BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE
TAKE NOTICE that on this 3
rd
day of December, 2007, Leo P.
Dombrowski, one of the attorneys for Respondent, United City of Yorkville, filed via
electronic filing the attached
United City of Yorkville's Reply in Support of Motion
to Compel Return of Document Inadvertently Disclosed by Respondent,
with the
Clerk
of the Illinois Pollution Control Board, a copy of which is herewith served upon
you.
Respectfully submitted,
UNITED CITY OF YORKVILLE
By:
/s/ Leo P. Dombrowski
One
of their Attorneys
Anthony G. Hopp
Thomas
1.
Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@w'ildman.com
dombrowski@!wildman.com
Electronic Filing: Received, Clerk's Office, December 3, 2007
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
REPLY IN SUPPORT OF MOTION TO COMPEL RETURN
OF DOCUMENT INADVERTENTLY DISCLOSED BY RESPONDENT
Yorkville, by its undersigned attorneys, submits this Reply in support of its Motion to
Compel.
I.
BY NOT REBUTTING RELEVANT CASE LAW AND THE OLSON
AFFIDAVIT,
FOX MORAINE CONCEDES THAT THE INVOICE IS
PRIVILEGED AND MUST BE RETURNED.
Fox Moraine does not contest the Appellate Court's holding in
Murry
that a party "must
knowingly waive" the attorney-client privilege.
People v. Murry,
305 Ill. App. 3d 311, 316 (2
nd
Dist. 1999). Nor does Fox Moraine contend that Yorkville has failed to meet the balancing test
set forth in
Dalen v. Ozite Corp.,
230 Ill. App. 3d 18 (2
nd
Dist. 1992).
Rather, Fox Moraine tries
to bypass the cases' significance simply by asserting that they
are "so fact specific" as to have no relevance here. Resp.
~
5. The facts of any case will
necessarily be different from the facts
of any other, and, by not rebutting the cases, Fox Moraine
effectively concedes that the Invoice is covered by the attorney-client privilege and must be
returned.
l
I
Fox Moraine's contention (Resp.
~
2) that the Board or the Hearing Officer lacks the authority to order
return or destruction
of the Invoice is likewise unavailing, as Board rules provide that, "All discovery
disputes will be handled by the assigned hearing officer."
35 Ill. Admin. Code § 101.616.
Electronic Filing: Received, Clerk's Office, December 3, 2007
Fox Moraine also does not rebut the facts contained in the Olson affidavit establishing
that
Mr. Olson had no authority to send the Invoice to Fox Moraine and that he did not intend to
waive any privilege or protection that may attach to the Invoice. Olson Affidavit
~~
6-7. Facts
contained in an affidavit in support
of a motion "which are not contradicted by counteraffidavit
are admitted and must be taken as true for purposes
of the motion."
Purtill
v.
Hess,
111 Ill. 2d
229,241 (l986);
see also Milynarski
v.
Rush-Presbyterian St. Luke's Medical Ctr.,
213 Ill. App.
3d 427, 431-32 (lst Dist. 1991) (where, in discovery dispute, court took as true facts contained in
unrebutted
affidavit)? By acknowledging that Mr. Olson may not have understood any possible
consequences (Resp.
~
4), Fox Moraine concedes that Yorkville could not have knowingly waive
any privilege.
Fox Moraine further contends that Yorkville did not point to specific parts of the Invoice
to show why it is privileged. While not wanting to be accused
of waiving privilege by quoting
specific entries in the Invoice, Yorkville noted that a review
of the five-page Invoice would
"reveal the substance and nature of work conducted in preparing legal advice for Yorkville."
Motion
~
14. As a few examples of legal advice provided and matters discussed between
attorney and client, Yorkville directs the Hearing Officer to the time entries of April 30, May 9,
May 14, May
17 and May 21. These entries show the substance of confidential attorney-client
discussions and are subject to the attorney client privilege.
See People ex
reI. Ulrich
v.
Stuckel,
294 Ill. App. 3d 193,
201 (l st Dist. 1997) (bills containing explanations for legal fees that reveal
the substance
of confidential attorney-client communications are protected by the attorney-client
privilege);
In re Grand Jury Witness,
695 F.2d 359, 362 (9th Cir. 1982) (attorney-client privilege
2
Fox Moraine is correct that it is entitled to review some proof of Yorkville's fees and expenses before
paying them (Resp.
~
3), but nowhere does Fox Moraine contend, nor could it, that it is entitled to receive
an unredacted invoice for legal services.
2
Electronic Filing: Received, Clerk's Office, December 3, 2007
protects attorney's bills, ledgers, statements, time records and the like which reveal the nature of
services provided).
Fox Moraine also appears to contend that, for a communication to be privileged, it must
reveal "the client's (City's)" thoughts or communications, and not the attorney's. Resp.
~
6. Fox
Moraine cites no authority in support of this novel idea, as there is none.
See, e.g., Midwesco-
Paschen Joint Venture
v.
IMO Indus., Inc.,
265 Ill. App. 3d 654, 660
(l
st Dist. 1994) ("we reject
Midwesco's argument that only communications from a client to an attorney are covered by the
attorney-client privilege and not communications from the attorney to the client.");
see also
S.
Ct. Rule 201(b)(2) (privileged matters, "including communications
between
a party or his agent
and the attorney for the party" are not discoverable (emphasis added».
Finally, Fox Moraine argues that no attorney-client relationship existed between
Yorkville and the firm
of Wildman Harrold. Resp.
~
8.
It
relies on minutes of a City Council
meeting showing that Wildman lawyer Michael Roth was appointed as Interim City Attorney.
Id.
Roth's individual retention and appointment as City Attorney does not somehow negate
Yorkville's additional retention
of the firm of Wildman Harrold as counsel in the landfill matter,
and Fox Moraine does not point to any authority that special approval was needed before an
attorney-client relationship could be formed between Yorkville and Wildman Harrold. The
Invoice and its entries demonstrate that an attorney-client relationship was created.
3
II.
THE INVOICE REFLECTS YORKVILLE'S ATTORNEYS' THEORIES AND
MENTAL IMPRESSIONS AND IS THEREFORE ALSO PROTECTED BY
THE WORK PRODUCT DOCTRINE.
There is likewise no merit to Fox Moraine's suggestion that the Invoice does not
constitute attorney work product. Resp.
~
7. In its Motion to Compel, Yorkville pointed out
3 The first page of the Invoice notes that it is for legal services rendered to Yorkville "In the Matter of:
Local Siting Engagement." This is separate from Mr. Roth's retention and appointment as Interim City
Attorney.
3
Electronic Filing: Received, Clerk's Office, December 3, 2007
that, pnor to Yorkville's resolution of Fox Moraine's landfill application, it was unknown
whether an appeal would be filed. Motion
~
16. As Fox Moraine and its attorneys know,
appeals are common in landfill siting matters either by the applicant or by third-party objectors,
no matter what the decision of the local siting authority.
See
107.200(a
&
b) (siting applicants
may appeal denial
of application; third-party objectors may appeal approval of application).
Attorneys need not be able to predict the future to advise their clients in landfill siting
cases
as to legal principles and doctrines-such as various standards of review, scope of
discovery, and compilation and use of the record-that may apply if an appeal is indeed filed.
As a few examples of matters regarding work product issues, Yorkville directs the Hearing
Officer
to the time entries of May 11, May 13-16, and May 20. The Invoice touches on the
theories and mental impressions
of Yorkville's attorneys should an appeal be filed.
It
is therefore
also protected under the work product doctrine.
4
Fox Moraine intimates that the Invoice may reflect "evidence of prejudgment" by
Yorkville and therefore should not be returned. Resp.
~
7. If the Invoice did, Fox Moraine
would certainly have specifically raised the issue in its Response. After all, Fox Moraine has had
the Invoice for several weeks and has had ample time
to review it. The fact that Fox Moraine did
not provide any support for its claim
of prejudgment shows that the claim is an empty one.
5
4
The work-product doctrine provides broader protection than the attorney-client privilege, so that a
document may be protected under the work-product doctrine, while not being protected by the attorney-
client privilege.
Waste Management, Inc.
v.
International Surplus Lines Ins. Co.,
144
III.
2d 178, 196 (III.
1991). Additionally, "they are separate and distinct protections and waiver
of one does not serve as
waiver
of the otheL"
Id.
at 189.
5 The "at issue" exception does not apply here, and
Waste Management
shows why it does not. There, an
insurer and its insured were involved
in a coverage dispute, and the cOUli held that where "an attorney
represents the common interests
of two or more clients whose relationship subsequently becomes adverse,
and,
in a subsequent action the work product of the attorney is at issue, Rule 201 (b)(2) is not available to
bar discovery by one
of the original parties."
Id.
at 200. There is no common representation here, nor
does this case involve any coverage or similar type oflitigation where the exception might apply.
4
Electronic Filing: Received, Clerk's Office, December 3, 2007
III.
CONCLUSION
The Hearing Officer should grant Yorkville's motion and order the return or destruction
of all physical and electronic copies of the Invoice in the possession of the Fox Moraine and all
recipients.
Respectfully submitted,
UNITED CITY OF YORKVILLE, CITY
COUNCIL
By:
/s/ Leo
P. Dombrowski
One of their Attorneys
Dated: December 3, 2007
Anthony
G.
Hopp
Thomas
I.
Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN & DIXON
LLP
225 West Wacker Drive
Chicago, Illinois 60606
Telephone:
(312) 201-2000
Facsimile:
(312) 201-2555
hopp@v\'ildman.cmT1
matyas@wildman.com
dombrows].ci@;\vildman.com
5
Electronic Filing: Received, Clerk's Office, December 3, 2007
CERTIFICATE OF SERVICE
I,
Susan Hardt, a non-attorney, certify that I served a copy of the foregoing
Notice
of Filing
and United City
of Yorkville's
Reply in Support
of Motion
to Compel
Return
of Document Inadvertently Disclosed by Respondent,
to the Hearing Officer
and all Counsel
of Record listed on the attached Service list, by sending it via Electronic
Mail on December 3, 2007, before 10:00 a.m.
/s/ Susan Hardt
[x]
Under penalties as provided
by
law pursuant to ILL. REV. STAT.
CHAP. I
10 - SEC 1-109, 1certify that the statements set forth
herein are true and correct.
This Filing is Submitted on 100% Post-consumer Recycled Paper
Electronic Filing: Received, Clerk's Office, December 3, 2007
Fox Moraine, LLC
v.
United City ofYorkville
PCB No. 07-146
SERVICE LIST
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100
W. Randolph Street
Chicago, Illinois 60601
hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
Charles Helston
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
chelsten@hinshawlaw.com
Michael
S. Blazer
Jeep
&
Blazer, LLC
24 N. Hillside Avenue, Suite A
Hillside,
IL 60162
mblazer@enviroatty.com
Eric
C. Weiss
Kendall County State'sAttorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
eweis@co.kendall.il.us
James.
H. Kippen, II
Walsh, Knippen, Knight
&
Pollack, Chartered
601 W. Liberty Dr.
Wheaton,
IL 60187-4940
jim@wkkpla\v.com
This Filing is Submitted on 100% Post-consumer Recycled Paper
Electronic Filing: Received, Clerk's Office, December 3, 2007
James. B. Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison,
&
Ruttle
2455 Glenwood Avenue
Joliet, Illinois 60435
jim@mckeownlawfirm.com
This Filing is Submitted on 100% Post-consumer Recycled Paper
Electronic Filing: Received, Clerk's Office, December 3, 2007
