RECEIVED
BEFORE THE
CLERIcS
OFFI~p
ILLINOIS POLLUTION CONTROL BOARD
MAY 232003
GiNA PATTERMANN,
))
Pollution
STATE OF
Control
ILLINOIS
Board
Complainant,
)
)
PCBNO. 99-187
(Citizens Enforcement)
BOUGFITON TRUCKING AND
MATERIALS, NC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice that on May 23, 2003, I filed with the Illinois Pollution Control Board
this Notice ofFiling, Motion
for
Discovery Sanctions and Affidavit ofAttorney, copies of which
are attached and hereby served upon you.
Dated: May 23, 2003
BOUGHTON TRUCKING AND MATERIALS, INC.
\C
By:___________________
One~f its Aitorneys
Mark R. Ter Molen, Esq.
Patricia F. Sharkey, Esq.
Kevin G. Deshamais, Esq.
MAYER, BROWN, ROWE & MAW
190 S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
RECEIVED
BEFORE THE
CLERiCS
OFFiCE
ILLINOIS POLLUTION CONTROL BOARD
MAY 2 32003
GINA PATTERMANN,
)
PollutionSTATE
OFControlIWNO!sBoard
Complainant,
)
PCB 99-187
)
(Noise, Air)
)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
MOTION FOR DISCOVERY SANCTIONS
NOW COMES Respondent, Boughton Trucking and Material, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe & Maw, pursuant to 35 III. Adm. Code Sections 101.800 and
Supreme Court Rule 219(c), and moves the Board to sanction Complainant as is discussed
below.
BACKGROUND
This case has been pending since 1999 and the discovery period agreed to by the parties
and prescribed by Hearing Officer Order ended on May 2, 2003. Throughout the discovery
process, the Complainant, an attorney representing herself, has engaged in a pattern of delay and
obfuscation that has resulted in unnecessary costs for the Respondent and prevented Respondent
from obtaining information necessary to its defense. This pattern of abuse belies either a strategy
designed to wear down the Respondent with costs and attorneys fees or a negligent disregard for
the rules governing fair discovery. Either way, Respondent’s have incurred unnecessary expense
and have been prejudiced in their ability to defend themselves in this lawsuit. The sanctions
requested are the barring of Complainant’s identified opinion witness, Mr. Greg Zak ofNoise
Solutions by Greg Zak, from testifying at trial, barring any other testimony, comment, pleadings
THis DOCUMENT IS SUBMITTED ON RECYCLED PAPER
or documents on the issue which was identified as the subject of his testimony, and the awarding
of costs and attorneys fees to the Respondent. These sanctions are warranted not only to protect
the Respondent in this case, but also as a deterrent to the abusive litigation practices evidenced
by Complainant in this case.
In support of this Motion, Respondent states the following:
1.
Complainant represented in her witness disclosures and in status conferences with
the Hearing Officer that she had retained Mr. Zak as an expert witness to testify at trial. She
stated that Mr. Zak’s testimony would pertain to “Respondent’s noncompliance with Illinois
Environmental Protection Agency regulations and possible modifications to the Respondent’s
facility.” (See page
5
of Exhibit 1 hereto.) Based on this representation, Respondent issued
Mr. Zak a subpoena and notice of deposition for April 23, 2003 and retained a court reporter for
that deposition. (Exhibit 2 hereto.)
2.
By letter dated March 26, 2003, Mr. Zak, apparently erroneously, sent the
Respondent’s attorneys a contract stating his fee for his services at the scheduled deposition.
(Exhibit 3 hereto.) Respondents thereafter called Complainant and brought this erroneous billing
by Mr. Zak to the attention ofthe Hearing Officer and the Complainant in the telephonic status
conference held on March 27, 2003. In that call, Complainant indicated that she understood that
it was her responsibility to retain her expert witness.
3.
Having not heard anything from either Complainant or Mr. Zak confirming the
deposition or requesting another deposition date, Respondent’s attorney, following Respondent’s
deposition of Complainant herself on April 8,2003, asked Complainant to verify that Mr. Zak
would be attending his deposition. Complainant stated that she thought Mr. Zak would be there
although she herself might not.
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Ti-us
DOCUMENT IS SUBMITTED ON RECYCLED PAPER
4.
Notwithstanding all of the above assurances, two weeks later on April 23, 2003,
neither Complainant nor Mr. Zak appeared for Mr. Zak’s scheduled deposition. After waiting an
hour and being unable to contact Complainant at any of her three phone numbers, Respondent’s
attorney called Mr. Zak’s office to determine if he would be attending the deposition. In that
phone call, Mr. Zak stated that he had received the deposition notice, but he would not be
attending the deposition because he had not been retained by Complainant. Respondent’s
attorney asked Mr. Zak to stay on the telephone line and together they made a conference call to
the Hearing Officer. Upon getting the Hearing Officer’s answering machine message, Mr. Zak
left a voice mail message for the Hearing Officer explaining that he had not been retained by
Complainant.
5.
Mr. Zak’s letter of March 26, 2003 and statement to the Hearing Officer on April
23, 2003 prove that he never anticipated offering his testimony without being paid. Thus, he is
not an “Independent Expert Witness,” as defined under Supreme Court Rule 2 13(0(2). Rather
he could only be a “Controlled Expert Witness,” as defined under Rule 213(0(3). His letter
makes it clear that the only way that he expected to testify, if at all, was as a “Controlled Expert
Witness,” retained by someone (although he may have been confused as to who). Rule 213(0
requires that “...a party must furnish the identities and addresses ofwitnesses who
will test
~fyat
trial
Complainant, in identifying Mr. Zak as her expert witness without retaining him, falsely
identified him as a witness she would call at trial. As such, she violated Supreme Court Rule
213(0 which is a serious and sanctionable violation of applicable discovery rules.’
We note that Section 101.616 states “For purposes ofdiscovery, the Board may look to the Code ofCivil
Procedure and the Supreme Court Rules for guidance where the Board’s procedural rules are silent.” The Board’s
rules are silent on the identification ofwitnesses, but Supreme Court Rule
213,
governing interrogatories and the
identity and testimony ofwitnesses, provides applicable guidance on the identification of lay and expert witnesses
and their testimony. The committee comments to these rules state that they were designed to “avoid surprise.”
(cont’d)
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Tuis DOCUMENT IS SUBMITI’ED ON RECYCLED PAPER
6.
By failing to retain Mr. Zak prior to his deposition, Complainant knowingly
misled both Respondent and the Hearing Officer. Section 101 .616(g) makes it clear that
sanctions are appropriate in this situation:
“If any person serves any request for discovery for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase in the
cost of litigation, or knowingly gives a false answer to discovery
questions, the Board, on its own motion or the motion of a party, may
impose sanctions pursuant to Subpart H of this Part.”
7.
But whether Complainant knowingly falsely identified Mr. Zak as her
expert witness or simply failed to take the deposition of her own expert witness seriously
enough to ensure that he was paid and would appear, Respondents were forced to incur
the unnecessary costs of a conference room, a court reporter, an attorney’s time and
travel, as well as the cost ofhaving two oftheir own on-site managers take time away
from work to attend this deposition. (See costs identified in Exhibit 4 hereto.
)
Moreover,
by failing to retain her expert witness for deposition before the end of the deposition
period, Complainant effectively prevented Respondent from learning the substance of his
testimony. Re-noticing Mr. Zak’s deposition would have been futile in this situation
because Complainant had not and, to Respondent’s knowledge, still has not retained him.
8.
Complainant’s failure to retain her identified “Controlled Expert Witness” prior to
the deposition deadline, even after he had been noticed for deposition, whether willful orjust
negligent, has prevented Respondent from learning the substance ofhis opinions in this matter.
(...
cont’d)
Rule 13W is designed to allow litigants to ascertain and rely upon the opinions ofexperts relied upon by their
adversaries. To allow either side to ignore Rule 2 13’s plain language without sanction defeats its purpose and
encourages tactical gamesmanship. Department of Transportation v. Crull, 294 III. App. 3d 531, 690 NE2d 143
(1998) (“We believe on of the reasons for the new Rule 213 was the need to require stricter adherence to disclosure
requirements.
“)
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Ti-us DOCUMENT IS SUBMITTED ON RECYCLED PAPER
As a result, Respondent is unable to determine whether his opinions provide any evidence ofthe
violations alleged, unable to prepare motions for summaryjudgment, unable to prepare cross-
examination for trial, and otherwise unable to defend itself against the substance ofhis
testimony.
9.
The appropriate sanction for failure to make a witness available for deposition is
the barring of that witnesses testimony at trial. Warrender v. Millsop, (App. 2 Dist.1999) 304 Ill.
App. 3d 260, 710 NE2d 512 (Finding Court erred by failing to exclude expert witness testimony
where defendant had failed to timely disclose identity, subject matter, and anticipated testimony
of her expert.); Department ofTransportation v. Crull, (App.4 Dist. 1998) 294 Ill. App.3d
531,
690 NE2d 143 (Admitting evidence of expert previously undisclosed opinions was error);
Chicago & Illinois Midland Ry. Co. v. Crystal Lake, 225 Ill.Ap. 3d 653, 588 NE2d 337 (1992)
(Trial court’s admission of expert witness testimony that was inconsistent with expert’s
deposition was “egregious error.”) If an expert cannot testify on issues not disclosed in or
inconsistent with his deposition, it follows that an expert cannot be allowed to testify after
Complainant has failed to produce him for a deposition altogether. The sanction of debarring the
witness and the substance ofhis testimony is all the more appropriate in a situation in which the
witness involved is an expert witness whose failure to be available for deposition is solely and
directly attributable to Complainant’s own willful or negligent omission.
10.
Complainant’s failure to retain Mr. Zak before the deposition deadline and assure
his attendance at his deposition, while leading Complainant to believe the opposite, is only the
tip
ofthe iceberg
ofComplainant’s discovery abuses. The history ofabuse ofthe discovery
process in this proceeding and its costs to the Respondent also support sanctions in this case:
5
Tuis DOCUMENT IS SUBMIITED ON RECYCLED PAPER
A.
From the beginning ofthe discovery process, Complainant has demonstrated a
lack of regard forthe discovery rules. She filed only cursory responses to Respondent’s
Interrogatory requests and failed entirely to respond to certain interrogatory and document
requests despite oral and written requests by Respondent. (See Exhibit
5
hereto.)
B.
After identifying in her Interrogatory Responses a document pertaining to
property values in the subdivision alleged to be impacted by Respondent’s operations,
Complainant refused to provide the document. In response to repeated requests by Respondent,
(Exhibit 6 hereto), Complainant claimed the document was irrelevant and contained confidential
business information. Finally, upon a Motion to Compel Production of the document (Exhibit 7
hereto), Complainant claimed in a status conference that the document was in the possession of
her husband and that she could not provide it due to the fact that they had recently separated.
C.
As a result ofComplainant’s delay and obfuscation regarding this document,
Respondent was forced to issue a subpoena for the document and attempt to depose
Complainant’s husband, Steve Pattermann. (Exhibit 8 hereto.) Mr. Pattermann failed to appear
for the deposition and never provided the subpoenaed document. As a result, Respondent
unnecessarily incurred the costs of a conference room, a court reported, an attorney’s fees and
travel, as well as the time of two of Respondent’s on-site managers.
D.
Throughout the course of this proceeding, the Hearing Officer has scheduled
telephonic status conferences. Complainant has failed to appear at at least 6 status conferences
scheduled
pursuant to Hearing Officer order
at which Respondent was represented by its
attorneys.2 (The dates on which Hearing Officer Orders document that Complainant did not
2
Section 101.616(1) ofthe Board’s rules states that failure to comply with any order regarding discovery may
subject the offending persons to sanctions pursuant to Subpart F! (Section 10 1.800).
6
THIS DOCUMENT IS
SUBMITTED ON RECYCLED PAPER
appear are November 8,2001, March 25, 2002, May 23, 2002, August 8,2002, September 11,
2002, and November 21, 2002. Complainant also failed to appear at a status conference on
March 5, 2003 and other status conferences not documented by a Hearing Officer order.) (See
Group Exhibit 9 A, B, C, D, E, and F hereto.) As a result, this proceeding has been delayed,
status conferences have had to be rescheduled and Respondents have been forced to pay
unnecessary attorneys fees.
E.
On July 25, 2001, Complainant filed interrogatory responses identifying three fact
witnesses. (See pp. 4-5 of Exhibit 5 hereto.) For over a year and a half thereafter, Complainant
failed to supplement her interrogatory responses with any additional witnesses.3 Then, on
February 10, 2003, the final date for the disclosure of opinion witnesses for trial, Complainant
filed a list of 100 fact witnesses
—
all but three of whom were new. (See Exhibit 1 hereto.) For
all ofthese 100 witnesses collectively, Complainant provided only the following one sentence
statement as to the substance of their testimony: “The following persons shall testify as to how
respondent’s actions affect their daily lives.”
F.
As a result of Complainant’s conduct, Respondent was forced to file a Motion to
Strike Complainant’s witness list. (Exhibit 10 hereto.) While Respondent ultimately obtained a
ruling from the Hearing Officer limiting Complainant’s witness list (Exhibit 11 hereto), the sheer
number ofnames on this list and the lack ofspecificity and facial repetitiveness of the purported
substance oftheirtestimony is proof enough that the Complainant sought to do as little work as
possible while “hiding the ball” and forcing Respondent to incur unnecessary expense to
determine if any of these hundred witnesses actually had any pertinent information. Either this
Section 101.616(h) ofthe Board’s rules creates a duty on litigants to update any interrogatory responses ifa party
learns that it is incomplete or incorrect during the discovery process. Violation of this rule is sanctionable under
Section 101 .616(g) and 101.800.
7
THIS DOCUMENT IS SUBMITTED ON RECYCLED PAPER
false witness list was purposely harassing and designed to cause Respondent increased costs, a
clear violation of Rule 101 .616(g), or Complainant simply did not take her obligation to file a
real witness list seriously. Either way, Respondent was forced to incur time and expense in
attempting to decipher and respond to this extensive false witness list and in preparing and filing
a Motion to Strike Complainant’s witness list.
G.
For the four fact witnesses that Complainant ultimately was allowed to list by
Hearing Officer order, she failed to provide any more detailed statement ofthe substance oftheir
testimony. Again, the only information had about these witnesses was that they would testify as
to how Respondent’s operations affect their lives. This is equivalent to saying nothing more than
that these people would fact witnesses. For two of her witnesses, she even failed to provide
addresses or phone numbers, despite repeated requests, in violation of Supreme Court Rule 213.
As a result ofthese omissions, Respondent was hampered in its preparation for these depositions
and was forced to guess at addresses. (Exhibit 12 hereto.)
1-1.
Further demonstrating how altogether disinterested Complainant has been
prosecuting her own lawsuit, Complainant failed to attend the depositions of
any
ofher own
witnesses, although she herself is both the attorney and the Complainant in this case and was
separately noticed for each deposition.
11.
Complainant’s history offlippant responses, refusal to answer interrogatory and
document requests, false identification of witnesses, delay, obfuscation, and disregard ofHearing
Officer orders demonstrate a pattem ofnoncompliance with the rules of discovery which is
sanctionable in itself Modine Manufacturing v. Pollution Control Board, (App. 2 fist. 1990)
192 Ill. App. 3d 511,
548
NE2d 1145 (Repeated nature of applicant’s conduct could be taken
into account in determining type ofsanction to impose.); Illinois Environmental Protection
8
THIS DOCUMeNT IS SUBMITTED ON RECYCLED PAPER
Agency v. Celotex, (App. 3 Dist. 1988) 168 Ill. App. 3d 592, 522 NE 2d 888 (Complainant’s
pattern of dilatory responses to hearing officer orders, unjustifiable cancellation of depositions
and intentional pattern ofrefusal to meet deadlines supported sanction of striking Complainant’s
claim pertaining thereto and barring any and all claims of the same nature.); Stevens v.
International Farm Systems, Inc., (App. 2 Dist. 1978) 56111. App.3d 717, 372 NE2d 424
(Conduct ofattorney showed pronounced effort to prolong litigation and refusal to answer
intenogatories was unreasonable noncompliance which, although not warranting a default
judgment or debarring of a defense, warrants strong sanctions.) It also supports the specific
sanctions requested in this Motion.
12.
Section 101 .800(b)( I) authorizes the Board to impose sanctions, including the
barring ofthe “filing ofany other pleadings or document relating to any issue to which the
refusal or failure relates.” Section 101 .800(b)(6) authorizes the Board to bar a witness from
testifying “concerning that issue.” 135 111. Admin. Code 101.800(b). In this case, the “issue.. .to
which the failure relates” is the whole ofMr. Zak’s expert testimony and the subject matter
thereof, which was stated by Complainant to be: “Respondent’s noncompliance with Illinois
Environmental Protection Agency regulations and possible modification to the Respondent’s
facility.” Barring Mr. Zak as a witness
in toto
and barring any other witness, comment, pleading
orIt
isdocumentnecessarypertainingthat both
toThethatwitness“issue”himselfare bothbe
barredauthorizedand thatand anyappropriateeleventhsanctionshour effortin
thisto
getcase.the4
same testimony or information he would have provided into in the record by other means be
Supreme Court Rule 21 9(c)(ii) and (iv) containsthe same language as the Board’s rule 101 .800(bX2) and(6), and
also clearly allows barring an expert witness as one ofthe sanctions available fora discovery rule violation.
~pjde~.yJ4illso,
(App. 2 Dist 1999) 304 Ill. App. 3d 260, 710 NE2d 512 (Defendant’s failure to timely
disclose identity, subject matter, and anticipated testimony of her expert warranted exclusion of the expert’s
testimony as a discovery sanction.)
9
THIS DOCUMENT IS SUBMITTED ON RECYCLED PAPER
barred. If Complainant is allowed to get this information into the record via other witnesses,
pleadings, or documents she will have successfully evaded legitimate discovery and Respondent
will be prejudiced in its defense.
13.
Section 101.800 instructs the Board to consider four factors in determining what
sanction to impose:
“In deciding what sanction to impose the Board will consider factors
including: the relative severity of the 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 absence ofbad
faith on the part of the offending party or person.”
14.
All of these factors are present in this case. As stated above, Complainant’s
failure to comply with the rules ofdiscovery has been serious and pervasive throughout this
proceeding, has caused Respondent to incur significant unnecessary expense, has delayed
discovery and this proceeding as a whole, and has prevented Respondent from being able to
prepare for trial or dispositive motions or otherwise defend itself against the substance of
whatever Mr. Zak’s testimony may be.
15.
The element of bad faith here also clearly warrants the sanctions sought. The
evidence cited above and attached hereto demonstrates that Complainant knew full well that she
had not retained Mr. Zak at the time that she identified him as her expert witness. Even after
reassuring the 1-learing Officer and the Respondent that she would be pay Mr. Zak to attend the
noticed deposition, she failed to retain him. This is willful conduct. But even if the Board does
not find it to be willful, Complainant’s conduct must be deemed to demonstrate bad faith. Ifnot
intentional, Complainant was so negligent about her responsibilities in a lawsuit she herself
initiated as to allow Respondent to incur all of the expenses associated with the preparation and
holding ofan expert witness deposition without bothering to ensure that her witness would be
10
THIs DOCUMENT IS SUBMITTED ON RECYCLED PAPER
there. An expert witness deposition is not like a fact witness deposition
—
it is expensive. In this
case, Respondent’s attorneys spent many hours preparing detailed expert deposition questions as
well as three hours ofattorney time traveling to and from Joliet and three hours allotted for
Mr. Zak’s deposition. (This doesn’t include the time of Respondent’s personnel in attendance at
the failed deposition and the costs associated with the conference room and court reporter.)
Furthermore, as stated previously, the availability of a “Controlled Expert Witness” is entirely
within the control ofthe party employing him, absent illness or some calamity
—
none ofwhich
were present in this case. Cf Lundreganv. Zidal, App. I Dist. 1977,51111. App. 3d 277, 366
NE2d 1002 (Failure to appear at deposition excused by illness of attorney where notice given the
day before to opponent.) Also cf. Trapanier et al. v. University of Illinois, et al.
,
PCB 97-50
(Feb. 1 8, 1999) (Failure to appear at deposition excused because Respondent failed to properly
notice deposition.)5 In this case, neither Mr. Zak nor Plaintiff were ill, and the deposition was
properly noticed and received by the deponent and Plaintiff. (See Exhibit 2 hereto.) Rather, Mr.
Zak’s failure to appear is directly attributable to Complainant’s failure to retain him
—
a fact she
knew, or should have known, and neglected to tell Respondent.
16.
Finally, it is too late for Complainant to now avoid this sanction by finally
retaining Mr. Zak and making him available for deposition. Nor should Complainant be allowed
at this late date to put on some other witness or submit some other pleading or document on the
same issue he would have testified to. The discovery period, which already took 2
‘/2
years, is
over, and additional delay is simply unwarranted in light ofnature ofComplainant’s willful or
negligent conduct.
The Board in fl~p~ijJier
also stated that the Respondent in that case had not cited a Board rule that had been
violated
.
That is not the case here. We note that Irapanier was decided prior to recent amendments to the Board’s
procedural rules on discovery. In contrast to Trapanier, in this case there is ample evidence that Section 101.616(g),
I 01.616(h), and Supreme Court Rule 213 have been violated.
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TillS DOCUMENT IS
SUBMITTED ON RECYCLED PAPER
17.
Based on all ofthe above, the sanctions requested-- particularly the barring of
Mr. Zak as a witness and the barring of any additional witnesses, pleadings or documents
pertaining to the subject matter ofhis testimony-- are both appropriate in this case and necessary
to prevent prejudice to Respondent. The awarding of Respondent’s attorneys fees (as shown in
Exhibit 4 hereto) is also warranted and should be allowed within the Board’s authority under the
Act, the Board’s new procedural rules and the Supreme Court Rules, which are expressly
referenced in Section 101.100 as guidance for the Board’s decisions.
WHEREFORE, Respondent moves the Board to bar the testimony of Greg Zak and to bar
any other witnesses, pleadings, or documents pertaining to the subject matter ofMr. Zak’s
testimony, and for such other sanctions, including the awarding ofattorneys fees, as the Board
deems appropriate.
Respectfully submitted,
Boughton Trucking and Material, Inc.
By One ofIts Attorneys
Patricia F. Sharkey
Mayer, Brown, Rowe & Maw
190 South LaSalie Street
Chicago, IL 60603
312-782-0600
Attorney Registration No. 6181113
12
Tuis DOCUMENT IS SUBMITTED ON RECYCLED PAPER
STATE OF ILLINOIS
COUNTY OF COOK
)
)
SS
)
RECEIVED
CLERKS OFFICE
MAY 232333
STATE OF ILLINOIS
PollutIon Control Board
AFFIDAVIT OF ATTORNEY
The undersigned, Patricia F. Sharkey, being first duly sworn upon oath states that she is
one of the attorneys for the Respondents in this action, Gina Pattermann v. Boughton Trucking
and Materials, Inc., PCB 99-187, and that based upon her personal knowledge and investigation
of the facts stated in the attached Motion for Sanctions, certifies her knowledge and belief that
the allegations contained in this Motion for Discovexv~Sanctions are true in substance and in fact.
STATE OF ILLINOIS
COUNTY OF COOK
)
SS.
)
Signed and sworn to by Patricia.F. Sharkey, who is personally known to me and appeared
before me, a Notary Public, in and for the County of Cook, State of Illinois, on this 23rd day of
May, 2003, in order to affix her signature as her free and voluntary act.
~
Notary Public
.C~
Patricia F. Sharkey
Attorney for Respondents
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
“OFFICIAL SEALfl
Donna M. Draper ~
Nolary
Pobhc,
State
of Illinois ~
My Commission Exp.
Lfl
PA
)
Ti-us DOCUMENT IS SUBMITTED ON RECYCLED PAPER
BERORE TIlE ILLINOIS POLLUTION CONTROL BOARD
Gina
Pattennann
Complainant,
v.
PCB 99-187
Boughton Trucking and Materials, Inc.,
Defendant.
COMPLAINANT’S 21 3(fl WITNESS DISCLOSURES
NOW COMES Complainant, Gina Pattermaim, in accordance with S.Ct.Rule 21 3ffl, and
serves this witness disclosure upon Respondent, Boughton Materials and Trucking by and
through their attorney Mayer, Brown, Rowe arid Maw.
The following persons shall testify as to how respondent’s actions affect their
daily lives. All live in Napervilie, Illinois with a zip code of 60564.
Adams, Jeff and Karen
4211 Colton Circle
Andros, Greg and Anne
4440 Esquire Circle
Bailey, Stewart and Margaret
1704 Robert Lane
Blob,,, Steve and Maureen
4204 Ricbwood Court
Bomanam. Theresa
Baybrook Lane
Burns, Tim and Sue
4223 Colton Circle
Chaffin, Gary and Susan
4415 Esquire Circle
Donahue, Kevin and Jane
1707 Baybrook Lane
.
S
I)titlck,
Rick
and
Lynn
1624 Vincent Court
Eastman, Jon and Kim
4212 Richwood Court
Fivizzani, Ken and Mary
4251 Colton Circle
Gibson, Andrew and Michelle
4424
Dublin Lane
Goodman, Ted and Alice
1636 Dublin Lane
Goss, Dave and Kayla
4455 Esquire Circle
Gronowski, Ray and Deb
4220 Colton Circle
Haviley, Jim and Corrine
1204 Milford Court
Howard, Lisa
4303 Ariel Court
Johnson, Pete and Sharon
4247 Colton Circle
Kalkofen, Scott and Linda
1215 Milford Court
Kasler, Tom and Susan
1208 Milford Court
Keckler, Ken and Tern
44217 Clearwater Lane
Kives, Dave and Cathy
1719 Baybrook Lane
Lamger, Fred and Cary
4204 Delaware Court
Lazaraus, Ron and Kathy
SS
Cicanvater
Lane
Lerche, Toni and Linda
4407 Clearwaten Circle
Loesher, Mike and Trish
4224
Colion Circle
McGann, Kevin and Stephanie
4220 Richwood Court
Men-ill, Bob and Maureen
4823 Sebastian Court
Micchelli, Bob and Helen
4407 Esquire Circle
Miller, Ken and Janice
4320 Clearwaten Lane
Molly, Tim and Kathy
4255 Colton Circle
Mondi, Jin, and Michelle
4239 Colton Circle
Morgan, Tom and Marcia
4215
Richwood Court
Neeson, Phil and Kanen
4235
Colton Circle
Nelson, Kris and Sara
4207 Falkner Drive
Palmer, John and Kris
4216 Richwood Court
Paolucci, Rudy and Judy
4340 Camelot Circle
Pavich, Tom and Linda
4447 Esquire Circle
Putney, Steve and Julie
1751 Baybrook Lane
S
Sc
Iiiupp, Nci inxl 1 8rc~
4323 Estluire Circle
Schmidt, Steve and Connie
4443 Esquire Circle
Schmittgens, Dan and Judy
1716 Robert Lane
Sovik, Jim and Holly
1803 Baybrook Court
Stapleton, Mike and Barb
1748 Baybrook Lane
Stauffer, Mark and Nancy
4203 Colton Circle
Stelten, Bill and Gail
1223 Milfond Court
Stewart, Sam and LuAnji
1632 Robert Lane
Udouj, Chris and Mary
4268 Colton Circle
Warbiany, Mike and Michele
4324 Camelot Circle
V/ray, Ron and Debbie
4203 Halifax Count
Wright, Mark and Jill
4411 Esquire Circle
SS
Ihe
ioHo~vngperson shaH teshly
iegaii ng Rcspondcnts non compliance
with
illinois
Environmental Protection Agency regulations and possible modifications to the
Respondents facility.
Gneg Zak
8269 Birch Drive
Chatham, IL
62629
Respectfully Submitted,
-
Gina L. Patlenmann
Law Offices of Gina L. Pattermann,
P.C.
(29224)
608 S. Washington St., Suite 101
Naperville, Illinois 60540
(630) 369-3400
S
.
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARD
GINA PATTER~4ANN.
)
)
)
Complainants.
)
PCB 99-187
V.
)
(Citizen Enforcement
)
-Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS. INC..
)
Respondent.
)
NOTICE OF DEPOSITION
TO:
Greg Zak
36 Birch Drive
Chatham. Illinois 62629
PLEASE TAKE NOTICE thai Boughton Trucking and Materials. Inc. (“Bou~hton”).b’
its anomeys. Mayer, Brown. Rowe & Ma”~.will take the expert deposition of GREG ZAK.
pursuant to 35 III. Admin. Code 101.100 et seq. and the Illinois Rules of Civil Procedure on
Wednesday April 23. 2003 at 10:00 a.m.. and to he continued as necessary. at the offices of
Tracy. Johnson, Bentani & Wilson. 116 Nonh Chicago Street. Suite 600. Joliet. Illinois 60432.
The deposition ~vil he taken upon oral examination pursuant to applicable rules of Illinois Civil
Procedure.
Boughton seeks to depose expen Gre~Zak (“Experl Deponent”) on any conclusions and
opinions he has fomiulated and’br ‘viii testify 10 pertaining to noise, dust. or any other emissions
or effects or impacts on persons. propenv. or the environment which are believed or alleged to be
used by or emanating from the Boughion TruckinQ and Materials. Inc. facility located al 22750
West 11
1th
Street. Naperviile. Illinois 60564: and any facts. observations. informa;ion. dMa.
SS
samples. test results, reports, studies. actions. conversations. correspond?nce, documents or other
tangible or intangible evidence upon which the Expert Deponent bases his conclusions and
opinions, or which the Expen Deponent considered in the formulation of his conclusions and
opinions.
Deponent shall bring to the deposition any materials relevant to the matter under
consideration including. but not limited to. articles. hooks. treatises, studies. photographs, maps.
blueprints, drawings. regulations. statutes, papers. reports. data, samples. test results. technical
data. real estate appraisals, correspondence (including electronic correspondence and phone
records) and any other documents. tangible or intangible evidence.
BOUGHTON TRUCKING AND MATERIALS. INC.
March 21. 2003
Mark R.Ter Molen
Kevin Desharnais
Jaimy L. Hamburg
Patricia F. 5harke~
MAYER.
BROWN, ROWE & MAW
190 South LaSalle Street
Chicago. Illinois 60603
t312) 782-0600
By One of Its Atlomeys
SS
CERTIFICATE OF SERVICE
Kevin Desharnais, an attorney, certifies that a copy of the foregoing Notice of Deposition
was sent for delivery via UPS (Salurday Delivery) to Gina Panermann at 4439 Esquire Circle.
Naperville, Illinois 60564. via UPS (Saturday Delivery) to Greg Zak at 36 Birch Drive. Chatham.
Illinois 62629. and by first class United States mail to the Hearing Officer Bradley Halloran at
the illinois Pollution Control Board. Suite 11-500. 300W. Randolph Street. Chicago 60601 on
March 21, 2003.
/
Kevin Deshamais
SS
Before
the Illinois Pollution Control Board
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Respondent.
)
PCB 99—18?
SUBPOENA/SUBPOENA DUCES TECUN
TO:
Greg Zak
36 Mrch Drive
Chpth,arn, lllinc,ic
62h29
116 North Chicago Street, Suite 600
Gina Pattermann,
Complainant/Petitioner,
V.
Boughton Trucking and
liaterials, Inc.,
Pursuant to Section 5(e) of the Environmental Protection Act (415 ILCS 5/5(e)
(2002)) and 35 Ill. Adm. Code 101.622. you are ordered to attend and give testimony at the
hearing/deposition in the above-captioned matter at
____________
10:00 amon
Apr11 23
20
,at
Tracy, Johnson, Bertani 6 Wilson
Joliet, Illinois 60A32
S
2
S
You
are also ordered to bring
with
you documents relevant to the matter under
consideration and designated herein
See documents listed in notice.
Failure to comply with this subpoena will subject you to sanctions under 35 111.
Adm. Code 101.622(g). 101 .800, and 101 .802
ENTER:
r4~~~4A. )LJ
Dorothy M. Gunt Clerk
Pollution Control Board
Date:
of MALC.14
DUCES TECUM to
CERTIFICATE OF SERVICE
___________________
cenif~ithat on this
2-
/ ~
day
20g~, .1 caused copies ofthe SUBPOENA/SUBPOENA
be served upon the following
6
~
1V’A
Rh
I
Et&ThL.rV
-
~L.sOCJpaJ
..
4.
A&i&tH~Cic.g’~
Datcn*i
(—s.t’~’.j,
(atc
T?C.
by depositing same in United Stales First Class Nail, postage
s—1fl .IA i-tv w
t
C
iaid.
(Signature)
•S
S
(Or. alternatively)
I.
____________________________
served this SUBPOENA/SUBPOENA
DUCES TECUN by hand delivering a copy to
_______________________________
on
___________________________
20
(Signature)
Subscribed and sworn to before me this
_______
day of
__________
20
Notary Public
liPS Package Tracking
5
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TRACK
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SUPPLIES
1Z6E431E443503 8715
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Location
SPRINGFIELD, IL, US
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IL, US
DECATUR, IL, US
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Delivered to: CHATHAM, IL, US
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Service Guide E-Business Customer Service About UPS Site Guide j MY UPS.COM
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03/27/2003
NOISE SOLUTIONS BY GREG ZAK
36 BIRCH DRIVE
CHATHAM, ILLINOIS 62629
(217) 483-3507
(217) 483-5667-FAX
E-mail:
regzak~justice.com
By Fax, E-mail, and First Class Mail
March 26, 2003
Mr. Kevin Deshamais, Attorney at Law
MAYER, BROWN, ROWE &
MAW
190 South LaSalle
Street
Chicago, Illinois 60603-3441
(312) 701-8079
(312)706-9181 Fax
kdesharnais~mayerbrownrowe.com
Refer to: Gina Pattermann v. Boughton Trucking and Materials,
Inc., PCB 99-187
(Citizen Enforcement
—
Noise, Air)
Deposition Scheduled for April 23, 2003, 10:00 AM, at 116 North Chicago
Street, Suite 600, Joliet, Illinois 60432
Dear Mr. Deshaniais:
Per your “NOTICE OF DEPOSITION” of March 21, 2003, enclosed you will find a contract for my
deposition. Please sign and return the contract with a check for $1,584.00.
If you have
any
questions, please don’t hesitate to call.
Sincerely,
Greg Zak, INCE
Enclosure
cc: Ms. Gina Patterniann
Mr. Brad Halloran
zak\Pattermann\Dep. Ui.
3-26-03
NOISE SOLUTIONS BY GREG ZAK
36 BIRcH DRIVE
CHATHAM, ILLINOIS 62629
(217) 483-3507
(217) 483-5667-FAX
E—mail:
gregzak(~justice.com
CONTRACT
FOR SERVICES
This is a contract between NOISE SOLUTIONS BY GREG ZAK
and
Mr. Kevin Deshamais
and
Boughton Trucking
and
Materials,
Inc.
Mr.
Zak
agrees to appear for a deposition
and
to give
testimony. By doing so, other opportunities to perform compensable services will
be forgone. Mr.
Kevin Desharnais and Boughton Trucking
and
Materials, Inc. agree to compensate Mr.
Zak
for these
lost opportunities in the amount of $198.00 per hour, plus travel, lodging and
per
diem expenses. This
hourly rate is not prorated, but applies to a MI hour or any part thereof,
and
does include
travel time to
and from the deposition. Payment for the first eight (8)
hours must be received by Mr. Zak
prior to the
date upon which the deposition is scheduled, or he will not appear for the deposition (8 hrs. x $198
=
$1584). Payment for time in excess of eight (8) hours and all travel expense is due at the conclusion of
the deposition.
Greg
Zak,
forNOISE SOLUTIONS BY
GREG ZAK
Date
Mr. Kevin Desharnais
and
Boughton Trucking and Materials, Inc.
Date
zakWaitermann\Dep-Contract 3-26-03
ATTORNEY’S FEES ATTRIBUTABLE TO COMPLAINANT’S ABUSE OF
DISCOVERY PROCESS IN PATTERMANN V. BOUGHTON, PCB 99-187
RESPONDING TO FALSE WITNESS LIST
February 20—March
5,
2003
$ 3,
947.50
Includes reviewing 100 person list of alleged fact witnesses; discussing list and response
with client
and
co-counsel; research
and writing for Motion to Strike; Filing Motion to
Strike; Preparing for and participating in Status Conference with Hearing Officer re
Motion to Strike. Does not include Westlaw charges and other related legal costs.
EFFORTS TO OBTAIN ADDRESSES FOR COMPLAINANT’S WITNESSES
LISA COLLINS
AND
DONALD BOUDREAU FOR DEPOSITION NOTICES
March 2003
$ 365.00
Includes calls and letter to obtain addresses for Complainant’s witnesses.
PREPARATION FOR
AND
ATTENDANCE AT STEVE PATTERMANN
DEPOSITION
AND
GREG ZAK EXPERT WITNESS DEPOSITIONS AT
WHICH WITNESS DID NOT APPEAR
March 20, 2003
—
April
23, 2003
$6,388.75*
Includes preparation
and sending of deposition notices and subpoenas, research,
document review and writing of deposition questions, travel to
and attendance at
depositions at which witnesses did not appear. Does not include other legal costs.
Includes ‘/~travel time.
PREPARATION OF MOTION FOR SANCTIONS
March 6, 2003— May 23, 2003
$8,819.00
Research, draft and file Motion for Sanctions necessitated by Complainant’s on-going
abusive discovery practices. Does not include Westlaw charges and other legal costs.
Total Attorney’s Fees
$1 9,520.25**
*Does not include Boughton personnel time. See attached.
**
Does not include attorney’s fees incurred prior to
2003,
including fees related to
insufficient
and
missing interrogatory responses.
For pfS
.
No
TransiUiSSiOll tnformatiofl t.vaitabte in on tine 0) for PFS
*
Pg 1/1
16309041438
—~
p.1
P1a~g 22 03 o2:28p BOUGHTON TRUCKING
Boughton Trucking & Materials, Inc.
11746 S. Naperville-Plainfield Road, Plainfield, IL 60544
Tel- 815-436-4555 and 630-759-4096 Fax. 630-904-1436
To: Pat Sharkey
From:
Frank Maly
Date: May 22, 2003
Re:
Cost Estimates for Lost Depositions
2 Deposition
(Patterman & Zak)
Wayne Szepelak
4
his Deposition
@$62.50/hr
$250.00
2hrs
Travel
125.00
2hrs Preparation/Review
125.00
1 hr Computer
dine
62.50
1 hr
Research questions
62.50
Sub Total
$625.00
Frank Maly
4 bra Deposition
@192.30/hr
$769.20
2 his
Travel
384.60
2 his Preparation/Review
384.60
1 hr Research questions
192.30
4 his
Computer Time
769.20
Sub Total
$2499.90
Copying Costs
$35.00
Telephone Charges
40.00
Sub Total
$75~fJ
Total
Costs
$3,199.90
BEFORE THE
ILLINOIS POlLUTION CONTROl. BOARD
GINA PATTERMANN, LISA COLLINS,
)
and DEEN COLLINS
)
Complainants,
)
)
PCB No. 99-187
)
BOUGHTON TRUCKING AND
)
MATERIALS. INC.
)
)
Respondent.
ANSWER TO
BOUGHTON FIRST SET OF INTERROGATORIES
Respondent
has polluted the air by releasing dust into the air on a regular basis
in large
quantities.
This
dust visible to the eye. This dust is also visible
inside
nrc home most days when Boughton is operating and I open my windows or
doors. The dust accumulates on the fi.trniture. kitchen and bathroom counters.
tables etc. The dust also accumulates on the screens. I do not keep screens on
my home any longer because the dust settles on the screens and it is not
possible to see clearly outside. I rarely opens my windows when respondent
is operating because of the dust.
2.
Respondent continuously creates noise that unreasonably interferes with the
enjoyment. of life on my property on a regular and ongoing basis. Every
morning between 5:30am and 6:30am. Monday through Saturday, the
respondents begin operating their very noisy equipment waking me and my
family. Respondent operates the equipment until late afternoon. The
equipment is loud enough that it prevents me from using my
back yard
for
normal purposes such as children playing and hosting parties. If the children
are playing in the back yard while respondent is operating, on nwst days, they
cannot hear me speaking to them from the deck atiached to the rear of the
home. I cannot open my windows or doors and hold normal conversations
inside my home while respondent is operating their equipment.. J cannot hold
a conversation with her neighbors while standing in the driveway unless we
shout. The respondent also uses blasting devices several times per week.
This blasting wakes the children up from their naps on a regular basis. In the
autumn, the respondent allows a local group ofhunters 10 use their property to
hunt. Sunday is the only day that respondent does not operate their quarrying
equipment but I am awaken by the sound of rifle shots at the edge ofmy
property line.
3.
The respondent is violating the act forreasons stated in #2 above and in #4
and #5 below.
I
I
4.
1 have a sound meter that measures frequencies between 500 and 10,000Hz. I
have measured sounds above 58dB on several occasions between 7:00am and
10:00pm.
5.
I
have a sound meter that measures frequencies between 500 and 10,000Hz. 1
have measured sounds above 47dB on several occasions between 10:00pm
and 7:00am.
6.
I do absolutely contend that both noise and dust emitted from respondents
facility unreasonably interferes with the use and enjoyment of my property.
These reasons are stated in #1 and #2.
7.
My children are awakened from their sleep even’ morning and several times
per week from their naps. When they play outside they are breathing in
visible dust. They are covered with grit when they play outside.
8.
The children
cannot distinguish the noises emitted from the respondent’s
operations from thunder. They are afraid of thunder storms, as are most small
children. They ask several times per day, “What was that?” They cry when
they are awakened by blasting. They say
“
The
quarry is scary” and “The
quarry is loud” on a regular basis,
9.
Respondent causes enormous stress in
my life for several reasons. I cannot
open my doors and windows. 1 rarely ever turned the air conditioner on in my
previous houses. I love fresh air. Now I have no choice hut to he closed in
my house six days per week. I rarely get to enjoy my beautiful yard. For
relaxation.
I have always gardened in the
past. I can no longer garden without
listening to banging and crashing all day as well as getting covered in grit.
When in lawschool. I could not study in my house. Ihad to leave my family
to go to a quite place. I have a vacation
home to get away from the cold. I
have gone there several times in the summer when I would ordinarily not go
just to get away from the noise and dust emitted from respondent’s facility. I
am awakened most mornings by the sound of back up beepers, boulders
hitting metal, equipment being started, and trucks revving their engines as
well as a host of other noises. One ofthe most stressful events resulting from
respondent’s operations is when I finally get my children down for a nap and a
blast occurs or a load ofboulders is dumped and it wakes them up. I have no
tranquility in my life because of respondent’s facility. This results in a very
stressful existence.
10.
The entire family began residing in the home on September 20. 1997 except
Alex who was born October 27, 1998. We all reside in the home year round
except for vacations.
2
Gina Pattennann, Age 38
Steve Pattermann. Age 48
Chris Pecora, Age 16
Nichole Pecora, Age 14
Michael Pecora, Age 9
Matthew Pattenriatm, Age 4
Alex Pattennann, Age 2
Chris Nichole Matthew and Alex have resided with me since their births.
My addresses since college are as follows. Anything prior to that is
irrelevant and I can not recall what the addresses were.
3524 Caine Drive. Napen’ille, IL 60564 1993-1997
17 Janiie Drive. Sewell. NJ 08080 1989-1993
1118 Daisy Lane, Naperville, IL 1984-1989
Steven Patterman.n resided at
3524 Caine Drive, Naperville, IL 60564 1996.1997
509 Aurora Avenue. Naperville, IL 60540 1995-1996
1224 Iron Liege Ct, Naperville, IL 60540 1978-1995
11.
Steven Patteniiam~owns and is president of Pattermann Builders
Home building
3 employees
1 have no position at Pattennann Builders
Steven has been owner and president ofPattermann Builders since 1973
Steven has hundreds ofthousands of documents regarding Patterrnann
Builders. Please specil, what documents respondentwishes to he identified.
12.
Mary Ann and Paul Ciuzzo
5730 Westview Lane
Lisle IL, 60532
630-969-1671
Retired
These are my parents and I complain to them about the situation on an
ongoing basis.
Michele and Richard Francis
197 Montrose Ct
Napen’ifle. IL 60565
630-527-9132
Owners Richard T. Francis and Associates
This is my sister and her husband.
I
complain to
them also on a regular basis
3
.
GregZak
Illinois EPA
1021
North Grand Ave. East
P.O.
Box 19276
Springfield, IL
62794-9276
GregZak is the person who I initially contacted regarding my complaint. 11~is
was
sometime in the fall
of
1998.
He
works for the Illinois EPA in the noise
division. He is familiar with all aspects ofmy complaint.
Edward Petka
501
North Division Street
Plainfield, IL 60544
Senator
I contacted Senator Petka initially before I filed a complaint on my own. This
was in the spring of 1998. Mr. Petka had the Attorney General’s office look
into the situation. They still consider the case active although they will
probably not go anywhere with it for the next fifty years.
I basically verbalized to Senator Petka my complaints about the dust and niose
emitted by the respondent.
1 am including the River Run directory. This lists all ofthe names and
telephone numbers of everyone who resides in the subdivision. I have held
several meetings about the situation with respondent and hundreds of people
have attended over the years. I have no way ofknowing who attended these
meetings and who did not. Most residents are familiar with respondents
operation and the impact that it has pertaining to noise and dust.
Bill Jene
Carlene Jenkins
Lisa Collins
These three people will be called as witnesses and they are described below.
13.
I
cannot identify each and even’ witness that I will call for trial until I
assemble all written discovery materials. Here is a preliminary list of
witnesses.
Bill Jene
1739 Baybrook Lane
Naperville, IL 60564
630-922-9232
Stockbroker
Bill and I discuss respondents operations on a regular basis
Bill will testi1~jas to how noise and dust emitted from respondent
aflècts his
life.
4
I
Carlene Jenkins
4435 Esquire circle
Naperville, IL 60564
630-922-9564
Stay at home mom
Carlene and I discuss respondents operations on a regular basis
Carlene will testify as to how noise and dust emitted from respondent affects
her life
Lisa Collins
Fairway Drive
St Charles. IL 60174
630-587-8050
Part owner and General Manager Gerald Auto Dealerships
Lisa and I discussed respondent’s operations almost every day.
Lisa will testi1~’that the noise and dust from
the respondent’s operation was
unbearable and that she
moved because of it.
14.
We cannot identi1~veach and every opinion witness until we have
reviewed all written discovery.
Greg Zak
illinois EPA Noise Consultant
1021 North Grand Ave. East
P.O. Box 19276
Springfield. IL 62794-9276
217-785-7726
Mr. Zak will testify about solutions to the noise problem that I am
experiencing. Mr. Zak has not yet compiled any data. He has visited the site
but he plans to do a much more thorough evaluation. Once these evaluations
are compiled ~sewill forward them to respondent.
15.
Same answer as #12
16.
Same answer as ~ 12
17.
See enclosed list of homes sold. All propertieswere purchased as vacant
lots. All properties were developer financed. Harmony Grove, Clow Creek. and
Ashbury were developed by Mid-America Developments. River Run was
developed by Oliver Hoflinan Corp. One additional lot was purchased in River
Run at 1707 Baybrook. This lot backs up to respondent’s property. This lot was
released back to the developer after we moved into our home and realized what a
huge negative impact that the respondent had on our lives. We did not want to
place a family in the same situation that we were in. After we moved into our
home we informed all buyers, who would be negatively affected by the
respondents. of the respondents facility and the impacts it may have on their lives.
S
I
19.
1 object to this interrogatory on the basis that it is overbroad and irrelevant.
This interrogatory includes eventlung from speeding tickets to child
support enforement actions that we have been involved in for the past 18
years. Please be more specific in identifying what type of actions that you
are looking for. No one in
my
family, or any entity owner by my family,
has ever brought a tort claim against anyone nor have we everbeen before
the pollution control hoard on any issue.
20.
None
21.
No
6
MAYER,
BROWN & PLATT
90 SOLffH LA
SALLE
STREET
CHICAeO, ILLINOIS 60603-3441
KEVIN DESIIARNAJS
MAIN
TELEHONE
DIRECT DIAL (312) 701-607Q
(312) 762-0600
DIRECT FAX (312) 708-QIel
MAIN
FAX
kdesharnais@mayerbrown.com
(3(2) 701-771 I
July 27, 2001
WA FACSIMILE AND U.S. MAIL
Gina Pattermann
4439 Esquire Circle
Naperville, IL 60504
Re:
Pattermannv. Boughton, PCB 99-187
Your Responses to Boughton’s Discovery Requests
Dear Ms. Pattermann:
On July
25,
2001, we received a package of documents from you, postmarked July 23,
2001. The package did not contain any written responses to Boughton’s First Set of
Interrogatories, or written responses to Boughton’s First Set of Document Requests. I contacted
you by phone on the 25th, and you informed me that the interrogatories responses were
unintentionally excluded from the materials, and that you would fax them to me, and follow up
with a hard copy in the mail. I subsequently received your interrogatory responses by fax at
approximately 5:30 p.m. on July 25th In our telephone conversation, you also informed me that
you did not prepare any written responses to our document requests.
We request that you provide written responses to our document requests immediately. A
formal response is required by the rules, and without these responses, we do not know whether
you have objected to providing any documents.
In addition, as outlined below, your interrogatories responses are deficient and
unacceptable in numerous respects, and we request that you remedy the identified deficiencies.
First, where requested to do so, you have failed to identi1~’documents relevant to the
Interrogatories. This includes Interrogatories 1,2,3,4, 5,6,7, 8,9, 11, 12, 14, 17, and 19. We
request that you supplement your responses with this information and provide copies of the
documents in response to our document requests.
Second, in several cases, where requested to do so, you have failed to identi& persons
with knowledge in response to Interrogatories, including Interrogatories 7 and 8. We request
that you supplement your responses with this information.
CHARLOTTE
CHICAGO
COLOGN~
FRANKFURT
HOUSTON
LOS ANGELES
NEW
YORK
PALO ALTO
PARIS
INDEPENDENT
MEXICO
CITy CC~PESPON0ENr: .JAUREGUI. NAVARRETE. NADER? ROJAS
Mi~YLR,DROWN
& PLA’rr
Gina Pattermann
July 27, 2001
Page 2
Third, you failed to identify dates or records for sound meter readings identified in your
responses to Interrogatories 4 and 5. We request that you supplement your responses with this
information and provide copies ofthese documents in response to our document requests.
Fourth, with regard to Interrogatory 10, you failed to identify residences prior to 1984 for
Gina Pattermann, and prior to 1978 for Steven Pattermann. We do not agree that this
information is not relevant, and it is information which is available to you upon reasonable
inquiry. We request that you supplement your response with this information.
Fifth, in your response to Interrogatory 11, you have failed to identify or provide any
documentation with regard to Pattermann Builders. While you may believe that certain records
held by Pattermann Builders are not relevant, any documents concerning properties in the
vicinity of Boughton and the surrounding subdivisions would be relevant, including any
documents concerning the purchase and sale and ofsuch properties, disclosures respecting
proximity to or concerns with Boughton or other quarries, records ofany type regarding noise or
dust concerns (from any source), any other records that refer to Boughton or its potential impact
on the properties, or any correspondence which refers to any ofthese matters. These documents
would be in addition to any documents required to be identified and produced in response to
Interrogatory 17.
Sixth, in your response to Interrogatory 12, you failed to identify the dates and substance
ofthe meetings with members ofthe subdivision regarding the Boughton facility, which
meetings were identified in your Interrogatory response. Further, with regard to your contacts
with Mary Ann and Paul Guzzo, Michele and Richard Francis, Greg Zak, Edward Petka, Bill
Jene, Carlene Jenkins, and Lisa Collins, you failed to provide the dates and substance ofyour
contacts, and we request that you supplement your responses with this information. We accept
your response as conclusive with regard to persons contacted, and will oppose any attempt to
introduce evidence ofcontacts with other persons.
Seventh, with regard to Interrogatory 13, concerning identification ofwitnesses, we
understand that you will supplement your response with regard to Boughton employees after you
have reviewed our discovery responses. However, with regard to anyone other than Boughton
employees, we accept your responses as conclusive, and will object to any attempt to identify
additional witnesses not disclosed in your response.
Eighth, in response to Interrogatory 14, you have identified only Greg Zak as an opinion
witness, and further indicate that Mr. Zak intends to do a more thorough evaluation, at which
point you will supplement your response. We will object to any subsequent identification ofany
previously consulted, non-disclosed expert or opinion witness, or the introduction of any
MAYER, BROWN & PLATE
Gina Pattermann
July 27, 2001
Page 3
materials related thereto. Moreover, we will object to the use of any evaluation conducted by
Mr. Zak after his deposition.
Ninth, with regard to Interrogatory 17, you refer to an “enclosed list ofhomes sold,” but
no such list was provided. I informed you in our July
25th
phone conversation that the list was
not included with the documents you had forwarded. Subsequently, when the list was not
included with the Interrogatory responses you faxed on the evening ofJuly
25th,
I called you on
July
26th
and requested that the list be forwarded. To date, we have not received it. We request
that you forward the list so that we can evaluate the adequacy of your response. Further,
although requested to do so, you have not provided any documentation, including but not limited
to, any bill ofsale or contract of sale for each identified property. Your response also indicates
that you “informed all buyers” ofthe respondents facility, but you failed to identify the
information, including information regarding noise and dust, provided to each purchaser. We
request that you supplement your response with this information.
Tenth, with regard to Interrogatory 19, we do not agree that the requested information is
not relevant. We request that you provide a complete response to this interrogatory.
As you know, the discovery schedule in this matter is extremely tight, based on your
request to the Hearing Officer that we expeditiously proceed to hearing in this matter. While we
have jointly requested a modification to the discovery schedule (which has not yet been acted on
by the Hearing Officer), even if granted the modification would not affect the due date for
written discovery. The issues regarding your discovery responses reflected in this letter are
prejudicing our ability to prepare our case in a timely manner.
Sincerely,
-i
.~
(z~1
I
/
...~
/__~_______
~
/
Kevin Desharnais
.
S
RECEIVED
CLERK’S OFFJCE
BEFORE THE
2
ILLINOIS POLLUTION CONTROL BOARD
JAN
42003
STATE OF IWNOIS
GiNA PATTERMANN, LISA COLJJNS,
)
Pollution Control BOard
and DEEN COLLINS,
)
)
Complainants,
)
)
v.
) PCBNo. 99-187
) (Citizens Enforcement
-
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.
)
)
Respondent.
)
NOTICE OF FILING
To:
See Attached Certificate of Service
Please take notice that on January 24, 2003 we filed with the Illinois Pollution Control
Board an original and four copies ofthe attached Motion for Expedited Hearing Officer Order to
Compel Production ofEvidence, a copy of which is attached and herewith served upon you.
BOUGHTON TRUCKING AND
MATERIALS, INC.
By:____
Ol~of its Attorney
Dated: January 24, 2003
Mark R. Ter Molen, Esq.
Kevin G. Desharnais, Esq.
Jaimy M. Levine, Esq.
Patricia F. Sharkey, Esq.
MAYER, BROWN, ROWE
&
MAW
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS FILING IS SUBMITTED ON RECYCLED PAPER
.
.
RECEIVED
CLERK’g
OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
JAN 24 2003
STATE OF IWNOIS
Pollution Co
‘
GINA
PATTERMANN, LISA COLLINS
)
fl’r°’.oQard
AND DEEN COLLINS,
)
Complainants,
)
PCB 99-187
v.
)
(Citizen Enforcement
BOUGHTON TRUCKING AND
)
-Noise, Air)
MATERIALS, INC.,
)
Respondent.
)
MOTION FOR EXPEDITED
HEARING
OFFICER ORDER
TO COMPEL PRODUCTION OF EVIDENCE
NOW COMES respondent, Boughton Trucking and Material, Inc. (“Boughton”),
by its attorneys, Mayer, Brown, Rowe & Maw, pursuant to 35 III. Adm. Code Sections
101.614, and moves the Board Hearing Officer to issue an order compelling
Complainants to produce complete responses to Boughton’s June 22, 2001 First Set of
Interrogatories and First Set ofDocument Requests tO Complainant Gina Pattermann and
to Complainants Lisa and Deen Collins.
In support thereof, Respondent states:
1. Section 101.620(b) ofthe Board’s General Rules ( 35 Ill. Adm. Code
101.620(e)) establishes mandatory deadlines for the serving of complete, signed, and
sworn answers to interrogatories filed in Board enforcement proceedings:
“Within 28 days after service thereof, the party to whom the interrogatory is
directed must serve the answers and objections, if any, upon the party submitting
the interrogatories. Each interrogatory must be answered separately and fully in
writing under oath, unless it is objected to. Answers must be signed by the person
making them and objections must be signed by the attorney making them or, in
the event of an individual representing himself or herself, the individual making
them.”
2. Section 101.614 ofthe Board’s General Rules
(35
III. Adm. Code 101 .614)
authorizes the Hearing Officer, on the motion ofany party, to order the production of
information that is relevant to the matter under consideration. Section 101.616(a)
(35
Ill.
Adm. Code 101.616(a)) provides that all relevant information and information calculated
to lead to relevant information is discoverable.
3. On June 22, 2001, Respondent served its First Set ofInterrogatories and First
Set ofDocument Requests to Complainants Gina Pattermann, Lisa Collins, and Deen
Collins (“Complainants”) by first class U.S. Mail and UPS delivery, copies ofwhich
were also served on the Board by first class U.S. Mail.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
.
.
4. On July 25, 2001, Gina Pattermann faxed an incomplete, unsigned and unsworn
document to Respondent entitled “Answer to Boughton First Set ofInterrogatories.”
(Attachment A hereto). No signed and sworn objections to the interrogatory requests
accompanied this document; therefore, Complainant Gina Pattermann has waived any
objections to these Interrogatories. 35 Ill. Adm. Code 101.620 Also on July
25,
2001,
Respondent received an incomplete package of documents from Gina Pattermann via
priority U.S. Mail. No cover letter, document list or written signed and sworn responses
or objections accompanied the documents. Therefore, Complainant Gina Pattermann
must also be deemed to have waived any objections to Respondents’ document requests.
Complainants Lisa Collins and Deen Collins have never responded to Respondent’s
written discovery requests.
5.
As stated in the Hearing Officer’s Orders ofMay
25,
2001 and December 4,
2002, all written discovery in this matter was required to be served and complete as of
July 23, 2001. These orders preclude the introduction at trial ofany information or
documents that were subject to Respondent’s timely written discovery requests and
available to Complainants prior to the written discovery deadline which were not
disclosed as of July 23, 2001.
6. Although Complainants failed to respond or object to numerous interrogatory
and document requests, Respondent, with the one exception discussed below, accepts
Complainants responses as final and will object to any.expansion ofthose responses at
this late date or at trial. Obviously, to the extent that
n~information
or documents
become available to either party there remains a duty to supplement that party’s
responses.
7. Respondent requests that Complainants be compelled to produce responsive
information and documents pertaining to Interrogatory 17. Specifically, Respondent
requests the following:
a. The “list ofhomes sold” which Complainants identified in response to
Interrogatory 17 as “enclosed,” but in fact did not include in Complainants’ response.
b. Complete responses to Interrogatory 17 (a) —(e), which requested the
identification of “all property within a one mile radius of respondent’s facility, orwithin
the River Run, Ashbury, Rosehill Farm, Wheatland South, Clow Creek -Fanri, Saddle
Creek, Harmony Grove, High Meadows, Whispering Lakes, Hickory Oaks, River Bend
or Cider Creek subdivisions, which Complainants or Complainants’ husband or
Complainant’s family or any entity controlled by Complainants, Complainants’
husband, or Complainants’ family, or anyentity in which Complainants,
Complainants’ husband, or Complainants’ family have an economic interest, have
owned, occupied, leased, developed, or otherwise had an economic interest since 1983.
For each such property identify:
“(a) the date ofpurchase;
“(b) the purchase price paid;
THIS FILING IS SUBMITTED ON RECYCLED PAPER
.
S
“(c) any structures which existed on the property at the time ofpurchase;
“(d) any structures which were added to the property after purchase,
including the dimensions, square footage, and number ofrooms;
“(e) the means offinancing for eachpurchase, and ifrelevant, the means of
financing for construction at the property;
“(f) if sold, the sale price at which the property was sold;
“(g) if sold, all information provided to the purchaser regarding respondent’s
facility and its operations, including information regarding noise and dust
emitted from respondent’s facility.
“Identify each document related to this interrogatory, including but not
limited to any bill of sale or contract ofsale for each identified property.”
8. Complainants’ failure to provide complete and timely signed and sworn
responses to these requests is both a violation ofthe Board’s discovery rules and a
significant impediment to Respondent’s ability to prepare for depositions and trial.
9. In light ofthe February 28, 2003 deadline for party depositions established in
the December 4, 2002 Hearing Officer Order, Respondent requests that the Hearing
Officer issue an order on an expedited basis compelling production of Complainants’
complete responses to Boughton’s pending discovery requests by no later than February
3, 2003, the date established for the next telephonic status conference.
WHEREFORE Respondent moves the Hearing Officer to order Complainants to
serve respondent with complete, signed and sworn responses to the requests made in
Interrogatory 17 and related documents, including the “list of homes sold,” on or before
February 3, 2003.
Respectfully submitted,
Boughton Trucking and Materials, Inc.
By One ofIts Attorneys
Mark R. Ter Molen
Kevin Desharnais
Jaimy M. Levine, Esq.
Patricia F. Sharkey, Esq.
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS FILING IS SUBMITTED ON RECYCLED PAPER
.
S
CERTIFICATE OF SERVICE
Patricia F Sharkey, an attorney, hereby certifies that she caused the foregoing Notice of.
Filing and Motion for Expedited Hearing Officer Order to Compel Production ofEvidence to be
served on the Hearing Officer, Bradley Halloran, via personal delivery to the Illinois Pollution
Control Board offices at 100 West Randolph Street, Chicago, Illinois and on the parties listed
below by depositing copies of same in the U. S. Mail, postage prepaid and by sending via UPS
for Monday (January 27, 2003) delivery, on January 24, 2003.
Gina Pattermann
4439 Esquire Circle
Naperville, IL 60564
Lisa Collins
Deen Collins
4435 Esquire Circle
Naperville, IL 60564
Roger D. Rickmon
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Sixth Floor, Two Rialto Square
Joliet, IL 60432
Patricia F. Sharkey
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SS
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
GIN.APATTERMANN.
.
)
)
)
Complainants.
)
PCB 99-187
‘v.
)
~CitizenEnforcement
)
-Noise. Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC..
)
)
Respondent.
)
NOTICE OF DEPOSITION
TO:
Sieve Panermann
Panermann Builders
3447 Redwing Drive
Naperville, Illinois 60564
PLEASE TAKE NOTICE thai Boughton Trucking and Materials. Inc. (“Boughton’~).by
its attorneys. Mayer, Brown. Rowe & Maw, will take the deposition of STEVE PATTERNANN,
pursuant to 3511. Admin. Code 101.100 et seq. and the Illinois Rules of Civil Procedure on
Tuesday April 8. 2003 at 10:00 a.m.. and to be continued as necessary. at the offices of Tracy.
.lohnson. Benani & Wilson. 1 6 Nonh Chicago Street. Suite 600. .loiei, Illinois 60432. The
deposition will be taken upon oral examination pursuant to applicable rules of Illinois Civil
Procedure.
Boughion seeks to depose Sieve Panermann (“Deponent”) on all matters relating to. but
not limited to. any properly. Jot, or structure located within a one-mile radius ofrespondent’s
family, or within the River Run. .Ashhury, Rosehill Farm. Wheatland South. Clow Creek Farm.
Saddle Creek. Harmony Grove. High Meadows. Whispering Lakes. Hickory Oaks. River Bend.
or Cider Creek subdivisions, in which the Deponent. his spouse. his faniiv. or any entil
SS
controlled by the Deponent. his spouse. his family, or any entity in which the Deponent, his
spouse. or his family has an economic interest, have/has owned, occupied. leased. developed, or
otherwise had an economic interest since 1983: and al matters relating to the impacts ofnoise.
dust, or any other emissions aeged or believed to emanate from the Boughion Trucking and
Materials. Inc. facility located at 22750 West II ~ Street. Naperville, Illinois 60564. or such
properties or persons occupying such properties.
Deponent shall bring to the deposition any materials relevant to this matter including. hut
not limited to, books, papers, articles, treatises. photographs. studies. reports, samples, medical
reports, lest results, data, videotapes, recordings. notices, ists. receipts. real estate appraisals.
insurance estimates, property deeds. bills ofsale. contracts of sale. purchase agreements,
financing agreements, real estate closing documents. correspondence (including electronic
correspondence and phone records). customer lists, lists of properties sold, and any other
documents, tangible or iniangibe evidence.
BOUGHTON TRUCKING AND MATERIALS. INC.
March 23. 2003
/~
By One of Its Attorneys
~
Mark R.Ter Moen
Kevin Desharnais
Jaim~L. Hamburg
Patricia F. Sharkey
MAYER. BROWNr ROWE & MAW
1 90 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
SS
.
S
CERTIFICATE OF SERVICE
Kevin Deshantais. an attorney, certifies that a copy ofthe foregoing Notice of Deposition
was sent for delivery via UPS (Saturday Delivery) to Gina Panermann at 4439 Esquire Circle.
Napervile, Illinois 60564, via UPS (Saturday Delivery) to Steve Panerman care ofPanerman
Builders at 3447 Redwing Drive, Naperville, Illinois 60564. and by first class United States mail
to the Hearing Officer Bradley Halloran at the Illinois Pollution Control Board. Suite 11-500,
100W. Randolph Street. Chicago 60601 on March 21. 2003.
Kevin Deshamais
a
S
Before the linois Pollution Control Board
Gina Pattermaflfl,
)
Complainant/Petitioner,
\7,
Boughton
!‘taterial
Trucking
s, Inc.
and
)
)
).
)
)
)
PCB 99..~J87
)
)
)
)
)
)
)
)
)
Respondent.
)
SUBPOENA/SUBPOENA DUCES TECU1~4
TO:
Steve Pattermann
Pattermann Builders
3447 Redwing Drive
Naperville, Illinois 60564
Pursuant to Section 5(e) of the Environmental Protection Act (415 ELCS 5/5(e)
(2002)) and 35 1. Adm. Code 1 01 .622, you are ordered to attend and give testimony at the
hearing/deposition in the above-captioned matter at
____________
IO:OOa.m,on
April 8
2003
.al
Tracy, Johnson, Bertan~& Wilson
116 North Chicago Street, Suite 600
Joliet, Illinois 60432
I
You are also ordered
10
bring with you documents relevant to the matter under
consideration and designatedherein:
See documents
listed in notice.
Failure to comply with this subpoena will subject you to sanctions under 35 Ill.
Adm. Code 101.622(g), 101.800, and 101.802.
ENTER:
o&~. ~~~73
DorothyM. Gunn. Clerk
Pollution Control BOard
Date: ___________________________________
CERTIFICATE OF SERVICE
i.
i...
.
certify that on this ‘~2-!?r’ day
of ~
~
20o~
,
I caused copies ofthe SUBPOENA/SUBPOENA
DUCES TECUN to be served upon the following:
,.rnI
~-r
cv~’
~-r’rE,~,j,’~J
by depositing same in United Stales First Cass Mail, postage prepaid.
(Signature)
S
RECEIVED
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
November
13,
2001
NOV 1
3
2001
GINA PATTERMANN, LISA COLLINS and)
STATE OF IWNOJS
DEEN COLLINS,
)
Pollution Control
Board
)
Complainants,
)
v.
))
(Citizens
PCB 99-187
Enforcement
-
Noise, Air)
)
BOUGHTON TRUCKING and
)
MATERIALS,
.
)
)
Respondent.
HEARING OFFICER ORDER
A telephonic status conference was scheduled in this matter for November 8, 2001.
Complainant did not appear. Respondent indicated that settlement discussions have again
started due to complainant retaining counsel. Indeed, the joint motion to suspend the discovery
schedule, filed October 29., 2001, indicates that settlement discussions will proceed with
renewed vigor. The joint motion to suspend the discovery schedule is granted.
The parties are directed to participate in a telephonic status conference with the hearing
officer on January 10, 2002, at 2:15 p.m. The status conference must be initiated by the
complainants, but each party is nonetheless responsible for its own appearance. At the status
conference, the parties must be prepared to discuss the status of the above-captioned matter and
their readiness for hearing.
IT IS SO ORDERED.
Bradley
•
P. Halloran
~c~Qc~
‘~
~ao—
H
earing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
2
CERTIFICATE OF SERVICE
I
It is hereby certified that true copies of the foregoing order were mailed, first
class, to each ofthe following on November 13, 2001:
Jaimy M. Levine
Kevin G. Deshamais
Mark R. TerMolén
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, IL 60603
Kenneth A. Carison
Roger
D.
Rickmon
Thomas R. Wilson
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Suite 600
Joliet, IL 60432
Steven P. Kaiser, Esq.
The Law Office of Steven P. Kaiser
4711 Golf Road
Suite 700
Skokie, IL 60076
Deen Collins
Lisa Collins
4435 Esquire Circle
Naperville, IL 60564
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on November 13, 2001:
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
BradleyP. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
~EC~~VED
ILLINOIS POLLUTION CONTROL BOARD
CLE~WSA~R
- 2
CWFTCE
2002.
April 2, 2002
STATE
OF ILLINOIS
GINA PATTERMANN, LISA COLLINS
)
Pollution
Control
Board
and DEEN COLLINS,
)
)
Complainants,
)
)
v.
)
PCB99-187
)
(Citizens Enforcement
-
Noise, Air,)
BOUGHTON TRUCKING AND
)
MATERIALS,
)
)
Respondent.
)
HEARING OFFICER ORDER
A telephonic status conference was scheduled for March
25,
2002. Complainants did
not appear. It is noted that Steven P. Kaiser entered his appearance on behalf of the
complainant Gina Pattermann on October 23, 2002. Since October 23, 2002, Kaiser has failed
to appear for two of the three scheduled telephonic status conferences.
The parties are directed to participate in a telephonic status conference with the hearing
officer on April 29, 2002, at 11:15 a.m. The parties are to note the rescheduling of• the status
conference. The status conference shall be initiated by the complainants, but each party is
nonetheless responsible for its own appearance. At the status conference, the parties must be
prepared to discuss the status of the above-captioned matter and their readiness for hearing.
IT IS SO ORDERED.
Bradley P. Hal oran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100
West Randolph Street
Chicago, Illinois 60601
312.814.8914
CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoing order were mailed, first
class, to each ofthe following on April 2, 2002:
Jaimy M. Levine
Kevin G. Desharnais
Mark R. TerMolen
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, IL 60603
Kenneth A. Carison
Roger D. Rickmon
Thomas R. Wilson
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Suite 600
Joliet, IL 60432
Steven P. Kaiser, Esq.
The Law Office of Steven P. Kaiser
39 S. LaSalle Street
Suite 404
Chicago, IL 60603
Deen Collins
Lisa Collins
4435 Esquire Circle
Naperville, IL 60564
It is hereby certified that a true copy ofthe foregoing order was hand delivered to
the following on April 2, 2002:
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
BradleyP. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
S
2
.
I
RECEJ~VED
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
May23, 2002
MAY
2 3 2002
GINA PATTERMANN, LISA COLLINS
)
STATE OF IWNOIS
and DEEN COLLINS,
)
POllUtiOn Control
Board
)
Complainants,
)
)
V.
)
PCB 99-187
)
(Citizens Enforcement
-
Noise, Air,)
BOUGHTON TRUCKING AND
)
MATERIALS,
)
)
Respondent.
)
HEARING OFFICER ORDER
A telephonic status conference was scheduled for May 23, 2002. Complainants did not
appear. Respondent represented that the complainants have failed to respond to its concerns
regarding two conditions included in the complainants’ site investigation report. Respondent,
however, has requested that a discovery schedule not be set until after it discusses with the
complainant its concerns. That request is granted.
The parties are directed to participate in a telephonic status conference with the hearing
officer on June 3, 2002, at 11:00 a.m. The status conference shall be initiated by the
complainants, but each party is nonetheless responsible for its own appearance. At the status
conference, the parties must be prepared to discuss the status of the above-captioned matter and
their readiness for hearing.
IT IS SO ORDERED.
Bradley P. H’~loran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
312.814.8914
CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoing order were mailed, first
class, to each ofthe following on May 23, 2002:
Jaimy M. Levine
Kevin G. Desharnais
Mark R. TerMolen
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, IL 60603
Kenneth A. Carlson
Roger D. Rickmon
Thomas R. Wilson
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Suite 600
Joliet, IL 60432
Steven P. Kaiser, Esq.
Cohen & Kaiser
39 S. LaSalle Street
Chicago, IL 60603
Deen Collins
Lisa Collins
4435 Esquire Circle
Naperville, IL 60564
It is hereby certified that a true copy ofthe foregoing order was hand delivered to
the following on May 23, 2002:
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
.
2
.
S
S
~ ~
CE i v~ 0
ILLINOIS POLLUTION CONTROL BOARD
ci
AUG
~K’5
15
OFF~
2.002
August
15,
2002
STATE OF IWNOIS
Pollution
Control
Board
GINA PATTERMANN, LISA COLLINS
)
and DEEN COLLINS,
)
)
Complainants,
)
)
v.
)
PCB99-187
)
(Citizens Enforcement
-
Noise, Air,)
BOUGHTON TRUCKING AND
)
MATERIALS,
)
)
Respondent.
•
)
HEARING
OFFICER ORDER
A telephonic status conference was scheduled for August 8, 2002. Complainants or
their attorney did not appear. A telephonic status conference will be rescheduled as noted
below. Additionally, the complainants attorney, Steven Kaiser, filed a motion to withdrawl as
counsel on August 2, 2002. There was no objection by respondent. Kaiser’s motion to
withdrawl is granted.
The parties are directed to participate in a telephonic status conference with the hearing
officer on September 11, 2002, at 2:15 p.m. The status conference must be initiated by the
complainants, but each party is nonetheless responsible for its own appearance. At the status
conference, the parties must be prepared to discuss the status of the above-captioned matter and
their readiness for hearing. The parties are directed to submit a proposed discovery scheduled
on or before September 18, 2002.
IT IS SO ORDERED.
~
~
Bradley P. Hallora~p
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
312.814.8914
S
2
CERTIFICATE OF SERVICE
.
It is hereby certified that true copies ofthe foregoing order were mailed, first
class, to each of the following on August
15,
2002:
Jaimy M. Levine
Kevin G. Deshamais
Mark R. TerMolen
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, IL 60603
Kenneth A. Carison
Roger D. Rickmon
Thomas R. Wilson
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Suite 600
Joliet, IL 60432
Steven P. Kaiser, Esq.
Cohen & Kaiser, P.C.
39 S. LaSalle Street
Suite 404
Chicago, IL 60603
Deen Collins
Lisa Collins
4435 Esquire Circle
Naperville, IL 60564
Gina Pattermann
4439 Esquire Circle
Naperville, IL 60564
It is hereby certified that a true copy ofthe foregoing order was hand delivered to
the following on August
15,
2002:
DorothyM. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
1~Q~p.
~2O~-
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
.
~tECEIV~D
CLERR’S OFFICE
SEP 1 8 2002
ILLINOIS POLLUTION CONTROL BOARD
STATE OF IWNOIS
September 18, 2002
Pollution Control Board
GINA PATTERMANN, LISA COLLINS
)
and DEEN COLLINS,
)
)
Complainants,
)
)
v.
)
PCB99-187
)
(Citizens Enforcement
-
Noise, Air,)
BOUGHTON TRUCKING AND
)
MATERIALS,
)
)
Respondent.
)
BEARING
OFFICER ORDER
A telephonic status conference was scheduled for September 11, 2002. Complainants
did not appear. On August 2, 2002, complainants’ attorney, Steven Kaiser, filed a motion to
withdraw. On August
15,
the hearing officer granted Kaiser’s motion. In any event, since
November 8, 2001, complainants have failed to appear at five of the seven scheduled
telephonic status conferences. Any further non-appearances will be referred to the Board for
appropriate sanctions.
The parties are directed to participate in a telephonic status conference with the hearing
officer on October 10, 2002, at 2:00 p.m. The status conference must be initiated by the
complainants, but each party is nonetheless responsible for its own appearance. At the status
conference, the parties must be prepared to discuss the status of the above-captioned matter and
their readiness for hearing.
IT IS SO ORDERED.
Bradley P. HalIoran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
312.814.8914
•
2
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order were mailed, first
class, to each of the following on September 18, 2002:
Jaimy
M.
Levine
Deen
Collins
Kevin G. Deshamais
Lisa Collins
Mark R. TerMolen
4435 Esquire Circle
Mayer, Brown, Rowe & Maw
Naperville, IL 60564
190 South LaSalle Street
Chicago, IL 60603
Gina Pattermann
4439 Esquire Circle
Kenneth A. Carison
Naperville, IL 60564
Roger D. Rickmon
Thomas R. Wilson
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Suite 600
Joliet, IL 60432
It is hereby certified that a true copy ofthe foregoing order was hand delivered to
the following on September 18, 2002:
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Hallor3an
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
.
.
~.~CEiVED
CLERK’S
OFFICE
ILLINOIS POLLUTION CONTROL BOARD
DEC -4 2002
December 4,
2002
Pollutjo~
STATE OF
Control
ILLINOIS
Board
GiNA PATTERMANN, LISA COLLINS
)
and DEEN COLLINS,
)
)
Complainants,
)
)
v.
)
PCB99-187
)
(Citizens Enforcement
-
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS,
)
)
Respondent.
)
HEARING OFFICER ORDER
On November 21, 2002, a telephonic status conference was held. Complainants did not
appear at that time but called the hearing officer later. A proposed discovery schedule was
submitted by the respondent on November 12, 2002. Complainants represented that they are in
agreement with the proposed discovery schedule. To that end, the proposed discovery schedule is
accepted to the ~tent as follows: the parties must be deposed on or befoteFebruary 28, 2003; all
non-parties must be deposed on or before March 14, 2003; complainants’ opinion witnesses
disclosures must be completed on or before February 10, 2003; respondent’s opinion witnesses
disclosures must be completed on or before March 10, 2003; dispositve motions must be filed on
orbefore April 1.1, 2003. The parties are reminded that all written discovery was completed on
or before July 23, 2001.
The parties are directed to participate in a telephonic status conference with the hearing
officer on February 3, 2003, at 11:30 a.m. The status conference must be initiated by the
complainants, but each party is nonetheless responsible for its own appearance. At the status
conference, the parties must be prepared to discuss the status of the above-captioned matter and
theirreadiness for hearing.
IT IS SO ORDERED.
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
312.814.8914
.
CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoing order were mailed, first
class, to each of the following on December 4, 2002:
Jaimy M. Levine
Deen Collins
Kevin G. Deshamais
Lisa Collins
Mark R. TerMolen
4435 Esquire Circle
Mayer, Brown, Rowe & Maw
Naperville, IL 60564
190 South LaSalle Street
Chicago, JL 60603
Gina Pattermann
4439
Esquire Circle
Kenneth A. Carlson
Naperville, IL 60564
Roger D. Rickmon
Thomas R. Wilson
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Suite 600
Joliet, IL 60432
It is hereby certified that a true copy ofthe foregoing order was hand delivered to
the following on December
~,
20Q2:
.
.
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
~tQ~
~
Bradley
Hearing
P.
Officer
Halloran
k1
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
.
.
BEFORE THE
iLLiNOIS POLLUTION CONTROL BOARD
GINA PATTERMANN,
)
v.
)
Complainant,
)
)
)
BOUGHTON TRUCKING AND
MATERIALS, INC.,
Respondent.
PCBNo. 99-187
)
(Citizens Enforcement)
)
)
)
)
NOTICE OF FILING
Dated: March 5, 2003
Mark R.
Ter Molen, Esq.
Patricia F. Sharkey, Esq.
Kevin G. Deshamais, Esq.
MAYER, BROWN & PLATT
190 S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
BOUGHTON TRUCKING AND MATERIALS, rNC.
By~
CL.ERK’S OFFICE
MAR
5 2003
STATE OF ILUNOIS
Pollution
Control Board
TO:
See Attached Certificate of Service
Please take notice that
on March 5, 2003, J
filed with
the Illinois Pollution Control Board
this Notice ofFiling and Motion for Expedited Hearing Officer Order Striking Complainant’s
Witness List, copies ofwhich are attached and hereby served upon you.
One
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
.
I
~ECE~VED
CERTIFICATE OF SERVICE
CLERK’S
WAR
5
OFFICE
2003
Patricia F. Sharkey, an attorney, hereby certifies that a copy of the attached ~l&~Ec~FILLINOIS
Filing and Motion for Expedited Hearing Officer Order Striking Complainant’s
~E Ib~~~e~J°l
Board
served on the persons listed below by First Class U.S. Mail, proper postage prepaid, on March
5,
2003.
Gina Pattermann
4439
Esquire Circle
Naperville, IL 60564
Roger D. Rickmon
Tracy, Johnson, Bertani & Wilson
116 North
Chicago Street
Sixth Floor, Two Rialto Square
Joliet, IL 60432
THIS DOCUMENT HAS BEEN PRI1’~TEDON RECYCLED PAPER
.
I
BEFORE THE
iLLINOIS POLLUTION CONTROL BOARD
~L~RR’5 0~~ic~
GiNA PATTERMANN,
)
M14R
5 2003
Complainants,
)
POllUtiOfl COfltTOJ~~
v.
)
PCBNo.99-187
)
(Enforcement
-
Noise, Air, Citizens)
BOUGHTON TRUCKING AND
)
MATERIALS, iNC.,
)
)
Respondent.
)
)
MOTION FOR EXJ~E))JTED
HEARJNG OFFICER ORDER
STRIXJNG COMPLAINANT’S WITNESS
LiST
NOW
COMES Respondent, Boughton Trucking and Materials, Inc. (“Boughton”),
by its
attorneys,
Mayer,
Brown, Rowe &
Maw, and
moves
to strike the Complainant’s witness list.
In support thereof, Respondent states:
1.
Complainant’s purported witness list is not a witness list.
The Complainant has tendered a one-hundred-person “witness list” that is vague,
cumulative,
and
lacks sufficient information to allow Respondent to determine the nature of the
testimony the witness
would
provide. (See Attachment I hereto.) In fact, the document
Complainant has produced is not a “witness list.” At most, it is a list of potential witnesses,
leaving Respondent to guess which witnesses
the Complainant will
actually call at hearing.
Under the Federal Rules of Civil Procedure, exchanging witness lists is intended to
“discourage wasteful pretrial activities,” “improve the quality of the trial through more
thorough preparation,” and “facilitateeJ the settlement of the case.” FED. R. Civ. P.
16(a).
Managing a hearing through
the exchange of witness lists serves to avoid prolonged proceedings
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
I
and the presentation ofcumulative evidence.
Id.
The one hundred person “witness list” tendered
by
Complainant is designed to do just the opposite.
The Hearing Officer has the authority and duty to prevent this abusive discovery tactic
and efficiently manage this proceeding. ILL. ADMIN. CODE tit.
35,
§ 101 .610 (2003). In a case
involving a similarly lengthy and unrealistic witness list, the Board Hearing Officer granted a
motion to strike a complainant’s witness list stating:
“It is generally accepted that a witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the
matter. ( See Federal Rules of Evidence, Rule
602). Due to the number of witnesses listed by Complainants and at least
one instance where the
witness on deposition does not appear
to have any
personal knowedge of the matter (Joanna 1-loelscher), it is impossible to
ascertain which witnesses actually have any personal knowledge of the
matter and would be competent to testify on behalf of Complainants.”
International Union v. Caterpillar. Inc., PCB 94-240 (Hearing Officer
Order, April 21,
1995).
(Attachment 2 hereto.)
In this case, Respondent faces the same impossibility of ascertaining actual witnesses.
The Hearing
Officer
should
exercise his authority in this case by striking Complainant’s witness
list and
limiting Complainant’s witnesses to persons who can be
demonstrated to have actual
knowledge of the matters at issue and that have been or can be identified consistent with the
discovery rules and schedule.
2.
Complainant cannol
identify new witnesses Ihat should have been identified
in response to interrogatories.
Complainant failed to identify ninety-seven
of
these purported witnesses in response to
Respondent’s interrogatories. Those interrogatories asked not only for witnesses but for the
identification of persons with knowledge of the alleged impacts. See Respondent’s First Set of
Inierrogatories to Complainants, Interrogatories 12
-
16. ( See Attachment 3 hereto.) In response,
Complainant identified only three witnesses she intended to call at trial: Bill Jene, Carene
Jenkins, and Lisa Collins.
Answer to Boughlon’s First Set of Interrogatories, Answer
-2-
THIs DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
•1
Interrogatory 13. (See Attachment 4 hereto.)
Complainant’s statement in her response that she
“cannot identify each and every witness that I will call for trial,” does not excuse her from
answering interrogatories fully based on a diligent investigation of
the facts underlying her case
at the time. A review of the October 2000 River Run Directory demonstrates that the disclosed
witnesses are not individuals who have recently become known to the Complainant; rather, the
great majority of these individuals were listed as residents of River Run in the 2000 river Run
Directory and should have been known to the Complainant at that time. If Complainant failed to
make a diligent inquiry to identify witnesses at the time that she filed her complaint and before
filing her interrogatory responses, she cannot be allowed to pack her list with potential witnesses
at this late date.
3.
Complainant failed to supplement her inlerrogaton’ responses
and has made
no demonstration that ihe ninety-seven newly ideniified witnesses will testify
to informalion thai was unavailable before this
time.
Complainant was also under a duty to seasonably supplement her responses, which she
failed to do. FED. R. Civ. P. 26(e). The Federal Rules provide that “a party who has made a
disclosure
. . .
or responded to a request for discovery
. . .
is under a duty to supplement or
correct the disclosure or response to include information thereafter acquired
.
...“
FED. R. Civ.
P. 26(e). This duty arises when a party “learns that the response is in some material respect
incomplete or incorrect and if the additional or corrective information has not otherwise been
made known
to
the
other parties
during the discovery process or in writing.” FED. R. Civ. P.
26(e)(2). Unless Complainant can demonstrate that the most recent witness disclosures are the
result of new information or circumstances, Complainant’s attempt to increase her witness list
from three to one hundred potential witnesses at this late date must be barred.
-3-
THIS DOCUMENT HAs BEEN PRINTED ON RECYCLED PAPER
••
4.
Respoldent is unable to prepare for hearing because the information
contained in Complainant’s 1)urporled witness list is vague, cumulative, and
late.
Finally, Complainant’s single statement of what all one hundred witnesses will attest to
(“how Respondent’s actions affect their daily lives”) is vague and suggests that the testimony
will be repetitive. The extremely vague description of the purported witness testimony suggests
that Complainant herself may not know what these individuals would attest to. To call one
hundred of these purported witnesses would constitute “unnecessary proof and
. . .
cumulative
evidence” and waste Respondent’s — as well as this Tribunal’s — time and resources. To put
Respondent in the position of having to depose all one hundred potential witnesses, i.e. witnesses
Complainant
may or may not call, is an abusive discovery tactic which should not be allowed.
Complainant
was also required to provide “the name and
.
.
.
the address and telephone
number of each witness,
separately identifying those
whom the party expects to present and
those whom the party may call if the need arises.” FED. R. Civ. P. 26(a)(3)(A). In this case, the
Complainant has only provided names and addresses and has not distinguished witnesses from
potential witnesses.
Although the Board may allow citizens who are unrepresented by counsel more latitude
in procedural matters, the Complainant in this case is an attorney and should be held to diligently
comply with discovery deadlines and standards. After Complainant has dragged her feet for two
years after
the written discovery deadline, Respondent should not now be faced with the
extremely expensive, if not impossible, task of preparing a defense based on a list ofone hundred
“potential” witnesses that is cumulative, is missing key information, and is submitted a month
before the deposition deadline.
WHEREFORE, for the reasons stated in this motion, Respondent respectfully requests
that the Hearing Officer expeditiously enter an order granting the following relief:
-4-
THIs DOCUMENT HAS BEEN PRiNTED ON RECYCLED PAPER
•
(a) Limit Complainant’s witness list to those individuals identified in her interrogatory
responses and any additional witnesses whom she can demonstrate have actual
knowledge and could not have been identified based upon a diligent inquiry before this
date;
(b) Require Complainant to state with specificity what each witness will attest to;
(c) Limit the Complainant’s witness list to non-repetitive testimony;
(d) Require the Complainant to identify those ifidividuals she plans to call as witnesses in
her case in chief and those she will call only if needed;
(e) Require Complainant to
bear Respondent’s costs
in deposing any witnesses identified
for her case in chiefthat she fails to call as a witness at trial; and
(f) Any other relief the Hearing Officer deems appropriate.
Dated: March 5, 2003
Respectfully submitted,
BOUGHTON TRUCKING AND
MATERIALS, INC.
By:_______________
On~oflt~Attorneys
)
Mark R. Ter Molen
Patricia F. Sharkey
Kevin Desharnais
MAYER, BROWN, ROWE & MAW
190 South LaSalle Street
Chicago, IL 60603-3441
(312)782-0600
-5-
THIS DOCUMENT HAs BEEN PRINTED ON RECYCLED PAPER
•
I
RECEIVED
CLERcS
OFF1CF
ILLINOIS POLLUTION CONTROL BOARD
April2, 2003
APR
-
2 2003
GINA PATTERMANN,
P°”ut’onControl Board
Complainant,
)
)
v.
) PCB99-187
)
(Citizens Enforcement
-
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS,
)
)
Respondent.
)
HEARING OFFICER ORDER
On March 17, 2003, and again on March 27, 2003, telephonic conferences were held in
this matter. At the conferences, the status ofthe matter was discussed and the hearing officer
made rulings on the outstanding motions.
On March
5,
2003, respondent filed a motion for expedited hearing officer order 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 orally responded to the motion at the March 17, 2003,
telephonic conference.
In the motion, respondent argues that 97 of the witnesses recently disclosed were not
included in the answers to respondent’s interrogatories served on or before July 23, 2001.
Respondent also argues that the witness list is vague, cumulative and lacks sufficient information
to allow respondent to determine the nature of the testimony the witnesses would provide. At the
March 17, 2003, conference, complainant orally argued that she did not know of~nyadditional
witnesses at the time she answered the interrogatories and that she seasonably supplemented the
answer with the recent disclosure of the 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 hearing officer
agreed. By waiting over a year and a halfto disclose 97 additional witnesses, the hearing officer
found that complainant’s disclosure was not reasonable norwas it seasonable. The hearing
officer also found that the subject oftheir testimony was vague. Complainant did not indicate
that these witnesses had personal knowledge ofthe contested matter only that “the following
persons shall testify 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 testify as
complainant’s witness at the hearing. Complainant represented that she intends to call Donald
•2
Boudreau as her additional witness. To that end, respondent’s motion was granted in part and
denied in part.
Also at the March 17, 2003, conference, the hearing officer stated that pursuant to Section
101.628 ofthe Board’s procedural rules, written statements may be submitted at the hearing by
the recently disclosed witnesses as participants 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 orbefore 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 hearing regarding the loss ofvaluation allegation on any house
built by Patterson Builders other than the house she presently lives 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 completed on or before May 2, 2003.
At the March 27, 2003, conference, the hearing officer addressed 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 participants pursuant to Section 101. 628 ofthe Board’s procedural rules
would circumvent modem rules ofdiscovery. Complainant responded that the Act permits such
written statements.
The hearing officer found that the plain language of Section 101 .628 clearly allows for
statements from participants regardless of intervening actions or events. Respondent’s motion
was denied.
The hearing officer also directed that complainant serve on the respondent any additional
reports that her expert may have generated on or before April 3, 2003. Reports not turned over
on or before April 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 oftheir
respective experts reports, all dispositive motions must be filed on orbefore May 30, 2003.
The parties are directed to participate in a telephonic status conference with the hearing
officer 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
their readiness for hearing.
.
3
IT IS SO ORDERED.
J~:L~Q~2
BradleyP. Hallor~n
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
3 12.814.89.14
I
I
•
4
•
CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoing order were mailed, first
class, to each ofthe following on April 2, 2003:
Jaimy M. Levine
Deen Collins
Kevin G. Desharnais
Lisa Collins
Mark R. TerMolen
4435 Esquire Circle
Patricia 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, Bertani & Wilson
116 North Chicago Street
Suite 600
Joliet, IL 60432
It is hereby certified that a true copy ofthe foregoing order was hand delivered’ to
the following on April 2, 2003:
DorothyM. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
~cO’( ~
BradleyP. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
MAYER, BROWN, ROWE& MAW
~O SOUTH LA SALLE STREET
CHICAGO. ILLINOIS
6Q6O3-3~4
I
• PATRICLA F. SHARXEY
D;~tc~DIAL
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PSharlcey©mayerbrownrowe .com
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.~,I2i ?C’I~77I I
Gina Pariermann
4439 Esquire Circle
Napervilie. Illinois 60564
Re:
Witness Disclosures
Dear Ms. Panermann:
March 2). 2003
As of 5:00 p.m. today.
we
have not received a discosure of the names. addresses. or
phone numbers of your witnesses in ihis matter or the scope of their testimony. In particular.
you never
provided
the address of Lisa Collins. who we have been unable to reach by mail in the
past due to the fact thai she moved. We aso were not provided with an address for Mr.
Boudreau. your newly named witness.
As the Hearing Officer in our March 1 7th status conference ordered thai al deposiiions be
noticed ioday.
we have made an anempi 10 notify your witnesses at the addresses that may or
may noi be correct. Copies of these notices are included herein. We must assume that you will
assure your witnesses receive copies of these notices.
We
again request
that you provide full
written disclosure as io these witnesses.
cc:
Bradley Haloran. Hearin~Officer
ErL~e~Cb~rlotEChicaco Coloori? F;~nkiur~
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Lo~Ano?ie~M~riche~erNew’ York Palo ARc ~rj~ ~hIr~o!on.DC
Irdependert ~ic~C~v Coi.e~pondenI:Jaure~uLNav&r~ete.N~cryRoles, S.C.
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at~o~
CERTIFICATE OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy ofthe attached Notice of
Filing, Motion for Discovery Sanctions and Affidavit ofAttorney was served on the persons
listed below by First Class U.S. Mail, proper postage prepaid, on May 23, 2003.
Gina Pattermann
4439 Esquire Circle
Naperville, IL 60564
Roger D. Rickmon
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Sixth Floor, Two Rialto Square
Joliet, IL 60432
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
