Bethany Krajelis Sep. 10, 2013, 7:32pm

CHICAGO -- The attorney for a pair of intervenors to the now-settled class action suit over atrazine today stressed the importance of the public’s right to access as the ongoing battle over sealed documents reached a panel of the Seventh Circuit Court of Appeals.

Howard Learner, executive director for the Environmental Law & Policy Center (ELPC), argued on behalf of the ELPC and Prairie Rivers Network (PRN), two groups that intervened in the suit in 2011 “for the sole purpose of enforcing the public’s presumptive right of access to documents in the judicial record.”

Christopher Murphy, an attorney with McDermott, Will & Emery in Chicago, argued before the appeals panel on behalf of Syngenta AG and Syngenta Crop Protection LLC, the defendants in the suit that settled last year for $105 million.

Represented by attorneys at Korein Tillery in St. Louis and Baron & Budd in Texas, the plaintiffs in the now-settled suit claimed atrazine, an agricultural herbicide, entered their water supplies, forcing them to incur costs associated with testing and filtering their water.

Although the settlement was approved in October 2012 and took effect late last year, the intervenors’ fight to unseal documents continues as the federal appeals panel -- Chief Judge Frank Easterbrook and Judges Diane Wood and David Hamilton –heard arguments and took the matter under advisement today.

Both sides’ arguments have remained essentially the same since the issue first arose.

The intervenors want the court to unseal the documents, claiming that the public has a right to see them because they may contain information about atrazine’s potential effects on public health and the environment.

And the Syngenta defendants contend the documents should not have been filed in the first place and that many of them contain confidential business information that merit them remaining under seal.

The sealed documents at issue were filed as exhibits to the plaintiffs’ response in opposition to the Syngenta defendants’ motion to dismiss the suit.

The intervenors in March appealed a ruling from U.S. District Judge J. Phil Gilbert that unsealed some documents in the case, but held that those not directly cited in the plaintiff’s briefs should remain under seal.

Reminding the appeals panel that public access to court documents creates openness and confidence in the judiciary, Learner said “the public’s right of access doesn’t depend on whether a party decides to cite or not cite a document.”

The Syngenta defendants, however, have argued that the presumption of public access to court documents does not apply to documents that don’t influence a judicial decision, such as the ones at issue here.

On behalf of the Syngenta defendants, Murphy told the panel that although the documents at issue in the appeal “shouldn’t have been filed” in the first place, the district court didn’t abuse its discretion by maintaining certain ones under seal.

Wood, who at one point dubbed the set of circumstances in the case as “bizarre,” told Murphy she is “very reluctant to close the public record as a remedy to a problem that seems to be a financial burden.”

Easterbrook later followed up on Wood’s point, asking Murphy if it would have made sense for the lower court to appoint a special master to determine if the sealed documents should have been filed and then tax the parties the cost of doing so.

Murphy said it is not a cost issue and Learner told the panel during his rebuttal that a magistrate judge was assigned to and made initial rulings regarding all of the sealed documents at issue in the case.

During Learner’s argument, Wood questioned why the burden was put on the defendants to show the documents should remain under seal, saying that under that reasoning, a party could basically file every single item of discovery and then put the burden on the opposing party.

The Syngenta defendants brought up that issue in their briefing to the appeals panel.

They argued that unsealing the documents “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.”

In response to Wood’s question, Learner reminded the panel that the intervenors were not involved in the litigation and said regardless of why the documents were filed, they were filed in a public courthouse and as such, the public has a right to access them.

At the close of the hearing, Easterbrook told the attorneys he was “struck by the fact” that neither side discussed a public access case involving the Seattle Times and gave both sides 14 days to file a supplemental memorandum on the matter.

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