Heartland Institute claims Tillery subpoena is attempt to 'bully, harass and annoy'

By Steve Korris | May 12, 2011

Martin CHICAGO – Heartland Institute, seeking to protect the privacy of its contributors in federal court, asks District Judge Samuel Der-Yeghiayan to strike Stephen Tillery's allegations that it created false reports on weed killer atrazine for Syngenta Crop Production.



CHICAGO – Heartland Institute, seeking to protect the privacy of its contributors in federal court, asks District Judge Samuel Der-Yeghiayan to strike Stephen Tillery's allegations that it created false reports on weed killer atrazine for Syngenta Crop Production.

"The rhetorical statements made by plaintiffs in their response are false and defamatory, or would be if they had not been made in the relative shelter of the judicial system," Heartland lawyers wrote on May 5.

They wrote that Tillery besmirched the reputation of Heartland science director Jay Lehr with baseless, reckless accusations.

They wrote that whether Syngenta hired Heartland has nothing to do with Tillery's ability to prove his case that atrazine contaminates water supplies.

"What is relevant, indeed crucial, to plaintiffs' case is whether or not atrazine has harmful effects even at miniscule levels," they wrote.

"It does not matter what newspapers report or what the public thinks on this issue," they wrote.

"Hard science will establish it, or not, as the case may be," they wrote.

Maureen Martin of Green Lake, Wisc., filed the brief along with Joseph Rejano of Chicago.

Der-Yeghiayan asked Heartland and Syngenta for briefs at a hearing on April 28, as he took under advisement their motions to quash a subpoena for Heartland's contributor list and other records.

The case reached Chicago by a winding trail.

In 2004, Tillery proposed five class actions against atrazine manufacturers and marketers in Madison County circuit court, on behalf of Holiday Shores Sanitary District.

He declared atrazine harmful to water supplies at any concentration, though U. S. environmental regulators considered it safe at three parts per billion.

The cases languished, and their prospects dimmed in 2006, when regulators decided not to change the standard.

In 2009, Tillery amended his complaints and added Illinois cities as plaintiffs.

Last year, he sued Syngenta in U.S. district court in Benton, on behalf of public and private water suppliers throughout the Midwest.

Last summer, in Madison County, he asked Circuit Judge Barbara Crowder to enforce a subpoena for Heartland's contributor list.

Heartland President Joseph Bast swore in an affidavit that he would lose at least half his support if he disclosed identities of contributors.

He wrote that he stopped posting their names in 2004, due to demonization of contributors.

Crowder ordered him to produce the list, finding that relevance outweighed First Amendment rights, but she stayed proceedings while Syngenta and Heartland appealed.

Fifth District appeals judges in Mount Vernon denied review in January, and Syngenta and Heartland petitioned the Illinois Supreme Court for review.

The Justices docketed the case for a term starting next week.

In March, Tillery obtained a subpoena in federal court at Chicago and served it on Heartland.

Syngenta and Heartland moved to quash it in federal court at Benton, but U.S. District Judge Phil Gilbert told them to seek relief in Chicago.

They did so, filing a civil suit with motions to quash and stay the subpoena.

Der-Yeghiayan heard the motions on April 28, and decided to read more.

On May 4, Syngenta lawyers wrote to him that Tillery tried to circumvent the stay Crowder imposed in the Holiday Shores litigation.

They wrote that federal courts lack the power to hear challenges to state court decisions.

They wrote that Syngenta would likely limit the content and frequency of its
communications with Heartland if such communications might not remain private.

They wrote that disclosure would discourage association and inhibit expression.

They wrote that Tillery offered no evidence in response to Bast's affidavit about losing support.

"Finally, the information sought by the subpoena has absolutely nothing to do with the merits or the substantive issues in the case," they wrote.

"Plaintiffs have no conspiracy count in their amended complaint and none of their claims include any issues that involve Syngenta's interaction with Heartland," they wrote.

"By its own terms and the topics about which it pretends to inquire, this subpoena is an overt attempt to bully, harass and annoy Heartland," they wrote.

Philip Sholtz, of Reeg Lawyers in St. Louis, filed the brief along with Michael Pope, of McDermott, Will and Emery in Chicago.

On May 5, Martin and Rejano wrote for Heartland that the case in federal court is a clone of the case in Madison County.

They wrote that EPA evaluated about 6,000 atrazine studies by scientists worldwide, to formulate a safety standard for drinking water.

"To assert, as plaintiffs do herein, that Heartland's reports are false and biased, even though they hew to U.S. EPA standards, is simply insupportable," they wrote.

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