In something of a cautionary tale for litigation counsel, a federal judge recently chastised attorneys for both sides in a lawsuit, telling them to “[s]top behaving like small children.” In Danone US LLC v. Chobani LLC, case number 1:18-cv-11702 (S.D.N.Y.), U.S. District Court Judge Colleen McMahon denied the motion of Danone, maker of Dannon-brand yogurt, to revive its subpoena for testimony from Chobani's chief marketing and commercial officer. Danone claimed Chobani reneged on a deal that led it to withdraw the subpoena. Judge McMahon’s order denying Danone’s motion was three sentences—eighteen words—written across the top of Danone’s three-page, single-spaced letter: "I will not revive the subpoena. Stop behaving like small children. We will work this out on Monday."

Chobani had previously asked the court to quash the subpoena to Chobani's chief marketing and commercial officer, saying the witness had a scheduling conflict that would make him unavailable to testify on the date of the hearing in question, and offering another Chobani officer as a witness in his stead. Judge McMahon also denied that request, telling Chobani to “[w]ork it out with your opponent."

Chobani's counsel subsequently contacted Danone’s counsel, asking Danone to voluntarily drop the subpoena to Chobani's chief marketing and commercial officer and promising that the testimony of the substitute witness would be no different from what original witness had said in previous sworn declarations.

However, in its failed letter motion to revive the subpoena, Danone argued the proffered substitute witness contradicted the originally subpoenaed witness on a key issue in the lawsuit, i.e., how Chobani calculates the sugar content of its yogurt drinks. Danone called Chobani’s proffer of a substitute witness “a ploy to disavow” sworn testimony from the subpoenaed witness and “replace his testimony with testimony that Chobani perceives to be more favorable.” As evidence of the supposed contradictory testimony, Danone included in its letter motion a liberally highlighted fourteen-line paragraph from a declaration by the proffered substitute witness, ostensibly showing prior contradictions. Danone’s “evidence” was followed by three lengthy paragraphs of attorney argument—including Danone’s demand that “Chobani must be held to the bargain it struck,” i.e., Chobani’s alleged agreement that the proffered substitute witness would adopt the prior testimony of the subpoenaed witness “under penalty of perjury,” so as not to deprive Danone of the opportunity to cross-examine Chobani’s witness on his sworn testimony on the sugar content calculation issue. Judge McMahon remained unimpressed.

By way of background, Danone sued Chobani in December 2018, questioning Chobani's claim that its Gimmies Milkshakes have one-third less sugar than Dannon's Danimals products. Danone argued that Chaboni’s claimed was “based on a tortured analysis of serving sizes and a nonsensical averaging of the sugar content of three milkshake flavors.” Judge McMahon was not convinced by Chobani’s argument, noting that each bottle of Chobani’s product has 4 ounces of yogurt compared with just 3.1 ounces for the Danone bottle. Per Judge McMahon, "Who gives a child one and a third bottles of yogurt drink?"

The court has encouraged the parties to negotiate a deal that could involve changes to the packaging on the Chobani products. No agreement has yet been reached.