- 66 -
ference rule, notwithstanding her alleged residence in Hong
Kong.45
We turn now to the requirement of the adverse inference rule
that an uncalled witness not only must be within a party's power
to produce but also must be "peculiarly" within that party's
power to produce before such an inference may be drawn against
that party. See United States v. Rollins, 862 F.2d at 1297-1298.
If a witness is "equally available" to both parties and neither
calls that witness at trial, no adverse inference is warranted.
See Kean v. Commissioner, 469 F.2d 1183, 1188 (9th Cir. 1972),
affg. in part, revg. in part 51 T.C. 337 (1968). For this
purpose, an uncalled witness is not equally available to the
party requesting that the inference be drawn against the other
party, and thus is peculiarly within the other party's power to
produce, where that witness' relationship to that other party is
such that the witness is likely to favor that other party. See
id.; McClanahan v. United States, 230 F.2d 919, 925 (5th Cir.
1956).
45 In addition to petitioner's close and amicable business and
family relationships with Mme. Koo, it is noteworthy that al-
though petitioner did not attempt to depose Mme. Koo prior to
trial, on May 10, 1994, well after these cases were submitted and
after the parties had filed their briefs, petitioner (1) filed a
motion to reopen the record that the Court denied by order dated
May 26, 1994, and (2) lodged an application to take the deposi-
tion of Mme. Koo in Hong Kong. Thus, Mme. Koo was willing to be
deposed for purposes of these cases after the trial herein and
after respondent's opening brief advancing the adverse inference
rule with respect to Mme. Koo had been served on petitioner.
Page: Previous 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 NextLast modified: May 25, 2011