Bethany Krajelis Jul. 18, 2013, 8:26am

A pair of intervenors to the settled class action lawsuit over atrazine asked a federal judge this week to make it clear that the plaintiffs shouldn’t destroy documents filed with the court.

The Environmental Law & Policy Center (ELPC) and Prairie Rivers Network (PRN) made the request in a response they filed Wednesday to the defendants’ July 10 motion to compel compliance with a 2010 protective order.

In their motion, Syngenta AG and Syngenta Crop Protection LLC ask the court to make the plaintiffs’ attorneys confirm they have complied with the document destruction provision included in a protective order  seeking to prevent improper disclosure of confidential materials in the case.

The order, according to the defendants’ motion, stated that confidential information produced during discovery should not be used for any purpose other than litigation and required parties that received confidential materials to return or destroy them within 120 days of the case’s conclusion.

The court in October 2012 approved a $105 million settlement in the suit over atrazine, an agricultural herbicide manufactured and distributed by the Syngenta defendants.

The settlement resolved a lawsuit that several municipalities and water providers in six states brought against the Syngenta defendants in 2010.

Represented by attorneys at Korein Tillery in St. Louis and Baron & Budd in Texas, the plaintiffs claimed that atrazine had entered their water supplies and forced them to incur costs associated with testing, monitoring and filtering their water.

Syngenta asserts in its motion to compel that because the settlement agreement took effect Dec. 26, 2012, each party was required to serve certification of its compliance with the protective order’s document destruction provision by April 25.

The parties, the motion notes, agreed to extend that 120-day period to June 20, at which time Syngenta’s attorneys contend they sent plaintiffs’ counsel a letter certifying they had destroyed all of the plaintiffs’ confidential information and requested they do the same.

After some back-and-forth emails, the defendants’ motion states that attorneys for both parties met earlier this month in an unsuccessful attempt to resolve their differences.

As of July 10, the defendants' attorneys assert they had not yet received the plaintiffs’ certification of compliance with the order’s document destruction provision.

In their Monday response to the motion, ELPC and PRN note that they understand the goal of the defendants’ motion is to obtain confirmation that the plaintiffs have destroyed discovery documents that were not filed with the court or used as deposition exhibits.

The two environmental groups ask the court to make it clear in its order on the pending motion that the plaintiffs shouldn’t destroy documents filed with the court because they are exempted under the protective order and that their pending appeal before the Seventh Circuit Court of Appeals covers some of these documents as well.

ELPC and PRN have been working to unseal documents in the case since they intervened in 2011 “for the sole purpose of enforcing the public’s presumption right of access to documents in the judicial record.”

They have gotten some of the documents unsealed since then, but continue to fight to remove the court-ordered seal on a group of documents not directly cited in the plaintiffs’ briefs.

The Syngenta defendants oppose the group’s attempt, claiming “that sealed documents that do not influence or underpin a judicial decision are not subject to a presumption of public access.”

The two groups’ appeal remains pending before the federal appeals court. They are represented by Howard Learner, ELPC’s president and executive director, and his colleague, Jennifer Cassel.

Chicago attorneys Michael Pope, Christopher Murphy and Brian Fogerty of McDermott, Will & Emery submitted the defendants’ July 10 motion to compel compliance.

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