United States District Court, N.D. California
IN RE ROUNDUP PRODUCTS LIABILITY LITIGATION This document relates to: ALL ACTIONS No. 16-md-02741-VC
PRETRIAL ORDER NO. 15: THIRD-PARTY DISCOVERY AND
PENDING MOTIONS TO SEAL Re: Dkt. Nos. 102, 105, 106, 132,
140, 148, 150
CHHABRIA United States District Judge
ruling addresses several disputes regarding discovery and
several disputes regarding Monsanto's ability to keep
certain documents under seal.
this litigation the plaintiffs have trumpeted the conclusion
of the International Agency for Research on Cancer
("IARC") that glyphosate is a "probable
carcinogen." As a result, Monsanto is conducting
third-party discovery in the hope of finding fault with the
turn, Monsanto has trumpeted reports generated by the
Environmental Protection Agency ("EPA") concluding
that glyphosate is not hazardous. As a result, the plaintiffs
are conducting third-party discovery (and have made Freedom
of Information Act requests) in the hope of finding fault
with the EPA's reports.
raises a general question: whether the reports prepared by
agencies like the IARC and EPA are relevant to the first
phase of this multi-district litigation. In this phase, which
is limited to "general causation, " the Court will
decide only whether there is sufficient admissible evidence
that glyphosate and/or Roundup is capable of causing cancer
(specifically, Non- Hodgkin's Lymphoma) in humans.
Monsanto has taken inconsistent positions on this issue, at
the most recent hearing it conceded that the IARC and EPA
reports are relevant. Any expert testifying about general
causation will, for his opinion to be admissible, almost
certainly need to account for the conclusions reached by
does not mean, however, that the IARC and EPA reports are
central to the general causation question; it means only that
they are relevant. The IARC and EPA reports analyze studies
that were previously conducted on the carcinogenicity of
glyphosate. The experts in this case will need to do the same
thing - that is, they will need to analyze the studies
themselves and offer opinions about what they show. The
opinions of the IARC and EPA about what the studies show,
while important, are secondary. This means that although the
parties may conduct some third-party discovery relating to
the conclusions drawn by the IARC and the EPA, any such
discovery will be limited so that it does not take on an
outsized role relative to its importance. See Fed.
R. Civ. P. 26(b)(1) ("Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case . . . .").
Court will use this guidepost to consider the plaintiffs'
efforts to take Jess Rowland's deposition and to compel
production of documents relating to his work. Accordingly,
the Court is of the tentative view that the testimony and
documents the plaintiffs seek from Rowland would be
appropriate, but that further discovery from EPA officials
would not be. However, the Court will consider any further
arguments from the EPA in a motion to quash (to be filed no
later than March 28, 2017) before making a final decision. In
the event of a motion to quash, the Court will also consider
any arguments regarding the application or validity of the
EPA's Touhy regulation.
same guidepost applies to third-party discovery by Monsanto
relating to the IARC report. Accordingly, Texas A&M's
motion to quash the subpoena to Dr. Ivan Rusyn is granted.
See Dkt. No. 1, Hardeman v. Monsanto Co.,
16-mc-80232. Dr. Rusyn was but one of many participants in
the IARC's glyphosate review. Although the documents in
Rusyn's possession relating to the review may have some
relevance, they are not central enough to the litigation to
justify the burden such discovery would place on him and the
university. Moreover, the parties have informed the
Court that the chair of the IARC committee that studied
glyphosate has agreed to sit for deposition (as he ought to).
The ability of the parties to take discovery from the chair
of the committee makes discovery of Rusyn's materials
even less important. This terminates action 16-mc-80232.
request to seal the documents submitted in connection with
the motion to compel Rowland's deposition is denied, with
the exception of one document. As previously mentioned, the
EPA reports are important to this litigation. Therefore, to
support its sealing request, Monsanto must present compelling
reasons for concealing documents relating to the EPA reports
from the public. Ctr. for Auto Safety v. Chrysler Grp.,
LLC, 809 F.3d 1092, 1101-03 (9th Cir. 2016). Potential
embarrassment to Monsanto (or to Jess Rowland) is not enough.
And although the documents contain communications about
Monsanto's efforts to influence agencies, there is no
credible argument that they reveal some sort of "trade
secret" about how to do so. Therefore, except for the
single page of Exhibit E dealing with dicamba - an herbicide
unrelated to this litigation - the motion to seal brought in
connection with the motion to compel the Rowland deposition
is denied. See Dkt. No. 105-6 at 2; see
also Civil L.R. 79-5(f)(3). For the same reason,
Monsanto's requests to seal documents submitted in
connection with the briefing on EPA and IARC relevance are
denied, in their entirety. See Dkt. Nos. 132, 148.
also seeks to seal documents submitted in connection with the
plaintiffs' motion to compel further depositions and
document productions - an issue discussed at the telephonic
conference on February 24, 2017 and resolved in Pretrial
Order No. 14. See Dkt. No. 150. Monsanto's
request is denied except as to the following exhibits and
excerpts of exhibits:
- Exhibit 1, Dkt. No. 150-5: The first paragraph of page 1
and the final paragraph of page 13 will be redacted.
- Exhibit 5, Dkt. No. 150-9: Pages 39-61 will be redacted.
- Exhibit 6, Dkt. No. 150-10: The transcript will be refiled
with all unnecessary pages removed. See Buck Decl.
(Dkt. No. 166-1) at 5. The refiled transcript will ...