Laatz v. Zazzle, Inc.

Background

The court resolved a discovery dispute about Zazzle’s preparation for a deposition under Federal Rule of Civil Procedure 30(b)(6). That rule allows a party to require an organization to designate witnesses to testify about specified topics. The organization must make a good-faith effort to prepare its witnesses to answer fully and completely, including by using reasonably available information beyond the witnesses’ personal knowledge.

Nicky Laatz’s deposition notice sought testimony about Zazzle’s purchase of a license for the Blooming Elegant software, how Zazzle used the software and font, the number of people who created designs using the Blooming Elegant Trio, and revenue and profits from products depicting or using that font. Zazzle designated different corporate representatives for the topics, including Ms. Sheu, Mr. Alkhatib, Mr. Li, and Mr. Kang.

Topic 1

Topic 1 concerned the decision to purchase the license, including who participated in the decision, when it was made, related conversations, and the reasons for the decision. The court found that Ms. Sheu was not adequately prepared to testify about matters within that topic. She had not reviewed the license before her deposition, had not investigated what information Zazzle had collected, and was unable to provide a definitive or fully informed answer about who made the purchase decision or why Zazzle decided to purchase the license. Mr. Alkhatib’s testimony was limited to the purchase transaction and surrounding circumstances and did not fill the gaps in Ms. Sheu’s testimony.

The court did not decide that Topic 1 necessarily included questions about whether anyone at Zazzle viewed Creative Market’s license frequently asked questions or license options. But it concluded that Zazzle’s representatives were not fully prepared for the portions of Topic 1 that clearly fell within the notice. The court also stated that many defense counsel objections during Ms. Sheu’s deposition appeared unnecessary and improper, including speaking objections and unwarranted requests to have questions read back.

Topics 6(b), 7(b), 8(b), and 9

These topics concerned how Zazzle used the Blooming Elegant software, including technical processes for creating images of text in the font through Zazzle’s website, mobile application, and application programming interface. Topic 9 also concerned how Zazzle generated, stored, transferred, and used scalable vector graphics.

The court found that Mr. Li was adequately prepared and testified about these topics. He described how users selected and used fonts in Zazzle’s design tool, how the system generated and displayed text, how Zazzle stored finished designs and handled products using those designs, and that Zazzle did not use the scalable vector graphics file format. The court also ruled that Mr. Li did not have to testify about the internal operation of Microsoft’s proprietary Direct Write library or application programming interface because Zazzle did not have access to that information. No further deposition testimony was warranted on these topics.

Topic 10(a)

Topic 10(a) sought testimony about the number of individuals who created designs using the Blooming Elegant Trio. Mr. Li was prepared to testify about the number of individuals who created finished designs and how Zazzle calculated that number.

Laatz argued that the topic also covered draft, automatically saved, or pending designs. The court found that it was unclear whether the topic covered those designs and concluded that Laatz had not described with reasonable particularity an examination about the number of individuals who prepared pending designs. Because of that lack of clarity, the court ruled that no further deposition on this point was warranted at that time. The court stated that the ruling was without prejudice to Laatz’s ability to address the issue after the presiding judge ruled on related discovery questions.

Topics 12–15

These topics concerned revenue and profits from sales of products depicting or using the Blooming Elegant Trio and the documentation concerning that revenue and those profits. The court found that Mr. Kang testified about Zazzle’s revenue and profit data, the documents produced from that data, and spreadsheets prepared in response to Laatz’s requests.

Although Mr. Kang could not explain the engineering queries used to generate spreadsheets concerning sales of products using the disputed font, the court found that Topics 12–15 did not seek that level of detail. Mr. Kang was able to answer questions about the contents of the documents. No further corporate deposition testimony was warranted on these topics.

Order

The court ordered Zazzle to produce a corporate representative fully prepared to testify about all aspects of Topic 1 at a further deposition. Laatz’s questioning was limited to Topic 1 and reasonable follow-up questions about the factual bases for the answers. For that deposition, objections to the form of a question were limited to stating, “objects to the form of the question,” or words to that effect. The parties were ordered to confer about a date and seek an extension of the fact-discovery deadline from the presiding judge.

The order is a discovery ruling. It does not decide the parties’ underlying claims about the Blooming Elegant software or font.