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

Filing 788

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants' Motion Concerning Monsanto's Late Production of an Essential Custodian Document [doc. #725] is DENIED. Signed by Honorable E. Richard Webber on June 9, 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 Defendants’ E.I. du Pont de Nemours and
Company and Pioneer Hi-Bred International, Inc. (collectively, “Defendants”) Motion
Concerning Monsanto’s Late Production of an Essential Custodian Document [doc. #725]. In
their Motion, Defendants state that they have been prejudiced by Plaintiffs Monsanto Company
and Monsanto Technology LLC’s (collectively, “Monsanto”) failure to produce a key document
from custodian Brian Martinell – a so-called “crib sheet” detailing certain facts about the creation
of the 40-3-2 soybean event – until the end of Martinell’s deposition, and seek an order (1)
compelling Monsanto to re-interview Martinell about documents in his possession, and (2)
permitting Defendants to name Kyle Voss, revealed on the “crib sheet” to be an individual with
knowledge about the creation of the 40-3-2 event, as an additional custodian. Monsanto
contends that although this document was inadvertently not produced until Martinell’s
deposition, the requested relief should be denied because Monsanto gave Defendants additional

deposition time to question Martinell about the document and because it was cumulative of other
information Monsanto had already produced.1
This is simply yet another instance of untimely production, something of which both sides
have been guilty on numerous occasions thus far. Defendants’ Motion will be denied. An
examination of the past several months of filings demonstrates that both Monsanto and
Defendants have been unable to fulfill their document production obligations in a timely manner,
and if the Court were to grant the relief requested here, it would effectively open the floodgates
for the designation of multiple additional custodians, further interviews about the locations of
custodial documents, and the like. The discovery that has already taken place has been costly and
burdensome for both sides, and increasing the cost and burden is unwarranted as a result of this
relatively unremarkable instance of belated production.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion Concerning Monsanto’s Late
Production of an Essential Custodian Document [doc. #725] is DENIED.
Dated this 9th Day of June, 2011.

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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

1

Monsanto also argues that Defendants’ Motion should be denied because Defendants
failed to meet and confer about this issue prior to filing the Motion. To the extent Monsanto
claims that Defendants improperly resorted to motion practice with respect to a matter that could
have been resolved between the parties, the Court notes that the same could be said, and has been
said, of numerous discovery motions filed by Monsanto. Indeed, an examination of the recent
filings in this case suggests that counsel for both Monsanto and Defendants are taking the
opportunities offered by the discovery process to engage in as much motion practice as possible.
2