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the Board on January 2, 2001. Complainant’s response was filed January 12, 2001. For the

reasons stated below, the hearing officer’s order is affirmed.

MOTION TO ALLOW APPEAL

As a preliminary matter, we note that Briggs’ appeal and motion to allow appeal were

filed on January 2, 2001, after the effective date of the Board’s new procedural rules. As the

Board noted in its December 21, 2000 opinion adopting them, the new procedural rules were to

become effective on January 1, 2001, and were to apply to “all proceedings pending as of that

date and to all proceedings initiated after that date.” Revision of the Board’s Procedural Rules:

35 Ill. Adm. Code 101-130 (December 21, 2000), R00-20, slip op. at 1. Under the new

procedural rules, the Board, upon the filing of a written motion, may consider appeals from a

ruling of the hearing officer. 35 Ill. Adm. Code 101.518. Briggs’ motion to allow the appeal

satisfied the requirement, and accordingly, its motion to allow appeal is granted.

2

SUPPLEMENTAL DISCOVERY BEING SOUGHT

Background

At the November 28, 2000 hearing, corespondent Poland testified that some weeks

earlier, several representatives of a Springfield engineering firm had appeared at the new landfill.

Tr. at 218-19. According to Poland, they drilled three holes at the new landfill and inserted

piping that protruded roughly two feet above the surface. Tr. at 221-22. Further testimony and

statements on the record by counsel for complainant and Briggs revealed that Briggs’ counsel

had, in fact, retained Andrews Environmental Engineering (Andrews Engineering) of

Springfield, Illinois, and that Andrews Engineering’s representatives had drilled the holes and

placed tile in the base of the protruding pipes in an effort to collect water samples. Tr. at 220-22.

Counsel for complainant then made an oral motion for an order compelling supplemental

discovery. Tr. at 222. In support of his motion, complainant’s counsel summarized the

discovery requests, responses, and supplemental responses previously exchanged between the

parties. In particular, complainant’s counsel argued that while Andrews Engineering personnel

had been identified as possible witnesses in response to an interrogatory, that same response had

stated that no documents existed. Tr. at 223-24. According to counsel for complainant, while

that might have been true when the last supplemental response had been submitted in September

2000, some report or other documents might well have been generated by Andrews

Engineering’s personnel since then, and complainant’s counsel was entitled to copies.

Tr. at 224-25.

Briggs’ counsel, on the other hand, argued that Andrews Engineering had been retained

in an effort to explore permitting and, ultimately, settlement, and that complainant’s counsel was

aware of that retainer. Tr. at 223. Briggs’ counsel also argued that complainant’s counsel should

2 A similar outcome with respect to allowing an appeal of a hearing officer’s order would have

resulted under the procedural rules previously in effect. See 35 Ill. Adm. Code 103.140

(1994).

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have deposed the identified individuals, but did not, and that in any event there was no prejudice

to the complainant because Briggs would not be calling either Andrews Engineering

representative to testify at the hearing. Tr. at 226. When asked by the hearing officer whether

any reports had been promulgated by Andrews Engineering, Briggs’ counsel acknowledged that

he had seen some kind of lab result of test samples from the wells that had been drilled.

Tr. at 226.

After considering the arguments of the parties and written discovery previously

exchanged between Briggs and complainant, the hearing officer granted the motion to compel

and ordered Briggs to produce the materials sought by December 29, 2000. Tr. at 248-52. The

hearing officer requested that the complainant formalize its motion in written form.

Id

. The

complainant did so by filing a motion on December 5, 2000; Briggs filed its response to the

motion to compel on December 11, 2000. On December 20, 2000, the hearing officer issued the

order that is the subject of the present appeal before the Board. In it, the hearing officer

reiterated that Briggs must produce the requested discovery materials by December 29, 2000.

HO Ord. at 1. Instead, Briggs filed this appeal with the Board.

Documents Being Sought

In its appeal, Briggs identifies two documents as potentially subject to the hearing officer

order, but, for the reasons summarized below, argues that neither warrants production. The

documents at issue are:

1. a two-page letter dated October 26, 2000, from an Andrews Engineering

employee (other than Mr. Rathsack or Mr. Liss) providing advice regarding

obtaining an inert landfill permit for the new landfill; and

2. a four-page fax dated November 10, 2000, from Mr. Rathsack to respondent

Briggs’ attorney forwarding findings and leachate test results generated by an

outside lab (not Andrews Engineering). App. at 6.

Parties’ Arguments

As was noted by the parties during their arguments before the hearing officer, a

significant amount of discovery had been conducted before the hearings began. In addition to

taking several depositions, complainant also propounded interrogatories and document requests

upon Briggs. Briggs supplemented its responses twice, most recently in a document dated

September 6, 2000, and filed with the Board on September 8, 2000. See Briggs Industries, Inc.’s

Second Supplemental Response to Complainant’s First Set of Interrogatories (Sec. Supp. Resp.).

One of the discovery requests at issue here was contained in an interrogatory propounded by

complainant upon Briggs:

INTERROGATORY NO. 19: Please identify by name and last known address of

all opinion or conclusion witnesses that Briggs intends to offer at any hearing or

trial of this cause. An opinion or conclusion witness is any person who will offer

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any opinion or conclusion testimony. In addition, as to each of said opinion or

conclusion witness, please state:

(a) The subject matter upon which the witness is expected to testify;

(b) The conclusions and opinions of the witness and the bases therefor;

(c) The qualifications of each witness; and

(d) If any of said witnesses have prepared any written reports, please provide

copies as well.

ANSWER:

Andrew Rathsack and Ken Liss of Andrews Environmental

Engineering, Springfield, Illinois.

(a) Actual and potential harm due to alleged violations;

(b) Alleged violations pose negligible harm due to the nature of the material

deposited in the “new landfill”. The basis for these opinions are the

documents exchanged between the parties during the discovery process,

the educational background of these witnesses, and their experience in

environmental matters;

(c) Qualifications attached; and

(d) None.

Sec. Supp. Resp. at 3-4.

Despite listing them as such, on appeal Briggs argues that Rathsack and Liss were not

actually “opinion or conclusion” witnesses, because complainant never deposed them and they

did not testify at hearing. App. at 3. Briggs also argues that even if the Board finds that

Rathsack and Liss are opinion witnesses whose reports or other documents should have been

produced, the proper remedy is not an order compelling production, but rather, an order barring

their testimony, citing LoCoco v. XL Disposal Corp., 307 Ill. App. 3d 684, 691, 717 N.E.2d 823

(3rd Dist. 1999) and Warrender v. Millsop, 304 Ill. App. 3d 260, 268, 710 N.E.2d 512 (2nd Dist.

1999). App. at 3. Finally, Briggs argues that the Andrews Engineering representatives were

consultants retained by its counsel for settlement purposes, and that accordingly, absent

exceptional circumstances not present here, any documents they prepared are protected by the

consultant’s privilege. App. at 4-6.

In response, complainant notes that the two newly identified documents described above

were not disclosed until this appeal was filed, more than a month after the hearing was

conducted. Resp. at 4. Complainant argues that the Board’s consideration of this appeal should

be made in the context of our newly revised procedural rules. Resp. at 2. Among other things,

complainant argues, the new rules reiterate that the scope of discovery is very broad, and

imposes a duty to seasonably supplement responses, as do Supreme Court Rules 213(i) and 214.

See Ill. Adm. Code 101.616(a), 101.616(h). Accordingly, complainant argues that Briggs was

obligated to supplement its discovery responses once responsive documents were generated by

the Andrews Engineering representatives and came into Briggs’ custody or control. Resp. at 2.

Complainant also argues that no authority exists to allow a party to withhold reports generated

by identified witnesses, simply on the grounds that the party elects not to call the witness. Resp.

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at 4. Finally, complainant argues that other interrogatories asked, more generally, whether

documents existed upon which Briggs intended to rely at hearing, and asked for a description and

explanation of those documents. Briggs neither disclosed nor produced these newly identified

documents, and only claimed privilege after complainant learned of the work of the Andrews

Engineering representatives during Poland’s testimony during the course of the hearing.

Resp. at 4-5. Given that complainant made extensive inquiries of the various witnesses

regarding permit issues and the conditions of the new landfill, complainant argues that the two

documents were likely used by respondent during the course of the hearing. Resp. at 4.

After carefully reviewing the parties’ arguments, the Board finds that during the course

of discovery, Briggs identified two individuals at Andrews Engineering as its possible opinion

or conclusion witnesses. Therefore, Briggs was obligated to seasonably supplement its

discovery response by disclosing any reports they may have subsequently provided to Briggs.

If a third Andrews Engineering witness became known to Briggs after supplementing its

answer to Interrogatory No. 19 in September 2000, then Briggs had an obligation to disclose

that witness’s identity as well. Briggs’ later decision not to call any Andrews Engineering

representatives at the hearing did not transform the status Briggs itself ascribed to them when

answering Interrogatory No. 19 – that of opinion or conclusion witnesses.

Second, the Board finds that the two Andrews Engineering documents described by

Briggs in this appeal fall within the term “report” as that term was used in Interrogatory

No. 19. Moreover, it appears the two documents should have been disclosed in response to

Interrogatory Nos. 16 and 17, which asked for a description of any documents and other

materials upon which Briggs intended to rely at hearing.

Third, the Board rejects Briggs’ claim that the two documents should be protected from

production because of a consultant’s privilege. Briggs specifically listed two Andrews

Engineering representatives as possible witnesses at hearing, and even described the general

subject matter of their expected testimony in its September 2000 supplemental answer to

Interrogatory No. 19. If Briggs had identified the Andrews Engineering witnesses as

consultants (persons specially retained in anticipation of litigation or preparation for trial but

not to be called at trial pursuant to Illinois Supreme Court Rule 201(b)(3)), then their

documents could indeed be subject to a claim of consultant’s privilege. Briggs did not do so

before trial, and it could not do so in hindsight.

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REMEDY

Finally, we turn to the question of remedy. Briggs argues that the proper remedy is to

bar its Andrews Engineering witnesses from testifying. Indeed, in several recent cases,

inadequately disclosed experts have been barred from testifying. See,

e.g

., LoCoco v. XL

Disposal Corp., 307 Ill. App. 3d 684, 691,

717 N.E.2d 823

(3rd Dist. 1999) and Warrender v.

Millsop, 304 Ill. App. 3d 260, 268,

710 N.E.2d 512

(2nd Dist. 1999). In this case, however,

Briggs had already decided it did not wish to call them as witnesses. Tr. at 226. Accordingly,

Briggs’ offer that its witnesses be barred is a hollow one.

Instead, we direct Briggs to produce to complainant the two reports it identified in this

appeal. These documents shall be produced within seven days of the date of this order. If

Briggs has received any other documents from Andrews Engineering that are responsive to

discovery requests, they shall be disclosed within seven days of the date of this order.

The Board is well aware that the hearing in this matter was concluded on November 29,

2000, and that the parties are in the midst of completing a posthearing briefing schedule.

Accordingly, the hearing officer is directed to schedule a status conference at his earliest

convenience in order to address any scheduling or other matters that may require attention in

light of this order.

CONCLUSION

The Board affirms the hearing officer’s ruling. Briggs is hereby ordered to produce the

documents to complainant within seven days of the date of this order.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the

above order was adopted on the 15th day of February 2001 by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board