Flodin v. Central Garden & Pet Company

Background

Plaintiffs John Flodin and Aaron Brand alleged that the defendants’ AvoDerm pet-food labels falsely represented that the products contained avocado and that the avocado came from California. Plaintiffs served Central with an amended deposition notice under Federal Rule of Civil Procedure 30(b)(6), which governs depositions of organizations and requires the organization to designate a witness prepared to testify about information known or reasonably available to it.

Central offered Victoria Mann, its current Vice President of Sales Pet Specialty, as its witness. Plaintiffs argued that Mann could not answer questions about product composition, labeling and consumer representations, and marketplace competitors. They also argued that defense counsel made argumentative objections, helped Mann interpret questions, and improperly instructed her not to answer. Defendants maintained that Mann was adequately prepared and offered to provide written discovery about some topics.

Rule 30(b)(6) testimony

The court held that Central had a duty to prepare a witness to testify about information reasonably available to the company, including information from documents, former employees, and other sources. The court found that Mann’s repeated inability to answer questions showed inadequate preparation on several topics.

The court found Mann inadequately prepared on Topics 1, 2, and 4, concerning the composition of AvoDerm products and the amount and type of avocado in them. Mann could not explain documents describing product formulas or answer whether avocado mash had been part of a product formula during the relevant period.

The court also found Mann inadequately prepared on Topic 5, concerning Central’s decisions to label AvoDerm products with avocado-related representations. Mann repeatedly said she could not speculate or did not know what consumers understood from the labels. The court found her similarly unprepared on Topic 6, concerning the avocado representations made to consumers and when and where they appeared. Mann could not determine whether label designs had been printed on product bags or whether particular labels appeared on products during the relevant period.

The court found Mann inadequately prepared on Topic 26, concerning AvoDerm’s marketplace competitors from 2017 through 2020. She could confirm competitors listed in a July 2018 audit but could not say whether they were competitors at other times. The court stated that identifying competitors in this circumstance should have been relatively straightforward.

The court found Mann’s testimony adequate on Topic 8, concerning whether the amount and form of avocado in AvoDerm products were consistent with the avocado representations. Although plaintiffs were dissatisfied with her answers, the court concluded that they did not show a lack of preparation.

The court therefore ordered the defendants to promptly produce one or more adequately prepared witnesses to testify about Topics 1, 2, 4, 5, 6, and 26. The court’s order did not require another witness for Topic 8.

Limits on deposition conduct

Federal Rule of Civil Procedure 30(c)(2) requires deposition objections to be concise, nonargumentative, and nonsuggestive. It generally allows an instruction not to answer only when necessary to preserve a privilege, enforce a court-ordered limitation, or present a motion to end or limit the deposition.

After reviewing the transcript, the court found that defense counsel Rothstein repeatedly made argumentative and suggestive objections, interfered with questioning, and coached the witness. The court also found improper an instruction that Mann not answer questions about a document created by merging two exhibits that had already been shown separately.

The court admonished Rothstein and issued a limiting order for all future depositions in the case. The order prohibits argumentative or coaching objections, limits instructions not to answer to the circumstances permitted by Rule 30(c)(2) and Rule 30(d)(3), and prohibits conduct during a deposition that would not be allowed in the presence of a judicial officer.

Disposition

The court stated that Plaintiffs’ motion was granted in part and denied in part. It ordered additional Rule 30(b)(6) testimony on six topics and issued the limiting order governing future depositions.