BEFORE
BOARD
CLERK’S
AU~Z~1ZOO
OFFICE
3
STATE OF ILLINOIS
GINA
PATTERMANN
pollution Control Board
PCB 99-187
V.
(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS,
Noise & Air)
INC.
Respondent.
COMPLAINANT’S MOTION FOR CLARIFICATION OF
BOARD’S ORDER OF AUGUST
1.
2003
Now comes Complainant, Gina Pattermann (“Pattermann”), by her attorneys, and
for her Motion for Clarification of the Board’s Order ofAugust 7, 2003 in connection with
the Motion of Respondent, Boughton Trucking and Materials, Inc. (“Boughton”) for
Discovery Sanctions, states:
1.
On August 7, 2003 the Board issued its Order granting in part and denying
in part Boughton’s Motion for Discovery Sanctions. A copy of the Order is attached
hereto as Exhibit A.
2.
In the August 7 Order, this Board held that it” will not grant Boughton’s
motion to bar the testimony of any other witnesses, pleadings, or documents pertaining
to the subject matter of Mr. Zak’s proposed testimony. However, the Board notes that
the current discovery schedule set by the parties together with the hearing officer
ordered all depositions completed by May 2, 2003, and all dispositive motions filed on or
before May 30, 2003.”
3.
On April 2, 2003, the Hearing Officer issued an Order in connection with
Boughton’s Motion to Strike Pattermann’s Witness List A copy of this Order is attached
)
Complainant,
)
)
)
)
)
)
)
)
THIS FILING SUBMIUED ON RECYCLED PAPER
hereto as Exhibit B. The Hearing Officer allowed Pattermann to select one witness from
her disclosure list to testify as her witness at the hearing of this matter. The, hearing
officer further stated that written statements may be submitted at the hearing by the
recently-disclosed witnesses as participants subject to cross-examination. The order
also provided that notices of witnesses to be disposed had to be served by March 21,
2003, and all depositions completed by May 2, 2003. Finally, the hearing officer denied
Boughton’s Motion to Limit Statements by Excluded Witnesses.
4.
Mr. Zak, the witness. who has now been excluded, would have testified
regarding Boughton’s violation of IEPA regulations and possible modifications to
Boughton’s facility. In reading the foregoing Orders together, it is unclear whether the
Board in its August 7 Order intended to allow Pattermann to designate a new witness to
testify regarding these subjects or whether Pattermann is limited to submitting such
testimony from witnesses already identified. In either case, it is also unclear whether the
Board envisions an extension of the deposition cut-off date in connection with such
substitute testimony, particularly given the Board’s concluding finding in the August 7
Order that the sanction imposed will “promote timely discovery in the future.”
5.
Pattermann does not by this Motion seek to unnecessarily delay these
proceedings, nor does she seek an open-ended extension of the discovery cut-off
(particularly since any further depositions would be for Boughton’s benefit). Rather,
Pattermann only seeks clarification regarding the designation of substitute witnesses in
connection with the subject matter of Mr. Zak’s proposed testimony and the concomitant
need for a limited re-opening of discovery as set forth above.
6.
The Board should note that the Hearing Officer in his most recent order,
2
THIS FILING SUBMITFED ON RECYCLED PAPER
with the concurrence of counsel for Pattermann, provided for the filing of the instant
Motion but also directed that the parties shall schedule a dispositive motion cut-off date
at next status conference, set for September 24, 2003.
7.
Based on the foregoing, Pattermann asks this Board to clarify its Order of
August 7, 2003 and provide direction to the parties regarding the nature of the evidence
Pattermann will be allowed to tender in lieu of Mr. Zak’s testimony and any further
discovery that may be necessitated by such substituted evidence.
Respectfully submitted,
Gina Pattermann
By: _________________________
One of her attorneys
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
3
THIS FILING SUBMIUED ON ‘RECYCLED PAPER
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused the above and foregoing Notice
of Filing and COMPLAINANT’S MOTION FOR CLARIFICATION OF BOARD’S ORDER
OF AUGUST 7, 2003, 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
190S. LaSalle Street
Chicago, IL 60603
Fax No. (312) 706-9113
on this 21st day of August, 2003.
Roger D. .Rickmon
Rickmon:~&Kocsis
1000 Essington Road
Suite 145
Joliet, IL 60435
Fax No. (815) 744-1681
THE JEFF DIVER GROUP, L L C
By:
Michael S. Blazer
THIS FILING SUBMITTED ON RECYCLED PAPER
ILLINOIS POLLUTION CONTROL BOARD
August
7,
2003
GINA PATTERMANN,
)
Complainant,
)
)
v.
)
)
PCB99-187
BOUGHTON TRUCKING AND
)
(Citizens Enforcement
-
Noise, Air)
MATERIALS, INC.,
)
Respondent.
)
ORDER OF THE BOARD (by N. J. Melas):
On May 23, 2003, respondent Boughton Trucking and Materials, Inc., (Boughton~filed a
motion for discovery sanctions against the complainant in this proceeding, Ms. Gina Patterman
(Mot.). Ms. Patterman filed this citizens’ enforcement complaint against Boughton on June 17,
1999, alleging noise and air pollution violations. On June 10, 2003, Ms. Patterman filed a
response to the motion for discovery sanctions ~Resp.).Boughton replied to Ms. Patterman’s
response on June 20, 2003 (Reply). The Boughton facility is a stone quarry that produces
crushed stone, located at 11746 South Naperville Plainfield Road in Plainfield, Will County.
For the following reasons, the Board grants Boughton’s motion for discovery sanctions in
part and denies the motion in part. The Board bars Mr. Zak from testifying at hearing regarding
Boughton’s noncompliance with Illinois Environmental Protection Agency (Agency) regulations
and possible modifications to Boughton’s facility. However, the Board does not bar any other
witnesses, pleadings, or documents pertaining to the subject matter ofMr. Zak’s proposed
testimony, nor does the Board award Boughton attorney fees.
BACKGROUND
Boughton alleges that Ms. Patterman represented she had retained Mr. Greg Zak as an
expert witness to testify at hearing. Mot. at 2. Boughton issued Mr. Zak a subpoena and sent
him a notice ofdeposition for April 23, 2003.
Id.
In response, Mr. Zak sent Boughton a
contract stating the fee for his services. Boughton informed Ms. Patterman and Board hearing
officer Brad Halloran oCthe alleged erroneous billing. Mot. at 2. Boughton alleges that in a
telephonic status conference with all three parties on March 27, 2003,
Ms.
Patterman stated she
understood her responsibility to retain her expert witness.
Id.
Boughton deposed Ms. Patterman on April 8, 2003. Mot. at 2. At the deposition,
Boughton claims that its attorney asked Ms. Patterman to confirm that Mr. Zak would attend his
deposition and Ms. Patterman stated she thought Mr. Zak would be there.
Id.
On April 23, 2003, Mr. Zak did not appear at his scheduled deposition with Boughton.
Mot. at 3. Boughton contacted Mr. Zak by telephone who responded that he had not been
EXHIBIT A
retained by Ms. Patterman. Boughton and Mr. Zak left a voice mail message to this effect for
hearing officer Halloran.
Id.
Ms. Patterman claims that she has retained Mr. Zak as a noise expert witness and that she
is prepared to compensate him forhis services. Resp. at 2. However, Ms. Patterman did not
support these facts with a signed affidavit.
APPLICABLE REGEJ LATIONS
Under Section 101.800(b), the Board will order sanctions when a party fails to comply
with procedural rules, board orders or hearing officer orders. 35 III. Adm. Code 101.800(b).
Sanctions can include baiTing the offender from filing pleadings or documents related to any
issue to which the relusal or failure relates. 35 III. Adm. Code 10l.800(b)(2). The Board may
also bar a witness from testifying concerning that issue. 35 lU. Adrn. Code 101 .800(bi(6).
In deciding what sanction to impose, the Board must consider four factors:
The relative severity ofthe refusal orfailure to comply; the past history ofthe
proceeding; the degree to which the proceeding has been delayed or predjudiced;
and the existence or absence of bad faith on the part ofthe offending party or
person. 35 Ill. Adm. Code 101.800(c).
BOUGHTON’S ARGUMENTS
Boughton requests the Board to bar Mr. Zak as a witness and bar any additional
witnesses, pleadings, or documents pertaining to the subject matter ofhis testimony. Mot. at
5,
9. Boughton also asks the Board to award Boughton attorney fees attributable to Ms.
Patterman’s abuse ofdiscovery process in the amount of$ 19,520.25. Mot. Exh. 4.
Boughton argues that Ms. Patterman’s assertion that she has retained Mr. Zak was
unsupported by an affidavit as required by Section 101.504 of the Board rules, and therefore,
insufficient as a matter oflaw. Reply at 1; citing 35 ill. Adm. Code 101.504.
Bou~htonftirther argues that Ms. Patterman’s alleged retention is late. Reply at 2.Board
hearing officer Brad Halloran ordered the parties to complete all depositions by May 2, 2003.
Mr. Zak’s deposition was scheduled for April 23, 2003. Ms. Patterman did not seek to remedy
her failure to provide Mr. Zak for deposition until she filed the response on June 10, 2003.
Reply at
5.
Boughton argues that in this instance sanctions are warranted due to Ms. Patterman’s
negligence and abuse of Board procedural rules. Boughton contends that Ms. Patterman’s
history of abuse of the discovery process in this proceeding warrants sanctions. Mot. at 5-6.
Boughton argues that Ms. Patterman refused to produce a document identified in her
interrogatory responses pertaining to property values in the subdivision allegedly impacted by
Boughton’s operations. Mot. at 6. Boughton filed a motion to compel production ofthe
document and Ms. Patterman claimed her husband from whom she had recently separated
possessed the document. Boughton subpoenaed Mr. Patterman for the document and he failed to
3
appear at the deposition and failed to provide the subpoenaed document. Boughton argues that
Ms. Patterman has failed to appear at least six status conferences set by hearing officer order.
Boughton further argues that Ms. Patterman failed to provide addresses or phone numbers for
two ofher four witnesses that has caused Boughton significant delay in proceeding with
discovery.
Boughton argues that Ms. Patterman also exhibited bad faith. Mot. at 10. Boughton
opines that Ms. Patterman knew she had not retained Mr. Zak at the time she identified him as
her witness. If not intentional, Boughton argues that causing Boughton to incur the expenses
associated with preparing for and traveling to a deposition where the deponent did not appear
was clearly negligent. Mot. at ii. Boughton contends that Ms. Patterman knew she did not
retain Mr. Zak and neglected to inform Boughton.
Boughton argues that for all ofthese reasons, sanctions against Ms. Patterman are
warranted.
PATTERMAN’S RESPONSE
Ms. Patterman’s responds that Boughton has not established prejudice resulting from the
delay in discovery, has not shown any bad faith on the part ofMs. Patterman. Resp. at 3-4. Ms.
Patterman admits that there was a lack ofclarity surrounding Mr. Zak’s attendance at the
deposition scheduled for April 23, 2003. Ms. Patterman states she merely
thought
that Mr. Zak
would attend the deposition and that Boughton should have confirmed Mr. Zak’s attendance
before preparing for a deposition that was not certainto occur.
Id.
Ms. Patterman also contends that she has officially retained Mr. Zak. Resp. at 3. Ms.
Patterman argues that Boughton’.s contentions ofbad faith are merely “unsubstantiated
speculation.” Resp. at 4. Ms. Patterman argues the solution is to take Mr. Zak’s deposition, not
bar his testimony.
Id.
Ms. Patterman also contends that the attorney fees Boughton seeks forthe cancelled
‘deposition are unreasonable. •Resp. at 4. Ms. Patterman argues the Board procedural rules do
not allow the Board to monetarily sanctionthe offending party. Resp. at
5;
citing Revision ofthe
Board’s Procedural Rules: 35 Ill. Adm Code 101-130, R00-20, slip op. at 7 (Dec. 21,2000). Ms.
Patterman further asserts that Boughton provided no breakdown ofcosts or other method for
determiningthe reasonableness ofthe amounts sought. Ms. Patterman does concede, however,
that Boughton may be arguably entitled to costs for travel to and attendance at the cancelled
deposition.
DISCUSSION
In assessing whether sanctions are warranted, the Board must determine if Ms. Patterman
violated a hearing officer order, board order, or procedural rule, including any subpoena issued
by the Board. 35 Ill. Adm. Code 10 1.800(a). The Board must also considerthe relative severity
ofthe refusal or failure to comply, the past history ofthe proceeding, the degree to which the
proceeding has been delayed or prejudiced, and the existence or absenceof bad faith on the part
ofthe offending party. The goal ofimposing discovery sanctions is to promote discovery, not
4
necessarily to punish. IEPA v. Celotex Corn., 168 Ill. App. 3d 592, 522 I~.E.2d888 (3rdDist.
1988).
The Board finds Ms. Patterman’s conduct has amounted to an abuse ofdiscovery and
grants Boughton’s motion for discovery sanctions in part. Under Sec’tion 101.616(f), failure to
comply with any order regarding discovery may subject the offending persons to sanctions. 35
Iii. Adm. Code 101,616(f). Here, Mr. Zak did not appearat his scheduled deposition because
Ms. Patterman had not retained him. Ms. Patterman does not dispute these facts. In addition, the
hearing officer ordered that the parties complete all depositions ‘by May 2, 2003. By not making
Mr. Zak available at his scheduled deposition or any other time before May 2, 2003, Ms.
Patterman did not comply with the hearing officer’s order to complete all ‘depositions by a time
certain. In addition, Ms. Patterman prevented Boughton from completing any discovery
deposition of her expert noise witness. Ms. Patterman has violated se’veral hearing officer orders
in the past by not appearing at status meetings and by not producing a document subpoenaed by
Boughton. The Board finds that Ms. Patterman’s conductamounts to an abuse ofthe discovery
process.
The Board will not grant Boughton’s motion to bar the testimony of any other witnesses,
pleadings, or documents pertaining to the subjectmatter ofMr. Zak’s proposed testimony.
However, the Board notes ‘thatthe current discovery schedule set by ‘the partiestogether with the
hearing officer ordered all depositions completed by May 2, 2003, and all dispositive motions
filed on orbefore May 30, 2003.
Regarding attorney fees, the appellate court has held that the Board has no authority to
award attorney fees as a sanction. ESG Watts. Inc. v. PCB, 286 Ill. App. 3d 325, 337-338, 676
N.E.2d 299, 307-08 (3d Dist. 1997);
see
Revision of the Board’s Procedural Rules: 35 111. Adni.
Code 10 1-130, R00-20, slip op. at 7 (Dec. 21, 2000). Accordingly, the Board denies Boughton’s
motion for attorney fees.
CONCLUSION
The Board grants Boughton’s motion for discovery sanctions in part and denies the
motion in part. The Board bars Mr. Greg Zak’s testimony at hearing, but denies Boughtoñ’s
motion to bar any other witnesses, pleadings, or documents pertaining to the subject matter of
Mr. Zak’s proposed testimony. The Board also denies Boughton’s motion for attorney fees. The
Board finds the sanction it imposes today is appropriate to remedy the abuse ofthe discovery
processthe Board finds today and to promotetimely discovery in the future.
IT IS SO ORDERED.
5
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order onAugust 7, 2003, by a vote of7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
flECEIVED
BOARD
CLERWS OFFICE
APR
-
2 2603
GINA PATTERMANN,
Pollution Con trol Board
Complainant,
)
V.
)
PCB 99-187
)
(Citizens Enforcement
-
Noise, Air)
BOUGHTON TRUCKING AN)
)
MATERIALS,
)
)
Respondent.
)
REARING OFFICER ORDfl
On
March 17, 2003, and again on March 27, 2003, telephonic conferences were held in
this matter. At the conferences, the status ofthe matterwas discussedand
the
hearingofficer
made rulings
on the outstanding motions.
On March 5, 2003, respondent filed a motion forexpedited hearing officerorder striking
complainant’s witness list. In the motion, respondent represents that complainant recently~~
tendered a witness list to the respondent that included 100 witnesses that complainant intends to
call at the hearing. Complainant orallyresponded to the motion at the March 17,2003,
telephonic conference.
In the motion, respondent argues that 97 ofthe witnesses recently disclosed were not
included in the answers to respondent’s interrogatories served on or before July23, 2001.
Respondent also argues that the witness list is vague, cumulative and lacks sufficient information
to allow respondent to determine the nature ofthe testimony the witnesses would provide. At the
March 17, 2003, conference, complainant orally argued that she did not know ofany additional
witnesses at the lime she answered the interrogatories and that she seasonably supplemented the
answer with the recent disclosure ofthe additional 97 witnesses.
Respondent represented that the “great majority” ofthe recently disclosed witnesses were
listed in the local directory in the year 2000 and could have been disclosed in complainant’s
answers to respondent’s interrogatories served on or before July 23, 2001. The hearingofficer
agreed. By waiting over a year and a half to disclose 97 additional witnesses, the hearingofficer
found that complainant’s disclosure was not reasonable norwas it seasonable. The hearing
officer also found that the subjectoftheir testimony was vague. Complainant did not indicate
that these witnesses had personalknowledge ofthe contested matter only that “the following
persons shall testi!~’as to how respondent’s actions affect their daily lives.” The hearing officer,
however, allowed complainant to select one witness from the disclosure list to testit~as
complainant’s witness at the hearing. Complainant represented that she intends to call Donald
)
)
)
EXHIBIT B
2
Boudreau as her additional witness. To that end, respondent’s motion was granted in part and
deniedin part.
Also at the March 17,: 2003, conference, the hearing Officer statedthat pursuant to Section
101.628 ofthe Board’s procedural rules, written statements may be submitted at the hearingby
the recently disclosed witnesses asparticipants subject to cross-examination. Should the
participant decline to be cross-examined, or if the participant is unavailable, it will be treated as
public comment. Respondent objected. The respondent represented that it would file a written
objection on or before March 21, 2003. Complainant was directed to file a response on orbefore
March
25,
2003.
Additionally, complainant represented that she would file a stipulation stating that there
will be no evidence presented at hearingregarding the loss ofvaluation allegation on any house
built by Patterson Builders other than the house she presentlylives in. Finally, it was agreed that
notices ofthe witnesses to be disposed must be served on or before March 21, 2003, and that
all
depositions be completedon orbefore May 2, 2003.
At the March 27,2003, conference, the hearingofficeraddressed respondent’s written
motion to limit statements by excluded witnesses. Complainant filed her response on March 27,
2003. Respondent argues in its motion that to allow the previously excluded witnesses to file
written statements as participantspursuant to Section 101. 628 ofthe
Board’s
procedural rules
would circumventmodern rules ofdiscovery. Complainant responded that the Act permits such
written statements.
The hearing officer found that the plain language ofSection 101 628 clearly allows for
statements from participantsregardless ofintervening actions or events. Respondent’s motion
was denied.
The hearing officer also directed that complainant serve on the respondent any additional
reports that her expertmay havegenerated on or before April 3, 2003. Reports not turned over
on or beforeApril 3. 2003, either from the complainant or the respondent, will not be allowed
without good cause.
Finally, in light ofthe April 3, 2003, cut-off date for the parties’ disclosure of their
respective experts reports, all dispositive motions must-bo-filedonorbefore-May 30, 2003+
The parties are directed to participate in a telephonic statusconferencewiththehearing
offcer on April 16, 2003, at 2:00 p.m. The status conference must be initiated by the
complainant, but each party is nonetheless responsible for its own appearance. At the status
conference, the parties must be prepared to discuss the status ofthe above-captioned matter and
theirreadiness for hearing.
3
if IS SOORDERED.
~
3rañley PJiallO±Ln
Heanng Officer
Illinois Pollution Control Board
James R Thompson Center, Suite I
1-500
100 West Randolph
Street
Chicago, Illinois 60601
312.814.8914
4
CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoingorder were mailed, first
class, to each ofthe following on April 2, 2003:
Jaimy M Levine
Deen Collins
Kevin U Deshamais
Lisa Collins
MarkR TerMolen
4435
Esquire Circle
Patneia Sharkey
Naperville, IL
60564
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Gina Pattermann
Chicago, IL 60603
4439 Esquire Circle
Naperville, IL 60564
Kenneth A. Carison
Roger D. Rickmon
Thomas R Wilson
Tracy, Johnson, Bertam & Wilson
116 North. Chicago Street
Suite 600
Johet, IL 60432
It is hereby certifiedthat a true copy ofthe foregoing order was hand delivered to
the following onApril 2,, 2003:
Dorothy M. (Jumi
Illinois Pollution Control Board
James R. Thompson Center
100W Randolph St, Ste 11-300
Chicago, Illinois 60601
BradleyP. lIalloran
Hearing Officer
Illinois PollutIon Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
3128148917
