The parties in a proposed state class action over alleged water contamination caused by atrazine haggled over the confidentiality of documents related to defendant Syngenta Crop Protection LLC's public relations efforts.
Madison County Circuit Judge William Mudge on Friday morning took the matter under advisement after hearing arguments from Syngenta's counsel, Kurtis Reeg, and lead plaintiff's counsel Stephen Tillery.
Tillery, representing the Holiday Shores Sanitary District, argued it was Syngenta's burden to prove that 24 documents related to deposition testimony of former Syngenta public relations employee Sherry Ford should remain confidential.
Reeg cited an on-going First Amendment dispute in the case that is currently pending before the Illinois Supreme Court.
The hearing featured Mudge's questions about overlap between the Holiday Shores litigation and a 2010 federal class action filed by the City of Greenville against Syngenta and its Swiss parent company.
The hearing also heard rhetoric from Reeg about Syngenta's constitutional rights and from Tillery who accused Syngenta of taking various actions to influence the perception of atrazine.
Holiday Shores filed six suits in 2004 alleging that the weed killer atrazine runs off farm fields into drinking water supplies that the plaintiffs must then remediate.
The sanitary district seeks to lead classes of Illinois water providers in the six suits brought against Syngenta and the other makers and distributors of the herbicide.
The six Madison County cases have yet to be certified as yet.
At points in Friday's hearing, Mudge questioned Tillery and Reeg about the overlap in discovery in the Holiday Shores and Greenville cases.
"It appears to me you're litigating the same issues here as in Greenville," Mudge observed. "How are the parties carving out what is argued before the federal court and in the state case? You're litigating over the same product."
Reeg and Tillery told Mudge that the Sherry Ford dispute was unique to the Madison County case unlike issues Syngenta had raised prior to the hearing about non-party subpoenas.
The hearing had been set to include a proposal to quash nearly 100 subpoenas issued by Holiday Shores to applicators and sellers of atrazine.
The same issue came before U.S. Magistrate Phillip Frazier earlier this week.
Frazier denied a Syngenta motion to quash the subpoenas in the Greenville case on Monday.
Although the matter had been set to come before Mudge Friday, Reeg informed the judge that he and the plaintiff's team were working out the issue.
Tillery argued in relation to the 24 disputed Sherry Ford documents that it was Syngenta's burden to show how they were confidential under a protective order entered by former presiding judge, Madison County Circuit Judge Barbara Crowder.
He questioned whether the disputed documents could be considered confidential when they were already turned over the plaintiffs.
He also questioned how the documents and their relation to public relations efforts could be covered by the protective order and its prohibitions about revealing trade secrets.
"What is Monsanto or Drexel or Dow going to do with the information that's going to hurt them?" Tillery asked.
Mudge also questioned whether the efforts could involve trade secrets.
"How does the conduct Mr. Tillery is describing put you at a disadvantage to a competitor like Monsanto?" Mudge asked Reeg.
Reeg responded that matters revealed in the documents such as dollar amounts the company spent on research and other efforts could harm his client's business interests.
Competitors, Reeg said, "would kill to get that kind of information."
He also countered that the plaintiffs were misusing Crowder's order.
"They're trying to take advantage of the protective order," Reeg told Mudge.
Reeg stressed that Syngenta claims some of the Sherry Ford documents are protected by the company's rights under the First Amendment, including lobbying and other activities.
The First Amendment issues were taken up by Crowder last year in relation to non-party subpoenas Holiday Shores issued to lobbying, chemical industry and other groups.
Crowder found certain lobbying information was fair game in discovery.
The judge then certified the First Amendment questions for appeal.
The Fifth District Appellate Court sided with the plaintiffs on the matter.
Syngenta then appealed to the high court, which did not take up the matter last term.
Reeg said his client wanted to wait for the outcome of the Supreme Court's ruling.
"I don't want, on behalf of my client, to release matters that are constitutionally protected," Reeg said. "I don't know. Last time I looked, the Constitution falls within the law . . . The plaintiffs in this case will not be harmed if we globally – the parties and this court – wait."
Tillery protested that the document dispute was not related to the First Amendment.
"He's confusing the protective order with privilege," Tillery said.
After additional argument, Reeg offered to make up a list of line issues and other matters related to the dispute for Mudge's review.
The judge granted a brief recess for Reeg to do so before reconvening court just before 11 a.m.
Reeg went over the designations with the judge before Mudge told the parties he would take the matter under advisement.
Syngenta filed additional responses to the matter earlier Friday morning.
Neither Mudge nor Tillery had read them as of the 9 a.m. hearing.
Tillery asked for and was granted until the middle of next week to file a response to those filings.
Reeg and Tillery represent their respective sides in the Greenville case.
The parties are set to meet again in court on Aug. 2.
The Syngenta case is Madison case number 04-L-710.
The atrazine cases are case numbers 04-L-708 to 04-L-713.