RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARbLE~S ~
GINA PATTERMAN
)
JUN 102003
)
STATE OF ILLiNOIS
Complainant,
PCB 99-1
8-pollutIon Control Board
v.
(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS,
)
INC.
)
Respondent.
)
NOTICE OF FILING
To: See Attached Certificate of Service
PLEASE TAKE NOTICE that on the 10th day of June, 2003, the undersigned
caused to be filed with the Office of the Clerk of the Pollution Control Board the
Supplemental Appearance of Michael S. Blazer and Matthew E. Cohn, all on behalf of
the Petitioners, copies of which are herewith served upon you.
THE JEFF DIVER GROUP, L.L.C.
By:
Michael S. Blazer
Matthew E. Cohn
THE JEFF DIVER GROUP, L.L.C.
1749 S. Naperville Road, Suite #102
Wheaton, IL 60187
(630) 681-2530
-
THIS FILING SUBMITTED ON RECYCLED PAPER
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARI~LERK’S
OPFICF
GINA PATTERMAN
)
JUN 102003
)
STATE OF ILLINOIS
Complainant,
PCB 99-1
8fo!lution Control Board
(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS, )
Noise & Air)
INC.
Respondent.
SUPPLEMENTAL APPEARANCE
The undersigned hereby files a Supplemental Appearance in this proceeding on behalf
of the Complainant, Gina Patterman.
Michael S. Blazer
Michael S. Blazer
THE JEFF DIVER GROUP, L.L.C.
1749 S. Naperville Road, Suite #102
Wheaton, IL 60187
(630) 681-2530
THIS FILING SUBMITTED ON RECYCLED PAPER
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR1D1~!R~
(~r~v’p
GINA PATTERMAN
)
JUN 102003
)
STATE OF ILLINOIS
Complainant,
PCB
99~1~l!UtIOflControl Board
V~
(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS,
)
Noise & Air)
INC.
Respondent.
)
SUPPLEMENTAL APPEARANCE
The undersigned hereby files a Supplemental Appearance in this proceeding on behalf
of the Complainant, Gina Patterman.
•
__
Matthew E. Cohn
Matthew E. Cohn
THE JEFF DIVER GROUP, L.L.C.
1749 5. Naperville Road, Suite #102
Wheaton, IL 60187
(630) 681-2530
THIS FILING SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused the above and foregoing Notice
of Filing and Supplemental Appearances of Michael S. Blazer and Matthew E. Cohn, all
on behalf of the Complainant, to be served via facsimile transmission upon the
following:
Mark R. Ter Molen
Patricia F. Sharkey
Kevin G. Deshamais
Mayer, Brown, Rowe & Maw
190 S. LaSalle Street
Chicago, IL 60603
Fax No. (312) 706-9113
on this 1
0th
day of June, 2003.
Roger D. Rickmon
Tracy, Johnson & Wilson
116 N. Chicago Street
6th Floor
Joliet, IL 60432
Fax No. (815) 727-4846
THE JEFF DIVER GROUP, L.L.C.
By:
Michael S. Blazer
•
•
L
THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
GINA PATTERMANN
•
Complainant,
V.
BOUGHTON TRUCKING AND MATERIALS,
INC.
Respondent.
)
)
)
)
RECEIVED
CLERK’S OFFICE
JUN 102003
STATE OF ILLINOIS
)
Pollution Control Board
PCB 99-187
(Citizen Enforcement,
)
Noise & Air)
NOTICE OF FILING
To: See Attached Certificate of Service
PLEASE TAKE NOTICE that on the ~
day of June, 2003, the undersigned
caused to be filed with the Office of the Clerk of the Pollution Control Board the
Supplemental Appearance of Michael S. Blazer and Matthew E. Cohn, all on behalf of
the Petitioners, copies of which are herewith served upon you.
Michael S. Blazer
Matthew E. Cohn
THE JEFF DIVER GROUP, L.L.C.
1749S. Napervilte Road, Suite #102
Wheaton, IL 60187
(630) 681-2530
THE JEFF DIVER GROUP, L.L.C.
By:
THIS FILING SUBMITTED ON RECYCLED PAPER
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
102003
GINA PATTERMANN
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
PCB 99-187
•(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS, )
Noise & Air)
INC.
Respondent.
COMPLAINANT’S MEMORANDUM IN RESPONSE TO
RESPONDENT’S MOTION FOR DISCOVERY SANCTIONS
Now comes Complainant, Gina Pattermann (“Pattermann”), by her attorneys, and
hereby submits her Memorandum in Response to the Motion of Respondent, Boughton
Trucking and Materials, Inc. (“Boughton”) for Discovery Sanctions.
I.
INTRODUCTION
This action involves serious allegations of noise and air pollution resulting from
Boughton’s mining operations. Boughton correctly points out that this matter has been
pending since 1999. However, Boughton is incorrect in suggesting that the history of
this matter reflects a “pattern of delay and obfuscation” or a “pattern of abuse”. Rather,
at least until October 2002, the docket of this matter reflects two primary activities: an
initial effort by Boughton to dispose of the Complaint as duplicitous and frivolous
(granted in part and denied in part in September 1999), followed by an almost two-year
settlement effort. It has only been in the last few months, since settlement efforts did not
prove fruitful and Pattermann’s prior counsel withdrew, that this matter has been on a
course toward a hearing. Most recently, Pattermann has retained new counsel
experienced in environmental matters and in matters before the Board, further
THIS FILING SUBMITTED ON RECYCLED PAPER
demonstrating her willingness and ability to pursue this matter to its appropriate
conclusion. Under the circumstances, it would be fundamentally unfair to allow
Boughton to avoid a hearing on the merits of the claimed violations through a Motion for
Sanctions.
II.
BOUGHTON HAS NOT ESTABLISHED ANY PREJUDICE RESULTING FROM
ANY DELAY IN DISCOVERY
The primary impetus for Boughton’s Motion appears to be the evident lack of
communication that resulted in the failure of Complainant’s noise expert, Greg Zak, to
attend his scheduled deposition.1 Boughton argues that it has “been prejudiced in their
ability to defend themselves in this lawsuit”. The specific nature of the alleged prejudice
is not identified. Rather, instead of focusing on the potential costs that may be incurred
in rescheduling the subject deposition, Boughton seeks to bar all evidence on noise
issues and to recover the excessive fees billed by Boughton’s counsel in the entire
discovery process. Absent demonstrated prejudice, sanctions of the type sought by
Boughton are improper. See,
e.g., Tinsey v. Chicago Transit Authority,
140 llI.App.3d
546, 549 (ist Dist. 1986).
Boughton’s Motion seeks too much. First, as noted in the Motion, Pattermann
has already disclosed a large number of witnesses, apart from Mr. Zak. The Hearing
Officer has ruled that summary statements may be submitted given the large number of
witnesses identified. Nevertheless, Boughton’s Motion seeks to bar all testimony on the
subject of the noise emissions from Boughton’s operations.
Even as to Mr. Zak, the solution to the problem, now that new counsel is in the
I
Boughton speculates at length regarding the nature of Mr. Zak’s retention and Pattermann’s
intent in identifying Mr. Zak as a noise expert. (Boughton Motion at 3-4) Irrespective of the speculation
regarding Mr. Zak’s status, Pattermann here confirms that Mr. Zak is the retained expert and that she
stands ready to compensate him for his services.
THIS FILING SUBMITTED ON RECYCLED PAPER
case and Mr. Zak’s retention has been confirmed, is to allow the deposition to proceed
and give Boughton the opportunity to learn the substance of the testimony. This is in
fact the gjjjy prejudice Boughton claims to have suffered in this regard. (Boughton
Motion at 4)
The balance of Boughton’s assertions relate to claimed deficiencies in
Pattermann’s prior responses to other discovery requests. The most significant point
here, despite Boughton’s various disparaging comments, is that Boughton has never
filed either a Motion to Compel or other Motion questioning the sufficiency of the
responses.2 Boughton did move to strike Pattermann’s witness list. But this Motion was
not granted. Rather, the Hearing Officer entered an order on April 23 which allowed
Pattermann to select one witness to testify at hearing and to submit written statements
from the other witnesses. The balance of Boughton’s Motion, which sought to bar
testimony, was denied. Despite the prior denial of any “objections” by Boughton, it now
seeks toAsrevisitBoughtonthose issuespoints inout,the guisethe
proprietyof
the presentof
sanctionsMotion
forisSanctions.governed3
by Rule
101.800(c) (35 IADC 101.800(c)), which provides:
•In deciding what sanction to impose the Board will consider
factors including: the relative severity of the refusal or failure
to comply; the past history of the proceeding; the degree to
which the proceeding has been delayed or prejudiced; and
the existence or absence of bad faith on the part of the
offending party or person.
None of these factors support sanctions to the extent sought by Boughton. Pattermann
2
The only exception is the Motion to Compel referenced at page 8 of Boughton’s current Motion,
relating to information sought from Pattermann’s former husband, which does not appear to have been
ranted.
•
Boughton’s reliance on cases involving a “pattern” of discovery abuses is misplaced. (Boughton
Motion at 8) No such pattern is present here, nor, as noted, has any such conduct been the subject of a
Motion to Compel (except for the Motions that were denied).
3
THIS FILING SUBMITTED ON RECYCLED PAPER
did not refuse to produce Mr. Zak — his failure to appear for his deposition was the
evident result of confusion regarding payment, which has now been resolved. Second,
the past history of this proceeding reflects years of settlement followed by the more
recent preparation for hearing and Pattermann’s compliance with discovery requests.
As to the third factor, Boughton has not demonstrated any unwarranted delay or
prejudice. Nor, as to the fourth factor, does Boughton identify any evidence of bad faith
by Pattermann, other than unsubstantiated speculation. The most that can be said is
that there was certainly a lack of clarity regarding the responsibility for payment of Mr.
Zak’s fees.4 At a minimum, however, this warranted further confirmation by Boughton
(or at least its counsel) before thousands of dollars in fees were incurred in “preparing”
for a deposition that was not certain to occur.
The cases cited by Bbughton do not alter this result. (Boughton Motion at 5)
Unlike the cited cases, this is not a situation where the expert’s identity or his opinions
have not been disclosed. The problem here was the scheduling of the deposition of the
expert who was disclosed. The solution is to take his deposition, not bar his testimony.
Ill.
THE
ATTORNEYS’
FEES SOUGHT BY BOUGHTON FAR EXCEED ANY
REASONABLE COMPENSATION FOR THE CANCELLATION OF THE ZAK
DEPOSITION
The primary purpose of Boughton’s Motion, as noted previously, is to avoid a
hearing on the merits of Pattermann’s claims. Secondarily, however, the Motion reflects
Boughton’s effort to foist on Pattermann the billing excesses of its counsel. In other
circumstances of an abortive deposition, one would reasonably expect a request for
reimbursement of court reporter attendance costs and, possibly, related costs or
Zak’s attendance was certainly not confirmed. Boughton acknowledges that Pattermann “stated
•
that she thought Mr. Zak would be there although she herself might not.” (Boughton Motion at 2,
emphasis added.)
4
THIS FILING SUBMITTED ON RECYCLED PAPER
expenses. Boughton, however, uses this opportunity to impose on Pattermann
attorneys fees totaling $19,520.25, far in excess of anything approaching reasonable
costs and expenses.
First, Boughton’s request is contrary to this Board’s rules. “Section 101.800 does
not allow the Board to monetarily sanction the offending party (see Revision of the
Board’s Procedural Rules: 35 III. Adm. Code 101-130, R00-20, slip op. at 7 (Dec. 21,
2000)), where the Board eliminated language allowing the Board to sanction the
offending party with reasonable costs incurred by the moving party in obtaining an order
for sanctions).”
Lawrence v. North Point Grade School,
PCB 02-110, 2003 WL 1891827,
Slip Op. at 2.
Apart from the above, as an overall matter, Boughton improperly fails to provide
any breakdown or other method for determining the reasonableness of the amounts
sought. See generally,
Kaiser v. MEPC American Properties, Inc.,
164 Ill.App.3d 978,
984 (ist Dist. 1987). Beyond this, however, the fees claimed confirm Bouighton’s
attempt at overreaching.
The claimed fees are divided into four categories. First, $3970.50 is sought in
connection with a claimed “false witness list”. It is unclear what this has to do with Zak’s
deposition. More to the point, this relates to the Motion that was denied by the Hearing
Officer on April 23.
The next item is $365 for “efforts to obtain addresses for complainant’s
• witnesses”. This was not the subject of any prior motion nor is it related to the Zak
deposition.
The third item is $6388.75 for “preparation for and attendance at Steve
5
THIS FILING SUBMITTED ON RECYCLED PAPER
Pattermannn and Greg Zak depositions”. It is unclear what the preparation for the Steve
Pattermann deposition has to do with the abortive Zak deposition. More to the point,
Boughton’s general description of its attorneys’ services includes “preparation and
sending of deposition notices and subpoenas, research, document review and writing of
deposition questions”. Ignoring the lack of any specificity, all of these activities would
have to be undertaken no matter what the circumstance, particularly if Boughton’s
Motion is denied and Zak’s deposition proceeds. As noted above, the only “expenses”
to which Boughton might arguably be entitled would be “travel to and attendance at
depositions”. Again, apart from the lack of specificity, there is substantial doubt as to the
reasonableness of any charge under the circumstances. It is common practice to
confirm a deposition the day before it is to occur. This is especially prudent where some
travel is involved. In this case, such confirmation was almost a necessity given the
confusion regarding payment to Mr. Zak and the lack of any assurance that the
deposition would proceed as scheduled. Rather than making a telephone call,
Boughton’s attorneys just showed up and now express feigned outrage that the lack of
certainty came to fruition.
The fourth element of claimed fees, and the most outrageous, is $8819.00 for
“preparation of motion for sanctions”. Boughton suggests no basis for an award of fees
in connection with the preparation of a motion for an award of fees. Nor, again, does
•
Boughton provide any detail to substantiate this claim.
IV.
CONCLUSION
This case has probably dragged on much longer than it should have. But this
Board should not ignore the fact that the vast majority of the delay encompassed a
6
THIS FILING SUBMITTED ON RECYCLED PAPER
protracted period of efforts, albeit unsuccessful, to settle this matter. When settlement
efforts ultimately failed, Patterman provided the discovery requested by Boughton. The
circumstance of the Zak deposition certainly should and could have been avoided. It
seems clear, however, that both parties were guilty of unwarranted assumptions
regarding Zak’s attendance. This issue can be resolved expeditiously, as set forth
above.
The balance of Boughton’s Motion must be seen for what it is — a
post hoc
diatribe serving as a vehicle for summary disposition of Pattermann’s claims, coupled
with an effort to shift the burden for excesses in legal billings. Boughton should not be
allowed to avoid a hearing on the merits of this controversy. The Motion for Sanctions
should be denied.
Respectfully submitted,
Gina Pattermann
By:
Oneofherattorneys
Michael S. Blazer
Matthew E. Cohn
The Jeff Diver Group, L.L.C.
1749 S. Naperville Road
Suite 102
Wheaton, IL 60187
630-681-2530
7
THIS FILING SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused the above and foregoing Notice
of Filing and MEMORANDUM IN RESPONSE TO RESPONDENT’S MOTION FOR
DISCOVERY SANCTIONS, all on behalf of the Complainant, to be served via facsimile
transmission upon the following:
Mark R. Ter Molen
Patricia F. Sharkey
Kevin G. Deshamais
Mayer, Brown, Rowe & Maw
190 S. LaSalle Street
Chicago, IL 60603
Fax No. (312) 706-9113
on this ~ day of June, 2003.
Roger D. Rickmon
Tracy, Johnson & Wilson
116 N. Chicago Street
6th Floor
Joliet, IL 60432
Fax No. (815) 727-4846
THE JEFF DIVER GROUP, L.L.C.
By:
Michael S. Blazer
THIS FILING SUBMITTED ON RECYCLED PAPER