Magnesium Corporation of America v. The Renco Group, Inc.
1:13-cv-07948
S.D.N.Y.Aug 25, 2014Background
- Trustee seeks to compel live testimony from five witnesses during trial; Defendants move for protective order under Rule 45(c)(1) to bar live testimony beyond 100 miles.
- Five witnesses (Michael Legge, Ron Thayer, Tom Tripp, Howard Kaplan, Todd Ogaard) are located in Utah or Nevada and are expected to testify in Defendants' case in chief.
- Defendants argue Rule 45(c)(1) prevents trial attendance of distant witnesses, advocating deposition-only testimony.
- Court rejects defense position, holding that witnesses must be available for the Trustee’s case if they are to testify live, or both sides rely on deposition testimony.
- Court plans trial structure so each witness testifies once, allowing both sides to elicit live testimony during their respective cases in chief.
- Rule 611(a) authority is cited to justify controlling witness examination, and post-amendment Rule 45(c)(1) relevance is discussed but amendments not dispositive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 45(c)(1) prevents live trial testimony from distant witnesses | Trustee argues Rule 45(c)(1) does not bar live testimony if witnesses are at trial. | Defendants contend Rule 45(c)(1) bars compelling distant witnesses to testify at trial. | No; live testimony permitted if witnesses available for Trustee's case. |
| Who may elicit live testimony from witnesses beyond subpoena power | Trustee seeks live testimony for accuracy and demeanor; both sides should have opportunity. | Defendants prefer deposition-only or one-sided live testimony benefit. | Both sides may elicit live testimony; witnesses must testify for Trustee unless unavailable, then deposition used by both sides. |
| Authority to control witness examination and impact of amendments to Rule 45(c)(1) | Rule 611(a) and policy favor live testimony; amendments align with limiting unfairness. | Amendments resolve splits but do not undermine authority to limit trial testimony for distant witnesses. | Court may prevent one-sided live testimony consistent with Rule 611(a); amendments not controlling here. |
Key Cases Cited
- In re Gulf Oil/Cities Serv. Tender Offer Litig., 776 F. Supp. 838 (S.D.N.Y. 1991) (if witness absent in plaintiffs' case, testimony may be excluded)
- R.B. Matthews, Inc. v. Transam. Transp. Servs., Inc., 945 F.2d 269 (9th Cir. 1991) (cannot limit cross-examination by excluding live witnesses; deposition used if needed)
- Napier v. Bossard, 102 F.2d 467 (2d Cir. 1939) (deposition is substitute, not preferred when live testimony is available)