UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 31, 2010
GOLDEN WOLF PARTNERS, SUN WOLF PARTNERS, AND GREY WOLF PARTNERS, PLAINTIFFS,
BASF CORPORATION, AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Hon. Lawrence J. O'Neill
STIPULATION RE DISCOVERY DISPUTE AND ORDER
Plaintiffs Golden Wolf Partnership, Sun Wolf Partnership, and Grey Wolf Partnership and Defendant BASF Corporation dispute a number of issues regarding the noticing and taking of the depositions of Martin Dust of BASF SE and Kurt Bock, Chief Executive Officer of Defendant BASF Corporation and Member of the Broad of Directors of BASF SE and Chief Financial Officer of BASF SE. In order to resolve those disputes, the parties agree as a compromise to the following:
1. Defendant BASF Corporation agrees to produce to the Plaintiffs by September 26, 2010, a copy of the documents consisting of the application and any supporting information and data submitted to the Commission of the European Communities by BASF SE for an extension of the uses of pyraclostrobin in order to allow pyraclostrobin to be used as a "plant growth regulator" as set out in the document attached as Exhibit 1 (hereinafter the "EU Submission Material").
2. Defendant BASF Corporation will provide a complete response to the following Interrogatory: Why did BASF Corporation not place a warning on the labels of Pristine and Cabrio that Pyraclostrobin has plant growth regulator effects?
3. Defendant BASF Corporation will stipulate to the following as facts, for purposes of this action only:
a) That Defendant BASF Corporation packages and markets Pristine® and Cabrio EGTM fungicides, and that pyraclostrobin is an active ingredient in both Pristine® and Cabrio EGTM.
b) That pyraclostrobin is manufactured by BASF SE and provided to Defendant BASF Corporation for use in products it distributes in the United States.
c) That pyraclostrobin meets the definition of a "plant regulator" in the Federal Insecticide Fungicide and Rodenticide Act (commonly referred to as FIFRA), USC Title 7, Chapter 6 Sub-chapter II section 136 (v), which provides that:
"The term "plant regulator" means any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of plants or the product thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments. Also, the term "plant regulator" shall not be required to include any of such of those nutrient mixtures or soil amendments as are commonly known as vitamin, hormone horticultural products, intended for improvement, maintenance survival, health, and propagation of plants, and are not for pest destruction and are nontoxic, nonpoisonous in the undiluted package concentration."
d) That Defendant BASF Corporation has been aware that pyraclostrobin can have plant regulator effects in certain circumstances since at least January 1, 2005.
e) That Defendant BASF Corporation is an indirect but wholly owned subsidiary of BASF SE.
f) That BASF SE applied to the Commission of the European Communities for an extension of the uses of pyraclostrobin in order to allow pyraclostrobin to be used as a "plant growth regulator" as set out in the document attached as Exhibit 1. Defendant BASF Corporation further stipulates that the document attached as Exhibit 1 meets the requirements for authentication under Federal Rule of Evidence 901 and Defendant BASF Corporation will raise no hearsay objections to the introduction into evidence of this document into evidence. All other potential objections to the introduction into evidence of this document are preserved.
g) That the EU Submission Material provided pursuant to this stipulation meets the requirements for authentication under Federal Rule of Evidence 901 and Defendant BASF Corporation will raise no hearsay objections to the introduction into evidence of these documents into evidence. All other potential objections to the introduction into evidence of these documents are preserved. Defendant BASF Corporation also stipulates that it will be deemed for the purpose of this action only that Defendant BASF Corporation had knowledge of the information contained in the EU Submission Material on at least the date the information was submitted to the Commission of the European Communities.
h) That the sales of BASF SE and its subsidiaries located in North America in 2009 were approximately $11.8 billion. 4. In return for the above, Plaintiffs agree that they will withdraw the notices of depositions of Kurt Bock and Martin Dust served in this action and agree that they will not depose, subpoena, or otherwise attempt to obtain any testimony or documents from either Mr. Bock or Mr. Dust. As to the deposition of Mr. Dust only, if Defendant BASF materially breaches this agreement and stipulation, Plaintiffs may move the Court for an order to take the depositions of Mr. Dust, even if discovery is closed.
5. The attorneys signing below represent that they have the authority to obligate and bind the party or parties for which they sign.
IT IS SO STIPULATED.
Dated August 26, 2010
GOOD CAUSE APPEARING IT IS SO OR DERED
Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE
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