Judge quashes subpoenas served on Chemical Industry Council, Illinois Farm Bureau

Steve Korris Nov. 7, 2011, 7:03am


SPRINGFIELD – U.S. Magistrate Judge Byron Cudmore quashed subpoenas that Stephen Tillery served on the Chemical Industry Council of Illinois and the Illinois Farm Bureau, finding their right to free association protected them from Tillery.

"The members of the associations have First Amendment rights to associate with like minded individuals to articulate their views to the public and to advocate their views before the government," Cudmore wrote on Oct. 27.

"The declarations before the court show that disclosure of private communications between the associations and its members would have a chilling effect on members' rights by discouraging members from exercising those rights," he wrote.

Tillery served the subpoenas on behalf of public and private water suppliers alleging Syngenta Crop Protection Services pollutes water with weed killer atrazine.

Before ruling on free association, Cudmore quashed almost all of Tillery's requests as burdensome and over broad.

"There is no reason to force non parties to find and disclose material not related to Syngenta and not limited to any time frame," he wrote.

"The first two requests would be limited to 52 years worth of documents after atrazine came on the market in 1959," he wrote.

"This request would extend back to the date Syngenta started doing business in the United States," he wrote.

He wrote that a request for records of payments the groups received from Syngenta "may be relevant to show that Syngenta has tried to hide its advocacy for atrazine."

"Syngenta's advocacy of atrazine, however, is not at issue," Cudmore wrote.

He wrote that plaintiffs don't allege misrepresentation or deceptive practices.

"The request seeks all evidence of all payments of any kind made for any reason for as long as Syngenta and each association has existed," he wrote.

"The lack of any limitation on the request would, thus, require the movants to collect large amounts of irrelevant information."

He sustained an objection to a request for information about Crop Life America and corn and sorghum associations in Kansas.

"The request effectively asks the associations to produce all documents containing all communications with these other associations related to all aspects of agriculture for as long as these organizations have existed," he wrote.

Turning to free association, he wrote that "power to command the production of information may not be used to violate First Amendment rights."

"Sometimes disclosure of the identity of the members of the association will subject members to harassment and intimidation because the association advocates a controversial view," Cudmore wrote.

"Sometimes disclosing internal communications, including communications with members, may inhibit members and association staff from participating in advocacy activities and from exchanging ideas freely and openly.

"The fundamental issue is what will happen in the future if documents are disclosed."

He wrote that the groups had to present evidence of a reasonable probability of a chilling effect.

"Declarations from association members, employees, and agents setting forth the impact of disclosure on their future behavior are sufficient to meet this burden," he wrote.

He wrote that Farm Bureau member Mike Campbell stated he would reconsider his membership if his communications were subject to disclosure.

He wrote that the information Tillery sought might be relevant to Syngenta's knowledge and intent, but that plaintiffs could secure the information by other means.

He wrote that plaintiffs secured documents from Syngenta showing its efforts to collaborate with other advocates for atrazine.

He wrote that the documents identified Syngenta employees Tillery could depose.

He rejected an argument that he could fashion a protective order that would alleviate adverse impacts on members of each group.

"Communications within the association must remain confidential to allow members and association agents and employees to speak frankly," he wrote.

"Disclosure to the plaintiffs, even under a protective order, could frustrate that purpose," he wrote.

"Furthermore, a protective order may not prevent disclosure of information produced in discovery that is used to underpin a judicial decision," he wrote.

In June, District Judge Samuel der-Yeghiagan of Chicago quashed a similar subpoena against the Heartland Institute research group on First Amendment grounds.

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