Arguments about what documents have been shared and scanned stalled a hearing Monday on Monsanto’s motion to temporarily halt demolition of the former Burlington High School to preserve evidence in a high-profile contamination case. A U.S. District Court judge asked attorneys to return next week with answers.
On one side is Monsanto, which was acquired by the chemical and pharmaceutical company Bayer and now operates as Pharmacia, claiming that its lawyers need more information and more time to examine the thousands of documents and emails that have been provided in ongoing lawsuits.
On the other side are lawyers for the Burlington School District, saying they have already provided everything and it’s taking the defendants too long to scan and digest the information while the district faces a tight schedule to build a new school by 2025.
Matthew F. Pawa, a lawyer for the school district, argued Monday in federal court in Burlington that it is “surprising and inappropriate” for the defendants to take this much time to digest only 10% of the countless “musty boxes of documents” and hundreds of emails, the majority of which were shared by Dec. 23.
Court filings indicate that 112,864 pages, or 10% of the paper documents shared, had been scanned as of Jan. 6. Most had been provided before Dec. 30.
In a filing earlier this month, Monsanto indicated that scanning the remaining documents at its vendor’s current capacity could take until early February or early March. The legal team agreed to use the school district’s scanning company if it can do the work faster.
“We actually don’t know what’s in our possession,” said one of the five lawyers representing the international corporation in its request for delay of the district’s suit filed on Dec. 9.
Judge William K. Sessions III urged both sides to provide him with more clarity about the situation. “In a week’s time, I would like to be in a better position to know what they have and what they need,” Sessions said, referring to Monsanto’s legal team. “It’s the process that’s important and it’s important for the lawyers to get together and figure this out.”
Sessions said he understands the huge amount of history and information involved, and that the process requires time. But he also urged both sides to expedite the process and come back with answers next Tuesday.
Last year, the school district sued former agrochemical giant Monsanto over damages caused by PCB contamination that forced the closure of Burlington High School. The district is seeking compensation for mitigation and removal of the PCBs, a harmful class of chemicals, as well as the cost of building a new school, estimated at $190 million.
Bayer, the parent company of Monsanto, filed a motion soon after, seeking to temporarily halt demolition of the Burlington High School buildings in the North End. Its lawyers want to prove the building was old, outdated and poorly maintained from the start.
Lawyers on both sides squabbled Monday over inspecting the building for different purposes.
Pawa said the Bayer inspectors are welcome to examine the old buildings anytime or join the school district’s inspectors on their fact-finding mission next week.
“Their experts are looking at PCBs. Our experts are looking at everything except PCBs,” said Monsanto lawyer Richard Campbell, citing examples such as leaks in classrooms, lead in water, presence of asbestos or the Legionella bacteria, and information about the building’s heating and cooling system.
With a budget and an aggressive construction timeline in place, school district lawyers said they are worried that Monsanto’s delays could blow the deadline and raise costs.
A corrective action plan approved by the state on Dec. 21 kicked off a 30-day public hearing period, after which the district would be free to take the first steps toward demolition, plus asbestos and PCB abatement, at the Institute Road buildings.
Pawa expressed concern that, if the court’s questions are not answered by next week’s hearing, that could blow the Jan. 23 schedule to begin abatement efforts.
Sessions interrupted arguments to bring the focus back to the court’s purpose. “Once the discovery issues are resolved, you can set a date for completion of inspection,” he said.
The district closed the old school buildings in 2020 after PCB contamination was found. The school has been operating in a former Macy’s department store downtown via a lease that is set to expire in 2025.
The district will take public comment on the corrective action plan to address hazardous building materials and contaminated soil at the site at 6 p.m. on Jan. 12 at the school library downtown.