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03/27/91 MONSANTO COMPANY v. AETNA CASUALTY AND

SUPERIOR COURT OF DELAWARE, NEW CASTLE


March 27, 1991

MONSANTO COMPANY, A CORPORATION OF THE STATE OF DELAWARE, PLAINTIFF,
v.
AETNA CASUALTY AND SURETY COMPANY, ET AL., DEFENDANTS

Vincent J. Poppiti, J.

The opinion of the court was delivered by: Poppiti

ORDER

This 27th day of March, 1991, it appears that:

1. This matter is presently before the Court on plaintiff Monsanto Company's ("Monsanto") Exceptions to the Special Discovery Master's ("Master") May 30 decision regarding the Scope of Discovery Resulting from Defendants' Motion to Compel, and on defendants' exceptions to the May 30 decision regarding both Monsanto's Motion to Compel and defendants' Motion to Compel, insofar as it requires Monsanto to identify only supervisory or managerial employees.

2. In Monsanto Co. v. Aetna Casualty and Surety Co., Del. Super., C.A. No. 88C-JA-118, slip op. at 2, Poppiti, J. (December 7, 1989) (ORDER), I adopted the following standard of review for a decision of the Special Discovery Master:

The Court may modify or set aside the ruling of the Special Discovery Master only if the ruling is based on findings of fact that are clearly erroneous or if the ruling is contrary to law.

3. On May 30, 1990, the Master inter alia:

* Granted defendants' motion to compel production of certain documents, including non-privileged pleadings, depositions, discovery briefs, transcripts and other materials from litigation in the underlying claims.

* Allowed discovery of any information pertaining to "the risks or toxic capacity of certain chemicals or contaminants, whether characterized as 'products, wastes, or hazardous materials'" understanding that the "nexus will be what Monsanto knew or expected about whatever it was that caused the damage alleged in the underlying claims from wherever Monsanto gained that knowledge or expectation.

* Granted defendants' motion with respect to information relating to defense costs claimed by Monsanto.

* Denied defendants' motion with respect to the identity of all personnel with knowledge of relevant facts, by limiting the discovery to supervisory and managerial personnel with knowledge.

* Granted but limited Monsanto's request for discovery of drafting history, regulatory filings, and special research and marketing groups to those documents "in existence during the period in which defendants made a designated decision applied to the specific ambiguous or disputed policy language.

* Granted defendants' motion with respect to information relating to the defense costs claimed by Monsanto.

4. Before addressing certain specific exceptions to the Master's May 30 decision, I am compelled once again to comment on the role of the Special Discovery Master. In addition to exercising discretion when deciding specific discovery matters, the Special Discovery Master has the authority to do all acts and to direct all proceedings in the matters before him. Monsanto Co. v. Aetna Casualty and Surety Co., C.A. No. 88C-JA-118, slip. op. at 3, Poppiti, J. (December 4, 1990)(ORDER), Monsanto Co. v. Aetna Casualty and Surety Co., C.A. No. 88C-JA-118, Poppiti, J. (January 9, 1990)(ORDER); Super. Ct. Civ. R. 114. To that end, the Master in his broad discretion may compel discovery of any information which he determines appears "reasonably calculated to lead to the discovery of admissible evidence." Super. Ct. Civ. R. 26(b)(1).

5. I am satisfied that the Master's decision relating to categories specified at page 14 of his decision properly articulates categories of information which the defendants should be entitled to explore in their quest for information about what Monsanto knew or expected about damage causing chemicals or contaminants. I am further satisfied that the specified information satisfies the relevancy standard which I have articulated in National Union Fire Insurance Company of Pittsburgh v. Stauffer Chemical Company, Del. Super., No. 87C-SE-11, slip op. Poppiti, J. (November 9, 1990). In this regard, I am satisfied that the ruling is not contrary to law.

At the same time, I am mindful that the Master did not decide Monsanto's assertion of burden, but rather encouraged the parties to meet and confer in order to tailor their discovery needs. While I have been advised that the parties have made substantial progress in this regard, it appears that the parties have not reached full agreement. Unfortunately, the issue of burden which was not decided in the first instance must be and is therefore HEREBY REFERRED back to the Master for final decision.

6. I am satisfied that the Master's discretionary decision limiting discovery of the identities of former employees to supervisory and managerial personnel with knowledge is neither clearly erroneous nor contrary to law. The Master has the authority to exercise discretion in these matters. See supra paragraph 4. In this regard I conclude that a supervisor is one who "oversees with power of discretion." Egner v. States Realty Co., Minn. Supr., 26 N.W.2d 464, 472 (1947); Bacigalupo v. Fleming, Va. Supr., 102 S.E.2d 321, 325 (1958). Supervision does not necessarily exclude all manual work. Peterson v. Time Indemnity Co., Wis. Supr., 140 N.W. 286, 282 (1913). For purposes of this Order, therefore, I view the term supervisory personnel broadly to include all employees at any level with power of direction over one or more employees.

I am confident that the Master's decision, construed in accordance with this order, will allow defendants to discover the identities of those Monsanto employees with first-hand knowledge relevant to this suit. If the information obtained from supervisory personnel necessitates discovery of non-supervisory level employees, additional discovery of those individuals may be taken with leave of the Master.

7. Having reviewed the entire record before the Master, including all submittals by the parties, I am satisfied that the remainder of the Master's decision is neither based on clearly erroneous findings of fact, nor is it contrary to law. I therefore decline to reconsider or modify the remaining portions of the Master's decision of May 30, 1990. Those exceptions to the Master's ruling which have not been otherwise addressed in this order are hereby dismissed, and the Master's decision is affirmed.

8. Finally, I want to re-emphasize a comment I made in a letter order in Monsanto v. Aetna, C.A. No. 88C-JA-118, Poppiti, J. (February 21, 1991) namely "requests for clarification which are not directed towards the substance of a decision may be taken to the SDM in the first instance." I want the benefit of Master Rubenstein's final decision in any matter brought to his attention before I am asked to review it.

IT IS SO ORDERED.

19910327

© 1997 VersusLaw Inc.



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