The lead plaintiff in one of a series of pending class actions filed against the makers of the weed killer atrazine has responded to arguments about First Amendment privileges invoked over documents related to public relations efforts.
Lead plaintiff Holiday Shores Sanitary District filed its response to the free speech arguments raised by defendant Syngenta Crop Protection LLC during oral arguments July 15 before Madison County Circuit Judge William Mudge.
Syngenta claims that documents related to former Syngenta public relations employee Sherry Ford are confidential under its First Amendment Rights.
Holiday Shores counters that there is a presumed right that filings in a case are public and that Syngenta has waived its privileges to the documents.
Holiday Shores is the lead plaintiff in six nearly identical class actions filed against Syngenta and other atrazine makers in 2004.
Atrazine is a weed killer commonly used by farmers.
Holiday Shores and the other plaintiffs allege that atrazine runs off farm fields into water supplies that the plaintiffs must then remediate.
The Syngenta case has made the most progress of any of the 2004 cases.
None have been certified to date.
The suits have sparked a federal class action against Syngenta and its Swiss parent company filed by the City of Greenville.
That case is currently pending in U.S. District for the Southern District of Illinois.
The July 15 arguments before Mudge in the Madison County Syngenta case centered on documents related to Ford's testimony about Syngenta's public relations efforts in the underlying litigation.
Mudge entered an order the same day following arguments.
That order deemed all documents not included in the attached list as non-confidential.
The attached list of documents generated July 15 during the hearing will be reviewed by Mudge privately and he will render his decision as to their confidentiality.
Any additional documents that Syngenta seeks to designate as confidential are to be named by Sept. 16. Any document that is not designated confidential by that date will be deemed open.
The July 21 response argues that Syngenta admitted during the hearing before Mudge that the documents don't contain trade secrets and Syngenta failed to designate the documents as confidential until after they were disclosed to the plaintiffs.
"The disclosure to a party in litigation is an absolute waiver of that privilege," Holiday Shores argues in the response.
Holiday Shores also disputes the First Amendment issue that Syngenta has previously raised in the case.
Those issues are currently before the Illinois Supreme Court and have yet to be decided.
"Virtually all of the documents at issue were produced in April or May 2011, long after issues had been briefed in the Illinois Supreme Court," the response reads. "In other words, were these documents truly subject to a First Amendment privilege, they would have been withheld by Syngenta and listed on a privilege log as subject to appellate review rather than having been produced to Plaintiffs."
Holiday Shores is also seeking to file exhibits under seal. That motion was also filed July 21.
Stephen Tillery, Christie Deaton, and others represent Holiday Shores. They also represent the Greenville plaintiffs in the federal suit.
Kurtis Reeg, Michael Pope and others represent the defense in both cases.
U.S. District Court Judge J. Phil Gilbert presides in the Greenville case.
The Syngenta case is Madison case number 04-L-710.
The atrazine cases are case numbers 04-L-708 to 04-L-713.