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Timm Adams, et al v. United States of America

December 22, 2010

TIMM ADAMS, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER ON DISCOVERYOF LOSS AND NON-LOSSCROPS AND FIELDS

INTRODUCTION

The Court has before it DuPont's motion to compel plaintiffs to provide complete discovery responses and documents. The BLM joins in the motion. The motion is fully briefed and at issue. For the reasons explained below, the Court will deny the motion.

ANALYSIS

In its motion, DuPont seeks to compel plaintiffs to provide information for fields and crops that plaintiffs farmed but that were not claimed in this suit. The Court will refer to these as non-loss crops and non-loss fields. For example, if a farmer is only seeking recovery for his loss of sugar beets and potatoes, his wheat crop (for which he is claiming no damage) would be a non-loss crop. Similarly, if the farmer is seeking recovery for lost crops only on his fields 1 and 2, his field 3 would be a non-loss field.

DuPont provided a helpful table to focus on the information they seek and do not seek.

Data on price, yields, etc. for . . . DuPont Position Plaintiffs' Position Loss Crops on Loss Fields. Not seeking in this motion.

Loss Crops on Non-Loss Is seeking. Provided in response to Fields. Questionnaire No. 53 Non-Loss Crops on Loss Is seeking. Object -- not Fields. discoverable. Non-Loss Crops on Non-loss Is seeking. Object -- not Fields. discoverable.

Scope of Discovery

The Court may order the "discovery of any matter relevant to the subject matter involved in the action." Fed.R.Civ.P. 26(b)(1). Relevant evidence is any evidence tending to make the existence of any consequential fact "more probable or less probable than it would be without the evidence." Federal Rule of Evidence 401. Although viewed in light of Rule 401, "the question of relevancy is to be more loosely construed at the discovery stage than at the trial . . . ." See

8 Wright, Miller, and Marcus, Federal Practice & Procedure, § 2008 at p. 125 (2010). That the evidence might be inadmissible does not preclude discovery so long as the request "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).

DuPont seeks information on loss crops grown on non-loss fields. Plaintiffs object, claiming that the information is irrelevant and that the request is overly burdensome.

To evaluate the relevance of the request, assume that a farmer grew sugar beets on 3 adjoining fields in a particular year, but only seeks recovery for Oust damage in field 1. Sugar beets are very sensitive to Oust and plaintiffs claim that Oust traveled long distances on wind-borne dust. Evidence that fields 2 and 3 -- the non-loss fields -- suffered similar reductions in yields and quality would make it more probable that Oust caused the damage on field 1. Conversely, evidence that fields 2 and 3 produced record yields and quality would make it less probable that Oust caused the damage to field 1. Evidence is relevant that makes a consequential fact -- here Oust damage on a loss field -- more or less probable. Because the results of loss crops grown on non-loss fields makes Oust damage on loss fields more or less probable, the evidence is relevant and discoverable. This point is driven home by the plaintiffs' own use of yields on loss crops from non-loss fields in Cassia County to show probable yields.

While DuPont claims it has not received this information on loss crops on non-loss fields, plaintiffs respond that their answer to Questionnaire No. 53 does "provide information on loss crops grown on non-loss fields . . . and should be complete unless the information simply does not exist." See Plaintiffs' Brief (Dkt. 1764) at 17. Questionnaire No. 53 asks each plaintiff to identify the loss crops it grew on non-loss fields. See Exhibit BB (Dkt. 1748-32). Plaintiffs provide a copy of the Questionnaire for plaintiff Scott Stevenson where Questionnaire No. 53 appears fully answered, and offer it as a representative sample of the remaining plaintiffs' questionnaire answers. The Court will take ...


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