BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General
1
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
1
RICHARD J. FREDERICK, Individually
)
and as Owner and Vice President of Skokie
)
Valley Asphalt Co., Inc.,
)
1
Respondents.
1
NOTICE OF FILING
TO:
Mr. David S.
OYNeill, Esq.
Ms. Carol Webb, Hearing Officer
Mr. Michael B. Jawgiel, Esq.
Pollution Control Board
5487 North Milwaukee Avenue
102 1 North Grand Avenue East
Chicago, Illinois 60630- 1249
P.O. Box 19274
Springfield, Illinois 62794-9274
PLEASE TAKE NOTICE that
I have today filed Complainant's Response to
Respondents' Second Motion for Sanctions, 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.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General
of the State of Illinois
BY:
4hbiid60y4
MICHAEL C. PARTEE
Assistant Attorney General
Environmental
BureadNorth
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Tel: 312.814.2069
Fax: 312.814.2347
E-Mail:
mpartee@atg.state.il.us
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
1
by LISA MADIGAN, Attorney General
1
of the State of Illinois,
1
)
Complainant,
1
1
v.
1
1
PCB 96-98
SKOKIE VALLEY ASPHALT CO., INC.,
1
(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 RESPONSE TO
RESPONDENTS' SECOND MOTION FOR SANCTIONS
Complainant, the 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, Second Motion for Sanctions.
In support of their response, the People state as
follows:
1.
Respondents' Second Motion for Sanctions should be stricken on procedural
grounds or denied on substantive grounds, which are the same reasons that Respondents' October
10,2006 Motion for Sanctions ("First Motion for Sanctions") was denied. Procedurally, the
Second Motion for Sanctions does not comport with the clear and unambiguous pre-hearing
schedule established in the Board's September 7,2006 Order and the requirement to attempt to
informally resolve discovery disputes before seeking Board intervention established in the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Hearing Officer's February 8, 2006 Order. Substantively, the Motion for Sanctions seeks
extraordinary relief without stating any legal or factual basis and should be denied because it is
without merit.
Relevant Procedural History
2.
The "Procedural History7' set forth in Respondents' Second Motion for Sanctions
(Second Motion at
71
1-16) is highly selective and omits a controlling Hearing Officer Order and
numerous, ignored attempts by this writer to informally resolve with Respondents' attorneys the
same discovery dispute brought to the Board in the Second Sanctions Motion.
3.
On April 25, 2005, the People served Respondents with interrogatories pertaining
to the Respondents' objection to the People's September 17,2004 fee petition. The People's
Interrogatory
#2 requested a list of witnesses that Respondents may call at the hearing on the fee
petition.
In part, Respondents listed me as a potential hearing witness. I will be representing the
People at the hearing on the fee petition, and my fees and costs are not included in the fee
petition.
4.
On December 28,2005, due to the myriad discovery disputes being brought by
Respondents directly to the Board without any prior attempt to informally resolve differences
with the People, the People filed a second motion for protective order asking that Respondents'
attorneys be required to participate in a full and good faith conference with the People's attorneys
regarding any further discovery dispute prior to seeking Board intervention.
5.
On February 8,2006, the Hearing Officer granted the People's second motion for
protective order and required the following (Feb. 8,2006 Order at 1-2 (underline added)):
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
intervention. Respondents' motion to strike offered no 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, obiection, 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.
6.
On December 15,2005,
I wrote to Respondents' attorneys pursuant to Illinois
Supreme Court Rule
201(k) in a full and good faith attempt to resolve my expressly stated
objection to being listed a potential hearing witness.
(See Exhibit A hereto.) My December 15,
2005 letter to Respondents' attorneys provided, in relevant part (underline added):
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 are 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.
. .
7.
Respondents' attorneys failed to respond my December 15,2005 letter and I
reasonably assumed my objection was resolved.
8.
On September 18,2006, as part of another Rule
201(k) letter to Respondents'
attorneys regarding other depositions in this case, I further wrote, in relevant part (See Exhibit
B
hereto (underline added)):
Per my December 15, 2005 Rule
201(k) letter, your listing me as a witness is
improper for the reasons stated in that letter and
I do not intend to submit to a
deposition or to testify at a hearing. Because
I never heard anvthinn further from YOU
on this and because I have not amended the People's fee petition to include my own
time,
I assume that this objection is resolved.
9.
Respondents' attorneys also failed to respond to my September 18, 2006 letter.
10.
On October 10,2006, Respondents filed their First Motion for Sanctions against
the People pursuant to Illinois Supreme Court Rule
2 19, to which the People responded on
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
October 13, 2006. Respondents' First Motion for Sanctions alleged unspecified and
unsubstantiated discovery violations by the People, and Respondents7 attorneys failed to relate
any measures taken to resolve the alleged discovery dispute with the People's attorneys before
filing the First Motion for Sanctions.
1 1.
On October 18,2006, Respondents served the People with notices for Assistant
Attorney General Mitchell Cohen7s and my depositions. ('See Group Exhibit C.) Also on
October 18, 2006, Respondents served a "notice of subpoena" on former Assistant Attorney
General Bernard Murphy for his deposition, which was improper in both form and manner of
service. (See Exhibit
D.)
12.
Despite having previously resolved my objection to being deposed or to testifying,
I took seriously the deposition notice issued to me and, on October 23, 2006, promptly issued a
strongly-worded Rule
201(k) letter on the issue, reiterating for a third time the position set forth
in my letters of December 15,2005 and September 18,2006. (See Exhibit E hereto.)
13.
Respondents' attorneys also failed to respond to my October 23,2006 letter.
14.
On November 2,2006, the Board denied Respondents' First Motion for
Sanctions, holding that the People did not fail to comply with any discovery order, Respondents
have had ample opportunity to pursue their claims on the fee petition, and any perceived failure
of the Respondents to
fwlly address the People's fee petition during the course of the last two
years is a problem solely of the Respondents' own making. (Nov. 2,2006 Order at 3.)
15.
On November 8 and 14,2006, Respondents' attorneys took three-hour depositions
of Messrs. Cohen and Murphy, respectively. Because argument over the defective subpoena to
Mr. Murphy would have been unproductive, Mr. Murphy and
I waived the defects in order to
allow Mr. Murphy's deposition to go forward.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
16.
On November 15,2006, Respondents filed their Second Motion for Sanctions
pursuant to Rule 219.
In a willful, knowing and repeated violation of the Hearing Officer's
February 8,2006 Order, Respondents' attorneys do not relate in their Second Motion for
Sanctions any measures taken to resolve the alleged discovery dispute with the People's attorneys
before filing, nor did Respondents' attorneys take any such measures.
17.
The stated basis for Respondents' Second Motion for Sanctions is that
Respondents served a notice for my deposition,
I did not file an objection to that notice with the
Board, and
I did not appear for my deposition at the requested date and time. (Second Motion for
Sanctions at
77
12, 14 and 17.) The Respondents then claim an unspecified and unsubstantiated,
but somehow material prejudice.
18.
It is against this procedural history that the Respondents yet again seek the
extraordinary remedy of sanctions against the People.
19.
Respondents' Second Motion for Sanctions suffers from the same defects
as their First Motion for Sanctions and should be denied for the same reasons.
Applicable Legal Standard for the Imposition of Sanctions
20.
Respondents' Second Motion for Sanctions does not set forth the correct legal
standard for sanctions and is not supported by any Board precedent. The authority cited in
Respondents' Second Motion for Sanctions is Rule 219, which is not the controlling rule on
sanctions in this proceeding. (Second Motion for Sanctions at
7
25.)
2 1.
The Board (and Courts, for that matter) has "broad discretion" in determining the
imposition of sanctions.
See Freedom
Oil
Co.
v.
IEPA,
PCB 03-54,2006 WL 391850, at "8
(Feb. 2, 2006). In exercising this broad discretion, the Board considers such factors as the
relative severity of the refusal or failure to comply; the past history of the proceeding; the degree
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
to which the proceeding has been delayed or prejudiced; and the existence or absence of bad faith
on the part of the offending party or person.
Id.
These factors are contained in Board Procedural
Rule
101.800(c) (35 Ill. Adm. Code 101.800(c)), which is the controlling rule in deciding
whether to impose sanctions in a Board proceeding. See People
v. Skokie Valley Asphalt Co.,
Inc.,
et al., PCB 03-54,2006 WL 3265926, at
"3
(Nov. 2,2006).
. ,'
Respondents' Second Motion for Sanctions
Should Be Stricken
On Procedural Grounds
22.
Respondents' Second Motion for Sanctions is based on alleged discovery
violations and, therefore, it is a discovery pleading. The Board's September 7,2006 Order
establishes how such pleadings are to be treated. The Board ruled that
"[d]iscovery pleadings,
including replies to the objections, that are not addressed by the schedule will not be allowed."
(Sept. 7,2006 Order at 8.)
23.
Therefore, as a procedural matter, Respondents' Second Motion for Sanctions is
not addressed by the pre-hearing schedule established by the Board and should be stricken.
24.
In addition, Respondents' Second Motion for Sanctions once again violates the
Hearing Officer's February 8,2006 Order requiring,
"[iln 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." (Feb. 8,2006
Order at 2.) Respondents' attorneys took no steps to resolve the problem with me before filing
the Second Motion for Sanctions (they even ignored my own attempts to informally resolve the
problem) and, therefore, related no such measures therein. The Second Motion for Sanctions
should also be stricken because it violates the Hearing Officer's February 8,2006 Order.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Respondents' Second Motion for Sanctions Is Completely
Without Merit and Should Be Denied On Substantive Grounds
25.
Viewed in light of the Rule 101.800(c) factors to be considered in imposing
sanctions, Respondent's Second Motion for Sanctions is completely without merit.
26.
The Rule 101.800(c) factors include (a) the relative severity of the refusal or
failure to comply, (b) the past history of the proceeding, (c) the degree to which the proceeding
has been delayed or prejudiced, and (d) the existence or absence of bad faith on the part of the
offending party or person. Each of these factors weigh heavily against the imposition of
sanctions against the People:
a.
The relative severioj of the refils01 or fnilllre to complj~. In
terms of the
relative severity of the People's alleged refusal or failure to comply, the People have not
improperly refused or failed to comply with any deposition request.
In terms of
depositions, Respondents already took three-hour depositions of Messrs. Cohen and
Murphy, the attorneys whose time is sought in the People's fee petition. As to my own
deposition,
I timely and repeatedly objected. Respondents' attorneys never contacted me
and, therefore, my objection was resolved. Additionally, Respondents do not now
identify any specific reason or need to depose me.
When the Respondents' attorneys were themselves served with deposition notices
earlier in this proceeding, they objected and argued that it is well established that the
attorney-client relationship makes it ethically improper for an attorney to testify in most
matters in which he is counsel, and they would need to withdraw if required to testify.
(See
Sept. 7,2006 Order at 4.) Respondents' attorneys fiu-ther argued that courts have
found that the practice of deposing opposing counsel is disruptive of the adversarial
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
process and lowers the standards of the legal profession.
(Id.)
There is no distinction
between the deposition notices to trial counsel for either party. Therefore, Respondents'
Second Motion for Sanctions is also illogical and unreasonable in light of Respondents'
attorneys' previous
afguments on the issue of deposition notices to opposing counsel in
this same case.
b.
The past histoiy of the proceeding.
The Board previously found that the
Respondents committed knowing, willful or repeated violations of the Act and associated
regulations and ordered them to pay a civil penalty and the People's reasonable attorneys'
fees and costs. Relative to Respondents' objection to the People's fee petition,
Respondents have, for more than two years now, failed to
hlly address the People's fee
petition. Therefore, there is nothing in the past history of this proceeding that supports
Respondents' Second Motion for Sanctions.
c.
The degree to which the proceeding has been delayed or prejudiced.
The
People have done nothing to delay or prejudice the Respondents in this proceeding, nor
do Respondents make any specific or substantiated allegations of delay or prejudice in
'
their Second Motion for Sanctions. On the other hand, since the Respondents themselves
initiated this dispute over the People's fee petition more than two years ago, Respondents
have delayed entry of a final order by filing at least ten discovery pleadings with the
Board (all of which were denied) without ever attempting to informally resolve
differences with the People before seeking Board intervention. The delay in resolving
this proceeding is a problem solely of the Respondents' own making.
Respondent's abusive discovery motion practice was recently exposed.
Respondents' requested Messrs. Cohen's and Murphy's personal tax returns and internal
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
employee evaluations through discovery on the People's fee petition. On July 6,2005,
after the People properly objected to such requests, the Respondents went so far as to
move to compel the information. Respondents' motion to compel was denied. Very
recently, on November 15,2006, Respondents' own purported expert on fee petitions
testified that she has never requested such information and that it is irrelevant, which
shows that the Respondents improperly requested it in the first place. (See Nov. 12,2005
Order at 8 and Feb. 8,2006 Order at 2-3; see also Nov. 15, 2006 Stonich Dep. Transcr. at
1
15- 12 1 (Exhibit F hereto).)
Respondents' abusive discovery motion practice has even resulted in the entry of
a
protective order against Respondents' attorneys requiring that they relate the measures
taken to resolve the problem with the People's attorneys before the filing of any further
discovery pleadings (see Feb. 8,2006 Order at
2), which Respondents' attorneys have
willfully, knowingly and repeatedly violated. Therefore, this factor also does not support
the imposition of sanctions against the People.
d.
The
existeilce or abse~lce of bad faith on the part of tAe offeterldingparty or
person. Lastly, there is no evidence of any bad faith on the part of the People in this case.
To the contrary, the People have repeatedly attempted to resolve discovery disputes
informally pursuant to Rule
201(k) and without Board intervention. The Respondents
have ignored all such attempts, even after their attorneys were ordered through the
Hearing Officer's February 8,2006 Order to participate in such efforts. As to specific
issue of Respondents' deposition notice to me,
I first notified Respondents' attorneys, in
writing, on December 15,2005 of my objection to being deposed in this proceeding, as
well as the grounds for my objection. Based on Respondents7 attorneys failure to respond
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
to my letter I reasonably assumed the objection resolved. Since then, Respondents'
attorneys have themselves argued against the practice of deposing opposing counsel. (See
Sept. 7,2006 Order at
4.) The only bad faith here is on the part of the Respondents and
their attorneys.
27.
There is nothing in or out of the record relative to the Rule
101.800(c) factors that
supports imposition of sanctions against the People. Respondents' vague, unsubstantiated and
inconsistent argument that they were somehow materially prejudiced by their inability to depose
opposing counsel falls far short of
satisfying any of the Rule 101.800(c) factors.
28.
Respondents' Second Motion for Sanctions does not specifically allege any
conceivable way in which my objection to being deposed could prevent them from properly
preparing for hearing on December 12,2006. If Respondents had a legitimate need for my
deposition, they would have responded to one of my three, past letters on the issue.
29.
For all of these reasons, Respondents' Second Motion for Sanctions should be
denied because it is completely without merit.
The Board Should Enter a Final Order In This Case
30.
On March 20,2006, the People filed a Motion for Final Order in this case. On
September 7,2006, the Board
found'that the People's Motion for Final Order was an attempt to
achieve resolution of a matter that has been pending for a considerable amount of time, but
denied it because the record on the issue of attorney fees and costs remains incomplete and found
that a hearing to resolve these issues is necessary.'' (Sept. 7,2006 Order at 7-8.)
3 1.
The Respondents' and their attorneys' obstructionist and delay tactics are
prejudicing the People's ability to properly prepare for the
~ecember 12,2006 hearing on the fee
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
petition, and are causing the People to incur even further attorney fees and costs in reaching a
final order in this case.
I
32.
The People again respectfully request that the Board enter a final order in this case
due to the Respondents' continued attempt to improperly delay the entry of a final order. The
change in circumstances since the People's first request for a final order on March 20, 2006,
which include the Respondents' filing of two unsupported motions for sanctions and
I
Respondents' own expert recently testifying that Respondents,sought (and even moved to
I
compel) irrelevant information, gives the Board ample basis to issue a final order.
Conclusion
33.
Respondents' Second Motion for Sanctions once again violates the pre-hearing
I
schedule established in the Board's September 7,2006 Order and the requirement that
Respondents' attorneys must relate the measures taken to resolve the problem with the People's
attorneys before the filing another discovery pleading in the Hearing Officer's February 8,2006
Order. The Second Motion for Sanctions should be stricken on these procedural grounds.
34.
Respondents' Second Motion for Sanctions is also unsupported by any facts or
.law and, therefore, is completely without merit. None of the Rule 101.800(c) factors support the
Second Motion for Sanctions, nor did Respondents even address any of these factors. If the
Second Motion for Sanctions is not stricken on procedural grounds, it should be denied on
substantive grounds. Moreover, given Respondents' and their attorneys' tactics, the Board
should enter a final order in this case.
WHEREFORE, the People respectfully request that the Board deny Respondents' Second
Motion for Sanctions and for any further relief that is fair and just under the circumstances,
including entry of a final order resolving this case.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
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
Bureaaorth
188 West Randolph, Suite 2001
Chicago, Illinois 60601
Tel: 312.814.2069
Fax: 312.814.2347
E-Mail:
mpartee@atg.state.il.us
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
December 15,2005
Sent
Via First Class Mail
and Facsimile
(773.792.8358)
Mr. David S. O'Neill, Esq.
5487 North Milwaukee Avenue
Chicago, Illinois 60630-1 249
Re:
People
v. Skokie Vallev 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 1 1 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 #l.
In answer to Jnterroaatow #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
EXHIBIT
500
South Second Street, Springfield, Ill~nois
62706
(217) 782-1090
TTY
(217) 785-2771
Fax:
(2
100
West Randolph Street, Ch~cago, Illlno~s
60601
(312) 814-3000
TTY:
(312) 814-3374
Fax:
(31
1001
East Matn, Carbondale, Ill~no~s
62901 rn (618) 529-6400
TTY
(618) 529-6403
Fax:
(618) 5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 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
infmation 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.
~urthe&nore, 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
andlor 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,
ex.,
Initial Response at
7
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
justifjr 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, NOVEMBER 29, 2006
Letter
to David's. OYNeill
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
11,
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
fkom 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
discovexy on this matter and not allow the People the opportunity to
conduct similar discovery would place the People on
uneaual footing, and would not serve the
best interests of administrative justice."
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 Interro~atories
#5
through #11, ~is~ondents
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.
,
~espondeits' 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,
Jnc., 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 #I1
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, NOVEMBER 29, 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.
Michael C.
Partee
Assistant Attorney General
Environmental Bureau
188' West Randolph Street, Suite 2001
. ,
Chicago, Illinois 60601
Tel: (3
12)8 14-2069
Fax:
(3 12)8 14-2347
E-Mail:
mpartee@atg.state.il.us
cc:
Carol Webb, Hearing Officer
fVia First Class Mail)
Michael B. Jawgiel, Esq.
(Via First Class Mail)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
.
Conf i rmat i on Report
-
Memory Send
Page
:
001
Date
&
Time: Dec-15-05
11:14am
Line 1
:
t3128142347
Mach i ne I D
:
I AGO-ENV I RONMENTAL BUREAU
Job number
:
714
Date
:
Dec-15 1l:llam
To
:
691 7737928358
Number
of pages
:
005
Start time
:
Dec-15 1l:llam
End time
:
Dec-15 ll:14am
/
-
Pares sent
:
005
Status
:
OK
Job number
:
714
***
SENDSUCCESSFUL
- --
***
.-- - .
-
OFFICH: OF TEKE ILLDXQIS
.
ATTORNEY GENE-
.
LisaMadigan
Attorney
Oencral
EWXRONMENTAL ENFORCENIENT/A&SEESTOS LICTIOATION D-SIQN
ATTENTION: Davia S.
O'Neill
.
PHONE:
773-792-1333
773-792-83 58
FlZOM:
Michael C. Parme. Assisrant
At-iomey
Osnd
PNONF,:
3 12-8 14-2069
3 12-814-2347
DATE:
Dec6xnbe.r 15.2005
IYZTIVIBER Om
PAGXCS
:
5 <including
cover)
CO-N'TS:
Please see the
following Ic-r ln the People
v.
SkolcP~ Valley Asphalt.
ft
al.. naatC8r.
NOTTCE
-S
IS
A
Fm
TJ~L~WXS-SION
OF
ATTORNRY
PR-OED
A-/OR
Con-
-0-=ON.
Tr IS
--ED
FOR
THE
USE OF
TELS
--UAL
OR
ENTITY
TO
WWCX
IT
TS
ADDRESSED.
JXJ
YOU LlAVJ3 R4CaLVGD
COlWXXUNXCA'XTON IN--
PLmASl3
NO-
THl3
SRIVDBR AT
THU
-0- -HONE
D-
lLND
DESTlZOY
TnXS
T-S~~L.
LP
YOU
AI(E
NOT
THE -ED
RECD?m.
YOUARl3
FTERJSBY
NO'IsLFIED
=IAT
REWON OR DISSEh4INATXON 0lY
TI.rrS INJ?O-TION
IS
STRICTLY
PROI-ILBITED.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Lisa Madigan
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
September 18,2006
Sent Via First Class Mail
and Facsimile (773.792.8358)
Mr. David S. O'Neill, Esq.
5487 North Milwaukee Avenue
Chicago, Illinois 60630- 1249
Re:
People v. Skokie Vallev Asphalt Co., Inc.,
et al.,
PCB 96-98
Dear Mr. O'Neill:
This ispin response to your letter objecting to my contacting Ms. Deborah Stonich last week. I
also take this opportunity to revisit the remaining discovery disputes in this matter.
I. Stonich Witness Disclosure
On December 5,2005, you disclosed Ms. Stonich as an "opinion witness:' in response to the
People's Interrogatory No. 3, but not a "controlled" opinion witness. Indeed, you only provided her
name and address, which would indicate that I was supposed to contact her. However, in an
abundance of caution, I then wrote you pursuant to Rule
201(k) on December 15,2005 to specifically
request, among a whole host of information, Ms. Stonich's expert report. You never responded to my
December 15,2006 letter. Additionally, when I spoke with Ms. Stonich last week, she did not voice
any objection to my contacting her. This all supports the fact that Ms. Stonich was not disclosed as a
controlled witness and that there is nothing improper or prohibited about my contacting her.
If you continue to disagree with
my position, I expect both a telephone call from you and an
amended answer to the People's Interrogatory No. 3 and Document Request No.
7 before September
21,2006 pursuant to the Board's September 7,2006 Order. Given the tight schedule within which we
are required to complete depositions (between November 1 and December 1,
2006)' I will be issuing
either a deposition subpoena or deposition notice to Ms. Stonich by October 1, 2006, depending upon
whether and how you amend the Respondents' answer to the People's Interrogatory No. 3 and
Document Request No.
7.
11.
Other Depositions
Per my May 24,2005 Rule 201 (k) letter, you will need to issue a deposition subpoena to
former
AAG Bernard Murphy if you intend to depose him. I am willing to assist you in-scheduling
-
his deposition, but he is no- longer a State employee and I cannot produce him.
-
500 South Second Street, Springfield, Illinois 62706
(217) 782-1090
TTY:
(217) 785-2771
Fax: (21
100
West Randolph Street, Chicago, Illinois 60601
(312) 814-3000
TI?':
(312) 814-3374
Fax: (312
1001 East Main, Carbondale, Illinois 62901
(618) 529-6400
TTY:
(618) 529-6403
Fax: (618) 52
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Letter
to
David
S.
O'Neill
September
18,2006
Page
2
If you need to depose AAG Mitchell Cohen, at this point; he is available for a deposition on
November
6,8,9, 13, 14,20-22,28 or 30,2006.
Per my December 15,2005 Rule
201(k) letter, your listing me as a witness is improper for the
reasons stated in that letter and I do not intend to submit to a deposition or to
testifjr at a hearing.
Because I never heard anything further from you on this and because
I have not amended the People's
fee petition to include my own time, I assume that this objection is resolved.
111.
Additional, Remaining Written Discoverv Disputes
Finally, on September 7,2006, the Board ruled that "although the respondents have raised
arguments concerning their attorney fees and costs, the Board finds those arguments irrelevant as
well" and
'f[t]he arrangement made by the respondents and their attorneys regarding representation
does not impact the Board's decision on the appropriateness of the People's fee petition." (Sept. 7,
2006 Order at 5.) This resolves the State's. concern regarding the Respondents' arguments as to their
own attorneys' fees and
costs in relation to the ~eo~le's
attorneys' fees and costs. Therefore, as far as
the People are concerned, the only remaining written discovery disputes are as follows:
C
People's 1nte&og;tow No. 1
:
Per my December l5',2005 Rule 20
l(k)
letter, Skokie
Valley must answer Interrogatory No. 1 and certify its answers
bv September 21.2006
pursuant
io the Board's September 7,2006 Order; and
People's Interronatb No. 3 and Document Reauest No. 7: Per my.December 15,
2005 Rule
201(k) letter (and as discussed above), the Respondents must amend their
answers to Interrogatory No. 3 and Document Request No.
7 (with respect to witness
disclosures)
by September 21.2006 pursuant to the Board's. September 7,2006 Order.
Michael C.
Partee
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
Tel: (3
12)8 14-2069
Fax: (3
12)8 14-2347
E-Mail:
mpartee6Jatg.state.il.u~
cc:
Carol Webb, Hearing Officer
(Yia First Class Mail)
Michael B. Jawbiel, Esq. f
Via First Class Mail)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Confirmation Report-Memory
Send
Page
:
001
Date
&
Time: Sep-18-06
01 :24pm
Line1
:+3128142347
Machine I D
:
I AGO-ENV I RONMENTAL BUREAU
Job number
:
527
Date
To
Number
of pages
Start time
End time
Pages sent
Status
-.
Job number
:
527
***
SENDSUCCESSFUL
. -.
***
OFFICE OF TE3CEI ICLLXN-OIS
ATTORNEYGENERAL
Lisa
MaBi-
A-moy
-oral
&NVI[RON~VLENTAL
ENFORCEIVXENT/ASBESTOS
LlTXQATION
DMSLON
-OM:
Adicbsal C.
Pmrrae. bsietant
Attornay
Qesleral
312-814-2069
.
FAX:
'
3 12-8
14-2347
DATE:
Septombcr
18.2006
COlVXWEENTS:
PIense
see the
following
Rub
201-
letter regardhag dfscovssy &n
peoule
v,
SlcoWe Vorllav
Ammhulc,
er al,
-
19
A
Fa
raAN-SSION
OF
A-Y
NOTICE
PWVILEOSD AND/OR
WENT-
INFORMATION.
I-r
IS
--
FOR
-
US=
OF
~WB
n-a'~mu~~
OR ENIIIY TO
-CW
n- IS
ADDRHSSED.
1P
YOU
HAVE
RBCnrvaO
-S
CO-CATTON
M
ERROR.
P-IB
NOTIFY
TFT6
S-PR
ATTHE
-0-
ISLBPWONE NUNIBERA-ND
DgBTRoY
TITIS
TRANShdllTAL.
IF
YOU
ARE
OR
NO%"
DrSSEhUNATION
T?3E
-l3'0
OF
-9
RECIPIENT.
MORMATION
YCIU
ARE
IS
STRICTLY
-Y
PR0-m.
NOTIFIED
TJXA'T
-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
RECElVED
CLERK'S
OFFICE
ocr
2
5
2006
BEFORE THE ILLINOIS POLLUTION CONTROL BoARDs7-~~€
OF
l~~,,,,~,~
Pol'uf
ion coflt,/
Board
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
1
1
PCB
96-98
1
v.
1
Enforcement
1
1
SKOKIE VALLEY ASPHALT, CO., INC.,
)
EDWIN L. FREDERICK, JR., individually and as
)
owner and President of Skokie Valley Asphalt
)
Co., Inc., and RICHARD J. FREDERICK,
1
individually and as owner and Vice President of
)
Skokie Valley Asphalt Co., Inc.,
1
Respondent
)
NOTICE OF FILING
PLEASE
TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board the RESPONDENTS' SECOND DEPOSITION NOTICE TO COMPLAINANT
REGARDING COMPLAINANT'S FEE PETITION,
a copy of which is hereby served upon you.
October 25,2006
David
S. Oweill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630- 1249
(773) 792-1333
EXHIBIT
El
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT 2
5
2006
PEOPLE OF THE STATE OF ILLINOIS,
1
STATE
OF
fLLINOIS
Poilutian
Control
Board
Complainant,
)
1
PCB 96-98
1
v.
)
Enforcement
1
1
SKOKIE VALLEY ASPHALT, CO.,
INC.,
)
EDWIN L. FREDERICK, JR., individually and as
)
owner and President of Skokie Valley Asphalt
)
Co., Inc., and RICHARD J. FREDERICK,
1
individually and as owner and Vice President of
)
Skokie Valley Asphalt Co., Inc.,
)
Respondents.
1
RESPONDENTS' SECOND DEPOSITION NOTICE TO
COMPLAINANT REGARDING COMPLAINANT'S FEE PETITION
Please take notice that counsel for the Respondents shall, pursuant to Illinois Supreme
Court Rule 206 and Illinois Pollution Control
Board Rule 101.622, take the discovery deposition
of Mitchell Cohen, Esq. commencing at
2:00 p.m. on Tuesday November 14,2006 at 5487 N.
Milwaukee Avenue, Chicago, Illinois. Mr. Cohen is instructed to bring with him documents
relevant to
the matter under consideration.
David
S. O'Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1 249
(773) 792-1333
Respectfully submitted,
&..,'A O?J
David S.
eill
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached RESPONDENTS' SECOND
DEPOSITION NOTICE TO COMPLAINANT
REGARDING COMPLAINANT'S FEE
PETITION by hand delivery on October 25,2006, upon the folIowing
party:
Mitchell Cohen, Esq
and
Mr. Michael Partee, Esq.
Environmental Bureau
Assistant Attorney General
Illinois Attorney General's
Ofice
1 88 W. Randolph,
20th
Floor
Chicago, IL 60601
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
z,q
''
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT 1 8 2006
PEOPLE OF THE STATE OF ILLNOIS,
1
Complainant,
1
1
PCB 96-98
STATE OF 1LLINOIS
Pollution Control Board
SKOKIE VALLEY
ASPHALT,
CO.,
INC.,
EDWTN L. FREDERICK, JR., individually and as
owner and President of Skokie Valley Asphalt
Co., Inc., and RICHARD J. FREDERICK,
individually and as owner and Vice President of
Skokie Valley
Asphalt Co., Inc.,
Respondent
1
) .
Enforcement
)
1
1
)
)
1
1
1
1
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the
Office of the Clerk of the Pollution
Control Board the RESPONDENTS' DEPOSITION NOTICE TO
COMPLATNANT
REGARDING COMPLAINANT'S FEE PETITION, a copy of which is hereby served upon you.
,5/$&+/.s/
David
.
O'Neill,,,
I
October 18,2006
David S. O'Neill, Attorney at Law
5487
N. Milwaukee Avenue
Chicago;IL 60630-1
249
(773) 792-1333
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
BEFOE THE ILLNOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
1
Complainant,
)
OCT
1 8
2006
PCB 96-98
STATE
OF
ILLINOIS
-
Pollution
Control Board
v.
Enforcement
)
SKOKIE VALLEY ASPHALT, CO., INC.,
EDWM L. FREDERICK, JR, individually and as
)
owner
and President of Skokie Valley Asphalt
)
Co., Inc., and RICHARD J. FREDERICK,
1
individually
and
as owner and Vice President of
)
Skokie Valley Asphalt Co., Inc.,
)
Respondents
RESPONDENTS' DEPOSITION NOTICE TO COMPLAINANT REGARDING
COMPLAINANT'S FEE PETITION
Please take notice
that counsel for the Respondents shall, pursuant to Illinois Supreme
Court Rule 206
and Illinois Pollution Control Board Rule 101.622, take the discovery deposition
of Michael
C. Partee,
esq.
commencing at 200 p.m. on Friday November 10,2006 at 5487 N.
Milwaukee Avenue, Chicago, Illinois. Mr. Partee is instructed to
bring
with him documents
relevant
to the matter
under
consideration.
- -
Respectfully submitted,
David
S.
O'Neill, Attorney at Law
5487
N. Milwaukee Avenue
Chicago, Illinois 60630-1 249
(773)
792-1
333
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
CERTIFICATE OF SERVlCE
I, the undersigned, certify that
I
have served the attached RESPONDENTS'
DEPOSITION NOTICE TO COMPLAINANT REGARDING COMPLAINANT'S FEE
PETlTION by hand delivery on October 18,2006, upon the following party:
Mitchell Cohen, Esq
and
Mr. Michael Partee, Esq.
Environmental Bureau
Assistant Attorney General
Illinois Attorney General's
Office
188 W. Randolph, 20th Floor
Chicago,
IL 60601
NOTARY SEAL
SUBSCRIBED
AND SWORN TO ME this
fkd,
RITA LOMBARD1
NOTARY PUBLIC
-
STATE OF ILLINOIS
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
RECEIVED
CLERK'S
OFFICE
OCT
1
8 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Control Board
PEOPLE OF THE STATE OF ILLTNOIS,
1
Complainant,
1
1
PCB
96-98
1
v.
Enforcement
)
1
SKOKIE VALLEY ASPHALT, CO., INC.,
EDWIN L. FREDERICK, JR., individually and as
)
owner and President of Skokie Valley Asphalt
)
Co., Inc., and RICHARD J. FREDERICK,
individually and
as owner and Vice President of
)
Skokie Valley Asphalt Co.,
Inc.,
1
Respondent
1
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board the RESPONDENTS' SUBPOENA FOR DEPOSITION,
a copy of which is
hereby served upon you.
'.
f
1
>,-/A
(
4y"/'
/
~ay6Ts. O'Neill
Q
EXHIBIT
October 18,2006
David S. O'Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL
60630- 1249
(773) 792-1333
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~
~
~
~
~
x
~
~
D
PEOPLE OF THE STATE OF ILLINOIS,
)
OCT 1 8 2006
Complainant,
)
STATE OF ILLINOIS
1
PCB 96-98
Pollution Control Board
)
v.
)
Enforcement
1
1
SKOKIE VALLEY ASPHALT, CO., MC.,
1
EDWIN L. FREDERICK, JR., individually and as
)
owner and President of Skokie Valley Asphalt
)
Co., Inc., and RICHARD J. FREDERICK,
1
individually and as owner and Vice President of
)
Skokie Valley Asphalt Co., Inc.,
1
Respondents
1
SUBPOENA FOR DEPOSITION
Pursuant to Section
5(e) of the Environmental Protection Act (41 5 JLCS
5/5(e)
(2002))
and
35
111.
Adm. Code 101, Subpart F, you are ordered to attend and give testimony at the
hearingldeposition in the above captioned matter at 5487 N. Milwaukee Avenue, Chicago,
Illinois at 2:30 p.m. on November 8,2006.
Your are ordered to
bring with you documents relevant to the matter under consideration.
David
S. O'Neill, Attorney at
Law
5487 N. Milwaukee Avenue
Cl~icago, Illinois 60630-1 249
(773) 792-1333
-- -
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Failure to comply with this subpoena will subject you to sanctions under 35 111.
Adm.
code 101.622(g).and 101 802.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
CERTIFICATE OF SERVICE
I, the undersigned, certify that 1 have served the attached RESPONDENTS' SUBPOENA
FOR DEPOSITION by hand delivery on
October 18,2006,
upon
the following
party:
Mitchell Cohen, Esq
and
Mr. Michael Partee, Esq.
.
Environmental
Bureau
Assistant Attorney General
Illinois Attorney General's
Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
NOTARY
SEAL
SUBSCRIBED
AND
SWORN
TO
ME
this
! &
day of
a+&,
,20
o
6
Q&d$&a
Notary Public
- - - - - . - . - - - - - - -
OFFICIAL
SW
RITA LOMBARD1
NOTARY PUBLIC
-
STATE
OF
ILL.INOI!..
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
October 23,2006
Sent
Via First Class Mail
and Facsimile (773.792.8358)
Mr. David
S.
OYNeill, Esq.
5487 North Milwaukee Avenue
Chicago, Illinois 60630- 1249
Re:
People
v. Skokie Vallev Asphalt Co., Inc.,
et al.,
PCB 96-98
Dear Mr. OYNeill:
I write you
-
for a third time
-
pursuant to Rule 201(k) regarding your attempt to depose
me in this case.
On December 15,2005,
I wrote you pursuant to Rule 201(k) to object to your taking my
deposition in this case. (See attached.) At that time,
I advised that I will be representing the
People at the hearing on our fee petition, and that none of my fees and costs are included in the
fee petition.
I advised that I will not be testifying at the hearing and specifically asked you to
contact me within 14 days (or by December 29,2005) if you disagreed.
I further advised that, if I
did not hear from you within 14 days, I would reasonably assume that you agreed with our
position. You never responded to my December 15,2005 letter.
On September 18,2006, I again wrote you pursuant to Rule
201(k), to advise that your
listing me as a witness was improper for the reasons stated in that letter and that
I did not intend
to submit to a deposition or to testify at a hearing. (See attached.) I further advised that, because
I had never heard anything further from you on this and because
I had not amended the People's
fee petition to include my own time, I assumed that this potential dispute was resolved. You also
never responded to my September 18,2006 letter.
Once again, the deposition notice that you issued to me is improper and I object to it.
Given your extreme bad faith, 1 would be justified in allowing you and your court reporter to sit
in some conference room on November 10,2006, for as long as it takes you to realize that I will
not be showing up for my deposition. However, I cannot bring myself to stoop to your level.
Therefore, I
am giving you the courtesy of once again advising you that I object to your taking
my deposition and
I will not be attending my deposition on November 10,2006.
EXHIBIT
500
South Second Street, Springfield, Illinois
62706
(217) 782-1090
TTY:
(217) 785-2771
Fax:
(217
'
100
1001
West
East
Randolph
Ma~n,
Street,
Carbondale,
Chlcago,
Illinois
Illinois
62901
60601
(618)
(312)
529-6400
814-3000
TTY:
TTY:
(618)
(312)
529-6403
814-3374
Fax:
Fax:
(618)
(312)
529-6416
El
*--
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Letter
to
David
S.
O'Neill
October 23,2006
Page
2
I assume your contacting me pursuant to Rule 201 (k) to attempt to informally resolve this
dispute is out of the question, but if you have a change of heart,
I welcome a telephone call,
letter, e-mail or whatever to discuss it.
Michael
C. Partee
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 6060
1
Tel:
(3
12)8 14-2069
Fax:
(3
12)8
14-2347
E-Mail:
mpartee@atg.state.il.us
cc:
Carol Webb, Hearing Officer
(Via First Class Mail)
Michael
B.
Jawbiel, Esq.
flia First Class Mail)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Confirmation Report-Memory Send
Page
: 001
Date
& Time: Oct-23-06
10:41am
Line 1
: t3128142347
Mach i ne I D : I AGO-ENV I RONMENTAL BUREAU
Job number
:
821
Date
:
Oct-23 10:35am
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OFWICE
om
T'IC~~CE ILLINOIS
ATTORNEY GEN3CIRAL
Lisa Madigan
AROm8Y
CjFslld
E-ONnKSXWTAL
ENFORCE;~NT/ASBESTOS
LXTXOATION DMSION
ATTENTION: David
S.
O*Nsill
PHONE:
773-792-1 333
773-792-8358
=OM:
Michaul
C.
Pmrtsa. Assistanr Atcomcy
Gcnd
PHONE:
3 12-814-2069
3
12-8
14-2347
-ATE:
Oorobor
23.2006
NUlVLSER
OF
PAGES
:
9
<including
cover)
COlWXWCENTSr
Please see the
followfng
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Rl3TRNTlOnT OR DISSHMNATLON OF THJS LNFO-TLON
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STRlCTLY PKOHIEmD.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
STATE OF ILLINOIS
.COUNTY OF C
0 0 K
1
)
ss.
1
BEFORE THE POLLUTION CONTROL BOARD
STATE OF ILLINOIS
PEOPLE OF THE STATE OF
ILLINOIS,
Plaintiff,
VS.
SKOKIE VALLEY ASPHALT,
CO.,
INC.,
et al.,
Defendants.
)
1
)
1
1
)
NO.
PCB 96-98
1
1
1
)
1
This is the expert deposition of
DEBORAH STONICH, called by the Pla?ntiff
for
examination, taken before Megan M. Reed, a
Notary Public within and for the County of
Cook, State of Illinois, and a Certified
Shorthand Reporter of said state, at Suite
2000, 188 West Randolph Street, Chicago,
Illinois,
on the 15th, day of November A.D.
2006,
at 1:00 o'clock p.m.
TOOMEY REPORTING (312) 853-0648
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
APPEARANCES:
______-----
THE .LAW OFFICES OF:
ILLINOIS ATTORNEY GENERAL
BY: MR. MICHAEL C.
PARTEE
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
Appeared on behalf of the
Plaintiff;
THE LAW OFFICES OF:
DAVID
S. O'NEILL
BY: MR. DAVID
S. O'NEILL
5487 North Milwaukee Avenue
Chicago, Illinois 60630
Appeared on behalf of the
Defendants.
TOOMEY REPORTING (312) 853-0648
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
FURTHER EXAMINATION
BY MR.
PARTEE:
Ms. Stonich, you said that you did
not receive employment records from the
Assistant Attorney Generals that worked on this
case; is that correct?
Correct.
Have you ever been given the
employment records of an attorney that you
retained?
Have you ever been given the
opportunity to review employment records for an
attorney that worked for CNA?
Other than a
resum&, no.
Have you ever requested employment
records for an attorney
worklng for CNA in
order to approve their fees and costs?
You were also asked whether you were
given performance reviews and employee
evaluations in order to prepare your expert
reported; and I believe you said no, correct?
Yes, that's correct.
TOOMEY REPORTING (312) 853-0648
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Q. Have you ever been given performance
reviews or employee evaluations for an attorney
that you retained?
A Yes.
Q Who?
A I can't state with any specificity,
but
I can state that we do evaluate certain
members on our panel and review those
evaluations in order
to determine if they
should remain on panel.
Q So these are your own evaluations?
A Evaluations from colleagues at CNA.
Q These are CNA evaluations?
A Yes.
Q These aren't internal law firm
evaluations?
A No.
Q Lastly, you were asked whether you
were given federal and state income tax returns
for the Assistant Attorneys General that worked
on this case. Were you asked that question?
A Yes.
Q
Is it fair to say that you did not
receive federal and state income tax returns
TOOMEY REPORTING (312) 853-0648
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
for Assistant Attorneys General working on this
That is correct.
Have you ever been given federal and
state income tax returns for an attorney that
you retained?
Have you ever been given such tax
documentation for an attorney that was retained
Would you require that sort of
documentation to approve fees and costs?
Then how would you have been
prejudiced in preparing your expert report by
not having such documentation?
In this case, I can't speculate
without seeing the documents. There may have
been some information on those documents that
would have related in terms of the hours spent
working on the case; but that is only
speculation.
Not to mince words, you said you were
TOOMEY REPORTING (312) 853-0648
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
prejudiced. That was your testimony. Is it
now your testimony that you may have been
prejudiced? You
are0 not sure?
A
If the documents were relevant and
had some bearing to my analysis
on what was
spent on fees and costs, then yes, I would have
been prejudiced. If they don't, then
I would
not have been prejudiced.
Q
You have never deemed such documents
relevant enough to request them before
approving fees and costs in the past, correct?
A I have never requested such documents
in other matters, no.
Q
Finally, Mr. O'Ne'ill either alluded
to or specifically
asKed about the Assistant
Attorneys General take-home pay in this case.
Why would you need to know our take-home pay?
A
That would go to the. issue as to what
the hourly billing rate was. If you have some
statute or regulation, as I said before, or
policy or guideline supporting an hourly rate,
22
that would be justification for that attorney
23
charging the hourly rate. If there is no
24
precedent for that, it would seem to me that
TOOMEY REPORTING (312) 853-0648
'
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
the attorney can only be reimbursed for the
compensation he is receiving.
In other words,
if he is spending a certain amount of time on
the case and is being paid a certain amount for
those hours, that's what he should be
reimbursed. Otherwise, the Attorney General's
Office,
if,it is charging a far higher amount
without support for that amount, is basically
obtaining a windfall.
Q In the absence of any regulation or
statute, as you say, does an attorney's
take-home pay equal his hourly rate?
A I think that would be a matter of
opinion. Some people would say possibly that
it would be. Other people would say no because
the,re are deductions taken for health insurance
as well as 401K money and other employee
benefits.
Q
What would you say?
A Personally, I would make an allowance
for those deductions in that I would not
--
I
would calculate the attorney's hourly rate
based upon his salary broken down
--
his annual
salary broken down into the number of hours
TOOMEY REPORTING (312) 853-0648
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
that he is to work during a workweek.
Q Is that what you do at CNA?
A I am a little unclear on the question
because we are dealing with attorneys working
for firms that do have an established billing
rate.
Q Let's talk about those for a second.
You mentioned a low end
for that established
billing rate of
abbut $150 earlier, correct?
A In some cases, it is could be lower.
When I refer to the $150, I believe we were
talking about Piper
--
the Piper Rudnick firm,
and that was based upon my personal experience.
Q Let's use that example, $150, for
--
$150 an hour for a Piper Rudnick attorney.
Does a Piper Rudnick attorney actually take
home $150 an hour?
A In some cases, they may take home
quite
a bit more than that per hour.
Q What would someone who actually takes
home $150 or more per hour, what would their
billing rate be?
A That I do not know, but it would be
more than $150 possibly.
TOOMEY REPORTING (312) 853-0648
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
Q
Why?
A Just based upon the fact that higher
paid attorney probably charges more per hour.
(1
Is it fair to say that Piper's
attorneys have to pay rent?
A Yes.
(2
,And there is healthcare costs?
A Yes.
And secretarial costs?
Yes.
Cleaning crew costs?
Yes.
What other types of overhead costs
can you'think of that would be billed into an
hourl'y billing rate?
A Utility costs, for example, staff
costs,
LexisNexis costs, costs of maintaining a
legal library are just a few examples.
Q
Would %he Attorney General have the
same sort of overhead costs?
A' Yes, it would.'
MR. PARTEE: I have no further
questions.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006
CERTIFICATE OF SERVICE
It is hereby certified that true and correct copies of the
Notice of Filing
and
Complainant's Response to Respondents' Second Motion for Sanctions,
were sent by First
Class Mail, postage prepaid, to the persons listed on the Notice of Filing on November 29,2006.
BY:
MICHAEL C. PARTEE
It is hereby certified that the above documents were electronically filed with the
following person on November 29,2006:
Pollution Control Board, Attn: Clerk
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
BY:
-4-
MICHAEL C. PARTEE
C
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 29, 2006