ILLINOIS POLLUTION CONTROL BOARD
August 7, 2003
GINA PATTERMANN,
Complainant,
v.
BOUGHTON TRUCKING AND
MATERIALS, INC.,
Respondent.
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PCB 99-187
(Citizens Enforcement - Noise, Air)
ORDER OF THE BOARD (by N. J. Melas):
On May 23, 2003, respondent Boughton Trucking and Materials, Inc., (Boughton) filed a
motion for discovery sanctions against the complainant in this proceeding, Ms. Gina Patterman
(Mot.). Ms. Patterman filed this citizens’ enforcement complaint against Boughton on June 17,
1999, alleging noise and air pollution violations. On June 10, 2003, Ms. Patterman filed a
response to the motion for discovery sanctions (Resp.). Boughton replied to Ms. Patterman’s
response on June 20, 2003 (Reply). The Boughton facility is a stone quarry that produces
crushed stone, located at 11746 South Naperville Plainfield Road in Plainfield, Will County.
For the following reasons, the Board grants Boughton’s motion for discovery sanctions in
part and denies the motion in part. The Board bars Mr. Zak from testifying at hearing regarding
Boughton’s noncompliance with Illinois Environmental Protection Agency (Agency) regulations
and possible modifications to Boughton’s facility. However, the Board does not bar any other
witnesses, pleadings, or documents pertaining to the subject matter of Mr. Zak’s proposed
testimony, nor does the Board award Boughton attorney fees.
BACKGROUND
Boughton alleges that Ms. Patterman represented she had retained Mr. Greg Zak as an
expert witness to testify at hearing. Mot. at 2. Boughton issued Mr. Zak a subpoena and sent
him a notice of deposition for April 23, 2003.
Id
. In response, Mr. Zak sent Boughton a
contract stating the fee for his services. Boughton informed Ms. Patterman and Board hearing
officer Brad Halloran of the alleged erroneous billing. Mot. at 2. Boughton alleges that in a
telephonic status conference with all three parties on March 27, 2003, Ms. Patterman stated she
understood her responsibility to retain her expert witness.
Id
.
Boughton deposed Ms. Patterman on April 8, 2003. Mot. at 2. At the deposition,
Boughton claims that its attorney asked Ms. Patterman to confirm that Mr. Zak would attend his
deposition and Ms. Patterman stated she thought Mr. Zak would be there.
Id
.
On April 23, 2003, Mr. Zak did not appear at his scheduled deposition with Boughton.
Mot. at 3. Boughton contacted Mr. Zak by telephone who responded that he had not been
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retained by Ms. Patterman. Boughton and Mr. Zak left a voice mail message to this effect for
hearing officer Halloran.
Id
.
Ms. Patterman claims that she has retained Mr. Zak as a noise expert witness and that she
is prepared to compensate him for his services. Resp. at 2. However, Ms. Patterman did not
support these facts with a signed affidavit.
APPLICABLE REGULATIONS
Under Section 101.800(b), the Board will order sanctions when a party fails to comply
with procedural rules, board orders or hearing officer orders. 35 Ill. Adm. Code 101.800(b).
Sanctions can include barring the offender from filing pleadings or documents related to any
issue to which the refusal or failure relates. 35 Ill. Adm. Code 101.800(b)(2). The Board may
also bar a witness from testifying concerning that issue. 35 Ill. Adm. Code 101.800(b)(6).
In deciding what sanction to impose, the Board must consider four factors:
The relative severity of the refusal or failure to comply; the past history of the
proceeding; the degree to which the proceeding has been delayed or predjudiced;
and the existence or absence of bad faith on the part of the offending party or
person. 35 Ill. Adm. Code 101.800(c).
BOUGHTON’S ARGUMENTS
Boughton requests the Board to bar Mr. Zak as a witness and bar any additional
witnesses, pleadings, or documents pertaining to the subject matter of his testimony. Mot. at 5,
9. Boughton also asks the Board to award Boughton attorney fees attributable to Ms.
Patterman’s abuse of discovery process in the amount of $19,520.25. Mot. Exh. 4.
Boughton argues that Ms. Patterman’s assertion that she has retained Mr. Zak was
unsupported by an affidavit as required by Section 101.504 of the Board rules, and therefore,
insufficient as a matter of law. Reply at 1; citing 35 Ill. Adm. Code 101.504.
Boughton further argues that Ms. Patterman’s alleged retention is late. Reply at 2.Board
hearing officer Brad Halloran ordered the parties to complete all depositions by May 2, 2003.
Mr. Zak’s deposition was scheduled for April 23, 2003. Ms. Patterman did not seek to remedy
her failure to provide Mr. Zak for deposition until she filed the response on June 10, 2003.
Reply at 5.
Boughton argues that in this instance sanctions are warranted due to Ms. Patterman’s
negligence and abuse of Board procedural rules. Boughton contends that Ms. Patterman’s
history of abuse of the discovery process in this proceeding warrants sanctions. Mot. at 5-6.
Boughton argues that Ms. Patterman refused to produce a document identified in her
interrogatory responses pertaining to property values in the subdivision allegedly impacted by
Boughton’s operations. Mot. at 6. Boughton filed a motion to compel production of the
document and Ms. Patterman claimed her husband from whom she had recently separated
possessed the document. Boughton subpoenaed Mr. Patterman for the document and he failed to
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appear at the deposition and failed to provide the subpoenaed document. Boughton argues that
Ms. Patterman has failed to appear at least six status conferences set by hearing officer order.
Boughton further argues that Ms. Patterman failed to provide addresses or phone numbers for
two of her four witnesses that has caused Boughton significant delay in proceeding with
discovery.
Boughton argues that Ms. Patterman also exhibited bad faith. Mot. at 10. Boughton
opines that Ms. Patterman knew she had not retained Mr. Zak at the time she identified him as
her witness. If not intentional, Boughton argues that causing Boughton to incur the expenses
associated with preparing for and traveling to a deposition where the deponent did not appear
was clearly negligent. Mot. at 11. Boughton contends that Ms. Patterman knew she did not
retain Mr. Zak and neglected to inform Boughton.
Boughton argues that for all of these reasons, sanctions against Ms. Patterman are
warranted.
PATTERMAN’S RESPONSE
Ms. Patterman’s responds that Boughton has not established prejudice resulting from the
delay in discovery, has not shown any bad faith on the part of Ms. Patterman. Resp. at 3-4. Ms.
Patterman admits that there was a lack of clarity surrounding Mr. Zak’s attendance at the
deposition scheduled for April 23, 2003. Ms. Patterman states she merely
thought
that Mr. Zak
would attend the deposition and that Boughton should have confirmed Mr. Zak’s attendance
before preparing for a deposition that was not certain to occur.
Id
.
Ms. Patterman also contends that she has officially retained Mr. Zak. Resp. at 3. Ms.
Patterman argues that Boughton’s contentions of bad faith are merely “unsubstantiated
speculation.” Resp. at 4. Ms. Patterman argues the solution is to take Mr. Zak’s deposition, not
bar his testimony.
Id
.
Ms. Patterman also contends that the attorney fees Boughton seeks for the cancelled
deposition are unreasonable. Resp. at 4. Ms. Patterman argues the Board procedural rules do
not allow the Board to monetarily sanction the offending party. Resp. at 5; citing Revision of the
Board’s Procedural Rules: 35 Ill. Adm Code 101-130, R00-20, slip op. at 7 (Dec. 21, 2000). Ms.
Patterman further asserts that Boughton provided no breakdown of costs or other method for
determining the reasonableness of the amounts sought. Ms. Patterman does concede, however,
that Boughton may be arguably entitled to costs for travel to and attendance at the cancelled
deposition.
DISCUSSION
In assessing whether sanctions are warranted, the Board must determine if Ms. Patterman
violated a hearing officer order, board order, or procedural rule, including any subpoena issued
by the Board. 35 Ill. Adm. Code 101.800(a). The Board must also consider the relative severity
of the refusal or failure to comply, the past history of the proceeding, the degree to which the
proceeding has been delayed or prejudiced, and the existence or absence of bad faith on the part
of the offending party. The goal of imposing discovery sanctions is to promote discovery, not
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necessarily to punish. IEPA v. Celotex Corp., 168 Ill. App. 3d 592, 522 N.E.2d 888 (3rd Dist.
1988).
The Board finds Ms. Patterman’s conduct has amounted to an abuse of discovery and
grants Boughton’s motion for discovery sanctions in part. Under Section 101.616(f), failure to
comply with any order regarding discovery may subject the offending persons to sanctions. 35
Ill. Adm. Code 101.616(f). Here, Mr. Zak did not appear at his scheduled deposition because
Ms. Patterman had not retained him. Ms. Patterman does not dispute these facts. In addition, the
hearing officer ordered that the parties complete all depositions by May 2, 2003. By not making
Mr. Zak available at his scheduled deposition or any other time before May 2, 2003, Ms.
Patterman did not comply with the hearing officer’s order to complete all depositions by a time
certain. In addition, Ms. Patterman prevented Boughton from completing any discovery
deposition of her expert noise witness. Ms. Patterman has violated several hearing officer orders
in the past by not appearing at status meetings and by not producing a document subpoenaed by
Boughton. The Board finds that Ms. Patterman’s conduct amounts to an abuse of the discovery
process.
The Board will not grant Boughton’s motion to bar the testimony of any other witnesses,
pleadings, or documents pertaining to the subject matter of Mr. Zak’s proposed testimony.
However, the Board notes that the current discovery schedule set by the parties together with the
hearing officer ordered all depositions completed by May 2, 2003, and all dispositive motions
filed on or before May 30, 2003.
Regarding attorney fees, the appellate court has held that the Board has no authority to
award attorney fees as a sanction. ESG Watts, Inc. v. PCB, 286 Ill. App. 3d 325, 337-338, 676
N.E.2d 299, 307-08 (3d Dist. 1997);
see
Revision of the Board's Procedural Rules: 35 Ill. Adm.
Code 101-130, R00-20, slip op. at 7 (Dec. 21, 2000). Accordingly, the Board denies Boughton’s
motion for attorney fees.
CONCLUSION
The Board grants Boughton’s motion for discovery sanctions in part and denies the
motion in part. The Board bars Mr. Greg Zak’s testimony at hearing, but denies Boughton’s
motion to bar any other witnesses, pleadings, or documents pertaining to the subject matter of
Mr. Zak’s proposed testimony. The Board also denies Boughton’s motion for attorney fees. The
Board finds the sanction it imposes today is appropriate to remedy the abuse of the discovery
process the Board finds today and to promote timely discovery in the future.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on August 7, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
