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Civil Procedure: Rule 21 - Subpoena

RULE 21
Subpoena

Section 1. Subpoena and subpoena duces tecum. — Subpoena is a process directed to a person requiring him to attend and to 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)

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)

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)

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)

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)

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 to 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)

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 is sued by such court or officer. (10, R23)

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)

Section 9. Contempt. — Failure by any person without adequate cause to obey a subpoena served upon him shall be 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)

Section 10. Exceptions. — The provisions of sections 8 and 9 of 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. (Rules of Court)


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What are the two types of subpoena under the law?

1. Subpoena Ad Testificandum
2. Subpoena Duces Tecum


What is a subpoena ad testificandum?

Subpoena ad testificandum 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. (Rule 21, Sec. 1)


What is a subpoena duces tecum?

Subpoena duces tecum is a process directed to a person requiring him to bring with him books, documents or other things under his control. (Rule 21, Sec. 1)


Who are authorized to issue subpoenas?

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; – [e.g. Labor Arbiter or Senate Blue Ribbon Committee]

4. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. (Rule 21, Sec. 2)


Can the a prisoner be subpoenaed to appear in court?

1. Yes. But the judge or officer must examine and study carefully the application for a subpoena to determine whether the same is made for a valid purpose.

2. No prisoner sentenced to death, reclusion perpetua or life imprisonment shall be brought outside the penal institution UNLESS authorized by the Supreme Court. (Rule 21, Sec. 2)


What are the grounds for quashing a subpoena ad testificandum?

1. The witness is not bound thereby (see Sec. 10)

2. The witness fees and kilometrage were not tendered when the subpoena was served (Rule 21, Sec 4)


What are the grounds for quashing a subpoena duces tecum?

1. The subpoena duces tecum is unreasonable and oppressive. [e.g. “Mr. Manager you are required to bring to court all your ledgers, all your receipts, and all your documents from 1990 to the present.”]

2. The books, documents or things sought to be produced do not appear to be relevant to the issues. [e.g. In a collection case, you were required to bring your birth certificate, marriage contract.]

3. The person asking for the subpoena fails to advance the reasonable cost of production of the articles desired.

4. The witness fees and kilometrage were not tendered when the subpoena was served (Rule 21, Sec. 4)


How shall a subpoena be served?

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 to 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. (Rule 21, Sec. 6)


May a person be required to testify if he has not been served with a subpoena?

Generally Rule: No.

Exception: 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. (Rule 21, Sec. 7)


What are the consequences if a witness refuses to obey the subpoena?

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; (Rule 21, Sec. 8)

2. The witness may be held in indirect contempt of the court issuing it. (Rule 21, Sec. 9)


When is a witness not bound by a subpoena?

1. When his place of residence is more than 100 kilometers to the place of trial by the ordinary course of travel.

● This is known as the VIATORY RIGHT of a witness
● This right is available only in CIVIL cases. The viatory right does not apply in a criminal case where the accused would like to seek the compulsory process issued to secure the attendance of his witnesses in his behalf because that is a superior right.

2. When the witness is a detention prisoner and no permission of the court where his case is pending was obtained. (Rule 21, Sec. 10)


Can the clerk of court issue a subpoena in the absence of a judicial action?

No.


Is the receipt of a subpoena by a respondent in a case filed before the office of the prosecutor necessary for the office to acquire jurisdiction over the respondent?

No.

1. Preliminary investigation before the Office of the Prosecutor is a statutory right, not constitutional right.  You can altogether dispense with it, or waive it.  It is not essential for due process.

2.  Rule 112, Sec. 3(d) states that if the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

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