Case 1:10-cv-01045-RMB-JS Document 356 Filed 07/09/12 Page 1 of 3 PageID #: 13071 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 July 6, 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: On May 16, 2012, the Court Ordered Bayer to produce for the Courts in camera inspection its counsels summaries and notes regarding their interviews of Drs. Timmis and Streber [D.I. 299]. Bayer produced the documents on May 31, 2012, with the Declaration of Jay I. Alexander, Esquire. For the reasons to be discussed, the Court denies Dows request that the documents, or summaries thereof, be produced. At to the interview summaries and notes (Tabs A, B, C, E), Dow acknowledges it is only seeking discoverable facts. Further, it is not disputed that core work-product encompassing the mental impressions, conclusions, opinions or legal theories of an attorney are afforded near absolute protection from discovery. In re Cendant Corp. Sec. Litig., 343 F.3d 658, 664 (3d Cir. 2003). After reviewing the documents at issue, the Court finds that the facts included in the documents are inextricably intertwined with the core work product of Bayers attorneys and they cannot be

Case 1:10-cv-01045-RMB-JS Document 356 Filed 07/09/12 Page 2 of 3 PageID #: 13072 July 6, 2012 Page 2 separated. Bayers notes are replete with counsels opinions, impressions, strategy, etc., and the Court finds that it is not feasible or practical to separate the core work product from the remainder of the documents. Further, Bayers interviews appear to be of a targeted nature which would reveal Bayers strategy regarding the issues it was pursuing. See In re Intel Corp. Microprocessor Antitrust Litigation, 258 F.R.D. 280, 294 (D.Del. 2008). For these reasons, therefore, Dows request for Bayers documents is denied. See Hickman v. Taylor, 329 U.S. 495, 513 (1947)(forcing an attorney to disclose notes and memoranda of witnesses oral statements is disfavored because it tends to reveal the attorneys mental processes); In re Grand Jury Investigation, 599 F.2d 1224, 1231 (3d Cir. 1979)(Memoranda summarizing oral interviews ... may indirectly reveal the attorneys mental processes, his opinion work product.... [S]pecial considerations ... must shape any ruling on the discoverability of interview memoranda.... [S]uch documents will be discoverable only in a rare situation.). U.S.S.E.C. v. Sentinel Management Group, Inc., 2010 WL 4977220, at *8 (N.D. Ill. 2010)([E]ven where the attorneys summary of a witnesss oral statements appears to be entirely factual, the attorneys mental processes are necessarily disclosed to some degree.).1 See also id. at *7 (there is no distinction between asking for the notes of an interview or an interrogatory response summarizing the interview).

1. To the extent the request is made, and to the extent not already done, the Court also rules that Bayer is not required to summarize the facts from its interviews in an interrogatory answer. As noted in Hickman, 329 U.S. at 512-13: [F]orcing an attorney to repeat or write out all that witnesses have told him and to deliver the account to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is served by such production. The practice forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witnesses remarks. Such testimony could not qualify as evidence; and to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness. The standards of the profession would thereby suffer.

Case 1:10-cv-01045-RMB-JS Document 356 Filed 07/09/12 Page 3 of 3 PageID #: 13073 July 6, 2012 Page 3 With regard to counsels notes on the pages of Dr. Strebers notebook (Tab D), the Court rules they are also non-discoverable for the same reasons as discussed above. Accordingly, for the foregoing reasons, it is hereby ORDERED that defendants request for the production of the summaries or notes of defense counsels interviews of Drs. Timmis and Streber, or summaries thereof, is DENIED. Very truly yours,

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