A federal judge won’t allow the Illinois Attorney General’s Office to block Monsanto’s access to documents from other state bodies, including the Illinois Environmental Protection Agency, as the company seeks to defend itself against allegations of water pollution.
Attorney General Kwame Raoul filed a lawsuit in Cook County Circuit Court against Monsanto and Solutia in 2022, alleging the companies for decades made and sold polychlorinated biphenyls that ended up contaminating creeks, rivers, lakes and beaches in Illinois and harming wildlife and other natural resources.
The companies removed the complaint to federal court, and in January, U.S. District Judge Robert Gettleman rejected Rauol’s effort to return the litigation to state court. In that ruling, Gettleman said federal jurisdiction applies because Monsanto acted under U.S. government direction while making chemicals during World War II and the Vietnam War.
Following that ruling, the companies filed a motion to compel discovery, arguing Raoul shouldn’t be able to limit access to agencies whose information he used to bolster the state’s claims. On June 20, U.S. Magistrate Judge M. David Wiesman issued an opinion partially granting that request.
According to Judge Wiesman, Monsanto’s motion to compel didn’t identify a specific state agency. Raoul argued granting Monsanto’s request would both be an infringement on the separation of powers principle separating his office from the governor, as well as be tantamount to making all state agencies party to the lawsuit. Instead, he argued, Monsanto should use third-party discovery tools to access its requested information.
In his lawsuit, Raoul specifically referenced the IEPA and the Illinois departments of Natural Resources, Agriculture and Public Health. He also said the lawsuit “intersects with the missions of these agencies, that the funds the AG would recover would, in part, compensate the state for what the agencies have spent on behalf of the public, that the state agencies possess information relevant to this case, and that the AG asserts claims under statutes otherwise administered by state agencies.”
Wieseman said the discovery rule Monsanto invoked “allows for the serving of document requests when the documents at issue are within the ‘control’ of the responding party,” and distinguished between the concept of control and possession, adding “the mere fact that state agencies are not parties to this litigation is not dispositive nor particularly persuasive in the resolution of this motion.”
Turning to the separation of powers argument, Wiesman noted the executive branch controls state agencies, but Raoul’s office operates independently per the state constitution.
“Despite these unique and separate roles, which the court appreciates,” Wiesman wrote, “there is zero Illinois caselaw stating that non-party state agencies cannot be subject to party discovery in cases brought by the Illinois Attorney General.”
Although Raoul said granting Monsanto’s request could result in a governor obstructing or preventing future litigation, Wiesman said that argument wasn’t adequately explained and reiterated that “any discovery-related connection” wouldn’t be problematic, in the future, especially given the complaint’s shared interests across agencies.
Wiesman noted both the state constitution and Supreme Court have established the attorney general’s office to direct the state’s legal affairs and said that authority extends to state agencies. As such, although the office may not possess the documents Monsanto seeks, it has the power to control such information.
Raoul argued granting Monsanto’s request would require a finding his office has “unfettered access to all state agencies,” but Wiesman said his ruling holds only that Raoul can “obtain responsive documents in the possession of the state agencies identified in the complaint, who have necessarily supplied the information necessary for the Attorney General to prepare his complaint, and have a significant interest in the Attorney General’s success in the matter.”
Regarding third-party discovery, Wiesman agreed with Monsanto that being forced to use a subpoena process likely would be a drawn-out, expensive proposition compared to its preferred method. However, he narrowed the document production order to only the agencies the complaint referenced and said Monsanto would have to file subpoenas if it wants information from other state bodies.
Attorneys Larry R. Rogers Jr., Larry R. Rogers Sr., Joseph A. Power Jr., James Ian Power, and Jonathan M. Thomas, of the firm of Power, Rogers & Smith, of Chicago, are representing the state in the action. The firm's roster on the case also includes retired Illinois Supreme Court Justice Robert R. Thomas, who is now a partner with the Power Rogers firm.
Attorneys Jason H. Wilson, Juliana Carter, Kyle McGee and Viola Vetter, of Grant & Eisenhofer, of Wilmington, Delaware, are also representing Illinois, as are Illinois Assistant Attorneys General Nancy J. Tikalsky and Stephen J. Sylvester.
Monsanto and Solutia have been defended by Adam E. Miller, Riley C. Mendoza and William Francis Northrip, of the Chicago and St. Louis offices of Shook, Hardy & Bacon.