Au New Haven, LLC v. YKK Corporation

Background

The case involved a bifurcated trial. A first trial in January 2023 addressed the meaning of an ambiguous phrase in the parties’ licensing agreement. A second trial, concerning liability and damages, was scheduled to begin on July 31, 2023.

Before the first trial, plaintiffs Au New Haven, LLC and Trelleborg Coated Systems US, Inc. sought to serve trial subpoenas on two prospective defense witnesses: Masayuki Sarumaru and Terrence McCullough. The defendants were YKK Corporation and several subsidiaries. Defendants moved to quash the subpoenas under Federal Rule of Civil Procedure 45(c), arguing that the witnesses were outside the court’s subpoena power. Plaintiffs conceded that they could not establish that the subpoenas were valid and withdrew them.

Plaintiffs nevertheless filed a cross-motion under Federal Rule of Evidence 611(a). They asked the court to prevent defendants from presenting live testimony from any witness defendants would not make available for questioning during plaintiffs’ case-in-chief.

Motion for reconsideration

The court first rejected defendants’ argument that plaintiffs’ cross-motion was an untimely motion for reconsideration. The court explained that its earlier discussions concerned whether it could compel witnesses to attend or testify under Rule 45(c). Plaintiffs’ new request concerned the court’s separate authority under Rule 611(a) to control the presentation of evidence and potentially preclude a party from calling a witness who was not made available to the opposing party.

Because the issue had not previously been decided, the court considered the cross-motion anew rather than under the standards governing reconsideration.

Rule 611(a) request

Rule 611(a) gives a trial court authority over the way and order in which witnesses testify and evidence is presented. The rule permits the court to make proceedings effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment. The court recognized that this authority can include barring a party from calling a witness live when the party refused a reasonable request to produce that witness for the opposing side.

The court nevertheless declined to use that authority here. It identified several reasons:

- Routinely granting such requests could create a moral hazard in discovery. Parties might avoid taking depositions seriously and instead rely on Rule 611(a) to obtain live access to witnesses whom their opponents were likely to call. - That practice could effectively evade Rule 45(c)’s geographic limits on compelled witness attendance and excuse a party’s failure to secure testimony through depositions or other discovery. - Plaintiffs’ request was broad. It covered any defense witness that defendants did not make available, rather than a specified group of identified witnesses. Because neither side had committed to calling particular witnesses, the court could not reliably assess the request’s effect on the trial. - The proposed procedure could cause witnesses to be called twice or could move much of defendants’ affirmative case into plaintiffs’ case-in-chief, potentially creating unfairness and confusion. - In this case, discovery had been lengthy and had been reopened for additional depositions. The court stated that granting the request could allow plaintiffs to use defense witnesses to cure gaps in plaintiffs’ development of admissible evidence during discovery.

The court also concluded that denying the cross-motion would not prevent the jury from hearing important evidence. Plaintiffs could cross-examine witnesses whom defendants called. Under Rule 611(b), the court could also allow questioning beyond the ordinary scope of cross-examination if important additional matters needed to be explored. The court viewed that approach as more efficient and as avoiding the discovery-related concerns raised by plaintiffs’ request.

Disposition

The court denied plaintiffs’ cross-motion. It directed the clerk to terminate the motion pending at Dkt. No. 920. The opinion does not separately state that defendants’ motion to quash was granted or denied; it records that plaintiffs withdrew the subpoenas after conceding that they were invalid.

Judge Gregory H. Woods entered the order on May 2, 2023.