United States District Court, D. Kansas
IN RE SYNGENTA AG MIR162 CORN LITIGATION THIS DOCUMENT RELATES TO ALL CASES MDL No. 2591
No. 27-cv-15-3785 Hon. Thomas M. Sipkins Van de North, Jr.
(Ret.) Other Civil
OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN DISTRICT COURT
FOURTH JUDICIAL DISTRICT
DISCOVERY ORDER REGARDING PLAINTIFFS' MOTIONS TO COMPEL
J. THOMAS CARRATO TO PRODUCE SUBPOENAED DOCUMENTS
MAGISTRATE JUDGE JAMES P. O'HARA SPECIAL MASTER JOHN B.
VAN DE NORTH, JR
James P. O'Hara United States Magistrate Judge
undersigned judicial officers in the above-captioned matters
have before them motions by Plaintiffs in the Federal MDL and
Minnesota State Action to compel the production of documents.
The documents have been requested in subpoenas directed to
the Syngenta Defendants' expert witness, J. Thomas
Carrato. Related motions to quash the subpoenas by non-party
Monsanto Company are not addressed at this time.
to the Coordination Orders issued by the Courts in the
captioned litigation, the undersigned judicial officers have
determined that the procedures outlined herein will assist
each of them to more efficiently address Plaintiffs'
motions to compel, which are pending in their respective
jurisdictions. The motions are substantially similar and
present the same issues for resolution. Mr. Carrato and his
former employer and non-party, Monsanto Company, have raised
objections to the production of documents by Mr. Carrato in
response to the Minnesota and MDL subpoenas. The objections
are based, in part,  upon the assertion that the documents in
question are protected from discovery by an attorney-client
privilege belonging to Monsanto. At the heart of the
controversy are 184 individual documents (consisting of
approximately 2, 120 pages),  which relate to 29 document
production requests contained in the Minnesota (10) and MDL
Order Regarding In Camera Review dated February 27,
2017, ECF No. 2938, Magistrate Judge O'Hara directed
Monsanto and Mr. Carrato to comply with a process by which
they would provide him with documents identified in Mr.
Carrato's privilege log by March 2, 2017. Magistrate
Judge O'Hara's process focused on Document Request
Nos. 1-18 in the MDL Carrato subpoena. By this Joint Order,
Magistrate Judge O'Hara's procedure is extended to
include Document Request Nos. 1-18 in the Minnesota Carrato
subpoena. By letter dated March 6, 2017, Merri Baldwin,
counsel for Mr. Carrato, confirmed that there are no
documents listed on Mr. Carrato's privilege logs that are
specific to the three (now two, Nos. 25 and 28) requests at
issue in the Minnesota Plaintiffs' motion to compel.
deadlines imposed by Magistrate Judge O'Hara in his
February 27, 2017 Order continue to be in effect. Counsel for
Mr. Carrato agreed to and did produce additional documents
required to be submitted by this Order, relating to the
Minnesota subpoena, to Special Master Van de North on March
6, 2017. Monsanto shall submit its own privilege log covering
all of the documents at issue to Special Master Van de North
by 5:00 p.m. on Wednesday, March 8, 2017.
any documents submitted pursuant to Magistrate Judge
O'Hara's February 27, 2017 Order or this Joint Order,
for which Monsanto continues to assert attorney-client
privilege protection, counsel will engage in a meaningful,
in-person meet-and-confer process as follows:
in-person meet-and-confer will be conducted on March 10,
2017, at or around 11:00 a.m. in the Courtroom of the Hon.
Thomas Sipkins at the Hennepin County Courthouse,
Minneapolis, Minnesota. Counsel for Plaintiffs, Syngenta,
Monsanto Company and Mr. Carrato shall participate. On March
6, 2017, Special Master Van de North was advised that counsel
for all parties would be available at this time and place for
purposes of the meet-and-confer.
undersigned request that counsel utilize a process similar to
that outlined in a March 31, 2008 discovery order issued by
former U.S. District Court Magistrate Judge Erickson in
Cox v. Zurn Pex, Inc., No. 07-3652 (ADM/RLE) (D.
Minn.), wherein the parties were directed as follows:
T]he only means of providing the detail necessary to a
determination concerning the privileged status of a
particular document, without expensive, labor-intensive, and
voluminous documentation, is to require the party claiming
the privilege to sit on one side of a table, with the
challenging party on the other, in order to allow the
claiming party to hold the document up, with its back facing
the challenging party, so the claiming party can detail the
document's author, date, general subject matter, and the
specific reasons why the document is privileged. As the
Advisory Committee Notes for the 1993 Amendment of Rule
26(b)(5) optimistically reflect, ...