DIGEST, SY 2016-2017 Modes of Atty.

Axel Cruz
Discovery

NORTHWEST AIRLINES, INC. vs. CAMILLE T. CRUZ and COURT OF APPEALS

(Villarin, L.)
G.R. No. 137136; November 3, 1999.
(Depositions Pending Action)

FACTS

Camille T. Cruz, purchased from Northwest Airlines a round-trip ticket for a flight from Manila to
Boston via Tokyo and back. The scheduled departure date from Manila to Boston was August 27,
1992 at 8:40 a.m. in economy class while the scheduled return flight from Boston to Manila in
business class was on December 22, 1992 at 10:25 a.m.
On November 25, 1992, Cruz re-scheduled her return flight from Boston to Manila to December 17,
1992 at 10:05 a.m. Accordingly, Petitioner booked her on a Northwest flight with route as follows:
Boston to Chicago; Chicago to Tokyo; and, Tokyo to Manila.
Petitioner reconfirmed the flight from Boston, U.S.A. to Manila scheduled on December 17, 1992 at
least 72 hours prior to the said scheduled flight.
However, barely a day before the scheduled date of departure, Petitioner called Cruz and informed
her that instead of following her original itinerary, Cruz should instead board the TWA flight from
Boston to Kennedy International Airport in New York and she was further instructed by Petitioner to
proceed to the latters counter at the Logan Airport in Boston before boarding the TWA flight on the
scheduled date of departure.
On December 17, 1992, Cruz proceeded early to the Petitioners counter at Logan Airport in Boston
but was referred to the TWA counter where she was informed that she may not be able to take the
TWA flight because it was cancelled.
Due to the unexplained and belated cancellation of the TWA flight, Cruz had to rush back from the
International Gate to Petitioners counter in Logan Airport in Boston where she was again told to
proceed immediately to the Delta Airlines terminal to catch the Delta Airlines flight to La Guardia
Airport in New York where shell take a service car to Kennedy Airport in New York.
In her haste to catch the said flight, Cruz tripped and fell down on her way from petitioners counter
to the Delta Airlines counter in Logan Airport in Boston thereby suffering slight physical injuries and
embarrassment.
When Cruz reached La Guardia Airport in New York, she again had to rush to the service car. In her
haste and anxiety to catch her flight, Cruz again tripped and fell down thereby suffering more
physical injuries, embarrassment and great inconvenience.
Upon arrival, she was informed at Petitioners counter in Kennedy International Airport that she was
issued the wrong ticket to Seoul instead of Tokyo. Although the error was rectified by Petitioner,
Cruz was by then extremely nervous, worried, stressed out, and exhausted.
To make matters worse, Petitioner downgraded Cruz from business class to economy class on two
legs of her flight without notice or apology. Neither did Petitioner offer to refund the excess fare Cruz
paid for a business class seat.
Hence, on August 6, 1993, Cruz filed a complaint against petitioner Northwest Airlines, Inc. for
breach of contract of carriage. Cruz claimed to have suffered actual, moral and exemplary
damages.
Trial progressed until 1995 when it was Petitioners turn to present its witness on three scheduled
dates. Two of the settings were cancelled when Petitioners counsel filed notice for oral deposition of
one Mario Garza, witness for Petitioner, in New York. Cruz filed her opposition and suggested written
interrogatories instead. In an Order dated July 26, 1995, the trial court denied PRs opposition, thus
allowing the deposition to proceed. The oral deposition took place in New York on July 24, 1995 or
notably two days before the issuance of the trial courts order allowing the deposition to proceed.
The records show that although it was the Honorable Consul Milagros R. Perez who swore in the
deponent, she thereafter designated one Attorney Gonzalez as Deposition Officer.
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 DIGEST, SY 2016-2017 Modes of Atty. Axel Cruz
Discovery

On November 9, 1995, at the hearing of the instant case, Petitioner presented the deposition record
of its witness while Cruz reserved her right to cross-examine and present rebuttal evidence.
Cruz, likewise, questioned the conduct of the oral deposition as irregular and moved for suppression
of the same on the following grounds:
o 1. The deposition has been improperly and irregularly taken and returned in that:
o (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.
o (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.
o (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.
o (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.
o (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.
o (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.
2. 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.
However, Cruzs motion was denied by the trial court. In its Order, dated July 23, 1996, the trial court
admitted Petitioners formal offer of evidence with supplement thereto and gave Cruz three days
from receipt within which to signify her intention to present rebuttal evidence.
On August 2, 1996, Cruz filed a manifestation and motion stating that the court failed to rule on its
motion to suppress deposition and to grant her the right to cross-examine Petitioners deponent.
Cruz also manifested her intention to present rebuttal evidence.
In its Order, dated September 5, 1996, the trial court denied Cruzs manifestation and motion. Said
court, likewise, denied her motion for reconsideration of the above order.
Hence, Cruz filed a petition for certiorari with the Court of Appeals on April 7, 1998.
CA set aside RTC judgment and ordered RTC to disallow the deposition
Petitioner Northwest, thereafter, filed this instant petition for review.

ISSUE/S

Whether the oral deposition should be admitted into evidence? YES.

HELD

Section 16 of Rule 24 (now Rule 23 of the Rules of Civil Procedure of 1997) provides that after
notice is served for taking a deposition by oral examination, upon motion seasonably made by any
party or by the person to be examined and for good cause shown, the court in which the action is
pending may, among others, make an order that the deposition shall not be taken. The rest of the
same section allows the taking of the deposition subject to certain conditions specified therein.
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.
We note with approval respondent courts ruling disallowing the depositions and upholding Cruzs
right to cross-examine:
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DIGEST, SY 2016-2017 Modes of Atty. Axel Cruz
Discovery

o xxx [The] deposition was not a mode of discovery but rather a direct testimony by
respondents witness and there appears a strategy by respondent to exclude
Petitioners participation from the proceedings.
o While a months 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 from Manila to New York and back to Manila.
o 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 were requested to balance
this inconvenience which was nonetheless also objected to and denied for simply being
time consuming.
o The objections raised by Petitioner [Cruz], 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.
In Fortune Corporation vs. Court of Appeals, 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:
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.
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.
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.