Closed court document review in Syngenta atrazine case takes hours

Amelia Flood Jun. 22, 2011, 10:18am




After accusations of fraud and barbs over a highly contentious discovery process, the parties in one of a series of class actions brought against the makers of the weed killer atrazine spent most of the day in a closed courtroom with Madison County Circuit Judge William Mudge reviewing disputed documents.

Mudge closed the court room around 9:30 a.m. Wednesday in order to conduct the in camera review of documents as requested by both plaintiff Holiday Shores Sanitary District and defendant Syngenta Crop Protection LLC.

Before the doors closed to the public, plaintiff's attorney Stephen Tillery and his counterpart for the defense, Kurtis Reeg, sparred early in the hearing.

Tillery at one point alleged that Syngenta was attempting to commit "overt fraud," while Reeg called Holiday Shores' stance "revisionist history," and defense co-counsel Michael Pope called the plaintiffs' filings "a sideshow."

While ordinarily the judge would conduct such a review in chambers, Mudge noted the number of attorneys present and instead asked non-parties to the case and the press to leave the courtroom.

The review of documents continued throughout Wednesday afternoon and was still on-going as of 2:45 p.m.

According to the case's docket sheet, the judge entered an order setting a July 15 hearing on the plaintiffs' move for protective orders and an Aug. 2 hearing on all other matters in the case. Both hearings are set to commence at 9 a.m.

Before closing the courtroom, Mudge heard arguments on at least one motion dealing with another discovery dispute in the case - a protective order covering the testimony of two consulting experts retained by Holiday Shores.

Holiday Shores proposes to lead six class actions against Syngenta and other companies that make and distribute atrazine.

Atrazine is an herbicide commonly used by farmers.

The plaintiffs claim that they and other water providers are forced to remediate their supplies after atrazine runs off farm fields and contaminates them.

The six cases Holiday Shores proposes to lead were filed in 2004.

Additionally, a nearly identical federal class action was filed against Syngenta and its parent company last year in the United States District Court for the Southern District of Illinois by the City of Greenville also centering on atrazine contamination claims.

None of the Madison cases or the federal case have been certified to date.

Mudge began Wednesday morning's hearing by hearing arguments on a move filed June 3 by Holiday Shores that has sought a protective order covering the potential testimony of two of its experts, Paul Rosenfeld and Frank Ackermann.

Rosenfeld is a California-based remediation specialist.

Ackermann is an economist with Tufts University in Massachusetts.

Tillery said his office had clearly provided the needed proof that the pair were working for the plaintiffs as experts including his own affidavit about Rosenfeld's hiring in 2003.

Reeg, in his argument, contended that his opponent's affidavit about Rosenfeld's hiring was second-hand knowledge obtained from his co-counsel, Scott Summey.

"As usual," Reeg said, "Holiday Shores is engaging in some revisionist history."

Tillery countered that the hiring took place in his own office.

Reeg said Syngenta simply wanted the same production of documents and discovery parameters as the plaintiff's demanded from Syngenta experts, including Don Coursey.

The defense retention of Coursey, an economist with the University of Chicago, has come under scrutiny and has caused disputes in the case.

"What's good for the goose is good for the gander," Reeg said.

Mudge noted that the matter seemed straightforward and without the controversy attached to when Coursey was hired by Syngenta.

"Of course we don't have the traveling retention date issue with your expert here?" the judge asked Tillery.

Tillery answered that there was no question about when his experts were retained.

The plaintiff's attorney also took issue with the production of privilege logs by Syngenta.

He argued that there was no excuse for not including the claimed privileges and producing
the logs along with the on-going discovery documents.

"There is no case under Illinois law that excuses a privilege log," Tillery told Mudge.

Mudge questioned Tillery about previous discovery orders entered by former presiding judge Madison County Circuit Judge Barbara Crowder on that point.

Tillery disputed that the orders gave the defense leave to not provide the logs.

"Here's the problem then," Tillery told Mudge. "We never know what they're holding back.

We know that overt fraud is being committed by the defendants on the privileges."

Reeg objected to Tillery's assertion while the plaintiff's attorney countered he had documents that could prove it.

Reeg took up arguments similar to the points Mudge raised.

"As plaintiff well knows, the production has been rolling," Reeg said. "In a lot of class actions, a lot of defendants would take the position that after the filing of the lawsuit, they don't have to collect a thing. Syngenta hasn't done that."

He noted his client had trimmed its privilege claims by 60 percent.

"We've made as many concessions as I can," Reeg said.

Reeg noted that Tillery's motions regarding other production was pre-mature.

Reeg's co-counsel Michael Pope pointed to the on-going nature of discovery and the coverage of issue raised by Tillery in a nine and half hour deposition recently taken in the case.

"This is a sideshow devoted to the issue of 'can they use these documents for some other purpose,'" Pope said. "This isn't about 'is there atrazine in the water somewhere in Illinois.'"

Mudge told both attorneys to set a date for a hearing 21 days in the future for further argument on the documents and other issues if needed.

"I don't want to rule on things that are on-going but I do understand there has to be some end point," the judge said before closing his court for the document review.

Tillery expressed his displeasure.

"Your honor, I object to this! It's delay, delay, delay!"

Mudge went on to enter an order yesterday setting the two additional hearing dates.

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

The atrazine cases are Madison case numbers 04-L-7087 to 04-L-713.

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