Appellate court denies Tillery leave to appeal in atrazine privilege matter

Steve Korris Jan. 20, 2011, 10:29am



MOUNT VERNON – Appellate judges won't review a decision granting free speech privilege to groups whose documents Stephen Tillery of St. Louis demanded in his class action against Syngenta Crop Protection Services.

On Jan. 13, Fifth District judges denied Tillery leave to appeal an order that Madison County Circuit Judge Barbara Crowder signed in September.

Tillery, seeking damages for water contamination from weed killer atrazine, argued the groups should file a privilege log describing documents they refuse to produce.

Crowder disagreed, and the Fifth District ratified her decision without comment.

"To require those who received subpoenas to disclose that information which they assert is protected by the First Amendment to the U.S. Constitution will not be required by this court." Crowder wrote.

"Membership in associations and advocacy for laws and regulations that affect the use of atrazine is a type of political and economic association that is generally protected by the First Amendment."

Tillery filed six suits against makers and sellers of atrazine in 2004, proposing to certify Holiday Shores Sanitary District as leader of class action in all six.

The cases languished for five years, but Tillery started moving them forward after the New York Times ran an article linking atrazine to water pollution.

The U.S. government considers atrazine safe at three parts per billion, but Tillery seeks a court order declaring it unsafe at any concentration.

Tillery added cities and private water suppliers as plaintiffs.

In 2009, Crowder ordered Syngenta to show Tillery its memberships in industry groups and identify their lobbyists.

Syngenta complied, and Tillery sent subpoenas to the groups for membership lists, communications with members, and names of contributors.

The groups objected, and Crowder partially sustained the objections last September.

Crowder ordered Illinois Fertilizer Chemical Association and Chemical Industries Council of Illinois to produce specific communications with Syngenta.

She ordered Heartland Institute, a non profit educational group, to produce information on its relations with Syngenta, including donations and instructions.

Syngenta consultant Don Coursey was ordered to produce information from the period before Syngenta retained him.

Crowder also ordered the Illinois Farm Bureau to produce information relating to Syngenta. But, she sustained Farm Bureau's objection to any request seeking the sources any of its reporters used in writing articles.

In October, Crowder certified questions to the Fifth District.

She asked if the First Amendment bars discovery of communications or donations between a defendant and a trade association.

She asked if it bars discovery of communications or donations between a defendant and a lobbying organization.

She asked if it bars discovery of communications or donations between a defendant and a non profit educational organization.

Tillery separately petitioned the Fifth District, arguing Crowder should have required privilege logs, but he didn't prevail.

Justices Bruce Stewart, Richard Goldenhersh and Melissa Chapman denied his petition.

When the case returns to Madison County, Circuit Judge William Mudge will preside.

Chief Judge Ann Callis assigned Crowder almost exclusively to asbestos cases.

As Tillery sues Syngenta in Madison County, he sues it in federal court as well.

That suit, pending before District Judge Phil Gilbert of Benton, includes claims against Swiss holding company Syngenta AG.

Syngenta AG moved last year to dismiss, challenging Gilbert's jurisdiction.

Tillery opposed the motion, filed 365 exhibits, and sealed his brief and his exhibits.

On Jan. 18, he moved for oral argument on jurisdiction.

Syngenta AG opposed oral argument, telling Gilbert he had enough information to reach a decision.

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