Dawgs claims that Crocs has refused to make available a Rule 30(b)(6) witness to address the following topics: 1(a)–(e), 1(j)–(k), 1(p)–(s), 6, 7, 11, 12 and 13. Dawgs has taken twelve and one-half hours of testimony from two Crocs corporate representatives (Resp. at 3–4), however contends that Crocs's proffered witnesses were unable to fully answer questions on the above topics.

Crocs asserts that Dawgs' Rule 30(b)(6) deposition is concluded and maintains that it “proffered Erik Olson to testify about a broad range of topics including the identity of the persons across the past ten years who have been responsible for manufacturing Crocs's products (Topic 1.f), the development of the material “Croslite” (1.g), the marketing and promotion regarding Crocs's products (1.h), sales and distribution of Crocs'sproducts (1.i), dealings with FinProject N.A. (1.1 and 1.m), and interactions with Ettore Battiston and Bihos s.r.l. (1.1 and 1.m).” (Resp. at 4.) Further, Crocs states that “for topics relating to information technology, Crocs proffered Rob Grant, Crocs's Vice President of Information Technology, to testify about topics including hardware systems (2.a), software systems (2.b), networking (2.c), messaging (2.d), telecommunications (2.e), databases (2.f), archives and back-up systems (2.g and 2.h), remote accessibility (3.b), disposal of computers (3.c) maintenance (3.d), chain of custody (3.e) storage and archiving (3.f), corporate policies (3.g), electronic records management (4) record storage (5), and the likely location of records (8) and (10).” (Id.)

At an informal conference on October 6, 2016, the court, in an attempt to resolve the issues in this motion with less judicial assistance, urged Dawgs to refine and tailor its Rule 30(b)(6) topics to be both more manageable and more precise. Apparently this is not the course chosen by Dawgs. As the parties failed to compromise on the language of any of the contested topics, the court will address the contested topics without an attempt to otherwise narrow or refine the topics. In other words, the topics will stand or fall based on Dawgs' actual vocabulary in the submission, except in the case of a request which would call for, at least in part, privileged information but which is otherwise an acceptable topic.

*2 “Corporations have an ‘affirmative duty’ to make available as many persons as necessary to give ‘complete, knowledgeable, and binding answers' on the corporation's behalf.” Ecclesiastes 9:10–11–12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146 (10th Cir. 2007) (quoting Reilly v. NatWest Mkt. Group Inc., 181 F.3d 253, 268 (2d Cir. 1999)). The topics of a Rule 30(b)(6) examination, however, must first and foremost be relevant. See, e.g., Von Schwab v. AAA Fire & Cas. Ins. Co., 2015 WL 1840123, at *2 (D. Colo. Apr. 21, 2015) (discovery directed at irrelevant matters “imposes a per se undue burden”). See Polhemus v. Great W. Life & Annuity Ins. Co., 2009 WL 2134362, at *1 (D. Colo. July 15, 2009) (finding topics directed at the functions, duties, and responsibilities of employees were extremely broad and “could conceivably cover ... volumes of information not remotely relevant” to the case).

The party noticing a 30(b)(6) deposition is obliged to describe the topics to be covered with “reasonable particularity.” Fed. R. Civ. P. 30(b)(6). Some courts have found that reasonable particularity requires that the requesting party designate “with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.” See Health Grades, Inc. v. MDx Med., Inc., 2013 WL 1777575, at *3 (D. Colo. Apr. 25, 2013) (quoting McBride v. Medicalodges, Inc., 250 F.R.D. 581, 584 (D. Kan. 2008)). But see Espy v. Mformation Techs., Inc., No. 08–2211–EFM–DWB, 2010 WL 1488555, at *2 (D. Kan. Apr. 13, 2010)(calling into doubt McBride's “painstaking specificity” standard.) Since the Rule itself requires that topics be defined with “reasonable particularity,” this court sees no reason to graft the word “painstaking” to what is otherwise the clear directive of the Rule that the topic definitions be “reasonable.” Nevertheless, under either standard, an overbroad 30(b)(6) notice “subjects the noticed party to an impossible task” and therefore will not be allowed. Cotton v. Costco Wholesale Corp., 2013 WL 3819975, at *1 (D. Kan. July 24, 2013).

Further, the recent revisions to Rule 26 emphasize that the information sought must be “proportional to the needs of the case.” Fed. R. Civ. Proc. 26(b). See also, e.g., ChriMar Systems v. Cisco Systems, 312 F.R.D. 560, 564 (N.D. Cal. Jan. 12, 2016) (refusing to order deponent for 30(b)(6) where topics were overbroad and noting that proportionality was “especially true in light of the recently revised Federal Rule of Civil Procedure 26(b)(1)”). See also E.E.O.C. v. Vail Corp, 2008 WL 5104811, *1 (D. Colo. Dec. 3, 2008) (proposed Rule 30(b)(6) deposition “unduly broad and burdensome” where testimony would span far more than the allotted seven hours).

This Topic concerns both information and internal documents reflecting the makeup of Crocs as a corporate entity. In the first place, Topic 1 references no period of time about which the sub-category information is sought, so is unduly broad in that regard. In its Response, Crocs claims it has produced all of the minutes from the meetings of its Board of Directors from 2005 through 2013. (Resp., Ex. A [Doc. No. 349–1] “Callagy Decl.”, ¶ 4.) Crocs claims this provides the composition of the board during all relevant time periods, and also reflects the deliberations of the Board itself, to a greater extent than the testimony of a corporate witness could do. Crocs claims it also produced large volumes of employee lists and organizational information responsive to topic 1(a). (Resp. at 5.) Crocs also states that at the beginning of Mr. Olson's Rule 30(b)(6) deposition, Dawgs was provided a Declaration of Sean M. Callagy identifying approximately 48 current and former Crocs personnel in response to various of the topics in Dawgs's Rule 30(b)(6) notice. The list provided each employee's start and end date and last known title.

*3 The court agrees that the production of documents as outlined by Crocs does not fully respond to Topic 1(a). Although the court finds that it is not proper or reasonable to inquire about the in-house and outside legal counsel since such information might involve privileged information, it is not unreasonable in this case that a witness be prepared to answer questions about the corporate employees and hierarchy during relevant time periods when decision making was happening. However, as the inquiry has no time limitation and as the Plaintiff was given ample time and suggestion to correct and narrow the request to include such a time limitation, it is an impossible task for Crocs to have a properly prepared a witness to testify about all the various employment relationships over the infinity of time and that such a request would likely elicit a large amount of irrelevant evidence.

Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(a). Plaintiff need not produce a Rule 30(b)(6) witness on this topic.

Topic 1(b) seeks information about the people involved and the manner in which Crocs's business plans were considered by Crocs and its Board of Directors without limitation to the issues involved in this case or to the relevant time frame for such a request. For the same reasons set forth with respect to Topic 1(a), Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(b). Plaintiff need not produce a Rule 30(b)(6) witness on this topic.

Topic 1(c) seeks information about the employment and functions of witnesses Plaintiff Crocs listed in its Rule 26(a)(1) disclosures and those identified as e-mail custodians. Crocs essentially claims it has already produced this information.

The court perceives no legitimate and sustainable objection to providing a witness who can talk about persons that a party itself reveals pursuant to Rule 26(a)(1). Crocs claims it presented information and a fully prepared witness “concerning dozens of Crocs-affiliated personnel with knowledge of the few relevant topics encompassed within the 30(b)(6) notice.” (Callagy Decl., ¶¶4–6 & Resp., Ex. C.) Crocs stated that it produced Erik Olson to testify as to similar topics as Topic (1)(c), however did not specifically offer Mr. Olson on Topic (1)(c). Dawgs presents no evidence whatsoever that Mr. Olson was unable to answer questions posed to him falling under the rubric of Topic 1(c). Therefore the court concludes that Dawgs had ample opportunity to examine Crocs's Rule 30(b)(6) on Topic 1(c), that Dawgs has the information it seeks on Topic 1(c) and is therefore precluded from re-opening the deposition on this topic.

Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(c).

*4 Once again, Topic 1(d) is not limited in terms of responsive time frame. Further, the Topic is not limited to the patents-in-suit and therefore much of the information requested by this topic is likely irrelevant. Dawgs chose not to narrow and define the topic when given the opportunity.

For the same reasons set forth with respect to Topic 1(a), Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(d). Plaintiff need not produce a Rule 30(b)(6) witness on this topic.

To the extent the topic seeks the identities of persons involved in discreet decisions or plans or funding for activities which are defined, the court finds that the topic is sufficiently limited in time to allow a witness to become fully prepared to answer inquiries about the identity, responsibilities, reporting hierarchy, employment history and terms, current relationship with Crocs and last known address of Crocs's employees, officers, directors, agents, representatives or independent contractors (including in-house and outside legal counsel) portion of Topic 1(e) subsections (i)(participated in or responsible for the commencement and continuation the instant Action), (ii)(participated in or responsible for creation of and enforcement of the patents-in-suit) and (iii)(participated in or responsible for the decision to engage in and the subsequent decision to terminate settlement talks with Dawgs in 2013). Each of the subcategories, (i), (ii), and (iii), appear relevant to the prosecution of the case, are discreet activities in scope of time and events involving the case, and are relevant to the defenses to the case and/or to the counterclaims and defenses thereto. The topics do not appear to call for privileged information, and information protected by privilege would not be produced.

To the extent the topic seeks information about the “functions” of any of the identified individuals, except for in-house and outside legal counsel, the topic is permissible to the extent is does not call for the revelation of privileged information and describes the role or duties of the individuals identified with respect to their participation in or responsibility for the discreet activity identified in subsections (i), (ii) or (iii). The portion of the topic requiring a witness to be knowledgeable about the functions of in-house or outside legal counsel is impermissible because the topic clearly anticipates and answer which might reveal privileged information.

*5 The court agrees that the general use of over-inclusive language asking about individuals who “participated in” or “are/were responsible in any way ” for certain activities can create overbreadth issues in a Rule 30(b)(6) topic. It is the term “in any way” that often causes the greatest problems. This court finds that suspect phrase “in any way” included in Topic 1(e) applies only to modify the term “responsible for.” The court further finds that the phrase “responsible for” is self-limiting and ameliorates the overbreadth issue here. Responsibility connotes a certain level of authority that properly limits the request and would eliminate persons such as the secretary typing or copying documents, for instance. Although one party may define “responsible for” in a way different from another, this does not, in this discrete instance, create an impermissibly overbroad topic for which it would be impossible for a deponent to prepare.

Therefore, the Plaintiff's objections to providing a witness to address Topic 1(e) are overruled, with the sole exception of the inquiry about functions of in-house or outside legal counsel, and Crocs shall produce a witness to address the topic. The deposition will be undertaken in Denver, Colorado, and can be conducted by video or other remote means if the parties so choose. The deposition shall last no more than one hour on this topic.

Dawgs has not articulated any theory of relevance for this topic. There is no securities fraud counterclaim or a specific statement in one of the filings that is at issue in this case. Additionally, SEC filings themselves are publicly available.

To the extent the topic encompasses legal compliance with respect to the patents-in-suit, it is redundant and calls for privileged information.

Again, Topic 1(j) suffers the same malaise of no limitation in time. Dawgs chose not to narrow and define the topic when given the opportunity.

For the same reasons set forth with respect to Topic 1(a), and also in addition the lack of obvious relevance to any claim, counterclaim or defense which is the subject matter of this case, Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(j). Plaintiff need not produce a Rule 30(b)(6) witness on this topic.

For the same reasons set forth with respect to Topic 1(j), Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(k). Plaintiff need not produce a Rule 30(b)(6) witness on this topic.

*6 This topic apparently seeks information about Crocs's most minute dealings or communications with other entities or individuals on both the patents-in-suit and any and all other intellectual property of any type or kind. It seeks information about individuals who had anything to do with “payments, transfers or licenses to or from, or Crocs's relationship, communications, dealings, negotiations, contracts, arrangements or disputes (or the settlements of any disputes) with individuals or entities” that Crocs has ever alleged or accused, not limited to litigation or formal accusation, of infringing its intellectual property rights. (Emphasis added) This topic essentially seeks information about every aspect of every communication Crocs's has ever had with any entity or individual on any topic if Crocs ever in any way alleged that entity or person infringed on Crocs's intellectual property of any kind. Dawgs wants all this from a Rule 30(b)(6) witness with no limitation of time period.

This topic is almost ludicrously overbroad and, frankly, does not deserve the court's thoughtful analysis to properly parse the components as Dawgs refused the request to clarify. This court finds that, as written, preparing a witness to fully respond to the topic would be utterly impossible.

The Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(p). Plaintiff need not produce a Rule 30(b)(6) witness on this topic.

For the same reasons set forth with respect to Topic 1(p), Plaintiff's objections are sustained and the motion is denied with respect to Topic No. 1(q). Plaintiff need not produce a Rule 30(b)(6) witness on this topic.

*7 Topic 1(r) seeks information about various forms of compensation to certain Crocs employees, officers, and directors. Crocs objects to the relevancy of any of this information and cites to privacy concerns as well. (Reply, Ex. 1). Dawgs claims that the estimated $500 million total compensation paid to employees over an unspecified time period provides a significant incentive for these employees to institute sham litigation, mislead the patent office, and engage in widespread antitrust violations. The court disagrees that payments of salary and other earned compensation to employees necessarily demonstrates any such thing. Therefore the topic is irrelevant.

Further, subtopics 1(r)(ii)–(iii) identify individuals who have been named in Case No. 16–cv–2004, and it is inappropriate to attempt to take discovery about them here. Subsection (iv.) has been addressed by the court previously and is therefore redundant.

Plaintiff's objections to Topic 1(r) are sustained and Crocs will not be required to produce a witness on this topic

The sole and only mention of this topic, other than the mere demand that Crocs provide a witness to address it, was made in the Reply and stated, “Crocs asked for clarification of a term in Topic 1(s), which Dawgs provided.” (Reply at 3.) There is no argument by Dawgs concerning the topic itself and why it is relevant or how it was not responded to by Crocs. Likewise, Crocs does not argue that it responded to the topic or that any attempt was made to question a witness about the topic.

On its face the topic is overbroad because it calls for any insurance or any indemnification or joint defense type agreement of any kind at any point in time regarding any matter. Had the topic been modified to seek information only concerning such agreements or insurance policies in the “including” categories in the topic, such a topic might have been allowable. However, Dawgs refused to narrow its topic to relevant information rendering the topic overbroad.

Plaintiff's objections to Topic 1(s) are sustained and Crocs will not be required to produce a witness on this topic.

The term “potentially relevant” used to describe a general collection of responsive actions gathered into a catchall phase “litigation holds” renders all the requests in Topic No. 6 both overbroad and unintelligible. The court finds that Plaintiff would be unable to sufficiently educate a Rule 30(b)(6) on such a topic and that the topic is both irrelevant under Fed. R. Civ. P. 26 and not “proportional to the needs of the case.” Fed. R. Civ. Proc. 26(b). See also, e.g., ChriMar Systems v. Cisco Systems, 312 F.R.D. at 564.

Plaintiff's objections to Topic 6 are sustained and Crocs will not be required to produce a witness on this topic.

This request seeks classic “discovery about discovery.” In some circumstances, it is appropriate to allow discovery about a party's efforts to locate and produce discovery, electronic or otherwise. Conagra Foods Food Ingredients Col, Inc. v. Archer Daniels Midland Co., Case No. 12–2171–EFM, 2014 WL 1570263, at *6 (D. Kan. 2014). In general, such discovery will be allowed if a party's efforts to comply with proper discovery requests are reasonably drawn into question. See Ruiz–Bueno v. Scott, Case No. 12–cv–0809, 2013 WL 6055402, at *2. (S.D. Ohio 2013).

Dawgs states that the reason it needs to question a Rule 30(b)(6) witness on this topic is because Crocs refuses to produce complete discovery responses or to certify the thoroughness of its search for responsive material, as Dawgs has done. (Reply at 4, citing Rule 26(b)(1). Dawgs asserts that its need to file many motions to compel demonstrate Crocs's lack of reasonable compliance.

The court agrees that discovery in this case appears to be moving at glacial speed and that Dawgs motions demonstrate that a high frustration level with the discovery being produced by Crocs. Obviously, however, the court does not agree, as evidenced by this order, that Crocs is being unreasonable in not responding to discovery requests which are couched in overbroad terms or unintelligible language.

*9 Nevertheless, the case would benefit by some guidance from Crocs as to its efforts to fully respond to discovery requests. This court agrees that the topic is relevant given the discovery process thus far.

Therefore, the Plaintiff's objections to providing a witness to address Topic 7 are overruled and Crocs shall produce a witness to address the topic. The deposition will be undertaken in Denver, Colorado, and can be conducted by video or other remote means if the parties so choose. The deposition shall last no more than one hour on this topic.

The three topics are clearly an attempt to obtain otherwise protected work product and/or attorney client privileged material and are not relevant to the issues in the case.

Plaintiff's objections to Topics 11, 12 and 13 are sustained and Crocs will not be required to produce a witness on these topic.

Therefore, it is ORDERED

“Counterclaim Plaintiffs (Dawgs) Motion to Compel Counterclaim Defendant Crocs to Produce Rule 30(b)(6) Witness(es)” [Doc. No. 327] is GRANTED in part and DENIED in part as set forth above.

Counterclaim Plaintiffs refer to themselves as “Dawgs” both collectively and singly. (Mot. at 1 n. 1.) The court will adopt the same convention.

The Topics set forth in this Order are taken verbatim from “Dawgs' First Notice of Deposition of Crocs, Inc. Pursuant to Rule 30(b)(6) (Corporate Organization, Personnel and Documents)” [Doc. No. 327–1] (“Notice”) attached to the Mot. to Compel as Ex. 1.