MADISON - ST. CLAIR RECORD

CHICAGO – Nature groups claim a Supreme Court precedent that prevents abuse of discovery from litigation doesn’t apply to them because they won’t abuse it.

Their lawyer, Howard Learner of Chicago, proclaimed their innocence in a Sept. 24 brief for the Seventh Circuit appellate court.

“There is absolutely no evidence in the record that intervenors Environmental Law and Policy Center and Prairie Rivers Network did anything at all improper,” he wrote.

“If a litigant in a different case attempted to abuse the discovery process or improperly sought to overload the record with irrelevant documents, the district court has remedies to keep the documents out of public view,” he wrote.

“Moreover, if documents were filed with the court for improper purposes, the presumption of public access to those documents can be overcome,” he wrote.

He wrote that his bid to unseal 242 exhibits from a class action over weed killer atrazine was distinguishable from a 1984 decision that keeps discovery confidential.

In that case, the Supreme Court ruled that the Seattle Times could not publish information it obtained through discovery in a defamation and privacy invasion suit.

Learner wrote that documents in this case supported opposition to a motion to dismiss Syngenta AG, Swiss owner of atrazine maker Syngenta Crop Protection.

He wrote, “They are not discovery documents held only in an attorney’s private office.”

He wrote, “Defendants here did not have any reasonable expectation that these documents would remain private and kept out of the public record.”

Plaintiff lawyer Stephen Tillery of St. Louis filed the exhibits in 2011, but District Judge Phil Gilbert declared them extraneous because Tillery didn’t cite them.

Gilbert sealed them without reading them, writing that he wished he could remove them from the electronic file.

Learner moved to unseal them, Gilbert denied the motion, and Learner appealed.

At oral argument Sept. 10, the Justices gave both sides two weeks to brief the case in light of the Seattle Times precedent.

For Syngenta, Christopher Murphy of Chicago enjoyed the advantage of quoting the precedent at length.

“Seattle Times holds that the public enjoys no First Amendment right of access to confidential documents that litigants produce during pretrial discovery,” he wrote. “Similarly, in this case, there is no First Amendment right or presumption of public access to the confidential discovery documents that the district court stated it would not consider in making its rulings."

He quoted the Court’s holding that, “A litigant has no First Amendment right of access to information made available only for purposes of trying his suit.”

“The Court first explained that the discovery process is a matter of legislative grace and thus continued control by the court over the discovered information did not raise the same specter of government censorship as in other contexts," he wrote. “The Court also explained that the discovery process historically was not open to the public at common law and, in general, is conducted in private as a matter of modern practice.

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

He quoted the Court’s holding that “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information." He quoted its holding that “to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court.”

He wrote that Syngenta’s documents, like those in the Seattle Times case, were not admitted into the judicial record.