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Kroening v. Del Monte Fresh Produce N.A., Inc.

United States District Court, D. Minnesota

December 4, 2019



          Nancy E. Brasel United States District Judge

         Plaintiff Robin Miller Kroening (“Kroening”) filed this action for damages incurred from consuming an allegedly defective Del Monte vegetable tray that she purchased at a Kwik Trip gas station in May 2018. [ECF No. 37 (“Second Amended Complaint” or “SAC”) ¶¶ 90-119.] According to the complaint, Kroening tested positive for Cyclospora on June 7, 2018. (Id. ¶ 96.) On June 8, 2018, state public health authorities informed the public that a cluster of at least 13 Cyclospora cases were linked to the consumption of vegetable trays manufactured by Del Monte Fresh Produce N.A., Inc. (“Del Monte”). (Id. ¶ 63.) After federal and state officials discovered the correlation between the Cyclospora cases and Del Monte's vegetable trays, Del Monte recalled the vegetable trays on June 15, 2018. (Id. ¶ 64).

         Kroening asserts two claims against Del Monte: (1) strict product liability- manufacturing defect, and (2) negligence. (Id. ¶¶ 104-19.) In the course of discovery, Kroening served the Amended Notice of Taking Deposition of Defendant Del Monte Pursuant to Rule 30(b)(6). [ECF No. 128-2 (“Rule 30(b)(6) Notice”).] Del Monte moved for a protective order on certain topics listed in the Rule 30(b)(6) Notice. [ECF No. 93.]

         On August 27, 2019, Magistrate Judge Steven E. Rau held a hearing on Del Monte's motion for protective order. [ECF No. 120.] At the hearing, Magistrate Judge Rau in part and denied in part Del Monte's motion for a protective order. (Id.) Del Monte filed the instant objection to the decision to deny a protective order as to three topics in the Rule 30(b)(6) Notice. For the reasons provided below, the Court will sustain Del Monte's objection.


         I. Legal Standard

         Review of a magistrate judge's ruling on a nondispositive issue is “extremely deferential.” Scott v. United States, 552 F.Supp.2d 917, 919 (D. Minn. 2008). A district court will reverse a magistrate judge's ruling on nondispositive pretrial matters only if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). “A finding is ‘clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” Edeh v. Equifax Info. Servs., LLC, 295 F.R.D. 219, 223 (D. Minn. 2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “A decision is ‘contrary to law' when it ‘fails to apply or misapplies relevant statues, case law or rules of procedure.'” Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008) (quoting Transamerica Life Ins. Co. v. Lincoln Nat. Life Ins. Co., 592 F.Supp.2d 1087, 1092 (N.D. Iowa 2008)).

         Magistrate Judge Rau denied Del Monte's motion for a protective order as to the deposition topics at issue because he found that they were relevant to Kroening's claims. When a party moves for a protective order, “[t]he court may, for good cause, issue an order to protect a party or person from . . . undue burden or expense, including . . . forbidding the disclosure or discovery; . . . forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters . . . .” Fed.R.Civ.P. 26(c)(1). The moving party bears the burden “to show the ‘good cause' required for issuance of the protective order.” Alexander v. 1328 Uptown, Inc., No. 18-CV-1544 (ECT/ECW), 2019 WL 4929931, at *2 (D. Minn. Oct. 7, 2019) (citing Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)). “[A] showing of irrelevancy of proposed discovery can satisfy the ‘good cause' requirement of Rule 26(c).” Id. (quoting Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 237 (D. Minn. 2013)).

         II. Topics 6 and 14: Corporate Testimony Regarding Alleged Representations

         Del Monte argues that the Magistrate Judge erred when he decided to allow corporate testimony regarding Topic 6-“Del Monte Fresh safety and quality specifications and guarantees to consumers, ” and Topic 14-“[s]pecifications, warranties, and representations about the Vegetable tray products Del Monte Fresh sold.” (Rule 30(b)(6) Notice at 6-7.) At the hearing, the Magistrate Judge found that these topics request information relevant to Kroening's claims, “in particular to her negligence claim.” [ECF No. 128-1 (“Hr'g Tr.”) at 16.] Citing Rule 26 of the Federal Rules of Civil Procedure, he explained:

What is relevant under Rule 26 is broad but it is, as I said, limited by proportionality. Any representations Del Monte may have made, such as the food being ready to eat or the “best by” dates, may go toward Kroening's negligence claim in framing Del Monte's duty to its consumers. Similarly, the “best by” dates and origin information on the labelling of the vegetable trays may help Kroening trace back where the alleged contaminated food came from and determine who is responsible for the contaminated food Kroening ate.


         Del Monte maintains that Topics 6 and 14 are irrelevant to this line of inquiry because on their face, they do not embrace traceback, the source or origin of the produce, “best by” dates, or the fact that the product was a ready-to-eat vegetable tray. Rather, these subjects are covered by other topics for which Del Monte has agreed to produce a Rule 30(b)(6) witness. See Fed. R. Civ. P. 26(b)(2)(C)(i). For example, Topic 8 addresses “Del Monte Fresh's efforts to determine the source of the Cyclospora contamination” that caused the 2018 outbreak and subsequent product recall, “including but not limited to traceback efforts” and the “existence of any documents generated by Del Monte Fresh regarding traceback efforts.”[1] (Rule 30(b)(6) Notice at 5.) Similarly, Topics 4 and 5 address the origin of the produce in the recalled vegetable trays, including Del Monte's purchasing, inspection, inventory, and quality/safety testing processes. (Id. at 4-5.) And Topics 15, 16, and 17 address Del Monte's records reflecting the presence and sale of recalled vegetable trays, its food safety processes and procedures related to selecting its suppliers of the vegetable tray components, and its food safety requirements that applied to suppliers of vegetable tray components prior to the outbreak. (Id. at 6-7.) Kroening does not deny that these deposition topics address the issues of “best by” dates or the origin of the produce in the trays. The Court finds that Kroening would not be deprived of Rule 30(b)(6) witness testimony on subjects for which other agreed-upon topics overlap with Topics 6 and 14.

         The problem here is that the broad language of Topics 6 and 14 necessarily incorporates irrelevant subjects beyond the scope of other agreed-upon deposition topics. Kroening argues that under the ill-defined language of Topics 6 and 14, she “should be able to ask Del Monte about what it intended consumers to know about its vegetable trays.” [ECF No. 136 (“Pl's Resp. ...

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