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Court Squawks on Poisoned Bird Feed Report

CINCINNATI (CN) — Both sides of a federal class action over poisonous bird feed faced a tireless interrogation Wednesday by a panel of Sixth Circuit judges.

Scotts Miracle-Gro already faced criminal liability for treating its bird food with insecticide that is actually toxic to birds.

With a federal judge having ordered the company to pay $12.5 million in criminal fines, however, multidistrict civil litigation against Scotts remains ongoing in Ohio.

As discovery in the case proceeds, a judge denied the plaintiff consumers access to a pre-sentence report from Scotts' criminal case.

Laura Cyphert and the other plaintiffs want the Sixth Circuit to reverse, saying they have a First Amendment right to a three-sentence report addendum that describes the U.S. government's belief that "illegal [Scotts] products had caused harm to birds."

Eric Isaacson, an attorney for the consumers with the San Diego firm Robbins Geller Rudman & Dowd, told the court Wednesday that the right of access cannot be overridden by Scotts' decision to "hide behind a nondisclosure agreement."

Judge David McKeague — who grilled each attorney extensively during the arguments — interrupted. "Either the material is privileged or it's not," he said. "From my perspective, you have to convince us why you should get something."

Judge McKeague also pointed out that his two colleagues on the panel had extensive criminal court experience, and that the process followed in the government's case against Scotts "is the way it happens in every case in my district."

Isaacson emphasized at this point his own 12 years as a prosecutor. In over two decades of experience in criminal law, Isaacson said he has "never seen a case like this before."

Judge McKeague questioned the relevance of the information as well, and argued that a comment by Scotts during a deposition regarding the government's position amounts to "classic hearsay."

Isaacson denied McKeague's claim, and argued that all consumers have a right to know the seriousness of the claims being brought against Scotts Miracle-Gro, and that that information is found in the government's addendum to the pre-sentencing report.

Jeff Jones, the attorney for Scotts Miracle-Gro, argued that the plaintiffs could obtain the requested information in a "myriad" of ways that do not involve the government's statement in the pre-sentencing report.

"The fact that Scotts and the government disagreed on the risks [of the bird food] is available to the public," said Jones, of the firm Jones Day.

Jones also reminded the panel that the plaintiffs have submitted numerous subpoenas for information on the bird feed and its risks, all of which were granted.

Isaacson denied this in his rebuttal. Amid numerous requests under the Freedom of Information Act, Scotts "accused us of contempt [when we] submit[ted] a request under seal to a federal judge," Isaacson said.

Judge McKeague ended Jones's arguments by asking if the government's position had been memorialized anywhere other than the letter included in the objection.

Jones hesitated and attempted to maneuver around the question.

Judge McKeague reprimanded the attorney. "Please stop changing the question," he said.

Jones apologized and answered, "No."

McKeague continued his questioning during Isaacson's rebuttal. "Does this mean anytime the press wants something [from a criminal proceeding], a judge has to hold a hearing [to determine its relevance]?" McKeague asked.

Isaacson shot back. "I'm not going to take the bait on an apocalyptic question," he answered.

Judge Bernice Donald rounded out the panel. No timetable has been set for the court's decision.

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