376 Phil. 96; 97 OG No. 27, 4030 (July 2, 2001)
KAPUNAN, J.:
On November 9, 1995, at the hearing of the instant case, petitioner presented the deposition record of its witness while private respondent reserved her right to cross-examine and present rebuttal evidence.
xxx. ATTY. AUTEA What is your present position? MR. GARZA I am currently a customer service supervisor and instructor for Northwest in Boston. ATTY. AUTEA In or about December 1992, what was your position? MR. GARZA I was a customer service supervisor and instructor. ATTY. AUTEA As a customer service supervisor and instructor what are the duties which you discharged? MR. GARZA My responsibilities are in Boston field work to oversee the ground staff and for the employees of Northwest who work at the counter, gates, luggage service operations. ATTY. AUTEA Do you discharge any responsibilities in connection with canceled flights? MR. GARZA Yes, I do. If a flight is canceled it is my responsibility amongst many supervisor, to determine how we are gonna best serve our customers with rebooking for protection some other main customer services. ATTY. AUTEA Have you ever been come across the name of Camille T. Cruz in connection with a canceled Northwest flight? MR. GARZA Yes, I have. xxx. ATTY. AUTEA Based on this passenger name record marked as Exhibit 2 and the transcript marked as Exhibit 3, very briefly can you tell us what was the original flight schedule of Camille T. Cruz on her return flight from Boston to Manila on December 17, 1992? MR. GARZA It actually she goes back a little before that, she was booked originally to return to Manila on the 22nd of December and she was advised of the schedule change wherein Northwest changed the flight number from Northwest Flight 3 to Northwest Flight 5 and then on the 14th of October the reservation from, I can tell here for the customer was changed from the 22nd of December to 17th of December, Boston to Manila. ATTY. AUTEA Okay. You said that there was a change of flight from Northwest Flight 3 to Northwest Flight 5, what brought about the change? MR. GARZA There was a schedule change and during schedule changes sometime, anytime there's a change in departure time or change in flight number and that's referred as a schedule change if there is a phone contact we are advised to contact the customers so they will know what flight they are supposed to be on. ATTY. AUTEA And and (sic) that does it show there as it is stated in the complaint filed by the plaintiff that she requested for the change from December 22 to December 17? MR. GARZA Yes. ATTY. AUTEA Now under this uh--new flight schedule Northwest Flight 5, what was the itinerary of Camille T. Cruz? MR. GARZA Flight 5 is referred to as Direct Flight from Boston to Manila, uhh--the routing for that flight goes Boston - Chicago, Tokyo-Manila with a change of equipment and it is a change of aircraft type in Chicago. ATTY. AUTEAOkay. What happened to that flight? Northwest Flight 5? The originally first leg of which was Boston to Chicago? MR. GARZA On the 17th, Flight 5 from Boston to Chicago canceled due to maintenance problem. xxx. ATTY. AUTEA Ahh. In other words Mr. Garza, the aircraft which the plaintiff in this case was scheduled to take came from Washington D.C., is that right? MR. GARZA That is correct. ATTY. AUTEA And from Washington DC that aircraft flew to Boston is that right? MR. GARZA Well it supposed to fly it is it didn't fly. ATTY. AUTEA It was supposed to fly but it didn't fly? MR. GARZA That is correct. ATTY. AUTEA What is the reason for the inability of the aircraft to fly from Washington DC to Boston? MR. GARZA Based on this messages says "Emergency Lights INOP and unable to repair." xxx. ATTY. AUTEA In other words Mr. Garza, when the original Northwest Flight Number 5 of the passenger Camille T. Cruz was canceled due to maintenance work she was given two options, is that right? MR. GARZA Yes. ATTY. AUTEA And the first option is that written in Item Number 8, is that right? MR. GARZA That is correct. ATTY. AUTEA The second option is that written in Item Number 9 of Exhibit 3, is that right? MR. GARZA That is correct. ATTY. AUTEA And who made the decision for Camille T. Cruz as to which option to take? MR. GARZA In this case to me it would be the customer, because we would always have to go with what the customer wants. ATTY. AUTEA When you say that it was the customer who made the decision you are referring to Camille T. Cruz the plaintiff in this case? MR. GARZA That's correct. ATTY. AUTEA In other words Camille T. Cruz, the plaintiff was the one who chose the alternate flight shown in Item Number 9 of Exhibit 3? MR. GARZA That's correct. xxx. ATTY. AUTEA Why in coach? MR. GARZA I would say because that was what all that was available, she is a business class passenger and there is no business class on domestic flights, we do upgrade our business class passenger to first class domestically on a space available basis so they would indicate to me that possibly from Detroit was probably already sold out in first class but we would be able to confirm her in coach but a smaller flight. ATTY. AUTEA Are you saying that because of the cancellation of the original flight of Camille T. Cruz, Northwest tried to book the passenger on the available flight but that the available flight which was then available was this coach class Northwest 440? MR. GARZA That's correct, from Boston to Detroit. xxx. ATTY. AUTEA Okay. The second leg of this trip in Item Number 9 says "NW 017 F JFKNRT 17th December 1240 to 1700, what does that mean? MR. GARZA That means that we re-booked it from New York Kennedy to Tokyo non-stop Narita Airport on Northwest Flight 17 in first class as opposed to business class and that left Kennedy at 1240 arriving into Tokyo at 1700. ATTY. AUTEA Why was she booked in first class? MR. GARZA Again I would say that business class was already sold out on that flight so since she already been inconvenience before we are allowed at the airport under types of circumstances then to move the business class passenger into first class. xxx. ATTY. AUTEA Now, the third leg of the trip under Item Number 9 of Exhibit 3 says "NW 005 Y NRT MNI, 18th December 1815 to 2155," what does that mean? MR. GARZA That means that upon arriving in Tokyo she would connect to Flight 5 from Tokyo to Manila on the 18th departing at 1815 and arriving at 2155 and that was booked in coach. ATTY. AUTEA Why was she booked in coach? MR. GARZA I was again in uhh. Because first and business class would have been sold out.[17]
However, private respondent's motion was denied anew by the trial court.[19] In its Order, dated July 23, 1996, the trial court admitted petitioner's formal offer of evidence with supplement thereto and gave private respondent three days from receipt within which to signify her intention to present rebuttal evidence.
- The deposition has been improperly and irregularly taken and returned in that:
(a) The deposition was taken on July 24, 1995 despite the fact that this Honorable Court only ruled on the matter on July 26, 1995.
(b) There is no certification given by the officer taking the deposition that the same is a true record of the testimony given by the deponent in violation of Rule 24, Section 20 of the Rules of Court.
(c) The deposition was not securely sealed in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" in violation of Rule 24, Section 20 of the Rules of Court.
(d) The officer taking the deposition did not give any notice to the plaintiff of the filing of the deposition in violation of Rule 24, Section 21 of the Rules of Court.
(e) The person designated as deposition officer is not among those persons authorized to take deposition in foreign countries in violation of Rule 24, Section 11 of the Rules of Court.
(f) There is no showing on record that the deponent read and signed the deposition in violation of Rule 24, Section 19 of the Rules of Court.- These irregularities or defects were discovered by the plaintiff during the hearing on November 9, 1995 and plaintiff has acted with reasonable promptness after having ascertained the existence of the aforesaid irregularities and defects.[18]
WHEREFORE, the petition is GRANTED. The questioned rulings of the Regional Trial Court are hereby SET ASIDE, and judgment is hereby rendered ORDERING the court a quo to disallow the deposition and continue with the trial of the case without prejudice to petitioner's right to cross examine defendant's witness and to present rebuttal evidence.Petitioner Northwest, thereafter, filed this instant petition for review alleging that:
SO ORDERED.[21]
Petitioner argues that the remedy of certiorari before respondent Court of Appeals was improper, as private respondent has every opportunity to question on appeal the trial court's ruling admitting the deposition.
- THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT DISMISSING THE PETITION OUTRIGHT SINCE THE REMEDY OF APPEAL IS AVAILABLE TO PRIVATE RESPONDENT. BESIDES, THE PETITION WAS FILED OUT OF TIME.
- THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN FINDING THAT THE TRIAL COURT GRAVELY ABUSED ITS DISCRETION BY ADMITTING INTO EVIDENCE THE ORAL DEPOSITION.
- THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN FINDING THAT PRIVATE RESPONDENT HAS NOT WAIVED HER RIGHT TO CROSS-EXAMINE PETITIONER'S WITNESS AND TO PRESENT REBUTTAL EVIDENCE.[22]
xxx. (T)his provision affords the adverse party, as well as the deponent, sufficient protection against abuses that may be committed by a party in the exercise of his unlimited right to discovery. As a writer said: "Any discovery involves a prying into another person's affairs - prying that is quite justified if it is to be a legitimate aid to litigation, but not justified if it is not to be such an aid." For this reason, courts are given ample powers to forbid discovery which is intended not as an aid to litigation, but merely to annoy, embarrass or oppress either the deponent or the adverse party, or both.[25]Respondent court correctly observed that the deposition in this case was not used for discovery purposes, as the examinee was the employee of petitioner, but rather to accommodate the former who was in Massachusetts, U.S.A. Such being the case, the general rules on examination of witnesses under Rule 132 of the Rules of Court requiring said examination to be done in court following the order set therein, should be observed.
xxx [The] deposition was not a mode of discovery but rather a direct testimony by respondent's witness and there appears a strategy by respondent to exclude petitioner's participation from the proceedings.In Fortune Corporation vs. Court of Appeals,[27] this Court set aside upon review by certiorari the order of the trial court allowing deposition because the order did not conform to the essential requirements of law and may reasonably cause material injury to the adverse party:
While a month's notice would ordinarily be sufficient, the circumstances in this case are different. Two days of trial were cancelled and notice for oral deposition was given in lieu of the third date. The locus of oral deposition is not easily within reach of ordinary citizens for it requires time to get a travel visa to the United States, book a flight in July to the United States, and more importantly substantial travel fare is needed to obtain a round trip ticket by place (sic) from Manila to New York and back to Manila.
As an international carrier, Northwest could very conveniently send its counsel to New York. However, the ends of justice would have been better served if the witness were instead brought to the Philippines. Written interrogatories was (sic) requested to balance this inconvenience which was nonetheless also objected to and denied for simply being time consuming. 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.
The objections raised by petitioner [private respondent], in the light of the above considerations, take on a greater weight. Section 11 of Rule 24 provides: "In a foreign state or country, depositions shall be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul or consular agent of the Republic of the Philippines, or (b) before such person or officer as may be appointed by commission or under letters rogatory." The deposition document clearly indicates that while the consul swore in the witness and the stenographer, it was another officer in the Philippine Consulate who undertook the entire proceedings thereafter. Respondent Northwest argues on the presumption of regularity of official functions and even obtained a certification to this effect plus an assertion that none of the participants in the Consulate were in any way related to the respondent or their counsel. But presumptions should fail when the record itself bears out the irregularity.
The Rules (Rule 24, Sec. 29) indicate that objections to the oral deposition will be waived unless the objections are made with reasonable promptness. In this case, the objections have been prompt and vehement, yet they were disregarded as not material such that the deposition and the exhibits related thereto were admitted. Moreover, a Supplemental Offer of Evidence pertaining to a certification by the consul in New York which tends to correct the objections raised was also admitted by the Court. Respondents argue that the rules were not exactly mandatory but merely guides to ensure that the ends of justice are met. The Court interpreted with leniency the objections despite the acknowledged mandatory language of the rules.
There is clear language of the law and the same should not be modified in practice. The separate certification of the FSO from the transcript proper was also questioned as irregular by petitioner [private respondent]. In so doing, she was merely being vigilant of her rights considering that she was not present then. No other proof thereon is needed when the same is clear on the face of the deposition material given.
Petitioner's [private respondent] right to cross examine and to present rebuttal evidence, having been reserved earlier, needed no reiteration. Even then, this was nevertheless manifested and even vehemently argued. As defendant's oral deposition was admitted, despite substantial issues raised against it in the interest of justice, similar consideration, aside from substantial and technical basis, also dictates that petitioner's [private respondent] right to cross-examine and present rebuttal evidence should be granted. An even handed treatment of the parties would require the same attitude towards the acceptance of petitioner's [private respondent's] right to cross-examine and present its rebuttal evidence on the same.[26]
The rule is that certiorari will generally not lie to review a discretionary action of any tribunal. Also, as a general proposition, a writ of certiorari is available only to review final judgment or decrees, and will be refused where there has been no final judgment or order and the proceeding for which the writ is sought is still pending and undetermined in the lower tribunal. Pursuant to this rule, it has been held that certiorari will not lie to review or correct discovery orders made prior to trial. This is because, like other discovery orders, orders made under Section 16, Rule 24 are interlocutory and not appealable considering that they do not finally dispose of the proceeding or of any independent offshoot of it.IN VIEW OF THE FOREGOING, the Court hereby DENIES the petition for failure of the petitioner to sufficiently show that respondent Court of Appeals committed any reversible error.
However, such rules are subject to the exception that discretionary acts will be reviewed where the lower court or tribunal has acted without or in excess of its jurisdiction, where an interlocutory order does not conform to essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy of appeal will be inadequate, or where there is a clear or serious abuse of discretion.