BENTON – Syngenta Crop Protection must give Stephen Tillery of St. Louis a database about weed killer atrazine that Tillery associate John Craig called a holy grail.
On Nov. 22, U.S. Magistrate Judge Phil Frazier granted Tillery access to atrazine statistics that Syngenta has gathered from water suppliers around the nation.
Tillery seeks court orders declaring atrazine a defective product and requiring Syngenta to pay for complete removal of atrazine from drinking water in six states.
Frazier, who handles discovery for District Judge Phil Gilbert, said the wealth of information in the database might move the case along.
He said he placed on plaintiffs the onus of deciding which information is useful.
He said production of the database would remove Tillery's concerns that Syngenta hasn't given him all information he requested.
Choosing a less mystical metaphor than a holy grail, Frazier said, "You rarely get an opportunity to swat a lot of flies at once."
He said Syngenta would give the database to three attorneys under a protective order.
For Syngenta, Michael Pope of Chicago asked if plaintiffs would bear the expense.
Frazier said yes, but hesitated when Tillery asked him to clarify the possible cost.
Frazier said, "We'll saw off that branch when we get to it."
He told Tillery, "The quid pro quo is that you have to let them know what this access solves in terms of your outstanding discovery requests."
Craig asked if an expert could see the database, and Frazier said that was appropriate.
Frazier said, "They go to jail just like you do."
Tillery sued Syngenta in federal court last year, proposing a class action on behalf of water suppliers in Illinois, Indiana, Iowa, Ohio, Missouri and Kansas.
He has pursued similar actions in Madison County circuit court since 2004.
He claims he doesn't seek to disturb a water quality standard of the U.S. Environmental Protection Agency, finding atrazine safe up to three parts per billion.
As the hearing began, Pope said plaintiffs can't establish standing unless they show costs that were necessary to satisfy statutory obligations.
"This whole thing is about three parts per billion," Pope said,
Frazier said, "There's a lot of wiggle room in that."
Tillery said his complaint alleges contamination not only from atrazine but also from chemicals that degrade from atrazine.
He said many of them are more toxic than atrazine.
Frazier told him his discovery requests could be more specific.
"A lot of your requests are extraordinarily broad," Frazier said.
"I'm not going to look at three hundred thousand documents."
Tillery associate Christine Deaton said Syngenta responded to a request for studies by stating that there weren't any that were "scientifically replicated."
Frazier said the answer was not responsive.
For Syngenta, Kurtis Reeg of St. Louis said he produced a list of 18,000 studies.
Tillery said, "That's their response to us: you find them."
Frazier told Reeg plaintiffs were entitled to know what Syngenta knows about health hazards at levels below three parts per billion.
Pope said depositions of plaintiffs showed they put in filters for reasons having nothing to do with atrazine.
Tillery said, "Needless to say, we strongly dispute those comments."
Frazier asked if he can't get studies on the list.
Tillery said, "Not all."
Reeg said, "We don't even have all of them."
Frazier told Reeg to provide what he has by the first of the year.
Tillery said he will have to depose witnesses before reading relevant documents.
Frazier said he would ask Gilbert about extending class certification deadlines.
He said it would be foolish to extend them without streamlining discovery.
"If we can focus more on class certification issues, then we can get this thing moving," he said.
Craig then asked for access to Syngenta's community water supply database.
He said it covered about 10,000 suppliers.
"We discovered in July that it exists," Craig said.
Frazier asked how many discovery woes would be resolved by access.
Craig said, "With respect to class certification, this database is the holy grail."
He said it would identify class members, their characteristics, the nature of their sources, and levels they have had over the years.
Reeg said plaintiffs served a subpoena on a private contractor for the database but didn't pursue it after the contractor said it would cost $100,000.
Frazier ordered production in a week.