ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
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 of Skokie
)
Valley Asphalt Co ., Inc .,
)
Respondents .
)
NOTICE OF MOTION
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 today I caused to be filed Complainant's Motion to
Deny Respondents' Appeal of Hearing Officer's February 8, 2006 Order with the Office of
the Clerk of the Illinois Pollution Control Board, a true and correct copy of which is attached
hereto and herewith served upon you .
BY
:
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph, Suite 2000
Chicago, Illinois 60601
Tel: 312 .814.2069
Fax: 312.814.2347
E-Mail: mpartee@atgstate
.
i l.u s
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
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 of Skokie
)
Valley Asphalt Co ., Inc .,
)
Respondents .
)
COMPLAINANT'S MOTION TO DENY RESPONDENTS' APPEAL
OF HEARING OFFICER'S FEBRUARY8, 2006 ORDER
Complainant, PEOPLE OF THE STATE OF ILLINOIS ("People"), by LISA
MADIGAN, Attorney General of the State of Illinois, hereby moves the Board to deny
Respondents', SKOKIE VALLEY ASPHALT CO., INC., EDWIN L. FREDERICK, JR., and
RICHARD J. FREDERICK, Appeal of Hearing Officer's February 8, 2006 Order. In support of
their motion, the People state as follows
:
RELEVANT PROCEDURAL HISTORY
On September 2, 2004, after a hearing on all issues, the Board entered an order
finding willful, knowing or repeated violations, assessing a $153,000 civil penalty, and assessing
the People's attorneys' fees and costs against the Respondents . The Board further directed the
People to file a petition for attorneys' fees and costs
.
2 .
Respondents then appealed the Board's September 2, 2004 Order to the Illinois
Appellate Court
.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
3 .
On September 17, 2004, the People filed a verified petition for attorneys' fees and
costs
.
4
.
On September 28, 2004, Respondents filed their "Initial Response to and Motion
to Stay and/or Extend Time to Respond to Complainant's Petition for Attorneys' Fees and Costs"
("Initial Response"). In their Initial Response, Respondents disputed the People's attorneys' fees
and costs and Respondents also made unsupported, factual allegations regarding their own
attorneys' fees and costs, the following of which are two examples
:
a .
"It is hard to justify a claim for attorneys' fees and cost [sic] by the Illinois
Attorney General's office that is approximately ten times the amount that three
Respondents combined paid to defend themselves against frivolous claims" (Initial
Response at ¶ 17); and
b .
"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
Respondents' attorneys [sic] fees include costs ." (Id.)
5 .
On October 21, 2004, the Board stayed the Respondents' payment of the
$153,000 civil penalty pending resolution of the Respondents' dispute of the People's attorneys'
fees and costs
.
6 .
On November 18, 2004, the Illinois Appellate Court dismissed Respondents'
appeal of the Board's September 2, 2004 Order
.
7 .
On December 16, 2004, the Board ruled that the stay of Respondents' $153,000
civil penalty payment would remain in effect until Respondents' dispute of the People's
attorneys' fees and costs was resolved through a final Board Order. The Board also established a
briefing schedule (without discovery) to resolve this dispute
.
8 .
On January 10, 2005, Respondents moved the Board for a discovery schedule and
hearing on the People's verified petition for attorneys' fees and costs
.
2
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 10, 2006
9 .
On April 7, 2005, the Board authorized discovery, subject to the following
express limitations (underlines added)
:
a .
Discovery shall be "limited ." (Apr. 7, 2005 Order at 1)
;
b .
"In determining this reasonableness, the Board will be guided by the
factors set out in long-established precedent . The Board will consider, among other
factors, the nature of the cause and the novelty and difficulty of the questions at issue, 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 ." (Apr. 7, 2005 Order at 3-4) ;
c .
"To further focus the discovery process .
.
. . the Board will not award
attorney fees for the time he f AAG Sternsteinl spent working on this case
. Although no
prejudice resulted from AAG Sternstein's prior employment, the Board finds that
awarding attorney fees for any of the work he did in a matter he was barred from
participating in would not be appropriate. Accordingly, the parties are not to address this
issue in conducting discovery or at the hearing." (Apr. 7, 2005 Order at 4) ; and
d .
"Finally, this matter has been pending before the Board for approximately
eight years .
Any pleading by either party not designed to further a speedy and ultimate
resolution of this case will not be tolerated by the hearing officer or the Board ." (Apr. 7,
2005 Order at 4) .
10 .
On April 25, 2005, despite the narrow issue before the Board, Respondents served
the People with voluminous discovery requests, including 43 Requests to Admit Facts, 50
Interrogatories including subparts, 24 Document Requests and two deposition notices
.
Respondents' discovery requests not only addressed AAG Sternstein's fees and costs, which
were previously disallowed and were not to be addressed pursuant to the Board's April 7, 2005
Order, but Respondents' discovery requests also contained unfounded, personal attacks on the
People's counsel and sought inappropriate information regarding the People's counsels' take
home pay .
11 . Also on April 25, 2005, the People served Respondents with I I Interrogatories, 7
Document Requests and two deposition notices relating to Respondents' allegations outlined in
Paragraph 4 above
.
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
12
.
On May 18, 2005, Respondents filed a motion to strike the People's discovery
requests
.
13
.
On May 24, 2005, the People timely answered Respondents' voluminous
discovery requests. As part of the People's answers, the People provided Respondents with all
attorney time records, receipts for costs and
curriculum vitae
for AAGs involved in this case,
subject to certain, substantiated objections
.
14 .
On May 24 and June 14, 2005, the People's counsel wrote to Respondents'
counsel pursuant to Rule 201(k) in a full and good faith attempt to informally resolve any
potential disputes regarding Respondents' discovery requests . Respondents' counsel did not
respond to either Rule 201(k) letter.
15
.
July 6, 2005, Respondents filed motions to strike the People's May 24, 2004 Rule
201(k) letter, the People June 14, 2005 Rule 201(k) letter and the People's discovery answers
(three motions to strike in all) .
16 .
On July 20, 2005, the People responded to Respondents' July 6, 2005 motions to
strike and the People moved for a protective order requiring the Respondents to comply with
Rule 201(k) prior to seeking further Board intervention regarding discovery disputes
.
17 .
On August 15, 2005, Respondents also filed a motion to strike the People's July
20, 2005 motion for a protective order
.
18 .
On November 17, 2005, the Board denied Respondents' first through fourth
motions to strike and accepted, but denied, the People's motion for a protective order. The
Board ruled that in order to prevent prejudice to the People and in the effort to build a
complete record, the People must be allowed to conduct discovery on the reasonableness of the
attorney fees and costs." (Nov. 17, 2005 Order at 3.) "To allow the respondent to conduct
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
discover on this matter and not allow the People the opportunity to conduct similar discovery
would place the People on unequal footing, and would not serve the best interests of
administrative justice." (Id.) The Board directed Respondents to answer the People's discovery
requests by December 3, 2005
.
(Id. at 9 .) Regarding the People's motion for a protective order,
the Board held that, "[w]hile it is evident from a review of the pleadings that the manner in
which this case is being litigated has degenerated to the extent that professional civility and
decorum is lacking, a protective order does not appear to be the proper remedy at this time
."
(Id .
at 8.) The Board also directed the Hearing Officer to hold a status conference, establish a
discovery schedule, rule on the People's objections to discovery and rule on any objections by
Respondents to the People's discovery
.
(Id. at 9.)
19 .
Respondents did not appeal the Board's November 17, 2005 Order .
20 .
On December 5, 2005, Respondents answered the People's discovery requests
.
With one minor exception, the Respondents' answers consisted entirely of improper objections
.
Respondents provided no documents whatsoever in answer to the People's discovery requests
.
21
.
On December 14, 2005, Respondents filed a motion to quash the People's
deposition notices .
22 .
On December 15, 2005, the People's counsel again wrote to Respondents'
counsel pursuant to Rule 201(k) in another full and good faith attempt to informally resolve any
dispute regarding Respondents' improper objections to the People's discovery . Respondents'
counsel did not respond to this Rule 201(k) letter .
23 .
On December 28, 2005, the People filed a response to Respondents' motion to
quash and the People again moved for a protective order requiring the Respondents to comply
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
with Rule 201(k) prior to seeking further Board intervention regarding discovery disputes
("second motion for protective order")
.
24 .
On January 9, 2006, Respondents filed their fifth and sixth motions to strike
: a
motion strike the People's second motion for protective order and a motion to strike the People's
reply instanter to Respondents' response to the People's discovery objections
.
25 .
On February 8, 2006, the Hearing Officer denied both Respondents' motion to
quash and Respondents' motion to strike the People's second motion for protective order .
(February 8, 2006 Order at 1 .) The Hearing Officer granted the People's second motion for
protective order and directed counsel to participate in a full and good faith conference regarding
further discovery disputes prior to seeking Board intervention
.
(Id.) The Hearing Officer further
ordered that, "[i]n any motion, objection, or other filing related to any discovery problem,
respondents' attorneys must relate the measures taken to resolve the problem with complainant's
attorneys before the filing of the motion ." (Id.)
As directed by the Board, the Hearing Officer
also scheduled a status conference (held on March 9, 2006) and ruled on Respondents'
objections to the People's discovery requests. Regarding Respondents' discovery responses and
objections, the Hearing Officer found that these responses and objections (consisting entirely of
objections, except for a single, perfunctory answer) "violate the spirit of the Board's [November
17, 2005] Order" and pointed out that Respondents "have provided no argument or case law to
defend" their discovery objections
.
(Id.)
26
.
On February 16, 2006, the People's counsel wrote a fourth Rule 201(k) letter to
Respondents' counsel regarding discovery. A copy of the People's February 16, 2006 Rule
201(k) letter appears as Exhibit A hereto . Respondents' counsel also did not respond to this Rule
201(k) letter .
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
27 .
The record establishes that, during the entire course of the relevant procedural
history (and perhaps longer), Respondents' counsel has refused to attempt to informally resolve
any discovery dispute in this matter, despite four written invitations to do so by the People's
counsel. Without even attempting to informally resolve any discovery dispute prior to seeking
Board intervention, Respondents cannot assert that their barrage of motions were designed to
further a speedy and ultimate resolution of this case, as required by the Board's April 7, 2005
Order.
28 .
The record also establishes that Respondents and their counsel have abused this
proceeding through litigious conduct and unfounded
ad
hominem
attacks on the People's
counsel. One and a half years after commencement of this phase of the proceeding, Respondents
have not yet identified a single hour of attorney time or a single cost that was improperly
requested in the People's verified petition for fees and costs
.
29 .
Most recently, on February 23, 2005, without a written motion and Board
authority, Respondents filed an interlocutory "Appeal" of the Hearing Officer's February 8, 2006
Order,
30 .
It is not until the final paragraph of the Appeal that Respondents' clearly identify
what it is being appealed
.
(See
Appeal at 9.) Respondents appeal the Hearing Officer's (a)
denial of Respondents' December 14, 2005 motion to quash, (b) denial of Respondents' January
9, 2006 motion strike the People's December 28, 2005 second motion for protective order' and
(c) granting of the People's December 28, 2005 second motion for protective order
.
Respondents' Appeal actually states that they are appealing, in part, the Hearing Officer's denial of Respondents'
Motion to Strike In Part Complainant's Second Motion to Quash Deposition Notices and Response to
Complainant's Second Motion for Protective Order of January 9, 2006
."
(See
Appeal at 9.) While Respondents'
motions have become difficult to decipher, no such motion exists and the People assume that this is intended to refer
to Respondents' January 9, 2006 motion strike the People's December 28, 2005 second motion for protective order,
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
31
.
For the reasons set forth below, Respondents' Appeal violates the procedural rule
for taking an interlocutory appeal of the Hearing Officer's Order and should be denied on this
ground. Respondents' Appeal is also substantively insufficient because it fails to present
sufficient cause to overturn the Hearing Officer's Order and should be denied on this ground, as
well .
APPLICABLE PROCEDURE AND LEGAL STANDARD
FOR APPEALING A HEARING OFFICER'S ORDER
32
.
Respondents' Appeal does not state the procedure for taking an interlocutory
appeal of the Hearing Officer's Order . Rule 101 .518 of the Board's Procedural Rules (Motions
for Interlocutory Appeal from Hearing Officer Orders), provides that "[i]nterlocutory appeals
from a ruling of the hearing officer may be taken to the Board
. The Board may consider an
interlocutory appeal upon the filing of a written motion."
35 Ill. Adm. Code 101.518 (underline
added) ;
see also People v. Poland,
PCB 98-148, 2001 WL 179835, at *1 (Feb. 15, 2001) (A
motion to allow interlocutory appeal is necessary to satisfy the procedural requirement under
Section 101.518) .
33
.
If a motion for interlocutory appeal of a hearing officer's order is determined to
be procedurally sufficient, the Board can still deny the motion where it presents insufficient
cause to overturn the hearing officer's order
.
See e.g., Zarlenga v. Partnership Concepts,
PCB
92-178, 1994 WL 42404, at * 1 (Feb . 3, 1994)
.
8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
THE BOARD SHOULD DENY RESPONDENTS' APPEAL
ON BOTH PROCEDURAL AND SUBSTANTIVE GROUNDS
34 .
For the reasons set forth below, Respondents' Appeal does not comply with Rule
101 .518 and should be denied on this procedural ground . Respondents' Appeal also fails to
present sufficient cause to overturn the Hearing Officer's Order and should be denied on this
ground, as well
.
Respondents' Appeal Does Not Comply With Rule 101.518 and Should Be Denied On This
Procedural Ground
35 .
Respondents' Appeal does not comply with Rule 101 .518 because Respondents
failed to file a written motion for interlocutory appeal of the Hearing Officer's Order and failed
to obtain Board authorization for such an appeal (under the Rule 101 .518, even upon written
motion, the Board is not required to consider an interlocutory appeal, but it "may") .
36 .
Respondents do not have unilateral appeal authority under Rule 101 .518. By not
complying with the written motion requirement under Rule 101 .518, Respondents also prevent
the People from responding to a written motion
.
37 .
Further, it is not as if Respondents simply erred in the title of their Appeal and it
was, in fact, intended as a motion for appeal pursuant to Rule 101 .518. Nowhere in the body of
Respondents' Appeal do they seek leave to appeal or even use the word "motion
."
38 .
For these reasons, Respondents' Appeal should be denied on procedural grounds
.
Respondents' Appeal is also Substantively Insufficient and Should be Denied On This
Ground
39 .
Respondents Appeal is also substantively insufficient and should be denied on
this ground, as well
.
40 .
Respondents identify three bases for their Appeal: (a) the Board's November 17,
2005 Order, (b) the requirement to comply with Illinois Supreme Court Rules 201(b) and 213(d),
9
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 10, 2006
and (c) the requirement to comply with Illinois Supreme Court Rules 3.7(a) and (b)
. (Appeal at
3, 5 and 6.)
The Board's November 17, 2005 Order
41
.
As their first basis for appeal, Respondents argue that the Hearing Officer
"mistakenly" denied their motion to quash and granted the People's second motion for protective
order. (Appeal at 4.) The gist of Respondents' argument is that "Complainant made no attempt
to act professionally and with civility to comply with the requirements of Supreme Court Rule
201(k)" and that the Hearing Officer misinterpreted the Board's November 17, 2005 Order . (Id.)
42 .
However, the record is inescapable and it establishes that the People initiated four,
written Rule 201(k) conferences with Respondents on May 24, 2005, June 14, 2005, December
15, 2005 and February 16, 2006. While this correspondence speaks for itself and are a matter of
record, these conferences were initiated in a full and good faith attempt to informally resolve
differences with Respondents . Respondents refused to respond to any of these letters and failed
to initiate any Rule 201(k) conference of their own
.
43 .
It is also inescapable that the Hearing Officer would have considered in her ruling
the fact that Respondents were inconsistent in their own position on the need for a protective
order.
(See
Respondents' January 9, 2006 motion to strike the People's December 28, 2005
second motion for protective order at 4 ("If a protective order where [sic] to be issued, it would
need to apply to both parties") ;
see also
The People's January 19, 2006 response to Respondents'
motion to strike the People's second motion for protective order .)
44
.
As to the Board's November 17, 2005 Order, Respondents' persist in their
incorrect argument that the People cannot conduct discovery into allegations regarding
Respondents' own fees and costs relative to the People's fees and costs . (Appeal at 4 .)
10
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
Respondents continue to ignore key language in the Order to the contrary. Again, the Board
ruled that "[t]o allow the respondent to conduct discovery on this matter and not allow the People
the opportunity to conduct similar discovery would place the People on unequal footing, and
would not serve in the best interests of administrative justice." (Nov . 17, 2005 Order at 3 .)
Obviously, the People would not conduct discovery into their own fees and costs . The only
plausible reading of the Board's Order on this issue is that the People are entitled to inquire
about Respondents' allegations regarding their own attorneys' fees and costs
.
45,
Therefore, Respondents' first basis for appeal does not present any cause to
overturn the Hearing Officer's Order
.
The Requirement to Comply With Illinois Supreme Court Rules 201(b) and 213(d)
46 .
As their second basis for appeal, Respondents apparently argue that the Hearing
Officer erred in denying their motion to quash and granting the People's second motion for
protective order because it was the People's burden under Supreme Court Rules 201(b) and
213(d) to show that the information sought through the People's discovery requests is admissible
or calculated to lead to admissible information. (Appeal at 5.) However, Respondents' second
basis for appeal is, again, directly contradicted by the record
.
47
.
However, Respondents still fail to argue their objections on the merits .
48
.
Instead, Respondents complain that, under Supreme Court Rule 213(d), they were
entitled to a ruling on their discovery objections, which they got
.
49 .
Respondents complain that the Hearing Officer erred because it was the People's
burden to show that the requested discovery is admissible or calculated to lead to admissible
information, which the People did
.
11
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
50 .
Lastly, Respondents complain that, although they provided no argument or
authority in support of their discovery objections, the Hearing Officer should have explained
why Respondents' argument was not compelling, which the Hearing Officer did
.
51
.
For these reasons, Respondents' second basis for appeal does not present any
cause to overturn the Hearing Officer's Order
.
The Requirement to Comply with Illinois Supreme Court Rules 3 .7(a) and (b)
52 .
As their third basis for appeal, Respondents now contend that the Hearing Officer
erred in denying Respondents' motion to quash and granting the People's second motion for
protective order because Supreme Court Rules 3 .7(a) and (b) prohibit a lawyer from representing
a client in a matter where the lawyer may be called to testify . (Appeal at 6.) Respondents now
also cite to a number of cases in support of their argument
.
(Id.
at 7-8 .)
53 .
In denying the Respondents' motions, the Hearing Officer was entirely correct
when she pointed out that "respondents have provided no argument or case law to defend their
assertion that information would not be admissible, or lead to admissible information admissible
at hearing, or that it would violate the attorney-client privilege." (Feb . 8, 2006 Order at 1 .)
None of the authority now cited by Respondents in support of their third basis for appeal was
included in their motion to quash or their motion to strike the People's second motion for
protective order and, therefore, this new argument is not part of the record on appeal
.
Respondents are essentially "sandbagging" the Hearing Officer with this new argument and
authority
.
54 .
Further, it is not the purpose of an appeal to allow litigants to stand mute and lose
at hearing, and then frantically invent arguments to show that the hearing officer erred in its
ruling. This proceeding has already suffered from far too many delays, and the interests of
12
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
finality, efficiency and fairness require that the Board not consider such late argument, no matter
what the contents thereof may be
.
55
.
If the Board considers these new arguments, the Board should be aware that
Supreme Court Rules 3.7(a) and (b), as well as all of the case law cited by Respondents, is
irrelevant in a dispute over a fee petition
.
56 .
As more fully set forth in the People's December 28, 2005 response to
Respondents' motion to quash (Exhibit B hereto), the motion to quash baldly asserted that the
People's deposition notices were not calculated to lead to admissible evidence. (Response at 4.)
No factual basis was provided for the stated objection . Respondents failed to even account for
the reciprocal argument as to why they should be allowed to depose the People's attorneys
.
Respondents now fail to explain how Supreme Court Rules 3 .7(a) and (b) also would not prevent
Respondents from deposing the People's counsel .
57 .
More to the point, the requested depositions are clearly relevant and Respondents
made no relevancy objection. Illinois case law is legion that the concept of relevancy in
discovery is broader than relevancy for admission of evidence at trial
.
See.Bauter v. Reding,
68
III.App.3d 171, 175, 385 N.E.2d 886, 890 (III. App. 3d Dist. 1979) (citing
Krupp v. Chicago
Transit Auth .,
8 I11.2d 37, 41, 32 N.E.2d 532, 535 (Ill. 1956)) .
58
. .
Respondents' motion to quash also baldly asserted, without any factual grounds,
that depositions of Respondents' attorneys would violate the attorney-client privilege between
the Respondents and their attorneys . (Response at 4.) However, as the People also stated in their
December 28, 2005 response to the motion to quash, there is no privilege available as to
attorney's fees and costs when the very issue in dispute is the appropriate amount of attorney's
fees and costs
.
See, e.g., LaHood v. Court,
236 III.App.3d 641, 649, 603 N.E.2d 1165, 1171 (3d
13
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
Dist. 1992). Further, even if such a privilege existed, Respondents waived it by making
allegations regarding the amount of their own attorneys' fees and costs and by previously
requesting (and obtaining) the same information from the People
.
59 .
Lastly, Respondents failed to explain how the People's deposition notices are
inconsistent with the Board's April 7, 2005 Order or November 17, 2005 Order, which clarified
that the People will be allowed the same opportunity to conduct discovery similar to that served
by Respondents. (Board's Nov. 17, 2005 Order at 3 .)
60 .
For these reasons, Respondents' third and last basis for appeal does not present
any cause to overturn the Hearing Officer's Order
.
CONCLUSION
61
.
The Board should deny Respondents' Appeal on both procedural and substantive
grounds and should affirm the Hearing Officer's February 8, 2006 Order . Respondents' have
violated the letter and spirit of the Board's November 17, 2005 Order and the rules of discovery
.
WHEREFORE, the People respectfully request that the Board deny Respondents' Appeal
and affirm the Hearing Officers' February 8, 2006 Order, and for any further relief that is fair
and just under the circumstances
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
the State of Illinois
62)
vaJ
BY :
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph, Suite 2000
Chicago, Illinois 60601
Tel: 312.814.2069
Fax: 312.814.2347
14
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
EXHIBIT A
TO COMPLAINANT'S MOTION TO DENY
RESPONDENTS' APPEAL
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
Lisa Madigan
NI-FORNEY GENERAL
Sent Via First Class Mail
and Facsimile (773.792.8358)
Mr. David S . O'Neill, Esq
.
5487 North Milwaukee Avenue
Chicago, Illinois 60630-1249
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
February 16, 2006
Re
:
Peoplev.Skokie Valley Asphalt Co.,Inc.,et al., PCB 96-98
Dear Mr. O'Neill :
The purpose of this letter is to initiate another conference in the spirit of Illinois Supreme
Court Rule 201(k) to informally resolve potential disputes over Respondents' answers to
Complainant's interrogatories and document requests . We previously wrote you on December
15, 2005, and fully explained our position on the potential dispute involving Respondents'
aforementioned discovery answers. A copy of our December 15, 2005 Rule 201(k) letter is
attached for reference .
Regarding this same potential dispute, on February 8, 2006, the Hearing Officer issued an
Order finding that Respondents' "discovery responses violate the spirit of the Board's
[November 17, 2005] Order." The Hearing Officer denied Respondents' latest motions to strike,
granted the State's motion for protective order, and ordered you to participate in a full and good
faith conference with us regarding discovery disputes . The February 8, 2006 Order further
provides that we are to "make every effort to get through the discovery process with no further
involvement of the Board or hearing officer," and in all future filings "related to any discovery
problem, respondents' attorneys must relate the measures taken to resolve the problem with
complainant's attorneys before the filing of the motion ."
We will continue to make every effort to informally resolve discovery disputes with you
.
To that end, we again ask you to immediately respond to our December 15, 2005 Rule 201(k)
letter as requested therein
.
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
•
TTY: (312) 814-3374
•
Fax: (312) 814-3806
.1001 East Main, Carbondale, Illinois 62901
•
(618) 529-6400
•
TTY: (618) 529-6403
•
Fax: (618) 529-6416
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
Letter to David S. O'Neill
February 16, 2006
Page 2
cc :
Carol Webb, Hearing Officer
fVia
First
Class Mail)
Michael B. Jawgiel, Esq
.
fViaFirst Class Mail)
Sincerely,
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 . i 1.us
Lisa Madigan
ATTORNEY GENERAL
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 10, 2006
Sent Via First Class Mail
and Facsimile (773.792.8358)
Mr. David S. O'Neill, Esq .
5487 North Milwaukee Avenue
Chicago, Illinois 60630-1249
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
December 15, 2005
Re :
People v. Skokie Valley Asphalt Co ., Inc.,et al., PCB 96-98
Dear Mr. O'Neill :
The purpose of this letter is to initiate a conference in the spirit of Illinois Supreme Court
Rule 201(k) to informally resolve potential disputes over Respondents' answers to
Complainant's interrogatories and document requests prior to seeking Board intervention . These
written discovery requests were served on Respondents on April 25, 2005, and were answered on
December 5, 2005 . The following is a full explanation of our position on each potential dispute
.
Please respond to this letter as requested within 14 days by providing the requested discovery or
explaining your position so that we can make a fully informed and joint decision whether it is
absolutely necessary to seek Board intervention regarding these potential disputes . On a related
note, regarding Respondents' written discovery requests to Complainant, the Board granted
Respondents until December 3, 2005, to provide additional responses to Complainant's
discovery objections. As of today, I have not heard from you and assume that any potential
differences over Complainant's answers are resolved
.
Respondents' Answers to Complainant's Interrogatories
Complainant served Respondents with 11 interrogatories requesting information
regarding Respondents' hearing plans (e.g., the identity of any witnesses to be called at hearing)
and attorneys' fees and costs . The Respondents each elected to answer the interrogatories
separately, but their answers are all the same, with the exception of Skokie Valley Asphalt's
("SVA") answer to Interrogatory #1
.
In answer to Interrogatory #1, which requests the identity of the individual answering the
interrogatories, SVA answered that it "is no longer a legal entity under the laws of the State of
Illinois" and "Therefore, [it] is incapable of responding to these interrogatories." However, SVA
is one of the Respondents that moved to stay Complainant's fee petition in the first place. More
1001 East Main, Carbondale, Illinois 62901
•
(618) 529-6400
•
TTY: (618) 529-6403
•
Fax: (618) 529-6416
500 South Second Street, Springfield, Illinois 62706
•
(217) 782-1090
•
TrY: (217) 785-2771
•
Fax: (217) 782.7046
100 West Randolph Street, Chicago, Illinois 60601
•
(312) 814-3000
•
TTY: (312) 814-3374
•
Fax: (312) 814-3806
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
Letter to David S. O'Neill
December 15, 2005
Page 2
significantly, SVA is also one of the Respondents that served discovery requests on Complainant
.
Rhetorically, how can SVA oppose Complainant's fee petition and serve discovery, but cannot
answer discovery? In addition, under Illinois law, a corporation can be sued (and must have a
registered agent for a period of five years) even after dissolution . Given the circumstances,
SVA's answer to Interrogatory #1 is unacceptable . In order to informally resolve this dispute, we
require SVA to answer Interrogatory # 1 within 14 days of this letter .
In answer to Interrogatory #2, the Respondents listed me as a potential witness at hearing
.
I am the attorney representing Complainant at hearing . Further, none of my fees and costs is
included in Complainant's fee petition. Thus, I will not be testifying at the hearing . In order to
informally resolve this potential dispute, please contact me within 14 days of this letter if you
disagree. If you disagree, we will obviously need to seek a protective order. If we do not hear
from you within 14 days, we will reasonably assume that you agree with our position .
In answer to Interrogatory #3, which requests information regarding any opinion witness
to be called by Respondents at hearing, Respondents identified Deborah A . Stonich, but did not
provide any other requested information because she apparently has not completed her case
assessment. However, it is not necessary to wait for her case assessment in order to provide
information regarding her qualifications and previous opinion testimony, as
specifically
requested in subparts (b) and (d) of Interrogatory #3 . In order to informally resolve this dispute,
we require Respondents to answer Interrogatory #3(b) and (d) within 14 days of this letter
.
In answer to Interrogatory #4, Respondents provided none of the requested information
.
Instead, Respondents all objected on the same grounds and as follows
:
Objection. This interrogatory is not calculated to be to
[sic]
admissible evidence at
the time of the hearing
.
.
Furthermore, this interrogatory asks for irrelevant
information and violates the attorney-client privilege between the Respondent and the
Respondent's attorneys. The Respondent has not placed his attorney's fees or its
expenses at issue in this matter
.
First, absent some direction from the Board, the objections based upon admissibility and
relevance are not grounds to withhold information (or documents as discussed below) .
Respondents' attorneys' fees and costs were, in fact, placed at issue through their "Initial
Response to and Motion to Stay and/or Extend Time to Respond to Complainant's Petition for
Attorneys' Fees and Costs," which contains numerous and specific factual allegations regarding
the Respondents' attorneys' fees and costs .
(See,e.g .,
Initial Response at ¶ 17 ("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" and "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
Respondents' attorneys
[sic]
fees include costs").) In opposing Complainant's Petition for
Attorneys' Fees and Costs, Respondents drew a direct comparison between the parties' attorneys'
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
Letter to David S. O'Neill
December 15, 2005
Page 3
fees and costs, yet Respondents now refuse to disclose their own attorneys' fees and costs
.
Second, regarding the attorney-client privilege asserted, our interrogatories contain an
entire section, Section II, titled "Claims of Privilege," wherein we specifically requested that
Respondents identify the "statute, rule or decision which is claimed to give rise to the privilege or
the reason for its unavailability." Respondents did not object to this instruction or provide us
with the legal basis for the asserted privilege. Frankly, our research indicates that attorneys' fees
and costs are not privileged in a dispute over attorneys' fees and costs . Furthermore, and even if
there was such a privilege, Respondents waived it by previously requesting (and obtaining) the
verysame information from Complainant
.
Third, the Board ruled that "
.
.
. the People must be allowed to conduct discovery on the
reasonableness of the attorney fees and costs ." (Order at 3 (Nov. 17, 2005).) "To allow the
respondent to conduct discovery on this matter and not allow the People the opportunity to
conduct similar discovery would place the People on unequal footing, and would not serve the
best interests of administrative iustice ."
For all of these reasons, in order to informally resolve this dispute over Interrogatory #4,
we require Respondents to provide the requested information within 14 days of this letter .
In answer to Interrogatories #5 through #11, Respondents again provided none of the
requested information and repeated their previous objection to Interrogatory #4 . As with
Interrogatory #4, in order to informally resolve this dispute, we require Respondents to provide
the requested information within 14 days of this letter .
Respondents' Answers to Complainant's Document Requests
Through seven document requests, Complainant requested documents relevant to
Respondents' attorneys' fees and costs . In answer to our document requests, Respondents did
not produce any documents whatsoever. Instead, the Respondents stated the following objection
to each document request :
Objection. This interrogatory is not calculated to be admissible evidence at the time
of the hearing. Furthermore, this interrogatory asks for irrelevant information and
violates the attorney-client privilege between the Respondent and the Respondent's
attorneys. The attorneys for the Respondent has not placed his or, in the case of
Skokie Valley Asphalt Company, Inc., its attorney's fees at issue nor has the
Respondent placed his or, in the case of Skokie Valley Asphalt Company, Inc ., its
expenses at issue in this matter
.
For all of the same reasons that Respondents' answers to Interrogatories #4 through #11
are unacceptable, Respondents' answers to all document requests are unacceptable . Again, these
reasons include that the Board has already ruled that Complainant is entitled to conduct discovery
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
Letter to David S. O'Neill
December 15, 2005
Page 4
on this issue. Also, we are not aware of any legal basis to assert a privilege under the
circumstances, but regardless, Respondents clearly waived any privilege by previously requesting
(and obtaining) the very same information from Complainant . Further, pursuant to specific
instructions in Complainant's discovery requests (See Instruction 2 in our Interrogatories),
Respondents were asked to provide a detailed privilege log for withheld documents . We did not
receive any privilege log . Essentially, Respondents have refused to disclose any . documents and,
at the same time, failed to adequately assert and define the basis for their refusal
.
In order to informally resolve this dispute, we require Respondents to produce the
requested documents within 14 days of this letter
.
Again, please respond to this letter within 14 days . Please contact me with any questions
in the interim .
cc :
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
Carol Webb, Hearing Officer (Via
First Class Mail)
Michael B . Jawgiel, Esq . (Via
First
Class Mail)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ILLINOIS POLLUTION CONTROL BOARD
February 8, 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v .
)
PCB 96-98
(Enforcement - Water)
SKOKIE VALLEY ASPHALT, INC., EDWIN)
L. FREDERICK, JR., and RICHARD J .
)
FREDERICK,
)
Respondents .
)
R1 CEIvED
CLERK'S OFFICE
FEB
.-
,H
MR, ,
STATE OF ILLINOIS
Pollution
Control Board
HEARING OFFICER ORDER
On December 14, 2005, respondent filed a motion to quash complainant's deposition
notices to respondent regarding complainant's fee petition . On December 28, 2005, complainant
filed a second motion for protective order and a response to respondent's motion to quash . On
January 9, 2006, respondents filed a motion to strike complainant's motion for protective order,
and a response to that order. On January 19, 2006, complainant filed a response to the motion to
strike. For the following reasons, the hearing officer denies respondent's motion to quash,
denies respondent's motion to strike the motion for protective order, and grants complainant's
motion for protective order .
Respondents' motion to quash asserts that depositions of respondents' attorneys will not
lead to admissible evidence at hearing on the issue of complainant's fees and costs, and that
deposing respondents' attorneys will violate the attorney-client privilege. Respondents further
assert that the depositions are inconsistent with the Board's April 7, 2005 order calling for
limited discovery .
The hearing officer first notes that the Board's order issued on November 17; 2005 ruled
that it would not be fair to allow respondents to conduct discovery on the reasonableness of
attorney fees without allowing complainant to conduct similar discovery . The Board ordered
respondents to respond to complainant's discovery requests by December 3, 2005 . On
December 5, 2005, respondents filed their responses to complainant's discovery requests, but in
response to each interrogatory (except for the most perfunctory), respondents objected and
provided no answer. These discovery responses violate the spirit of the Board's order
.
Furthermore, respondents have provided no argument or case law to defend their assertion that
the information would not be admissible, or lead to information admissible at hearing, or that it
would violate the attorney-client privilege. The motion to quash is denied
.
Complainant's motion for protective order asks that respondents' attorneys be required to
participate in a full and good faith conference with complainant's attorneys regarding any further
discovery dispute prior to seeking Board intervention . Respondents' motion to strike offered no
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
2
compelling argument on which to grant that motion, thus the motion to strike is denied
. The
parties are directed to make every effort to get through the discovery process with no further
involvement from the Board or the hearing officer . Accordingly, the hearing officer grants the
motion for protective order. In any motion, objection, or other filing related to any discovery
problem, respondents' attorneys must relate the measures taken to resolve the problem with
complainant's attorneys before the filing of the motion
.
The Board's November 17, 2005 order directs the hearing officer to schedule a status
conference to set a detailed discovery schedule . The parties are directed to meet before the next
status conference to determine a detailed discovery schedule to propose to the hearing officer at
the next status conference .
The parties are directed to participate in a telephone status conference with the hearing
officer at 2 :00 p.m. on March 9, 2006. Complainant is directed to initiate the call .
IT IS SO ORDERED .
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue East
P.O. Box 19274
Springfield, Illinois
62794-9274
217/524-8509
webbc@ipcb.state.il .us
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 10, 2006
3
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order were mailed, first class, on
February 8, 2006 to each of the persons on the attached service list
.
It is hereby certified that a true copy of the foregoing order was hand delivered to the
following on February 8, 2006
:
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
217/524-8509
webbc@ipcb.state.il .us
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 10, 2006
4
PCB 1996-098
David S. ONeill, Esq .
5487 North Milwaukee Avenue
Chicago, IL 60630-1249
PCB 1996-098
Michael C. Partee
Office of the Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, IL 60601
PCB 1996-098
Michael B. Jawgiel, PC
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
PCB 1996-098
Bernard J. Murphy
Office of the Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, IL 60601
PCB 1996-098
Mitchell L. Cohen
Office of the Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, IL 60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ATTENTION:
PHONE :
FAX .
FROM :
P80NE:
FwX:
DATE:
NVMBEf OF
PAGES :
COMMENTS :
OFFICE OF TffE ILLINOIS
ATTORNEY GENEIie'~L
•
Lisa Madisan
Attorney General
HNVT310NMENT'AL ENFORCEMENT'/ASBESTOS LITIGATION nIVISION
David S. O'NeiU
773-792-1333
773-792-8358
A+c`^aelC. Patsec. Assistant Attorney General
312-9142069
312-814-2347
February, 16. 2006
11 (including cover)
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Date & Time : Feb-16-06 02 :35pm
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Machine ID
IAGO-ENVIRONMENTAL BUREAU
Job number
424
Date
Feb-16 02 :29pm
To
8917737928358
Number of Pages
911
Start time
Feb-16 02 :29pm
End time
Pages sent
Status
Feb-16 02 :35pm
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Job number
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*** SEND SUCCESSFUL ***
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
EXHIBIT B
TO COMPLAINANT'S MOTION TO DENY
RESPONDENTS' APPEAL
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 200 5
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
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 of Skokie
)
Valley Asphalt Co., Inc .,
)
Respondents .
)
COMPLAINANT'S SECOND MOTION FOR PROTECTIVE ORDER AND RESPONSE
TO RESPONDENTS' MOTION TO OUASH DEPOSITION NOTICES
Complainant, PEOPLE OF THE STATE OF ILLINOIS ("People"), by LISA MADIGAN,
Attorney General of the State of Illinois, hereby responds to Respondents', SKOKIE VALLEY
ASPHALT CO., INC., EDWIN L. FREDERICK, JR., and RICHARD J. FREDERICK, Motion
to Quash Complainant's Deposition Notices ("Motion to Quash") . The People also hereby move
for a protective order requiring Respondents' attomey(s) to participate in a full and good faith
conference with the People's attorney regarding any future discovery dispute prior to seeking
Board intervention . In support of their combined response and motion, the People state as
follows :
RELEVANT PROCEDURAL HISTORY
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'
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
Fees and Costs" ("Initial Response"). In their Initial Response, Respondents made unsupported,
factual allegations regarding their own attorneys' fees and costs, the following of which are two
examples :
"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
1117) ;
and
"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
Respondents' attorneys [sic] fees include costs ." (!d.)
2
.
On April 25, 2005, the People served Respondents with limited interrogatories,
document requests and deposition notices aimed at discovering the factual basis for the above
allegations .
3. On December 5, 2005, pursuant to Board Order, Respondents provided their
answers and objections to the People's interrogatories and document requests . Respondents'
answers and objections consist almost entirely of inappropriate objections
.
4 .
Therefore, on December 15, 2005, the People sent Respondents yet another
detailed letter in the spirit of Illinois Supreme Court Rule 201(k) to
•a
ttempt to informally resolve
any potential discovery dispute before seeking Board intervention. (Exhibit A .)
5 .
Respondents have not yet responded to the People's December 15, 2005 Rule
201(k) letter, and it appears that they are unlikely to do so .
6 .
Nevertheless, neither Respondents' December 5, 2005 discovery answers and
objections, nor the People's December 15, 2005 Rule 201(k) letter, address the People's
deposition notices, Toward orderly discovery, it was the People's implicit understanding that
depositions would not occur until written discovery was adequately answered, which has yet to
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, DECEMBER 28, 2005
occur as set forth in the People's December 15, 2005 Rule 201(k) letter
.
7 .
However, on December 14, 2005, without any informal attempt to resolve
differences, Respondents filed their Motion to Quash
.
REPONDENTS' MOTION TOQUASH SHOULD BE DENIED AND A PROTECTIVE
ORDER SHOULD BE ENTERED REQUIRINGA FULL AND GOOD FAITH
ATTEMPT TO INFORMALLY RESOLVE ANYFUTURE DISCOVERY DISPUTE
PRIOR TO SEEKING BOARD INTERVENTION
8 .
The stated basis for the Motion to Quash is as follows
:
MOTION TO QUASH
(6)
The Respondents have not placed their attorneys' fees at issue in this
matter .
The Respondents have not placed their expenses at issue in this matter
.
The Complainant's deposition of Respondents' attorneys will not allow for
the discovery of information calculated to be admissible at the time of the
hearing on the issue of the reasonableness of the Complainant's attorneys'
fees and costs
.
The Complainant's deposition of Respondents' attorneys will violate the
attorney-client privilege between the Respondents and the Respondents'
attorneys .
(7)
(8)
(9)
(10)
Allowing the Complainant to take the deposition of Respondents'
attorneys is inconsistent with the Board's Order of April 7, 2005 which
called for limited discovery on the subject of the reasonableness of
attorneys' fees and costs. Order of April 7, 2005 at 3
.
9 .
Procedurally, the Motion to Quash is premature and unwarranted. The
Respondents have not yet adequately answered the People's discovery requests, yet seek to quash
deposition notices before the People are even afforded the opportunity to review adequate and
complete written discovery answers
.
10 .
Substantively, the Motion to Quash is undeveloped, conclusory, without any
authority, and does not set forth an adequate basis for the Board to grant the relief requested
.
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
11 .
Paragraphs 6 and 7 of the Motion to Quash are flatly contradicted by
Respondents' prior allegations in their Initial Response, where they clearly placed their attorneys'
fees and costs at issue by going so far as to reference certain, as yet undisclosed, calculated
comparisons between the parties' attorneys' fees and costs .
12
. .
Paragraphs 8 through 10 of the Motion to Quash arc insufficient on several
grounds and also fail to provide a basis for the relief requested
.
13
.
More specifically, Paragraph 8 of the Motion to Quash baldly asserts that the
People's deposition notices are not calculated to lead to admissible evidence . No factual basis is
provided for the stated objection and the objection fails for this reason. Respondents fail to even
account for the reciprocal argument as to why they should be allowed to depose the People's
attorneys. Further, the depositions are clearly relevant and Respondents make no relevancy
objection . Illinois case law is legion that the concept of relevancy in discovery is broader than
relevancy for admission of evidence at trial
. See Ba« ter v. Reding, 68 III.App.3d 171, 175, 385
N.E.2d 886, 890 (III . App . 3d Dist. 1979) (citing
Krupp v.
Chicago Transit Auth.,
8
ILI.2d 37, 41,
32 N .E.2d 532, 535 (111. 1956)) .
14 .
Paragraph 9 of the Motion to Quash baldly asserts, without any factual grounds,
that depositions of Respondents' attorneys will violate the attorney-client privilege between the
Respondents and their attorneys . However, there is no privilege available as to attorney's fees
and costs when the very issue in dispute is the appropriate amount of attorney's fees and costs .
See, e.g., LaHood v. Couri, 236 I11.App.3d 641, 649, 603 N.E.2d 1165, 1171 (3d Dist. 1992) .
Further, assuming arguendo that such a privilege existed, Respondents waived it by making
allegations regarding the amount of their attorneys .' fees and costs and by requesting and
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
obtaining the same information from the People
.
15 .
Last, Paragraph 10 of the Motion to Quash incorrectly asserts that allowing the
People to take depositions of Respondents' attorneys "is inconsistent with the Board's Order of
April 7, 2005 which called for limited discovery on the subject of the reasonableness of
attorneys' fees and costs." Again, this is a premature argument because Respondents have not
yet even furnished adequate answers to the People's written discovery requests . Nevertheless,
Respondents fail to explain how the People's deposition notices are inconsistent with the Board's
April 7, 2005 Order. Further, the April 7, 2005 Order was clarified by the Board's November 17,
2005 Order, wherein the Board stated that the People will be allowed the same opportunity to
conduct discovery similar to that served by Respondents . (Board's Order at 3 (Nov. 17, 2005) .)
16 .
Respondents' Motion to Quash is frivolous and achieves nothing more than to
further delay of this proceeding and increase litigation costs . The Motion to Quash may have
-been entirely avoided if Respondents' attorney(s) made a full and good faith attempt to
informally resolve this apparent discovery dispute prior to once again seeking Board intervention
.
17
.
As noted in the committee comments to Rule 201(k), many discovery differences
could be eliminated if the attorneys responsible for trying the case were involved in attempts to
resolve discovery differences . "Counsel responsible for trying the trial of a case are required to
have or attempt a personal consultation before a motion with respect to discovery is initiated ."
(Committee Comments on Rule 201(k) .)
18 .
A full and good faith attempt by counsel to informally resolve discovery disputes
is a necessary part of the discovery process
.
19 .
In order to avoid any further, needless Board intervention regarding discovery
disputes, the Hearing Officer or the Board should issue a protective order pursuant to Rule
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
101 .616(d) of the Board's Procedural Rules requiring counsel to engage in a full and good faith
attempt to informally resolve any future discovery dispute prior to seeking Board
intervention .
20 .
Furthermore, the Board has already held that this is not a one-sided proceeding
.
(See Board Order at 3 (Nov . 17, 2005) ("To allow the respondent to conduct discovery on this
matter and not allow the People the opportunity to conduct similar discovery would place the
People on unequal footing
.
.
.").) Therefore, People respectfully request that, if Respondents
continue to fail to cooperate in conducting discovery that they themselves initiated, this phase of
the proceeding should end immediately and the People's fee petition should be granted
.
WHEREFORE, the People respectfully request that the Board deny Respondents' Motion
to Quash, that the Board enter a protective order requiring counsel to engage in
a full and good
faith attempt to informally resolve any future discovery dispute prior to seeking Board
intervention, and for any further relief that is fair and just under the circumstances
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
of the State of Illinois
BY :
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph, Suite 2001
Chicago, Illinois 60601
Tel: (312)814-2069
Fax: (312)814-2347
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
Lisa Madigan
ATTORNEY GENERAL
Sent Via First Class Mail
and Facsimile (773.792.8358)
Mr. David S. O'Neill, Esq .
5487 North Milwaukee Avenue
Chicago, Illinois
60630-1249
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
December 15, 2005
Re :
People v.Skokie Valley Asphalt Co .,
Inch,
et al.,
PCB 96-98
Dear Mr. O'Neill
:
The purpose of this letter is to initiate a conference in the spirit of Illinois Supreme Court
Rule 201(k) to informally resolve potential disputes over Respondents' answers to
Complainant's interrogatories and document requests prior to seeking Board intervention . These
written discovery requests were served on Respondents on April
25, 2005,
and were answered on
December
5,
2005. The following is a full explanation of our position on each potential dispute
.
Please respond to this letter as requested within
14
days by providing the requested discovery or
explaining your position so that we can make a fully informed and joint decision whether it is
absolutely.necessary to seek Board intervention regarding these potential disputes. On a related
note, regarding Respondents' written discovery requests to Complainant, the Board granted
Respondents until December 3, 2005, to provide additional responses to Complainant's
discovery objections. As of today, I have not heard from you and assume that any potential
differences over Complainant's answers are resolved .
Respondents' Answers to Complainant's Interrogatories
Complainant served Respondents with 11 interrogatories requesting information
regarding Respondents' hearing plans (e.g., the identity of any witnesses to be called at hearing)
and attorneys' fees and costs. The Respondents each elected to answer the interrogatories
separately, but their answers are all the same, with the exception of Skokie Valley Asphalt's
("SVA") answer to Interrogatory # 1
.
In answer to Interrogatory #1, which requests the identity of the individual answering the
interrogatories, SVA answered that it "is no longer a legal entity under the laws of the State of
Illinois" and "Therefore, [it] is incapable of responding to these interrogatories." However, SVA
is one of the Respondents that moved to stay Complainant's fee petition in the first place. More
500 South Second Street, Springfield, Illinois 62706
•
(217) 782-1090
•
TTY: (217) 785-2771
•
Fax: (217) 7
100 West Randolph Street, Chicago, Illinois 60601
•
(312) 8143000
•
TTY: (312) 814-3374
•
Fax (312) 81
1001 East Main, Carbondale, Illinois 62901
•
(618) 529-6400
•
TTY: (618) 529.6403
•
Fax (618) 529
EXHIBIT
A
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
Letter to David S. O'Neill
December 15, 2005
Page 2
significantly, SVA is also one of the Respondents that served discovery requests on Complainant
.
Rhetorically, how can SVA oppose Complainant's fee petition and serve discovery, but cannot
answer discovery? In addition, under Illinois law, a corporation can be sued (and must have a
registered agent for a period of five years) even after dissolution . Given the circumstances,
SVA's answer to Interrogatory #1 is unacceptable . In order to informally resolve this dispute, we
require SVA to answer Interrogatory #1 within 14 days of this letter
.
In answer to Interrogatory #2, the Respondents listed me as a potential witness at hearing .
I am the attorney representing Complainant at hearing. Further, none of my fees and costs is
included in Complainant's fee petition . Thus, I will not be testifying at the hearing . In order to
informally resolve this potential dispute, please contact me within 14 days of this letter if you
disagree. If you disagree, we will obviously need to seek a protective order . If we do not hear
from you within 14 days, we will reasonably assume that you agree with our position
.
In answer to Interrogatory #3, which requests information regarding any opinion witness
to be called by Respondents at hearing, Respondents identified Deborah A . Stonich, but did not
provide any other requested information because she apparently has not completed her case
assessment. However, it is not necessary to wait for her case assessment in order to provide
information regarding her qualifications and previous opinion testimony, as specifically
requested in subparts (b) and (d) of Interrogatory #3 . In order to informally resolve this dispute,
we require Respondents to answer Interrogatory #3(b) and (d) within 14 days of this letter
.
In answer to Interrogatory #4, Respondents provided none of the requested information
.
Instead, Respondents all objected on the same grounds and as follows
:
Objection. This interrogatory is not calculated to be to [sic] admissible evidence at
the time of the hearing. Furthermore, this interrogatory asks for irrelevant
information and violates the attorney-client privilege between the Respondent and the
Respondent's attorneys. The Respondent has not placed his attorney's fees or its
expenses at issue in this matter
.
First, absent some direction from the Board, the objections based upon admissibility and
relevance are not grounds to withhold information (or documents as discussed below)
.
Respondents' attorneys' fees and costs were, in fact, placed at issue through their "Initial
Response to and Motion to Stay and/or Extend Time to Respond to Complainant's Petition for
Attorneys' Fees and Costs," which contains numerous and specific factual allegations regarding
the Respondents' attorneys' fees and costs. (See. e.A., Initial Response at 117 ("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" and "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
Respondents' attorneys (sic) fees include costs").) In opposing Complainant's Petition for
Attorneys' Fees and Costs, Respondents drew a direct comparison between the parties' attorneys'
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH
10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28,
2005
Letter to David S . O'Neill
December 15, 2005
Page 3
'
fees and costs, yet Respondents now refuse to disclose their own attorneys' fees and costs
.
Second, regarding the attorney-client privilege asserted, our interrogatories contain an
entire section, Section II, titled "Claims of Privilege," wherein we specifically requested that
Respondents identify the "statute, rule or decision which is claimed to give rise to the privilege or
the reason for its unavailability ." Respondents did not object to this instruction or provide us
with the legal basis for the asserted privilege . Frankly, our research indicates that attorneys' fees
and costs are not privileged in a dispute over attorneys' fees and costs . Furthermore, and even
if
there was such a privilege, Respondents waived it by previously requesting (and obtaining) the
very same information from Complainant .
Third, the Board ruled that "
.
.
. the People must be allowed to conduct discovery on the
reasonableness of the attorney fees and costs ." (Order at 3 (Nov. 17, 2005) .) "To allow the
respondent to conduct discovery on this matter and not allow the People the opportunity to
conduct similar discovery would place the People on unequal footing, and would not serve the
best interests of administrative iustice,"
For all of these reasons, in order to informally resolve this dispute over Interrogatory #4,
we require Respondents to provide the requested information within 14 days of this letter.
In answer to Interrogatories #5 through #11, Respondents again provided none of the
requested information and repeated their previous objection to Interrogatory #4 . As With
Interrogatory #4, in order to informally resolve this dispute, we require Respondents to provide
the requested information within 14 days of this letter
.
Respondents' Answers to Complainant's Document Requests
Through seven document requests, Complainant requested documents relevant to
Respondents' attorneys' fees and costs . In answer to our document requests, Respondents did
not produce any documents whatsoever . Instead, the Respondents stated the following objection
to each document request :
Objection. This interrogatory is not calculated to be admissible evidence at the time
of the hearing. Furthermore, this interrogatory asks for irrelevant information and
violates the attorney-client privilege between the Respondent and the Respondent's
attorneys. The attorneys for the Respondent has not placed his or, in the case of
Skokie Valley Asphalt Company, Inc., its attorney's fees at issue nor has the
Respondent placed his or, in the case' of Skokie Valley Asphalt Company, Inc ., its
expenses at issue in this matter,
For all of the same reasons that Respondents' answers to Interrogatories #4 through #11
are unacceptable, Respondents' answers to all document requests are unacceptable . Again, these
reasons include that the Board has already ruled that Complainant is entitled to conduct discovery
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
Letter to David S. O'Neill
December 15, 2005
Page 4
on this issue. Also, we are not aware of any legal basis to assert a privilege under the
circumstances, but regardless, Respondents clearly waived any privilege by previously requesting
(and obtaining) the very same information from Complainant . Further, pursuant to specific
instructions in Complainant's discovery requests (See Instruction 2 in our Interrogatories),
Respondents were asked to provide a detailed privilege log for withheld documents . We did not
receive any privilege log. Essentially, Respondents have refused to disclose any documents and,
at the same time, failed to adequately assert and define the basis for their refusal
.
In order to informally resolve this dispute, we require Respondents to produce the
requested documents within 14 days of this letter .
Again, please respond to this letter within 14 days . Please contact me with any questions
in the interim .
cc :
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
Carol Webb, Hearing Officer (ViaFirstClassMail)
Michael B . Jawgiel, Esq . (Via First Class Mail)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, DECEMBER 28, 2005
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Date 1 Time: Dec-15-05 11 :14am
Line 1
: +3120142341
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IACO-ENVIRONIENTAL BUREAU
Job number
714
Date
Dec-15 I1 :11am
To
: 8817737818358
Number of pages
005
Start time
Dec-IS 11 :11am
End time
Pesos sent
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Dec-15 11 :14am
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Job number
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714
*** SEND SUCCESSFUL ***
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 10, 2006
CERTIFICATE OF SERVICE
It is hereby certified that true and correct copies of the Notice of Motion and
Complainant's Motion to Deny Respondents' Appeal of Hearing Officer's February 8, 2006
Order, were sent by First Class Mail, postage prepaid, to the persons listed on the Notice of
Filing on March 10, 2006 .
BY :(O.
.4
MICHAEL C. PARTEE
It is hereby certified that the foregoing were electronically filed with the Clerk of the
Board on March 10, 2006
:
Pollution Control Board, Attn : Clerk
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
BY :
MICHAEL C. PARTEE
