Keeper of records

ilovemydogs · 05-07-2007, 08:01 PM

Well when I got home there was a letter from CA about our case. They have under their list of witnessess "Keeper of the records for the plaintiff.
Me
Then it reads Plaintiff does not intend on calling any expert witnesses.
Now this to me means they do not intend to bring this KEEPER clear across country. Also I remember TR saying something about what to do in attack mode on this, as this person would have had to have been there when the account was open, and would have had to personally see the account when opened and charges were done.
What do you folks think, and what can I do to go about attacking this "witness", if he/she comes to court?

ILMD

hannah · 05-07-2007, 08:05 PM

In order to know exactly what the witness would testify to, I would depose her/him. Are you in federal or state court? I can't remember.

ilovemydogs · 05-07-2007, 08:18 PM

Quote:

Originally Posted by hannah

In order to know exactly what the witness would testify to, I would depose her/him. Are you in federal or state court? I can't remember.

I am in State court. They do not mention any name of the KEEPER,but there is an address.
AS for doing a deposition, how would I do this? This was all for the pretrial memorandum
Thanks Hannah
ILMD

hannah · 05-07-2007, 09:14 PM

Quote:

Originally Posted by ilovemydogs

I am in State court. They do not mention any name of the KEEPER,but there is an address.
AS for doing a deposition, how would I do this? This was all for the pretrial memorandum
Thanks Hannah
ILMD

Depending on your RCP's, you would need to set this up, with permission of the court, with the opposing attorney. You could bring the witness to you or go to them. Either way you will have to pay for the expense of it. A deposition is a tool used in pretrial discovery where one party questions the other party or a witness in the case. It is usually conducted in an attorney's office and it requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. I watched a trial recently where the depositions were conducted in front of the judge presiding over the case and the court absorbed the cost of the court reporter but charged out the whazoo for the transcript.

Check your state RCP's for exactly how your court will want a deposition conducted as it may differ from state to state.

Have you sent out your interrogatories to them yet? If not, ask them to provide the names of ALL witnesses that will be testifying and their addresses. If they don't comply, then you can motion the to compel them to. You may not need to depose. Did they attach an affidavit from anyone to the complaint?

ilovemydogs · 05-07-2007, 09:42 PM

Quote:

Originally Posted by hannah

Depending on your RCP's, you would need to set this up, with permission of the court, with the opposing attorney. You could bring the witness to you or go to them. Either way you will have to pay for the expense of it. A deposition is a tool used in pretrial discovery where one party questions the other party or a witness in the case. It is usually conducted in an attorney's office and it requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. I watched a trial recently where the depositions were conducted in front of the judge presiding over the case and the court absorbed the cost of the court reporter but charged out the whazoo for the transcript.

Check your state RCP's for exactly how your court will want a deposition conducted as it may differ from state to state.

Have you sent out your interrogatories to them yet? If not, ask them to provide the names of ALL witnesses that will be testifying and their addresses. If they don't comply, then you can motion the to compel them to. You may not need to depose. Did they attach an affidavit from anyone to the complaint?

I know what a deposition is, I just thought you had another way of doing it ; ) as I am not about to go to the witness and I am not about to pay for her/him to come here. Years ago, when a CA tried to pull this, I remmber TR telling of a way that they could not get the affidavit in as testomony as it was heresay. This person unless she/he worked at the company 20 years ago could NOT testify to the fact that I opened an account.No then did not attach any affadavit in the summons. Seems like the only witness they are saying they have is me and the keeper of records which they are not bringing to testify.

ILMD

hannah · 05-07-2007, 09:52 PM

I am not sure they can make you testify. Will this be a bench trial or jury?

ilovemydogs · 05-07-2007, 09:55 PM

Quote:

Originally Posted by hannah

I am not sure they can make you testify. Will this be a bench trial or jury?

Bench

ILMD

hannah · 05-07-2007, 09:58 PM

How close to being OOS?

Enigma · 05-07-2007, 11:35 PM

Look to your state laws and rules for what is hearsay.

centex · 05-08-2007, 11:08 AM

A custodian ("keeper") of records is not generally considered an expert witness. Experts are more along the lines of hired guns that come into discuss elements of a case. As an example, when I am hired to testify on certain risk assessments related to sentencing, I am in the list of experts.

ilovemydogs · 05-08-2007, 03:43 PM

Quote:

Originally Posted by centex

A custodian ("keeper") of records is not generally considered an expert witness. Experts are more along the lines of hired guns that come into discuss elements of a case. As an example, when I am hired to testify on certain risk assessments related to sentencing, I am in the list of experts.

Thanks centex for clearing this up for me. I doubt they are flying in the KEEPER,and will produce an affidavit instead. Now as far as this goes, how do I deal with the affidavit?
What say you?

ILMD

hannah · 05-08-2007, 03:58 PM

Quote:

Originally Posted by ilovemydogs

Thanks centex for clearing this up for me. I doubt they are flying in the KEEPER,and will produce an affidavit instead. Now as far as this goes, how do I deal with the affidavit?
What say you?

ILMD

Unless they plan to bring the affiant to court to testify, you can probably get it stricken as hearsay. As Enigma says, look to your state rules of evidence. Here you would do so as a motion to strike. Here an affidavit without an affiant testifying is hearsay.

ilovemydogs · 05-08-2007, 04:00 PM

Quote:

Originally Posted by hannah

Unless they plan to bring the affiant to court to testify, you can probably get it stricken as hearsay. As Enigma says, look to your state rules of evidence. Here you would do so as a motion to strike. Here an affidavit without an affiant testifying is hearsay.

Yup that is what I was looking for, as I did this in another case, but I forgot.

Thanks
ILMD