Judge turns down Bayer 'blanket' secrecy request
CHARLESTON, W.Va. -- A federal judge on Tuesday turned down Bayer CropScience's request for what a lawyer for Kanawha Valley residents called a "blanket assertion of confidentiality" for documents concerning the proposed restart of the methyl isocyanate production unit at Bayer's Institute chemical plant.
U.S. Magistrate Judge Mary Stanley did approve an order that would allow Bayer to retrieve any attorney-client documents that are mistakenly turned over to a lawyer for the residents.
The decisions by Stanley came during a hearing held to discuss exchanging documents and other possible evidence in preparation for a major hearing on Feb. 25 before U.S. District Judge Joseph R. Goodwin.
Last week, Goodwin granted 16 Kanawha Valley residents a 14-day temporary restraining order that blocks Bayer from resuming production of MIC until he can hold a full hearing.
The two sides had already agreed to, and Stanley signed, a model protective order that allows Bayer to mark certain documents provided to the residents as confidential. The residents could challenge that assertion and the judge would rule on the matter. Also, Goodwin would eventually have to approve any effort by either side to seal documents being used as formal evidence in the case.
But the residents' lawyer, William DePaulo, said Bayer had asked him to agree to a separate order that would have designated all documents provided to him as confidential business information.
"It's a blanket assertion of confidentiality with respect to every document," DePaulo said.
DePaulo compared the proposal to Bayer's citing of homeland security regulations to try to avoid giving documents to the U.S. Chemical Safety Board -- a move that Bayer's CEO later admitted was aimed at avoiding negative publicity and any public debate over the plant's MIC stockpile.
Bayer lawyer Al Emch said his proposal would have made things easier for he and other company lawyers, allowing them to avoid going through and marking all of the documents Bayer wanted to keep confidential.
"We do have a lot of stuff that we've been asked to stamp as business confidential," Emch said.
Emch also said that he was concerned that documents provided to the residents would be leaked to The Charleston Gazette and published in the newspaper.
"The biggest thing we don't want is stuff that gets out farther than it ought to go," Emch said.
Stanley said that the case would be heard in open court, but that the parties should not try to take their arguments to the media.
"The one thing I am confident that Judge Goodwin does not want is the lawyers trying this case in the press," Stanley said. "This is no time for the media machine to be standing on the courthouse steps giving press conferences."
But, Stanley added, "If you are going to use a public institution to settle a dispute, then the public ought to know what you're doing."
Stanley declined to sign the broader confidentiality order, but said she would approve an order to allow Bayer protections if its lawyers inadvertently give DePaulo records that are covered by the attorney-client privilege.
The residents filed suit on Feb. 8, seeking to stop Bayer from restarting the MIC unit until it complies with detailed recommendations from the chemical board and until federal inspectors examine the unit and declare it safe.
The case over restarting the MIC unit, which has been down for a reconfiguration project since August 2010, is the latest chapter in a 25-year effort by some Kanawha Valley residents to rid the community of the Institute plant's huge stockpile of MIC. Community activists have focused their concerns on MIC since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.
Bayer was preparing to start making MIC again later this week, following a project to remake the unit and reduce its stockpile of the chemical by 80 percent.
That project was nearly completed when Bayer announced last month that it was going to stop making, using and storing any MIC at the plant by mid-2012 as part of a corporate restructuring and an agreement with the U.S. Environmental Protection Agency to cease sales of the pesticide Temik.
At Institute, Bayer uses MIC to make aldicarb, the active ingredient in Temik. Aldicarb from Institute is shipped to another Bayer plant in Georgia, where it is used to formulate Temik. Bayer wants to restart the MIC unit so it can continue making aldicarb and Temik for another 18 months until the EPA deal takes effect.
Reach Ken Ward Jr. at firstname.lastname@example.org or 304-348-1702.