BEFORE THE
RECEJIV~D
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
JUN 1 7 2003
GINA PATTERMANN,
))
STATE OF IWNOIS
Complainant,
)
Pollution Control Board
)
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 June 17, 2003, I filed with the Illinois Pollution Control Board
this Notice ofFiling, Reply to Plaintiff’s Response to Motion for Discovery Sanctions, and
Affidavit ofAttorney, copies of which are attached and hereby served upon you.
Dated: June 17, 2003
BOUGHTON TRUCKING AND MATERIALS, INC.
By:____
One o its Attorneys
Mark R. Ter Molen, Esq.
Patricia F. Sharkey, Esq.
Kevin G. Desharnais, Esq.
MAYER, BROWN, ROWE & MAW
190 S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
1
ILLINOIS POLLUTION CONTROL BOARD
CLERK~
OFFICE
GINAPATTERMANN,
)
STATE
JUN
OF
172
ILLINOIS
Complainant,
)
PCB 99-187
Pollution Control Board
v.
)
(Noise, Air)
)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
REPLY TO PLAINTIFF’S
RESPONSE
TO MOTION FOR DISCOVERY SANCTIONS
NOW COMES Respondent, Boughton Trucking and Material, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe & Maw, and replies to Plaintiff’s Response to Boughton’s
Motion for Sanctions as follows:
1.
The retaining of a new lawyer does not rewrite history. Nor does it restart the
clock. The Plaintiff— herself a lawyer
--
is now on her third lawyer in this case. At this time,
discovery is closed and Plaintiff’s lawyers must take this case as they find it. Plaintiff failed to
retain her purported expert witness within the discovery deadlines and thus he could not be
deposed. As such, Mr. Zak’s testimony at trial must be barred even if the Board imposes no other
sanction in this case.
2.
While Plaintiff’s new attorneys now representthat Plaintiff’s expert, Mr. Greg
Zak ofNoise Solutions by Greg Zak, has been retained, they provide no evidence ofthat fact.
“Facts asserted that are not of record in the proceeding must be supported by oath, affidavit or
certification.” 35 Iii. Adm. Code 101.504. Plaintiff’s response was accompanied by neither a
contract nor an oath, affidavit or certification As such, Plaintiff’s allegation is insufficient as a
matter oflaw and should be striken from the record.
THIS DOCUNENT
HAS
BEEN PRINTED ON RECYCLED PAPER
2
3.
Not only is this alleged retention ofMr. Zak unsupported, it is also very late. For
the first time since Plaintiff failed to provide this witness on April 23, 2003 and a full forty-five
days after the close ofthe oral discovery deadline, Plaintiff now asks that the Board remedy her
failure to retain her own expert witness for a duly noticed deposition (or at any other time before
the close of discovery) by allowing this witness to be deposed now. In addition to failing to
provide evidence that she has
infact
finally retained her purported expert witness, she has also
failed to supply the Board with any other legitimate excuse or good cause for her failure to do so
within the ordered discovery deadline
--
one ofnumerous deadlines she has disregarded. (See
discussion in Motion for Sanctions.)
Plaintiff blithely refers to her failure to provide her expert for deposition as “the evident
result ofconfusion regarding payment...” and the result ofa “lack ofclarity.” In fact, on the day
ofthe deposition, Mr. Zak was not unclear
--
he told both the Hearing Officer and Respondent’s
attorney that he had not been retained.1 Confusion? Lack ofclarity? Ifso, it was confusion and a
lack of clarity created by Respondent. Most tellingly, Plaintiff provides no evidence that she took
any affirmative steps to make sure that her witness wasn’t confused, was retained, and would, in
fact, attend his deposition.
4.
Contrary to Plaintiff’s argument, it is Plaintiff’s responsibility to assure the
attendance ofher own witnesses at a deposition
—
not the Respondent’s. Plaintiff now argues that
After waiting approximately one hour for Mr. Zak to appear and having called his
attorney, Ms. Pattermann, three times and left messages without receiving a response,
Respondent’s attorney, Patricia Sharkey, called Mr. Zak’s office to determine if he was on route.
Mr. Zak answered the phone and explained that, although he received the deposition notice, he
had not planned on attending because Ms. Pattermann had not retained him to do so. Ms.
Sharkey asked Mr. Zak to stay on the line while she made an effort to get guidance on how to
proceed with this from the Hearing Officer. Upon getting the Hearing Officer’s message
machine, Mr. Zak left a message forthe Hearing Officer stating the same.
3
Respondent should have done more to assure Mr. Zak’s attendance at the deposition. In fact,
Respondent did more than is required by law and more than Plaintiff herself. Although she was
cc’d on a letter from Mr. Zak dated March 26, 2003 (Exhibit 3 to the Motion for Sanctions), it
was Respondent that brought the issue ofMr. Zak’s retention before the Hearing Officer at the
March 27, 2003 telephonic status conference and asked that the Hearing Officer make it clear
that it was Plaintiff’s duty to retain her expert witness
—
which he did. Two weeks before the
deposition date, on April 8, 2003, Respondent’s attorney also asked Plaintiff to confirm her
expert’s attendance at the deposition. Plaintiffstated she thoughthe would be there. Plaintiff
doesn’t deny any ofthese facts in her Response. Yet Plaintiff now suggests that Respondent
should have done more
—
while she apparently did nothing.
The duty to retain her expert and assure his presence at his duly noticed deposition or
otherwise inform the Respondent, was Plaintiff’s duty, she knew it and she simply didn’t take it
seriously. This is both negligence and bad faith. In the March 27, 2003 telephonic status
conference, Plaintiff told the Hearing Officer that she understood it was her responsibility to
retain her expert witness. Yet, to read Plaintiff’s response to this motion, it appears that Plaintiff
still
presumes it was the Respondent that was responsible for assuring Plaintiff’s witness’
attendance at his deposition.
5.
The appropriate sanction for failure to provide a witness at a deposition within the
oral discovery deadline is barring ofthe witness. This sanction is both clearly within the Board’s
authority and tailored to the harm. Section 101.800(b) states: “If any person unreasonably fails to
comply with any provision of 35 Iii. Admin. code 101 —130 or any order entered by the Board or
the Hearing Officer
...
the Board may order sanctions.. .b) Sanctions include the following
. .
.6)
4
the witness may be barred from testifying concerning that issue.” Barring ofMr. Zak as a witness
directly addresses the prejudice to the Respondent and the moves the case forward.
The only case that Plaintiff cites in its response does not support its argument. In Tinsey
v. Chicago Transit Authority, (App. 1 Dist. 1986) 140 Ill. app~3d 546, 488 NE 2d 1301, the
Appellate Court found that the trial court erred in ordering a new trial as a sanction for failure to
provide complete discovery responses. The Tinsey court found that the sanction ofa new trial
was “far out of proportion.” Id. 1304. In contrast, the sanction requested in this case is tailored to
the prejudice and is neither over-arching nor particularly severe. In other cases, Illinois Courts
have found patterns ofdiscovery abuse, as are present in this case, may be sanctioned far more
severely. John Mathes & Associates, Inc. v. Noel, (App.
5
Dist. 1981) 94 Ill. App. 3d 588, 418
NE 2d 1104 (Defaultjudgment was appropriate for severe pattern ofdiscovery abuse, including
failure to provide witness for deposition.) Absent the exercise ofthis appropriate sanction, the
Board opens the door for the continuing abuse of the procedures in this case and future cases.
Moreover, if, as Plaintiff argues, the Board lacks the authority to impose monetary sanctions,
then the one sanction available for the pattern ofdiscovery abuses and costly negligence Plaintiff
has displayed in this case and the prejudice created for Respondent is to bar Mr. Zak’s testimony
and allow this case to proceed without further delay.
6.
Pattermann’s new attorneys misrepresent the Hearing Officer’s April 2, 2003
ruling. The Hearing Officer definitely limited Plaintiff’s witnesses after she filed a 100 person
witness list. While other participants may make statements at the hearing, Plaintiff’s witnesses
are limited to those allowed by the Hearing Officer’s Order and whose testimony has been
subject to discovery in the established discovery period. The Hearing Officer Order ofApril 2,
2003 states:
5
“By waiting over a year and a halfto disclose 97 additional witnesses, the hearing
officer found that complainant’s disclosure was not reasonable or seasonable. The
hearing officer also found that the subject of their testimony was vague... The
hearing officer, however, allowed complainant to select one witness from the
disclosure list to testify as complainant’s witness at the hearing. Complainant
represented that she intended to call Donald Boudreau as her additional witness.
To that end, respondent’s motion was granted in part and denied in part.”
As a result ofthat ruling, Plaintiff was limited to the four previously disclosed witnesses
(including Mr. Zak) and one newwitness, Mr. Boudreau.
In that same Order, the Hearing Officer also ruled that “all depositions must be
completed on or before May 2, 2003.” Although Respondent’s attorney left phone messages for
Plaintiff at each ofher three different phone numbers on April 23, 2003, trying to determine if
Mr. Zak would appear, Plaintiff never called her back and never offered to make Mr. Zak
available until now
—45
days after the close of the oral discovery period and after Respondent’s
have had to go to the expense ofmoving for sanctions. Plaintiff provided no evidence that Mr.
Zak had been retained during the remainder ofthe oral discovery period, and, even now, we have
no evidence that Mr. Zak has been retained.
7.
Respondenthas already been seriously prejudiced by the on-going pattern of
negligence and harassing litigation tactics employed by Plaintiff in this case. The attorneys fees
and cost information provided by Respondent with its Motion document just some ofthe costs
Respondent has incurred due to Plaintiff’s negligence and bad faith. Plaintiff’s failure to assure
her own expert witness’ retention for his deposition, while telling both the Hearing Officer and
Respondent that she had done so, is just one of the many abuses ofthe Board’s rules that
Respondent has endured. The sanction requested is a just and necessary response to Plaintiff’s
actions. This case is ready to proceed to judgment and any further delay and cost to Respondent
is unwarranted. After two and a half years ofdelay in this occasionally prosecuted case, the
6
Respondent’s should not be subjected to additional costs and delay to accommodate Plaintiff’s
negligent disregard ofthe rules ofprocedure and the Hearing Officer’s orders.
WHEREFORE, Respondent reiterates its request that the Board bar the testimony of
Greg Zak and also bar any other witnesses, pleadings, or documents pertaining to the subject
matter ofMr. Zak’s testimony, i.e. regulatory violations and possible modifications to
Respondent’s facility, 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 LaSalle Street
Chicago, IL 60603
312-782-0600
Attorney Registration No. 6181113
STATE OF ILLINOIS
COUNTY OF COOK
)
)
SS
)
R~~~VED
CLERK’S OFFICE
JUN 1 7 2003
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 Reply to Plaintiff’s Response to Motion for Discovery
Sanctions, certifies her knowledge and belief that the allegations contained in this Reply to
Plaintiff’s Response to Motion for Discovery Sanctions, are true in substance and in fact.
PAT~E.’~~Y
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 ofIllinois, on this 17th day of
June, 2003, in order to affix her signature as her free and voluntary act.
a~z~
Notary
~
Public
Patricia F. Sharkey
Attorney forRespondents
Mayer, Brown, Rowe & Maw
190 South LaS alle Street
Chicago, Illinois 60603
312-782-0600
Annette Kaye ChatmOn
Notary Public, State of Illinois ~
mi~onExP.04/2~~
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy ofthe attached Notice of
Filing, Reply to Plaintiff’s Response to Motion for Discovery Sanctions, and Affidavit of
Attorney was served on the persons listed below by same Day Delivery or Overnight Delivery
service, as indicated below on June 17, 2003.
Bradley Halloran
Illinois Pollution Control Board
100 West Randolph Street
Chicago, IL 60601
(same Day Delivery)
Gina Pattermann
4439 Esquire Circle
Naperville, IL 60564
(Overnight Delivery)
Roger D. Rickmon
Tracy, Johnson, Bertani & Wilson
116 North Chicago Street
Sixth Floor, Two Rialto Square
Joliet, IL 60432
(Overnight Delivery)
Michael S. Blazer
Matthew E. Cohn
The JeffDiver Group, LLC
1749 S. Naperville Road, Suite #102
Wheaton, IL 60187
(Overnight Delivery)
1~ti~icidF. Sharkey
Patricia F. Sharkey
Attorney for Respondents
Mayer, Brown, Rowe & Maw
190 South LaS alle Street
Chicago, Illinois 60603
312-782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER