Defendants challenge trial subpoenas served upon them by plaintiff for the production of an array of business, tax and financial records for use by plaintiff in attempting to sustain its alter ego liability theory against Mr. Blumenfeld. The only reason proffered is that plaintiff has no such evidence. Plaintiff is suing for trademark infringement arising from defendants' failure to make required payments under a licensing agreement involving the operation of a comedy club. Plaintiff never requested an extension of the discovery deadline. The case has just entered the trial pool.
Defendants argue with some force that plaintiff is attempting to circumvent the discovery deadline.
Defendants also claim that because the requested documents are voluminous and not all readily at their disposal, production would necessarily delay the trial of this action. Plaintiff represents that no party propounded formal discovery requests, but instead met in May of 1997 to exchange informal discovery and that defendants knew since this meeting that such records might be used in court to support plaintiff's alter ego theory. Plaintiff does not represent, however, that defendants agreed at the May 1997 meeting to produce all of these records during the discovery period. Trial subpoenas may be used to secure documents at trial for the purpose of memory refreshment or trial preparation or to ensure the availability at trial of original documents previously disclosed by discovery. Trial subpoenas may not be used, however, as means to engage in discovery after the discovery deadline has passed.