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October 28, 2005

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YGB

Great entry. A couple of things I might add. First, it is helpful to get the pedigree of the witness as it relates to the action. That is, if the witness were, for example, an employee of the opponent's corp. at the time of the events relevant to the action, what was the title and responsibilities of the witness asked in such a way that if the testimony must come in by designation, there is a context for the jury to frame the designated testimony. Second, my practice often involves witnesses located outside of the district in which the action takes place, I always ask the witnesses residence and if the witness expects to change residence, so that I will be able to establish whether the witness is outside the 100 mile bubble for the trial subpoenas.

YGB

Also, I ask if the witness has reviewed any documents in preparation or was shown any documents, whether any of those documents refreshed the witnesses recollection relating to events, actions, etc. and if so I ask to have the idebtity of those documents and for their [roduction if not already produced (the last questions can be asked after eliciting specific testimony relating to the case) -- as the documents refreshed recollection, I arfue that their identity and content are discoverable.

Also, it is often good to ask for the amount of time taken in preparing and the names of those with whom preparation was done -- if one is feeling frisky or the defending attorney inattentive, you might even ask what was discussed -- if no objection of priviledge is made, you might get some good stuff or even a waiver. The amount of time may be useful for impeachment if long and if the witness is a 30(b)(6) representative, useful in a motion to compel if very short, etc.

The identity of those present during prep may be useful for example, with companies with foreign parents or subs, or where the ownership arrangement with a parent is appropriate or with joint defendants -- the presence of counsel or representatives from a sub or parent or codefendant may imply a waiver of attorney-client. If this seems likely out of the box, I might push a phone conference with the judge/magistrate on the spot for a variety of reasons.

Evan

Some good additions. Thanks.

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