ON THE OVERSIGHT IN THE APPLICATION OF THE PHILIPPINE RULES OF ELECTRONIC EVIDENCE IN CRIMINAL CASES BY THE PHILIPPINE SUPREME COURT (COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL)

Dr. Atty. Noel G. Ramiscal was fortunate enough to be invited to give two Mandatory Continuing Legal Education (MCLE) lectures for the Integrated Bar of the Philippine (IBP) Cavite Chapter, organized by the IBP National Office last July 31, 2015. As was his practice, he travelled from the province of Laguna to the conference site quite early to avoid being late, but the conditions are quite unpredictable and there was a road incident that caused a lot of bottleneck. Fortunately, the driver of the van that ferried Dr. Ramiscal was knowledgeable of all the side streets and interconnecting pathways of the variegated terrain of this prosperous province.

The IBP Cavite Chapter owned its building which was located in the Cavite Civic Center Compound that also houses some of the courts and a penitentiary.

Dr. Atty. Noel G. Ramiscal at IBP Cavite Center Bldg, July 31 2015

It was a quaint building overflowing with lawyers. The members in this chapter exceed 1,000 and they were expecting about 39 new lawyers to join. On the day slated for the lectures an electrical wire exploded taking down the airconditioning system.

Some of the IBP Cavite lawyers who attended Dr. Ramiscal’s lecture last July 31, 2015

It was fixed for a while and then it broke down again. It is a testament to the commitment of the lawyers to their professional development that they stayed on for the entire day up to the early hours of the evening enduring the hot and humid conditions inside and outside the building.

In his lecture on handling e-data,

Dr. Atty. Noel G. Ramiscal during his MCLE lectures for IBP Cavite July 31 2015

Dr. Ramiscal canvassed and discussed the relevant Philippine laws, rules, and jurisprudence on the discovery of e-data, and concluded that there is no current legal or formal mechanism for the formal discovery of e-data in the Philippines, that could be followed in Philippine courts. He gave the audience a brief outline of the discovery processes and the legal issues connected with the discovery of e-data in the U.S.A. He also acquainted the audience of the possible penalties that may arise for any producing party of e-data that failed to put a “litigation hold” or completely observed a “preservation order” of e-data and their repositories. In his lecture on social media e-discovery, Dr. Ramiscal tackled among other things, the nature of social media data, and the fact that privacy concerns should not be mistaken, or be made an excuse for the exclusion of “private” social media data from discovery.

One significant matter Dr. Ramiscal brought to the attention of the attendees was the application of the Philippine Supreme Court of the Rules on Electronic Evidence to criminal cases.

The Rules which the Supreme Court promulgated in 2001 did not cover criminal cases. To correct this oversight, the Supreme Court issued Administrative Matter No. 01-7-01-SC, Re: Expansion of the Coverage of the Rules on Electronic Evidence, last September 24, 2002.

In the April 10, 2010 case of Rustan Ang y Pascua v. the Court of Appeals, the accused claimed that the damning electronic picture which was attributed to him should have been authenticated via the means of e-signature under the expanded coverage of the aforementioned rules. Unfortunately, and inexplicably, the Second Division of the Supreme Court held that “the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings”.
Then in March 10, 2014, the Third Division of the Supreme Court, ruled in People of the Philippines v. Enojas y Hingpit et al, that the Rules of Electronic Evidence do apply to criminal cases as a result of the 2002 Supreme Court issuance of the amendment.

It is curious to note that the “ponente” or the one who wrote the decisions in the 2010 Rustan Ang case and the 2014 Enojas case was the same Associate Justice.

During the time the erroneous Rustan Ang case served as the authority on the non-applicability of the rules to criminal cases, it caused a great ripple concerning the substantial limitations to evidentiary rights and objections the accused can raise in criminal cases involving electronic data.

The Philippine Civil Code provided that the decisions of the Supreme Court form part of the law of the land. So it would appear that the Rustan Ang decision would trump a mere 2002 administrative amendment done by the Supreme Court which this decision did not recognize.

Prior to the 2014 Enojas case, everytime Dr. Ramiscal would discuss the Rustan Ang case and its implications in MCLE lectures, he would answer lawyers who asked him if they can still use the rules of electronic evidence in criminal cases, in the affirmative. He had stated that they can do this in two ways. One, they can argue that said rules can provide some guidelines. Or second, they can place it as an issue in the criminal case itself, because there was no en banc decision, and no rule revoking the 2002 amendment. But the situation for criminal defense lawyers and their clients during this time due to the Rustan Ang case was far from ideal.

Dr. Atty. Noel G. Ramiscal with two IBP Cavite lawyers and officers, July 31 2015

At the end, Dr. Ramiscal expressed his heartfelt appreciation for the IBP Cavite lawyers who stayed for the duration of his lectures, despite the humidity challenge, and for their sincere generosity and hospitality [Attys. Luna, Espiritu, Clorina, Yu and Anarna], and in particular to Atty. Lara (the tahong chips are superb!) and her assistant, Hazel. Kudos to the officers and members of this Chapter!

A PHILIPPINE LAWYER’S REACTION TO A 2015 E-DISCOVERY STUDY IN ASIA AND WHY THE PHILIPPINES HAS TO PLAY CATCH UP (Copyright by Dr. Atty. Noel G. Ramiscal)

Asian Business Legal Magazine and FTI Consulting early this year published a study on the subject of electronic discovery of evidence which they conducted as a result of their 2013 and 2014 surveys of a handful of lawyers and law firms in Asia.

The study purportedly covered not merely the legal, but the technical and cultural facets of e-discovery. It revealed that only “(s)ixty-five individuals from corporations and law firms completed an extensive online survey, while five e-discovery experts participated in phone interviews.” There was no data revealed as to which particular Asian countries these respondents came from. It was also stated that the “(r) espondents have collected data from 15 different Asian countries (plus the United States, Europe, Latin America and Africa). It may be worth noting that this list is not topped by one of the two Common Law countries (Hong Kong and Singapore), but China, with 60% of respondents having collected there.” As far as the Philippines goes, only 7% of the 70 respondents stated that they collected data from Philippine sources.

On its face, the number of respondents to the study might be deemed too small as to be truly representative of the realities, perspectives and experiences that lawyers and law firms in Asia undergo as the e-discovery processes are set in motion. Be that as it may, Dr. Atty. Noel G. Ramiscal’s reaction would focus on several important issues arising from the study, with respect to their particular import to the Philippines.

THE COSTS OF E-DISCOVERY

The study delved on the huge amount of electronic data that are involved per e-discovery project which pertains to a given case. For example, “(g)iven the huge increase in email correspondence, it is not unusual for each of the parties to be required to apply data storage and key word searches to more than 200,000 separate pieces of correspondence……Indeed, a recent Bingham Tokyo case had over 500,000 separate pieces of correspondence.” The study asked the respondents their estimates of the monetary value of e-discovery for multinational companies. 29% of the respondents declared they “do not know”, while some 2 to 3 % estimated the costs to be $2.5 Million – $5 Million, and the rest laid their estimates between less than $50,000 to $1 Million.

Dr. Ramiscal gave his first lecture on the costs of electronic discovery within the Philippine context way back in May 16, 2007 for the Financial Executives Institute of the Philippines (FINEX).

Dr. Atty. Noel G. Ramiscal receiving a plaque of appreciation from the FINEX

In his lecture entitled “Assessing the Costs and Legal Ramifications of E-Data to Your Business or Corporation” he gave specific examples of how much the discovery production costs of pertinent e-data in back-up tapes alone had set some parties back in the United States. For instance, in 2002, in Rowe Entertainment, Inc. v. William Morris Agency, Inc., the costs of e-data recovery was pegged at $9.75 million, while in Murphy Oil USA, Inc. v. Fluor Daniel, Inc., it was set at $6.2 million. These cases did not include the costs for the time of the lawyers and paralegals reviewing the data to determine which is relevant. He then gave an estimate of how much it would take to recover e-data covering thousands of emails spanning several years, using an e-discovery software with the help of an IT specialist at 2007 Philippine prices and context, for a medium sized non-multinational company.

Dr. Atty. Noel G. Ramiscal lecturing before the FINEX officers and members

He placed the conservative estimate of Php3 million, excluding attorney’s fees for the review of the documents for privilege or confidentiality and relevance.

The study highlighted the fact that almost one third of the respondents did not know how to estimate the costs, without giving any reason why. In his FINEX lecture, and his succeeding Mandatory Continuing Legal Education (MCLE) lectures on this matter, Dr. Ramiscal delineated some of the complicated processes involved in the electronic discovery of e-data (e.g., litigation holds, preservation orders, etc.), made all the more uncertain because of the non-existent rules, then and now, from the Philippine Supreme Court that deal precisely with the legal and proper way of e-discovery. Such lack of proper rules and awareness of e-discovery techniques in the Philippines, that the Supreme Court has the duty to lay down, can certainly contribute to the lack of knowledge of Philippine lawyers as to the costs of e-discovery.

THE NON-FINANCIAL COSTS OF NOT COMPLYING WITH E-DISCOVERY

While the study stressed the fact that the scope of e-discovery is quite broad due to the prevalence of electronic evidence, what it did not dwell on is the non-financial consequences of failing to observe e-discovery procedures. This is an important lacuna in the study.

Aside from the monetary costs, Dr. Ramiscal in his FINEX Lecture and subsequent MCLE lectures had always emphasized the costs of losing one’s business and reputation arising from not observing e-discovery procedures like intentionally destroying electronic evidence pending an imminent litigation or violating an already established preservation order.

Dr. Atty. Noel G. Ramiscal during the Question & Answer portion of his FINEX lecture

A very clear example that he usually gives are the e-discovery infractions committed by the Arthur Andersen accounting firm with their Enron account which led to the dissolution of the firm. These are matters that many law firms, corporations, and courts in the Philippines may not even realize at this stage.

WHO BEARS THE COSTS OF E-DISCOVERY?

The study noted that a lot of e-discovery requests come from government regulators. This meant that the company under regulation is bound to comply, and implied that it will bear the costs of e-discovery.

But that is not the whole reality. When a contentious case arises before the court, for example an intellectual property case involving patents, it is expected that both parties will resort to e-discovery process. In some cases the extent of the requests may be unreasonably broad which, if followed, can lead to unnecessarily heavy financial costs. The American courts have established some sophisticated doctrines and guidelines to follow in cases like this, recognizing the fact that making one party bear the costs of e-discovery would in many cases be unfair. This is another matter that Dr. Ramiscal has continually explored in his lectures for the MCLE seminars he has been invited to by the UP IAJ and the Integrated Bar of the Philippines tackling electronic evidence and electronic discovery.

The study could have been more relevant had it tackled this very particular nitty gritty aspect of e-discovery that involves both clients and their lawyers.

TRANSBORDER DATA FLOW

Finally, the study underscored the challenges concerning privacy and transborder data flows to and from jurisdictions whose privacy laws may conflict with one another. This is a very important matter, and one that is demonstrably illustrated as far as the Philippines goes.

The Philippine Legislature has passed Republic Act 10173, entitled “AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND COMMUNICATIONS SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION, AND FOR OTHER PURPOSES” in 2012. Almost three years have passed but the Implementing Rules and Regulations (IRR) of this law had not been passed. The National Privacy Commission has not yet been operationalized. Meanwhile, issues confronting the data rights of Philippine citizens have arisen without any specific government directive or direction addressing these issues. In the same vein, Republic Act 10175, “AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES” passed in 2012 also has no IRR. This law could complement or intersect with some of the provisions of Republic Act 10173. Under the Administrative law and jurisprudence of the Philippines, without the proper publication of the IRRs of these laws in the Official Gazette or newspaper of general circulation, and proper deposit of their copies with the Office of the National Administrative Register, these laws are not effective against any entity.

CONCLUSION

The Asian Business Legal Magazine and FTI study of e-discovery’s value for the Philippines lies in being an eye opener of some of the important issues concerning e-discovery which the key players in the Philippine government, including the Philippine Supreme Court, and the pertinent executive agencies must deal with. With the electronic initiatives of the Philippine Supreme Court under Chief Justice Sereno (who is a champion of IT-enabled courts), the matter concerning e-discovery of e-data deserves to be duly and timely addressed, especially since the establishment of Philippine Cybercrime courts under Republic Act 10175 had not yet been actualized due to the non-passage of the law’s IRR.

Cite: Dr. Atty. Noel G. Ramiscal, A PHILIPPINE LAWYER’S REACTION TO A 2015 E-DISCOVERY STUDY IN ASIA AND WHY THE PHILIPPINES HAS TO PLAY CATCH UP, (URL), (date of access)