Magistrate rejects plea to unseal Syngenta documents; Environmental groups sought access in atrazine class action

By Steve Korris | Aug 12, 2011


BENTON – U.S. Magistrate Judge Phil Frazier decided not to tear up an order that protects the privacy of Syngenta Crop Protection in litigation with Stephen Tillery.

On Aug. 11, Frazier rejected a plea from the Environmental Law and Policy Center and the Prairie Rivers Network to vacate an order allowing confidentiality in discovery.

The lawyer for the groups, Howard Learner of Chicago, had argued that all records of the case belonged to the public even if Tillery filed them for no public purpose.

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," Learner wrote.

Syngenta argued that the order complied with Seventh Circuit law, and Frazier agreed.

"The court is satisfied that the protective order complies with relevant authority, which allows litigants to maintain a level of secrecy when they exchange information regarding their claims and defenses," Frazier wrote.

"The protective order does not order the parties to file documents under seal and does not require the clerk to maintain documents under seal.

"Moreover, the order does not govern information used at trial or filed in connection with dispositive motions.

"The order anticipates that any decision to maintain materials under seal will be made at a later date, following a ruling on a separate motion supported by the necessary showing of good cause."

Frazier assists District Judge Phil Gilbert, who presides over Tillery's claim that weed killer atrazine contaminates water.

In July, Gilbert denied a motion from the nature groups to unseal all documents.

Learner moved for reconsideration on Aug. 2.

"If the defendants claim that certain documents constitute or contain trade secrets, they must 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 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.

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.

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