G.R. No. 209057 : March 15, 2017

FACTS: A Petition seeking permission to perpetuate his testimony under Rule 24 of the Rules of Civil Procedure was filed by respondent before the RTC of Makati. He alleged that the taking of his deposition was necessary because of some personal circumstances. In his petition, he also named the expected adverse parties in the actions he anticipated would be filed. Petitioner thereafter filed a Comment/Opposition to the Petition on the ground that the filing of a separate action for the perpetuation of testimony was tantamount to forum shopping. The RTC granted the respondent’s Petition and ordered his deposition to be taken. Petitioner, along with other adverse parties, sought a reconsideration of the RTC Resolution, but the RTC denied the motions in open court. A hearing and cross-examination by adverse parties was then set. The hearing proceeded notwithstanding the absence of the petitioner and his counsel, and the direct examination of respondent was concluded. The RTC conducted confidence-building activities for respondent and his brother, Juan Miguel Ongsiako. The parties, however, failed to reach an agreement. The scheduled hearing was impeded by the withdrawal of appearance by the law firm representing Juan Miguel. The trial court reset the hearing and was announced to all parties present in the open court. For those who were absent during the hearing, such as the petitioner and his counsel, the RTC directed that copies of the written order be server upon them. RTC then received a copy of the Petition for Certiorari filed by petitioner with the CA. the Petition questioned its resolution. The cross examination of respondent finally proceeded, but both petitioner and his counsel were again absent at the hearing. The RTC noted, however, that petitioner had filed a Motion to Suspend Proceedings right before the start of the hearing. In his motion, he requested that the proceedings for the perpetuation of testimony be suspended pending the final resolution of the Petition for Certiorari earlier filed with the CA. Towards the end of the proceedings on August 18, 2010, the RTC issued an Order declaring that petitioner, together with Juan Miguel, had waived their right to cross-examine respondent.

ISSUE: Whether or not the CA correctly affirmed the RTC ruling that declared petitioner to have waived his right to cross-examination? No.

HELD: NO. The right to cross-examine opposing witnesses has long been considered a fundamental element of due process in both civil and criminal proceedings. In proceedings for the perpetuation of testimony, the right to cross­ examine a deponent is an even more vital part of the procedure. In fact, the Revised Rules on Evidence provide that depositions previously taken are only admissible in evidence against an adverse party who had the opportunity to cross-examine the witness.Because depositions are an exception to the general rule on the inadmissibility of hearsay testimony, the process of cross-examination is an important safeguard against false statements. IN THIS CASE, the conduct of petitioner cannot be construed as a waiver of his right to cross-examine respondent. the records of the case reveal that neither he nor his counsel was adequately informed of the new schedule for the cross-examination of respondent. While the RTC ordered that Notices of Hearing be sent to both petitioner and his counsel, they did not receive these processes in time for the hearing through no fault of their own. the absence of petitioner and his counsel at the hearing was clearly not due to their own fault. Hence, it would be unfair and unjust to consider the failure of petitioner to attend the hearing as signifying his intention to waive the right to cross-examine respondent.

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