Judge seeking lines of confidentiality in federal atrazine class action

By Steve Korris | Jul 29, 2011


BENTON – As U.S. District Judge Phil Gilbert begins to unseal documents in litigation over weed killer atrazine, he welcomes assistance from volunteers.

He allowed the Environmental Law and Policy Center and the Prairie Rivers Network to intervene on July 21, so they can help him draw lines of confidentiality.

He asked them for briefs by Aug. 5.

He found that a protective order covering plaintiff counsel Stephen Tillery and defendant Syngenta Crop Protection Services kept both from providing much help.

"While the court is already addressing matters relating to the sealing of documents, it is doing so without vigorous adversarial briefing," he wrote.

"It might benefit from the input of a third party who has not agreed to the terms of the protective order, who has a greater interest than the plaintiffs in securing public access to court files and who can focus its efforts on the public access issue," he wrote.

Tillery represents public and private water suppliers who sued Syngenta last year, claiming atrazine contaminates their supplies.

They seek to recover costs of atrazine removal.

Tillery has filed many documents under seal but under protest, claiming Syngenta improperly designated them as confidential.

He moved to unseal the entire file, and Gilbert indicated he might do it.

He ordered Syngenta to justify all its designations of confidentiality, writing that he would unseal the entire file if Syngenta didn't show good cause.

Syngenta admitted it attached confidentiality to some documents that didn't need it, but argued that trade secrets, finances and personal information required protection.

Syngenta proposed to keep 81 exhibits under seal, and Gilbert wrote that he is reviewing them to determine if Syngenta carried its burden to maintain them under seal.

On July 26, Tillery moved to amend his complaint in order to obtain a declaration of Syngenta's obligations when atrazine contaminates water supplies in the future.

"Plaintiffs cannot responsibly incur substantial additional treatment costs without knowing whether Syngenta will be required to compensate them for those costs," he wrote.

"To resolve this uncertainty, plaintiffs seek a declaration that Syngenta will be responsible for reimbursing them for all future costs they incur in monitoring and removing atrazine from their water," he wrote.

He wrote that a count for declaratory relief would not expand the scope of the litigation.

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