Judge rules against Tillery in Heartland subpoena issue

Steve Korris Jun. 16, 2011, 9:00am



CHICAGO – U.S. District Judge Samuel Der-Yeghiayan denied reconsideration of an order protecting private records of the Heartland Institute from class action lawyer Stephen Tillery.

"Although plaintiffs indicate in their motion for reconsideration that this court made manifest errors of law, it is apparent that plaintiffs are merely dissatisfied with this court's decision," Der-Yeghiayan wrote on June 16.

Finding no need for further briefs or arguments, he canceled a hearing Tillery had set.

Der-Yeghiayan preserved his order of May 13, granting motions from Heartland and its president, Joseph Bast, to quash a subpoena and a deposition notice.

Tillery claimed he needed the records for a federal suit in the Southern District of Illinois, alleging Syngenta Crop Protection contaminated water with weed killer atrazine.

His clients, public and private water suppliers, seek to recover past and future costs of removing atrazine from water.

He obtained a subpoena against Heartland in the Northern District of Illinois, bringing Der-Yeghiayan into the case.

Der-Yeghiayan found the documents irrelevant to the underlying litigation, adding that Tillery could seek the information from Syngenta.

He found the subpoena overly intrusive, writing that it infringed Heartland's First Amendment rights with a chilling effect.

Aaron Zigler of Tillery's firm moved for reconsideration on June 10, calling the order "legally infirm."

He wrote that instead of requiring Heartland to justify application of First Amendment privilege, Der-Yeghiayan allocated the burden to his clients to justify discovery.

"This court also erred in the weight that it gave Heartland's evidence of a chilling effect," Zigler wrote.

He wrote that Heartland had to show specific evidence of past and present harassment of the organization or its members, or manifestations of public hostility.

"Heartland, however, showed none of these things," he wrote.

He protested that Der-Yeghiayan credited Bast's statements but "discounted trial counsel's belief as to what the requested discovery would reveal."

He called on Der-Yeghiayan to recognize the binding authority of a May 24 decision from the Fourth Circuit appeals court.

He set a June 16 hearing, to coincide with a general call Der-Yeghiayan planned that day.

Der-Yeghiayan heard many cases that day, but didn't hear Tillery's motion.

Instead he signed a statement finding Tillery "failed to address the material points of this court's prior ruling."

"Plaintiffs cite a Fourth Circuit case, which is not identical to this case and is distinguishable with different ramifications," Der-Yeghiayan wrote.

He wrote that "the Fourth Circuit decision cited by plaintiffs is not binding authority contrary to plaintiffs' contention."

He found sufficient detailed credible facts showing there would be a chilling effect.

He wrote that Zigler indicated the court discounted his beliefs.

"However, counsel's beliefs are only arguments and not evidence, and this court considered all evidence together with the arguments advanced in reaching its decision to grant the motion to quash subpoena and notice of deposition," he wrote.

District Judge Phil Gilbert presides over the underlying case at federal court in Benton.

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