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I.

ARGUMENT

In his Motion For PO, Mr. Oberhelman asks this Court to enter an Order requiring
Steves attorneys to move the location of his deposition from Edward F. Sutkowskis office,
as noticed in the Subpoena served on April 9, 2015, to an alternative location. (Motion For
PO at 9). The sole reason proffered for the requested change in location is an alleged
personal animosity, presumably between Mr. Oberhelman and Mr. Sutkowski, which
would cause unreasonable annoyance, harassment, disadvantage and oppression to the
witness. (Id. at 3). The Motion For PO should be denied for at least three reasons.
First, Mr. Sutkowski is unaware of the factual basis for this alleged personal
animosity. The Motion For PO provides no details to support these allegations, and Mr.
Oberhelman verified none of the statements. Mr. Sutkowski will appear at the April 30,
2015 hearing to refute these false allegations and to address any factual basis that Mr.
Oberhelman may present at that time to support his otherwise baseless claim.
Second, even if there were personal animosity, there is no basis for Mr. Oberhelmans
allegations that Mr. Sutkowskis office presents a hostile environment or that the taking of
Mr. Oberhelmans deposition at Mr. Sutkowskis office would result in unreasonable
annoyance, harassment, disadvantage and oppression. To the extent Mr. Oberhelman has
an issue with Mr. Sutkowski, that issue is not solved by moving the location of the
deposition. Mr. Sutkowski, as one of Steves lawyers, is entitled to be present at Mr.
Oberhelmans deposition wherever it takes place. Additionally, Mr. Sutkowski may be the
attorney conducting the deposition. Under either scenario, moving the location of the
deposition would not solve Mr. Oberhelmans alleged issue with Mr. Sutkowski.
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Third, and most importantly, the Motion For PO should be denied because Steves
attorneys have a legitimate, good faith basis for requesting that the deposition take place at
Mr. Sutkowskis office. As Kimberly Smiley explained to Steven Wakeman, Mr. Sutkowskis
office houses the complete litigation file for the Consolidated Cases. As the Court is aware,
this is a complex case involving tens of thousands of pages of documents. It is important
that Steves attorneys have access to the complete file during the deposition. Regardless of
the amount of predeposition preparation, no attorney can predict every response that a
deponent may make during a deposition. When a deposing attorney learns new information
from a witness, the attorney may need to locate and copy documents from the client file to
challenge or impeach the witness testimony. Without access to the complete litigation file,
Steves attorneys would be at a significant disadvantage,1 especially given the limited time
restraints imposed on depositions.
This is not merely a theoretical possibility, and it has already happened in this case.
For example, during the deposition of one of the Fehrenbacher witnesses, upon hearing
certain testimony from the witness, Steves attorneys pulled additional documents from the
client file located at Mr. Sutkowskis office for use and impeachment during the deposition.
Because Mr. Sutkowski has dedicated paralegals available to assist during the course of the
deposition, Steves attorneys were able to quickly locate the necessary documents, make
copies for the witness and counsel, and proceed with questioning without unnecessary delay.
Thus, if required to take Mr. Oberhelmans deposition in a different location, Steves counsel

The same cannot be said for Diane and Belindas attorneys. Mr. Oberhelman is a
friendly witness with whom Diane, Belinda, and their attorneys have full opportunity to
meet and confer with prior to the deposition.
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would be not have such access to the complete litigation file and, thus, would be unfairly
prejudiced. The Motion For PO to move the location of the deposition should be denied on
this basis alone.
The sole case cited by Mr. Oberhelman, Bicek v. Quitter, 38 Ill. App. 3d 1027, 1030,
350 N.E.2d 125, 127 (1st Dist. 1976), does not compel a contrary conclusion. In Bicek, the
court analyzed whether a trial court abused its discretion in setting depositions in the judges
conference room. In that case, however, the appellate court observed that the record on
appeal was devoid of the reasons for taking the deposition in a different location. Thus, the
issue was simply whether the trial court has discretion to order the location of a deposition.
As the court explained:
On the record before us we cannot say there has been an abuse of discretion
here. The record contains only the common law record. There are no

transcripts of the hearings before the trial court; consequently, neither


the reasons of the opposing attorneys for contesting the taking of the
deposition in Park Ridge nor those of the trial court in setting the
depositions in his conference room are before us. Furthermore, while Mr.
Kolar states in his brief that it is the standard practice of trial courts to order
depositions taken downtown when there is a dispute on the location of a
deposition between suburban and downtown law firms, there is nothing in the
record so showing. Consequently, that contention is not before us (In re
Annexation of Certain Territory to the City of Darien (1973), 16 Ill. App. 3d 140,
145, 304 N.E.2d 769; Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App.
3d 667, 669, 307 N.E.2d 749) and, since all of appellants arguments in this
court are premised on that assertion, we view this case as a single exercise

of the trial courts broad discretionary power to supervise pretrial


discovery.
38 Ill. App. 3d at 1030, 350 N.E.2d at 127 (emphasis added).

Here, Steve does not dispute the Courts inherent authority to supervise discovery.
However, upon the record before this Court, Steve submits that the proposed Protective
Order would serve no useful purpose other than create a disadvantage to Steves attorneys.
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Moving the location of the deposition would not solve Mr. Oberhelmans perceived
problem, and it would create a real disadvantage to Steve. Justice requires that this Court
deny the Motion For PO.
II.

CONCLUSION

To support his requested relief, Mr. Oberhelman has presented only an unsupported
claim of personal animosity between himself and one of Steves attorneys. However, as
explained above, Mr. Oberhelmans requested relief even if granted would not solve his
alleged problem.

Because Steve has articulated legitimate reasons for taking Mr.

Oberhelmans deposition at Mr. Sutkowskis office, this Court should deny Mr.
Oberhelmans request to change the location of his deposition.
WHEREFORE, Stephen A. Cullinan respectfully requests that the Court deny Mr.
Oberhelmans Motion For PO.
Date: April 28, 2015

Respectfully submitted,

By:

_________________________________
Kevin D. Evans
Kimberly A. Smiley
ARMSTRONG TEASDALE LLP
6400 S. Fiddlers Green Circle
Suite 1820
Denver, Colorado 80111
Telephone: 720.200.0676
Facsimile:
720.200.0679
Email: kdevans@armstrongteasdale.com
ksmiley@armstrongteasdale.com

Edward F. Sutkowski
SUTKOWSKI LAW OFFICE LTD.
416 Main Street
Suite 400
Peoria, Illinois 61602
Telephone: 309.680.8000
Facsimile:
309.680.8001
Email:
efs@businesslaw.com
Burt L. Dancey
ELLIFF, DANCEY & BOSICH, P.C.
109 South Fourth Street
P.O. Box 873
Pekin, Illinois 61554
Telephone: 309.346.4148
Facsimile:
309.346.0633
Email:
ekod@grics.net
Attorneys for
STEPHEN A. CULLINAN

CERTIFICATE OF SERVICE

Under penalties as provided by law pursuant to 1-109 of the Code of Civil


Procedure, I hereby state that on this 28th day of April, 2015, I served the foregoing
STEPHEN A. CULLINANS RESPONSE IN OPPOSITION TO DOUGLAS R.
OBERHELMANS MOTION FOR PROTECTIVE ORDER upon the following by
causing a copy of same to be placed in an envelope addressed as follows and to be deposited
with first-class postage fully prepaid in the United States Mail at Greenwood Village,
Colorado, and by emailing a copy thereof to the attorneys listed below:
Steven A. Wakeman
Kingery Durree Wakeman & ODonnell, Assoc.
416 Main Street
Commerce Bank Bldg., Suite 915
Peoria, IL 61602-1170
(via fax in lieu of email to 309-676-1329)
Nathan R. Miller
Jeffrey E. Krumpe
MILLER, HALL & TRIGGS
416 Main Street, Suite 1125
Peoria, Illinois 61602
Robert S. Held
Jonathan E. Strouse
Jessica Lauren Berger
HARRISON & HELD LLP
333 West Wacker Drive, Suite 170
Chicago, IL 60606
Gary P. Hollander
Benjamin N. Feder
STRAUSS & MALK LLP
135 Revere Drive
Northbrook, Illinois 60062
Richard P. Campbell
Richard L. Campbell
CAMPBELL, CAMPBELL, EDWARDS & CONROY, P.C.
One Constitution Center
Boston, MA 02129

Mrs. Mary Jo Falcon-Hackney


400 Capellan Street
Wake Forest, NC 27587
Elizabeth Falcon-Bishop
2241 Augusta Drive
Dunlap, Illinois 61525
Sarah Theresa Falcon
2051 Glen Oaks Rdg.
Coralville, Iowa 52241

___________________________
Kimberly A. Smiley