Syngenta seeks order to compel plaintiffs' attorneys to certify destruction of confidential documents

The defendants in the now-settled class action lawsuit over atrazine have asked a federal judge to make the plaintiffs’ attorneys confirm they have destroyed documents containing confidential information.

Syngenta AG and Syngenta Crop Protection LLC on Wednesday filed its motion to compel in an effort to certify compliance of a document destruction provision included in a protective order that southern Illinois’ federal court entered in 2010 to prevent the improper disclosure of confidential materials.

The order, according to Syngenta’s motion, stated that confidential information produced during discovery should not be used for any purpose other than litigation and required parties that received confidential materials to return or destroy them within 120 days of the case’s conclusion.

The court in October 2012 approved a $105 million settlement in the suit over atrazine, an agricultural herbicide manufactured and distributed by Syngenta.

The settlement resolved a lawsuit that several municipalities and water providers in six states brought against the Syngenta defendants in 2010.

Represented by attorneys at Korein Tillery in St. Louis and Baron & Budd in Texas, the plaintiffs claimed that atrazine had entered their water supplies and forced them to incur costs associated with testing, monitoring and filtering their water.

Syngenta asserts in its motion to compel that because the settlement agreement took effect Dec. 26, 2012, each party was required to serve certification of its compliance with the protective order’s document destruction provision by April 25.

On April 24, the motion states that the parties agreed to extend that 120-day period to June 20.

Syngenta’s attorneys assert that they sent plaintiffs’ counsel a letter on June 20, certifying that they had destroyed all of the plaintiffs’ confidential information and requested that they do the same.

The motion notes that the plaintiffs’ counsel replied on June 24, stating that they would respond to the demand within one week. Syngenta’s attorneys contend they again inquired about the status of the document destruction again on July 3 and then met with plaintiffs’ counsel on Wednesday.

“[T]he parties met and conferred to resolve their differences with no success,” the motion states, noting that Syngenta has yet to receive plaintiffs’ certification. “Accordingly, Plaintiffs are in violation of the document destruction provision set forth in the Court’s Protective Order.”

Chicago attorneys Michael Pope, Christopher Murphy and Brian Fogerty of McDermott, Will & Emery submitted the motion on behalf of Syngenta AG and Syngenta Crop Protection.

Wednesday’s motion marks the first docket entry in the case since about March, when a pair of intervenors to the case– Environmental Law & Policy Center and Prairie Rivers Network - filed a notice of appeal over an order regarding sealed documents.

These two groups have been working to unseal documents in the case since they intervened in 2011 “for the sole purpose of enforcing the public’s presumption right of access to documents in the judicial record.”

They managed to get some of the documents unsealed since then, but have continued to fight to  remove the court-ordered seal on a group of documents not directly cited in the plaintiffs' briefs.

The Syngenta defendants oppose the group’s attempt, claiming “that sealed documents that do not influence or underpin a judicial decision are not subject to a presumption of public access.”

The two groups’ appeal remains pending in the Seventh Circuit Court of Appeals. They are represented by Howard Learner, ELPC’s president and executive director, and his colleague, Jennifer Cassel.