Steve Korris Sep. 18, 2013, 10:37am


CHICAGO – Nature groups face an uphill climb in explaining why U.S. Supreme Court precedent doesn’t trump their First Amendment petition for information that Syngenta Crop Protection produced in litigation about weed killer atrazine.

In 1984, in Seattle Times v. Rhinehart, all nine Justices ruled that restraints on discovery don’t restrict a traditionally public source of information.

Neither Syngenta nor its opponents cited the case to U.S. Seventh Circuit appellate judges during oral arguments on Sept. 10, so the judges gave both sides two weeks to submit briefs on it.

The Environmental Law & Policy Center and Prairie Rivers Network, acting as intervenors in the atrazine class action that settled last year for $105 million, want the court to unseal discovery 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.

Syngenta contends that 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.

In Seattle Times v. Rhinehart, former U.S. Supreme Court Justice Lewis Powell wrote an opinion that appears to bolster Syngenta’s position.

“The prevention of the abuse that can attend the coerced production of information under a state’s discovery rule is sufficient justification for the authorization of protective orders,” Powell wrote. “It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse.

“This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties.

“The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.

“The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.”

All the Justices held that judicial limits on dissemination implicate the rights of the restricted party to a far lesser extent than they would in other contexts.

They held that, “There is an opportunity for litigants to obtain, incidentally or purposefully, information that not only is irrelevant but if publicly released could be damaging to reputation and privacy.”

Two differences stand out between the Seattle Times case and the atrazine case.

First, the Times sought to disseminate information from its own case, while the nature groups seek to disseminate information from someone else’s case.

Second, the information in the Times case related to the case at hand, while the information in the Syngenta case didn’t.

In the atrazine case at hand, attorney Stephen Tillery of St. Louis filed the information as exhibits with a motion in a class action against Syngenta, but he didn’t cite any of it in the motion.

District Judge Phil Gilbert of Benton called the exhibits extraneous, and he sealed them without reading them.

The nature groups moved to unseal them, and Gilbert denied the motion.

They appealed to the Seventh Circuit, which will render a decision after reading the briefs on the Seattle Times case.

The respondent before the Supreme Court in the Times case, Rhinehart, led a religion he called Aquarian Foundation.

Aquarians believed in communication with the dead through a medium, Powell wrote.

“Rhinehart is the primary Aquarian medium,” he wrote.

In the 1970s, the Seattle Times and the Walla Walla Union-Bulletin published a series of articles about the foundation.

Rhinehart and the foundation sued the newspapers, seeking $14.1 million for defamation and invasion of privacy.

Rhinehart alleged the newspapers held him up to scorn, hatred and ridicule, and the foundation alleged they diminished its financial ability to pursue its purposes.

The suit backfired when a judge compelled the foundation to produce member names and addresses, plus records of donations, transactions, and general financial condition.

The Times told Rhinehart it would publish the information, so the foundation moved for a protective order.

The foundation submitted affidavits of members about incidents at headquarters and threats by letters and telephone.

The judge issued an order prohibiting the Times from publishing, disseminating, or using the information in any way except to prepare for and try the case.

Rhinehart appealed the production order, the Times appealed the protective order, and the Supreme Court of Washington affirmed both orders.

The state court Justices held that the interest of the judiciary in the integrity of discovery was sufficient to meet the heavy burden of justification for prior restraint.

They held that “the giving of publicity to these matters would allegedly and understandably result in annoyance, embarrassment and even oppression.”

The ruling conflicted with precedents from the District of Columbia and the First Circuit appellate court, so the U.S. Supreme Court decided to resolve the conflicts.

After review, not one Justice sided with the Times in its push to publish what it discovered.

All nine agreed that the protective order didn’t offend the First Amendment.

“A litigant has no First Amendment right of access to information made available only for purposes of trying his suit,” Powell wrote.

“Moreover, pretrial depositions and interrogatories are not public components of a civil trial.”

“Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action.”

He wrote that the Times could publish the information if it got it somewhere else.

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