BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
PCB 07- 146
)
UNITED CITY OF YORKVILLE,
)
CITY COUNCIL
)
)
Respondent.
)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on this 31st day of January, 2008, George
Mueller, one of the attorneys for Petitioner, Fox Moraine, LLC, filed via electronic
filing of the attached
FOX MORAINE, LLC’S REPLY TO YORKVILLE’S RESPONSE
TO MOTION TO COMPEL
with the Clerk of the Illinois Pollution Control Board, a
copy of which is herewith served upon you.
Respectfully submitted,
FOX MORAINE, LLC
By:__/s/ George Mueller__________
One of its Attorneys
George Mueller
MUELLER ANDERSON, P.C.
609 Etna Road
Ottawa, Illinois 61350
Phone: (815) 431-1500
Fax: (815) 431-1501
george@muelleranderson.com
Electronic Filing - Received, Clerk's Office, January 31, 2008
Fox Moraine, LLC v. United City of Yorkville
PCB No. 2007-146
SERVICE LIST
PCB 2007-146
PCB 2007-146
Dorothy M. Gunn, Clerk
Bradley P. Halloran
Illinois Pollution Control Board
Hearing Officer
1021 North Grand Avenue East
Illinois Pollution Control Board
P.O. Box 19274
James R. Thompson Center
Springfield, Illinois 62794-9274
1000 West Randolph Street,
Suite 11-500
Chicago, IL 60601
PCB 2007-146
PCB 2007-146
Leo P. Dombrowski
Anthony G. Hopp
Wildman, Harrold, Allen & Dixon
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
225 West Wacker Drive
Suite 3000
Suite 3000
Chicago, IL 60606-1229
Chicago, IL 60606-1229
PCB 2007-146
PCB 2007-146
Michael Blazer
Charles F. Helsten
Jeep & Blazer
Hinshaw & Culbertson
24 N. Hillside Avenue, Suite A
100 Park Avenue
Hillside, IL 60162
Rockford, IL 61105-1389
PCB 2007-146
Thomas Matyas
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Suite 3000
Chicago, IL 60606-1229
Electronic Filing - Received, Clerk's Office, January 31, 2008
CERTIFICATE OF SERVICE
I, Sharon Twardowski, a non-attorney, certify that I served a copy of the
foregoing
Notice of Filing
and
FOX MORAINE, LLC’S REPLY TO YORKVILLE’S
RESPONSE TO MOTION TO COMPEL
to the Hearing Officer and all Counsel of
Record listed on the attached Service list, be sending it via Electronic Mail on
January 31, 2008, before 5:00 p.m.
__/s/ Sharon Twardowski______________
[x]
Under penalties as provides by law pursuant to ILL. REV. STAT.
CHAP. 110-SEC 1-109, I certify that the statements set forth
Herein are true and correct
Electronic Filing - Received, Clerk's Office, January 31, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
PCB 07- 146
)
UNITED CITY OF YORKVILLE,
)
CITY COUNCIL
)
)
Respondent.
)
FOX MORAINE, LLC’S REPLY TO
YORKVILLE’S RESPONSE TO MOTION TO COMPEL
NOW COMES Fox Moraine, LLC, (“Fox Moraine”) by one of its attorneys,
George Mueller, and for its Reply to the Response filed by the City of Yorkville
(“Yorkville”) to the Motion to Compel previously filed herein states as follows:
1.
For the reason that it will expedite the resolution of this motion and the
issues raised therein, Fox Moraine, as discussed in the last conference with the hearing
officer herein, withdraws its request for sanctions. Fox Moraine is concerned with
receiving full and complete discovery and maintains its request for an Order compelling
the same.
2.
The City of Yorkville, in its response, questions the apparent authority for
Fox Moraine’s complaint that he City of Yorkville’s response to the Request for
Production of documents did not include an Affidavit of Completeness. Discovery in this
case is governed by Pollution Control Board Rule 101.616, which states in pertinent
part, “For purposes of discovery, the Board may look to the Code of Civil Procedure and
the Supreme Court Rules for guidance where the Board’s Procedural Rules are silent.”
Supreme Court Rule 214, which governs the discovery of documents, objects and
Electronic Filing - Received, Clerk's Office, January 31, 2008
GEORGE MUELLER
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 – Telephone
(815) 431-1501 - Facsimile
george@muelleranderson.com
Charles Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
Rockford, Illinois 61101
(815) 490-4900 - Telephone
(815) 490-4901 - Facsimile
chelsten@hinshawlaw.com
2
tangible things requires in pertinent part, “The party producing documents shall furnish
an affidavit stating whether the production is complete in accordance with the request.”
Accordingly, the responses of Yorkville to Fox Moraine’s Request to Produce,
regardless of whether they are substantively complete, also failed to comply with the
Supreme Court Rule 214 requirement of an Affidavit of Completeness.
3.
Yorkville argues that Fox Moraine’s Motion to Compel fails because it is
vague and does not specify how Yorkville’s responses and refusal to answer are
inadequate and incomplete. First of all, Fox Moraine’s motion clearly indicated that
Yorkville’s responses and refusals, as well as its objections to discovery, were
inadequate and incomplete, regardless of whether or not the right to object and refuse
had been previously waived by failure to make the objection in its initial motion
regarding discovery. Yorkville attempts to shift the burden here by suggesting that Fox
Moraine needs to provide authority in support of its motion and specific reasons as to
why the responses of Yorkville were incomplete and specific reasons as to why the
hearing officer should issue an Order compelling further production and answers to
interrogatories. It is axiomatic that a party objecting to discovery, and hence not
providing complete answers to interrogatories or complete production of documents,
has the burden of justifying the objection and the refusal to answer or produce.
Admittedly, Fox Moraine, in its initial motion did not state with specificity in what way the
objections of Yorkville were insufficient, improper or otherwise not well taken. However,
the nature of Yorkville’s objections to production and refusals to answer interrogatories
did not require such specificity or a detailed explanation in a motion to compel, as
Electronic Filing - Received, Clerk's Office, January 31, 2008
GEORGE MUELLER
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 – Telephone
(815) 431-1501 - Facsimile
george@muelleranderson.com
Charles Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
Rockford, Illinois 61101
(815) 490-4900 - Telephone
(815) 490-4901 - Facsimile
chelsten@hinshawlaw.com
3
Yorkville’s objections themselves lacked any specificity. In fact, Yorkville’s objections
and refusals were so vague and generic that Yorkville’s motion to compel could not
contain a specific explanation of how they were inadequate and insufficient. For
example, Yorkville makes a general objection to all of the requests for discovery and
then in typical large law firm fashion agrees to answer some requests without waiver of
its general objections, presumably so the party making the request will be grateful that
they got some information.
More specifically, Yorkville fails entirely to answer
interrogatory number 2, stating that in addition to its general objections the interrogatory
“Is overly broad, unduly burdensome and vague and is beyond the scope
of this siting appeal. This interrogatory is not limited to information that is
relevant to this appeal or is reasonably calculated to lead to the discovery
of admissible evidence.”
Yorkville does not specify why answering this interrogatory is burdensome, why the
interrogatory is vague, how or why it is overly broad or how the request is beyond the
scope of the siting appeal. Yorkville’s objection to interrogatory 3, which it also refused
to answer, is essentially the same, plus Yorkville adds even more objections in its
refusal on that interrogatory.
4.
Yorkville additionally objects to certain requests as being beyond the
scope of the proceeding because the same seek information related to the annexation
of the subject property by the City of Yorkville or information about
ex parté
communications predating the filing of the application. Pre-filing contacts may be
relevant evidence of fundamental fairness violations. Land and Lakes, Co. v. PCB, 319
Electronic Filing - Received, Clerk's Office, January 31, 2008
GEORGE MUELLER
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 – Telephone
(815) 431-1501 - Facsimile
george@muelleranderson.com
Charles Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
Rockford, Illinois 61101
(815) 490-4900 - Telephone
(815) 490-4901 - Facsimile
chelsten@hinshawlaw.com
4
Ill. App. Third 41, 743 NE 2nd 188 (3
rd
Dist. 2000). Any evidence of collusion between
the decision maker and others, either in favor of or opposed to, an Application is
probative, even if that collusion occurs prior to the filling of the Application or in a
different context.
5.
It is the job of the hearing officer in cases like this to resolve discovery
conflicts. Conflicts about the scope of discovery occur frequently, and accordingly, the
hearing officer can be expected to have a good sense of what is appropriate in
discovery and what is beyond the proper scope. Fox Moraine has confidence that the
hearing officer, who is well experienced in seeing objections from parties claiming that
discovery requests are overly broad, unduly burdensome and vague or are beyond the
scope of relevance is able to rule on said objections and motions to compel related to
said objections without much difficulty. Yorkville’s response almost implies that
compelling answers in lieu of such broad and generic objections is unique and novel.
We are not reinventing the wheel here. Fox Moraine simply wants answers to fair and
appropriate questions and documents that relate to possible prejudgment and bias.
WHEREFORE
, Fox Moraine prays that its Motion to Compel be allowed and for
such other relief that the hearing officer deems appropriate.
Respectfully submitted,
FOX MORAINE, LLC
By:
____/s/ George Mueller___________
One of its attorneys
Electronic Filing - Received, Clerk's Office, January 31, 2008