PEOPLE OF THE STATE OF
ILLINOIS,
by LISA MADIGAN, Attorney General
ofthe State of Illinois,
)
)
Complainant,
)
)
SKOKIE VALLEY ASPHALT CO., INC.,
an Illinois Corporation, EDWIN L. FREDERICK,
JR., Individually and as Owner and President of
Skokie
Valley Asphalt Co., Inc., and
RICHARD J. FREDERICK, Individually
and as Owner and Vice President ofSkokie
Valley Asphalt Co., Inc.,
)
Respondents.
)
NOTICE OF FILING
TO:
Mr. David S. O’Neill, Esq.
Ms.
Carol Webb, Hearing Officer
Mr. Michael
B.
Jawgiel, Esq.
Pollution Control Board
5487
North Milwaukee Avenue
1021 North Grand Avenue East
Chicago, Illinois 60630-1249
P.O. Box
19274
Springfield, Illinois 62794-9274
PLEASE TAKE NOTICE that I have today filed
Complainant’s Response
to
Respondents’ Motion to Strike Discovery Related to Attorneys’
Fees
and Costs,
with the
Office ofthe Clerk ofthe Illinois Pollution Control Board, true and correct copies ofwhich are
attached hereto and herewith served upon you.
PEOPLE OF
THE STATE OF
ILLINOIS,
by LISA MADIGAN, Attorney General
fthe State ofIllinois
BY:
IAUL&$d&OWA
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
Tel:
(312)814-2069
BEFORE THE ILLINOIS POLLUTION CONTROL BOARRE
C E ~V E D
CLERK’S OFFICE
)
)
V.
JUN
012005
STATE OF ILLINOIS
Pollution Control Board
PCB96-98
(Enforcement
—
RCRA)
)
)
)
)
)
)
)
)
)
CERTIFICATE OF SERVICE
It is hereby certified that true and correct copies ofthe
Notice ofFiling
and
Complainant’s Response to Respondents’ Motion to Strike Discovery Related to Attorneys’
Fees and
Costs, were
sent by First Class Mail, postage prepaid,
to
the persons listed on the
Notice
ofFiling on June 1,
2005.
BY:
MICHAEL C. PARTEE
It is hereby certified that the originals plus nine (9) copies ofthe foregoing were hand-
delivered to the following person on June
1, 2005:
Pollution COntrol Board,
Attn: Clerk
James R.
Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois
60601
BY:
MICHAEL C. PARTEE
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
R
E
CE
IV
ED
CLERK’S OFFICE
PEOPLE OF THE STATE OF
ILLINOIS,
)
by LISA MADIGAN, Attorney General
)
JUN
012005
ofthe State ofIllinois,
)
STATE
OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
v.
)
)
PCB 96-98
SKOKIE VALLEY ASPHALT CO., INC.,
)
(Enforcement
-
RCRA)
an Illinois
Corporation, EDWIN L. FREDERICK,
)
JR., Individually and as Owner and President of
)
Skokie Valley Asphalt Co., Inc.,
and
)
RICHARD J. FREDERICK, Individually
)
and
as Owner and Vice President ofSkokie
)
ValleyAsphalt Co., Inc.,
)
)
Respondents.
)
COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION TO
STRIKE
DISCOVERY RELATED TO ATTORNEYS’ FEES
AND
COSTS
Complainant, PEOPLE OF THE STATE OF ILLiNOIS, by LISAMADIGAN, Attorney
General ofthe State ofIllinois, herebyresponds to
Respondents’, SKOKIE VALLEY ASPHALT
CO., INC., EDWIN L. FREDERICK, JR., and RICHARD J. FREDERICK, Motion to Strike
Complainant’s Interrogatories, Document Requests and Deposition Notices to Respondents
Regarding Complainant’s Fee Petition.
In Response, Complainant states as follows:
I.
INTRODUCTION
A.
Relevant Case History
On September 2, 2004, the Illinois Pollution Control Board (“Board”) found, in relevant
part, that”.
.
.
respondents committed willful, knowing or repeated violations in this case.”
(Order at 6 (September 2,
2004).)
Accordingly, the Board authorized Complainant to file a
petition for attorneys’ fees and costs.
On September 17, 2004,
Complainant filed its
Attorneys’
Fees and Costs Petition.
On September 28, 2004, Respondents filed a pleading, titled “Initial Response to and
Motion to
Stay and/or Extend Time to Respond. to Complainant’s Petition forAttorneys’ Fees
and Costs” (hereafter referred to as “Initial Response”).
In theirInitial Response, Respondents
made numerous,
specific, unsupported, factual allegations regarding Complainant’s Attorneys’
Fees and Costs Petition.
None ofthese allegations are a matter ofrecord.
Following are a few
examples ofRespondents’
factual allegations:
•
“The pay rate for the Complainant’s attorneys is obviously fabricated.” (Initial
Response at
¶
16.)
•
“It is hard to justify a claim for attorneys’ fees and cost
sic
by the Illinois
Attorney General’s office that
is approximately ten times the amount that three
Respondents combined paid to
defend themselves against frivolous claims.”
(Initial Response at
¶
17.)
•
“It is also hard to justif~’
an hourly fee for public service that is greater than the
weighted-average fee charged by the Respondents’
attorney even though the
Respondents’
attorneys
sic
fees include costs.”
(~)
On January 10, 2005, Respondents filed another pleading, titled “Motion to Establish
Discovery Schedule and Motion for Extension ofTime to Respond Under Board Order of
December
16, 2004” (hereafter referred to as the “Discovery Schedule Motion”).
On April 7, 2005, the Board granted Respondents’ Discovery Schedule Motion and
directed Respondents to file and serve limited and focused discovery requests by April 25, 2005,
Complainantto file and serve answers to said discovery requests by May
25,
2005, and the
Hearing Officer to proceed to hearing on the issue as expeditiously as possible.
The April 7,
2
2005
Order did not address Respondents’
allegations regarding Complainant’s Attorneys’ Fees
and Costs Petition and did not prohibit Complainant from serving discovery requests regarding
these allegations.
Thereafter, Respondents filed and served discovery requests by April
25,
2005, and
Complainant filed and served its answers to
said discovery requests by May
25,
2005.
Complainant also filed and served discoveryrequests (interrogatories, document requests and
deposition notices) by April
25,
2005.
~
Exhibit A to this Response.)
Complainant then sent
Respondents a letter, dated May 24, 2005, pursuant to Rule 201(k) regarding Complainant’s
discovery requests,
among other issues.
(See Exhibit B to this Response.)
Ratherthan contact Complainant pursuant to Rule 20 1(k) or answer Complainant’s
discovery requests,
on May 18,
2005, Respondents filed yet another pleading, titled
“Respondents’ Motion to Strike Complainant’s Interrogatories, Document Request and
Deposition Notices to
Respondents Regarding Complainant’s Fee Petition” (hereafter referred to
as “Motion to
Strike”).
Respondents’ Motion to
Strike seeks to strike Complainant’s
interrogatories, document requests and deposition notices in their entirety on the grounds that the
April 7, 2005 Order did not grant Complainant additional time to conduct discovery; that the.
Complainant “has not been authorized to conduct discovery and has no legal basis forwhich to
do so;” and that “Respondents have no legal obligation to respond to Complainant’s discovery
requests and do not desire to do so on a voluntarybasis.”
(Motion to
Strike at
¶~f
3,
6 and 7.)
II.
RELEVANT
LEGAL STANDARD
The purpose of discovery is to
enable attorneys to better prepare and
evaluate their cases.
See
Carlson v.
General Motors Corp., 289 N.E.2d 439, 449 (Ill. App.
1st Dist.
1972);
see also
Terry v. Fisher,
145 N.E.2d 588,
593
(Iii.
1957).
In Carlson, the Court reiterated the purpose of
3
discovery: “the principle is nowwell established that the purposes oflitigation are best served
when each partyknows as much about the controversy as is reasonably practicable.” 289 N.E.2d
at 449.
The Supreme Court Rules specifically provide that a party is entitled
to
full disclosure
regarding “any matterrelevant to the subject matter.”
Ill.
Sup.
Ct. R. 201(b)(1).
Courts have
further held that discovery presupposes a range ofrelevance and materiality that includes not
only what is admissible at trial, but also that which leads to what is admissible at the trial.
See
Krupp v.
Chicago Transit Auth.,
132 N.E.2d 532,
535
(Ill.
1956).
The Illinois
Supreme Court
has expressed its preference for extensive disclosure through discovery.
People v. Williford, 649
N.E.2d 941, 944 (Ill.App. 5th Dist.1995).
Thus,
discoveryfor eachparty is favored and should
not be denied withoutjust cause.
Id.
III.
RESPONDENTS’ MOTION TO
STRIKE
MUST BE DENIED
A.
Complainant’s Discovery Requests Are Directly Relevant to the Numerous, Factual
Allegations Made by Respondents
Respondents introduced bald factual allegations into this proceeding concerning the
reasonableness ofComplainant’s Attorneys’ Fees and Costs Petition in light ofthe Respondents’
own attorneys’ fees
and costs.
Notwithstanding the irrelevance ofRespondents’ allegations,
Respondents made these allegations,
none ofwhich are a matter ofrecord,
and Complainant
is
entitled to full disclosure regarding the factual bases for them under the principles of discovery.
Discovery is a two-way street, and the standard for discoverability is extremely broad.
It
is a well-established principle that the purposes oflitigation are best served when each party
knows
as much about the controversy as
is reasonablypracticable.
Carison, 289 N.E.2d at 449.
Complainant (and the Board) knows
nothing
abOut Respondents’
attorneys’ fees and costs.
Therefore, Complainant served timely, focused and limited interrogatories, document requests
4
and notices ofdeposition regarding Respondents’
attorneys’ fees and costs.
Respondents do not argue that Complainant’s discovery requests seek privileged or
confidential information such that Respondents need not answer.
Respondents do not raise just
cause for entirely striking Complainant’s discovery requests.
Instead, Respondents have
introduced bald allegations into this proceeding and now seek to prevent Complainant from
conducting any discovery into these allegations.
Respondents’
Motion to Strike rests solely on
the April 7, 2005 Order, which does not support the extraordinary relief sought in their Motion to
Strike.
Indeed, that Order neither addresses Respondents’ factual allegations nor prohibits
Complainant’s discovery requests.
Respondents interpret this silence as support for their Motion
to
Strike.
This interpretation is unfounded.
Obviously, the April 7, 2005
Order does not
contradict the basic discovery concept offull disclosure.
For these reasons, Respondents’
Motion to Strike must be denied.
B.
Complainant Will Be
Severely
Prejudiced IfRespondents Do
Not Answer Its
Discovery Requests
Respondents also do not argue that they will be prejudiced in any way by answering
Complainant’s discovery requests.
On the other hand, Complainant will be severely prejudiced if
Respondents do not fully disclosethe factual bases for their allegations.
Without full disclosure, Complainant cannot be fully apprised ofthe factual bases for
Respondents’
allegations, none ofwhich are a matter of record.
Complainant will be unprepared
and severely prejudiced at a hearing on the reasonableness of the Attorney’s Fees and Costs
Petition it is denied such information.
Again,
the purpose ofdiscovery is to
enable attorneys to
better prepare and evaluate their cases.
~
Carison, 289 N.E.2d at 449; Terry,
145 N.E.2d at
593.
Absence full disclosure by Respondents, Complainant cannot be adequately apprised or
5
prepare for hearing, which will result in severe prejudice to Complainant.
For these reasons,
Respondents’ Motion to
Strike must be denied.
C.
Respondents Also Failed to Comply With Rule 201(k)
Respondents
also failed to
comply with Rule 201(k).
Neither ofRespondents’
attorneys
even telephoned Complainant’s attorneys prior to filing the Motion to Strike.
(See Exhibit B at
3.)
HadRespondents
initiated a conferencepursuant to Rule 201(k) to informally resolve
differences, their frivolous Motion to Strike could have been avoided.
To date, Complainant’s
attorneys still have not heard
from Respondents’
attorneys, despite Complainant’s letter, dated
May 24, 2005.
(~çi~)
Respondents’
failure to contact Complainant regarding a discovery dispute
prior to filing yet another pleading violates Rule 20 1(k) and the letter and spirit ofthe April 7,
2005
Order, which expressly discouraged pleadings that are not designed to
further a speedy and
ultimate resolution ofthis case.
(Order at 4 (April 7,
2005).)
Both Rule 20 1(k) and the April
7,
2005
Order required an informal dispute resolution process between the parties prior to filing
furtherpleadings.
Respondents refused to participate in that process.
This provides yet another
basis to
deny their Motion to Strike.
IV.
CONCLUSION
Respondents placed their attorneys’ fees and costs at issue.
However, Respondents’ bald
allegations regarding their own
attorneys’ fees
and costs are not a matter ofrecord.
Complainant
(and the Board) knows nothing about Respondents’
attorneys’ fees and costs.
Without just
cause, Respondents now seek the extraordinary reliefofa Board Order preventing full disclosure
regarding the bases for their bald allegations.
Respondents have not objected to the substance ofComplainant’s discovery requests or
claimed any privilege.
Complainant will be
severelyprejudiced if it must proceed to hearing
6
without being adequately apprised ofRespondents’
allegations through limited and focused
discovery.
Discovery is a two-way street and Complainant is
entitled to full disclosure under the
rules ofdiscovery.
Contrary to
the Respondents’
contention, the April 7, 2005 Order does not
support the extraordinaryrelief sought.
Lastly, Respondents also
failed to comply with Rule 20 1(k) and the April 7, 2005
Order
prior to filing yet another pleading with the Board.
Had Respondents attempted to resolve their
differences informallywith Complainant prior to
filing another pleading, theirMotion to Strike
could have been avoided.
For each ofthese reasons, Respondents’ Motion to
Strike must be
denied, and Respondents must be ordered to
answer Complainant’s discovery requests regarding
attorneys’ fees
and costs.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
ofthe State ofIllinois
BY:4~~
MICHAEL C.
PARTEE (Tel 312/814-2069)
MITCHELL L.
COHEN (Tel 312/814-5282)
Assistant Attorneys General
Environmental Bureau/North
188 West Randolph, Suite 2001
Chicago, Illinois
60601
7
)
)
)
)
)
)
)
)
)
)
)
)
PCB 96-98
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~Ii~
C
E ~V~D
CLERK’S OFFICE
PEOPLE OF
THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
ofthe State ofillinois,
Complainant,
.
)
)
V.
.
)
SKOKIE VALLEY
ASPHALT CO., INC.,
an Illinois Corporation, EDWIN L. FREDERICK,
JR., Individually and as Owner and President of
Skokie Valley Asphalt Co., Inc., and
RICHARD
J. FREDERICK, Individually
and
as Owner and Vice President ofSkokie
ValleyAsphalt Co., Inc.,
)
Respondents.
.
)
•
NOTICE
OF DISCOVERY
TO:
See Certificate of Service
PLEASE TAKE NOTICE that I have today caused to be filed
with the
Office of
the Clerk
ofthe Pollution Control Board the
Complainant’s Interrogatories, Document Requests and
Deposition Notices to Respondents Regarding
Complainant’s Fee Petition,
true and
correct
copies ofwhich
are herewith served upon you.
Respectfully submitted,
PEOPLE OF THE
STATE OF
ILLINOIS,
by LISAMADIGAN, Attorney General
ofthe State ofIllinois
BY:
___________
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
Tel:
312-814-2069
APR25
2005
STATE OF
ILLINOIS
Pollution Control Board
THIS FILING
IS
SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
It is hereby certified that true an.
correct copies ofthe foregoing Notice and
Complainant’s Iiiterrogatories, Document Requests and Deposition Notices to Respondents
Regarding Complainant’s Fee Petition were
mailed, first class postage prepaid, to
each ofthe
following on April 25, 2005:
Carol Webb, Hearing Officer
David S.
O’Neill, Bsq.
illinois Pollution
Control
Board
5487 N. Milwaukee Ave.
1021 N. GirandAve. E.
Chicago,1L60630
P.O. Box 19274
• Springfield, IL 62794-9274
Michael B. Jawgiel, Esq.
5487 N. Milwaukee Ave.
Chicago, IL 60630
.
.
BY:
‘~‘~‘~‘~
~
MICHAEL C. PARTEE
It is hereby certified that the original plus nine (9) true and correct copies ofthe foregoing
Notice and
Complainant’s Interrogatories, Document Requests and Deposition
Notices to
Respondents Regarding
Complainant’s
Fee Petition were also hand-delivered to
the following
on April
25,
2005:
Dorothy M. Gunn, Clerk
Illinois Pollution ControlBoard
•
James R.
Thompson Center
100
West Randolph Street, Suite 11-500
Chicago, illinois 60601
BY:
__________
MICHAEL C. PARTEE
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
•
.
.
REc~y~D
PEOPLE OF
THE
STATE OF
ILLINOIS,
..
)
CLERK’S OFFICE
by LISA
MADIGAN, Attorney General
)
.
APR 25
2~05
ofthe State of
illinois,
.
)
STATE OF QLI1~JOIS
Complainant,
)
.
PoHut~on
Controi 6owd
)
v.
)
)
SKOKIB
VALLEY
ASPHALT
CO., INC.,
)
PCB 96-98
an Illinois Corporation,
EDWIN L.
FREDERICK,
)
JR.,
Individually
and as
Owner
and President of
)
Skokie ValleyAsphalt Co., Inc., and
)
RICHARD J. FREDERICK, Individually
)
and as
Owner
and Vice President ofSkokie
)
Valley Asphalt Co., Inc.,
.
)
•
)
Respondents.
)
COMPLAINANT’S INTERROGATORIES TO RESPONDENTS
REGARDING COMPLAINANT’S FEE PETITION
Pursuant
to Illinois Pollution Control Board Rule
101.620, 35
111. Adm.
Code 101 .620,
and Illinois
Supreme Court Rule 213, Complainant, PEOPLE OF
THE
STATE OF ILLINOIS,
requests that Respondents, SKOKIEVALLEY ASPHALT
CO.,
INC., EDWIN L. FREDERICK,
JR.,
and RICHARD J. FREDERICK,
answer
in writing, under oath, on orbefore May 25, 2005,
the following interrogatories:
S
I.
INSTRUCTIONS
1.
The Respondents are required, in answering these interrogatories to furnish all
information available to the Respondents or their attorneys, employees, agents, contractors,.
experts, or consultants, orwhich is
ascertainable by reasonable inquiry
whether or not the
requested information might be available from another
entity.
2.
Ifan interrogatory has subparts, the Respondents are requiredto answer eachpart
separately and in full.
.
S
3.
Ifthe Respondents cannot answer an interrogatory in full, they are required to
answer all parts ofthe interrogatory to the extent possible and specify the reason for their
inability to provide additional information.
S
4.
As to each interrogatory, or portion thereof, identify in the answer every oral
communication,
dOcument or writingwhich relates to •the interrogatoryor response, whether or
not such id~ntiflcation
is specifically requestedby the interrogatory.
5.
In
answering each interrogatory, identify each document, person, communication
or meeting which relates to, corroborates, or in any way forms the basis for the answer given.
6.
TheRespondents shall
make
the requested documents available for inspection
and
copying at the Office of the Illinois Attorney General, 188. West Randolph Street, Suite 2001,
Chicago, Illinois.
7.
Pursuant to illinois Supreme Court Rule 213(e), the Respondents
arerequested to
serve upon Complainant corrected, supplemented or augmented answers hereto, documents or
other forms ofinformation from whatever source, which arguably tends to
show that
Respondents’ prior answers are, might be, were or might havebeen in
a sense incorrect,
incomplete, potentially misleading or less than fullyresponsive or truthful.
8.
The Respondents shall supplement its answers and responses as new information
and documents become available.
9.
Ifdates are requested, the exact date should be given if possible.
However, if the
exact date cannot be determined due to absence or inadequacy ofrecords,
the best estimate
should be given as to
the interrogatory and labeled as such.
2
10.
•
In construing these interrogatories:
a.
The singular
shall include the plural and the
plural shall include
the
singular; and
•
S
b.
A masculine, feminine or neuterpronoun shall not exclude the other
genders.
S
11.
Ifyou encounter
any
ambiguity
in construing any interrogatory or any
definition or
instruction pertaining to
any
interrogatory,
set
forth
the matter deemed ambiguous
and
the
construction chosen orused in responding to the interrogatory.
12.
Inproducing documents, you are requestedto furnish all documents or things in
your actual or constructive possession, custody or control, or
known
or available to you,
regardless ofwhether such documents or things are possessed directly by you or by your
attorneys, agents, employees,
representatives or investigators.
13.
This discovery is deemed continuing, necessitating supplemental answers by the
Respondent, or anyone
acting on its behalf, when or if it obtains additional
information which
supplements or alters
the answers now provided.
II.
CLAIMS OF PRIVILEGE
1.
With respect to any interrogatory which Respondents refuse to answer on a claim
ofprivilege, provide a statement signed by an attorney representing the
Respondents
setting forth
for each such assertion ofprivilege:
a.
The name and job title ofeveryperson involved in the conversation or
communication;
b.
The nature ofthe information disclosed;
c.
All facts relied upon in support ofthe claim ofprivilege;
3
d.
All documents related to the claim ofprivilege;
e.
All events, transactions or occurrences related to the claim ofprivilege;
and
S
f.
The statute, rule or decisionwhich is
claimed
to
give rise
to the privilege
•
or the reason for its unavailability.
Ifthe objection relates to
oniy
part
of an interrogatory, the balance ofthe interrogatory should be
answered
in full.
2.
Ifyou
claim
the attorney-client privilege or any other privilege is applicable to
any
document, with respect to that document:
S
a.
State the date ofthe document;
b.
Identify each and every author ofthe
document;
c.
identify each and every otherperson who prepared orparticipated in the
preparation ofthe document;
d.
identify each and everyperson for whom the document was received;
e.
identify each and everyperson from whom the document was received;
f.
State the present location ofthe document and all copies thereof;
g.
Identify each and everyperson having custody or control ofthe docmnent
and all copies thereof; and
S
h.
Provide sufficient further informationconcerning the document to explain
the claim ofprivilege
and
to permit adjudication ofthe propriety ofthat
claim.
4
S
III.
DEFINITIONS
1.
“Attorney fee issue” means the attorney fee issue referenced in the Board’s Order
in this case, dated April 7, 2005, which involves Respondents’ objection to
Complainant’s
petition for attorney’s fees and costs.
S
S
2.
This “case” encompasses the first Violation Notice from the illinois EPA until the
present time.
3.
“Communication” shall mean, without limitation, any and all forms oftransferring
information, including discussions, conversations, meetings, conferences, interviews,
negotiations, agreements, understandings, inquiries, correspondence, documents, or other
transfers ofinformation whether written or oral or by any other means, and includes any
document
which abstracts, digests, transcribes or records any communication.
4.
“Document” shall be construed in its customary broad sense
and
shall include, but
is not limited to, the original and any non-identical copy, whether different
from the original
because ofnotes made on said copy or otherwise, or any agreei~ent;
bank
record or statement;
book ofaccount, including any ledger, sub-ledger, journal, or sub-journal; brochure; calendar;
chart; check; circular; communication (intra- orinter-company or governmental entity or agency
or agencies); contract; copy; correspondence; diary; draft of
any
document; graph; index;
instruction; instruction manual or sheet; invoice; job requisition; letter; license; manifest;
manual; memorandum; minutes; newspaper or other clipping; note; note book; opinion;
pamphlet; paper; periodical or other publication; photograph; print; receipt; record; recording
report; statement;
study;
summary
including any memorandum, minutes, note record, or
summary of
any
(a) telephone, videophone or intercom conversation or message, (b) personal
conversation or interview, or (c) meeting or conference; telegram; telephone log; travel or
5
expense record; voucher; worksheet or working paper; writing; any other handwritten, printed,
reproduced, recorded,
typewritten,
or otherwise produced graphic material from which the
information inquired ofmaybe obtained, or any other documentary material ofany nature, in
the
possessions custody or control ofRespondent.
5.
“Identification” or “identify” shall mean:
S
a.
As to
an individual, stating his orher:
S
~
i.
Full and customarily usednames;
S
ii.
Present business and residence addresses;
iii.
Business orprofession during the relevant time period;
iv.
Everyoffice, title, or position held during the relevant time period;
and
v.
Every employer during the relevant time period.
b.
As to
any person other than an individual, stating:
i.
Its legal name and any other name used by it;
ii.
The form or manner ofits organization
(e.g.,
partnership,
corporation, etc.);
and
iii.
The state ofits
incorporation (if it is
incorporated) and the address
ofits principal place ofbusiness.
S
c.
As to a document, stating:
1.
The date of its creation, execution,
and receipt;
ii.
Its author or signatory;
S
iii.
Its addressee and any other .recipient;
iv.
Its type
or nature
(e.g.,
letter, memorandum, etc.);
6
v.
The identity ofthe custodian;
S
S
S
vi.
The identity ofthe docunient;.and
•
S
vii.
The present location ofthe document.
S
d.
As to any event, incident, conversation, transaction or occurrence, stating:
S
The date;
S
ii.
Theplace where ittook place and the manner ofits occurrence;
iii.
Identification ofall the participants;
iv.
Its purpose and subject matter; and
v.
A description ofwhat transpired.
6.
The term “knowledge” means first hand information andlor information derived
from any other source,
including hearsay.
S
7.
“Person” shall include, but is not limited to,
any
natural person; business or
corporation, whether for profit or not; firm, partnership, or other non-corporate business
organization; charitable, religious,
educational, governmental, or other non-profit institution,
foundation, body, or other organization; or employee, agent, or representative ofany ofthe
foregoing.
S
8.
“Or” shall mean and/or wherever appropriate.
S
9.
“Related to” or “relating to” shall mean
anything
which, directly or indirectly,
concerns, consists of, pertains to, reflects, evidences, describes, sets forth,
constitutes, contains,
shows, underlies, supports, refers to in any way, is or was used in the preparation of, is appended
to, is legally logically or factually connected with, proves, disproves, or tends to prove or
disprove.
S
S
7
10.
“Relied upon” shall meanbeing or having been dependedupon or referred to or
being orhaving been arguably appropriate for such reliance.
11.
“Respondents” shall mean SKOKIE VALLEY ASPHALT CO., INC., EDWIN L.
FREDERICK., JR., and RICHARD J. FREDERICK D’Angelo Enterprises, Inc.,
and any of
Respondents’
attorneys, employees,
agents, representatives, successors or assigns, or any other
person acting orbelieved by Respondents to have acted on their behalf.
S
S
IV.
INTERROGATORIES
Interro~atorv
#1
Identifythe individual(s) answering these interrogatories on behalfofthe Respondents,
including his relationship to theRespondents,
and how long he has been associated with the
Respondents.
Specifythe particular interrogatories to which each suchperson contributed.
Answer:
InterrogatorY #2
5
With respect to any witnesses that Respondents may call at a hearing on the attorney fee
issue, state the following:
S
S
a.
The name, address and employer of eachwitness;
b.
A
summary
ofthe relevant facts
within
the knowledge of Or to which said witness
will testify; and
c.
A list ofall documents or photographs which
any such witness relied upon,
will
use or which Respondents may introduce into evidence in connection with the
8
S
testimony ofsaid witness.
Answ~
S
InterrogatOry #3
.
S
Identify any
and all
opinionwitnesses that Respondents interviewed and/or expects to
call
at a hearing on the attorney fee issue.
Specify:
S
a.
The subject matter on which the opinion witness is
expected to testify as well as
the conclusions, opinions and/or expected testimony of any suchwitness;
b.
The qualifications, including, but not limited to, the opinionwitness’ educational
S
background, practical. experience in the area in which he is expected to testify,
any
articles or papers he has written, any and all seminars and post graduate training
he has received, his experience, if any, as a teacher or lecturer, and his
professional appointments and
associations;
.
S
c.
The identity ofeach document examined, considered, or relied upon by him to
form his
opinions;
d.
All proceedings in which each opinionwitness has previously testified as an
• opinion
witness;
e.
Any and
all reports ofthe opinion witness;
and
f.
Whether or not each such person viewed, examined, inspected or conducted any
tests at or concerning the site in issue and, ifso, state:
i.
The date of each such viewing, examining, inspecting or testing;
9
ii.
The location at which each such viewing, examining,
inspecting or testing
took place;
S
iii.
The nature ofeach such viewing, examining, inspecting or testing
(i.e.,
visual, photographic,
etc.);
•
S
iv.
The names, addresses, titles, and capacities of all persons present during
each such viewing, examining, inspecting or testing;
and
v.
Whether notes, calculations, reports or other documents were prepared or
made during or as a result ofany such examination, inspection or test, and
identify same.
S
Interrogatory #4
For each attorney that has provided legal services to Respondents related to this
case, list
all oftheir hours spent on such services, as well as the corresponding activity performed,
S
regardless of whether all such hours and activities were actuallybilled to Respondents.
10
Interrogatory
#5
•
S
For each attorney that has provided legal services to Respondents related to this
case,
describe the attorney fee arrangement with Respondents and as between attorneys in this case
(e.g.,
flat fee arrangement, hourly billing arrangement).
S
S
Answer:
.
S
Interrogatory #6
.
S
For each attorney that has provided legal services to Respondents related to this case, list
all oftheir hours spent on such services, as well as the corresponding activity perforn~ed,
that
were billed to Respondents:
S
Answer:
InterrogatorY
#7
5
For each attorney that has provided legal services to Respondents related to this case, list
their hourly billing rate while providing such services, and list any changes in hourly billing rates
during the pendency ofthis case.
Answer:
11
Interrogatory #8
Itemize all costs, on a daily basis, that were billed to Respondents andlor accrued by
Respondents’ attorneys related to this case.
S
S
Answ~
S
Jnterrogatory #9
For each attorney that has provided legal services to Respondents related to this case,
describe their education and legal experience and expertise relevant to this
case.
Answer:
S
InterrogatOry #10
For each attorney that has provided legal services to Respondents related to this case, list
their hourly rate billed in all other similar cases during the same time frame of this case.
Answer:
S
12
Interrogatory #11
Identifythe name, address and telephone number for the attorney(s) that will be
representing attorneys David
S. O’Neill and Michael B. Jawgiel when they give deposition and
hearing testimony on the attorney fee issue.
Answer:
Respectfully submitted,
PEOPLE OF THE
STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
ofthe State ofIllinois
BY:
_____________
MICHAEL C. PARTEE
Assistant Attorney General
EnvirOnmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
Tel:
312-814-2069
‘13
SKOKIE
VALLEY ASPHALT CO., INC.,
an Illinois Corporation, EDWIN L.
FREDERICK,
S
JR.,
Individually and
as Owner
and President of
Skokie Valley Asphalt Co., Inc., and
RICHARD
J. FREDERICK, Individually
and as Owner and Vice President of
Skokie
Valley Asphalt Co., Inc.,
S
BEFORE
TIlE
ILLINOIS POLLUTION CONTROL BOARD
S
c~E~v~D
PEOPLE OF THE STATE OF
ILLINOIS,
)
S
CLERK’S
OFFICF
by LISA MADIGAN, Attorney General
)
of
the
State ofIllinois,
)
APR
2
5
2005
• STATE OF
äWNOIS
Complainant,
.
S
S
Pollution
tjQfltr~J
f3oard
V.
)
)
)
)
)
)
PCB
96-98
)
)
)
)
)
)
)
Respondents.
)
COMPLAINANT’S DOCUMENT REQUESTS TO RESPONDENTS
REGARDING COMPLAINANT’S FEE PETITION
Pursuant to illinois
Pollution Control Board Rule 101.620,
35
111. Adm. Code
101.620,
and Illinois Supreme
Court Rule
214, Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
requests that Respondents,
SKOKIE VALLEY ASPHALT CO., INC., EDWIN L. FREDERICK,
JR.,
and RICHARD
J.
FREDERICK, produce, under oath, on or before May
25,
2005, following
documents for inspection and
copying
at the Office ofthe Attorney General,
188 West Randolph
Street, Suite
2001,
Chicago, Illinois:
L
INSTRUCTIONS
1.
If any requested document is not or cannot be produced in full, produce it to the
extent possible,
indicating with particularity what documents or portion of
any such documents is
not or
cannot
be produced and the reason therefore.
2.
Ifno documents ever existed that address the subject ofany request, please state
S
so affirmatively for each applicable request.
S
3.
Ifa document responsive to
any request existed in the past, but does not currently
exist, Respondent is instructed to provide all available information about
the
author and contents
ofthat document and the circumstances ofits destruction.
4.
In producing documents, you are requested to produce the original of each
document requested together with all non-identical copies and drafts ofthat document.
5.
All documents should be produced in the same order as they are kept or
maintained by you.
.
S
6.
All documents should be produced in
a file, folder, envelope, or other container in
which the documents are kept ormaintained by you.
Iffor any reason the container cannot be
produced, please produce copies ofall labels or other identifying niarldn~s.
7.
Documents attached to each other should not be separated.
8.
Documents
not otherwise responsive to this request shall be produced if such
documents refer to, relate to, or explain the documents called for by this request and constitute
routing slips, transmittal memoranda or letters,
comments, evaluations, or similar documents.
9.
Each document request should be
construed
and responded to independently from
each other request.
The scope ofany requests should not be construed to limit or narrow the
scope of any other request.
S
10.
Complainant incorporates by reference herein the
Instructions,
Claims
ofPrivilege
and
Definitions sections of Complainant’s
Interrogatories to Respondent Regarding
Complainant’s Fee Petition.
2
II.
DOCUMENT
PRODUCTION
REQUEST
S
1.
A daily accounting ofall hours, as well as the corresponding activity performed,
for each
attorney
that has provided legal services to Respondents related to
this
case, regardless
ofwhether all such hours and activities were
actually billed to Respondents.
2.
All time records for each attorney that has provided legal services to
Respondents
relatedto this case.
3.
A daily accounting ofall costs incurred by each attorney that has provided legal
services to Respondents related to this case, regardless of whether all such costs were actually
billed to Respondents.
4.
All invoices for attorney’s fees from Respondents’
attorneys related to
this
case.
5.
All invoices for costs incurred by each ofRespondents’
attorneys related to this
case.
6.
A daily accounting ofall costs directly incurred by Respondents related to
this
case.
.
S
7.
All documents identified, relating to, and/or referred to in Respondents’
or
Respondents’
attorneys’ answers to Complainant’s Interrogatories to Respondent Regarding
Complainant’s Fee Petition.
S
3
Respectfully submitted,
PEOPLE
OF THE STATE OF ILLINOIS,
by LISA MADIGAN,
Attorney General
ofthe
State ofIllinois
BY:
(1A~M~
MICHAEL C.
PARTEE
Assistant Attorney
General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
Tel: 312-814-2069
4
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
S
RECE~V~D
PEOPLE OF THE
STATE OF ILLINOIS,
)
CLERK’S OFFICE
by LISAMADIGAN,
Attorney General
)
S
ofthe State ofillinois,
)
.
APR
252005
S
)
S
STATE OF ILUNOIS
S
Complainant,
)
.
Pollution
Control Board
)
v.
S
)
)
SKOKIE
VALLEY
ASPHALT
CO., INC.,
)
PCB 96-98
an illinois Corporation,
EDWIN L. FREDERICK,
)
S
S
JR., Individually and as Owner
and President
of
).
S
Skokie Valley Asphalt Co., Inc.,
and
)
RICHARD 3. FREDERICK, Individually
)
and as Owner and Vice President of Skokie
)
Valley Asphalt Co., Inc.,
‘
)
S
Respondents.
)
S
COMPLAINANT’S DEPOSITION NOTICES TO RESPONDENTS
S
REGARDING COMPLAINANT’S FEE PETITION
To:
See Certificate of Service
PLEASE
TAKE
NOTICE that counsel for Complainant shall, pursuant to Illinois
Pollution Control Board Rule 101.622,
35
111. Adm.
Code 101.622, and Illinois Supreme Court
Rule
206,
take
the discovery depositions ofthe following persons con’imencing on the dates and
times
indicated at the Attorney General’s Office, Environmental Bureau North,
188 West
Randolph
Street, Suite 2001,
Chicago. Illinois 60601:
1.
David S. O’Neill beginning at 9:30 a.m. on June 16, 2005
and
2.
Michael B. Jawgielbeginning~t1:30 p.m. on June 16, 2005.
submitted,
S
PEOPLE OF
THE
STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
ofthe State ofIllinois
BY:
MICHAEL
C. PARTEE
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
ChicagO, Illinois 60601
Tel: 312-814-2069
2
OFFICE OF THE A’TTORNEY GENERAL
STATE OF
ILLINOIS
Lisa Madigan
May 24, 2005
ATTORNEY GENERAL
Sent
Via First Class Mail
S
Mr. David S.
O’Neill,
Esq.
5487
North.
Milwaukee Avenue
Chicago, Illinois 60630-1249
Re:
Discovery
—
People v. Skokie ValleyAsphalt Co., Inc.,
et al.,
PCB
96-98
Dear
Mr. O’Neill:
I enclose Complainant’s answers to
Respondents’ requests to
admit facts, interrogatories
and document requests pertaining to the petition for fees and
costs.
The purpose
of this
letter is
to initiate
a conference pursuant to Illinois
Supreme Court Rule 201(k) to resolve any potential
differences over Respondents’ requests.
This letter also addresses Respondents’
deposition
notice for former Assistant Attorney General Bernard Murphy.
Lastly, this letter addresses
Respondents’ failure to
comply
with Rule 201(k) prior to filing their Motion to Strike
Complainant’s discoveryrequests pertaining to
the petition for fees and costs.
Complainant’s Three Main Objections to Respondents’ Discovery Requests.
Categorically, we object to Respondents’ requests for three main reasons.
t,
and most
troubling, your discovery requests contain inflammatory allegations and insinuations ofperjury,
unethical conduct, over-billing and
other improprieties by the Attorney General’s Office,
particularly
by former
Assistant Attorney General Joel Sternstein.
None of these allegations
and
insinuations has any thread
oftruth.
These are attacks
on Complainant’s attorneys and
have no
application to
any issue
in the case.
It is truly a sad chapter in any case when an opposing
attorneyresorts to this sort ofbullytactic.
S
S
Properly conducted,
this
should be a
dignified
procedure.
As attorneys, we
are
officers of
the
court
—
in this case the Board
—
and
we owe aprofessional duty to the Board
and
to each
other.
Your allegations and insinuations clearly exceed all
bounds.
In any other case, we would
file a motion for a protective order and
sanctions.
However, given the letter and spirit ofthe
Board’s last order, dated April 7, 2005, which expressly directed us to resolve this
in a speedy
manner,
we decidedto
write you instead.
Frankly,
we hope that theproblem ends with this
letter.
The Attorney General’s Office has acted in an above-board
and professional manner in
this
case.
We expect the same in return.
I know thatthe Board is loathe to hear another discove
dis
ute,
S
EXHIBIT
B
500 South Second Street, Springfield, Illinois
62706
•
(217) 782-1090
•
TTY:
(217) 785-2771
•
Fax:
(21
—
100 West Randolph
Street, Chicago, Illinois
60601
•
(312) 814-3000
•
TFY: (312) 814-3374
•
Fax:
(31
Letter to David
S. O’Neill
S
May 24, 2005
5
Page2
S
S
but we will
bring this
problem to the Board’s attention ifit continues.
S
~
Complainant objects to Request to Admit Fact Nos. 3,
11,
12,
13,
15,
16,
17, 18,
19,
20,
and
37, InterrogatoryNo.
14,
and
Document Request Nos. 6, 7,
10,
11,
12,
17
and
21 on
relevance grounds
and
because they violate the Board’s
Order, dated April
7, 2005.
These
requests seek infonnation regarding Complainant’s request for
AAG
Sternstein’s fees, which
were previously disallowed by the Board.
The Board expressly orderedthat “the parties
are
not
to address
AAGS
Sternstein’s fees
in conducting discovery or at hearing.”
(I~)For these
reasons, Complainant does not answer these particular requests.
S
S
fl~jI~,
Complainant objects to Request to Admit Fact Nos. 4,
5,
6, 8, 9, 27, 28,
and
30,
Interrogatory Nos.
16
and
23(i),
and
Document Request Nos.
5,
7,
8
and 9 on relevance
and
privacy grounds because they seek infonnation regarding personal compensation to the Assistant
Attorneys
General in
this
case.
An Assistant Attorney General’s personal compensation
has
no
bearing on the petition for fees
and
costs.
These requests regarding personal compensation are
harassing
and
made in bad faith,
and are
not designed to resolve this dispute in a speedy
and
final
manner.
Your transparent attempt to
develop the argument that
our
billing rate does not reflect
our
salary is not only irrelevant under the legal standard, but
it is so vastly oversimplified as to
have no validity.
You fail to recognize that
our
billing rate would not reflect our salary because
employee benefits, employer’s liability insurance, overhead costs (rent, office equipment, support
staff, etc.) and many, many other distributions
and
costs, are also included in thatbilling rate.
You also fail to acknowledge that, as governmental attorneys,
our
billing rate is
already well
below that ofa similarly experienced environmental attorneyin private practice in downtown
Chicago.
That said, this is not
an invitation to audit the Attorney General’s Office.
The
point
is
that no attorney “takes home”
his
hourly billing rate,
so his salary is irrelevant to the
reasonableness ofhis requested fees.
We
did
not locate
any Board or court precedentwhere personal compensation was
allowed oreven considered in determining the reasonableness ofa petition for fees
and
costs.
It
is simply not a factor considered by the Board or courts.
The Boardhas previously found that an
hourly of $150.00 per hour is reasonable for an Assistant Attorney General.
See
e.g., People v.
J
&H1g.~5,
PCB 02-21
(May
1, 2003).
Therefore, the
only
relevant issue is the
reasonableness ofthe
amount
ofhours billed
and
the costs incurred.
For these reasons,
Complainant does not answer these particularrequests.
S
Respondents’ Deposition Notice for
Former
AAG
Murphy
We received Respondents’
deposition notice for former
AAG Murphy’s deposition on
June 24, 2005.
Please be advised that
AAG
Murphy left the Attorney General’s Office
(on good
terms)
last year. Ifyou
~4
to depose him, please contact
him directly.
Mr. Murphy now serves
as Assistant General Counsel, Department ofLaw, City ofChicago Board ofEducation,
125
South Clark Street, 7th Floor, Chicago, Illinois.
S
Letter to David S. O’Neill
May 24, 2005
Page 3
S
Respondents’ Failure to Comply With Rule 201(k)
Prior to Filing TheirMotion to Strike
S
Lastly, you failed to
comply with Rule 201(k) prior to filing
Respondents’ Motion to
Strike Complainant’s
discovery requests.
We did not even receive a telephone call from you (or
Michael Jawgiel) in this regard.
Hadyou contacted us, we may have been able to resolve this
dispute informally and without further, needless litigation.
We served youwith discovery requests because you made numerous, factual allegations
concerning the petition for fees
and
costs that are not a matter ofrecord.
As one example, in
paragraph
17 of “Respondents’ Initial Response To And Motion To Stay And/OrExtend Time
To Respond To Complainant’s Petition For Attorneys’ Fees And Costs,” you alleged the
following:
It is hard to justi1~’
a claim for attorneys’ fees and cost
sic
by the
S
Illinois Attorney General’s office that is approximately tentimes
the
amount
that three Respondents combined paid to defend
themselves against frivolous claims.
Respondents’ legal fees
and costs are
not a matter of record.
Your dispute of the petition for fees
and
costs is based, in part, on a comparison between Complainant’s
and
Respondents’
fees and
costs and we are entitled to conduct discovery on it.
You also made numerous other factual
allegations that
are not a
matter ofrecord.
Furthermore,
there is no
prejudice or hardship to you
in answering our discovery requests.
On the other hand,
we cannotbe
adequately apprised of
your allegations if you refuse to answer our limited and
focused discovery requests.
In order to
resolve
this
dispute, we invite you to contact us pursuant to Rule 201(k).
S
Michael C. Partee
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
S
Tel: (312)814-2069
Fax:
(312)814-2347
E-Mail: mpartee~atg.
state.il.us
cc:
Carol Webb, Hearing Officer
Michael B.
Jawgiel, Bsq.
