Moonbug Entertainment Limited v. Babybus Network Technology Co., Ltd

Background

After Babybus Co., Ltd. and Babybus (Fujian) Network Technology Co., Ltd. made conflicting statements about whether they would call Naiyong Yan as a live trial witness, Moonbug Entertainment Limited and Treasure Studio, Inc. filed an administrative motion to compel his attendance and testimony. Moonbug argued that Babybus had repeatedly represented that Yan would testify live and that his credibility and testimony were important to the case.

Why the Court Could Not Compel Attendance

The court held that it could not compel Yan’s attendance without a subpoena, and no subpoena had been issued. It also held that it lacked authority to issue one because Yan lived and worked in China, while the trial was in San Francisco, California. Under Federal Rule of Civil Procedure 45(c), a trial subpoena generally may reach only a person within 100 miles of the place where the person lives, works, or regularly conducts in-person business, or within the person’s state under specified circumstances.

The court rejected the argument that Yan’s status as a corporate officer or as Babybus’s designated witness under Rule 30(b)(6) expanded the subpoena power. The geographic limits applied regardless of his position.

Adverse Inference

Although the court could not compel Yan to attend, it warned that it would give the jury an adverse-inference, or missing-witness, instruction if Babybus did not call him live. Such an instruction allows a jury to draw an unfavorable inference from a party’s failure to call a witness when the witness is especially within that party’s control and an unfavorable inference is reasonable.

The court found those conditions satisfied. Babybus had originally intended to call Yan, and the court considered him available, central to the events and documents at issue, and important to the case because he was identified as Babybus’s co-founder, managing agent, owner, Head of the Video Business Department, and Rule 30(b)(6) designee. The court stated that the jury could be instructed that Yan’s absence supported possible conclusions concerning allegedly fabricated evidence, his availability, inconsistencies with Babybus’s independent-development theory, and whether false information in copyright-law counternotifications was submitted knowingly and in bad faith.

Disposition

The court DENIED Moonbug’s administrative motion to compel Naiyong Yan’s attendance and testimony, Docket No. 416. It stated that, if Yan did not appear at trial, the jury would receive the adverse-inference instruction described in the order. The order disposed of Docket No. 416.