Syngenta wants appellate court to rule on Crowder's atrazine discovery order

Amelia Flood Oct. 25, 2010, 12:53pm




Syngenta Crop Protection Inc., a company facing class action lawsuits over its popular weed killer atrazine, is asking a Madison County judge to send constitutional questions to the appellate court.

Circuit Judge Barbara Crowder heard arguments over certifying questions related to an order she signed in September that governs what discovery the plaintiffs may take from non-party trade groups such as the Heartland Institute.

Heartland and other trade groups are fighting discovery requests issued by attorney Stephen Tillery for his client Holiday Shores Sanitary District in one of a series of proposed class actions filed against the makers and distributors of atrazine.

Attorneys for the trade groups asked for clarification of the order at the hearing Monday.

Crowder had ruled against Heartland, the Illinois Farm Bureau and others on many of their objections to the discovery requests, requiring the groups to comply with what she told attorneys were discovery requests related only to Syngenta.

The trade groups are still working out their questions about which of those requests they must honor.

In the order entered Sept. 22, Crowder wrote that she was attempting to balance the third parties' First Amendment concerns with what state law allows the plaintiffs to discover.

Holiday Shores and several other Illinois cities propose to lead a class of water providers against Syngenta and other companies, contending that atrazine contaminates their drinking water supplies.

Although the U.S. Environmental Protection Agency has ruled that atrazine is safe in drinking water up to three parts per billion, the plaintiffs claim that even smaller amounts cause health problems.

The plaintiffs have not specified to date at what concentrations the alleged problems occur.

The defendants deny the claims.

Syngenta has tried unsuccessfully to dismiss or stay the Madison County suit pending the outcome of a nearly identical class action suit filed in the U.S. Southern District of Illinois earlier this year. That suit, alleging nearly identical claims, encompasses a class of water providers in Illinois, Missouri, Kansas and other states.

Syngenta attorney Kurtis Reeg told Crowder that both sides of the aisle had different readings of her Sept. 22 order, particularly on what protections the defendant and non-parties had under the First Amendment's freedom of association protection.

"The issue is not whether the court was right or wrong in what it did," Reeg said. "We're asking you to certify the legality and constitutionality of these kinds of discovery evidence."

Reeg mentioned specifically donations and lobbying communications in his argument.

Syngenta's motion asking Crowder to certify the appeal includes 10 questions.

Reeg told Crowder that once the appellate court resolves the constitutional issues, the six year-old litigation would proceed faster to its end.

Tillery dismissed Reeg's arguments about the appeal speeding the end of the suit and argued that the entire notion of appealing Crowder's discovery order was out of place.

"I would like someone to stand up and say how determination of this issue is going to materially advance the termination of this litigation," Tillery said.

Tillery argued the defendant had not produced a required privilege log and that without it, the appellate court would not be able to make a ruling anyway.

Therefore, Tillery said, Syngenta was entitled to take a trip to Mount Vernon.

"They've just ignored presenting law," he said. "They've waived it."

Reeg countered that a privilege log was not necessary, with Crowder interrupting to agree.

"Frighteningly, Mr. Reeg, we interpreted that the same way," Crowder said.

After the beginning of the arguments on the motions to clarify the September order, Crowder told attorneys she thought she had been clear as to what the order covered.

"This court never had any intention of requiring these groups to disclose any information about anybody but Syngenta," Crowder said. "I find it puzzling that you guys are telling me you don't understand that order. I very much took serious consideration of the First Amendment issues but this is a lawsuit and Syngenta is involved. Anything that deals with Syngenta that you guys have is discoverable."

Attorney Edward Dwyer, representing two chemical trade groups subpoenaed by Tillery, answered by reading what he said were contradictory parts of her order.

Dwyer went to ask for specifics related to his clients, at which point Crowder addressed all of the non-party attorneys present.

"If you gave it to Syngenta, then Mr. Tillery gets to see," the judge said.

Christopher Byron, representing the Illinois Farm Bureau, also questioned Crowder about the order and how it specifically related to his client's communications about atrazine that did not necessarily relate to Syngenta.

Tillery told Crowder they were one in the same.

"Where is it that they have a First Amendment right to atrazine," Tillery said. "If it relates to atrazine it's relevant."

Crowder reiterated what she said she believed her order covered.

She suggested that Byron meet with Tillery to discuss how the Farm Bureau could comply and if needed, the two could set another hearing date.

Crowder took the appeals questions under advisement and gave all the parties present two days to file supplement materials.

Tillery, whose team represents the plaintiffs in all of the Madison County atrazine suits, represents those plaintiffs as well.

The Madison County Syngenta case has progressed farther than the other five cases because the company is the primary maker of atrazine.

The 2004 atrazine suits had been stalled until last year when discovery began proceeding.

Crowder has refereed a number of discovery disputes in the Syngenta case to date although the case should have joined the other five atrazine cases on Circuit Judge Daniel Stack's docket.

Stack took over Crowder's docket when she took over his asbestos cases in August.

Stack presides over all of the other pending atrazine cases currently.

Dwyer and Jennifer Martin of Hodge Dwyer & Driver of Springfield represent both the Illinois Fertilizer and Chemical Association and Chemical Council of Illinois.

Ray Bell represents the Heartland Institute.

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

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

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