Objection against extension of time 2418In the main, the second request for extension of the plaintiff’s extraordinary evidentiary period should be rejected; and, in the addendum, the document is enclosed with citation.
Joaquin Plaza Rosso, attorney in convention representation of Mr. Felipe Ossa Guzman and Claro & Co., C 2148-2021, to this Court I respectfully state:
By the filing dated December 1, 2023, the plaintiff requested, for the second time, that the extraordinary evidentiary period decreed by resolution in Folio 184 for the submission of certain witness statements in Canada be extended (the “Request”).
I respectfully request that the Request be rejected as being triply inadmissible, since, the right of the plaintiff to request it was precluded, because the exhorto decreed has been completed (Sec. I); the Request does not strictly constitute a second extension of the extraordinary evidentiary period, but rather a disguised request to decree a new international exhorto (Sec II); in any case, granting the Request would prolong the extraordinary evidentiary period decreed for a period that far exceeds that established in the Code of Civil Procedure (Sec III).
- PRECLUSION OF THE POSSIBILITY OF REQUESTING A SECOND EXTENSION OF THE EXTRAORDINARY PROBATIONARY PERIOD
- The extraordinary evidentiary period decreed to take witness statements in Canada was granted by resolution on November 21, 2022 (Folio 184) and had an original extension of seven months. That period was extended by a further six months by resolution of June 15, 2023 (Folio 239). In total, the plaintiff had 13 months to carry out the proceedings, without having submitted, either now or when requesting that an extraordinary evidentiary period be decreed, any information that would presume the advisability of obtaining such statements, as required by the third rule of Article 331 of the CPC.
- The international exhorto was process before the Excellent Supreme Court under Rol # 152945-2022. It is apparent from those documents as evidenced by the document submitted in the addendum, that the exhorto was processed in its entirety before the Canadian Authorities.
- Since the international exhorto has been fully completed, the plaintiff does not have the right to request an extension of the extraordinary evidentiary period. The preclusion is based on consummation, i.e. on the execution of the decreed exhorto, so that any associated right has been extinguished and cannot be resurrected. This means that the Request must be rejected in its entirety.
- THE REQUEST IS, IN FACT, A DISGUISED REQUEST FOR A NEW INTERNATIONAL EXHORTO
- In fact, the Request is nothing more than an attempt by the plaintiff to revive a diligence that was performed, although without the result he expected, since his witnesses would not have attended to testify. Although the plaintiff states in the Request that he seeks “to extend” the deadline to “fill out” the decreed exhorto, in reality, he is insisting on obtaining a new international exhorto, which would give rise to a new extraordinary evidentiary period.
- For the same reason, the possibility of requesting a new international exhortation has also precluded in an additional sense to that explained in the preceding paragraph, since the opportunity indicated by law to request has elapsed. Indeed, Article 332 of the CPC clearly states that the extraordinary increase to give evidence “must be requested before the expiry of the ordinary period”. This demonstrates, again, why the Request should be rejected.
- Finally, in addition to having precluded the procedural opportunity to request a new international exhorto, the Request does not meet the legal requirements for it to be received. Rule 3 of Article 331 of the CPC is clear in requiring the actor, in the case of testimonial statements, to justify his request with “some background that makes presumable the desirability” of obtaining them. The plaintiff did not do so, so the Request cannot succeed.
- WITHOUT PREJUDICE TO THE FOREGOING, ACCEPTING THE REQIEST WOULD EXTEND THE EXTRAORDINARY PERIOD OF EVIDENCE DECREED BY A TERM THAT EXCEEDS, BY FAR, THAT ESTABLISHED IN THE CPC
- As explained in paragraph 1 above, the plaintiff has had 13 months to obtain the witness testimony in Canada. That period far exceeded the legal and fatal maximum established by the CPC for such purposes, so its extension exposes the process to invalidity.
- In accordance with the provisions of Article 329 of the CPC, the extraordinary evidentiary period must be extended by “a number of days equal to that granted by Article 259 (of the CPC) to increase the number of days of the summons”. This period is legal and fatal, since (i) it is the law that indicates the duration to be given to an extraordinary evidentiary period and (ii) it is applicable to the parties (Article 64 of the CPC).
- In other words, there is no legal authorization for the Court to determine the extension to be given to the extraordinary evidentiary period requested. In this sense, it has been ruled that “any increase in the period of evidence begins in full force once the ordinary evidentiary period expires, without interruption and the judge is not entitled to set the time limit for it, but must only limit himself to applying the summons table”. Well, it turns out that the latter is very clear: the increase from any point of the national territory to Canada corresponds to 20 days.
- The Court of Appeals of Santiago has ruled applying precisely the two aforementioned arguments, declaring the nullity of everything that is done outside the term established in the summons table.
- In short, the Request is inadmissible because it seeks to extend beyond the legal maximum and for the second time, a fatal deadline, exposing the process to the nullity of what has been done, as the Illustrious Court of Appeals of Santiago has ruled.
- Finally, in addition to the rejection of the Request, as it is triply inadmissible, the plaintiff should be ordered (in the final judgment) to pay all the expenses incurred by this party in the processing of the international exhorto. This is required by Article 337 of the CPC for cases, such as this one, in which the party that has obtained an extraordinary increase in the evidentiary period to take testimony outside the territory of the Republic, does not take it.
THEREFORE,
I respectfully ask this Court: to reject the second request for extension of the extraordinary evidentiary period decreed as promoted by the plaintiff.
ADDENDUM: I submit, with a citation, a copy of the international exhorto #152945-2022, named “TORRES/CLARO & CO.”, filed by the competent authorities of Canada, received by the Supreme Court on October 31, 2023.
If it please the Court: have the document accepted as submitted, with citation.