Tillery files for hearing on motion to compel in atrazine class action

Amelia Flood Sep. 15, 2010, 2:00am


Another discovery dispute has arisen in one of a series of proposed class action suits against the maker of the herbicide atrazine.

Lead plaintiff Holiday Shores Sanitary District filed a motion earlier this month asking for a hearing on a motion to compel against defendant Syngenta Crop Protection Inc.

The motion was filed Sept. 3.

A hearing on the motion to compel is set at 9:30 a.m. Sept. 24 before Madison County Circuit Judge Barbara Crowder.

Holiday Shores claims Syngenta has balked at its request for discovery documents and depositions on the grounds that some of what of the plaintiff has asked for are protected by the First Amendment.

Syngenta has not yet filed a response to the motion to compel.

Holiday Shores and several other named plaintiffs, including the cities of Carlinville and Mount Olive, are suing a number of makers and distributors of products containing atrazine.

Atrazine is an herbicide commonly used by farmers.

The plaintiffs claim that the weed killer runs off farm fields and contaminates their drinking water supplies.

While the U.S. Environmental Protection Agency has found that atrazine is safe in drinking water supplies up to three parts per billion, the plaintiffs contend that smaller amounts can cause health problems.

Although the suits have been pending since 2004, discovery has only been proceeding since last year.

Plaintiff attorney Stephen Tillery has also filed a federal class action suit against Syngenta and its Swiss parent company in U.S. District Court for the Southern District of Illinois.

That suit, filed earlier this year, includes a class of water providers in Illinois, Missouri, Kansas and other states.

The federal suit alleges similar claims to those in the older Madison County suits.

Syngenta had moved to have the 2004 Madison County case dismissed or stayed pending the outcome of the federal action.

The company argued that the federal case's proposed class could include the Holiday Shores class members and would provide broader relief.

The plaintiffs had argued that there was no guarantee the Holiday Shores plaintiffs would be included in the federal suit and that if they weren't, they would have no other recourse.

The plaintiffs also pointed to the Madison County case's age and standing after six years as reasons why it should continue.

Crowder denied motions to dismiss and stay the suit on Aug. 31.

Moves by a number of third parties to stop discovery requests and depositions are also pending.

Those groups include the University of Chicago, Illinois Farm Bureau and chemical trade groups.

Crowder has those moves under advisement.

In the motion to compel, Tillery argues that his team has served 13 separate notices of video discovery on Syngenta only to be thwarted in their discovery attempts.

He claims the company tried to resolve the dispute with Syngenta's counsel, Kurtis Reeg, and that the company had promised to provide documents as requested.

However, the motion goes on to state that as of Sept. 1, Syngenta informed the plaintiffs that it would instruct its witnesses not to respond to any questions related to lobbying and third party matters, claiming there are First Amendment protections.

The company also declined to produce documents related to its financial contributions to trade groups, memberships and communications between it and third parties.

The motion asks the court for an emergency hearing to argue the motion to compel, for the court to make Syngenta comply with its deposition and discovery requests and that the court clarify a 2009 order regarding the discovery scope.

Reeg represents Syngenta. He also represents United Agri-Products in the Holiday Shores class action pending against it.

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

The atrazine class actions 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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