United States District Court, E.D. Missouri, Southeastern Division
BADER FARMS, INC. and BILL BADER Plaintiffs,
MONSANTO CO., Defendant.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs Bader Farms, Inc.
and Bill Bader's (collectively “Bader”)
motion to quash the deposition notice and subpoena of Dr.
Ford Baldwin and motion for a protective order (#71). The
motion is briefed and ripe. For the reasons explained below,
the Court denies Bader's motion.
Amended Complaint, Bader alleged that Monsanto
representatives conspired with farmers who purchased
Monsanto's dicamba-resistant seeds (#62 at 59). Bader
relied on information from an expert it retained, Dr. Ford
Baldwin, to support the allegation (#51-2 at 1, ¶ 4).
Baldwin told Bader that, at an Arkansas State Plant Board
hearing, a farmer testified that a Monsanto representative
told him to spray old dicamba on his dicamba-resistant seeds.
Then, Monsanto served Baldwin with a deposition notice and
subpoena. Bader objects.
claims that it would be inappropriate to depose Baldwin-an
expert- outside the Case Management Order's expert
discovery schedule (#67). As part of its briefing on this
motion, Bader submitted an affidavit signed by Baldwin
(#71-5). In his affidavit, Baldwin explains why he believes
that Monsanto representatives told farmers to illegally spray
old dicamba. Baldwin's belief is based on testimony that
Mr. Donald Masters (a Missouri farmer) gave to the Arkansas
State Plant Board “and other statements that [Baldwin
has] heard in the agricultural community . . . .”
(#71-5 at 15, ¶ 70). Baldwin even called Monsanto's
practice “common knowledge.” (#71-5 at 16, ¶
seeks to depose Baldwin to determine the factual basis for
Baldwin's assertion that Monsanto representatives told
farmers to illegally spray old dicamba. Monsanto concedes
that it would not need to depose Baldwin if Masters's
testimony were Baldwin's only basis for claiming that
Monsanto representatives told this to farmers. But Monsanto
claims that Baldwin is deposable-like any other fact
witness-if he acquired facts and information (from others in
the agricultural community) about what Monsanto
representatives allegedly told farmers before he was
retained as an expert.
Court has wide discretion in dealing with discovery matters.
Cook v. Kartridg Pak Co., 840 F.2d 602, 604 (8th
Cir. 1988). Discovery rules should be construed broadly and
liberally to serve the purpose of discovery-that is,
“to provide the parties with information essential to
the proper litigation of all relevant facts, to eliminate
surprise, and to promote settlement.” Centrix Fin.
Liquidating Tr. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, No. 4:12-MC-624-JAR, 2013 WL 3225802, at *2
(E.D. Mo. June 25, 2013) (quoting Gladfelter v. Wal-Mart
Stores, Inc., 162 F.R.D. 589, 590 (D. Neb. 1995)).
sought with a subpoena under Rule 45 of the Federal Rules of
Civil Procedure must fall within the scope of discovery
permissible under Rule 26. Id. “Under Rule 26,
parties are entitled to discovery of any information that
appears ‘reasonably calculated to lead to the discovery
of admissible evidence.'” Id.
(quoting Fed. R. Civ. P. 26(b)(1)). Rule 26(b)(4)
governs the scope and limits of expert discovery. But as the
Advisory Committee Notes to the 1970 Amendments explain, Rule
does not address itself to the expert whose information was
not acquired in preparation for trial but rather because he
was an actor or viewer with respect to transactions or
occurrences that are part of the subject matter of the
lawsuit. Such an expert should be treated as an ordinary
Fed. R. Civ. P. 26(b)(4) (Advisory Committee Notes to the
1970 Amendments); see also 8A Charles Alan Wright et
al., Federal Practice & Procedure § 2033
(3d ed. 2017) (noting that, despite the rewording of Rule 26
in 1993, the Advisory Committee gave no indication that its
1970 comment was no longer valid).
Rule 45 subpoena meets the Rule 26 requirements, the subpoena
may still be quashed or modified if it (1) “fails to
allow a reasonable time to comply, ” (2)
“requires a person to comply beyond the geographical
limits specified in Rule 45(c), ” (3) “requires
disclosure of privileged or other protected matter, if no
exception or waiver applies[, ] or” (4) “subjects
a person to undue burden.” Fed.R.Civ.P. 45(d)(3).
claims that it would be inappropriate to depose Baldwin
outside the expert discovery schedule-a Rule 26(b)(4)
violation. Yet on the merits, Bader frames its argument under