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TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Yesterday you recommended that I amend my Answer to the Original

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Yesterday you recommended that I amend my Answer to the Original Complaint = "... amend your answer to assert a 'waiver' defense. The waiver defense would say: Plaintiff has waived all or at least part of the claims asserted in its complaint..." I am filing my Motion for Sanctions (Spoliation), should I keep my Amended Answer pleading separate ?
If your original Answer contained waiver as an affirmative defense, then there is no need to amend as I suggested. Sorry for the confusion.
Customer: replied 4 years ago.

Not a problem... so, let's address my "real" problem - the primary witness is nowhere to be found (probably back in Vietnam) - the Plaintiff claims the communications/ contract negotiations/ etc with the primary witness (which would support our Counterclaims & invalidate their claims) are all "lost" - so, is there anything I can do with regards XXXXX XXXXX missing 3rd party ? (as we discussed I will be filing a Motion for Sanctions: Spoliation of Evidence)

This is a problem.

If the witness will not voluntarily provide you with a statement, then you have to force him to submit to an examination under oath.

Vietnam is a signatory to the Hague Convention which allows you to take evidence of a person there under a judicial order from the US.

The process for accomplishing this is incredibly expensive and time consuming though. In other words, you have to file a motion for "letters rogatory" with the Hawai'i court and then take those to a lawyer in Vietnam who then files the letters with the court there and has an order issued commanding the person to appear and give testimony. You would then record the testimony by video and use it in your trial.

I'm assuming that this probably is not an option, so the real question is do you know where in Vietnam this person is and do you think that they would cooperate with a request to give a statement?
Customer: replied 4 years ago.

Not sure they would give a statement, even if I could find them - they didn't want to get involved... IF I do locate them, do I need to Subpoena them for a deposition ? Can I have a professional take a transcript via Skype ?

Subpoenaing them for a deposition is what I'm talking about above, with the Hague Conference.

Even if he agrees to voluntarily go along with a deposition, if you notice the deposition you will have to give the other side an opportunity to question him. Since he is outside the jurisdiction of the court, what would be smarter would be to get him to voluntarily give you a sworn statement under oath, which can be done over skype usually. The statement would have the same effect as an affidavit, except that it would be something you could use in court in place of his testimony.
Customer: replied 4 years ago.

Does this have to be done by a certified court reporter, or ?

There are two ways to go about it.

You could do it yourself (record the conversation and then turn it into a transcript) but then you would have to send him the transcript and get him to sign it and send it back.

Or you could get a certified court reporter to take the statement.
Customer: replied 4 years ago.

IF we could convince him to help, I'm assuming he could just write a sworn statement/ affidavit and simply have it notarized - BUT, what can usually be done to legally/ ethically convince - or motivate - a witness to give a statement ?

You could do that too.

Talk to him on the phone, tell him you are going to write out an affidavit. Send it to him by email and ask him to go sign it in front of a notary.

In fact, because he is in a foreign country, you can even just put a statement on it that "this affidavit is being signed under the penalty of perjury pursuant to the Federal Rules of Civil Procedure" and then have him sign it. A notarized affidavit would be better though if he can find a notary in Vietnam.
Customer: replied 4 years ago.

OK, and what can usually be done to legally/ ethically convince - or motivate - a witness to give a statement ? I'm assuming it is also common for opposing counsel to have this statement stricken/ inadmissable - what can we do to help make sure the witness statement will be admissable ?

The statement needs to only contain things that are within the witnesses personal knowledge, that are statements of fact and not statements of opinion, and that do not contain hearsay.

The statements must also have a proper foundation. In other words the statement must explain how he knows what is being said on all the facts he is stating.

If you follow these guidelines, that will be your best shot for having the statement remain admissible.
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Customer: replied 4 years ago.

OK, and FYI, the statement from this witness will turn the case and absolutely support our claims against the Plaintiff of Misrepresentation/ Fraud/ etc - so, I want to make sure we get the statement & it "sticks" at Trial - in fact, if we had the statement, we believe the Plaintiff would settle immediately (they have even indicated this themselves)... is there something I could say that would "motivate" the witness to tell the truth and make a statement when they are intimidated by the $18 Bill Plaintiff and their law firm ?