Long distance testimony - A Law Each Day (Keeps Trouble Away)

Ordinarily, the testimony of a person whether a party or not, should be given in open court (Rule 132 Rules of Court). However, in some cases, it may be taken at the instance of any party by deposition upon oral examination or written interrogatories even outside of the Court. Deposition is a mode of discovery and is intended as an aid to litigation. If it is not used for discovery purposes then it cannot be admitted and should be disallowed. This is explained in this case of Carina.

Carina, then a teenage girl who was traveling for the first time was booked for a round trip flight in an international airlines from Manila to Boston via Tokyo and back. She was supposed to leave Manila on Aug. 27, 1992 economy class and return in business class on Dec. 22 of the same year.

Carina's travails after she asked that her return flight be rescheduled to December 17 instead of December 22. The airline company accommodated her request and booked her on another flight. This flight was reconfirmed by Carina 72 hours before her departure.

Several hitches, however, happened during Carina's return flight either because of change of airport or change of airplanes due to flight cancellations. Carina experienced not only anxiety and apprehension but also physical injuries, embarrassment and inconvenience as she tripped and fell down twice in her haste to catch her flights. And her business class accommodation was even downgraded to economy class in some segments of her flights.

And so Carina sued the airline company for breach of contract of carriage and for actual, moral and exemplary damages.

After Carina has presented her evidence and when it was the airline company's turn to present its witness in three scheduled dates, two scheduled settings were cancelled because the airline company's counsel filed a notice for oral deposition of the customer service supervisor and instructor of the company in Boston. Despite Carina's opposition to the taking of oral deposition, the trial court allowed the deposition to proceed. The funny part was that the deposition took place two days before the trial court allowed it, so Carina or her counsel could not be present thereat. And although it was the Philippine Consul who swore in the deponent, another lawyer acted as deposition officer. The deposition practically consisted of the matters which the airline company raised for its defense against the complaint of Carina. In effect, it was the direct testimony of its witness.

So when the deposition record of said witness was presented to the trial court, Carina objected to it, questioned its conduct as irregular and moved for its suppression. She also reserved her right to cross examine the deponent and present rebuttal evidence.

The airline company for is part contended that it has the right to take the deposition of its witness and offer it in evidence since the deponent resides and works outside of the Philippines. According to the company, this is one of the exceptions to the general rule as to the conduct of the trial requiring the examination of the witness to be done in open court (Rule 132), since the witness is out of the Philippines. The trial court agreed with the airline company and denied Carina's motion to suppress the deposition and to grant her the right to cross examine the deponent. It admitted said deposition although it allowed Carina to present rebuttal evidence. Was the trial court correct?

No. The deposition in this case was not used for discovery purposes as the deponent (or examinee) was an employee of the airline company. It was used rather to accommodate said employee who was in Boston, Massachusetts, USA. Such being the case the general rules in examination of witnesses under Rule 132 of the Rules of Court requiring said examination to be done in open court following the order set therein, should be observed.

The deposition in this case was not a mode of discovery but rather a direct testimony of the airline company's witness and there appears that there is a strategy to exclude Carina's participation from the proceedings. the place of the oral deposition is not easily within the reach of ordinary citizens for it requires time to get a travel visa to the United States, book a flight and more importantly, substantial travel fare is needed to obtain a round trip ticket.

As an international carrier, the airline company could very conveniently send its counsel to New York. However, the ends of justice would have been better served if the witness was instead brought to the Philippines which the airline company could do more easily and conveniently. While time is a factor in deciding cases, the more important principles would have been the thorough presentation and deliberation of a case to ensure that the ends of justice are met since this is the principal mission of a civilized judicial system (Northwest Airlines vs. Cruz, et. al. G.R. No. 137136 Nov. 3, 1999).

Atty. Sison's e-mail address is: [email protected]