Monsanto Must Give Docs In Syngenta MDL

Monsanto may soon need to add some provision in its employment contracts to keep former employees from testifying in other GMO matters. A former Monsanto lawyer is giving the company something else to think about as he has testified as a GMO expert in a matter that didn’t even concern Monsanto directly in the first place.

In its endless quest to hide its poison programs and the way it does business, Monsanto had refused to let its former company lawyer hand over documents in a recent multi-district litigation action. Two judges responded by saying the former Monsanto attorney must give up some of the questionable documents in the Syngenta MDL.

On March 24, 2017, a Kansas federal court partially granted a demand from a group of corn producers to force a former Monsanto in-house lawyer to hand over Monsanto documents. Plaintiffs argued that the Monsanto lawyer could be holding relevant information in what the plaintiffs called Syngenta’s false promotion of genetically modified corn.

Two Judges say Monsanto must hand over docs
Former Monsanto Associate General Counsel J. Thomas Carrato, one of Syngenta’s designated experts, was ordered by U.S. Magistrate Judge James P. O’Hara and Minnesota Special Master John B. Van de North to produce documents related to industry standards for commercialization of new genetically modified (GMO) crops. Mr. Carrato has opined that Syngenta acted in a manner consistent with those standards.

Privileged & Confidential?
Law360 reported that Monsanto tried in two actions to quash subpoenas from the corn producers. The poison giant had argued that complying would require Mr. Carrato to produce privileged and confidential documents which came to him while he was on Monsanto’s payroll. The corn producers had filed in each of the two actions a cross-motion to compel Mr. Carrato to produce documents from his personal files. They argued the documents would let them assess and challenge Mr.  Carrato’s opinions.

Monsanto can withhold some documents
Judge O’Hara and Special Master Van de North jointly granted in part and denied in part Monsanto’s motion to quash and granted in part and denied in part the corn producers’ motion to compel.

“Mr. Carrato and Monsanto assert that Mr. Carrato should not be required to produce documents subject to the confidentiality agreements between them,” the joint order said. “Mr. Carrato cites Snowden v. Connaught Labs Inc., in which the court held that the defendants were not required to produce documents in violation of a confidentiality agreement with a third party. The undersigned respectfully decline to follow the Snowden result, which is not supported in the opinion by any reasoning or caselaw.”

On Jan. 19, 2017, the U.S. magistrate partly granted Monsanto’s emergency request to intervene in the MDL to seek a protective order relating to Mr. Carrato’s deposition. The barrister was Monsanto’s in-house counsel for nearly 22 years and then a Monsanto consultant until 2016.

The U.S. magistrate refused what he termed Monsanto’s “implied request” to exclude Mr. Carrato from serving as a witness. The judge held that the deposition would go forward, but said Monsanto could send lawyers to advise Mr. Carrato.

Syngenta sued for $1 Billion
In September 2016, U.S. District Judge John W. Lungstrum granted certification to a nationwide group of corn producers who had brought Lanham Act claims in the multidistrict litigation. The MDL court plaintiffs allege that Syngenta’s promotion of genetically modified corn cost them at least $1 billion.

Judge Lungstrum certified a nationwide class of corn producers who priced any corn for sale after Nov. 18, 2013, and have brought claims under the Lanham Act. He excluded those who bought Syngenta GMO seed strains Viptera and Duracade, and also excluded statewide classes from Arkansas, Illinois, Iowa, Kansas, Missouri, Nebraska, Ohio, South Dakota.

China Refused GMO Strains
The producers charge that they lost an enormous amount of money when the presence of the unapproved GMO strains in U.S. exports all but shut down the Chinese market to U.S. corn.

The parties filed dueling summary judgment motions on Feb. 6, 2017. The plaintiffs asked for partial summary judgment on several of Syngenta’s affirmative defenses. Syngenta asked for a quick win on the nationwide Lanham Act class claims, as well as the Kansas state class’ negligence claims.

Court filings show that the trial on those claims is scheduled for June, 2017. Judge Lungstrum said in January that the non-Kansas certified class actions will also be tried in the present court. He told plaintiffs to file a consolidation motion after he rules on the summary judgment requests.

Many of the motions in the case are sealed at the request of Syngenta and Monsanto; so it’s difficult to get many helpful details.

Bellwether Cases for Corn Producers
Bellwether cases had been set in August 2017 for corn producers and nonproducers in the MDL. Court records show that each side has selected one nonproducer and two producer plaintiffs for a total of six indicator trials. Farmers from four states will serve as the four producer bellwether cases. Trans Coastal Supply Co. Inc. and Rail Transfer Inc. will serve as the two nonproducer bellwethers.

Monsanto told Law360 through a spokesman that during Mr. Carrato’s time as a consultant from 2014 to 2016, he had confidentiality agreements with Monsanto, and also legal ethical obligations that govern the client-lawyer relationship.

The Monsanto mouthpiece said: “Monsanto’s sole objective in intervening into the Syngenta litigation is to prevent the disclosure of Monsanto confidential information or any information that may be subject to the attorney client privilege or attorney work product doctrine.”

Law360 said reported that representatives for the corn producers and Syngenta did not immediately respond to requests for comment on March 24.

Monsanto Must Give Docs In Syngenta MDL
The case is In re: Syngenta AG MIR 162 Corn Litigation, case number 2:14-md-02591, in the U.S. District Court for the District of Kansas.

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