed on the last hour especially when there is no reason why it could not have been
presented earlier (Republic v. Sandiganbayan, 301 SCRA 237, 245). A party asking for
postponement has no absolute right to expect that his motion would be granted (Republic
v . Sandiganbayan, supra at 246).

b. Postponement or continuance; not a matter of right – As a rule, the grant or denial

for postponement is addressed to the sound discretion of the court which should always
be predicated on the consideration that more than the mere convenience of the courts or
of the parties, the ends of justice and fairness should be served thereby. Furthermore, this
discretion must be exercised intelligently” (Milwaukee Industries v. Court of Tax Appeals,
636 SCRA 70, 77).

3.15.2 Requisites of motion to postpone trial

3.15.2.1 For absence of evidence

3.15.2.2 For illness of party or counsel

3.15.3. Agreed statement of facts

3.15.4. Order of trial; reversal of order

Declaration of the completion of presentation of evidence; when evidence may still

be adduced – A party’s declaration of the completion of the presentation of his evidence
prevents him from introducing further evidence; but where the evidence is rebuttal in
character, whose necessity, for instance, arose from the shifting of the burden of evidence
from one party to the other; or where the evidence sought to be presented is in the nature
of newly discovered evidence, the party’s right to introduce further evidence must be
recognized (Republic v. Sandiganbayan, 662 SCRA 152).

3.15.5. Consolidation or severance of hearing or trial

a. Definition of consolidation – Consolidation is a procedural device, granted to the court

as an aid in deciding how cases in its docket are to be tried, so that the business of the court
may be dispatched expiditiously while providing justice to the parties (Neri v.
Sandiganbayan, G.R. No. 202243).

b. Is consolidation mandatory? The use of the word “may” indicates that consolidation
is not mandatory and is within the sound discretion of the court (Republic v. Heirs of
Oribello, Jr., 692 SCRA 645).

c. Consolidation; when proper – Consolidation is proper whenever the subject matter

involved and the relief demanded in the different suits make it expedient for the court to
 determine all of the issues involved and adjudicate the rights of the parties by hearing the
suits together.

d. Kinds of consolidations:

1. Quasi-consolidation – not an actual consolidation, it is where all, except one of several

actions are stayed until one is tried, in which case the judgment in the one trial is
conclusive as to the others.

2. Actual consolidation – several actions are combined in to one, lose their separate
identity, and become a single action in which a single judgment is rendered.

3. Consolidation for trial – several actions are ordered to be tried together, but each
retains its separate character, and requires the entry of a separate judgment (Republic v.
Oribello, Jr., 692 SCRA 645).

3.15.6. Delegation of reception of evidence

3.15.7. Trial by Commissioners

3.15.7.1. Reference by consent or ordered on motion

3.15.7.2. Powers of the commissioner

3.15.7.3. Commissioner’s report, notice to parties and hearing on the report