ILLINOIS POLLUTION CONTROL BOARD
November 17, 2005
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
SKOKIE VALLEY ASPHALT, CO., INC.,
EDWIN L. FREDERICK, JR., individually
and as owner and president of SKOKIE
VALLEY ASPHALT, CO., INC., and
RICHARD J. FREDERICK, individually and
as owner and vice president of SKOKIE
VALLEY ASPHALT, CO., INC.,
Respondents.
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PCB 96-98
(Enforcement – Water)
ORDER OF THE BOARD (by T.E. Johnson):
This matter is before the Board on a number of motions filed by the People of the State of
Illinois (People) and the Skokie Valley Asphalt Co., Inc., Edwin L. Frederick, Jr., and Richard J.
Frederick (respondents). The motions all relate to discovery on the issue of attorney fees and
costs.
PROCEDURAL BACKGROUND
On September 2, 2004, the Board issued an order in this matter finding that the
respondents violated the Environmental Protection Act (Act) (415 ILCS 5/1
et seq
. (2004)) and
Board regulations. The Board ordered the respondents to pay a civil penalty of $153,000, but
withheld a decision regarding attorney fees and costs until the matter was fully addressed by the
parties. People v. Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 1 (Sept. 2, 2004). On
September 28, 2004, the respondents filed a motion to stay or extend the time to respond to the
People’s petition for attorney fees and costs. Also on September 28, 2004, the respondents filed
a petition to review the Board order with the State of Illinois’ Second District Appellate Court.
See
Skokie Valley Asphalt v. PCB, No. 04-0977 (2nd Dist. 2004).
On October 18, 2004, the Board issued an order finding that the Board no longer had
jurisdiction of the case in light of the pending appeal and could not, therefore, rule on the petition
seeking attorney fees and the accompanying issues. People v. Skokie Valley Asphalt, Co., PCB
96-98, slip op. at 2 (Oct. 18, 2004). On November 18, 2004, the appellate court dismissed the
respondents’ petition for review.
On November 19, 2004, the People filed a motion to void the Board’s October 21, 2004
order. On December 1, 2004, the respondents filed a response to the People’s motion, a motion
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to renew their motion to stay or extend time to respond to the petition for attorney fees and costs,
as well as a motion to stay payment of penalty. On December 8, 2004, the People filed a
response to the respondents’ motions. On December 16, 2004, the Board issued an order giving
respondents until January 13, 2005, to respond to the People’s request for attorney fees and costs.
People v. Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 3 (Dec. 16, 2004). In that order,
the Board stated that it will not hold any hearings on the issues of fees and costs, and also
continued the stay of the $153,000 civil penalty.
On April 7, 2005, the Board granted respondents’ motions for extension of time and
authorized respondents to conduct discovery on the attorney fee issue. The Board continued the
stay of the $153,000 civil penalty imposed in the Board’s September 2, 2004 order. People v.
Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 4 (Apr. 7, 2005).
On April 25, 2005, the respondents filed discovery including interrogatories, a request to
produce documents, a request to admit facts, and a notice of deposition. Also on April 25, 2005,
the People filed interrogatories, document requests and a notice of deposition. On May 18, 2005,
the respondents filed a motion to strike the People’s discovery.
On May 24, 2005, the People filed answers and objections to respondents’ discovery. On
June 1, 2005, the People filed a response to the respondents’ motion to strike. On July 6, 2005,
the respondents filed a motion to strike letters sent by the People to respondents regarding the
ongoing discovery issues. Also on July 6, 2005, the respondents filed a motion to strike the
People’s objections to the respondents’ discovery requests, and a motion to compel the People to
respond.
On July 20, 2005, the People filed a motion for a protective order, a response to
respondents’ motion to strike objection to discovery, a response to the motion to strike letters
filed regarding the discovery issues, and a response to the respondents’ motion to compel.
On August 15, 2005, the respondents filed a motion to strike the People’s motion for a
protective order, the People’s response to the respondents’ motion to strike the People’s
discovery objections, and the People’s response to the motion to compel. The respondents also
filed a motion to strike the People’s response to the respondents’ motion to strike the People’s
letters regarding discovery. On August 17, 2005, the People filed a response to the respondents’
August 15, 2005 motions to strike.
MOTIONS
In attempt to simplify the many pleadings in this matter, the Board will address each
motion, along with all related pleadings, individually.
Respondents’ May 18, 2005 Motion to Strike the People’s Discovery
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Respondents
In the motion to strike the People’s discovery, the respondents assert that the Board’s
April 7, 2005 order does not grant the People additional time to conduct discovery, and that the
respondents have fully responded to all previous discovery requests. Mot. at 1-2. The
respondents contend that the People were not authorized to pursue the discovery filed and served
on April 22, 2005. Mot. at 2. The respondents argue that they have no legal obligation to
respond to the People’s discovery and do not wish to do so on a voluntary basis.
Id
. The
respondents ask that the Board strike the People’s interrogatories, document requests and
deposition notices.
Id
.
People
The People argue that their discovery requests are directly relevant to the numerous
factual allegations made by respondents. Resp. at 4. The People contend that the respondents
have introduced bald factual allegations in the proceeding concerning the reasonableness of the
People’s attorney fees and costs in comparison to the respondents’ own attorney fees and costs.
Id
. The People argue that, not-withstanding the irrelevance of the allegations, the allegations
were made, are not a matter of record, and the People are therefore entitled to full disclosure
regarding the factual basis for the allegations.
Id.
The People note that respondents do not argue that the discovery requests seek privileged
or confidential information, but that the motion to strike rests solely on the April 7, 2005 order.
Resp. at 5. The People assert that they will be severely prejudiced if respondents do not answer
their discovery requests.
Id.
The People assert that they will be unprepared and severely
prejudiced at hearing on the reasonableness of the fees and costs petition if denied full
disclosure.
Id.
The People also note that the respondents did not comply with Supreme Court
Rule 201(k) prior to filing the motion to strike. Resp. at 6.
Discussion
In issuing the April 7, 2005 order, the Board did not implicitly rule that the People are
prohibited from conducting discovery with respect to the issues relating to the request for
attorney fees and costs. After considering the arguments put forth by the parties, the Board finds
that in order to prevent prejudice to the People and in the effort to build a complete record, the
People must be allowed to conduct discovery on the reasonableness of the attorney fees and
costs. To allow the respondent to conduct discover on this matter and not allow the People the
opportunity to conduct similar discovery would place the People on unequal footing, and would
not serve the best interests of administrative justice.
Accordingly, the respondents’ motion to strike the People’s discovery is denied. The
respondents are directed to respond to the People’s discovery requests within 30 days of the date
of this order. The hearing officer will rule on any objections to the People’s discovery filed by
the respondent. As noted in the April 7, 2005 order, both the discovery and the subsequent
hearing must be limited to the issues regarding the reasonableness of the People’s attorney fees
and costs.
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Respondents’ Motions to Strike People’s Letters of May 24, 2005 and June 14, 2005
The respondents filed separate motions to strike the People’s letters of May 24, 2005 and
June 14, 2005. The motions are identical except for the date of the letters. The motions will be
cited together.
Respondents’ Motions to Strike Letters
The respondents assert that the Board’s April 7, 2005 order does not grant the People
additional time to conduct discovery. Mots. at 1-2. The respondents contend that on May 24,
2005 and June 14, 2005, the People sent letters to the respondents under the pretense of initiating
a discovery conference pursuant to Illinois Supreme Court Rule 201(k). Mots. at 2. The
respondents argue that the provisions of Supreme Court Rule 201(k) do not apply because the
People were not given leave to conduct discovery.
Id.
The respondents assert that because the letters to the respondents were copied to Board
Hearing Officer Carol Webb, they constitute
ex parte
communications and will have to be made
part of the record. Mots. at 2. The respondents contend that unless the letters are stricken, the
People will be allowed to enter information into the record that is seeded with false statements,
and may result in prejudice to the respondents. Mots. at 2-3.
People’s Response
The People assert that letters were sent on May 24, 2005 and June 14, 2005, to
respondents’ attorney pursuant to Supreme Court Rule 201(k) in an attempt to informally resolve
any differences over respondents’ discovery requests. People’s Resp1 at 2. The People
acknowledge that a copy of each letter was sent to Board Hearing Officer Carol Webb.
Id.
The People argue that the letters are not
ex parte
communications because they were sent
directly to respondents’ attorney and were made part of the record. People’s Resp1 at 3. The
People contend that the motions to strike must be denied. People’s Resp1 at 5. The People note
that the letters both ask the respondents’ attorney to contact the People’s attorney with any
questions or concerns.
Id.
The People assert that the Board’s rules anticipate an informal
dispute resolution process between the parties before the hearing officer becomes involved, and
that it is appropriate for People’s attorney to provide the hearing officer with copies of the letters
showing how unreasonable respondents have acted in the discovery phase of this case. People’s
Resp1 at 6-7.
The People conclude that even if,
arguendo
, the letters were
ex parte
communications,
the appropriate remedy would be to make them part of the record rather than strike them.
People’s Resp1 at 9.
Respondents’ Motion to Strike the People’s Response
On August 15, 2005, the respondents filed a motion to strike the People’s response to the
respondents’ motion to strike the letters of May 24, 2005 and June 14, 2005. Mot. to Strike2. In
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the motion, the respondents assert that the attachment of letters to the response is not necessary
for the arguments presented in the response. Mot. to Strike2 at 2. The respondents reiterate that
allowing the uncontested false statements in the May 24, 2005 and June 14, 2005 letters to
appear in the record will prejudice the trier of fact in this matter. Mot. to Strike2 at 3.
The respondents argue that because these improper materials are part of the People’s
response to respondents’ motions to strike the letters, the People’s response to respondents’
motion to strike the People’s discovery letters must be stricken from the record. Mot. to Strike2
at 3. Accordingly, the respondents ask that the People’s response be stricken. Mot. to Strike2 at
4.
People’s Response to the Respondents’ Motion to Strike the People’s Response
On August 17, 2005, the People filed a response to the respondents’ motion to strike the
People’s response to the respondents’ motion to strike. People’s Resp2. In the response, the
People assert that respondents’ fifth motion to strike is the latest in a series of seemingly never-
ending motions to strike. People’s Resp2 at 2. The People argue that respondents’ fifth motion
to strike is nonresponsive to the facts and law set forth in the pleading it seeks to strike.
Id.
The People assert that the respondents’ motion to strike sets forth no new facts or law,
and is simply a repetition of previous arguments made without reliance on any legal authority.
People’s Resp2 at 3. The People request that the motion to strike be denied.
Id.
Discussion
The main thrust of respondents’ motion is that the submission of the letters constitutes an
ex parte
communication, and that the provisions of the Supreme Court Rule 201(k) discovery
process do not apply because the People were not given leave to conduct discovery. As
discussed above, the Board has not ruled that the People are prohibited from conducting
discovery with respect to the issues relating to the request for attorney fees and costs.
Further, neither the letters nor the act of submitting the letters to the hearing officer are,
by definition,
ex parte
communications as they did not take place outside the record of this
proceeding.
See
35 Ill. Adm. Code 101.202. Accordingly, the Board denies both motions to
strike the letters, as well as respondents’ motion to strike the People’s response. The May 24,
2005 letter and the June 14, 2005 letter are accepted into the record.
Respondents’ Motion to Strike the People’s Objections to Discovery,
and Associated Pleadings
Respondents’ Motion to Strike the People’s Objections to Discovery and Motion to Compel
On July 6, 2005, the respondents filed a motion to strike the People’s objections to
discovery and motion to compel a response to discovery request. Mot. to Comp. The
respondents assert that it filed and served discovery on April 25, 2005, including interrogatories,
a document request, a request to admit facts and a notice of deposition. Mot. to Comp. at 2. The
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respondents assert that the discovery requests stated that responses should be delivered by
May 25, 2005, consistent with the Board order of April 7, 2005, and Supreme Court Rule 213.
Id.
The respondents contend that the People sent objections and failed to respond to certain
requests and interrogatories.
Id.
The respondents argue that the People’s response is generally
evasive and non-responsive.
Id.
The respondents assert the responses can be addressed through
a 201(k) conference after the issue of the validity of the objections has been addressed by the
Board.
Id.
The respondents assert that the People did not produce Mitchell Cohen or Bernard
Murphy for deposition as properly requested in the notice of deposition. Mot. to Comp. at 2-3.
The respondents argue that the objections presented by the People lack the specificity
required of any objection to a request for discovery, and that the People misconstrue the Board’s
April 7, 2005 order. Mot. to Comp. at 3. The respondents contend that the discovery was
prepared and served in accordance with the Board’s April 7, 2005 order, and that it is the
People’s actions that jeopardize the speedy and ultimate resolution of this case. Mot. to Comp.
at 4.
The respondents argue that they need to address a number of issues through discovery,
including the conduct of the attorneys supervising People’s attorney Joel Sternstein, the
possibility of
ex parte
communication between the People and Board employees, the level and
knowledge of the People’s attorneys regarding Sternstein’s actions while working on the case,
information concerning false affidavits filed by People’s attorney Cohen, and information
concerning why the People are claiming fees for work Sternstein claimed to have performed.
Mot. to Comp. at 4.
The respondents assert that their requests for discovery are designed to discover facts or
lead to facts that are required to prepare their response to the People’s request for attorney fees.
Mot. to Comp. at 5. The respondents contend there is no legal or logical basis for refusing to
respond to a discovery request on an argument of privacy, and that the remaining general
objections by the People are so poorly argued that they defy response by the respondents.
Id.
The respondents assert that thorough and timely discovery is consistent with the Board’s
objective of a speedy and ultimate resolution of this case, and that it is the People’s pleadings
and responses to reasonable discovery that would be classified as not designed to further a
speedy and ultimate resolution of this case. Mot. to Comp. at 6. The respondents argue that the
People should be compelled to respond to the discovery requests presented by the respondents.
Id.
The respondents assert that the People did not produce either Mr. Cohen or Mr. Murphy
for deposition as noticed and required under the Illinois Code of Civil Procedure. Mot. to Comp.
at 7. The respondents contend that the People unilaterally decided that Mr. Cohen’s deposition
was untimely scheduled and should not be taken until all written discovery had been completed.
Id.
The respondents argue that the People should be compelled to produce witnesses for
deposition, or cooperate with the respondents in scheduling the depositions to allow for the
speedy and ultimate resolution of this case.
Id.
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People’s Response to Motion to Strike and People’s Motion for Protective Order
The People contend that the instant motion is remarkably strident given that respondents
brought discovery disputes to the Board without contacting the People’s attorney or appearing
for the June 9, 2005 status conference. Resp. at 3. The People assert that the blanket relief
sought by the respondents, including the striking of all of the People’s objections and ordering
the People to answer all of the discovery, is supported by rhetoric and misstatements of the law.
Id.
The People note that respondents’ motion does not respond to each of the discovery
objections they ask the Board to strike, and violates Supreme Court Rule 201(k) as well as the
Board’s direction contained in the April 7, 2005 order advising against filing any pleading not
designed to further a speedy and ultimate resolution of this case. Resp. at 3-4.
The People argue that the respondents’ discovery requests are overly broad and unduly
burdensome, as well as insulting, harassing, made in bad faith, irrelevant, and not calculated to
lead to relevant information or resolve this dispute in a speedy and final matter. Resp. at 4. The
People contend that the respondents’ motion does not respond to each of the discovery objections
they ask the Board to strike, and provides generalizations for the few objections to which a
response is given. Resp. at 3.
The People assert that the motion to compel must be denied and that the Board should
issue a protective order against the respondents’ abusive discovery tactics. Resp. at 8. The
People contend the motion to compel must be denied because the respondents’ attorney made no
attempt to informally resolve discovery differences prior to seeking a Board intervention.
Id.
The People argue that the motion to compel must be denied because it fails to meet the threshold
of addressing each objection to be stricken. Resp. at 9.
Respondents’ Motion to Strike People’s Motion for Protective Order and Response
On August 15, 2005, the respondents filed a motion to strike the People’s motion for
protective order and response to the respondents’ motion to strike objections, and a motion to
compel the People’s response to discovery requests. (Mot. to Strike2). The respondents assert
that the attachment of letters to the response is not necessary for the arguments presented in the
response. Mot. to Strike at 2. The respondents reiterate that allowing the uncontested false
statements in the May 24, 2005 and June 14, 2005 letters to appear in the record will prejudice
the trier of fact in this matter. Mot. to Strike at 3.
The respondents argue that because these improper materials are part of the People’s
response to respondents’ motions to strike the letters, the People’s motion for protective order
and response to respondents’ motion to strike objections to discovery and to the respondents’
motion to compel must be stricken from the record. Mot. to Strike at 3. The respondents also
argue that the People’s motion for protective order and response to respondents’ motion to strike
objections and to the motion to compel should be stricken because the People’s motion for
protective order is improperly applied, and improperly presented and argued.
Id.
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The respondents contend that the People have failed to present any argument that a
protective order is required to prevent unreasonable annoyance, expense, embarrassment,
disadvantage or oppression. Mot. to Strike at 4. The respondents argue that the People have
failed to state with specificity why a protective order is required and how they desire the Board
to enforce the order.
Id.
The respondents assert that because the motion for protective order is
not properly applied or argued, it is difficult for the respondents to respond to the motion and it
will be difficult for the Board to rule on the motion.
Id.
Accordingly, the respondents suggest
the motion should be denied, or stricken. Mot. to Strike at 4-5.
People’s Response to Respondents’ Motion to Strike People’s Motion for Protective Order
and Response
On August 17, 2005, the People filed a response to the respondents’ motion to strike the
People’s response to the respondents’ motion to strike the People’s motion for protective order
and response. (People’s Resp3) In the response, the People assert that respondents’ sixth motion
to strike is the latest in a series of seemingly never-ending motions to strike. People’s Resp2 at
2. The People argue that respondents’ sixth motion to strike is nonresponsive to the facts and
law set forth in the pleading it seeks to strike.
Id.
The People assert that the respondents’ sixth motion to strike sets forth no new facts or
law, and is simply a repetition of previous arguments made without reliance on any legal
authority. People’s Resp3 at 3. The People request that the motion to strike be denied.
Id.
Discussion
The respondents’ motion to strike the People’s objections to discovery is denied. The
People are entitled to file discovery objections under Sections 101.618(h) and 101.620(c) of the
Board’s procedural rules, and raised proper objections thereunder. The Board also denies the
respondents’ motion to strike the People’s motion for protective order and response to the
respondents’ motion to strike objections. Section 101.616(d) provides the hearing officer with
the authority to issue a protective order on her own motion or on the motion of any party. The
People have the right to file a motion for protection under that section, and have exercised that
right. The People’s motion is properly filed, and the respondents’ motion to strike is denied.
Further, the Board denies the respondents’ motion to strike the People’s response to the
respondents’ motion to strike objections. Section 101.500(d) allows a party to file a response to
a motion within in 14 days after service. The People’s response is timely, and accepted by the
Board.
That said, the Board denies the People’s motion for a protection order. While it is
evident from a review of the pleadings that the manner in which this case is being litigated has
degenerated to the extent that professional civility and decorum is lacking, a protective order
does not appear to be the proper remedy at this time. However, both parties are cautioned that
professionalism and civility are required when appearing before the Board, and that future
offensiveness will not be tolerated.
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As to the respondents’ motion to compel, the Board agrees with the assertions of the
People that the respondent did not adequately respond to the People’s objections, or attempt to
informally resolve the dispute before seeking Board intervention. In various pleadings, the
respondents provide general argument, but do not specifically address the objections made by the
People. For example, the respondents argue that a portion of the objections by the People are “so
poorly argued that they defy response by the respondents.” Mot. to Comp. at 5. Such an
assertion does little to assist the Board in reaching a proper determination, and only serves to
increase the contentiousness that is evidenced by the many pleadings in this matter.
However, instead of upholding the People’s objections to discovery, the Board will allow
the respondents 30 days from the date of this order to further respond to each objection.
Accordingly, the Board will direct the hearing officer to reserve ruling on the respondents’
motion to compel until the time for additional response is lapsed.
In addition, the Board directs the hearing officer to hold a status conference with the
parties in order to determine a detailed discovery schedule in an attempt to move this matter
forward to ultimate resolution. The discovery schedule should commence with the requirement
that respondents file responses to the People’s discovery requests and any additional responses to
the People’s objections to discovery on or before December 3, 2005.
CONCLUSION
The Board denies the respondents’ motion to strike the People’s discovery. The
respondents are given until December 3, 2005, to respond to the People’s discovery requests.
The Board denies the respondents’ motions to strike letters of May 24, 2005 and June 14, 2005.
Both letters are accepted into the record. In so doing, the Board also denies respondents’ motion
to strike the People’s response to the respondents’ motion to strike the letters.
The Board denies the respondents’ motion to strike the People’s objections to discovery,
as well as the respondents’ motion to strike the People’s motion for a protective order and the
People’s response to the respondents’ motion to strike objections. The People’s motion for
protective order is accepted, but denied. The Board grants the respondents until December 3,
2005, to provide additional responses to the People’s discovery objections. The Board directs
the hearing officer to address the respondents’ motion to compel after the deadline for
respondents’ additional responses to the People’s discovery objections is lapsed.
As noted in the body of this order, the hearing officer is directed to hold a status
conference with the parties and set a detailed discovery schedule that includes the requirement
that respondents file responses to the People’s discovery requests and any additional responses to
the People’s objections to discovery on or before December 3, 2005. The hearing officer will
then rule on the People’s objections to discovery, the respondents’ motion to compel and any
objections to the People’s discovery filed by the respondent. Once again, both parties are
cautioned that professionalism and civility are required when appearing before the Board. Future
offensiveness will not be tolerated, and may result in sanctions.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 17, 2005, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
