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RULE 21
SUBPOENA
Subpoena v. SummonsSUBPOENA SUMMONS
An order to appear and testify or to produce books and
documents
An order to answer complaint May be served to a non-party Served on the defendant Needs tender of kilometrage,
attendance fee and reasonable cost of production fee
Does not need tender of kilometrage and other fees
SECTION 1 - Subpoena and subpoena duces tecum.— Subpoena is
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. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. (1a, R23)
Subpoena Ad Testificandum (SAT) – 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
Subpoena Duces Tecum (SDT) – a process directed to a person requiring him to bring with him books, documents, or other things under his control
SECTION 2 - By whom issued.—The subpoena may be issued by—
a) the court before whom the witness is required to attend;
b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or
d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a, R23)
Who May Issue:
1. Court before whom the witness is required to attend 2. Court of the place where the deposition is to be taken 3. Officer or body authorized by law to do so in connection
with investigations conducted by said officer or body; or 4. Any justice of the SC or of the CA, in any case or
investigation pending within the Philippines
Note: Sec. 38(2), BP 129 – All processes issued by the MTC and MCTC in cases falling within their jurisdiction may be served anywhere in the Philippines without the necessity of certification by the judge of the RTC
SECTION 3 - Form and contents.—A subpoena 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, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (3a, R23)
A Subpoena:
1. Shall state the name of the court and the title of the action or investigation
2. Shall be directed to the person whose attendance is required
3. In case of a subpoena duces tecum, shall contain a reasonable description of the books, documents, or things demanded which must appear to the court to be prima facie relevant
The SDT is, in all respects, like the ordinary SAT 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
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)
2. Such books must be reasonably described by the parties to be readily identified (test of definiteness)
In determining whether the production of the documents described in a SDT should be enforced, it is proper to consider the following:
1. Whether the subpoena calls for the production of specific documents, or rather for specific proof; and
2. Whether that proof is prima facie sufficiently relevant to justify enforcing its production
It is the duty of petitioner to prove, to the satisfaction of the court, the relevancy and definiteness of the books and documents he seeks to be brought before it.
SECTION 4 - Quashing a subpoena.—The court may quash a
subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. (4a, R23)
Quashing a Subpoena:
A. SDT may be quashed upon: 1. Motion promptly made; AND 2. Proof that:
a. It is unreasonable and oppressive
b. The articles sought to be produced do not appear prima facie to be relevant to the issues; or
c. The person asking for the subpoena does not advance the cost for the production of the articles desired
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B. SAT may be quashed on the ground:
1. That the witness is not bound thereby, or
2. That the witness fees and kilometrage allowed by the Rules were not tendered when subpoena was served Note: In either case, the subpoena may be quashed for failure to tender the witness fees and kilometrage allowed by the Rules Period to File Motion to Quash – at or before time specified in the subpoena
SECTION 5 - Subpoena for depositions.—Proof of service of a
notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (5a, R23)
Breakdown of Provision
A. Proof of service of a notice to take deposition shall constitute sufficient authorization for the issuance of subpoenas for persons named in said notice
1. By the clerk in which the deposition is to be taken B. The clerk shall not issue a subpoena duces tecum to any such
person without an order of the court
SECTION 6 - Service.—Service of a subpoena shall be made in the
same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel of the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. (6a, R23)
Breakdown of Provision A. Service of subpoena
1. Shall be made in the same manner as personal or substituted service of summons
2. Original shall be exhibited
3. Copy thereof delivered to the person on whom it is served
a. Tender to him the fees for one day’s attendance and the kilometrage allowed by the Rules (1) EXCEPT: when a subpoena is issued by or on
behalf of the Republic or an officer or agency thereof, tender need not be made
b. If SDT, reasonable cost of producing the books, documents, or things demanded shall also be tendered
B. Service must be made so as to allow the witness a reasonable time for the preparation and travel to place of attendance
Note: Administrative Circular No. 4, Sept. 22, 1988 authorized service of subpoena by counsel or their representatives to insure service thereof and return of the same.
SECTION 7 - Personal appearance in court.—A person present in
court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. (10, R23)
Personal appearance – Sec. 7 GENERAL RULE:
1. The court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause (Sec. 8)
2. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Sec. 9) EXCEPTIONS: Provisions regarding the compelling of attendance (Sec. 8) and contempt (Sec. 9) do not apply where:
1. Witness resides more than 100km from his residence to the place where he is to testify by the ordinary course of travel (Viatory Right) and
This refers to civil cases only, not criminal
2. Permission of the court in which the detention prisoner’s case is pending was not obtained
SECTION 8 - Compelling attendance.—In case of failure of a
witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and 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 failure to answer the subpoena was willful and without just excuse. (11, R23)
Breakdown of Provision
A. In case of failure of witness to attend
1. Court or judge issuing the subpoena may issue a warrant
a. Upon proof of service thereof and b. Of the failure of the witness
2. Warrant issued to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required B. If the court issuing subpoena determines that his failure to
answer was willful and without just cause
1. He shall pay the cost of such warrant and his seizure
SECTION 9 - Contempt—Failure by any person without adequate
cause to obey a subpoena served upon him shall deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule (12a, R23)
Breakdown of Provision
A. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of court from which the subpoena is issued
B. If subpoena was not issued by a court
1. Disobedience thereto shall be punished in accordance with the applicable law or rule
Examples of subpoenas not issued by a court
1. Subpoena issued by a fiscal or prosecutor – disobedience of which is punishable as contempt of court
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2. Subpoena issued by a commissioner – disobedience thereto shall be punished as contempt of the court who appointed the commissioner
Relevant Laws:
1. Sec. 12, Rule 71 – Contempt against quasi-judicial entities – Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies, exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The RTC of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefore.
2. Sec. 13, Book VII, 1987 Admin Code – Subpoena – In any contested case, the agency shall have the power to require the attendance of witnesses for the production of books, papers, documents, and other pertinent data, upon request of any party before or during the hearing upon showing of general relevance. Unless otherwise provided by law, the agency may, in case of disobedience, invoke the aid of the RTC within whose jurisdiction the contested case being heard falls. The Court may punish contumacy or refusal as contempt.
SECTION 10 - Exceptions.—The provisions of sections 8 and 9 this
Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. (9a, R23)
Note: This rule applies solely to civil cases.