*1 This matter is before the Court on the following motions: (1) Plaintiff Syngenta Seeds, LLC's (“Syngenta's”) Motion to Compel Discovery (Doc. No. 227); (2) Syngenta's Motion to Amend the Scheduling Order to Extend Rule 45 Subpoena Deadline (Doc. No. 251); (3) Defendant Farmer's Business Network, Inc.’s (“FBN's”) Motion to Compel (Doc. No. 259); and (4) Defendant Farmer's Business Network, Inc.’s Motion to Compel Plaintiff Syngenta Seeds, LLC to Produce a Compliant Privilege Log (Doc. No. 266). The Court held a hearing on these motions on June 22, 2021 and July 12, 2021. (Doc. Nos. 279, 295.)

Guiding the Court's rulings are the Federal Rules of Civil Procedure regarding discovery in a civil case. Federal Rule of Civil Procedure 26 governs discovery in federal court. Discovery under the Federal Rules of Civil Procedure, however, is not without bounds even if relevance is shown. Rule 26 provides:

Fed. R. Civ. P. 26(b)(2)(C). Rule 26(b)(1) provides:

Fed. R. Civ. P. 26(b)(1).

One of the motions at issue relates to a privilege log. The Federal Rules of Civil Procedure do not specifically require service of a “privilege log” or dictate what information should be included in such a log. Instead, Rule 26(b)(5)(A) provides as follows:

Fed. R. Civ. P. 26(b)(5)(A). Courts in this district have found that a privilege log satisfies the requirements of Rule 26(b)(5) when it includes the following categories: Author/Source, Recipient(s), CC(s), Date, Description, Privilege Asserted, and Beginning of Bates Number of Produced Versions. Id. Further, as illustrated in the Court's eDiscovery guide (published on the Court's website) parties are encouraged to discuss and attempt to reach agreements on the amount of information and level of detail to be included in a privilege log.

*2 In addition, with respect to the discovery disputes at issue, including the privilege log issue, the Court is guided by the orders entered in this case.

The Court has reviewed the briefs and all the papers supporting the pending motions and the responses. The Court has considered the arguments made, has reviewed each issue raised and each discovery request at issue, and considered both the relevance and proportionality of the discovery sought based on the information provided. Based on the Court's consideration of the file, submissions, and proceedings herein, the Court orders as follows.

I. ORDER REGARDING THE MOTION AT DOC. NO. 227

Plaintiff Syngenta filed a Motion to Compel Discovery. (Doc. No. 227.) This motion relates to four discovery requests. Based on the file, records, submissions, and arguments of counsel, IT IS HEREBY ORDERED that Plaintiff Syngenta Seeds, LLC's Motion to Compel Discovery (Doc. No. 227) is DENIED as follows:

(a) Compromise Request No. 14: Documents sufficient to show the parents and/or pedigree lines for the hybrids made, created, developed, tested, and/or used by you in your corn breeding program that were suggested, tested, evaluated, or approved by Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner.

Request No. 14—as drafted in the Compromise Request—is overly broad and not proportional to the needs of the case. A response to this request would capture any of FBN's “parents and/or pedigree lines” created, developed, tested, or used, regardless of any relevance to this litigation, as long as Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner encountered them via testing, evaluating, or approval work affiliated with FBN. In addition, the information sought is unlimited in time scope. The Court declines to insert a time scope or to otherwise blue pencil the request to conform with Rule 26.

(b) Compromise Request No. 15: Documents that reflect any breeding crosses made, created, developed, and/or used by you in your corn breeding program that were suggested, tested, evaluated, or approved by Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner, and the testing and evaluation of progeny produced through such breeding crosses.

Request No. 15—as drafted in the Compromise Request—is overly broad and not proportional to the needs of the case. A response to this request would capture “breeding crosses” and “progeny produced through such breeding processes” created, developed, or used by FBN, regardless of any relevance to this litigation, as long as Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner encountered them via testing, evaluating, or approval work affiliated with FBN. In addition, the information sought is unlimited in time scope. The Court declines to insert a time scope or to otherwise blue pencil the request to conform with Rule 26.

(c) Compromise Request No. 16: All documents related to the creation, development, and/or evaluation of testcross hybrids that were suggested, tested, evaluated, or approved by Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner.

Request No. 16—as drafted in the Compromise Request—is overly broad and not proportional to the needs of the case. A response to this request would capture any testcross hybrids created by, developed, or evaluated, regardless of any relevance to this litigation, as long as Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner encountered them via testing, evaluating, or approval work anywhere. In addition, the information sought is unlimited in time scope. The Court declines to insert a time scope or to otherwise blue pencil the request to conform with Rule 26.

(d) Compromise Request No. 17: All field books or nursery books for your corn breeding program that are related to inbreds or hybrids that were suggested, tested, evaluated, or approved by Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner.

*3 Request No. 17—as drafted in the Compromise Request—is overly broad and not proportional to the needs of the case. A response to this request would capture field books and nursery books for FBN's corn breeding program that are related to inbreds or hybrids, regardless of any relevance to this litigation, as long as Josh Sleper, Dan Dyer, Ron Wulfkuhle, or Todd Warner encountered the inbreds or hybrids via testing, evaluating, or approval work affiliated with FBN. In addition, the information sought is unlimited in time scope. The Court declines to insert a time scope or to otherwise blue pencil the request to conform with Rule 26.

II. ORDER REGARDING THE MOTION AT DOC. NO. 251

Plaintiff Syngenta filed a Motion to Amend the Scheduling Order to Extend Rule 45 Subpoena Deadline. (Doc. No. 251.) Based on the file, records, submissions, and arguments of counsel, IT IS HEREBY ORDERED that Plaintiff Syngenta Seeds, LLC's Motion to Amend the Scheduling Order to Extend Rule 45 Subpoena Deadline (Doc. No. 251) is GRANTED as follows.

On June 1, 2021, Syngenta sought the deposition of Matt Foley via a deposition notice. Syngenta understood Mr. Foley to be employed at FBN at the time. FBN advised Syngenta on June 3, 2021, that Mr. Foley was no longer at FBN and that Syngenta would need to subpoena him. FBN took the position that any subpoena would be untimely because the June 1, 2021 subpoena deadline passed. Syngenta then served a subpoena. FBN accepted service of the subpoena on June 8, 2021, but maintained its position that the subpoena was untimely. Syngenta therefore seeks a one-week extension to the subpoena deadline in the Scheduling Order, which would result in making its subpoena to Mr. Foley timely.

A scheduling order “may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4); see also L.R. 16.3(b)(1). “The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716–17 (8th Cir. 2008).

On March 17, 2021, Syngenta asked FBN to include Mr. Foley in its ESI collection and production. In making this request, Syngenta wrote, “Mr. Foley appears to be the General Manager of the F2F Genetics Network.” While FBN was not obligated by rule or court order to correct Syngenta's mistake, consistent with Syngenta's mistaken understanding, it timely—and diligently—sought Mr. Foley's deposition by serving a notice of deposition on June 1, 2021. When it learned that Mr. Foley was no longer employed by FBN, counsel for Syngenta diligently followed up with counsel. The Court finds that Syngenta's counsel was diligent in seeking the deposition of Mr. Foley with a notice of deposition by June 1, 2021. Accordingly, there is good cause to extend the deadline for serving subpoenas in the Scheduling Order by one week to June 8, 2021, which now makes the Foley subpoena timely under the Scheduling Order.

III. ORDER REGARDING THE MOTION AT DOC. NO. 259

Defendant FBN filed a Motion to Compel. (Doc. No. 259.) Six document requests are at issue.[1] Based on the file, records, submissions, and arguments of counsel, IT IS HEREBY ORDERED that Defendant Farmer's Business Network, Inc.’s Motion to Compel (Doc. No. 259) is DENIED as follows.[2]

(a) Request for Production No. 19: All DOCUMENTS and COMMUNICATIONS referring to or reflecting any publications, articles, presentations, research papers or other public disclosure of seed-breeding-related information by SLEPER or WARNER while they were employed at SYNGENTA, INCLUDING DOCUMENTS and COMMUNICATIONS referring to or reflecting any approval process or scope or content limitations for any of these public disclosures.

*4 Request No. 19 relates to the individual Defendants’ publications. The Request—as drafted—is overly broad and not proportional to the needs of the case.

(b) Request for Production No. 20: The DOCUMENTS that SLEPER allegedly retained from SYNGENTA and deleted from his personal devices, including the four Excel spreadsheets with PVP information (i.e., XLS files titled “Pioneer Inb Diagram,” “Dekalb ExPVP Diagram,” “Holdens Diagram,” and “Pioneer Descendant List”); and (2) “R” source code that SLEPER created for his Ph.D. dissertation, which SYNGENTA claims were “also contained in Defendant Todd Warner's ‘PersonalData’ folder on his Syngenta computer,” as alleged in SYNGENTA'S Sur-Reply in Further Opposition to Defendants Sleper and FBN's Motion to Dismiss (ECF 94 at 2-3).

FBN states that it clarified or narrowed Request No. 20; however, the Court required any clarification to be clearly stated as an amended request in any discovery motion practice. Accordingly, the Court looks to FBN's original request when ruling on this motion. Request No. 20, as drafted, is too vague and ambiguous to require a response beyond what has already been provided by Syngenta in its response and explanation in its motion papers.

(c) Request for Production No. 21: All DOCUMENTS and COMMUNICATIONS referring to or reflecting the specific DOCUMENTS identified in Request for Production No. [20],[3] including DOCUMENTS and COMMUNICATIONS referring to or reflecting SYNGENTA's invention, preparation, development, derivation, authorship, ownership, possession, implementation, disclosure, protection, commercialization, valuation, or other use of the DOCUMENTS.

Request No. 21 relies on Request No. 20. The Court has ruled that Request No. 20 is too vague and ambiguous to require any further response. The Court likewise finds Request No. 21 also vague and ambiguous. Further, it is overly broad and not proportional to the needs of the case.

(d) Request for Production No. 17: All DOCUMENTS and COMMUNICATIONS referring to or reflecting SYNGENTA'S hiring of DR. WARREN KRUGER or the KRUGER LITIGATION, including any testimony provided, any correspondence or settlement agreements, DR. WARREN KRUGER's employee file, and any notices, offers, directives, restrictions, or other instructions YOU provided to DR. WARREN KRUGER regarding his obligations or responsibilities with respect to confidential or trade secret information or his expected roles and responsibilities at SYNGENTA.

Request No. 17, as drafted, is overly broad and not proportional to the needs of the case.

(e) Request for Production No. 14: All course materials for any courses referring to or reflecting seed breeding or seed-related intellectual property rights taught by DR. STEPHEN SMITH, INCLUDING syllabi, lecture handouts, lecture presentations, reading assignments, problem sets, exams, or other similar materials.

Request for Production No. 15: All presentations, handouts, or other written material that DR. STEPHEN SMITH has used or distributed in connection with any public or paid speaking engagement referring to or reflecting seed breeding or seed-related intellectual property rights (INCLUDING lectures, symposia, panel discussions, or other similar engagements) since 2015.

*5 The Court addresses Request Nos. 14 and 15 together. Syngenta disclosed Dr. Smith as a potential consultant pursuant to the Protective Order. (See Doc. No. 262, FBN's Mem. in Supp. 23.) Even if Syngenta has some “control” over the materials sought, the request is overly broad and not proportional. Moreover, to the extent that Dr. Smith is identified as a testifying expert by the July 16, 2021 deadline set forth in the Fourth Amended Pretrial Scheduling Order, the disclosure requirements are set forth in Federal Rule of Civil Procedure 26(a)(2) and he will need to identify a list of all publications authored in the previous ten years by the deadline set in the schedule. Outside of that requirement, FBN has not shown that the additional discovery sought is relevant or proportional.

IV. ORDER REGARDING THE MOTION AT DOC. NO. 266

Defendant FBN filed a Motion to Compel Plaintiff Syngenta Seeds, LLC to Produce a Compliant Privilege Log. (Doc. No. 266.) Based on the file, records, submissions, and arguments of counsel, IT IS HEREBY ORDERED that Plaintiff Syngenta Seeds, LLC's Motion to Compel Discovery (Doc. No. 266) is DENIED.

FBN seeks an order from the Court compelling production of a privilege log sufficient for FBN to assess Syngenta's privilege claims with respect to its withheld documents. On April 30, 2021, Syngenta produced a privilege log regarding Privileged Documents 1-195. (Doc. No. 272, Sealed Ex. A to Keohane Decl.; Doc. No. 287, Sealed Ex. A to Washburn Decl.) The April 30, 2021 privilege log included categories for “Date,” “Claim,” “Description,” “From,” “To,” “CC,” and “BCC.” (Id.) There is no category for the “subject line” of emails. To the extent there were attachments, they were referenced in the April 30, 2021 log without a separate entry. (Id.) For example, Priv Log # 77 describes: “Confidential communication with attachments ...” (Id.)

On May 13, 2021, the Court required the parties to “meet and confer about the form and format of their privilege logs and the timetable for completing their fact discovery, including producing their respective privilege logs by the fact discovery deadline, prior to the upcoming status conference.” (Doc. No. 214, 5/13/21 Minute Entry Order.) Four days later, the Court added to its directive, ordering the parties to “file their timetable for completing status and for producing their respective privilege logs ... by May 20, 2021.” (Doc. No. 215, 5/17/2021 Text-Only Order.) On May 20, 2021, the parties filed a status report wherein each party reported their views about the sufficiency of privilege logs produced to date. (Doc. No. 216.) In FBN's section of the Status Report on Privilege Logs, FBN reported the following:

(Id. at 8 (emphasis added).)

With the understanding that the parties were generally in agreement regarding the format of the privilege logs, the Court entered a Fourth Amended Pretrial Scheduling Order on May 26, 2021. (Doc. No. 225.) The Fourth Amended Pretrial Scheduling Order included a section on how to challenge the adequacy of the privilege log entries:

*6 (Id. at 10.)

Syngenta produced its second privilege log on June 11, 2021, using the same format as that produced on April 30, 2021, repeating Privilege Log Entries 1-195 and adding Privilege Log Entries 196-539. The parties met and conferred on June 16, 2021, and they discussed that Syngenta would be supplementing or explaining its entries with its June 18 privilege log. (Doc. No. 268, Meet and Confer Statement; Doc. No. 269, FBN's Mem. of Law in Supp. 4–5.) In a follow-up communication, Syngenta confirmed that it planned to use the same format in its forthcoming June 18 privilege log that it followed in the April 30, 2021 log. (Doc. No. 269, FBN's Mem. of Law in Supp. 5.) Specifically, with regard to an issue that FBN raised regarding “attachments,” Syngenta therefore confirmed that it would not separately log the attachments and that it would also use the same categories as used in the first privilege log.

Upon careful review, the Court finds that FBN did not timely raise concerns regarding the form or format of the privilege log—which includes the handling of attachments or the categories set forth in the log—after the first log was produced on April 30, 2021. To the contrary, on May 20, 2021, FBN represented that the parties were generally in agreement with the form and format of the privilege logs. Had FBN timely raised the concerns it raises now, the Court could have easily addressed them before Syngenta and its counsel underwent the time and effort required in preparing the June 11, 2021 log. FBN's objections to the form and format, including the way attachments are described, are overruled as untimely. Since the challenge is untimely, the Court need not address how it might have ruled if the concern was timely raised.

Regarding FBN's objections about the adequacy of Syngenta's descriptions, Syngenta takes the position that any objections to descriptions in the June 11, 2021 privilege log are mooted by its third privilege log produced on June 25, 2021. (Doc. No. 287, Sealed Ex. B to Washburn Decl.) FBN disagrees and asserts three areas of dispute. At the hearing, the Court realized that FBN included statements in “reply” to Syngenta's opposition brief in a Supplemental Meet and Confer Statement.[4] The Court has since reviewed the Supplemental Meet and Confer Statement, including the three bullet-point categories of documents highlighted by FBN that FBN states are still in dispute. Based on the Court's full review of the record, submissions, and argument of counsel, the Court makes the following rulings with respect to those areas of dispute.

*7 FBN claims that its objections as to entries 303, 322, 350, 351, 515, 517, 519, 520, 521, 528, 538, 327, 218, 273, 349, 352, and 433 are not mooted by Syngenta's June 18 revised privilege log and asserts that these entries still contain insufficient information. The Court disagrees. The Court finds that these entries sufficiently describe privileged or protected information without waiving privilege as Rule 26(b)(5) requires.

FBN maintains its objections previously asserted regarding attachments, and objects to additional entries in the June 18 privilege log for the same reasons. The Court has already addressed the attachments objection as stated above. FBN's challenge to the references to attachments is untimely, as it reported that it was in general agreement with the earlier—April 30, 2021—privilege log, which handled attachments the same way. Since the challenge is untimely, this Court need not address how it might have ruled if the concern was timely raised.

FBN asserts that the description in entries 187, 188, 195, 196, 199, 207, 218, 222, 223, 224, 225, 238, 264, 267, 268, 273, 289, 307, 315, 318, 319, 324, 349, 350, 371, 379, 410, 413, 433, 448, 457, 469, 473, 482, 500, 514, and 525 remain inadequate.[5] The Court disagrees. The Court finds that these entries sufficiently describe privileged or protected information without waiving privilege as Rule 26(b)(5) requires.

Therefore, FBN's motion is denied.

SO ORDERED.

The Court addresses the document requests in the same order as they are presented in FBN's Memorandum. (See generally Doc. No. 262, Def.’s Mem. of Law in Supp.)

The Court notes that Syngenta asserts that FBN's motion is time barred. (See Doc. No. 281, Pl.’s Mem. in Opp'n at 13–16.) Since the Court is denying the motion to compel based on the application of the Rules of Federal Procedure governing discovery, the timeliness argument is now moot.

The request as stated in FBN's brief, and as stated in Syngenta's responses, include reference to Request for Production “No. 21.” This appears to be a typo, and should have stated Request for Production “No. 20.”

On June 25, 2021, FBN filed a “Supplemental Meet and Confer Statement Relating to its Motion to Compel Plaintiff Syngenta Seeds, LLC to Produce a Compliant Privilege Log.” (Doc. No. 283.) At the hearing, the Court explained why substantive arguments in response to an opponent's brief do not belong in a supplemental meet and confer statement. Moreover, to the extent that FBN intended to report any partial resolution of the motion, a stipulation should have been filed. Pursuant to Local Rule 7.1(a)(2), “After the moving party has filed a meet-and-confer statement, if the moving and opposing parties agree on the resolution of all or part of the motion that the statement relates to, the parties must promptly notify the court of their agreement by filing a joint stipulation.” The Court is satisfied, however, that counsel's approach was filed in good faith to inform the Court. Accordingly, the Court carefully reviewed the Supplemental Meet and Confer Statement following the hearing.

The issue before the Court as to Syngenta's privilege log is whether the descriptions are sufficient pursuant to Federal Rule of Civil Procedure 26(b)(5) to enable other parties to assess the privilege claim; FBN has not argued that any entries describe documents that are, as described, not privileged or protected.