Case 2:22-cv-00215-TS-DAO Document 280 Filed 02/02/24 PageID.4008 Page 1 of 4
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` UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`
`
`
`EAGLE VIEW TECHNOLOGIES INC.; and
`PICTOMETRY INTERNATIONAL CORP.,
`
`
`
`v.
`
`GAF MATERIALS LLC,
`
`
`
`
`Plaintiffs,
`
`Defendant.
`
`
`MEMORANDUM DECISION AND
`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANT’S
`SHORT-FORM MOTION FOR RELIEF
`BASED ON AN UNPREPARED RULE
`30(b)(6) WITNESS (DOC. NO. 247)
`
`Case No. 2:22-cv-00215
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`
`
`In this patent infringement case, Defendant GAF Materials, LLC filed a discovery motion
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`asserting that a Rule 30(b)(6) witness designated by Plaintiffs Eagle View Technologies, Inc. and
`
`Pictometry International Corp. (collectively, “EagleView”) was unprepared to testify regarding
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`negotiation of a settlement agreement in another patent case brought by EagleView.1 GAF’s
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`patent misuse defense and antitrust counterclaim are based largely on this settlement,2 and Topic
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`11 of GAF’s Rule 30(b)(6) notice included negotiation of the settlement.3 Rather than seeking a
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`continued Rule 30(b)(6) deposition, GAF seeks a three-hour deposition of EagleView’s CEO,
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`who personally participated in settlement negotiations.4 EagleView opposes the motion, arguing
`
`
`1 (Def.’s Short-Form Mot. for Relief Based on an Unprepared Rule 30(b)(6) Witness (“Mot.”),
`Doc. No. 247.)
`
`2 (See First Am. Answer to First Am. Compl. and Countercls. ¶¶ 277–293, 452–457, Doc. Nos.
`166 (redacted), 169 (sealed).)
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`3 (See Decl. of Michael M. Powell ¶ 2, Doc. Nos. 248 (redacted), 250-1 (sealed).) Topic 11 also
`included implementation, performance, and scope of the settlement agreement. (See id.)
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`4 (See Mot. 2–3, Doc. No. 247.)
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`1
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`
`
`
` UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
`
`
`
`
`EAGLE VIEW TECHNOLOGIES INC.; and
`PICTOMETRY INTERNATIONAL CORP.,
`
`
`
`v.
`
`GAF MATERIALS LLC,
`
`
`
`
`Plaintiffs,
`
`Defendant.
`
`
`MEMORANDUM DECISION AND
`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANT’S
`SHORT-FORM MOTION FOR RELIEF
`BASED ON AN UNPREPARED RULE
`30(b)(6) WITNESS (DOC. NO. 247)
`
`Case No. 2:22-cv-00215
`
`District Judge Ted Stewart
`
`Magistrate Judge Daphne A. Oberg
`
`
`
`
`In this patent infringement case, Defendant GAF Materials, LLC filed a discovery motion
`
`asserting that a Rule 30(b)(6) witness designated by Plaintiffs Eagle View Technologies, Inc. and
`
`Pictometry International Corp. (collectively, “EagleView”) was unprepared to testify regarding
`
`negotiation of a settlement agreement in another patent case brought by EagleView.1 GAF’s
`
`patent misuse defense and antitrust counterclaim are based largely on this settlement,2 and Topic
`
`11 of GAF’s Rule 30(b)(6) notice included negotiation of the settlement.3 Rather than seeking a
`
`continued Rule 30(b)(6) deposition, GAF seeks a three-hour deposition of EagleView’s CEO,
`
`who personally participated in settlement negotiations.4 EagleView opposes the motion, arguing
`
`
`1 (Def.’s Short-Form Mot. for Relief Based on an Unprepared Rule 30(b)(6) Witness (“Mot.”),
`Doc. No. 247.)
`
`2 (See First Am. Answer to First Am. Compl. and Countercls. ¶¶ 277–293, 452–457, Doc. Nos.
`166 (redacted), 169 (sealed).)
`
`3 (See Decl. of Michael M. Powell ¶ 2, Doc. Nos. 248 (redacted), 250-1 (sealed).) Topic 11 also
`included implementation, performance, and scope of the settlement agreement. (See id.)
`
`4 (See Mot. 2–3, Doc. No. 247.)
`
`1
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`
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`Case 2:22-cv-00215-TS-DAO Document 280 Filed 02/02/24 PageID.4009 Page 2 of 4
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`GAF is not entitled to depose its CEO and proposing, instead, a one-hour continued Rule
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`30(b)(6) deposition.5 For the reasons explained below, GAF’s motion is granted in part and
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`denied in part, and EagleView is ordered to produce an adequately prepared Rule 30(b)(6)
`
`witness for a one-hour deposition on the topic of negotiation of the settlement agreement.
`
`
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`Rule 30(b)(6) of the Federal Rules of Civil Procedure requires a corporation or other
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`entity being deposed to designate persons to testify on its behalf “about information known or
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`reasonably available to the organization.”6 Entities must “make a conscientious, good-faith
`
`effort 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.”7 “If the designated
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`persons do not possess personal knowledge of the matters set out in the deposition notice, the
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`[entity] is obligated to prepare the designees so that they may give knowledgeable and binding
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`answers for the [organization].”8 “If it becomes obvious during the course of a deposition that
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`the designee is deficient, the [organization] is obligated to provide a substitute.”9
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`GAF has demonstrated EagleView’s Rule 30(b)(6) witness was unprepared to testify
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`regarding negotiation of the settlement agreement. The witness testified he was unaware he had
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`been designated to testify regarding settlement negotiations, did not participate in the
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`negotiations, had not spoken with any negotiation participants, had not seen negotiation
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`5 (See Pls.’ Opp’n to Def.’s Short-Form Mot. for Relief Based on an Unprepared Rule 30(b)(6)
`Witness (“Opp’n”), Doc. No. 271.)
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`6 Fed. R. Civ. P. 30(b)(6).
`
`7 Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999).
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`8 Id. (alterations in original) (internal quotation marks omitted).
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`9 Id. (alteration in original) (citation omitted).
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`2
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`Case 2:22-cv-00215-TS-DAO Document 280 Filed 02/02/24 PageID.4010 Page 3 of 4
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`documents; and did not do anything to research the negotiations.10 Indeed, EagleView does not
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`meaningfully contest that its designated witness was unprepared.11
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`However, GAF has not shown it is entitled to depose EagleView’s CEO as a remedy for
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`the unprepared Rule 30(b)(6) witness. GAF cannot dictate who EagleView chooses as its
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`corporate designee under Rule 30(b)(6),12 and GAF has not issued a deposition notice for the
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`CEO under Rule 30(b)(1).13 The remedy for an unprepared Rule 30(b)(6) witness is a continued
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`Rule 30(b)(6) deposition of a designee who is adequately prepared to give knowledgeable and
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`binding answers for the corporation.14 Accordingly, GAF is entitled to a continued Rule
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`30(b)(6) deposition of a witness prepared to testify on EagleView’s behalf regarding the
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`settlement negotiations—not a deposition of EagleView’s CEO.
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`GAF also fails to justify its request for a three-hour deposition. GAF offers no argument
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`as to why an additional three hours on this topic is warranted. EagleView, on the other hand,
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`notes GAF has already taken the full seven hours of Rule 30(b)(6) testimony permitted under the
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`local rules,15 and settlement negotiations were only a subpart of one topic from the twenty topics
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`10 (See Mot. 1–2, Doc. No. 247; Decl. of Michael M. Powell ¶¶ 4–5, Doc. Nos. 248 (redacted),
`250-1 (sealed).)
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`11 While EagleView states it does not concede the witness was unprepared and notes he was able
`to testify about some negotiation documents, EagleView primarily contests GAF’s requested
`remedy. (See Opp’n 1–2, Doc. No. 271.)
`
`12 See Legal Tender Servs. v. Hanover Ins. Co., No. 2:16-cv-01223, 2018 U.S. Dist. LEXIS
`232087, at *2 (D. Utah Jan. 4, 2018) (unpublished) (“It is the corporation that designates a
`deponent to testify on its behalf—not the party conducting the deposition.”).
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`13 (See Opp’n 2, Doc. No. 271.)
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`14 See Starlight Int’l, 186 F.R.D. at 639.
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`15 See DUCivR 30-2(a)(2)(B).
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`3
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`Case 2:22-cv-00215-TS-DAO Document 280 Filed 02/02/24 PageID.4011 Page 4 of 4
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`in the Rule 30(b)(6) notice.16 Under these circumstances, the one-hour continued deposition
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`proposed by EagleView is reasonable.
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`CONCLUSION
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`GAF’s motion17 is granted in part and denied in part. EagleView is ordered to produce
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`an adequately prepared Rule 30(b)(6) witness for a one-hour deposition on the topic of
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`negotiation of the settlement agreement.
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`DATED this 1st day of February, 2024.
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`BY THE COURT:
`
`
`____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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`16 (See Opp’n 1, Doc. No. 271.)
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`17 (Doc. No. 247.)
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`4
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