Tillery says 'cover-up'; Syngenta says 'colossal' waste of time in discovery dispute

Amelia Flood Feb. 23, 2011, 11:00am



Madison County Circuit Judge William Mudge on Wednesday heard arguments on discovery disputes in a proposed class action suit against makers of the weed-killer atrazine.

He took up a plea by plaintiff Holiday Shores Sanitary District that asked the judge to set an evidentiary hearing on when a University of Chicago professor was retained by defendant Syngenta Crop Protection Inc.

The future hearing would also take up the contents of 900 documents that were released last night related to that professor, Don Coursey, and his work on behalf of the atrazine-production industry.

A motion for sanctions related to Coursey and the 900 documents was filed before the hearing by plaintiff's counsel Stephen Tillery.
It was not immediately available.

Holiday Shores is suing Syngenta Crop Protection Inc. and other makers and distributors of atrazine.

The plaintiffs claim atrazine runs off farm fields into drinking water supplies that they and other potential class members must then remediate.

The plaintiffs have also claimed that atrazine in concentrations lower than those legally allowed by the U.S. Environmental Protection Agency is harmful to human health.

The defendants deny the claims and have tried to have the suit dismissed or stayed pending the outcome of a nearly identical federal atrazine case filed last year.

According to Tillery, Syngenta originally claimed that Coursey was retained as a litigation expert by the defense in 2006.

That put his work product off-limits from 2006 to the present.

However, more recent discussions between Tillery and Kurtis Reeg, Syngenta's counsel, have led to a January 2009 date of retention.
That led to the production of the 900 documents.

Tillery said that the changing retention date was "a cover-up" of the documents' contents, parts of which he said at Wednesday's hearing, constituted major blows to certain Syngenta positions.

"Why was there such an effort to hide these documents and to adjust these dates," Tillery said. "It's outrageous!"

The plaintiff's counsel then asked for an evidentiary hearing to determine if the sanctions motion against the defense would be granted and "to get to the bottom of this."

Reeg rejected Tillery's characterization of the document production.

"That's argument, not fact," Reeg said. "This is a colossal waste of judicial resources and the parties' time."

Reeg told Mudge that after the initial 2006 date was suggested, added discovery led him and other attorneys involved in the defense to dig further until they realized Coursey was retained in 2009.

After the revelation, he said, the defense was able to produce documents that were previously privileged.

"The plaintiffs asked for documents and now they are trying to punish the people who produced them because they got what they wanted," Reeg said.

Mudge questioned the changing date and expressed doubts about what he termed "eleventh hour" production.

The 900 documents were produced Tuesday night, according to statements by the attorneys at the hearing.

Reeg acknowledged he did not receive a copy of them until 9 a.m. Wednesday.

Mudge asked the parties to submit proposed dates for the hearing while he reviewed filings as well as past rulings in the case.

He also asked the parties to discuss ways around issues contained in a plaintiff motion to compel.

Those issues relate to amended interrogatories and on-going international discovery.

A move for a stay pending the outcome of an appeal to the Illinois State Supreme Court was not taken up.

That move was filed by the Heartland Institute, a non-party to the case.

The Heartland Institute is among a number of non-parties to the suit that has objected to discovery requests filed by Holiday Shores.

Mudge is hearing moves in the Syngenta suit, one of six proposed class actions Holiday Shores filed on the claims in 2004.

Tillery, Christine Moody, and Christie Deaton represent the Holiday Shores plaintiffs and the federal case's plaintiffs.

The lead plaintiff in the federal suit is the City of Greenville, Ill.

Kurtis Reeg represents Syngenta in both cases.

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

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

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