The case of the day, Glenwood Systems, Inc. v. Thirugnanam (C.D. Cal. 2012), is a good reminder why you cannot safely leave foreign evidentiary issues to the end of your case. Glenwood was a medical billing company in Connecticut. It sued Venkatesan Thirugnanam and Senthil Sundaresan, software engineers who founded Augment U.S., on a claim of unfair competition. Before trial, Glenwood noticed the deposition of Ram Prassath, the president of Augment India and a resident of India. Prassath failed to appear. Glenwood then moved in limine to exclude Prassath’s testimony at trial, citing FRE 403 and FRCP 37(b)(2). Thirugnanam and Sundaresan responded, correctly, that Glenwood had sought to take Prassath’s deposition in his individual capacity and not under FRCP 30(b)(6), and thus that Glenwood was required to serve Prassath with a subpoena. Indeed, Thirungnanam and Sundaresan said as much to Glenwood but Glenwood failed to fix the problem. And it wasn’t just that Glenwood had failed to serve a subpoena—Prassath was not within the territorial jurisdiction of the court, and thus a subpoena would have been ineffective. Glenwood, had it wanted to compel Prassath’s testimony, would have had to comply with the Hague Evidence Convention, but it took no steps to do so.
It’s even worse than that for Glenwood, I think. Glenwood cited FRE 403 and FRCP 37(b)(2) as grounds for exclusion. Rule 37(b)(2), though, seems clearly inapplicable, since as far as it appears from the decision, Glenwood never moved to compel Prassath’s testimony. Rule 403, which permits exclusion of unduly prejudicial evidence in the judge’s discretion, hardly seems applicable either, since any surprise or other prejudice that would result from Prassath’s testimony was the product of Glenwood’s failure to take the steps necessary to secure his appearance during discovery.