United States District Court, D. Colorado
A. BRIMMER United States District Judge
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].
patent infringement case has featured a large number of
discovery disputes between Crocs, Inc. (“Crocs”)
and Dawgs,  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.
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).
Order Denying Dawgs' Third Motion to Compel
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. The 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.
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
respond. See Docket No. 416 at 20. As noted in her
order, the magistrate 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.
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
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 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.
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.
Order Denying Dawgs' Fourth Motion to
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
objection to the magistrate judge's order denying its
fourth motion to compel fails to show that the order was