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REMEDIAL LAW (EVIDENCE)

MEMORY AID – ANNEX A


ATENEO CENTRAL BAR OPERATIONS 2002

HIGHLIGHTS of the New RULES ON ELECTRONIC EVIDENCE

Historical Background

* Pre-Electronic Commerce Act ("ECA") Era

People v. Burgos, 200 SCRA 67 [1991]

Facts: This case involves a prosecution under the Anti-Subversion Act. Trial Court
disallowed the printing of data from diskettes because the diskettes were in the
possession of the prosecution and printing could be manipulated by prosecution witness.

Held: SC held that trial court's lack of confidence in the witness should not have
affected the integrity of the diskettes or prosecution's right to show contents of the
diskettes.

IBM Phils., Inc. v. Pena, 305 SCRA 92 [1999]

Facts: This is an illegal termination case. Employer attached e-mails to Position Paper
showing absenteeism, tardiness, and sufficient warnings therefor.

Held: SC Held that e-mails were inadmissible because:


- They were not signed.
- They were not certified or authenticated by company official who could attest
that they came from IBM's computer system or data stored were not or could not have
been tampered with before they were printed out.

Burgos and IBM cases highlight three (3) evidentiary matters relating to
computer-based documents: (1) Right to use the document as evidence; (2) Integrity of
the electronic document; and (3) Authentication of the document for evidentiary
purposes.

* Electronic Commerce Act Era

14 June 2000
- The Electronic Commerce Act (RA 8792) was approved into law.
- The ECA was basically patterned after the UNCITRAL Model Law which was the model
law for Electronic Commerce Laws adopted by the UN General Assembly in 1996.
- Under Sec. 11 of ECA, the Supreme Court is to promulgate rules on authentication of
electronic documents and signatures.

13 July 2000
 The Department of Trade and Industry approved the Implementing Rules and
Regulations ("IRR") for the ECA.
 The IRR contained no detailed rules on evidence.
01 March 2001
 SC Administrative Circular No. 19-2001 constituted the Committee on the
Revision of Rules of Court to draft the Rules on E-Commerce Law.

17 July 2001
 Supreme Court En Banc approves the Rules on Electronic Evidence ("REE").

01 August 2001
 The REE went into effect.
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REMEDIAL LAW (EVIDENCE)
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ATENEO CENTRAL BAR OPERATIONS 2002

The Electronic Commerce Act (ECA)

NON-DISCRIMINATION RULE

Sec. 6. Legal Recognition of Electronic Data Message. - Information shall


NOT be denied validity or enforceability solely on the ground that it is in the form
of electronic data message purporting to give rise to such legal effect, or that it is
merely incorporated by reference in that electronic data message.

Sec. 12. Admissibility and Evidential Weight of Electronic Data Messages


or Electronic Documents. - In any legal proceedings, NOTHING in the
application of the rules on evidence shall DENY admissibility of an electronic
data message or electronic document in evidence -
a. On the sole ground that it is in electronic form; or
b. On the ground that it is NOT the standard form.

FUNCTIONAL EQUIVALENT RULE


 An electronic document is the functional equivalent of a paper-based document.
 An electronic signature is the functional equivalent of a handwritten signature.

Sec.7. Legal recognition of Electronic Documents.


xxx
For evidentiary purposes, an electronic document shall be the functional
equivalent of a written document under existing laws.

Sec. 10. Original documents. - (1) Where the law requires information to be
presented or retained in its original form, that requirement is met by an electronic
data message or electronic document if:
(a) The integrity of the document ... is shown by evidence aliunde or otherwise,
and
(b) ... the document is capable of being displayed to the person to whom it is
presented.

Sec. 8. Legal Recognition of Electronic Signatures. - An electronic signature


on the electronic document shall be equivalent to the signature of a person on a
written document if the signature is an electronic signature and proved by
showing that a prescribed procedure, not alterable by the parties interested in the
electronic document, existed ...

ECA NOT A RULE ON AUTOMATIC ADMISSIBILITY

Sec. 7. x x x
xxx

The Act does NOT modify any statutory rule relating to the admissibility of
electronic data messages or electronic documents, except the rules relating to
authentication and best evidence.
.................................

Some basic things to remember on the REE

 REE is interim in nature. Hence, it will be improved as time and experience will
dictate.
 REE is simplified to facilitate its application to actual court setting and to minimize
use of technical terms in the ECA.
 Familiar terms and phrases found in the present body of law are used to the
maximum.
 Due to novelty and technical nature REE should not be strictly construed as to

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REMEDIAL LAW (EVIDENCE)
MEMORY AID – ANNEX A
ATENEO CENTRAL BAR OPERATIONS 2002

unnecessarily exclude evidence and doubts should be resolved in favor of


admissibility.
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Structure of the REE

RULE 1
COVERAGE

SECTION 1. Scope. - Unless otherwise provided herein, these Rules shall


apply whenever an electronic document or electronic data message, as defined in Rule
2, hereof, is offered or used in evidence.

 Shall apply to presentation of electronic documents, audio, photographic, video


and ephemeral evidence.

SECTION 2. Cases Covered. - These Rules shall apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases.

SECTION 3. Application of other rules on evidence. - In all matters not


specifically covered by these Rules, the Rules of Court and pertinent provisions of
statutes containing rules on evidence shall apply.

 Suppletory application of other rules as provided in the Rules of Court (e.g.


relevancy, offer of evidence) and other Statues containing rules of evidence (e.g.
Wiretapping Act (RA 4200) and Bank Secrecy Law (RA 1405, as amended).

RULE 2
DEFINITION OF TERMS AND CONSTRUCTION

SECTION 1. Definition of Terms. - For purposes of these Rules, the following


terms are defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system capable of generating
a secure key pair, consisting of a private key for creating a digital signature, and a public
key for verifying the digital signature.
(b) "Business records" include records of any business, institution, association,
profession, occupation, and calling of every kind, whether or not conducted for profit, or
for legitimate or illegitimate purposes.
(c) "Certificate" means an electronic document issued to support a digital
signature which purports to confirm the identity or other significant characteristics of the
person who holds a particular key pair.
(d) "Computer" refers to any single or interconnected device or apparatus,
which, by electronic, electro-mechanical, or magnetic impulse, or by other means with
the same function, can receive, record, transmit, store, process, correlate, analyze,
project, retrieve, and/or produce information, data, text, graphics, figures, voice, video,
symbols or other modes of expression or perform any one or more of these functions.
(e) "Digital Signature" refers to an electronic signature consisting of a
transformation of an electronic document or an electronic data message using an
asymmetric or public cryptosystem such that a person having initial untransformed
electronic document and the signer's public key can accurately determine:
(i) Whether the transformation was created using the private
key that corresponds to the signer's public key; and
(ii) Whether the initial electronic document had been altered
after the transformation was made.
(f) "Digitally signed" refers to an electronic document or electronic data message
bearing a digital signature verified by the public key listed in a certificate.
(g) "Electronic data message" refers to information generated, sent, received, or
stored by electronic, optical, or similar means.
(h) "Electronic document" refers to information or the representation of
information, data, figures, symbols, or other modes of written expression, described or

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however represented, by which a right is established or an obligation extinguished, or by


which a fact may be proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. It includes digitally signed
documents and any printout or output readable by sight or other means, which
accurately reflects the electronic data message or electronic document. For purposes of
these Rules, the term "electronic document" may be used interchangeably with
"electronic data message".
(i) "Electronic key" refers to a secret code which secures and defends sensitive
information that crosses over public channels into a form decipherable only with a
matching electronic key.
(j) "Electronic signature" refers to any distinctive mark, characteristics and/or
sound in electronic form, representing the identity of a person and attached to or
logically associated with the electronic data message or electronic document or any
methodology or procedure employed or adopted by a person and executed or adopted
by such person with the intention of authenticating, signing, or approving an electronic
data message or electronic document. For purposes of these Rules, an electronic
signature includes digital signatures.
(k) "Ephemeral electronic communication" refers to telephone conversations,
text messages, chatroom sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of which is not recorded or retained.
(l) "Information and Communication System" refers to a system for generating,
sending, receiving, storing or otherwise processing electronic data messages or
electronic documents and includes the computer system or other similar devices by or in
which data are recorded or stored and any procedure related to the recording or storage
of electronic data messages or electronic documents.
(m) "Key Pair" in an asymmetric cryptosystem refers to the private key and its
mathematically related public key such that the latter can verify the digital signature that
the former creates.
(n) "Private Key" refers to the key of a key pair used to create a digital signature.
(o) "Public Key" refers to the key of a key pair used to verify a digital signature.

SECTION 2. Construction. - These Rules shall be liberally construed to assist


the parties in obtaining a just, expeditious, and inexpensive determination of cases.
The interpretation of these Rules shall also take into consideration the
international origin of Republic Act No. 8792, otherwise known as the Electronic
Commerce Act.

 The REE should be liberally construed and the international origin of the ECA
should be taken into consideration.
 Doubts should be resolved in favor of admissibility.

RULE 3
ELECTRONIC DOCUMENTS

SECTION 1. Electronic documents as functional equivalent of paper-based


documents. - Whenever a rule of evidence refers to the term writing, document, record,
instrument, memorandum or any other form of writing, such term shall be deemed to
include an electronic document as defined in these Rules.

The Functional Equivalent Rule


The term "writing", "document", "record", "instrument", "memorandum", or any
other form of writing under rules on evidence includes electronic document, e.g.:
- Documentary evidence (Sec. 2, Rule 130)
- Best Evidence Rule (Secs. 3-4, Rule 130)
- Parole Evidence Rule (Sec. 9, Rule 130)
- Interpretation of Documents (Secs. 10-19, Rule 130)
- Memorandum testimony (Sec. 16, Rule 132) on present recollection
refreshed and past recollection recorded.
- Tender of excluded evidence or Offer of Proof (Sec. 40, Rule 132)

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- Statute of Frauds (Art. 1403, Civil Code)


- Bank Secrecy Law (RA 1405, as amended)

SECTION 2. Admissibility. - An electronic document is admissible in evidence if


it complies with the rules on admissibility prescribed by the Rules of Court and related
laws and is authenticated in the manner prescribed by these Rules.

Requisites for admissibility of Electronic Document


(1) Complies with the rules on admissibility, and
(2) Authenticated in the manner prescribed by the REE.

SECTION 3. Privileged Communication. - The confidential character of a


privileged communication is not lost solely on the ground that it is in the form of an
electronic document.

RULE 4
BEST EVIDENCE RULE

SECTION 1. Original of an Electronic Document. - An electronic document shall


be regarded as the equivalent of an original document under the Best Evidence Rule if it
is a printout or output readable by sight or other means, shown to reflect the data
accurately.

Original under the Best Evidence Rule if:


(1) Any printout or other output;
(2) Readable by sight or by other means; and
(3) Shown to reflect the data accurately

SECTION 2. Copies as equivalent of the originals. - When a document is in two


or more copies executed at or about the same time with identical contents, or is a
counterpart produced by the same impression as the original, or from the same matrix,
or by mechanical or electronic re-recording, or by chemical reproduction, or by other
equivalent techniques which accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the
same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the
copy in lieu of the original

Copies as originals

Copies ------>(1) Executed at or about the same time, and


(2) With identical contents

Counterparts------> (1) Produced from the same impression as the original,


or from the same matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by other equivalent
techniques, and
(2) Accurately reproduces the original. e.g. scanned
documents

Exceptions
(1) Genuine questions raised as to authenticity of original;
(2) Unfair to admit the copy in lieu of original

Addition of any (1) endorsement, (2) authorized change, and (3) change which arises
in the normal course of (a) Communication, (b) storage, or (c) display does not affect
the integrity of the electronic document.

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REMEDIAL LAW (EVIDENCE)
MEMORY AID – ANNEX A
ATENEO CENTRAL BAR OPERATIONS 2002

RULE 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS

ECA prescribes modes of authentication of electronic documents and signatures


(Sec. 11) which is technical in nature - algorithm, codes, encryptions, etc.

ECA expressly grants the Supreme Court power to modify the modes of
authentication (Sec. 12). The Supreme Court may adopt other authentication
procedures.

SECTION 1. Burden of proving authenticity. - The person seeking to introduce


an electronic document in any legal proceeding has the burden of proving its authenticity
in the manner provided in this Rule.

SECTION 2. Manner of authentication. - Before any private electronic document


offered as authentic is received in evidence, its authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally signed by the person
purported to have signed the same;
(b) by evidence that other appropriate security procedures or
devices may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the
satisfaction of the judge.

SECTION 3. Proof of electronically notarized document. - A document


electronically notarized in accordance with the rules promulgated by the Supreme Court
shall be considered as a public document and proved as a notarial document under the
Rules of Court.

 ECA grants SC power to adopt electronic notarization as a mode of


authentication (Sec. 11).
Proof of electronically notarized documents
(1) Must be electronically notarized in accordance with the rules to be
promulgated by the Supreme Court.
(2) If so: (a) Public document; and (b) Proved as a notarial document.

RULE 6
ELECTRONIC SIGNATURES

SECTION 1. Electronic Signature. - An electronic signature or a digital signature


authenticated in the manner presented hereunder is admissible in evidence as the
functional equivalent of the signature of a person on a written document.

Electronic signature as the functional equivalent of handwritten signature (Sec. 1)


(1) Includes digital signature;
(2) Must be authenticated in the manner prescribed by the Rules.

SECTION 2. Authentication of electronic signatures. - An electronic signature


may be authenticated in any of the following manner:
(a) By evidence that a method or process was utilized to establish
a digital signature and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing
the genuineness of the electronic signature.

SECTION 3. Disputable presumptions relating to electronic signatures. - Upon


the authentication of an electronic signature, it shall be presumed that:

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REMEDIAL LAW (EVIDENCE)
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(a) The electronic signature is that of the person to whom it


correlates;
(b) The electronic signature was affixed by that person with
the intention of authentication or approving the electronic document to
which it is related or to indicate such person's consent to the transaction
embodied therein; and
(c) The methods or processes utilized to affix or verify the
electronic signature operated without error or fault.

SECTION 4. Disputable presumptions relating to digital signatures. - Upon the


authentication of a digital signature, it shall be presumed, in addition to those mentioned
in the immediately preceding section that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational
period of a certificate;
(c) No cause exists to render a certificate invalid or revocable;
(d) The message associated with a digital signature has not
been altered from the time it was signed; and
(e) A certificate had been issued by the certification authority
indicated therein.

RULE 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

SECTION 1. Factors for assessing evidentiary weight. - In assessing the


evidentiary weight of an electronic document, the following factors may be considered:
(a) The reliability of the manner or method in which it was
generated, stored, or communicated, including but not limited to input or
output procedures, controls, tests and checks for accuracy and reliability
of the electronic data message or document in the light of all the
circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was
identified;
(c) The integrity of the information and communication system
in which it is recorded or stored, including but not limited to the hardware
and computer programs or software as well as programming errors;
(d) The familiarity of the witness or the person who made the
entry with the communication and information system;
(e) The nature and quality of the information which went into
the communication and information system upon which the electronic
data message or electronic document was based; or
(f) Other factors which the court may consider as affecting the
accuracy or integrity of the electronic document or electronic data
message.

SECTION 2. Integrity of an information and communication system. - In any


dispute involving the integrity of the information and communication system in which an
electronic document or electronic data message is recorded or stored, the court may
consider, among others, the following factors:
(a) Whether the information and communication system or
other similar device was operated in a manner that did not affect the
integrity of the electronic document, and there are no other reasonable
grounds to doubt the integrity of the information and communication
system;
(b) Whether the electronic document was recorded or stored
by a party to the proceedings with interest adverse to that of the party
using it; or
(c) Whether the electronic document was recorded or stored
in the usual and ordinary course of business by a person who is not a
party to the proceedings and who did not act under the control of the
party using it.

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ATENEO CENTRAL BAR OPERATIONS 2002

RULE 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

SECTION 1. Inapplicability of the hearsay rule. - A memorandum, report, record


or data compilation of acts, events, conditions, opinions, or diagnoses, made by
electronic, optical or other similar means at or near the time of or from transmission or
supply of information by a person with knowledge thereof, and kept in the regular course
or conduct of a business activity, and such was the regular practice to make the
memorandum, report, record, or data compilation by electronic, optical, or similar means,
all of which are shown by the testimony of the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence.

Requisites to qualify as exception to the hearsay rule:


(1) Memorandum, report, record, or data compilation of
- acts, events, conditions, opinion, or diagnoses
(2) Made by
- electronic, optical, or optical means
(3) At or near the time of or from transmission or supply of information
(a) by a person with knowledge thereof,
(b) kept in the regular course or conduct of a business activity, and
(c) such was the regular practice of that business activity
- to make the memorandum, report, record, or data compilation
- by electronic, optical, or similar means

How to Prove - by testimony of:


(1) Custodian
(2) Other qualified witness
- Entrant or preparer of record need not testify

SECTION 2. Overcoming the presumption. - The presumption provided for in


Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the
source of information or the method or circumstances of the preparation, transmission or
storage thereof.

Inapplicability of business records exception


 Untrustworthiness of:
(1) Source of information
(2) Method of circumstances of
(a) Preparation
(b) Transmission
(c) Storage

Changes from the current business record exception


(1) Entrant need not be deceased or unable to testify (cf Sec. 43, Rule 130)
(2) Entrant need not have personal knowledge (cf Cangue v. CA, 305 SCRA 579 (1999);
Philamlife v. Capital Assurance Corp, [CA] 72 OG 349 [1975]).

RULE 9
METHOD OF PROOF

SECTION 1. Affidavit of evidence. - All matters relating to the admissibility and


evidentiary weight of an electronic document may be established by an affidavit stating
facts of direct personal knowledge of the affiant or based on authentic records. The
affidavit must affirmatively show the competence of the affiant to testify on the matters
contained therein.

Affidavit evidence
 Requisites for admissibility; and

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REMEDIAL LAW (EVIDENCE)
MEMORY AID – ANNEX A
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 Evidential weight of electronic document (Sec. 1)

SECTION 2. Cross examination of deponent. - The affiant shall be made to


affirm the contents of the affidavit in open court and may be cross-examined as a matter
of right by the adverse party.

Cross-examination
 Affiant shall be made to affirm the contents of the affidavit in open court;
 May be cross-examined by adverse party (Sec. 2)

RULE 10
EXAMINATION OF WITNESSES

SECTION 1. Electronic testimony. - After summarily hearing the parties


pursuant to Rule 9 of these Rules, the court may authorize the presentation of
testimonial evidence by electronic means. Before so authorizing, the court shall
determine the necessity for such presentation and prescribe terms and conditions as
may be necessary under the circumstances, including the protection of the rights of the
parties and witnesses concerned.

Electronic testimony
 Summary hearing through affidavit testimony subject to cross examination
pursuant to Rule 9;
 Necessity of presentation of testimonial evidence by electronic means;
 Terms and conditions as may be necessary under the circumstances, including
the protection of the rights of the witnesses concerned.

SECTION 2. Transcript of electronic testimony. - When examination of a


witness is done electronically, the entire proceedings, including the questions and
answers, shall be transcribed by a stenographer, stenotypist, or other recorder
authorized for the purpose who shall certify as correct the transcript done by him. The
transcript should reflect the fact that the proceedings, either in whole or in part, had been
electronically recorded.

Transcript of electronic testimony


 Entire proceedings shall be transcribed;
 Transcript should reflect the fact that the proceedings, either in whole or in part,
had been electronically recorded

SECTION 3. Storage of electronic evidence. - The electronic evidence and


recording thereof as well as the stenographic notes shall form part of the record of the
case. Such transcript and recording shall be deemed prima facie evidence of such
proceedings.

Storage of electronic evidence


 Constitute part of the records of the case
 Deemed prima facie evidence of proceedings

RULE 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

SECTION 1. Audio, video, and similar evidence. - Audio, photographic, and


video evidence of events, acts, or transactions shall be admissible provided it shall be
shown, presented or displayed to the court and shall be identified, explained, or
authenticated by the person who made the recording or by some other person
competent to testify on the accuracy thereof.

SECTION 2. Ephemeral electronic communication. - Ephemeral electronic

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communications shall be proven by the testimony of a person who was a party to the
same or has personal knowledge thereof. In the absence or unavailability of such
witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic
communication shall be covered by the immediately preceding section.
If the foregoing communications are recorded or embodied in an electronic
document, then the provisions of Rule 5 shall apply.

RULE 12
EFFECTIVITY

SECTION 1. Applicability to pending cases. - These Rules shall apply to cases


pending after their effectivity.
SECTION 2. Effectivity. - These Rules shall take effect on the first day of
August 2001 following their publication before the 20th July 2001 in two newspapers of
general circulation in the Philippines.

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