BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
GINA PATTERMANN,
)
RECET~VED
)
Cl
~v’C~
Complainant,
)
)
v.
)
PCB No. 99-187
STAfl~O~~LUNO1S
)
(Citizens Enforcement
-
I ~ftt~i~Pontro!
Board
BOUGHTON TRUCKiNG AND
)
MATERIALS, iNC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Certificate ofService
Please take notice that on August 29, 2003, I filed with the Illinois Pollution Control
Board an original and nine copies ofthis Notice of Filing and the attached Boughton’s Response
to Plaintiffs Motion for Clarification of Board’s Order ofAugust 7, 2003, copies ofwhich are
attached and hereby served upon you.
Dated: August 29, 2003
BOUGHTON TRUCKING AND MATERIALS, INC.
By:_______
On o~fits Attorneys
Mark R. Ter Molen, Esq.
Patricia F. Sharkey, Esq.
Kevin 0. Desharnais, Esq.
MAYER, BROWN, ROWE & MAW LLP
190 S. LaSalle Street
Chicago, Illinois 60603
(312)782-0600
THIS DOCUMENT HAS BEEN PRNTED ON RECYCLED PAPER
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
RECE~v~j~
C! rr~v’~ r~v~
GINA PATTERMANN,
)
AUG
292003
Complainant,
)
PCB 99-187
Sl~IE OF ILLINOIS
v.
)
(Citizen Enforcement
Pollution Control
Board
BOUGHTON TRUCKING AND
)
-Noise, Air)
MATERIALS, iNC.,
)
)
Respondent.
)
BOUGHTON’S RESPONSE
TO PLAINTIFF’S MOTION
FOR
CLARIFICATION
OF BOARD’S ORDER OF AUGUST
7, 2003
NOW COMES Respondent, Boughton Trucking and Material, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe & Maw LLP, and responds to Plaintiffs Motion for
Clarification of Board’s Order ofAugust 7, 2003, stating as follows:
1.
There is nothing unclear about the Board’s August 7, 2003 Order. As a sanction
for Pattermann’s pattern ofabuse, the Board granted Respondent’s motion to bar Mr. Zak’s
testimony. It is true that the Board did not grant Respondent’s request that other evidence
pertaining to the subject matter ofMr. Zak’s testimony be barred. But, nothing in the Board’s
order suggests that the Board intended its order to over-ride the Hearing Officer’s long
established discovery deadlines and allow the Plaintiff to reopen discovery orto designate
additional “substitute” witnesses, as the Plaintiff suggests. In fact, the Board’s order affirmed
that the discovery period is closed:
“The Board will not grant Boughton’s motion to bar the testimony
ofany 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.” emphasis added p. 4
THiS DOCUMENT Is FILED ON RECYCLED PAPER
2.
Plaintiffs self-serving reading ofthe Board’s order is a poorly disguised effort to
reopen the long closed discovery period and to, thereby, eviscerate the sanction imposed by the
Board in its August 7, 2003 Order. Nothing in the Board’s order implies that Plaintiff is to be
allowed to designate a new, “substitute” witness. This reading is not warranted by the language
used by the Board, and it would render the Board’s sanction meaningless. What would be the
sanction
in barring an expert witness if the Plaintiffwere allowed to turn around and hire a new
expert to testify to the same thing? In essence, Plaintiff is trying to reverse the Board’s sanction.
3.
Plaintiffs latest set ofattorneys appeared in this matter over two and a half
months ago. Yet either they still haven’t read the record
or they have read the recordand have
decided they would like to change it.
Either way, Plaintiffs new attorneys must take the case as
they find it. Plaintiffs who file enforcement cases have a duty to take discovery deadlines
seriously. In this case, Plaintiff had years to identify witnesses. The Plaintiffs witnesses are
now limited to those disclosed during the long discovery period, including the one additional
witness allowed by the Hearing Officer’s Order dated April 2, 2003 who has also already been
identified. All ofthese witnesses have already been deposed and the record is closed. While
members of the public may make statements at any hearing that may occur, they are not party
witnesses.
4.
Plaintiff implies that reopening discovery would somehow benefit Respondent.
Motion, par.
5.
This belies a serious misunderstanding ofthe current posture ofthis case.
Contrary to Plaintiffs suggestion, witnesses were deposed during the established discovery
period. The one additional witness allowed by the Hearing Officer after the Plaintiff filed her
disallowed 100 person witness list
was Donald Boudreau, and he has already been identified and
deposed. The Hearing Officer Order ofApril 2, 2003 states:
-2-
THIS DOCUMENT Is FILED ON RECYCLED PAPER
“By waiting over a year and a half to disclose 97 additional
witnesses, the hearing officer found that complainant’s disclosure
was not reasonable or seasonable. The hearing officer also found
that the subject oftheir testimony was vague... The hearing
officer, however, allowed complainant to select one witness from
the disclosure list to testify as complainant’s witness at the hearing.
Complainant represented that she intended to call Donald
Boudreau as her additional witness. To that end, respondent’s
motion was granted in part and denied in part.”
As a result ofthat ruling, Plaintiff was limited to the fourpreviously disclosed witnesses
(including Mr. Zak) and one new witness, Mr. Boudreau. Respondent quickly responded to that
order and took Mr. Boudreau’s deposition within the established discovery period
—
as Plaintiff
well knows.
5.
Plaintiffs feigned concern that Respondent be allowed to depose additional
witnesses is really nothing more than an effort to reopen discovery to allow Plaintiffto rescue its
unsupported allegations by fishing for new witnesses more than fouryears after Plaintiff filed her
complaint and four months afterthe close ofdiscovery. To do this under the guise of seeking
clarification of an order which found that Plaintiffhas already repeatedly abused the discovery
process adds insult to the injury already incurred by this respondent.
6.
As~stated in the Motion for Sanctions, Respondent has already been seriously
prejudiced by the on-going pattern of negligence and harassing litigation tactics employed by
Plaintiff in this case. The Board’s August 7, 2003 order confirmed this abuse and sanctioned it.
Plaintiff should not now be allowed to abuse the discovery process further by using the Board’s
sanction order to gain additional advantage and delay.
7.
This case is ready to proceed to dispositive motions and any further delay is
unwarranted.
-3-
THIS DOCUMENT Is FILED ON RECYCLED PAPER
WHEREFORE, Respondent requests that the Board make it clear that its August 7, 2003
order did not reopen the discovery period, that no newwitnesses may be named at this late date,
and that this case should proceed to dispositive motions without further delay.
Respectfully submitted,
Bough on Tm king and Ma erial, Inc.
By One ofIts Attorneys
Patricia F. Sharkey
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, IL 60603
312-782-0600
Attorney Registration No. 6181113
-4-
THIS DOCUMENT Is FILED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy ofthe attached Notice of
Filing and Boughton’s Response to Plaintiffs Motion for Clarification of Board’s Order of
August 7, 2003 was served on the persons listed below by First Class U.S. Mail, proper postage
prepaid, orby Personal Delivery, as indicated below on August 29, 2003.
Bradley Halloran
Illinois Pollution Control Board
100 West Randolph Street
Chicago, IL 60601
(Messenger)
Gina Pattermann
4439 Esquire Circle
Naperville, IL 60564
(U.S. Mail)
Roger D. Rickmon
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Sixth Floor, Two Rialto Square
Joliet, IL 60432
(U.S. Mail)
Michael S. Blazer
Matthew E. Cohn
The JeffDiver Group, LLC
1749 5. Naperville Road, Suite #102
Wheaton, IL 60187
(U.S. Mail)
P tri~ia
.
Sharkey
Patricia F. Sharkey
Attorney for Respondents
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER