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Marketquest Group, Inc. v. Bic Corporation

United States District Court, S.D. California

July 25, 2014

BIC CORPORATION; BIC USA, INC.; NORWOOD OPERATING COMPANY, LLC; and DOES 1 through 50, inclusive, Defendants.


JILL L. BURKHARDT, Magistrate Judge.

On February 21, 2014, Bic Corporation, Bic USA, and Norwood Operating Company (collectively, "Defendants") filed the instant Motion for Relief Under FRCP 60(b) or for Reconsideration of an Order Compelling the Deposition of Eric Barth. (ECF No. 151.) The Motion seeks reconsideration of a discovery order issued by Magistrate Judge William McCurine, Jr. on January 24, 2014, in the above entitled action. After reviewing the applicable order (ECF No. 150), Defendants' Motion (ECF No. 151), the response in opposition from Marketquest ("Plaintiff") (ECF No. 156), and Defendants' reply (ECF No. 161), the Court hereby DENIES Defendants' Motion for the reasons stated below.


On January 24, 2014, Judge McCurine issued an oral order compelling the deposition of Eric Barth. (ECF No. 150.) The order was issued during the course of a telephonic status conference that addressed a number of lingering discovery issues, including Mr. Barth's deposition. Counsel for Defendants began the call by making a number of arguments as to why Mr. Barth's deposition should not go forward. First, Defendants explained that Mr. Barth could face criminal liability under the French blocking statute should he submit to a deposition in France. ( Id. at 2.)[1] Defense counsel further argued that Mr. Barth's involvement in the creation of the catalogue at issue was disclosed to Plaintiff more than a year and a half ago, and as such, Plaintiff's decision to now depose Mr. Barth was untimely. ( Id. at 3.)

Judge McCurine inquired as to whether Mr. Barth would be criminally liable if the deposition were to go forward in England. ( Id. ) Defense counsel indicated that Mr. Barth could be deposed in England without the threat of criminal sanctions. ( Id. ) Plaintiff's counsel then suggested Geneva, Switzerland as an alternative because it was only about one hour and 30 minutes from Lyon, France. ( Id. )

After discussing an unrelated issue, the conversation returned to Mr. Barth. Judge McCurine indicated that he was inclined to allow the deposition of Mr. Barth to go forward in Geneva. ( Id. at 6.) The deposition would be limited to seven hours. ( Id. ) In allowing the deposition to move forward, Judge McCurine stated that, "The depositions of Mr. Barth and [another witness]... go the heart of the plaintiff's case." ( Id. )

Defendants again tried to persuade Judge McCurine that the Barth deposition should not be allowed. They argued that a deposition of Mr. Barth had not been previously addressed by the Court and that Plaintiff was now trying to take advantage. ( Id. at 13.) Plaintiff reminded the Court that, as a sanction for Defendants' late document production, the Court had allowed Plaintiff to seek additional depositions and that Mr. Barth had been on the list of individuals that was provided to the Court.[2] ( Id. at 13.) Defendants argued that Plaintiff was now trying to seek additional depositions that had not been awarded by the Court. ( Id. at 15.) Judge McCurine did not respond to this argument. ( Id. )

Having decided that the Barth deposition would go forward, Judge McCurine turned his attention to the costs and deadlines associated with this additional deposition. Judge McCurine stated, "I think the plaintiff ought to bear the costs on [this] deposition.... I think these are costs that they would bear anyway. So that is my order on that." ( Id. at 19-20.) Judge McCurine ordered that Mr. Barth's deposition should be completed on or before February 28, 2014. ( Id. at 11) No further comments regarding the Barth deposition were made during that telephonic conference.

Soon after Judge McCurine issued his order compelling the deposition of Mr. Barth in Geneva (ECF No. 150), Defendants claimed to have learned that Switzerland had a similar blocking statute as France and that Mr. Barth could not proceed with a deposition in Geneva, Switzerland. (ECF No. 151 at 6.) Defendants raised this issue by sending an email to opposing counsel and to Judge McCurine's Chambers.[3] ( Id. ) In response to this email, Defendants claim that an amended order from Judge McCurine was issued that instructed the parties to select a mutually agreeable country - other than Switzerland - in which to take Mr. Barth's deposition. ( Id. ) While Plaintiff agrees with the summary of the amended instruction, Plaintiff agues that it was not an amended order from Judge McCurine, but rather advice suggested by one of Judge McCurine's law clerks. (ECF No. 156 at 3.) There is no record of the amended order/instruction on the docket or in the physical case file.

Following the amended instruction, Plaintiff claims to have reached out to Defendants in order to select a mutually agreeable alternative location. Defense counsel "refused to provide available dates or locations for Mr. Barth's deposition, " and so in order to preserve its rights, "Plaintiff had no choice but to notice Mr. Barth's deposition" in Geneva on February 20, 2014. ( Id. at 4.) Plaintiff states that Defendants then stipulated that they received notice of the deposition but that they would not produce Mr. Barth until their motion for reconsideration had been decided.[4] ( Id. )

Defendants' version of the events makes no mention of an effort to select a mutually agreeable alternative. (ECF No. 151 at 4.) "Notwithstanding [the Court's amended instruction], on February 5, 2014, Plaintiff noticed Mr. Barth's deposition for February 20, 2014 in Geneva. Defendants gave notice that Mr. Barth would not appear, and that Defendants intended to file the instant motion." ( Id. )


A. Defendants' Motion

Defendants seek relief under FRCP 60(b) or, in the alternative, reconsideration under FRCP 54(b) and Civil Local Rule 7.1.i, of the Court's January 24, 2014 Order compelling the deposition of Eric Barth. (ECF No. 151.) Defendants allege that neither the parties nor Judge McCurine were aware of the fact that Mr. Barth had "never [been] employed by the Defendants." ( Id. at 4.) Rather, Mr. Barth is an employee of "the French company and non-party, Societe Bic." ( Id. ) Because Mr. Barth is not an employee of a party to the lawsuit, Defendants argue that they are unable to accept service on his behalf and that service must be conducted under the Hague Convention. ( Id. at 5.) Because Judge McCurine's order was based on mutual mistakes of fact regarding Mr. Barth's employment, Defendants submit that the basis for the order no longer exists and accordingly, the order must be reconsidered. ( Id. )

In addition to mistake and newly discovered evidence, Defendants contend that reconsideration of the Order is warranted because "ordering Mr. Barth's deposition would be highly inconvenient and... would merely offer cumulative testimony." ( Id. at 5.) Mr. Barth's deposition cannot proceed in France or Switzerland[5] and Defendants argue that requiring the deposition to proceed in any other country would be extremely inconvenient. ( Id. at 6.) Furthermore, Defendants claim that the deposition would only yield cumulative testimony because Plaintiff already had the opportunity to depose then-CEO Nicholas Paillot, who was allegedly the ultimate decision maker regarding the catalogue at issue. ( Id. at 7.)

"It would be unfair and prejudicial at this stage in the litigation, nearly three years after Plaintiff filed its lawsuit, to force Defendants to jump through the many hoops identified above - if they could be overcome...." ( Id. at 8 (emphasis in original).) Defendants conclude by arguing that, "[t]here is no legal or logical basis for compelling this non-party fact witness when ...

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