Monsanto Company v. E.I. Dupont De Nemours and Company et al

Filing 766

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants shall, no later than June 3, 2011, produce the six disputed documents to Monsanto in unredacted form or submit them to the Court for in camera review. Signed by Honorable E. Richard Webber on May 27, 2011. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MONSANTO COMPANY and
MONSANTO TECHNOLOGY LLC,
Plaintiffs,
vs.
E.I. DU PONT DE NEMOURS AND
COMPANY and PIONEER HI-BRED
INTERNATIONAL, INC.,
Defendants.

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Case No. 4:09CV00686 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs Monsanto Company and Monsanto
Technology LLC’s (collectively, “Plaintiffs”) Second Motion to Compel Production of Recalled
Documents [doc. #699]. In this Motion, Monsanto seeks an order compelling Defendants to
produce unredacted versions of six documents that Defendants originally produced to Monsanto
and then recalled on grounds of attorney-client privilege.1
“[T]he party who claims the benefit of the attorney-client privilege has the burden of
establishing the right to invoke its protection.” Hollins v. Powell, 773 F.2d 191, 196 (8th Cir.
1985) (internal citations omitted). Thus, in order to continue to withhold the information at
issue, Defendants must establish that it constitutes, or necessarily reflects, confidential
communications between attorney and client, made for the purpose of obtaining or giving legal
advice or assistance. See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977).

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The Motion originally concerned 10 documents, but the parties have since resolved their
dispute as to four of those documents. Of the six still at issue, Defendants have produced five in
redacted form and have withheld the other in its entirety.

It is impossible for the Court to determine whether these documents were properly
redacted – or, in one case, withheld completely – because Defendants have declined to submit
unredacted versions for the Court to review. With respect to most of the redactions at issue,
Defendants argue in general terms that the withheld information relates to the solicitation or
provision of legal advice concerning patent, intellectual property, regulatory, or freedom-tooperate issues, but the Court cannot conclude that Defendants have met their burden of
establishing that attorney-client privilege applies without actually examining the disputed text.
As such, Defendants will be ordered to either produce these documents to Monsanto or submit
them for in camera review.
Accordingly,
IT IS HEREBY ORDERED that Defendants shall, no later than June 3, 2011, produce
the six disputed documents to Monsanto in unredacted form or submit them to the Court for in
camera review.
Dated this 27th Day of May, 2011.

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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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