Gilbert keeps records sealed in atrazine case; Unsealing would open door to 'unscrupulous' litigants, he says

Steve Korris Sep. 21, 2011, 1:31pm


BENTON – U.S. District Judge Phil Gilbert wanted to get rid of unnecessary documents that Stephen Tillery filed in litigation over weed killer atrazine, but technology wouldn't let him.

"Had it been possible to strike the documents to remove them from the record, the court would have done so," he wrote on Sept. 16.

"Unfortunately, this would have been an unwieldy task considering the limitations of the electronic case filing system," he wrote.

He stood by an earlier order against the Prairie Rivers Network and the Environmental Law and Policy Center, which intervened in the litigation to plead for access to the documents.

"If the court were to unseal the extraneous documents simply because they were attached to the plaintiffs' response, the door would be open to unscrupulous litigants who seek advantage by threatening to file irrelevant confidential documents produced by their opponents," he wrote.

"This would negatethe value of legitimate protective orders and hinder the efficient production of documents during discovery," he wrote.

"It is the plaintiffs' burden to cite to their evidence and explain its relevance to the issue before the court, and if they fail to do that, the court will not consider the evidence," he wrote.

He also rejected a bid from the network and the center to rewrite Magistrate Judge Phil Frazier's order governing confidentiality.

Gilbert affirmed Frazier's Aug. 11 decision, denying their motion to vacate the order.

Gilbert wrote that Frazier limited the order to the discovery phase of the litigation.

He wrote that in the dispositive motion phase and at trial, the order will obligate the parties to justify sealing any documents they wish to keep from the public.

He wrote that he has unsealed documents that shouldn't have been filed under seal.

He wrote that he has taken under advisement the status of other documents that the defendant, Syngenta Crop Protection, seeks to maintain under seal.

He wrote that he provided a mechanism for intervenors to object to his conclusions.

Tillery represents 22 public and private water suppliers in six Corn Belt states, claiming atrazine contaminates water at any level of concentration.

He has asked Gilbert to declare atrazine a defective product.

Federal regulators consider it safe up to three parts per billion.

None of Tillery's clients alleges its concentration exceeds the federal standard.

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