ReBath LLC v. HD Solutions LLC et al

Filing 129

ORDER: IT IS ORDERED HD Solutions shall produce a witness to testify to the Topics in ReBath's Amended Notice as further amended by this Court's Order. (See attached Order). Signed by Judge John J Tuchi on 6/4/2021. (JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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ReBath LLC,

No. CV-19-04873-PHX-JJT
Plaintiff,

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v.

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HD Solutions LLC, et al.,

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ORDER

Defendants.

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At issue is Plaintiff ReBath, LLC (“ReBath”) and Defendant HD Solutions, LLC’s

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(“HD Solutions”) Joint Summary of Discovery Dispute (Doc. 116). The Joint Summary

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outlines the parties’ disputes over the scope of the topics in ReBath’s Amended Notice of

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Rule 30(b)(6) Deposition to Defendant HD Solutions (Doc. 116-1, “Amended Notice”) and

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HD Solutions’s Responses and Objections to the Amended Notice (Doc. 116-2,

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“Responses and Objections”).

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I.

LEGAL STANDARD

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Since an organization itself cannot be deposed, Federal Rule of Civil Procedure

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30(b)(6) allows the testimony to be taken from a person answering questions on behalf of

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the entity. See Hooker v. Norfolk S. Ry. Co., 204 F.R.D. 124, 125 (S.D. Ind. 2001). Under

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Rule 30(b)(6), a party may notice an organization’s deposition without specifically naming

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the individual to be deposed, instead setting forth “with reasonable particularity” the

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matters on which the examination is requested so the organization can designate one or

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more individuals to testify.

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In response to a Rule 30(b)(6) deposition notice, “corporate parties have an

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obligation to present witnesses who are capable of providing testimony on the noticed

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topics regardless of whether the information was in the witness’s personal knowledge,

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provided that the information is reasonably available to the corporation.” Memory Integrity,

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308 F.R.D. at 661; Great Am. Ins. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D.

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534, 539 (D. Nev. 2008) (“The duty to prepare a Rule 30(b)(6) designee goes beyond

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matters personally known to the witness or to matters in which the designated witness was

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personally involved.”). The corporation must identify and prepare its witnesses “so that

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they may give complete, knowledgeable and binding answers on behalf of the corporation.”

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Sprint Commc’ns Co. L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 528 (D. Kan. 2006)

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(internal quotation marks and footnote omitted); Starlight Int’l Inc. v. Herlihy, 186 F.R.D.

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626, 639 (D. Kan. 1999) (corporation has “a duty to make a conscientious, good-faith effort

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to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to

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fully and unevasively answer questions about the designated subject matter”). “The

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designating party has a duty to designate more than one deponent if necessary to respond

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to relevant areas of inquiry on the noticed topics.” Great Am. Ins. Co. of New York, 251

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F.R.D. at 538-39. Although courts have recognized that “[a]dequately preparing a Rule

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30(b)(6) deposition can be burdensome, ‘this is merely the result of the concomitant

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obligation from the privilege of being able to use the corporate form in order to conduct

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business.’” Id. at 540 (quoting United States v. Taylor, 166 F.R.D. 356, 362 (M.D. N.C.

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1996)).

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Because “Rule 30(b)(6) places substantial responsibilities and burdens on the

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responding corporate party,” Memory Integrity, 308 F.R.D. at 661, for the Rule “to effectively

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function, the requesting party must take care to designate, with painstaking specificity, the

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particular subject areas that are intended to be questioned, and that are relevant to the issues in

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dispute.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). While an

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organization must make a good faith effort to prepare a Rule 30(b)(6) witness to “fully and

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unevasively answer questions about the designated subject matter . . . that task becomes less

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realistic and increasingly impossible as the number and breadth of noticed subject areas

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expand.” Apple Inc. v. Samsung Elecs. Co., No. C 11-1846 LHK PSG, 2012 WL 1511901, at

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*2 (N.D. Cal. Jan. 27, 2012) (internal quotation marks omitted). Rule 30(b)(6) does not permit

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“burdening the responding party with production and preparation of a witness on every facet

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of the litigation.” Apple, 2012 WL 1511901, at *2.

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II.

ANALYSIS

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A.

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Topics 1 and 2 of the Amended Notice seek a Rule 30(b)(6) witness to testify

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regarding “[a]ll facts and evidence concerning, regarding and relating to” 1) HD Solutions’s

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defenses to ReBath’s claims; and 2) HD Solutions’s counterclaims. The Court finds that

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these topics lack the reasonable particularity required under Rule 30(b)(6). They encompass

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all aspects of the litigation such that it will be overly burdensome for HD Solutions to

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properly prepare its representative to testify. See Doe v. Swift Transp. Co., Inc., No. 2:10-

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CV-00899-JWS, 2015 WL 11110892 at *4 (D. Ariz. Nov. 13, 2015) (holding that 30(b)(6)

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topic requesting representative to be prepared to testify about “the existence vel non of any

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other evidence relevant to the claims and defenses in this case” was an “unreasonable catch-

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all topic” that should not have been included in the deposition notice).

Topics 1 and 2

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Therefore, Topics 1 and 2 shall be stricken from ReBath’s Amended Notice.

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B.

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Topics 5, 6, and 7 seek a Rule 30(b)(6) witness to testify on the following issues:

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5.

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Topics 5, 6, and 7
“The Customer List, including but not limited to HD Solutions's use of and

access to the Customer List through and including the date of the deposition.”
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“The Local Website, including but not limited to HD Solutions's use of and

access to the Local Website;”
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“The ReBath Marks, including but not limited to HD Solutions's use and

benefit of the ReBath Marks from June 1, 2019 through the date of the deposition.”

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HD Solutions objects to the phrase “including but not limited to” in all of the topics

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as overbroad. The Court is unpersuaded by the objection as the topics are sufficiently

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limited by the terms “Customer List,” “Local Website,” and “ReBath Marks.” HD

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Solutions can adequately prepare a representative to testify as to these topics.

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HD Solutions further objects to the definition of the Customer List in the Amended

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Notice because it does not have a temporal limitation. At the hearing, ReBath stated that

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June 2019 through present would be a reasonable limitation because HD Solutions alleges

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the misappropriation of the list started approximately at that time. However, it later

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indicated that ReBath might want to conduct discovery prior to that date but did not offer

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a different temporal limitation. ReBath also did not offer a compelling reason why it will

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need to question the witness regarding the use of the Customer List before June 2019 but

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to avoid prejudice to either party, the Court finds that June 2017 is the proper temporal

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limitation on the Customer List.

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Therefore, HD Solutions shall produce a Rule 30(b)(6) witness to testify as to

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Topic 5 from June 1, 2017 through present as well as Topics 6 and 7 as presently stated in

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the Amended Notice.

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C.

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Topic 15 of the Amended Notice concerns “HD Solutions’s responses and

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objections to Plaintiff’s First Set of Interrogatory Nos. 1 through 8, and Plaintiffs’ Second

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Set of Interrogatory Nos. 9 through 11.” HD Solutions asserts that Topic 15 is overbroad,

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particularly because ReBath’s Interrogatory No. 1 includes over one hundred Requests for

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Admissions. The Court agrees. See Vantage Mobility Int’l, LLC v. Kersey Mobility, LLC,

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No. CV-19-04684-JJT, 2021 WL 148651 at *4-5 (D. Ariz. Jan. 15, 2021) (holding Rule

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30(b)(6) topic overbroad where it concerned responses to all previous discovery requests).

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However, the Court finds the Request proper when it is restricted to HD Solutions’s

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responses and objections to only ReBath’s Interrogatories.

Topic 15

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Therefore, HD Solutions shall produce a Rule 30(b)(6) witness to testify as to Topic

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15, excluding the portion of ReBath’s Interrogatory No. 1 that contains ReBath’s Requests

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for Admission.

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IT IS THEREFORE ORDERED HD Solutions shall produce a witness to testify
to the Topics in ReBath’s Amended Notice as further amended by this Court’s Order.
Dated this 4th day of June, 2021.

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Honorable John J. Tuchi
United States District Judge

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