A recent Law 360 story by Emily Field, “Lead Attys Want Discovery Sanctions in Bayer MDL Fee War,” reports that lead attorneys who represented farmers in litigation over Bayer’s genetically modified rice doubled down on their sanctions bid against other plaintiffs’ law firms in a fee battle in Missouri federal court, saying that the firms continue to deny the existence of certain electronic data.

The lead attorneys, who achieved a $750 million settlement for farmers claiming Bayer's genetically modified rice contaminated their crops, are seeking sanctions against Goldman Phipps PLLC and other related firms and accused them of not contributing to a common benefit fund established to cover the lead attorneys' fees and costs.

Co-lead MDL counsel Don Downing and his firm Gray Ritter & Graham, who are leading the class action suit against the other firms, said they’ve been left with little choice but to seek sanctions against the Goldman Phipps firms, given their balking at fulfilling discovery obligations despite a court order and their “flippant response” to those failures.

The Goldman Phipps firms have argued that they’ve complied with discovery regarding a database of time and billing records, and that their expert witness, Michael Brychel, handed over all existing database materials, including certain “codes” that Gray Ritter believes are missing, according to court documents.   But that’s belied by Brychel’s own declaration, which unequivocally establishes that this “coding” is stored in electronic data tables, Gray Ritter said, even though Goldman Phipps claims Gray Ritter is seeking something that doesn’t exist.

“Similarly, defendants claim that Brychel ‘did not testify that those “codes” exist in a database,’” Gray Ritter said.  “But defendants’ statement that these codes do not ‘exist in a database’ is a clear red herring, as by definition, a ‘database’ is nothing more than a collection of related data tables.”

The case dates back to 2013 when Gray Ritter sued law firms and attorneys including Goldman Phipps, lead lawyer Martin J. Phipps, two other Goldman Phipps-related firms and others for failing to pay portions of state court settlements reached with Bayer into a trust established to cover the lead attorneys' fees and costs.

Gray Ritter brought its sanctions motion on Jan. 12 against the Goldman Phipps firms and Martin Phipps, saying their failure to produce the time and billing database records was a direct violation of a December court order.  The firm asked the court to find the Goldman Phipps firms in civil contempt and to strike the testimony of Brychel.  Gray Ritter requested the immediate production of Brychel’s database with all pertinent codes and a fine of $1,000 per day for any delay after a contempt finding.

The Goldman Phipps firms have asked U.S. District Judge Catherine Perry to deny the sanctions motion and to award them $5,000 in attorneys’ fees for having to address the motion.  But Gray Ritter shot back at this request, saying Goldman Phipps has cited no legal support, and regardless, there are no facts backing the claim that the sanctions motion was frivolous.  “All plaintiffs have ever sought is the electronic data Brychel used to form his opinions in this case, in a reasonably usable electronic form,” Gray Ritter said.

The case is Downing et al. v. Goldman Phipps PLLC et al., case no. 4:13-cv-00206, in the U.S. District Court for the Eastern District of Missouri.