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Judge asks MIC parties to list documents they want sealed

CHARLESTON, W.Va. -- A federal judge wants Bayer CropScience and Kanawha Valley residents who are suing the company to identify what documents in the case should be concealed from the public and the news media.

U.S. District Judge Joseph R. Goodwin told lawyers for both sides to submit detailed lists along with the specific legal arguments that they believe would allow any of the documents used as evidence in the case to be sealed.

Lawyers for Bayer and 16 area residents are preparing to make their case starting Monday on whether the company should be allowed to resume production of methyl isocyanate (MIC) at its Institute chemical plant.

"I intend to conduct the preliminary injunction hearing in this case with due regard to the bedrock principle that the judicial process and the records submitted to the court in connection with that process are presumptively open to the public," Goodwin wrote in a two-page order. "Nevertheless, I expect issues to arise at the hearing over whether certain evidentiary materials -- especially concerning potential vulnerabilities of the Institute facility -- should be made fully available for public inspection."

As of Tuesday evening, Goodwin has not yet made public a report submitted to him on Monday by a court-appointed engineer charged with advising the judge about safety procedures and the potential for a large-scale MIC accident at the Bayer facility.

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 toxic 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.

Goodwin and U.S. Magistrate Judge Mary Stanley, who is overseeing some discovery matters in the suit, both have cautioned lawyers for both sides against trying to make their cases through the media. But other than a routine protective order covering trade secret information, the case file contains no court orders mandating confidentiality or prohibiting public discussion of the suit.

In Monday's order, Goodwin told both sides to confer and submit to the court a joint memorandum outlining any documents that they agree should be kept confidential. If the two sides disagree on any specific documents, they are to file separate memos about those records.

All of the memos would be submitted under seal, meaning the public would not know what documents the court was considering keeping confidential.

Goodwin told the lawyers to explain for each document the reasons that the presumption of public access should or should not apply, and the extent to which the proposed confidentiality is narrowly tailored.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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