RECE~VED
CLERK’S OFFICE
OCT
1
2005
STATE OF ILLINOIS
OFFICE OF THE
ATTORNEY GENERAL
Pollution
Control Board
STATE OF
ILLINOIS
Lisa Madigan
~vrn)RNEy GENERAL
October
7,
2005
The Honorable Dorothy
Gunn
Illinois
Pollution
Control Board
James
R.
Thompson
Center,
Ste.
11-500
100
West Randolph
Chicago,
Illinois 60601
Re:
People
v.
Midwest Grain
Products
of Illinois, Inc.
PCB No.
97-1 79
Dear Clerk Gunn:
Enclosed for filing please
find the
original and
four copies
of a
NOTICE
OF FILING
and
COMPLAINANT’S
MOTION
FOR
LEAVE
TO
REPLY
TO
RESPONDENT’S
RESPONSE
TO
COMPLAINANT’S
MOTION
TO
STRIKE
INTERROGATORIES,
OR,
IN
THE
ALTERNATIVE,
MOTION
FOR
PROTECTIVE
ORDER
and
COMPLAINANT’S
REPLY
TO
RESPONDENT’S
RESPONSE
TO
COMPLAINANT’S
MOTION
TO
STRIKE
INTERROGATORIES,
OR,
IN
THE
ALTERNATIVE,
MOTION
FOR PROTECTIVE ORDER in regard to
the above-captioned matter.
Please
file
the
original
and
return
a
file-stamped
copy
to
me
in
the
enclosed,
self-addressed
envelope,
Thank you for
your cooperation
and
consideration.
Very truly yours,
j-
~
-i~neE.
McBride
Environmental
Bureau
500 South
Second Street
Springfield,
Illinois 62706
(217)
782-9031
JEM/pp
Enclosures
500 South Second
Street, Springfield,
Illinois
62706
•
(217) 782-1090
•
TTY:
(217) 785-2771
•
Fax: (217)
782-7046
100 West
Randolph
Street, Chicago, Illinois
60601
•
(312) 814-3000
•
TI?:
(312) 814-3374
•
Fax: (312)
814-3806
1001
East
Main, Carbondalc,
Illinois
62901
•
(618)
529-6400
•
TTY: (618) 529-6403
•
Fax:
(618) 529-6416
E
CL—
V
E D
CLERK’S
OFFICE
BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOARD
OCT
112005
PEOPLE OF THE
STATE OF
ILLINOIS,
)
Complainant,
v.
)
PCB
NO. 97-1 79
(Enforcement)
MIDWEST GRAIN
PRODUCTS
OF
ILLINOIS,
INC.,
an
Illinois
corporation,
Respondent.
NOTICE OF FILING
To:
Patrick
M.
Flachs
Amy Wachs
Husch
&
Eppenberger LLC
190 Carondelet
Plaza,
Ste.
600
St.
Louis,
MO 63105
PLEASE TAKE
NOTICE
that on
this date
I
mailed
for filing with
the Clerk of the Pollution
Control
Board
of
the
State
of Illinois,
COMPLAINANT’S
MOTION
FOR
LEAVE TO
REPLY
TO
RESPONDENT’S RESPONSE TO COMPLAINANT’S MOTION TO STRIKE INTERROGATORIES,
OR, IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER and COMPLAINANT’S REPLY
TO
RESPONDENT’S
RESPONSE
TO
COMPLAINANT’S
MOTION
TO
STRIKE
INTERROGATORIES, OR,
IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER,
copies
of which are
attached hereto
and
herewith served
upon you.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA MADIGAN,
Attorney General
of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental
EnforcementlAsbestos
Litigation
Division
BY:
~_
L
t~ç
E.
McBRIDE
Assistant Attorney General
Environmental
Bureau
500
South Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
October 7,
2005
CERTIFICATE OF SERVICE
I
hereby certify that
I
did
on
October 7,
2005,
send by
First Class
Mail, with
postage
thereon fully prepaid,
by depositing
in a
United
States
Post Office
Box a true and
correct copy
of the following
instruments
entitled NOTICE
OF
FILING,
COMPLAINANT’S MOTION
FOR
LEAVE TO REPLY TO
RESPONDENT’S
RESPONSE TO COMPLAINANT’S MOTION
TO
STRIKE
INTERROGATORIES,
OR,
IN THE
ALTERNATIVE,
MOTION
FOR
PROTECTIVE
ORDER and
COMPLAINANT’S REPLY TO RESPONDENT’S
RESPONSE TO
COMPLAINANT’S
MOTION TO STRIKE
INTERROGATORIES, OR,
IN
THE ALTERNATIVE,
MOTION
FOR PROTECTIVE
ORDER:
To:
Patrick
M.
Flachs
Amy Wachs
Husch
&
Eppenberger LLC
190 Carondelet Plaza,
Ste. 600
St.
Louis,
MO
63105
and the original
and five copies
by
First Class
Mail with
postage thereon fully
prepaid
of the
same foregoing
instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
James
R. Thompson Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois 60601
A copy
was also sent
by
First Class
Mail with
postage thereon fully prepaid to:
Carol Webb
Hearing Officer
Illinois
Pollution
Control
Board
1021
North
Grand Avenue
East
Springfield,
IL 62794
~a_~
~
,—‘CJANE E.
McBRIDE
Assistant Attorney General
This filing
is
submitted on
recycled paper.
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARD
~~I~ED
PEOPLE OF THE STATE
OF
ILLINOIS,
)
OCT
1
!
201)5
Complainant,
)
PCB 97-1 79
PtT~~~d
(Enforcement)
v.
)
)
MIDWEST GRAIN
PRODUCTS OF
ILLINOIS,
INC.
Respondent.
COMPLAINANT’S MOTION
FOR LEAVE TO
REPLY TO RESPONDENT’S
RESPONSE TO
COMPLAINANT’S MOTION
TO STRIKE INTERROGATORIES,
OR,
IN
THE ALTERNATIVE, MOTION
FOR PROTECTIVE
ORDER
NOW
COMES Complainant,
PEOPLE
OF THE
STATE
OF ILLINOIS,
and
moves for
leave to
reply to
Respondent’s
Response
to Complainant’s
Motion
to
Strike Interrogatories,
or,
In the Alternative,
Motion for
Protective
Order, and
in support
of said
motion,
states
as follows:
1.
Given
the volatile, abrupt
and
limited
outcome of the parties’ last informal
discussions
regarding the instant discovery dispute,
Respondent’s
Response to
Complainant’s
Motion
is
the first time Complainant has
been
presented with
detailed
new
information,
reasoning,
argument and
explanation Respondent included
in
its filing in
response to
Complainant’s
motion
and
objections.
In
prior discussions,
Respondent’s
response
regarding
the number of interrogatories
has
been limited
to
Respondent’s answer that Complainant’s
objection was without
merit.
Respondent has
simply stated
that the number of interrogatories
it
propounded and
all of the subparts are
proper,
and
consistent
with applicable
authority.
Respondent did
not address the
issue
in detail,
as
it has
done
in its
response.
2.
Further, Complainant contends that there
are
important omissions of fact in
Respondent’s
response,
and,
also,
Complainant contends
it should
be allowed
to
respond
to
statements that Complainant finds
to
be
misstatements
made
by Respondent in
its response.
3.
Complainant will suffer material
prejudice
if it
is not allowed
to
respond
to the
new information
presented
in
Respondent’s
response,
and the omissions of fact and
misstatements
relative to and
contained within Respondent’s
response.
4.
In the interest of efficiency
and economy
of time,
Complainant files
its
reply
contemporaneously with
this motion
for leave.
WHEREFORE,
for the foregoing
reasons,
Complainant respectfully requests the
Hearing Officer grant
its
motion for leave
to
file a reply
to
Respondent’s
Response to
Complainant’s
Motion
to
Strike Respondent’s
Interrogatories,
or,
In
the Alternative, Motion
for
Protective Order.
Respectfully submitted,
PEOPLE OF THE STATE
OF ILLINOIS
LISA MADIGAN,
Attorney General
of the
State
of Illinois
MATTHEW J.
DUNN, Chief
Environmental
EnforcementlAsbestos
Litigation Division
BY:
Cj7~
~
)ANE
E.
MCBRIDE
Assistant Attorney General
500 South
Second
Street
Springfield,
Illinois
62706
(217) 782-9031
Dated: October 7,
2005
2
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOARD
RECE!VED
CLERK’S
OFFICE
PEOPLE OF THE
STATE OF ILLINOIS,
OCT
1
12005
Complainant,
)
PCB 97-1 79
STATE OF ILLINOIS
(Enforcement)
POllution Contioj Board
MIDWEST GRAIN
PRODUCTS OF
ILLINOIS,
INC.
)
Respondent.
COMPLAINANT’S REPLY TO RESPONDENT’S
RESPONSE TO
COMPLAINANT’S MOTION
TO
STRIKE
INTERROGATORIES,
OR, IN
THE ALTERNATIVE, MOTION
FOR
PROTECTIVE
ORDER
NOW
COMES
Complainant, PEOPLE
OF THE
STATE OF
ILLINOIS,
and
replies to
Respondent’s
Response to Complainant’s
Motion
to Strike,
as
follows:
1.
Respondent’s
response to
Complainant’s
motion
belies the actuality
of the
manner in which
it drafted
its
interrogatories.
Respondent aptly cites authority.
As
apt as
its
citation to
authority
is,
to an
equal degree,
is
its
disingenuous argument regarding the true
nature of
its
interrogatories.
Its interrogatories,
as drafted,
could not be any more contrary
to
the holding of the authority
it cited.
Rather than asking a general question and
eliciting
detail
regarding
the common theme of the interrogatory, Respondent’s
individual
interrogatories
constitute a list of specific,
mostly
unrelated,
but if related,
unrecognizably so,
requests for
broad areas of information.
2.
The best way to
illustrate the fact that Respondent’s
interrogatories are
completely contrary to the holdings of
the authority
it cites,
are
to
look
at the interrogatories
themselves.
Interrogatory No.
24,
states:
Describe
IEPA’s analysis of the monetary losses
suffered
by MGP
as
applied to the
following:
a.
The penalty of $1062580
b.
The BACT
determination;
and
c.
The determination of economic reasonable
technology
This is
not a question that goes from
a general
inquiry to eliciting
detail
regarding the original
inquiry,
but rather
it
inquires about a nondescript
concept of “monetary losses”
in three
completely different contexts,
that
is,
three discrete
subject
areas.
This
is
not one
interrogatory.
It is three
interrogatories.
3.
In
many of
its
interrogatories,
Respondent poses no
general
interrogatory that
establishes a
common theme, but instead
presents the interrogatory as a
list of separate
queries.
There
is
no
progression from
the general
to the specific,
or common to
eliciting
details.
There
is only a
list of multiple
separate
inquiries.
This has to
have
been done
purposefully,
it’s
a tactic,
so the Respondent doesn’t have to
take responsibility for establishing
a common theme,
but instead can
list
all
sort of wide-ranging queries.
In
its
response,
Respondent now
identifies some of these
interrogatories as
having a
common theme.
One
interrogatory that stands
out in
this regard
is Interrogatory 11, which concerns the notion of
penalty.
Rather than
posing a single succinct interrogatory regarding
penalty,
and then
going
to
the specific,
Respondent just starts listing independent separate, wide-ranging
queries, that
generally concern the single
notion
of
penalty.
But never does
it state one
single
interrogatory
and then
elicit details.
4.
Respondent in
its
response regarding these
Interrogatories
14 and
16
identifies
large
general
topics
each interrogatory allegedly concerns.
Again,
instead of taking
responsibility to
draft a
succinct general inquiry and
go to the specific,
the interrogatories
evidently address topic
areas.
The many subparts,
that are
interrogatories
in and
of
2
themselves,
are a list of wide-ranging questions concerning
a
topic area.
Respondent has
failed
to draft
an
interrogatory, succinctly
requesting a single set of information,
and then
eliciting details.
No, Respondent has,
unstated
to
Complainant in
the form
of a single
interrogatory, set its
intention on a
topic area and
drafted a
list of questions
relevant to the topic
area.
Respondent has
found
a tactic by which
it gives
itself license to
pose
many
interrogatories
in
a set of questions
it falsely
labels a single
interrogatory just because
they all
allegedly relate
to a single “topic area”.
5.
Interrogatory
21
is another example
as
to why Complainant has
come
to the
conclusion that Respondent’s discovery requests and subsequent answers to
informal attempts
to
resolve discovery disputes are harassment and
have
resulted
in undue expenditure
of time
and
resources.
Respondent,
in
its
response
concerning Interrogatory 21, complains that
Complainant is “shifting
the burden”
upon
Respondent.
Complainant asks how
is Complainant
improperly “shifting
the burden”.
Isn’t the
burden
on
Respondent
to accurately draft
its
interrogatories with
precision
so as
to ask
for what it truly is
looking for?
Why should
Complainant guess
at what
exemptions
Respondent has
in
mind?
It is obvious,
so very
obvious, that
Respondent is
playing
games with
Complainant.
Respondent is using discovery
as
a strategic tactic,
to try to
trip Complainant up over the term
‘exemption”.
This
is why
Complainant asserts
harassment and
Respondent’s
intent to cause
undue expenditure
in
time
and
resources.
Why can’t
Respondent simply identify which exemptions
it has
in mind
and
ask
a question
specific to that exemption.
6.
Interrogatory
No.
8,
as drafted,
is
mind
boggling.
Interrogatory No.
8 states:
“With respect to
the allegations contained
in the Complaint and
the subject
matter thereof,
please state or identify
the following:” The Respondent then
lays
out four subparts
that evidently
are relevant to the major modification determination.
However,
the way this interrogatory is
3
worded,
it would
require
the Complainant
to go
back and analyze the interrogatory,
and
its own
response,
with regard
to the “allegations contained
in the Complaint”
and “the subject matter”
thereof,
for each
of four separate questions
containing the term “major modification”.
Why draft
an
interrogatory like
this?
What does this truly mean?
Why not make a
general inquiry
as
to
the major modification
determination
and
then elicit
details and
specifics.
The way this
interrogatory is drafted,
it asks four separate questions, and
asks them “in
respect to the
allegations contained
in
the Complaint and the subject
matter thereof.”
It is just mind
boggling
as
to what the drafter was
thinking when
he or she
put this question
together.
7.
Respondent in its
response,
in the middle paragraph
of page
6,
provided
an
explanation
and
labeled the “common
themes” that evidently were the
basis for
Interrogatory 8
and
others.
Even though
this
may
have
been the
intent of the drafters,
it
is not the way these
interrogatories read.
Interrogatory
7 is
an
example.
The body of
the interrogatory itself asks
that equipment and
processes
be
identified.
It then
goes on,
in the subparts,
to ask a whole
list
of other specific questions that go
way beyond
the identification
of the equipment and
processes.
If the interrogatory is about the major stationary source determination, why was
there not
a general
question
regarding that
determination
posed
and
then details elicited.
Instead,
the drafter
asks
11
questions, each
asking for specifics of
its own.
The drafter never
asks anything recognizable
as a
single general question which would
constitute the single
interrogatory itself.
Interrogatory 7 truly constitutes
11
questions.
No common
theme or
general interrogatory is
stated.
8.
Particularly frustrating
is Interrogatory 19
and others
like
it.
In
Interrogatory
19,
Respondent presents four very broad,
general
requests:
(1) describe
any and
all
communications
regarding particulate air emission
modeling related
to the
MGP facility, (2) the
identity of
all
data
relating
to air emission
tests conducted
at MGP,
(3) the identity of emission
4
data associated with
MGP,
(4) and/or the identity of air
particulate
modeling related to
the
MGP
facility.
Where
is the general
inquiry?
Where
is
the interrogatory that sets
the “common
theme”.
What is the question?
There
are
obviously
four requests
in
this interrogatory,
but not a
one of them
is
identifiable as
the original
single
interrogatory.
Interrogatory No.
19
is
particularly frustrating
because of the number of
times the identity,
description
and
data
concerning “air emission modeling”,
“air emission
tests,” “emission
data,” and “air particulate
modeling”
are asked
for
in
not only this interrogatory, but other interrogatories
in this first
set of
requests.
It is
asked for
in individual
specific questions with
no general
theme
in
Interrogatory
No.
7,
in the same
manner in
Interrogatory No.
8,
and
Interrogatory
9 asks for descriptions of
communications concerning “air particulate
emission
issues.”
9.
Respondent claims that Complainant’s position
is “draconian.”
Nothing
could
be
further from
the truth.
Complainant’s
position
is dead
on, absolutely
square and
on
point with
the authority cited
by Respondent.
Each
interrogatory should
consist of
a single inquiry and
any subpart should truly be
something that elicits detail on
point with
the original general
inquiry.
That is not how Respondent’s interrogatories are
drafted.
They are drafted
as
a list
of
specific,
independent questions, not as
a general question followed
by something
eliciting
specific details.
As such,
it leaves Complainant searching
for the original
single
inquiry upon
which to focus,
and
frustrated
by what
is presented
instead,
that being
multiple
queries
that are
not related
to any single
inquiry.
Reply to Respondent’s interrogatory-specific analysis
Interrogatory No.
1.
In
its response,
Respondent compares
its own
Interrogatory
1
to
Complainant’s
Interrogatory
29.
Complainant’s
Interrogatory 29
poses a single
question,
despite
Respondent’s
misplaced
emphasis,
in
its
response,
on
Complainant’s
use of the term
“and/or.”
The
single
notion in
Complainant’s
Interrogatory No.
29
is the identification,
for
each
5
response to
Complainant’s
interrogatories,
of
all
persons
involved
in the preparation of the
response to the interrogatory.
That’s
it.
Respondent’s Interrogatory No.
1
starts out,
“Please
identify.”
Again, where
is the single interrogatory, that
is,
where
is the general
inquiry?
From
there,
Respondent’s question:
(a) actually asks three questions;
item
(b) asks for four pieces of
information;
and question
(c) asks for yet another piece of information.
Interrogatory 2 through
5.
Contrary
to
Respondent’s
position
that it
is entitled
to
ask
four interrogatories about witnesses that include subparts,
the inquiry regarding witnesses
is
dictated
by specific sections of the
Illinois
Code of Civil
Procedure.
In
one of these four
interrogatories,
Respondent cites
to an
outdated portion of the
code,
making the interrogatory
indiscernible.
The information that
can
and
should be elicited
about witnesses can
be
covered
in two interrogatories.
The interrogatories pertinent
to witnesses should at
least be
consistent
with
the code,
so
as to
make
them
understandable and allow the Complainant to respond.
Subparts as
utilized
by Complainant
in
its two interrogatories regarding witnesses are
customary.
As stated above,
Complainant’s
objection
points out the duplicitous and
indiscernible
nature
of the interrogatories regarding witnesses,
which is directly
related to
the
excessive
number of interrogatories.
Without the duplication,
and without the improperly
based interrogatory, Respondent would
have
two interrogatories
instead of four and would
save
the Complainant the time and
effort
of responding
to Respondent’s excessive
number of
interrogatories.
Interrogatory 7.
Respondent claims all
of
its subparts are
relevant to a particular
common theme.
First of all,
there
is no generally stated interrogatory
that would
clearly
state a
common theme
or basic subject
matter of the question.
If the Respondent is
asking about the
major stationary source determination,
it
should succinctly pose
an interrogatory
and then
elicit
detail.
That is not what was
done here.
The Respondent asked
11
separate questions.
The
6
interrogatory is
a
list of
11
specific queries.
Each
subpart seeks
a
set of information
in and
of
itself that stands on its own,
not necessarily
related
to any
other.
It was
not obvious, from
reading the interrogatory
in
all
its
various subparts, what the common theme was since the
specific subparts
involved
so
many tangents.
Respondent claims this interrogatory is pertinent
to
its affirmative
defense,
but yet makes
no
mention
of the affirmative defense in
the initial
language of the interrogatory.
Perhaps
if Respondent drafted
a succinct interrogatory that
discussed the major
stationary source determination
and
its
affirmative defense,
it
would greatly
facilitate a
constructive
response to this interrogatory.
Interrogatory
8.
Complainant’s
reply to
Respondent’s
response
regarding
Interrogatory
8
is
identical to
Complainant’s
reply regarding Interrogatory 7
and
is also stated
above in
paragraph
6
of this
reply.
Interrogatory No.
8 represents 4
separate questions.
Each
subpart
seeks
a
set of information
in and
of itself that stands on
its own, not necessarily related
to
any
other.
It was
not obvious, from
reading
the interrogatory in
all
its
various
subparts, what the
common theme was since the specific subparts
are complete within themselves
and
are
not
related
to any
initial, single
interrogatory that mentions “major modification.”
The
initial
statement in this interrogatory makes
a general
reference to the Complaint.
Like
Interrogatory
No.
7,
Respondent claims this interrogatory
is
pertinent to
its
affirmative defense,
but yet makes
no mention of the affirmative defense
in the
initial
language of the interrogatory.
Perhaps if
Respondent drafted
a succinct interrogatory that discussed the major modification
determination
and
its
affirmative defense,
it would
greatly facilitate
a constructive
response
to
this interrogatory.
If Respondent fails to be
precise,
it leaves Complainant guessing which is a
waste of time and
resources.
It
is
evident from
Respondent’s response
that there was a
specific intention
behind the interrogatory, but Respondent completely failed
to mention either
purpose
in a succinct,
single
interrogatory, that may then
be followed
by
specifics designed
to
7
elicit detail.
Interrociatories 9 and
10:
In
its
response,
Respondent states that “A
casual comparison
of the request
shows that
Interrogatory
9
has
set out a request for
communications related to
“air particulate
permits or air particulate
emission
issues” within a specific time
period,
and
between specific parties.”
The term “air particulate
issues”
is overly broad,
and when
this
interrogatory is
read
in
conjunction with
the other several interrogatories that ask for
identical
information,
there is a very significant question
as
to too
many interrogatories,
asking
for a very
confusing combination of
information,
said
requests being
duplicative
in nature,
All of these
duplicative
questions
result
in a combined
number of
interrogatories that exceedthe limit set by
Board
rule and
the
Illinois
Civil Code of Procedure, and cause the Complainant undue
expense
in
resources
and
time.
If the Respondent only would
have asked the question
in
a manner that
resembled
its
actual
purpose in asking the question,
it is apparent the interrogatories may
have
been
much
more succinct,
but Respondent didn’t.
Instead,
it took
liberty
to ask
and
re-ask
for
information,
to ask for information using overly
broad terms that
result
in
no precision,
and to
propound
way
too many
interrogatories.
Obviously,
all of this was done
trying
to skirt the
Board’s rules
and the
state
statute.
Given the
level
and
tone of argument that has
resulted
from
attempts
to
clarify
the requests,
and the lack
of cooperation
in
informal discussions,
it is
apparent Respondent is still
trying
to skirt discovery requirements.
Also
in
its
response,
Respondent indicates that
Interrogatory 10
is
meant to
focus on
permit modifications and
application
modifications.
It concludes
with
the smart
remark that Complainant is answering
its
own question.
The question was
posed because
Respondent’s original
interrogatory was so
poorly drafted
as to
be
unclear.
Why should Complainant
have to guess?
Why should
Complainant
have to
deal with
convoluted
phrases
such
as “air particulate
permit modification”
and
“air particular
permit application
modification” when
Respondent
has been functioning
in
8
the state’s regulatory environment for years and very
well can
be
much
more
precise itself
rather than use
convoluted
general terms that
make no
sense?
Complainant’s
objection
to
these
interrogatories is relevant to
the
issue of number of interrogatories
in
that,
use of such
general terms frustrate
the purpose of answering the interrogatory and
also tend to
make
the
interrogatories appear
very duplicative.
Information responsive to
such general
requests about
the issuance of
permits and
modification
to
permits is information that is also responsive
to
many other interrogatories posed
in this first set.
Interrogatory No.
11.
This
is an
interrogatory in which,
again, Respondent poses
no
general
interrogatory that establishes the common theme,
but instead
presents the
interrogatory
as a
list of 5
separate queries.
There
is
no progression from
the general
to the
specific,
or common
to eliciting
details.
There
is only a list of
five separate
inquiries.
This
had
to
have
been done purposefully.
It’s
a tactic so
the Respondent doesn’t have
to take
responsibility
for establishing a
common theme, but instead can
list all
sort of wide-ranging
queries, generally related to the single
notion of penalty.
Interrogatories 14
and
16. Respondent in
its response
regarding
these
interrogatories
identifies topic areas
for the various
interrogatories.
Again,
instead of
taking
responsibility to
draft a
succinct general
inquiry and go to the specific,
the interrogatories are instead wide-
ranging
lists
of separate queries
that have
no
stated common theme.
They appear
to address
topic areas,
but they do not concern one
clearly stated inquiry.
Respondent also
raises
questions about information
requested
in
Complainant’s interrogatories.
Complainant is more
than
happy to
address any
concerns or questions
Respondent might have.
The questions
stated
in the
response are the first
time Respondent raised the issues.
If the interrogatories
appear
duplicative to
Respondent,
Complainant
is
more than
happy to discuss
the true intent of
the
interrogatories.
9
Interrogatory No.
19.
Respondent’s
response
regarding
Interrogatory No.
19
defies the
actual language
of the interrogatory as
propounded to CompIa~nant. Respondent states
in
its
response that Interrogatory
19 asks for one thing:
IEPA air emission
modeling
at the
MGP site.
But this is
how Interrogatory
19 reads:
Describe
and
an
all
communications within
IEPA and/or
between
IEPA and
MGP,
USEPA,
August Mack or any third party
regarding particulate air emissions
modeling
related to
the
MGP facility and
identify
all data
relating
to air emission tests
conducted
at
the
MGP site,
emission data
associated
with the
MGP facility, and/or air
particulate
modeling related to the
MGP facility.
As set forth
in
Complainant’s
motion, Complainant
reads this interrogatory to ask for the
following:
four very broad,
general requests:
(1) describe
any and
all
communications
regarding
particulate air emission
modeling related
to the MGP facility,
(2) the identity of all data
relating to
air emission tests conducted
at
MGP,
(3) the identity of emission
data associated
with
MGP,
(4) and/or the identity of air particulate
modeling
related
to the
MGP facility.
Complainant asked, “How do
items
(1) and
(4) differ?
In
(1),
is Respondent asking for
communications,
and
in
the second,
asking
the
State to
identify
all
air
particulate
modeling?
If
Respondent truly
intended
this interrogatory to ask for IEPA’s
air emission modeling
at the MGP
site, why did
it not so state?
Why
instead
did
it
include
all
this wide ranging
language.
There
are two answers:
(1) Respondent did
a horrible job of drafting
this interrogatory,
or (2)
Respondent is disingenuous
in
its
response
and
it truly meant to
ask four very wide ranging
queries
to continue
to cast
its fishing
net very wide,
resulting in the undue
harassment of
Complainant and
causing
Complainant unnecessary expenditure in time
and
resources.
Interrogatory
No. 21.
Complainant’s
reply
regarding Interrogatory
21
is
set forth
in
Paragraph
5 of this
reply and
will not
be restated
here.
10.
As
Respondent has
cited
in
its
response,
the purpose
of the
limit on
interrogatories
is
not to
prevent discovery,
but
to prevent potentailly
excessive
use of this
10
particular discovery device.
Power
&
Telephone
Supply
Co.
v.
Suntrust
Banks,
Inc.
2004
U.S.
Dist.
Lexis 6325 (W.D.Tenn.
March
15,
2004).
In
the foregoing, Complainant
has set forth
exactly how Respondent has taken
great, and
improper,
license with
this discovery device,
that
being
interrogatories governed
by
a limit
of 30,
including
subparts, thereby exercising
excessive
use of the device that will
result in
unnecessary expenditure
of time
and
resources
by the
Complainant.
11.
Respondent makes
issue of Complainant’s discussion
regarding the volume of
material
its
discovery requests call for.
Complainant is certainly cognizant and
prepared
to
produce the volume
of material generated
in this matter over the many years
it
has
remained
at
issue.
However, Complainant objects
to
requests that require
Complainant to take the time and
expend
resources to
examine the
same
material
in a multitude
of contexts that may potentially
result in truly
unnecessary efforts
to produce
materials in response
to an
excessive number of
duplicative
requests.
12.
Complainant is fully prepared
and, of course,
has
initiated work to
respond
to
Respondent’s
discovery requests.
However,
it also
is not going to
let itself be the subject
of
excessive discovery requests,
harassment,
and
requests that result in
the unnecessary
expenditure of time and
effort.
Respondent’s
FOIA Request
13.
In
its
response to Complainant’s
motion,
Respondent stated that is submitted
a
FOIA request to obtain documents
responsive to
Complainant’s discovery requests
so that
Respondent may produce
the documents,
evidently, back to
Complainant.
This
is
absurd.
14.
In
initial
informal
discussions,
Complainant asked
Respondent
its
reason for
submitting a
FOIA
request at
this time,
when discovery was
already pending.
Respondent’s
answer was
that it
submitted
a FOIA
request
because
it was
apparent the client
had
never done
11
so
in
the past,
and because
Respondent felt
the
FOIA request
might address
any and
all
documents
a discovery request might
miss.
In essence,
Respondent was using the
FOIA
as
yet another device
to
obtain documents from the Complainant regarding the exaotsame issues
as
were currently pending
in the enforcement case for
which discovery requests were
issued.
One
issue
that was
discussed was
that the
FOIA
request,
under state
law,
would actually result
in
the production of fewer documents because of the exemptions available under state
law.
For
whatever reason,
but potentially mindful
of the information that the
FOIA request was not going
to increase the
size
of the net cast by Respondent in
its fishing for documents,
Respondent
decided
to
temporarily withdraw
its
FOIA request until discovery production wascomplete and
Respondent would
be able to determine
if
it felt
it wanted
to re-issue
the
FOIA request.
15.
It could
not be
more obvious, from
the progression of events,
and
from the very
words of the Respondent itself in the exhibits attached
to Complainant’s
original motion,
that
Respondent has
re-issued
its FOIA request as
a vendetta against Complainant for
simply
sending
an
8-page
letter seeking
clarification
and
reconsideration
of discovecyrequests,
and
for
filing
a motion
to strike.
The
FOIA request
is very clear evidence of the Respondent’s desire to
cause Complainant undue expenditure
of time and
effort, and
also Respondent’s
intention
to
harass the Complainant.
Informal Communications
In An Attempt to Resolve Discovery Disputes
16.
Complainant disputes Respondent’s
representation
of communications between
the
parties
regarding this discovery dispute.
17.
Prior to
the discussion on August
29,
2005,
the
parties
had
engaged
in
constructive
discovery discussions.
18.
The discussion
that occurred
on
August 29,
2005
resulted
in Respondent’s
failure to
constructively respond
to and
address Complainant’s objection to
the number
of
12
interrogatories propounded.
It was
clear from the
discussion
that the
parties did
not agree
on
the issue.
For whatever reason,
which
is somewhat uncomprehensible
to
Complainant,
Respondent states
in
its
response that it came
away from the August 29, 2005 discussion
under the impression the Complainant was
satisfied
with
the outcome of the teleconference.
Nothing
could
be
further from the truth.
19.
In that
Complainant was
totally
unsatisfied with
the outcome of the August 29,
2005 teleconference,
it immediately detailed
its objections
relevant
to the number of
interrogatories propounded,
in a letter dated August 31, 2005 to
Respondent.
In
that the
parties were
under a
lapsing discovery schedule,
and
in that
it was obvious that the
parties
were
not in agreement about the
issue of
the number of
interrogatories propounded
by
Respondent,
Complainant made one
more attempt to
resolve the dispute via
negotiation by
sending
a letter detailing Complainant’s
objections.
The level of detail was
meant
to serve
a
constructive purpose.
It
was
meant to thoroughly explain
the Complainant’s
objections.
Complainant asked for a quick
response to the letter for two
reasons.
First
of all,
as stated
above,
the discovery schedule
was lapsing.
Secondly, it was fairly obvious that the
parties
were
in disagreement about the issue and,
therefore, the matter would
become the subject
of a
motion
to strike or a protective order.
There was
no sense
delaying the filing of such
motion.
Respondent’s
response to
the letter bore
this out.
The Respondent made
it
very clear
it
disagreed
with
Complainant’s objections.
20.
Unfortunately, when
counsel for Complainant picked
a target date for
the
response,
she was
oblivious to the court holiday.
The choice of the date was
an
inadvertent
error.
21.
Pursuant
to the Supreme Court
Rules governing
discovery, counsel for the
parties are directed
to engage
in
negotiated
resolution of discovery disputes.
Complainant’s
13
August 31, 2005 letter was
meant to facilitate
the applicable rule.
WHEREFORE,
for the foregoing
reasons
and
on the foregoing
grounds,
in conjunction
with
the reasons,
grounds
and
arguments set forth
in Complainant’s
original
motion to strike,
or
in the alternative, for a
protective order,
Complainant respectfully requests that the Hearing
Officer
grant its
motion
to strike,
or
in the alternative,
its
motion
for a
protective order limiting
Respondent’s
interrogatives
to prevent undue expense and
harassment.
Respectfully
submitted,
PEOPLE
OF THE STATE
OF ILLINOIS
LISA MADIGAN,
Attorney General
of the State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
r
~
~
,A(ANE
E.
MCBRIDE
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois
62706
(217) 782-9031
Dated:
October 7, 2005
14
STATE
OF ILLINOIS
COUNTY OF SANGAMON
AFFIDAVIT
I,
JANE
E.
MCBRIDE, after being
duly sworn
and
upon oath,
state as follows:
1.
I
am the Assistant Attorney General
assigned
to the matter of
People
v.
Midwest
Grain
Products of Illinois,
Inc.,
PCB 97-179.
2.
I am executing
this Affidavit to
accompany Complainant’s
Reply to
Respondents
Response to
Motion
to
Strike Respondent’s Amended
First Set of Interrogatives,
or,
in the
alternative, Motion
for Protective
Order Limiting
Interrogatories
to
Prevent Undue Expense
and
Harassment.
3.
The assertions set forth
in Complainant’s
Motion
regarding the progression
of
this matter are correct and
accurate, to the best of Affiant’s knowledge and
belief.
Further, Affiant
sayeth
not.
~
P
JANE
E.
MCBRIDE
Subscribed
and
sworn to before
me
this
7?Ij
day of
r2.e~k4?A—”
,
2005.
40/c
~
N6TARY
PUBLIC
~
PEGGY J.
POITEVINT
NOTARY PUBLIC,
STATE OF ILLINOIS
aMM
IS
EXPIRES 4~16~2O
06
