Opinion
No. 99 C 7654
July 9, 2001
MEMORANDUM OPINION AND ORDER
According to plaintiff, its attorney contacted Jerry Tew, Technical Director of the American Association of Textile Chemists and Colorists (AATCC), to determine whether or not he believed the term "3000" had attained recognition in the weathering industry as being solely associated with plaintiff. Tew stated that it had and he agreed to testify live in Chicago. Both plaintiff and defendant are corporate members of AATCC, and, after plaintiff disclosed that it expected Tew to testify, Patrick Brennan, vice-president of defendant, contacted John Daniels, AATCC executive director and Tew's supervisor, regarding Tew's testifying. As a result, Tew no longer was willing to testify here. Plaintiff moves for default judgment or, in the alternative, the sanction, for witness-tampering, of striking defendant's defense that the term "3000" does not function as a trademark and that it has not acquired secondary meaning. We deny the motion as presented, but we direct defendant to pay the entire fees and costs of Tew's and Brennan's depositions.
At the court's urging, amounting perhaps to a direction, the parties took the depositions of Tew and Brennan. The story that emerged was different in some respects from that presented by the motion, but consistent with others. Tew did not recall his being willing to come to Chicago; he thought he had agreed to give a deposition. His testimony, on the merits, was, it would seem, far less helpful to plaintiff than it might have hoped. It is clear, though, that Brennan, on more than one occasion, expressed to Daniels his displeasure that a staff person of AATCC, supposedly a neutral in disputes between its corporate members, had agreed to testify for plaintiff. Daniels harbored the same reservations, and it is uncertain whether or not Tew would have voluntarily come to Chicago even if Brennan had not intervened. But he did, and he should not have done so.
Plaintiff treats his intervention as a criminal offense, but we are not prepared to go that far. Brennan did not seek to change testimony, and he must have realized that Tew's testimony could always be obtained by a deposition subpoena. He did not threaten Tew or anyone else. Indeed, he did not contact Tew. However, miffed as he was by Tew apparently choosing sides and volunteering to help his adversary, he acted injudiciously. A sanction is warranted, but not the draconian sanctions suggested by plaintiff. We think it appropriate to direct that defendant bear the expense of the North Carolina depositions, an expense that might not have been necessary if Brennan had not intervened.