Madison County Circuit Judge William Mudge has ordered Syngenta Crop Protection Inc. to turn over public relations and other documents that the company had claimed were privileged to plaintiff Holiday Shores Sanitary District.
Mudge had reviewed hundreds of documents privately in order to determine which ones could be used in a proposed class action Holiday Shores brought against Syngenta seven years ago.
Included in the documents Mudge ordered released to Holiday Shores are records from a public relations campaign that sought to capitalize on Madison County's "judicial hellhole" reputation.
The dispute over documents has stymied discovery in the case which has been plagued by such arguments since discovery began in earnest in 2009.
Holiday Shores brought the suit along with five other identical class actions alleging that the atrazine made by Syngenta and other companies runs off farm fields into drinking water supplies that the plaintiffs must then remediate.
The Madison County cases sparked a virtually identical class action in U.S. District Court for Southern Illinois last year.
That suit, led by the City of Greenville, Ill., remains pending against Syngenta and its Swiss parent company.
Attorneys for both sides in the Madison County Syngenta case – Stephen Tillery for the plaintiffs and Kurtis Reeg for the defendants – also represent their respective sides in the federal case.
Mudge's order comes less than a month after the judge postponed an April 1 hearing in order to have time to review the documents.
Syngenta claimed consulting privilege and attorney client privilege in reference to three sets of documents.
The first set relates to Don Coursey, an economics professor at the University of Chicago.
Coursey was eventually retained by Syngenta to act as a consulting expert witness.
However, the date of Coursey's hiring became a bone of contention between the parties.
Initially, it seemed that Coursey was hired by Syngenta in 2006. The company claimed privilege for his work from that year onward.
However, documents released by his employer, the University of Chicago, showed Syngenta hired Coursey in January 2009, a fact that the defense stipulated to at a March hearing before Mudge.
Mudge's April 20 order finds that documents from 2006 to the retention date are not subject to consulting privilege and, aside from certain documents that touch upon Coursey's communications with his own attorney, C. Raymond Bell, must be turned over to the plaintiffs within 14 days.
Any document where an attorney-client or privilege other than consulting privilege is asserted must be placed in a privilege log.
The second set of documents also relates back to Coursey.
Those documents, turned over to Mudge by the University of Chicago, include emails, studies, and other communications from Coursey's hard drive at the university.
The April 20 order mandates that those documents dated before Jan. 9, 2009 that were withheld from the plaintiffs based on the consulting privilege claims must be turned over within 14 days.
Those documents where a privilege other than the consulting privilege is asserted are to be included in a privilege log.
The April 20 order also deals with documents generated by a Chicago public relations firm hired by Syngenta.
Mudge inspected documents from the firm of Jayne Thompson & Associates (JTA) that Syngenta withheld on the basis that they were part of the company's litigation strategy.
JTA was previously mentioned in the case in relation to the dispute over Coursey's retention date.
Mudge orders Syngenta to produce a 13 page proposal dated Oct. 3, 2005 that was sent from JTA to a communications manager at Syngenta.
The document lays out a publicity campaign JTA would conduct for the defendant related to the Holiday Shores lawsuit.
"In a nutshell," Mudge's order reads, "a major element of the October 2005 JTA proposal outlines a plan to tie the defense of this action into a negative public relations campaign that castigates the Madison County judicial system as a 'judicial hellhole' and a source of 'jackpot justice,' and, in part, to undertake efforts to enhance the public's perception of Syngenta and the herbicide it manufactures at the expense of the Madison County judicial system."
The judge dismisses arguments made by Syngenta that JTA's work was a protected part of their litigation work.
"Although the document utilizes the term 'litigation support' on a couple of occasions, the proposal actually outlines an aggressive public relations strategy to build upon or create a hostile attitude toward the Madison County judicial system," the order reads. "Included is a recommendation to recruit 'supporters, including . . . the Illinois Civil Justice League, Illinois Chamber of Commerce, the Heartland Institute, Illinois Policy Institute and the Madison-St. Claire [sic] Record in this effort. It has nothing to do with trial strategy or the preparation of this case for trial as contemplated by Rule 201 (b) (3), but much to do with fostering a negative public perception of our judicial system."
Mudge finds that the JTA documents are business related and not part of the litigation strategy that would be protected.
The judge orders Syngenta to produce the JTA document within 14 days.
Mudge also canceled a May 6 evidentiary hearing related to the disputes and it will be reset once he has the opportunity to review the privilege logs and other documents that he has ordered the parties to produce.
The judge ended his order with an admonishment to both parties that asked to them to attempt to continue discovery and resolve disputes between them.
Holiday Shores also filed a motion to compel Syngenta to answer various discovery requests April 20 as well.
The Syngenta case is Madison case number 04-L-710.
The atrazine suits are Madison case numbers 04-L-708 to 04-L-713.