Subpoenaed business records

The companies that earlier sold real estate properties to Chief Justice Renato Corona and members of his family are getting some unwanted publicity in his impeachment trial. The prosecution’s line of questioning and its spokespersons’ post-hearing statements tend to convey the impression that these sales were attended by questionable circumstances.

Under pain of contempt, the companies’ representatives have no choice but comply with the impeachment court’s order to testify on these transactions and submit copies of their covering documents. It’s unnerving enough to testify in an ordinary trial where only court personnel, the litigants and their lawyers are present, what more in a hearing that is aired live nationwide on TV and radio.

With thousands of Filipinos listening or watching, errors committed during the hearing are magnified to become fodder for criticism by radio and print commentators. The witnesses are probably as confused as the others who are unfamiliar with court procedures when the contending lawyers raise objections in the course of their testimony. So far, the witnesses have made a good account of themselves. Except for some minor slip-ups, they were able to weather the cross-examination of the defense lawyers and senator-judges.

Responsibility

For companies that have not had the experience of being subpoenaed by a court to send their representatives to testify and produce documents in their possession, the proceedings in the impeachment trial are instructive. Unless a company is the plaintiff or defendant, its (forced) appearance in court usually arises from a subpoena for its representative to be present and to testify (ad testificandum), or to submit documents in its possession (duces tecum), or both. As a matter of practice, to expedite the proceedings, this kind of subpoena is often labeled ad testificandum and duces tecum.

But contrary to the general impression, not all such subpoenas have to be complied with by the parties to which they are directed. Under the Rules of Court, a subpoena may, upon motion of that party, be quashed (or withdrawn) if it is unreasonable or oppressive, as when it asks for documents that are 30 years old already or do not exist at all. Neither can a party be compelled to present books or materials that are irrelevant or immaterial to the case being tried in court, which is akin to a “fishing expedition” where, by chance, something in the documents may help the requesting party’s case.

And if neither of these reasons can be invoked, the subpoena may still be quashed when the party on whose behalf it is issued fails to advance the reasonable cost of the production of the documents.

Expenses

It would be unfair and financially burdensome for a witness to be ordered to spend his own money to, for example, hire a moving van to transport to and from the court the voluminous records asked by the requesting party. The funds that may be needed by a witness to comply with the subpoena should be remitted to him ahead of the hearing date. A promise to reimburse the amount on the day of the hearing or “initial payment then full payment later” is not acceptable. No money, no documents.

What’s more, attendance in court is excused, despite a subpoena, if the witness resides in a place that is more than 100 kilometers away by ordinary means of travel from the court. In the instances earlier mentioned, it is essential that the party who wants the subpoena to be quashed to file the proper motion to that effect before or on the date of the hearing. If he can produce the documents requested but the period between the day he received the subpoena and the hearing date is too short to enable him to collate them, he can ask for a resetting of the date of his attendance.

Failure to take any of these actions or ignoring the subpoena could put the subpoenaed witness at risk for a citation for contempt of court, which may result in a fine or imprisonment.

Compliance

Assuming that a subpoena ad testificandum and duces tecum cannot be dodged, the first thing that a person covered by that order should do is to study the list of the requested documents. If these are clearly specified, fine. There will be no problem complying with the order. A problem may arise if the subpoena uses generic terms, such as financial records or corporate documents.

Do “financial records” include sales invoices, order slips, official receipts, accounting ledgers and financial statements? And for corporate documents, do they cover minutes of directors’ meetings, interoffice memos, or regulatory filings? Although the rules require that the documents sought to be subpoenaed should be identifiable, some lawyers use imprecise language in describing the records they want to subpoena; or, worse, if they are unsure of what documents they want, use words that are susceptible to varying interpretations.

When caught in this situation, the better part of discretion is (if there is still time) to get a copy of the complaint upon which the subpoena was issued so the purpose for which the subpoena was issued is clarified, or ask the requesting party to give a clearer description of the documents it wants produced in court.

For the layman, answering a court subpoena may be likened to keeping an appointment with the dentist for a tooth extraction—you don’t look forward to it but you have to because not going could give rise to adverse consequences. If a witness has nothing to hide and the documents he has been ordered to submit to the court are genuine, he has no reason to be worried. It’s the party who requested his appearance who should worry because he does not know whether or not those documents would help his case.

(For feedback, write to <rpalabrica@inquirer. com. ph>.)