BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLiNOIS,
)
AUG
1
82003
Complainants,
)
STATE OF ILLINOIS
)
PCB # 0107
Pollution
Control Board
vs.
)
(Enforcement-Air)
)
QC FrNTSHERS, INC., an Illinois Corporation,)
Respondent.
)
NOTICE OF FILING
To:
Ms. Paula Becker Wheeler
Assistant Attorney General
Office ofthe Attorney General
188 West Randolph Street, 20th Floor
Chicago, Illinois
60601
Mr. Bradley Halloran
Hearing Officer
Illinois Pollution ControlBoard
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois
60601
PLEASE TAKE NOTICE
that
I have today filed with the persons listed above a copy of
RESPONDENT!S RESPONSE TO MOTION TO QUASH SUBPOENA
on behalf of
QC
Finishers, Inc.,
a copy ofwhich is hereby served upon you.
Respectfully submitted,
HeidiE. Hanson
Dated
August
15,
2003
Heidi E. Hanson
H. E. Hanson, Esq. P.C.
4721
FranidinAve, Suite 1500
Western Springs, IL
60558-1720
(708) 784-0624
V
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLiNOIS,
)
)
Complainants,
)
)
PCB#01-07
vs.
)
(Enforcement-Air)
)
QC FINISHERS, INC., an Illinois Corporation,)
)
Respondent.
)
RESPONDENT’S RESPONSE
TO MOTION
TO QUASH
SUBPOENA
NOW COIvIES Respondent,
QC Finishers, Inc. by and through its attorney, H. E.
HANSON ESQ. P.C. and for its RESPONSE TO MOTION TO QUASH SUBPOENA
states as follows:
1.
On July
25,
2003 Complainant filed a Motion to Quash a subpoena for
deposition directed to Ms. Crystal Myers-Wilkins.
2.
Pursuant to the July
17, 2003 Hearing Officer order in this case the date for
filing a response to that Motion was extended until August
15,
2003.
3.
Ms. Myers-Wilkins has been involved in discussions and correspondence
regarding
Q
C Finishers, Inc. beginning on or before February of2000.
She has been
involved
in permit and technical issues as well as being the IEPA attorney assigned to this
matter.
(See Attachment 1, Ms. Myers.Wilkins Affidavit, Attachment 2, a letter from Ms.
Myers.Wilkins regarding calibration ofemission monitors, and Attachment 3, a “sign-in”
sheet for a meeting on a monitoring issue which involved three unrelated companies.)
4.
The basis for Complainant’s motion is that because Ms. Myers-Wilkins is
an attorney and is employed by the Illinois Environmental Protection Agency all ofher
knowledge regarding this case is either irrelevant, attorney-client privileged, or subject to
the work product doctrine.
5.
Complainant offers no evidence whatsoever,
for its assertion that Ms.
Myers-Wilkins knows nothing that would be
discoverable.
6.
The Illinois Pollution Control Board rejected the Illinois AttorneyGeneral’s
previous attempt to insulate state attorneys from the Board’s discovery process. In
Theresa Castellari et alv. John Prior, PCB 86-79,
1987111. ENV LEXIS 311
(May 28,
1987), then Assistant Attorney General, Joe Madonia, was subpoenaed to a Board
Hearing.
He moved to quash on the grounds that he had no personal knowledge ofthe
violations and that any other relevant knowledge was privileged under the attorney-client
1
privilege, workproduct doctrine or aspart ofsettlement discussions.
The Hearing Officer
denied the motion to quash stating that
“Madonia could make specific objections to
questions dealing with privileged informationwhen he testified.”
Madonia then walked
out ofthe hearing in apparent defiance ofthe Hearing Officer’s order.
Respondent made
an offer ofproof”as to what he had expected Madoniato testil~r
to”, which offer was
accepted by the Hearing Officer and later by the Board.
Castellari, at *38..42.
7.
With regard to the relevance ofMs. Myers-Wilkins testimony the
Complainant has asserted (Motion, para. 9), that “Crystal Myers-Wilkins is not a expert in
the areas alleged as violations in the complaint therefore any testimony by her to this issue
would be irrelevant.”
8.
This misstates the applicable standard in a number ofrespects.
a.
Nowhere in
the Board rules, or the applicable court rules,
does it state
that only the knowledge ofexperts can be
relevant or that
discovery must
be limited to
expert knowledge.
b.
Even ifher testimony were
shown to be
irrelevant that alone would not
provide
support
to
quash a
subpoena
for deposition.
Board
rule,
35
III.
Adm.
Code
101.616(e)
states that
“...it
is not
a
ground for objection that
the testimony ofa deponent or person interrogated will be
inadmissible at
hearing,
if
the
information
sought
is
reasonably
calculated
to
lead
to
relevant information.”
c.
The “areas alleged as violations” are not the only matters at issue in this
proceeding.
The Board
will
also
consider the factors
listed in
415
ILCS
5/33(c)
and
42(h) at
the
hearing,
therefore
information
relating
to
those
issues will also be relevant.
9.
Ms. Myers-Wilkins knowledge ofthe circumstances of
Q
C Finishers
is
clearly relevant for purposes ofdiscovery in that:
a.
She has been involved
in
a variety ofissues
relating to
Q
C
Finishers,
including technical and permit issues.
(See Attachments 2 and 3).
b.
She
signed
the
affidavit
supporting
Complainant’s
response
to
the
Request
for Production
stating
that
“to
the
best
of my
knowledge
and
belief,
that
Plaintiffs
sic
responses
to
the
Respondent’s
Request
for
Production are responsive
and
complete.
I
can
further state that,
to
the
best ofmy knowledge and belief, that the facts set forth in the responses to
the
Respondent’s
Interrogatories
are
true,
accurate
and
complete.”
(Attachment I).
Ms.
Myers-Wilkins was the nnly affidavit supporting the
responses relating to
the underlying issues.
(Another
affidavit was offered
to
support penalty calculations only.)
2
c.
In
Complainant’s
Response
to
Interrogatories
and
Request
for
Production
Ms.
Myers-Wilkins’
was
the
Qnly
EPA
employee
listed
as
having been involved in responses to
Interrogatories
1. through 24.
(See
pages
7
and
8
of
the
Complainant’s
Response
to
Interrogatories
and
Request~for
Production, attached hereto as Attachment 4).
If she in
fact
had no
relevant knowledge the
Complainant’s response to
interrogatories
would be
grossly inadequate and
improper pursuant to
35
III Adni
Code
101.620(b).
10.
Complainant failed to show that Ms. Myers-Wilkins possesses no relevant
knowledge, instead her long term involvement with the
Q
C Finishers matter and permits,
and her
answers in support ofdiscovery, mandatethe opposite conclusion.
11.
Complainant has also
asserted that Respondent has otherpotential
witnesses available.
Motion para.
8.
The fact that other witnesses are later made available
for deposition does not serve as a reason to quash a subpoena.,
especiallygiven the fact
that it was Ms. Myers-Wilkins who provided discovery responses.
12.
The argument that all ofMs. Myers-Wilkins knowledge is attorney-client
privileged and/or subject to the work product doctrine, is also unsupported.
13.
In May ofthis year.the Illinois Supreme Court reiterated the elements of
attorney client privilege as “(1) where legal advice ofany kind is sought, (2) from a
professional legal advisor in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence,
(5)
by the client, (6) are permanentlyprotected, (7) from
disclosure by himself or the legal advisor, (8) except protectionbe waived.”
Illinois
Education Association v. Illinois State Board ofEducation~
791 N. B 2d 522,
2003 Ill
Lexis
783 at *17..l8,
274 III Dec. 430 (May22, 2003).
14.
The workproduct doctrine as codified in Supreme Court Rule 201(b)(2)
requires that to
qualify as work product, material must be prepared by or for a party in
preparation fortrial and must contain or disclose the theories, mental impressions or
litigation plans ofthe part~sattorney.
15.
Neither description ofthe necessary elements support the inference that
Complainant tries to draw
-
that all knowledge and communications by an attorney are
automatically privileged.
16.
Complainant has simplynot shown that the necessary elementsofthe
privilege and doctrine have been met.
It has also failed to support its claim as required by
Supreme Court Rule 20 1(n).
17.
The Illinois Supreme Court, in Illinois Education Association, 2003
III.
LEXIIS
783
at *22, in the context ofa FOIA request, recently, and vehemently, dealt with
a similar attempt to invoke the attorney-client privilege by name only.
3
“...the burden is on the public body to
demonstrate that the attorney- client
exemption of section 7(1)(b)
is applicable.
But in meeting its burden the
public
body may not
simply treat
the words
“attorney-client privilege” or
“legaladvice” as some talisman, the mere utterance ofwhich magically cast
a spell ofsecrecy over the documents at issue.
Rather the
public body can
meet
its
burden
only
by.
providing
some
objective
indicia
that
the
exemption is applicable under the circumstances.”
18.
The court went on to statethat affidavits supporting a claim ofthe
privilege should
“showwith reasonable specificity why the documents fall within the
claimed exemption and are sufficient to allow adversarial testing.”
Id at *22.
19.
The attorney-client privilege and the work product doctrine also presume
as an essential element that confidentiality has beenmaintained and not waived, but the
fact that Ms. Myers Wilkins has been personally involved in discussions and
correspondence with
Q
C Finishers and other parties on relatedmatters (attachments #2
and #3) shows that she must possess at least some knowledge that is not confidential, or
for which confidentiality has been waived, because she has already shared her knowledge
with
Q
C Finishers.
20.
The fact alone that Ms. Myers-Wilkins’ affidavit was offered in support of
discovery responses will also
serve to illustrate the absurdity ofthe allegation that she
knew nothing ofrelevance and that anything that she does know is confidential.
21.
In conclusion, Complainant’s argument that Ms. Myers-Wilkins has no
discoverable knowledge must fall in light ofthe fact that her knowledge has already been
offered in support ofdiscovery and has been shown to cover areas other than litigation
plans and legal advice.
Complainant has failed to
support, or prove the elements o1
the
privileges that it has asserted.
Both the Board and the Supreme Court have rejected
attemptsto assert similar, blanket, unsupported privileges.
WHEREFORE,
Respondent respectfully requests that the Motion to quash be denied and
that the deposition ofMs. Myers Willdns be allowed to proceed.
Respectfully submitted,
QC FiNISHERS, INC.
Date
August 15, 2003
~
~
Heidi B. Hanson
By: its
attorney,
H.
E. Hanson Esq. P.C.
H. E. Hanson, Esq. P.C.
Heidi E. Hanson
4721
FranklinAye, Suite 1500
Western Springs, IL 60558-1720
(708) 784-0624
4
•STATE
OF
ILLINOIS
COUNTY
OF
SAN(AMON
.
S
A
~
AFFIDAVIT
I,
Crystal Myers-Wilkins, being first duly sworn,
depose
and
statethat the
following statements
set forth in this
instrument are true and correct, except as
to matters
therein stated
to on
information and
belief
and, as
to
such
matters, the
undersigned
certifies
that shebelieves the
same
to be
true:
-
1.
I am an
Assistant
Counsel
employed with
the
illinois Environmental
Protection
Agency’s (“illinois EPA”) Division of
Legal
Counsel.
Mywork responsibilities
are
primarily
devoted to enforcement-related tasks
and assignments
relatingto airpollution
enforcement cases
initiated
by the Illinois EPA’s
Bureau
of
Air/Division
ofAirPollution
Control.
2.
As
part
ofmy
responsibilities as an enforcement
attorney, I am
familiar with
the
matterinvolving the PEOPLE OF THE STATE OF ILLiNOIS vs. QC
FINISHERS,
INC.,
an Illinois Corporation,
PCB
No. 01-07, filedbefore the Illinois Pollution Confrol
Board and, further, I assisted in therelatedpreparation ofthe
Illinois
EPA’s
formal
enforcement
referral to the Office ofthe Illinois Attorney General.
3.
1 have read the Respondent’s Interrogatories and Request for Production that
was
served upon the State ofIllinois on or about May
15,
2003.
4.
Having
assisted theattorney ofrecordfor the People,
Paula
Becker
Wheeler,
Assistant Attorney
General,
in responding to the
aforementioned discovery responses,
I
can
state, to thebest ofmy knowledge
and
belief, that
the Plaintiff’s responses
to the
Respondent’s
Request
for Production
are
responsive and.complete.
I can further state, to
the best ofmy knowledge
and
belief, that thefacts set forth in the responses to the
Respondent’s Interrogatories
are true, accurate and
complete.
Dueto my
limited
role in
this
enforcement proceeding, I cannot attest to the objections
identified in
the
discovery
responses..
Further
afflant
sayethnot.
Subscribed
and
Sworn
To Before Methis~7~
Dayof
June
2003
i2~4~t~9f
k’:~4Ie~’
~
t1OTARY
PUBLiC,
STATE
OF
ftJJt4OIS
~
4:
MY
cOMM(SS~ONEXPIRESa~2O.2OO7~
‘~
ILLINOIS
ENVIRONMENTAL
PROTECTION
AG)ENCY
.1021
NORTH.GRAND AVENUE
EAST,
P.O.
Box 19276,
SPrnNGRELD,
kLINOIS
62794-9276
THOMAS
V.
SKINNER,
DIRECTOR
•
•
•
S
.
S
April
12, 2001
5
Heidi Hansen
4721
Franklin Avenue, Suite
1500
.
Western Springs, Illinois 60558-1720
Re:
Daily calibration of continuous
Emissions monitor
•
.
S
S
Dear Heidi:
.
In response to
our
conversation on April
12, 2001, regarding daily calibration ofthe
continuous emissions monitor, please referto the letter addressed to you ofOctober 18,
2000, for a review ofthe Illinois Environmental Protection Agency’sposition and
USEPA’s concurrence on continuous emissions monitoring.
That letter expounds on
factors the continuous emissions monitor must achieve, daily calibration being one of
them.
Daily
calibration is
essential for proper tracking of emissions to assist
in
determining whether ornot the system is properly functioning.
To
this
end this
factor
cannot be relaxed.
Any
further questions regarding
this matter
should be directed to
Crystal Myers-Wilkins.
Sincerel
,
Crystâ’l Myers-
ilkins
Assistant Counsel
S
5
Division of
Legal
Counsel
GEORGE
H.
RYAN,
GOVERNOR
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•
ii:
•1•
overbroad,
unduly burdensome, and apparently calculated to
harass,
cause unnecessary delay and needlessly increase the cost
of litigation. Without waiving said objection, please see
attached documents.
S
16.
ReQuest
All Documents and Communications regarding the ozone air
quality for Cook County for the. years from 1985 to 2000,
•
S
-including but not limited to the “Illinois
Annual
Air Quality
~.eport.”
S
Res~ponse:
Complainant objects to this request as irrelevant,
overbroad,
unduly burdensome,
and apparently calculated to
•harass,
cause unnecess’ary delay and needlessly increase the cost
of litigation.. Without waiving said objection, please see
attached documents.
INRRO~ATORIES
1.
Question
S
Identify each Person who, will testify for Complainant at
hearing and for each Person state each of the subject(s)
of their
testimony.
..
5
Answer:
Gary Styzens,
IEPA., Chief Auditor, will testify about the
economic benefit of noncompliance and related issues.
Dr.
Nosari,.
Consultant, will testify about ability to pay
and related issues.
Complainant has not yet identified other witnesses to render
-7-
testLmony at trial.
Complainant reserves the right to supplement
its response to this question request as additional information
becorries available. Investigation continues.
2.
Question
•
Identify all Persons including5 experts and consultants,
S
having knowledge of the facts,
circumstances, or other matters
•
S
alleged in the Complaint.
S
Answer:
S
•
S
See.answer to Interrogatory No.
1.
S
•
3•
Question
S
•
S
Identify each Person including but not limited to past and
•present employees of Complainant who provided information and/or
drafted
the
answers to each of Respondent’s interrogatories rand
state the number of the interrogatory for which they provid~d
information or responded.
Answer:
S
•
.
S
Gary Styzens provided assistance with Nos. 25,26,27,28 and
29.
.
S
Dr. Nosari provided assistance with No.
27.
•
Crystal
Myers-Wilkins, Assistant Legal Counsel of the
Illinois EPA, and Paula Becker Wheeler, Assistant Attorney
S
General, provided legal assistance with regard to all
interrogatories and objections.
S
•
4.
Question
State in detail each fact on which complainant bases its
allegation that Respondent has violated 35 Illinois
S
Administrative Code Part 203.
5
-8-
CERTIFICATE
OF SERVICE
I, the undersigned,
certif~r
that
I have served copies ofthe attached
RESPONDENT’S
RESPONSE
TO MOTION TO
QUASH SUBPOENA
upon the
following persons by
placing
said
document in the U.
S. Mailwith postage prepaid before
4:
00
p.m. on August
15,
2003:
Original and
four (4) copies
Clerk,
Illinois
Pollution ControlBoard
100 W. Randolph Street
State of
Illinois
Center
Suite 11-500
Chicago, Illinois 60601
One
copy eachto:
PaulaBecker Wheeler
S
•Assistant Attorney General
S
Office ofthe Attorney General
188 West Randolph Street, 20th Floor
Chicago,
Illinois
60601
Mr. BradleyHalloran
Hearing Officer
S
Illinois
Pollution Control Board
James R.
Thompson Center, Suite 11-500
100 W. Randolph Street
S
Chicago,
Illinois
60601
Dated:
August
15,
2003
Heidi E. Hanson
H. E.
Hanson~,
Esq.
P.C.
4721
Franklin
Aye, Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
S
This filing
is submitted on recycled paper.