Non-Disclosure Agreement; modern trend in business negotiations

The modern trend in commercial negotiations is for the parties to execute a non-disclosure agreement, a sample of which is quoted in full below, to protect each other’s trade and other operational secrets during and after the negotiation stage, whether or not the negotiation fails. A lawyer of a corporation with whom a client of mine was dealing to establish international strategic alliances prepared the sample agreement quoted below. I reviewed it in behalf of my client prior to his signature therein. I am sharing it (identities are removed) for purposes of legal research of the readers, especially law students.

NON-DISCLOSURE AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This NON-DISCLOSURE AGREEMENT, made and entered into this _______ day of _________________________, 2007, by and between:

X x x., a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines, with office address at x x x x, Philippines, duly represented in this act by its President/Chief Executive Officer, x x x, herein referred to as "x x x";

- and -

x x x, of legal age, with address at x x x, hereinafter referred to as the "Recipient",

WITNESSETH, That:

WHEREAS, x x x is engaged in the business of conducting international x x x x;

WHEREAS, the parties intend to discuss and evaluate the possibility of entering into a strategic business arrangement with each other, and during such discussion it may be necessary to disclose certain Confidential Information, as defined hereunder, to the other party;

WHEREAS, in order to protect the Confidential Information, the parties agree as follows:

1. DEFINITION

In this Agreement the "Recipient" includes all his agents, associates, employees, advisors, and other authorized representatives, and x x x includes all related corporate bodies of x x x and all its agents, associates, employees, advisors, and other authorized representatives.

"Confidential Information" means all information of any kind, whether in written or other tangible form or orally or visually furnished, which ought reasonably and mutually to be understood by the parties to be confidential or which is mutually identified by them as being confidential including, but not limited to the following:

(a) information relating to commercial, financial, marketing, technical, planning or other business affairs and internal records of both parties;

(b) trade secrets, know-how, methods, techniques, processes, programs, inventions and other information relating to products, services or processes marketed or used in the course business of both parties; and

(c) customer lists and other information relating to other persons, including customers, subcontractors, employees, and co-venturers of both parties or any of their customers or potential customers.

Notwithstanding the foregoing enumeration, in case of doubt as to whether particular information is confidential, the same shall be treated as confidential.

2. ACKNOWLEDGMENT

A party may disclose Confidential Information (the "Disclosing Party") to the other party (the "Recipient"). The Recipient acknowledges the strict confidential and proprietary nature of all Confidential Information received from the Disclosing party, and that it has no proprietary right whatsoever to the Confidential Information unless otherwise mutually agreed upon in writing by the parties.

3. OBLIGATION TO MAINTAIN CONFIDENTIALITY

Neither party shall, without the prior written consent of the other party:

(a) disclose to any person that it possesses such Confidential Information;

(b) disclose any or all parts of the Confidential Information to any person, including any third party or employee of the parties, unless such persons are required to have knowledge of the Confidential Information for the parties to achieve their mutual purposes, as may be determined by the original disclosing party, and they have been advised of the confidential and proprietary nature of the Information and have agreed to protect the same; or

(c) reproduce, copy or permit to be reproduced or copied Confidential Information in any medium or form; Provided, that the receiving party shall AT ALL TIMES protect the Confidential Information by using the same degree of care to prevent its unauthorized use, dissemination or publication as the receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care, and that the receiving party shall enforce this Agreement against those persons to whom it is authorized to disclose the Disclosing Party's Confidential Information for and on behalf of the Disclosing Party.

4. EXCLUSIONS

The parties' restrictions under clause 3 shall not apply to Confidential Information which:

(a) becomes publicly known through no wrongful act of the parties, or

(b) becomes known to the parties without confidential or proprietary restriction from a source other than any of the parties, or

(c) the receiving party can show by written records was rightfully in its possession prior to this Agreement; or

(d) the receiving party is obliged by law or proper government authority to disclose, in which case it shall notify the Disclosing Party in writing of the circumstances under which such disclosure will be made, including the nature of the disclosure and the entity to which it is to be made.

Notwithstanding the above, if the receiving party is obliged or required by any court or governmental, regulatory, or other body or person, to disclose Confidential Information, it shall, if so required in writing and for valid and lawful reasons by the Disclosing Party, and if practicable or feasible, cooperate with the Disclosing Party in opposing such requirement or request, subject to the duty of the disclosing party to equally share with the receiving party the necessary litigation and related expenses for the purpose.

5. OBLIGATIONS OF THE RECIPIENT PARTY

In consideration of the mutual exchange and disclosure of Confidential Information, each party undertakes, in relation to the other party's Confidential Information:

(a) To maintain the same in confidence and to use it solely and exclusively for the mutual purpose or purposes of the parties, for which the Confidential Information was disclosed, and not for any other purpose or benefit or for the purpose or benefit of any unauthorized third party;

(b) Not to copy, reproduce, or reduce in writing any part thereof except as may be reasonably necessary for the parties' mutual purpose or purposes. Any copies, reproduction or reductions to writing so made shall be the property of the Disclosing Party, unless otherwise agreed in writing by the parties or waived by the Disclosing Party in writing;

(c) Not to disclose the same whether to its employees or to third parties, except in confidence to such employees who need to know the same for the mutual purpose or purposes of the parties. Both parties undertake that these employees or third parties are obliged under their respective contracts of employment or service agreement or similar confidentiality agreements not to disclose the Confidential Information;

(d) To be responsible for the performance of sub-clauses (a), (b) and (c) above on the part of its employees to whom the same is disclosed pursuant to sub-clause (c) above; and

(e) To apply thereto security measures and such degree of care not less than those which the Receiving Party applies to its own confidential or proprietary information and which the Recipient warrants as providing adequate protection of such information from unauthorized disclosure, copy or use.

6. ASSIGNMENT

This Agreement is not assignable without the other party's prior written consent. Any attempt by the one party to assign or transfer any of the rights, obligations or duties of this Agreement without the prior written consent of the other party shall be void and of no effect.

7. RETURN OF CONFIDENTIAL INFORMATION

Upon termination of this Agreement, the parties shall demand of each other the immediate return of all copies of documents and materials containing Confidential Information disclosed to one party by the other, to the possession or control of the Disclosing Party within (1) one month from completion of the mutual purpose or purposes of the parties, or receipt of a written request from the other party, which written request shall enumerate the specific documents and materials wished by the disclosing party to be returned to it by the receiving party. The receiving party shall certify in writing to the Disclosing Party that it retains no copy and has fully complied with the requirements of this clause.

8. WARRANTY

8.1 Each party reserves all rights it may have by law or contract to its Confidential Information and no rights or obligation other than those expressly stated herein are granted or implied from this Agreement, unless otherwise agreed in writing by the parties. No license is hereby granted by one party to the other, directly or indirectly, under any existing patent, invention, discovery, copyright, trade secret, trademark, service mark, or other intellectual property held or obtained in the future by either party.

8.2 Each party warrants that it has full right and authority to enter into this Agreement, and that it is, unless expressly identified otherwise, the owner of its respective Confidential Information; and that it has the right to disclose its Confidential Information to the other party and to authorize the other party to use the same for the mutual purpose or purposes of the parties.

8.3 Unless otherwise stated in this Agreement, no warranty, express or implied, in the Confidential Information disclosed is granted by this Agreement, and warranties of merchantability, fitness for a particular purpose, accuracy or completeness are hereby disclaimed. Neither party shall be liable for any special, indirect or consequential damages, regardless of the form of action and even if such party is advised as to the possibility of such damages, except in cases of malice, bad faith and tortuous acts.

8.4 The parties agree that unless and until a definite and final agreement between them with respect to the possible joint venture or business strategic arrangement has been executed and delivered, neither party will be under any legal obligation of any kind with respect to such strategic business arrangement, except for the matters specifically agreed upon in this Agreement and in such other supplemental or subsequent agreements that the parties may execute in writing in relation to this Agreement.

9. ENTIRE AGREEMENT

This Agreement sets forth the entire agreement and understanding between the parties concerning the confidentiality of this Agreement and supersedes all previous agreements, negotiations, commitments, writings, and discussions between them as to the subject prior to the date hereof. There are no prior representations or warranties between the parties relating to the Confidentiality Information of this Agreement.

If any term or provision of this Agreement should be declared illegal or invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain unimpaired and in full force.

10. TERM

The term of this Agreement shall be five (5) years from the date of execution of this Agreement by both parties' duly authorized representatives. Either party can terminate this Agreement without cause upon written notice to the other party at least thirty (30) days prior to the intended date of termination. Notwithstanding the expiration or termination of this Agreement, the obligation of the parties to protect Confidential Information and the restrictions on use of Confidential Information shall survive for the period of five (5) years counted from the date of such expiration or termination.

11. NOTIFICATION

The parties agree to immediately notify each other in writing if any one of them becomes aware of any disclosure of Confidential Information that it knows or believes to be unauthorized by the other party.

All notices under this Agreement shall be in writing and shall be sent personally, by facsimile, or registered mail to the party being served at its address specified above and marked for the attention of such party's signatory in this Agreement. The date of service shall be deemed to be the date of transmittal by the sending party, if the notice is sent by facsimile or the date of actual receipt of the notice is sent personally or by registered mail.

12. FORCE MAJEURE

Neither of the parties shall be considered in breach of an obligation under the Agreement to the extent such party can establish that fulfilment of the obligation has been prevented by force majeure. Force majeure, for the purposes of this Agreement, shall include acts of God, war (declared or undeclared), hostilities, rebellion, insurrections, acts of terrorism, actual or threatened, any act of any government, any instrumentality or agency thereof, or any act or cause which is reasonably beyond the control of such party ; Provided, that the party prevented from or hindered or delayed in performance by any such cause shall have used its best efforts to avoid, overcome, mitigate and offset its effects. The party so prevented from or hindered or delayed in complying herewith shall immediately give written notice thereof to the other party and shall continue to take any action within its power to comply as fully as possible with its obligations hereunder.

13. LIABILITY AND DISPUTE SETTLEMENT

13.1 Should any party breach any material provision of this Agreement, which breach may be established by substantial evidence in arbitration proceedings outlined herein, and unless the breach shall have been caused by force majeure, such party shall be liable for damages to the other party in an amount to be determined by the arbitration panel.

13.2 Any dispute or difference between the parties relating to their rights or obligations under this Agreement shall first be referred for consideration by each party by notice in writing to the other party. If the dispute or difference is not resolved within a period of sixty (60) days, then either party may submit the dispute for arbitration in accordance with the following:

13.2.1 The arbitration proceedings shall be conducted in accordance with the rules of procedure for arbitration of the Philippine Chamber of Commerce and Industry. Each Party shall appoint one arbitrator. The arbitrators thus appointed shall select a third arbitrator who shall act as the presiding arbitrator of the tribunal or panel;

13.2.2 Unless agreed otherwise by the Parties, the arbitration shall be conducted in the English language in Metro Manila, Philippines;

13.2.3 The Parties agree that this arbitration clause is an explicit waiver of immunity against validity and enforcement of the award or any judgment thereon made pursuant thereto and that such award or judgment thereon, if unsatisfied, shall be enforceable in any court having jurisdiction in accordance with its laws against any party participating in the arbitration;

13.2.4 The parties agree that the award of the arbitration tribunal shall be the sole remedy for all claims and counterclaims concerning the matter in dispute presented to the arbitration tribunal. The costs, expenses, fees, and charges of the arbitration proceedings shall be equally shared by the parties.

14. GOVERNING LAWS

This Agreement shall be governed by and construed in accordance with the laws of the Republic of the Philippines.

X x x.

Questioned document examination

May I share a sample motion of mine in a pending criminal case arguing the need for an order allowing the conduct of a questioned document examination (QDE), which pleading the readers might find useful for legal research purposes.

MOTION FOR RECONSIDERATION

(In Re: ORDER, dated x x x)

THE ACCUSED, by counsel, respectfully states:

1. On September 7, 2007 the accused, thru counsel, received a copy of the Order, dated August 22, 2007, denying his “MOTION FOR DOCUMENT AND HANDWRITING EXAMINATION BY THE NATIONAL BUREAU OF INVESTIGATION”. X x x..

2. In his aforecited “MOTION FOR DOCUMENT AND HANDWRITING EXAMINATION BY THE NATIONAL BUREAU OF INVESTIGATION”, the accused prayed that an order be issued authorizing the National Bureau of Investigation to conduct a new, confirmatory and independent document and handwriting examination of (a) The subject standard and questioned documents, i.e., manager’s checks, application form, and related in-house forms and sheets, as may be jointly identified by the parties, assisted by their counsel, the list of which shall be duly confirmed by the Court in an order for the purpose; and (b) The questioned and standard signatures of both the concerned signatories, officers and staff of the complainant Bank, on one hand, and of the accused, on the other, as may likewise be jointly identified by the parties, assisted by their counsel, the list of whom shall be duly confirmed by the Court in an order for the purpose, based on the following arguments:

1. The record of the preliminary investigation of the Office of the City Prosecutor of Makati City shows that Document Report No. x x x, dated x x x, prepared by the officials of the Crime Laboratory of the National Headquarters of the Philippine National Police at Camp Crame, Quezon City, excluded and failed to examine the questioned and standard signatures of the accused in relation to the questioned and standard documents and signatures of the other signatories of the subject Bank checks, application forms and related documents.

2. The PNP Crime Laboratory examiners and officials did not inform, invite, request and/or summon the accused at that time to submit his questioned and standard signatures so that the same could likewise be examined in relation to his questioned and standard documents and signatures examined by the PNP Crime Laboratory. The accused had no knowledge of such an examination.

3. The end result was that the PNP Crime Laboratory had made a limited, partial, selective, incomplete, biased and prejudicial examination based only of certain questioned and standard signatures submitted by the concerned officers and staff of the complainant Bank -- to the detriment of the accused.

4. The Report excluded an examination of the questioned and standard documents themselves (manager’s checks, application forms, and he like).

It limited itself to an examination of the questioned and standard signatures of the concerned Bank officers and staff who had at that time assumed an openly adverse and prejudicial position against the accused.

5. The standard and questioned documents and signatures and other related in-house forms, sheets and papers are still in the possession and archives of the complainant Bank.

6. The accused is suspicious of the credibility, neutrality and sincerity of the PNP Crime Laboratory examiners who had submitted the Report because they seemed to have been prevailed upon and influenced by the officers of the Bank to conduct the partial, biased and prejudiced examination without the participation of and notice to the accused, i.e., without giving the accused an opportunity to l submit his own questioned and standard signatures that could have shed true light to the end result of the examination.

7. In the interest of justice and fair play, there is a need for the forensic laboratory of the National Bureau of Investigation (NBI) to conduct a new, confirmatory and independent document and handwriting signature examination of the questioned and standard documents and signatures of the concerned officers and staff of the Bank and the X x x Marketing Inc., on one hand, and of the accused, on the other, in a manner that is complete, comprehensive, fair, neutral, transparent and credible.

8. The life, liberty and property of the accused are at stake in these pending consolidated Estafa cases.

The huge amounts involved in the checks subject matter of the instant cases carry 20 years of imprisonment.

9. The accused is a family man, a young and law-abiding citizen, and has never been charged of any kind of suit of whatever nature except the instant consolidated cases.

3. Rebutting the opposition of the Prosecution to the said motion, the accused in his Reply argued thus:

1. The motion of the accused for an order authorizing the National Bureau of Investigation (NBI) DOES NOT AMOUNT TO JUDICIAL INTERVENTION IN AID OF THE DEFENSE.

2. The defense needs such a formal order, for otherwise the NBI would not entertain any request from any party or from the public, even in a pending criminal case, unless there is a formal court order to that effect.

The motion is precisely intended for that purpose.

3. The motion aims to achieve and determine absolute truth and real justice in the instant case by compelling the NBI -- whose credibility the accused trusts more than the PNP Crime Laboratory insofar as the instant case is concerned, considering that the old and incomplete handwriting examinations conducted by the PNP Crime Laboratory did not even involve and invite the accused to participate in the process by seeking the submission of his own standard and questioned signatures) -- to submit to the Honorable Court a truly comprehensive and fair examination report on the subject documents and signatures.

4. Further, without a formal order, surely, the complainant X x x Bank and its bank officers will not surrender or entrust to the accused, his counsel, and/or the NBI scientists and examiners the originals of the questioned and standard documents and signatures involved in the instant case on the excuse that the same are private and confidential corporate and business documents.

Thus, there is a need on the part of the accused to implore and invoke the coercive powers of the Judiciary, pursuant to his nights under the Bill of Rights and Rule 115 (Rights of the Accused).

The pending motion is NOT INTENDED TO DELAY THE CASE BUT WILL IN FACT AID AND ASSIST THE HONORBALE COURT IN PEFORMING ITS NOBLE FUNCTIONS AND DUTIES AS A JUDICIAL FACT-FINDER AND DECISION-MAKER.

5. The questioned Order stated the following reasons for the denial of the said motion of the accused:

5.1. “The trial of the case is already on-going . ”;

5.2. “xxx The accused has the option to utilize the concerned NBI intended witness during the presentation of defense evidence.”;

5.3. “. The Court is called upon to conduct its own evaluation of the questioned signature even with the opinion on the matter coming from an NBI expert”;

6. It should be noted that this case is still in the MEDIATION STAGE, not the trial stage. It is not accurate to state that “the trial of the case is already on-going”. There is no evidence presentation yet by the Prosecution as of now.

7. The accused cannot and is not allowed by NBI rules and regulations, the Central Bank rules and regulations, and the Bank Secrecy Law and its implementing rules and regulations to commence, initiate, and complete an NBI questioned document examination procedure on his own without the compulsory intervention and order of the Court.

The X x x Bank, which is in possession of the originals of the questioned bank forms and documents will not release the same the NBI and/or to the accused or his counsel for transmittal to the NBI to conduct such document examination without a compulsory judicial process or order, because, surely, the Bank and its officers would invoke the Bank Secrecy Law and its own internal Manual of Operations which provide for confidentiality rules insofar as its in-house bank transactions are concerned.

It would thus be legally and physically impossible for the accused to attempt to do any legal or official act or step to exercise the so-called “ option to utilize the concerned NBI intended witness during the presentation of defense evidence.”

8. The accused agrees with the Court that its has the power to “ conduct its own evaluation of the questioned signature even with the opinion on the matter coming from an NBI expert”.

However, it must be noted that the accused in now at a disadvantageous and underdog positionPNP document examination report, which was completed and because the Prosecution has the generous benefits arising from an existing

issued by the said office, upon the prodding and influence of he Bank, without the full participation of and without prior notice to the accused.

The accused has the constitutional due-process right to present his own counter-expert witness to counteract the testimonial evidence to be presented by the PNP Crime Laboratory officer when he/she justifies the document examination report of the said office during the main trial stage of this case.

Moreover, without surrendering its aforementioned powers, it is judicious and wise for the Court, which is not a scientific agency with formal training and technical experience in forensic document examination, to be assisted and enlightened by the respective counter expert witnesses of both sideswhere the life, liberty and property of the accused, who is a law-abiding family man without prior criminal records, are at stake. in a crucial controversy, as the instant case,

As provided in Sec. 49, Rule 130 of the Rules of Court, the opinion of an expert witness, as in the instant case, requires “special knowledge, skill, experience or training”. The Courts should avail themselves of such expertise where warranted in the interest of truth and justice.

9. With the indulgence of the Court¸ the accused takes the liberty to elucidate herein below on the theory and practice of forensic questioned document examination.

9.1. The task of forensic document examination is to answer questions about a disputed document using a variety of scientific processes and methods. Many examinations involve a comparison of the questioned document, or components of the document, to a set of known standards. The most common type of examination involves handwriting wherein the examiner tries to address concerns about potential authorship.

One task of a forensic document examiner is to determine if a questioned item originated from the same source as the known item(s), then present their opinion in court as an expert witness. Other tasks include determining what has happened to a document, determining when a document was produced, or deciphering information on the document that has been obscured, obliterated or erased.

There are three stages in the process of examination. In brief, they are:

1. The questioned and the known items are analyzed and broken down to directly perceptible characteristics.
2. The characteristics of the questioned item are then compared against the known standard.

9.2. Evaluation of the similarities and differences of the compared properties determines which ones are valuable for a conclusion. This depends on the uniqueness and frequency of occurrence in the items. [1]

9.3. A questioned document examiner examines documents in cases where foul play is suspected. Cases frequently involve handwriting comparisons, typewriting comparisons, physical alterations to a document, and many variations on these themes. Some document examiners are involved with chemical testing of documents, while others concentrate on physical and mechanical testing. The document examiner is often a qualified expert witness, accepted in court by a judge after being examined and cross-examined by counsel.

The most important factor in any document examination is the quality of the standards (the documents of known origin that are compared with the questioned documents). The questioned document is important too, but it is a "given". It defines the outer limits of the examination, but how far the examiner can go within those limits depends on the standards.

The important facts about standard documents are:

• There must be no doubt about the authenticity of the standards. The document examiner needs to be able to rely on the standards, and the standards may need to be accepted as evidence in court.

• Every handwriting shows natural variation. In cases where varying letter forms is an issue, if the examiner doesn't see enough standard writing, he or she will not have the information needed to form a good opinion. Typewriting cases often depend on identification of some individualizing defect of a machine. Defects can be sporadic, especially in their developmental stages. A few lines of typing or a quick run through the alphabet will not yield enough material to reveal the real character of the typing element. [2]

9.4. By far the greatest number of questions about documents involve handwriting - especially signatures. Such as:

• Is the signature genuine?
• Is the document simulated/traced, and if so is it simulated/traced by a particular person?
• Is the same person the author of several documents?
• Which of a group of people wrote an anonymous letter?
• Did someone guide a person's hand as a will was signed?
• Did the doctor come back later and alter the medical records?
• Did the signer of the document also initial the changes?
• What is written under the crossed out portion of the writing?
• Was the document written on the date indicated?
  
  
  There are also questions about typewriting or printing processes:

• Are both documents typed on the same machine?

• Was the document removed from the typewriter and later reinserted during its preparation?

• Did a particular person do the typing?

• What type of printer, or what printing process was used to print the document?
  
  
  Some questions are not concerned with handwriting or typewriting:

• Are there erasures on the document?

• Are there alterations or obliterations on the document?

• What was originally written before the alteration or under the obliteration?

• Are there perforations, folds, staple holes, or other physical clues on the document?

• Was the entire document rewritten, or was it prepared sequentially, over a period of time?

• Depending on the nature and condition of the documents involved, these questions can be answered by the trained and experienced questioned document examiner. The first group of questions, involving handwriting, requires a close side-by-side examination of the questioned and known (exemplar) documents. This examination is done with the unaided eye and with magnifiers and microscopes set at varying powers of magnification. The one question that cannot be approached in this manner is that of the date of the document. Physical clues on the document may allow the examiner to reach some conclusions about time and sequence of preparation of the document, but to actually date the ink, an ink chemist is consulted.

Questions involving indentations, erasures and alterations can be answered with careful use of lighting, photography, and simple, non-destructive tests in the document examination laboratory. Infrared and ultra-violet photography are used to answer questions that remain mysteries under normal lighting. Laboratory equipment such as the ACO Electronics' QDX) and the Foster and Freeman VSC-4c are used in the QDEWill laboratory to reveal alterations, additions, obliterations, erasures, and the presence of multiple inks on documents.

Typewriting is becoming a relic of the past as more people use computers and word processors. A whole new area of document questions involving photocopies, facsimiles and computer printouts is evolving. In order to answer some of these questions, a forensic document examiner must study the characteristics of the whole class of machines, such as photocopiers, and then have access to detailed files, which show the specific characteristics of the output of a specific brand of machine.

In regard to typewriting, individualizing characteristics often develop due to wear or damage to the typing element. This may result in a distinctive appearance to the document, which the examiner can detect through careful observation and measurement. The question most difficult to answer is whether one individual typed a document, and only certain circumstances allow an answer to this question.

In a similar situation to the one above involving office machines, questions about paper require knowledge of the characteristics of paper. The examiner may need to have a library of paper samples at his or her disposal if some questions about paper are to be answered. And, just as in the case of ink dating, in some instances it is necessary to consult a specialist in paper manufacturing. [3]

10. In the fairly recent case of SPOUSES SAMUEL ULEP, etc., et. al. vs. HONORABLE COURT OF APPEALS, et. al., G.R. No. 125254, October 11, 2005, it was held that “due to the technicality of the procedure involved in the examination of forged documents, the expertise of questioned document examiners is usually helpful” and, the accused believes, should, as a rule, be encouraged by the Courts:

. As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence, the burden for which lies on the party alleging it. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized to have been forged.

Here, petitioners’ claim of forgery is unsupported by any substantial evidence other than their own self-serving testimonies. As it were, they failed to present handwriting experts and other persons familiar with the handwriting of the spouses Atinedoro Ulep, his wife Beatriz and sister Valentina Ulep that would show that their signatures appearing in the questioned deed of sale in favor of respondent INC were forged. Due to the technicality of the procedure involved in the examination of forged documents, the expertise of questioned document examiners is usually helpful. These handwriting experts can help determine fundamental, significant differences in writing characteristics between the questioned and the standard or sample specimen signatures, as well as the movement and manner of execution strokes. .

11. In the likewise recent case of PAN PACIFIC INDUSTRIAL SALES CO., INC., PETITIONER, VS. COURT OF APPEALS AND NICOLAS CAPISTRANO, G.R. No. 125283, February 10, 2006, the Supreme Court held bare denial cannot prevail over expert testimonial evidence. The Supreme Court also held therein that “ he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness.”

To support the allegation of the spuriousness of his signature on the Deed of Absolute Sale and that of his wife on the Marital Consent, Capistrano relied heavily on his bare denial, at the same time taking sanctuary behind other circumstances, which supposedly cast doubt on the authenticity of the documents. Capistrano did not bother to present corroborating witnesses much less an independent expert witness who could declare with authority and objectivity that the challenged signatures are forged. .

The case of Chilianchin v. Coquinco also finds application in this regard wherein we stated that:

As the lower court correctly said, the plaintiff did not even present a sample of his authentic signature to support his contention that it is not his the (sic) signature appearing in said document. He did not call a handwriting expert to prove his assertion. His attorney, at the beginning of the trial, made it of record that if the defendant present an expert in hand-writing to show that the signature in question is genuine, the plaintiff will also present an expert to the contrary, as if it were incumbent upon the defendant to show that the signature of the plaintiff in Exhibit A is genuine . . . .

Corollarily, he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness.

On the other hand, the Court cannot understand why an unfavorable inference arose not from Capistrano’s but from Cruz’s failure to have the documents examined by an expert witness of the National Bureau Investigation (NBI) and to present the notary public as witness. Specifically, the courts below took Cruz’s inability to obtain the NBI examination of the documents as he had somehow undertaken as an indication that the documents are counterfeit.

.

WHEREFORE, premises considered, and in the interest of justice, it is respectfully prayed that the ORDER, dated x x xbe RECONSIDERED.

Las Pinas City, September 21, 2007.

LASERNA CUEVA-MERCADER LAW OFFICES

Counsel for the Accused

Unit 15, Star Arcade, C.V. Starr Ave.

Philamlife Village, Las Pinas City 1743

MANUEL J. LASERNA JR.

Roll No. 33640, 4/27/85

IBP Lifetime Member No. 1907

IBP PPLM Chapter

PTR No. 9177856, 1/4/06, Las Pinas City

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[1] See: http://en.wikipedia.org/wiki/Questioned_document_examination (September 21, 2007).

[2] See:

http://www.qdewill.com/modules.php?name=Content&pa=showpage&pid=12 (September 21, 2007)

[3] See:

http://www.qdewill.com/modules.php?name=Content&pa=showpage&pid=2 (September 21, 2007).