Bader Farms, Inc. v. Monsanto Company, 1:16-cv-00299

Bader Farms sued Monsanto alleging Monsanto representatives conspired with farmers to instruct illegal spraying of old dicamba on dicamba-resistant seed; Bader relied on expert Dr. Ford Baldwin for support.
Baldwin told Bader he heard at an Arkansas State Plant Board hearing that a farmer (Donald Masters) testified a Monsanto representative instructed him to spray old dicamba; Baldwin also relied on other statements from the agricultural community and called the practice “common knowledge.”
Monsanto served Baldwin with a deposition notice and Rule 45 subpoena seeking the factual basis for Baldwin’s claim that Monsanto representatives told farmers to illegally spray dicamba.
Bader moved to quash the subpoena and sought a protective order, arguing deposition of their retained expert outside the expert-discovery schedule (Rule 26(b)(4)) and other Rule 45(d)(3) grounds.
Monsanto argued Baldwin is deposable as a fact witness to the extent he acquired relevant facts before being retained as an expert; Monsanto limited its inquiry to Baldwin’s pre-retention factual basis, not his expert opinions.
The court denied Bader’s motion, holding Rule 26(b)(4) does not bar deposing an expert about facts learned before retention and none of the Rule 45 factors justified quashing the subpoena.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 26(b)(4) bars deposing a retained expert outside expert schedule	Bader: An expert may not be deposed outside expert-discovery schedule	Monsanto: If expert acquired facts before retention, she may be deposed as a fact witness	Court: Rule 26(b)(4) does not prohibit deposing expert about facts learned before retention
Whether subpoena requires disclosure of privileged/protected matter	Bader: Baldwin’s knowledge/opinions should be protected until expert disclosures; deposition would invade expert prep	Monsanto: Seeks only pre-retention factual basis, not expert opinions	Court: Request is limited to non-privileged, pre-retention facts; not protected
Whether subpoena imposes undue burden or duplication	Bader: Multiple depositions and burden of expert preparation; request too broad	Monsanto: Deposition is narrow—only basis for specific factual claim	Court: No undue burden; not duplicative because later expert deposition would cover opinions
Whether subpoena fails to allow reasonable time / procedural infirmities	Bader: Timing tied to Case Management Order expert schedule	Monsanto: Pre-retention fact testimony is not governed by expert schedule	Court: Timing objection fails; pre-retention fact testimony may be taken now

Cook v. Kartridg Pak Co., 840 F.2d 602 (8th Cir. 1988) (district court has wide discretion in discovery matters)
Gladfelter v. Wal-Mart Stores, Inc., 162 F.R.D. 589 (D. Neb. 1995) (discovery rules construed broadly to provide parties relevant information)
Nelco Corp. v. Slater Elec. Inc., 80 F.R.D. 411 (E.D.N.Y. 1978) (retained expert may be treated as ordinary witness for facts learned as an actor or viewer)