Discovery requests could chill public debate in atrazine cases, defense argues

Steve Korris Aug. 26, 2010, 3:46pm


The Illinois Farm Bureau, trade groups, industry councils, universities and others lost their privacy through someone else's mistake and don't know if they will get it back.

Their internal documents belong to class action lawyer Stephen Tillery of St. Louis, who has served subpoenas on them to learn more.

Tillery pursues six Madison County class actions claiming weed killer atrazine contaminates public waters.

He wants Circuit Judge Barbara Crowder to declare it unsafe at any concentration.

Atrazine maker Syngenta, bearing blame for giving Tillery too many records, wants Crowder to retrieve the documents.

"The right of association is a critical part of the First Amendment because it facilitates the other First Amendment rights, including political and other speech," Kurtis Reeg of St. Louis wrote on Aug. 9.

"Plaintiffs' true intentions may be to chill public debate on this important national issue, since the fear of being served with a subpoena may give pause to anyone considering exercising his or her right to speak out on this topic," he wrote.

"Plaintiffs are attempting to parlay discovery they should not have into further discovery to which they are not entitled," he wrote.

He attached a declaration of Syngenta state affairs team leader Dennis Kelly, predicting a substantial and imminent chilling effect.

"I know the harm that will result in the confidential communications of our company and its employees, consultants, representatives and agricultural industry friends and associates are found to be an appropriate subject of discovery in this lawsuit," Kelly wrote.

He wrote that employees would avoid candid speech, "to avoid later exposure or mischaracterization in a lawsuit over which they are not a party or have no control."

"If the internal activities of the agricultural industry and trade associations are disclosed in this litigation, it will be significantly more difficult to recruit new supporters and donors," Kelly wrote.

He wrote that if he had known communications with employees, consultants and associates were subject to disclosure, he would have communicated differently.

He would have instructed employees under his authority to communicate differently. And, he wrote, that at the least he would have warned them that any communications could be subject to compelled disclosure in a lawsuit.

"Then they would have had the opportunity to refrain from speech rather than risk future disclosure," he wrote.

The following organizations have been subpoenaed:

  • University of Illinois crop science department in Urbana

  • Heartland Institute in Chicago

  • V-Fluence in Chicago

  • Southern Illinois University plant, soil and agricultural systems department in Carbondale

  • Illinois Fertilizer and Chemical Association in Bloomington

  • Illinois Farm Bureau in Bloomington

  • Illinois Council on Best Management Practices in Springfield

  • Illinois Corn Growers Association in Bloomington

  • Chemical Industry Council of Illinois in Springfield

  • University of Chicago, Harris School

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