Tillery asks Crowder to certify questions on atrazine discovery order

Amelia Flood Nov. 10, 2010, 2:10am


Holiday Shores Sanitation District is asking that a higher court also hear its discovery-related questions after a defendant it is suing in Madison County was allowed to raise First Amendment issues with the Fifth District Appellate Court.

Holiday Shores attorney Stephen Tillery filed a motion Nov. 1 asking Circuit Judge Barbara Crowder to certify questions related to its attempts to discover information from non-parties in one of a series of proposed class actions against a leading maker of weed killer atrazine.

Non-parties to the litigation include the Illinois Farm Bureau, chemical industry lobbying groups and the Heartland Institute.

A hearing is set on the motion at 9 a.m. on Nov. 15.

The move comes just days after Crowder certified questions for defendant Syngenta and non-party Heartland Institute related to potential First Amendment concerns raised in a September discovery order.

Holiday Shores, along with several other named lead plaintiffs, proposes to lead a class of Illinois water providers against Syngenta and other companies that make or sell the herbicide.

Atrazine, the plaintiffs allege, runs off farm fields, contaminating drinking water supplies.

The plaintiffs also contend that atrazine, even at levels lower than what is allowed by law, cause human health problems. The U.S. Environmental Protection Agency allows three parts per billion.

Defendants in the six proposed class actions deny the allegations.

The case at hand has been moving at the fastest pace of all six because the company is the primary maker of atrazine.

Crowder certified three defense questions on Oct. 29 related to what lobbying activity and communication is protected by the First Amendment.

Tillery objected to the certification, arguing that the defense could not send constitutional privilege issues up on appeal because they were contained within discovery rules and that the defense waived its right because it did not file privilege logs.

Crowder disagreed and certified the questions.

In the Nov. 1 motion, the plaintiffs contend that the non-parties are asserting privilege where there is none.

The motion also takes issue with the lack of privilege logs and the considerations of the First Amendment arguments made by Syngenta counsel Kurtis Reeg and Ray Bell, attorney for non-party Heartland Institute.

The plaintiffs argue the "matter is ripe for review either as a matter of first impression in Illinois or being subject to differing legal opinions."

Holiday Shores asks that two questions be certified relating to how the right to association guaranteed by the constitution fits in with Illinois Supreme Court discovery rules.

The plaintiff contends that an appeal will advance the six year-old litigation.

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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