Bader Farms, Inc. et al v. Monsanto Company

Filing 657

MEMORANDUM AND ORDER re: 631 MOTION to Seal Document Monsanto Company's Motion to Seal Certain Limited Trial Exhibits and Related Testimony filed by Defendant Monsanto Company: IT IS HEREBY ORDERED that Monsanto's motion to seal [#631] is DENIED in part and GRANTED in part as explained herein. Signed by District Judge Stephen N. Limbaugh, Jr on 01/28/2021. (CMH)

Case: 1:16-cv-00299-SNLJ Doc. #: 657 Filed: 01/28/21 Page: 1 of 10 PageID #: 39835

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BADER FARMS, INC.,
Plaintiff,
v.
MONSANTO COMPANY and
BASF Corporation,
Defendants.

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MDL No. 1:18-md-02820-SNLJ
Indiv. Case No. 1:16-cv-00299-SNLJ

MEMORANDUM and ORDER
This matter is before the Court on Monsanto’s motion to seal certain trial exhibits
and related testimony [#631]. Plaintiff responded in opposition, and the motion has been
fully briefed.
I.

Background
A three-week jury trial was held in this matter beginning January 25, 2020. On

January 17, 2020, BASF filed a motion [#360] respecting confidentiality in which
Monsanto joined. [#358.] Defendants proposed that material marked Confidential and
Highly Confidential be sealed, that the courtroom be closed when a Highly Confidential
document was introduced, that the jury be instructed not to disclose “confidential trade
secret information,” and that within 45 days after receipt of the final trial transcript,
Defendants could move to maintain sealing of “trade secrets and confidential business
information.” [#360.] This Court denied defendants’ motion, ruling instead that it was
willing “to grind through whatever it takes” to address “highly confidential or
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confidential marked exhibits one-by-one as they’re introduced.” This Court instructed
defendants to advise the Court “what exactly the objections are and just how confidential
[the document] is so that [the Court could] address” confidentiality at the time of
introduction. [1/24/2020 Trial Tr. at 74.] At trial, defendants did not address
confidentiality of any document or testimony. As a result, documents and testimony
were admitted into evidence.
Monsanto, on May 29, 2020, filed the instant motion to seal certain trial exhibits
and corresponding transcript testimony. It argues that the materials, if not sealed, will
cause harm to Monsanto, BASF, and/or non-parties because they contain information
falling into one or more of the following categories: (1) grower personal identifying
information and/or other private or commercially sensitive information; (2) confidential
contract terms between Monsanto and BASF regarding the development of dicamba
tolerant technologies; (3) Monsanto’s claims resolution processes containing proprietary
information including staffing and funding resource levels; (4) testing as to noncommercialized, non-public products; and (5) employee contact information.
Plaintiff contends it is too late to seal these materials from public view.
II.

Legal Standard
The Eighth Circuit recognizes the common law right of access to judicial records.

Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376-77 (8th Cir. 1990)
(citing Nixon v. Warner Comm., 435 U.S. 589, 597 (1978)).
This right of access bolsters public confidence in the judicial system by
allowing citizens to evaluate the reasonableness and fairness of judicial
proceedings, and “to keep a watchful eye on the workings of public
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agencies.” It also provides a measure of accountability to the public at large,
which pays for the courts.
IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013) (citations omitted).
“It is uncontested, however, that the right to inspect and copy judicial records is
not absolute. Every court has supervisory power over its own records and files, and
access has been denied where court files might have become a vehicle for improper
purposes.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978). Because
the right to access is not absolute, it “requires a weighing of competing interests.” In re
Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 245 F.R.D. 632, 636
(D.Minn.2007) (quoting Webster Groves Sch. Dist., 898 F.2d at 1376). However, “only
the most compelling reasons can justify non-disclosure of judicial records.” In re Neal,
461 F.3d 1048, 1053 (8th Cir.2006) (quoting In re Gitto Global Corp., 422 F.3d 1, 6 (1st
Cir. 2005)).
“The presumption in favor of access places the burden on the party seeking to
maintain confidentiality to establish sufficient grounds for prohibiting public access to the
record.” Monsanto Co. v. E.I. DuPont De Nemours & Co., 4:09CV00686 ERW, 2012 WL
5830580, at *2 (E.D. Mo. Nov. 16, 2012). Although the Eighth Circuit has not provided
explicit guidance, other courts have employed six factors to determine whether a party has
overcome the presumption in favor of publication:
Those factors are: (1) the need for public access to the documents at issue;
(2) the extent of previous public access to the documents; (3) the fact that
someone has objected to disclosure, and the identity of that person; (4) the
strength of any property and privacy interests asserted; (5) the possibility of
prejudice to those opposing disclosure; and (6) the purposes for which the
documents were introduced during the judicial proceedings.
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See id. (citing, inter alia, United States v. Hubbard, 650 F.2d 293, 318 (D.C. Cir. 1980),
and dubbing these factors the “Hubbard factors.”).
III.

Discussion

The Court will address each category of documents/testimony.
First, however, the Court addresses plaintiff’s overarching objection, which is that
defendant Monsanto has filed its motion too late. Plaintiff contends that defendant
should have addressed confidentiality during the trial, and that defendant’s months-later
motion cannot unring the bell. The documents and testimony, plaintiff says, have been in
the public domain for months. Journalists covered numerous aspects of the trial, and the
parties cited extensively to contracts and invoices that Monsanto now wishes to withdraw
from the public record. Plaintiff cites many out-of-Circuit cases to support its position.
[#637 at 6-7.]
Monsanto responds that it went to great lengths to protect the confidentiality of the
information sought to be sealed by the instant motion. Monsanto points out that the
Protective Order entered in the MDL notes that “Confidential” and “Highly Confidential”
information could be presented to the jury, which means the confidentiality designations
would not be waived at trial. [MDL #54 at ¶9(a)(vii) and ¶9(b)(i).] The problem with
Monsanto’s argument is that the information was presented to the jury in open court. The
Confidential and Highly Confidential documents were thus presented to the public and
were in some cases picked up by members of the media and published elsewhere. There
is no way to claw back information that has been disseminated by news outlets.
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However, it is another matter for the exhibits and trial testimony to remain public and
unsealed. The trial exhibits were all returned to the parties pending appeal, so none of
those exhibits are currently readily available. That said, plaintiff points out that some
exhibits have been made publicly available on the internet by third parties.
Monsanto appears to acknowledge this, noting that the balancing test “favors
precluding further public disclosure.” [#656 at 2.] And this Court agrees that there is
little justification to leaving some matters open to public disclosure. Each matter is
addressed below.
Non-party Growers. The exhibits and related testimony in this category contain
information related to non-party growers. These include a spreadsheet identifying the
name, street address, and purchase history of growers located within 15 miles of Bader
Farms; emails identifying growers and seed purchase information; and testimony
identifying growers reporting off-target movement.
Plaintiff responds that Monsanto overstates the personal nature of the information
at stake. One exhibit contains no personal identifying information beyond the grower’s
name and brief mention of a single purchase. Another contains names and addresses but
nothing more than the type of crop grown and a column titled “Reported GPOS Unit.”
Plaintiff argues that names and addresses are largely public information, and use of
particular seed is not privileged information. However, plaintiff ignores that, pursuant to
Local Rule 2.17(A)(5), plaintiff was required to redact the non-parties’ mailing addresses
before seeking to admit the exhibits. It appears to this Court though, that the fact of the
seed sales is not so private as to mitigate against disclosure. Plaintiff should redact the
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exhibits in accordance with the local rule, but this Court will not seal the exhibits
otherwise.
As for the personal information regarding non-party growers who reported offtarget movement, Monsanto seeks to protect this information because its publication
could deter growers from communicating with Monsanto in the future regarding potential
instances of misapplication or misuse of Monsanto’s products. Courts have found a
significant risk to voluntary reporting if a declarant’s identity is revealed. See, e.g., Ctr.
for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 930 (D.C. Cir. 2003) (“A
potential witness or informant may be much less likely to come forward and cooperate
with the investigation if he believes his name will be made public.”); Alyeska Pipeline
Serv. Co. v. U.S. E.P.A., 856 F.2d 309, 311 (D.C. Cir. 1988) (affirming that disclosure of
reporters’ identities might “thereby subject them to potential reprisals and deter them
from providing further information”). Monsanto argues that the deterrent effect is of
particular concern here, where neighboring growers have both personal and professional
relationships with one another. This Court declines to seal the exhibit. To the extent the
local rules require redaction, the plaintiff should so-redact.
Contact list for Monsanto and BASF Employees. This list, Ex. PLTF 1378,
contains names, titles, work phone numbers, cell phone numbers, and email addresses of
approximately 45 Monsanto and BASF employees who worked on the dicamba
technologies. Monsanto explains that it seeks sealing of this document to avoid the risk of
unnecessary or unwanted contact with its employees. To accommodate the public’s
interest in the information while mitigating the aforementioned risk, Monsanto proposes
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redacting only the employee phone numbers and email addresses. There is no reason for
phone numbers and email addresses to remain public information, and they should be
redacted before being filed with the Court.
Commercially Sensitive Information. These documents include confidential
contracts and Monsanto’s claims process system. These exhibits such as the Umbrella
Agreement, invoices, and other agreements, contain contractual terms and related
information, including the specific royalty rate paid by Monsanto.
Ex. PLTF 1014 is a Royalty Invoice to Monsanto. Although numerous invoices
were introduced at trial, this is the only invoice Monsanto seeks to seal. The document
was also produced by BASF and it was an exhibit to a BASF post-trial motion. News
articles include the information regarding the amounts of royalty payments paid to BASF.
Monsanto suggests it would be at a competitive disadvantage if this invoice is not sealed,
but that argument does not hold water in light of the circumstances. This exhibit will not
be sealed.
Exs. PLTF 1103, B 672, B 673, and B 677 are the various agreements between
Monsanto and BASF, and Ex. PLTF 1108 is a PowerPoint presentation detailing terms of
one key agreement. Monsanto argues that public disclosure of the confidential contract
terms would harm the defendants’ competitive standing. For example, Monsanto says
that the terms could form the baseline or starting point for future negotiations. But
plaintiff points out that these documents have been appended to briefs not under seal.
Monsanto further argues that the terms upon which the defendants contracted were

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immaterial to the joint venture claim, but this Court disagrees. This Court will not
retroactively seal the Agreement exhibits.
Internal Processes and Procedures. These exhibits pertain to Monsanto’s claim
processes for various issues reported by growers, including product performance issues
that it says are irrelevant to this litigation. Monsanto says market participants could use
these documents to obtain the benefit of Monsanto’s experience and resources. This
Court, in entering the Protective Order in this case, found that this lawsuit involved
sensitive information not available to the public that warranted protection, such as
“pricing information, development, commercial, financial, technical and/or proprietary
information.” Plaintiff points out that information regarding defendants’ claims
processes is highly relevant to the foreseeability of harm, the defendants’ coordinated
response, the refusal to settle claims, and the “reprehensibility” of their conduct. Further,
documents showing the claims processes, including documents Monsanto now wants
sealed, were filed as exhibits to post-trial briefing. Again, these documents were shown
to the jury and to the public, and this Court declines to seal them now.
Commercially sensitive information regarding Non-Commercialized
Products. These include documents regarding testing data and testing conditions
regarding the volatility of the non-commercialized Monsanto product, Roundup Xtend, as
compared to Clarity. Roundup Xtend was never commercialized and, Monsanto says,
was irrelevant to the litigation. Plaintiff says it was relevant because the relative
volatility of dicamba with and without glyphosate (the active ingredient in Roundup) is of
interest because defendants encouraged the mixing of the two. Although Roundup Xtend
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(i.e., Roundup mixed with dicamba) was never sold in the United States, plaintiff says it
was advertised in Canada, and, regardless, the science of the combined chemicals is
relevant to what was actually used in the United States. This Court agrees that the
information conveyed by these documents was relevant to the litigation—as Monsanto
concedes, volatility testing data for XtendiMax tank mixed with glyphosate was provided
to the EPA and admitted into evidence. Monsanto’s suggestion that data regarding premixed dicamba and glyphosate is too far removed to be relevant rings hollow; it appears
that, whether pre-mixed or tank-mixed, adding glyphosate to dicamba increased
volatility.
Further, Monsanto does not explain the harm that would come from not
retroactively sealing the documents, particularly because similar or identical information
was already made public. Ex. PLTF 546, which Monsanto seeks to seal, was also
admitted as an exhibit as an attachment to Ex. PLTF 130, which Monsanto does not seek
to seal. That email describes the testing insight on how to improve dicamba
formulations respecting volatility. Notably, BASF itself moved to admit Ex. PLTF 546
without objection. And, the other document Monsanto seeks to retroactively seal, Ex.
PLTF 299, was also admitted without objection and is available on the internet, along
with similar documents Monsanto did not seek to seal. This Court declines to
retroactively seal these documents.

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Accordingly,
IT IS HEREBY ORDERED that Monsanto’s motion to seal [#631] is DENIED in
part and GRANTED in part as explained herein.
Dated this 28th day of January, 2021.

STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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