M. SUBPOENA Flashcards
Subpoena
A process directed to a person requiring him or her:
- To attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his or her deposition
- Also to bring any books, documents, or other things under his or her control. [Sec. 1, Rule 21]
Who may issue a subpoena
- Court before whom the witness is required to attend
- Court of the place where the deposition is to be taken
- Officer or body authorized by law to do so in connection with investigations conducted by said officer or body, or
- Any justice of the SC or of the CA, in any case or investigation pending within the Philippines. [Sec. 2, Rule 21]
Subpoena duces tecum
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. (S1R21)
It shall contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (S3R21)
Subpoena ad testificandum
A process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority or for the taking of his deposition. (S1R21)
Service of subpoena
Service of a subpoena shall be made in the same manner as personal or substituted service of summons [Sec. 6, Rule 21]
Formalities
The original is exhibited to the person served;
A copy is delivered to him; and
Costs for court attendance and the production of documents and other materials subject of the subpoena shall be tendered or charged accordingly. [Sec. 6, Rule 21]
When made: must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance [Sec. 6, Rule 21]
Who may issue:
- Court before whom the witness is required to attend
- Court of the place where the deposition is to be taken
- Officer or body authorized by law to do so in connection with investigations conducted by said officer or body, or
ex. investigating prosecutor - Any justice of the SC or of the CA, in any case or investigation pending within the Philippines. (S2R21)
Form and contents
Shall state the name of the court and the title of the action or investigation.
Shall be directed to the person whose attendance is required.
For subpoena duces tecum, shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (S3R21)
When a subpoena is issued against prisoners
When applied for, the judge or officer shall examine and study carefully the application to determine whether it is made for a valid purpose. (S2R21)
When SC authorization required:
- When the subpoena for appearance or attendance in any court is issued against a prisoner:
- Sentenced to death, reclusion perpetua, or life imprisonment, and
- Confined in any penal institution (S2R21)
Personal appearance in court
A person present in court before a judicial officer may be required to testify as if he or she were in attendance upon a subpoena. (S7R21)
Proof of service of notice; deposition
Proof of service of notice to take a deposition shall constitute sufficient authorization for the issuance of subpoenas for the persons named in such notice.
Note: In order to issue a subpoena duces tecum, an order of the court shall be necessary. [Sec 5, Rule 21]
Compelling attendance of witnesses; contempt
Warrant to Compel Attendance (Bench Warrant) The court which issued the subpoena may issue a warrant to the sheriff or his or her deputy to arrest the witness and to bring him or her before the court or officer where his or her attendance is required, upon: 1. Proof of service, and 2. Failure of witness to attend. (S8R21)
EXC:
1. Witness who resides more than 100 km from his or her residence to the place where he or she is to testify by the ordinary course of travel;
-Viatory Right:
The right not to be compelled to attend upon a subpoena by reason of the distance from the residence of the witness to the place where he is to testify is sometimes called the viatory right of a witness.
- Detention prisoner if no permission of the court in which his or her case is pending was obtained.
Note: Such right applies only in civil cases, not criminal cases
The cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his or her failure to answer the subpoena was willful and without just excuse. (S8R21)
Effect failure to obey
- Contempt of court who issued the subpoena, or
- Punishment in accordance with the applicable law or rule if the subpoena was not issued by a court. (S9R21)
Quashing of a subpoena
For duces tecum:
A motion is promptly made and, in any event, at or before the time specified therein
Grounds:
- Subpoena is unreasonable and oppressive, or
- Relevancy of the books, documents or things does not appear, or
- Person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof
- Witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served [Sec. 4, Rule 21]
For ad testificandum
- Witness is not bound thereby, or
- Witness fees and kilometrage allowed by the ROC were not tendered when the subpoena was served. (S4R21)
May hospital records be the subject of a subpoena?
NO. While the motion for issuance of subpoena duces tecum may be treated as a mode of discovery, it cannot apply to privileged records. Hospital records of a patient are considered privileged.
In this case, the hospital records are considered privileged because they contain the summary of tests, diagnosis, and advice on the patient by the doctor
[Chan v. Chan, G.R. No. 179786, July 24, 2013]
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Deposition vs. Judicial Affidavit
Deposition v. judicial affidavit: Affidavit does not require presence of other party, affiant must still appear in court
