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.