CHICAGO – U.S. Seventh Circuit appeal judges lack jurisdiction to review District Judge Phil Gilbert's order denying public access to documents about weed killer atrazine, according to atrazine producer Syngenta Crop Protection.
On Nov. 14, Syngenta moved to dismiss an appeal from nature groups seeking access to documents Syngenta produced in a suit claiming atrazine contaminates water supplies.
Gilbert had allowed the Environmental Law and Policy Center and the Prairie Rivers Network to intervene in the suit, but he rejected their bid to unseal about 250 exhibits.
In September, he ruled that the public had no right to see the exhibits because plaintiff lawyer Stephen Tillery filed them without citing them in any briefs.
Gilbert wrote that if he unsealed them, he would open a door for unscrupulous litigants to seek advantage by threatening to file irrelevant documents.
He wrote that he would have stricken the exhibits if electronic filing procedures hadn't made it too unwieldy.
Howard Learner of Chicago appealed for the center and the network, arguing they would have to wait months or years for the overall litigation to proceed.
"Any such delay produces harm, given the strong presumption and public interest in access to court documents, particularly those which could have relevant information on the safety of atrazine in the public water supply," Learner wrote.
Michael Pope of Chicago answered for Syngenta that Gilbert continues reviewing documents to determine whether Syngenta properly designated them as confidential.
He wrote that litigants may only appeal decisions that don't terminate litigation but must be treated as final in the interest of achieving a healthy legal system.
"The district court has not yet conclusively resolved many of the issues set forth in the orders which are the subject of intervenors' appeal," Pope wrote.
He wrote that Gilbert held they had an ongoing right to move for reconsideration of any decision to seal a document.
He wrote that confidentiality would arise each time the parties file motions and briefs in the public record containing Syngenta's confidential information.
He wrote that allowing the appeal would grant intervenors license to separately appeal every seal order throughout the course of the litigation.
He wrote that they wouldn't lose their remedy if it is delayed.
"Indeed, any documents improperly left under seal by the district court can be challenged on appeal after final judgment and, if successful, unsealed after final judgment," he wrote.
"There simply is no irreparable harm to intervenors, or the public they purport to represent, if the documents are unsealed at the end of the litigation rather than at various points throughout the litigation," he wrote.
Pope practices at McDermott, Will and Emery in Chicago.
Christopher Murphy, Peter Schutzel and Brian Fogerty, of the same firm, worked on the motion.