Judge skeptical of plastics industry's efforts to shield decades-old data

A Sacramento judge said he is skeptical of arguments by the Plastics Industry Association that it should be allowed to keep decades-old data and reports confidential.

At a hearing on Tuesday afternoon, Judge Richard K. Sueyoshi questioned the relevance of some of the cases brought up by the association's attorneys, adding one raised "significantly different" questions than those at issue. Sueyoshi had already granted the "entirety of the discovery request sought by Attorney General Rob Bonta's office in a tentative ruling on Monday, though the judge had not issued a final order as of midday Wednesday.

If it stands, his ruling would be the latest of several setbacks for the association after it brought a separate federal lawsuit against Bonta's office. The attorney general is seeking information he believes will show the association and its member groups spent years hiding the dangers of plastic pollution and the failure of recycling efforts. Much of the discovery request concerns old industry newsletters and other communications held at the Hagley Museum and Library in Delaware, which has served as a kind of de facto du Pont family museum. In the Matter of: People of the State of California Ex. Rel. Rob Bonta, Attorney General v. Plastics Industry Association, Inc., 24CV010508 (Sac. Super. Ct., filed May 28, 2024).

Bonta filed a petition to enforce an investigative subpoena in May.

Michael W. Kirk, a partner at Cooper & Kirk PLLC in Washington, D.C., represents the association. He challenged the state's argument that the phrase, "This bulletin is not confidential," printed on one of the documents in question, should affect the court's assessment of the confidentiality of the others.

"This doesn't mean that none of this is confidential," Kirk said. "The fact that a single bulletin makes that statement cannot carry over to all the ones that don't."

He added, "If the court is not inclined to reverse the tentative, we would request that it stay its order pending appeal."

Deputy Attorney General Elizabeth B. Rumsey countered that the association was trying to obscure information it readily made available for decades.

"All of the other newsletters followed from that," Rumsey said. "They were all iterations of the same thing."

She added, "They were not confidential. We were able to get our hands on several of them."

Deputy Attorney General Stacy J. Lau then attacked the association's arguments that the state did not have standing to seek the documents. She said that "opposing counsel misstated the law" when they argued that standing must "arise" out of contacts initiated by the defendant. Lau said the law states the activities must "arise or relate" from the defendant's own actions, a more lenient standard.

The association would be on the hook either way, Lau added, because of its extensive activities in California. These include employing "a fulltime lobbyist" in Sacramento and placing op-eds in major newspapers in the state touting plastic recycling efforts.

"These activities are very related to the attorney general's investigation," Lau said.

Sueyoshi's tentative ruling also rejected the association's stay request. He wrote that "federal district court orders do not change the Court's calculus or its decision."

"Your Honor, you will have the wind at your back if you deny a stay," Rumsey said. "There is no basis for a stay. There is plentiful case law to support that."

"The only stay argument I recall is to allow the federal action to proceed," Sueyoshi replied. "That is the one I addressed in the tentative."

The association sought federal court protection last year from Bonta's document demands by citing its rights under the First, Fourth, and 14th Amendments to the U.S. Constitution and under the Civil Rights Act of 1866, 42 U.S.C. §§ 1983, 1988, and under Article I of the California Constitution. Plastics Industry Association, Inc. v. Bonta, 1:24-cv-01542-APM (D.D.C., filed May 24, 2024).

"This lawsuit seeks this Court's intervention to stop the California Attorney General from abusing his authority and committing ongoing violations of PLASTICS' constitutional rights, including its First Amendment rights to petition and freedom of association," wrote Manesh K. Rath, representing the association as a partner with Keller & Heckman LLP in Washington, D.C. "Mr. Bonta is using his subpoena power to attempt to access privileged documents. Mr. Bonta is presently threatening to bring PLASTICS into California court, even though PLASTICS has no connections with California and Mr. Bonta has no lawful authority to bring suit against PLASTICS in California."

In November, U.S. District Judge Amit P. Mehta denied the association's request for a preliminary injunction and temporary restraining order in that case. The association has appealed.