EXHIBIT F
Case 1:04-cv-01551-JJF Document 232-7 Filed 05/11/2007 Page 2 of 4
Not Reported in F.Supp.2d Page I
Not Reported in F.Supp.2d, 2004 WL 2223252 (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
H ex. A) In this letter Mr. Brenza stated, "lf the
Syngenta Sooos’ Inc_ v_ Monsanto (go_ foregoing accurately sets forth the terms of yotu
D_Do;__2004_ engagement, please eonf`n·m your agreement by
Only the Westlaw citation is currently Minnie. signing and returning ¤ <=¤py ¤f this 1¤r¢er." (111.250.
United States Djsnqot (;onnnD_ Dolnwnnn ex. A-l) Dr. Lee never signed or returned this letter,
SYNGENTA SEEDS, INC_, pknnnfn and likewise ignored follow-up phone calls from Mr.
v_ Brenza. (D.I. 257 at 2)
MONSANTO COMPANY, Dekalb Genetics Corp., _ _ _
Pioneer Hi-Bred International, Inc., Dow 5- OH Ma)/_ 19th. 2004 Pt§i1tlttt°t` retained DF- LW @5 6
Agrosciences, LLC, and Mycogen Plant Science, Inc. °0¤$tttt¤¤t Ul thc PT°S°¤t litigation- (DJ-250, Wy B) In
and AgngeDenDs, me., collectively ¤1.bD.MyeogeD r<·=Sr¤¤¤<~> d¤f·=¤d¤¤¢ filed the present m¤¤¤¤ tv
Seeds, Don-,nonnts_ disqualify Dr. Lee as an expert witness adverse to
No_02_]g,3l_SLR_ defendant. (D.l.249) Defendant claims Dr. Lee's
work for plaintiff creates a conflict of interest
S€pt_ 2·;_ 2004_ because of: (I) Dr. Lee's previous involvement, on
behalf of defendant, in the Iowa Litigation; (2) Dr.
Lee's previous involvement in other litigations
nan] M Lukonf Prickeu Jones & Enion involving the defendant; m (3) Dr. Lee's extensive
Plaintiff ’ ’ dealings with defendant as a research collaborator;
Richard L ’H0r;nnz P0mr`Andc1,S0n & Cmmon and (4) confidential information Dr. Lee received
sm Defendants ’ iiom all of his interactions with defendant. (D.I. 250
’ ’ ’ ` at I) Defendant argues that Dr. Lee should be
MEMORANDUM ORDER disqualified because defendant had an objectively
ROBINSON J reasonable expectation of confidentiality and because
_[I At Wnmnlnmn this 2.nh day Of September 2004 Dr. Lee received privileged and confidential
having reviewed defendant Pioneer Hi-Bred mf°mm]°n from dcfcndam (M et 6)
International, Inc.’s ("defendant's") motion to
disqualify Dr Michael ee as an expert witness FNL Dr. LEE Served as a consultant for
it is ORDERED that defendant's motion (D.I.249) is gjgigjnnigr€i;~y;j;g;aI:;j{;?*=j¤SAxg}
` f` th th f ll : ` ‘
demed Or ercasons at 0 Ow Seed C0. and Pioneer Hi-Bredlnternationol
t. On July 25, 2002, plaintiff Syngenta Sass, Inc., r DeKalb Gems Cen--
MTS zaiggllg Ei`) egmg c cn am m mged thru 6. Plaintif`f contends, however, that defendant does
` ` ` not have an on-going confidential relationship with
2. In easter mm, defendant brought suit against gt- tier nd that <*¢f=¤<)==·¤t ‘i“"*°;d°m°“Sâ€Â§Â§Â° tr);
plaintiff, alleging misappropriation of defendant's _r‘ °°_WaS ever in pcssessmn O ant/_c°n mma
com gcmplasm (DJ.257) This Sun, nned Pioneer infomation belonging to defendant that is relevant to
Hi-Bred rmsrnamt, ra. V. Regents Sega, nc., **]=_¤tg,¤¤* vteceeinnes- 1gD-I-553 ehe) QS ¤ ¤"=S¤;t»
was brought in the Southern District of Iowa (the [tamu. argues _ Ft r' Fc _S °u mt B
nnlwa Litigation,.) (D I 253) disqualified as plamtiffs expert in this case.
3. Shortly after defendant initiated the Iowa 71 Fcctcml coms have the inherent p°`{"°r to
Litigation, Lindley Brenza, counsel for defendant, gtsqgahfy i;F;rtS$ Ref EQ v‘ t‘£€"’?tf‘ir L'
contacted Dr. Michael Lee to discuss the prospect of COM rgawc ’ 8L_ ‘ 1171* 3 81 (5 Cm 996)
Dr. Lee sewing as an expert for defendant in the
Iowa Litigation. (DIL 257 at 2) 1026 §S.D.Cal.2004t; Grant Thornton, LLP v.
F.D.1.C., 297 l*`.Supp.2d 880, 881-82
4. On February 4, 2003 Brenza sent Dr. Lee a letter
purpmnng to be a consultation agreement. (D_I_25n’ F.Sunp.2d 1080, 1083 (C.D.Cai.200l], United States
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Case 1:04-cv-01551-JJF Document 232-7 Filed 05/11/2007 Page 3 of 4
Not Reported in F.Supp.2d Page 2
Not Reported in F.Supp.2d, 2004 WL 2223252 (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
ex rel., Chergg Hill Convalesoent Ctr., Inc. v. 10. In determining the reasonableness of a party's
Healthcare Rehab Sys., Inc., 994 F.Supp. 244, 248 conclusion that a fiduciary relationship existed,
(D.N.J.1997); Hansen v. Umtech Industrieserviee courts consider several factors, including: (1) the
Und Spedition, Gmbh, Civ. No. 95-516, slip op. at 3 length of the relationship and the frequency of
(D.De1. July 3, 1996). However, disqualification is “a contact; (2) whether the moving patty funded or
drastic measure which courts should hesitate to directed the formation ofthe opinion to be offered at
impose except when absolutely necessary? Owen v. trial; (3) whether the parties entered into a formal
Wangerin, 985 F.2d 312, 317 (7th Cir.1993); confidentiality agreement; (4) whether the expert was
Thornton, 297 F.Supp.2d at 882; United States v. retained to assist in the litigation; (5) whether the
Salamanca, 244 F.Supp.2d 1023, 1025 (D.S.D.2003 ); expert was paid a fee; and (6) whether the expert was
see also Palmer v. Ozbely, 144 F.R.D. 66, 67 asked to agree not to discuss the case with opposing
(D.Md.1992) ("Courts are generally reluctant to parties or counsel. Stencel, 174 F.Supp.2d at 1083
disqualify expert witnesses?). gC.D.Cal.2001); Mger v. Dell, 139 F.R.D. 1, 3
jD.D.C.l99l ); Paul v. Rawlings Sgorting Goods Co.,
*2 8. Courts have adopted a two-part inquiry to 123 F.R.D.271,280{S.D.Ohio 1988).
determine whether disqualification of an expert is
necessary: (1) was it objectively reasonable for the 11. With respect to the present litigation, the length
party seeking disqualification to have concluded that of the relationship and the amount of contact between
a confidential relationship existed with the expert; Dr. Lee and defendant was limited. According to Dr,
and (2) was confidential or privileged information Lee, "Prior to being retained by [plaintiff], I was not
actually disclosed to the expert. Crenshaw, 318 retained or contacted by [defendant] to act as an
F.Supp.2d at 1026; Mays v. Reassure Am. Life Ins. expert in connection with the present litigation." (D.I.
Co., 293 F.Supp.2d 954, 957 (E.D.Ark.2003); 254 at B0O2) Some courts have found an implied
Hansen v. Urntech Industrieservice Und Spedition, confidential relationship based on a “long·standing
Ginbh, Civ. No. 95-516, slip op. at 4 (D.De1. July 3, series of interactions, which have more likely than
1996). If only one of these two factors is present, not coalesced to create a basic tmderstanding of the
disqualification likely is inappropriate. Greene, retaining party's modus operandi, pattems of
Tweed of Delaware, Inc. v. DuPont Dow Elastorners, operations, decision making-process, and the like."
L.L. C., 202 F.R.D. 426, 428 gE.D.Pa.2001); Egg Koch, 85 F.3d at 1182. Defendant claims that in the
Labs., inc. v. Toshiba Caro., 762 F.Supp. 1246, 1248 past, Dr. Lee collaborated with defendant on
gE.D.Va.l991) ("But disqualification is likely numerous research projects over many years; that Dr.
inappropriate if either inquiry yields a negative Lee consulted with defendant on two separate
result"); Hansen v. Urntech Industrieservice Und litigations; and that Dr. Lee was retained by
Spedition, Gnrbh, Civ. No. 95-516, slip op. at 4 defendantinthe Iowa Litigation. (D.l. 250 at 2-3) Dr.
(D.De1. July 3, 1996). The party moving for Lee, however, describes his research with defendant
disqualification bears the burden of proof with as "several minor research projects" over the last
respect each of these factors. Koch Ref Co. v. several years. (D.I. 254 at B003) Furthermore, Dr.
Jennrfrkr L. Boudreaux M/IC 85 F.3d 1171, 1181 (5th Lee described his consulting with defendant in the
Cir.1996); Rodriggez v. Pataki, 293 F.Supp.2d 305, previous two litigations as consisting of reviewing
32 §S.D.N.Y.2003) (requiring the moving party to documents and spending a few days preparing for his
proffer evidence and stating that a conclusory deposition. (D.l. 254 at B003) Finally, Dr. Lee claims
assertion is insufficient); Larson v. Rouriclr, 284 that he never accepted defendant's offer to serve as an
F.Supp.2d 1155, 1156 gN.I).1owa 2003). In analyzing expert in the Iowa Litigation. Based on these
the disqualification issue, courts also balance conflicting representations, defendant has not shown
competing policy objectives and concerns for that it is more likely than not that Dr. Lee developed
fundamental fairness. Koch, 85 F.3d at 1182; Corgj; a basic understanding of defendants modus operandi,
v. Shervvin-Williams Co., 156 F.R.D. 575, 580 pattems of operations, and decision making-process.
gD.N.J.I994). Consequently, the court concludes that the duration
of the relationship and tl1e frequency of contacts does
9, Although several opinions have analyzed the issue not establish that defendant had an objectively
of expert disqualification, none of these rulings are reasonable belief that it had a confidential
binding precedent in the present matter. Nevertheless, relationship with Dr. Lee.
existing persuasive authority points to the conclusion
that Dr. Lee should not be disqualified. *3 12. The remaining factors also indicate a lack of
an objectively reasonable expectation of a
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Case 1:04-cv-01551-JJF Document 232-7 Filed 05/11/2007 Page 4 of 4
Not Reported in F.Supp.2d Page 3
Not Reported in F.Supp.2d, 2004 WL 2223252 (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
confidential relationship. First, defendant did not Defendant fails to point to any specific confidential
fund Dr. Lee's opinion in the present matter. Second, communications that were shared with Dr. Lee.
Dr. Lee and defendant did not enter into a formal Defendant claims that Dr. Lee received confidential
confidentiality agreement for the present matter. m know-how and proprietary materials from defendant
Third, Dr. Lee was not retained to assist in the through research collaborations and litigation
present litigation. Fourth, defendant did not pay Dr. preparation. (D.I. 250 at 8-9) Defendant also points to
Lee a fee for the present litigation. Finally, in "the evident exchange of confidential information
connection with the present litigation, Dr. Lee was that took place and that is inevitably a part of
not asked to agree not to discuss the case with preparing awitness for deposition? (D.I. 257 at 10)
plaintitiimf Consequently, the court concludes that it Neither of these allegations identify specific
was not objectively reasonable for defendant to confidential infomation defendant gave to Dr. Lee or
conclude that it had a fiduciary relationship with Dr. explain how this information relates to the present
Lee. matter. As a result, defendant has not satisfied its
burden of showing confidential information was
shared with Dr. Lee.
IE Even in the Iowa Litigation, Dr. Lee
did not enter into a formal confidentiality l4. Finally, this court finds that policy considerations
agreement with defendant. In that litigation balance in favor of recognizing Dr. Lee. The policy
Lindley Brenza, counsel for defendant, sent considerations favoring disqualification include
Dr. Lee a "retention letter" which defendant preventing conflicts of interest and maintaining the
asked Dr. Lee to sign and retum if he agreed integrity of the judicial process. English F eedlot, Inc.
to consult with defendant. (D.l.250, ex. A) v. Norden Labs., Inc., 833 F.Supp. 1498, 1505
Dr. Lee never signed or returned the letter. (D.CoIo.l993[. The policy considerations militating
(Id) against disqualification are ensuring that parties have
access to qualified expert witnesses and allowing
_F__l@ In the Iowa Litigation, Dr. Lee was experts to pursue their professional calling. Id The
asked, in the retention letter from Lindly court does not believe that allowing Dr. Lee to serve
Brenza, to preserve the confidentiality of as an expert adverse to defendant creates a conflict of
defendant's proprietary information. interest or that it challenges the integrity of the
(D.l.250, ex. A) However, this was a judicial process. The court has already found that Dr.
separate litigation and, furthemtore, Dr. Lee Lee's previous work with defendant does not create a
did not sign or retum this letter, manifesting conflict of interest. Furthermore, Dr. Lee made a
his refusal to agree to the terms of the conscious decision to turn down the consulting
retention letter. position with defendant in the Iowa Litigation and
take the position with plaintiff in this case. As a
I3. Even if defendant had established a reasonable result, the policy consideration of allowing experts to
expectation of a fiduciary relationship with Dr. Lee, pursue their professional calling marshals in favor of
it did not establish that confidential information has recognizing Dr. Lee.
been exchanged. Confidential information, in the
context of expert disqualification, includes discussion *4 15. In light of the forgoing, the court denies
of: litigation strategy, the kinds of experts the party defendant's motion to disqualify Dr. Lee. (D.l.249)
expects to retain, views on the strengths and
weaknesses of each side, the role of each witness, and D.Del.,2004.
anticipated defenses. Chergg Hill, 994 F Supp. at 250 Syngenta Seeds, Inc. v. Monsanto Co.
(quoting Koch Refining Co., 85 F.3d at 118). Not Reported in F.Supp.2d, 2004 WL 2223252
Defendant has the burden of pointing to specific and (D.Del.)
unambiguous confidential disclosures that it made to
Dr. Lee. Mggs, 293 F.Sup_1g.2d at 957; Chem; Hill, END OF DOCUMENT
994 F.Supp. at 25l (refusing to disqualify an expert
because "[t]he defendants [did] not submit[ ] any
evidence to the court to suggest that [confidential
communications or documents pertaining to
litigation] were ever exchanged between [defendant]
and [the expert]."); In re Ambassador Group, lrrc.
Lltig., 879 F.Sugp. 237, 243 (E.D.N.Y.l994].
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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