United States District Court, S.D. California
JAMES W. BRADY and PATRICIA M. BRADY, Plaintiff,
GRENDENE USA INC. a Delaware corporation, and GRENDENE S.A., a Brazil corporation, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART JOINT MOTION TO COMPEL RESPONSIVE RULE 30(b)(6) TESTIMONY AND OTHER ISSUES [Doc. 194]
KAREN S. CRAWFORD, Magistrate Judge.
Before the Court is a Joint Motion filed by the defendants on March 3, 2015. [Doc. 194] By way of background, the parties have now filed 15 Motions and Joint Motions and more than 3, 100 pages of briefing and exhibits on substantive discovery disputes in this case. [Docs. 34, 68, 70, 74, 78, 88, 143, 161, 162, 172, 176, 179, 186, 194, 243] The instant Joint Motion presents the defendants' request for a Court Order compelling the plaintiffs to produce: 1) an additional Rule 30(b)(6) witness for the plaintiffs' company, Made In Brazil, Inc. ("MIB"); 2) the home address of the plaintiffs' daughter; 3) the plaintiffs' litigation costs and fees since May 2014; 4) tax records relating to MIB's sales and operations in 2013; and 5) communications with MIB's Social Media Manager, Gabriela Moreno. Id. The defendants also request attorneys' fees. Id. at 38. The plaintiffs oppose the defendants' requests.
The scope of discovery under Rule 26(b) is broad: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party involved in the pending action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." FED. R. Cry. P. 26(b). This Court has broad discretion when determining relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) ("Broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.") (internal citations omitted). However, this discretion should be balanced with the obligation to interpret the Rules in order to secure a "just, speedy, and inexpensive determination" of the action. FED. R. Cry. P. 1.
For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART the defendants' requests in the Joint Motion. This Court will consider each of the defendants' five requests, and the plaintiffs' opposition thereto, in turn. The Court declines to award attorneys' fees.
I. DEFENDANTS' MOTION TO COMPEL ADDITIONAL RULE 30(b)(6) TESTIMONY
On May 15, 2014, the defendants noticed the deposition of the plaintiffs' company, Made in Brazil, Inc., ("MIB") pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. [Doc. 194-2, Ex. A, p. 2] The notice identified 30 deposition topics including, inter alia:
Topic 1: YOUR sale of PLAINTIFFS' GOODS in the United States from January 1, 2006, through the present.
Topic 3: YOUR licensing, distribution, sales, design, manufacturing AND/OR marketing of PLAINTIFFS' GOODS from January 1, 2006, through the present.
Topic 5: Gross revenues and net profits from sales of PLAINTIFFS' GOODS in the United States by product type, from January 1, 2006, through the present.
Topic 8: YOUR annual advertising and marketing expenditures from each year from January 1, 2006, to the present.
Topic 10: All products bearing PLAINTIFFS' MARKS that YOU sold, distributed, manufactured, AND/OR marketed from January 1, 2006, through the present.
[Doc. 194-2, Ex. A, pp. 6-7]
The plaintiffs designated James Brady to testify as the Rule 30(b)(6) representative for MIB, and his deposition commenced on January 8, 2015. [Doc. 194-2, Ex. B (sealed)] In the deposition, Mr. Brady was unable to answer questions about certain business activities of MIB in the 2014-2015 year, including: 1) how many swimsuits MIB delivered or shipped to stores or purchasers, id. at 6-7; 2) how many online orders for swimsuits MIB received, id. at 8; 3) how many online orders for swimsuits MIB fulfilled, id.; 4) whether and when MIB sold products on consignment, id. at 23; 5) how many "pop-up shops" MIB operated to sell its items to individuals, id. at 24-25; and 6) what expenses were incurred for each "pop-up" shop, id. Throughout the deposition, Mr. Brady repeatedly stated that his daughter, Patricia M. Brady ("Ms. Brady"), an employee of the company, would be the person most knowledgeable to answer questions about these and other topics. Id. at 8, 9, 13, 18, 21, 22, 23, 25. Mr. Brady was also unable to provide the gross sales figures for MIB in 2014, id. at 26, which the plaintiffs now state is because the gross sales figures for 2014 were unavailable by the date of Mr. Brady's deposition in early January. [Doc. 194, p. 29]
In the instant Joint Motion, the defendants ask this Court to compel the plaintiffs to produce their daughter to testify about the five above-referenced Rule 30(b)(6) topics for which they feel Mr. Brady was unprepared. [Doc. 194, p. 2] While the plaintiffs concede that Mr. Brady was unable to answer some of the questions identified above, they posit that the defendants did not provide reasonable notice that they expected Mr. Brady to answer specific questions about MIB's shipping orders, online orders, or consignment sales. Id. at 28. The plaintiffs argue that the defendants' request should be denied because the questions Mr. Brady could not answer were not within the scope of a noticed topic. Id. at 31.
The parties met and conferred telephonically about this dispute on February 2, 2015. [Doc. 195, p. 5] The plaintiffs offered to produce Ms. Brady to testify for one hour as an additional Rule 30(b)(6) designee for MIB. [Doc. 194, p. 30; Doc. 195, p. 6] However, the plaintiffs' offer was conditioned upon the defendants agreeing to make their two Rule(b)(6) witnesses available for three additional hours each. [Doc. 194, p. 30; Doc. 195, p. 6] The defendants would not so agree, and the instant Joint Motion followed.
Rule 30(b)(6) provides that, "[i]n 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[.]" FED. R. CIV. P. 30(b)(6). "The corporation has a duty to educate its witnesses so they are prepared to fully answer the ...