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Cases could yield grower, location of GM wheat find








By MATEUSZ PERKOWSKI



Capital Press



The identity of an eastern Oregon farmer who discovered unauthorized biotech wheat in his field could be disclosed in litigation against the Monsanto Co., according to an attorney suing the biotech developer.



The grower's testimony may prove important in lawsuits against Monsanto, which developed the biotech wheat, especially since the company is suggesting the transgenic seeds were deliberately sown, said Kim Stephens, who is representing several farmers.



"It could be (relevant) if Monsanto insists on its sabotage theory," he said.



Since the USDA announced that restricted genetically engineered wheat was found in a northeast Oregon field, there have been seven lawsuits filed against Monsanto in federal courts in Oregon, Washington, Idaho and Kansas.



The lawsuits accuse the biotech developer of negligence in its development of glyphosate-resistant "Roundup Ready" wheat, and most seek class action status that would allow other wheat growers to join the litigation.



Monsanto has said the presence of the biotech wheat in one field isn't sufficient to justify lawsuits and claimed the litigation was spurred by "tractor-chasing lawyers."



At this stage, the litigation mostly consists of preliminary procedural steps, but the "discovery" process of examining evidence is likely to occur within two or three months unless Monsanto tries delay tactics, Stephens said.



Attorneys who represent the farmers have filed a petition to have the lawsuits consolidated into one case, he said.



The plaintiffs must agree upon a pre-trial schedule before they can ask Monsanto to turn over evidence, but they've already asked Oregon State University -- which initially tested the biotech wheat -- for information, Stephens said.



Documents produced by OSU could contain information like the farmer's name or the precise location of the field where the biotech wheat was found, he said.



Capital Press was unable to reach Tim Bernasek, an attorney for the anonymous farmer, as of press time.



For the farmer's identity to be turned over during the discovery process, it must be pertinent to the underlying dispute in the case, said Jay Tidmarsh, a law professor specializing in civil procedure and complex litigation at the University of Notre Dame.



"You can't discover something if it's not relevant," he said.



Information about Monsanto's field trials and controls intended to keep the biotech wheat from escaping would probably be relevant during discovery, if that's a theory of how the unauthorized release occurred, Tidmarsh said.



Preliminary evidence turned up during USDA's ongoing investigation into the release probably wouldn't be turned over during discovery, as the government can generally shield investigative information from such disclosure, he said. However, a final report on the investigation would likely be discoverable.



Since the grower's identity is known by OSU, then it may be discoverable even if it's part of USDA's investigation, said Stephens. "It doesn't seem like the same kind of exception will apply."



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