United States District Court, D. Minnesota
ORDER ON OBJECTIONS TO AUGUST 27, 2019 ORDER ON
DEFENDANT'S MOTION FOR PROTECTIVE ORDER
E. Brasel United States District Judge
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).
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.]
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.
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)).
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.
Topics 6 and 14: Corporate Testimony Regarding Alleged
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
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.
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.” (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.
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. ...