Syngenta hearing moved as discovery disputes continue in atrazine class action

Amelia Flood Mar. 31, 2011, 8:30am



An April 1 hearing has been rescheduled in one of a series of proposed class actions brought against the makers of the weed killer atrazine.

Madison County Circuit Judge William Mudge called a lengthy recess during a Wednesday hearing in which he asked the attorneys representing lead plaintiff Holiday Shores Sanitary District, Syngenta Crop Protection Inc., the University of Chicago and Don Coursey, one of the university's professors, to pick another date to meet to hash out a series of discovery disputes.

The parties have been battling over the release of documents and the date when Coursey was retained by Syngenta as an expert witness.

In recent days, the parties filed several motions, including sanctions moves and have asked Mudge to review filings, including 750 documents filed by the University of Chicago in camera.

Mudge told the parties that he wished for more time to review the documents at play in the discovery quarrels.

The hearing is now set for May 6.

Suit's history goes back seven years, sparks federal case

Holiday Shores proposes to lead an Illinois-only class of municipalities and water providers against Syngenta and the other makers and distributors of atrazine.

Holiday Shores filed six proposed class action suits in 2004 alleging that atrazine runs off farm fields into the plaintiffs' water supplies and contaminates them.

The six 2004 cases sparked a nearly identical federal case last year led by the City of Greenville, Ill.

The federal class action pending in U.S. District Court for the Southern District of Illinois would include plaintiffs in Missouri, Kansas, Ohio and other states as well as those from Illinois.

Syngenta and its Swiss parent company are the defendants in the federal suit.

It is set for a settlement conference in April.

The suit against Syngenta has heated up since discovery began in earnest in 2009.

Discovery disputes erupt as documents are sought and date changes on expert's hiring

Holiday Shores has filed a number of subpoenas seeking documents and testimony related to atrazine from non-parties to the suit including the University of Chicago and its economist Don Coursey, the Illinois Farm Bureau and other groups.

The latest discovery dispute hinges on the date when Syngenta hired Coursey.

The non-parties moved to quash the subpoenas on First Amendment and other grounds.

After several hearings on the matter, Circuit Judge Barbara Crowder – the judge who then oversaw the case – issued an order in September allowing some discovery related to the non-parties and denying other parts of the moves.

The parties then asked the judge to certify questions for appeal.

Crowder did so and the disputes went to the Fifth District Appellate Court in Mount Vernon.

Syngenta claimed that Coursey had been retained as an expert in 2006.
As a consulting expert witness, that meant Coursey's work would be privileged.

However, documents released by the University of Chicago in February muddied the issue.

According to those documents, Coursey was not retained until January 2009.

Plaintiffs say 'cover up,' defense decries 'wasteful sideshow'

Holiday Shores filed a sanctions move related to the retention date issue.

At a late February hearing on the matter, plaintiff's counsel Stephen Tillery alleged that Syngenta had engaged in "a cover up."

He demanded an evidentiary hearing on the matter.

Mudge has set that hearing for April 1 at 9 a.m.

Holiday Shores then filed a number of subpoenas that would have required Syngenta attorney Kurtis Reeg, University of Chicago attorney Madelyn Lamb, Coursey's attorney C. Raymond Bell and others representing Syngenta and the non-parties in the case to appear at the April 1 hearing.

Mudge quashed the personal subpoenas earlier this month but ordered the respondents to bring certain documents to the evidentiary hearing.

Syngenta countered the Holiday Shores' sanction motion March 21, calling the dispute "a wasteful sideshow."

The company contends that the hiring was initially thought to have been in 2006.

However, Syngenta argues, as discovery continued, it became clear that the 2009 date was more accurate.

The company alleges Holiday Shores is attempting to punish it for engaging in good faith discovery actions.

More sanctions moves and other motions have been filed in the days leading up Wednesday's hearing.

Coursey and Bell filed a motion to quash a Holiday Shores subpoena on March 25.

According to the March 25 motion, the plaintiff's legal team served Coursey and Bell with subpoenas ordering them to appear at what was to be the April 1 hearing.

The date was originally set March 17 but was moved due to Coursey's teaching schedule.

The pair alleges the subpoenas, particularly the move directed at Bell, were unwarranted.

Holiday Shores filed three moves on Tuesday.

One asks to file exhibits under seal. The other two are sanctions moves.

Holiday Shores is now seeking sanctions over documents allegedly held by Syngenta's Swiss parent company, Syngenta AG.

According to the March 29 motion, the plaintiffs asked for documents in 2009 that related to the sale, use, application and testing of atrazine.

Syngenta had moved June 18, 2009 to limit the scope of discovery to Illinois only.

The pair wrangled over the documents throughout 2009 and the court denied a protective order Syngenta asked for in October 2009.

The discovery arguments continued

In January 2010, Syngenta informed the court that it was beginning to process foreign documents for review.

That review of those documents was to take place in June 2010 in Switzerland where Syngenta AG is based, according to the March 29 motion.

However, Syngenta then invoked Swiss law in October 2010 in the Madison County suit upon the advice of the company's Swiss counsel.

The plaintiffs contend that the disputed documents are easily accessed by the defendant and that they are in its control.

Holiday Shores pointed to a number of testimony examples that it says show how easily Syngenta's American employees can access the documents.

"In short, SCPI [Syngenta] is attempting to shield itself from lawful discovery under Illinois law by asserting Swiss law that has no application in this case," the motion argues. "In summary, Syngenta, for a period of more than a year, knowingly, if not intentionally, made material misrepresentation to Plaintiffs and this Court, and have otherwise engaged in willful and contumacious delay and disregard of this Court's Orders and the Illinois Supreme Court Rules, for the purpose of obstructing Plaintiffs from obtaining discovery to which they are entitled."

Holiday Shores asks Mudge to order the defendant to produce at its own cost all the documents the plaintiffs seek.

It also wants Mudge to bar Syngenta from using any data or documents from its foreign parent if they are not given to Holiday Shores by a specified date.

The second March 29 sanctions move relates specifically to documents related to atrazine's distribution, sale, application and market share.

University caught in middle of case tries to bow out

Mudge stayed the two motions filed by the University of Chicago that had been set for Wednesday's hearing.

The University of Chicago had filed a motion asking Mudge to declare that it has satisfied the discovery demands placed upon it in the case.

To that end, the university turned over 750 documents for Mudge's review Wednesday.

"We shouldn't even have to be a part of these proceedings,"
University of Chicago attorney Heidi Eckert said at the hearing.

While the judge indicated that he would not release the university from its role in the litigation at this point in the suit, he said he understood its position.

"I think they do see themselves caught in the middle of this," Mudge said during Wednesday's hearing.

Tillery, Christie Deaton, and Christine Moody represent the plaintiffs.

Reeg is lead counsel for Syngenta.

Eckert, Madelyn Lamb and others represent the University of Chicago.
C. Raymond Bell represents Coursey.

All of the above attorneys also represent the parties in the Greenville suit.

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

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

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