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Left to right: Lee R. Crain and James L. Hallowell of Gibson Dunn & Crutcher

Does a nonresident officer’s prior service to a Delaware corporation allow the Delaware courts to compel her to appear to testify at trial as a third-party witness? What if that officer’s testimony—and credibility—was critical to the case? These are the questions that the stockholder plaintiffs put to Vice Chancellor J. Travis Laster in In re PLX Technology Stockholders Litigation, C.A. No. 9880-VCL (Del. Ch.). The vice chancellor refused to compel such an appearance—even where issues of credibility are paramount. Thus, practitioners in Delaware preparing cases for trial must recognize that the deposition of a nonresident, former corporate officer may well be the only chance an opposing advocate has to elicit and present testimony for use at trial, even from witness that all parties concede is critical to the case.

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