BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFP!CE
JUN
162003
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
PEABODY COAL COMPANY, a Delaware)
corporation,
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
Bradley Halloran
Hearing Officer
Illinois
Pollution Control Board
100 W. Randolph St.
James R. Thompson Center’
Suite 11-500
Chicago, IL 60601-3218
W.C. Blanton
Blackwell Sanders Peper Martin LLP
Two Pershing Square
2300 Main St., Suite 1000
Kansas City, MO 64108
PLEASE TAKE NOTICE that on the/~/~day
of June, 2003, we sent to the Clerk of the
Pollution Control Board the original and nine copies of Substitution of Affidavit of W.C.
Blanton for filing in the above entitled cause.
The undersigned certifies that a true and correct
copy of the above-described document
was served
upon
the
above-identified
individuals
via U.S.
mail
by
enclosing the
same
in
envelopes properly addressed, with pp,stage fully prepaid, and by depositing said envelopes in a
U.S. Post Office mail box, on the1I~dayofJun
2003.
~
—~
Steph~F.Hedihg~’~’
Hedinger Law Office
1225 S. Sixth St.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
v.
)
)
)
PCB 99-134
STATE
OF
IWNOIS
Pollution
Control
Board
To:
Jane E. McBride
•
Environmental Bureau
Attorney General’s Office
500
S. Second St.
Springfield, IL 62706
Pollution Control Board, Attn: Clerk
100 West Randolph Street
James R. Thompson Center
Suite 11-500
Chicago, IL 60601-3218
David Joest
Peabody Coal Company
1951
Barrett Court
P.O. Box 1990
Henderson, KY
42419-1990
THIS FILING IS SUBMITFED ON RECYCLED PAPER
•
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARJ1~
ERR S
PEOPLE OF THE STATE OF ILLINOIS,
)
)
JUN
Complainant,
)
STATE
OF
)
POllUti0fl Contr
I
)
PCB 99-134
°‘
DOQrcf
)
PEABODY COAL COMPANY,
a Delaware
)
corporation,
)
)
Respondent.
)
SUBSTITUTION OF AFFIDAVIT OF W.C. BLANTON
NOW COMES Respondent, PEABODY COAL COMPANY (hereinafter “PC~”),
through its
undersigned attorney, and hereby substitutes the original of the Affidavit of W.C.
Blanton Relating to State’s Motion for Protective Order for the facsimile copy thathad been filed
along with PCC’s Brief in
Opposition to
State’s Motion for Protective Order.
In support of this
substitution, PCC states as follows:
1.
On June 12, 2003, PCC submitted, in support ofits Brief in Opposition to State’s
Motion for Protective Order, the Affidavit of W.C. Blanton Relating to State’s Motion for
Protective Order, dated June 12,2003.
At the time ofthat submittal, only a facsimile copy of that
Affidavit was available for filing.
The submittal was filed by U.S. Mail, and, per Hearing
Officer authorization, by facsimile transmission.
2.
The original ofthe Affidavit of W.C. Blanton Relating to State’s Motion for
Protective Order is now available for submittal, and with this pleading PCC submits, as a
substitution, that
original for the facsimile copy.
The original and four copies are being sent to
the Board’s Clerk’s Office and
one each is being sent
to the persons on the service list.
WHEREFORE, Respondent PEABODY COAL COMPANY substitutes the original of
the Affidavit of W.C. Blanton for the facsimile copy previously provided.
Respectfully submitted,
PEABODY COAL COMPANY,
Respondent
By its
attorney
HEDINGER LAW OFFICE
By:_________
Stephen/Hedinger
‘~
HEDINGER LAW OFFICE
1225 S.
Sixth St.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLiNOIS,
)
)
Complainant,
)
)
v•
)
PCB 99-134
•
)
PEABODY COAL COMPANY, a Delaware
•)
corporation,
)
•
)
Respondent.
)
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
competentto testif~,’
hereto.
2.
I am an attorney duly authorized to practice law in the States ofIndiana, Missouri,
and Minnesota;
and I am one ofthe attorneys ofrecord 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 p~hac
vice 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
41
by Complainant, People ofthe State ofIllinois (“State”).
All dates stated herein are for the year 2003, unless specifically stated otherwise.
KC• 109595 I-I
259713
4.
On May 8,
in
an
in-person conversation, I advised Jane E.
McBride, the
State’s
attorney
of record
in
this
case,
and
attorney
Stephen
C.
Ewart
(the
Illinois
Environmental
Protection Agency attorney having primary responsibility within that agency for the handling of
this
case)
that
PCC
would
within
a
few
days
thereafter
serve
numerous
interrogatories
and
production requests upon the State and
that I anticipated the State’s attorney’s initial reaction to
those discoveiy requests
to be negative.
I also
advised Ms. McBride and Mr. Ewart at that time
(a) that those discovery requests would be narrowly drawn and be directed to
specific issues that
have
been
raised
in
this
case,
(b)
that
PCC
anticipated
the
State
having
no
information
or
documents responsive to a large numberof the requests, (c)
that PCC would be wi1lin~
to clarify,
make more specific, or otherwise scale back the scope ofcertain requests, if appropriate,
and (d)
that PCC would generally workwith the State so that it would not be unduly burdensome for the
State to provide PCC the information and documents sought by the requests.
5.
A
copy
of
my
letter
to
Ms. McBride
that
accompanied
the
four
sets
of
interrogatories
and
production
requests
served
upon
the
State
that
day
(“PCC
Discovery
Requests”) is attached as Exhibit A to
the State’s Motion.2
6.
On June 4, I received via U. S. mail a letter from Ms. McBride dated May 30
and
addressed to StephenF. Hedinger and me, a copy ofwhich is attached as Exhibit
1.
7.
Prior
to
my
receipt of Ms. McBride’s May 30
letter, I received
via facsimile
a
letter from Ms. McBride dated June 2 and addressed to
Mr. Hedinger and me, a copy ofwhich is
attached as Exhibit 2.
8.
On June 3, I transmitted
an e-mail message to Ms. Mc Bride,
a copy ofwhich
is
attached as Exhibit
3.
2
This letter is misdated as “March
25,
2002.”
The letter and enclosures were actually mailed on May 23, 2003.
KC-1095951-1
2
2597/3
9.
Later
on
June 3,
Ms. McBride transmitted
her May 30
letter described above
to
me via facsimile.
A copy ofthat copy ofthe letter is attached as Exhibit 4.
10.
On June 4,
Ms. McBride transmitted
to
me via
facsimile a
copy
of the
State’s
Motion,
which apparently was transmitted to
the Board for filing that day.
A copy ofthe cover
sheet for that transmittal is attached as Exhibit
5.
11.
Prior
to
my
receipt
of the
copy
of the
State’s
Motion
transmitted
to
me
via
facsimile, Ms. McBride and I had not
discussed the
State’s objections to
the discovery requests
directed to the State by PCC that are the subject ofher May30 letter and the State’s Motion.
12.
On
the
afternoon
of June 4,
Mr.
Hedinger
and
I
placed
a
teleph6ne
call
to
Ms. McBride to
discuss the issues raised by her May 30
letter and the
State’s Motion.
At that
time, Ms. McBride declined to discuss the issue ofwhether the PCC Discovery Requests seek to
elicit
information relevant
to
the
issues
in this
case and/or calculated
to
lead to
such
relevant
information
and
the
production
of
documents
possessed
by
the
State
that
contain
such
information.
During that
conversation,
Ms. McBride stated
that
Thomas Davis,
Chief of the
Environmental Bureau of the Office of the Attorney General ofIllinois,
had written the State’s
Motion.
13.
On June 10,
Ms. McBride, Mr. Ewart, Mr. Davis,
Mr. Hedinger and I met at the
offices
of the Attorney
Illinois
Attorney
General in
Springfield,
Illinois
to
discuss
the matters
that are subject ofMs. McBride’s May 30
letter and the State’s Motion.
(This meeting required
me to
travel from Kansas City, Missouri
to
Springfield at considerable expense to
PCC.)
At that
meeting, Mr. Davis informed Mr. Hedinger and me that it
is
the State’s position that it will not,
prior to the issuance of a ruling on the State’s Motion, discuss with PCC the issue ofwhether the
PCC
Discovery
Requests
seek
to
elicit
information
relevant
to
the
issues
in
this
case
and/or
KC~1095951-1
3
2597/3
calculated to lead to such relevant information and the production ofdocuments possessed by the
State that contain such information.
At that meeting, Mr. Davis also
stated indicated that he had
not up to that point in time read the individual interrogatories and production requests contained
in the PCC Discovery Requests;
and Ms.
McBride stated at the meeting that she had not read all
ofthose individual interrogatories and production requests until June 9.
Further affiant sayeth not.
•
•
•
___
•
W.
C. Blanton
STATE OF MISSOURI
)
•
)ss.
COUNTY OF JACKSON
)
Subscribed and sworn to before me, a Notary Public in and for said County and
State, this
/~~Uay
ofJune, 2003.
~
~
Notary Public
My Commission Expires:
7c~3OC,
KC-1095951-1
2597/3
4
Re:
People v. Peabody Coal company,
PCB 99-134
•
•
JUNO4Rfl~lJ
•
OFFICE OF THE
ATFORNEY GENERAL
STATE
OF ILLINOIS
Lisa Madigan
A~FORNEYGENERAL
May 30, 2003
Mr. W.C. Bianton,
Esq.
Mr. StephenF. Hedinger
Blackwell Sanders Peper Martin LLP
Attorney at Law
2300 Main Street, Suite
1000
2601
South Fifth Street
Kansas City, MO
64108
Springfield,
IL 62703
Dear Mr. Blanton and Mr. Hedinger:
I am writirig regarding the discovery requests received by this office on May 27, 2003
relative to the above-referenced matter.
Please consider this letter the initiation ofS. Ct. Rule
201(k) consultation regarding these requests.
The cover letter included in transmission ofthese
requests, identified as Peabody’s Third Set ofInterrogatories through Seventh Request for
Production ofDocuments, is
attachedhereto as Exhibit A.
As you
are aware, Peabody propounded its first request forproduction to the Complainant
on July 28,
1999 that included a very broad requestfor documents from the files ofthe Illinois
EPA, Illinois DNR and Illinois Dept. ofPublic Health.
Respondent’s first set ofinterrogatories
was propounded upon the Complainant on November
~
1999,
and
included 45
interrogatories.
Respondent’s second request forproduction was propounded upon Complainant
on November
5,
1999, and included very broad individual requests for documents from the files ofthe Illinois
State Geological Survey, the Illinois
State Water Survey, the Illinois EPA and the Illinois DNR.
Respondent propounded its second set ofinterrogatories and third request for production of
documents on March
15,
2000.
The third set ofinterrogatories requested disclosure ofopinion
and fact witnesses.
Said disclosure was completed by Complainant, reserving its right to disclose
additional rebuttal witnesses, on May 23, 2003, pursuant to the discovery schedule that has been
established in this matter.
All ofthe above-referenced requests have been complied with and have been
supplemented by the Complainant.
Complainant is currently aboutto provide the Respondent
500 South Second Street,
100 West Randolph Street,
1001
East Main, Carbondale,
•
TTY:
(217) 785-2771
•
Fax:
(217) 782-7046
• TrY:
(312) 814-3374
•
Fax:
(312) 814-3806
(618) 529-6403
•
Fax: (618) 529-6416
Mr. W.C. Blanton, Esq
May30, 2003
Page 2
with another supplemental production, which will be followed in due time by another
supplemental production.
These supplemental productions include documents that have come
into being through the duration ofthis case.
As stated above, the Respondent has already propounded 47 interrogatories.
The
recently•received sets ofinterrogatories consist ofthe following: third
set,
12 interrogatories;
fourth set, 30 interrogatories; fifth set,
17 interrogatories, sixth set,
15 interrogatories.
Further,
also as stated above, the requests to produce propounded prior to
the most recent requests were
very broad requests concerning the files offive state agencies.
The most recently received
requests number as follows: fourth set ofrequests, 21
individual requests forproductidn; fifth set
ofrequests, 57 individual requests for production; sixth set ofrequests, 26 individual requests;
seventh set ofrequests,
24 individual requests.
Many ofthe requests and interrogatories
contained within the third through seventh requests recently propounded are duplicative ofprior
requests.
The recent disclosure concerning witnesses and the opinions and conclusions of
controlled experts are responsive to both any outstanding requests and also to many of the
recentlypropounded requests.
It is incumbent upon the Respondent to justify this newly propounded, tremendously over
burdensome set of discoveryrequests.
This is particularly so given the recent
efforts to establish
a discovery schedule that already has placed pressure on counsel to timely and succinctly
undertake and expedite all remaining discovery so that this matter might proceed to hearing.
Therefore, Complainant, as a somewhat unorthodox request, asks the assistance ofthe Hearing
Officer in quickly resolving this discovery dispute.
With this letter, Complainant
is asking that a
status conference be scheduled as early as the later
part
ofnext week,
at which time counsel, with
the assistance ofthe Hearing Officer, may conduct a discussion that will resolve this discovery
matter.
This request is designed to provide for a timely resolution ofthis dispute, so that the
Complainant might quickly ascertain upon order ofthe Hearing Office exactlywhich requests are
considered justifiable and therebyrequiring response.
The time oflater next week is requested so
that Tom Davis, Bureau Chief, might participate in this discussion.
As stated in Complainant’s response to Respondent’s motion for leave of Counsel W.C.
Blanton to appearpro
hac vice,
filed in this matter on February
11, 2002, in paragraph 18 on
page 4 ofthe response:”.
.
.
Complainant objects on the grounds that Mr. Blanton’s entry of
appearance in this matter is being submitted relatively late in the litigation.
The parties have
already tendered discoveryrequests, and Complainant has already made available the files offour
state agencies in response to those discovery requests.
...“
In support ofthis
objection,
Complainant cited the following case, at paragraph 22 ofthe response:
22.
In the case of
Hallmann
v. Sturn Ruger & Co.,
31
Wash. App 50 (1982),
Mr. W.C. Blanton, Esq
May 30, 2003
Page 3
639 P.2d. 805, cited in Michael A. DiSabatino, J.D., Annotation, Attorney’s Right to
Appear
Pro Hac Vice
in State Court, 20 A.L.R.
4th
855
(2001), the court reversed a trial
court’s revocation ofan Alaska attorney’s admissionpro
hac vice
to
represent clients in
civil litigation because the trial court had acted on its own motion without having given
prior
notice or having held a hearing.
But in its
ruling, the court said that the trial court
had been understandably concerned that the Alaska attorney had commingled the
Washington case with cases pending in otherjurisdictions, had attempted to consolidate
discovery in these actions, and had submitted lengthy memoranda which in the trial
court’s mind contained irrelevant authority from otherjurisdictions and created what the
trial
court termed
a “monstrosity” ofa case.
The court stressed that the clients ofthe out-
of-state attorney had an interest in retaining the attorney oftheir choice, but that their
interest had to be balanced with the court’s responsibility to insure order, and with the
opposing counsel’s interest in his ability to
proceed with the litigation without scheduling
complications.
The court said that these competing interest couldbest be protected if, on
remand to the trial court, inquirywere limited
to whether the acts of the out-of-state
attorney violated the code ofprofessional responsibility, orwere contemptuous of the
court, or adversely affected the conduct ofthe litigation.
It appears that the predictions contained within Complainant’s objection to Mr. Blanton’s
entry
inthis
case have indeed come true.
Iwill soon place a call to Mr. Halloran to inquire whetherhe would be willing to set the
requested status conference and participate in discovery dispute discussions so that this issue
might be quickly resolved.
Sincerely,
Jane E. McBride
Assistant Attorney General
(217) 782-9033
cc:
Mr. BradleyP. Halloran, Esq.
Mr. Stephen Ewart, Esq.
Mr. Thomas Davis, Esq.
LAW FIRM
BLACKWELL
SANDERS
PEPER MARliN
2300
MAIN STREET SUiTE
1000
KANSAS C1TY~
MO
64108
P.O.
BOX 419777
KANSAS
CIT’i,
MO
64141-6777
TEL:
(8i6)
983-8000
FAX:
(816) 983-8080
WEBSITE: www.blackwellsanders.com
W.C.
BLANTON
DIRECTFAX:
(8i6)
983-9151
DIRECT: (8i6) 983-8151
E-MAIL: wblanton@blackwellsanders.com
March
25,
2002
RECE~JED
ATTORNE
GENERAL
Jane E. McBride
MAY
2
7
2003
Environmental Bureau
Assistant Attorney General
IAL
500
S. Second St.
Springfield, IL
62706
Re:
People ofthe
State ofIllinois v.
Peabody Coal Company
PCB Case No. 99-134
Our File No. 25 97-3
Dear Jane:
Enclosed
and hereby served
upon
you
are
copies
of the
following
discovery
requests
directed
to
the
State
by
Peabody
Coal
Company
(“PCC”)
in
connection
with
the
above-
referenced matter:
•
Peabody’s Third Set Of Interrogatories To The State;
•
Peabody’s Fourth Set OfRequests To The State For The Production Of Documents;
•
Peabody’s Fourth Set OfInterrogatories To The State;
•
Peabody’s Fifth Request To The
State For The Production Of Documents;
o
Peabody’s Fifth Set Of Interrogatories To The State;
•
Peabody’s Sixth Request To The State For The Production OfDocuments;
•
Peabody’s Sixth Set Of Interrogatories To The State; and
•
Peabody’s Seventh Request To The State For The Production OfDocuments.
As
I indicated to you
a couple of weeks ago,
we believe the information and
documents
sought
by these discovery requests are subject to
discovery given the nature and scope of issues
in this case.
However, we recognize that the requests are numerous; and it is
not our intention to
cause the State to undertake
efforts that are not necessary to
locate and provide us the
Exhibit
A
KC-1091309-I
KANSAS
CITY,
MISSOURI
•
ST•
LOUIS,
MISSOURI
•
OVERLAND
PARK,
KANSAS
.
OMAHA,.
NEBRASKA
SPRINGFIELD,
MISSOURI
•
EDWARDSVILLE,
ILLINOIS
•
WASHINGTON.
D.C.
•
LONDON, UNITED
KINGDOM
A~F~L~ATES~
LEEDS
•
MANCHESTER
•
MEXICO CITY
•
MONTREAL
•
TORONTO
•
VANCOUVER
BLACKWELL SANDERS
PEPER MARTIN
tEl’
Jane McBride
March21, 2002
Page 2
information we need in order
to respond to the State’s claims against PCC asserted in this
case.
Accordingly, please call
me to
discuss any questions
or concerns that you
have regarding these
discovery requests.
Best regards
--
Very truly yours,
W.C.Blanton
WCB/cs
Enclosures
cc:
Steve Hedinger
Dave Joest
KC-1091309-I
L15a
Madigaxi
xrroKr’JEYGAL
DATE:
TO:
/
OFFICE OF
FAX
ENVIRONMEI
ATTORNEY
GENERAL
OF ILLIIf4OIS
SMITTAL~
SHEET
BUREAU
SPRINGFIELD
(217) 52~t-774Q
FAX
NO:
FROM:
PHONE
NO:
NUMBER OF
PAGES:
HARD COPY TO FOLLOW:
—
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CONTACT SENDER/CALL BACKr
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IS A FAX TRANSMl~S
OF A77Ot~NEY
PRIVILEGED AND/OR CONNDENTIAL
INFORMATION.
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IF YOU HAVE RE~E
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THANK YOU.
501) South
Secund Slre~c,
Springlield.
“SO
~
Rinr1ul~h
Sctee~,Chicago.
‘706
•
~7)18Z-I000
•
~T’TY:(2I7)7S5-Z77l
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1
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TT’t’:I312)814-.3374
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(INCLUDING
THIS
PAGE)
NOTES:
OFFICE OF
Lisa Madigan
ATI’ORNIW
GENERAL
Mr.
W.C. Blanton, Esq.
Blackwell
Sanders
Peper Martin LLP
2300 Main Street, Suite 1000
Kansas City, MO 64108
Via Facsimile
(816) 983-8151
Re:
People
v.
.2,2003
Mr~.Stephen F. Hedinger
At~omey
at Law
26Q1 South Fifth Street
Springfield, IL 62703
Via Facsimile
(217)
523-4366
Dear Mr. Blanton and Mr. Hedinger:
Mr. Halloran is
available for a bljehtatus conference on
the
issue of
your
recent
discovery requests at
9:15
A.M.
on Thur~4a~i,
June
5.
He has asked that we provide him with
a
written motion prior to his participation ~n~4iscussions
on this
dispute.
I have indicated to him
that we would transmit a written motion~p~ipr
to the time ofthe status conference.
He also
reminds the parties that ho is scheduled 1~o
~Ø
on family leave in the very
near future.
He
suggests we attempt to resolve the issue Lb1~prehe is called away.
I would ask that you provide a
r~si~nse
to my letter ofMay 30, 2003, as soon as possible
to facilitate any discussion that might b~p~sible
prior to Thursday.
We would expect your
response to indicate which portion of thç x~ent
request you are willing to
withdraw, and an
explanation as to whyyou feel the rema~n~r
ofthe re
uest is justified.
Sincerely,
,~7_-’~
-~-~.L~c’
Jane B. McBride
Assistant AttorneyGeneral
(217) 782-9033
cc:
Mr. Stephen Ewart, Esq.
500 South
Sccnnd Stroct, Springfield. UUnbi4:f~2706
.
(217) 782-10~0
•
TTY:
(217)
7115-2771
•
FIlE; (217)
782-7046
100
WORE Randolph
Stroot, Chicago,
flhi~riia1*0)
•
(312) 8!4_3000
•
‘fVY:
(312) ~14-3374
•
Fax:
(312)
814.3806
1001
East
Main,
Cathondaic,
tll1nui~
•
(618) 520-~400
•
TTY:
(618)
529-6403
•
Far.:
(61S) 529.6416
OF
ILL.1NOIS
Goal company,
PCB
99-134
Blanton,
WC
From:
Blanton, WC
Sent:
Tuesday, June 03, 2003 1:48 PM
To:
‘JANE MCBRIDE’
Cc:
‘hedinger~cityscape.net’
Subject:
RE:
People v. Peabody Coal,
Depositions
This is
in response
to your fax late yesterday.
Neither Steve Hedinger
nor
I
have
received any letter from
you dated May
30 regarding
PCC’s most recent sets of discovery requests. That
makes
it a
little
hard to respond to your fax.
Original Message
From:
JANE MCBRIDE
mailto:JMCBRIDE@atg.state.iI.usj
Sent: Wednesday, May 28,
2003 9:45 AM
/
To: wblanton@Blackwellsanders.com; hedinger@cityscape.net
Subject: People v. Peabody Coal, Depositions
Steve andWC
The only dates where
I have three consecutive days of availability for
all concerned, for depositions, are July
1 through
3.
Please
call me today regarding the scheduling of deposition.
(217)
782-9033.
Jane McBride
EXHIBIT
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OFFICE OF ~
Lisa
Madigan
.•
ATTORNEY GENSRAL
FAX
T~
ENVIRONMENT4
FAX~
44
DATE:
_______________
TO:
FAX NO:
FROM:
PHONE NO:
-~
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A’ITORNEY
GENERAL
~TE
OF ILLI~’iOIS
~NSMlTTAL
SHEET
L BUREAU
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SPRINGFIELD
1.
(217)524-7740
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NUMBEROFPAGES:
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(INC L(JDING
THIS
PAGE)
HARD COPYTO FOLLOW:
___
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IF YOU
DO NOT RECEIVE ANY OF ~HEPAGES PROPERLY,
PLEASE
CONTACT SENDER/CALL BACK
~RSON
AS SOON AS
POSSIBLE.’
Contact Person:
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Phone No.
NOTICE:
THIS IS A
FAX
TRANSMJ~S
~N OF ATrO~RNEY
PRIVILEGED AND/OR CONFIDENTIAL
INFORMATION.
IT IS INTENDED OI~IL~
FOR THE
LJ~E
OF THE INDIVIDUAL OR ENTITY TO
WHICH IT
(S ADDRESSED.
(F YOU
HAVE RE~E~~ED
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IN
ERROR, PLEASE NOTIFY THE
SENDER
AT THE ~ABOVE
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IF YOU
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iNTENDED RECIPIENT, YOCJj~ARE
HERESY NOTIFIED
THAT
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tNFORM4T~oN
IS
STRICTLY
PROHIBITED.
THANK YOU.
NOTES:
$00
Suuth
•
12)7)
782.1090
•
TTY:
(217)
785-2771
•
Fu.’c; (217)
787.704b
•
(3t2) 814-3000
•
11V:
1312)
8)4-3374
‘
Eix:
(312)
8(4-3206
,•‘,
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Lisa Madigan
ATtORNEY GENERAL
Mr.
W.C. Blanton, Esq.
Blackwell Sanders Peper Martin
LLP
2300 Main Street, Suite 1000
Kansas
City, MO 641 08
Re:
Peoplev.
Dear Mr. Blanton
andMr. Hedinger:
30,
2Od~3
Mr.
Stephen F.
Hedinger
A~ttorneyat Law
2~01
South Fifth Street
Springfield, IL 62703
Coa4 Company,
PCB 99-134
I am writing regarding the discove~y
requests ~‘eceived
by this
office
on May 27, 2003
relative to the above-referenced matter. j~P~ase
consi4er this
letter the initiation ofS.
Ct.
Rule
201(k) consultation regarding these req~e~ts.
The cos~’erletter included in transmission ofthese
requests, identified as Peabody’s Third ~~ofInterro~atories through Seventh Request for
Production ofDocuments,
is attached h~r~to
as Exhibit A.
As you are aware, Peabodypro~4~\~ded
its
firlt request for production to
the Complainant
on July 28,
1999 that included a very b4o4~
request fgr documents from the files ofthe Illinois
BPA, illinois DNR and Illinois
Dept. o~’P~jblic
Healtl~.Respondent’s first set ofintetrogatories
was propounded upon the Complainant~o~
Novembe~t
4th,
1999, and included 45
interrogatories.
Respondent’s second request for produ~ti~n
was propounded upon Complainant on November 5,
1999, and included
very
broad individulal requests fo~
documents from the files ofthe Illinois
State Geological Survey,
the Illinois St~
jwater Sux~ey,
the illinois EPA and the Illinois DNR.
Respondent propounded its second set?
:Ilterrogatories and third request for production of
documents on March 15, 2000.
The th1r
~set
of inter~ogatories
requested disclosure of opinion
and fact witnesses.
Said disclosure wa~jrnipleted by Complainant, reserving its
right
to
disclose
additional rebuttal witnesses, on May
~003,pursi.~antto the discovery schedule that has been
established in this matter.
All ofthe above-referenced req~ ts have be~n
complied with and
have been
supplemented by the Complainant.
Co~~:la1~hlt
is ~urrently about to
provide the Respondent
500
Sourh Second
Struct, Springfield. 1ui4i4~2706
•
(217) ~82-l090
•
TTY;
(2)7) 185-2771
•
Fax
(2)7) 782-7046
100 We~
Randolph
Scroet.
Chicago. Uhinqia 11~0601
•
(312)
814.3000
•
‘~i\’~
(312) 214-3374
•
I~a~:
(312) 814-3806
11101
~
~A*n
(‘.,,rhondaI~.1llinoi~62901
•
(618) 529-6400
•
TTY
(612) 529.6403
•
I’IIC
(6113) 529.6416
OFFICE OF
ATFO~NEY
GENERAL
OF ILLJINOIS
/
F
I:
I
I
.J~.
Mr. W.C. Blanton, Esq
May 30; 2003..
Page2
H
with another supplemental production,
~h~h
will be followed in due
time
by another
supplemental production.
These supp1e~n~ttal
productions include documents that have come
into being through the duration ofthis cés~
As stated above, the Responder4
l~s
already propounded 47
interrogatori~s.The
recently received sets ofinterrogatories co~sist
ofthe following: third set,
12 interrogatories;
fourth. set,
30 interrogatories;
fifth
set,
I
j7
~terrogatoijes,
sixth
set,
15 interrogatories.
Further,.
also
as stated above, the requests to pro~u
~propounded prior to the most recent requests were
very broad requests
concerning the flles!o ;flve state agencies.
The most recently received
requests
number as follows: fourth
set
oFf
~quests,
21
individual requests for production; fifth set
of requests, 57 individual requests for p~o4~iction;
sixth set ofrequests, 26
individual requests;
seventh set ofrequests, 24 individual requ~sts.Many~of
the requests
and interrogatories
contained within the third
through
seveifttl~requests
recently propounded are duplicative of
prior
requests.
The recent disclosure concern~in~
witnesses
and the opinions and conclusions of
controlled experts are responsive to bot~i4~y
outstand.ing requests and also to many ofthe
recently propounded requests.
It is incumbent upon the Respor~d~t
tojusti~’
this newly
propounded, tremendously over
burdensome set ofdiscoveryrequests.
‘jL’k~fsis
particu~arly
so given the recent efforts to
establish
a discovery schedule that already has pl~c~d
pressure
on
counsel to
timely and
succinctly
undertake
and expedite all
remaining di~c~$very
so th~t
this matter might proceed to hearing.
Therefore, Complainant,
as a somewha~
u~orthodoxrequest,
asks the assistance ofthe Hearing
Officer in quickly resolving this thscov~ij~dispute.
With this letter, Complainant
is asking that a
status conference be scheduled as early
Jal:the
later part ofnext week, at
which
time counsel, with
the
assistance ofthe Hearing Officer,
i
~conducta aiscussion that will resolve this discovery
matter.
This request is designed
to pro~ic~
for a tim~ly
resolution ofthis dispute, so that the
Complainant might quickly ascertain uj~o~
order ofthe Hearing Office exactlywhich requests are
considered justifiable and
therebyrequi~rii~
response.
The time of later next
week is requested so
that Tom Davis, Bureau Chief,
might
pj~4cipate
in this discussion.
As stated in Complainant’s
resç~oI~e
to
R~spQndent’s
motion for leave ofCounsel W.C.
Blanton. to
appearpro
Izac
vice,
filed
in~t1~is
matter
or~
February
11, 2002, in paragraph 18
on
page 4 of the response:
“.
.
.
Complain~n~
objects onjthe grounds that Mr. Blanton’s entry
of
appearance in
this
matter is
being
subnjitfrdrelatively late in
the litigation.
The parties have
already tendered discoveryrequests, ankl ~omplainartthas already made
available
the files of four
state agencies
in response to those disc~~ryrequests.
.
..“
In
support ofthis objection,
Complainant cited the following case, ~t
aragraph
22
ofthe
response:
22.
In the case of
H4ll~ann
v. Stu~n
Ruger
&
Co.,
31
Wash. App
50
(1982),
~Juj1
Li..)
L..L)Lls)
ltJL.
Li~~.ji
£i~
£
£ £I~
I £~J,
£__
I
I
£
1.1
fr
639 P.2d. 805, cited in Michael ~.~iSabatino~
S.D., Annotation, Attorney’s
Right to
Appear
Pro Hac Vice
in State C~i420 A.L.R.
4th
855 (2001), the court
reversed
a trial
court’s revocation ofan Alaska 4tt~rney’s
adthission
pro hac vice
to represent clients in
civil litigation because the
trial cp4~t
had
actecj
on its own
motion without having
given
prior notice or having held a hea~ii~fg.
But in its ruling, the court said that the trial court
had beenunderstandably concer~e~
that the Ajaska attorney
had
commingled the
Washington case with cases pen~li~4g
in otherjutisdictions, had attempted to consolidate
discovery in these actions,
and hMfsubmitted lengthy memoranda which in the trial
court’s mind contained irrelevar~t
~ithorityfrom otherjurisdictions and createdwhat the
trial court termed a “iuonstrosit~?’
~f
a case.
The court stressedthat the clients ofthe out-
of-state attorney had an interest 4n~.etainixig
the attorney of theirchoice, but that their
interest bad to be balanced
with
1th~
court’s re~ponsibility
to insure order, and with the
opposing counsel’s interest in hi~
~,ility to prc~ceed
with the litigation without scheduling
complications.
The court said tl3a~!,~hese
competing interest could best be protected if, on
remand to the trial court, inquir~
‘~ere
limited to whether the acts ofthe out-of-state
attorney violated the code ofprc~f~~siorial
responsibility, or were contemptuous of the
court, or adversely affected the qQ ~dnctofth&litigation.
It appears that the predictions c~n
entry in this case have indeed come
truC.
t will soonplace a call to Mr. H~l
requested status conference and particij~a
mightbe quickly resolved.
~ined withi~Complainant’s objection to Mr. Blanton’s
~ranto inquire whether he would be willing to
set the
~.
in
discovery dispute discussions
so that this issue
~II
Mr. W.C. Blanton, Esq
May 30, 2003
Page 3
Sincerely,
~
~4
‘ane B. McBride
Assistant Attorney General
(217) 782-9033
cc:
Mr. Bradley P. Halloran, Esq.
Mr. Stephen
Ewart, Esq.
Mr.
Thomas
Davis, Esq.
Sane E.
McBride
EnvironrnehtalBureau
Assistant Attorney General
500
S. Second St.
Springfield, IL
62706
Re;
People ofthe State ofIll
PCB
Case
No. 99-134
Our File No.
2597~3
Dear Sane:
Enclosed
and hereby
served u$
directed
to
the
State
by
Peabody
C?aI
referenced matter:
:
•
Peabody’s
Third Set Ofint4r
•
Peabody’s
~ourth
Set Of
•
Peabody’s
Fourth
Set OfIn~er
•
Peabody’s Fifth Request To~T
•
Peabody’s Fifth Set OfInte
•
Peabody’s
Sixth RequestT~.
~
•
Peabody’s Sixth Set Of
Intekr~
•
Peabody’s
Seventh Requestfi~
As
I indicated to
you a couple~~
sought by these discovery requests ar~s
in this case.
However, we recognize tl~a
cause the State to undertake efforts thak
LkW
fiRM
BLACICWELL
hNDERS
1~EPERMARTh4
•
LLP
2300
MAIN5TR.E~T
P.O. BOX4~a7
TEL: (816)9
wEnsm
W.C. SLANTON
DrREcr;
(816) 983-8151
IflTE
1000
KA.NSAS cIDI, MO
64i.oS
ICANSAS CTT?. ptO 6~4t~6m
~-8ooo
FAX;(8z6) 983-8080
~b~adU~añder~.cozn
DWEC1 FAX- (816) 983-9151
~L:wb1&ntoueb1ac1Zsandc~i~m
~
~rch25,2OQ2
RECEKVED
ATTQR.NFY GENERAL
M1~Y2
72003
v. Peaboc~y
Coal
Company
you
are
~QpIesof the
following
discovery
requests
L~Company~(“PCC”)
in
connection
with
the
above-.
~atoriesTo~
The State;
ests To The State ForThe Production Of Documents;
ogatories 1~oThe State;
~e State For~
The Production Of Documents;
~atories,
To The State;
~ieState For The Production Of Documents;
~gatoriesTc~
The State; and
~The State For The Production Of Documents.
‘weeks ago, we believe
the information
and
documents
~bject to di~coverygiven the nature and scope of issues
~therequests are
nuirierous; and it
is
not our intention to
,~tenot nece~saiy
to
locate and provide us the
Exhibit
A
KC-,O9I~OU.L
KA1~SASCITY,
M~s~otJ~.i
•
ST. L.OU~.
~
.
QV~LA~DPARIC.
~A~SA~
•
OMAHA.
N~flP.ASKA
~PRINC~’IELD.
MISSQUZ~I
•
~DW,tRDSt’T~I.
U.LI~OfS
.
S~CT0~, D.C
.
LO~00N,
U~4IT~D
~iNGD0M
AI’I’~K~3~L~RD~
•
MANCIjI~T
ii
•
MEXICO
CITY
•
M~XTp.EA~
•
T0kI~ITO
•
VANCOUVUR
I,
i.
~~~.
•
:,
-
_____
•
BLAcKWELJ~
~NDERS PEPER MARTIN
liP
—
JaneMcBride
JL
March21,2002
Page2
•
information we need in order to respon~I
1
the State’~
claims against PCC asserted in this case.
Accordingly,
please
call me to
discuss
~q
questions~
or concerns
that you have regarding these
discovery requests.
Best regards
--
~
Very truly
yours,
•
Li
W.C. Bl~nton
WCB/cs
Enclosures
cc:
Steve Hedinger
Dave .Joest
1
•
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LID
OFFICE OF
Lisa Madigan
ATTORNEY
GENERAL
FAX
DATE:
TO:
FAX
NO:
FROM:
PHONENO:
7~2
NUMBER OF PAGES:
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(INCL~JOING
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PAGE)
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•
TTV: (!~7)7~3-2771
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•
F~ix:
(31?i
~14~3S06
GENERAL
NOTES:
~
~
~,
300
South
