Gilbert orders exhibits in Syngenta case to be unsealed; Environmental groups prevail as intervenors

By Bethany Krajelis | Mar 20, 2013


A federal judge on Tuesday ordered the unsealing of eight exhibits in the now-settled class action lawsuit over atrazine.

In his eight-page memorandum and order, U.S. District Judge J. Phil Gilbert affirmed Magistrate Judge Phillip Frazier’s Dec. 4, 2012 ruling that directed the plaintiffs to unseal several exhibits included in their response to the Syngenta defendants’ motion to dismiss.

Gilbert ordered the plaintiffs to electronically re-file these exhibits on April 19 without placing them under seal.

Attorneys at Korein Tillery in St. Louis and Barron & Budd in Dallas represented the plaintiffs in the suit, which settled this past fall for $105 million.

The Syngenta defendants appealed Frazier’s 2012 order, seeking to keep eight exhibits under seal because they allegedly contained “confidential business information” regarding business decisions, financial information and planning strategies.

As intervenors to the class action suit in which the plaintiffs claimed the agricultural herbicide had entered their water supplies, the Environmental Law and Policy Center (ELPC) and Prairie River Network (PRN) sought to unseal exhibits, asserting the public’s right to access court files.

Saying that “whether certain documents filed under seal should remain under seal has been an issue in this case for more than two years,” Gilbert wrote that the “defendants bear the burden of demonstrating that maintaining the documents under seal is warranted.”

“They have repeatedly failed to satisfy this burden,” he wrote.

The issue of sealing documents, Gilbert wrote, was first addressed in Frazier’s Oct. 5, 2012 protective order, which stated “all items filed with the clerk under seal must be accompanied by separate motion showing good cause to exclude the material from the public record.”

Gilbert wrote that the plaintiffs filed several motions and exhibits under seal because they believed the protective order required them to do so as the documents referred to or contained information that the defendants had designated as “confidential information.”

Even though the plaintiffs filed the documents at issue, Gilbert wrote “the defendants are the parties with the interest in maintaining the secrecy of the documents.”

They, however, did not file a separate motion showing good cause to keep the documents sealed as required by the protective order.

Gilbert wrote that the Syngenta defendants tried to justify the sealing of these documents, but failed “to offer any legal reason or argument overcoming the presumption in favor of public access to court files.”

Dissatisfied with the parties’ responses to its first order to show cause, Gilbert explained that the court issued a second order that directed the defendants to show cause as to why every document filed under seal in the case should not be unsealed.

In their response, the Syngenta defendants put the sealed documents into three categories: 1) documents that should be unsealed because they shouldn’t have been designated as “Confidential Information,” 2) documents that should be stricken because they were duplicates or not cited, and 3) documents that should remain under seal.

To bolster support for the third category, the defendants cited three unpublished cases that held “documents should be sealed if they contain regulatory compliance and strategies and product development information … organizational structure, employee assessments and employee compensation ... trade secrets, nonpublic financial information and nonpublic business information like pricing, business plans and strategies.”

“They did not, however, explain in any detail how the general justifications identified in the three cases they cited applied to the specific materials they sought to keep sealed,” Gilbert wrote.

In December 2012, Frazier ordered several documents, including Exhibits 298, 329, 346, 348, 357, 358, 359 and 360, to be unsealed.

“After carefully reviewing the documents in question and Magistrate Judge Frazier’s order directing that they be unsealed, the Court finds that the order is not clearly erroneous or contrary to law,” Gilbert wrote. “Furthermore, the Court sees no reason to sua sponte reconsider that decision.”

He added, “Frazier was correct in finding that the defendants have not shown good cause for keeping the documents under seal, and he reached the same result the Court would have reached had it considered the matter in the first instance.”

According to Gilbert’s order, the following exhibits will soon be unsealed:

  • Exhibit 298 “is a now-three-year-old seventeen-page treasury policy.”

  • Exhibit 329 is “a now-three-year-old 144-page set of guidelines for higher level ‘sanctioning’ or ‘support’ of projects involving capital expenditures before they are ‘approved’ by the legal Syngenta entity making the expenditure.”

  • Exhibit 346 “is a sixteen-page collection of in-house attorney recommendations for board of director approval of various settlements, property sales, dividend payments, bylaw revisions, and conversion of corporate status, the most recent of which is two and a half years old.”

  • Exhibit 348 “is a 383-page collection of director meeting minutes, director resolutions, shareholder approvals, and stockholder approvals covering a period of approximately ten years, ending two and a half years ago.”

  • Exhibits 357-360 “provide synopses of other materials (codes, guidelines, protocols, policies) regarding assorted reserved powers and delegations of responsibilities for general categories of tasks and decisions with no indication as to the time frame of their relevance.”

In addition, Gilbert wrote in his order that “the defendants have waived any argument that the documents in question should remain under seal."

They did so, he explained, by not complying with the protective order’s requirements, failing to adequately explain their argument for good cause to keep the documents sealed and by presenting an argument for the first time in their appeal over Frazier’s order.

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