Syngenta's motion to compel denied by Frazier; 7th Circuit to hear arguments Sept. 10 over intervenors' appeal

By Bethany Krajelis | Jul 23, 2013

Pointing to a pending appeal in the settled class action lawsuit over atrazine, a federal judge has denied the defendants’ motion to compel compliance with a protective order.

The defendants – Syngenta AG and Syngenta Crop Protection LLC – made their request July 10 in an attempt to force the plaintiffs’ attorneys to confirm they have complied with a document destruction provision in a 2010 protective order.

Under the protective order, parties were given 120 days from the conclusion of the case to return or destroy confidential information produced during discovery.

The court in October 2012 approved a $105 million settlement, an agreement that took effect Dec. 26 and resolved a class action suit that several municipalities and water providers in six states brought in 2010 against the Syngenta defendants.

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

The Syngenta defendants argued in its motion to compel that the parties agreed to extend that protective order’s 120-day period to June 20, but had not yet received certification of compliance from the plaintiffs’ attorneys as of July 10.

In a one-page order issued Monday, U.S. Magistrate Judge Philip M. Frazier wrote that the case is currently on appeal and “appeals have jurisdictional significance.”

“Because the Court of Appeals has jurisdiction over confidential materials filed under seal, the motion to compel compliance with the protective order is denied for lack of jurisdiction,” Frazier wrote.

The appeal Frazier refers to in his order comes from the Environmental Law & Policy Center (ELPC) and Prairie Rivers Network (PRN), two groups that have been fighting to unseal documents ever since they intervened in the class action suit in 2011.

They filed an appeal in March with the 7th Circuit Court of Appeals over an order U.S. District Judge J. Phil Gilbert handed down earlier that month.

Gilbert ordered some additional documents to be unsealed, but held those not directly cited in the plaintiffs’ briefs should remain under seal.

The federal appeals panel is scheduled to hear arguments over the intervenors’ appeal at 10 a.m. Sept. 10 at Chicago’s federal courthouse, where each side will have 10 minutes to make their case.

ELPC and PRN filed a response to the defendants’ motion to compel earlier this month, asking southern Illinois’ federal court to make it clear that the plaintiffs shouldn’t destroy certain documents.

The two groups argued in their response that documents filed with the court are exempted under the protective order and reminded the court that their pending appeal covers some of these documents as well.

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

Chicago attorneys Michael Pope, Christopher Murphy and Brian Fogerty of McDermott, Will & Emery represent the defendants.

Howard Learner, ELPC’s president and executive director, and his colleague, Jennifer Cassel, represent ELPC and PRN in their pending appeal.

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