Trade groups argue to quash depositions in atrazine case

Amelia Flood Aug. 26, 2010, 2:50am



The University of Chicago, Illinois Farm Bureau and other big trade groups are seeking to kill a series of subpoenas and deposition notices filed in a class action against various makers and distributors of atrazine.

At a hearing Wednesday in Madison County, attorneys for the groups, which also include the Heartland Institute, Illinois Fertilizer and Chemical Association (IFCA) and Chemical Council of Illinois (CCI), argued that discovery requests and deposition notices before them violate their First Amendment rights.

Lead plaintiff Holiday Shores countered that the groups cannot claim everything is privileged under the First Amendment and that it has a right to conduct depositions on issues raised by affidavits the third parties filed to support the initial motions to quash.

At the end of the hearing, Circuit Judge Babara Crowder told the parties she would try to rule as soon as possible.

Holiday Shores and the other named plaintiffs in the case are seeking to lead a class action suit against Syngenta and others, claiming that atrazine runs off farm fields, contaminates their drinking water supplies and that it causes medical problems in human beings.

The U.S. Environmental Protection Agency has ruled that atrazine is safe in drinking water up to three parts per billion.

The plaintiffs' suits allege that even smaller amounts cause the health issues.

There are six such proposed class actions pending in Madison County, and none of the 2004 cases have been certified as yet.

The Holiday Shores legal team, Stephen Tillery, Christie Deaton, and Christine Moody, filed a nearly identical class action in federal court in East St. Louis earlier this year.

That suit does not include the named plaintiffs in the Madison County cases as class members - yet.

It does however include claims by other Illinois water providers as well as claims from Missouri, Kansas and other states.

Syngenta has asked Crowder to either dismiss the Madison County case or to stay it until the younger federal suit is resolved.

Crowder has had that move under advisement. As of Wednesday morning, she had not entered an order resolving the issue.

The trade groups and Don Coursey, a University of Chicago faculty member, received the initial subpoenas over the July 4 weekend.

They then moved, together with Syngenta, to quash.

Crowder heard arguments on the matter July 19.

She gave the parties time to file supplemental materials to their positions.

Tillery then issued the notices of depositions related to affidavits of various employees of the groups.

The trade groups and Coursey moved to quash the notices of depositions.

Tillery also moved for sanctions against the University of Chicago earlier this month.

Syngenta attorney Kurtis Reeg told Crowder at the Wednesday hearing she could nip the issues in the bud by ruling on the pending move to stay or dismiss the suits.

If the judge was not ready to do that, Reeg argued she should rule on the motions to quash the third party subpoenas first in order to prevent future problems.

"If we proceed with these depositions, we may well end up back here right after the depositions had started," Reeg said. "It's a procedural mess."

He cited the groups' rights under the First Amendment rights, sentiments echoed by the trade groups' attorneys.

Edward Dwyer, representing the IFCA and CCI, told Crowder that it was unclear as to what way the plaintiff could get around those constitutional protections.

"What does it cover in communications and for documents?" Dwyer asked.

Tillery challenged their positions.

"They can't have it both ways," Tillery told Crowder.

He argued that the deposition issue could be dealt with before she ruled on the subpoenas because the depositions related to materials filed to support the original motions to quash that were hearsay.

"The way to clear that up is to take the depositions," Tillery said. "These are all hearsay statements."

Tillery also blasted the trade groups' and Syngenta's interpretation of the First Amendment protections.

"What they are doing here flies in the face of what Illinois rules require," Tillery said. "They say that this First Amendment right entitles them not to turn over anything. They can't say that every single document is subject to the First Amendment. That's ridiculous."

Tillery suggested that a protective order or privileged disclosure for Crowder's review could fix the situation if needed.

When Crowder questioned the trade groups' about their positions as to the First Amendment protection's scope, Dwyer told her that until the court gave his client direction, he would claim its documents were all protected.

"So I'm just supposed to imagine what your client has in its files?" the judge asked.

The hearing was rounded out with arguments from Tillery and University of Chicago's attorney, Mary Lamb, over the university's move to quash the requests related to the work of Don Coursey, a faculty member.

Lamb argued that any work Coursey did on atrazine was done in his role outside of the institution as a consultant for Syngenta.

The University claims it does not own or control any of his work products and therefore does not have to submit to Tillery's requests.

"The plaintiff can get the information directly from Dr. Coursey," Lamb argued.

Lamb also told Crowder Tillery's move for sanctions was improper.

Tillery countered that he was not asking for sanctions because the university didn't want to turn over the documents.

He told Crowder he'd moved for the penalty because the university wouldn't even look to see if the documents were on its servers.

"She just absolutely refuses to do it," Tillery said of Lamb.

Reeg represents Syngenta in both the state and federal class action. He also represents United Agri-Products in another Madison County atrazine suit.

Dwyer and Jennifer Martin of Hodge Dwyer & Driver of Springfield represent both the CICI and IFCA.

Daniel Donahue and others represent Coursey and the Heartland Institute.

Lamb represents the University of Chicago.

V Fluence, another third party in the suit, is represented by Larry Helper.

Christopher Byron represents the Farm Bureau.

Tillery and his team represent Holiday Shores and the proposed classes in all of the Madison atrazine suits.

The Syngenta case is Madison case number 04-L-710.

The atrazine suits are case numbers 04-L-708 to 04-L-713.

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Organizations in this Story

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

The University of Chicago
5801 S Ellis Ave
Chicago, IL 60637

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