NOTICE OF FILING
(VIA ELECTRONIC MAIL) (VIA ELECTRONIC MAIL)
CERTIFICATE OF SERVICE
MOTION FOR PROTECTIVE ORDER
ORDER

THIS FILING SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY, )

)

C om pl ai n an t, )

)

v. ) PCB No. 05-49

)

FLEX-N-GATE CORPORATION, )

an Illinois corporation, )

)

Respondent. )

NOTICE OF FILING

TO: Ms. Dorothy M. Gunn Carol Webb, Esq.

Clerk of the Board Hearing Officer

Illinois Pollution Control Board Illinois Pollution Control Board

100 West Randolph Street 1021 North Grand Avenue East

Suite 11-500 Post Office Box 19274

Chicago, Illinois 60601 Springfield, Illinois 62794-9274

(VIA ELECTRONIC MAIL) (VIA ELECTRONIC MAIL)

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of

the Illinois Pollution Control Board Respondent Flex-N-Gate Corporation’s

MOTION

FOR PROTECTIVE ORDER and proposed ORDER,

copies of which are herewith

served upon you.

Respectfully submitted,

FLEX-N-GATE CORPORATION,

Respondent,

Dated: May 27, 2005

By:/s/ Thomas G. Safley

One of Its Attorneys

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

ELECTRONIC FILING,RECEIVED,CLERK'S OFFICE MAY 27, 2005

CERTIFICATE OF SERVICE

I, Thomas G. Safley, the undersigned, certify that I have served the attached

MOTION FOR PROTECTIVE ORDER and proposed ORDER upon:

Ms. Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Carol Webb, Esq.

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

Post Office Box 19274

Springfield, Illinois 62794-9274

via electronic mail on May 27, 2005; and upon:

Mr. Morton F. Dorothy

804 East Main

Urbana, Illinois 61802

by depositing said documents in the United States Mail in Springfield, Illinois, postage

prepaid, on May 27, 2005.

/s/ Thomas G. Safley

Thomas G. Safley

GWST:003/Fil/NOF and COS – Protective Order

ELECTRONIC FILING,RECEIVED,CLERK'S OFFICE MAY 27, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY, )

)

C om pl ai n an t, )

)

v. ) PCB 05-49

)

FLEX-N-GATE CORPORATION, )

an Illinois corporation, )

)

Respondent. )

MOTION FOR PROTECTIVE ORDER

NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),

by and through its attorneys, HODGE DWYER ZEMAN, and moves the Hearing Officer

for a Protective Order, and in support of this Motion, states as follows:

1. On or about March 15, 2005, Complainant mailed his Interrogatories to

Respondent. See Certificate of Service attached hereto as Exhibit A; Affidav it of

Thomas G. Safley (“Safley Aff.”) attached hereto as Exhibit B, at ¶3.

2. Complainant’s I nterrogatories conta in thirt y-six numbered interrogatories,

some of which contain mult iple quest ions. See Complainant’s Interrogatories, attached

hereto as Exhibit C; Safley Aff. at ¶4.

3. Section 101.620(a) of the Illinois Pollution Control Board’s (“Board”)

procedural rules provides that:

Unless ordered otherwise by the hearing officer, a party may serve a

maximum of 30 writt en interrogatories, including subparts, on any other

party, no later than 35 days before hearing.

35 Ill. Admin. Code § 101.620(a). (Emphasis added.)

4. Complainant did not move the Hearing Officer for leave to serve more

than thirt y interrogatories on Flex-N-Gate.

ELECTRONIC FILING,RECEIVED,CLERK'S OFFICE MAY 27, 2005

5. Despite the fact that Complainant’s Interrogatories contained more than

the allowed thirt y interrogatories, Flex-N-Gate did not object to Complainant serving

more than thirty interrogatories, but instead responded (by answer and/or objection on

other groundgs) to all of Complainant’s Interrogatories. Safley Aff., at ¶5.

6. On or about April 25, 2005, Complainant mailed his Supplementa l

Interrogatories to Flex-N-Gate. See Certificate of Service attached hereto as Exhibit D;

Safley Aff. at ¶6.

7. Complainant’s Supplementa l Interrogatories contain an addit ional twent y

numbered interrogatories, many o f which have subparts, for a total of approximately 87

addit ional interrogatories. See Complainant’s Supplementa l Interrogatories, attached

hereto as Exhibit E; Safley Aff., at ¶7.

8. Complainant did not seek or obtain leave to serve these addit ional

interrogatories on Flex-N-Gate, as required by Section 101.602(a) of the Board’s rules.

9. Combined wit h Complainant’s original I nterrogator ies, Complainant –

without leave – now has served approximately 123 interrogatories on Flex-N-Gate, or

more than four times the number of interrogatories that Section 101.602(a) allows.

10. In addit ion, many of Co mplainant’s Supplementa l Interrogatories clear ly

relate to the question of whether or not a release of hydrogen sulfide occurred at the

Facility as alleged in Complainant’s Complaint. See, e.g., Supplementa l I nterrogatories

No. 6, 7, 8, 9, 10, 11, 12, 14, 15, and subparts thereof.

11. As set forth in Flex-N-Gate’s Mot ion for Partial Su mmary Judgment and

Motion for Summary Judgment as to All Counts o f Complainant’s Co mplaint, this

ELECTRONIC FILING,RECEIVED,CLERK'S OFFICE MAY 27, 2005

question is not material to this lit igat ion, and therefore, t hese interrogatories seek

infor mat ion t hat is irrelevant and will not lead to relevant evidence.

12. Section 101.616(d) of the Board’s procedural rules provides in relevant

part that “[t]he hearing officer may . . . issue protective orders that deny, limit, condition

or regulate discovery to prevent unreasonable expense, or harassment. . . .” 35 Ill.

Admin. Code § 101.616(d).

13. Complainant’s service, without leave, of more than four times the number

of Interrogatories that t he Board’s rules allow, many o f which seek irrelevant

information, subjects Flex-N-Gate to unreasonable expense and constitutes harassment.

14. For the reasons stated above, Flex-N-Gate moves the Hearing Officer for a

Protective Order finding that Flex-N-Gate need not make any response to Complainant’s

Supplementa l Interrogatories.

15. For the Hearing Officer’s convenience, Flex-N-Gate has filed herewith a

proposed Order granting this Motion.

ELECTRONIC FILING,RECEIVED,CLERK'S OFFICE MAY 27, 2005

WHEREFORE, Respondent FLEX-N-GATE CORPORATION respectfully

moves the Hearing Officer to grant it a Protective Order as set forth above, and to grant

FLEX-N-GATE CORPORATION such other relief as the Hearing Officer deems just.

Respectfully submitted,

FLEX-N-GATE CORPORATION

R e s p o n d e n t ,

Dated: May 27, 2005 By:/s/ Thomas G. Safley

One of Its Attorneys

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

GWST:003/Fil/Motion for Protective Order

ELECTRONIC FILING,RECEIVED,CLERK'S OFFICE MAY 27, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY, )

)

C om pl ai n an t, )

)

v. ) PCB 05-49

)

FLEX-N-GATE CORPORATION, )

an Illinois corporation, )

)

Respondent. )

ORDER

This cause comes before the Hearing Officer on Respondent, FLEX-N-GATE

CORPORATION’S MOTION FOR PROTECTIVE ORDER. Having considered the

foregoing, and being duly advised, the Hearing Officer hereby GRANTS said Motion.

It is, therefore, ORDERED that Respondent FLEX-N-GATE CORPORATION is

granted a PROTECTIVE ORDER as to Complainant’s Supplemental Interrogatories, and

that FLEX-N-GATE CORPORATION need not make any response to said Supplemental

Interrogatories.

Date: _________________________ ____________________________

C a r o l

W e b b

Hearing Officer

Illinois Pollution Control Board

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