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Crocs, Inc. v. Effervescent, Inc.

United States District Court, D. Colorado

February 27, 2017

CROCS, INC., Plaintiff,
v.
EFFERVESCENT, INC., HOLEY SOLES HOLDINGS, LTD., DOUBLE DIAMOND DISTRIBUTION, LTD., and U.S.A. DAWGS, INC., Defendants. 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, JOHN P. MCCARVEL, ERIK REBICH, SARA HOVERSTOCK, and JOHN AND JANE DOE DEFENDANTS 1-30, Defendants.

          ORDER

          PHILIP A. BRIMMER United States District Judge

         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).

         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. 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.

         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 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.

         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 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 ...


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