UNITED STATES DISTRICT COURT FOR THE
 

DISTRICT OF NEW HAMPSHIRE
 

Stonyfield Farm, Inc. 

v. Civil No. 08-cv-488-JD 

Agro-Farma, Inc. 

o R D E R 

Stonyfield Farm, Inc. brought suit against Agro-Farma, Inc., 

alleging that Agro-Farma delivered defective organic Greek yogurt 

to Stonyfield in breach of its implied warranty and contract and 

in violation of the New Hampshire Consumer Protection Act. AgroFarma brought counterclaims against Stonyfield and third-party 

claims against Schrieber Foods, Inc., alleging, among other 

claims, misappropriation of trade secrets. Agro-Farma moves to 

strike portions of Stonyfield's motion for partial summary 

judgment, challenging the declaration of one of Stonyfield's 

attorneys that was submitted in support of the motion. 

As an initial matter, Stonyfield notes that Agro-Farma did 

not contact its attorneys before filing the motion to strike and, 

therefore, did not attempt to obtain its concurrence, as required 

by Local Rule 7.1(c). Agro-Farma did not respond. Local Rule 

7.1(c) serves an important purpose of conserving the court's 

resources for matters that are actually disputed. Given the 

nature of Agro-Farma's motion and Stonyfield's objection, 

however, concurrence was not likely. Therefore, the court will 

Case 1:08-cv-00488-JD Document 115 Filed 11/03/10 Page 1 of 5
consider Agro-Farma's motion in this instance despite its failure 

to comply with Local Rule 7.1(c). 

Discussion 

Stonyfield submitted the declaration of one of its 

attorneys, Brian D. Thomas, who states that no documents were 

produced in discovery which show that the trade secrets AgroFarma asserts are ~not generally known or readily ascertainable 

by proper means." Agro-Farma contends that Thomas was not 

disclosed as a fact or expert witness, that he is not qualified 

to give an opinion on the trade secret issue, and that his 

declaration violates Federal Rule of Civil Procedure 56(e). 

Alternatively, Agro-Farma asks that if the declaration is 

allowed, the law firm representing Stonyfield should be 

disqualified from representation. 

In response, Stonyfield states that it offered Thomas's 

declaration to satisfy its obligation of candor to the tribunal 

under the comments from the 2004 ABA Model Code to Rule 3.3. 

Stonyfield reasons that it would be required to disclose any 

documents produced in discovery that supported Agro-Farma's trade 

secret claim and, therefore, conversely it is required to 

disclose that no such documents exist. Based on that perceived 

duty, Stonyfield argues that it was required to support its 

assertion about the absence of documents supporting the trade 

secret claim with the attorney's declaration. Stonyfield 

2
 

Case 1:08-cv-00488-JD Document 115 Filed 11/03/10 Page 2 of 5
contends that Thomas is not offering an expert opinion or facts 

on the trade secret issue but instead is merely establishing that 

no documents produced during discovery ~establish that AgroFarma's alleged trade secrets are not generally known or readily 

ascertainable by proper means." 

~Summary judgment is appropriate only when there is no 

genuine issue of any material fact and the moving party is 

entitled to judgment as a matter of law." Evans Cabinet Corp. v. 

Kitchen Int'l, Inc., 593 F.3d 135, 140 (1st Cir. 2010) (citing 

Fed. R. Civ. P. 56(c)). A motion for summary judgment can be 

based on either undisputed material facts that entitle the moving 

party to judgment as a matter of law or an assertion that the 

nonmoving party with the burden of proof cannot prove an 

essential element of its claim. Sensing v. Outback Steahouse of 

Fl., LLC, 575 F.3d 145, 152 (1st Cir. 2009). In either case, a 

party opposing a properly supported motion for summary judgment 

must present competent evidence of record that shows a genuine 

issue for trial. See Anderson v. Liberty Lobby, Inc., 477 u.S. 

242, 256 (1986). 

In this case, Stonyfield is challenging Agro-Farma's ability 

to prove its misappropriation of trade secrets claim. 

Stonyfield asserts that Agro-Farma cannot show that its asserted 

trade secrets are ~information. . that (a) Derives independent 

economic value, actual or potential, from not being generally 

known to, and not being readily ascertainable by proper means by, 

3
 

Case 1:08-cv-00488-JD Document 115 Filed 11/03/10 Page 3 of 5
other persons. "RSA 350-B:l,IV. In support, Stonyfield 

offers Thomas's declaration that no documents produced during 

discovery in this case show that the asserted trade secrets meet 

the quoted definition. 

The asserted trade secrets in this case pertain to yogurt 

making. Although Stonyfield establishes Thomas's familiarly with 

discovery in the case, it does not address the question of how 

Thomas would know whether particular documents show that the 

asserted yogurt making secrets were ~not generally known to, and 

not being readily ascertainable by proper means by, other 

persons." Thomas was not disclosed as an expert in yogurt 

making, and Stonyfield denies that Thomas is an expert. 

Therefore, Thomas's opinion that no documents were disclosed in 

discovery that pertain to whether Agro-Farma's asserted yogurt 

making secrets meet the statutory definition has little if any 

value. 

Stonyfield's reliance on Rule 3.3 is confusing at best. 

Stonyfield contends that the record lacks proof that Agro-Farma's 

asserted trade secrets meet the definition provided by RSA 350­

B:l. Under Federal Rule of Civil Procedure 11(b), counsel's 

factual and legal statements in the motion and supporting 

memorandum must be warranted based on the applicable law and 

evidence of record. Therefore, Thomas's declaration to the same 

effect is unnecessary. 

Further, Stonyfield speculates that instead of relying on 

the record the parties provide for and against the motion for 

4
 

Case 1:08-cv-00488-JD Document 115 Filed 11/03/10 Page 4 of 5
partial summary judgment, the court might ask whether any other 

documents produced in discovery could prove Agro-Farma's case. 

Stonyfield misunderstands the process. As is noted above, when 

properly supported motion for summary judgment is filed, the 

opposing party must provide competent evidentiary support to 

a genuine issue of fact that requires a trial. The court then 

decides the motion based on the record presented. 

Conclusion 

For the foregoing reasons, the defendant's motion to strike 

parts of the plaintiff's motion for partial summary judgment 

(document no. 94) is granted. The court will not consider the 

declaration of Brian D. Thomas submitted in support of the 

partial motion for summary judgment. 

SO ORDERED. 

A. DiClerico, J 

States District 

INovember 3, 201 0 

cc:	 Jessica L. Copeland, Esquire 

Peter S. Cowan, Esquire 

Ryan K. Cummings, Esquire 

Thomas J. Donovan, Esquire 

Robert J. Fluskey, Jr., Esquire 

Edward A. Haffer, Esquire 

Kevin M. Kearney, Esquire 

Shelagh C.N. Michaud, Esquire 

Vincent Pozzuto, Esquire 

Arnold Rosenblatt, Esquire 

Case 1:08-cv-00488-JD Document 115 Filed 11/03/10 Page 5 of 5