Crocs, Inc. v. Effervescent, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 06-cv-00605-PAB-KMT
(Consolidated with Civil Action No. 16-cv-02004-PAB-KMT)
Civil Action No. 06-cv-00605-PAB-KMT
CROCS, INC.,
Plaintiff,
v.
EFFERVESCENT, INC.,
HOLEY SOLES HOLDINGS, LTD.,
DOUBLE DIAMOND DISTRIBUTION, LTD., and
U.S.A. DAWGS, INC.,
Defendants.
Civil Action No. 16-cv-02004-PAB-KMT
U.S.A. DAWGS, INC. and
DOUBLE DIAMOND DISTRIBUTION, LTD.,
Plaintiffs,
v.
RONALD SNYDER,
DANIEL HART,
THOMAS J. SMACH,
ANDREW REES,
GREGG RIBATT,
ANDREW REDDYHOFF,
GEORGE B. BOEDECKER, JR.,
LYNDON HANSON,
DONALD LOCOCO,
RAYMOND CROGHAN,
RONALD FRASCH,
MICHAEL MARGOLIS,
JEFFREY LASHER,
MICHAEL E. MARKS,
PRAKASH MELWANI,
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JOHN P. MCCARVEL,
ERIK REBICH,
SARA HOVERSTOCK, and
JOHN AND JANE DOE DEFENDANTS 1-30,
Defendants.
ORDER
This matter is before the Court on Double Diamond Distribution, Ltd. and U.S.A.
Dawgs, Inc.’s Rule 72 Objection to Three Separate Discovery Related Orders [Docket
No. 416].
This patent infringement case has featured a large number of discovery disputes
between Crocs, Inc. (“Crocs”) and Dawgs,1 reflected in part by Dawgs’ filing of nine
motions to compel. See Docket Nos. 264, 322, 327, 333, 338, 344, 350, 358, 382. In
January 2017, Magistrate Judge Tafoya granted in part and denied in part Dawgs’ third
motion to compel, and denied Dawgs’ fourth and eighth motions to compel. Docket
Nos. 390, 394, 395. Dawgs filed objections to these three orders. Docket No. 416.
A magistrate judge may determine a nondispositive matter, such as a motion to
compel, and the Court’s review of that ruling is limited to determining whether the
magistrate judge’s order was “clearly erroneous or is contrary to law.” Fed. R. Civ. P.
72(a); see also 28 U.S.C. § 636(b)(1)(A).
1 For simplicity, the Court adopts the convention of the parties in the underlying
motions and refers to Double Diamond Distribution, Ltd. and U.S.A. Dawgs, Inc.,
collectively as “Dawgs.”
2
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I. ANALYSIS
A. Order Denying Dawgs’ Third Motion to Compel
Dawgs’ third motion to compel sought an order directing Crocs to produce Rule
30(b)(6) witness testimony on 17 noticed topics. Docket No. 327 at 1. T he magistrate
judge denied Dawgs’ motion on all but one Rule 30(b)(6) topic because Dawgs’
proposed topics were not time limited, were likely to elicit large amounts of irrelevant
evidence, had already been addressed, or sought privileged information. Docket No.
390 at 5-16. Dawgs generally objects to the magistrate judge’s order and specifically
objects as to three of the proposed Rule 30(b)(6) topics. Docket No. 416 at 14.
Dawgs argues that the entirety of the magistrate judge’s order was improper
because, pursuant to Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135
(10th Cir. 2007), Crocs was required to either designate a witness for each of the Rule
30(b)(6) topics or move for a protective order. Docket No. 416 at 14. LMC Holding,
however, states that, in order to demonstrate good faith with respect to a Rule 30(b)(6)
notice, a party must “promptly respond in some fashion,” which might include informing
the other party about concerns with the propriety of the Rule 30(b)(6) notice. LMC
Holding, 497 F.3d at 1147 (emphasis in original); see also Int’l Bhd. of Teamsters,
Airline Div. v. Frontier Airlines, Inc., No. 11-cv-02007-MSK-KLM, 2013 WL 627149, at
*5 (D. Colo. Feb. 19, 2013) (“[Rule 30(b)(6)] implies an equivalent obligation on the
deposing party to designate with painstaking specificity, the particular subject areas that
are intended to be questioned.”) (quotation omitted). Dawgs admits that Crocs did
respond by objecting to the requests and by indicating to what extent it was willing to
3
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respond. See Docket No. 416 at 20. As noted in her order, the m agistrate judge
conducted an informal conference on October 6, 2016 to try to resolve this dispute.
Docket No. 390 at 2. Judge Tafoya urged Dawgs to refine its Rule 30(b)(6) topics to be
more manageable and precise, but Dawgs declined. Id. Thus, before Judge Tafoya
ruled on the motion to compel, Crocs participated in efforts to resolve the dispute. This
satisfies Crocs’ obligations under LMC Holding. The order denying Dawgs’ third motion
to compel was not contrary to law.
Dawgs next argues that the magistrate judge’s factual findings as to topics
1(a)-(c) were clearly erroneous. Docket No. 416 at 14. As to topics 1(a)-(b), Dawgs
argues that the magistrate judge erred by finding that these topics were not sufficiently
time limited and were likely to elicit a large amount of irrelevant evidence. Docket No.
416 at 15-16. The magistrate judge observed that, while the subject matter of the
topics were “not unreasonable,” Dawgs had failed to provide a time limitation despite
“ample time and suggestion.” Docket No. 390 at 5-6. The Court finds that the
magistrate judge’s findings regarding the “impossible task” of preparing a Rule 30(b)(6)
witness to testify as to topics 1(a)-(b) absent some meaningful time frame, id. at 5, were
not clearly erroneous.
As to topic 1(c), the magistrate judge found that Crocs had furnished a witness
who, while not designated concerning topic 1(c), nevertheless provided responsive
testimony on that topic. Id. at 6. In fact, the magistrate judge noted that Dawgs failed
to present any evidence that this witness was unable to answer Dawgs’ questions as to
topic 1(c). Dawgs argues that this analysis was “unfair” because Crocs’ witness stated
that he was not prepared on that topic. Docket No. 416 at 16-17. The magistrate judge
4
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found not only that Dawgs had an opportunity to question Crocs’ witness on topic 1(c),
but that Dawgs has “the information it seeks on Topic 1(c).” Docket No. 390 at 6-7.
Dawgs presents no evidence that these factual findings are clearly erroneous.
Dawgs’ objection to the magistrate judge’s order denying its third motion to
compel fails to show that the order was clearly erroneous or contrary to law.
B. Order Denying Dawgs’ Fourth Motion to Compel
Dawgs argues that the magistrate judge erred in denying its fourth motion to
compel, which sought production of Crocs’ patent prosecution history materials,
including foreign patent prosecution documents. Docket No. 416 at 8-12. The crux of
Dawgs’ argument is that the magistrate judge erred by broadly interpreting the term
“related to.” Id. Dawgs argues that the term “related to” limits the request for
production to members of the same patent family, an argument Dawgs did not make
until its reply to its motion to compel. See Docket No. 394 at 4. The magistrate judge
stated that, had the request for production (“RFP”) adopted that definition of “related to”
at the outset, she may not have had to grapple with the motion to compel in the first
place. Docket No. 394 at 4. However, being made in its reply brief, the magistrate
judge declined to read Dawgs’ proposed limitation into the RFP. Id. Dawgs cites no
authority demonstrating that the term “related to” in the patent context has an exclusive
meaning such that the magistrate judge’s interpretation is clearly erroneous.
Dawgs’ objection to the magistrate judge’s order denying its fourth motion to
compel fails to show that the order was either clearly erroneous or contrary to law.
5
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C. Order Denying Dawgs’ Eighth Motion to Compel
Dawgs’ eighth motion to compel sought relief related to the Rule 30(b)(6)
depositions that took place on November 17 and 18, 2016. Docket No. 358 at 2.
According to Dawgs, Crocs failed to provide organizational documents in advance of
the deposition, furnished witnesses who lacked knowledge of the relevant Rule 30(b)(6)
topics, and improperly asserted the attorney-client privilege. Docket No. 358 at 3-10.
On January 4, 2017, the magistrate judge denied Dawgs’ eighth motion to compel in a
text entry stating that “[t]he topics for a Rule 30(b)(6) witness on behalf of Plaintiff were
addressed by the court in Order 390. Crocs prevailed on the majority of the motion.
Sanctions are therefore inappropriate.” Docket No. 395. In light of Dawgs’ objection,
the Court will review the January 4, 2017 order de novo.
The first issue raised by Dawgs in its eighth motion to compel is the propriety of
the organizational charts furnished by Crocs. Dawgs acknowledges that “Crocs did
produce some organizational charts and employee directories in advance of the
deposition,” Docket No. 364 at 3, but argues that Crocs deliberately provided
organizational information in the “least useful” format and that Crocs’ corporate
witnesses were unfamiliar with the organizational charts. Docket No. 358 at 3.
However, as the magistrate judge noted in her January 3, 2017 order, Crocs provided
Dawgs with a declaration from Sean M. Callagy which identified “approximately 48
current and former Crocs personnel” in response to a number of the Rule 30(b)(6)
topics. Docket No. 390 at 5. Moreover, the Court, having reviewed the relevant
deposition excerpts, finds that it is at best unclear what, if any, prejudice was caused to
Dawgs. Erik Olson, who oversees product development and commercialization at
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Crocs, provided testimony regarding key Crocs employees, their roles in the company
over time, and their involvement with product development. See, e.g., Docket No. 364-
1 at 7, 57:5-23; 66:1-23 (discussing reporting structure and documentation related to
department roles at Crocs). Dawgs has failed to demonstrate prejudice resulting from
Crocs’ purportedly defective provision of organizational materials.
The second issue raised by Dawgs goes to the preparedness of Crocs’ Rule
30(b)(6) witnesses. Dawgs lists several specific examples of how Mr. Olson’s testimony
was deficient. Docket No. 358 at 5. However, Dawgs’ deposition of Mr. Olson took 5.5
hours, Mr. Olson prepared by meeting with counsel and other Crocs employees on
multiple occasions, Mr. Olson was employed at Crocs from 2005 through the present,
and, where Mr. Olson lacked knowledge on particular subjects, he provided information
about who at Crocs was better situated to answer Dawgs’ questions. See Docket No.
364-1 at 3-5, 12:7-12, 15:10-17, 29:9-12; 7-8, 57:16-17. W hile the entirety of the
deposition transcript is not before the Court, it does not appear, even from the limited
excerpts proffered by Dawgs, that Mr. Olson could be characterized as unprepared or
unknowledgeable.
As to the testimony of Rob Grant, the Vice President of Information Technology
proffered by Crocs as a Rule 30(b)(6) witness, Dawgs argues that Mr. Grant did not
have sufficient knowledge of Crocs’ IT systems – in particular, how those systems
operated before 2013 – to serve as an effective witness. Docket No. 358 at 5-6. Mr.
Grant gave over six hours of testimony. Docket No. 394 at 3. Mr. Grant stated in his
deposition that he was the employee at Crocs best situated to answer Dawgs’
questions and that nobody in the Crocs organization would be able to provide testimony
7
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about backup procedures before 2013. Docket No. 364-2 at 3-4, 24:11-15, 63:4-8.
Dawgs also expected Mr. Grant to be sufficiently familiar with the case to tell them both
what materials would be considered relevant to this lawsuit and where, precisely, those
documents are located. Docket No. 358 at 5-6. Dawgs cites no authority for requiring a
Rule 30(b)(6) witness to make determinations as to relevance or to conduct the types of
searches that would be required to locate all such relevant materials in advance of his
deposition.
Last, Dawgs argues that Crocs’ counsel improperly interjected assertions of the
attorney-client privilege during the depositions of Mr. Olson and Mr. Grant.2 Docket No.
358 at 8. The magistrate judge, in ruling on similar objections as to topic 1(a), found
that Crocs’ assertions of privilege were proper. Docket No. 390 at 5. Having reviewed
the cited deposition testimony, the Court finds that Crocs’ counsel did not improperly
assert the attorney-client privilege or improperly instruct the deponents not to answer
questions outside the scope of the deposition. See Resolution Trust Corp. v. Dabney,
73 F.3d 262, 266 (10th Cir. 1995) (“[C]ounsel may instruct a deponent not to answer
only when necessary to preserve a privilege. . . . It is inappropriate to instruct a witness
not to answer a question on the basis of relevance.”).
For the foregoing reasons, the Court finds that Dawgs’ eighth motion to compel
was properly denied.
2Dawgs makes a number of sweeping statements regarding the appropriate
scope of the attorney-client privilege in this case. Because the eighth motion to compel
addressed only the conduct of Crocs’ attorneys at the deposition, the Court makes no
finding as to the proper scope of the attorney-client privilege in this case.
8
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III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Double Diamond Distribution, Ltd. and U.S.A. Dawgs, Inc.’s Rule
72 Objection to Three Separate Discovery Related Orders [Docket No. 416] is
overruled.
DATED February 24, 2017.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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