BEFORE THE ILLINOIS POLLUTION CONTROL BOAEI)
R~C~1VED
CLERK’S OFFICE
PEOPLE
OF
THE
STATE OF ILLINOIS,
)
JUL
1 7 2003
)
STATE OF IWNOIS
Complainant,
)
Pollution Control Board
v.
)
PCB99434
)
PEABODY COAL COMPANY, a Delaware
)
corporation,
)
)
Respondent.
)
PEABODY COAL COMPANY’S BRIEF IN OPPOSITION TO STATE’S
MOTION FOR LEAVE TO REPLY TO RESPONDENT’S BRIEF IN
OPPOSITION TO STATE’S PROTECFIVE ORDER MOTION
Respondent, Peabody doai Company (“PCC”) objects to the Motion For Leave To Reply
To Respondent’s Brief In Opposition To State’s Protective Order Motion (“State’s Reply
Motion”), filed by Complainant, People of the State of Illinois (“State”), on or about June 19,
2003, for the reasons fully discussed below. In short, the State’s Reply Motion should be denied
for the reason that the facts and arguments presented by the State in the Reply Brieft that it
wishes the Hearing Officer to consider either (a) are not relevant to any issue presented by the
State’s Reply Motion or PCC’s Response Brief, or (b) address issues that the State simply chose
The following shortened terms are used in this brief to refer to certain documents previously filed by the
parties that relate to the issues discussed in this brief:
•
“State’s Protective Order” means Complainant’s Motion For Protective Order, filed on or about June 4,
2003.
•
“PCC’s Response Brief’ means FCC’s Brief In Opposition To State’s Motion For Protective Order, filed
on or about June 12, 2003.
•
“Blanton Affidavit I” means the Affidavit Of W. C. Blanton Relating To State’s Motion For Protective
Order, filed on or about June 12, 2003.
•
“Hedinger Affidavit” means the Affidavit Of Stephen F. Fledinger Relating To State’s Motion For
Protective Order, filed on or about June 12, 2003.
•
“State’s Reply Brief’ means Reply To Rcspondent’s Brief In Opposition To State’s Protective Order
Motion, tendered to the Hearing Officer with the State’s Reply Motion on or about June 19, 2003.
KC.1101945.1’”
2597/3
to ignore in the State’s Protective Order Motion in the first instance, so that the State will not be
materially prejudiced if the State’s Reply Motion is denied.
I.
INTRODUCTION
The bases for the State’s Reply Motion are set forth in numbered paragraphs 7 and 8
thereof, in which the State asserts (1) that it will be materially prejudiced if it is not allowed to
dispute the factual statements within PCC’s Response Brief, (2) that it will be materially
prejudiced if it is not allowed to rebut FCC’s contentions regarding the parties’ Supreme Court
Rule 201(k) correspondence and discussions, and (3) that PCC’s contention that its withdrawal
of the interrogatories that
are
the subject of the State’s Protective Order Motion moots the State’s
request for a protective order with respect to those interrogatoriesis a new question that the State
should be allowed to address. Because the State’s Reply Motion contains only conclusory
statements to justify the relief it seeks, it is necessary to examine the State’s Reply Brief that it
seeks leave to file in order to determine whether grounds exist for that brief to be considered by
the Hearing Officer. There are none.
The factors to be considered by the Hearing Officer in determining whether or not to
allow particular discovery sought by a party include (1) whether the discovery in question seeks
to obtain relevant information or information calculated to lead to relevant information, and
(2) whether a protective order would be necessary to deny, limit, condition, or otherwise regulate
that discovery to prevent unreasonable expense, or harassment, to expedite resolution of the
proceeding, or to protect non-disclosable materials from disclosure. 35 III. Adm. Code
§
101.616(a), (d).2 However, the State’s Reply Brief offers no assistance to the Hearing Officer
in making that determination.
2
3~Ill. Adm. Code
§
101.616 shall be referenced hereafter as “Section 101.616.”
KC-11O1945-1”~
2
2597/3
II.
DISCUSSION
PCC will address the arguments advanced in the State’s Reply Brief in the following
order: (A) the effect of PCC’s withdrawal of its disputed interrogatories on the State’s Protective
Order Motion, (B) the State’s contention that it has satisfied the applicable standard in obtaining
a protective order, (C) the issue of whether PCC’s disputed production requests seek documents
subject to discovery, and (D) Supreme Court Rule 201(k) (“Rule 201(k)”) issues.
A.
As To PCC’s Interro2atories
By its Reply Motion, the State in part seeks leave to argue that PCC’s withdrawal of the
interrogatories to which the State’s Protective Order Motion was directed does not moot that
motion to the extent it sought an order relieving the State of any obligation to respond to those
interrogatories. There is, however, no good reason for this issue to be addressed in connection
with the State’s Reply Motion, but several good reasons not to.
First, by PCC withdrawing the interrogatories complained of by the State, the State has
obtained precisely the relief it sought as to those interrogatories by its Protective Order Motion in
the first instance. The State does not contend otherwise in its Reply Brief; and the State does not
present any reason there why the Hearing Officer needs to ratify the relief already obtained by
the State.
Second, the State has failed to demonstrate why the Hearing Officer should resolve what
is now, in the context of the State’s Protective Order Motion, a hypothetical situation. At most,
the State’s Reply Brief addresses some of the criteria for the issuance of a protective order in
general, conclusory terms while completely failing to address the fundamental issue of whether
the interrogatories now withdrawn by PCC actually seek information that is subject to discovery.
KC-1 1Ot945.1’~’
2597/3
However, without any interrogatories actually being directed to the State at this time, it is not
possible for the Hearing Officer to reasonably apply Section 101.616(a) and (d) to this dispute.
By its Motion For Leave To Serve Interrogatories, PCC seeks leave to direct amended
versions of the four sets of interrogatories that were attacked by the State’s Protective Order
Motion.3 This PCC motion squarely raises the issues of whether PCC may direct additional
interrogatories to the State at all; what, if so, are the factors to be considered in evaluating
whether specific additional interrogatories should be allowed; and whether the specific
interrogatories (most in their original form, but as modified) of which the State has complained
should be allowed. These issues must be addressed by the Hearing Officer to rule on PCC’s
motion. Therefore, the Hearing Officer should decline to consider the State’s discussion of these
issues in its Reply Brief.
B.
As
To Basis Of State’s Objection To PCC’s
Production
Reauests
By its Reply Motion, the State in part seeks leave to argue that grounds exist for the
Hearing Officer to issue the protective order as sought by the State. However, the State has
failed to justify the Hearing Officer considering the argument as to this issue set forth in its
Reply Brief.
First, to the extent that the State’s Reply Brief actually analyzes the issue of whether any
of the criteria for issuance of a protective order are present here, this is the first time that the
State has addressed that issue. As noted in PCC’s Response Brief, the State supported its request
for a protective order in its Protective Order Motion only by (1) a general complaint that PCC
had directed a lot of production requests to the State, and (2) an allegation, without any attempt
to demonstrate its accuracy that many of these requests are duplicative of discovery requests
Thus, the arguments presented with respect to these issues by the State in its Reply Brief address a situation
that is not only hypothetical but also not the actual situation that must be addressed by the Hearing Officer.
KC-1101945-1
4
2597/3
previously directed to the State by PCC. Having failed to make even a prima f~cjecase to
support its Protective Order Motion as to PCC’s production requests in the first instance, the
State should not be allowed to make its principal arguments as to this issue in its Reply Brief,
under the guise of “replying” to PCC merely having pointed out the obvious shortcomings in the
State’s original filing.
Second, there is no reason for the Hearing Officer to entertain discussion of this topic in
the State’s Reply Brief, because that discussion also does not establish that any of the criteria for
the issuance of the protective order as sought by the State exist here. In its Reply Brief, the only
substantive arguments asserted by the State are (1) that there are a lot of discovery requests
involved in this particular dispute, (2) that a lot of these requests are duplicative of previous
production requests directed by PCC to the State, and (3) that if one were to “read each and
every individual request and compare it to previously propounded requests,” one would see that
“the new requests constitute harassment, undue expense and delay.” (Reply Brief at 9). These
arguments do not support the issuance of a protective order as requested by the State even if
countenanced by the Hearing Officer.
As a general proposition, a moving party bears the burden of proving the propriety of the
relief sought by its motion. Scott v. Dept. of Commerce and Community Affairs, 84 Ill. 2d 42,
53 416 N.E.2d 1082, 1088 (1981): ‘The courts have uniformly imposed on administrative
agencies the customary common-law rule that the moving party has the burden of proof.”
(quoting International Minerals & Chemical Corp. v. New Mexico Public Service Comm’n, 81
N.M. 280, 283, 466 P.2d
557,
560 (1970)).
S~
nbQ, People v. Catalano, 29 Ill. 2d 197, 204, 193
N.E.2d 797, 801 (1963): “The motion by an attorney for leave to withdraw for any reason is also
addressed to the sound discretion of the court. For that reason, a burden rests with the moving
Kc-1101945-r
2597/3
party to prove to the court’s satisfaction the legitimacy of the request, or the court may properly
deny the motion.” In the context of a discovery dispute, a party seeking a protective order has
the burden of showing good cause for the issuance of such an order. May Centers. Inc. v, 5,0.
Adams Printing & Stationery Co., 153 Ill. App. 3d 1018, 1022, 506 N.E.2d 691, 694 (5th Dist.
1987). It is not sufficient for a party seeking a protective order to merely assert that certain
material is exempt from discovery. Akers v. Atchison. Topeka & Santa Fe Rwy. Co., 187 Ill.
App. 3d 950, 957, 543 N.E.2d 939, 944 (1st Dist. 1989). S~~
Pemberton v. Tieman, 117 III.
App. 3d 502, 505, 453 N.E.2d 802, 805 (1st Dist. 1983), holding that a party seeking discovery
“is not bound by counsel’s unsupported assertion that there is no relevant information to be
obtained.”
-
As noted above, the analysis required to determine whether or not a protective order
should be issued with respect to discovery requests involves consideration of (1) whether the
requests seek information or documents that are subject to discovery, (2) what is required of the
party to whom the requests are directed to respond to them, and (3) whether the effort to respond
to the requests would be unduly burdensome. The State has made no effort to address any of
Rather,
these issues
the State
with
hasrespectmerelyto providedthe
greatthemajorityHearingofOfficerthe specificcopiesproductionof
those productionrequests requests.in
dispute.4
Apparently, the State contends that the Hearing Officer should simply accept as an article
of faith the State’s representations that
if
the State had also provided the Hearing Officer PCC’s
Contrary to the State’s assertions, PCC has never contended, either in its Response Brief or its attorneys’
affidavits, that the State has totally failed to discuss its positions that the scope and scale of FCC’s discovery
requests in dispute are unreasonable. The FCC point is that the State has refused throughout this discovery dispute
to address each of the discovery requests in dispute on their respective individual merits--and the State does not
contend otherwise in its Reply Brief. indeed, the fact that the State points only to two specific groups of production
requests as to which the State has commented on the merits of individual requests emphasizestCC’s point. This is,
of course, consistent with the State’s basic position that it is entitled to a protective order precisely in irderioavoid
having to address the merits of the individual discovery requests at issue.
KC-1101945-1’”
6
2597/3
earlier production requests and
if
the Hearing Officer were to undertake an independent
comparison of the two sets of documents, then he would reach the same conclusion about that
comparison as the State has--even though the State does not even claim to have made that
request-by-request comparison itself.
This is, of course, consistent with the State’s view that PCC has the burden of
“justifying” its discovery requests to the Hearing Officer in order to avoid the issuance of a
protective order. This view, though, turns the discovery process on its head.
-
PCC
has a right to propound production requests to the State in the first instance without
artificial limit (unlike the case with interrogatories), subject only to its obligations to conduct this
litigation in good faith generally and specifically to refrain from using the discovery process for
an improper purpose. Once PCC has done so, the State has an obligation in the first instance to
substantively respond to each request in good faith, including stating its objections to any request
on its individual merits. Then, if and only if PCC contends that some State oljection to a
discovery request is without merit and seeks an order compelling a substantive response, does
PCC
bear the burden of “justifying” that specific request. Conversely, if the State contends that
the grounds exist for the issuance of a protective order on a more general basis, then the State
bears the burden of proving that one or more of the criteria for the issuance of a protective order
are satisfied.
The State, though, contends that all it has to do in order to shift to PCC the burden of
justifying to the Hearing Officer why additional discovery should be allowed is assert a general
claim that it should not have to respond to any (or at least not much) additional discovery. As
this is completely contrary to the normal rules of discovery dispute resolution, it is not surprising
KC-1101945-1”’
2597/3
that the State has provided no authority for its position as to which party bears the burden of
persuasion with respect to the issue ofwhether a protective order should be issued.
The manner in which the State has advanced its primary complaint about the PCC
production requests in question illustrates the problem with the State’s tactic here. Throughout
the pendency of this discovery dispute, the State has asserted over and over that many (if not
most) of the disputed production requests seek the production ofdocuments already produced by
the State. However, the State has never, for either PCC or the Hearing Officer, made a request-
by-request comparison of the disputed requests with previous ones to demonstrate the accuracy
of its contention.
In the face of the State’s relentless assertions that the production requests in dispute are
for the most part duplicative in nature, PCC must emphasize that it was not its intention to seek
either information or documents via the discovery requests in dispute that has already been
provided to PCC by the State in response to earlier discovery requests.5 Furthermore, in the face
of these relentless assertions by the State, PCC also must emphasize ii~contention that ~
of
the discovery requests in dispute in fact is duplicative of an earlier discovery request to which the
State has provided a substantive response. PCC has acknowledged that some of the discovery
requests in dispute are duplicative of earlier requests to which the State had not provided a
substantive response at the time the new discovery requests were served upon the State.
(Response Brief at 7, n.8).
However, PCC recognizes that it would be no more appropriate for the Hearing Officer to
accept at face value PCC’s representations that the discovery requests in dispute are not
duplicative of earlier requests than it would be for him to accept at face value the State’s
As previously noted, that PCC intent is clearly stated in the instructions section of each of the sets of discovery
requests at issue.
KC-1 1OI945-t’~
8
2597/3
assertions that the requests are indeed duplicative in nature. Thus, if the issues raised here by the
State’s Protective Order Motion were instead raised by a PCC motion to compel discovery so as
to overcome request-specific objections asserted by the State, PCC would support its positions
on a request-by-request basis. Why the State believes that it has no corresponding burden in
seekingIna protectiveshort,
the
orderState’sfromgroundsthe Hearingfor
theOfficerprotectiveis
unfathomableorder
it seeksto arePCC.(1)6 “It will be a lot of
work to provide substantive responses to these discovery requests, and we shouldn’t have to do
so because we have already provided PCC a lot of discovery,” and (2) “A lot of these discovery
requests are duplicative of ones we have already responded to--trust us on this.” The first
argument is legally insufficient. The second is unproven. Therefore, to the extent that the
State’s Reply Motion is based upon those arguments, it provides no support for the State’s
Protective Order Motion and should not be entertained by the Hearing Officer.
C.
As To Propriety
Of
PCC’s Production Renuests
By its Reply Motion, the State in part seeks leave to argue that PCC’s production requests
to the State in dispute do not seek documents that are subject to discovery. However, the State.
has failed to justify the Hearing Officer considering that argument either.
First, the State completely failed in its Protective Order Motion to address the threshold
issue of whether PCC’s requests seek the production of documents subject to discovery, even
though this is a fundamental part of the analysis required for a determination of whether any of
the criteria that support the issuance of a protective order exists here. Having failed to address
this basic issue in its Protective Order Motion in the first instance, the State should not be
6Significantly, the State understood its responsibility to address disputed discovery requests on a request-by-
request basis earlier in this case when it unsuccessfully sought an order from the Hearing Officer compelling PCC to
provide discovery sought by the State. Against this background, it is particularly puzzling why the State believes it
need not undertake a similar effort in order to obtain a protective order against FCC’s discovery directed to it.
KC11o1945-1’’
2597/3
allowed to make its principal arguments as to this issue in its Reply Brief, just because PCC has
noted in its Response Brief this glaring hole in the State’s case.
Second, there again is no substantive reason for the Hearing Officer to entertain the
discussion of this topic in the State’s Reply Brief. That discussion also does not establish the
proposition that the documents sought by the production requests at issue are not subject to
discovery.
The State sets forth a number of arguments in its Reply Brief that purport to address
PCC’s contention that the production requests in dispute seek the production of documents that
contain information that is relevant to one or more issues that have been raised in this case and/or
information that is calculated to lead to such relevant information. However, most of those
arguments do not actually address that PCC contention. Rather, everything in Section IV of the
State’s Reply Brief after the first paragraph thereof is merely a continuation of the State’s
contentions that many of the production requests in question are duplicative of earlier requests
and that it would otherwise just be too much work to respond to those production requests on
their individual merits.
Thus, the only substantive contention the State makes in this part of its Reply Brief is that
“Respondent simply reformulates many of its stricken affirmative defenses, and also places
emphasis on certain questions that may, in actuality, be nothing more than smoke screens.”
(Reply Brief at 9). This statement hardly constitutes rebuttal of PCC’s contention that all of the
production requests in dispute seek the production of documents subject to discovery.
Significantly, the State makes no effort in its Reply Brief to challenge either PCC’s
characterization of each and every production request at issue in Appendix A to its Response
KC.I101945-1”~
10
2597/3
Brief or PCC’s contention that documents relating to the various issues identified by PCC in that
Appendix are subject to discovery.
Assuming for the sake of argument that there is some conceptual connection between a
description of documents to be produced and a “reformulation of a stricken affirmative defense,”
to the extent that a particular PCC production request seeks the production of documents relevant
to a stricken affirmative defense, those documents also are relevant to the issue of the magnitude
of an appropriate civil penalty, if any, to be imposed upon PCC in this case if the State proves
those violations of the Illinois Environmental Protection Act alleged.7 To the extent that there is
some conceptual connection between a description of documents to be produced and “emphasis
on certain questions that may, in actuality, be nothing more than smoke screens,” PCC cannot
locate that connection and cannot specifically comment further.
As for both of these points (whatever they actually may be), the State has made no effort
to identify which of the PCC production requests at issue satisfy either concept; but it is clear
that these concepts do not apply to
all
of the requests at issue. Thus, the State’s discussion
provides no basis for the issuance of a protective order.
In short, the State has presented no argument in its Reply Brief that would establish the
proposition that the PCC production requests in dispute do not seek the production of documents
subject to discovery. Therefore, there is no reason for the Hearing Officer to entertain the
discussion of this subject in the State’s Reply Brief in connection with his consideration of the
State’s Protective OrderMotion.
indeed, in arguing to the Board that all of PCC’s affirmative defenses should be stricken, the State contended
that the basic concepts of certain of PCC’s affirmative defenses indeed are present in this case, but only in the
context of penalty issues; and the Board agreed with the State in this regard to some extent in striking certain of
PCC’s affirmative defenses.
KC.11Oi945.i~
2597/3
D.
As To Rule 2O1(k~Issues
By the State’s Reply Motion, the State in part seeks leave to file its Reply Brief so as to
dispute certain assertions purportedly made by PCC regarding the parties’ Rule 201(k)
discussions/consultation and to set forth its version of certain other aspects of those
discussions/consultation. However, the State’s Reply Brief fails to address the Rule 201(k)
issues discussed in PCC’s Response Brief.
The State accurately observes that disputes exist as to precisely who said what to whom
about what when in the course of the parties’ attorneys’ discussions and correspondence
regarding the issues raised by the State’s Protective Order Motion. However, these disputes are
of no significance with respect to the issues raised by either that motion or the State’s Reply
Rather,Motion,itsoisthereonly
iscertainno reasonaspectsforofthetheHearingparties’Officerdiscussion/consultationto be concerned withprocessthosethatdisputes.are
IIQI
8
disputed that are relevant to the disposition ofthe State’s motions.
First, it is undisputed that the State made no reasonable effort to invoke the Rule 201(k)
consultation process before filing the State’s Protective Motion in the first instance, as
established by the Blanton Affidavit I at paragraphs 6 through 11 and the Hedinger Affidavit at
paragraphs 6 through 10. There is nothing to the contrary in the State’s Protective Order Motion
and supporting materials, the State’s Reply Motion, the State’s Reply Brief, or the affidavits of
the State’s attorneys filed in support ofthe State’s Reply Motion, both ofwhich merely generally
aver that the “assertions” contained in the State’s Reply Brief are true, correct and accurate, to
the best of their knowledge.
‘To the extent, though, that the Hearing Officer considers the parties’ factual disputes in this regard germane to
any issue raised by either the State’s Reply Motion or its Protective Order Motion, PCC reiterates its confidence in
the veracity of the statements contained in the Blanton Affidavit I and the Hedinger Affidavit.
KG. l1Ol945-l~
2597/3
Second, it is undisputed that the State has consistently refused to discuss each of the
individual discovery requests in dispute with respect to the issues of whether a request seeks
information that is subject to discovery, what would be required of the State to provide the
information sought by the request, and whether it would be unduly burdensome for the State to
do so. Rather, the consistent positions of the State have been (1) that it has no obligation to
discuss the discovery requests in dispute with PCC on the basis of the respective merits of each
individual request unless the Hearing Officer’s ruling on the State’s Protective Order Motion
imposes such an obligation, and (2) that the State will not undertake any such discussion prior to
receiving that ruling.
(~,
~
Second Affidavit Of W. C. Blanton Relating To State’s Motion
For Protective Order) (“Blanton Affidavit II,” ¶ 4)~9
Because the State’s Reply Motion does not discuss any Rule 201(k) issue germane to the
State’s Protective Order Motion, there is no reason for the Hearing Officer to entertain the
discussion of Rule 201(k) issues contained in the State’s Reply Brief in connection with his
consideration of that Motion. Because the State has failed to comply with the requirements of
Rule 201(k) with respect to the parties’ discovery dispute here, the State’s Protective Order
Motion should be denied.
III.
CONCLUSION
For the reasons stated above, the State’s Reply Motion should be denied.
The fact that the parties did discuss these issues with respect to the merits of three categories of the discovery
requests in dispute does not detract from the significance of the State’s general refusal to discuss the individual
discovery requests in dispute with PCC. Rather, the fact that PCC was willing to modify the few requests that thc
State was willing to address on their individual merits, (Blanton Affidavit iI, ¶ 4), confirms the merit of the
Rule 201(k) requirement that parties involved in a discovery dispute make a good faith, reasonable effort to resolve
that dispute by agreement prior to seeking relief from the presiding tribunal.
KC.1101945.1’
13
2597/3
Date: July 14, 2003
Respectfully submitted,
PEABODY COAL COMPANY
By its attorneys
W. C. Blanton
BLACKWELL SANDERS PEPErMARTIN LLP
Two Pershing Square, Suite 1000
2300 Main Street
Post Office Box 419777
Kansas City, Missouri 64141-6777
(816) 983-8000 (phone)
(816) 983-8080 (fax)
wblanton@blackwellsanders.com (e-mail)
teptien F/i-ieainger
HEDINcTER LAW OFFICE
2601 South Fifth Street
Springfield, IL 62703
(217)
523-2753
(phone)
(217) 523-4366 (fax)
hedinger@cityseape.net (e-mail)
KC-1 lO1945-1’~
2597/3
14
BEFORE THE ILLINOIS POLLUTION CONTROL BOAROLEng’~OrificE
JUL 1 7 2003
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE
OF IWNOIS
Pollution Control Board
Complainant,
)
)
v.
)
PCB99-134
)
PEABODY COAL COMPANY, a Delaware
)
Corporation,
)
)
Respondent.
)
SECOND AFFIDAVIT OF W. C. BLANTON RELATING TO
STATE’S MOTION FOR PROTECTIVE ORDER
W. C.
Blanton, being first duly sworn, states as follows:
1.
The statements made herein are based upon my personal knowledge, and I am
competent to testify hereto.
2.
I am an attorney duly authorized to practice law in the States of Indiana, Missouri,
and Minnesota; and I am one of the attorneys of record for Respondent, Peabody Coal Company
(“PCC”), in connection with the above-captioned matter, having been granted leave by
the
Illinois Pollution Control Board (‘Board’) to appear pm
h~
in this matter on behalf of
PCC.
3.
This affidavit is being filed with the Board as part of PCC’s opposition to
Complainant’s Motion For Protective Order (“State’s Motion”), filed in this matter on or about
June 4’ by Complainant, People ofthe State of Illinois (“State”).
1 All dates stated herein are for the year 2003, unless specifically stated otherwise.
KG-I I02922-P~
2597/3
4.
It was the position of the State’s attorneys at the meeting that is the subject of
Paragraph 13 of the Affidavit Of W.C. Blanton Relating To State’s Motion For A Protective
Order executed June 12, (“Blanton Affidavit I”) that the State has no obligation to and would not
undertake the effort to determine whether grounds exist for the State to assert objections to all of
the discovery requests in dispute on an individual basis prior to the issuance of a ruling on the
State’s Motion. Rather, it was the State’s position as articulated by its attorneys at that meeting
that the State has already provided substantial information and produced a large number of
documents in response to PCC’s discovery requests already, and that it is therefore PCC’s
burden to justify any (or at least any substantial amount ol) further discovery requests to the
State. However, in the course of that meeting, three categories of discovery requests were
discussed with respect to certain of the issues raised by those requests.
First, the State’s attorneys voiced an objection to interrogatories 3 and 4 contained in
PCC’s Third Set Of Interrogatories To The State and production requests 16 and 17 contained in
PCC’s Fourth Set Of Requests To The State For The Production Of Documents, which seek
detailed information regarding the State’s opinion witnesses and the opinions of those witnesses
to be offered as evidence at a judicatory hearing in this matter, as being unduly burdensome. In
response, I agreed on behalf of FCC to address the matters that are the subject of portions of
those discovery requests in PCC’s depositions of those State opinion witnesses in lieu of
obtaining the information sought by means ofwritten answers to those interrogatories.
Second, the State’s attorneys voiced an objection to the scope of interrogatories 16 and
17 contained in PCC’s Fifth Set Of Interrogatories To The State and production requests 14 and
15 contained in PCC’s Sixth Set Of Requests To The State For The Production Of Documents,
which seek information regarding certain aspects of the State’s handling of cases other than this
KC.IJO2922-I”~
2
2597/3
one involving actual or threatened contamination of groundwater, as being overly broad. In
response, I agreed on behalf of PCC to limit the scope of those discovery requests so as to seek
only information regarding the possible establishment of a groundwater management zone in
connection with the State’s handling of each of those other cases.
Third, the State’s attorneys voiced an objection to certain interrogatories and production
requests on the grounds of the State’s contention that they seek information or the production of
documents already provided by the State to PCC in response to previous discovery requests,
asserting -that the instruction associated with each of the PCC sets of interrogatories and
production requests in dispute that unequivocally states it to be PCC’s intention not to require the
State to provide discovery in a duplicative manner is insufficient protection for the State with
respect to any duplicative discovery requests. In response, I agreed on behalf of FCC to review
the discovery requests in dispute and to qualify each discovery request that could reasonably be
interpreted as being duplicative in nature and to modify each such request to explicitly state that
the request seeks either information or the production of documents only to the extent “not
previously provided.”
5.
Throughout the course of the parties’ in-person discussions and correspondence
regarding the issues raised by the State’s Motion, the State’s attorneys consistently took the
position that the first step ofany effort to resolve the parties’ discovery dispute would have to be
PCC advising the State which, if any, of the discovery requests in dispute PCC would voluntarily
withdraw, after which the State might be willing to discuss the possible handling of the
remaining viable discovery requests by agreement.
KG-I IO2922-F~
259 7/3
Further affiant sayeth not.
W. C. Blanton
STATE OF MISSOURI
COUNTY OF JACKSON
)
)
)
Subscribed and sworn to before me, a Notary Public in and for said County and State, this
of July, 2003.
O9AI.tcp~iE R HALL
Notary Public - Notary See
STATE OF MISSOURI
Jackson County
My Commission Explrot November i2~2004
My Commission Expires:
Notary Public
KG-I 102922.1
2597/3
4