Cargill, Incorporated v. Kroeger et al

Filing 141

ORDER - Plaintiff's Motion for Leave to Depose Undisclosed Fact Witness Laura Dotterer (filing 95 ) is granted. Plaintiff is directed to take Ms. Dotterer's deposition within thirty days of this order. Defendants' Motion for Protective Order (filing 120 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CARGILL, INCORPORATED,
Plaintiff,
V.
KURT KROEGER, KATHY
KROEGER, and H & M FARMS,
INC.,
Defendants.

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8:11CV81

ORDER

The deposition deadline in this case was March 30, 2012. On April 24, 2012, Plaintiff
filed a motion for leave to conduct an additional deposition (filing 95). Defendants oppose
Plaintiff’s motion and have filed a motion for protective order (filing 120). For the reasons
explained below, Plaintiff’s motion will be granted and Defendants’ motion will be denied.
BACKGROUND
On March 6, 2012, Plaintiff deposed Mark Hinze (“Hinze”), one of Defendants’
expert witnesses. During the deposition, Hinze testified that he had observed a study at the
University of Nebraska in which plants exhibited toxic symptoms of manganese. Hinze
stated that the study was conducted by Laura Dotterer (“Dotterer”), a PhD student. Dotterer
had not previously been disclosed to Plaintiff as an individual having knowledge of matters
related to this litigation.
Shortly following Hinze’s deposition, on March 13, 2012, Plaintiff issued a subpoena
duces tecum to the University of Nebraska. The University produced records on March 27
and 28, just two days before the close of discovery, which revealed communications between
Hinze and counsel for Defendants, including communications regarding Dotterer.
Plaintiff’s counsel contacted Dotterer by telephone on April 3, 2012. (Filing 96-2.)
According to Plaintiff’s counsel, Dotterer stated that in 2011, she conducted a field trial at

the Mead, Nebraska Agricultural Research and Development Center to determine the toxicity
level of manganese in acidic soils. (Id.) She explained that, regardless of the rate of
application, she could not produce an adverse crop response. (Id.) Dotterer stated that she
did not possess documents related to the demonstration plot. (Id.) Dotterer further informed
counsel that Defendant Kurt Kroeger (“Kroeger”) and Hinze visited her test plot in the
summer of 2011, in association with a crop diagnostic clinic, and that she participated in
several discussions with Kroeger regarding the plot and the results. (Id.) She further stated
that she spoke with Plaintiff’s counsel in December of 2011. (Id.)
On April 10, 2012, Plaintiff’s counsel sent a public records request to the University
of Nebraska to obtain information regarding Dotterer’s study. Plaintiff’s counsel asserts that
the documents from the University, which were received on April 20, 2012, revealed that
Dotterer was in contact with Kroeger from the outset of her study. However, according to
Defendants, Dotterer has never been to Defendants’ fields and did not view the 2010 crop.
(Filing 122-1.)
ANALYSIS
Plaintiff maintains that the study conducted by Dotterer involved the hypothesis that
Defendants seek to prove in this case, particularly, that varying levels of manganese
application to corn may lead to toxicity caused by the presence of excess manganese.
Plaintiff maintains that Dotterer’s manganese toxicity research and interaction with
Defendants’ experts is integral to the current litigation and that Plaintiff would be greatly
prejudiced if it was not able to depose Dotterer. Defendants oppose the motion, arguing that
it had no duty to disclose Dotterer because she is “at best” an informally consulted expert and
the identity of non-testifying experts is not discoverable.
At this point, it is unclear whether Dotterer was consulted as an expert of any kind.
According to Plaintiff, after Plaintiff learned of Dotterer, and prior to the filing of Plaintiff’s
motion for leave, Defendants’ counsel never advised that Dotterer was consulted as an expert
in preparation for trial. Also, when Kroeger continued to contact Dotterer after the initiation
of this litigation, Dotterer refused to return Kroeger’s telephone calls and John Wiltse of the
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University of Nebraska informed Defendants’ counsel that Dotterer had been instructed not
to discuss matters related to the case with Kroeger. (Filing 96-3.) This certainly is not the
relationship one would expect to see when a party has employed or even informally consulted
an expert. (Id.)
In any event, the Court will allow Plaintiff to depose Dotterer. The question of
whether Dotterer was, in fact, consulted as an expert can be sorted out at the deposition.
Plaintiff acted diligently in pursuing information regarding Dotterer following her disclosure
and in seeking leave to take her deposition. Further, Defendants will not be unduly
prejudiced by allowing the deposition to go forward. Plaintiff, on the other hand, could
sustain prejudice if the results of Dotterer’s study have not been published and one of
Defendants’ experts relied upon the study in formulating his opinion.
Accordingly,
IT IS ORDERED:
1.

Plaintiff’s Motion for Leave to Depose Undisclosed Fact Witness Laura
Dotterer (filing 95) is granted. Plaintiff is directed to take Ms. Dotterer’s
deposition within thirty days of this order.

2.

Defendants’ Motion for Protective Order (filing 120) is denied.

DATED June 8, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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