BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE
STATE OF
ILLiNOIS,
)
APR
25
2005
Complainant,
)
STATE
OF
ILLINOIS
)
PCB 96-98
Pollution
Control board
•
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO.,
INC.,
)
EDWIN L. FREDERICK, JR., individually
and as
)
owner
and
President ofSkokie Valley Asphalt
)
Co.,
Inc., and RICHARD J. FREDERICK,
)
individually
and as owner and
Vice President of
)
Skokie
Valley Asphalt Co., Inc.,
)
Respondents
)
RESPONDENTS’
FIRST REOUEST FOR ADMISSION OF FACTS
REGARDING ATTORNEYS’ FEES, COSTS AND EXPENSES
The Respondents,
SKOKIE VALLEY ASPHALT,
CO., INC.,
EDWIN L.
FREDERICK,
JR., individually and as owner and Presidentof Skokie ValleyAsphalt Co.,
Inc., and RICHARD J.
FREDERICK, individually
and as owner and Vice PresidentofSkokie Valley Asphalt Co., Inc., by
and through their attorney, David S. O’Neill,
pursuant to
Illinois Supreme Court Rule 213, herein
respectfully, serve upon Complainant thefollowingrequestfor admissionoffacts, theresponses
to which
are to
be delivered by
May
25,
2005,
to the offices of David
S.
O’Neill,
5487
N.
Milwaukee Avenue, Chicago, Illinois 60630-1249.
INSTRUCTIONS
1.
Ifa claim ofprivilege is alleged with respect to any request for admission and the
Complainant refuses to answer based on the claim ofprivilege, the Complainant
is
instructed to provide a statement signed by an attorney representing the Complainant
setting forth:
a.
the nature ofthe claim ofprivilege
b.
the statute, rule or decision which is claimed to give rise to the claim of
privilege;
—1—
c.
all facts relied upon in support ofthe claim ofprivilege;
d.
an identification ofall documents related to the claim ofprivilege.
DEFINITIONS
The following definitions
are
to
be
used in
interpreting and
responding
to
this
request
regardless ofwhether the definition occurs before of after the use ofthe term defined:
Eachrequest hereinmust be interpretedand responded to in light-of-the1ollowingdefinitions
regardless of whether the definition occurs before of after the use ofthe term:
A.
“Respondents” meanstheparties identifiedas Respondents in the title-ofthisrequest.
B.
“State”
means the Plaintiff,
People of the State of Illinois and
includes each of its
departments, agencies, agents, servants, employees and experts.
C.
“Identify” means fully state and enumerate:
1.
As to person:
state the full name, title, relation to the person to which this
request is directed and the business address ofsuch person;
2.
As to document: statethe particular document (e.g. study, letter, map, etc. as
detailed below), its date,title, author,addressee,publisher and any other basis
for identification of such record.
Also, state the
person or body
having
charge
of the
document,
the
address
and
room
number
where
such
is
physically located,the particularfilecontaining such document and any other
information which would facilitate a search for such record; and
3.
As to action or reason: state eachaction taken, the name ofthe pers&ntaking
such action and/or making the determination, the date, time and location of
said
action
and/or determination
and
the detailed
nature of that act
and
identify all witnesses thereto and Related Documents.
D.
“In the possession of’ means in thephysical possession of, or under or subject to the
control oforavailable to as a matter ofright, the personorbody named orany person
or body subject to
the control or direction of such person or body in regard to
the
record or item named.
E.
“Related to, Relatingto, Concerning,Pertaining to, Relevantto, orRegarding” means
consist of, refer to,
reflect
or be
in
any way logically,
factually or
conceptually
connected with the matter discussed directly or indirectly.
F.
“Document” means
all
copies of all
written or graphic matter of every
kind and
description,
however produced or reproduced, whether relating to facts, opinion,
event, recollection or intention, whether draft or a final, original or a reproduction
including,
but
not
limited to: canceled checks, ledgers, audits, diaries, calendars,
photographs,
notes,
outlines,
requisitions,
reports,
summaries,
invoices,
witness
statements,
bills
of lading,
orders,
receipts,
bank
records,
laboratory
analysis,
-2-
computations,models(whethercomputer generatedor otherwise), letters, statements,
correspondence,
memoranda
of
telephone
or
personal
conversations
or
other
communications, memoranda of intra or
inter office communications,
bulletins,
electronically
stored
information
including,
without limitation,
such
information
which constitutes a complete file, a portion offile and without exception, any other
computer or retrievable data (whether encoded, taped, or coded
electrostatically,
electromagnetically orotherwise); and any other Documents functionally similar to
•
the foregoing, however described in the possession, custody or control ofthe Party
to which this request is directed.
G.
Ifa request relates to reports, studies or like Documents, the request shall include all
drafts, outlines, computations, notes,
work paper and
other information utilized or
necessary to prepare the report, study or like document.
H.
“Communication”
means
all
inquiries,
discussions,
conversations,
negotiations,
agreements,
understandings,
meetings,
telephone
conversations,
letters,
notes,
telegrams, and all other forms of oral or written intercourse.
“And,
or, and/or” means and, as well as or, shall be construedeither disjunctively or
conjunctively, as necessary to
bring within the scope ofthis
requested information
and/or Documents which might otherwise be construed to be
outside its scope.
J.
“Plural/Gender” asused herein, meansany use ofthe singular shallinclude the plural
and the singular.
As used herein, any
word connoting the masculine or feminine
gender shall include the masculine, feminine and the non-gender, and the use ofthe
non-gender shall include both the masculine and the feminine.
K.
“Non-Disclosure”
means
with
respect to
information
which
is
withheld
or not
disclosed as requestedpursuant hereto,due to a claim ofprivilege ornon-disclosure,
a statement shall be provided by counsel setting forth as to each such withholding or
non-disclosure:
1.
A brief description
of the
nature and
subject
matter
and
the
reason
for
withholding or non-disclosure ofthe information; and
2.
The statute, rule, decision or otherbasis which is claimed to give rise to the
privilege, or any otherjustification for the non-disclosure or withholding of
the requested information.
L.
“SubjectMatter ofthis Case” meansin any mannerconceptually Related to questions
offact orlaw in this caseregardless ofthe pointin time and whetherthey are Related
to a motion, complaint, answer, counterclaim, cross claim, affirmative
defenses or
other pleadings whether in original or amended form.
M.
“Knowledge” means information either favorable or unfavorable to the position of
the Person at whom this request is directed.
N.
“Person”
(“People”) includes natural
persons,
partnerships and governmental and
private
entities
whether
incorporated
or
otherwise
but
does
not
include
the
Respondents, its
agents, employees or experts.
-3-
0.
“Facility” means any land or structures at any time used to conduct any operation of
theRespondents which is Relatedto the Subject Matterofthis Case and includes,but
is not limited to, any former and/or current plant as necessary to broaden the request
and the scope ofthe required response.
P.
“Board” shall mean the Illinois Pollution
Control
Board
and includes each of its
departments, agencies, agents, servants, employees and experts..
Q.
“Illinois Attorney General’s Office” shall mean the Office ofthe Illinois Attorney
General and includes each ofits departments, agencies, agents, servants, employees
and experts..
R.
“AttorneysClaiming Fees” shall include all employees ofthe State that are claiming
fees
and
cost
matter
and
will
include,
but
is
not
necessarily
limited
to
Bernard
Murphy and Mitchell Cohen.
FACTS
Fact No.1
At all times relevant to the request for attorneys’ fees, cost and expenses, attorney Mitchell Cohen
was an assistantAttorney General employed by the State and the Illinois Attorney General’s Office.
Response:
Fact No.2
At all times relevant to the request forattorneys’ fees, cost and expenses, attorney Bernard Murphy
was an assistant AttorneyGeneral employed by the State and the Illinois Attorney General’s Office.
Response:
Fact No.3
At
all
times relevant to the request for attorneys’ fees, cost and expenses, attorney Joel
Sternstein
was an assistant AttorneyGeneral employed by the State and the Illinois AttorneyGeneral’s Office.
Response:
Fact No. 4:
The Attorneys Claiming Fees are paid for their services
by the State at a salary as opposed to an
hourly rate.
Response:
-4-
Fact
No.5:
Taxpayers, including the Respondents, pay the Attorneys
Claiming Fees through their taxes at a
non-hourly rate salary.
Response:
Fact No. 6:
The
Attorneys
Claiming
Fees
have,
in
fact,
already
determined
their pay
rate
through
their
employment relationship with the State
Response:
-
Fact No.7:
The Attorneys Claiming Fees were not precluded from working on other matters as a result oftheir
acceptance ofresponsibilities for this matter.
Response:
Fact No.8:
The Attorney Claiming Fees are assigned to
the Environmental
Bureau of the Illinois
Attorney
General’s Office and as a resulthave experience and expertise in-the-field ofIllinois environmental
law. and their salary reflects this expertise and experience.
Response:
Fact No. 9:
The Attorneys
Claiming Fees salary reflect the fact that they are assigned to the Environmental
Bureau of the Illinois Attorney General’s Office and their experience and expertise in the field of
Illinois environmental law.
Response:
Fact No.
10:
This case involveslegal issuesand procedures with which the-Attorneys Claiming Fees are supposed
to have
expertise and
experience and does not involve novel
and difficult issues.
Response:
-5-
FactNo.
11:
The assignment ofattorney Sternstein to this case, at a time when he had little or no experience and
expertise in environmental litigation is an indication ofthe fact that the Illinois Attorney General’s
Office and
the Attorneys
Claiming Fees recognized that the matter did not involve
a novel
and
difficult issues.
Response:
Fact No.
12:
Attorney Cohen was either co-counsel or supervising attorney to Attorney Sternstein during
all or
part of the time in which Attorney Cohen is claiming fees.
Response:
Fact No.
13:
Attorney Cohen
knew that Attorney
Sternstein
had
been employed
by the
Board
in
the period
immediate before being assigned to
this matter.
Response:
Fact No.
14:
Attorney Cohen had a duty to know and comply with the Procedural Rules ofthe Board.
Response:
FactNo.
15:
TheBoard’sProcedural Rules prohibited Attorney Sternstein from representing a party in this matter
during the period in which fees are being claimed.
Response:
-6-
Fact No.
16:
Attorney
Cohen
knew
or
should
have
known
that
Attorney
Sternstein
was
prohibited
from
representing a party in this case
Response:
Fact No.
17:
During discoveryin this matter,the Respondents specifical’y asked theComplainant for information
on
the
past
employment
history of the Attorneys Claiming Fees and
the Complainant
failed
to
divulge that Attorney Sternstein had previouslybeen employedby the Board and had been involved
in decisions concerning this case.
Response:
FactNo.
18:
During the
period in
which
fees
are
being
claimed, Attorney
Sternstein
was
having ex-parte
communications with both Board members and
Board staff.
Response:
Fact No.
19:
Attorney Cohen had a duty to determine if Attorney Cohen was ineligible to represent a party and
was otherwise involved
in
unethical conduct in this matter, to prevent Attorney Sternstein
from
representing a partyin this matterif a conflict exists, to make theBoard and the Respondents ofany
conflict and violation ofBoard Procedural Rules and to report such conflicts, violations and ethical
breached to the proper disciplinary boards and to his supervisors at the Illinois Attorney General’s
Office.
Response:
Fact No. 20:
Attorney Cohen’sfailure to properlyhandle and addresstheconfiict-athethieal-breaehes- afattorney
Sternstein represent an ethical breach by Attorney Cohen.
Response:
-7-
Fact No. 21:
The Attorneys Claiming Feesnever prepareda budgetfor the forrepresenting the State in this-matter
and
no such budget was submitted to the State and approved by the State or any other client.
Response:
Fact No. 22:
The Attorneys Claiming Fees did not maintain time
sheets or logs of any
kind to document
and
verify the hours worked on this matter.
Response:
Fact No. 23:
The Attorneys Claiming Fees did not submit periodic invoices or request for payments to their
clients with respect to this matter.
Response:
Fact No.
24:
The Attorneys Claiming Fees did not discuss their hourly billing rates with the State or any other
client in this matter orgain approval to bill at any agreed to billing rate otherthan the salary paid to
the Attorney Claiming Fees by the State.
Response:
Fact No.
25:
Throughout the course ofefforts to negotiate and settle this matter, the Attorneys ClaimingFees did
on
more than
one occasion use the fact that they could collect legal
fees
costs
and
expenses
in
negotiations
and attempted
to use this fact to increase the amount of the final settlement amount
offer.
Response:
-8-
Fact No. 26:
Throughout the course ofefforts to negotiate and settle this matter, the Attorneys Claiming Fees did
not and, in fact, refused to offer the Respondents any details of the amount of the attorneys fees,
costs and expenses being claimed.
Response:
Fact No. 27:
None oftheAttorneys Claiming Fees hasever beenpaid an hourly rate as highasthe~hourlyrate
they
are requesting in this matter.
Response:
Fact No. 28:
The Attorneys Claiming Fees have not collected any payments from the State based on
the hourly
rate they are claiming in request for legal fees in this manner.
Response:
Fact No. 29:
TheAttorneys Claiming Feesdid not consultany expertorsite any authority-in-fabricating thehourly
fee charges in its
determination ofattorneys’ fees.
Response:
Fact No. 30:
The Attorneys
Claiming Fees have not collected any payments from the State based on the hourly
rate they are claiming in request for legal fees in this manner.
Response:
Fact No.
31:
The Attorneys ClaimingFees did not present any argument for attorneys’ fees, cost and expenses at
the hearing on this matter before the Board on October 30 and
31, 2003
Response:
-9-
Fact No.
32:
In
its
Closing
Rebuttal
Argument
and
Reply
Brief,
the Attorneys
Claiming
Fees claimed total
expenses of
$5,574.84
but failed to
offer receipts and
other documentation that proved
that these
charges were actually incurred.
Response:
FactNo.33:
-
Attorney Cohen executed an affidavit on April
13, 2004 in which he affirmed that State of Illinois
incurred
$5,574.84
in costs in prosecuting this case and
submitted this
affidavit as evidence of the
State’s claim for expenses
in this matter.
Response:
Fact No. 34:
Attorney Cohen executed an affidavit on
September
16, 2004
in which he
affirmed that State of
Illinois incurred $3,482.84 in costs in prosecuting this caseand submitted this affidavit as evidence
of the State’s claim for expenses in this matter.
Response:
Fact No.
35:
The affidavit filedby Attorney Cohen on April
13, 2004 contained false informationand supported
a false claim for recovery of expenses even though Attorney Cohen states
in the affidavit that the
information in the Affidavit is “true and accurate’ and that he
has “reviewed the cots incurred”.
Response:
Fact No. 36:
The submission of an
affidavit
with false information as testimony
and
evidence
to
the Board
constitutes perjury on behalfofAttorneyCohen, the Illinois AttorneyGeneral’s Office and the State.
Response:
-10-
Fact No.
37:
To
date, none ofthe Attorneys Claiming Fees, the Illinois
Attorney General’s Office or the State
have taken any disciplinaryaction orreviewprocedureswithrespect to AttorneySternstein’ sethical
breach in representing a client at the Board in violation ofthe Board’s Procedural Rules,
Attorney
Cohen’s Ethical breach in supervising or co-counseling this matter with Attorney Sternstein when
Attorney Cohen knew or should have known that Attorney Stemstein was violating the Board’s
Procedural Rules
or for Attorney Cohen’s perjury in executing a false affidavit and
none of the
parties have reported these actions to appropriate disciplinary commissions as required.
Response:
Fact No. 38:
The cost ofoff-sitecopying included the copying ofa numberofpages and documents that were not
entered into evidence and referred to at hearing.
Response:
FactNo.
39:
Travel and lodging expenses incurred by Attorney Cohen and Attorney Murphywere cost incurred
strictly at the discretion of those attorneys and were not necessary for the prosecution of this case.
Response:
Fact No. 40:
The Attorneys Claiming Fees each submitted affidavitto support thehours they billed as legal fees.
Response:
FactNo.
41:
None of the summaries of hours presented by the Attorneys
Claiming Fees with their affidavits
represent a record ofhours that were kept at the time the work was performed.
Response:
FactNo.42:
The summaries of hours
presented by
the Attorneys
Claiming Fees
with their affidavits
were
prepared for the purpose of submittal with the affidavits and the petition for attorneys’ fees.
—11—
Response:
Fact No. 43:
The
summaries of hours presented by
the Attorneys
Claiming Fees with the
affidavits
and
the
petition for attorneys’ fees havenot and willnot be presented to theAttorneys Claiming Fees’ clients
for actUal payment.
David S. O’Neill
,a~x
~
On behalfo~the
Res~et1dents
April
25,
2005
David S.
O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
-12-
CERTIFICATE OF
SERVICE
I, the undersigned,
certify that I have served the attached RESPONDENTS’ FIRST
REQUEST FOR ADMISSION OF FACTS REGARDiNG ATTORNEYS’ FEES,
COSTS
AND EXPENSES by hand delivery on April
25,
2005, upon the following party:
Mitchell Cohen
Environmental Bureau
Assistant Attorney General
Illinois Attorney General’s Office
-
188 W. Randolph, 20th Floor
Chicago, IL 60601
/
Djx~S.O~ill
NOTARY SEAL
~
,
SUBSCRIBED AND SWORN TO ME this
~)
dayof
~
,20
d~(
fl1~1
0
aiy
u
NOTARYPU~L~
-
STA1~
CF (UNOIS
MYcC~SSION
E~~EtGMI~7
REC~1VED
CLERK’S OFFICE
APR 252005
BEFORE
THE ILLINOIS POLLUTION CONTROL BOAl~ATE
OF ILLINOIS
Pollution
Control
Board
PEOPLE
OF THE STATE OF ILLiNOIS,
)
Complainant,
)
•
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., INC.,
)
EDWIN L.
FREDERICK, JR., individually and as
)
ownerand President ofSkokie Valley Asphalt
)
Co.,
Inc., and RICHARD J. FREDERICK,
)
individually
and as owner and Vice President of
)
Skokie Valley Asphalt Co., Inc.,
)
Respondent
)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board the RESPONDENTS’ FIRST REQUEST FOR ADMISSION
OF FACTS
REGARDING ATTORNEYS’ FEES,
COSTS AND EXPENSES, a copy ofwhich
is hereby
served upon you.
.-
-
-
4./i
••~-~~•~“
DavjKS. O~e1Tl
April 25, 2005
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333
