Mudge rules against Syngenta in 'trade secret' document issue; Admonishes defendant for mislabeling emails for privilege sake

Ann Maher Mar. 15, 2012, 9:22am




Madison County Circuit Judge William Mudge ruled that certain defense documents in a proposed class action against atrazine-maker Syngenta are not confidential trade secrets.

His March 8 order notes that Syngenta did not meet its burden in showing that documents involving its public relations firm, Jayne Thompson & Associates of Chicago, were subject to the Illinois Trade Secret Act.

"Rather it is public relations material, strategies and other efforts aimed at shaping public opinion and influencing people about the safety of atrazine and the perceived consequences of this lawsuit," Mudge wrote.

"It largely consists of public relations efforts aimed at the general public, farmers, environmentalists, the media, the EPA and potential parties to this suit, among others. These are communications that strategize about the effects of this litigation on these people or entities, and do not disclose a secret formula, process or data that would put Syngenta in a competitively disadvantageous position with its competitors as defined by our state legislature as a trade secret. Syngenta has not sustained its burden that this type of material is a trade secret."

Holiday Shores is the lead plaintiff in six nearly identical class actions filed against Syngenta and other atrazine makers in 2004. Holiday Shores and the other plaintiffs, which include several municipalities in southern Illinois, allege that atrazine runs off farm fields into water supplies that the plaintiffs must then remediate.

Atrazine is the most commonly used herbicide among corn growers. It has been deemed safe in drinking water up to three parts per billion by the U.S. Environmental Protection Agency. But, the plaintiffs contend that even smaller amounts cause health issues.

Stephen Tillery, Christie Deaton, and others represent Holiday Shores.

Mudge made the recent ruling in Holiday Shore's motion for a protective order concerning the confidential designations Syngenta made to certain portions of the deposition of former Syngenta communications' employee Sherry Ford, as well as various exhibits in the case.

In the order, Mudge also held that a number of other documents Syngenta sought to be kept confidential did not fit the definition of "trade secret."

In a separate, related order issued the same day, Mudge denied Tillery's motion seeking all email correspondence to Syngenta in-house counsel Alan Nadel.

"Considering the nature of this litigation, such an order would require Syngenta to produce thousands of emails – including emails that are legitimate work-product material," Mudge wrote.

He also denied Tillery's alternative request for production of a separate privilege log for email correspondence to which Nadel was copied.

"This too, in light of the millions of pages of discovery turned over to date and the voluminous material already subject to in camera review, is excessive," Mudge wrote.

However, Mudge admonished Syngenta not to "inappropriately" label emails as "privileged" and ordered the company to issue a written directive to its employees within 14 days to "cease copying all emails that simply mention atrazine to Alan Nadel or other in-house counsel in an effort to avoid the production of otherwise discoverable material."

"Such written directive shall counsel the employees on the proper use of 'Privileged and Confidential' as in-house counsel has done in the past. Only those emails that are in good faith believed to be attorney-work product or attorney-client privileged materials or subject to other recognized privileges shall be so designated. Counsel shall produce a copy of this written directive to the court."

He wrote that he would order all emails be produced if evidence surfaces that "any effort is being made to inappropriately label emails or copy emails to in-house counsel..."

Kurtis Reeg, Michael Pope and others represent Syngenta.

Last April, Mudge ordered Syngenta to turn over public relations and other documents that the company had claimed were privileged to plaintiff Holiday Shores Sanitary District.

He ordered the release of Syngenta's contract with Jayne Thompson & Associates and noted that it appeared the firm had worked to create "a hostile attitude" about Madison County's judicial system.

He criticized Syngenta for resorting to a "campaign of intimidation," to which PR executive Jayne Thompson responded was "ridiculous" and "untrue."

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