BENTON – Any document class action lawyer Stephen Tillery chooses to file belongs to the public even if he filed it for no public purpose, according to private groups seeking access to records Tillery obtained from Syngenta Crop Protection.

Twice in four days, Howard Learner of Chicago petitioned in federal court to unseal about 250 exhibits that Tillery attached to briefs without citing them.

Learner represents Environmental Law and Policy Center, and Prairie Rivers Network, as intervenors in a suit blaming weed killer atrazine for water pollution.

On Aug. 5, he wrote that all documents filed under seal have been used in a court proceeding and are subject to a presumptive right of public access.

"This statement applies equally to documents that have been filed with the court as exhibits – even those exhibits that were not individually cited in the briefs to which they were attached," he wrote.

He asked U.S. Magistrate Judge Phil Frazier to vacate a protective order that allows Syngenta to designate documents as confidential.

On Aug. 2, he asked District Judge Phil Gilbert to reconsider a July 21 order declaring the exhibits extraneous and keeping them under seal.

He wrote that according to Syngenta, "Plaintiffs filed the sealed documents as part of a premeditated scheme designed to exert pressure on Syngenta by disclosing Syngenta's so called confidential information to the public."

He wrote that the case Syngenta cited didn't apply, but he didn't deny the scheme.

"If the defendants claim that certain documents constitute or contain trade secrets, they musty specifically show that the information amounts to trade secrets in the relevant industry," Learner wrote.

"For material to be protected as a trade secret, it must give the holder an economic advantage and threaten a competitive injury.

"Business information whose release harms the holder only because the information is embarrassing or reveals weaknesses does not qualify for trade secret protection."

He wrote that the exhibits might underpin Gilbert's ruling on a motion to dismiss Swiss holding company Syngenta AG for lack of jurisdiction.

At a hearing in July, Gilbert said he would decide the motion as soon as possible.

On Aug. 4, Syngenta lawyer Kurt Reeg of St. Louis wrote that terms of the protective order
comply with governing Seventh Circuit law.

"Federal courts in this circuit have repeatedly held that, in addition to trade secrets, documents which contain sensitive or proprietary business information may be marked as confidential under protective orders," he wrote.

He wrote that the order contains specific safeguards to protect the public right of access.

He wrote that if intervenors established that it was too broad, the appropriate remedy would be to amend it rather than vacate it.

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