Steve Korris Sep. 5, 2013, 9:06am


CHICAGO – Any lawyer can turn confidential information into public record by filing it as an exhibit with any motion in any court, foes of weed killer atrazine argue at the Seventh Circuit Court of Appeals.

“Judicial records include all documents filed in a public court case at a public courthouse,” Howard Learner of Chicago wrote for two nature groups in June.

His clients seek to unseal 242 exhibits that atrazine maker Syngenta Crop Protection Services produced to St. Louis lawyer Stephen Tillery in a class action.

“The right of public access is particularly important in this case because the judicial records at issue relate to atrazine, a chemical herbicide that is known to contaminate surface and groundwater and which has been linked to numerous health problems,” he wrote.

“The sooner that these documents are unsealed and made available to the public, the sooner that any information therein concerning atrazine’s effects on the public health and the environment can begin informing policy and regulatory decisions about atrazine,” he wrote.

Learner will argue the case on Tuesday, Sept. 10, for the Environmental Law and Policy Center and the Prairie Rivers Network.

The groups intervened in a suit that Syngenta and Tillery settled last year, but they couldn’t persuade U.S. District Judge Phil Gilbert to unseal the exhibits.

Gilbert found no connection between the exhibits and the motion they accompanied. He called them extraneous and didn’t review them.

On appeal, Learner argues that his clients made the exhibits relevant by appealing.

“This court might find it necessary to review those documents in evaluating ELPC and PRN’s request for relief, and they are decidedly relevant to the appeal,” Learner wrote.

He wrote that “these exhibits should be unsealed even if Syngenta were somehow correct that filed documents can remain sealed if a district court judge chose to not review or rely upon them in reaching a decision.”

For Syngenta, Michael Pope of Chicago answered that the exhibits should not have been filed in the first place.

Pope wrote that “sealed documents that don’t influence or underpin a judicial decision are not subject to a presumption of public access.”

He wrote that intervenors have no right to extraneous material.

Unsealing the exhibits “would open the door to unscrupulous litigants who seek to gain a litigation advantage by publicly disclosing highly confidential documents that were produced by their adversary during discovery pursuant to the terms of a valid protective order," he wrote.

“Plaintiffs provided no explanation as to why 242 of their 365 exhibits were never cited in their brief.

“Syngenta also raised concerns that intervenors were acting as a shill for plaintiffs to obtain public disclosure of Syngenta’s commercially sensitive documents.

"Intervenors moved to intervene on the very same day that the court denied plaintiffs’ request to unseal the exhibits.

“Second, the two alleged members of the public who submitted affidavits in support of intervenors’ motion to intervene were actually employed by the intervenors.”

He also wrote that district courts should be given discretion to strike or keep under seal confidential documents that have no relevance to the decision making process.

“Intervenors’ proposed rule 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," Pope wrote.

“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.”

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