Judge waits for Supreme Court on Tillery subpoenas of Farm Bureau, fertilizer group

Steve Korris Jul. 1, 2011, 2:33am

SPRINGFIELD – U.S. Magistrate Judge Byron Cudmore won't open records of private groups to class action lawyer Stephen Tillery unless the Illinois Supreme Court does.

Cudmore, who serves at the Central District of Illinois, stayed motions to quash subpoenas Tillery served on Illinois Farm Bureau and Illinois Fertilizer Chemical Association on June 27.

"The Court is now keenly aware that the primary issues raised herein are subject to a pending petition for leave to appeal to the Supreme Court of Illinois," Cudmore wrote.

He wrote that a stay on the motions pending a Supreme Court decision was "the correct and logical course of action."

Tillery claims he needs the records for two lawsuits of public water providers alleging that Syngenta Crop Protection pollutes their supplies with weed killer atrazine.

He aims to prove a conspiracy to hide the hazards of atrazine.

Madison County Circuit Judge Barbara Crowder ordered the groups to produce documents, but they took her decision to the Supreme Court.

Tillery, unwilling to wait for a decision, obtained three subpoenas for similar information in federal court at Springfield and another at federal court in Chicago.

He claimed federal jurisdiction because he pursues a case in the Southern District of Illinois almost identical to the one in Madison County.

All four federal subpoenas fizzled.

In April, Cudmore stayed a motion to quash a subpoena on the Chemical Industry Council of Illinois, pending Supreme Court action.

In May, in Chicago, District Judge Samuel Der-Yeghiayan quashed a subpoena on the Heartland Institute, a research group.

In June, in Springfield, Chief District Judge Michael McCuskey reassigned the Farm Bureau and the fertilizer group from Magistrate Judge John Gorman to Cudmore.

Cudmore stayed both motions to quash, pending Supreme Court action.

Farm Bureau and the fertilizer group meanwhile alerted Cudmore to Der-Yeghiayan's decision, which Tillery urged Cudmore to ignore.

On June 27, Tillery wrote that Der-Yeghiayan's order "does not contain reasoning meriting its consideration."

"The Northern District's ruling on the motion to quash is erroneous in numerous ways as it fails to follow, and in fact directly conflicts with, binding authority on the issues presented," he wrote.

He wrote that Der-Yeghiayan allocated the burden of justifying discovery to his clients, contrary to Seventh Circuit and U.S. Supreme Court authority.

He wrote that Der-Yeghiayan "completely discounted trial counsel's affidavit as to what the requested discovery would reveal."

He wrote that documents from a public relations firm show that Syngenta sought assistance from the groups in protecting and promoting atrazine.

"Syngenta's use of Heartland to manipulate the public debate concerning atrazine is not hypothetical, it is provable fact," Tillery wrote.

"Syngenta has effectively firewalled the information necessary to prove the scope of that manipulation except through the third party discovery sought here."

Tillery and Syngenta have jointly reported to Cudmore that they expect no Supreme Court action until late September.

He asked for another report on Oct. 1.

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