101 mtc rog1 - kc declaration re joint statement

8/14/2019 101 MTC ROG1 - KC Declaration Re Joint Statement

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disclosures for privilege even though, as I wrote, that is a strange request. We did not find any2 privileged documents. We remain unsure what Plaintiffwants. A copy ofmy March 5 letter is3 as LJ-"'UH/H

resources to res:ponding to

m01tlon to cornp{:1.

7.

second set.

156

2008,

2122232425262728

-3-DECLARAnON OF MARK A. WASSER RE INABILITY

TO PREPARE JOINT STATEMENT ON DISCOVERY DISPUTE


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10: I ' I a n ~ WllSser e ::lIll-q'l't-O'tt'Kl r ! UlII: L


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I I VIllI. L.....,.,. V . t . """"" ...... --J-'.- _

1 3. To date, I have no t received any response from Mr. Wasser regarding the Joint :staten1ent.12 as AUacnme:nl is a true correct copy Joint Statement

on delendlant

amolLl0n

tonego,mg is true correct.

202122232425262728 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OFDEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TOCOMPEL RESPONSES TO INTERROGATORIES 2


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AITACHMENT A

DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OFDEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TOCOMPEL RESPONSES TO INTERROGATORlES 3


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1 statement re: discovery disagreement is submitted pursuant to Local Rule 37-251(a) in2 2008 heaJrmg on Plamtltt m01Jon to c O l n p \ ~ 1 responses to mt,err'Dg::llol'les

20 pathologist for "unavailability" and refused to reinstate him upon his return to work on October 4,21 On December 7, 2006, he was placed on involuntary administrative leave and restricted to his home22 during working hours until May 1, 2007. Around May 1, 2007, Defendant informed Plaintiffof its23 decision to either "buyout" the remaining term of his contract (due to expire on October 4, 2007) or24 simply let the contract "run out". On October 4, 2007, Defendants did not renew Plaintiffs employment25 contract.26 Plaintiff's Complaint alleges whistleblower retaliation, disability discrimination, medical leave27 interference and retaliation, defamation and deprivation of compensation and professional fees without28 procedural due process.

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPELRESPONSES TOINTERROGATORIES 2


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1 Defendants contend that the dispute arose out of Plaintiffs tenure as a pathologist at Kerndeten,oraled toVA"'''''''',,'' Center.

20 Defendant's refusal to state a single fact responsive to this interrogatory despite numerous meet21 confer efforts is a violation of discovery rules.22 Moreover, as plaintiffhas already communicated to defendant several times, contention23 interrogatories are not objectionable on the ground that they encroach on attorney work product. See24 Security Ins. Co. ofHartford v. Trustmark Ins. Co. (D CT 2003) 218 FRD 29,34; United States v.25 Boyce, 148 F. Supp. 2d 1069, 1086 (S.D. Cal. 2001) ("Under Rule 33(c), a party can serve an26 interrogatory the answer to which involves 'an opinion or contention that relates to fact or the27 application of law to fact. '. The Government's contention interrogatories are not directed to issues of28 'pure law' that would infringe on the attorney-work product doctrine as codified in Rule 26(b)(3).

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPELRESPONSES TOINTERROGATORIES 3


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1 Rather, they seek the facts upon which the Boyces' relied for their defense to the Forms 4340. As such,

l)eienldaJ11 h , r l hD ? asserts

"O'ice were reQuin;d to res1PorJld toOl1tel1tlC)ll l r l t f ' r r { ) O ~ t { ) r ' ' ' ' Q were p e r m i ~ ; s i b l e and3

states:

The Fourth Affirmative Defense is a legal defense. Defendants objectto it to the extent it seeksinformation protected under the attorney/client privilege and attorney work product privilege.

a vldleol:aOl;;dnas

PLAINTIFF'S POSITION

DEFENDANT'S POSITION[INSERT HERE]

DEFENDANT'S RESPONSE TO INTERROGATORY NO.2

See "Plaintiff's Position" regarding Interrogatory No.1 above.

State202122232425262728

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TOINTERROGATORIES 4


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I 1 \l 1l i: . ' -" "" VI I I ..... '" ...... --...1-"- _

every12

c.State

INTERROGATORY NO.3YOU COfltel:1ld


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1 agreed in meet and confer to supplement its response accordingly. As has2

states:

NO.ESPONSE

2021 INTERROGATORY NO.522 State each and every fact that YOU contend supports YOUR Seventh Affirmative Defense.23 DEFENDANT'S RESPONSE TO INTERROGATORY NO.5

The Seventh Affirmative Defense is a legal defense. Defendants objectto it to the extent it seeks25 information protected under the attorney/client privilege and attorney work product privilege.26 PLAINTIFF'S POSITION27 See "Plaintiff's Position" regarding Interrogatory No.1 above.28 DEFENDANT'S POSITION

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO6


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12

[INSERT HERE]

contend sunnorts

7

S20 [INSERT HERE]21 H. INTERROGATORY NO. 4622232425262728

IDENTIFY each DOCUMENT or portion thereof contained in PLAINTIFF's FRCP Rule 26Initial Disclosures that YOU contend is privileged; state the nature of each privilege asserted; and statein detail the factual bases for each such asserted privilege.

DEFENDANT'S RESPONSE TO INTERROGATORY NO. 46We do not understand this Interrogatory and are, consequently, unable to answer it. What is

privileged about the documents Plaintiff produced?JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TOINTERROGATORIES 7


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r lULu V'11 i . /VU ,.VlJ..,.

1 PLAINTIFF'S POSITIONstates:

6

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I. INTERROGATORY NO. 47IDENTIFY each DOCUMENT or portion thereof contained YOUR FRep Rule 26 Initial

Disclosures that YOU contend is privileged; state the nature of each privilege asserted; and state indetail the factual bases for each such asserted privilege.

DEFENDANT'S RESPONSE TO INTERROGATORY NO. 47We do not understand this Interrogatory and are, consequently, unable to answer it. What is

privileged about the documents Plaintiff produced?PLAINTIFF'S POSITION



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See "Plaintiff's Position" regarding Interrogatory No. 46 above.

4

,",VI.H'iOL an answer to andel00S1t!


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1234

CONCLl1SION

was sul)stantl:ally l u s t 1 f i , ~ d malcing or oP1Dosmg

6

essence to ensure plamtllit

202122232425262728

Dated: Apri l_ , 2008 LAW OFFICES OF MARK A. WASSER

By:.- .---.-. . , .---------------Mark A. Wasser,Attorney for DefendantsCOUNTY OF KERN, PETER BRYAN, IRWINHARRIS, EUGENE KERCHER, JENNIFERABRAHAM, SCOTT RAGLAND,TONI SMITH,AND WILLIAM ROY



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Dated: 2008 LAW OFFICE OF EUGENE LEE



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One-

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5:

EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENTre: INTERROGATORIES 2


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Date:

20 I, Eugene D. Lee, declare as follows:21 1. I am counsel of record for Plaintiff. I have personal knowledge of the matters set forth22 below and I could and would competently testify thereto if called as a witness in this matter.23 2. Pursuant to Local Rule 37-251, I attempted to secure the cooperation of Defendants'24 counsel, Mark Wasser, to prepare and execute a joint statement re discovery disagreement. On25 Thursday, April 17, 2008, I sentMr. Wasser a draft version of the Joint Statement re: Discovery26 Disagreement (with all exhibits attached), requesting his input. I explained in the cover letter that the27 draft was a work in progress and remained subject to change.28 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OFDEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TOCOMPEL DEPOSITION OF PATRICIA PEREZ 1


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DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OFDEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TOCOMPEL DEPOSITION OF PATRICIA PEREZ 3

92021222324252627 ATTACHMENT A28


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202122232425262728

COUNTY OF KERN, et al.,Defendants.

DISAGREEMENT re: MOTION TOCOMPEL DEPOSITION OF PATRICIAPEREZ, FOR PROTECTIVE ORDER, ANDSEEKING MONETARY SANCTIONSDate: April 28, 2008Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtlroo:m11300 18th St., Bakersfield, CADate Action Filed: January 6, 2007Date Set for Trial: December 3, 2008

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPELDEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKINGMONETARY 1


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12

statement re: discovery disagreement is submitted pursuant to Local Rule 37-251(a) inl 1 e ~ m n l g on plamtllt's mClt l0n to conlpel recornlenmg

II .20 NATURE THE CASE

21 Plaintiff David F. Jadwin, D.O., FC.A. former Chair of Pathology at Kern Medical Center22 ("KMC") and senior pathologist from October 24, 2000 to October 4, 2007, filed a Complaint with this23 Court on January 6, 2007. Plaintiffcontends that various defendants retaliated against and defamed him24 for reporting his concerns about patient care quality issues and regulatory violations at KMC. As a25 result, Plaintiffwas forced to take medical and recuperative leave for disabling chronic clinical26 depression in early 2006. While Plaint if fwas on leave, Defendants demoted him in June 2006 to a staff27 pathologist for 'unavailability" and refused to reinstate him upon his return to work on October 4, 2006.28 On December 7, 2006, he was placed on involuntary administrative leave and restricted to his home

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRlCIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 2


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1 during working hours until May 1,2007. Around May 1,2007, Defendant informed Plaintiffof its2 deClSlC)fl to out" rernalnulg term contract to on ( ) c 1 l o b ~ r 4,

A.

C O J l c i ~ ; e l y in a nOllarguluell!al;ivedeJ)on.ent not to answer necessary a privilege, to ahml1ta1l10n ordered by the court, or to present a motion under Rule 30(d)(3). [emphasisadded].Counsel may not use "speaking objections" to "coach" the deponent. For instance, counsel may

not interrupt mid-question to ask for a "clarification", or in the course of objecting attempt to suggestanswers or warn the witness. See Hall v. Clifton Precision, Inc. (E.D. Penn. 1993) 150 FRD 525,530.

Rule 30(c)(2) renders "relevancy" objections meaningless inmost depositions. The deponentmust even answer questions calling for blatantly irrelevant information "subject to the objection." FRCP30(c)(2); International Union ofElec., Radio & Machinery Workers, AFL----CIO v. Westinghouse Elec.Corp. (D. DC 1981) 91 FRD 277, 278.

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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 3


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J;;; ..... 1'.......... ..... U If __ __ , . ._

1 space ofjust 68 minutes, from 11 :30 a.m. to 2:05 p.m. (excluding a lunch break from12: :29 deten!;e C ~ J u r l s e l mt1erpose,d no

20 as later proven in the deposition. Ms. Perez not only was able to estimate how many people there were21 in KMC's payroll department, ofwhich she is a member, she gave the exact number: six (includingMs.22 Perez). Perez Deposition, 84:20-25. She testified that KMC's entire HR department (including the 6-23 person payroll department) is housed in a single trailer that sits on the KMC campus. Perez Deposition,24 84:4-10. She also recited the names ofthe other five payroll employees with ease:25 In the payroll department we have an employee named Bobbi Gains. We have ArmidaSmith. We have April Smith. Myself. Angela Conger. And Christine Tetimas.26 Perez Deposition, 88:9-12.27 Later, Mr. Wasser launched into an extended and improper harangue criticizing the relevance of28 plaintiff's line of questioning that had impeached Ms. Perez:

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPELDEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 4


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20 stating: "She said it could have been, but she doesn't know." Perez Deposition, 90:10-20. Ms. Perez21 never said that "she doesn't know". None ofMr. Wasser's statements on the record were stating22 objections or instructions not to answer on privilege grounds. They had no proper purpose and were23 intended to coach the deponent how specifically to respond to plaintiff's questions and to frustrate24 plaintiff's examination of the witness.25 Plaintiff's counsel asked defense counsel one last time to stop coaching the witness and26 obstructing the deposition, stating "Mark, I'm going to have to stop this depo ifyou continue with this.27 What objections are you stating, Mark? You're not even stating any objections." Defense counsel28 responded "Your questions don'tmake sense" -an improper objection - and later "I'll objectthe way I

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKINGMONETARY 5


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1 1. Defendants' Position

I ; ;} . . . . , . .. .. .. _ . ~ - "-- r- -

23

e n t I W ~ d to6 was sut>stantl,a.lI m2lklrlg or 0plposmg

to reconvene

20 seeks reimbursement of the $529.40 the reporter fee and $179.86 reporter hotel charge as well as21 $189.36 hotel charges for plaintiff. Finally, plaintiff requests whatever other sanctions this court deems22 proper and just. In total, Plaintiffseeks sanctions of at least $4,718.76.2324 Respectfully submitted,25262728

Dated: April _' 2008 LAW OFFICES OF MARK A. WASSER



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EXHIBIT B


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Page 3 of3

2pm 7pm: Arlene Ramos-AninionDay 4 (4/19):Sam 6pm: Marv Kolb

California Labor&Employment Law Blog

WasserLee

Cc: Assistant to

From:Sent: \f\Ic,rlnt=>c,i::l\l

am told that Kolb is available for 9 at at at Los A n f l t = > I ~ ' < :International This information was to have not had any direct contact with Kolb anddo not know any more. If you have questions, I will do my best to answer them.Mark

Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405E-mail: m . w a . $ . $ e I @ m a I I s ' ! ' i a s $ ~ L ~ Q m

4/21/2008


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Mark WasserFrom: Mark Wasser [[email protected]]Sent: Tuesday, April 08, 2008 1:40 PMTo: 'elee@LOELcom'Cc: Assistant to Mark A. Wasser ([email protected]); Karen Barnes ([email protected]: RE: Depos

is available on 5. That is not one of the dates it is date hehas for awhile. We could take his deposit ion on the 15th , Gilbert Martinez and Vangie Gallegos on the 16th , and

1

To: m V \ ' a s ~ ; e r ~ ~ m a r k w a ~ ; s e rSubject: RE: Depos

F FE M P L O Y M E N T LAW

555 WEST FIFTH ST. , STE. 3100LOS ANGELES , CA 90013Te l : (213)992-3299Fax : ( 213 ) 596 - 0487E - il l a i I: gI9.G@LQEJ.,


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To: [email protected]: Assistant to Mark A. WasserSubject: RE: DeposGene,

propose for and Kolb are 10 hours long. Why? TO ENSURE WE GET OUR 7 HOURSON THE n.-r - r " \ , . . . "n MANY OF PAST DEPOS HAVE BEEN CUT SHORT UNEXPECTEDLY. BREAKSALSO CUT INTO OUR TIME. DEPOS WILL NOT GO BEYOND 7 HOURS ON THE RECORD.

do not when Kolb"swill work. PLEASE LET ME KNOW.

Bakersfield? Kolb says he is available

can start. do

YES. WE'LL

WITH HIS CONTACT INFO IF I NEED TO SERVE THE DEPO NOTICE ON HIM.

If that's the case, please disregard the previously proposed depo schedule for the week ofApril 12.We'd now like to schedule depos as follows for April 16 to 19:Day 1 (4/16):8am - 2pm: Gilbert Martinez2pm 7pm: Vangie GallegosDay 2 (4/17):8am 6pm: William RoyDay 3 (4/18):8am - 6pm: Albert McBride2pm - 7pm: Arlene Ramos-Aninion

4/21/2008


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From:Sent:To:Cc:

Page 1 of 4

MarkWasserMark Wasser [[email protected]]Tuesday, April 08, 2008 3:17 PM'[email protected]'Assistant to Mark A. Wasser ([email protected])Sul)jec:t: RE: Depos

Arlene is available and can squeezeWe could set her for Tuesday but assume you want the whole day for Roy.

T S., S OS NGELES, C 90Te l : (213)992-3299Fax: (213)596-0487E - il l a i I: ~ t ~ ~ @ l D E L , g Q mWeb s i t e: 't\i1\i1yJdQE.LsQmB log : www's:;


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Are you proposing these for the Holiday Inn in Bakersfield? Kolb says he is only available in LA YES. WE'LLDEPOSE KOLB IN LAI do not know when Kolb"s f light will arr ive in LAX but I will find out how early we can start. I do not know if 8:00will work. PLEASE LET ME KNOW.wil l check with the others and let you know their availabil ity. OK.am attending a conference in Monterey on the 17th , 18th and 19th but be able to adjust that a little. NEEDDAYS ON 7 - 4/19. PLEASE CONFIRM THAT THIS IS POSSIBLE.

are a

Sent: 2008To : [email protected]: 'Assistant to Mark Wasser'SUlbjE!ct: Depos

Day 2 (4/17):8am - 6pm: William RoyDay 3 (4/18):8am - 6pm: Albert McBride2pm - 7pm: Arlene Ramos-AninionDay 4 (4/19):8am - 6pm: Marv KolbSincerely,Gene Lee--------------------------------------------------------------------4/21/2008


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AW OFF ICE OF EUGENEEMPLOYMENT LAW

555 WEST FIFTH ST. , STE. 3100LOS ANGELES, CA 90013

Te l : ( 213 )992 -3299Fax : ( 213 )596 -0487E-ma i l : c!ee(iiiLOELcomWeb s i e : ~ ~ w ~ ; ; i Q E L . Q ~ ; ; ; ]B o g : w.'.Yw.CaLaborLaw.com

This message senttransmission contain information that is DrrvIIE10!d or confidential.sender e-mail delete message and receivedattachments.

California Labor&Employment Law Blog

Gene,am told that Dr. Kolb is available for on 9 at 0:00 at the Hilton Hotel at Los J- l Inf lP l f 'SInternational Airport. This information was relayed to my have not had any direct contact with Kolb anddo not know any more. If you have questions, I will do my best to answer them.

Office: 916-444-6400Fax: 916-444-6405E-mail: mw,:'tsseJ@m9fKW9SSeLQQill

4/2112008


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EXHIBIT C


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Law Offices ofMARKA. WASSER

400 Capitol Mall, Suite 1100Sacramento, California 95814

Office: 916-444-6400 Fax: [email protected]

our tel,eptl0TIle cl)nlere:nclessup'plemeintal resj::>onses to Plaimtij,r

attlrm.ati'7e C1letense statesSupplemental Complaint, were furtherance peer rp ' l1p"XT nlal1tltemulcequality of care standards, discharge of official duties and performed in the course ofofficial proceedings authorized by law and that, as such, they are privileged under thereferenced statutes. In drafting the third affirmative defense, the Defendants had in mindonly the facts alleged in the Second Supplemental Complaint. The legal analysis andreasoning why the Defendants believe their actions are privileged is protected underattorney-work product and attorney-client privilege doctrines but the facts have beendisclosed.

The same is true of the fourth, sixth, seventh, eighth and ninth affirmativedefenses. They each reference the factual allegations set forth in the SecondSupplemental Complaint. In interposing those defenses the defendants had no facts inmind other than those set forth in the Second Supplemental Complaint.

Admitted to Practice in California and Nevada


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Eugene Lee5,2008Page 2

are no adlC11tJlonaJ to dis(:;los:e.

Plaintiff s attempt to bootstrap the persons identified in Defendants'disclosures into a list of trial witnesses and then demand employment history informationon all of them is burdensome and oppressive and Defendants will not respond further tothis interrogatory for that reason.At your request, Defendants will produce all those individuals for deposition andyou are free to inquire as to their employment history. As soon as Defendants identify

any trial witnesses, we will share that list with you.Interrogatorv Number 28.It is a small point but the Defendants did not request that Plaintiffnarrow thisinterrogatory from "medical staff' to "core physicians". The Defendants objected to the


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Eugene LeeMarch 5, 20084

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101 mtc rog1 - kc declaration re joint statement

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