The state of Illinois sued Monsanto and several other companies alleging that they contaminated the environment by producing toxic polychlorinated biphenyls (PCBs) and caused environmental harm to the state’s air, water, wildlife and natural resources.
Monsanto sought discovery from state agencies, arguing that that Illinois attorney general has a legal right to obtain those documents and should therefore be required to produce responsive documents in the possession, custody or control of state agencies. The attorney general argued that such production would infringe on the separation of powers between the attorney general and the governor, and that the attorney general does not have an “unfettered legal right” to obtain documents from non-party state agencies. The magistrate judge disagreed and found that the attorney general was required to produce the documents.
The court began by noting that the state’s complaint references the state’s Environmental Protection Agency, Department of Natural Resources, Department of Agriculture, and Department of Public Health. The state’s complaint also states that it “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.” However, no state agency entered an appearance in the case. The court noted that by holding that the attorney general, operating under his parens patriae authority, must produce responsive documents possessed by state agencies, it was not joining any state agency as a party.
Turning to the question of separation of powers, the court agreed that the attorney general is the chief legal officer of the state while the governor is the supreme executive power. However, no Illinois court has held that non-party state agencies cannot be subject to party discovery when the attorney general sues as parens patriae and the court distinguished cases from Ohio and New Mexico, in part on the grounds that the Illinois attorney general’s office has common law authority and New Mexico’s attorney general does not.
Since it found no constitutional bar to requiring the attorney general to provide discovery from state agencies, the court turned to the question of control of the documents. Monsanto argued that the attorney general’s broad, constitutionally-based authority to serve as the chief legal officer of the state must include a legal right to obtain documents from state agencies; and that because the attorney general has broad authority to manage and control litigation on behalf of state agencies, he must have a legal right to obtain documents from those agencies. The attorney general responded that he did not have an unfettered right to access state agency documents and that the governor controls the agencies, so the attorney general has no authority to compel the agencies to produce the documents.
The court held, under the specific circumstances of this litigation, “principles of fundamental fairness weigh in favor of allowing Rule 34 documents requests to encompass responsive documents in the possession of the state agencies expressly referenced in the State’s Complaint, who undoubtedly hold many relevant documents and stand to benefit from the Attorney General’s success in the case.”
The court distinguished several cases cited by the attorney general. In Gold King Mine Release in San Juan Cnty., Colorado, 2021 U.S. Dist. LEXIS 41591 (D.N.M. Mar. 5, 2021), a procedurally similar case in New Mexico, that district court ruled that the New Mexico attorney general had no authority to respond to discovery requests directed at New Mexico state agencies because of the separation of powers between the attorney general and the governor. However, the court here found that “the New Mexico Attorney General’s powers differ from that of the Illinois Attorney General. Indeed, the New Mexico Attorney General only retains her power via statute, whereas the Illinois Attorney General has both statutory powers and more expansive common law authority.” The court also distinguished an Ohio case on the grounds that the Ohio supreme court had ruled that “Ohio’s constitutional structure prevents the court from aggregating state agencies as parties and treating them as such for purposes of discovery.” However, in this case, there is no similar Illinois supreme court decision.
The court next looked at factors determining “control” in the context of private parties. In particular, the court applied two factors of a seven-factor test articulated in another case in the Northern District of Illinois: “(1) whether the party and the related non-party exchange documents in the ordinary course of business; and (2) whether there is any benefit or involvement by the non-party in the litigation.” In this case, the court found that the attorney general’s office and the agencies exchange documents in the ordinary course of business, especially since the attorney general manages and controls litigation involving the agencies. The court also found that since the state seeks to recover damages for agency expenses and their objectives with respect to the environment and public health are the same, there is involvement by the non-party state agencies in this litigation.
Finally, the court did not agree with the state that third-party discovery would be sufficient. Although in a similar Ohio case Monsanto did receive three million pages of discovery from Ohio state agencies through third-party discovery, the process took two years and was inefficient. This inefficiency is inconsistent with Rule 26’s underlying design that “directing that the scope of discovery should be informed by . . . the parties’ relative access to the relevant information and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
The court ordered the attorney general to produce responsive documents from the agencies named in the complaint, but held that Monsanto must use third-party discovery for documents from any other state agencies. People ex rel. Raoul v. Monsanto, 2023 U.S. Dist. LEXIS 106151 (N.E. Ill. June 20, 2023)
