Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 1 of 20
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`IN RE CAPACITORS ANTITRUST
`LITIGATION
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`THIS DOCUMENT RELATES TO: THE
`DIRECT PURCHASER CLASS ACTION
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`Master File No. 3:17-md-02801-JD
`Case No. 3:14-cv-03264-JD
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`JOINT PRETRIAL CONFERENCE
`STATEMENT
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`Date: November 23, 2020
`Time: 11:00 a.m.
`Place: Zoomgov.com
`Judge: The Honorable James Donato
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`Master File No. 3:17-md-02801-JD
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 2 of 20
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`In advance of the pretrial status conference to be held on November 23, 2020 at 11:00 a.m., the
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`Direct Purchaser Class (the “Class” or “Plaintiffs”) and undersigned Defendants hereby submit this
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`Joint Pretrial Conference Statement.
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`I.
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`Defendants’ Request for Adjournment of January 19, 2021 Trial Date Based on Current
`Surge in COVID-19 Cases
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`a.
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`Defendants’ Position
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`Defendants respectfully request that the Court adjourn the currently-scheduled January 19, 2021
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`trial date in light of the recent surge in COVID-19 cases and the resulting implications for trial
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`preparation and trial itself. Defendants propose a status conference in January to set a trial date based
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`on information that will be available at the time.
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` The situation with COVID-19 is undoubtedly worsening across the country, and we believe it is
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`increasingly clear that a trial in January will at a minimum create exceptional complications that make
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`trial virtually impossible, and at worst present a significant and unnecessary risk to all of the trial
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`participants and to the broader community. Having already started and stopped trial once, we
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`respectfully believe the prudent and proper course is to protect the parties and the court from the costs
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`of another false start by adjourning the trial until a time, likely in the Spring or Summer of 2021, when
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`trial can be held without the complications present at this time, and without risk to witnesses, lawyers,
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`court personnel and jurors.
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` Not surprisingly given data emerging from the Center for Disease Control, and despite efforts to
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`take precautions,1 many courts around the country have in the last week alone decided to halt in-person
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`1
`Although Courts around the country have tried to implement safety protocols that would allow
`for in-person court appearances, those safety protocols have proven less-than-fully effective, with a
`number of COVID cases being linked to courtroom appearances. See, e.g.,,
`https://www.natlawreview.com/article/it-s-dangerous-out-there-covid-19-texas-court (multiple trial
`participants, including a juror and a lawyer, contract COVID-19 in federal court in Texas);
`https://kfdm.com/news/local/developing-juror-tests-positive-for-covid-in-first-in-person-jury-trial
`(juror tests positive resulting in a mistrial in Jefferson County, Texas);
`https://www.heraldonline.com/news/local/crime/article247245404.html (member of a jury pool in
`South Carolina diagnosed with COVID-19);
`https://www.azfamily.com/news/continuing_coverage/coronavirus_coverage/bailiff-who-tests-
`positive-for-covid-19-potentially-exposes-prospective-jurors/article_1df6dd42-255f-11eb-9994-
`034ea3c6af49.html (bailiff in Arizona tested positive and potentially exposed jurors to COVID-19).
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 3 of 20
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`jury trials.2 Each of California (where the trial will take place), and New York and the Washington D.C.
`area (where counsel for defendants reside) are currently seeing rising COVID infection rates.3
`The Situation in California
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`As the Court is no doubt aware, COVID-19 is surging in California. California passed the
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`1 million COVID-19 infection mark last week and the daily average as of November 17, 2020 is 8,783 –
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`an increase of 102% from the average two weeks earlier.4 As a result, the Governor has imposed new
`restrictions, including moving San Francisco county from the “yellow tier” to the “red tier” within the
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`last week, and banning indoor dining and reducing facility capacity to 25%.5 In addition, California is
`strongly urging all individuals arriving from out-of-state to quarantine for 14 days upon arrival, an
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`obligation that would require multiple defense counsel to either ignore their obligations to quarantine or
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`travel to California (and be away from home during particularly difficult times) far sooner than we
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`otherwise would.6 California has issued Guidance for Private Gatherings that prohibit gatherings that
`include more than three households and recommends that indoor gatherings should be two hours or
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`2
`See, e.g., https://abc7ny.com/new-york-court-jury-service-covid-19-ny-coronavirus-in/7926957/
`(no new jury trials in New York State courts as of Nov. 16, 2020);
`https://delawarestatenews.net/news/jury-trials-postponed-statewide-due-to-covid-19-concerns/ (same
`regarding Delaware); https://www.nj.com/coronavirus/2020/11/nj-suspends-jury-trials-in-person-
`grand-jury-sessions-as-covid-19-cases-climb.html (same regarding New Jersey);
`https://www.msn.com/en-us/news/crime/federal-court-suspends-in-person-jury-trials-naturalizations-
`due-to-covid-19-spread/ar-BB1aZV9f (U.S. District Court for the Southern District of Indiana halts jury
`trials at least through January 25, 2021).
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` 3
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`The risks of COVID-19, as the Court is aware, are significant. One central member of the
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`defense counsel team is immunocompromised, putting that individual at an even higher risk of severe
`consequences, should that individual contract COVID-19. https://www.cdc.gov/coronavirus/2019-
`ncov/need-extra-precautions/immunocompromised.html. Another member of the defense counsel
`team is a caretaker for an immunocompromised individual.
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` 4
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`https://www.nytimes.com/interactive/2020/us/california-coronavirus-
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`cases.html#:~:text=At%20least%2032%20new%20coronavirus,the%20average%20two%20weeks%20earlie
`r
`5
`nbcbayarea.com/news/coronavirus/san-francisco-reverts-to-red-tier-due-to-covid-19-
`surge/2400456/
`6
`cnn.com/world/live-news/coronavirus-pandemic-11-16-20-
`intl/h_98b67d52d13512681a5096abcc5449fa?
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`Master File No. 3:17-md-02801-JD
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 4 of 20
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`less.7 Given these circumstances, and the repeated warnings from public health officials that these
`conditions are only likely to worsen after the Thanksgiving and Christmas holiday season,8 it does not
`seem likely that a trial can be started in California, in mid-January, with a reasonable guarantee that it
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`will not be interrupted by COVID-19 concerns.
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`The Situation in Other Relevant States
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`The majority of defense counsel reside in New York or in the Washington DC area. While the
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`situation in those states is slightly better than in California at the moment, it is worsening by the day.
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`There are eight times the number of new COVID-cases in New York State every day as compared to
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`just three months ago.9 As a result of the steadily increasing infection rate, New York City schools just
`announced this week that they will be closing for all in-person learning.10 There are also quarantine
`requirements for New York residents returning from out of state. Virginia fares no better, with a
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`positivity rate of 7.1% leading to new restrictions being imposed just this week.11
`The Situation in Japan
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`As the Court is aware, a number of witnesses reside in Japan, a jurisdiction from which their
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`testimony cannot lawfully be taken remotely. That prohibition leaves only the options of the witnesses
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`traveling to the United States to testify live or to travel to another Asian country to give testimony from
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`there. Both present COVID-related difficulties at this time. As a starting point, USCIS has restricted
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`the issuance of visa services and the US Embassy does not appear to be processing the type of visa
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`7
`https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-for-the-
`Prevention-of-COVID-19-Transmission-for-Gatherings-November-2020.aspx
`8
`See, e.g., https://www.usatoday.com/story/news/2020/11/10/covid-cases-rising-and-winter-
`worse-experts-say/6226184002/ (“Between the cold weather, lax behaviors and the holidays, December
`and January will be the worst months the United States has seen so far in the COVID-19 pandemic,
`public health experts said this week.”); https://www.pbs.org/newshour/health/why-we-cant-have-a-
`normal-thanksgiving-this-year (quoting a physician at Brigham and Women’s Hospital and Harvard
`Medical School as saying, “If we let everybody congregate all of a sudden in their homes for
`Thanksgiving or the holidays…you are going to fire that thing and it’s going to get even worse
`quickly.”).
`9
`https://projects.newsday.com/long-island/tracking-the-coronavirus-on-long-island/
`10
`https://www.nytimes.com/2020/11/18/nyregion/nyc-schools-covid.html.
`11
`https://www.nbc12.com/2020/11/18/over-new-covid-cases-confirmed-virginia-covid-related-
`deaths-reported/; https://www.wusa9.com/article/news/health/coronavirus/virginia-covid-19-
`restrictions-begin-monday-heres-what-you-need/65-c2785da2-b0cf-4ace-bcd9-374ab6d0de4d
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 5 of 20
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`necessary for one of Matsuo’s witnesses to travel to the United States.12 We are also aware of significant
`delays for all visa appointments and processing services. While Japan does have a “business track” to
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`facilitate travel to Singapore, Korea, and Vietnam for certain urgent and necessary business activities, all
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`travelers are required to quarantine for 14 days upon arrival, making a short trip to give testimony
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`impossible.13 Moreover, there are testing and 14-day quarantine requirements when the witnesses
`return to Japan.14 The bilateral quarantine obligations would potentially impact trial witnesses for up to
`a month, curtailing their ability to handle their work and personal obligations.
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`*
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`*
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`*
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`In light of these risks—and the very real possibility of a vaccine that would alleviate these
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`concerns—Defendants respectfully submit that the safest and wisest choice is to adjourn trial until later
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`in 2021. This is particularly so given that the parties have already had to bear the expense of preparing
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`for and beginning a trial only to see it interrupted by COVID-19.
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`b.
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`Plaintiffs’ Position
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`Consistent with the Court’s guidance as provided in the October 22, 2020 trial setting
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`conference, the Class is confident that the Court and the Northern District of California has set up
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`adequate safeguards to protect all trial participants at the upcoming trial. Further, trials across the
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`nation—even in regions where COVID-19 outbreaks are even more severe than in the San Francisco Bay
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`Area—have been successfully tried and progressed to jury verdict. See, e.g., Pete Brush, LAW360,
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`MiMedx Execs Convicted in SDNY’s 1st Virus-Era Fraud Trial (12:03 PM EST Nov. 19, 2020);
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`https://www.law360.com/whitecollar/articles/1329584 (jury verdict reached in trial “[h]eld in a Lower
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`Manhattan courtroom refitted for virus safety” in case United States v. Petit, No. 19-cr-00850-JSR
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`(S.D.N.Y.)); Jury Verdict, VirnetX Inc. v. Apple Inc., No. 6:12-cv-00855 (E.D. Tx. Oct. 30, 2020), ECF
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`No. 978. The Class is confident that the parties can draw on the collective wisdom and lessons learned
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`from past COVID-era jury trials to implement procedures (e.g., remote testimony, social distancing,
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`masks in the courtroom, limitations on the amount of in-person attendees in the courtroom, and other
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`12
`https://jp.usembassy.gov/visas/
`13
`https://www.mofa.go.jp/ca/cp/page22e_000925.html#no4
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`Id.
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 6 of 20
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`safeguards as recommended by health authorities) that ensure that the upcoming trial can be conducted
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`safely and successfully. Indeed, trials are still commencing. See, e.g., Gina Kim, Trial in large civil case
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`begins in San Bernardino despite virus worries, DAILY JOURNAL, Nov. 11, 2020, at 2 (jury trial in
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`multiparty civil case is underway in San Bernardino County Superior Court in Freeman v. Bd. of Trustees
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`of the Cal. State Univ.). The Class note that the cases identified in Defendants’ footnote 1 took place in
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`states that, until recently, did not appear to take adequate protections against the virus, unlike
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`conditions in the San Francisco Bay Area generally and within the Court itself.
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`To the extent any participants may be required to travel or quarantine, COVID-19 restrictions—
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`and the adjustments individuals have made in response to it—are certainly disruptive but they are not
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`new. People have been working remotely across the world for the better part of a year. Any disruption
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`caused from working remotely while quarantining in order to facilitate testimony will be minimal.
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`Indeed, based on the parties’ discussions, most if not all witnesses at trial have already been working
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`remotely, and will continue to do so for the foreseeable future. It makes little difference if the witness is
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`working remotely in Japan or in another Asian country, that is deemed safe by the Japanese government,
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`from which remote testimony is permissible. Finally, there is no reason that most or all of the testimony
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`could not be prerecorded through remote means and presented to the jury in that manner.
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`II.
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`Pretrial Schedule
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`Subject to the Court’s approval, the parties have agreed to the following pretrial schedule. The
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`parties do not anticipate significant changes to adopted or scheduled filings:
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`Event
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`Pretrial Meet-and-Confers
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`Deadline to submit joint pretrial statement
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`Deadline to submit trial briefs
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`Deadline to submit proposed jury instructions
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`Date
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`November 6, 2020 and November 17, 2020 -
`Complete
`The parties propose relying on the prior joint
`pretrial statement previously filed with the Court.
`MDL ECF No. 1091.
`The parties propose relying on prior trial briefs
`previously filed with the Court. MDL ECF Nos.
`1088, 1092.
`The parties propose relying on the preliminary
`jury instructions used at the first trial and on the
`previously-submitted proposed final jury
`instructions, subject to appropriate modifications
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`Deadline to file motions in limine
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`Deadline to submit verdict forms
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`Deadline to exchange proposed witness lists
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`including any changes in relevant law. MDL ECF
`No. 1216 (Revised Final Preliminary Jury
`Instructions); see also MDL ECF No. 1123 ( Joint
`Proposed Final Jury Instructions and
`Objections).
`The parties propose adopting the Court’s prior
`rulings on the motions in limine and treating
`those rulings as applicable to the current trial
`without waiving appeal rights. MDL ECF Nos.
`1140, 1201.
`The parties propose submitting the prior
`proposed verdict forms, subject to necessary
`clerical modifications. See MDL ECF No. 1093-2
`and 1186.
`The Class’s Proposal: December 7, 2020
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`Defendants’ Proposal: December 15, 2020
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`Deadline to exchange amended exhibit lists
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`December 15, 2020
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`Deadline to exchange objections to additional
`exhibits
`Deadline to meet and confer regarding exhibits
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`December 18, 2020
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`December 22, 2020
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`Deadline to exchange deposition designations
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`December 22, 2020
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`Deadline to file final joint exhibit list
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`December 30, 2020
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`Deadline to file joint proposed voir dire
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`December 30, 2020
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`Deadline to file joint proposed witness list
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`December 30, 2020
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`Deadline to exchange counter designations and
`objections to affirmative designations
`Deadline to exchange objections to counter
`designations
`Deadline to meet and confer regarding deposition
`designations
`Deadline to file final deposition designations
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`Final Pretrial Conference
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`Trial Start Date
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`January 4, 2021
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`January 6, 2021
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`January 8, 2021
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`January 12, 2021
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`January 15, 2021
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`January 19, 2021 at 9:00 a.m.
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`In addition, the parties agree to exchange demonstrative exhibits two calendar days before their
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`intended use. See MDL ECF No. 1047.
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`a.
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`Defendants’ Position regarding Witness and Exhibit Lists and Deposition
`Designations
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`During the prior March 2020 trial, only 108 exhibits were offered and only 101 were admitted.
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`For the retrial, Defendants propose that each side’s exhibit list be limited to three hundred (300)
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`exhibits from among those included on the prior exhibit lists, consistent with this Court’s direction that
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`the retrial should be more focused than the March trial. Defendants likewise propose that the parties
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`be limited to witnesses and deposition designations identified in their respective pretrial submissions
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`prior to the first trial.
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`b.
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`Plaintiffs’ Position
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`The Class agrees that the retrial will be more focused than the March trial. The Class, however,
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`is still free to present its case as it chooses. The Class anticipates few additions to witnesses, exhibits, or
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`deposition designations previously submitted. At the time of the parties’ previous submissions of
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`witness lists, exhibit lists, and deposition designations, there were many more defendants in the case,
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`which necessarily requires different tactical considerations. See Lord v. Wood, 184 F.3d 1083, 1095 (9th
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`Cir. 1999) (“Few decisions a lawyer makes draw so heavily on professional judgment as whether or not
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`to proffer a witness at trial.”). Even during trial, an additional defendant (AVX) was present, requiring
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`different considerations in which witnesses and what evidence to present. The case is now different and
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`requires different tactical considerations which may involve different witnesses, exhibits, and deposition
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`designations. The Class should be able to adjust its tactical choices and present exhibits, witnesses and
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`deposition designations that tether more closely to the revised circumstances.
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`III. Trial Length
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`The parties understand the Court’s stated time allotment for trial is approximately two weeks
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`beginning January 19, 2020, Monday to Friday from 9 a.m. to 5 p.m. The parties agree to divide the time
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`equally, and respectfully reserve the right to request additional trial days if necessary.
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`IV.
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`Pretrial Statements
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`The parties propose adopting the prior joint pretrial statement filed with the Court. MDL ECF
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`No. 1091; see Part I, supra.
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`V.
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`Trial Briefs
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`The parties propose adopting the prior trial briefs filed with the Court. MDL ECF Nos. 1088, 1092;
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`see Part I, supra.
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`VI.
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`Jury Instructions
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`The parties propose relying on prior preliminary jury instructions and the parties’ previously
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`submitted proposed final jury instructions, subject to appropriate modifications including changes in
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`relevant law. MDL ECF Nos. 1216 (Revised Final Preliminary Jury Instructions), 1123 ( Joint Proposed
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`Final Jury Instructions and Objections); see Part I, supra.
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`VII. Motions in Limine
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`The parties suggest that prior rulings made on motions in limine be deemed as made in this trial,
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`without waiving any appeal rights the parties had at the time of those rulings for the March trial. MDL
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`ECF Nos. 1140, 1201; see Part I, supra.
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`VIII. Verdict Form
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`The parties propose submitting their respective prior proposed verdict forms, subject to clerical
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`modifications and any change in relevant law. See MDL ECF No. 1093-2 and 1186; Part I, supra.
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`IX.
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`Prior Trial Rulings
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`The parties agree that there is no need to re-litigate rulings made by the Court prior to and
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`during the March 2020 trial, to the extent applicable based on the witnesses and exhibits offered during
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`the upcoming trial. Consistent with the Court’s guidance, the parties agree to be bound by the Court’s
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`prior rulings subject to the understanding that those rulings are deemed to have been made in this trial
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`and no appeal rights the parties had at the time those rulings were initially issued are waived.
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`X.
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`Remote Videoconference Testimony
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`a.
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`Plaintiffs’ Position
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`Due to the continued spread of COVID-19 in the United States, and consistent with the Court’s
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`guidance, the parties agree that foreign witnesses who are reluctant to travel to the United States should
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`testify via remote videoconference technology. Fed. R. Civ. P. 43(a); see In re RFC and ResCap
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`Liquidating Trust Action, 444 F. Supp. 3d 967, 972-73 (D. Minn. 2020) (COVID-19 pandemic
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`Master File No. 3:17-md-02801-JD
`Case No. 3:14-cv-03264-JD
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`8
`JOINT PRETRIAL CONFERENCE STATEMENT
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 10 of 20
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`constituted good cause and compelling circumstance to permit use of contemporaneous remote video
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`testimony); see also United States v. Donziger, Nos. 19-CR-561 (LAP), 11-CV-691 (LAK), 2020 WL
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`6364652, at *1-3 (S.D.N.Y. Oct. 28, 2020) (permitting remote foreign testimony in lieu of in-person
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`testimony in bench trial in light of COVID-19). The Class believes this testimony may be either pre-
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`recorded before trial or live (either in-person or remotely).
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`Because Japanese law does not permit remote testimony, should videoconference testimony be
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`unfeasible for witnesses in Japan, the Class believes that the parties should be responsible for arranging
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`remote testimony of their Japanese witnesses to be given from countries or regions less affected by
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`COVID-19 from which remote testimony is permitted. See Panasonic Corp. v. Getac Tech. Corp., SA CV
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`19-01118-DOC (DFMx), 2020 WL 4728081, at *1 (C.D. Cal. Aug. 6, 2020) (suggesting Hawaii as a
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`location for remote depositions of Japanese witnesses in light of COVID-19, “especially if the Japanese
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`government includes Hawaii in a ‘travel bubble’”); see also Ministry of Foreign Affairs of Japan, Phased
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`Measures for Resuming Cross-Border Travel, https://www.mofa.go.jp/ca/cp/page22e_000925.html (last
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`visited Nov. 17, 2020) (outlining procedures for travel of Japanese residents to certain southeast Asian
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`countries deemed safe by the Japanese government).
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`b.
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`Defendants’ Position
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`Defendants intend to call certain witnesses to testify live or by videoconference if possible.
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`Defendants note that travel restrictions and self-quarantine requirements, which are subject to change
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`without notice based on fluctuating COVID-19 infection rates, will at a minimum require flexibility in
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`decisions about whether witnesses are called live or remote.
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`XI.
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`Lay Witnesses
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`The parties have met and conferred and have been unable to resolve an issue relating to the
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`testimony of Tomohiko Miyata (Matsuo), a proposed defense witness.
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`a.
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`Tomohiko Miyata
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`i.
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`Plaintiffs’ Position
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`Miyata was first disclosed to the Class by Matsuo on the eve of the prior trial on January 2,
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`2020, a year-and-a-half after the close of fact discovery, as a live witness. Miyata was not previously
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`Master File No. 3:17-md-02801-JD
`Case No. 3:14-cv-03264-JD
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`JOINT PRETRIAL CONFERENCE STATEMENT
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 11 of 20
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`designated or disclosed, and the Class had no opportunity to depose him. Matsuo attempts to excuse its
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`failure to disclose Miyata on the grounds that the Class obtained related testimony from a Matsuo
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`“corporate designee” witness whose deposition was taken pursuant to Rule 30(b)(6). At the same time,
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`Matsuo refuses to disclose the subject of Miyata’s testimony or how it relates to the testimony of the
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`Rule 30(b)(6) witness taken.
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`Matsuo’s Rule 30(b)(6) designee was Hiyoruki Koga. Koga was deposed twice as Matsuo’s
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`30(b)(6) designee. Matsuo has represented that Koga is unavailable for trial. Matsuo does not explain
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`why Koga is unavailable and what steps, if any, Matsuo has taken to obtain his trial testimony. It appears
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`that Matsuo intends to offer some of Koga’s testimony through deposition testimony.
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`Matsuo has not explained why it wants to proffer live testimony from Miyata in lieu of the
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`testimony of Koga. Matsuo has not explained why it cannot—or will not—offer testimony of a witness
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`with personal knowledge. Matsuo has not disclosed the subjects of the intended testimony and has not
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`explained why it did not disclose them during the discovery process.
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`It appears that Matsuo wishes to provide live testimony from Miyata, limned by the 30(b)(6)
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`testimony of Koga. In so doing, Matsuo seeks to circumvent or ignore both basic Rules of Evidence as
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`well as its pretrial discovery obligations. With respect to the Rules of Evidence, there is no “corporate
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`designee” exception to Rule 602’s personal knowledge requirement, other than expert testimony. See
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`Fed. R. Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support
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`a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
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`may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony
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`under Rule 703.”). To the extent Miyata does not possess personal knowledge, Matsuo cannot cure
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`these deficiencies by bootstrapping the testimony of another “corporate designee” witness. Absent
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`personal knowledge, Miyata cannot testify. Fed. R. Evid. 602. Limiting a witness to matters within her
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`personal knowledge also clarifies permissible scope of cross-examination. Also, Miyata’s 30(b)(6)
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`testimony would be cumulative and duplicative of that of Koga’s. See Wright & Miller, 8A Fed. Prac.
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`And Proc. § 2147 (3d ed.) (“if a party’s desire to substitute a deposition for live testimony is
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`Master File No. 3:17-md-02801-JD
`Case No. 3:14-cv-03264-JD
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`JOINT PRETRIAL CONFERENCE STATEMENT
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 12 of 20
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`accommodated, he or she may not cumulate evidence by both testifying at the trial and offering the
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`deposition”).
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`With respect to its discovery obligations, Matsuo failed to disclose Miyata either as a person
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`with knowledge or in their Rule 26 disclosures as a witness. The Class has offered to provide Matsuo an
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`opportunity to cure this failure by taking Miyata’s deposition. Matsuo has thus far failed to produce him
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`for deposition. At a minimum, and without waiving its substantive evidentiary objections, the Class is
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`entitled to the deposition, subject to certain safeguards as outlined below.
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`Miyata has been the subject of numerous meet-and-confers, including in connection with the
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`March 2020 trial. Recognizing the lack of authority for the use of 30(b)(6) testimony of other corporate
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`designees as a substitute for pretrial discovery disclosure, Matsuo now indicates it intends to also offer
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`Miyata to testify as a regular percipient trial witness, based on his own personal knowledge, and as such,
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`Miyata should be precluded from testifying due to his late disclosure as explained above. Further, it is
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`“well within [the Court’s] discretion to deny [Matsuo] the right to substitute its 30(b)(6) witness on the
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`eve of trial.” In re Benyamin, No. 19-CV-1907 (RA), 2020 WL 2832815, at *8 (S.D.N.Y. June 1, 2020).
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`The Court has already disfavored Defendants’ attempt to offer other witnesses they failed to timely
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`disclose. See MDL ECF No. 1201, ¶ 24. It is unfair for Matsuo to designate a new witness at this time,
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`particularly when Matsuo already has a witness (Koga) who it may proffer to testify on the same topics.
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`See id. Importantly, discovery in this case occurred years ago and the case has been prepared for trial.
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`Further, the prior trial resulted in a mistrial and months have elapsed since then without any attempt by
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`Matsuo to cure their discovery failures.
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`At a minimum, the Class should be allowed to take Miyata’s deposition before he is proffered at
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`trial. In addressing similar circumstances, courts have recognized that such late disclosed witnesses may
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`testify, consistent with the personal knowledge requirement and the protections against trial by ambush
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`embodied in the federal pretrial discovery rules. Courts have allowed a substitute witness testimony
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`under strict limitations: (1) the adverse party is given the opportunity to depose the witness; (2) the
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`witness is not allowed to repudiate the prior Rule 30(b)(6) testimony; (3) the testimony is limited to the
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`same topics on which the prior Rule 30(b)(6) deponent was designated; and (4) the witness is limited to
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`Master File No. 3:17-md-02801-JD
`Case No. 3:14-cv-03264-JD
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`JOINT PRETRIAL CONFERENCE STATEMENT
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`Case 3:14-cv-03264-JD Document 2745 Filed 11/19/20 Page 13 of 20
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`testifying to information based on their own personal knowledge. Green Payment Sols., LLC v. First Data
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`Merchant Servs. Corp., CV 18-1463 DSF (ASx), 2019 WL 4221402, at *1 (C.D. Cal. July 2, 2019); see also
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`Ruzhinskaya v. Healthport Techs., LLC, No. 14 Civ. 2921 (PAE), 2016 WL 7388371, at *7 (S.D.N.Y. Dec.
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`20, 2016) (similar conditions).
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`ii.
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`Matsuo’s Position
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`Matsuo previously designated Hiroyuki Koga as its Rule 30(b)(6) corporate representative.
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`Mr. Koga was Matsuo’s Sales Division Manager, as well as a Director and Executive Officer. Mr. Koga
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`left Matsuo’s employ and is unavailable to testify at trial.
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`Tomohiko Miyata succeeded Mr. Koga as Matsuo’s Sales Division Manager, and also serves as a
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`Director and Executive Officer. Matsuo intends to call Mr. Miyata as a replacement witness to testify as
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`its corporate representative at trial. See, e.g., Coach, Inc. v. Visitors Flea Mkt., LLC, No. 6:11-CV-1905-
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`ORL-22, 2014 WL 2612036, at *2 (M.D. Fla. June 11, 2014) (allowing replacement corporate
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`representative to testify at trial because “a corporation should not be prohibited from calling a
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`designated representative as a witness simply because the person it thought was going to testify leaves
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`its employ”); Sunflower Condo. Ass’n, Inc. v. Owners Ins. Co., No. 16-CV-2946-WJM-NYW, 2018 WL
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`4901159, at *5 (D. Colo. Oct. 9, 2018) (same). Mr. Miyata will testify based on personal knowledge.
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`Matsuo disclosed to Plaintiffs its intent to call Mr. Miyata as a replacement corporate witness
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`during pretrial exchanges for the March 2020 trial. Contrary to Plaintiffs’ assertion, Matsuo explained
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`that Mr. Koga is unavailable to testify at trial because he is no longer employed by Matsuo. Matsuo has
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`been offering to make Mr. Miyata available for a deposition before trial since at least January 6, 2020.
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`Plaintiffs have not accepted that offer to