Syngenta Seeds, LLC v. Warner
Filing
753
OPINION AND ORDER (REDACTED VERSION): Plaintiff's Motion for Partial Summary Judgment Against Defendants Joshua Sleper and Todd Warner 547 is GRANTED. Plaintiff's Partial Motion to Exclude Testimony and Opinions of Jerry Bui 555 is DENI ED. Defendant Warner's Motion for Summary Judgment 561 is GRANTED IN PART and DENIED IN PART. Plaintiff's Motion to Exclude Bone Projections 568 is DENIED AS MOOT. Defendants' Motion to Exclude Testimony from Donald Gorowsky 574 is DENIED. Defendants' Motion to Exclude Testimony from Robert Meekins 588 is DENIED. Plaintiff's Motion to Exclude Testimony and Opinions of Dr. Shawn Kaeppler 597 is DENIED. Defendants' Motion to Exclude Testimony from Dr. J. Ste phen Smith 606 is GRANTED. Defendants' Joint Motion for Summary Judgment Or, In The Alternative, Partial Summary Judgment 614 is GRANTED. Defendants' Joint Motion to Strike the Declarations of Dominic Tucker and Shreyartha Mukherjee 702 is GRANTED IN PART and DENIED IN PART. See Order for specifics. (Written Opinion). Signed by Judge Eric C. Tostrud on 2/8/2023.(RMM)
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Ten (sometimes interdependent) motions require a decision. Defendants together
filed five motions: a motion for summary judgment, a motion to exclude Syngenta’s
technical expert, a motion to exclude Syngenta’s forensic expert, a motion to exclude
Syngenta’s damages expert, and a motion to strike the declarations of two Syngenta
employees. And Warner individually filed a summary-judgment motion. Syngenta filed
four motions: a motion for partial summary judgment, a motion to exclude Defendants’
technical expert, a motion to exclude Defendants’ forensic expert, and a motion to exclude
Defendants’ damages expert.
The upshot is this:
Summary judgment will be entered in FBN’s favor, and partially in Warner
and Sleper’s favor, because no reasonable juror could find for Syngenta on
its trade-secret-misappropriation claims.
Important to this
summary-judgment decision, Defendant’s motion to exclude Syngenta’s
technical expert will in relevant part be granted, as will Defendants’ motion
to strike the declaration of a Syngenta employee. Syngenta cannot rely on
these two witnesses’ testimony to show the presence of a genuine fact dispute
as to its trade-secret claims.
Warner’s separate summary-judgment motion will be denied.
Syngenta’s motion for partial summary judgment will be granted as to both
Warner and Sleper.
All other motions will be denied.
These rulings leave no claims remaining against FBN. Left for trial are Syngenta’s claims
against Warner for tortious interference with contract and breach of contract, and
Syngenta’s claims against Sleper for breach of contract. With respect to Syngenta’s claims
against both Warner and Sleper under § 14(a) of their employment agreements, the only
issue for trial will be damages.
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I
Syngenta’s relevant business activities. Syngenta is an agriculture technology
company that develops and produces plant seeds through advanced research-anddevelopment and data analytics. ECF No. 618-52 at 21.1 Syngenta’s objective is to
produce new seed varieties that maximize desirable genetic characteristics and minimize
undesirable characteristics. Id. at 21–22. To this end, Syngenta uses “data-driven trial
designs” to “improve seeds offerings through breeding plants to enhance precise
characteristics.” Id. Through genotypic, phenotypic, and environmental data, “Syngenta
is able to evaluate and predict which seed genetics are best for particular environments.”
Id. at 22–23. It then selects the best progeny for market release, use in hybrid seed
production, or use as a parental line. Id. at 33–34, 49, 115. After expending “hundreds of
millions of dollars in research-and-development expenditures” resulting in “decades of
research” and “billions of datapoints,” Syngenta has developed “vast germplasm” and “the
most advanced products in the market.” Id. at 115, 126, 130.
Syngenta’s trade-secret protective measures. Syngenta has policies and procedures
to ensure that its trade-secret information remains confidential. Id. at 116–25. For
example, it limits visitor access in its buildings and requires key cards for entry. Id. at 116–
18. It operates an in-house department solely responsible for monitoring IT security threats
and uses several software programs to identify and protect against security breaches. Id.
at 121. As discussed in more detail below, Syngenta requires its employees to sign
1
All page citations are to ECF pagination except for deposition transcripts, which are
cited to the transcript’s original pagination.
3
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nondisclosure agreements, and it documents its confidentiality policies elsewhere,
including an “Employee Handbook” that “contains strict confidentiality policies, and codes
of conduct governing [employees’] access, use, and disclosure of confidential
information.” Id. at 119–20. Employees must acknowledge their understanding of these
policies and re-confirm their understanding of Syngenta Codes of Conduct on an annual
basis. Id. at 120. Syngenta mandates that its employees receive training regarding the
protection of trade secrets, information security, corporate ethics, conflicts of interest,
responsible business communications, and fraud prevention. Id. at 124.
Warner’s role at Syngenta.
Warner, a Minnesota resident, was a leader in
Syngenta’s research-and-development division, serving most recently as the “Head
Quantitative Breeding Data Management and Analysis” and, before that, as “Head Corn
Genetic Project Discovery Lead, Scientist IV.” ECF No. 552-1. In these roles, Warner
“[e]stablished database logic for historical data including genotype, phenotype, and
environmental data for multi-use applications (including genomic prediction, genomic
selection, trial design, and product development pipeline optimization, etc.).” Id. He was
a “[k]ey contributor to development of germplasm and breeding strategies in developing
markets working directly with breeding teams.” Id.
Sleper’s role at Syngenta. Sleper, also a Minnesota resident, was a research-anddevelopment scientist focused on Syngenta’s genetic and quantitative breeding, and he
reported directly to Warner until November 2019. ECF Nos. 552-5, 664-1 at 120–21.
Sleper testified that his role was to “utilize breeding data to make the breeding process
more efficient.” ECF No. 665-2 at 53.
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ECF No.
618-52 at 74–75. These calculated marker effects allow Syngenta to estimate and predict
lines with “specific tester combinations” and “calculate an overall breeding value for lines
that are generated in the pipeline.” Id. at 75. Based on their research and Syngenta
historical data, Warner and Sleper created a presentation for Syngenta leadership titled
“Reimagining Early Stage Breeding: Automation and Accelerating Genetic Gain.” ECF
Nos. 669-6, 669-7. The presentation provided research “around automating the early stage
of corn breeding” and gave a “high level overview of how to accelerate genetic gain” at
Syngenta. ECF No. 669-6.
Warner and Sleper’s Syngenta employment agreements.
Both men signed
essentially identical employment agreements with Syngenta. ECF Nos. 552-2, 552-6. The
agreements contain three provisions relevant to this case. The first is a non-compete
provision (§ 5(c)), which generally prohibits employees from “engag[ing],” “directly or
indirectly, as principal, agent, [or] consultant,” in the same type of “Business” as Syngenta
during their employment and for one year thereafter. Id. §§ 5(c), 12, 13. The second is a
nondisclosure provision (§ 6(a)), which requires employees to “keep and maintain” a
defined subset of “Confidential Information in strictest confidence” and, except as required
for their assigned work, to refrain from “us[ing],” “publish[ing],” or “disclos[ing]” “any
information, knowledge or data relating to the Company” or “owned by, controlled by or
in the possession of the Company.” Id. § 6(a). “Confidential Information” is defined in
Syngenta’s Confidential and Proprietary Rights Agreement to include a long list of items
ranging from “product or service information” to “trade secrets” to “fees, costs and pricing
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structures” and “all similar and related information in whatever form.” ECF No. 552-4 at
3, § 4. The third is a provision requiring employees to return certain company property
upon the termination of employment. ECF Nos. 552-2, 552-6 § 14(a). This requirement
applies to all “documents, whether or not obtained from [Syngenta], which pertain to
[Syngenta], contain Confidential Information or were received or used by [the e]mployee
in connection with [his] employment by [Syngenta].” Id.
FBN’s business activities. FBN is an “information network and e-commerce
platform” that allows farmers to create a profile and anonymously input information about
their crops and the productivity of their farms. ECF No. 670-2 at 4. The data is then made
public to all members. Id. FBN also sells seeds, crop protection, nutrients and fertilizers,
and biostimulants. Id. Before 2019, FBN purchased or licensed seeds from third parties;
in 2019, it took steps to establish an internal seed-breeding program. Id. at 5.
FBN takes steps to establish a seed-breeding program, including communications
with Warner. In 2019, FBN acquired a group of companies affiliated with Pegasus
Genetics, a research, development, and sales organization that also had a breeding
operation. ECF No. 618 at 18–19. By May 2019, Warner was in touch with Ron
Wulfkuhle, a former Syngenta employee who had become the head of FBN’s Seed R&D
Department. ECF Nos. 664-3 at 3, 670-7 at 53, 552-13, 552-14. Warner wrote to
Wulfkuhle that he was “interest[ed] in the opportunity to setup a cutting edge molecular
breeding and modeling team” and that he and Sleper had worked together to create the
systems currently in place at Syngenta, and that they “can jump start early stage breeding
at FBN that exploits new technology implementation.” ECF No. 552-13.
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The Albert Lea meeting. These initial contacts led to a meeting between Warner,
Sleper, and Wulfkuhle at a restaurant in Albert Lea, Minnesota, in June 2019, while both
Warner and Sleper were still employed at Syngenta. ECF No. 665-2 at 153–54. The
meeting lasted “an hour or two.” Id. at 181; ECF No. 552-14 at 2. After the meeting,
Wulfkuhle wrote to another FBN employee that Warner and Sleper had “great ideas on
how to bring genomics and phenomics concepts to life . . . to outperform the
multinationals.” ECF No. 552-14 at 2.
Warner and Sleper share the “BreedingPlanCosts” document with FBN. A few
days after the Albert Lea meeting, Warner and Sleper sent Wulfkuhle an email with the
subject line, “Seed R&D Plans,” in which they “develop[ed] a vision document for a new
breeding team at FBN” and included “basic cost structures needed to implement this plan.”
ECF No. 552-16. Specifically, Warner and Sleper attached to the email a PDF entitled
“BreedingPlanCosts,” which included information about developing germplasm and
accelerating genetic gain beyond industry standards. Id.; ECF No. 551-4. At least on the
surface, the PDF appears to describe, in general terms, strategies and cost allocations for a
hypothetical breeding program. Id. The document very closely mirrors the Reimagining
Presentation that Warner and Sleper created for Syngenta leadership—they are almost
word for word the same. See ECF No. 669-7. Sleper testified that they created the
BreedingPlanCosts document in response to Wulfkuhle’s request that they send him slides
on their “basic vision and understanding” of what they would do, if hired, to capture five
to ten percent of the market share for FBN. ECF No. 665-2 at 156–58. FBN shared the
document internally. ECF No. 671-5. One day after sending the BreedingPlanCosts
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document, Warner and Sleper met with Matt Meisner, FBN’s head of data analytics. ECF
Nos. 671-3 at 32–33, 664-6. Meisner’s notes from this meeting describe Warner and
Sleper’s vision for FBN to “catch up quickly with the big companies and outcompete if
[they] do it right” and their opinion that “[d]ata is king.” ECF No. 671-6. Under Warner’s
qualifications and experience, Meisner listed “historical data from SYT,” where “SYT”
stands for Syngenta. Id.
Warner and Sleper continue to work for Syngenta and continue to communicate
with FBN. In text messages between the two men in October 2019, Sleper wrote that “no
one gets how much we know,” asked Warner about the expiration date for a particular
patent, and suggested that they “find some more data.” ECF No. 551-8. Warner testified
that these texts were about his and Sleper’s potential employment at FBN. ECF No. 5513 at 253–55, 257–58, 260. Warner and Sleper continued to communicate with FBN in
subsequent months. ECF Nos. 552-17, 552-18, 552-19.
FBN employs Sleper but not Warner. FBN formally offered to hire Sleper in April
2020 and Warner in May 2020. ECF Nos. 618-7 at 116–17, 618-10 at 15–16. FBN
staggered the offers to maneuver around the non-compete period in both Warner’s and
Sleper’s Syngenta employment contracts. ECF Nos. 552-2, 552-6, 552-23, 552-24, 55225. Sleper provided notice of his FBN job offer on April 22, 2020, and he began work for
FBN about a month later on May 18, 2020. ECF Nos. 552-26, 552-9 at 116. On Sleper’s
last day at Syngenta, he turned in his laptop and phone. ECF No. 552-9 at 39. Warner
provided notice of his intent to accept a job offer with FBN on May 13, 2020, and on
May 26, 2020, Syngenta invoked its non-compete option. ECF Nos. 552-32, 551-3 at 156–
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57. Because Warner’s offer from FBN was contingent on Syngenta waiving the noncompete provision, Warner was never employed by FBN. ECF No. 618-10 at 15–16.
Sleper’s work while employed at FBN. At FBN, one of Sleper’s first tasks was to
create a list of seed lines for FBN to order for its breeding program. About a week after he
began work at FBN, Sleper circulated a recommended list of 84 seed lines. ECF No. 61850. Shortly thereafter, Sleper gave the list to Scott Johnson, FBN’s Senior Corn Breeder,
who approved an order for several seed lines based on that list. ECF Nos. 618 at 129–31,
670-3 at 262. Sleper also created a “Pipeline Proposal” presentation, which he co-authored
with FBN colleague James Johnson. ECF Nos. 618-41, 665-2 at 218, 222. The purpose
of the presentation was to explain “the evolution of plant breeding at FBN going forward.”
ECF No. 665-2 at 218. Sleper and Johnson presented the Pipeline Proposal to the FBN
Seeds R&D team in June 2020. ECF No. 665-2 at 222.
Sleper spoliates evidence. Six months after joining FBN and three days after being
named a party in this case, Sleper used a program called “CCleaner®” on his personal
laptop and his external LaCie Drive, which permanently deleted files and spoliated
potential evidence.2 ECF No. 532 at 8–9, 12–13. Sleper disclosed this to FBN and was
put on unpaid leave pending this case’s outcome. ECF No. 618-20 at 125. Since then,
FBN has had no meaningful contact with Sleper. ECF No. 532 at 11–12.
2
Magistrate Judge Thorson found “that Dr. Sleper’s conduct warrant[ed] the
imposition of an adverse inference on Syngenta’s breach-of-contract claim as it is asserted
against Dr. Sleper.” ECF No. 532 at 16–17.
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Syngenta files this case. Syngenta brought this action in June 2020 against Warner
for breach of contract and misappropriation of trade secrets under federal and state law.
Compl. [ECF No. 1] ¶¶ 71–96. By stipulation, the Parties agreed that Syngenta could
conduct expedited third-party discovery of FBN and its employees. ECF Nos. 6–9. That
discovery led Syngenta to amend its complaint to add claims against Sleper and FBN. See
Am. Compl. [ECF Nos. 38–39] ¶¶ 90–139. At that point, Syngenta included claims for
breach of contract; violations of the North Carolina Trade Secrets Protection Act, N.C.
Gen. Stat. § 66-153; violations of the federal Defend Trade Secrets Act, 18 U.S.C.
§ 1836(b); tortious interference with a contract; violations of the California Unfair
Competition Law, Cal. Bus. & Prof. Code § 17200; and civil conspiracy.
Relevant procedural history. Warner filed an answer to the Amended Complaint,
ECF No. 53, but FBN and Sleper filed a joint motion to dismiss the case under Rule
12(b)(6). ECF No. 61. Shortly before filing a response to the motion, Syngenta filed a
Second Amended Complaint. ECF No. 69. FBN and Sleper’s motion to dismiss was
granted in part and denied in part.
ECF No. 159.
Syngenta’s claims for tortious
interference with contract against Sleper and FBN and its claim under the California Unfair
Competition Law were dismissed. Id. at 2, 47. All other claims moved forward.
II
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if its resolution might affect the outcome
of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986). A dispute over a fact is “genuine” only if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. “The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”
Id. at 255 (citation omitted). A “smoking gun” is not required for the non-movant to defeat
a summary judgment motion. Teleconnect Co. v. Ensrud, 55 F.3d 357, 360 (8th Cir. 1995).
But the non-movant must show “more than mere speculation, conjecture, or fantasy.” Clay
v. Credit Bureau Enters., Inc., 754 F.3d 535, 539 (8th Cir. 2014) (citation and quotations
omitted); Zayed v. Associated Bank, N.A., 913 F.3d 709, 716 (8th Cir. 2019).
Courts take a slightly modified approach where, as here, there are cross-motions for
summary judgment. Fjelstad v. State Farm Ins. Co., 845 F. Supp. 2d 981, 984 (D. Minn.
2012). When considering Defendants’ joint motion and Warner’s motion, the record must
be viewed in the light most favorable to Syngenta, and when considering Syngenta’s
motion, the record must be viewed in the light most favorable to Warner and Sleper. See
id. Importantly, “the filing of cross motions for summary judgment does not necessarily
indicate that there is no dispute as to a material fact, or have the effect of submitting the
case to a plenary determination on the merits.” Wermager v. Cormorant Twp. Bd., 716
F.2d 1211, 1214 (8th Cir. 1983).
To confirm, there are three summary-judgment motions here: Defendants’ Motion
for Summary Judgment, Or In The Alternative, Partial Summary Judgment [ECF No. 614];
Plaintiff’s Motion for Partial Summary Judgment Against Defendants Joshua Sleper and
Todd Warner [ECF No. 547]; and Defendant Todd Warner’s Motion for Summary
Judgment [ECF No. 561]. Rather than address each of these motions separately, this order
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first addresses whether summary judgment is appropriate against Syngenta’s trade-secretmisappropriation claims. It then addresses the motions as they concern Warner and Sleper.
III
A
Courts commonly analyze parallel claims brought under the Defend Trade Secrets
Act (DTSA) and a state trade secret statute together, Prime Therapeutics LLC v. Beatty,
354 F. Supp. 3d 957, 967 (D. Minn. 2018), because the DTSA is “modeled on the Uniform
Trade Secrets Act [UTSA], versions of which have been adopted by 48 states.” Heska
Corp. v. Qorvo US, Inc., No. 1:19CV1108, 2020 WL 5821078, at *4 (M.D.N.C. Sept. 30,
2020) (quoting H.R. Rep. No. 114-529, at 199 (2016)). Though North Carolina happens
to be one of two states that has not adopted the UTSA, the Parties’ arguments in this case
do not implicate any differences between the DTSA and the North Carolina Trade Secrets
Protection Act (NCTSPA). The two statutes will therefore be analyzed together.
To show trade-secret misappropriation, Syngenta must show “the existence of a
protectable trade secret and misappropriation of that trade secret.” See MPAY Inc. v. Erie
Custom Comput. Applications, Inc., 970 F.3d 1010, 1016 (8th Cir. 2020); 18 U.S.C. § 1836.
As relevant here, both the DTSA and NCTSPA define a “trade secret” as “business or
technical information” that (1) is the subject of “reasonable efforts” to maintain its secrecy
and (2) derives “actual or potential” “independent” economic or commercial value from
not being “generally known or readily ascertainable.” N.C. Gen. Stat. § 66-152(3); 18
U.S.C. § 1839(3); see CPI Card Grp., Inc. v. Dwyer, 294 F. Supp. 3d 791, 807 (D. Minn.
2018); Prometheus Grp. Enters., LLC v. Viziya Corp., No. 5:14-CV-32-BO, 2014 WL
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3854812, at *7 (E.D.N.C. Aug. 5. 2014). Under both statutes, “a plaintiff must identify a
trade secret with sufficient particularity.” Krawiec v. Manly, 811 S.E.2d 542, 547–48 (N.C.
2018); see Integrated Process Sols., Inc. v. Lanix LLC, No. 19-cv-567 (NEB/LIB), 2019
WL 1238835, at *4 (D. Minn. Mar. 18, 2019).
As to FBN, misappropriation is (1) “acquisition of a trade secret . . . by a person
who knows or has reason to know that the trade secret was acquired by improper means.”
18 U.S.C. § 1839(5)(A). As to Sleper and Warner, Syngenta must show “disclosure . . . of
a [Syngenta] trade secret . . . without express or implied consent by a person who . . . at the
time of disclosure . . . knew or had reason to know that the knowledge of the trade secret
was . . . acquired under circumstances giving rise to a duty to maintain the secrecy of the
trade secret.” Id. § 1839(5)(B)(ii)(II).
Whether Syngenta is required to show more than these elements has been the subject
of some dispute. Magistrate Judge Thorson ordered Syngenta to “identify in writing and
serve on the parties, with a level of particularity that is reasonable under the circumstances,
each asserted trade secret.” ECF No. 59 at 4. The order further required that “[t]he
identification must be sufficiently particularized to allow the other party to meaningfully
compare the asserted trade secret to information that is generally known or readily
ascertainable and to permit the parties and the Court to understand what information is
claimed to be the trade secret.” Id. Syngenta ultimately filed a document, referred to as
the “Identification,” purporting to identify the trade secrets at issue. ECF No. 551-12.
Although the Defendants take issue with the timeliness of this filing, both sides point to
this document as governing Syngenta’s claims here.
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The Parties thus effectively include an additional element in Syngenta’s trade-secret
burden: whether the Identification sufficiently identified the claimed trade secrets. The
Parties dispute this additional element at some length, with Syngenta often relying almost
solely on the Identification for its argument that certain information constitutes trade-secret
information, and Defendants repeatedly claiming that Syngenta should be precluded from
claiming such information as trade secrets because it was not sufficiently identified in the
court-ordered Identification.
Defendants are incorrect for the most part in their assertions regarding the
Identification. While Syngenta did not outline precise language from which it derives its
trade-secret claims (and as discussed below, even the precise language requires expertwitness interpretation to yield the alleged trade secrets), its Identification sufficiently
described the types of information that Syngenta claims are at issue here. For example, the
BreedingPlanCosts document contains a bullet point regarding GA21
that Syngenta
claims discloses a trade secret. The information in this bullet point is encompassed by ¶ 7
of the Identification, and specifically subparagraph (e), which claims as a trade secret
GA21
on Syngenta’s data compilations.”
ECF No. 551-12.
and resulting effects based
The remaining trade secrets
underlying Syngenta’s misappropriation claims are similarly sufficiently described in the
Identification, and this order will not address further the Defendants’ contentions with
regard to the sufficiency, or lack thereof, of Syngenta’s Identification. However, to the
extent that Syngenta relies solely on the Identification to establish the trade-secret character
of the information in the Identification, that reliance is misplaced. The Identification
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merely sets forth Syngenta’s belief that certain information is a trade secret. It is not
evidence that any of that information is a trade secret.
B
1
Syngenta’s primary evidence to demonstrate the first element of its
misappropriation claims—that the information was a trade secret in the first instance—
comes from the testimony of expert witness Dr. J. Stephen Smith. Dr. Smith is Syngenta’s
technical expert on seed breeding. He is an Affiliate Professor in the Department of
Agronomy and a Lecturer in the Seed Science Center at Iowa State University. ECF No.
551-5 at 6. He holds a B.Sc. in plant sciences from Wye College, University of London,
and a M.Sc. in conservation and utilization of plant genetic resources and a Ph.D. in
taxonomy and evolution of maize from the University of Birmingham, England. Id. Smith
spent 35 years working for Pioneer Hi-Bred and DuPont-Pioneer, where he conducted
research involving both the public and commercial sectors. Id.
Specifically, Syngenta claims the existence of misappropriated trade secrets in three
documents that FBN acquired and/or that Warner or Sleper disclosed: 1) the
BreedingPlanCosts document, 2) the Pipeline Proposal, and 3) Sleper’s Seed Wishlist.
Because the information in these documents is not a readily apparent trade secret, Syngenta
relies on the testimony of Dr. Smith to establish that these documents in fact communicate
Syngenta’s trade secrets. Defendants seek exclusion of Dr. Smith’s testimony under Fed.
R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). ECF No.
606. Defendants’ motion will be granted.
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Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
testimony. That rule provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a)
the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b)
the testimony is based on sufficient facts or data;
(c)
the testimony is the product of reliable principles and
methods; and
(d)
the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
District courts have “wide latitude in determining whether an expert’s testimony is
reliable.” Khoury v. Philips Med. Sys., 614 F.3d 888, 892 (8th Cir. 2010) (citation omitted).
As long as the evidence indicates that the expert evidence is reliable and relevant, “no
single requirement for admissibility” governs. Unrein v. Timesavers, Inc., 394 F.3d 1008,
1011 (8th Cir. 2005). “As a general rule, the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility, and it is up to the opposing party to
examine the factual basis for the opinion in cross-examination.” Bonner v. ISP Techs.,
Inc., 259 F.3d 924, 929 (8th Cir. 2001) (citation omitted). But the court must exclude an
expert’s opinion if it “is so fundamentally unsupported that it can offer no assistance to the
jury.”
Id. at 929–30 (citation omitted).
“Expert testimony is inadmissible if it is
speculative, unsupported by sufficient facts, or contrary to the facts of the case.” Marmo
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v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006). The proponent of the expert
opinion bears the burden of showing, by a preponderance of the evidence, that the
testimony satisfies Rule 702. Khoury, 614 F.3d at 892 (citations omitted).3
a
The BreedingPlanCosts Document
As discussed above, the BreedingPlanCosts document, ECF No. 551-4, is nearly
identical to a presentation Warner and Sleper gave to Syngenta leadership before they left
the company. This presentation purported to be a “high level overview” of Syngenta’s
corn-genetics program. ECF No. 669-6. Syngenta now claims, primarily via Dr. Smith’s
testimony, that this “high level overview” contained five slides or portions of slides that
disclosed numerous Syngenta trade secrets. Because Dr. Smith’s opinions relating to the
BreedingPlanCosts document are not based on sufficient facts or data and are not the
product of reliable principles and methods, they will be excluded.
3
Rule 702 will be amended as of December 1, 2023, to provide that the proponent
bears the burden to “demonstrate[] . . . that it is more likely than not that” the expert’s
opinion is admissible, including that the “expert’s opinion reflects a reliable application of
the principles and methods [used] to the facts of the case.” Committee on Rules of Practice
and Procedure, June 7, 2022 Meeting, https://www.uscourts.gov/sites/default/files/202206_standing_committee_agenda_book_final.pdf, at 891–92 (last visited Feb. 6, 2023).
The amended Rule thus “emphasize[s] that each expert opinion must stay within the bounds
of what can be concluded from a reliable application of the expert’s basis and
methodology.” Id. at 894.
18
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There is no dispute that the GA21 trait was well known and in the public domain by
2019, when Warner and Sleper provided the BreedingPlanCosts document to FBN. See
Smith Rep. at 30 (stating that GA21 trait is “now available in the public domain”). It seems
self-evident that any company wishing to create hybrids using the GA21 trait would
recognize the need to
According
to Dr. Smith, however, this particular bullet point did not just communicate the need to
GA21
but it also communicated all of Syngenta’s trade-secret knowledge
regarding how to conduct that
. In opposition, the Defendants argue that
all of this information cannot fairly be implied to this sixteen-word bullet point. ECF No.
609 at 17. And while it is true, as Dr. Smith opines, that “the ability to immediately
introduce an established and proven
process into its
product development pipeline would be of critical value to FBN,” Smith Rep. at 30, the
contested bullet point says nothing about how Syngenta does that or how Syngenta’s
process could be replicated.
Syngenta argues that the trade secret at issue is the use of datasets for GA21
which was not known outside of Syngenta. But Dr. Smith does not offer that
opinion. Rather, Dr. Smith states more generally that the trade secret at issue is GA21
“as performed by Syngenta.” Id. at 31.
But again, the bullet point does not describe any particular
protocols, either as Syngenta performs them or otherwise.
generally addresses different aspects of
would benefit from
“(ie, GA21
, etc.)” that
Datasets.” ECF No. 618-35 at 2. Given that the
20
Rather, the bullet point
CASE 0:20-cv-01428-ECT-DTS Doc. 753 Filed 02/27/23 Page 21 of 64
GA21 trait is public, and that genomics involves a
trait will
that any specific
, this bullet point communicated no more than the
obvious need to conduct
on genomic traits and the idea that datasets,
something widely used in genomic research, might assist in these
Genomics
and
Data
Science:
An
Application
Within
See
an
https://genomebiology.biomedcentral.com/articles/10.1186/s13059-019-1724-1
Umbrella,
(last
visited Feb. 6, 2023) (discussing the application of data science to genomics). Dr. Smith’s
opinions regarding this bullet point are overbroad, speculative, and not supported in any
way by other record evidence. Dr. Smith will not be permitted to testify that this bullet
point communicated Syngenta’s trade-secret information.
ii
Parent Selection
Dr. Smith next addresses a bullet point on a slide entitled, “How do we Accelerate
Genetic Gain?” Smith Rep. at 32. According to Dr. Smith, the statement, “Parents can
and should be chosen after
ECF No. 618-35 at 3, discloses “Syngenta trade secret information about the
timing of the selection of parents.” Smith Rep. at 31. This opinion also will be excluded.
There is “too great an analytical gap between the data and the opinion proffered”
for Dr. Smith’s opinion to be reliable. Gen. Elec. Co., 522 U.S. at 146. Dr. Smith does not
offer an opinion that the timing of parent selection is itself a trade secret. Rather, he states
that this bullet point communicated Syngenta’s methods for parent selection: “Syngenta
has developed and utilized
21
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.” Smith Rep. at 32.
This prediction and scoring led Dr. Smith to conclude that “Syngenta could
” Id. According to Dr. Smith, this bullet point
communicates “that
.” Id. Further, he states it “is
not generally known or ascertainable by proper means” that Syngenta makes its parent
selection after
. Id.
Neither Dr. Smith nor Syngenta contends that the timing of parent-selection
generally is a trade secret, and even the challenged statement recognizes an “industry
standard” for doing so. While it may be true that others in the industry do not know that
Syngenta selects
, it cannot be the case that this bullet
point communicates Syngenta’s practice of selecting parents after
, or
that it communicates Syngenta’s methods to
. This bullet point says nothing about those methods. It
merely states that it is
. There are also insufficient
facts to indicate that Syngenta consistently selects parents after
. Without
any indication that Warner or Sleper also told FBN about Syngenta’s “
” methods in conjunction with this bullet point, the bullet point simply
does not communicate any trade-secret information. Dr. Smith’s proffered testimony to
the effect that this bullet point communicated Syngenta’s trade-secret information will be
excluded.
22
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iii
Heritability
The next challenged bullet point is on the same slide, under the subheading,
“
ECF No. 618-35
at 2; Smith Rep. at 32–33. The bullet point reads,
.” ECF No. 618-35 at 2.
According to Dr. Smith, this bullet point “improperly discloses Syngenta trade secret
information about the fact that Syngenta
.” Smith Rep.
at 32. But Dr. Smith concedes that “the concept of utilizing spatial modeling is commonly
understood.” Id. at 33. The trade-secret information, according to Dr. Smith, is “what
models to use and how to apply them.” Id.
This bullet point, and indeed the entire BreedingPlanCosts document, does not
discuss any particular models or how to apply those models. As with the previous
discussion, the bullet point communicates only information that Dr. Smith concedes is
widely known. Dr. Smith points out that the “Reimagining” presentation from which the
BreedingPlanCosts document was drawn discusses specific experimental designs. Id. at
33. But that discussion is not included in this bullet point or in the BreedingPlanCosts
document at all. More so, the mere fact that Syngenta achieved higher heritability is not
the alleged trade secret; what is secret is the process Syngenta used to attain higher
heritability. This bullet point does not contain any description of those methods and
therefore it is not a trade secret. Smith’s opinion to the contrary will be excluded.
23
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iv
Number of Hybrids and Inbreds
Next, Dr. Smith points to two alleged trade secrets in a single slide titled,
“Hypothetical R&D Breeding Program for Typical Corn/Soy Market.” ECF No. 618-35
at 5; Smith Rep. at 34. The first alleged trade secret is in the “Genetic Creation” table,
stating that “early stage” corn would require
require
inbreds, and “late stage” corn would
hybrids or varieties. ECF No. 618-35 at 5. According to Dr. Smith, this portion
of the slide “improperly discloses Syngenta trade secret information about the optimized
volume of inbreds in early-stage and hybrids or varieties in late-stage breeding pipelines.”
Smith Rep. at 33. Dr. Smith notably does not say that Syngenta has determined that
corn inbred lines or
hybrid lines are optimal or even preferred. Rather, he states that
Syngenta “has undertaken confidential research efforts to optimize its breeding pipeline,
including the number of inbreds and hybrids tested at each stage.” Id. But again, the table
does not disclose or even reference any specific “research efforts” or “information about
the optimized volume.” It just states a number. Further, the evidence on which Dr. Smith
relies indicates that the number of hybrid and inbred lines that Syngenta uses ranges both
far above and far below the numbers contained in this bullet point, but nowhere mentions
inbred lines or
hybrid lines. ECF No. 611-10. Dr. Smith’s opinion is divorced
from the facts of what Syngenta actually does in practice—there is no connection between
the facts of the case (Syngenta’s optimization volumes) and the bare numbers listed in the
tables. This portion of the slide does not communicate any of Syngenta’s trade-secret
information, and Dr. Smith’s opinion that it does is not admissible.
24
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v
Double Haploid and
Dr. Smith also opines that the entire slide discussed immediately above contains
Syngenta’s trade-secret information. Smith Rep. at 35. According to Dr. Smith, this slide
communicates “how to implement Syngenta’s data” regarding double-haploid and
profiles, protocols, and costs “in the breeding pipeline to
accelerate genetic gain.” Smith Rep. at 34. Dr. Smith does not single out any particular
item on this slide as communicating Syngenta’s trade secrets in this regard. Instead, he
states that, because both Warner and Sleper “were directly involved in Syngenta’s efforts
to optimize its double-haploid processes and Sleper also worked on developing and
applying genomic selection methods in Syngenta’s breeding program,” id., this slide told
FBN all about Syngenta’s proprietary methods for implementing double-haploid and
into a breeding plan.
As with all of the other alleged trade secrets in the BreedingPlanCosts document,
however, these trade secrets do not appear on this slide. Dr. Smith offers no principle or
methodology that describes how the information in the chart is itself a Syngenta trade secret
or even communicates a trade secret. And the question is not whether Warner and Sleper
knew about Syngenta’s methods for accelerating genetic gain; they indisputably did. The
question is whether this slide, which contains very general hypothetical numbers for a
potential breeding program, improperly communicated that proprietary information to
FBN. Dr. Smith’s opinion that it did so is speculative at best and not based on reliable
methods at worst. It will be excluded.
25
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b
The Pipeline Proposal
In addition to the BreedingPlanCosts document, Dr. Smith testifies to the parts of
the Pipeline Proposal [ECF No. 611-12] that purportedly constitute trade secrets. Sleper
co-authored the Pipeline Proposal with an employee of FBN; the document outlines
techniques that could be incorporated into a commercial breeding program.
i
locations and
check rate
The Pipeline Proposal recommends that FBN’s first year program use a “ location
and
experimental design” with that design “[l]ikely” to be a “p-rep design.”4 Id.
at 3. In addition, the proposal recommends “Row-column optimization for checks5 at
rate with a minus RM, neutral RM, and plus RM6 check.” Id. According to Dr. Smith,
“use of
locations in a P-Rep design” is a Syngenta trade secret, as is “use of a
check
rate.” Smith Rep. at 50–51.
4
“P-Rep” is shorthand for a “partially replicated” trial design. “P-Rep is a form of
experimental design in which a portion of the test entries are replicated, which utilizes less
resources in early stage breeding and, when done correctly, leads to higher selection
accuracy.” Smith Rep. at 50.
5
A “check” in this context is a control group, in which a known seed line is included
in the new test lines for comparison purposes. Kaeppler Rep. [ECF No. 604-1] ¶¶ 125–26.
6
Although the parties do not define the term, an internet search reveals that RM
stands for “relative maturity,” which “is determined by comparing grain moisture of
hybrids at harvest.” Optimum Relative Maturity for Yield and Profitability in Corn,
http://corn.agronomy.wisc.edu/AA/A039.aspx (last visited Feb. 7, 2023). It does not
appear that Syngenta claims the reference to RM as a trade secret.
26
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The Defendants first argue that Dr. Smith is not qualified to offer any opinions
regarding P-Rep trial designs because he admits that he had no previous knowledge of such
trials and merely read “four or five” publicly-available papers about it. ECF No. 611-1
(“Smith Dep.”) at 178. Thus, Dr. Smith’s opinion that the use of
locations is not
generally known is beyond Dr. Smith’s expertise.
The Defendants are likely correct that Dr. Smith is not qualified to offer opinions
about what is and is not widely known regarding P-Rep trials. Anderson v. Raymond Corp.,
340 F.3d 520, 523 (8th Cir. 2003) (holding that the engineering expert was not qualified
because, despite the application of universal engineering principles, he never worked on
the design of the specific product in question); Wheeling Pittsburgh Steel Corp. v. Beelman
River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001) (finding an “eminently qualified”
expert in one area does not make that person an expert in other specific practices);
Brotherhood Mut. Ins. Co. v. ADT, LLC, No. 13-cv-1870 (DSD/JJK), 2014 WL 2993728,
at *2–4 (D. Minn. July 2, 2014); Astro Tech., Inc. v. Alliant Techsystems, Inc., No. H-030745, 2005 WL 6061803, at *6–9 (S.D. Tex. Sept. 28, 2005); In re Incretin-Based
Therapies Prods. Liab. Litig., 524 F. Supp. 3d 1007, 1037 (S.D. Cal. 2021).
But there is a more fundamental reason why his opinion in this regard is
inadmissible: it is not tied to the facts of this case or any reliable methodology. Dr. Smith
compared the “Reimagining” presentation that Warner and Sleper prepared for Syngenta,
which mentions using
that the use of
locations for P-Rep trials, and from that presentation concludes
locations is a Syngenta trade secret. At the same time, he concedes that
other Syngenta documents recommend using
27
locations, Smith Dep. at 180, and that
CASE 0:20-cv-01428-ECT-DTS Doc. 753 Filed 02/27/23 Page 28 of 64
he did not see any other Syngenta documents recommending
Smith’s determination that the use of
locations. Id. Dr.
locations in a P-Rep trial design is a Syngenta
trade secret is not supported by his expertise, his research, or the evidence in this case and
will be excluded.
The same is true for the
check rate. Dr. Smith’s conclusion that this
check rate is a Syngenta trade secret comes solely from the “Reimagining” presentation,
which recommended a check rate of “
of total plots.” ECF No. 669-7 at 15. Dr. Smith
states that “based on [his] review of public literature,” which he concedes was limited to
“four or five” documents retrieved after searching the internet for the term “P-Rep,” a
check rate is “not generally known or readily ascertainable.” Smith Rep. at 51;
ECF No. 618-26 at 199.
from Syngenta setting
Dr. Smith testified that he did not see any other documents
as the optimal check rate, Smith Dep. at 193,
literature in the public domain recommended use of a
check rate. Id. at 200. Syngenta’s sole argument in opposition to the motion to exclude
this opinion is that Syngenta included this alleged trade secret in its Identification. Merely
claiming that something is a trade secret does not make it so, however. Dr. Smith’s opinion
that a
check rate is a Syngenta trade secret is unsupported and as a result is
inadmissible.
ii
Optimization
Defendants challenge another bullet point in the Pipeline Proposal, which states,
“Optimization: predict GCA with hybrid model, calculate variance, and
28
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The Identification’s general description of “data, analysis, and methodologies” does
not specify any particular analysis or methodology that might be a trade secret. At most,
the alleged trade secrets point to proprietary “
” and various models
that Syngenta uses to predict genetic risk. The bullet point does not mention any of these
alleged proprietary methods, merely stating in general terms the self-evident need to
develop a methodology to “
for agronomics and trait packages.” Dr.
Smith’s opinion that this bullet point communicated Syngenta’s trade secrets to FBN is
speculative and inadmissible as such.
iii
DH Families
Another bullet point in the Pipeline Proposal outlines early-stage preliminary testing
for double-haploid, or DH, hybrids. The challenged bullet point describes the
ECF Nos. 611-12 at 2. Dr.
Smith asserts that, in this section of the Proposal, “Sleper is telling FBN to use genomic
selection
.” Smith Rep. at 47.
Dr. Smith ties this alleged disclosure to recommendations that Sleper and Warner made in
the BreedingPlanCosts document and the “Reimagining” presentation. Specifically, Dr.
Smith points to the Reimagining presentation’s demonstration that
30
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Smith Rep. at 47. Because Sleper took the Reimagining presentation with him when he
left Syngenta and had it when he created the Pipeline Proposal, Dr. Smith’s reasoning goes,
the Pipeline Proposal must have communicated Syngenta’s trade secrets.
Whether the Reimagining presentation contained Syngenta’s trade secrets is not the
issue in this case, however. There is no allegation that Sleper or Warner provided the
Reimagining presentation to FBN. The implication of Dr. Smith’s opinion is that, because
Sleper knew how Syngenta conducted its genomic selection, any description of any
genomic-selection process, no matter how general, must have encompassed Syngenta’s
trade secrets. But whether Sleper developed the Pipeline Proposal using trade secrets is a
different question than whether that Pipeline Proposal communicated those trade secrets to
FBN for purposes of Syngenta’s misappropriation claim against FBN. Any opinion that
this section of the Pipeline Proposal communicated Syngenta’s trade secrets is therefore
speculative and admissible.
iv
Production Research Traits
The Pipeline Proposal also recommends that early-stage preliminary testing include
“[
.” ECF No. 611-12 at 3. Dr. Smith opines that this portion of the Proposal
31
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“discloses concepts and conclusions derived from Syngenta’s trade secret analysis of
.” Smith Rep. at 49.
t,” and include the traits mentioned in this
portion of the Pipeline Proposal. Id. at 48.
Again, however, whether the “concepts and conclusions” are “derived from”
Syngenta’s trade secrets is a different matter than whether those trade secrets were actually
disclosed. And as discussed with respect to other challenged statements above, that a
hybrid program might evaluate traits such as tassel size, plant height, and the like, is too
self-evident to be a trade secret. This portion of the Proposal does not outline any methods
for evaluating these traits; it merely recommends evaluating them. Dr. Smith’s opinion
that this bullet point communicates Syngenta’s trade-secret methods and analysis is another
leap-too-far, and this opinion is therefore inadmissible.
v
BLUP/GBLUP Analysis
Finally, the Pipeline Proposal recommends that in “Early Year 1,” the development
program perform a “[
.” ECF No. 611-12 at 3. Dr. Smith
acknowledges that the Proposal cites to public sources to support this analysis, but he
opines that “integrating these tools together for data analysis” is not disclosed in the public
sources and is a Syngenta trade secret. Smith Rep. at 49. Dr. Smith also believes that the
7
“BLUP” means “best linear unbiased prediction.” Smith Rep. at 29. Dr. Smith’s
report does not define what GBLUP means; presumably, it is related to BLUP.
32
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“stacking” of these analytical tools is “economically valuable to Syngenta because of its
potential to increase prediction accuracy of certain traits, thereby leading to better
selections of seed lines.” Id. Because Sleper had himself recommended the stacking
analysis, and because Sleper allegedly “stole” files and other documents from Syngenta
that outlined Syngenta’s genomic selection data, Dr. Smith opines that Sleper and FBN
“could [have] use[d] that information” to develop the desired traits more rapidly. Id. at
49–50.
But this bullet point says none of that. The bullet point recommends using three
different, publicly available, analytical tools to evaluate new hybrid lines. It says nothing
about the reasoning or importance of using the tools in tandem. Neither does Smith point
to evidence that Syngenta actually uses this “stacking” process. Smith’s opinion is
speculative and inadmissible.
c
The Seed Wishlist
In addition to the BreedingPlanCosts document and the Pipeline Proposal,
Defendants also challenge Dr. Smith’s opinions about Sleper’s “Seed Wishlist.” Sleper
prepared a list of seed lines he recommended to FBN as its starting place for a breeding
program. ECF No. 618-50. Out of the 84 publicly available lines Sleper recommended
that FBN purchase, eight of them had been Syngenta’s proprietary lines before the patents
33
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or other protections on those lines expired.8 Id. According to Dr. Smith, the only
explanation for Sleper including these Syngenta lines among the lines he recommended is
that Sleper used Syngenta trade secrets to produce the list. Smith Rep. at 52.
Dr. Smith did not himself examine Syngenta’s seed lines to determine whether any
of the lines Sleper chose were included in Syngenta’s “best” lines—lines “that have had
the most use to make commercial hybrids.” Smith Dep. at 274. Instead, a Syngenta
employee, Dr. Rita Mumm, compared Sleper’s chosen Syngenta seed lines with Syngenta’s
“code book,” and then in turn determined whether those lines were included in Syngenta’s
“best lines list.”9 Id. at 272–74. Dr. Smith concedes that not all of the Syngenta lines
Sleper chose are included on this list, id. at 274–75, but insists that, for five of the Syngenta
lines Sleper chose, public information would not have revealed the lines’ important value
to Syngenta’s breeding program. ECF 644 at 43. Because Sleper selected lines for which
public information was lacking, Smith opines that Sleper must have relied on Syngenta’s
trade-secret information in making those selections. Smith Dep. at 278.
8
Syngenta also contends that the list contains lines from Holdens that Syngenta had
“used internally.” ECF No. 644 at 39. It is unclear whether Syngenta claims that these
Holdens lines are somehow Syngenta trade secrets.
9
The Defendants argue that Dr. Smith’s reliance on Dr. Mumm, who will not testify
in this case, is inappropriate and warrants exclusion of Dr. Smith’s opinions on the seed
wish list. It appears that Dr. Mumm’s contribution was limited to data analysis.
Defendants do not contend, for example, that she erroneously categorized the seed lines at
issue, and such categorization is more akin to ministerial, rather than executive, expertwitness duties. Moreover, “arguments about the reliability of the analysis go to weight
rather than admissibility.” In re ResCap Liquidating Tr. Litig., 432 F. Supp. 3d 902, 950
(D. Minn. 2020). Exclusion of Dr. Smith’s opinions on this basis is not warranted.
34
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But Dr. Smith acknowledges that Sleper did not include several of Syngenta’s most
successful lines, as would be expected if Sleper indeed relied on Syngenta’s trade secrets.
Further, several of the Syngenta lines Sleper selected were not on the “best lines” list, and
thus Sleper’s choice of those lines rebuts any suspicion that he used Syngenta’s trade
secrets. The fact that Sleper chose five of Syngenta’s successful lines among the 84 total
lines he chose, or even among the eight Syngenta-specific lines he chose, could certainly
be attributed to improper use of Syngenta’s confidential information, as Dr. Smith
contends, or it could be attributed to chance or luck or entirely public information. Dr.
Smith’s opinion that “the only explanation” is use of Syngenta trade secrets is both a factual
and logical leap.
Dr. Smith claims to have a smoking gun, though. For one of the Syngenta lines
Sleper chose, Sleper noted, “Think is
.” ECF No. 618-50.
is Syngenta’s
internal code for one of its successful hybrid lines. According to Dr. Smith, the success of
this particular hybrid is not well-known outside of Syngenta. Smith Rep. at 63. This
reference is the only direct evidence Syngenta has that Sleper might have used Syngenta’s
confidential information in formulating the seed list.
Even if the use of Syngenta’s internal code is evidence that Sleper was relying on
Syngenta’s confidential information, there is nothing to tie Sleper’s actual seed choices to
any trade-secret misappropriation. At most, Dr. Smith’s opinion is that he reviewed the
public information Sleper relied on, and Dr. Smith would not have made the same seed
selections that Sleper did based on that information. But Sleper has expertise and agency
in this exercise. Had he selected 10 Syngenta lines, all of which were Syngenta’s best
35
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lines, it could fairly be inferred that he misappropriated confidential information. That he
selected eight lines, just over half of which were on the best-lines list, does not suggest
misappropriation as Dr. Smith describes. Dr. Smith’s opinion that the seed list must be the
product of misappropriation is speculative. It is, as the Defendants say, a conclusion in
search of support. Dr. Smith is not of course required to discount every possible reason
Sleper might have chosen the seeds he chose, but his opinion that the choices reflect
misappropriation must be based on something more than “Sleper had access to information
about Syngenta’s best lines and some of the lines he chose are among the best lines.”
What is not speculative, however, is the process by which an expert in this industry
would go about selecting seed lines to start a breeding program. Dr. Smith, as a corn seed
breeding expert, is free to testify about best practices in the industry and the factors that he
would consider in selecting lines. He may explain the reasons that make a line desirable
for breeding or the information that a person would rely on when choosing a line. He may
even opine that he would have selected different lines than Sleper did based on the
information available to Sleper at the time of his selection. It is a step too far, though, to
assert that Sleper must have misappropriated trade secrets because Dr. Smith does not
understand why Sleper chose certain lines or because Dr. Smith’s list would have been
different. Dr. Smith’s opinions are inadmissible in this respect.10
10
Defendants move to preclude Dr. Smith from testifying from the factual narrative
section of his report. These facts, according to the Defendants, are mere restatements of
Syngenta’s litigation position and are not based on any expert methodology or the like.
Syngenta responds that Dr. Smith cannot be precluded from testifying to relevant
background information. Because Dr. Smith’s testimony regarding the existence of trade
secrets is excluded, there is likely no need for him to testify at all. Should Syngenta wish
36
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2
Dr. Smith’s exclusion doesn’t end the analysis.
In addition to his proffered
testimony, Syngenta relies on several other items of record evidence to show that it may
succeed at trial on its trade-secret-misappropriation claims. See ECF No. 654. None do.
a
Declaration of Shreyartha Mukherjee
Syngenta relies on the declaration of Shreyartha Mukherjee, claiming that the
file names reflect a line and tester combination, which enables Syngenta to
predict the success of seed lines. Id. at 14. Defendants move to strike this declaration
[ECF No. 668], arguing it is procedurally improper. Syngenta submitted the declaration
with its Memorandum in Opposition to Defendants’ Motion for Summary Judgment. ECF
No. 654 at 14–15. The purpose of Mukherjee’s Declaration was to explain “(a) what
files are; (b) what information can be ascertained from
and (c) what
files;
files were used for within Syngenta.” ECF No. 668 at 3.
Defendants argue that this Declaration “belatedly purports to offer new facts, well beyond
the deadline for disclosure, about the
files Defendant Joshua Sleper
developed and allegedly wrongly retained after leaving Syngenta.” ECF No. 705 at 5.
At the time of his Declaration, Mukherjee was a Global Support Data Analyst for
Syngenta, where he was “primarily responsible for developing prototypes of new analytical
tools to help with plant breeding decisions, serving as a subject matter expert on genetics
to present his testimony to provide helpful background information to the jury in a manner
consistent with Rule 702, however, it may do so.
37
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projects, and acting as a liaison between Syngenta’s research and development and IT
groups.”11 Mukherjee’s Declaration explains that he was the author of the
files, how he created them, the significance of the files’ names, and the value the files
provided to Syngenta. ECF No. 668 at 3–7.
The problem is that Defendants sought this information through several
interrogatories, and Syngenta failed to provide any of the now-disclosed information. For
example, Defendants asked Syngenta to identify the persons most knowledgeable on each
alleged trade secret, to describe all persons participating in the alleged trade secrets, and to
describe the authorship and development of each alleged trade secret. ECF Nos. 708-1 at
6–7 (Interrogatory No. 1), 20 (Interrogatory No. 2); 708-2 at 6 (Interrogatory No. 8).
Syngenta did not list Mukherjee in its response to any of those interrogatories. In fact,
Syngenta only mentioned Mukherjee once in its response to Defendants’ interrogatories,
under Interrogatory No. 4, by including him at the end of a list of people who “have further
information regarding the development of Syngenta’s trade secret information.” ECF No.
708-1 at 115. Syngenta never explained Mukherjee’s connection to the
files
even though his authorship and involvement with the files would have been directly
responsive to Interrogatory No. 2. See ECF No. 708-1 at 20, 74–75, 98. Syngenta’s onetime mention of Mukherjee in its interrogatory answers and Sleper’s brief reference to
Mukherjee in his deposition [ECF No. 665-02 at 64] are insufficient to identify Mukherjee
as someone who had the level of knowledge he later expressed in his Declaration. Because
11
It is unknown whether Mukherjee is still in that role or employed by Syngenta.
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Syngenta did not properly disclose this information in discovery, it cannot now use it as
evidence. Fed. R. Civ. P. 37(c).
b
Warner’s Deposition Testimony
Syngenta cites Warner’s deposition testimony to assert that “Warner admitted that
Wulfkuhle may have brought up the risks associated with
, information Warner knew
to be confidential to Syngenta” and “that the BreedingPlanCosts document contains
Syngenta confidential information.” ECF No. 654 at 20–21. The cited testimony might
reasonably be construed to support the first proposition.
It cannot reasonably be
understood to support the second. Nowhere in the cited testimony does Warner state that
the BreedingPlanCosts document contains or is itself Syngenta confidential information.
Regardless, characterizing or labeling information as “confidential” in the way Warner is
alleged to have done falls short of raising a fact question as to whether the document or
information in it is a trade secret.
c
The LaCie Drive
Syngenta claims “[f]orensic analysis revealed that the LaCie Drive contained nearly
2,000 Syngenta trade secret documents,” citing the Identification and the deposition
testimony of Tucker, a Syngenta 30(b)(6) witness. ECF No. 654 at 27. The documents
referred to are the
files. While Syngenta calls them trade secret documents
here, there is still no explanation or evidence that they are in fact trade secrets, and Tucker’s
deposition testimony does not establish that either. See ECF No. 551-15 at 73–75, 241,
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CASE 0:20-cv-01428-ECT-DTS Doc. 753 Filed 02/27/23 Page 41 of 64
the cited testimony does not support these propositions. See ECF Nos. 673-3 [Bostwick
Dep.] at 75–79, 673-4 [Ford Dep.] at 97–98, 100–02. The testimony just says that Dyer,
Warner, and Sleper would have knowledge about GA21, which is undisputed. And while
Ford states, “[he’s] not aware that the conclusions or the inference that GA21
has a
,” his testimony is discussing databases—his testimony does not communicate
that
’
are unknown generally. ECF No. 673-4 at 101. More so,
Bostwick did not deny “that there’s [] ample published literature about the use of genomic
prediction to []
[GA21 and similar] types
ECF No. 618-36 at 57.
e
The Identification
Syngenta repeatedly relies on the Identification as the evidence supporting the
information’s trade-secret nature. See ECF No. 654 at 27, 45, 49, 56. As discussed earlier,
Syngenta’s obligation to particularly identify its trade secrets (as required by Magistrate
Judge Thorson via the Identification) is different than its obligation to prove the existence
of a trade secret. The Identification is not evidence.
*
Syngenta has thus failed to demonstrate any genuine issue of material fact as to the
existence or misappropriation of a trade secret, and its trade-secret claims fail. Because
the conspiracy claim is entirely derivative of the trade secret claims, it is not trial-worthy,
either.
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IV
The entry of summary judgment against its trade-secret-misappropriation claims
leaves Syngenta with essentially four claims against Warner. Three of these are breachof-contract claims under (three) different sections of Warner’s Syngenta employment
agreement: a non-compete term (§§ 5(c), 13), a nondisclosure term (§ 6(a)), and a returnof-property term (§ 14(a)). Syngenta’s fourth claim is for tortious interference with
contract. Both Warner and Syngenta seek summary judgment. Warner ostensibly seeks
summary judgment outright—that is, as to all four of these claims. Syngenta seeks
summary judgment in its favor with respect to liability on its claim under the return-ofproperty term.
A
At the outset, Warner’s motion fails an important procedural hurdle: he did not
mention either Syngenta’s claim under the non-compete term or its claim for tortious
interference with contract in his opening summary judgment brief. See ECF No. 566.
Issues not raised in an opening brief ordinarily are considered waived. See Gareis v. 3M
Co., 9 F.4th 812, 819 n.4 (8th Cir. 2021); ARP Wave, LLC v. Salpeter, No. 18-cv-2046
(PJS/ECW), 2021 WL 168501, at *19 n.31 (D. Minn. Jan. 19, 2021). This rule has
particular significance in the summary-judgment context. Rule 56(a) places the burden on
the movant to show there is no genuine dispute as to any material fact entitling the movant
to summary judgment, and “a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions on
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file, together with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted); Safeway Transit LLC v. Discount Party Bus, Inc., No. 15-cv-3701
(JRT/HB), 2017 WL 8947190, at *17 (D. Minn. July 31, 2017) (declining to grant summary
judgment when the moving party “provide[d] no case law or legal analysis whatsoever in
support of their request for summary judgment”). Warner identifies no reason why his
failure to address these two claims in his opening brief should be excused here. Therefore,
on this procedural basis, Warner’s motion will be denied with respect to Syngenta’s claim
for breach of contract under the non-compete term of Warner’s Syngenta employment
agreement and its claim for tortious interference with contract.
B
Turn, then, to the two remaining contract claims under the nondisclosure and returnof-property terms. Section 15(c) of Warner’s employment agreement states that the
agreements “shall be subject to and governed by the substantive laws of the State of North
Carolina.” ECF Nos. 552-2. The Parties do not dispute that North Carolina law governs
these claims. To prove a breach of contract under North Carolina law, Syngenta must
establish the “(1) existence of a valid contract and (2) breach of the terms of the contract.”
Wells Fargo Ins. Servs. USA, Inc. v. Link, 827 S.E.2d 458, 472 (N.C. 2019) (quotation
omitted); McElmurry v. Alex Fergusson, Inc., No. 1:04CV389, 2006 WL 572330, at *11
(M.D.N.C. Mar. 8, 2006); Poor v. Hill, 530 S.E.2d 838, 843 (N.C. Ct. App. 2000).12 “The
12
Warner argues a breach of contract claim under North Carolina law also requires
proof of injury. While the North Carolina case law is somewhat ambiguous on this issue,
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plaintiff need not prove actual injury, and proof of the breach entitles the plaintiff to
nominal damages, even without proof of actual damages.” Inmar Brand Sols., Inc. v.
Infinity Sales Grp., LLC, 1:18-CV-761, 2019 WL 5597894, at *6 (M.D.N.C. 2019); see
Bryan Builders Supply v. Midyette, 162 S.E.2d 507, 511–12 (N.C. 1968). North Carolina
law requires the breach to be material, “that is, one that substantially defeats the purpose
of the agreement or that goes to the very heart of the agreement, or can be characterized as
a substantial failure to perform.” McElmurry, 2006 WL 572330, at *11; Supplee v. MillerMotte Bus. Coll., Inc., 768 S.E.2d. 582, 593 (N.C. Ct. App. 2015).
1
Warner seeks summary judgment with respect to Syngenta’s breach-of-contract
claim under the nondisclosure term of his employment agreement. This term reads as
follows:
Employee covenants and agrees that (i) the Employee shall
keep and maintain the Confidential Information in strictest
confidence, and (ii) the Employee shall not, except as required
in work assigned Employee by the Company, directly or
indirectly, use for Employee or for others, or publish, or
disclose to any third party any information, knowledge or data
relating to the Company, its predecessors or affiliates or to any
third party business contact of the Company, such as a
customer or potential customer of the Company, as well as any
other information, knowledge or data owned by, controlled by
or in the possession of the Company, its predecessors or
affiliates (whether or not utilized by the Company, its
predecessors or affiliates and whether or not obtained, acquired
or developed by Employee) or disclosed to the Company, its
predecessors or affiliates or Employee by a third party during
the North Carolina Supreme Court’s 2019 opinion, Link, 827 S.E.2d at 472, did not include
proof of injury or damages as an element of a breach of contract claim under North Carolina
law.
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the term of employment with Company or any of its
predecessors or affiliates.
ECF No. 552-2 at 4–5 (emphasis added). Warner’s employment agreement defines
“Confidential Information” by incorporating the definition of that term appearing in the
Syngenta “Confidentiality and Proprietary Rights Agreement.” See ECF No. 552-4 at 3, §
4. There, “Confidential Information” is defined quite broadly and at some length:
During the term of employment, and thereafter, Employee will
not, except as required in work assigned Employee by the
Company, directly or Indirectly, use for Employee or for
others, or publish, or disclose to any third party any
information, knowledge or data relating to the Company, its
predecessors or affiliates or to any third party business contact
of the Company, such as a customer or potential customer of
the Company, as well as any other information, knowledge or
data owned by, controlled by or in the possession of the
Company, its predecessors or affiliates (whether or not utilized
by the Company, its predecessors or affiliates and whether or
not obtained, acquired or developed by Employee) or disclosed
to the Company, its predecessors or affiliates or Employee by
a third party during the term of employment with Company or
any of its predecessors or affiliates (hereinafter “Confidential
Information”). Confidential Information includes, but is not
limited to: product or service information, including product
formulations; fees, costs and pricing structures; distribution
and sales methods and systems; sales and profit figures:
marketing information; advertising and pricing strategies;
analyses; diagrams; reports; computer software, including
operating systems, applications, and program listings; flow
charts; manuals and documentation; databases; accounting and
business methods; business plans; innovations, designs, ideas,
inventions and new developments and methods, whether
patentable or unpatentable and whether or not reduced to
practice; trade secrets; manufacturing know-how; raw material
and product specifications; analytical techniques; quality
control tests and procedures; proprietary information;
customer lists; existing and prospective clients, distributors,
agents, suppliers and customers and other information related
thereto; and all similar and related information in whatever
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form. It is agreed that the above obligations shall not apply to
(a) any Confidential Information that is now publicly available,
(b) any Confidential Information that subsequently becomes
publicly available other than by a breach of this Agreement or
other than by a breach of any confidentiality agreement with a
predecessor or affiliate of the Company or (c) any Confidential
Information that Employee receives free of any obligation of
confidentiality or restrictions on use from a third party after
termination of employment with the Company.
ECF No. 552-4 at 3, § 4.
A reasonable jury could determine that Warner breached the nondisclosure term of
his employment agreement, as that term is defined by reference to § 4. Though the
provision’s precise meaning might be debatable, as it defines “Confidential Information”
quite broadly to include matters that go far beyond the coverage of the DTSA and the
NCTSPA. But the failure of these statutory claims does not preclude Syngenta from
showing that its contract claims are trial-worthy.13 And for this motion’s purposes, it is
enough that Syngenta—in its opposition brief—identified a significant volume of record
evidence from which a reasonable juror could infer that Warner used Syngenta information
for his benefit, see ECF No. 626 at 28–31, and Warner did not meaningfully address this
evidence in reply, see ECF No. 684 at 4–5.
Warner argues that the phrase appearing at the end of the nondisclosure provision,
“during the term of employment with Company,” limits enforcement of this provision to
Warner’s conduct while he was employed by Syngenta. Since Syngenta’s allegations only
13
It probably doesn’t matter, but it seems potentially problematic that “Confidential
Information,” as that term is used in § 6(a)(i) of the nondisclosure provision, is defined by
a provision that incorporates § 6(a)(ii). Accepting that approach seems to blur any
distinction intended between those two subsections.
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involve Warner’s conduct after his employment ended, he argues, the nondisclosure
provision does not apply. This is not persuasive. Syngenta’s “use” theory depends on
evidence tending to show Warner’s conduct during his Syngenta employment.
2
Warner and Syngenta seek summary judgment with respect to Syngenta’s claim
under the return-of-property provision. This provision appears in § 14(a) of Warner’s
employment agreement and, generally speaking, required Warner to return certain
documents to Syngenta upon the termination of his employment. ECF No. 552-2 at 7. It
reads:
Upon termination of employment, Employee shall deliver to
the Company all materials and copies thereof, including, but
not limited to, writings, records, data, photographs,
memoranda, manuals, handbooks, contracts, orders, sales
literature, price lists, customer lists, data processing materials,
software programs, manufacturing and production materials
and any other documents, whether or not obtained from the
Company, which pertain to the Company, contain Confidential
Information or were received or used by Employee in
connection with employment by the company.
Id.
Warner challenges the validity of this provision. He argues that it is unenforceable
because it is void under Minnesota’s anti-wage-theft statute, Minn. Stat. § 181.79. This
argument is not persuasive. As a procedural matter, any affirmative defense regarding the
illegality of this provision should have been raised in the Answer; because it was not, it is
waived. Fed. R. Civ. P. 8(c)(1); see Mayer Hoffman McCann, P.C. v. Barton, 614 F.3d
893, 908–09 (8th Circuit 2010); Rundgren v. Bank of New York Mellon, 777 F. Supp. 2d
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1224, 1233 (D. Haw. 2011) (“[I]llegality and/or unenforceability is an affirmative defense
and not a claim for relief.”), aff’d, 637 Fed. App’x 404 (9th Cir. 2016). That issue aside,
the employment agreement is governed by North Carolina law. It is therefore difficult to
understand how a Minnesota statute might apply, and Warner has not identified a North
Carolina statute under which he might advance a similar argument.
The record leaves no room for dispute that Warner violated his obligations under
this provision. Warner did not return Syngenta documents stored on several external hard
drives upon termination of his employment. Warner used these external hard drives, in
addition to his Syngenta desktop, laptop, and cell phone, to facilitate his work while at
Syngenta. Throughout his employment, Warner used at least seven external hard drives.
For example, on February 12, 2020, Warner transferred a Syngenta file, the “Drought File,”
from his Syngenta desktop to one of his external hard drives, the Alcor Micro Drive. ECF
No. 593-1 ¶¶ 77–83. About a month later, on March 13 and 16, 2020, Warner moved files
between his Syngenta laptop and five of his external hard drives. Id. ¶¶ 68–73. Warner’s
last day of employment with Syngenta was May 15, 2020. Thus, according to his
employment agreement, Warner was required on that day to return all materials covered
by Section 14(a). On May 15, his last day of employment, he returned his Syngenta laptop,
Syngenta phone, and one external hard drive. On May 29, Syngenta emailed Warner
asking about his external drive usage based on its suspicion that Warner had outstanding
Syngenta materials. ECF No. 552-33. On June 8, Syngenta’s counsel held a video call
with Warner to again ask whether he had any other unreturned devices that contained
Syngenta documents or information. ECF No. 551-3 at 169. During neither the email
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exchange nor the video call did Warner mention anything about the six other external
drives he possessed, all of which contained varying amounts of Syngenta information. ECF
Nos. 551-10, 551-16. Then on July 2, 2020, nearly two months after his Syngenta
employment ended, Warner “returned every device in his possession” except for his
personal cell phone to Syngenta’s counsel. ECF Nos. 631 at 4, 551-3 at 151, 173. The
Parties do not dispute that Warner had in his possession six external hard drives that
contained Syngenta documents after his employment with Syngenta ended. ECF No. 5513 at 145–46, 202.
Warner identifies a fact dispute as to whether he was aware of the Syngenta property
he retained post-termination. He says that evidence shows he forgot about the drives or
did not realize the materials were still accessible on the drives, and he argues that his lack
of awareness or intent means he did not breach § 14(a). “Contract liability is strict
liability.” Citgo Asphalt Refining Co. v. Frescati Shipping Co., Ltd., 140 S. Ct. 1081, 1089
(2020); Restatement (Second) of Contracts § 261 Introductory Note. Warner cites no
authority to support the proposition that lack of knowledge or subjective intent excuses him
from performing under his employment agreement or § 14(a) specifically. Therefore, his
subjective awareness is immaterial to whether he breached this provision.
Warner also suggests that the documents he retained do not fall under Section
14(a)’s requirements. It is clear that they do. Section 14(a) of the Employment Agreement
does not prohibit only the retention of confidential information as that term is commonly
understood, as Warner argues. It also prohibits the retention of “all materials and copies
thereof . . . which pertain to the Company, contain Confidential Information or were
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received or used by Employee in connection with employment by the Company.” ECF No.
552-2 at 7 (emphasis added). It is undisputed that the Syngenta documents on Warner’s
external hard drives “pertain” to Syngenta and were “received or used by” Warner “in
connection with” his employment by Syngenta. Warner admitted that he did not use the
devices for anything other than working for Syngenta. ECF No. 551-3 at 158–59, 173–74,
207–08; ECF No. 566 at 7. In other words, Warner used the devices solely for work
“pertain[ing] to the Company” and “in connection with [his] employment by the
Company,” which puts the devices squarely in the category of materials covered by Section
14(a).
Warner argues that “Syngenta’s ignorance of its exit procedures should be deemed
a waiver of the provisions it now seeks to enforce.” ECF No. 631 at 7. This argument is
not persuasive because Syngenta’s exit procedures (or alleged lack thereof) do not affect
Warner’s obligations under his employment agreement. Regardless, there is insufficient
evidence in the record to establish that Syngenta waived § 14(a)’s requirements. And even
if the record contained evidence of waiver, the employment agreement contained an antiwaiver provision. ECF No. 552-2 § 15(d).
There is no dispute as to any material facts that Warner kept Syngenta materials
after his termination. By failing to return Syngenta materials upon his termination, Warner
materially breached Section 14(a). Syngenta’s motion for summary judgment on its breach
of contract claim under Section 14(a) against Warner will be granted. As there is no record
evidence regarding Syngenta’s alleged damages resulting from Warner’s breach of
contract, that issue remains a question for the jury.
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V
As with Warner, Syngenta seeks summary judgment affirmatively with respect to
liability on its failure-to-return-property/breach-of-contract claim against Sleper. (Unlike
Warner, Sleper did not independently seek summary judgment.) This motion will be
granted, also.
In his deposition, Sleper testified that he permanently deleted documents from the
LaCie drive. ECF Nos. 648 at 20, 665-2 at 82–86. Included in those documents were “four
Excel spreadsheets containing publicly available PVP patent information,” and those
“Excel spreadsheets . . . are Syngenta documents.” ECF Nos. 648 at 20, 665-2 at 83; see
also ECF No. 532 at 15 n.11 (Magistrate Judge Thorson finding “that [i]t is
undisputed . . . that the four Excel spreadsheets contained Plant Variety Protection
information and are Syngenta documents”) (emphasis in original), 435-11 at 2, 55120. And Sleper admits that Magistrate Judge Thorson “concluded that [he] destroyed
Syngenta information.” ECF No. 648 at 21. That is enough to establish Sleper’s liability
under § 14(a).
Sleper argues—as did Warner—that he could have breached § 14(a) only if the
deleted information was confidential. Id. at 20-21. Section 14(a) is not limited to
Syngenta’s confidential information. By admitting to destroying, and thus retaining, “any
[] documents which pertain to [Syngenta], . . . or were received or used by Employee in
connection with employment by [Syngenta],” Sleper admitted to breaching Section 14(a),
making the entry of summary judgment against him on this basis appropriate.
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VI
In addition to Defendants’ Motion to Exclude Testimony from Dr. Smith, there are
five other motions to exclude expert testimony: Syngenta’s Motion to Exclude Testimony
and Opinions of Dr. Shawn Kaeppler [ECF No. 597]; Syngenta’s Partial Motion to Exclude
Testimony and Opinions of Jerry Bui [ECF No. 555]; Defendants’ Motion to Exclude
Testimony from Robert Meekins [ECF No. 588]; Defendants’ Motion to Exclude
Testimony from Donald Gorowsky [ECF No. 574]; and Syngenta’s Motion to Exclude
Bone Projections [ECF No. 568]. The motions will be addressed in that order.
A
Dr. Shawn Kaeppler is Defendants’ technical expert focused on the trade secret
evidence relating to Syngenta’s trade secret misappropriation claims. Syngenta moves to
exclude Kaeppler’s testimony and opinions. ECF No. 597. Syngenta seeks exclusion of
Kaeppler’s opinions about: (1) Syngenta’s confidentiality practices; (2) forensic issues; (3)
the Parties’ states of mind; and (4) the usefulness of Syngenta information internally to
Syngenta and externally to other parties. Because Smith’s opinions and the trade secret
misappropriation claims will be dismissed, Kaeppler’s opinions are irrelevant to the extent
they only apply to those claims. Nonetheless, Kaeppler’s opinions are admissible, though
perhaps less pertinent now, and Syngenta’s motion to exclude Kaeppler’s testimony will
be denied.
Syngenta first seeks to exclude Kaeppler’s opinions about Syngenta’s practices to
protect its confidential information, contending that these opinions stray beyond
Kaeppler’s expertise. See Shipp v. Murphy, 9 F.4th 694, 701 (8th Cir. 2021) (requiring a
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match between the expert’s area of expertise and the subject matter of the expert’s
testimony). In the paragraph of the report that Syngenta cites as problematic, however,
Kaeppler offers very little in the way of opinion regarding confidentiality and merely
recites Syngenta’s own policy on marking documents as either confidential, secret, or
internal use only. ECF No. 604-1 (“Kaeppler Rep.”) ¶ 189. The only opinion Kaeppler
reaches in this paragraph is that because Syngenta had not classified many of the
documents at issue as “confidential” or “secret,” Syngenta only decided the documents
were secret after they were found on Warner and Sleper’s devices. This conclusion is one
that Syngenta can rebut, but Kaeppler is not unqualified to offer it. He can observe what
Syngenta’s policies say and how those policies relate to the documentary evidence in this
case. Kaeppler’s opinion on this point will not be excluded.
Syngenta next seeks to exclude Kaeppler’s opinions about forensic issues.
Specifically, Syngenta takes issue with his observation that the Defendants’ forensic expert
found that neither individual defendant accessed many of the files they allegedly stole from
Syngenta after they left Syngenta’s employment. See, e.g., Kaeppler Rep. ¶¶ 187–88, 192.
Syngenta argues again that this testimony is beyond the scope of Kaeppler’s expertise. But
Kaeppler is not testifying that he performed any forensic analysis. Instead, he is quite
properly relying on the forensic analysis of another expert, one who, unlike the expert on
whom Dr. Smith relies, is available to testify at trial.
Syngenta also opposes Kaeppler’s repeated statement that the Defendants’ forensic
expert’s analysis is “consistent with” Kaeppler’s conclusion that many of the allegedly
stolen documents “would not be useful outside Syngenta, and likely not even outside the
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very specific context for which they were created.” E.g., id. ¶ 194. Syngenta’s argument
goes to the weight a jury should give Kaeppler’s testimony, however, and not its
admissibility. Kaeppler based his opinions in part on the conclusions of the forensic expert;
to the extent that those opinions are flawed as a result, that is a matter for
cross-examination.
Syngenta next seeks to exclude Kaeppler’s opinions about various Parties’ states of
mind. The Parties agree that testimony on the “the intent, motives, or states of mind of
corporations . . . and others have no basis in any relevant body of knowledge or expertise.”
Kruszka v. Novartis Pharms. Corp., 28 F. Supp. 3d 920, 931 (D. Minn. 2014) (quotation
omitted). Kaeppler’s report comments that Warner and Sleper “guessed” or “forgot,” and
that Syngenta “believed” or “did not consider” certain evidence.
But it stretches
Kaeppler’s statements to say that they are opinions regarding any party’s state of mind. In
one challenged opinion, for example, Kaeppler notes that he did not see any evidence that
Sleper had access to a document necessary to connect certain Syngenta internal seed-line
names with the names of those lines in the public domain. Kaeppler Rep. ¶ 253. Kaeppler
states that, because he did not see such evidence, “in at least two instances it appears Dr.
Sleper could only guess” at the internal names. Id. This is not improper opinion on
Sleper’s state of mind, but rather Kaeppler’s opinion as to what occurred based on the
evidence Kaeppler reviewed. This is appropriate opinion testimony. Another example is
Kaeppler’s statement that he had seen no evidence that “Syngenta believed” certain
information was trade secret. Id. ¶ 189. At best, this is inartful phrasing on Kaeppler’s
part. It is difficult to imagine Syngenta objecting if instead Kaeppler had stated that he had
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not seen evidence that “Syngenta considered” information to be secret. While Kaeppler
should avoid characterizing Syngenta’s actions as thoughts or beliefs, his opinions
regarding what the evidence indicates regarding Syngenta’s confidentiality practices as
reflected in various documents at issue is admissible.
Syngenta also seeks to exclude Kaeppler’s opinions about the usefulness of
Syngenta’s confidential information internally at Syngenta. See Kaeppler Rep. ¶¶ 194,
199, 203. These allegedly improper opinions are offered in conjunction with the above
discussion regarding the forensic evidence. According to Kaeppler, the forensic evidence
shows that neither Sleper nor Warner interacted with the allegedly stolen data after they
left Syngenta’s employment, which bolsters his “opinion that these files would not be
useful outside Syngenta, and likely not even outside the very specific context for which
they were created.” Id. ¶ 194. Syngenta’s attack on this aspect of Kaeppler’s report is that,
because Kaeppler has never worked for Syngenta or any other commercial breeding
organization, he is unqualified to testify to the value of the confidential information. But
his testimony is not based on any claimed commercial experience. Rather, he notes that
the data did not appear to be useful to the individual defendants even during their
employment and thus was unlikely to be useful to Syngenta as a whole. Whether this
opinion is credible is a matter for cross-examination, not exclusion.
Lastly, Syngenta seeks to exclude Kaeppler’s opinions about the usefulness of
Syngenta’s confidential information externally to parties outside Syngenta.
In one
example, Kaeppler opines that Syngenta’s internal data regarding its own seed lines is not
useful to outside entities, because those entities “would not be able to make use of that
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information without access to the same marker sets, the same genetic sequencing, the same
seed lines, and other variables unique to Syngenta.” Id. ¶ 77. In other words, according to
Kaeppler, the internal files—the
files that Sleper had on his computer—
required a “key” made up of data not included in those files to be useful to any outside
entity. Syngenta attacks this testimony on two fronts. First, as with Kaeppler’s other
challenged testimony, Syngenta argues that Kaeppler is unqualified to testify to the value
of the confidential information within the industry because he has never worked in a
commercial breeding organization. This argument is without merit, given Kaeppler’s
acknowledged expertise in the academic side of the industry. Syngenta’s challenge goes
to Kaeppler’s analysis of the data, something he is qualified to do. Syngenta can crossexamine Kaeppler if it believes there are gaps in his knowledge, but he is qualified to offer
this opinion. Syngenta’s second argument is that Kaeppler did not consider all relevant
facts, rendering his opinion unreliable. According to Syngenta, because Kaeppler opines
that the files at issue would not be of value externally without additional Syngenta data, he
was required to examine every single file before offering that opinion. Again, however, if
Kaeppler failed to consider some relevant files, this is a basis for cross-examination, not
exclusion. Kaeppler sufficiently supports his opinions and the motion to exclude him on
this basis is denied.
B
Both Syngenta and Defendants have engaged computer forensic experts. Jerry Bui
is the forensic expert for the Defendants, and Robert Meekins is the forensic expert for
Syngenta. Syngenta moved to exclude the testimony and opinions of Bui, and Defendants
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moved to exclude the testimony and opinions of Meekins. ECF Nos. 555, 588. Both
experts are focused on the computer forensic evidence relating to Syngenta’s trade secret
misappropriation claims against Warner and Sleper. See ECF No. 557 at 3 (explaining that
Syngenta is challenging Bui’s opinions that “are relevant to the issue of whether there is
computer forensic evidence that Defendants Todd Warner and Joshua Sleper
misappropriated confidential or trade secret information”), 5 (“Meekins’s expert report
offers his opinions as an expert forensic examiner regarding forensic evidence of
misappropriation of Syngenta’s confidential and trade secret information”); ECF No. 592
at 5 (stating the purpose of Meekins’s expert report was “to bridge the gap between
Plaintiff’s [] allegations and the proof required to establish trade secret misappropriation”).
Because the trade secret misappropriation claims will be dismissed, the extent to which
these witnesses’ opinions—and the Parties’ objections—remain significant is somewhat
unclear. To the extent that each witness’s testimony is relevant to liability or damages
issues with respect to Syngenta’s claims against Warner and Sleper, the experts will be
allowed to testify.
C
Donald Gorowsky is Syngenta’s damages expert. He submitted a report outlining
Syngenta’s damages and other remedies for the trade secret misappropriation and breach
of contract claims. ECF No. 584-4. Defendants moved to exclude Gorowsky’s testimony.
ECF No. 574.
While Defendants also challenge Gorowsky’s opinions on breach of contract
damages, their arguments are unpersuasive. See ECF No. 579 at 36–39. Defendants
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summarize Gorowsky’s opinions, stating his “proffered breach of contract damages
opinion amounts primarily to recouping the compensation Syngenta paid to the Individual
Defendants during their last year of employment.” Id. at 36. They make four arguments
challenging the breach of contract damages opinions: (1) there is no evidence that Warner
or Sleper assisted FBN or shirked their Syngenta duties while employed; (2) the value
Sleper provided to Syngenta by helping develop the P-rep trials should have been deducted
from any alleged damages; (3) Gorowsky’s theory of damages would violate North
Carolina’s Wage and Hour Act; and (4) Gorowsky’s opinions are simple arithmetic that is
within the jury’s ability. See ECF No. 579 at 36–39.
(1) Defendants’ argument about the lack of factual evidence showing that Warner
and Sleper improperly interacted with FBN and shirked their Syngenta duties is a disputed
fact question to be decided by the jury. It is not a ground to exclude Gorowsky’s opinions.
(2) Defendants’ assertion that Gorowsky should have deducted the value Sleper provided
to Syngenta via his P-rep trials is not a challenge to Gorowsky’s expertise or method—it
is a disagreement about an alleged fact’s application to the damages calculation. That issue
may be addressed on cross-examination. (3) The North Carolina Wage and Hour Act, N.C.
Gen. Stat. § 95-25.7, does not apply to this case. The North Carolina Wage and Hour Act
prohibits post-employment wage forfeiture without proper notice to the employee. N.C.
Gen. Stat. § 95-25.7 (“Employees whose employment is discontinued for any reason shall
be paid all wages due on or before the next regular pay day . . . Such wages may not be
forfeited unless the employee has been notified in accordance with G.S. 95-25.13 of the
employer’s policy or practice which results in forfeiture.”). However, this Act does not
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apply to an employee who lives outside of North Carolina and who worked primarily
outside the State, even if the employment contract specifies that North Carolina law
governs. Panos v. Timco Engine Ctr., Inc., 677 S.E.2d 868, 874 (N.C. Ct. App. 2009);
Logan v. L-3 Commc’ns Vertex Aerospace LLC, No. 3:11CV158-RJC-DSC, 2011 WL
13222657, at *2 (W.D.N.C. May 31, 2011). (4) Defendants’ argument that Gorowsky’s
calculation of contract damages is simple arithmetic—in other words, an issue for which
the jury needs no assistance—is unpersuasive. “Courts should resolve doubts regarding
the usefulness of an expert’s testimony in favor of admissibility.” Marmo, 457 F.3d at 758.
“There is not . . . an implicit requirement in Fed. R. Evid. 702 for the proffered expert to
make complicated mathematical calculations.” WWP, Inc. v. Wounded Warriors Fam.
Support, Inc., 628 F.3d 1032, 1040 (8th Cir. 2011) (emphasis in original); see also Mint
Solar, LLC v. Sam's W., Inc., No. 5:19-CV-05167, 2021 WL 1776144, at *2 (W.D. Ark.
May 4, 2021); Khoday v. Symantec Corp., 93 F. Supp. 3d 1067, 1086 (D. Minn. 2015).
Gorowsky will be allowed to testify about Syngenta’s damages relating to Warner’s and
Sleper’s alleged breach of contract. See ECF No. 584-4 at 45–48.
D
John Bone is FBN’s damages expert. Syngenta moved to exclude Bone’s opinions
that projected FBN’s sales for its proprietary seed lines. ECF Nos. 568, 576, 659 at 6
(“Syngenta confines its motion to one aspect of Bone’s rebuttal of Gorowsky’s damages
projections related to alleged trade secrets regarding the
trait
for corn seed.”). Bone’s opinions and projections were offered in relation to the trade
secret misappropriation claims, and because the trade secret misappropriation claims will
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be dismissed, Bone’s opinions are now irrelevant. Syngenta’s motion to exclude Bone’s
testimony will be denied as moot.
VII
The final motion is Defendants’ Motion to Strike the Declaration of Dominic
Tucker. ECF No. 702. Syngenta filed Tucker’s Declaration [ECF No. 638] in opposition
to Defendants’ Motion to Exclude Testimony from Donald Gorowsky [ECF No. 574].
Defendants’ Motion to Strike the Tucker Declaration will be denied as moot.
The Tucker Declaration supports Gorowsky’s findings.
At the time of his
Declaration, Tucker was the Head of North America Applied Genetics for Syngenta.
Tucker testifies regarding Syngenta’s analysis in arriving “at the information reflected in
Exhibit 4 of Gorowsky’s expert report which purports to reflect Syngenta’s ‘Loss from
Misappropriated Trade Secrets.’” ECF Nos. 705 at 6, 584-4 at 73–75 (Gorowsky’s
Report). Specifically, Tucker’s Declaration “identified
in R&D budgeted
spend relating to the relevant trade secrets,” and Tucker “determined the projects to which
Syngenta had overallocated R&D dollars in light of the disclosure to a competitor and the
fact that the same R&D spend would not produce the same competitive advantage.” ECF
No. 638 ¶¶ 4, 7.
Defendants argue that Syngenta is using Tucker’s Declaration as an end-run around
Magistrate Judge Thorson’s Order that excluded certain documents from evidence. Exhibit
4 of Gorowsky’s report cites “FINAL Syngenta v Warner Seeds Reports 2010_2021
(Damages Analysis).xlsb” and “FINAL Syngenta v Warner Seeds Reports 2010_2021 (TS
analysis).xlsb” as the sources for the exhibit. ECF No. 584-4 at 75. Those documents are
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also identified as SYNGENTA01819280 and SYNGENTA01819279. ECF Nos. 495-1,
495-2. The documents “are spreadsheets showing selected research and development
budgets” that “were created at the direction of Syngenta’s expert, Don Gorowsky, to be
used in connection with his report.” ECF No. 495 at 3. According to Syngenta, the
documents did not exist before expert discovery, but “[a]ll of the underlying factual
data . . . did exist and was produced during fact discovery.” Id.
However, Magistrate
Judge Thorson disagreed and excluded these two documents in her Order dated April 27,
2022. ECF No. 530 at 5–12. She explained that Syngenta untimely disclosed the
documents after the discovery deadline had passed, and the untimely disclosure was not
substantially justified or harmless. Id.
Now, Defendants allege that the excluded information contained in those documents
is sneaking its way in via Tucker’s Declaration, which is also reflected in Exhibit 4 to
Gorowsky’s report.14 While Tucker claims his analysis is based on SYNGENTA01784351
and SYNGENTA01819210, which were produced during fact discovery, Defendants argue
that is untrue. Defendants point to Magistrate Judge Thorson’s finding that “Mr. Gorowsky
[and, similarly, Tucker] could not have presented his opinion regarding ‘actual loss’ . . .
relying solely on SYNGENTA01784351 and SYNGENTA01819210” and would have
needed
the
additional
facts
supplied
in
the
two
excluded
documents,
SYNGENTA01819280 and SYNGENTA01819279, to come to his conclusion. ECF No.
14
Defendants refer to SYNGENTA01819278 and SYNGENTA01819282 as the cited
documents in Exhibit 4 of Gorowsky’s report, but that is incorrect. The cited documents
are SYNGENTA01819280 and SYNGENTA01819279, which matches with the
Defendants’ arguments and cited portions of Magistrate Judge Thorson’s Order.
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530 at 10–12. I affirmed Magistrate Judge Thorson’s Order, agreeing that “Syngenta had
not disclosed five of the documents, or the information underlying the documents, in a
timely manner and had not established that its late disclosures were substantially justified
or harmless.” ECF No. 622 at 2 (emphasis added). As was explained at that time:
Syngenta’s arguments seem to misunderstand the rationale
underpinning Magistrate Judge Thorson’s ruling.
She
excluded the documents not just because the documents
themselves were disclosed after the deadline for doing so, but
because she determined after a careful and thorough review of
the record that the data on which the documents were based
was available to Syngenta long before Syngenta disclosed the
documents, and thus should have been disclosed pursuant to
the applicable case-management orders.
ECF No. 622 at 6. Syngenta is incorrect to think that only the documents themselves, but
not the information within them, were excluded.
After analyzing the excluded documents at issue, Exhibit 4 to Gorowsky’s report,
and Tucker’s Declaration, it is difficult to see how either Gorowsky or Tucker could arrive
at their conclusions without considering the factual information contained in
SYNGENTA01819280 and SYNGENTA01819279. Syngenta cannot use Tucker as a
conduit to provide the same exact information that has already been excluded.
If
Syngenta’s trade secret misappropriation claims remained at issue, Tucker’s Declaration—
or the testimony he might offer—based on the information underlying the excluded
documents would be excluded. However, because summary judgment will be entered
against those claims, Defendants’ Motion to Strike Tucker’s Declaration will be denied as
moot.
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ORDER
Based on the foregoing and all the files, records, and proceedings herein, IT IS
ORDERED THAT:
1.
Plaintiff’s Motion for Partial Summary Judgment Against Defendants Joshua
Sleper and Todd Warner [ECF No. 547] is GRANTED.
2.
Plaintiff’s Partial Motion to Exclude Testimony and Opinions of Jerry Bui
[ECF No. 555] is DENIED.
3.
Defendant Warner’s Motion for Summary Judgment [ECF No. 561] is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to
Plaintiff’s claims for trade secret misappropriation under federal and North Carolina law
and conspiracy to commit trade secret misappropriation. It is DENIED in all other
respects.
4.
Plaintiff’s Motion to Exclude Bone Projections [ECF No. 568] is DENIED
AS MOOT.
5.
Defendants’ Motion to Exclude Testimony from Donald Gorowsky [ECF
No. 574] is DENIED.
6.
Defendants’ Motion to Exclude Testimony from Robert Meekins [ECF
No. 588] is DENIED.
7.
Plaintiff’s Motion to Exclude Testimony and Opinions of Dr. Shawn
Kaeppler [ECF No. 597] is DENIED.
8.
Defendants’ Motion to Exclude Testimony from Dr. J. Stephen Smith [ECF
No. 606] is GRANTED.
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9.
Defendants’ Joint Motion for Summary Judgment Or, In The Alternative,
Partial Summary Judgment [ECF No. 614] is GRANTED.
10.
Defendants’ Joint Motion to Strike the Declarations of Dominic Tucker and
Shreyartha Mukherjee [ECF No. 702] is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED as to the Declaration of Shreyartha Mukherjee. The motion is
DENIED AS MOOT as to the Declaration of Dominic Tucker.
11.
This Order is filed temporarily under seal. On or before February 15, 2023,
the Parties must submit any proposed redactions to this Order to the following email
address: tostrud_chambers@mnd.uscourts.gov.
After consideration of the Parties’
proposed redactions, if any, a public version of this Order will be filed.
Dated: February 8, 2023
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
64
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