Moonbug Entertainment Limited v. Babybus (Fujian) Network Technology Co., Ltd

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 MOONBUG ENTERTAINMENT Case No. 21-cv-06536-EMC LIMITED, et al., — 8 — Plaintiffs, ORDER DENYING PLAINTIFFS’ 9 MOTION TO COMPEL NAIYONG v. YAN’S ATTENDANCE AND 10 TESTIMONY AT TRIAL BABYBUS (FUJIAN) NETWORK 11 TECHNOLOGY CO., LTD, et al., Docket No. 416 12 Defendants. — 13 — — 14 — 15 On June 23, 2023, following representations by Defendants BabyBus Co., Ltd. and 16 BabyBus (Fujian) Network Technology Co., Ltd. (“BabyBus Tech.”) (collectively, “BabyBus”) 17 that they would call their witness Mr. Naiyong Yan as a live witness at trial, Babybus made 18 ambiguous statements on whether they intended to do so. Compare Docket No. 237 at 4 (Babybus 19 stating that Mr. Yan “will testify live at trial”) with Docket No. 417-1 Exh. A (Declaration of 20 Chieh Tung) (Babybus stating that Mr. Yan “may not be physically present for trial”). Plaintiffs 21 Moonbug Entertainment Limited and Treasure Studio, Inc. (collectively, “Moonbug”) filed an 22 Administrative Motion to Compel Naiyong Yan’s Attendance and Testimony. Docket No. 416. 23 Moonbug argues that because Babybus has repeatedly represented that it would bring Mr. Yan to 24 trial as a live witness and, given the importance of his credibility and testimony, Babybus should 25 be ordered to procure Mr. Yan’s attendance at trial. Id. At the Court’s request, Babybus filed an 26 opposition to the motion and Moonbug a reply. Docket Nos. 421, 427. — 27 — 1 I. DISCUSSION 2 A. Subpoena 3 Without a subpoena, the Court cannot compel Mr. Yan’s attendance. No subpoena has 4 been issued in this case. See Hardisty v. Moore, 2014 WL 4472718 , at *1 (S.D. Cal. Sept. 10, 5 2014) (“The Court does not . . . have authority to compel the attendance of Defendants at trial 6 absent service of trial subpoenas.”). 7 This court cannot issue a subpoena over Mr. Yan because he is outside the jurisdiction of 8 this Court. Under the Federal Rules of Civil Procedure Rule 45(c), a court “may command a 9 person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the 10 person resides, is employed, or regularly transacts business in person; or (B) within the state where 11 the person resides, is employed, or regularly transacts business in person, if the person (i) is a 12 party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial 13 expense.” Fed. R. Civ. Proc. 45(c); see also Ashton Woods Holdings L.L.C. v. USG Corp., No. 14 15-CV-01247-HSG, 2021 WL 8084334 , at *1 (N.D. Cal. Apr. 5, 2021). As Babybus explained, 15 Mr. Yan lives and works in China. This trial is held in San Francisco, California, which is not 16 within 100 miles of where Mr. Yan resides, is employed, or regularly transacts business in person. 17 Neither is this trial in the same state as where Mr. Yan resides, is employed, or regularly transacts 18 business in person. Moonbug provides no factual rebuttal to the assertion that Mr. Yan “resides in 19 China” and thus “outside the Court’s subpoena power.” Repl. at 2. And “Rule 45 contains no 20 exception that would permit the Court to decree that out-of-state witnesses are within 100 miles of 21 a trial in [San Francisco], California because streaming facilities exist in their states, and the fact 22 that the witnesses at issue are beyond that radius and unwilling to travel voluntarily to this district 23 to testify disposes of Plaintiffs’ motion.” Ashton Woods, at *1. 24 The fact that Mr. Yan is a corporate officer does not mean he can be subpoenaed to attend 25 trial. The Rule 45 Amendments confirm the geographic limits of Rule 45, as explained above, 26 apply regardless of a witness’s status as an officer. See Fed. R. Civ. P. 45(c), Adv. Com. Notes to 27 2013 Am. (“These changes resolve a conflict that arose after the 1991 amendment about a court’s 1 testimony may now be required only as specified in new Rule 45(c).”); 9A Charles Alan Wright et 2 al., Fed. Prac. & Proc. Civ. § 2454 (3d ed.) (“The 2013 amendments make clear that all subpoenas 3 are subject to the geographical limitations of the new Rule 45(c).”). 4 The fact that Mr. Yan is a 30(b)(6) designee does not alter the reach of the court’s 5 subpoena power. See Adde Issagholi v. McLaren Auto., Inc. et al, 2021 WL 4352297 , at *1 (C.D. 6 Cal. July 9, 2021) (“Dahlberg’s previous status as the Rule 30(b)(6) witness does not render the 7 geographical limits of Rule 45(c) inapplicable to this trial subpoena.”). 8 B. Adverse Inference 9 However, if Mr. Yan does not appear at trial, the Court will give an adverse inference 10 instruction to the jury. A “missing witness instruction” permits the court to instruct the jury that 11 they may “draw an adverse inference from a party’s failure to call a witness.” United States v. 12 Crawford, 142 F. App’x 295, 296 (9th Cir. 2005); United States v. Bramble, 680 F.2d 590 , 591 13 (9th Cir. 1982); see also United States v. Ramirez, 714 F.3d 1134, 1136 (9th Cir. 2013) 14 (describing, for instance, that a missing witness instruction could inform the jury that it could 15 “conclude that the government did not call [the missing witness] as a witness because his 16 testimony would have hurt the government case”). “A missing witness instruction is appropriate if 17 two requirements are met: (1) the party seeking the instruction must show that the witness is 18 peculiarly within the power of the other party and (2) under the circumstances, an inference of 19 unfavorable testimony against the non-moving party from an absent witness is a natural and 20 reasonable one.” Id. at 1137 (cleaned up). Given that Babybus originally intended to call Mr. Yan 21 at trial, it is clear that Mr. Yan is peculiarly within the power of Babybus. Given Mr. Yan’s 22 importance to the events and documents at issue in trial, it would be a natural and reasonable 23 inference to weigh his absence against Babybus’ case if Babybus fails to call him live at trial. 24 In this case, Mr. Yan’s testimony and credibility are central to this case. He is the co25 founder, managing agent, owner, Head of the Video Business Department, and 30(b)(6) designee 26 of Babybus and has personal knowledge as to the claims and issues here. See, e.g., Docket No. 27 307-11 (DMCA counternotification signed by Mr. Yan, relevant to Moonbug’s copyright 1 Doudou, the authenticity of which the parties vigorously dispute); Docket No. 394 at 1 (the Court 2 explaining that the “resolution of this issue [of the authenticity of the Doudou image] hinges upon 3 the credibility of witnesses and factual evidence to be presented at trial”). Moreover, Mr. Yan is 4 clearly available as a witness, evidenced by the fact that Babybus had originally intended to call 5 him live at trial. See Docket No. 237 at 3 n.2 (Babybus stating that “BabyBus . . . has repeatedly 6 stated that it intends to call all of the witnesses on its witness list, and it intends to call them live”) 7 (emphasis in original). Babybus has now chosen not to call Mr. Yan. Docket No. 421 at 5 8 (Babybus explaining that it “narrowed its list of ‘must have’ witnesses and provided Moonbug 9 with an updated list ‘in light of the Court’s recent time restrictions and pretrial orders’”). Given 10 Mr. Yan’s high position in Babybus, his central role in the matters at trial, and the importance of 11 his credibility to the case, an inference of unfavorable testimony from his absence is a “natural and 12 reasonable one.” 13 Thus, the Court warns Babybus that it intends to give an adverse inference instruction if 14 Mr. Yan is not called. The jury will be instructed that it may conclude that Mr. Yan was accused 15 of submitting fabricated evidence to the Court relating to Babybus’ theory of independent 16 development, that Babybus chose to not make Mr. Yan available at trial despite his availability, 17 that Mr. Yan’s testimony may have been inconsistent with Babybus’ independent development 18 theory, and that Mr. Yan’s submission of false information in the DMCA counternotifications may 19 have been made knowingly and in bad faith. 20 II. CONCLUSION 21 The Court thus DENIES Moonbug’s Administrative Motion to Compel Naiyong Yan's 22 Attendance and Testimony. Docket No. 416. However, if Mr. Yan does not appear at trial, an 23 adverse inference will be given to the jury, as described above. 24 This order disposes of Docket No. 416. 25 IT IS SO ORDERED. 26 Dated: June 28, 2023 27 ______________________________________