The Delong Co., Inc. v. Syngenta AG et al

Filing 87

ORDER granting 74 Motion to Quash. Signed by Magistrate Judge James P. O'Hara on 10/16/2020. (amh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IN RE SYNGENTA AG MIR162
CORN LITIGATION

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)
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THIS DOCUMENT RELATES TO:
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The Delong Co., Inc. v. Syngenta
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AG, et al., No. 17-cv-2614-JWL
)
_________________________________ )

Case No. 14-md-2591-JWL
MDL No. 2591

ORDER
This individual case within the In re Syngenta MIR162 Corn Litigation is before the
undersigned U.S. Magistrate Judge, James P. O’Hara, on a motion by non-party Randal
Giroux to quash the deposition subpoena served him by Syngenta1 (ECF No. 74). In the
interest of judicial economy, the motion is conditionally granted, subject to being reinstated
if the presiding U.S. District Judge, John W. Lungstrum, does not preclude Giroux’s
testimony in a ruling in limine.
The question of whether and how Giroux should be deposed in this individual case
is not new. After plaintiff The DeLong Co., Inc. (“DeLong”) designated Giroux as an
unretained expert witness whose opinions it would offer at trial via recordings of testimony

1

Defendants (Syngenta AG, Syngenta Crop Protection AG, Syngenta Corporation,
Syngenta Crop Protection, LLC, and Syngenta Seeds, LLC) are referred to collectively as
“Syngenta.”
1
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in related cases,2 Syngenta moved to compel DeLong to produce Giroux for a deposition.3
In denying that motion, the undersigned ruled that although Fed. R. Civ. P. 26(b)(4)(A)
gives Syngenta the right to depose persons identified as experts whose opinions may be
presented at trial, the onus was not on DeLong to produce Giroux against his stated will. 4
Rather, the undersigned concluded that because Giroux was neither a party nor under
DeLong’s control, if he was “not willing to voluntarily sit for a deposition . . . Syngenta
must follow the procedure set out in Fed. R. Civ. P. 45 for subpoenaing a nonparty to attend
a deposition.”5
On September 4, 2020, Syngenta served the subpoena at issue. It commands Giroux
to submit to deposition via live video feed in Minneapolis, Minnesota. Within a week of
service, Giroux filed the instant motion to quash the subpoena in the District of Minnesota,
pursuant to Rule 45(c). Close on its heels came a motion by Syngenta to transfer the motion
to quash to this court under the exceptional-circumstances provision of Rule 45(f).6 After

Specifically, DeLong disclosed its intention to present Giroux’s opinions “by his
prior trial testimony in the [MDL] Kansas farmer class trial, and potentially his trial
testimony in the coordinated action pending in the state district court of Hennepin County,
Minnesota.” ECF No. 64-1 at 2. It further “reserve[d] the right . . . to use at trial [his]
other deposition or trial testimony in the MDL, or in the referenced, coordinated
proceeding.” Id. at 3.
2

3

ECF No. 63.

4

ECF No. 67 at 4.

5

Id. at 4-5.

In denying Syngenta’s motion to compel and directing Syngenta to follow Rule
45, the undersigned ordered Syngenta to “inform the assigned Minnesota judge that the
2
6

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full briefing and a hearing on the motions, U.S. District Judge Eric C. Tostrud granted
Syngenta’s motion to transfer in a thorough opinion issued on October 9, 2020.7 The
motion was transferred to this court on October 15, 2020, and is ripe for ruling.8
When the question of Giroux’s deposition was last before the court, the undersigned
was inclined to decide the then-anticipated motion to quash prior to Syngenta’s deadline
for filing a motion in limine to exclude Giroux’s testimony at trial.9

But further

development of the record arising from the motion to quash has indicated a different
approach will be more efficient.
Specifically, Giroux and Syngenta have fully developed their arguments about what
effect Syngenta’s upcoming motion in limine might have on the need for Syngenta to
further depose Giroux.10 Giroux has filed a declaration, under penalty of perjury, stating
he (1) knows “nothing about DeLong’s case against Syngenta,” (2) has “not reviewed any
documents produced by DeLong,” and (3) has not “applied [his] previous opinions

undersigned magistrate judge is amenable to accepting transfer of [a motion to quash]
under Rule 45(f).” Id. at 6.
7

ECF No. 86.

Additional background of this dispute was set out in the court’s September 4, 2020
order denying the motion to compel (ECF No. 67), and the court presumes the reader’s
familiarity with that opinion.
8

9

ECF No. 67 at 6-7.

See, e.g., ECF No. 80 at 5 (Syngenta’s recognition that if Giroux’s opinions will
not come in at trial, “there will be no need for a deposition”); ECF No. 83 at 15-16
(Giroux’s argument that any “need” by Syngenta for the deposition “will evaporate” if a
motion in limine is granted).
10

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concerning the reasonableness of Syngenta’s commercialization of Viptera and Duracade
to any circumstances that are unique to DeLong.”11 In light of this declaration, it is possible
that Judge Lungstrum might limit or fully exclude Giroux’s former testimony based, for
instance, on the Fed. R. Evid. 702(a) analysis of whether it would be helpful to the jury.
And although DeLong has designated Giroux an expert on other, less case-specific topics
(such as “the standard of care for the responsible commercialization of new biotech traits”
and “the nature and characteristics of the U.S. corn industry”), 12 if Judge Lungstrum limits
Giroux’s testimony to his previous discussion of such broad topics, the limit would
influence the court’s opinion on whether Syngenta can show a substantial need to compel
Giroux to give additional deposition testimony, particularly given Syngenta’s past
opportunities to question Giroux on the broad topics. Of course, if Judge Lungstrum fully
excludes the admission of Giroux’s testimony at trial, for whatever reason, Syngenta’s
reason for seeking to depose Giroux becomes moot. 13

11

ECF No. 76 at 1-2.

12

ECF No. 65-1 at 15-16 (expert disclosure of the bellwether plaintiffs in the MDL
trial, re-served by DeLong in this case).
Syngenta has stated it seeks Giroux’s deposition to solicit testimony that Giroux
did not reach opinions about “intervening events” that have occurred since his offered
testimony “so that the jury can properly assess the weight to be given his opinions.” ECF
No. 80 at 16-17. Of course, if the jury will not hear Giroux’s testimony, this reason no
longer stands.
13

The undersigned certainly takes no position on how Judge Lungstrum should or will
rule, but simply notes the present uncertainty of his ruling on the limine motion weighs in
favor of granting the motion to quash at this time.
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In addition, Syngenta has argued the Coordination Order in the MDL does not
permit DeLong to use expert deposition testimony from other coordinated proceedings save
for impeachment and that Giroux’s past risk-assessment opinions did not consider damages
focused on exporters like DeLong whose business centers on distiller’s dried grains with
solubles (“DDGS”).14 While these arguments are not new, they also favor an approach
whereby they are resolved by Judge Lungstrum in a motion in limine before an additional
deposition of Giroux is considered, as Judge Lungstrum’s decision would help frame the
relevance and necessity analysis applicable to Rule 45(d).15
The undersigned recognizes there is an argument to be made that Syngenta be
permitted to depose Giroux prior to filing its motion in limine such that it might obtain
testimony from Giroux to support its argument that Giroux is not a sufficient expert with
respect to DeLong’s individual case. But Syngenta’s arguments in briefs, taken with
Giroux’s declaration, suggest Syngenta already has sufficient evidence and a factual
narrative developed to support the argument it says it will make in limine. Any limited,
additional evidence that could be gleaned from an early deposition of Giroux does not
outweigh the interest of a nonparty to not give testimony against his will (unless such

14

ECF No. 63 at 7-8.

15

The court notes the Rule 26(b)(4)(A) right to depose an expert who may testify at
trial yields to the protections of Rule 45(d). See Inglis v. Wells Fargo Bank N.A., No. 14cv-677-FtM-29CM, 2016 WL 4193858, at *2 (M.D. Fla. Aug. 9, 2016); Certain
Underwriters at Lloyd’s, London Subscribing to Certificate No. IPSI 12559 v. SSDD, LLC,
No. 4:13-CV-193 CAS, 2014 WL 239303, at *2 (E.D. Mo. Jan. 22, 2014).
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testimony is shown to be necessary).16 The court therefore resolves this chicken-or-egg
question in favor of protecting Giroux.
IT IS THEREFORE ORDERED that the motion to quash is granted as a matter of
judicial economy, for the reasons discussed above and without considering its substantive
merits. Syngenta’s motion in limine regarding Giroux’s expert testimony is due October
23, 2020.17 With respect to this motion only, the briefing deadlines set in the pretrial order
are amended: the response will be due October 30, 2020, and the reply will be due
November 5, 2020. The principal briefs shall be limited to 10 double-spaced pages, and
the reply shall be limited to 5 double-spaced pages. Should Judge Lungstrum deny the
motion in limine (or reserve ruling until trial), the court will reactivate the motion to quash
and decide it on the current briefs.
Dated October 16, 2020, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

See ECF No. 75 at 23 n.9 (Giroux’s argument that “to avoid unnecessary burden
to Giroux, Syngenta could have first made its arguments for why Giroux’s prior trial
testimony about Syngenta’s misconduct in 2010‐2014 should be excluded because Giroux
did not render opinions about DeLong or about a trade dispute between the U.S. and China
that began in 2018—the two bases Syngenta offered for why it wants to depose Giroux.
And if the Court were to conclude that those bases are irrelevant to the admissibility of
Giroux’s opinion—for example, because DeLong’s damages period ended by February 15,
2015—then no deposition of Giroux would be needed.” (emphasis in original; internal
citation omitted)).
16

17

See ECF No. 73 at 37, 39.
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