CHICAGO – Stephen Tillery can't compel the Heartland Institute to reveal the sources of its support, U.S. District Judge Samuel Der-Yeghiayan decided on May 13.

He ruled that Tillery's subpoenas for names of contributors and other private papers of the Chicago research group infringed on the First Amendment right of association.

He wrote that the subpoenas bordered on harassment.

He declared Heartland's documents irrelevant to an underlying suit against Syngenta Crop Protection before District Judge Phil Gilbert in Benton.

Der-Yeghiayan reached an opposite conclusion from Madison County Circuit Judge Barbara Crowder, who ruled for Tillery in a nearly identical case last year.

She found that the relevance of the records outweighed the right of association.

Fifth District appellate judges in Mount Vernon denied review of her decision, and a petition for review at the Illinois Supreme Court remains pending.

In federal court and in Madison County, Tillery represents public and private water providers alleging Syngenta contaminated water with weed killer atrazine.

The Madison County action involves Illinois providers, and the federal action involves providers in four states.

The federal action seeks recovery not only from Syngenta Crop Protection but also from Swiss holding company Syngenta AG.

In that action, Tillery obtained subpoenas against Heartland and its president, Joseph Bast, in federal court at Chicago.

Heartland and Bast prepared a motion to quash the subpoenas, and agreed with Tillery that they should take the motion to Gilbert.

He referred them to the court that issued the subpoenas, so Heartland and Bast started a civil suit in Chicago.

Der-Yeghiayan held a hearing April 28, and decided to quash the subpoenas.

He spotted four flaws in Tillery's argument that he couldn't rebut Syngenta's evidence at trial without Heartland's contributor list and other papers.

"Plaintiffs at this juncture are merely speculating as to the evidence or type of evidence that might be presented by Syngenta in the underlying litigation," he wrote.

"Evidence has been presented that Heartland has never conducted, authorized, sponsored or supervised research on the product in question, and plaintiffs have not presented evidence to the contrary," he wrote.

"Plaintiffs have the ability to file appropriate motions to bar the introduction of any evidence if Syngenta has not complied with certain court rules," he wrote.

"Plaintiffs have the ability to move the court in the underlying action to introduce any evidence, expert or otherwise, as it relates to the merits of their case," he wrote.

He described Tillery's plan for using the information as hypothetical and tangential.

"Heartland does not make the product that is the subject of the litigation, Heartland is not the governmental agency that regulates the product in question, and there are no conspiracy allegations between Syngenta and Heartland in the underlying action," he wrote.

He wrote that if plaintiffs believed Heartland's actions were crucial to the merits of the case, they could have included Heartland as a defendant.

"Plaintiffs' attempt at this juncture to make third parties de facto defendants is improper," he wrote.

"Plaintiffs have not shown that the information sought by third parties is crucial to plaintiffs' case or that it even relates to the merits of the case," he wrote.

He quoted an affidavit from Bast, who founded Heartland, stating that past disclosure of donor information led to demonization by critics and some journalists.

"Bast, who is in the best position to know the effects of disclosure based on past experience and his position as Heartland's president since 1984, indicates that Heartland would lose at least half of its current funding if Heartland is required to disclose donor identities," he wrote.

He wouldn't have enforced the subpoena even if he had found the records relevant.

"The requests in the subpoena issued to third parties fall squarely within the First Amendment associational privilege," he wrote.

"There is a vital interest in upholding the privilege of association and protecting donor confidentiality," he wrote.

"It is the opinion of this court that when there is a constitutional right at stake, it cannot and should not be taken lightly," he wrote.

"Even though the right may not be absolute, such a constitutional right cannot be trumped by fishing expeditions or untenable assertions that the information sought is highly relevant to the litigation," he wrote.

He wrote that Gilbert might find the records discoverable from Syngenta, adding that discovery disputes would be within Gilbert's exclusive jurisdiction.

On May 25, in Heartland's petition to overturn Crowder's order in the Madison County action, the Illinois Supreme Court will decide whether to grant leave to appeal.

Crowder no longer presides over the Madison County action.

After Chief Judge Ann Callis assigned Crowder strictly to asbestos suits, Callis assigned the Syngenta case to Circuit Judge William Mudge.

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