UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF

MITCHELL H. COHEN COURTHOUSE 1 John F. Gerry Plaza, Room 2060 CAMDEN, NJ 08101-0887 (856) 757-5446

JOEL SCHNEIDER
UNITED STATES MAGISTRATE JUDGE

LETTER ORDER ELECTRONICALLY FILED March 1, 2012

Frederick L. Cottrell, III, Esquire Stephen M. Ferguson, Esquire Anne Shea Gaza, Esquire Jeffrey L. Moyer, Esquire Richards, Layton & Finger, PA One Rodney Square 920 N. King Street Wilmington, DE 19801 Andrew Colin Mayo, Esquire Steven J. Balick , Esquire Ashby & Geddes 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899 Re: Bayer CropScience AG v. Dow Agrosciences LLC Civil Action No. 10-1045 (RBK/JS)

Dear Counsel: This Letter Order addresses DAS's request to compel Bayer to answer its Seventh Set of Requests for Admission ("RFA").1 The Court received Bayer's response and held oral argument on February 27, 2012. For the reasons to be discussed, DAS's request is DENIED. According to DAS, the RFA at issue address "monooxygenase" enzymes and "dioxygenase" enzymes. DAS argues that Bayer did not answer its RFA as drafted and instead substituted its own definitions for those DAS supplied. Bayer argues it appropriately responded to DAS's RFA by qualifying its responses even though the RFA seek irrelevant information, legal conclusions, they are premature, and they include misleading and vague definitions.

1. Except for some definitions, the seventh set is identical to sets DAS previously served that were responded to by Bayer. In essence, therefore, DAS is asking Bayer to supplement its previously served responses.

February 29, 2012 Page 2 As the parties know, pursuant to Fed. R. Civ. P. 36(a), they may serve RFA asking a party to admit or deny the truth of a matter relevant to the action. Fulhorst v. United Technologies Automotive, Inc., 1997 WL 873548 (D.Del. Nov. 17, 1997). The purpose of RFA is to facilitate proof and to narrow the issues. Tulip Computers International B.V. v. Dell Computer Corporation, 210 F.R.D. 100, 107 (D.Del. 2002). Pursuant to Rule 36(a)(1) a RFA addressing facts, the application of law to facts, or opinions about either are appropriate. However, RFA that seek legal conclusions are not appropriate. Fulhorst, at *2; Tulip, 210 F.R.D. at 108. Approximately sixty-four RFA are at issue. According to the Court's analysis, all but seven (333, 334, 335, 338, 339, 341 and 342) includes specific references to "monooxygenase" and "dioxygenase." If not the most important issue in the case, the Court's construction of "monooxygenase" is undoubtedly a central issue in the litigation. The Court rules that Bayer is not required to further respond to DASs RFA referring to the two key terms at issue until the Court issues its claim construction. See Tulip, 210 F.R.D. at 108 ("[R]equests directed towards applying the claims of the patent or requiring application of the claims prior to any Markman ruling are not the application of law to facts relevant to the case, but in reality are requests for legal conclusions and therefore, improper"). As to "dioxygenase, the term is inexorably intertwined with "monooxygenase." The Court finds that it would be unduly prejudicial to Bayer to answer DAS's RFA as to dioxygenase before the Court issues its claim construction as to monooxygenase. The Court rules that DAS's qualified answers to DASs RFA referencing the two key terms is sufficient for present purposes and does not have to be supplemented before the Court's Markman ruling. As to the remaining seven RFA, the Court also rules that no further supplement is necessary at this time. These requests are closely intertwined with the Court's future Markman ruling, they involve claims to be construed, and/or a further supplement at this time will not materially advance the litigation. The Court finds good cause to exercise its discretion pursuant to Fed. R. Civ. P. 26(b)(C) and 26(c)(1) not to require Bayer to supplement its responses at this time.

February 29, 2012 Page 3 Accordingly, for all the foregoing reasons, it is hereby ORDERED that DAS's request for an Order requiring Bayer to respond to its Seventh Set of Requests for Admission without qualification is DENIED. This Order is entered without prejudice to DAS's right to renew its request after the Markman ruling is issued. Very truly yours,

s/Joel Schneider
JOEL SCHNEIDER United States Magistrate Judge JS:jk cc: Hon. Rene Marie Bumb