MORTON
F. DOROTHY,
)
)
Complainant,
)
FLEX-N-GATE CORPORATION,
an Illinois Corporation,
Respondent.
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that,
on the ‘2Z
day of April, 2005,
I served the listed
documents, by first class mail, upon the
listed persons:
MOTION TO COMPEL RESPONSE
TO INTERROGATORIES
MOTION TO COMPEL RESPONDENT TO ADMIT THE TRUTH
OF CERTAIN FACTS
MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Thomas G. Safley
Hodge
Dwyer Zeman
3150 RolandAvenue
Post Office Box 5776
Springfield,
IL 62705-5776
~
Morton
F.
Dorothy, Complainant
Morton
F.
Dorothy
804 East Main
Urbana IL 61802
Carol
Webb
Hearing Officer, IPCB
1021
North Grand Avenue East
Post Office Box
19274
Springfield,
IL 62794-9274
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~ECE~VED
CLERK’S OFFICE
CHAMPAIGN COUNTY, ILLINOIS
vs.
APR 28
2005
STATEOFILLINOIS
Pollution Control Board
)
)
No.
PCB 05-049
)
)
)
)
217/384-1010
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN
COUNTY,
ILLINOIS
MORTON F. DOROTHY,
)
)
Complainant,
)
)
vs.
)
No.
PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
MOTION
TO COMPEL RESPONSE
TO INTERROGATORIES
Complainant Morton F. Dorothy moves that the Hearing Officer order respondent
Flex-N-Gate Corporation to respond to interrogatories propounded by
complainant.
In
response to Question
9,
respondent has refused to provide complete
information on certain employees, citing
Illinois Rule of Professional Conduct 4.2.
That rule does not limit the scope of discovery. Nor does that rule apply to the
complainant in
a
Board enforcement action.
2.
Respondent objects to questions number 15,
16,
17 and 20 on the grounds that
“OSHA issues” are irrelevant to this
litigation, and that “Complainant has filed a
complaint against Flex-N-Gate before OSHA”
and that it is “improper for
Complainant to use discovery in this litigation to seek to seek information
regarding thatOSHA matter”.
3.
Complainant is
not a party to the OSHA proceeding concerning this incident.
Complainant has not been allowed to attend hearings, testify, presentevidence
or examine witnesses.
4.
The allowable scope of discovery is
governed by Section
101 .616(a):
All relevant information and information calculated to lead to relevant
information
is discoverable,
excluding those materials that would be
protected from disclosure in
the courts of this State pursuant to statute,
Supreme Court Rules orcommon
law, and materials protected from
disclosure under 35
Ill. Adm. Code 130. (35
III. Adm. Code 101.616(a))
5.
Although the information complainant
seeks might be relevant in the OSHA
proceeding, respondent has cited
no rule limiting the scope of discovery in
one
proceeding to items that are relevant only to that proceeding and to no other.
6.
Ratherthan prepare a separate “emergency
response plan” under OSHA rules
and a “contingencyplan” under Board rules, respondent appears tohave
prepared a single “Emergency Responseand Contingency Plan” to meet both
requirements. Complainant believes thiswas a legal and proper
thing to have
done. Having done this, however, respondent cannot now complain that the
“OSHA issues” are “irrelevant” and not “calculated to lead to the discovery of
relevant information”.
7.
Question 20 is seeking an admission from respondent that measurement of
hydrogen sulfidewas required for confined space entry. Respondent has now
admitted this in response to a different question. Complainant therefore
withdraws question
20.
WHEREFORE. complainant moves that the hearing officer order respondent to
answer interrogatories 9, 15,
16 and
17.
Morton F. Dorothy
804 East Main
k
A
Urbana IL 61802
JV~-~j
~
217/384-1010
Morton
F.
Dorothy, Complainant
RECEIVED
CLERK’S OFFICE
BEFORETHE ILLINOIS POLLUTION CONTROLBOARIAPR
282005
CHAMPAIGN COUNTY, ILLINOIS
STATE OF
ILLINOIS
Pollution Coritro~
~o~rr~
MORTON
F. DOROTHY,
)
)
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
MOTION
TO COMPEL RESPONDENT TO ADMIT THE TRUTH OF CERTAIN FACTS
Complainant Morton F.
Dorothy moves that the Hearing Officer order respondent
Flex-N-Gate Corporation to admit or deny the truth of certain statements as requested
by complainant.
1.
Respondent objects to Requests 9 andlO on the grounds that “OSHA issues”
are irrelevant to this litigation, and that “Complainant has filed
a complaint
against Flex-N-Gate before OSHA” and that it is “improper for Complainant to
use discovery in this litigation to seek to seek information regarding that OSHA
matter”.
2.
Complainant is
not a party to the OSHA proceeding concerning this incident.
Complainant has not been allowed to attend hearings, testify,
present evidence
or examine witnesses.
3.
The allowable scope of discovery is governed
by Section 101.616(a):
All
relevant information and information calculated to lead to relevant
information is discoverable,
excluding those materials that would be
protected from disclosure in the courts ofthis State pursuant to statute,
Supreme Court
Rules or common law, and materials protected from
disclosure under 35
Ill. Adm. Code
130.
(35
III. Adm.
Code
101 .616(a))
4.
Section 101 .618(d) provides:
Request forAdmission of Fact.
A party may serve
a written
request for
admission ofthe truth of specific statements offact on any other party. (35
III. Adm. Code 101 .618(d))
5.
Although the admission complainant seeks might be relevant in the OSHA
proceeding,
respondent has cited
no rule limiting the scope of discovery in one
proceeding to items that are relevant only to that proceeding and to no other.
6.
Rather than
prepare a separate “emergency response plan” under OSHA rules
and a “contingency plan” under Board rules, respondent appears to have
prepared a single “Emergency Responseand Contingency Plan” to meet both
requirements. Complainant believes thiswas a legal and proper thing to have
done. Having done this, however, respondent cannot now complain that the
“OSHA issues” are “irrelevant” and not “calculated to lead tothe discovery of
relevant information”.
7.
Requests 9 and 19 ask respondent to admit that complainant and Afiba Martin
received 24-hour “hazwoper” training from respondent. Such trained individuals
have a role in respondent’s EmergencyResponse and Contingency Plan.
WHEREFORE complainantmoves that the hearing officer order the respondent
to eitheradmit ordeny the truth of statements 9and 10.
Morton
F. Dorothy
804 East Main
A
.
~.-.
Urbana IL 61802
I”
~
~-i
~.-
217/384-1010
Morton F. Dorothy, Complainant
RECEIVED
BEFORE THE
ILLINOIS POLLUTION CONTROL B8Ik~5
OFFICE
CHAMPAIGN COUNTY, ILLINOIS
APR
28
2005
~tAC~DT1ThI
~
r~f~D~~TUV
STATE OFILLINOIS
•
‘
Pollution Control Board
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATECORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
MOTION TO COMPEL PRODUCTION
OF DOCUMENTS
Complainant Morton F. Dorothymoves thatthe Hearing Officer order respondent
Flex-N-Gate Corporation to produce docUments requested by complainant.
Respondent objects to Requests 3, 4, 16, 17and 18 on the grounds that“OSHA
issues” are irrelevant to this litigation, and that “Complainant has filed a
complaint against Flex-N-Gate before OSHA” and that it is “improper for
Complainant to use discovery in this litigation to seek to seek information
regarding that OSHA matter”.
2.
Complainant is not a party to the OSHA proceeding concerning this incident.
Complainant has not been
allowed to attend hearings, testify, present evidence
or examine witnesses.
3.
The allowable scope ofdiscovery is governed by Section 101.616(a):
All relevant information and information calculated to lead to relevant
information
is discoverable, excluding those materials thatwould be
protected fromdisclosure in the courts of this State pursuant to statute,
Supreme Court Rules orcommon law, and materials protected from
disclosure under 35
III. Adm. Code 130. (35
III. Adm. Code 101.616(a))
4.
Although the information complainant seeks might be relevant in theOSHA
proceeding, respondent has cited no rule limiting the scope of discovery in one
proceeding to items that are relevant only to thatproceeding and to no other.
5.
Ratherthan prepare a separate “emergency response plan” underOSHA rules
and a.”contingency plan” underBoard rules, respondent
appears to have
prepared a single “Emergency Response and Contingency Plan” to meet both
requirements. Complainant believes this was a legal and proper thing to have
done. Having done this, however, respondent cannot now complain thatthe
“OSHA issues” are “irrelevant” and not “calculated to leadto the discovery of
relevant information”.
6.
Complainant never had direct access tothe emergency responseand
contingencyplan prior to the August 5 incident. Complainant instead received
training from respondent as to how to deal with emergencies pursuant to the
plan. Request 18 is directed atobtaining the training materials. The training
materials are obviously relevant to respondent’s interpretation ofthe plan.
7.
Request
7 asked for “Maintenance log and maintenance work orders for the
plating line for August 5 through August 8,
2004”. The firstwork order produced
was initiated by Larry Kelly at 07:28 on 08-05-04. However, Afiba Martin’s
statement, produced elsewhere, refers to a work order he initiated several hours
earlier. That workorder has not been produced. Nor doany other work orders
appear for third shift ofAugust 4-5, 2004, during which shift the incident
happened.
8.
Request 15 read: “Account ofthe incident that is the subject ofthe complaint
delivered toTony Rice on orabout August 9, 2004.” Respondent has stated that
it does not know to what this request refers, and asked for further information as
to the author. The authorwas the complainant,who hand-delivered a written
account ofthe incident toTony Rice, Plating Manager, on or aboutAugust 9,
2004.
9.
Denny Corbettwas a witness tosome ofthe events in this incident.
It is
reasonable to expect that he will be called as a witness atthe
hearing, in which
case his credibility will be an issue. Complainant is aware that Denny Corbett
has made several false statements, including statements made in
writing to
OSHA in its investigation of this incident. One ofthese statements concerns
“threat letters that ifwe did not hire this employee backhe would make
it difficult
for Guardian West by calling local and federal agencies”. Request 18 is for
copies of the “threat letters”.A false statement made by a witness is relevant to
credibility regardless ofwhomthe statement is made to.
10.
Request 7 asked for “Maintenance log and maintenance workorders for the
plating line for AUgust 5 through August 8, 2004”. The first work order produced
was initiated by Larry Kelly at 07:28 on 08-05-04. However, Afiba Martin’s
statement, produced elsewhere, refers to a work order he initiated
several
hours
earlier. That work order has not been produced.
Nor do any other work orders
appear for third shift of August 4-5, 2004, during which shift the incident
happened.
WHEREFORE complainant prays thatthe hearing officerorder the respondent to
produce the documents requested
in Requests 3, 4,
7,
15,
16, 17 and
18.
Morton F. Dorothy
804 East Main
~K
A
Urbana IL 61802
—.
\
~
~
217/384-1010
Morton
F. Dorothy, Complainant
