The Madison County Record Aug. 21, 2014, 11:39am

U.S. District Judge Phil Gilbert of Benton properly blocked the access of environmental groups to irrelevant documents that St. Louis lawyer Stephen Tillery filed in a suit against Syngenta Corporation, Seventh District judges ruled on Aug. 20.

They affirmed Gilbert’s decision to preserve seals on documents that Tillery had not cited in his pleadings.

Chief Justice Diane Wood wrote that Gilbert “explicitly declined to consider them after plaintiffs failed to offer a justification for their filing.”

“The public has no right to access these documents, which cannot conceivably aid the understanding of judicial decision making,” Wood wrote.

She wrote that “the presumption of public access turns on what the judge did, not on what the parties filed.”

The civil suit itself ended two years ago, after Tillery and Syngenta settled it for $105 million.

Tillery represented Greenville, Ill., and other Midwestern cities claiming pollution of their water supplies from atrazine, a weed killer that Syngenta produces.

When Syngenta moved to dismiss the suit, Tillery filed a response and attached 365 exhibits under seal.

Gilbert later unsealed about a third of the exhibits, and declared the rest extraneous.

The Environmental Law and Policy Center and the Prairie Rivers Network intervened and moved to unseal the exhibits, and Gilbert denied the motion.

The environmental groups appealed to the Seventh Circuit, where the Justices heard oral argument last September.

It took them nearly a year to decide that the groups had no right to see the exhibits.

“Tension between secrecy of discovery and disclosure of the record is inevitable; parties are tempted to use the latter to undermine the former,” Wood wrote.

“To resolve this tension, we have limited the presumption of public access to materials that affect judicial decisions.

“Requiring judges to vet every document in the record to determine whether it is covered by a privilege or some other basis of confidentiality would needlessly increase the district courts’ workload.”

“The increased risk of releasing commercially valuable information to the public also would induce litigants to resist disclosure in the first instance.

“Public access depends on whether a document influenced or underpinned the judicial decision.”

Wood wrote that the dispute reflects a shortcoming in the federal judiciary’s software.

She wrote that Gilbert recognized that trial courts usually remedy errant filing by striking unnecessary material from the record, but he thought he couldn’t strike the exhibits because plaintiffs incorporated them into a much larger document that they filed electronically.

“The judiciary’s software does not provide a means to erase subparts from a consolidated filing,” she wrote.

She wrote that although it may be impossible to delete a document, it remains possible to strike it.

“Software must reflect the judge’s decisions; it does not control them,” she wrote.

“This court regularly returns unfiled, irrelevant documents needlessly tendered.

“District judges have the same power.”

Justices Frank Easterbrook and David Hamilton concurred.

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