Reeg

Tillery

Atrazine maker Syngenta Crop Protection LLC is seeking a protective order to block the subpoenas of 100 non-parties in a proposed class action over the weed killer brought by lead plaintiff the Holiday Shores Sanitary District a week before a hearing in the case.

Syngenta filed its motion July 8, as well as a notice of hearing on the matter.

The company filed an identical move to quash the 100 subpoenas in a pending federal suit it is fighting in the United States District Court for the Southern District of Illinois on the same day.

The company questions why the plaintiffs "have launched this subpoena/deposition campaign against a sizeable number of Illinois' hard-working growers in the midst of their busiest season in an attempt to cause unreasonable annoyance, expense, embarrassment, disadvantage and oppression to Syngenta and these grower/applicators."

Madison County Circuit Judge William Mudge is set to hear the motion at a previously scheduled July 15 hearing slated to begin at 9 a.m.

The move comes as discovery disputes continue to rage in the seven year-old proposed class action.

The Syngenta suit is one of six proposed class actions filed by Holiday Shores in 2004 against the makers and distributors of atrazine.

Atrazine is an herbicide commonly used on farm fields.

The plaintiffs allege that atrazine runs off fields into drinking water supplies that they must then remediate.

Holiday Shores seeks to lead an Illinois class of water providers and municipalities on those claims.

The six Madison County cases have also sparked a nearly identical federal atrazine class action filed in the United States District Court for the Southern District of Illinois last year.

That case, led by the City of Greenville, would include a multi-state class of water providers pursuing claims against Syngenta and its Swiss parent company, Syngenta AG.

A hearing is set later this month in the federal suit on Sygenta AG's move to dismiss the claims against it for lack of personal jurisdiction.

None of the atrazine cases at the state or federal level have been certified to date.

The Madison County Syngenta case has made the most progress since discovery began in earnest in 2009.

However, the suit has been bogged down in disputes ranging from an expert witness's changing retention date and document privilege issues to depositions.

Mudge most recently conducted an in camera document review that lasted nearly an entire business day last month.

The judge then set hearing dates of July 15 and Aug. 2.

In the July 8 motion, Syngenta notes that beginning June 29, the plaintiffs issued and served subpoenas to about 100 non-parties to the suit.

Those non-parties sell or apply products containing atrazine.

The return date for the production of documents requested by the subpoenas was set to
begin July 19.

The subpoenas are "subpoenas duces tecum" which means "to bring with you," or are subpoenas requiring additional materials be produced.

"The subpoenas duces tecum issued by Plaintiffs are excessive, abusive, overbroad and designed to harass and cause unreasonable annoyance, expense, embarrassment,
disadvantage and oppression on the part of the non-party entities and individuals, as well as Syngenta," the motion reads. "Justice requires that a protective order be entered to limit the scope of the subpoenas duces tecum."

According to Syngenta's motion, the disputed subpoenas seek all documents regarding the non-parties' purchases of products containing atrazine for the past 10 years, any documents from state or federal or regulatory bodies concerning the restricted-use pesticides that the non-parties are required to keep, any sales documents regarding atrazine-containing products for the past 10 years, all documents related to any application of the atrazine products within the last 10 years, and all training and warning documents associated with the products.

Syngenta alleges that the disclosure of the sales, purchase, and some product-related information to Holiday Shores "could irreparably damage the non-parties' and Syngenta's business and future sales, negotiating power and competitive positions in the marketplace."

The company also claims a proprietary interest in some of the data requested by the subpoenas, and notes it has produced similar information to the plaintiffs already.

The defendant also notes confidentiality issues in play.

"There seems little doubt that Plaintiffs are attempting an end-run around the confidentiality of this information," the motion reads.

Syngenta also cites the lack of notice or preparation time the subpoenas currently give the non-parties.

"These growers, distributors and applicators are in the midst of their very busy growing season, working in the fields, mowing, plowing, harvesting, etc.," the motion reads. "Some of these third parties are individuals or small companies, and do not have all the time or resources to search for these records or information, especially during the current growing season . . .Also, many of the non-party entities and individuals work or are located in barns, sheds and storage or production facilities that are wholly unfit to host depositions . . .Plaintiffs have launched this subpoena/deposition campaign against a sizeable number of Illinois' hard-working growers in the midst of their busiest season in an attempt to cause unreasonable annoyance, expense, embarrassment, disadvantage and oppression to Syngenta and these grower/applicators. This is but another drumbeat in the Plaintiffs' chronic, wasteful discovery sideshow which has nothing to do with the merits of the case and is clearly not directed at the proper purposes of discovery."

The company goes on to ask Mudge to enter the protective order.

Steven Tillery, Christie Deaton, and others represent Holiday Shores. They also represent the Greenville plaintiffs in the federal case pending before U.S. District Court Judge J. Phil Gilbert.

Kurtis Reeg, Michael Pope and others represent the Syngenta defendants in the Madison County and federal case.

The Syngenta suit is Madison case number 04-L-710.

The atrazine class actions filed by Holiday Shores are Madison case numbers 04-L-708 to 04-L-713.

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