RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S

OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

)

by LISA MADIGAN, Attorney General

)

of the 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 of Skokie

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’ Motions to Strike Complainant’s Letters of May 24, 2005 and June 14,2005

Regarding Discovery and Complainant’s Motion for Protective Order and Response to

Respondents’

Motion to Strike Complainant’s Objections to Discovery and Respondents’

Motion

to Compel Complainant’s Response to Discovery Request 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

the state o

Illinois

BY:___

MICHAEL C. PARTEE

Assistant Attorney General

Environmental Bureau/North

188 West Randolph Street, Suite 2001

Chicago, Illinois 60601

Tel:

(312)814-2069

JUL

2

02005

STATE OF ILLINOIS

Pollution Control Board

)

PCB 96-98

)

(Enforcement

—

RCRA)

)

)

)

)

)

)

---

CERTIFICATE OF SERVICE

It is hereby certified that true and correct copies of the Notice of Filing, Complainant’s

Response to Respondents’ Motions to Strike Complainant’s Letters of May 24, 2005

and

June

14, 2005 Regarding Discovery and Complainant’s Motion for Protective Order and

Response to Respondents’ Motion to Strike Complainant’s Objections to Discovery and

Respondents’ Motion to Compel Complainant’s Response to Discovery Request, were sent

by First Class Mail, postage prepaid, to

the persons listed on the Notice of Filing on July 20,

2005.

BY:

___________________________

MICHAEL C. PARTEE

It is herebycertified that the originals plus nine (9) copies ofthe foregoing were hand-

delivered to the following person on July 20, 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 BOARW~~~?

PEOPLE OF THE STATE

OF ILLINOIS,

)

JUL

202005

by LISA MADIGAN, Attorney General

STATE

OF ILLINOIS

of the State ofIllinois,

)

Pollution

Control Board

)

Complainant,

)

)

v.

)

)

PCB 96-98

SKOKJE VALLEY ASPHALT CO., INC.,

)

(Enforcement

-

RCRA)

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 of Skokie

)

Valley Asphalt Co., Inc.,

)

)

Respondents.

)

COMPLAINANT’S RESPONSE

TO RESPONDENTS’ MOTIONS TO STRIKE

COMPLAINANT’S LETTERS OF MAY 24. 2005 AND JUNE 14, 2005 REGARDING

DISCOVERY

Complainant, PEOPLE OF

THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney

General of the State ofIllinois, hereby responds to Respondents’, SKOKIE VALLEY ASPHALT

CO., INC., EDWIN L.

FREDERICK, JR., and RICHARD J. FREDERICK, Motions Ia Strike

Complainant’s Letters of May24,

2005

and June 14,

2005

Regarding Discovery.

In support of

its

response, Complainant states as follows:

RELEVANT

CASE HISTORY

1.

The relevant case history regarding Respondents’

dispute ofwhat constitutes

reasonable attorneys’ fees

and costs to

Complainant was outlined in Complainant’s Response to

Respondent’s Motion to Strike Discovery Related to Attorneys’

Fees and Costs (“Complainant’s

Response to the First Motion to

Strike”), filed on June 1,2005.

(See Exhibit A.)

---

2.

As explained in Complainant’s Response to the First Motion to

Strike, on May 24,

2005, Complainant’s attorney sent Respondents’

attorney a letter pursuant to Illinois Supreme

Court Rule 20 1(k) in an attempt

to infonnally resolve any differences over Respondents’

discovery requests

to Complainant.

($ç~

Exhibit B.)

A copy ofthis Rule 201(k) letter was also

sent to

the Hearing Officer in order to

keep her apprised.

Respondents’

attorney did not respond

to this Rule 20 1(k) letter.

3.

Since the filing of Complainant’s Response to the First Motion to Strike, a

telephone status

conference with the Hearing Officer in

this case took place on June 9, 2005,

pursuant to notice.

Respondents’

attorney failed to appear for the status conference on June 9,

2005.

4.

On June 14, 2005, Complainant’s attorney sent Respondents’

attorney a second

letter pursuant to Rule 201(k) regarding Respondents’

deposition notices.

(See Exhibit C.)

Complainant’s attorney advised Respondents’

attorney that disputes over written discovery

should be resolved before starting depositions and, accordingly, scheduled depositions shoul&he

postponed until that occurs.

A copy ofthis second Rule 201(k) letter was

alsosenttathe~

Hearing Officer in order to keep her apprised.

Respondents’

attorney also did not respond to this

second Rule 201(k) letter.

5.

Instead, on July 6, 2005, Respondents

filed three more motions to

strike:

“Respondents’ Motion to

Strike Complainant’s Letter ofMay24, 2005

RegardingiDisciwery,”

“Respondents’ Motion to Strike Complainant’s Letter ofJune

14, 2005 Regarding Discovery,”

and “Respondent’s Motion to

Strike Complainant’s Objections to Discovery and Motion to

Compel Complainant’s Response to Discovery Request.”

Complainant

responds to

Respondents’

Motions to

Strike Complainant’s Letters ofMay 24, 2005

and June 14, 2005

2

---

Regarding Discovery (collectively referred to as “Respondents’ Motions to

Strike the Letters”)

herein.

Complainant responds to Respondent’s Motion to Strike Complainant’s Objections to

Discovery and Motion to

Compel Complainant’s Response to

Discovery Request in a separate

pleading.

6.

Respondents’ Motions to

Strike the Letters, like its other recent discovery

motions, are remarkably strident given that Respondents’

attorney brought

a discovery disputeto

the Board without contacting Complainant’s attorney regarding the discovery disputes and

without appearing for the June 9, 2005 status conference.

Respondents’ Motions to Strike the

Letters reach the unsupported conclusion that Complainant’s Rule 201(k) letters constituted ex

parte communications with a Board employee and

should be stricken.

This conclusion is

unsupported because it is without any legal or factual basis.

The Rule 20 1(k) letters were sent

directly to Respondents’

attorney.

Respondents’

attorney had notice and the opportunity to

respond.

Therefore,

the Rule 201(k) letters were not ex parte communications by definition, but

even if they were,

havebeen made part of the record on a number of occasions.

7.

Respondents’ Motions to

Strike the Letters also violate Rule 201(k) and fly in the

face ofBoard’s April 7, 2005 Order, which unequivocally advised against the filing of”any

pleading by either party not designed to

further a speedy and ultimate resolution of this casc

.

.

(April

7, 2005

Order at 4.)

Respondents’

attorney made no attempt

to resolve the discovery

questions without Board intervention, despite invitations from Complainant’s attorney.

RELEVANT LEGAL STANDARD REGARDING EX PARTE

COMMUNICATIONS

8.

Ex parte communications with

Board members and employees in pending

adjudicatoryproceedings are prohibited.

~

35

Ill. Adm.

Code

101.114.

Section 101.114 ofthe

Board’s Procedural Rules provides, in relevant part, as follows regarding ex

parte

3

---

communications:

Ex parte Communications

(a)

Adjudicatory Proceedings.

Board members

and

employees

are prohibited

from

engaging

in

ex

parte

communications

with

respect

to

a

pending

adjudicatory proceeding.

(See

definition of “ex parte communication”

in

Section 101.202 ofthis Part.)

For purposes ofthis Section, Board employee

means a

person the Board

employs

on

a

fill-time,

part-time, contract,

or

intern basis.

*

*

*

(d)

In the event that

an ex

parte communication occurs,

the Board Member or

Board

employee will

make that

communication part of the record of the

proceeding.

To make an oral ex partecommunication part ofthe record, the

substance of the oral communication, along with the identity ofeach person

involved in the communication, will be either set forth in a memorandum and

placed in the record or announced on the record at a public hearing.

9.

“Ex parte communication” is defined in Section

101.202 ofthe Board’s

Procedural Rules,

35

Ill. Adm.

Code

101.202,

as follows (emphasis in original):

“Ex parte communication” means a communication between a person who is not a

Board

Member or Board employee

and

a Board Member or Board employee that

reflects on the substanceofa pending Board proceeding and that takes place outside-

therecord ofthe proceeding.

Communications regarding matters ofprocedure and

practice,

such as theformat ofpleadings,

number of copies required,

manner of

service,

and status ofproceedings, are not consideredex parte communications

5

ILCS

100/10-60(d).

For purposes ofthis

definition, “Board employee” means a

person the Board

employs on

a frill-time, part-time, contract or intern basis.

(See

Section

101.114 ofthis Part.)

10.

Black’s Law Dictionary (8th Edition 2004) defines “ex parte” as follows

(emphasis added):

Ex Parte.

Latin

“from the part”

On or from one party only, usu.

without notice to

or argumentfrom

the adverse party

the

judge conducted

the hearing

Exparte.

Done or made atthe instance and for thebenefit ofone partyonly, and

without notic’e

to,

or argument by,

any person adversely interested;

ofor relating to

court action

taken by one partywithout notice to the other, usu. for temporary or emergencyrelief

can ex pane hearing

can ex parte injunction.

Despitethe traditional one-sidedness

4

---

of ex pane matters,

some courts now require notice to the opposition before

what

they call an “ex pane hearing.”

Communication.

.

.

ex pane communication.

A communication between counsel

and

the

court

when

opposing

counsel

is

not present.

Such

communications

are

ordinarily prohibited.

RESPONDENTS’ MOTIONS TO STRIKE THE LETTERS MUST BE DENIED

11.

Respondents’

Motions to

Strike the Letters are frivolous and must be denied ou at

least six grounds.

12.

First, the Rule 201(k) letters were sent directly to Respondents’ attorney.

He had

timely notice ofthese letters.

Respondents’ attorney does not contend that he did not receive the

letters.

Only copies of the letters were sent to the Hearing Officer in order to keep her apprised

ofthe discovery disputes.

Because the letters were sent directly to Respondents’

attorney, by

definition, they were not ex pane communications with a Board employee.

See 35

Ill. Adm.

Code

101.202; see

also Stephen Drake v. Illinois EPA, PCB

81-54, 1981

WL 21592,

at

*1

(Dec.

17,

1981) (Letter sent by complainant to the Board

without serving respondents

was an cx pane

communication); Village of Sauget v. Illinois EPA, PCB

86-57 and 86-62 (consolidated), 1989

WL

74542,

at *1

(Jan.

19,

1989) (A copy ofa letter sent to the Board by a third party concerning

a pending case

without any indication that said letter was sent to allparties

can

be viewed as

an

ex pane communication).

13.

Furthermore, the May 24, 2005

Rule 201(k) letter states, “we invite

you to

contact

us pursuant to Rule 20 1(k).”

(May 24, 2005 Letter at

3 (Exhibit B).)

In addition, the June

14,

2005

Rule 201(k) letterbegins,

“To date, I have not received any response to my May 24, 2005

letter” and ends “As always, please contact me with any questions or concerns.”

(June

14, 2005

Letter at

1

and 2

(Exhibit C).)

Respondents’

attorney had the opportunity and invitation to

5

---

respond to the Rule 201(k) letters, but chose

not to do

so.

Respondents’

attorney’s failure to

respond does not transform the Rule 201(k) letters into ex

pane communications.

By the same

token, had Complainant chosen not to

respond to Respondents’ Motions to

Strikethe Letters,

those Motions would not be transformed into ex pane communications with the Board.

14.

Second, the Board’s rules state that the Hearing Officer has authority to order

discovery or deny discovery“if the parties cannot agree on the scope of discovery.”

35

Ill. Adm.

Code

101.616(b).

This rule clearly anticipates an

informal dispute resolution process between

the parties before discoverydisputes

are brought to the Hearing Officer or the Board.

The Board

also looks to the Supreme Court Rules for guidance in discovery, which include the informal

discovery dispute resolution rule

in Rule 20 1(k).

j4~Illinois’ rules “contemplate that discovery

will proceed without judicial intervention and that the great majority ofdiscovery questions

will

be resolved by counsel themselves.”

Williams v. A.E. Staley Mfg.

Co.,

83

Ill.2d

559, 563,

416

N.E.2d 252, 254 (Ill.

1981).

The increasing complexity and volume ofpresent-day litigation

involves frequent recourse to discovery and seeking judicial intervention in discovery before

consultation between counsel and good faith efforts to resolve differences would only serve to

increase the burden on courts and thwan administration ofjustice.

Id. at 564, 416 N.E.2d at

255.

“Discovery is not a tactical

game,” but rather it “is intended as, and should be, a cooperative

undertaking by counsel

and theparties, conducted

largely without court intervention.

.

.“

j4~

at

566,

416 N.E.2d at

256.

15.

Respondents’

attorney’s decision to communicate with Complainant’s attorney

only through Board filings violates both the letter and spirit ofRule 201(k).

It exceeds the

boundaries offairness that Respondents’

attorney intentionally ignored Complainant’s attorney’s

good faith efforts to

informally resolve discovery disputes and now seeks to

strike those

good

6

---

faith efforts since they have become a matter ofpublic record.

16.

Respondents argue that “the provisions of Supreme Court Rule 201(k) do hot

apply to this situation because the Complainant was never given leave to conduct discovery by

the Board.”

(Motions to Strike Letters

at ¶3.)

This is nonsensical as the requirements ofRule

201(k) apply to, and

are incumbent upon, the parties serving

and

answering discovery.

Rule

201(k) states, in part, that the

“parties”

(plural) shall attempt

to resolve differences over

discovery prior to judicial intervention.

Respondents’ argument in this

regard is an

admission

that they themselves failed to follow Rule 201(k) and is an

indication ofhow unreasonable they

have

acted in this phase of the litigation.

17.

It is a duty ofthe Hearing Officer to handle “all discovery disputes.”

35

Ill. Adm.

Code

101.616.

Hearing Officers can and do advise parties to utilize Rule 201(k) to informally

resolve discovery disputes, which is the informal process by which parties should resolve

discovery disputes.

See,

e.z,

People v. John Chalmers, PCB 96-111 (Hearing on July

16,

1998,

Transcr.

at 66-67) (Exhibit D).

In this context, it was entirely appropriate for Complainant’s

attorney to provide the Hearing Officer in this ease with copies ofthe Rule 20t(k)lettersinuther

to keep her apprised, particularly when Respondents’ attorney refused to respond to the letters

and then failed to

appear at a status conference when discoverywas

to be discussesLwitliThe

Hearing Officer.

18.

Third, the letters formed pan of the Complainant’s discovery requests and

answers.

Therefore, apprising the Hearing Officer ofthe discoverydisputes was consistent with

the Board’s April 7, 2005

Order, which directed the parties to

file and serve discovery requests

and answers.

7

---

19.

Fourth, discovery correspondence sent to the Board does not constitute ex pane

communication.

See White Glove ofMorton Grove Twp. v. Amoco Oil Co., PCB 95-113,

1995

WL 447370,

at *3

(July 20, 1995).

In White

Glove, the complainant sent the respondent letters

regarding discovery.

Id.

at *2.

These letters set forth facts and legal argument.

fl

The

complainant also sent

copies ofthe letters to a Board Member’s attorney.

Id.

Respondent

objected and

argued that sending the Board copies ofcommunication between parties constituted

ex pane communications.

Id.

However, the letters were filed stamped by the Board and the

respondent did not contend that it did not receive the letters. j~at

*

3.

The Board found that

“such correspondence in this case is not tantamount

to ex pafte communication and it did not

prejudice the respondent.”

a

20.

Under White Glove, even if the Rule 201(k) letters

in the present case were sent

directly to the Board, they would not be tantamount to ex pane communications.

Ofcourse, the

Rule 201(k) letters

in the present case were not sent directly to the Board.

They were sent

directly to

Respondents’ attorney with copies

to the Hearing Officer, who is responsible for

handling all discovery disputes.

In addition,

the letters have now been filed with the Board on a

number ofoccasions, thereby making them pan ofthe record.

21.

Fifth, assuming

arguendo

that the letters were ex parte communications, which

they were not, they are no longer ex parte communications since they were filed with the Board.

This is the appropriate remedy rather than striking them.

35

Ill. Adm. Code

101.114(d) (In the

event that an ex pane communication occurs, the communication will be made part of the record

ofthe proceeding);

Sauget at *1

(In order to cure any potential taint in the record from

an ex

pane communication, the appropriate remedy is to make that communication a pan ofthe

record).

8

---

22.

,

and

again assuming

arguendo

that the Rule 201(k) letters were ex pane

communications, which they were not, there resulted no prejudice to Respondents

from the

letters because Respondents caused the letters to be superseded by a Board pleading.

The Rule

201(k) letters explained the Complainant’s position on potential discovery disputes.

Instead of

responding to the Rule 201(k) letters,

Respondents filed a Motion to Strike Complainant’s

Objections to Discovery and Respondents’

Motion to

Compel Complainant’s Response to

Discovery Request.

Complainant’s response to that Motion,

which ofcourse was filed with the

Board (simultaneous with the instant response), incorporates the sum and substance ofthe Rule

201(k) letters, thereby superseding them.

In other words, the Rule 201(k) letters

are now moot

because their sum and substance was reiterated

in

a responsive pleading to the Board that was

precipitated by Respondents’ own actions.

CONCLUSION

23.

Therefore, based on numerous grounds stated above, the Rule 20 1(k) letters were

not ex pane communications with a Board employee.

Furthermore, although ex parte

communications with a Board employee did not occur in this

case, the remedyfor ex pane

communications is to

make them part ofthe record rather than to strike them.

For all ofthese

reasons, Respondents’ Motions to

Strike the Letters must be

denied.

9

---

Respectfully submitted,

PEOPLE OF THE STATE

OF ILLINOIS

by LISAMADIGAN, Attorney General

of the State ofIllinois

B4~~9~

MICHAEL C. PARTEE

MITCHELL L.

COHEN

Assistant Attorneys General

Environmental BureaujNorth

188

West Randolph, Suite 2001

Chicago, Illinois 60601

Tel: (312)814-2069

Fax: (312)814-2347

10

---

PEOPLE OF THE STATE OF

ILLINOIS,

by LISA

MADIGAN,

Attorney General

ofthe State ofillinois,

Complainant,

SKOKIE

VALLEY ASPHALT

CO., INC.,

an Illinois Corporation, EDWIN L.

FREDERICK,

a,

Individually and

as Owner and President of

Skokie

ValleyAsphalt

Co., Inc.,

and

RICHARD I. FREDERICK,

Individually

and as Owner and

Vice President of Skokie

Valley Asphalt Co., Inc.,

Respondents.

)

)

)

PCB 9698

(Enforcement-RCRA)

)

)

)

)

)

)

)

)

JUN01

2005

NOTICE OF

FILING

TO:

Mr. David S.

O’Neill, Esq.

Mr. Michael B. Iawgiel, Esq.

5487 North

Milwaukee

Avenue

Chicago, illinois 60630-1249

Ms. Carol Webb, Hearing Officer

Pollution Control Board

1021

North

Grand

Avenue East

P.O.

Box 19274

Springfield, illinois 62794-9274

PLEASE

TAKE

NOTICE that Ihave 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 Spte ofillinois

BY:

1Mm4JcP~,

MICHAEL C. PARTEE

Assistant

Attorney General

Environmental Bureau/North

188 West Randolph

Street,

Suite 2001

Chicago, illinois 60601

Tel:

(312)814-2069

cif

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

CLERK’S OFFICE

)

)

)

v.

)

STATE OF ILLINOIS

)

PollUtion ConUOl

Board

---

CERTIFICATE OF SERVICE

It is hereby

certified

that

true and

correct copies ofthe Notice

of Filing and

CompLainant’s Response to Respondents’ Motion to Strike

Discovery Related to Attonieys’

Fees and Costs, were sent by First Class Mail, postage prepaid, to the persons listed on the

Notice ofFihngon June 1, 2005

BY:

It is hereby certified thatthe originals plus nine (9) copies ofthe foregoingwere hand-

delivered to thefollowing 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:

(US

MICHAEL C. PARTEE

---

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

PEOPLE OF THE STATE OF ILLINOIS,

)

CLERKS OFFICE

by LISA MADIGAN, Attorney General

)

JUN

012005

ofthe State ofillinois,

)

)

STATE OF ILLINOIS

•

Complainant,

.

Pollution Control

Board

)

v.

)

)

PCB 96-98

51(0KB VALLEY

ASPHALT CO., INC.,

)

(Enforcement

-

RCRA)

an Illinois Corporation,

EDWIN L. FREDERICK,

)

fit, Individually and as Owner and President of

)

Skokie ValleyAsphalt Co., Inc., and

)

RICHARD I. FREDERICK, Individually

)

and as Owner and Vice President ofSkokie

)

Valley Asphalt 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 LISA MADIGAN, Attorney

General ofthe State ofillinois, hereby responds

to

Respondents’, SKOKIE VALLEY ASPHALT

CO., INC., EDWIN L. FREDERICK, JR., and RICHARD I. FREDERICK, Motion to Strike

Complainant’s Interrogatories, Document Requests

and Deposition Noticesto Respondents

Regarding Complainant’s Fee Petition.

In

Response, Complainant

states as follows:

I.

INTRODUCTION

A.

Relevant Case History

On September 2, 2004, the illinois PollutionControl Board (“Board”) found,

in relevant

part, that”.

.

.

respondents committedwillful, 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 Septomber 28,

2004, Respondents filed apleading, titled “Initial Response to and

Motion to

Stay and/or

Extend

Time to Respond to Complainant’s Petition for Attorneys’ 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 payrate 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’soffice 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 justify an hourly fee for public service that is greater than the

weighted-average fee charged by the Respondents’ attorney even though the

Respondonts’ attorneys

sic

fees include costs.”

(ISI~)

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 ScheduleMotion”).

On April 7, 2005, the Board grantedRespondents’

Discovery Schedule Motion and

directed Respondents to file and serve limited and focused discoveryrequests by April 25, 2005,

Complainant to 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 didnot address Respondents’ allegations regarding Complainant’s Attorneys’ Fees

and Costs Petition and did not prohibit

Complainant

from serving discoveryrequests regarding

these allegations.

Thereafter, Respondents filed and served discovery requests by April 25, 2005, and

Complainant filed and served its answers to said discoveryrequests by May25, 2005.

Complainant also filed and served discoveryrequests (interrogatbries, document requests and

deposition notices) by April 25, 2005.

(I~

Exhibit A to thisResponse.)

Complainant then sent

Respondents a letter, dated May24, 2005, pursuant to Rule 201(k) regarding Complainant’s

discovery requests, among other issues.

(&~

Exhibit B to this Response.)

Ratherthan contact Complainant pursuant to Rule 201(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 theirentirety on the grounds thatthe

April 7, 2005

Order did not grant Complainant additional time to conduct discovery; that the

Complainant “has notbeen authorized to conduct discovery and has no legal baths for which to

do so;” andthat “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 ¶113, 6 and

7.)

11.

RELEVANT LEGAL STANDARD

The purpose of discoveryis to enable attorneys to better prepare and evaluate their cases.

See

Carlson v. General Motors Corn.. 289N.E.2d 439, 449

(111. App.

1st Dist.

1972); see also

Terryv. Fisher.

145 N.E.2d 588, 593 (Ill.

1957).

In Carison. the Court reiterated the purpose of

3

---

discovery:

“the principle is now

well established thatthe purposes

of

litigation are best served.

when each party

knows as much about

the controversyas

is

reasonably

practicable.” 289 N.E.2d

at 449.

The

Supreme

CourtRules specifically

provide

that aparty is entitled

to fill

disclosure

regarding “any matterrelevant to the subject matter.”

111. Sup. Ct.

R. 20l(b)(l).

Courts have

further held thatdiscovery presupposes arange ofrelevance andmateriality that includes not

only what is admissible at trial, but also that which leads to what

is admissible at the trial.

See

KruDt

v. ChicaRo Transit Auth.,

132 N.E.2d 532, 535 (Il.

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 eachpartyisfavored and should

not be deniedwithoutjust cause.

Id.

m.

RESPONDENTS’

MOTION TO STRIK

MUST BE DENIED

A.

Complainant’s Discovery Requests Are DirectlyRelevant to the Numerous, Factual

Allegations Made by Respondents

Respondents introduced bald factual allegations into this proceeding concerning the

reasonableness of Complainant’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

fill disclosureregarding the factual bases for

them under the principles ofdiscovery.

Discovery is a two-way street, and the standard for discoverability is extremely broad.

It

is awell-established principle that the purposes of litigation are best servedwhen

eachparty

knows as much aboutthe controversy as is reasonably practicable.

Carlson. 289 N.E.2d at 449.

Complainant (and the Board) knows

nothing

abbut Respondents’

attorneys’ fees and costs.

Therefore, Complainant served timely, fobused and limited interrogatories,

document requests

4

---

Sand notices ofdeposition regarding Respondents’ attorneys’ fees and costs.

Respondents do not argue that Complainant’s discoveryrequests seek privileged or

confidential information such thatRespóñdents need not answer.

Respondents do not raisejust

cause for entirelystriking Complainant’s discovery requests.

Instead, Respondents have

introduced bald allegations into this proceeding andnow seek to prevent Complainant from

conducting any discovery into these allegations.

Respondents’ Motion to Strike rests solely on

theApril 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 discoveryconcept offull disclosure.

For these reasons, Respondents’

Motion to Strike must be denied.

B.

Complainant Wifi Be Severely Prejudiced If Respondents Do NotAnswerIts

Discovery Requests

Respondents also do not argue that they will be prejudiced in any wayby answering

Complainant’s discovery requests.

On the other hand, Cdmplainant will be severely prejudiced if

Respondents do not fully disclose the factual bases for their allegations.

Without full disclosure, Complainant cannot be fully apprised of the factual bases for

Respondents’ allegations, none ofwhich are a matter ofrecord.

Complainant will be unprepared

and severely prejudiced at a hearing on the reasonableness ofthe 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.B.2d at

593.

Absence

fill 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 Wth 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.

(~çExhibit B at

3.)

Had Respondents initiated a conference pursuant to Rule 201(k)

to

informallyresolve

differences, their frivolous Motion to Strike could have been avoided.

To date, Complainant’s

attorneys still have notheard from Respondents’ attorneys, despite Complainant’s letter, dated

May 24, 2005.

(143

Respondents’ failure to

contact Complainant regarding a discovery dispute

prior to filing yet another pleading violates Rule 201(k) and the letter andspirit ofthe April 7,

2005 Order, which expressly discouragedpleadings that are not designed to further a speedy and

ultimate resolution ofthis case.

(Order at 4 (April 7, 2005).)

Both Rule 201(k) andthe April 7,

2005

Order required an informal dispute resolution process between the parties prior to filing

further pleadings.

Respondents refused to participate in that process.

This provides yet another

basis

to deny theft Motion to Strike.

IV.

CONCLUSION

Respondents placed theft attorneys’ fees and costs at issue.

However, Respondents’ bald

allegations regarding theft own attorneys’ fees and costs are not a matter ofrecord.

Complainant

(and the Board) knows nothing about Respondents’ attorneys’ fees and costs.

Withoutjust

cause, Respondents now seek the extraordinary reliefof aBoard Order preventing-fall-disclosure

regarding the bases for theirbald allegations.

Respondents have not objected

to the substance ofComplainant’s discoveryrequests or

claiinód anyprivilege.

Complainant will be severely prejudiced ifit must proceed to hearing

6

---

without being adequately apprised ofRespondents’ allegations through

limited

and focused

discovery.

Discovery is atwo-way street and Complainant is entitled to full disclosure under the

rules of discovery.

Contrary to the Respondents’ contention, the April 7, 2005 Order does not

support the extraordinary relief sought.

Lastly, Respondentsalso failed to comply with Rule 201(k) and the April 7,2005 Order

prior to filing yet another pleading with the Board.

Had Respondents attempted to resolve their

differences informally with Complainant prior to filing anothàr pleading, theft Motion 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

MICHAEL C. PARTEE

(Tel 312/814-2069)

MITCHELLL COHEN

(Te1312/814-5282)

Assistant Attorneys General

Environmental Bureau/North

188 West Randolph, Suite 2001

Chicago, illinois 60601

7

---

OFFICE OF THE A’fl’ORNEY GENERAL

STATE OFILLINOIS

Lisa Madigan

May24, 2005

ATTORNEY

GENERALS

Sent

Via First Class Mail

Mr. David S.

O’Neill, Esq.

5487 NorthMilwaukee Avenue

Chicago, fllinois 60630-1249

Re:

Discovery

—

People v~

Skokie ValleyAsphalt Co., Inc.,

et a!.,

PCB

96-98

Dear Mr.

O’Neill:

I enclose Complainant’s answers to Respondents’ requests to admit facts, interrogatories

and document requests pertainingto the petition for fees and costs.

The purpose ofthis letter is

to initiate a conference pursuant to Illinois Supreme CourtRule 201(k) to resolve anypotential

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 Rule201(k) prior to filing their Motion to

Strike

Complainant’s discovery requests pertaining to

thepetition for fees and

costs.

Complainant’s Three Main Objections to Respondents’ Discovery Requests

Categorically, we object to Respondents’

requests for three main reasons.

First 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,

particularlyby former Assistant Attorney General Joel Stemstein.

None ofthese allegations and

insinuations has anythread 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 anycase when an opposing

attorney resorts to

this sort ofbully tactic.

•

Properly conducted, this shouldbe a dignified procedure.

As attorneys, we are officers of

the court

—

in

this case the Board— and we owe a professional duty to the Board and to each

other.

Yourallegations and insinuations clearly exceed all bounds;

In any other case, we would

file a motion for aprotective order andsanctions.

However, given the letter andspirit ofthe

Board’s last order, dated April 7, 2005, which expressly directed us to resolve this in aspeedy

manner, we decided to write you instead.

Frankly, we hope that

the

problem ends with this letter.

The Attorney General’s Office has acted in an above-board and professionalmanner in this case.

We expect the sante in return.

I know that the Board is loatheto hear another discove

di

ute

EXHIBIT

B

•

SOC

South

Second Street, Springfield. Illinois

62706

•

(217) 782-1090

•

TI’Y~

(217) 785-2771

•

Far (21

IM

Wnr

RandMnh Street. Chjcno.

Illinois

60601

•

(312)

814—3000

•

TFY: (312)

814-3374

•

Far (31

---

May

24,

2005

Page

2

but we

will

bring this problem to the Board’s attention ifit continues.

~

Complainant objects to Request to

Admit

Fact Nos.

3, 11,

12, 13,

15, 16,

17, 18,

19,

20, and 37, Interrogatory No.

14, andDocument 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 requestfor AAG Sternstein’s fees, which

were previously disallowed by the Board.

The Board expressly ordered that “the parties are not

to address AAG

Stemstein’s fees) in conducting discovery or at hearing.”

(14.3

For these

reasons, Complainant does notanswer theseparticular requests.

Thk4.~

Complainant objebts to Request to Admit Fact Nos. 4,

5, 6,

8, 9, 27, 28,

and 30,

InterrogatàryNos.

16 and 23(i), and Document Request Nos.

5,

7,

8 and 9

on relevance and

privacygrounds because they seek infonnation regarding personal compensation to the Assistant

Attorneys

General in this case.

An Assistant Attorney General’s personal compensation has no

beating on the petition for fees and costs.

These requests regarding personal compensation are

harassing and made in bad faith, and are notdesigned to resolve this dispute in a speedy and final

manner.

Your transparent attempt to develop the argument that our billingrate does notreflect

our salary isnot only irrelevant under the legal standard, but it is so vastly oversimplified as to

haveno validity.

You fail to recognizethat our billing rate would not reflect our salary because

employee benefits, employer’s liability insurance, overhead costs (rent, office equipment, support

stag etc.) and many, many other distributions and costs, are also included in that billing 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

invitationto audit the Attorney General’s Office.

The point is

that no attorney “takes home” his hourlybilling rate, so las salary is irrelevantto

the

reasonableness of

his

requestedfees.

We did not locate anyBoard or court precedent where personal compensation was

allowed oreven considered in detennining the reasonableness of apetition for fees and costs.

It

is simply not a factor considered by the Board or courts.

The Board has previously found that an

hourly of$150.00 per houris reasonable for an Assistant Attorney General.

See et.

People v, J

& F Hauling. Inç~

PCB 02-21 (May

1, 2003).

Theretbre, the

only

relevant issue is the

reasonableness ofthe amount

of

hours billed and the costs incurred.

For these reasons,

Complainant does not answer these particularrequests.

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

~

to depose him, please contacthim directly.

Mr. Murphy n.ow serves

as Assistant General Counsel, Department ofLaw, City ofChicago Board ofEducation,

125

South Clark Street,

7th

Floor, Chicago, illinois.

---

May 24, 2005

Page

3

Respondents’ Failure to Comply With Rule 2O1(k~

Prior to Filing Their Motion to Strike

Lastly,

you

failed

to comply

with Rule201(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.

Had

you contacted us, we

may havebeen able to resolve this

dispute informallyand without

frirther, needless litigation.

We served you with

discoveryrequests 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/Or ExtendTime

To Respond To Complainant’s PetitionFor Attorneys’ Fees And Costs,” you alleged the

following:

It is hard to justi~’

a claim for attorneys’ fees and cost

sic

by the

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 ofrecord.

Your dispute ofthepetition for fees

and costs isbased, in part, on a comparison between Complainant’s and Respondents’

fees and

costs andwe

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 otherhand, we cannot be adequately apprised of

your allegations ifyou 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 (Ic).

pl~

Michael C. Pàrtee

Assistant Attorney

General

Environmental Bureau

188 West

Randolph

Street, Suite 2001

Chicago, illinois 60601

Tel: (312)814-2069

Fax:

(312)814-2347

E-Mail: mpartee®atg.state.il.us

cc:

Carol Webb, Hearing

Officer

Michael B. Jawgiel, Esq.

---

OFFICE OF THE AT1’ORNEY GENERAL

STATE OFILLINOIS

Lisa Madigan

June

14, 2005

ATTORNEY GENERAL

Sent

Via First Class Mail

Mr. David S. O’Neill, Esq.

5487 North Milwaukee Avenue

Chicago, illinois 60630-1249

Re:

Discovery—• People

y.

Skokie Valley Aspbalt Co., Inc.,

et at,

PCB 96-98

Dear Mr. O’Neill:

The purpose ofthis letter is to initiate another conference pursuant to illinois Supreme

Court Rule 201(k) to resolve any potential differences over Respondents’ notices ofdeposition.

Respondents noticed the depositions ofAAG Mitchell Cohen and former AAG Bernard Murphy

for June 24,2005, at 9:00 am, and 1:00 p.m., respectively.

We intended to take this up with you

during Our case status conference on June 9,

2005,

but you failed to appear.

As I explained in my first Rule 201(k) letter, dated May 24,

2005, Mr.

Murphyleft the

Attorney General’s Office last year, which means that we are unable to produce him for a

deposition.

To date1 I have notreceived any response to my May24,

2005

letter, so I assume that

our concern regarding Mr. Murphy’s deposition notice is resolved.

In light ofRespondents’ recent, unresolved Motion to Strike the State’s discovery

requests regarding attorneys’ fees and costs, we now objectto producing Mr. Cohen for a

deposition on June 24, 2005.

First, depositions should not begin until we complete written

discovery.

Mr. Cohen (or any other potential witness)

should

have the benefit ofreviewing all

written discovery before submitting to a deposition.

Moreover, beginning depositions before

completing written discovery is not conducive to orderly discovery.

Second, as you pointed in

Respondents’ Motion to Strike, the Board’s April 7,2005 Order only provides that “Respondent

is directed to ifie the outstanding discovery requests with the Board.

..

;

and

the People’s

response must be filed on respondents and servedwith the Board....”

(Orderat 4.)

The

Board’s reference to the “filing” ofdiscoveryrequests and answers can only mean written

discovery.

As you argued in your Motion to Strike, the April 7, 2005 Order does not authorize

the State’s written discovery requests.

By the same token, the Order does not authorize the

Respondents’ notices ofdepositions.

Therefore,

applying your argument, the Respondents are

not entitled to conduct depositions because the April 7, 2005 Order does notso provii

500 South Second Street, Springfield, Illinois

62706

•

(217)

782-1090

•

Ti’?: (217) 785-2771

•

Far (211)

100 ~st

Rindolph Street. Chicago, Illinois

60601

•

(312)814-3000

•

‘lit

(312) 814-3374

•

Far (312) 814-3806

---

June

14,

2005

Page

2

While

we believe thatthe Board intended fill disclosure by both sides, we do not plan to

submit Mr. Cohen for a deposition until the Board clarifies the scope of discoveryregarding

attorneys’ fees and costs.

As

always, please contact me with anyquestions or concerns.

Michael C. Partee

Assistant Attorney General

Environmental Bureau

188

West Randolph Street,

Suite 2001

Chicago, illinois 60601

Tel: (312)814-2069

Fax: (312)814-2347

E-Mail: mpartee©atg.state.il.us

cc:

Carol Webb,

Hearing Officer

Michael B. Jawgiel, Esq.

Bernard Murphy, Jr., Esq.

---

I

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

2

3

4

PEOPLE OF THE STATE OF ILLINOIS,

5

Complainant,

6

vs.

No.PCB96-111

7

JOHN CHALMERS, INDIVIDUALLY AND

8

D/B/A JOHN CHALMERS HOG FARM,

9

Respondent.

10

11

12

13

Proceedings held

on July

16,

1998 at

10:35 a.m.,

14

at the Illinois Pollution Control Board,

600

South

15

Second

Street,

Suite

402,

Springfield,

Illinois,

16

before the Honorable Jack Burds, Hearing Officer.

17

18

19

20

21

Reported by:

Darlene M. Niemeyer, CSR, RPR

CSR

License No.:

084-003677

22

23

KEEFE REPORTING COMPANY

11

North 44th Street

24

BelIeville, IL

62226

(618) 277-0190

25

KEEFE REPORTING COMPANY

EXHIBIT

Belleville, Illinois

I

_________

---

I

your decision.

2

MS.

PERJ:

It depends on the

scope ofthe

3

interrogatory.

4

(Ms.

Pen

and Ms. •Glatz confer briefly.)

5

MS. PERU

The State has a concern about whether

6

Mr.

‘rice’s

revised interrogatory may be expanded to

7

include cases

that were resolved prior to referral to

8

the Attorney General’s office during the Section

31

9

process, because that would open up a canof worms

10

that would involve a significant amount of time.

11

HEARING OFFICER BURDS:

Well, as I have indicated,

12

1

think the question

is

a different question

than what

13

he has

posed in the interrogatory.

I can only go by

14

what he is

seeking

to

determine.

I

really can’t

15

prejudge

what

affect that might have or

how

broad

the

16

request

is

until

I see

it.

The

one that I have before

17

me

is

until

1990 related

to

a proceedings

brought

18

before the

Board.

I think we

all agree here that that

19

is ascertainable

independently

by all

of us.

However,

20

it seems to be

something else that

Mr. Tice

is after,

21

based

on

his

representations,

and that

is to determine

22

those

types

of cases that

were not

necessarily

brought

23

before the Board,

and

I don’t want to

prejudge what

24

that is.

Maybe Mr. Tice

has not

filly

articulated

25

what

it

is

he is

looking

for.

But based on his

66

KEEFE REPORTING COMPANY

Belleville, Illinois

---

I

representations it does not seem like an unreasonable

2

request

at this time.

3

However,

I cannot

prejudge that

it

is

unreasonable

4

on predetermine

that

any

objections

you may have may

5

be unreasonable

either.

I

would encourage

you to do

6

what you

have

done

in

this

case.

I

want to make clear

7

that

I

appreciate

both Counsel

first trying

to

resolve

8

the

difference before

coming

to me.

I

know that that

9

is

not

a speeific Board requirement,

but as you both

10

have

pointed

out,

we do

allow

the Civil

Procedure

11

Rules to apply

and

to

come

under

a 201 (Ic) auspices,

12

and that’s

what I prefer.

I

would

like

that

13

documented,

that

same

approach

taken in the futureand

14

always, because that

is

where discovery

should be

15

resolved,

in my

opinion.

16

However,

I

know that

that

is

part

of

my

role here,

17

and I

don’t

want

to

try

to duck

any

responsibility

of

18

my own.

That’s what

I

hope

to

do here

and

hope

to

19

have to you

next

week.

Now

as far

as--lam going to

20

allow him

to

revise that request.

I ant

going

to deem

21

his motion

to

compel related to

interrogatory

number

22

one

as

moot based on the

revisions

that

he has

23

indicated.

24

Now,

Mr.

Tice, I don’t know.

That

may

be

25

something

that

you want to

address.

I don’t know.

67

KEEFE REPORTING

COMPANY

Belleville, Illinois

---

BEFORE THE ILLINOIS POLLUTION

CONTROL BOAI~E C 2

IV

ED

CLERKS OFFICE

PEOPLE OF THE

STATE OF ILLINOIS,

)

JUL

2

C

2005

by LISA MADIGAN,

Attorney General

)

ofthe State ofIllinois,

)

p~~ff~0C’ontroI

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 MOTION FOR PROTECTIVE ORDER AND RESPONSE TO

RESPONDENTS’ MOTION TO

STRIKE

COMPLAINANT’S OBJECTIONS

TO

DISCOVERY

AND

RESPONSE TO

Complainant,

PEOPLE OF

THE STATE OF ILLINOIS, byLISA MADIGAN, Attorney

General ofthe State ofIllinois, hereby moves for a protective order

against

Respondents ~

SKOKIE VALLEY ASPHALT CO., INC., EDWIN L.

FREDERICK, JR.,

and

RICHARD

J.

FREDERICK, abusive discovery tactics.

Complainant also hereby responds

to Respondents’

Motion to Strike

Complainant’s Objections to Discovery and Respondents’ Motion

to Compel

Complainant’s Response to DiscoveryRequest.

In support ofits motion and response,

Complainant states as follows:

---

INTRODUCTION

Relevant Case

History

1.

The relevant case history regarding Respondents’ dispute ofwhat constitutes

reasonable attorneys’ fees and

costs to

Complainant was outlined

in Complainant’s Response to

Respondent’s Motion to Strike Discovery Related to Attorneys’

Fees and Costs (“Complainant’s

Response to the First Motion to

Strike”), filed on June

1, 2005. (S~Exhibit A.)

2.

As explained in Complainant’s Response to the First Motion to Strike,

on May 24,

2005, Complainant’s

attorney sent Respondents’

attorney a letter pursuant to

Illinois Supreme

Court Rule 201(k)

in an

attempt

to

informallyresolve any differences over Respondents’

discovery

requests to Complainant.

(See Exhibit B.)

A copy ofthis Rule 201(k) letter

was

also

sent to

the Hearing Officer in order to keep her apprised.

Respondents’ attorney did not respond

to this Rule 201(k) letter.

3.

Since the filing ofComplainant’s Response to the First Motion to

Strike, a

telephone status conference with the Hearing Officer in this case took place on June 9, 2005,

pursuant to notice.

Respondents’

attorney failed to

appear for the status conference on June 9,

2005.

4.

On June 14, 2005, Complainant’s attorney sent Respondents’ attorney a second

letter pursuant to Rule 201(k) regarding Respondents’ deposition notices. (S~

Exhibit C.)

Complainant’s attorney advised Respondents’

attorney that disputes over written discovery

should be resolved before starting depositions and, accordingly,

scheduled depositions should be

postponed until that occurs.

A copy ofthis second Rule 201(k) letter

was also

sent to the

Hearing Officer in order to keep her apprised.

Respondents’

attorney also did not respond to this

second

Rule 201(k) letter.

2

---

5.

Instead, on July 6, 2005, Respondents filed

three

more motions to strike:

“Respondents’ Motion to Strike Complainant’s Letter of May 24,2005 Regarding Discovery,”

“Respondents’ Motion to Strike

Complainant’s Letter ofJune 14, 2005 Regarding Discovery,”

and “Respondent’s Motion to Strike Complainant’s Objections to Discovery and Motion to

Compel Complainant’s Response to Discovery Request” (“Motion to

Compel”).

Complainant

responds

to Respondents’ Motion to Compel herein.

Complainant responds to Respondents’

Motions to

Strike Complainant’s Letters ofMay 24, 2005 and June 14, 2005 Regarding

Discovery (collectively referred to as “Respondents’ Motions to

Strike the Letters”) in a separate

pleading.

6.

Respondents’ Motion to

Compel, like Respondents’ Motions to Strike the Letters,

is remarkably strident given that

Respondents’ attorney brought discovery disputes to the Board

without contacting Complainant’s attorneyregarding the discovery disputes and without

appearing for the June 9, 2005 status conference.

Furthermore, the request for blanket relief

sought by the Respondents, including striking

all ofComplainant’s objections and ordering

Complainant to

answer all

discovery requests, is supported by rhetoric

(e.g.,

“the time it

would

take the Complainant to respond

to Respondent’s requests for discovery is inconsequential

compared to the delay now caused by the Complainant’s failure to

comply with the Board

discovery schedule”)

and misstatements ofthe law

(e.g.,

“the

very purpose ofdiscovery is to

allow for the exchange ofpersonal information”).

(Motion to Compel

at

¶11

18

and 27,

respectively.)

7.

Respondents’ Motion to

Compel does not respond to each ofthe discovery

objections that it asks the Board to strike.

Even as

to the few objections to which they respond,

Respondents resort to

generalizing the specific.

Respondents utterly fail to address how or why

3

---

each ofComplainant’s objections should be stricken, which should be a threshold requirement

for

striking an

objection.

This

in itself is fatal to the Motion to Compel.

8.

Moreover, given the circumstances, Respondents’ Motion to Compel

violates

Rule 201(k) and flies in the face ofBoard’s

April 7,

2005

Order, which unequivocally advised

against the filing of“any

pleading by either party not designed to further a speedy and ultimate

resolution of this case.

.

.“

(April

7, 2005

Order at 4.)

Respondents’

attorneyrefused to

even

attempt to

resolve the discovery disputes prior to Board intervention, despite invitations from

Complainant’s attorney.

Respondents’ Discovery Requests to Complainant

9.

Respondents’ Motion to Compel minimizes

the massive scope and objectionable

substance oftheir discovery requests.

However, it is necessary to address each ofRespondents’

discovery requests, and Complainant’s objections thereto, in order to grant the blanket relief

sought in the Motion to Compel.

Respondents’

discoveryrequests regarding thenarrow issue of

the reasonableness of Complainant’s claimed attorneys’ fees and costs consist of43 Requests to

Admit Facts,

50 Interrogatories including

subparts, 24

Document Requests amitwo

ñepnsition

notices. (S~Group Exhibit D.)

In comparison, Respondents served a total ofonly

16

Interrogatories and

14 Document Requests prior to

the trial on all issues in October 2001.

10.

In

terms

ofscope, Respondents discovery requests regarding attorneys’ fees and

costs

are overly broad and unduly burdensome.

In terms ofsubstance, they are insulting,

harassing, made in bad faith,

irrelevant, and not calculated to

lead to relevant information or

designed

to resolve this dispute in

a speedy and final manner.

(a)

Reciuests to Admit Facts:

Respondents served 43 Requests to Admit

Facts.

In many instances, Respondents have masqueraded insults directed at

4

---

Complainant’s attorneys

as requests to admit facts.

For example, Request to Admit Fact

#37 states as follows:

To date, noneoftheAttorneys Claiming Fees, the Illinois Attorney

General’s

Office or the State have taken

any

disciplinaryaction or review procedures

with respect to Attorney Sternstein’ s ethical breach in representing aclientat

the Board in

violation of the 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

Sternstein

was

violating

the

Board’s

Procedural

Rules

or

for

Attorney

Cohen’s perjury in executing a false affidavit and none ofthe parties have

reported these actions to

appropriate disciplinary commissions as required.

This Request to Admit Fact exemplifies not only the insulting nature ofRespondents’

requests, but also Respondents’ attempt to delve into the irrelevant subject ofAssistant

Attorney General (“AAG”) Joel Sternstein’s fees.

Many other Requests to Admit Facts

are equally as offensive and irrelevant.

Onthese grounds, Complainant objected to, and

neither admitted nor denied, Request to

Admit Facts #3,

11,

12,

13,

15,

16,

17,

18,

19,

20,

and

37.

In order to get to the issue of

AAG

Sternstein’s fees, Respondents argue

tl~t

the

“Board’s attempt to

limit discovery the

sic

with

respect to the conflict ofMr.

Sternstein

should not be interpreted to prevent the Respondents

from investigating Complainantiand

its attorneys

sic

other misconduct

and

ethical breaches.”

(Motion to Compel at ¶ 21.)

As another example, Request to Admit Fact #27, states as follows:

None ofthe Attorneys

Claiming Fees has

ever been paid

an hourly rate as

high as the hourlyrate they

are

requesting in this matter.

This Request to Admit Fact exemplifies Respondents’ attempt to

delve into the

personal compensation or

“take

home pay” ofthe AAGs involved in the case, which is

irrelevant and private information.

On these grounds, Complainant objected to, and

neither admitted nor denied, Request #4, 5, 6, 8, 9, 27, 28, and 30.

In order to obtain

5

---

information regarding personal compensation, Respondents

argue

that “the very purpose

ofdiscovery is to

allow for the exchange ofpersonal information.”

(Motion to Compel at

¶27.)

Complainant

answered the remaining Requests to Admit, subject to additional

objections.

(b)

Interrogatories:

Respondents served Complainant with a “first

set” of

Interrogatories as if there will be additional sets

to

follow.

While Respondents first set

consists of50 interrogatories including sub-parts, only 30 interrogatories are allowed

under Supreme

Court

Rule 213(c).

Nevertheless, in order to avoid a discovery dispute,

Complainant went to great lengths to

address each interrogatory in a timely manner.

Some of the Interrogatories also sought information regarding

AAG Sternstein’s fees

(Interrogatory #14) and personal compensation to AAGs in

this

case (Interrogatory #16

and

23(i)).

Complainant

objected to, and did not answer,

these Interrogatories.

Other

Interrogatories were also objectionable, but for a whole host ofother reasons ranging

from Complainant’s inability to understand arequest

(e.g.,

Interrogatory#10) to

its

inability to

comply with a request

(e.g.,

Interrogatory #23).

Respondent’s Motion to

Compel does not address the balance ofthese objections.

(c)

Document Requests:

Respondents also served Complainant with a “first

set” of24 Document Requests as ifthere will be additional

sets to

follow.

Complainant

again went to

great lengths to address each Document Request in a timely manner.

Some

ofthe Document Requests also sought information regarding

AAG

Sternstein

‘

s fees

(Document Request #6,

7,

10,

11,

12,

17

and

21)

and

personal compensation to

AAGs in

this case (Document Request #5,

7,

8 and

9).

Complainant objected to,

and did

not

6

---

answer, these Document

Requests.

Other Document Requests were also objectionable,

but for other reasons, including

that they were overly broad

(e.g.,

Document Request #1

requesting “All Documents Related to the subjectmatter ofthis case”).

Based on these

additional

objections, Complaint answered most ofthe Document Requests, but

did not

answer some

(e.g.,

Document Request #1).

Again, Respondent’s Motion to Compel does

not address these additional objections.

(d)

Deposition Notices:

Respondents also served Complainant with notices

for the depositions on AAG Mitchell Cohen and former

AAG

Bernard Murphy.

Complainant’s second Rule 201(k) letter addresses the scheduling of these depositions

and

explains that written discovery should be completed before conducting depositions.

RELEVANT LEGAL

STANDARDS

11.

The Board limited the inquiry into the reasonableness of Complainant’s claimed

attorneys’ fees and costs as

follows (Board’s Order at

3 (April 7, 2005)):

In determining this reasonableness, the

Board will

be guided bythe factors set out in

long-established precedent.

The Board will consider, among other factors, the nature

of the cause and the novelty and difficultyofthe questions atissue, the amount

and

importance

of the

subject matter,

the

degree

of responsibility involved

in

the

management of the cause,

the time

and

labor required,

the usual

and customary

charge in the community, and the benefits resulting to the client.

citations

omitted.

12.

The Board

further

limited

this

inquiry

by disallowing AAG Sternstein’s claimed

fees and ordering that “the parties are not to address AAG

Sternstein’s

fees

in conducting

discovery

or at

hearing.”

Ut

at 4.)

13.

In conducting discovery relative to

the factors outlined by the Board, several

considerations determine whether information is discoverable.

Only relevant information or

7

---

information calculated to lead to relevant information is discoverable.

35 Ill.

Adm.

Code

101.616(a).

14.

Pursuant

to Illinois Supreme

Court

Rule 201(c)

and

35 Ill.

Adm.

Code 101.616(d),

the Hearing Officer has broad discretion to fashion a protective order that denies, limits,

conditions or regulates discovery to

preventunreasonable expense, or harassment, or to expedite

resolution ofthe proceeding.

There is no

specificrequirement for protective orders; there is only

the broad standard “as justice requires.”

Statland v. Freeman, 112

Ill.2d 494, 499, 493 N.E.2d

1075,

1077 (Ill.

1986) (Interpreting Rule 201(c)).

RESPONDENTS’ MOTION

TO COMPEL MUST BE DENIED

AND

THE

BOARD

SHOULD ISSUE A PROTECTIVE

ORDER AGAINST RESPONDENTS’ ABUSIVE

DISCOVERY TACTICS

15.

Respondents’

attorney has served

highly

inappropriate and objectionable

discovery requests, refused to

contact Complainant’s attorney regarding discovery,

failed to

participate in a case status

conference on discovery, and filed numerous

and

frivolous motions,

including the instant Motion to Compel.

The Board should not tolerate Respondents’

abusive

discovery tactics.

Respondent’s Motion to

Compel must be denied for the following reasons and

the Board should issue a protective order against Respondents’

abusive discovery tactics.

Respondent’s Motion to Compel Must Be Denied Because Respondents’ Attorney Made No

Attempt to Informally Resolve Differences Over Discovery Prior to

Seeking-Board

Intervention

16.

Prior to seeking Board intervention regarding a discovery dispute, Respondents

failed to make a good faith attempt, much less any attempt,

to informally resolndifferences over

discovery.

Complainant’s attorney initiated good faith attempts through

two

Rule

201(k)ietters,.

but Respondents’

attorney refused to participate in a Rule 201(k) conference.

This constitutes

not only a violation ofRule 201(k), but also constitutes a violation ofthe Board’s April 7,2005

8

---

Order, which unequivocally advised against the filing of“any

pleading by either

party

not

designed

to

further

a speedy andultimate resolution of

this

case.

.

.“

(Board’s Order at 4 (April

7, 2005).)

Respondents’

attorney also failed to participate in a status conference with the

Hearing Officer on June 9, 2005, when

discovery disputes could have been discussed

and

potentially resolved.

Respondents’ attorney’s

failure

to

comply with Rule 201(k) andthe

Board’s April 7, 2005 Order,

and

failure

to

appear for a case status conference, all before seeking

Board intervention on a discoverydispute is entirelyunreasonable

andprovides

a--basiwtodeny

Respondents’ Motion to Compel without even getting to the merits.

Respondents’ Motion to

Compel Must Be Denied Because It Fails to MeettheThre~hold

Requirement ofAddressing Each Objection to Be Stricken

17.

The Motion to

Compel addresses only three ofComplainant’s numerous, timely

and specific objections:

(1) that the Requests violate the Board’s April 7, 2005

Order, which

directed the parties to

resolvethis dispute in a speedy and final resolution,

(2)ithatA*G

Sternstein’s fees and costs are irrelevant,

and (3) that the personal compensatiomofAAGs

involved in this case is irrelevant.

As

to the remaining objections, Respondents do not even

address

them.

18.

Respondents’ Motion to

Compel offers no response to

the remainder of

Complainant’s valid objections.

As an example,

Complainant objected to,

and did not answer

Interrogatory #10, which states, “Identi& any and all hours and expenses in any matter involving

your employment at the Illinois time sheets and expense sheets.”

Complainant answered,

“Complainant specifically objects to

the form ofthis request

—

Complainant does not understand

this request.

Subject

to its

objections, Complainant

is unable to

answer this request as written.”

Interrogatory #10 is

truly

incomprehensible, yet Respondents do not even mentionthia

9

---

problematic Request, or Complainant’s objections thereto, in their Motion to Compel.

19.

As another example, Respondents’

Document

Request #1

seeks “All Documents

Related to the subject matter ofthis case.”

In conjunction with Document Request #1,

Respondents’ Interrogatory #23 states,

only in

part,

“For any case

in whichthe Illinois Attorney

General’s

Office has previously oris presently seeking attorneys’ fees, costs and expenses under

the same legal authority it is seeking attorneys’ fees costs

sic

and expenses in this matter, please

supply the following information:

(a) The parties involved in the litigation,...”

As

explained in

Complainant’s objections, not only does Document Request #1

encompass everypiece ofpaper

in the present case without limitation, but Interrogatory #23

literally encompasses

every

case ever

handledby the Attorney General’s Office as the Attorney General seeks his

or her fees and costs

in every case filed under the illinois

Environmental Protection Act.

Document Request #1

and

Interrogatory #23 ~eekirrelevant information and are so

overly broad and unduly burdensome

as

to be absurd yet,

again, Respondents do even mention these problematic

Requests, or

Complainant’s objections thereto, in their Motion to Compel.

20.

As to the remaining objections, Respondents’ Motion to

Compel

argues

that they

“de& respon~e

by the Respondents.”

(Motion to

Compel at

¶

28.)

“DeW’ means

to challenge,

resist orelude.

It is unlikely that Respondents meant that Complainant’s objections challenged,

resisted or eluded their Motion to

Compel, thus, it is unclear what Respondents meant.

In any

event,

Respondents seek a blanket order striking all of Complainant’s objections, but fail to

even

respond to all ofthese objections

in their Motion to

Compel.

Because Respondents’ Motion to

Compel does not support the reliefrequested, the Motion to Compel must be denied.

10

---

On the Merits, Respondents’ Motion to Compel Must Be Denied Even As

to the Few

Objections to Which It Responds

21.

Respondents’ Motion to

Compel addresses only three ofComplainant’s

objections.

However, even as to these

three

objections, Respondents failed to show why they

should be stricken.

22.

First,

Respondents

argue

that Complainant’s objection based on Respondents’

violation ofthe Board’s April

7, 2005

Order, which directed the parties to resolve

this

dispute

in

a speedy and final resolution and not

to file anything inconsistentwith that goal,

should be

stricken.

However, Respondents have sought discovery that is not at

all

designed to resolve this

matter in a speedy and final resolution.

23.

On

this

point, Respondents

argue that “Discovery is

a tool that allows

for the

exchange ofinfonnationneeded to help resolve legal disputes.”

(Motionto Compel

at

¶

16.)

While

Complainant agrees that discovery should involve

an

exchange

rather than a one-way flow

ofinformation, the scope and

substance ofRespondents’

discovery is not justified by

this

24.

Respondents Document Request #1, which seeks “All documents Related to the

subject matter ofthis case,” is not designed to resolve this matter in a speedy or final manner.

Rather, it seeks

to re-open discovery as to every issue in this case.

The scope of many other

requests is inconsistent with the Board’s April 7, 2005 Order.

Accordingly, Complainant’s

objection on this

ground

is entirely

appropriate.

25.

Tn addition to being objectionable in

scope, many of

Respondents’ Requests

are

objectionable

on grounds that they

are

harassing, insulting

and offensive.

In that regard,

they

violated the Board’s April 7, 2005 Order,

as well.

Respondents’ discovery requests contain

11

---

inflammatory allegations

and insinuations ofperjury, unethical conduct, over-billing and other

improprieties by the Attorney General’s Office are nothing more than attacks on Complainant’s

attorneys and have no application to any issue in the case.

Such allegations

and insinuations

clearly exceed all bounds.

Complainant’s objection that the discoveryrequests are inconsistent

with the Board’s April 7,

2005 Order

is also supported on this

ground.

26.

Second, Respondents argue that Complainant

should be ordered to produce

information concerning

AAG

Sternstein’s fees and costs because the “Board’s attempt to limit

discovery” by ordering the parties not to

address

AAG

Sternstein’s fees and costs

should not

prevent Respondents’

“from investigating Complainant

and its

attorneys

sic

other misconduct

and ethical breaches.”

(Motion to Compel at ¶ 21.)

27.

However, Complainant’s request for

AAG Sternstein’s fees was previously

disallowed by the Board and, accordingly, the parties were

ordered not address

it in discovery.

The Board expressly ordered that ‘The parties are not to address

AAG

Sternstein’s fees

in

conducting discovery or at hearing.”

(Board’s Order at 4 (Apr.

7,

2005).)

The Board left nothing

to

interpretation

on this issue.

Based on this clear limitation, Complainant objected to the

relevance of Respondents’ requests for information concerning

AAG Sternstein’s

fees and costs.

28.

The argument that Respondents needto conduct an “investigation” of

Complainant’s other attorneys is patent harassment and is well beyond the scope of thelimited

inquiry into

the reasonableness ofComplainant’s claimed attorneys’ fees and factors.

29.

Third, Respondents attempted to

delve into the personal compensation of the

AAGs

involved in the case.

Complainant objected on relevance and privacy grounds to this sort

ofrequest.

Respondents offer no response to

Complainant’s relevance objection.

In response to

Complainant’s privacy objection,

Respondents argue that “the very purpose ofdiscovery is to

12

---

allow

for the exchange of

personal information.”

(Motion to Compel at

11

27.)

30.

This purported rule statement is not supported by any legal authority because it is

incorrect.

While Complainant agrees that discovery should involve

an

exchange

rather than a

one-way flow ofinformation, its

very purpose

is hardly to exchange personal information.

31.

An

AAG’s

personal compensation has no bearing on the petition for fees

and

costs before the Board.

Respondents’

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.

Respondents’ transparent

attempt to

develop the

argument

that an

AAG’s billing rate

does not

reflect his

salary

is not only irrelevant under the legal standard, but it is so vastly oversimplified

as to have no validity.

32.

Respondents’

fail to recognize that an AAG’s billing rate would not reflect his

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

that billing rate.

No attorney

“takes

home” his hourly billing rate, so his salary is irrelevant to the

reasonableness ofhis requested fees.

Respondents also fail to acknowledge that,

as a

governmental attorney, an AAG’s billing rate is already

well below

that of a similarly qualified

and

experienced environmental attorneyin private practice in downtown Chicago.

33.

Complainant did not locate any Board or

court

precedent where personal

compensation was even considered in determining the reasonableness ofa petition for fees and

costs.

It is simplynot a factor considered by the Board or courts.

The Board has

previously

found that an hourly of$150.00 per hour is reasonable for an AAG.

See,

e.z..

PeoDle v.

J

& F

Hauling, Inc., PCB

02-21

(May

1, 2003).

Therefore, the only relevant issue is the reasonableness

of the amount ofhours billed and.the costs incurred.

13

---

The Board Must Also Deny Respondents’ Motion to Compel As

It Pertains to Depositions

34.

Regarding depositions, Respondents

argue “The Complainants

sic

should be

compelled to produce

AAG5

Cohen and Murphy

for deposition, or at a minimum,

cooperate

with

the Respondents in scheduling said depositions to allow for the speedyandultimate

resolution ofthis case.”

(Motion to Compel at

¶

43.)

35.

Complainant objected to the Respondents’

depositionnotice

for former

A.AG

Murphybecause he no

longer works in the Attorney General’s Office.

Complainant provided

Respondents with

AAG Murphy’s

current

contact information.

In

light ofRespondents’

unresolved

First

Motion to Strike (the State’s discovery requests), Complainant objected

to

Respondents’ deposition notice to

AAG

Cohen because

that deposition should not begin until

written

discovery is completed.

AAG

Cohen (or any other potential witness)

should have

the

benefit ofreviewing all written discovery before submitting to

a deposition.

Moreover,

beginning depositions

before completing written discovery is not conducive to orderly discovery.

36.

Respondents’ Motion to Compel is non-responsive to these objections

and should

be denied

it pertains

to depositions.

The Board

Should Issue

a Protective Order Against Respondents’

Abusive Discovery

Tactics

37.

It is abundantly clear that Respondents’

are

using discovery as a weapon in

this

case.

Respondents’

38.

Discovery is

a serious phase oflitigation

and not an exercise in tactics.

Complainant’s attorneys have gone to great lengths to answer Respondents’

discovery requests

and informally resolve differences, but at each

juncture,

have been met with personalinsultsand

14

---

frivolous pleadings.

39.

The Hearing Officer or the Board should issue aprotective order pursuant to Rule

101.616(d) ofthe Board’s Procedural Rules against Respondents’

bad faith and irrelevant

discoveryrequests,

including those discovery requests addressed in Complainant’s Rule 201(k)

letters.

Respectfblly submitted,

PEOPLE OF THE STATE OF ILLINOIS

by LISA MADIGAN, Attorney General

ofthe State of illinois

BY:

_______________________

MICHAEL C. PARTEE

MITCHELL L. COHEN

Assistant Attorneys General

Environmental Bureau/North

188 West Randolph, Suite 2001

Chicago,

illinois 60601

Tel: (312)814-2069

Fax: (312)814-2347

15

---

PEOPLE OF THE STATE OF ILLINOIS,

by

LISAMADIGAN, Attorney General

ofthe State of

illinois,

)

Complainant,

)

)

V.

)

)

SKOKIE VALLEY ASPHALT

CO.,

INC.,

an

illinois Corporation, EDWIN L.

FREDERICK,

lit,

Individually and as Owner and President

of

Skokie Valley Asphalt Co., Inc.,

and

RICHARD

I.

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,

flhinois 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 Clerkofthe

illinois Pollution Control Board, true

and correct copies ofiwhichare

attached

hereto

andherewith

served

upon you.

PEOPLE OF THE STATE OF ILLiNOIS,

byLISA

MADIGAN, Attorney General

f the S~ate

of

illinois

BY:____

MICHAEL C. PAXTEE

AssistantAttorney General

Environmental Bureau/North

188 WestRandolph Street, Suite 2001

Chicago, illinois 60601

Tel: (312)814-2069

cif

BEFORE

THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

)

)

)

• JUNDI200S

STATE OF ILLINOIS

Pollution Control Board

PCB

96~98

(Enfrrcement

-

RCRA).

)

)

)

)

)

)

)

)

)

---

CERTIFICATE OF SERVICE

It is hereby certified that true

and correct copies ofthe Notice of Filing 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 thatthe originals plus nine

(9)

copies ofthe foregoingwere 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 TIlE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

PEOPLE OF THE STATE OF ILLINOIS,

)

•

CLERK’S OFFICE

by USA MADIGAN, Attorney General

)

JUN

012005

ofthe State ofillmois,

)

)

STATE

OF ILLINOIS

•

•

Complainant,

)

•

Pollution Control

Board

)

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

)

Valley Asphalt Co., Inc.,

)

)

Respondents.

)

COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION TO STRiKE

DISCOVERY RELATED TO ArrORINEYS’ FEES AND

COSTS

Complainant, PEOPLE OF THE STATE OF

ILLINOIS, by USA MADIGAN,

Attorney

General ofthe State ofillinois, hereby responds

to Respondents’, SKOKIE VALLEY ASPHALT

CO., INC., EDWIN L. FREDERICK, It,

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 for Attorneys’ Fees

and Costs” (hereafter referred to as “Initial Response”).

In their Initial Response, Respondents

made numerous, specific, unsupported, factual allegations regarding Complainant’s Attorneys’

Fees and Costs Petition.

None ofthese allegations are a matter

of

record.

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 117.)

•

“It is also hard to justify an hourlyfee for public service that is greater than the

weighted-average fee charged by the Respondents’

attorneyeven though the

Respondents’ attorneys

sic)

fees include costs.”

(Idj

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,

Complainant to file and serve answers to said discovery requests by May25,

2005, andthe

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 discoveryrequests by May25, 2005.

Complainant also filed and served discoveryrequests (interrogatories, document requests and

deposition notices) by April 25, 2005.

(~p~

Exhibit A to this Response.)

Complainant then sent

Respondents a letter, dated May 24,

2005, pursuant to Rule 201(k) regarding Complainsnt’i

discovery requests, among other issues. (~ Exhibit B to this Response.)

Ratherthan contact Complainant pursuant to Rule 201(k) or answer Complainant’s

discovery requests, on May 18, 2005, Respondents filed yet anotherpleading, 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 baAis for whichto

do

so;” andthat “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 ¶‘~j

3,

6 and 7.)

II.

RELEVANT LEGAL STANDARD

The purpose of discoveryis to enable attorneys to better prepare and evaluate their cases.

See Carlson v. General Motors Corp.. 289 N.E.2d 439,449

(111. App.

1st Dist. 1972); see also

Tern’ v. Fisher.

145 N.E,2d 588, 593

(Ill.

1957).

In Carison, the Court reiterated the purpose of

3

---

discovery:

“theprinciple is now well 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 aparty is entitled to Ml disclosure

regarding “any matterrelevant to

the subjectmatter.”

111.

Sup.

Ct. R. 201(b)(1).

Courts have

further held that discovery presupposes arange ofrelevance and materiality that includes not

only what is admissible at trial, but also that which leads to what is admissible at thetrial.

See

Kruno v. Chicano TransitAuth..

132 N.E.2d

532,

535

(III.

1956).

The Illinois Supreme Court

has expressed its preference for extensive disclosure through discovery.

PeoDle v. Williford. 649

N.E.2d 941,944 (Ill.App. 5th Dist.1995).

Thus, discoveiyfor eachpartyisfavored and should

not be denied withoutjust cause.

Id.

Ill.

RESPONDENTS’ MOTION

TO STRIKE MUST BEDENIED

A.

Complainant’s Discovery Requests Are DirectlyRelevant to the Numerous, Factual

Allegations Made by Respondents

Respondents

introducedbald

factual allegations into this proceeding concerning the

reasonableness of Complainant’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 awell-established principle that the purposes oflitigation are best servedwhen each party

knows as much about the controversy as is reasonably practicable.

Carlson. 289 N.E.2d at 449.

Complainant (and the Board) knows

nothing

abbut Respondents’ attorneys’ fees and costs.

Therefore, Complainant served timely, foèused

and limited interrogatories, document requests

4

---

Sand notices ofdeposition regarding Respondents’ attorneys’ fees and costs.

Respondents do not argue that Complainant’s discovery requests seek privilegedor

confidential information suchthat Respondents neednot answer.

Respondents do notraisejust

cause for entirely striking Complainant’s discovery requests.

Instead, Respondents have

introduced bald allegations into this proceeding and now seek to prevent Complainnntfrom

conducting any discovery into these allegations.

Respondents’ Motion to Strike rests solely on

theApril 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 theirMotion

to Strike.

This interpretation is unfounded.

Obviously, the April

7, 2005

Order does not

contradict the baAic discoveryconcept of Ml disclosure.

For these reasons, Respondents’

Motion to Strike must be denied.

B.

Complainant Will Be Severely Prejudiced If Respondents Do Not AnswerIts

Discovery Requests

Respondents also do not argue that they will be prejudiced in any wayby answering

Complainant’s discovery requests.

On the otherhand,

Complainant will be severely prejudiced if

Respondents do not filly disclose the factual bases for their allegations.

Without full disclosure, Complainant cannot be filly apprised of the factual bases for

Respondents’ allegations, none ofwhich are amatter ofrecord.

Complainant will be unprepared

and severely prejudiced at a hearing on the reasonablenessoftheAttorney’s Fees and Costs

Petition it is deniedsuch information.

Again, the purpose ofdiscovery is to

enable attorneys to

betterprepare and evaluate their cases.

~

Carison. 289 N.E.2d at 449; Tern’. 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.

(3~

Exhibit B at

3.)

Had Respondents initiated a conference pursuant to Rule 201(k) tO informallyresolve

differences, theirfrivolous Motion to Strike could havebeen avoided.

To date, Complainant’s

attorneys

still

have not heard from Respondents’ attorneys, despite Complainant’s letter, dated

May 24, 2005.

(j)

Respondents’ fhilureto contact Complainant regarding a discovery dispute

prior to filing yet another pleading violates Rule 20 1(k) and the letter andspirit ofthe April 7,

2005

Order, which expressly discouragedpleadings that are not designed

to further a speedy and

ultimate resolution of this case.

(Order at 4 (April 7,2005).)

Both Rule 201(k) and the April 7,

2005

Order required an informal dispute resolution process between

the

parties prior

to

filing.

further pleadings.

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 reliefof a Board Order preventingfill disclosure

regarding the bases for theirbald allegations.

Respondents have not objected to

the substance of Complainant’s discovery requests

or

claimed any privilege.

Complainant will be severely prejudiced ifit must proceed to hearing

6

---

without being adequately apprised ofRespondents’

allegations

through lifflited and focused

discovery.

Discovery is a two-way street and Complainant is entitled to fill disclosure under the

rules ofdiscovery.

Contrary to the Respondents’ contention, the April 7, 2005 Order does not

support the extraordinary relief sought.

Lastly, Respondentsalso failed to comply with Rule 201(k) and the April 7, 2005 Order

prior to filing yet another pleading with the Board.

Had Respondents attempted to resolve their

differencesinformally with Complainant prior to filing anotherpleading, their Motion 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.

Respectfullysubmitted,

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

---

OFFICE OF THE

ATFORNEY GENERAL

STATE OF ILLINOIS

Lisa Madigan

May24, 2005

ATTORNEY GENERAL

Sent ViaFirst

Class Mail

Mr. David

S.

O’Neill,

Esq.

5487 NorthMilwaukee Avenue

Chicago, Illinois 60630-1249

Re:

Discovery

—

People

v’. Skokie Valley Asphalt Co., Inc.,

etat.

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 ofthis 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 discovery requests 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.

First, and most

troubling, your discovery requests contain inflammatoryallegations and insinuations ofpexjury,

unethical conduct, over-billing and

other

improprieties by the Attorney General’s Office,

particularly by former Assistant Attorney General

Joel

Sternstein.

None ofthese allegations and

insinuations has any thread oftruth.

These are attacks on Complainant’s attorneys and have no

applicationto

any issue in the case.

It is truly a sad chapter in any case when an

opposing

attorney resorts to

this sort ofbully tactic.

•

Properly conducted, this

should

be a dignified procedure.

As

attorneys, we are officers of

the court

—

in

this case the Board

—

andwe 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, giventhe letter and spirit otthe

Board’s last order, dated April 7, 2005, which expressly directed, us to resolve this in a speedy

manner, we decided to write you instead.

Frankly, we hope that the problem 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

that the

Board is loatheto hear another discov

di

ute

EXHIBIT

B

500 South Second Street, Springfield, IUinois

62706

•

(217)

782-1090

•

TTY~

(211) 785-2771

•

Fsr

(21

im

We,r Rsndnlnh

Street

Chicato.

Illinois

60601

•

(312)

814—3000

•

TFY:

(312)

814-3374

•

Far

(31

---

May24, 2005

Page

2

butwe will bring this problem to the Board’s attention ifit continues.

Q9fl~,

Complainantobjects

to Request to AdmitFactNos. 3,11,12,

13,

15,

16,

17,

18,

19,20, and 37, InterrogatoryNo.

14, and Document RequestNos. 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 information regarding Complainant’s request

for

AAG Sternstein’s fees, which

were previously disallowed by theBoard.

The Board expressly orderedthat “the parties arenot

to

address

AAGSternstein’s

fees) in conducting discovery orat hearing.”

Q~)

For these

reasons, Complainant does not answer these particularrequests.

~

Complainant objects to Request to Admit Fact Nos. 4, 5, 6,

8, 9, 27, 28, and 30,

Interrogatàry

Nos.

16

and 23(i), and Document RequestNos.

5,

7, 8 and

9

on relevance and

privacygrounds because they seek information 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 notonly irrelevant under the legal standard, but it is so vastly oversimplified as to

haveno validity.

You fail to recognize that our billing ratewould not reflect our salary because

employee benefits, employer’s liabilityinsurance, overhead costs (rent, office equipment,

support

stag 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 rat; 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 ofapetition for fees and costs,

It

is simply not a factor considered by the Board or courts.

The Board has previously found that an

hourly of$150.00 per houris reasonable for an Assistant Attorney General.

See e&. People v.3

& F Hauiint Inc.. PCB 02-21

(May

1, 2003).

Therefore, the

only

relevant issue isthe

reasonableness of theamount ofhours billed and the costs incurred.

For these reasons,

Complainant does not answer these particuiar requests.

Respondents’ Deposition Notice for Former AAGJlurphv

We received Respondents’ deposition notice for former AAG Murphy’s deposition on

June 24,

2005.

Please be advised that AAG Murphyleft the

Attorney

General’s Office (on good

terms) last year. Ifyou~

to depose him, please contact him directly.

Mr.

MurphynOw serves

as Assistant General Counsel, Department ofLaw, City ofChicago Board ofEducation,

125

South Clark Street, 7th Floor,

Chicago, illinois.

---

May 24, 2005

Page 3

Respondents’ Failure to Comply With Rule 201(k)

Prior to Filinz Their Motion to Strike

Lastly, you failed to comply with Rule 201(k) prior to

filing Respondents’ Motion to

Strike

complainant’s

discovery requests.

We did not evenreceive a telephone call

from you

(or

Michael Jasvgiel) in this regard.

Had you

contacted

us, we may havebeen able to resolve this

dispute informally and withoutfurther, needless litigation.

We served you with discoveryrequests because you made

numerous,

factual allegations

concerning the petition for fees and costs that are not a matter of

record.

As one example,

in

paragraph

17

of “Respondents’ Initial Response To And Motion To Stay And/Or Extend Time

To Respond To Complainant’s Petition For Attorneys’ FeesAnd

Costs,”

you

alleged the

following:

Itis hard to justii& 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.

Respondents’ legal fees and costs are

not a

thatter ofrecord.

Your dispute ofthe 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 cannot be adequately apprised of

your allegations if you refuse to answer our limitedand focused discovery requests.

In order to

resolve this dispute, we invite you to

contact us pursuant to Rule 201(k).

Michael C. Pàrtee

Assistant Attorney

General

Environmental Bureau

188 West Randolph Street, Suite 2001

Chicago, illinois 60601

Tel: (312)814-2069

Fax: (312)814-2347

E-Mail: mpartee®atg.state.il.us

cc:

Carol Webb, Hearing Officer

Michael B. Jawgiel, Esq.

---

OFFICE OFTHE

ATTORNEY GENERAL

STATE OF ILLINOIS

Lisa Madigan

•

~

14, 2005

AVFORNEY GENERAL

Sent

Via

First Class Mail

Mr. David S. O’Neill, Esq.

5487 North Milwaukee Avenue

Chicago, illinois 60630-1249

Re:

Discovery

—•

People v. Skokie ValleyAsphalt Co., Inc.,

et at,

PCB

96-98

Dear Mr.

O’Neill:

The purpose ofthis letter is to initiate

another conference pursuant to illinois Supreme

Court Rule 201 (Ic) to resolve anypotential differences over Respondents’ notices of deposition.

Respondents noticed the depositions of

AAG

Mitchell Cohen and former AAG Bernard Murphy

for June 24, 2005, at 9:00 an. and

1:00 p.m., respectively.

We intended to take this up with you

during our case status conference on

June

9, 2005, but you failed to appear.

As I explained in my first Rule 201(k) letter, dated May 24, 2005, Mr. Murphy left the

Attorney General’s Office last year, which means thatwe areunable to produce him for a

deposition.

To dat

I have not received any response to my May 24,

2005

letter, so I assume that

our

concern regarding Mr.

Murphy’s deposition notice is resolved.

In light of

Respondents’

recent, unresolved Motion to Strike the State’s discovery

requests regarding attorneys’ fees and costs, we now object to producing Mr. Cohen for a

deposition on June 24,2005.

First, depositions should not begin until we complete written

discovery.

Mr.

Cohen (or any other potential witness) should have the benefit ofreviewing all

written discovery before submitting to a deposition.

Moreover, beginning depositions before

completing written discovery is not conducive to

orderly discovery.

Second, as you pointed in

Respondents’ Motion to Strike, the Board’s April 7,2005 Order only

provides

that “Respondent

is directedto

file the outstanding discovery requests with the

Board.

..

;

and)

the People’s

response must be filed on respondents and served with the Board.

.

.

.“

(Order at 4.)

The

Board’s reference to the “filing” ofdiscoveryrequests and answers can only mean written

discovery.

As you argued in your Motion to

Strike, the April 7, 2005 Order does not authorize

the State’s written discoveryrequests.

By the same token, the Order does not authorize the

Respondents’ notices ofdepositions.

Therefore, applying your argument, the Respondents are

not entitled to conduct depositions because theApril 7, 2005 Order does not so provide.

500 South Second Street, Springfield,

Illinois

62706

•

(217)

782-1090

•

TFYi (217) 785~277I

•

Far

(217)

78V

100 ‘Nest Randolph Street, Chicago, Illinois

60601

•

(312) 814-3000

•

T’I’Y: (312) 814-3374

•

Fir

(312) 814-3806

---

June

14,

2005

Page

2

While we believe that the Board intended full disclosure by both sides, we do notplan to

submit Mr.

Cohen for adeposition until the Board clarifies the scope of discoveryregarding

attorneys’ fees and costs.

As always, please contactmewith any questions or concerns.

Michael C. Partee

• Assistant Attorney General

Environmental Bureau

188 West Randolph Street, Suite 2001

Chicago, illinois 60601

Tel: (312)814-2069

•

Fax:(312)814-2347

E-Mail: mpartee®atg.state.il.us

cc:

Carol Webb, Hearing Officer

Michael B. Jawgiel, Esq.

Bernard Murphy, Jr., Esq.

---

SKOIUE VALLEY ASPHALT CO., INC~,

an illinois

Corporation, EDWIN L. FREDERICK,

JR.,

Individually and aE Owner and

President of

Skokie Valley Asphalt

Co.,

Inc., and

RICHARD I. FREDERICK, Individually

and as Owner and Vice President ofSkokie

Valley Asphalt Co., Inc.,

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 GrandAvenue East

Chicago, illinois 60630-1249

P.O. Box

Springfield, Illinois

62794-9274

PLEASE

TAKE

NOTICE

that

I have today

filed

Complainant’s

Answers

and

Objections

to Respondents’ First Set of Request for Admission of Facts Regarding Attorneys’ Fees and

Costs, Complainant’s Answers and Objections to Respondents’

First

Set of Interrogatories

Regarding Attorneys’ Fees and Costs, Complainant’sAnswers and Objections to

Respondents’

First

Set of Document Requests Regarding Attorneys’ Fees

and Costs,

and

Certification thereof, with the Office of the Clerk ofthe Illinois Pollution Control Board,

true

and

correct copies ofwhich are attached hereto andherewith

served

PEOPLE

OF THE STATE OF ILLINOIS,

by LISA MADIGAN, Attorney General

the

S4ate

ofillinois

BY:

MICHAEL C. P

TEE

Assistant Attorney General

Environmental Bureau/North

188

West Randolph Street, Suite 2001

Chicago, illinois 60601

Tel: (312)814-2069

•

RECEIVED

•

BEFORE

THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

MAY 24201)5

PEOPLE OF

THE

STATE OF

ILLINOIS,

by LISA

MADIGAN,

Attorney General

ofthe State ofIllinois,

Complainant,

v.

STATE OF ILLINOIS

Pollution Control

Board

)

)

)

)

)

)

)

)

PCB 96-98

(Enforcement

-

RCRA)

)

)

)

)

)

)

)

)

Respondents.

EXHIBIT

B

---

•

CERTIFICATE

OF SERVICE

It is hereby certified that true and correct copies ofthe Notice of Filing, Respondents’

First Set of Request for Admission of Facts Regarding Attorneys’ Fees

and Costs,

Complainant’s Answers

and

Objections toRespondents’

First Set ofInterrogatorles

Regarding Attorneys’ Fees and Costs, Complainant’s Answers and Objections to

Respondents’

First Set of Document Requests Regarding Attorneys’ Fees

and

Costs, and

Certification thereof, were sent by First Class Mail, postage prepaid, to the

persons

listed on the

Notice of Filing on May 24, 2005.

BY:

MICHAEL C. PARTEE

It is hereby certified thatthe originals plus nine (9) copies ofthe foregoing were hand-

delivered to the following person on May 24, 2005:

Pollution Control Board, Attn: Clerk

James R. Thompson Center

100 West Randolph Street,

Suite

11-500

Chicago,

illinois 60601

BY:

MICHAEL C. PAR

E

---

BEFORE THE ILLINOIS

POLLUTION

CONTROL

BOAR)

PEOPLE OF THE

STATE OF

ILLINOIS,

)

CLERK’s OFFIC?

by LISA MADIGAN, Attorney General

)

ofthe State ofillinois,

)

•

MAY

24

201)5

)

STATE

OF ILLINOIS

Complamant,

)

Pollution Control Board

v.•

)

)

PCB 96-98

SKOKIE VALLEY ASPHALT CO., INC.,

)

(Enforcement

-

RCRA)

an illinois

Corporation, EDWIN L. FREDERICK,

)

a,

Individually and as Owner and President of

)

Skokie Valley Asphalt

Co.,

Inc., and

)

RICHARD I. FREDERICK, Individually

•

)

and as Owner and Vice President ofSkokie

)

Valley Asphalt Co., Inc.,

)

)

Respondents.

)

COMPLAINANT’S ANSWERS AND OBJECTIONS

TO

RESPONDENTS’ FIRST

REQUEST FOR

ADMISSION

OF

FACTS

REGARDING ATTORNEYS’ FEES AND

EXPENSES

• NOW COMES

Complainant, PEOPLE OF THE STATE OF

ILLINOIS, by LISA

MADIGAN, Attorney General ofthe State ofillinois, and in response to Respondents’, SKOKIE

VALLEY ASPHALT

CO.,

INC., EDWIN L. FREDERICK, JR., and RICHARD J.

FREDERICK, First Request for Admission ofFacts Regarding Attorneys’ Fees and Expenses,

answers and objects as follows:

I.

GENERAL OBJECTIONS

1.

Complainant objects to Respondents’ Re4uests to Admit Facts (“Requests”)

because they violate the Board’s Order, dated April 7, 2005, which directed the parties

to resolve

this dispute over attorneys’ fees and costs in a speedy and final resolution.

In allowing limited

discovery on Complainant’s request for

fees and costs, the

Board ordered that “anypleading by

eitherparty not designed to fbrther a speedy and ultimate resolution of this case will not

be

---

tolerated by the hearing officer or the Board.”

(See

Order, dated April 7, 2005, at 4.)

Many of

Respondents’

41

Requests are insulting, harassing, made in bad faith, do notpertain to attorneys’

fees and costs, and arenot devised to resolvethis in a speedy and final manner.

2.

CornplainantobjectstoR.equestNos.3, ii,

12,13,15,16,17,18,

19,20,and37

on relevance grounds and because they violate the Board’s Order, dated April 7, 2005.

These

Requests seek admissions regarding Complainant’s request for AAG Joel Sternstein’s fees,

which were previouslydisallowed by the Board.

(Idj

The Board expressly ordered that “the

parties are not to address AAG

Joel Sternstein’s fees

in conducting discovery or at hearing.”

(Jj)

For these reasons, Complainant neither admits nor denies these Requests pertainingto

AAG Sternstein.

3.

Complainant objects to Request Nos. 4,

5, 6, 8, 9, 27,

28, and 30 onrelevance

and

privacygrounds because they seek irrelevant information regarding personal compensation to

Assistant Attorneys General in this case.

The personal compensation to the Assistant Attorneys

General in this case is private information that has

no relevance to the

reasonableness oftheir

requested fees and costs.

For these

reasons, Complainant neither admits nor denies these

Requests pertaining

to

personal compensation.

4.

Complainant objects to the definition of “State” contained in the Requests as

overbroad and unduly burdensome to the extent that

it

puiports to require Complainant to answer

on behalfof any office or agency otherthan theAttorney General’s

Office

and

the

illinois

Environmental Protection Agency.

5.

Complainant objects to theform ofthe definitions

of“subject

matter olthis case”

and“person”

or “people.”

Complainant also objects that the definition of

“person” or “people” is

ambiguous.

2

---

IL

ANSWERS

Fact No. 1~

At

all

times relevant to the request for attorneys’ fees, cost

sic

and expenses, attorneyMitchell

Cohen

was

an assistant Attorney General employed by the State

and

the illinois Attorney

General’s

Office.

Response:

Subject to

its objections, Complainant admits this fact.

Fact No. 2:

At all times relevant to the request for attorneys’

fees, cost

sic

and

expenses,

attorneyBernard

Murphy

was

an assistant Attorney

General

employed by the

State and the illinois Attorney

General’s Office.

Response:

Subject to its objections,

Complainant admits

this fact.

Fact No.3

At all times relevant to the request for attorneys’

fees, cost

sic

and

expenses, attorney Joel

Sternstein

was

an assistant Attorney General employed by the State and the illinois Attorney

General’s Office.

Response:

Subject to its objections

and

pursuant to the Board’s

Order, dated April 7, 2005,

Complainant neither

admits

nOr denies

this fact.

Fact No. 4:

The Attorneys Claiming Fees are paid for their services by the State at a

salary

as opposedto an

hourly rate.

Response:

Subject to its objections

and

pursuant to the Board’s

Order, dated April 7, 2005,

Complainant neither admits nor denies

this fact.

Fact No. ~

Taxpayers, including the Respondents, pay the Attorneys Claiming Fees

through

their taxes at a

non-hourly rate salary.

Response:

Complainant specifically objects to this

request

because it assumes

facts

not in

evidence.

Whether

and how much taxes

are paid by Respondents is not a matter ofrecord.

Complainant also

incorporates its general

objections herein.

Subject to its

objections and

pursuant to the Board’s

Order,

dated

April 7, 2005, Complainant neither admits nor denies

this

fact.

3

---

Fact No. 6:

The

Attorneys Claiming Fees have, in fact, already determined their

pay rate

through their

employment relationship with the State

sic

Response:

Subject to its objections and

pursuant

to the Board’s

Order,

dated April 7, 2005,

Complainant neither admits nor denies

this fact.

Fact No. 7:

The

Attorneys

Claiming Fees were not precluded from working on other matters as a result of

their acceptance ofresponsibilities for

this

mattet

Response: Complainant specifically objects that this request is ambiguous.

Complainant also

specifically objects to this

request on relevance grounds.

Acceptance ofother, unrelated matters

is irrelevant to the requested fees and costs in this case.

Subject to its objections, Complainant

admits this

fact.

Fact No. 8:

The Attorney Claiming Fees are

sic

assigned to

the

Environmental Bureau ofthe illinois

Attorney General’s

Office

arid as a result have experience and expertise

in the fieldofillinois

environmental law.

sic

and

their salary reflects this expertise

and experience.

Response:

Subject to its objections

and pursuant to the Board’s Order, dated April 7,

2005,

Complainantneitheradmits nor denies

this fact.

Fact No.

9:

The Attorneys Claiming Fees

sic

silary reflect the fact that they are assigned to the

Environmental Bureau ofthe illinois Attorney General’s

Office and

their experience

and

expertise in the field ofillinois environmental law.

Response:

Subject to its objections and pursuant to the Board’s Order, dated April 7, 2005,

Complainant neither admits

nor

denies this fact.

Fact No. 10:

This case involves legal issues

and procedures with

which the

Attorneys Claiming Fees are

supposed to have expertise and does not involve novel

and difficult

issues.

Responsc

Subject to

its

objections, Complainant

denies

this

fact.

Fact No.

11:

The

assignment

of attorney Stemstein 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:

Subject to

its objections and pursuant to the Board’s

Order,

dated April 7, 2005,

Complainant neither admits nordenies

this

fact.

4.

---

Fact No.

12:

Attorney Cohen was

either co-counsel or

supervising attorney to Attorney Stemstein during all

or

part

ofthe

time

in which

Attorney Cohen is claiming fees.

Response:

Subjectto

its

objections and pursuant

to the

Board’s Order, dated April 7, 2005,

Complainant neither admits nor denies this fact.

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: Subject to its objections and pursuant to the Board’s Order, dated April 7, 2005,

Complainant neither admits nor denies this fact

Fact No. 14:

Attorney Cohen had a duty to know and comply with

the

Procedural Rules ofthe Board.

Response: Complainant specifically objects to this request on relevancegrounds.

This request is

irrelevant to

the reasonableness of the requested fees and costs.

Complainant also specifically

objects that this request is argumentative.

Subject to its objections, Complainant admits this fact

and states that all attorneys in this case have such a duty.

Fact No. 15:

The Board’s Procedural Rules prohibited Attorney Sternstein from representing a party

in

this

matter during the period in which fees are being claimed.

Responsej Subject to its objections and pursuant

to the Board’s

Order, dated

April 7, 2005,

Complainant neither admits nor denies

this fact.

Fact No.

16:

Attorney Cohen knew or should have known that

Attorney

Sternstein was prohibited from

representing a party

in

this case

sic

Responsej Subject to its objections and pursuant

to the Board’s

Order,

dated

April 7, 2005,

Complainant neither admits nor denies this fact.

Fact No. 17:

During discovery in this matter,

the Respondents specifically asked the Complainant for

inibnnation on the past employment history ofthe Attorneys

Claiming Fees and the Complainant

failed to divulge that Attorney Stemstein had

previously been

employed

by the Board andhad

been involved in decisions concerning this

case.

Response:

Subjectto

its objections

and

pursuant

to

the

Board’s Order, dated

April 7, 2005,

Complainant neither admits nor denies this fact.

5

---

Fact No. 18:

During the period in which fees are being claimed, Attorney Stemstein was havixig ex-parte

sic

communications with both Board members and Board staff.

Response: Subject to its

objections

and

pursuant to the Board’s Order, dated April 7, 2005,

Complainant neither admits

nor

denies this fact.

Fact No.

19:

Attorney

Cohen had

a

duty to determine ifAttorney Cohen

sic

was ineligible

to

represent

a

partyand

was

otherwise involved in unethical conduct in this matter,

to

prevent Attorney

Sternstein from representing a party

in

this matter

if a

conflict exists, to make the Board and the

Respondents ofany conflict

and violation

ofBoard

Procedural Rules

and to

report

such

conflicts,

violations

and ethical breached sic

to the proper disciplinary boards

and to

his supervisors at

the fllinois Attorney General’s

Office.

Respons~i

Subject to its objections and pursuant to the Board’s Order, dated April 7,

2005,

Complainant neither admits

nor

denies this

fact.

Fact No. 20:

Attorney Cohen’s failure to properly handle and address the conflict and ethical breaches

of

attorney Sternstein represent an ethical

breach by AttorneyCohen.

Response:

Subject to its

objections and pursuant to the Board’s Order, dated April 7, 2005,

Complainant neither admits nor denies this fact.

Fact No. 21:

The Attorneys Claiming Fees never prepared a budget for the for

sic

representing

the

State in

this matter and no such budget was submitted to the State

and approved by the State or any other

client.

Responsei complainant specifically

objects

to this request on relevance grounds.

Whether or

not a budget was

prepared is irrelevant

to

the reasonableness ofthe requested

fees and costs.

Subject to

its objections, Complainant admits this fact.

Fact No.

22:

The

Attorneys

Claiming

Fees did not

maintain

time sheets or

logs ofany

kind

to document

and

veri~’

the

hours

worked on

this matter.

Response: Subject to its objections, Complainant

denies

this

fact.

6

---

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:

Complainant specifically objects to

this request

on relevance

grounds.

Whether or

not invoices were submitted is irrelevant to the reasonableness ofthe requested fees and costs.

Subject to

its objections, Complainant admits this fact.

Fact No. 24:

The Attorneys Claiming Fees did

not discuss theirhourly billing rates

with

the State or any other

client

in

this matter or gain approval to bill at any agreed

to billing rate other

than

the

salary paid

to the

Attorney

Claiming Fees

by the

State.

Response:

Complainant specifically objects to this

request on relevance

grounds.

This

request is

irrelevant

to the reasonableness of the requested

fees

and costs.

Complainant

also specifically

objects to the

form

of

this

request.

Subject to its objections, Complainant

denies this

fact.

Fact No.

25:

Throughout the course ofefforts to negotiate and settle this matter,

the

Attorneys Claiming Fees

did

on more than on 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

ofthe

final settlement amount

offer.

Response:

Complainant specifically objects to

this request

on relevance grounds.

Complainant

specifically objects to

this Request because settlement communications are inadmissible.

This

request is irrelevantto the reasonableness ofthe requested fees

and costs.

Subject to

its

objections, Complainant denies this fact.

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 ofthe amount

of

the-attorneys

sic

fees,

costs and expenses being claimed.

Response: Complainant specifically objects

to

this

request on relevance

grounds.

This

request

is

irrelevant to the reasonableness ofthe requested fees and costs.

Complainant specificallyobjects

that

settlement communications are inadmissible.

Complainant also specifically objects to this

Request because it is argumentative.

Subject to its objections, Complainant denies this fact.

FactNo. 27:

None ofthe

Attorneys Claiming

Fees

has

ever been paid an hourly rate as high as the hourly rate

they are requesting in

this

matter.

Response:

Complainant specifically objects to the

form

of

this

Request

and because

it is

ambiguous.

Subject

to its objections and

pursuant to the

Board’s

Order, dated April 7, 2005,

Complainant neither

admits nor denies

this

fact.

7

---

Fact No.

28i

The Attorneys

Claiming Fees have not collected any payments from

the

Statehased on the hourly

rate they are claiming in requestfor legal fees in this manner.

Response:

Complainant specifically

objects to the form ofthis

Request

and because it is

ambiguous.

Subject to its

objections and pursuant to the Board’s

Order, dated April 7, 2005,

Complainant neither admits nor denies this

fact.

Fact No. 22i

The Attorneys Claiming Fees did

not

consult any expert or site

sic

any authority in fabricating

the hourly fee charges in its

determination

of

attorneys’ fees.

Response:

Complainant specifically objects to the form ofthis Request.

Complainant also

specifically objects that

this Request assumes

facts not in evidence.

Subject to its objections

and

pursuant to

the Board’s

Order,

dated April 7, 2005, Complainant neither

admits

nor

denies this

fact.

Fact No.

31k

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

Complainant specifically

objects to the form of

this

Request.

Subject to its objections

and pursuant to the Board’s

Order, dated April 7, 2005, Complainantneither admits

nor denies

this fact.

Fact No. 31:

The Attorneys

Claiming Fees didnot present anyargument

for attorneys’

fees, cost and

expenses

at the hearing on this matter before the Board on October 30 and

31, 2003

sic.

Response:

Subject to its objections, Complainant denies

this

fäót.

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

chargeswere actually incurred.

Response Subject to its objections,

Complainant admits

this

fact.

Fact No.

33:

Attorney Cohen executed an

affidavit

on April

13,

2004 in which he affinned that State of

illinois

incurred

$5,574.84

incosts in prosecuting

this case

and

submitted this affidavit as

evidence ofthe State’s

claim for

expenses

in

this

matter.

Response:

Subject to its

objections, Complainant

admits this fact.

8

---

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 case

and submitted

this affidavit as

evidence ofthe State’s

claim

for expenses in

this matter.

Response:

Subject to its objections,

Complainant admits this fact.

Fact No. 35:

The affidavit filed by Attorney Cohen on April 13,2004 contained false information and

supported a false claim for recoveryof expenses even though Attorney Cohen states in the

affidavit

that the information in the Affidavit is

“tnie

and

accurate” and

that he

has “reviewed

the

cots

incurred”.

sic

Reiponse:

Subject to its objections, Complainant denies this fact.

Fact No. 36:

The submission ofan affidavit with false information as testimony and evidence to the Board

constitutes peijury

onbehalfof

Attorney Cohen, the illinois Attorney General’s Office and the

State.

Response:

Complainant specifically objects to

this Request because it assumes facts notin

evidence.

The

affidavit did

not

contain false infonnation.

Subject

to its objections, Complainant

denies this fact.

Fact No. 37:

To date, none ofthe Attorneys Claiming. Fees, the illinois Attorney General’s

Office or the State

have

taken any disciplinary action or review procedures with respect

to

Attorney Sternstein’s

ethical

breach

in representing a client at the Board in violation ofthe Board’E Proceduraitules,

Attorney Cohen’s

Ethicalbreach 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

peijury

in

executing a false

affidavit and none ofthe parties have reported

these

actions to

appropriate

disciplinary

commissions as required.

Response: Complainant specifically objects to this Request because

it assumes facts riotin

evidence.

Complainant also specifically objects

that

this Request is argumentative.

Subject to its

objections and pursuant to the Board’s

Order, dated April 7, 2005,

Complainant neither admits

nor

denies this fact.

9

---

Fact No. 38:

The cost ofoff-site copying

included the

copying

ofa number ofpages

and documents that were

not entered

into evidence and

referred

to at

hearing.

Response:

Complainant specifically objects to

this request on relevance grounds.

Whether

or

not all documents copied at Complainant’s expense were admitted

into

evidence or referred

to at

a

hearing in this

matter is

irrelevant.

Subject to its objections

and aftera reasonable

investigation,

Complainant

lacks

sufficient information to either admit

or

deny this fact.

Fact No. 39~

Travel

and lodging expenses incurred

by Attorney Cohen and Attorney

Murphy were cost

incurred strictly at the discretion ofthose attorneys and, were not necessary for the prosecution of

this case.

Respons~j

Complainant specifically objects that

this

Request is argumentative.

Subject to its

objections, Complainant denies this

fact;

Fact No. 40z

The

Attorneys Claiming Fees each submitted affidavit

sic

to

support the hours

they billed

as

legal fees.

Response:

Subject to

its objections, Complainant admits this fact.

Fact No. 41:

None ofthe summaries ofhours presented by the Attorneys Claiming Fees with their affidavits

represent a record

ofhours

thatwere kept

at the

time the work was performed.

Response:

Subject to its objections, Complainant denies

this fact.

Fact No. 42~

The summaries

of

hours presented by the Attorney Claiming Fees

with their

affidavits were

prepared

for the purpose ofsubmittal with the affidavits

andthe petition for attorneys’ fees.

Respons~Subject to’ its objections, Complainant admits this fact.

Fact No. 43:

The

summaries ofhours presentedby the Attorneys Claiming Fees with the affidavits and

the

petition for attorneys’ fees have not

and will not be presented to the

Attorneys Claiming

Fees’

clients for actual payment.

Response:

Complainant specifically objects to

this

Request on relevance grounds.

This request

is irrelevant to the reasonableness ofthà requested fees and costs.

Subject to its objections,

Complainant admits

this fact.

10

---

Respectfully submitted,

PEOPLE

OF THE STATE OF ILLINOIS,

by USA MADIGAN,

Attorney General

of the State of illinois

BY:

MICHAEL C. PARTEE

Assistant

Attorney General

Environmental Bureau

188,West Randolph Street,

Suite 2001

Chicago, illinois

60601

Tel:

312-814-2069

11

---

BEFORE THE ILLINOIS

POLLUTION CONTROL BOA~R~EIVEO

CLERK~SOFFICE

PEOPLE OF

THE

STATE OF

ILLINOIS,

)

by

LISA MADIGAN, Attorney General

)

MAY

242005

of the State ofillinois,

)

it OF

IL.LNOIS

)

~

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 I. FREDERICK, Individually

)

and as

Owner and Vice President ofSkokie

)

Valley Asphalt

Co., Inc.,

)

)

Respondents.

)

COMPLAINANT’S ANSWERS AND

OBJECTIONS TO

RESPONDENTS’ FIRST

SET

OF INTERROGATORIES

REGARDING

ATTORNEYS’ FEES

NOW COMES Complainant, PEOPLE OF THE

STATE OF ILLINOIS, byUSA

MADIGAN, Attorney General of the State ofIllinois, and in response to Respondents’, SKOKIE

VALLEY ASPHALT

CO.,

INC., EDWIN L. FREDERICK, JR., andRICHARD I.

FREDERICK, First

Set ofInteirogatories Regarding Attorney’s Fees and Expenses,

answers and

objects as follows:

I.

GENERAL

OBJECTIONS

1.

Complainant objects to First Set of

Jnterrogatories

Regarding Attorney’s Fees

and

Expenses (“Interrogatories”) because they violate the Board’s

Order, dated April 7, 2005, which

directed the parties to

resolve this dispute in a speedy and final resolution.

In allowing limited

discovery on Complainant’s request for fees and

costs, the

Board ordered that “anypleading 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.”

(See

Order,

dated April 7,

2005, at 4.)

Respondents’

.~jQ

Interrogatories

(including sub-parts)

are

insulting, harassing, made in bad faith,

and are not devised to resolve this in a speedy and final manner.

2.

Complainant objects to

Interrogatory No.

14 on relevance grounds and because it

violates the Board’s

Order,

dated April 7, 2005.

This

Interrogatory seeks information regarding

Complainant’s request for

AAG

Joel Sternstein’s fees, which were previously disallowed by the

Board.

(j4~)The

Board expressly ordered

that “the parties

are not

to

address AAG

Joel

Sternstein’s fees

in conducting discovery or at hearing?’

(Id~~

For these reasons, Complainant

does not answer this Interrogatory pertaining to AAG Sternstein.

3.

Complainant objects to Interrogatory Nos. 16 and 23(i) on relevance and privacy

grounds because

they

seek irrelevant information

regarding

personal compensation to Assistant

Attorneys General

in this case.

‘The personal compensation to the Assistant Attorneys General in

this case is private informationthat has no relevance to the reasonableness oftheir requested fees

and costs.

For these reasons, Complainant does not answer Interrogatories pertaining

to

personal

compensation.

4.

Complainant objects to the Interrogatories because

they

violate Supreme Court

Rule 213(c), which provides that a

party shall serve no more than 30 interrogatories, including

sub-parts.

Respondents served ~Qinterrogatories, including sub-parts.

5.

Complainant

objects to the definition of“State” contained

in the Interrogatories as

overbroad and unduly burdensome

to

the extent

that

it

purports

to

require Complainant to answer

on

behalfof

any office or agency other than the Attorney

General’s Office and

the illinois

Environmental

Protection Agency,

2

---

6.

Complainant objects to the

form ofthe definitions of “subject matter ofthis

case”

and “person” or “people.”

Complainant also objects that the definition of

“person”

or “people”

is

ambiguous.

II.

ANSWERS

Interrogatory No.

1:

Identify the person(s) answering these interrogatories and identify any and all persons

who were

consulted in formulating answers to these interrogatories.

Response:

Subject to

its

objections, Complainant

answers

Assistant Attorneys

General Mitchell

L.

Cohen and Michael C.

Partee.

Interrogatory No.

2:

Identify any persons with knowledge related to the subject matter ofthe claims for Attorneys

Fees

and

Costs and describe in

detail the subjects ofwhichhe has knowledge.

Response:

Complainant specifically objects

that this

request seeks irrelevant information and is

overly broad and unduly burdensome because it seeks

a virtually endless listof

names.

Subject

to its objections, Complainant answers that Assistant Attorneys General Cohen, Michael C.

Partee,

and Elizabeth Wallace have such knowledge.

Former Assistant Attorneys

General

Bernard I. Murphy,

Jr, Joel Stemstein, KellyCartwright, Ellen O’Laughlin and Bradley Hailoran

also have such knowledge.

All

ofthese attorneys

have knowledge ofthe legal work that each

attorney respectively performed in this case.

Also, please see Complainant’s Answers and

Objections to Respondents’

First Set of

Document

Requests.

Complainant’s investigation

continues.

Interrogatory No. 3:

Identify any and all witnesses you may or will call at the evidentiaryhearing on

this matter.

For

each witness,

state the

following:

a.

The name address and

employer

ofeach witness;

b.

A

summary

of the relevantfacts within the knowledge ofwhich said witness will

testify

c.

A list

of

all documents or photographs which

any

such

witriess relied on, will use

or which Complainant may introduce into evidence in connection with the testimony of said

witness.

Response:

Subject to

its objections, Complainant answers that it may

call

AAG Cohen and

Partee,

188 West Randolph Street, Suite 2001, Chicago,

illinois.

AAG Cohen and Partee have

knowledge ofthe requested attorneys’ fees and costs.

Complainant may also

call

Bernard

J.

Murphy, Jr., Assistant General Counsel, Department ofLaw,

City ofChicago

Board of

Education,

125

South Clark Street, 7th Floor, Chicago, illinois.

Please see

Complainant’s

Answers

and Objections to Respondents’

First Set ofDocument

Requests for the documents on

which these witnessesmay rely.

Complainant’s investigation continues.

3

---

Interrogatory No.

4

Identify any and all opinion witnesses that the Complainant interviewed or expects to call at

hearing:

a.

The subject matter on which the opinion witness is expected

to testify as well as

to conclusions, opinions

and/or expected testimony ofany suchwitness;

b.

The qualification, including but not limited to, the opinion witness’s educational

background, practical experience

in the area in

which he is expected to testify, anyarticles or

paperhe has written,

any and all

seminars and post graduate training

he has received,

his

experience as a teacher or lecturer and his professional appointments and associations.;

sic

c.

The identity ofeach document examined, considered or relied on by him to form

his opinion;

d.

All proceedings in which each opinion witness has

previously testified

as an

opinion witness;

e.

Any and all reports ofthe opinion witness;

sic

Response:

Subject to its

objections, Complainant has

not

interviewed, and does not intend to

call, an opinion witness.

Complainant’s investigation continues.

Interrogatory No.

5:

Identify any and

all

attorneys thatthe Complainants

sic

have

retained

or consulted or expects

sic

to retain or consult in the preparation and conduct ofthis hearing:

a.

The

name

ofthe attorney,

b.

The year the attorney was

admitted to the illinois bar

sic

c.

The attorney’s present place ofemployment

sic

d.

The attorney’s former

employer

sic

e.

The portions ofthe case preparation and litigation for which the attorney will be

responsible,

Response: Subject to its

objections, Complainant answers that AAG Partee

has been assigned

and

consulted in the preparation and conduct of

this hearing.

Please see

Complainant’s

Answers

and Objections to Respondents’ First Set ofDocument Requests for his resume.

Complainant’s

investigation continues.

Interrogatory No.

6:

Describe any and all guidelines and policies that

existed at the

illinois Attorney General’s Office

during

the period in which

hours

were billed

under the request for attorneys’ fees, cots

sic

and

expenses

that addressed

the topic ofbilling for attorneys’ fees, costs and

expenses

and any

changes to those policies or the guidelines during the same period.

Responsci Complainant specificallyobjects to

this request

on form and relevance grounds.

Subject to

its objections, Complainant answers there

is no

information responsive this Request.

Complainant’s investigation continues.

4

---

Interrogatory No. 7:

Describe

any

and all

review procedures that

exist

for reviewing and

authorizing billed

hours

and

expenses at the illinois Attorney General’s

Office.

Response:

Complainant specificallyobjects to this request on form and relevance grounds.

Subject to its objections, Complainant answers

the

Respondents’ disputeof Complainant’s

attorneys’ fees and cost request presently before Board is the “review procedure.”

Complainant’s

investigation continues.

Interrogatory No.

8:

Give detailed information

on

any time and materials thatwere committed to or exerted for the

prosecution ofthis

case but

were not billed and included in therequest for reimbursementof

fees, cost and expenses and the reason that thee

sic

items were not included.

Response:

Complainant specifically objects on relevance grounds because time that was

spent

but not billed is irrelevant to

Complainant’s request for attorneys’ fees and costs orthe hearing

on said request.

Complainant also specifióally objects to the phrase “time

and

materials that

were committed to or exerted for the prosecution” as vague and ambiguous.

Subject to its

objections, Complainant answers that AAG Wallace and former AAG Sternstein, Cartwright,

O’Laughlin and Halloran each spent significant time

on

this

case that is not includedin

Complainant’s request for attorneys’ fees and

costs.

Numerous administrative staffwithin

the

Attorney General’s Office also spent significant time on

this case

that is not included in

Complainant’s request for attorneys’ fees and costs.

AAG Partee

is now spending significant

time on

this

case, which is not

currently included

in Complainant’s request.

Complainant’s

investigation continues.

Interrogatory No.

9:

Identify any and

all

hours and expenses that

were

assigned to

this

case bythe attorneys but were

not billed because theywere contested by a supervisor reviewing

time

sheets and expense

statements and you were instructed not to bill these

items.

Response: Complainant specifically objects onrelevance grounds because time that

was

spent

but not billed is irrelevant to Complainant’s

request

for attorneys’

fees and costs or the hearing

on said request.

Subject to its objections, Complainant answers

that

no time spent on

this

case

was contested by a supervisor.

Complainant’s investigation continues.

Interrogatory No.

10:

Identify anyand all hours and expenses in anymatter involving your employment at the illinois

time sheetsand expense statements.

sic

Response: Complainant specifically objects to the form ofthis

request

—

Complainant does not

understand this request.

Subject to its

objections, Complainant is unableto answer this

request

as

written.

5

---

Interrpgptory No. 11:

Identify both your personal policy

and

the policy

and procedures ofthe illinois Attorney

General’s

Office

regarding the assignment

ofwork to stafflnon-attorney

personnel or to less

experienced attorneypersonnel.

Respons~

Complainant

specifically

objects to the form of

this

request.

Complainant

objects that

the terms “staff/non-attorneypersonnel”

and

“less experienced attorneypersonnel” are vague,

ambiguous

and

undefined.

Complainant also objects on relevance grounds because, pursuant to

the Board’s Order, dated April 7,

2005, the Board is only considering fees and costs for

two

Assistant Attorneys General that worked on

this

matter.

Subject to

its

objections,

Complainant

answers

that work related to document production, photocopying

faxing

and mailing was

assigned to administrative staffwithin the Attorney

General’s

Office.

Complainant’s

investigation continues.

Interrogatory No.

12:

Identify any and all work in

this

matter that was assigned to

staff

or lower billing-rate

attorney

personnel.

Response:

Complainant specifically objects to the form of

this

request.

Complainant also

specifically objects that the terms “staff or lower-billing rate attorneypersonnel” is vague,

ambiguous and undefined.

Subject to

its

objections, please see Complainant’s answer to Request

No.

11.

Complainant’s investigation continues.

Interrogaton No. 13:

Identify all

attorneys’

fees that were submitted for cost recovery in

this

matter that involved work

to

renew,

redraft, correct

errors,

review the work ofother attorneys, review files,

perform

legal

research, request extension oftime for filing,

correct

a

document

that

was not filed

correctly

or in

a timely manner or respond to motions by opposing counsel

that

were filed because the attorneys

for the illinois Attorney General’s office

had

filed a document in error or after a deadline.

Response:

Complainant specifically objects to the form of

this

request.

Complainant specifically

objects that

this

request

assumes

facts not in evidence.

Complainant also specifically objects that

the

terms

“cost recovery” is

vague, ambiguous and

undefined.

Please see Complainant’s

Answers

and

Objections to Respondents’

First Set ofDocument Requests fortime

records.

Complainant’s investigation continues.

Interrogatory No. 14:

Identify

all hours billed or

expenses

incurred in reviewing the work ofAttorney Joel

Sternstein.

or

to respond to motions ofopposing counsel contesting Mr.

Sternstein’s, your and

the Attorney

General’s

Office ethical lapses and compliance withthe Board’s procedural rules in practicing

before the Board in

this

matter.

Response: Complainant specifically objects that

this

Request assumes

facts

not in evidence.

For

the reasons stated in its

general objections andpursuant to the Board’s

Order, dated April

7,

2005, Complainant will not answer

this

Request.

6

---

Interrogatory No. 15:

For all expenses related to copying, identify all pages ofdocuments that were actually

used in the

presentation ofthe case at hearing and specifically referenced at the hearing and entered

into

evidence at the

hearing.

Response:

Complainant specifically objects to this interrogatory

onrelevance grounds.

Whetheror not aparticular document was actually used at hearing and entered

into evidence

is

not the determining

factor for whether copying costs may be

assessed against Respondents.

Subject to its

objections, please see the

documents that were

actually used in the presentationef

the case at hearing and specifically referenced at the hearing

and entered into evidence arthe

hearing.

Complainant’s investigation continues.

Interrogatory No.

16:

Identify any and all

attorney’s

sic

fees ever paid to any ofthe attorneys requesting attorneys’

fees including the

time period

ofthe work,

the method of

maintaining records

ofthe

hours

worked

andcharged,

the

determination ofthe hourly rate, the hourlyrate charged, and number of

hours, the client, the nature ofthe work, the total amount bill

sicj

and the total amount

collected.

Response:

Complainant specifically objects to

this Request on relevance grounds.

Complainant

also

specificallyobjects that this

request is over broad andunduly

burdensome.

Subject

to its

objections, please see Complainant’s Answers

and Objections to Respondents’

First Set of

Document Requests.

Complainant’s investigation continues.

Interrogatory No. 17:

Identify on the methodology used to determine the hourly rate to be used to bill the attorneys’

hours in this matter

and the

name

of

the supervisory personnel who were

consulted

and/or

approved ofthe hourlyrate to be

charged.

Response: Subject to

its

objections, Complainant answers that Board has previouslydetermined

the hourly rate to be used.

See e.g., Peonle v.1 & FHauling.

Inc..

PCB 2002-21

(May

1, 2Q03).

Also, please see Complainant’s

Answers

and

Objections to Respondents’

First Set of

Document

Requests.

Complainant’s investigation continues.

Interrogatory No.

18:

Identify the illinois Attorney General’s Office policy on travel, hotel stays, hotel selection,

and

other expenses incurred by the attorneys during the period ofthe hearingbefore the Board.

Response:

Subject to its objections,

Complainant

answers that

Assistant Attorneys General go

through

a travel coordinator who utilizes State-approved hotels and other accommodations,

mileage fees

and

per diem

rates.

Please see Complainant’s

Answers

and Objections to

Respondents’

First Set ofDocument Requests.

Complainant’s investigation continues.

7

---

Interrogatory No.

19:

Identify

any

progress

billings, periodic billing or intermediate billing

that was

prepared for

this

case.

Response:

Complainant specifically objects on relevance grounds.

Subject to

its objections,

Complainant

answers

that are no progress billings, periodic billings or intermediate billings

that

were

prepared

for

this

case.

Complainant’s investigation continues.

IpterrogatoryNo. 2O~

Identify information pertainingto any review, approval

and

payment of

any

progress bills,

periodió

bills or intermediate bills submitted for approval

and/or payment.

Response:

Please see Complainant’s answer to Request No. 20.

Interrogatory No. 21:

Identify any budget

prepared

for attorneys’

fees, costs and expenses related to

this

case and any

information pertaining to the

tracking

and compliance to the budget and

any

adjustments made to

the budget.

Response: Complainant specifically objects onrelevance grounds.

Subject to its objections,

Complainant answers

that

is no budget prepared for attorneys’

fees, costs and expenses related to

this

case

and any information

pertaining

to the

tracking

and compliance to the budget and

any

adjustments made

to the budget.

Complainant’s investigation continues.

Interroatory No. 22:

Identify concerningthe review and approval

ofany budget

prepared

for

this case

sic,

the

review

ofany

reports tracking

compliance

with

the budget and the

approval ofany

adjustments made

to

the budget.

Response:

Complainant specifically objects to the form ofthis Request.

Subject to its

objections,

please

see Complainant’s answer to Request No. 21.

8

---

Interrogatory No. 23:

For any case in which the illinois Attorney

General’s

Office has previously or is presently

seeking attorneys’ fees, costs and expenses under

the

same legal authority it is seeking attorneys’

fees costs

sic

and

expenses in this matter, please

supply the

following information:

a.

The

parties involved

in the litigation;

b.

The

court andjurisdiction

in whichthe claim was