Holiday Shores, Syngenta to argue dueling motions to compel Friday

Amelia Flood Sep. 22, 2010, 2:45am



Attorneys continue to duel over discovery issues in one of a series of proposed class action cases brought against the makers of atrazine.

Lead plaintiff Holiday Shores Sanitary District, represented by Stephen Tillery of St. Louis, and defendant Syngenta Crop Protection Inc. will argue motions to compel parts of discovery in the six year-old case at 9:30 a.m. on Friday.

Kurtis Reeg and others represent Syngenta.

The hearing could be called off as other discovery disputes in the case have settled prior to hearing before.

In its motion, the plaintiff claims that Syngenta refuses to produce documents and a complete privilege log.

For its part, Syngenta claims that the plaintiff won't answer its interrogatories, including those related to what human health effects the plaintiff claims Syngenta's atrazine-containing products cause.

Holiday Shores proposes to lead six class action suits over alleged water contamination caused by atrazine.

Atrazine is an herbicide commonly used on farm fields.

The plaintiff, along with several other Illinois municipality plaintiffs, claim they and others suffer water contamination after atrazine runs off fields into their drinking water supplies.

They claim atrazine-contaminated water causes human health effects, although none of the suits specify what those are.

While the U.S. Environmental Protection Agency has ruled that atrazine is safe in drinking water up to three parts per billion, the plaintiffs claims lower levels still impact human health.
Although the suits were all filed in 2004, the discovery process only began moving forward last year.

Syngenta had tried to have the Madison County suit against it dismissed or stayed pending the outcome of a nearly identical case filed against it earlier this year in federal court in East St. Louis.

That suit, filed by the same team of attorneys representing Holiday Shores in the six Madison County suits, alleges virtually identical claims.

The case includes a proposed class of Illinois, Missouri, Kansas and other states' water providers.

Madison County Circuit Judge Barbara Crowder, who oversaw the Syngenta suit until Sept. 22, denied motions to dismiss and to stay earlier this month.

In its renewed motion to compel, Holiday Shores argues that while it has tried to resolve discovery disputes with Syngenta, the production it seeks from the company has not resulted.

It claims the first privilege log the company provided did not comply with Illinois law.

The company claimed privilege, according to the motion, for a list of 706 documents and that the descriptions given of the documents did not meet the law's standard.

The plaintiffs contend many of the 706 documents are not privileged.
The motion takes issue with more than 300 documents in the privilege log that are classified as attorney-client communications.

The plaintiff claims more than 70 of the documents were authored or received by a government agency and that two documents where privilege are claimed were written by plaintiff's counsel and sent to the Third Judicial Circuit Court of Illinois in Madison County.

"Syngenta has waived its attorney-client privilege as to each of these documents because it failed to meet the threshold burden of proving that the statements remained confidential," the motion reads.

The plaintiff's motion also points to an overbroad use of consulting and other privileges.

"Syngenta asserts a privilege that is not recognized under Illinois law," the motion argues. "Further, even though the privilege log was to coordinate with the documents that were being produced, Syngenta has withheld untold numbers of documents for privileges not asserted on the privilege log. Syngenta has flaunted Illinois law concerning privileges."

The motion asks that an order be entered forcing the company to provide a privilege log that complies with Illinois law within seven days. It also wants an order requiring the defendant to pay plaintiff's reasonable expenses and for sanctions.

In Syngenta's motion, the company contends that it served the plaintiff with interrogatories beginning in June 2009.

After being assured by Tillery that the discovery issues would be addressed, the company claims the plaintiff objected to the discovery questions.

The court eventually entered an order in October 2009 overruling a number of the objections.

Syngenta claims that Holiday Shores has refused to withdraw its objections to the interrogatory related to the health effects of drinking water containing atrazine less than the EPA limit.

The company claims it has been denied an answer, saying in the motion that the plaintiff's response "has remained unchanged since its initial objections and responses."

"To date, [Syngenta] has yet to receive a full, complete answer," the motion reads.

The motion asks the judge to order the plaintiff to provide full and complete answers to the company's interrogatories.

Both motions to compel were filed Sept. 20.

The plaintiff's motion to compel was originally filed in August.

The Syngenta case was the last of the atrazine class actions pending in Crowder's courtroom.

Crowder entered her final order in the case yesterday, ruling on various objections and third party motions to quash discovery requests.

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

The contents of Crowder's six page order are not yet availible in the case file.

The other suits moved, along with the rest of her civil docket to Circuit Judge Daniel Stack last month.

Stack will preside at tomorrow's hearing.

The Holiday Shores suits are Madison case numbers 04-L-708 to 04-L-713.

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

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Organizations in this Story

U.S. Environmental Protection Agency (EPA)
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Washington, DC 20460

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

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