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Century 21 Real Estate, LLC v. All Professional Realty

June 6, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Previously pending on this court's law and motion calendar for May 31, 2012, was defendants' motion to compel further deposition of Century 21 Real Estate LLC, and for sanctions. After order granting defendants' request for order shortening time and directing the submission of a joint statement, the parties filed their statement on May 29, 2012. Virginia Cale appeared at hearing on behalf of defendants. Aaron Rudin represented plaintiff. After hearing oral argument and reviewing the joint statement, the court now issues the following order.


Plaintiff Century 21 Real Estate LLC ("Century 21") brought this action against defendants (franchisees of Century 21 or principals thereof) All Professional Realty, Inc., Century 21 All Professional, Steven Wright, and Carol Wright ("All Professional") on October 12, 2010, alleging that All Professional continued to use Century 21's trademarks after a franchise agreement was properly terminated by Century 21 due to All Professional's failure to make certain required payments. Century 21's claims are for Federal, State and Common Law Trademark Infringement; Federal and State Unfair Competition; breach of contract; breach of guaranty; breach of promissory note; account stated; quantum merit; and for an accounting.

In a separate complaint now consolidated with this action, All Professional claims that Century 21 breached the franchise agreements in various ways, including failing to enforce the Policies and Procedures Manual on other franchisees, by permitting other franchisees to recruit All Professional's productive agents, failing to provide promised tools and systems, permitting former All Professional Hawaii broker John Sherman to go to another Century 21 franchise to directly compete with All Professional Hawaii, and allowing another Century 21 franchisee, Century 21 Select, into All Professional's territory in Folsom. This complaint contains claims for violation of a termination provision of the California Franchise Relations Act, Cal. Bus. & Prof. Code § 20020, violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210, intentional interference with business advantage, breach of contract, breach of implied covenant of good faith and fair dealing, fraud, negligent interference with business advantage, and interference with contract.*fn1

The termination of the contract between the parties took place in 2010. Judge Shubb found in his preliminary injunction order that it appeared as though Century 21 properly terminated the agreement with All Professional for not making payments under the terms of the franchise agreements, and he granted a preliminary injunction to prevent All Professional from using Century 21's trademarks. He denied All Professional's motion for preliminary injunction seeking to restore All Professional's benefits under the franchise agreements.*fn2 (Dkt. no. 28.) DISCUSSION

The instant dispute concerns All Professional's notice of Rule 30(b)(6) deposition of plaintiff Century 21 with production of documents, scheduled for May 14, 2012 in New Jersey. Century 21 responded with objections, but agreed to produce a person with knowledge subject to objections in regard to some of the categories. Century 21 produced Jacqueline Bertet at the deposition and she was deposed on some matters. Ms. Bertet has been employed by Realogy (an entity encompassed within, or above, Century 21) for twelve years and is responsible for overseeing the collection of fees from Realogy's franchisees, including Century 21. Century 21 also designated Robert Popp to testify and he was to be deposed on May 17, 2012 in California concerning Century 21's investigation of complaints by Steve Wright about recruiting and dilution of the trademark. That deposition is not at issue here.

The matters in dispute which are addressed by the joint statement are numbers 3, 5, 9, 10, and 12.

I. Rule 30(b)(6) Deposition

All Professional asserts that Ms. Bertet was improperly instructed not to answer certain questions, and she was not properly prepared for her deposition. Ms. Bertet did not recall pertinent information, and All Professional contends that other employees had more knowledge on certain issues but Century 21 did not produce them. All Professional complains that Ms. Bertet was only knowledgeable about Realogy's general collection policies and practices regarding payment plans, but otherwise lacked personal knowledge on most of the designated matters. In response, Century 21 argues that a corporate designee need not have personal knowledge.

The court has reviewed the rough transcript included in the joint statement, and explained at hearing that All Professional's counsel did not lay a proper foundation for the court to ascertain whether the designated Rule 30(b)(6) witness had not properly prepared.

Rule 30(b)(6) provides in part:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization.

Fed. R. Civ. P. 30(b)(6). This rule is "is intended to streamline the discovery process." McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 79 (D.D.C.1999). "By commissioning the designee as the voice of the corporation, the Rule obligates a corporate party 'to prepare its designee to be able to give binding answers' in its behalf.'" Rainey v. Am. Forest & Paper Ass'n, Inc., 26 F.Supp.2d 82, 94 (D.D.C.1998) (citation omitted). "Rule 30(b)(6) imposes a duty on the entity receiving the Rule 30(b)(6) notice to identify and provide responsive witnesses with knowledge concerning the relevant subject matter." McKesson, 185 F.R.D. at 79. A person most knowledgeable need not be produced, but only a person "with knowledge whose testimony will be binding on the party." Rodriguez v. Pataki, 293 F.Supp.2d 305, 311 (S.D.N.Y. 2003).*fn3 If the deponent designated by the entity is not knowledgeable about ...

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