Bethany Krajelis Aug. 8, 2013, 11:50am

The defendants in the now-settled class action suit over atrazine have asked a federal judge to reconsider his July 22 ruling that denied their motion to compel.

Syngenta AG and Syngenta Crop Protection LLC filed the motion July 10 in an attempt to force the plaintiffs’ attorneys to comply with a 2010 protective order that included a provision requiring the parties to return or destroy confidential information produced in discovery within 120 days of the case’s conclusion.

The court in October 2012 approved a $105 million settlement, an agreement that took effect Dec. 26 and resolved a class action suit that several municipalities and water providers in six states brought in 2010 against the Syngenta defendants.

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

The Syngenta defendants argued in their motion to compel that the parties agreed to extend that protective order’s 120-day period to June 20, but had not received certification of compliance from the plaintiffs’ attorneys as of July 10.

Denying the defendants’ motion, U.S. Magistrate Judge Philip M. Frazier wrote in his July 22 order that the case is currently on appeal and “appeals have jurisdictional significance.”

“Because the Court of Appeals has jurisdiction over confidential materials filed under seal, the motion to compel compliance with the protective order is denied for lack of jurisdiction,” Frazier wrote.

The appeal Frazier referred to in his one-page order came from the Environmental Law & Policy Center (ELPC) and Prairie Rivers Network (PRN), two groups that have been fighting to unseal documents ever since they intervened in the class action suit in 2011.

The two groups in March appealed a ruling U.S. District Judge J. Phil Gilbert handed down earlier that month that ordered some additional documents to be unsealed, but held that those not directly cited in the plaintiffs’ briefs should remain under seal.

The Seventh Circuit Court of Appeals is scheduled to hear arguments over that appeal at 10 a.m. Sept. 10 at Chicago’s federal courthouse.

In its motion to reconsider, which was filed late last month, the Syngenta defendants contend that “the Court misunderstood the distinction between the issues that are on appeal and the matters raised by Syngenta’s motion.”

“Contrary to this Court’s Order, this Court was not divested of jurisdiction to rule on Syngenta’s motion where the limited issue on appeal before the U.S. Court of Appeals is separate and distinct from the collateral matter of Plaintiffs’ compliance with the terms of the Court’s Protective Order,” the defendants state in their motion.

The Syngenta defendants assert that the federal court had jurisdiction to rule on its motion to compel because the issue in that motion “is completely separate” from the issues that the intervenors’ appealed to the Seventh Circuit.

The intervenors’ appeal, the defendants contend, focuses on their ongoing effort to unseal documents in the name of public disclosure while their motion to compel deals with a specific provision of the 2010 protective order.

“Plaintiffs’ counsel’s obligations under the Protective Order to return or destroy documents in their possession have nothing to do with whether there is a presumption of public access to documents filed with the Court under seal,” the defendants claim.

They further argue, “Indeed, Plaintiffs’ counsel’s destruction of their copies of Syngenta’s confidential documents will have absolutely no effect on the pending appeal because, assuming Intervenors prevail on appeal, the confidential documents filed in the court’s record under seal will be unsealed and made publicly available to Intervenors and the rest of the world.”

As such, the Syngenta defendants contend in their motion to reconsider that the court should vacate its July 22 denial and grant their motion to compel.

Chicago attorneys Michael Pope, Christopher Murphy and Brian Fogerty of McDermott, Will & Emery submitted the motion to reconsider on behalf of the Syngenta defendants.

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

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