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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`
`
`In re Syngenta AG MIR162 Corn Litigation,
`(D. Kan. No. 2:14-md-02591-JWL-JPO);
`DeLong Co., Inc. v. Syngenta AG,
`(D. Kan. No. 2:17-cv-02614-JWL-JPO)
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`Randal Giroux,
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`Movant,
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`File No. 20-mc-064 (ECT/ECW)
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`OPINION AND ORDER
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`
`
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`v.
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`Syngenta AG; Syngenta Biotechnology, Inc.;
`Syngenta Corporation; Syngenta Crop
`Protection AG; Syngenta Crop Protection,
`LLC; Syngenta Seeds, LLC,
`
`
`Defendants.
`________________________________________________________________________
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`Kathryn N. Hibbard, Robert J. Gilbertson, and X. Kevin Zhao, Greene Espel PLLP,
`Minneapolis, MN, for Nonparty Movant Randal Giroux.
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`David I. Horowitz, Kirkland & Ellis LLP, Los Angeles, CA, Edwin U., Kirkland & Ellis
`LLP, Washington, D.C., Steven L. Schleicher and Erica Holzer, Maslon LLP, Minneapolis,
`MN, for Defendants.
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`
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`This subpoena-enforcement matter arises from a complex multidistrict litigation
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`(“MDL”) consolidated in the United States District Court for the District of Kansas.
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`Syngenta1—the defendant there—served a subpoena for deposition on nonparty Randal
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`Giroux after an MDL plaintiff designated him as a non-retained expert witness. The MDL
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`plaintiff, The DeLong Company, Inc., seeks to introduce Giroux’s earlier deposition
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`Defendants will be referred to collectively as “Syngenta.”
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`1
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`testimony to support its case. Giroux, a Minnesota resident, has filed a motion to quash
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`the subpoena. Syngenta opposes Giroux’s motion to quash and has moved to transfer this
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`dispute to the District of Kansas for a decision by one of the assigned MDL judges.
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`Because exceptional circumstances warrant transferring Giroux’s motion to quash to the
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`MDL Court, Syngenta’s transfer motion will be granted, and a decision on Giroux’s motion
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`to quash left for the MDL Court.
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`I
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`Giroux is the “Vice President – Global Regulatory Leader at Cargill, Incorporated,”
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`where he has worked for twenty years. Giroux Decl. ¶ 1 [ECF No. 4]. His connection to
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`Cargill explains his involvement in this matter. In 2014, Cargill sued Syngenta, alleging it
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`had harmed the American agricultural market by prematurely commercializing a type of
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`genetically modified corn seed before it was approved for import by China (a major export
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`market). See Cargill, Inc. v. Syngenta, AG, No. 67061 (Louisiana’s 40th Jud. Dist. Ct.,
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`Parish of St. John the Baptist); Hibbard Decl. ¶ 2 [ECF No. 5]. Thousands of similar
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`lawsuits were brought in federal and state courts throughout the country. The Judicial
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`Panel on Multidistrict Litigation ordered the transfer and consolidation of all related federal
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`cases in the District of Kansas, now pending before District Judge John W. Lungstrum and
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`Magistrate Judge James P. O’Hara. See In re: Syngenta AG MIR162 Corn Litig., MDL
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`No. 2591, 65 F. Supp. 3d 1401 (J.P.M.L. Dec. 11, 2014). The MDL now includes hundreds
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`of lawsuits filed against Syngenta by corn farmers and others in the American corn
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`industry. See In re: Syngenta AG MIR162 Corn Litig., No. 2:14-md-02591-JWL-JPO (D.
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`Kan.). Like Cargill, MDL plaintiffs typically “allege that genetically-modified corn was
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`2
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`commingled in the United States corn supply, that China rejected imports of all corn from
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`the United States because of the presence of the trait, and that such rejection caused corn
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`prices to drop in the United States.” Hibbard Decl. Ex. 9 (“DeLong Disc. Order”) at 1–2
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`[ECF No. 5-1 at 83–84].
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`Given the large number of similar state-court cases, the MDL Court issued an order
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`granting state courts the option to coordinate discovery with the MDL. See Horowitz Decl.
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`Ex. Q (“Coordination Order”) [ECF No. 15-1 at 162–81]. Among the state actions
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`adopting the Coordination Order was Cargill’s lawsuit in Louisiana state court. Hibbard
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`Decl. Ex. 1 [ECF No. 5-1 at 2]. Throughout discovery in Cargill’s lawsuit, the MDL, and
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`litigation in the other coordinated proceedings, Giroux has testified six times in various
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`capacities:
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`(1) May 2016: Giroux was deposed as Cargill’s corporate representative in a
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`deposition taken pursuant to Section B.4 of the Coordination Order in the
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`MDL and coordinated proceedings.
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`(2) June 2016: Giroux was deposed in his individual capacity as a fact witness
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`in a deposition taken pursuant to Section B.4 of the Coordination Order in
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`the MDL and coordinated proceedings in Minnesota state court.
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`(3) November 2016: Giroux was deposed as an expert for the bellwether
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`plaintiffs in the MDL and coordinated proceedings in Minnesota state court.
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`(4) June 2017: Giroux testified during an MDL bellwether trial.
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`(5) September 2017: Giroux testified during a coordinated class-action trial in
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`Minnesota state court.
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`3
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`(6) December 2017: Giroux was deposed about his opinions in his capacity as
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`an expert for Cargill in its pending lawsuit in Louisiana state court.
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`Giroux Decl. ¶ 2; Hibbard Decl. ¶ 5; Giroux Br. at 4 [ECF No. 3 at 9].
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`On July 17, 2020, MDL plaintiff DeLong served Syngenta with a Rule 26(a)(2)
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`disclosure. Hibbard Decl. Ex. 5 (“Expert Disclosure”) [ECF No. 5-1 at 41–46]; see also
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`DeLong Co., Inc. v. Syngenta AG, 2:17-cv-02614-JWL-JPO (D. Kan.). In the disclosure,
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`DeLong designated Giroux as an expert under Federal Rule of Evidence 702 and stated its
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`intention to offer at trial his “prior trial testimony in the Kansas farmer class trial, and
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`potentially his trial testimony in the coordinated action pending in the state district court
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`of Hennepin County, Minnesota.” Expert Disclosure at 2. Further, DeLong reserved the
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`right to “rely on all other reports” issued by Giroux in relation to the MDL and to “use at
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`trial [his] other deposition or trial testimony in the MDL, or in the referenced, coordinated
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`proceeding.” Id. at 3. In response, Syngenta emailed DeLong to arrange a deposition for
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`Giroux. Horowitz Decl. Ex. G [ECF No. 15-1 at 77]. But DeLong was not interested.
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`DeLong had neither retained nor specially employed Giroux to provide expert testimony
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`under Federal Rule of Civil Procedure 26(a)(2)(B); nor had Giroux otherwise consented or
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`agreed to provide new testimony. Giroux Decl. ¶¶ 3–5; Horowitz Decl. Ex. H [ECF No.
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`15-1 at 81]. And according to DeLong, a deposition was unnecessary anyway, because
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`Giroux had already been deposed and cross-examined on his opinions in the earlier
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`lawsuits. Horowitz Decl. Ex. G [ECF No. 15-1 at 73, 76]. Regardless, said DeLong,
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`because it had not retained Giroux as an expert, it did not have authority to procure his
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`4
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 5 of 17
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`attendance for a deposition. Hibbard Decl. Ex. 4 [ECF No. 5-1 at 38]. Syngenta took issue
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`with this. According to Syngenta, if Giroux’s years-old expert testimony from another case
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`was to be offered at trial, Syngenta should first have the opportunity to depose him about
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`the application of those opinions to the DeLong case. Horowitz Decl. Ex. G [ECF No.
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`15-1 at 75].
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`On August 8, 2020, Syngenta emailed Cargill’s counsel a subpoena for deposition
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`that it intended to serve on Giroux. Hubbard Decl. Ex. 4 [ECF. No. 5-1 at 39]. Upon
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`learning that Giroux would move to quash the subpoena, however, Syngenta elected to
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`withdraw it. Id. at 35–38. Syngenta then filed a motion with the MDL Court. The motion
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`requested an order either requiring DeLong to procure Giroux’s deposition or striking
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`Giroux’s testimony and precluding DeLong from relying on him as an expert at trial.
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`Horowitz Decl. Ex. J (“Mot. to Compel”) at 1–2 [ECF No. 15-1 at 97–98]. In its motion,
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`Syngenta stressed that the Coordination Order did not permit the use of deposition
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`testimony from other coordinated proceedings save for impeachment, id. at 6; that, as an
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`exporter of distiller’s dried grains with solubles, DeLong’s damages claims differed from
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`those of earlier plaintiffs and were not considered by Giroux’s risk analyses, id. at 7; and
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`that Syngenta should be permitted to test Giroux’s years-old opinions in light of intervening
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`world events, id.2 DeLong opposed the motion.
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`Syngenta cited a “stunning revision” of China’s corn production, China’s failure to
`2
`approve a single new biotech event between July 2017 and January 2019, and the U.S.-
`China trade war. Id.
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`5
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 6 of 17
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`Magistrate Judge O’Hara denied Syngenta’s motion. DeLong Disc. Order at 7.
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`While observing “there is no doubt Syngenta may depose [Giroux]” under Rule 26, the
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`Court was “not persuaded that DeLong, as the designating party, ha[d] an obligation to
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`produce Mr. Giroux for a deposition.” Id. at 4. Afterall, Giroux is neither a party nor under
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`any party’s control in that litigation. Id. Thus, Magistrate Judge O’Hara reasoned, if
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`Giroux was unwilling to sit for a deposition, Syngenta was required to issue a subpoena in
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`accordance with Federal Rule of Civil Procedure 45, which provides a nonparty the
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`opportunity to be heard, including by filing a motion to quash or modify the subpoena. Id.
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`at 4–5. Magistrate Judge O’Hara extended the discovery deadline so that Syngenta could
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`serve Giroux with a subpoena under Rule 45. If Syngenta elected to do so, it was instructed
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`to “immediately inform the assigned Minnesota judge that [Magistrate Judge O’Hara was]
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`amenable to accepting transfer of the motion under Rule 45(f).”3 Id. at 6. Enter the present
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`dispute.
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`On September 4, 2020, Syngenta served a new subpoena on Giroux, again seeking
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`to depose him via live video feed in Minneapolis. Horowitz Decl. Ex. L [ECF No. 15-1 at
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`134–37]. Giroux then filed the present motion to quash the subpoena. ECF No. 1. Giroux
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`argues that Syngenta’s subpoena aims to impermissibly “force him to provide unwilling
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`expert testimony,” and that the subpoena imposes an undue burden under Federal Rule of
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`Civil Procedure 45(d)(3)(A)(iv). Giroux Br. at 7–22 [ECF No. 3 at 12–27]. Syngenta filed
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`Magistrate Judge O’Hara also denied the motion as premature to the extent it sought
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`to exclude Giroux’s testimony at trial. Id. at 6.
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`6
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 7 of 17
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`a brief in opposition, ECF No. 14, and moved to transfer Giroux’s motion to quash
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`subpoena to the MDL court in the District of Kansas, ECF No. 13.
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`II
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`Third-party subpoenas and disputes related to those subpoenas are governed by
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`Federal Rule of Civil Procedure 45. Initially, “[a] subpoena must issue from the court
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`where the action is pending.” Fed. R. Civ. P. 45(a)(2). If the compliance court did not
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`issue the subpoena, “it may transfer a motion under [Rule 45] to the issuing court if the
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`person subject to the subpoena consents or if the court finds exceptional circumstances.”
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`Fed. R. Civ. P. 45(f). Absent consent, the transfer proponent bears the burden of
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`demonstrating that exceptional circumstances are present. Fed. R. Civ. P. 45 advisory
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`committee’s note to 2013 amendment. Giroux does not consent. He staunchly opposes
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`transfer of his motion to the District of Kansas. Giroux Reply Br. at 1–3 [ECF No. 27 at
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`3–5]. Syngenta therefore must demonstrate that exceptional circumstances warrant
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`transfer.
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`Rule 45 does not define exceptional circumstances, and instructive Eighth Circuit
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`authority has not been cited or found. The Advisory Committee’s note to the 2013
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`amendment provides helpful guidance. It states in relevant part:
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`The prime concern should be avoiding burdens on local
`nonparties subject to subpoenas, and it should not be assumed
`that the issuing court is in a superior position to resolve
`subpoena-related motions. In some circumstances, however,
`transfer may be warranted in order to avoid disrupting the
`issuing court’s management of the underlying litigation, as
`when that court has already ruled on issues presented by the
`motion or the same issues are likely to arise in discovery in
`many districts. Transfer is appropriate only if such interests
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`7
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 8 of 17
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`outweigh the interests of the nonparty served with the
`subpoena in obtaining local resolution of the motion. Judges
`in compliance districts may find it helpful to consult with the
`judge in the issuing court presiding over the underlying case
`while addressing subpoena-related motions.
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`Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment. To evaluate whether
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`exceptional circumstances are present in any given case, one court has aptly identified three
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`“overarching questions” to guide the inquiry:
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`(1) whether the underlying litigation will be disrupted if the subpoena dispute
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`is not transferred;
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`(2) whether the nonparty subpoena recipient will suffer undue burden or cost
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`if the subpoena dispute is transferred; and
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`(3) whether, based on various considerations, the issuing court is in the best
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`position to rule on the motion to compel.
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`In re Disposable Contact Lens Antitrust Litig., 306 F. Supp. 3d 372, 376 (D.D.C. 2017).
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`These three considerations will be applied here.
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`A
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`The first question is whether resolution of the subpoena dispute by this court risks
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`disrupting the underlying MDL litigation in the District of Kansas (and, for that matter,
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`that Court’s management of discovery proceedings for coordinated state-court actions
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`across the country). This dispute does not arise from a run-of-the-mill lawsuit, but an
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`exceptional one. The DeLong case is part of a complex, years-long MDL action comprised
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`of hundreds of federal lawsuits. The assigned MDL judges are tasked with globally
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`8
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 9 of 17
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`managing discovery for thousands of related state court actions. It seems implausible that
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`this court could identify and give proper weight to the implications Giroux’s motion may
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`have on the MDL Court’s management of its cases. This fact alone arguably is enough to
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`justify transfer. In re Disposable Contact Lens Antitrust Litig., 306 F. Supp. 3d at 378
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`(“[T]he MDL status of the underlying litigation is surely an ‘exceptional circumstance’ that
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`weighs strongly in favor of transfer to the Issuing Court under Rule 45(f), because the same
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`concerns about orderliness and disruption that led to the consolidation of actions as an
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`MDL in the first place arise with respect to pretrial disputes regarding subpoenas issued in
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`the context of that complex litigation.”). Transfer to the MDL Court “may be warranted to
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`avoid piecemeal rulings by different judges, reaching different conclusions, in resolving
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`identical disputes.” In re Niaspan Antitrust Litig., Civ. No. JKB-15-1208, 2015 WL
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`3407543, at *1 (D. Md. May 26, 2015); see Visionworks of Am., Inc. v. Johnson & Johnson
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`Vision Care, Inc., 1:17–MC–0055–LY–AWA, 2017 WL 1611915, at *2 (W.D. Tex. Apr.
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`27, 2017) (observing that “[u]niformity of discovery rulings” in complex multidistrict
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`litigation is “critical to achieving fairness to the parties and non-parties”).
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`If that weren’t enough, there are potential issues this court can identify. One
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`example of disruption contemplated by the Advisory Committee is where an issuing court
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`“has already ruled on issues presented by the motion[.]” Fed. R. Civ. P. 45 advisory
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`committee’s note to 2013 amendment. On this point, Syngenta cites the MDL Court’s past
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`rulings on motions involving Giroux. Syngenta Br. at 21–22 [ECF No. 14 at 25–26].
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`Indeed, in 2016, Syngenta and a group of MDL plaintiffs were embroiled in a similar
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`discovery dispute. Magistrate Judge O’Hara was asked “to decide whether Randall Giroux
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`9
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 10 of 17
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`. . . should sit for a third deposition now that plaintiffs have designated him a non-retained
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`expert under Fed. R. Civ. P. 26(a)(2)(C).” Horowitz Decl. Ex. R at 1 [ECF No. 15-1 at
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`183]. There, as Giroux argues here, plaintiffs asserted that Giroux’s deposition would be
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`unreasonably cumulative, that the subject matter of the proffered testimony had already
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`been covered in earlier depositions, and that Syngenta had therefore had “ample
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`opportunity” to question Giroux about these topics. Compare id. at 2–3, with Giroux Br.
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`at 1–2, 11, 14, 16–19, and Giroux Reply Br. at 11, 14–15. The MDL Court granted
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`Syngenta leave to take Giroux’s deposition. Horowitz Decl. Ex. R. at 3 [ECF No. 15-1 at
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`185]. Thus, the MDL court has ruled on at least some issues presented by Giroux’s motion
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`to quash.
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`Further, disruption may also occur where “the same issues are likely to arise in
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`discovery in many districts.” Fed. R. Civ. P. 45 advisory committee’s note to 2013
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`amendment. Here, ruling on Giroux’s motion may require the court to interpret the
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`Coordination Order—implemented to ensure uniformity and efficiency of discovery for
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`thousands of related cases. Giroux, for instance, maintains that, under the Coordination
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`Order, any deposition ordered in DeLong’s case may not be used other than for
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`impeachment purposes in Cargill’s Louisiana case. And he asks this court to enter a
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`protective order prohibiting its use for any purpose if the motion to quash is denied. Giroux
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`Br. at 21–22; Giroux Reply Br. at 15–16; see Coordination Order at 9–10. Syngenta lodged
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`a related argument regarding the use of Giroux’s prior deposition testimony in the DeLong
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`action in its earlier motion before the MDL Court—an argument that was rejected as
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`premature. DeLong Disc. Order at 6. It is possible that Syngenta will renew its motion to
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`10
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 11 of 17
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`exclude Giroux’s expert testimony, in which case it will likely renew this very argument.
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`Other parties, in other related cases, could also be impacted by this court’s ruling. Thus,
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`resolving Giroux’s motion to quash poses a substantial risk of disrupting the issuing
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`Court’s management of the MDL and coordinated proceedings.
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`Further, a ruling on Giroux’s motion could disrupt the MDL Court’s management
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`of the DeLong case itself, where discovery has all but concluded and trial is approaching.
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`See DeLong Disc. Order at 6; see Fed. Home Loan Mortg. Corp. v. Deloitte & Touche LLP,
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`309 F.R.D. 41, 43–44 (D.D.C. 2015) (finding exceptional circumstances due to “short
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`discovery window and complexity of the issues raised”); XY, LLC v. Trans Ova Genetics,
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`L.C., 307 F.R.D. 10, 11–13 (D.D.C. 2014) (finding exceptional circumstances where
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`issuing court had “already supervised substantial discovery and begun preparations for
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`trial”). Fact discovery has closed, and the deadline for all dispositive motions and motions
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`to exclude expert testimony has been set for October 23, 2020. DeLong Co., Inc. v.
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`Syngenta AG, 2:17-cv-02614-JWL-JPO (D. Kan.), ECF No. 73. Were this court to decide
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`the motion to quash, the MDL Court’s options may be narrowed in certain respects. Take
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`the admissibility of Giroux’s prior testimony. Perhaps the MDL Court will prefer to admit
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`Giroux’s deposition testimony, and to deny any motion by Syngenta to exclude it. If this
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`court grants Giroux’s motion to quash, Syngenta will not have had the opportunity to cross-
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`examine Giroux on his opinions in relation to DeLong. Perhaps, then, the MDL Court
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`would be inclined to exclude Giroux’s testimony. See Fed. R. Civ. P. 26(b)(4)(A) (“A
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`party may depose any person who has been identified as an expert whose opinions may be
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`presented at trial.”). Or, as Giroux and DeLong have argued, maybe the MDL Court would
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`11
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 12 of 17
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`find that Syngenta’s past opportunities to depose Giroux were sufficient nonetheless. The
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`bottom line is that the decision on Giroux’s motion to quash is bound up with decisions
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`better left for the MDL Court—particularly given the late stage of those proceedings.
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`B
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`Second, the court should also ask whether the MDL Court is in a better position to
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`rule on Giroux’s motion. As a starting point, we “should not . . . assume[]” that it is. Fed.
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`R. Civ. P. 45 advisory committee’s note to 2013 amendment. But the duration and
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`complexity of the underlying MDL are factors that may place the issuing court in a superior
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`position. Bell v. ATH Holding Co., Misc. Action No. 18-148, 2018 WL 3429710, at *7
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`(E.D. Pa. July 16, 2018); In re UBS Fin. Servs., Inc. of Puerto Rico Sec. Litig., 113 F. Supp.
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`3d 286, 288 (D.D.C. 2015); Wultz v. Bank of China, Ltd., 304 F.R.D. 38, 46 (D.D.C. 2014).
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`Here, the underlying MDL is complex. For nearly six years the District of Kansas
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`has overseen hundreds of consolidated federal actions, as well as discovery for thousands
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`of coordinated state actions, in which different types of plaintiffs have sued various related
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`Syngenta entities. See, e.g., In re Syngenta AG MIR 162 Corn Litig., 131 F. Supp. 3d 1177
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`(D. Kan. 2015). The issues involved are complex and too numerous to recite here. See id.
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`In his papers, even Giroux recognizes Magistrate Judge O’Hara’s deep familiarity with
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`these issues. Giroux Br. at 28 n.16; Giroux Reply Br. at 8 n.3. That familiarity would
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`benefit the parties in resolving this dispute. For instance, the parties contest the propriety
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`of Syngenta’s subpoena. Giroux contends a deposition is needlessly cumulative; Syngenta
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`maintains that it is necessary to assess how Giroux’s years-old opinions fit DeLong’s case
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`and how his opinions have aged in light of intervening world events. See Giroux. Br. at
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`12
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 13 of 17
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`19–20; Giroux Reply Br. at 14–15; Syngenta Br. at 9, 11–15. The parties thus invite this
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`court to wade into an extensive MDL litigation history to assess the relevance and
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`cumulativeness of additional testimony. To be sure, these are factors properly considered
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`in determining substantial need and undue hardship under Rule 45(d)(3)(C)(i). But the
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`MDL Court is better suited to balance relevance and necessity of discovery against the
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`need to protect Giroux, while at the same time giving due consideration to the years of
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`discovery it has overseen under the Coordination Order. See In re Braden, 344 F. Supp.
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`3d 82, 93, 96 (D.D.C. 2018) (transferring motion to compel where resolution required court
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`to evaluate relevance of documents sought); Mueting, Raasch, & Gebhardt, P.A. v. PPG
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`Indus., Inc., 18-mc-62 (JNE/TNL), 2018 WL 3971945, at *2 (D. Minn. Aug. 20, 2018)
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`(recipients' arguments that discovery sought was “irrelevant, cumulative, and burdensome”
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`weighed in favor of transfer because issuing court was better positioned to assess discovery
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`needs); Rushing v. Williams-Sonoma, Inc., Nos. 5:18-cv-411-KKC, 5:18-cv-420-KKC,
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`2018 WL 3435354, at *2 (E.D. Ky. July 17, 2018); In re Disposable Contact Lens Antitrust
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`Litig., 306 F. Supp. 3d at 381–82 (finding that presiding judges were better positioned to
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`evaluate the relevance of discovery related to complex claims in MDL); Flynn v. FCA US
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`LLC, 216 F. Supp. 3d 44, 47–48 (D.D.C. 2016) (finding that the issuing court, already
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`immersed in discovery, could better scrutinize argument that discovery was irrelevant and
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`duplicative); Judicial Watch, Inc. v. Valle Del Sol, Inc., 307 F.R.D. 30, 35 (D.D.C. 2014)
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`(explaining that issuing court had presided for four years and was better positioned to judge
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`relevance and necessity of discovery sought). And on cumulativeness, the MDL Court has
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`already established its own standards for resolving allegations of duplicative discovery:
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 14 of 17
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`For any discovery that is claimed already to have been obtained
`in another proceeding, giving rise to a discovery dispute, the
`parties in a Coordinated Action may only take such discovery
`upon leave of either the MDL Court or the Court in which the
`Coordinated Action is pending. Such leave shall be obtained
`on noticed motion for good cause shown, including why the
`discovery already obtained in the MDL Proceeding is not
`duplicative.
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`Coordination Order at 7. The MDL court is best positioned to construe and enforce its
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`global discovery order.
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`Finally, Giroux also claims that Syngenta intends to use Giroux’s deposition for an
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`improper purpose, or that its subpoena is part of a pattern of abusive discovery. Giroux Br.
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`at 17–20. Even these issues are better left for the Court that has overseen the litigation and
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`supervised the parties’ conduct. Lipman v. Antoon, 284 F. Supp. 3d 8, 14 (D.D.C. 2018);
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`Elliot v. Mission Tr. Servs., LLC, No. A-14-CV-972-LY, 2014 WL 7157156, at *3 (W.D.
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`Tex. Dec. 12, 2014) (party alleging that subpoena was part of pattern of abusive discovery
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`weighed in favor of transfer, as trial judge would be better positioned to assess such a
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`claim).
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`C
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`There is one remaining factor: the burden that transfer would place on Giroux, the
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`local nonparty. This is the “prime concern” under Rule 45(f). Fed. R. Civ. P. 45 advisory
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`committee’s note to 2013 amendment. Giroux discusses at length why enforcing the
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`subpoena would impose an undue burden on him. See Giroux Br. at 13–22; Giroux Reply
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`Br. at 10–15. But he does not attempt to explain why transfer of the subpoena dispute
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`would be burdensome.
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 15 of 17
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`There are certain burdens and costs that will almost certainly result from transfer.
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`One is the inevitable time and cost of additional litigation. Giroux will leave this District
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`having not received closure on the subpoena dispute, and he will be forced to raise the same
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`arguments in the District of Kansas. But that the issues will remain identical also lessons
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`the burden of litigating them elsewhere. After all, “these motions are already fully briefed,
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`making the burden light.” In re Nonparty Subpoenas Duces Tecum, 327 F.R.D. 23, 26
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`(D.D.C. 2018); see also In re Braden, 344 F. Supp. 3d at 92–93. It is true that Giroux and
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`his counsel are here in Minnesota. But Judge Lungstrum and Magistrate Judge O’Hara
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`have routinely held hearings in the MDL telephonically or by live video feed—no doubt
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`with greater frequency during the COVID-19 pandemic—and it seems unreasonable to
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`doubt their willingness to do so in this instance. See, e.g., DeLong Co., Inc. v. Syngenta
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`AG, 2:17-cv-02614-JWL-JPO (D. Kan.), ECF Nos. 70, 71; In Re: Syngenta AG MIR 162
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`Corn Litig., 2:14-md-02591-JWL-JPO (D. Kan.), ECF Nos. 4338, 4404, 4415, 4418; see
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`also Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment (“If the motion is
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`transferred, judges are encouraged to permit telecommunications methods to minimalize
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`the burden a transfer imposes on nonparties[.]”). Thus, it is doubtful that transfer will
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`necessitate additional travel for Giroux or his counsel, significantly diminishing any
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`resulting burden. See Bell, 2018 WL 3429710, at *5; N. Atl. Operating Co., Inc. v.
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`Dunhuang Grp., No. 18-mc-154-LPS, 2018 WL 3381300, at *2 (D. Del. July 11, 2018);
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`In re Subpoena of Autoliv ASP, Inc., Misc. Case No. 16-51669, 2016 WL 8201043, at *4
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`(E.D. Mich. Dec. 22, 2016). To summarize, Giroux’s interest in local resolution of the
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 16 of 17
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`motion to quash is not substantial and does not override other considerations warranting
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`transfer.4
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`*
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`Rule 45 limits transfer to cases posing exceptional circumstances, and this is a
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`textbook case. A decision here would very likely disrupt the assigned judges’ management
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`of the complex MDL underlying this dispute, and the burden Giroux will face litigating his
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`motion to quash in the District of Kansas is insubstantial, whether viewed alone or in
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`comparison to the risk of disruption.5
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`It’s worth mentioning that Cargill has devoted significant resources to, and has an
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`interest in, its Louisiana case and the MDL and related litigation. Thus, while Cargill is
`not a party here or in DeLong, there is no doubt it is an interested party for purposes of this
`dispute. Giroux acknowledges as much when he requests a protective order preventing his
`deposition testimony, if allowed, from being used in Cargill’s Louisiana case. Giroux Br.
`at 21–22; Giroux Reply Br. at 15–16.
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`Syngenta argues that 28 U.S.C. § 1407 permits an MDL court to hear a subpoena
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`dispute notwithstanding the procedural limitations of Rule 45. See In re EpiPen
`(Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-md-2785-
`DDC-TJJ, 2018 WL 2926581, at *3 (D. Kan. June 11, 2018). Section 1407(b) provides
`that “coordinated or consolidated pretrial proceedings shall be conducted by a judge or
`judges to whom [an MDL is] assigned” and permits “[t]he judge or judges to . . . exercise
`the powers of a district judge in any district for the purpose of conducting pretrial
`depositions in such coordinated or consolidated pretrial proceedings.” (Emphasis added).
`In view of the disposition of the transfer motion under Rule 45(f), this argument need not
`be addressed.
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`CASE 0:20-mc-00064-ECT-ECW Doc. 33 Filed 10/09/20 Page 17 of 17
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`ORDER
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`Therefore, based on the foregoing, and all the files, records, and proceedings herein,
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`IT IS ORDERED THAT:
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`1.
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`Syngenta’s Motion to Transfer [ECF No. 13] the motion to quash subpoena
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`is GRANTED.
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`2.
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`Randal Giroux’s Motion to Quash Subpoena [ECF No. 1] will be
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`TRANSFERRED to the United States District Court for the District of
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`Kansas. The Clerk of Court is directed to transfer this case forthwith.
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`s/ Eric C. Tostrud
`Eric C. Tostrud
`United States District Court
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`Dated: October 9, 2020
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`17
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