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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
C 62005
STATE OF ILUNOlS
PEOPLE OF THE STATE OF
ILLINOIS,
)
Pollution Control Board
Complainant,
)
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., INC.,
)
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 of
)
Skokie Valley Asphalt Co., Inc.,
)
Respondent
)
NOTICE OF FILING
I’LEASE TAKE NOTICE that I have today filed with
the Office ofthe Clerk ofthe Pollution
Control
Board the RESPONDENTS’ MOTION TO STRIKE COMPLAINANT’S OBJECTIONS
TO DISCOVERY AND MOTION TO COMPEL COMPLAINANT’S RESPONSE TO
DISCOVERY REQUEST, a copy ofwhich is hereby served upon you.
Da~4~.
O’Neill
July
6, 2005
E)avid S.
O’Neill, Attorney at Law
5487
N. Milwaukee Avenue
Chicago, IL 60630-1249
(773)792-1333
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
JUL
062005
PEOPLE OF THE
STATE OF
ILLINOIS,
)
oTATE OF ILLl~\;OjS
Complainant,
)
POH~tj~~
Control Board
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., INC.,
)
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 of
)
Skokie Valley Asphalt Co., Inc.,
)
Respondents
)
RESPONDENTS’
MOTION TO
STRIKE
COMPLAINANT’S OBJECTIONS TO
DISCOVERY AND MOTION TO COMPEL
COMPLAINANT’S RESPONSE TO
DISCOVERY REOUEST
The Respondents, 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.,, by and through its attorney, David
S. O’Neill, herein move this Board to
strike the
Complainant’s objections to the Respondents’
request for Discovery and compel the
Complainant’s response to Respondents’
requests for discovery and in support thereofstates as
follows:
PROCEDURAL HISTORY
1.
On April
7, 2005, the Board issued an Order in the above captioned matter.
In this Order,
the Board granted the Respondents’
motion for extension oftime to
allow for discovery.
2.
The Order states that “the Board will grant the respondents additional time in order to
conduct discovery...” Order ofApril 7, 2005 at 3.
In the Conclusion ofthe Order, the
Board “grants respondents’ motion for extension of time and authorizes
respondents
tO
1
conduct discovery on the attorney fees
issue”.
Id at 4.
3.
On April
25,
2005, the Respondents filed with the Board the “Respondents’ First Set of
Interrogatories Regarding Attorneys’
Fees, Costs and
Expenses”, Respondents’
First Set
of Document Requests Regarding Attorneys’
Fees, Costs and Expenses”, “Respondents’
First Request for Admission ofFacts
Regarding Attorneys’ Fees, Costs and
Expenses”
and “Notice ofDeposition Regarding Attorneys’
Fees, Costs and Expenses”.
4.
The discovery request stated that the responses to discovery should be
delivered by May
25,
2005
consisted with the requirements ofIllinois Supreme Court Rule 213
and the
Board Order ofApril 7,
2005.
5.
The Complainant and
its attorneys failed to
deliver the responses to discovery by the
deadline established by the Illinois Supreme Rule 213 and the Board Order ofApril
7,
2005.
6.
Instead, the Complainant’s attorney sent objections to the Respondents’ discovery
requests and failed to respond to request to
admit facts Nos. 3,4,
5, 6, 7,
8, 9,
11,
12,
13,
15,
16,
17,
18, 19,20,27,28,30
and 37, document requests Nos. 5,6,7,8,9,10,11,12,
17 and
21
and interrogatories16, 21, and 23.
7.
The Complainant’s limited response to the remaining discovery request is generally
evasive and non-responsive
and subject to objections that misinterpret Board orders or
have no basis in legal standards for objections.
These responses can be addressed through
a 20 1(k) conference after the issue ofthe validity ofthe objections has been addressed by
the Board.
8.
Under the pretense of responding to the Respondents’ request for discovery, the
Complainant’s attorney also sent a communication to the Respondents’
attorney, in a
form and manner not allowed for.by the Board’s Procedural Rules
stating that they would
not be supplying full response to the Respondents’ request for discovery.
The
Complainant’s attorneys also attempted to have the communication made part ofthe
Board’s record in this
case by making the communication an ex-parte communication
with a Board employee.
9.
In
its Notice of Deposition, the Respondents requested that the Complainant produce
Mr.
2
Mitchell Cohen and Mr. Bernard Murphy for deposition on June 24, 2005 pursuant to the
provisions of Section 2-1003 ofthe Illinois
Code ofCivil Procedure.
10.
The Complainant failed to produce either Mr. Cohen or Mr. Murphy for deposition on
.June 24, 2005 as required under Section 2-1003 ofthe Illinois Code ofCivil Procedure.
THE COMPLAINANT’S OBJECTIONS SHOULD BE STRICKEN
11.
The objections presented by the Complainant’s lack the specificity required ofany
objection to
a request for discovery.
In its objections to Respondents’
discovery requests,
the Complainant relies on general objections and
fails to specifically state the basis for
each objection.
12.
The burden ofdemonstrating that a request for discovery is improper is on the party
responding to the discovery request
—
in this situation, the Complainant.
13.
Absent an argument identifying the portion ofthe discovery request that
is being objected
to
and a legal basis for the objection, the Complainant’s objections can not stand.
14.
The general objections given by the Complainants, even if applied to specific portions of
discovery requests, are not the basis for objections.
15.
In its general objections, the Complainant attempts to misconstrue the statement in
the
Board’s Oder ofApril 7, 2005 that requires that “any pleading by either party not
designed to
further a speedy and ultimate resolution of this case will not be
tolerated by
the hearing officer or the Board.”
(Complainant’s Answers and Objections filed May 24,
2005 at 2.)
16.
The Respondents’ discovery requests are consisted with the Board’s goal ofa “speedy
and
ultimate resolution of this case”.
Discovery is the tool that allows
for the exchange of
information needed to resolve legal disputes.
The “Respondents’ First Set of
Interrogatories Regarding Attorneys’
Fees, Costs and
Expenses”, Respondents’
First Set
of Document Requests Regarding Attorneys’
Fees, Costs and Expenses”, “Respondents’
First Request for Admission ofFacts
Regarding Attorneys’
Fees, Costs and Expenses”
and “Notice ofDeposition Regarding Attorneys’ Fees, Costs and Expenses” are intended
to allow the Respondents to gather the information required to prepare its
response to
the
3
request for fees and cost in a timely manner.
1 7.
The Respondents prepared and served its
discovery request consistent with the schedule
established by the Board in its
Oder ofApril 7, 2005 to help ensure the speedy and
ultimate resolution of this case.
18.
It is the action ofthe Complainant and its attorneys that jeopardize the speedy and
ultimate resolution of this manner
19.
The time it would take the Complainant
to respond to the Respondents’
requests for
discovery is inconsequential compared to the delay now caused by the Complainant’s
failure to
comply with the Board’s discovery schedule.
20.
In its general objections, the Complainant also attempts to misconstrue the statement in
the Board’s Order of April 7, 2005 that requires that “the parties are not to address AAG
Joel
Sternstein’s fees
in conducting discovery or at hearing.”
(Complainant’s Answers
and Objections filed May 24, 2005 at 2.)
21.
Nothing in the Respondents’
discovery request addresses either Mr. Sternstein’s or the
Board’s misconduct in this case.
However, the Board’s attempt to limit discovery the
with respect to
the conflict of Mr.
Sternstein should not be
interpreted to prevent the
Respondents from
investigating Complainant and its attorneys other misconduct and
ethical breaches.
22.
Among the issues that Respondents need to
address through discovery is the conduct of
the remaining attorneys in supervising Mr. Sternstein during the periods in which he
violated Board procedural rules and the ARDC Code ofEthics,
the possibility ofex parte
communication between the remaining attorneys and the Board employees, the
knowledge the remaining attorneys had ofMr. Sternstein’s misconduct and ex parte
communications, the level to which the remaining attorneys instructed and condoned Mr.
Sternstein’s misconduct, the reason why Mr. Cohen has filed false affidavits with the
Board and the reason why the remaining attorneys are now claiming fees for work that
Mr. Sternstein claimed to have been preformed and the Board has ruled can not be
recovered by the Complainant.
23.
The Respondents’
discovery requests are designed to gather information on these issue
4
and are required to allow the Respondents’
to prepare its response to
the Complainant’s
request for fees and
costs.
24.
The Complainant’s objection to the Respondents’
request for information based on the
argument that Mr. Stemstein may have been involved in the misconduct ofthe other
attorneys should not be allowed.
25
In its general objections, the Complainant objects to responding to
request for discovery
that it has unilaterally determined are not relevant
..
They also object to answering
requests for discovery on privacy ground. (Complainant’s Answers and Objections filed
May 24, 2005 at 2.)
26.
The Respondents’
request for discovery are designed to discover facts or lead to
facts that
are required to
prepare its response to the Complainant’s attorneys fees. As such, they are
relevant.
27.
There is no legal or logical basis for refusing to respond to request for discovery on an
argument of privacy.
The very purpose ofdiscovery
is to allow for the exchange of
personal information.
This argument is
further discredited by the fact that most of the
information requested by the Respondents to
which the complainant and its
attorneys are
objecting are part of the public record.
28.
The remaining general objections stated by the Complainant and
its attorney are so poorly
argued that they defy response by the Respondents.
COMPLAINANT’S SHOULD BE COMPELLED TO
RESPOND
TO RESPONDENTS’
DISCOVERY REOUESTS
29.
The Board has consistently held that discovery should be
as wide as possible with respect
to the facts ofthe case to
allow the issues to
be developed as fully as possible.
Environmental Protection Agency v. Decatur Sanitary District, et.
al. PCB 77-157 at 2;
People ofthe State ofIllinois
v. Doren Poland. Lloyd Yoho. et.
al. PCB 98-148 at 2.
30.
The Board’s statements
in its Order ofApril 7, 2005 requesting limited discovery and
stating “any pleading by either party not designed to further a speedy and ultimate
resolution ofthis case will not be
tolerated by the hearing officer or the Board.” are
not
5
inconsistent with the Board’s position of allowing broad discovery.
31.
“Respondents’ First Request for Admission ofFacts Regarding Attorneys’
Fees, Costs
and
Expenses” are intended to allow the parties to identify items not in dispute and
consequently avoid
further discovery and delays.
32.
The
“Respondents’ First Set ofInterrogatories Regarding Attorneys’
Fees, Costs and
Expenses” are intended to allow the Respondent to
identify issues and non issues to
be
addressed at Deposition or reasonably argued in the Respondents’ Response to
Complainants Demand for Attorneys’ Fees and Cost.
33.
The “Respondents’ First Request for Admission of Facts Regarding Attorneys’
Fees,
Costs and Expenses” is intended to allow the Respondent to
obtain documents necessary
to
verify other responses obtained from the Complainant and
allow the Respondents to
clarify any discrepancies through deposition.
34.
Consequently,
thorough and timely discovery is consistent with the Board’s objective of a
speedy and ultimate resolution of this case.
35.
It is the Complainant’s pleadings and responses that raise objections to reasonable
discovery and
fail to supply information required to allow the Respondents to prepare a
response to the Complainant’s Demand for Fees and Cost that would be classified as a
pleading not designed to further a speedy and ultimate resolution ofthis case.
Consistent
with
the April
7, 2005
Order, these pleadings and responses should
not be tolerated by
the hearing officer or the Board.
36.
As
such, the Complainant should be compelled to respond to the discovery request
presented by
the Respondents.
RESPONDENT SHOULD
BE COMPELLED TO PRODUCE WITNESSES UNDER
THEIR CONTROL FOR DEPOSITION
37.
In its “Notice ofDeposition Regarding Attorneys’ Fees, Costs and Expenses”, the
Respondents requested that the Complainant produce Mr. Mitchell Cohen and Mr.
Bernard
Murphy for deposition on June 24, 2005
pursuant to the provisions of Section 2-
1003 ofthe Illinois Code ofCivil Procedure.
6
38.
The Complainant failed to produce either Mr.
Cohen or Mr. Murphy for deposition on
June 24, 2005
as required under Section 2-1003 ofthe Illinois Code of Civil Procedure.
39.
The Complainant does not deny that Mr. Cohen is a witness under their control
40.
The Complainants unilaterally decided that Mr. Cohen’s deposition was not timely
scheduled and should not be taken until all written discovery had been completed.
Therefore, the Complainant and
its attorneys refused to produce Mr.
Cohen at the time
and place requested.
41.
The Complainant
did not ask leave of the Board or approval ofthe Respondents in
deciding not to produce the witness.
42.
The Respondents were prepared to take Mr. Cohen’s deposition at the time scheduled and
the Complainant’s failure to produce the witness for deposition has resulted in
unnecessary delay of the Board’s objective of a speedy and ultimate resolution of this
case.
43.
The Complainants should be
compelled to produce witnesses for deposition, or at a
minimum, cooperate with the Respondents in scheduling said depositions to allow for the
speedy and ultimate resolution ofthis case.
Wherefore, the Respondents respectfully request the Board to
strike the Complainant’s Objection
to
Discovery and compel Complainant’s response to discovery and cooperation
in scheduling
depositions.
DavidS.O.~N~Tu1
I)avid S.
O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
7
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached RESPONDENTS’
RESPONDENTS’ MOTION TO STRIKE COMPLAINANT’S OBJECTIONS TO
DISCOVERY AND MOTION TO COMPEL COMPLAINANT’S RESPONSE TO
DISCOVERY REQUEST by hand delivery on July 6, 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
/41J
Davi(S. O’Neilf
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
—
RITA1
NOTARY P~*JCSTATE OF LL1dQ~$
MY COMM~ErnI~&o~
