ILLINOIS POLLUTION CONTROL BOARD
    April 22,
    1993
    LAKE
    COUNTY FOREST
    )
    PRESERVE DISTRICT,
    Complainant,
    V.
    )
    PCB 92—80
    (Enforcement)
    NEIL OSTRO,
    JANET OSTRO,
    )
    and BIG FOOT ENTERPRISES,
    )
    )
    Respondents.
    ORDER OF THE BOARD
    (by J. Theodore Meyer):
    This matter is before the Board on a motion to quash
    subpoena,
    filed by American States Insurance Company.
    On January
    20,
    1993, the hearing officer conducted a hearing on the motion
    to quash.
    On January 21,
    1993, the hearing officer referred the
    motion to quash to the Board for decision.
    The Board issued an
    order on February 25,
    1993,
    asking complainant Lake County Forest
    Preserve District (Forest Preserve) whether it still seeks the
    information requested by the challenged subpoena.
    That February
    25 order noted that Forest Preserve had filed its brief on
    February 16,
    1993, and that the brief made no reference to the
    outstanding motion to quash.
    Thus, the Board was unclear whether
    Forest Preserve still seeks the information.
    On March
    2,
    1993,
    Forest Preserve filed a response to the motion to quash and a
    cross motion for rule to show cause.
    On March
    8,
    1993, American
    States filed a response to the Board’s February 25,
    1993 order,
    and a memorandum in support of its motion to quash.
    Initially,
    the Board notes that Forest Preserve’s March
    2
    filing does not refer to our February 25 order.
    We construe the
    filing to indicate that Forest Preserve still seeks the
    information requested by the subpoena.
    However, we will not
    consider either Forest Preserve’s response to the motion to
    quash, or American States’ memorandum in support of the motion to
    quash.
    Both filings were submitted long after the motion was
    filed on December 9,
    1992.
    Pursuant to 35 Ill.Adm.Code 101.241
    and 103.140, responses to motions are to be filed within 7 days
    after service of the motion.
    Forest Preserve’s response did not
    meet that deadline.
    Additionally, American States should have
    filed any memorandum in support of its motion with the motion
    itself, or at least within a reasonable time thereafter.
    Thus,
    the Board will not consider either filing.
    Left before us are
    the motion to quash,
    Forest Preserve’s cross motion for rule to
    show cause,
    and American States’ response to the February 25
    Board order.
    ¶3
    1-0205
    2
    The motion seeks to quash a subpoena served by Forest
    Preserve on an American States claims adjustor.
    That subpoena
    called for the claims adjustor to appear for deposition,
    and to
    bring all “correspondence, notes, memoranda,
    claims,
    tenders,
    insurance policies, certificates of insurance,
    and all other
    documents” related in any way to the respondents in this case.
    American States contends that the subpoena seeks irrelevant and
    privileged information,
    and has raised claims of attorney—client
    privilege and work product privilege.
    At the January 20 hearing on this motion, American States
    produced the disputed file in two ways.
    The first group of
    documents
    (“group one” documents), which was provided only to the
    hearing officer for an in camera inspection,
    consists of
    documents which American States contends were compiled in defense
    of Mr. Ostro, and are thus privileged.
    (Tr.
    at 489—492.)
    Second, American States furnished a two—page “privilege log”
    listing documents for which American States claims attorney—
    client privilege and/or work product privilege.
    The documents
    themselves were not furnished to the hearing officer.
    (Tr. at
    490; H.O.
    Exh.
    3.)
    At the conclusion of the hearing, the hearing
    officer returned the “group one” documents to American States,
    because American States took the position that even if the
    hearing officer determined that some of those “group one”
    documents should be produced, American States would not produce
    them.
    (Tr.
    at 497-498,
    503.)
    Thus, the hearing officer referred
    the motion to the Board.
    Initially, the Board notes its frustration with the posture
    of this case.
    We are faced with deciding a complex motion to
    quash,
    involving several different claims of privilege,
    in a
    situation where all briefs have been filed.
    There has been no
    indication how the requested information might be used in this
    Board proceeding,
    if the motion to quash is denied.
    But for the
    outstanding subpoena and motion to quash, this case would be
    ready for decision.
    Absent a specific showing that information
    produced is material to the case, the Board will be extremely
    reluctant to allow any reopening of this case.
    We question
    whether the parties to this dispute have made legitimate efforts
    to resolve this issue.
    The Board is also puzzled as to how we are expected to
    decide the motion to quash when none of the documents in dispute
    have been provided to the Board.
    A party asserting privilege has
    the burden of proving that privilege.
    (Cox v. Yellow Cab Co.
    (1975),
    61 Ill.2d 416,
    337 N.E.2d 15; Shere v. Marshall Field
    &
    Co.
    (1st Dist.
    1974),
    26 Ill.App.3d 728,
    327 N.E.2d 92.)
    The
    mere assertion that a matter is protected by the attorney—client
    privilege is insufficient to prove the existence of that
    privilege.
    (Johnson v. Frontier Ford.
    Inc.
    (2d Dist.
    1979),
    68
    Ill.App.3d 315,
    386 N.E.2d 112.)
    We will not order the
    production of documents which are privileged, but American States
    0
    ~ I
    -0206
    3
    must prove the privilege.
    The Board directs American States to produce all documents,
    including those for which it claims attorney-client or work
    product privilege,
    to the hearing officer for an in camera
    inspection.
    American States has not pointed to any authority
    which allows it to avoid such an inspection,
    and such inspections
    have been upheld by the courts.
    (Anderson v.
    St. Mary’s Hospital
    (5th Dist.
    1981),
    101 Ill.App.3d 596, 428 N.E.2d 528; Johnson v.
    Frontier Ford,
    Inc.
    (2d Dist.
    1979),
    68 Ill.App.3d 315,
    386
    N.E.2d 112.)
    American States shall also provide
    a detailed
    explanation of the privilege asserted for each document, and an
    indication of who claims the privilege.
    Additionally, Forest
    Preserve shall make all efforts to narrow the scope of its
    request.
    For example, certain public documents (such as
    complaints filed in circuit court)
    are easily available
    elsewhere, and may indeed already be in Forest Preserve’s
    possession.
    The in camera inspection and hearing on this issue only
    shall be conducted in a manner similar to the January 20,
    1993
    hearing.
    It shall be transcribed,
    but no public notice need be
    given.
    The inspection shall be completed no later than June
    1,
    1993.
    The Board directs the hearing officer to make rulings upon
    each document which remains in dispute.
    If the parties wish to
    appeal any of those hearing officer rulings, they may file
    written appeals to the Board, with arguments in support, within
    14 days of the conclusion of the in camera inspection.
    Such an
    appeal would require American States to transmit the challenged
    documents to the Board pursuant to our confidentiality rules.
    (35 Ill.Adxn.Code 101.161.)
    We reserve ruling on Forest
    Preserve’s motion for rule to show cause.
    IT IS SO ORDERED.
    I, Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify. that the above order was adopted on the
    ~
    day of
    _______________,
    1993,
    by a vote of
    ~
    ,
    Clerk
    ilution Control Board
    OiL~I-O2O7

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