RECEiVED
CLERK’S OFFJCE
DEC
1
2003
BEFORE THE ILLiNOIS POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
V.
Complainant,
SAINT-GOBAIN CONTAINERS, INC.,
a Delaware corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No.
03-22
(Enforcement)
STATE OF IWNOIS
Pollution
control Board
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk of the Board
illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
(VIA FIRST CLASS MAIL)
Carol Sudman, Esq.
Hearing Officer
Illinois
Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois
62794-9274
(VIA FIRST
CLASS MAIL)
(SEE PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I
have today served on the
Office of
the Clerk
ofthe
Illinois Pollution Control Board an
original and
nine copies each of RESPONDENT SAINT-
GOBAIN CONTAINERS, INC.’S RESPONSE TO COMPLAINANT’S MOTION TO
COMPEL, AFFIDAVIT
OF N. LADONNA DRIVER, AFFIDAVIT
OF WRAY
C. HISER;
RESPONDENT SAINT-GOBAIN CONTAINERS,
INC.’S MOTION FOR LEAVE TO
FILE A REPLY TO COMPLAINANT’S RESPONSE IN OPPOSITION TO
RESPONDENT’S MOTION FOR PROTECTIVE ORDER; RESPONDENT SAINT-
GOBAIN CONTAINERS, INC.’S REPLY TO COMPLAINANT’S RESPONSE IN
OPPOSITION TO RESPONDENT’S MOTION FOR PROTECTIVE ORDER and
AFFIDAVIT OF WRAY C. HISER,
copies of which
are
herewith served
upon
you.
Respectfully submitted,
Dated:
November 24, 2003
N. LaDonna Driver
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705 -5776
(217) 523-4900
SAINT-GOBAIN CONTAINERS,
INC.,
Respondent,
By:4~OQ4t,frCa
(2
One of Its Attorneys
THIS
FILING
SUBMITTED
ON RECYCLED
PAPER
CERTIFICATE
OF SERVICE
I, N. LaDonna Driver, the undersigned, hereby certify that I have served the
attached RESPONDENT SAINT-GOBAIN CONTAINERS,
INC.’S RESPONSE TO
COMPLAINANT’S MOTION TO COMPEL, AFFIDAVIT OF N. LADONNA
DRIVER, AFFIDAVIT OF WRAY C. HISER; RESPONDENT SAINT-GOBAIN
CONTAINERS, INC.’ S MOTION FOR LEAVE TO FILE A REPLY TO
COMPLAINANT’S RESPONSE IN OPPOSITION TO RESPONDENT’S MOTION
FOR PROTECTIVE ORDER; RESPONDENT SAJINT-GOBAIN CONTAINERS,
iNC.’S REPLY TO COMPLAINANT’S RESPONSE IN OPPOSITION TO
RESPONDENT’S MOTION FOR PROTECTIVE ORDER and AFFIDAVIT
OF
WRAY
C.
HISER upon:
Delbert D. Hascherneyer, Esq.
Assistant Attorney .General
Office ofthe Attorney General
500
South Second Street
Springfield,
Illinois
62706
Ms.
Dorothy M.
Gunn
Clerk ofthe Board
Illinois Pollution
Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
Carol Sudman, Esq.
Hearing Officer
Illinois Pollution
Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield,
Illinois
62794-9274
by depositing said documents in the United States Mail, postage prepaid, in Springfield,
Illinois on November 24, 2003.
N. LaDonna Driver
SGCO:OO1IFiIINOF-COS —Response to Motion to Compel
CLE1~S
O~FF1CE
BEFORE
THE ILLINOIS
POLLUTION CD)~ROI~
~Q9~RD
TATE OF
IWNOIS
PEOPLE OF
THE
STATE OF ILLINOIS,
)
Control
Board
Complainant,
)
)
v.
)
PCBNo.03-22
)
(Enforcement)
SATh4T-GOBAIN CONTAINERS, INC.,
)
a Delaware corporation,
)
)
Respondent.
)
RESPONDENT SAINT-GOBAIN CONTAINERS, INC.’S
RESPONSE
TO
COMPLAINANT’S MOTION TO
COMPEL
NOW COMES Respondent,
SAINT-GOBATh4 CONTAINERS,
INC. (hereinafter
“Saint-Gobain” or “Respondent”), by
and through its attorneys, HODGE DWYER
ZEMAN, pursuant to 35
Ill.
Admin.
Code
§
101.500(d),
and hereby responds to the
Complainant’s Motion to
Compel.
On or about September
15,
2003,
Complainant served
Complainant’s First Set of
Supplemental Interrogatories
and Supplemental Request for Production.
On or about
October
13, 2003,
Respondent served its response to Complainant’s Supplemental
Request for Production and
Complainant’s First Set of Supplemental Interrogatories.
Respondent filed a Motion for Protective Order for certain documents responsive to
Complainant’s supplemental discovery requests,
namely records
concerning operation of
Respondent’s glass furnace and two pages ofunaudited financial information.
Thereafter, on or about November 12,
2003,
Complainant served on Respondent a
Motion to Compel.
The Motion to Compel seeks production ofrecords concerning
operation of Respondent’s glass furnace as well as certain financial information.
Specifically, Complainant
seeks for production the following financial documents:
income
tax returns,
annual reports,
audited and/or unaudited financial reports, and
10(k) reports.
Respondent stated in its
response to supplemental discovery requests that it did not have
within its possession or control any ofthe requested financial documents, except for the
two pages ofunaudited financial information at issue with the Motion for Protective
Order.
Subsequent to receiving Complainant’s Motion to Compel, Respondent agreed to
furnish Complainant with the furnace documents requested pursuant to
Complainant’s
Motion to Compel.
~
Affidavit ofN. LaDonna Driver.
Consequently,
the oniy issue
left for decision on this Motion to Compel deals with the financial information.
As indicated in Respondent’s Response to
Complainant’s First
Set of
Supplemental Requests For Production, Respondent does not have in its possession or
control the requested income tax returns,
annual reports,
audited financial reports, or
10(k) reports for a multiplicity of reasons, which Respondent has set forth in its Response
to Complainant’s First Set of Supplemental Requests For Production and Complainant’s
First Set ofSupplemental
Interrogatories.
Respondent indicated in its Response to
Complainant’s First
Set of Supplemental Interrogatories’ that federal income taxes for
Hereinafter cited to as “Resp. to Supp.
Jut. No.
2
income generated by Respondent are filed by the holding company, Saint-Gobain
Corporation, ofwhich Respondent
is a wholly-owned subsidiary.
Resp.
to
Supp.
Tnt. No.
2.
Additionally, Respondent indicated that Illinois state income taxes for income
generated by Respondent are filed by its affiliate, CertainTeed Corporation.
Resp. to
Supp.
Tnt. No. 2.
Furthermore, Respondent
indicated in its Response to Complainant’s
Supplemental Requests For Production2 that it did not have
any annual reports nor audited
financial reports.
Resp. to
Supp. RFP No.
3
and
4.
Finally,
Respondent indicated in its
Response to
Complainant’s First Set of Supplemental Interrogatories that neither it nor
any entity related to Respondent files
SEC reports which reflect, relate,
ortake into
account information relating to Respondent.
Resp.
to Supp.
Tnt. No.
5.
Complainant
states at paragraph seven of its Motion to Compel that it does not
find credible Respondent’s
claim that it does not have copies of income tax returns,
annual
reports,
financial reports or 10(k) reports that reflect Respondent’s operations.
However,
as evidenced in the attached sworn affidavit of Wray C.
Hiser, Associate General Counsel
for Respondent, Respondent is a wholly-owned subsidiary of Saint-Gobain Corp.,
a
holding company for the American businesses ofthe French parent, Compagnie de Saint-
Gobain.
Affidavit ofWray C.
Hiser at
¶
2.
As
a wholly-owned
subsidiary ofa privately-
held company, Respondent is not a publicly traded company and therefore,
does not file
2
Hereinafter cited to as “Resp.
to Supp.
REP No.
.“
3
any 10(k) reports with the
SEC.
Affidavit of Wray C. Riser at ¶3.
Furthermore, for the
same reasons, Respondent does not publish any annual reports.
Affidavit ofWray C.
Hiser at ¶4.
Similarly, the holding company is not publicly traded and therefore,
files no
reports
with the SEC.
Affidavit ofWray C. Hiser at ¶3.
The financial information Complainant
requests from Respondent are fully
consolidated into the financial information ofthe holding company.
Affidavit ofWray C.
Riser at ¶6.
Respondent does not have any audited or unaudited financial information or
annual reports of the holding company or the French parent company.
Affidavit ofWray
C.
Hiser at
¶7.
Therefore,
Respondent files no
tax returns and no
copy ofsaid tax returns
is provided to Respondent.
Affidavit of Wray C. Riser
at ¶6.
It is a well-established principle among the courts ofthis state and
others, that a
party cannot be compelled to produce that which is not within its possession or control.
Robert J. Wiebusch v.
Alan Taylor, 97
Ill.
App. 3d 210,
422 N.E.2d
875
(Ill.
App.
5th
Dist.
1981).
In this case, Respondent has shown through its response to Complainant’s
Request for Production and Responses to
Supplemental Interrogatories and through the
Affidavit ofWray C.
Riser, that because Respondent is a subsidiary ofa privately-held
holding company, Respondent does not file any state or federal tax returns, does not
produce any annual reports nor audited ‘financial reports,
and does not, nor does any entity
related to it,
file any reports with the SEC.
Therefore, Respondent cannot be compelled
to
produce that which is not in its possession or control.
In a further attempt to locate documents that are responsive to Complainant’s
requests, Respondent found a 2002 brochure published by its French parent company.
4
This brochure appears to
contain some financial information (in euros) for the French
parent company and industry sectors within the French parent company.
To the extent
that Respondent’s financial information may be a part ofthose figures, Respondent will
produce the brochure to
Complainant.
~
Affidavit ofN. LaDonna Driver.
As to the confidential unaudited
financial information, which Respondent has
within its
control, Respondent has allowed Complainant to view said documents at
Respondent counsel’s office, for use in this matter.
See Affidavit of N. LaDonna Driver.3
Respondent has objected to
the disclosure ofsaid documents to
persons or entities outside
such litigation because dissemination would harm,
and be unreasonably disadvantageous
to, Respondent’s business, as explained in Respondent’s Motion for Protective Order and
Respondent’s Reply to
Complainant’s Response in Opposition to Respondent’s Motion
for Protective Order, which Respondent incorporates herein.
Section 101.614 ofthe Board’s procedural rules provides, in
pertinent part, as
follows:
~Respondent notes that in its Motion to Compel, counsel for Complainant has asserted
facts that
are not
of record in the proceeding and has failed to file an affidavit in support thereof.
Counsel for Complainant
states, in pertinent part,
as follows:
The undersigned attorneyhas briefly reviewed the material Respondent has indicated it
will provide upon
entry of a protective order and,
although not allowed to copy or make
notes regarding the substanceof the contents, did observe
two
sheets of papers
purporting to be the financial documents and four boxes of documents which appear to
be glass furnace operating records.
Motion to Compel at 3.
As stated
above, these facts which Complainant assert, pursuant to Section
10 1.504 of the Board’s procedural rules, “must be supported by oath,
affidavit, or certification in
accordance with Section
1-109 of the Code of Civil Procedure
735
ILCS
5/1-109.”
35
Ill. Admin.
Code
§
101.504.
5
The hearing officer will deny, limit or condition the production of
information when necessary to prevent undue delay, undue expense, or
harassment, or to protect materials from disclosure consistent with Section
7 and
7.1 ofthe Act and 35
Ill.
Adm.
Code 130.
35
Ill.
Admin.
Code
§
101.614,
“There is ample
precedent for
the entry of a protective
order
preventing
dissemination
of sensitive
discoverable materials to third parties or for
purposes unrelated to the lawsuit.” May Centers, Inc.
v.
S.G.
Adams Printing &
Stationary Co.,
153
Ill.
App.
3d
1018,
1021,
506 N.E.2d 691,
694 (5th Dist.
1987).
(Citations omitted.)
Additionally, there is precedent for the entry of a protective order
preventing dissemination of financial materials outside ofthe present litigation.
Donald A.
Statland
v.
Charles E. Freeman,
112
Ill.
2d 494,
493 N.E.2d 1075
(Ill.
1986).
WHEREFORE, for the above and foregoing reasons, Respondent SAINT-
GOBAIN CONTAINERS, INC.,
respectfully requests the Hearing Officer to issue an
order denying Complainant’s Motion to
Compel production ofpurported financial
documents.
Respectfully submitted:
SAINT.-GOBAIN CONTAINERS. INC.,
Respondent,
Dated:
November
24, 2003
By:
~
i’’t~t44~(
~
One ofits Attorneys
N. LaDonna Driver
HOD GE
DWYER ZEMAN
3150
Roland Avenue
Post Office Box 5776
Springfield,
Illinois
62705-5776
(217) 523-4900
SGCO:001/Fil/Response to Motion to Compel
6
iRECE~VED
cT.F.pt~3g‘i~tC~
OEC
1
2003
BEFORE
THE
ILLINOIS
POLLUTI(~~~,
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB No. 03-22
)
(Enforcement)
SAINT-GOBAIN CONTAINERS, INC.,
)
a Delaware corporation,
)
)
Respondent.
)
AFFIDAVIT OF N. LADONNA DRIVER
N. LaDonna Driver,
being first duly
sworn, deposes and states as follows:
1.
I am a licensed Illinois attorney, and the counsel of record for Respondent,
Saint-Gobain Containers, Inc.
2.
I met with Delbert D. Haschemeyer,
counsel for
Complainant when he
came to
review Respondent’s confidential
unaudited financial information at
my office,
for use in this matter.
3.
I have orally notified counsel for Complainant that Respondent will be
producing the furnace operating documents
as part of supplemental discovery responses
that will include a
2002 report for the French parent company,
Compagnie de Saint-
Gobain.
4.
The statements
made in this Affidavit are true and accurate to the best of
my knowledge and belief.
FURTHER AFFIANT SAYETH NOT.
N. LaDonna Driver
Subscribed and
sworn to before
me thisc~LL~4ay
ofN
vember 2003.
otaryPublic
OFFICIAL
SEAL
~
PATTI L.TUCKER
~
~ NOTARY PUBLIC, STATE OF
ILUNOI~~
~MISS(0N
EXPiRES
SGCO:OOlIFil/Afuidavit
—
RMTC
-
NLD
RECE~V~D
•
CL~RIk~
O1~PtCE
•
DEC
1
Z003
BEFORE THE ILLINOIS POLLUT~?~~~D
PEOPLE OF THE STATE OF
ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB No.
03-22
(Enforcement)
SAINT-GOBAIN CONTAINERS, INC.,
)
a Delaware corporation,
)
)
Respondent.
)
AFFIDAVIT OF WRAY C. HISER
Wray C. Hiser, being first duly
sworn, deposes and states as follows:
1.
I am Associate General Counsel for Saint-Gobain Containers, Inc.
2.
•
Saint-Gobain
Containers, Inc., is a wholly-owned subsidiary of Saint-
Gobain Corporation, a holding company for the American businesses of the French
parent company,
Compagnie de
Saint-Gobain.
3.
Saint-Gobain Containers, Inc., is not a publicly traded company
and
makes no
10(k) or
10(q) filings with the Securities
and
Exchange Commission.
The
holding company,
Saint-Gobain Corporation, is not a publicly traded company and files
no reports with the Securities
and
Exchange Commission.
4.
Saint-Gobain Containers, Inc., does not publish an
Annual Report.
5.
Saint-Gobain Containers, Inc.,
does have its
own unaudited
financial
information, but does not have an
audited financial statement.
6.
The financial results of Saint-Gobain Containers, Inc., are fully
consolidated into the financial information for the holding company,
Saint-Gobain
Corporation.
The holding company, Saint-Gobain Corporation, files U.S. income tax
returns
for the entireholding
company.
Consequently, Saint-Gobain Containers, Inc.,
files no U.S. income tax return.
An affiliate, CertainTeed Corporation, files Illinois state
income tax returns that includes the financial information for Saint-Gobain Containers,
Inc.
7.
Saint-Gobain Containers, Inc. does not have copies ofthe tax returns of
CertainTeed Corporation or Saint-Gobain Corporation, nor does it have any audited or
unaudited financial statements or annual reports ofthe holding company, Saint-Gobain
Corporation or ofCertainTeed Corporation, or of the French parent company.
8.
I have reviewed Saint-Gobain’s Response to Complainant’s Motion to
Compel.
9.
The matters set forth in Saint-Gobain’s Response to Complainant’s
Motion to Compel are true and correct to
the best ofmy knowledge and belief
10.
The statements made in this affidavit are true and correct to the best ofmy
knowledge
andbelief.
FURTHER
AFFIANT SAYETH NOT.
Subscribed and sworn to before me
this
~-/
day ofNovember 2003.
Notary Public
•
RECE~/ED
CLERK’S OFFICE
DEC
12003
BEFORE
THE
ILLINOIS POLLUTION
Pollution
Control
Board
PEOPLE OF THE STATE OF ILLiNOIS,
)
)
Complainant,
)
)
v.
)
PCBNo.03-22
)
(Enforcement)
SAINT-GOBAIN CONTAINERS, iNC.,
)
a Delaware corporation,
)
)
Respondent.
)
RESPONDENT.
SAINT-GOBAIN CONTAINERS,
INC.’S MOTION FOR LEAVE TO
FILE
A REPLY
TO
COMPLAINANT’S RESPONSE IN OPPOSITION TO
RESPONDENT’S MOTION FOR PROTECTIVE ORDER
NOW
COMES
Respondent,
SAINT-GOBAIN
CONTAINERS,
INC.
(hereinafter
•“Saint-Gobain” or “Respondent”), by and through its attorneys,
HODGE DWYER
ZEMAN,
and pursuant to
Section 101.500(e) ofthe Illinois Pollution Control Board’s
(“Board”) procedural rules,
35
Ill.
Admin.
Code
§
101.500(e),
moves the Board for leave
to file
its Reply to Complainant’s Response in Opposition to Respondent’s Motion for
Protective Order (“Response”).
1.
On or about September
15,
2003,
Complainant served Complainant’s First
Set of Supplemental Interrogatories and Supplemental Request for Production.
2.
On or about October
13,
2003, Respondent served its response to
Complainant’s Supplemental
Request for Production
and Complainant’s First Set of
Supplemental Interrogatories.
3.
On or about October 29, 2003,
Respondent filed a Motion for Protective
Order for certain documents responsive to Complainant’s supplemental discovery
requests,
namely records
concerning operation ofRespondent’s glass
furnace and two
pages ofunaudited financial information.
4.
On or
about November
12,
2003,
Complainant served on Respondent a
Motion to Compel and a Response in
Opposition to Respondent’s Motion for Protective
Order.
5.
Under the Board’s procedural rules,
a moving party is not entitled to file a
reply, except as permitted by the Board
or the Hearing Officer to prevent material
prejudice.
35
Ill. Admin: Code
§
101.500(e).
6.
Since the filing of Complainant’s Motion to
Compel, Respondent has
offered to produce the furnace operating documents
in supplemental discovery responses.
~
Affidavit ofN. ,LaDonna Driver in support ofRespondent’s Response to
Complainant’s Motion to Compel.
Therefore, many points in
Complainant’s Response are
no longer relevant and
are inapplicable to the remaining issue concerning the two pages of
unaudited financial information.
7.
Saint-Gobain believes that Complainant’s Response does not completely or
accurately represent Section 7 ofthe Illinois Environmental Protection
Act (“Act”) (415
ILCS 5/7)
and 35
Ill. Admin.
Code Part 130.
8.
Saint-Gobain believes that due to the above-mentioned inaccuracies in law,
Complainant has also
incorrectly applied the law to the circumstances here.
9.
Furthermore,
in its Response, counsel for Complainant has asserted facts
that are not ofrecord in the proceeding and has failed to file an
affidavit in support thereof
•
in accordance with 35
Ill. Admin.
Code
§
101.504.
2
10.
Allowing the Respondent to
file the Reply would avoid material prejudice
that would result if Complainant’s Response was allowed to
stand on inaccuracies in both
law and the application of law to the circumstances here.
WHEREFORE, for the above
and foregoing reasons, Respondent SAINT-
GOBAIN CONTAINERS, INC., respectfully requests that the Board grant it leave to file
its Reply to
Complainant’s Response in
Opposition to Respondent’s Motion for Protective
Order.
Respectfully submitted,
SAINT-GOBATN CONTAINERS.
INC.,
Respondent,
One ofits Attorneys
Dated:
November 24, 2003
N. LaDonna Driver
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield,
Illinois
62705-5776
(217) 523-4900
SGCO:00i/Fil/Motion for Leave to File
Reply
3
RI~ç
S
•
DEC
i.~
BEFORE
THE ILLiNOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF
ILLINOIS,
)
1~’0h1UtIonCOflfro/,~oqrd
Complainant,
)
)
v.
)
PCB No. 03-22
)
(Enforcement)
SAINT-GOBATN CONTAINERS, INC.,
)
a Delaware corporation,
)
)
Respondent.
•
)
RESPONDENT SAINT-GOBAIN
CONTAINERS, INC.’S
REPLY TO
COMPLAINANT’S RESPONSE IN OPPOSITION
TO RESPONDENT’S MOTION FOR PROTECTIVE ORDER
NOW COMES
Respondent,
SAINT-GOBAIN
CONTAINERS, INC.
(hereinafter
“Saint-Gobain” or”Respondent”),
by and through its attorneys,
HODGE DWYER
ZEMAN, pursuant to 35 Ill.
Adniin.
Code
§~
101.500(d) and
101.500(e),
and hereby
replies to
Complainant’s Response in Opposition to Respondent’s Motion forProtective
Order (“Response”).
On or about September
15, 2003,
Complainant served Complainant’s First Set of
Supplemental Interrogatories
and Supplemental Request for Production.
On or about
October
13, 2003, Respondent served its response to Complainant’s Supplemental
Request for Production and
Complainant’s First
Set of Supplemental Interrogatories.
Respondent filed a Motion for Protective Order (“Motion”) for certain documents
responsive to
Complainant’s supplemental discovery requests,
namely records
concerning
operation of Respondent’s glass furnace and two pages ofunaudited financial information.
On November
12, 2003,
counsel for Respondent received Complainant’s Response
to Respondent’s MotiOn.
Complainant appears to contend that Respondent’s Motion did
not meet the requirements ofSections 7
and 7.1 ofthe Illinois Environmental Protection
Act (“Act”) (415 ILCS
5/7) or 35
Ill.
Admin.
Code Part
130.
Complainant also
apparently contends that Respondent’s Motion should have, but did not,
address issues
beyond
those statutory and regulatory provisions.
This Reply
demonstrates that
Complainant’s position is inaccurate both in law and in application ofthe law to the
circumstances here.
First, in the spirit ofcooperation, Respondent has offered to
forego its request for
protective order for the furnace documents.
~
Affidavit ofN. LaDonna Driver in
support
ofRespondent’s Response to Complainant’s Motion to Compel.
While that has
not,
thus far,
allowed the parties to come to an agreement on a protective order for the
two pages ofunaudited financial information, Respondent will nevertheless treat the two
pages of unaudited financial information as the only remaining issue for purposes ofthe
current dispute over the Motion.
Thus, Respondent will not reply to portions of
Complainant’s Response that deal with trade secret issues, which could only apply
to the furnace documents.’
This eliminates discussion of Sections 7(a)(i)
and (iv),
7(c)
and 7.1
ofthe Act,
as well as
35
Ill. Admin.
Code
§~
130.110,
130.200,
130.201
and
130.203.
See pages 4-11
of Complainant’s Response.
The Act defines “trade
secret”
as:
“the whole or
any
portion orphrase ofany
scientific or technical
information, design, process (including a manufacturing process), procedure, formula or improvement, or
business plan which is secret in that it has notbeen published or disseminated or otherwise become a
matter of general public knowledge, and which has
competitive value.
A trade secret is presumed to be
secret when the owner thereof takes reasonable measures to prevent it from becoming available
to persons
other than those
selecfed by the ownerto have access thereto for limited purposes.”
415
JLCS 5/3.490.
While the furnace operating documents could come within this definition, the two
pages of unaudited
financial information would not come within this definition.
2
A.
Respondent Meets the Requirements for Protection of Information Under
Section
7
of the Act and
35
111. Admin.
Code Part
130.
By focusing only on trade secret issues, Complainant has not included in its
Response some very important statutory and regulatory provisions.
Section 7(a) ofthe
Act provides, in pertinent part, as follows:
Sec.
7. Public inspection;
fees
(a)
All files, records, and data ofthe Agency, the Board,
and
the Department
shall be open to reasonable
public inspection and
may be copied upon payment ofreasonable fees
to be established
where appropriate by the Agency, the Board, or the Department,
except forthe following:
(i)
information which constitutes a trade secret;
(ii)
information privileged against introduction in
judicial proceedings;
(iii)
internal communications of the several agencies;
(iv)
information concerning secret manufacturing
processes or confidential data submitted by any
person under this Act.
415
ILCS 5/7(a).
(Emphasis added.)
Thus,
trade secrets are not the
only information that can be
protected from
disclosure.
There is
another category that can be
so protected, which has been addressed
in the Illinois Pollution Control Board’s (“Board”) Part 130 regulations as non-disclosable
information.
Section
13 0.100(b) makes clear that the provisions in
Subparts B
and C of
Part
130, which are those
provisions with which Complainant
argues that Respondent did
not comply,
only apply to trade secrets.
Complainant makes no
mention of Subpart D of
Part
130, which,
according to
Section 130.l00(b)(3),
applies to non-disclosable
information other than trade secrets.
3
In its Motion,
and in the Affidavit attached thereto, Respondent met
all ofthe
requirements set forth in Subpart D ofPart
130.
Specifically,
Section
130.404(e)
provides the requirements for applications for non-disclosure.
Section 130.404(e)(1)
requires that the applicant identify the particular non-disclosure category that
is applicable.
Paragraphs three and six
ofthe Motion refer to the documents at issue as “confidential.”
In addition, the fifth paragraph2 of the Affidavit accompanying the Motion states that the
documents to be produced under the protective order “contain confidential data.”
Thus,
Respondent made it abundantly clear that the category of non-disclosable information was
that of“confidential data.”
Section 130.404(e)(2) requires a concise statement ofthe reasons for requesting
non-disclosure.
Paragraph three ofRespondent’s Motion,
as well as the fifth paragraph of
the Affidavit accompanying the Motion,
state that disclosure ofthe confidential financial
reports to certain persons or entities
outside ofthe instant litigation would harm Saint-
Gobain’s business.
Thus,
Respondent has provided a concise statement ofits
reasoning
for requesting non-disclosure.
IfComplainant
feels that this
statement is too
concise,
Respondent has attached to this Reply an
affidavit providing some further explanation of
its concerns regarding disclosure ofthe
confidential financial reports.
Section
130.404(e)(3) requires that the application for non-disclosure contain
information on the nature ofthe material that
is sought to be protected from disclosure as
well as identification ofthe number and title of all persons familiar with the data and
information, and a statement ofhow long the material has been protected
from disclosure.
2
Respondent notes that the paragraphs in the
Affidavit accompanying the Motion were inadvertently
misnumbered and apologizes for any confusion this may cause.
•
4
Paragraph three ofRespondent’s Motion and the fifth paragraph ofthe Affidavit
accompanying the Motion
identify the material that
is sought to be protected as
confidential financial reports, that if disclosed to persons or entities outside ofthe instant
litigation, would
harm the Respondent’s business.
The sixth paragraph ofthe Affidavit
accompanying the Motion
states that the persons at Respondent’s company who have
access to the confidential financial reports are management, support
staff,
attorneys and
agents who require access to the information to perform their duties.
The seventh
paragraph ofthe Affidavit accompanying the Motion states that the confidential financial
reports have been precluded from disclosure to other persons from the time oftheir
creation to the present.
Thus, Respondent has clearly and satisfactorily addressed
each
requirement in Section
130. 404(e)(3).
Finally,
Section
130.404(e)(4) requires that facts in the application be verified by
affidavit.
The Affidavit accompanying the Motion meets this requirement.
Accordingly, Respondent’s Motion,
and its
accompanying Affidavit, followed the
requirements ofPart
130,
Subpart D.
Thus, Respondent met the requirements for
protecting non-disclosable
information under the requirements ofthe Act and the Board’s
regulations.
Complainant
also argues that it is subject to the Illinois Freedom of Information
Act (“FOIA”) and thus would be under an obligation to disclose Respondent’s financial
information despite an agreed protective order, under Section 7(1)(a) ofFOIA and the
City ofCarbondale
case cited in
Complainant’s Response.
Response at
12.
While
Complainant recognizes that Section 7(g) of FOIA provides protection for commercial or
5
I
financial information
obtained from
a. person or business where the information is
confidential, or where disclosure ofthe information may cause competitive harm,
Complainant
states that Respondent has not met its burden of establishing that the
confidential financial information at issue falls under the above-mentioned FOIA
exemption, because Respondent
did not make the requisite showing for non-disclosure
under the Act and the Board’s regulations.
However, as set
forth herein, Respondent’s
Motion and
Affidavit accompanying the Motion clearly follow the requirements for
protection ofnon-disclosable information.
Therefore, Respondent has met its burden to
show that the confidential financial information at issue meets the FOIA exemption at
Section 7(g).
B.
Respondent Has
Demonstrated Its Need for
a Protective Order
Complainant also
seems to argue in Sections I and 11(C) ofits Response that
in
order to secure a protective order, Respondent needs to meet certain requirements beyond
the statutory and regulatory provisions
set forth above,
and that Respondent does not
meet
those requirements.
Complainant infers that these statutory and regulatory
provisions contain
all the
protection
that Respondent needs for the material at issue
and
that Respondent has not shown good
cause
why
a protective
order should be issued.
Respondent draws
Complainant’s
attention to
35
Ill.
Admin. Code
§~
130.100(b)(3) and
130.400.
There, the Board’s regulations for protection of non-
disciosable information make very clear that those regulations apply only to filings of
information with the Board.
Thus,
submission ofthe confidential financial reports at issue
in Respondent’s Motion,
to the Complainant
in discovery responses,
even with an
6
application for non-disclosure under 35 Ill. Admin.
Code Part 130,
Subpart D, would not
guarantee that the Complainant would be bound by
35
Ill.
Admin.
Code Part
13 0’s non-
disclosure provisions.
The Board would be bound not to disclose the information if it is
used in a hearing in this matter, but according to
Sections 130.100 and
130.400, the
Complainant could arguably disclose the information provided to it in discovery.
Because Respondent feels so
strongly that this information must be
protected from
disclosure to parties outside of this litigation,
Respondent is concerned about the
Complainant’s ability to release the
information it acquires through
discovery and the gap
in non-disclosure protection afforded by
35
Ill.
Admin.
Code Part 130,
Subpart D,
discussed above.
That is why Respondent filed the Motion in the
first place.
The very
fact
that Complainant has taken the position that the material at issue could not be
protected from disclosure is why there is good cause for the Motion to be granted.
Without the Board’s protective order,
Respondent would be forced to produce
confidential financial information that Complainant has stated it will not protect from
disclosure.
The Board
provided for the issuance of protective orders amid the discovery
process at 35
Ill.
Admin.
Code Part
101.
If the terms of Section
7 ofthe
Act and Part
130
of the Board’s regulations were sufficient to protect material produced in
discovery from
disclosure to parties outside of the litigation, there would seem to be no need for the
Board to issue protective orders at
all.
That premise would render the Board’s provision
for protective orders a nullity.
Such an approach is nonsensical and dangerous.
7
As Complainant points out, the
language ofthe protective order provision at 35
Ill.
Admin.
Code
§
101.616 follows closely that ofIllinois
Supreme Court Rule 201 (c)(1),
which provides:
The court may at any time on its
own initiative, or on motion ofany party
or witness,
make a protective order as justice requires, denying,
limiting,
conditioning, or ~regulating
discovery to prevent unreasonable annoyance,
expense,
embarrassment,
disadvantage or oppression.
Ill.
S.
Ct.
Rule 201(c)(1).
Case law interpreting Supreme Court Rule 201(c)(l) states that
the Court has the discretion,
where appropriate, to issue protective orders to
shield
particularly sensitive materials from unnecessary disclosure.
Doris Burger
v.
Lutheran
General Hospital,
198 Ill. 2d 21,
759 N.E.2d 533
(Ill. 2001).
InMay Centers v. 5G.
Adams Printing, the Illinois Appellate Court,
Fifth District,
referenced authority recognizing the “inherently sensitive nature offinancial data and the
need to protect such data from exploitation in the process ofdiscovery except as
necessary to prepare the parties to try the lawsuit.”
May Centers v.
S.G.
Adams Printing
and
Stationary Co.,
153
Ill.
App.
3d
1018,
1022,
506 N.E.2d 691,
695-696
(Ill.
App.
5th
Dist.
1987)
The court noted there that the party contesting the protective order for the
financial information would not have been precluded access to
discoverable information by
the protective order.
~
Similarly, Respondent
has stated in its
Motion and in its
proposed Protective Order that Complainant may have access to the confidential financial
information at issue.
The protective order would
only preclude parties outside ofthe
litigation from having access to the information.
As noted by the Illinois
Supreme
Court in Statland
v.
Freeman, Complainant
would
only have
access
to Respondent’s
confidential financial information at
issue via the
8
discovery process in this litigation.
Donald A.
Statland v. Charles E.
Freeman, 112
Ill.
2d
494,
500,
493
N.E.2d 1075,
1078 (Ill.
1986).
Thus, the Board has broad authority,
“as
justice requires,” to protect this information from disclosure to
parties outside ofthis
litigation.
~.
at 499.
That is
all that Respondent is seeking for the two pagesof
confidential financial information at issue in Respondent’s Motion.
WF1EREFORE, for the above and foregoing reasons, Respondent SAINT-
GOBA1N CONTAINERS, INC., respectfully requests that the Hearing Officer enter
Respondent’s Protective Order attached hereto as Exhibit A.
Respectfully submitted,
SAINT-GOBAIN CONTAINERS. INC.,
Respondent,
By:~OO~44A~
62~
~‘
One of its Attorneys
Dated:
November 24, 2003
N. LaDonna Driver
HOD
GE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
SGCO:OOlIFil/Reply to Complainant’s Response to Respondent’s Motion for Protective Order
9
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB
No. 03-22
)
(Enforcement)
SAINT-GOBAIN CONTAINERS, INC.,
)
a Delaware corporation,
)
)
Respondent.
)
PROTECTIVE ORDER
This cause comes before the Hearing Officer on Respondent
SAIINT-GOBAIN
CONTAINERS, INC.’S
(“Saint-Gobain”) Motion for Protective Order.
Having
considered the forgoing, and being
duly advised, the Hearing Officer hereby finds that
said Motion should be GRANTED.
It is,
therefore, ORDERED that documents produced by Saint-Gobain in response
to Complainant’s Supplemental
Requests for Production in this matter are subject to the
following Protective Order:
1.
Any and
all
confidential financial reports that Saint-Gobain produces in
response to Complainant’s Supplemental Request for Production in this
matter,
and that
Saint-Gobain marks “CONFIDENTIAL:
NON-DISCLOSABLE
iNFORMATION”
shall
be made available to the Complainant for ieview, but shall not be
copied,
in whole or in
part,
by the Complainant without further Order from the Hearing Officer.
•
2.
Complainant
and any other party in this
case against Saint-Gobain filed
before the Illinois Pollution Control.Board (“Board”), that receives any Saint-Gobain
Non-Disclosable Information pursuant to Saint-Gobain’ s response to Complainant’s
Supplemental Requests for Production
in this matter, or otherwise:
(a)
shall use such documents only for litigation or settlement of this
matter;
(b)
shall store such documents in a manner that will prevent the
disclosure ofsuch documents to any person or entity that
is not a
party to this matter, orto
any attorney, employee, orother agent of
such person or entity;
(c)
shall not disclose such documents to any
person or entity that
is not
a party to this matter, or to any attorney,
employee, or other agent
of such person or entity, unless:
(i)
a Court of competent jurisdiction has ordered such
disclosure, or Saint-Gobain has first expressly agreed to
such disclosure inwriting;
and,
(ii)
the person or entity to whom the documents are to be.
disclosed has first expressly agreed in writing to be
bound
by the terms ofthis Protective Order;
(d)
shall not submit such documents to this Board in support of a
Motion or otherwise except under seal;
(e)
shall not present such documents as evidence at the Hearing ofthis
matter or ofany
future case against Saint-Gobain filed before this
Board without:
(i)
prior notice to Saint-Gobain’s counsel; and
(ii)
consultation with Saint-Gobain’s counsel and the Hearing
Officer regarding how the documents at issue can be
used
as evidence at Hearing while preventing the disclosure of
such documents to persons or entities that are not parties to
this litigation; and,
•
(1)
•
shall
immediately notify counsel for Saint-Gobain, in writing, of
any subpoena
from or request by any person or entity that
is not a
party to this matter seeking, or Order by a Court ordering or
regarding, the disclosure of such documents.
3.
This order
does not limit Complainant’s right to disclose Saint-Gobain
Non-Disciosable Information to
its counsel, or to legal associates, paralegals, clerical or
other support
staff,
or other agents
ofsuch counsel,
except that:
•
2
(a)
such disclosure
shall be made only as necessary for the litigation or
settlement of such matter; and,
(b)
said persons are also bound by the terms ofthis Protective Order,
and shall be informed ofthe terms hereof
ENTERED:
.
_____________________
Hearing Officer
3
CLERK’S OFFV(~
DEC
12003
BEFORE THE ILLINOIS POLLUTION CONTROL
~6~~RF
ILLINOIS
i’o
utlorrcontrol Board
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
V.
.
)
PCBNo,03-22
)
(Enforcement)
SAINT-GOBA1N CONTAiNERS, INC.,
)
a Delaware corporation,
)
)
Respondent
)
AFFIDAVIT
OF W1~AYC. HISER
Wray C. Hiser, being first duly sworn, deposes and states as foliows~.
1.
I am Associate General Counsel for Saint-Gobain Containers, Inc.
2.
Saint-Gobain Containers,
Inc., is awholly-owned.subsidia.ry of Saint-
Gobain Corporation, a holding company for the American businesses of the French
parent company, Cornpagnie de Saint-Gobain.
As such, Saint-Gobain Containers,
Inc.
does not
prepare any type ofreports or .fiLLng regarding its financiai information.
•
3.
The financial information about Saint-Gobain Containers, Inc. contained
on
the two
page unaudited
financial
statement
at issue for the Motion for Protective Order
is considered extremely confidential by
the Company.
It is only provided to employees
ofthe Company
that
must have access to the
information
to
perform their
duties.
Respondent’s unaudited
financial
information
is
not
madepublic
in
any way.
4.
Any
disclosure of
this confidential financial information
could be
detrimental to
the Company in a
number
of ways, such
as providing beneficial
information to
our
competitors about the
financial strength and
profitability of
this
Company,
to labor unions representing
ourhourly
workforce in
union
contract
negotiations,
or to
our customers and suppliers in
negotiating supply contracts
with our
Company.
5.
Disclosure
ofthis sensitive unaudited financial information
to
parties
outside
of
this litigation would be detrimental to
Respondent’s business interests.
•
6.
1 have reviewed Saint-Gobain Containers, Inc.’s Reply To
Complainant’s
Response In Opposition to Respondent’s Motion for Protective Order.
7.
The matters
set
forth in Sairn-Gobain Containers, inc.’s Reply To
Complainant’s Response In Opposition to Respondent’s Motion forProtective Order are
true and correct to the best ofmy knowledge and belief.
8.
The statements made in this
affidavit are true and correct to the best ofmy
knowledge
and
belief.
FURTHER AFFIANT SAYETH NOT.
-
~
Wra
.
Hiser
Subscribe14. and sworn to
before me
this c2.~I~
day
ofNovember2003,
Notary Public
