Cerveceria Modelo de Mexico, S. de R.L. de C.V. v. CB Brand Strategies, LLC
- Lewis Kaplan
- 1:21-cv-01317
- U.S. District Court · Southern District of New York
- 2
Cerveceria Modelo v. CB Brand Strategies: Judge Kaplan denied Modelo’s request to compel Constellation to produce former executive Ann Legan for live trial testimony.
The ruling directly affected Modelo, Constellation, and the parties’ ability to present Ann Legan’s testimony at trial. Legan was not compelled to appear live, and the parties were directed to rely on her deposition unless they resolved the issue.
What happened
In Cerveceria Modelo de México, S. de R.L. de C.V. v. CB Brand Strategies, LLC, Modelo asked the court to require Constellation to make Ann Legan, a former senior Constellation executive, available to testify live during Modelo’s part of the trial. Constellation had initially listed Legan as a witness but later withdrew her after Modelo asked to question her.
The court denied the request. It explained that under Federal Rule of Civil Procedure 45(c)(1), the court had no other way to compel Legan’s personal appearance once defendants said they would not call her live. The court said both sides would instead have to rely on Legan’s deposition testimony and allowed Modelo to request a jury instruction about a possible adverse inference based on defendants’ handling of Legan’s trial appearance, subject to further filings.
Judge Lewis A. Kaplan also noted that Legan had appeared for a deposition without a subpoena, had been represented by defendants’ counsel, and had previously been identified as someone defendants would produce at trial. The court further noted that plaintiffs had months to seek rulings on disputed privilege objections during the deposition but had not done so.
The detailed version
- Cerveceria Modelo de Mexico, S. de R.L. de C.V. v. CB Brand Strategies, LLC · No. 1:21-cv-01317
- Lewis Kaplan
- Feb. 24, 2023
Background
Modelo asked the court to compel Constellation to produce Ann Legan, Constellation’s former Vice President for Brand Marketing, Corona Brands, for live testimony during Modelo’s case-in-chief at trial. The parties had exchanged witness lists. Constellation initially identified Legan as a witness it would call, but told Modelo that it would make her available only during defendants’ case. After Modelo sought the same opportunity to examine Legan, Constellation withdrew her from its witness list and stated that she would not testify live at trial.
Modelo argued that Constellation should be required to produce Legan because she was a former senior Constellation executive, had appeared for a deposition without a subpoena at Constellation’s behest, and had been represented by defendants’ counsel. The opinion also states that defendants had previously said they would cause Legan to testify live in exchange for a concession by plaintiffs on another issue, while also stating that defendants did not control her.
Ruling
The court denied the motion. Relying on Federal Rule of Civil Procedure 45(c)(1), the court stated that because defendants’ position was that they would not call Legan live at trial, it had no other means to compel her personal appearance. The court cited a prior related proceeding involving a similar issue.
The court stated that both sides would therefore have to rely on Legan’s deposition testimony. That deposition had been repeatedly interrupted by privilege objections, some of which the court said were arguably inappropriate, along with instructions from defendants’ counsel that Legan not answer.
The court did not decide whether the jury should draw an adverse inference. Instead, it allowed plaintiffs, if the parties did not resolve the disagreement about Legan’s appearance, to file a request for an instruction that the jury could—but would not have to—draw an adverse inference from defendants’ actions. Plaintiffs could also request judicial notice of relevant facts or an amendment to the joint pretrial order. Defendants were given an opportunity to respond.
Additional Observation
The court noted that Legan was a former senior executive of Constellation, had voluntarily appeared for her deposition without a subpoena, and had been represented by defendants’ counsel. It also noted that defendants had previously stated that they would produce her for live testimony. The court added that both sides were at fault to some extent because plaintiffs had months to seek rulings on challenged privilege assertions but did not do so.
Judge Lewis A. Kaplan entered the memorandum endorsement denying the motion.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.