ConAgra Foods Food Ingredients Company, Incorporated v. Archer Daniels Midland Company

Filing 149

MEMORANDUM AND ORDER granting in part and denying in part 107 Motion to Compel. Signed by Magistrate Judge K. Gary Sebelius on 4/18/14. (bh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CONAGRA FOODS FOOD INGREDIENTS
COMPANY, INCORPORATED,
Plaintiff and Counterdefendant,
v.
ARCHER DANIELS MIDLAND COMPANY,
Defendant and Counterclaimant.

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Case No. 12-2171-EFM

MEMORANDUM AND ORDER
This matter comes before the court upon Defendant Archer-Daniels-Midland Company’s
Motion to Compel Discovery (ECF No. 107). Archer-Daniels-Midland Company (ADM) seeks a
court order compelling Plaintiff ConAgra Foods Food Ingredients Company, Incorporated to
produce information and documents that ADM contends is relevant to its inequitable conduct
counterclaim and its defenses against ConAgra’s patent infringement claims. Specifically, patent
applications must be filed within one year of any publication, public use or sale of the claimed
invention.1 ADM argues that any publication, public disclosure or sale of the claimed flour
before December 17, 2002, would invalidate ConAgra’s patent infringement claims against
ADM. ADM seeks a court order compelling ConAgra to respond to discovery requests aimed at
gathering documents and information about these types of flours. ConAgra lodges various
objections to these discovery requests but also generally states that it may have destroyed many
responsive documents before litigation was contemplated pursuant to ConAgra’s document
retention policies.

1

See 35 U.S.C. § 102(b).

I.

Background
ConAgra has alleged that ADM’s Kansas Diamond flour infringes the claims of the

patents-in-suit, which claim a whole wheat flour wherein at least about 98 percent of the particles
are smaller than or equal to 212 microns and has an ash value of about 97 percent of the wheat
kernel’s ash value. ADM contends it has not infringed upon the patents-in-suit because
significantly less than 98 percent of Kansas Diamond flour’s particles are less than 212 microns,
and ADM contends the patents-in-suit are invalid because ConAgra was making and publically
disclosing a flour that fell within the scope of the claims of the patents-in-suit well before it had
filed for patent protection. The present dispute involves discovery requests aimed at gathering
information and documents about the ConAgra flours similar to that of the patents-in-suit that
were publically disclosed or sold before December 17, 2002, a year before the alleged filing date
of the patents-in-suit’s claimed parent application.
II.

Discussion
When resolving a motion to compel, the court is guided by the following principles. Fed.

R. Civ. P. 26(b)(1) defines the scope of discovery as “any nonprivileged matter that is relevant to
any party’s claim or defense—including the existence, description, nature, custody, condition,
and location of any documents or other tangible things and the identity and location of persons
who know of any discoverable matter.” For good cause, the court may also order discovery of
any matter relevant to the subject matter involved in the action.2 Relevance is broadly construed
at the discovery stage and a “request for discovery should be considered relevant if there is ‘any
possibility’ that the information sought may be relevant to the claim or defense of any party.”3

2

Fed. R. Civ. P. 26(b)(1).

3

Sheldon v. Vermonty, 204 F.R.D. 679, 689 (D. Kan. 2001) (quoting Scott v. Leavenworth Unified Sch. Dist. No.
453, 190 F.R.D. 583, 585 (D. Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999)).

2

There is no presumption in the Federal Rules of Civil Procedure that a discovery request
seeks relevant information.4 Relevance, however, is often apparent on the face of the request.5
However, when relevancy is not apparent on the face of the request, the proponent of the
discovery request must, at the outset, show the relevance of the requested information.6 When a
discovery request seeks facially relevant information or when the proponent of the discovery has
demonstrated relevance, objecting party bears the burden to show how the discovery request is
objectionable.7
A. Interrogatory No. 21
This interrogatory asks ConAgra to,
Identify each whole wheat flour that ConAgra has sold since 1998,
including any identifying name under which the flour was sold,
any name the flour was known as internally at ConAgra, the dates
and location of the flour’s production, the particle size distribution
of the flour, and the ash value of the flour.8
Subject to certain objections, ConAgra initially responded to this interrogatory by listing
certain flours by name. ConAgra later supplemented this response to include the start date of
production and the locations for the production of each whole wheat flowers produced by
ConAgra. The supplemental response also includes an identification of documents responsive to
the particle size distribution and ash value for the flours going back until 2005.

4

Presbyterian Manors, Inc. v. Simplexgrinnell, L.P., No. 09–2656–KHV, 2010 WL 3880027, at *7 (D. Kan. Sept.
28, 2010) (citing Thompson v. Jiffy Lube Int’l, Inc., No. 05–1203–WEB, 2007 WL 608343, at *8 n.20 (D. Kan. Feb.
22, 2007)).
5

Id. (citing Thompson, 2007 WL 608343, at *8 n.20).

6

Id. at *7 (citing Thompson, 2007 WL 608343, at *8 n.20).

7

Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 633-34 (D. Kan. 2012) (“[T]he objecting party must specifically show in its
response to the motion how each discovery request is objectionable.”) (citing Sonnino v. Univ. of Kan. Hosp. Auth.,
221 F.R.D. 661, 670-71 (D. Kan. 2004)).
8

Archer-Daniels-Midland Company’s Second Set of Interrogs. at 3, ECF No. 109-2.

3

Subject to the supplemental response, the objections ConAgra continues to rely upon in
response to the motion to compel include: that the interrogatory is overly broad and unduly
burdensome to the extent it is unlimited in scope and to the extent it seeks each and every whole
wheat flour sold by ConAgra since 1998. ConAgra also objects to the extent ADM seeks to
require ConAgra to provide information beyond what is reasonably available to ConAgra after a
reasonable search of ConAgra’s files and reasonable inquiry of ConAgra’s present employees.
ConAgra does not separately discuss these objections. Although overbreadth and undue burden
objections may be related in some instances, the showing necessary to support one objection is
not necessarily the same showing required to support another.
Certain overbreadth objections are often intertwined with relevance, in that the discovery
request encompasses some information that is relevant to the claims or defenses in the case but is
drafted so broadly as to include collateral information.9 A party asserting an undue burden
objection, however, must typically set forth facts justifying the objection “by demonstrating that
the time or expense involved in responding to requested discovery is unduly burdensome.”10 This
means the objecting party must show “not only undue burden or expense but that the burden or
expense is unreasonable in light of the benefits to be secured from discovery.”11 This imposes an
obligation “to provide sufficient detail in terms of time, money and procedure required to

9

See Linnebur v. United Tel. Ass’n, No. 10-1379-RDR, 2012 WL 1183073, at *2 (D. Kan. Apr. 9, 2012).

10

G.D. v. Monarch Plastic Surgery, P.A., No. 06–2184–CM, 2007 WL 201150, at *2 (D. Kan. Jan. 22, 2007)
(quoting Horizon Holdings, L.L. C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002)).
11

Heartland Surgical Specialty Hosp. v. Midwest Div., Inc., No. 05–2164–MLB–DWB, 2007 WL 3171768, at *2
(D. Kan. Oct. 29, 2007) (quoting Cardenas v. Dorel Juvenile Grp., 232 F.R.D. 377, 380 (D. Kan. 2005)).

4

produce the requested documents.”12 Typically, this showing is made through an “affidavit or
other evidentiary proof of the time or expense involved.”13
In response to the motion to compel, ConAgra argues that the request is objectionable “to
the extent it is unlimited in scope and to the extent it seeks ‘each’ and every whole wheat flour
sold by ConAgra since 1998.”14 ConAgra goes on to state that ADM has not limited this
interrogatory to time periods that qualify as prior art. The court agrees. ADM explains it requires
this information to determine whether ConAgra was making and publically disclosing a flour
that fell within the scope of the claims of the patents-in-suit well before ConAgra had filed for
patent protection. According to ADM’s motion, the earliest priority date ConAgra can establish
is December 17, 2003, and therefore, any publication, public disclosure, or sale of the claimed
flour prior to December 17, 2002, would invalidate ConAgra’s claims.15 But the interrogatory
seeks information about flours sold after December 17, 2002. For this reason, ConAgra’s
overbreadth objection is sustained in part. The court limits the temporal scope of the
interrogatory to flours that ConAgra has sold from 1998 up to December 17, 2002.
ConAgra also argues this interrogatory seeks information beyond what is presently
available to ConAgra after a reasonable inquiry of ConAgra’s present employees. ConAgra
explains the particle size distribution and ash value for flours that were produced from 1998
through 2003 is not available to current ConAgra employees. ConAgra states the particle size

12

G.D., 2007 WL 201150, at *2 (quoting Horizon Holdings, 209 F.R.D. at 213).

13

Sonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 653 (D.Kan.2004) (citing Bradley v. Val–Mejias, No. 00–
2395–GTV, 2001 WL 1249339 at *6 n.4 (D. Kan. Oct. 9, 2001)).
14

ConAgra’s Resp. to ADM’s Mot. to Compel at 4, ECF No. 124.

15

See Mem. in Supp. of Def. Archer-Daniels-Midland Company’s Mot. to Compel Disc. at 1, ECF No. 108-1
(sealed).

5

distribution of flours remains relatively constant from year to year, but the ash value can vary
during different crop seasons.
These statements are not sufficient to support an undue burden objection. For one,
ConAgra fails to set forth an estimate of the time or expense that would be involved with fully
responding to the interrogatory. From ConAgra’s response brief, the court cannot even tell
whether it is possible for ConAgra to fully respond. ConAgra has attached the affidavit of
Brandon Headlee, the director of quality for ConAgra Foods, Inc.16 Mr. Headlee attests that prior
to 1999, ConAgra Foods and its milling operations did not have a centralized database for
maintaining testing data including quality test data and certificates of analysis. The affidavit goes
on to state that around 1999, the milling operations utilized a LabVantage software tool to
maintain any certificates of analysis that were generated, but a certificate of analysis was only
generated if a customer requested that one be generated. In the fall of 2006, LabVantage was
replaced with a tool called Saphire, which presently is no longer used. The affidavit states that
the LabVantage tool is no longer accessible or in existence as a database of information to
ConAgra Mills. Missing from ConAgra’s response brief and the court’s own review of the
attached affidavits is key information about what it would take in terms of time or expense for
ConAgra to be able to respond to this discovery request. Without this information, the court will
not sustain an undue burden objection. ConAgra separately objects to this interrogatory to the
extent ADM seeks to require ConAgra to provide information beyond what is reasonably
available after a reasonable search. ConAgra cites no legal authority in support of this separate
objection. Indeed, it seems this objection is merely part of ConAgra’s undue burden objection—
that the potential benefit of discovery is outweighed by the potential burden in fully responding.

16

See Decl. of Brandon Headlee, ECF No. 124-1.

6

Because ConAgra has not supported this objection by specifically detailing the time or expense
involved with fully responding to this interrogatory, the court overrules its undue burden/notreasonably-available objection.
ConAgra shall supplement its response to this interrogatory within fourteen (14) calendar
days from the date of this order. As detailed above, ConAgra may limit the temporal scope of
this interrogatory to flours that ConAgra has sold from 1998 up to December 17, 2002. Based on
the present record, the court is without knowledge as to what additional steps ConAgra may take
to locate additional responsive information. Federal Practice and Procedure provides a helpful
overview of how a party complies with its discovery obligations when responding to an
interrogatory:
In answering interrogatories, a party is charged with knowledge of
what its agents know, or what is in records available to it, or even,
for purposes of Rule 33, information others have given it on which
it intends to rely in its suit. . . . [If] a party cannot answer an
interrogatory, it is entitled to so state under oath. If a party is
unable to give a complete answer to an interrogatory, it should
furnish any relevant information that is available. A responding
party may give his or her belief or understanding if the information
is not based upon personal knowledge.17
ADM’s Interrogatory No. 21 seeks information highly relevant to ADM’s defenses and
counterclaims. To the extent it has not already done so, ConAgra shall conduct a thorough search
to provide ADM with the information it seeks. ConAgra is cautioned that the court will not
sustain future objections to discovery requests based on largely speculation that responsive
information may not be readily accessible or may no longer exist as a result of ConAgra’s
document retention policy. While the affidavits ConAgra presents in support of its response brief
detail the steps ConAgra has taken to respond to ADM’s discovery request, they lack critical

17

8B Charles Alan Wright, et al., Federal Practice and Procedure § 2177 (3d ed. 2013).

7

information about whether ConAgra may have additional responsive information, and if so,
where it is located and what it would take for ConAgra to produce it to ADM.
B. Request Nos. 91, 92, and 103
These requests seek documents regarding flours manufactured by ConAgra that have the
same or substantially the same characteristics as the patents-in-suit. ADM argues this discovery
goes to its defense that ConAgra cannot allege in good faith that a flour that has 82 percent of its
particles smaller than 212 microns infringes on the patents-in-suit if ConAgra was selling this
type of flour before the December 2002. In its response brief, ConAgra continues to object to
these requests on the basis that they pose an undue burden and are overly broad. Subject to these
objections, ConAgra has produced some responsive documents.
The court sustains ConAgra’s overbreadth objection. Request Nos. 91, 92, and 103 all
lack any temporal limitation. This district has previously found that an interrogatories without
any temporal limitation are overly broad.18 It seems possible that documents created after 2002
could conceivably establish prior art if the documents referenced flours that were publically
disclosed prior to 2002. Nevertheless, it seems that documents created before December 2002
would be more likely to contain this type of information. The court recognizes that in many
instances, judges in this district will reform requests for production that lack temporal limitation,
but in this case, the requests are also overly broad on other grounds as well.
Each of these discovery requests seek “all documents concerning, referencing, or related
to” the respective type of flour listed in each of the three requests. These requests for production
use omnibus terms. Judges in this district have held that a discovery request may be facially
18

See Hock Foods, Inc. v. William Blair & Co., No. 09–2588–KHV, 2011 WL 884446, at *7 n. 61 (D. Kan. Mar.
11, 2011) (finding that a discovery request with no temporal scope was facially overly broad); Stouder v. M & A
Tech., Inc., No. 09–4113–JAR, 2011 WL 673763, at *4 (D. Kan. Feb. 17, 2011) (same); Hammond v. Lowe’s Home
Ctrs., Inc., 216 F.R.D. 666, 676 (D. Kan. Aug. 15, 2003) (finding that an interrogatory with no temporal limitation
was overly broad and limiting the time period).

8

overly broad if the omnibus term “is used with respect to a general category or broad range of
documents.”19 As a guideline for evaluating the use of omnibus terms in discovery requests,
judges in this district frequently refer to Magistrate Judge Gerald L. Rushfelt’s statements in
Audiotext Communications v. U.S. Telecom, Inc.:20
Requests which are worded too broadly or are too all inclusive of a
general topic function like a giant broom, sweeping everything in
their path, useful or not. They require the respondent either to
guess or move through mental gymnastics which are unreasonably
time-consuming and burdensome to determine which of many
pieces of paper may conceivably contain some detail, either
obvious or hidden, within the scope of the request. The court does
not find that reasonable discovery contemplates that kind of
wasteful effort.21
In this case, ADM’s omnibus terms pertain to large categories of information—the
technical descriptions of the flours. For example, Request No. 91 seeks documents concerning,
referencing, or relating to “any whole wheat flour ConAgra has manufactured wherein the
particle size distribution of the flour is such that at least 82% of the particles by weight are less
than or equal to 212 micrometers, including but not limited to documents pertaining to the ash
value of such flour.”22 Request Nos. 92 and 103 use other technical descriptions.23 These
requests essentially require ConAgra to first determine which types of flours could meet this
19

See Johnson v. Kraft Foods of N. Am., Inc., 238 F.R.D. 648, 658 (D. Kan. 2006) (listing cases in this district
reaching the same conclusion about omnibus terms in discovery requests).
20

No. 94-2395-GTV, 1995 WL 18759 (D. Kan. Jan. 15, 1995).

21

Id. at *1.

22

Archer-Daniels-Midland Company’s Second Set of Reqs. for Produc. and Things (Nos. 88-108) at 4, ECF No.
109-3.
23

Request No. 92 seeks documents concerning, referencing or relating to “any whole wheat flour that ConAgra has
or had manufactured wherein the particle size distribution of the flour is such that at least 82% of the particles by
weight are less than or equal to 150 micrometers, including but not limited to documents pertaining to the ash value
of such flour. Id. Request 103 seeks documents concerning, referencing, or relating to “any fine whole wheat flour
ConAgra has ever manufactured that had a measured ash value of over 85% of the ash value of a whole wheat
kernel.” Id. at 7.

9

technical description before attempting to locate responsive documents. ConAgra would not only
need to produce all documents referencing the flours, but it would also need to produce
documents that—while not necessarily referencing the flours—“concern” the flours or “relate to”
the flours. As presently drafted, the requests do not provide ConAgra with sufficient detail about
the types of documents ADM seeks. For these reasons, ConAgra’s overbreadth objections are
sustained. It need not further respond to these requests. ADM, however, is free to serve more
narrowly tailored document production requests aimed at gathering information relevant to the
issue of prior art.
C. Request Nos. 88, 89, 90, and 101
ADM states it cannot determine whether ConAgra has fully responded to these requests
or whether ConAgra has withheld documents pertaining to the ultrafine whole wheat flour used
in the United States Department of Agriculture studies and disclosed in specific scholarly articles
written by Judith Hallfrisch, Ph.D, FACN, and Kay M. Behall, Ph.D. In response, ConAgra
states it “has conducted a diligent and comprehensive search” and “is not withholding any
additional relevant documents responsive to Request Nos. 88, 89, 90, or 91.”24 ConAgra’s
statement that it has not withheld any relevant responsive documents is somewhat confusing in
that it is unclear whether ConAgra possesses responsive documents that ConAgra believes are
not relevant. To the extent ConAgra has within its possession, custody, or control additional
responsive documents, it shall produce them. ConAgra does not specifically reference Request
No. 101, perhaps in error. To the extent it has not fully responded to this request for production,
it is ordered to do so. ConAgra has failed to support any objections to these requests, and so they
are overruled. ADM’s motion to compel is granted as to these requests for production. If

24

ConAgra’s Resp. to ADM’s Mot. to Compel at 9, ECF No. 124.

10

ConAgra has in its possession, custody, or control any additional responsive documents, it shall
produce them within fourteen (14) calendar days form the date of this order.
D. Request Nos. 95, 96, and 102
These requests seek documents concerning Canadian Pat. No. 2,141,974 (“Chigurupati
I”), U.S. Patent Application 08/194,672, or any documents detailing any test results for flour
produced covered by Chigurupati I or U.S. Appl. ‘672. ADM contends the flours subject to the
respective patent and U.S. patent application contained 100 percent of particles smaller than 150
microns. ConAgra states it has performed a diligent and comprehensive search for documents. It
states it has produced all documents located in its search pertaining to these requests. However,
in its reply brief, ADM reiterates its request for an order compelling a further response and
disputes ConAgra’s assertions that it has produced all documents responsive to these request.
ADM takes issue with the declaration of in-house counsel for ConAgra, which details some of
the steps taken to respond to the discovery requests—including electronic searches of data. The
court is unclear whether in-house counsel’s declaration contains an exhaustive list of search
terms or some examples of searches conducted in an attempt to locate responsive documents.
When a party responding to discovery takes the position that it has fully responded, the
court usually will not compel a further response absent evidence that the responding party has
improperly withheld documents.25 ADM speculates that additional responsive documents “may
be stored in archived, hard-copy records and may not be uncovered by [] mere electronic search

25

See Stouder v. M&A Tech. Inc., No. 09-4113-JAR, 2011 WL 768738, at *4 (D. Kan. Feb. 28, 2011) (stating that
plaintiff had not come forward with any evidence from which the court could conclude defendants had withheld
responsive documents); Heartland Surgical Specialty Hosp. v. Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007
WL 950282, at *23 (D. Kan. Mar. 26, 2007) (denying a motion to compel as to document requests to which the
responding parties stated they had fully responded).

11

terms.”26 ADM is free to serve discovery regarding the location of certain documents. The
undersigned has also held that in some situations, it is appropriate to allow discovery on the issue
of a party’s efforts to locate and produce responsive documents.27 Based on the present record,
however, the court lacks any evidence from which it could conclude that ConAgra has failed to
produce additional responsive documents. For this reason, ADM’s motion to compel is denied as
to these requests. ConAgra is reminded, however, that it must timely supplement its responses to
discovery requests if it learns that its prior response is incomplete or incorrect and if the
additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.28
E. Documents in the Custody of Glen Weaver, Sam Rao Chigurupati, and Michael
Wolt
Glen Weaver, Sam Rao Chigurupati, and Michael Wolt are the named inventors of
ConAgra’s Chigurupati I and U.S. Appl. ‘672, mentioned above. ADM requests a court order
compelling ConAgra to produce documents in the custody of these individuals. ADM’s motion,
however, does not detail the deficiencies with ConAgra’s production. It merely states that these
documents are highly relevant.
ConAgra contends it has conducted a comprehensive and diligent search for documents
and has produced all of the responsive, non-privileged documents located in its search. ConAgra
details the efforts it has taken to locate responsive documents in the possession of Mr. Weaver.
26

Reply Mem. in Supp. of Def. Archer-Daniels-Midland Company’s Mot. to Compel Disc. at 11, ECF No. 135
(sealed).
27

See Cotton v. Costco Wholesale Corp., No. 2013 WL 3819975, at *3 (D. Kan. July 24, 2013) (allowing discovery
on the issue of defendant’s efforts to locate and produce electronically stored information); see also Ruiz-Bueno v.
Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013) (discussing discovery about discovery and
granting a motion to compel responses to interrogatories seeking information about the opposing party’s attempts to
search for and produce electronically stored information).
28

Fed. R. Civ. P. 26(e)(1)(A).

12

Mr. Chigurupati and Mr. Wolt, however, have not worked for ConAgra for approximately seven
years.
Parties have a right to request documents and electronically stored information within the
opposing party’s possession, custody, or control.29 “[D]ocuments are deemed to be within the
possession, custody or control if the party has actual possession, custody or control or has the
legal right to obtain the documents on demand.”30 “The party seeking production under Rule 34
has the burden to prove the responding party has the requisite control.”31
ADM fails to come forward with any information suggesting that ConAgra has the legal
right to obtain on demand documents in the possession of Mr. Chigurupati or Mr. Wolt, former
employees. ADM also fails to provide any specific information about why it believes ConAgra
has failed to fully respond to these requests. In response to the motion to compel, ConAgra’s
counsel has made representations concerning the nature and scope of ConAgra’s efforts to locate
responsive documents, as did one of ConAgra’s in-house attorneys in an attached affidavit.
ADM presents no information from which the court could conclude that ConAgra has withheld
additional documents responsive to these requests. It appears ADM’s motion is moot as to
documents in the custody of Mr. Weaver. As to documents in the custody of Mr. Chigurupati or
Mr. Wolt, ADM has not demonstrated that ConAgra has “control” over these documents. Its
motion is denied as to documents in the custody of these individuals, if any.
F. Conclusion

29

Fed. R. Civ. P. 34(a)(1).

30

Noaimi v. Zaid, 283 F.R.D. 639, 641 (D. Kan. 2012) (emphasis omitted) (quoting Ice Corp. v. Hamilton
Sundstrand, Corp., 245 F.R.D. 513, 516-17 (D. Kan. Aug. 22, 2007)).
31

Bruner-McMahon v. Cnty. of Sedgwick, No. 10-1064-KHV-GLR, 2011 WL 3704742, at *1 (D. Kan. Aug. 23,
2011) (citing Ice Corp., 245 F.R.D. at 517).

13

ConAgra shall supplement its response to Interrogatory No. 21 within fourteen (14)
calendar days from the date of this order. As detailed above, ConAgra may limit the temporal
scope of this interrogatory to flours that ConAgra has sold from 1998 up to December 17, 2002.
If ConAgra has any additional documents responsive to Request Nos. 88, 89, 90, and 101, it shall
produce them within fourteen (14) calendar days form the date of this order. Several times
throughout its brief, ConAgra states it has produced non-privileged documents. The court is
unclear whether ConAgra has withheld certain documents on the basis of attorney-client
privilege or the work product doctrine, and if so, whether ConAgra has served a privilege log on
ADM. If ConAgra has withheld documents on the basis of privilege, or if it does so in the future,
it is reminded that it must “expressly make the claim” and “describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner that,
without revealing information itself privileged or protected, will enable other parties to assess the
claim.”32 ADM’s motion is denied in all other respects. The parties shall bear their own fees and
expenses incurred as a result of the briefing on this motion.33
Accordingly,
IT IS THEREFORE ORDERED that Defendant Archer-Daniels-Midland Company’s
Motion to Compel Discovery (ECF No. 107) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 18th day of April, 2014, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge
32

Fed. R. Civ. P. 26(b)(5)(A).

33

See Fed. R. Civ. P. 37(a)(5)(C) (giving the court discretion whether to award fees and expenses when a motion to
compel is granted in part and denied in part).

14