Bethany Krajelis Jun. 12, 2013, 11:43am

The district court did not abuse its discretion when it ordered certain documents in the now-settled class action lawsuit over atrazine to remain under seal, the defendants’ attorneys assert.

In a brief filed earlier this month, attorneys representing Syngenta Crop Protection LLC and Syngenta AG told the 7th Circuit Court of Appeals that these documents should remain under seal because they were never cited and didn’t “influence or underpin a judicial decision.”

The sealed documents now at issue before the federal appeals panel were filed as exhibits to the plaintiffs’ response brief in opposition to a motion to dismiss the suit over atrazine, an agricultural herbicide manufactured and distributed by the Syngenta defendants.

In 2010, municipalities and water providers in six states including Illinois sued the Syngenta defendants in federal court, claiming that atrazine had entered their water supplies and forced them to incur costs associated with testing, monitoring and filtering their water.

Represented by attorneys at Korein Tillery in St. Louis and Barron & Budd in Texas, the plaintiffs settled their suit with the Syngenta defendants in October 2012 for $105 million.

The defendants’ brief comes about a month after the Environmental Law & Policy Center (ELPC) and Prairie Rivers Network (PRN) filed its own brief with the 7th Circuit.

These two groups have been fighting to unseal documents in the suit ever since they intervened in 2011 “for the sole purpose of enforcing the public’s presumption right of access to documents in the judicial record.”

After they filed their first motion to unseal in 2011, U.S. District Judge J. Phil Gilbert divided most of the sealed documents into three categories: 1) documents that should be unsealed because they shouldn’t have been designated as “Confidential Information,” 2) documents that should be stricken because they were duplicates or not cited, and 3) documents that should remain under seal.

While Gilbert ordered some documents to be unsealed, he held that the documents not directly cited in the plaintiff’s briefs should remain under seal, a ruling the two groups’ unsuccessfully asked him to reconsider.

ELPC and PRN then appealed to Seventh Circuit, which in 2012 dismissed their appeal for lack of jurisdiction.

In December 2012, Magistrate Judge Philip Frazier, who handled some preliminary matters for Gilbert in the case, ordered several dozen more documents to be unsealed.

The Syngenta defendants appealed Frazier’s order in regards to eight of the 86 documents he ordered to be unsealed by April, claiming they should remain under seal because they contained “confidential business information” regarding business decisions, financial information and planning strategies.

Gilbert in March affirmed Frazier’s order, ruling that the Syngenta defendants “repeatedly failed to satisfy … the burden of demonstrating that maintaining the documents under seal is warranted.”

Even though Gilbert’s order leaned largely in favor of the two groups, they appealed to the 7th Circuit Court of Appeals again in March in an attempt to unseal the documents that were not cited in the plaintiffs’ brief.

“The District Court erroneously held that the long-recognized common law presumption of public access to documents filed in the judicial record only attaches to a document if a judge specifically relies on that document in making a decision on the merits,” the groups asserted in their May brief.

The Syngenta defendants, however, contend in their recently-filed brief that the “law is well-established in this Circuit that sealed documents that do not influence or underpin a judicial decision are not subject to a presumption of public access.”

“This legal principle is consistent with this Court’s own operating procedures for documents filed under seal in the record on appeal,” they claim, adding that “this common sense approach” avoids wasting judicial resources that would be required to conduct document-by-document reviews of confidential documents.

While ELPC and PRN point to the public’s right to access to unseal the documents at issue, the Syngenta defendants assert that this “right to access…is not absolute.”

They contend that because the court stated it wouldn’t consider any of the sealed exhibits in reaching its decisions, “the documents essentially remain nothing more than discovery materials, for which there is no presumption of public disclosure.”

If the 7th Circuit adopts the “intervenors’ proposed bright-line standard” and orders the unsealing of these documents, the Syngenta defendants assert that there would be far-reaching implications.

Such a ruling, they contend, would require  “district courts ... to unseal extraneous and irrelevant confidential documents simply because they were attached to a party’s motion or brief.”

This, they add, “would allow a party to publicly disclose all of the confidential discovery documents produced by its adversary by simply attaching the documents to any routine motion.”

“Such a rule would have a significant chilling effect on the willingness of parties to disclose their confidential documents during discovery since they will no longer be able to rely on the protections of any court imposed protective order," the Syngenta defendants assert in their brief.

Michael Pope, Christopher Murphy and Brian Fogerty, all of McDermott, Will & Emery in Chicago, submitted the brief on Syngenta’s behalf.

Howard Learner, ELPC’s president and executive director, and his colleague, Jennifer Cassel, represent ELPC and PRN.

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