rejecting a general reliance 6 interest in the Protective Order
How later courts described this case
- rejecting a general reliance 6 interest in the Protective Order
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA
9
SHEET METAL WORKERS NATIONAL
10 PENSION FUND, et al., Case No. 20-cv-04737-RS
11 Plaintiffs,
ORDER GRANTING MOTION TO
12 v. INTERVENE AND GRANTING IN
PART REQUEST TO MODIFY
13 BAYER AKTIENGESELLSCHAFT, et al., PROTECTIVE ORDER
14 Defendants.
15 I. INTRODUCTION
16 Plaintiffs’ Counsel from a separate multi-district litigation over Monsanto’s Roundup
17 product (“Roundup MDL”) request permission to intervene in this securities class case against
18 Monsanto’s parent company, Bayer Aktiengesellschaft (“Bayer”) and individual officers and
19 board members (“Bayer Defendants”). Movants here (“Proposed Intervenors”) contend the
20 discovery taken by the securities Plaintiffs, who have reached a preliminary settlement with Bayer,
21 is relevant to cases within and related to the MDL. Therefore, Proposed Intervenors seek a
22 modification of the Protective Order in this matter to allow Roundup plaintiffs access to
23 documents and depositions produced by Bayer in this case. For the following reasons, the motion
24 is granted as modified.
25 II. BACKGROUND
26 Two parallel cases are relevant to this motion. First, in 2016, the Judicial Panel on
27 Multidistrict Litigation transferred the first cases in MDL No. 2741 to a court in this district. The
1 Intervenors are the co-lead counsels appointed by the MDL court to coordinate and oversee
2 plaintiffs’ activity in that action. These Intervenors also represent plaintiffs in ongoing state court
3 cases, as well as previously settled Roundup claims. While some cases within the MDL have
4 already been tried, many remain on hold. Additionally, a multitude of individual cases are
5 currently proceeding through state courts throughout the country. Bayer did not produce discovery
6 in the consolidated MDL proceedings and has largely avoided participation in the non-MDL cases.
7 Separately, Plaintiffs in the above-captioned matter brought a putative class action in this
8 Court asserting violations of the Securities Exchange Act of 1934 (the “Exchange Act”) in relation
9 to Bayer’s acquisition of Monsanto. The case, first filed in 2020, centers on what Bayer knew
10 about and communicated to investors regarding the risk Bayer shouldered by acquiring Monsanto.
11 The Plaintiffs assert the Bayer Defendants misrepresented the legal liability it was taking on with
12 the acquisition.
13 After Plaintiffs in this case defeated a motion to dismiss, parties exchanged fact and expert
14 discovery. Of relevance to this motion, Plaintiffs deposed several Bayer executives with
15 knowledge of the Monsanto acquisition and received documentation of Bayer’s due diligence on
16 Monsanto, as well as information Monsanto provided to Bayer after the acquisition. After the
17 close of discovery, the parties reached a settlement agreement, and the Court granted preliminary
18 approval in June 2025.
19 Proposed Intervenors assert they became aware of potentially relevant evidence when the
20 parties in this case filed their motion for preliminary approval of their settlement. They argue that
21 because Bayer did not participate in the MDL and has otherwise avoided discovery in those cases,
22 a modification of the protective order in this matter is the only way Roundup plaintiffs can access
23 relevant evidence and avoid duplicative discovery.
24 Proposed Intervenors seek permission to intervene for the sole purpose of accessing
25 relevant discovery materials. They assert these materials are relevant to Roundup cases and will be
26 used subject to reasonable safeguards for confidential and privileged information. They seek
27 access to the following potentially relevant sets of documents detailed in the securities Plaintiffs’
1 motion for preliminary approval:
2 • “60 requests for documents related to Bayer’s acquisition of Monsanto, due diligence, and
3 litigation risks associated with Monsanto’s Roundup product,” which “encompassed
4 internal communications, board minutes, advisory reports, acquisition agreements,
5 financial and reputational risk assessments, and documents on Bayer’s . . . investor
6 communications,”
7 • Interrogatories seeking “information on Bayer’s review of documents concerning
8 glyphosate and Roundup during due diligence for the Monsanto acquisition,”
9 • The Court-ordered production, over Bayer’s objection, of “certain due diligence documents
10 identified in [Defendants’] interrogatory responses,” which related to Bayer’s defense that
11 “Plaintiffs’ claims are barred, in whole or in part, because Defendants relied in good faith
12 on the representations, reports, expert opinions, and advice of others whom Defendants
13 believed to be reliable and competent in the matters presented”;
14 • The depositions of “eleven fact witnesses, including Bayer’s current and former senior
15 executives, board members, and general counsels,”
16 • The translation pursuant to the parties’ stipulation of certain German-language documents
17 and testimony; and
18 • Several expert reports and depositions.
19 Dkt. 253-2 at ¶¶ R–CC.
20 Discovery in this action was conducted pursuant to a Stipulated Confidentiality and
21 Protective Order. Dkt. 138. The Protective Order requires parties and others to adhere to certain
22 safeguards and procedural requirements in order to use “Protected Material,” which is defined to
23 mean “any Disclosure or Discovery Material that is designated as Confidential, Highly
24 Confidential, Highly Confidential – Attorneys’ Eyes Only, or Foreign Confidential Personal
25 Data.” Id. at 6, § 2.22. The Protective Order further provides that parties receiving protected
26 material may use it “only for prosecuting, defending, or attempting to settle this litigation.” Id. at
27 13, § 7.1.
1
2 Intervenors propose a modification to the current Protective Order, which would allow
3 Roundup litigants to use the discovery materials from this case to prosecute, defend, or settle their
4 own actions. Intervenors’ proposed order expands the current Protective Order to include
5 “Glyphosate Injury Actions” – or Roundup cases – and would require parties to those cases to
6 agree to be bound by the relevant terms of the Protective Order in this case to make use of such
7 protected material. The proposal defines Roundup cases as including: (1) the Roundup MDL; (2)
8 cases that have been or will be originally filed in, removed to, or transferred to the Roundup MDL;
9 (3) actions brought in state or federal court by or on behalf of a former user of Monsanto
10 glyphosate-containing products, such as Roundup, alleging injuries or other damages therefrom;
11 and (4) certain actions, claims, causes of action, or adversary proceedings brought by former
12 Roundup users in connection with a possible bankruptcy, insolvency, or similar proceeding of
13 Monsanto or its affiliates. The third of these categories, concerning actions brought in state or
14 federal court by former Roundup users, is modeled on the provision in the Roundup MDL
15 Protective Order that has facilitated the use of MDL discovery materials in many non-MDL cases.
16 Proposed Intervenors explain that the fourth category, concerning certain bankruptcy or
17 insolvency-related claims, is included strictly as a precaution due to recent news reporting that
18 Bayer is considering placing Monsanto in bankruptcy. In order to use protected material in these
19 actions, litigants and certain related individuals (such as attorneys and expert witnesses) would
20 need to agree to the pertinent Protective Order terms governing the treatment of that material.
21 Additionally, nothing in the proposed modification would guarantee the discoverability or
22 admissibility of the materials in a Roundup matter.
23 Proposed Intervenors attempted unsuccessfully to reach a stipulation on this intervention
24 and modification of the Protective Order. Bayer opposes this intervention, while the securities
25 Plaintiffs take no position.
26 III. INTERVENTION
27 A. Legal Standard
1 A nonparty seeking to modify a protective order to pursue discovery may properly
2 intervene to seek this relief under Rule 24(b). Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470,
3 473 (9th Cir. 1992). Federal Rule of Civil Procedure 24(b) provides that, “[o]n timely motion, the
4 court may permit anyone to intervene who . . . has a claim or defense that shares with the main
5 action a common question of law or fact.” In order to intervene in a case, a movant must show that
6 three requirements are met: “(1) an independent ground for jurisdiction; (2) a timely motion; and
7 (3) a common question of law and fact between the movant's claim or defense and the main
8 action.” Callahan v. Brookdale Senior Living Communities, Inc., 42 F.4th 1013, 1022 (9th Cir.
9 2022) (citation omitted).
10 B. Discussion
11 Proposed Intervenors meet the standard to intervene for the limited purpose of pursuing
12 discovery.
13 1. Jurisdiction
14 A proposed intervenor who seeks to modify a protective order need not show an
15 independent jurisdictional basis. This is because the proposed intervenor “ask[s] the court only to
16 exercise that power which it already has, i.e., the power to modify the protective order. For that
17 reason, no independent jurisdictional basis is needed.” Beckman Indus., Inc., 966 F.2d at 473.
18 Bayer does not dispute this Court’s jurisdiction to grant the requested modification. Therefore,
19 Proposed Intervenors meet the jurisdictional requirement.
20 2. Timeliness
21 Intervention is timely under the “three primary factors” that courts assess to determine
22 timeliness: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the
23 prejudice to other parties; and (3) the reason for and length of the delay.” W. Watersheds Project v.
24 Haaland, 22 F.4th 828, 836 (9th Cir. 2022) (citation omitted).
25 Proposed Intervenors argue intervention is conveniently timed because the parties have
26 completed discovery and reached a settlement. They also argue any prejudice put forward by
27 Bayer is merely Bayer’s preference that these materials never be used, rather than some real
1 prejudice in litigation, given Bayer has already reached a settlement in this action. Moreover,
2 Proposed Intervenors assert any prejudice is nullified by requiring new parties using this material
3 to abide by the same rules as the original Protective Order. Finally, Proposed Intervenors argue
4 they have been diligent in seeking this relief.
5 a. Delay and Stage of Litigation
6 Proposed Intervenors did not unduly delay filing this motion after settlement of the
7 litigation. If Proposed Intervenors had sought access to these materials earlier, Bayer may well
8 have argued such an imposition would interfere with ongoing discovery proceedings or settlement
9 negotiations. The parties completed discovery in early 2025. Proposed Intervenors assert they
10 were only put on notice by the settlement announcement made in April 2025. Given that
11 Intervenors filed their motion in June, only two months after being made aware of these
12 documents, Intervenors were timely.
13 Bayer argues Proposed Intervenors have unduly delayed because they should have been on
14 notice as to these materials while litigation was ongoing. Bayer points to multiple filings in this
15 matter publicizing discovery and discovery-related disputes. See W. Watersheds Project, 22 F.4th
16 at 839 (delay is measured “by reference to the point at which the intervenor knew or reasonably
17 should have known” of the basis for intervention). Bayer argues that Proposed Intervenors are
18 attempting to “swoop in” at the eleventh hour and benefit from the completed record in this
19 unrelated case. While Proposed Intervenors could certainly have tracked the litigation more
20 closely, some of the relevant depositions were not completed until late 2024. Therefore, although
21 Intervenors could have sought this relief earlier, they have adequately explained their decision to
22 file now, less than a year after discovery ended in this matter. Moreover, the Ninth Circuit has
23 approved motions to intervene filed years after a case has concluded. By comparison, this motion
24 is clearly timely. See Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1353 (9th
25 Cir. 2013) (collecting cases).
26 b. Prejudice
27 Bayer primarily contends the timing of Proposed Intervenors’ Motion prejudices it.
1 Bayer’s arguments sound in contract—at oral argument, Bayer emphasized its reliance on the
2 Protective Order in striking agreements to produce documents. However, this is not exactly right.
3 Bayer can certainly argue it would have fought more vigorously against certain requests for
4 production, but it cannot point to any decision it would have made differently, if Intervenors had
5 only filed their motion earlier. See, e.g., Blum, 712 F.3d at 1354 (rejecting a general reliance
6 interest in the Protective Order).
7 Relatedly, the post-settlement stage of litigation undermines Bayer’s claims of prejudice.
8 The Ninth Circuit has found relevant that when a third-party seeks to intervene after a settlement
9 or adjudication has been reached, that intervention has “little effect on the original parties’
10 underlying rights, particularly when that intervention is for a purpose collateral to challenging the
11 merits of an adjudication. See id. (relying on United Nuclear, 905 F.2d at 1427).
12 Bayer asserts the intervention is specifically prejudicial with regards to to due diligence
13 documents ordered produced by the assigned Magistrate Judge. See Dkt. 199. Bayer explains that,
14 earlier in this securities litigation, it was forced to choose between producing privileged diligence
15 materials and abandoning its good-faith reliance defense on the diligence performed by its
16 lawyers. The Magistrate Judge, in ordering Bayer to produce due diligence documents to
17 Plaintiffs, found implied waiver for fairness reasons, but allowed Bayer to produce the due
18 diligence documents under an “Attorneys’ Eyes Only” designation. See Dkt. 199 (relying on
19 Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003).
20 In Bayer’s view, granting intervention and modification with regards to the due diligence
21 documents would cause specific prejudice. Bayer argues such an order would deprive it of the
22 informed choice to assert that defense because now the stakes are greater, given the threatened
23 wider use of these documents. Bayer again cites its reliance interest in producing these documents
24 subject to the very narrow finding of implied waiver made by the Magistrate Judge. However,
25 Bayer cannot convincingly assert it would have abandoned its good-faith defense given this
26 potential exposure. Moreover, Bayer did not strike some sort of bargain with the Magistrate Court
27 because it did not “agree” to produce these documents based on the Court’s assurances. Instead, it
1 was subject to an adverse discovery ruling after the Magistrate Judge found implied waiver. As
2 discussed below, nothing in this Order modifies the Magistrate Judge’s narrow finding of implied
3 waiver for the purposes of this case. Bayer’s arguments as to prejudice are unpersuasive because
4 Bayer is still able to assert this privilege in future proceedings.
5 3. Common Question of Law and Fact
6 This case concerns the truthfulness of Bayer’s representations regarding its due diligence
7 into Monsanto’s significant legal liability related to Roundup. Proposed Intervenors assert the
8 interests of people who have been harmed by Roundup, and whose claims against Monsanto
9 expose the company to legal liability. The common questions of law and fact center on Bayer’s
10 and Monsanto’s knowledge of Roundup’s allegedly harmful effects.
11 A “strong nexus of fact or law [is] not required where [an] intervenor merely seeks to
12 challenge a Protective Order.” San Jose Mercury News, Inc. v. U.S. Dist. Ct.--N. Dist. (San Jose),
13 187 F.3d 1096, 1100 (9th Cir. 1999) (citing Beckman Indus., Inc., 966 F.2d at 473–74). The Ninth
14 Circuit and numerous Courts of Appeal have afforded the common question requirement
15 “considerable breadth when the movant seeks to intervene for the collateral purpose of challenging
16 a confidentiality order.” E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir.
17 1998) (collecting cases). All that is needed to make the necessary showing is a “sufficient common
18 issue between the underlying suit and the intervenors’ suits.” Beckman Indus., Inc., 966 F.2d at
19 473 (citing United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990)).
20 This Court has acknowledged the link between this case and the Roundup MDL. As
21 outlined in the order denying Bayer’s most recent motion to dismiss, Plaintiffs allege not just that
22 Bayer misled investors as to the links between cancer and Roundup but also misled investors as to
23 the litigation risks related to Monsanto. Further, a verdict in any of the MDL cases against
24 Monsanto implies that a link between Roundup and cancer was sufficiently credible to find in
25 favor of the plaintiff. Adverse litigation decisions disclosed to investors that Monsanto faced a
26 serious risk in litigation. What Bayer knew, investigated, said, and did not say to investors about
27 Monsanto’s potential legal liability related to Roundup raises numerous common legal and factual
1 issues with the underlying Roundup litigation. Additionally, information Monsanto shared with
2 Bayer during the acquisition process has bearing on both Monsanto and Bayer’s knowledge and
3 culpability.
4 Bayer does not directly challenge the link between these two cases. Instead, Bayer argues
5 that Proposed Intervenors are improper intervening parties for two reasons. First, Intervenors are
6 merely counsel for MDL plaintiffs, not themselves parties to Roundup cases. However, Proposed
7 Intervenors seek to intervene in this matter in their role as court-appointed co-lead counsel in
8 MDL No. 2741. The order appointing them in this role “vest[ed] co-lead counsel with the
9 responsibility for coordinating and overseeing MDL activities for the plaintiffs,” including the
10 authority and duty to “[c]oordinate and conduct discovery on behalf of the plaintiffs,” and to
11 “perform such other duties as the co-lead counsel deem necessary, in order to advance the
12 litigation[.]” Dkt. 256-3 at 1–3. Moreover, in a different posture, the Ninth Circuit has held that an
13 entity needs only to show it is aggrieved by a Protective Order to have standing to appeal its entry.
14 See Cordero v. Stemilt AG Servs., LLC, No. 23-3548, --- F.4th ---, 2025 WL 1902292, at *3–4 (9th
15 Cir. July 10, 2025) (vacating portion of Protective Order that placed limits on use “in other
16 advocacy [of] information obtained in discovery” in response to motion by third party legal
17 organization) (citation omitted). None of Bayer’s cited cases finding against intervention are
18 persuasive here, given the specialized role of MDL lead counsels, who are empowered to stand in
19 the shoes of many plaintiffs. Therefore, Proposed Intervenors have standing to represent the
20 interests of at least the MDL plaintiffs.
21 Second, Bayer asserts Intervenors have essentially waived their right to file this motion.
22 Bayer claims Proposed Intervenors, acting as MDL lead counsel, conceded in 2020 that
23 documents in this matter were not relevant to the MDL cases. Shortly after the initial complaint in
24 the above-captioned case was filed in July 2020, Plaintiffs’ counsel filed an administrative motion
25 to consider whether this case should be related to the Roundup MDL pursuant to Local Rules 3-
26 12(b) and 7-11.4 See Dkt. 262-2. The MDL leadership at that time, including two of the moving
27 attorneys here, signed onto a response to that motion, which “d[id] not take a position regarding
1 whether the Court should decide that the case is, or is not, related to the personal injury cases
2 pending in the MDL.” Dkt. 262-4 at 2. This response acknowledged that “in some respects the
3 cases have related, overlapping issues, yet in other respects they are materially different.” Id. at 3.
4 At that point in 2020, MDL leadership believed “that inquiry [into Bayer’s knowledge prior to the
5 acquisition] was not relevant to the personal injury cases as against either Monsanto or Bayer.” Id.
6 at 2.
7 Bayer’s argument reads far too much into a short response to a related-case administrative
8 motion five years ago. It strains credulity to read this statement as a concession or express
9 admission. Proposed Intervenors are well within their rights to change their position on the
10 relevance of these materials after five years and multiple bellwether cases. As they explain, the
11 cases active in 2020, many of which began before Bayer acquired Monsanto, have almost all
12 resolved. Therefore, the current “wave” of MDL cases includes a greater share of individuals who
13 were exposed to Roundup after Bayer’s acquisition of Monsanto. Proposed Intervenors also
14 represent that in 2020, they believed Bayer may offer a global settlement amount to the MDL
15 plaintiffs after purchasing Monsanto. In sum, Proposed Intervenors reasonably did not foresee as
16 of mid-2020 that there would still be a significant volume of Roundup cases, or that these future
17 cases would need to address the changed reality on the ground of Bayer’s ownership and active
18 involvement in Monsanto’s Roundup business in intervening years.
19 IV. MODIFICATION OF PROTECTIVE ORDER
20 Having established the basis for intervention, Proposed Intervenors must next establish the
21 grounds for modification of the Protective Order. This is a high bar to clear, given that the
22 proposed modification would permit parties in thousands of pending and future lawsuits to access
23 Bayer’s documents.
24 A. Legal Standard
25 “Ninth Circuit precedent strongly favors disclosure to meet the needs of parties in pending
26 litigation.” Beckman Indus., Inc., 966 F.2d at 475. When a party to related or collateral litigation
27 requests modification of a Protective Order to use the relevant material in that litigation subject to
1 “reasonable restrictions,” the modification request “should generally be granted.” Foltz v. State
2 Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1132 (9th Cir. 2003) (citations omitted). “Allowing the
3 fruits of one litigation to facilitate preparation in other cases advances the interests of judicial
4 economy by avoiding the wasteful duplication of discovery.” Id. at 1131.
5 To warrant modification of the Protective Order, Proposed Intervenors must first
6 demonstrate “the relevance of the protected discovery to the collateral proceedings and its general
7 discoverability therein,” in order to show that “a substantial amount of duplicative discovery will
8 be avoided by modifying the Protective Order.” Id. at 1132. At this stage, the Protective Order
9 court makes only a “rough estimate of relevance,” and it need not decide “disputes over the
10 ultimate discoverability of specific materials covered by the Protective Order[,]” which are left to
11 be resolved by the court overseeing the related litigation. Id. at 1133.
12 Next, the court must “weigh [Defendants’] countervailing reliance interest . . . against the
13 policy of avoiding duplicative discovery.” Id. A party opposing modification bears the burden of
14 “making a ‘particular showing’ of good cause” and establishing “specific prejudice or harm now.”
15 Id. at 1131 (citation omitted). Any reliance interest “will be less with a blanket [protective] order,
16 because it is by nature overinclusive[,]” id. at 1133, and therefore “[a]ny legitimate interest . . . in
17 continued secrecy as against the public at large can be accommodated by placing [the collateral
18 litigants] under the same restrictions on use and disclosure contained in the original Protective
19 Order.” Id. (alterations in original) (citations omitted). Thus, where the discovery materials sought
20 are “relevant to the collateral suit” and any interest in confidentiality may be protected by placing
21 intervenors “under the same use and disclosure restrictions contained in the original Protective
22 Order[,]” modification of the Protective Order should be granted. Id. at 1134.
23 B. Discussion
24 While Proposed Intervenors establish the relevance and general discoverability of the
25 materials sought, Bayer has a weighty reliance interest counseling against modification.
26 1. Relevance
27 Proposed Intervenors more than meet their burden to show that materials currently covered
1 by the Protective Order in this matter are “sufficiently relevant to” Roundup litigation “that a
2 substantial amount of duplicative discovery will be avoided by modifying the Protective Order.”
3 Foltz, 331 F.3d at 1132. For many of the same reasons that inform the intervention analysis above,
4 this securities case and the Roundup cases raise an intertwined set of factual and legal issues.
Proposed Intervenors highlight materials produced in response to requests related to Bayer’s
5
acquisition of Monsanto, due diligence, and litigation risks associated with Roundup, including
6
reports, expert opinions, and advice used by Bayer before and after acquisition. Proposed
7
Intervenors also seek access to the deposition of eleven fact witnesses, including current and
8
former senior Bayer executives, board members, and general counsels.
9
Because Bayer did not participate in the MDL and has largely evaded discovery in
10
Roundup litigation, and Monsanto has objected to numerous Bayer-related document requests and
11
refused to produce responsive documents, these are documents previously inaccessible in
12
Roundup litigation. Therefore, the modification of the Protective Order would avoid “wasteful
13
duplication of discovery.” Foltz, 331 F.3d at 1131.
14
These documents are potentially relevant for many issues within Roundup cases. Many
15
Roundup cases assert claims for failure to warn, defective design, and negligence, among other
16
causes of action. Monsanto and Bayer’s knowledge, motives, and assessment of the exposure
17
associated with potential Roundup litigation before, during, and after merger due diligence bears
18
directly on whether they knew of risks about which they were obligated to warn plaintiffs in
19 Roundup cases. See Hardeman v. Monsanto Co., 997 F.3d 941, 969–70 (9th Cir. 2021) (finding
20 that, under California law, the plaintiff was “required to prove that the link between Roundup and
21 cancer was ‘known or knowable in light of the generally recognized and prevailing best scientific
22 and medical knowledge available at the time of manufacture and distribution[,]’” and rejecting
23 Monsanto’s argument that it was entitled to judgment as a matter of law because it “did not know
24 and could not have known that glyphosate caused cancer in 2012”), cert. denied, 142 S. Ct. 2834
25 (2022).
26 Monsanto and Bayer’s knowledge, motives, and assessment of the exposure associated
27 with potential Roundup litigation directly inform their potential liability for defective design and
1 negligence. See Pilliod v. Monsanto Co., 67 Cal. App. 5th 591, 619 & n.14 (2021) (finding that
2 “the question [of] whether Monsanto knew or should have known that Roundup or glyphosate
3 were carcinogenic” is probative of whether they are defectively designed); Hardeman, 997 F.3d
4 955 (“California common law requires a manufacturer to warn . . . [of] those risks ‘a reasonably
prudent manufacturer would have known and warned about’ (in negligence).”).
5
While it is true that different Roundup cases have been filed and resolved over many years,
6
apparently without obtaining these materials, that does not defeat their facial relevance. Bayer
7
argues throughout ten years of Roundup litigation, including tens of thousands of cases and dozens
8
of trials, no plaintiff has sought access to the documents at issue here. However, most of these
9
depositions did not exist until fact discovery was completed earlier this year. While the documents
10
certainly existed, Proposed Intervenors have explained their previous focus on Monsanto, rather
11
than Bayer, as the culpable party. Moreover, many plaintiffs harmed by Roundup and glyphosate-
12
containing products have not yet had their day in court. The relevance of these documents for
13
those future cases is not diminished by the choices made in prior proceedings brought by separate
14
plaintiffs.
15
Bayer is on stronger footing when it argues these documents are not discoverable because
16
they constitute privileged or protected as opinion work product.1 As the Ninth Circuit
17
acknowledged in Foltz, “a collateral litigant has no right to obtain discovery materials that are
18
privileged or otherwise immune from eventual discovery in the collateral litigation,” 331 F.3d at
19 1134. Here, Proposed Intervenors seek broad access to otherwise-privileged documents that Bayer
20 was compelled to produce after a finding of implied waiver. Such “waivers by implication differ
21 materially from the more traditional express waivers,” requiring access to be “closely tailored . . .
22 to the needs of the opposing party in litigating the [claim] in question.” Bittaker, 331 F.3d at 719.
23
24 1 The Ninth Circuit has not offered the exact standard for discoverability contemplated by Foltz.
Proposed Intervenors contend the criteria of Federal Rule of Civil Procedure 26 should govern.
25
See Fed. R. Civ. P. 26(b)(1) (describing the scope of discovery in federal litigation, which, similar
26 to state litigation, does not require information “within [the] scope of discovery [to] be admissible
in evidence to be discoverable”). This Order accepts this proposition as true.
27
1 Under this principle, where “a party complies with the court’s conditions and turns over privileged
2 materials, it is entitled to rely on the contours of the waiver the court imposes, so that it will not be
3 unfairly surprised in the future by learning that it actually waived more than it bargained for in
4 pressing its claims.” Id. at 721. The assigned Magistrate Judge in this case found implied waiver,
ordering a protected disclosure of Bayer’s due diligence materials with a designation of
5
“attorneys’ eyes only”.
6
For purposes of this Motion, the Court is tasked with “mak[ing] only a rough estimate of
7
relevance,” considering the “overlap in facts, parties, and issues between the suit covered by the
8
Protective Order and the collateral proceedings.” Foltz, 331 F.3d at 1132–33. Bayer has strong
9
arguments these documents and depositions are not admissible in future proceedings. However,
10
they are still potentially relevant and therefore “generally discoverable.” While Bayer may have to
11
work to protect its interests in other proceedings, this argument goes to prejudice, rather than to
12
the relevance of the discovery materials. Said another way, Bayer can certainly dispute the
13
admissibility of these documents in other proceedings but cannot dispute their relevance as to
14
Bayer and Monsanto’s knowledge of potential wrongdoing.
15
Proposed Intervenors have adequately explained the efficiency gains from modification of
16
the Protective Order. Bayer’s executives and corporate headquarters are in Europe, making
17
document transfer and deposition scheduling difficult. Furthermore, the parties here have already
18
expended resources translating large numbers of corporate documents from German into English.
19 Finally, Proposed Intervenors appeal to the efficiency inherent in the MDL form. Intervenors’
20 proposed modification streamlines discovery in hundreds if not thousands of proceedings.
21 2. Countervailing Interests
22 At this stage, it becomes clear that the relevance and efficiency gains put forth by
23 modifying the Protective Order are too slender of a reed to support the massive relief sought by
24 Intervenors. If Proposed Intervenors have their way, Bayer will be forced to bear the burden of
25 policing the ongoing compliance of an enormous population of dispersed litigants, in perpetuity.
26 Bayer estimates Intervenors seek expansion of the Protective Order to include over 67,000
27 pending lawsuits.
1 Proposed Intervenors argue the prejudice to Bayer is minimized because all recipients will
2 be bound by the “same restrictions on use and disclosure contained in the original Protective
3 Order.” Motion at 16 (quoting Foltz, 331 F.3d at 1133). However, this expansion is an altogether
4 different proposition from monitoring the docket of a single lawsuit, because it increases both the
burden of supervision and the risk of non-compliance. See In re SRAM Antitrust Litig., No. 4:07-
5
md-01819-CW, 2011 WL 5193479, at *3 (N.D. Cal. Nov. 1, 2011) (denying modification of
6
Protective Order that would “burden [the producing party] by requiring [it] to continue policing
7
access to confidential information disclosed in the present case”). Proposed Intervenors do not cite
8
to any case awarding such expansion. See Sherwin-Williams Co. v. JB Collision Servs., Inc., No.
9
3:13-cv-01946-LABWVG, 2017 WL 6027005 (S.D. Cal. Dec. 5, 2017) (expanding access to one
10
additional lawsuit); Hernandez v. Cnty. of Monterey, No. 5:13-cv-02354-BLF, 2021 WL 2166211
11
(N.D. Cal. May 27, 2021) (same); Optronics Techs., Inc. v. Ningbo Sunny Elec. Co., No. 5:16-cv-
12
06370-EJD, 2021 WL 2645804 (N.D. Cal. June 28, 2021) (permitting documents produced in a
13
class action to be reproduced in two related class actions).
14
Proposed Intervenors argue that such relief is warranted because Monsanto stipulated to a
15
Protective Order in the Roundup MDL that permits equivalent document-sharing. Monsanto,
16
however stipulated to those protections long before it was acquired, Bayer is not Monsanto, and
17
Bayer produced its documents subject to the Protective Order — not the much laxer stipulation
18
that governs the Roundup MDL. Thus, the terms that Monsanto agreed to years ago have no
19 bearing on whether Bayer will suffer prejudice from modification of the Protective Order in this
20 case. Furthermore, when Bayer agreed to the Protective Order in this case, it contemplated only a
21 limited, sealed disclosure to the securities Plaintiffs. Bayer persuasively argues the requested
22 modification would go miles beyond the agreement set forth in the previous Protective Order.
23 While Proposed Intervenors can justify modification as to Roundup MDL plaintiffs, modifying the
24 protective order to allow any past, present, and future plaintiffs bringing a Roundup case to use
25 these materials would too greatly prejudice Bayer.
26 V. CONCLUSION
27 Proposed Intervenors’ motion to intervene is granted. Additionally, Proposed Intervenors’
1 request to modify the Protective Order is granted as follows. The Protective Order is modified to
2 || permit the use of protected material, subject to reasonable restrictions, in MDL No. 2741.
3 Proposed Intervenors, as Co-Lead Counsel, are not the proper party to seek such a modification on
4 || behalf of every Roundup plaintiff in the country. Therefore, the relief granted is limited to
5 plaintiffs within the MDL.
6 Nothing in this Order should be interpreted to rule on the specific discoverability or
4 admissibility of protected material in individual cases. In particular, this Order does not address
g any potential waiver of privilege by Bayer Defendants. In order to use the protected material in a
9 collateral action, a party in the Roundup MDL must agree to the relevant restrictions and
10 requirements for handling protected discovery material, as laid out by the original Protective
Order. See Dkt. 138.
Proposed Intervenors are ordered to meet and confer with Bayer Defendants and
E subsequently file a proposed Protective Order, modified pursuant to this Order. Such a proposed
= Protective Order should be filed no later than November 13, 2025, notwithstanding any requested
4 modification of this deadline for good cause.
16 IT IS SO ORDERED.
Dated: August 15, 2025
19 MY 4 J d. —
20 RICHARD SEEBORG
1 Chief United States District Judge
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28 ORDER ON MOTION TO INTERVENE
CASE No. 20-cv-04737-RS