69 mx protective order - inability to file joint statement

8/14/2019 69 Mx Protective Order - Inability to File Joint Statement

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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 1 of 60

1 Mark A. Wasser CA SB # 60160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento. CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwassenwmarkwasser.com5 Bernard C. Barmann, Sr.KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy1115 Truxton Avenue. Fourth Floor7 Bakersfield, CA 93301Phone: (661) 868-3800811 (661)868-3805

II E-mail: [email protected] 0 Attorneys for Defendants County Kern.Peter Bryan, Harris, Eugene Kercher,11 Jennifer Abraham, Scott Ragland, Smithand121314

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORJ"


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disclosed eachbusiness address" as

Defendants objected to I

diselosed

IS mLRr.


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ATTACHMENT A


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OFFICE

Attorneys for Plaintiff David F. D.O.MarLA.. W",,


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I This joint statement re: discovery disagreement is submitted pursuant to Local Rule 37-2 251(a) in advance of the November 5, 2007 hearing on Defendants' motion for protective order.3 I. Details ofthe Parties' Discovery Conferences.4 The parties engaged in a prolonged "meet and confer" process that was conducted by5 letter and email over the course of several weeks.6 Plaintiffobjected to Defendant's initial disclosures under Rule 26(a)(l on the7 grounds that Defendants had not disclosed the home addresses of County employees. Plaintiff8 a mr,tlc,n to cOll1p,el Defendants a motion to9 protect the home addresses. of these steps was preceded by an extensive exchange

10 correspondence and email between parties. stipulations were exchanged.1 ,, i n n e m n o ~ two PIO,po:sed stljpuiall,JnS Defendants prepared a proposed stipulation.

agreed to language.13 Plaintiffs position appeared to harden throughout the "meet and confer" process.14 Initially, Plaintiff had stated his position has demanding home addresses for employees who left15 ,County employment during pendency of the case. Plaintiffs last correspondence to Defendants16 before the motion for protective order was filed indicated that Plaintiffwants the home addresses17 for County employees who were listed in the initial disclosures.18 Copies parties proposed stipulations correspondence is attached to joint19 statement behind Tab A20 It A Statement of the Nattire ofthe Case.21 Plaintiff filed a 52 page complaint listing II claims for relief including violation of civil22 rights, deprivation of due process, retaliation, failure to comply with the Family Medical Leave23 Act, California Family Rights Act and defamation.24 The dispute arose out of Plaintiffs tenure as a pathologist at Kern Medical Center.25 Plaintiffs relationship with other members of the medical staffdeteriorated to the point of26 intimidation, hostility and antagonism. Plaintiff claims a hostile work environmen was caused27 by Defendants. Defendants claim, to the extent it existed, it was caused by Plaintiff. Plaintiff28 seeks unspecified damages for personal injury.

JOINT STATEMENT RE: DISCOVERY DISAGREEMENT2


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or

case.

addresses of

afraid

liS to

Plaintiff are

employees remain availabie to Plaintifffof

the wv " u v u that he is entitled to the

left r ~ n n j , eimp-lo'/ment during the pe-nd'cnc:vdisclosures unacceptable and rejected Defendants' written

on an)' emnl iWf ' p

Plaintifffound

0VjUV. if not alL emipli)Yc,esintimidated by him as a result of the hostility he brought to the workplace and are unwilling to

informal ml"rvIf'W or deposition through Defendants' counsel at the addresses that have been

The parties' respective legal positions are set forth in the correspondence behind Tab B.

The parties have made their initial disclosures pursuant to Rule 26(a)(l). TheDefendants' initial disclosures included, among other things, a list of possible witnesses.Defendants provided actual business addresses and telephone numbers for every employee.Defendants made repeated written representations to Plaintiffthat each and every employeewould be made available to Plaintiff, upon request, for informal interview or deposition, thatDefendants' counsel would accept service all notices and process on behalf of all employeesand that Defendants would provide Plaintiff with updated contact information, to the extent

only contested issue is whether Defendants are obligated to disclose the

elnployees.

disclosed.

from disclosure employee home addresses.tell him where they live. Defendants, therefore, filed a motion for protective order to protect

addresses of employees for whom full contact infonnation (including address and telephonenumber) has already been disclosed. Defendants contend that Rule 26(a)(l) requires disclosureof contact information that allows access to potential witnesses. Defendants have fully compliedwith the Rule and, in addition, have coupled their disclosures with representations that allemployees will be available to Plaintiffupon request.

Plaintiff, on the other hand, contends that he is entitled to home addresses regardless ofthe other addresses that have been disclosed.

I20

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Despite the extensive correspondence between the parties. it does not appear that thisdispute can be resolved without assistance from the Court.

Respectfully submitted.

Jadwin, D.O.Eugene LeeAttorney for Plaintiff.

LAW OFFICE OF EUGENE LEE

By:__ --:-_--:-,-----, _Mark A. WasserAttorney for Defendants, County of Kern, et al.

IV. Conclusion.

October__ . 2007

12,J45.6789101112131415 Ii16171819202122; 'J2425262728



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I


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 9 of 60 C 1 '07 .- Law Offices of . -se ,-cv-OOO W ~ ~ J t ~ W A ~ E R i i 0/12/2007400 Capitol Mall, Suite J J00Sacramento, California 95814

Office: 9 J6-444-6400 Fax: [email protected]

S e p ~ r n b e r 13.2007

Eugene Lee

Page 4 of 10

31

Re: Jadwin v. COUllty ofKern, et al.Dear Mr. Lee:

\Ve have revised the Vy'itness list we enclosed as part of our initial disclosure sothat it describes the subjects of information the various witnesses are believed to have inmore detaiL \Vhen OUT O\V11 investigation is complete, we may knoV\' more about thewitnesses' kno\vledge but these descriptions fairly SUmmfu-lZe vvhat we presently knovv'.\Ve deleted the names of vlltnesses for v:ihom we have no specific subject i n f o r m a t i o n ~even though doing so seems to Dr, J a d ' i ~ I i n : s interests. 1\1} intent in giving youthe nameS in firsl was to be indus1ve i f you 'ivam: \Ve will give youless, I have always subscribed to The -'lie'.ii that it is better to have a \ V l t n e s s e s ~ 1131-ne thaT}to not have it butl have no interest in COnVL'1ci"ng you of that Your suggestion that OUIinitial disclosure was deficient or that we "acknowledge" the baseless position you havetaken does not warrant further comment

We are not providing home addresses for any persons who are employed by theCounty, Unlike Dixon v. Certainteed Corporation, which you cite, the County has notand will not resist making its employees available to you for deposition or informalinterview. As I have told you from the outset, (I believe I first represented this to you inMarch) I will accept service of all papers on behalfof the Defendants and all Countyemployees and will make arrangements to produce any employees you want. Thus,employment addresses afford you complete access to all employees,

Also, because ofDr. Jadwin's threatening and intimidating behavior towards hisco-workers at Kern Medical Center, many employees are afraid of him and are unwillingto let him know where they live,

Admitted m Practice in California and Nevada


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 10 of 60Case 1:07- cv -0002L-TAGEugene LeeSeptember 13,2007Page 2

Document 55 i le./12/2007 Page 5 of 10Even though Dr. Jadwin knows the street address ofKern Medical Center, having

worked there for several years (and having referred to it as simply "KMC" in his o"nwitness Jist) we have included it for you.Finany, -".ve are providing a copy of a memOrandful1 of coverage ,:vim the CSAC

Excess insurance Authority_ It 'was not included in our first disclosure because theCounty had not been able to verify its coverage. As you ,,,ill note, the County has a

selfirlsured ret.cntion h"fme any is available.

Y (}UTS,

cc: Karen BamesJoan Herrington


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 11 of 60ase 1:07-cv-00026-0WW-TAG Document 50 i led 09/24/2007 Page 3 of 4Page 87 of 87--------------------------------------------------------------------This message is sent by a law firm and may canlain information that is privileged or confidential. If you receivedthis transmisskm in error, please notify the sender by reply e-mail and delete the message and any attachments.From: Mark Wasser [mailto:[email protected]]Sent: Thursday, September 20, 2007 8: 13 AMTo: [email protected]: RE: Jadwln/KC Initial DisclosuresGene,I will be out of the office a lot today and tomorrow. i do not know where this stands and, as i wrote last night, donot even know what the issue is. Could you remind me what we are disagreeing about?This recent exchange started with your demand that we rename and reserve the supp!emental initial disdosures.i declined your request to do that. The topic then transitioned to providing empioyees on request, as i recaii, andagreed as I have in the past. Our position on that has never changed. What is the current dispute?The stipulation you have sent me is not necessary and nothing In the rules you cite is applicable. I know youenjoy disagreements but I cannot find one here Remind me what the disagreement Is And what It Is that needsto be compelled.Is this whole tempest simply that you want a stipUlation for something we have already to?Also, as I wrote last night, send me whatever CME expenses Dr. Jadwin believes are outstanding. I cannot findany record of them in my files or e-mail.Mark

From: Eugene D. lee [mallto:[email protected]]Sent: Wednesday, September 19, 2007 5:04 PMTo: [email protected]: 'Joan Herrington'Subject: RE: Jadwin/KC: Initial DlsciosuresMark,It is a shame that each time we attempt to meet and confer with you and comply with basic court rules andregulations, you derail the discussion into personal attacks and insults. This is truly regrettabie and demonstrativeof all that is wrong with the justice system today.Given your emails, I am not sure that you are famil iar with USDC EDCA local rule 83-143 and FRPC 29.Hopefully after you have had a ohance to familiarize yourself with these rules, you will understand why we insiston haVing a written stipulation and are unwilling to rely on simply your "word". The fact that your "word" haschanged with every communication only demonstrates why these rules exist In the first plaoe.Your have staunchly and inexplicably refused to exeoute, or even negotiate, a valid written stipulation with usdespite our best efforts and intentions. We therefore have no choloe but to bring a motion to compel seekingsanotions. This is unfortunate and does not bode well for our ability to work with each other as this litigationproceeds.Sincerely,Gene

--------------------------------------------------------------------9/20/2.()07


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 12 of 60ase 1:07-cv-00026-0WW-TAGMark Wasser

Document 55 i led 10/12/2007 Page 10 of 10From: Mark Wasser [[email protected]]Sent: Thursday, September 20,2007 11:48 AMTo: '[email protected]'Subject RE: Jadwin/KG: Initial Disclosures

Gene,First, here is the address for The Camden Group, David Culberson's emp!oyer: The Camden Group, 100 N,Sepulveda Blvd" Ste, 600, E! Segundo, California 90245,I have beer: toid that David Culbe,son is in ~ 0 i n n e s o t a on an ;""innn',p;;; but have not verified :+Second l I assumed you understood that the witness l is t we ser;ted with the supplemental disclosures was a newllst that replaced the previous list If you were not dear about that: this should clari fy it. \Nhy else would wesend a new nst? I do not understand your confusion or that woujd be an issue, I am not r e s e r ' i ~ n g theinltjal disclosures, 'vVe covered that yesterday or the day before, I

I am lost on this one, You say you arE \"enVtlec! to contact information fo: ali v!imesses" \/\/6agree 100% and we gave you contact information on ail ';,vitnesses. We even accompanied that with our wri ttenrepresentation that we will make all employees available to you on request. We have fully complied with both thespirit and letter of all rules and offered the addit ional courtesy of providing contact Information for any employeesthat may leave Gounty employment during the pendency of this case. How you can extract a dispute from this Isbeyond me. No rule requires that all agreements between counsel be reduced to stipulaton. In my 30+ years offederal court practice, no opposing attomey has ever suggested they must be. Rule 29 clearly states that theparties Hmay" prepare stipUlations, HaVing said that, I am not adverse to stipulations but I am not wining to signthe one you sent because jt aoes beYond what we have discussed and wouJd impose t ime l imits that I f indunreasonable, It is also one=-sidd. The Plaintiff is not the only party who wi!! need discovery. Our agreement isf ine the way it is. If you bel ieve it must be reduced to a stipulation, then you wil l have to explain why and we wil!have to discuss the terms. 1am open to that but don't send me documents and tel! me to sign them by s u c h - a n d ~such date on threat of s a n c t ~ o n s .You opened your e-maH \vith a that I "leave the insults out of our i n t e r a c t i o n s " ~ but proceed tcaccuse me of "pjaying hardbal l" being "abusive" and being "ridiCUlOUS" (among other tfl ings) in an overa!! tonethat is snotty and condescending. if you want the tone of our c o m m u n ~ c a t i o n s to improve, it wW requirereciprOCIty. Your communications invariably come from a positfon of take-it-or-leave-it that is arrogant andunhelpful. Lighten up, What wil l you do when we get to issues that actually matter?I f you can tell me how we have fai led to satisfy the requirements of Rule 26(a)(1), please do so. Otherwise, Isuggest wemove on to the nex t issue, whatever thatw ill be. This is the mos t extreme case of form overSUbstance I have encountered In memory.Mark

10/8i2007


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 13 of 60ase 1:07-cv-00026-0WW-TAGEugene D. Lee

Document 51 iled 09/24/2007 Page I of2Page 5 of 6From:Sent:To:Cc:SUbject:FollowFlag Status:

We are not

Mark Wasser [[email protected]]Thursday. September 20,20072:55 PM'Joan Herrington''Gene Lee'RE: 070920 Wasser re JadwlnKC Initial DisciosuresFollow upCompleted

to evade anything. I am flabbergasted at this dispute.As I wrote In an e-mail several days a90, the Certalnteed case Is distinguishable because, there, the employerwas refusing to produce Its employees so tha plaintiff naeded home addresses so he could get the employeesdirectly. Here, we are offering to produce ali employees upon request as well as provide contact Information foremployees who may leave (By the way, that last piece Is not new, contrary to what you write. It was Ilrst offeredweH over a week as ! wrote earlier, the employees are afraid of Dr- Jadwin and do not want him toknow where Nothing in Rule 26 requjres production of home addresses. The ruie requires name andaddress, il known. it does not say "home" address. Any contact information that permits production 01 thewitness Is sufficient. We have proposed a completely acceptable resolution.To my knowledge, we are not varying the rules of discovery but, even If we were, that is not what Rule 29 says. Itsays the parties "may by written stipulation" do certain things. I am not aware that we are doing any of the thingsRule 29 addresses. Gene's proposed stipulation would vary the rules on notice and so forth but I object to that.The normal provisions on notice are fine. Hence, I do not think Rule 29 has any application.Apparently, the current dispute revolves around the legitimacy 01 agreements between counsel. I have relied onagreements between oounsel for over 30 years and find no authority that prohibits them. If it is your position thatthere can be no agreements between counsel that are not reduced to formal stipulation and order, then, perhapswe shouid li tigate that. doubt any court wili hold that counsel of record cannot have any agreements betweenthem that are not reduced to formal stipulation and order. Such a holding would revolutionize oraciice. There iscerteinly no authority that says that now.The semantic debate between 'amended' and "supplementai" is not uselul. We may have amended the witnesslist but we supplemented the information on insurance. I explained that several days ago. Had I chosen to labelthe new disclosures "amended," I imagine Gene would have objected that they were really "supplemental." I willnot engage In a debate over the tit le of the document. The substance should prevail. Substantively, It oontaineda new witness list that replaced the former list and new Information about Insurance.As with many disputes, I suggest the real issue here is something else. Perhaps, Ifwe could get to that we couldresolve this. What is your real concern?This does not warrant the time we are spending on it.I am going to a meeting out of the off ice at 3:00 that wili last the rest of the day but will be here tomorrow.Mark

From: Joan Herrington [mallto:[email protected]]

9/20/2007


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 14 of 60ase 1:07-cv-00026-0WW-TAG Document 51 i led 09/24/2007 Page 2 of2Page 6 of 6Sent: Thursday, september 20, 2007 2:17 PMTo: Mark WasserCc: Gene LeeSubject: 070920 Wasser re JadwinKC Initial DisciosuresPlaintiff has previousiy provided you with iegal authority showing the foilowing:

1. Rule 26 requires parties to provide the home contact information of each disciosed witness. See, e.g.,Dickson v. Certain-Teed Corp. 164 FRD 685, 689 (1996)

2. Ruie 29 require parties to enter into formal stipulations to vary rules of discovery, etc. inciuding thoseregarding service of subpoenas on witnesses.

3. Locai Ruie 83-143 requires parties to convert such stipulations into a court order.Defendants have offered to accept service of subpoenas on any current county empioyees, in exchange fornleintifh"alvma his right to of their home contact information, but refuse to reduce this agreement toa binding stipuiation and order as by the ruies cited above.Today. fo r the first time, Defendants have aiso offered to prOVide the home contact information of any currentcounty empioyee whose employment with the county may cease prior to deposition or trial; but object to the 5-10 period between the departure and production of the home contact Information to pi211ni:Iffthat was Plaintiff. Yet Defendants make no counter-proposal of what period other than 5-10 daysis reasonab!e. Defendants refuse to reduce this agreement to a stipulation and order as theruies cited above.Defendants assert that their so-calied "Supplemental initiai Disclosures" are in fact "Amended InitialDisclosures" but are unwiiling to re-serve them with a corrected caption that accurately reflects this. i proposethat the stipulation be amended to include that parties agree that Defendants "Supplementai Initial Disclosures"dated September 2007 replace and supercede its Initial Disclosures dated _,2007."If Defendants continue to evade compliance with the rules cited above, then Plaintiffwill be forced to move tocompel Defendants' compliance with them, and request sanctions. For the last time, please reconsiderDefendants' unreasonable refusal to reduce its agreement to the required stipuiation and order required by theruies cited above. Piaintiff has repeatedly provided Defendants with the proposed and requestedthem to either sign or propose amendments.This dispute arose because Defendants failed to comply with Rule 26 in its initiai Disciosures. The only currentdispute appears to be that Defendants are unwilling to reduce its assertions to the required stipulation andorder. We have less than three hours to resolve this dispute.Joan HerringtonBay Area Employment Law Office5032 Woodminster LaneOakland, CA 94602-2614(SI0) 530-4078 ext [email protected]

9/20/2007


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LAW OFFICEEUGENE L

[email protected]

- . ase 1 : 0 7 - C V - 0 0 0 2 6 ~ - T A G( 213 ) 9 9 2 " 3 2 9 9TELEPHONE

Document 58 i leAtl12/2007OFE E

Page 6 of 20

12 ! ::1) 596-0487F"ACSIM1LEEUGENE D LJ:',.E, ESQPRINCiPAl..

~ 5 WEST F"lF"TH STREET , SU I T E 3100LO S ANGE LES , CAL IFORNIA 90013-1010

October 1, 2007

WWW.LOEL.COMWEBS I TE

JOAN E. HERR1.NGTON, ESQOF COUNSEL

VIA FACSIMTLE & US MAILlv1ark WasserLaw Offices of Mark Wasser400 Capitol Mall Ste 1100~ ' l ( T a r n e ! i ( ( ) , CA 93814

Re: Defendants? lvlotion for Protective Order

100011.001

Jadwin

lvlr. Vi asser:

~ V V H ' j of Kern, e1 a1. (VBDC EDCA 1 : 0 7 - c v - 0 0 0 2 6 - 0 1 J / \ ~ i

1 a..-rr1 1!1 of your letter of 27, '{ ou srate as the basis for J"Q"i2H'Cmotion for the protectIve order the allegation that ;"Severa] County ernployees object 10disclosure of their home addresses to Dr. Jadwin on grounds of persona1 safety."Plaintiff requests an offer of proof Who are these objecting employees?What specilkally arethey afraid ofl On what do they base these alleged fears? In other words, demonstrate that this isnot just the latest example of the County's attempt to blame the victim for their own illegalactions.PJaintiffhas a right to investigate, informally contact and serve documents on the witnesses. AsPlaintiff has repeatedly explained, the \vitnesses' a v a i l a b ~ H 1 y at work is not the only relevarnhere,Defendants have orally "represented" that they are willing to accept service on behalfof its"current employees" and to prodnce them as needed. In exchange, Plaintiff has stated itswillingness to forego disclosure of their home contact information. However, Plaintiffhasseveral concerns about relying on Defendants' oral representations.First, what happens when current Kern County employees quit or are terminated beforedeposition or trial? Plaintiff needs to ensure that it receives their home contact information in atimely manner. The written stipulation which Plaintiffhas proposed, attached hereto, addressesthis issue.Second, the case ofKMC Interim CEO David Culberson - whom Defendants later informedPlaintiffwas not an employee but an independent contractor - highlights the ambiguity ofDefendants' "representation". Which of the witnesses listed on Defendants' "Supplemental"Initial Disclosures are employees ofKern County as opposed to independent contractors? Thewritten stipulation which PJaintiffhas proposed, attached hereto, addresses this issue.


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. e ,ase 1:07-cv-00026.W-TAG Document 58 ileMi12i2007 Page 7 of 20

Finally, FRCP Rule 29 and USDC EDCA Local Rule 83-143 require that Plaintiff andDefendants enter into a written stipulation when varying discovery procedures. Defendants'representation that they will accept service on behalfof certain witnesses represents a variance ofdiscovery procedures. Plaintiff is wiJling to enter into a stipulation with Defendants but hasrequested that the stipulation be memorialized in writing. Defendants have refused.Plaintiff andDefendants appear to agree in principle. What is the basis for Defendants' refusal tonegotiate a written stipulatioIl; a copy of which is attached hereto? Both Plaintiffs motion tocompel and Defendants' proposed motion for protective order could have been avoided hadDefendants been wining to do so.

ce: Joan Herrington, Esq.ene: Proposed Stipulation

2


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 17 of 60ase 1:07-cv-00026.W-TAG Document 58 iled.212007 Page 8 of 20LAW OFFICE OF EUGENE LEEEugene D. Lee (SB#: 236812)2 555 West Fifth Street, Suile 3100Los Angeles, CA90013

3 Phone: (213) 992-3299Fax: (213) 596-04874 !l email: [email protected] II Joan Herrington, SB# 178988Ii BAY AREA EMPLOYMENT LAW OFFICE6 115032 Woodminster LaneI Oakland, CA 94602-2614Ii Telephone: (51 530-4078ii Fac Q ;ml!e- (';;;10)I! - ~ "', -' /8 iIEmail: [email protected] OfCounsel to LAW OFFICE OF EUGENE9 '\i Attorneys f.VOfAD :\,V1IN"10ii 'DAVIDFJ, D.O.!i fAark /l , Vi asser Cj\t #06160

-j"1 Ii; ~ I j I~ ~ ' ~ ~ ~ I ' i 1 a ~ I : ) s : ~ ~ V i ~ o A W:Sacramento, CA 9581413 Ii Phone: (916) 444-6400

'I Fax: (916) 444-640514 Email: m\vasser@mark",:vasser.c01TI:15 I Bernard C. Barrnann, Sr.: KERN COUNTY COUNSEL16 11 MarkNations, ChiefDeputyIll115 Truxton A v e n u e ~ Fourth Floor17 II Bakersfield, CA 9330 iii Phone: (661) 868-380018ii Fax (661)868-380S.'1 Emall: [email protected] :Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer20 Abraham, Scott Ragland,Toni Smith, and William Roy.21 UNITED STATES DISTRICT COURT22 EASTERN DISTRICTOF CALIFORNIA23 FRESNO DIVISION24 J DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv.Q0026 OWW TAG252627

Plaintiff,v.

COUNTY OF KERN, et aI.,Defendants.

STIPULATION RE HOME CONTACTINFORMATION OF DISCLOSED KERNCOlJ'NTY EMPLOYEES.Complaint Filed: January 5, 2007Trial Date: August 26, 2008

28 IUSDC, ED Case No. 1:07-cv-00026 OWW TAGSTIPULATION RE ADDRESSES OF DISCLOSED WITNESSES11


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.. ase 1:07-CV-00026.W-TAG Document 58 iled.12/2007 Page 9 of 20I In order to avoid Plaintiffs Motion to Compel Initial Disclosures that comply with Rule 26, as2 well as Defendants' Motion for Protective Order, Plaintiffand Defendants hereby stipulate that:3 1. Defendants shaH within 10 days of signing of this Stipulation and Order by the Court4 disclose to PlaintiffDavid F. Jadwin, D.O. the last known home address and phone5 number i f not k.110\VH, t


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 19 of 60ase 1:07-CV-00026-.-TAG Document 58 i led.212007 Page 10 of 2012 Dated: October_, 200734 Eugene D. LeeAttomcy for Plaintiff5 DAVID F JADWIN, DODated: October , 20076-' ;

8910111213141516

Attorney for lJe'ten,jantsCOuNTY OF KERN, PETER BRYA"i lR,VfNnM,""D,10 , EUGENE KERCHER, J E Y ~ N J F E R."I .t i l \ .! ' i l1,""l , SCOTT R A G L , ~ N D _ T O N I ""WTU

'L ! ' ?UVI P,-O'{ -

ORDERThe parties having stipulated as hereinabove set forth and good cause appearing therefore;IT IS SO ORDERED

17 ,2007 l!},JITED STATES1819202122232425262728

B y : _ - = ~ " , . . . . _ ~ ~ ~ __ c - ; ~ ' 7 " ' _The Honorable Theresa A GoldnerUnited States Magistrate Judge

USDC, ED Case NO.1 :07-cv-00026 OWW TAGSTIPULATION RE ADDRESSES OF DISCLOSED WITNESSES 3


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, ,. 1 ' 0 ~ 0 . . . . Law Offices of . a"e . I-cv- 0 0 2 6 - V V ~ R K o ~ . n w A S S E R e d 2/2007400 Capirol Mall. Suite 1100Sacramento, California 95814

Office, 916-444-6400 Fa'" 916-444-6405mwasser@markwasseLcom

October 1, 2007

Paga 11 of 20

Eugene LeeLaw v.,,,".o Lee

90013-

Re: Jadwill v. COUllty ojKern, et al.

Dear Mr. Lee:This is in response to your letter this morning.The Defendants j representations to you regarding acceptance sen;jce on behalf

of an parties employees fujd making employees available to you on requesthave not been '''oral. '" You and 1 ha"ve had no communications rllonths, QUIr e p r e s e n t a t i o n s ~ indeed, all our commuD1catlons to you on this topic a'1d all other topicsfor the past few months have been, and still are, written. Hence, the statements in yourletter about oral representations are false. I will not spend any time referring you to themany writ ings in which I have made the representations. They will be provided to theCourt in our motion and you have them.

Neither Rule 29 nor Local Rule 83-143 "require" a stipulation. Rule 29 states thatparties may by written stipulation provide that depositions "may be taken before anyperson, at any time and place, upon any notice, and in any manner . . . " and "modifyother procedures governing or limitations placed on discovery" except for certainenumerated rules that do not apply to our circumstances. As you know, the word "may"is discretionary, not mandatory. Thus, your statement that Rule 29 requires a stipulationis false. Local Rule 83-143 imposes certain requirements on the form of stipulations andrequires that stipulations be approved by the Court but does not "require" stipulations.Thus, your statement that it does is also false. Further, even if Rule 29 did apply, we arenot proposing to change any of the things Rule 29 addresses. We are not proposing to

Adrnitted w Practice in California and Nevada


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.,CEu'ierie%P-00026-l-TAGOctober 1, 2007Page 2

Documenl58 iled . 2 /2007 Page 12 of 20vary any terms of discovery. Neither Rule 29 nor Local Rule 83-143 have anyapplication, As foreign as i t may be to your style of practice, we are simply proposing anaccommodation to make it easier for you to contact County employees by offering tomake them available. It really is that simple.

So you are d e a r ~ let me 'NTite J again7 ".:vhat I have 'written pre-viously: I 'NiH acceptservice of all process and notices on behalfof all parties and all County employees fuld,further, will make all parties and employees available to you upon request. 1will provideyou all known contact information on any employees who leave County

IS no1 10 deposit,orlS orattendance at trial, It applies to any request you have for an eil lployeewitness, such as 2,request to meet ,,\lith them or conduct an informal interview.

letter is Do tAs fElT as your questle,11S about

afraid of and what they base their I rra\'e declarationsemployees at KMC who all worked with Dr. Jadwin and, on the basis of theirobservations of his behavior, have safety and privacy concerns about disclosing theirhome addresses to him. One declarant mentions his physical aggression towards Dr. Lan,On the basis of my interviews to date, I bel ieve every employee I have talked to wouldsign a similar declaration if asked but 1do not believe 20 or 30 declarations arenecessary. The evidence win come out at triaL So; I have settled on five.

The stipulation you have proposed is not acceptable because itl like earlierversions you have sent, proposes terms that modify the normal rules in ways "'JYe havenever \Vfitten about or agreed to, Consequently; we are not signing it. I am not opposedTO stipulations but 1 do not believe one is necessary' and 1 do nol sign < i t a k e - i t ~ o r -leave-it" stipulations sent with threats and deadlines.

1plan to have our motion for a protective order, along , , ~ t h the supportingdeclarations, filed within the next few days. As much as I dislike requesting fees fromopposing counsel, 1will request fees because this entire exercise is wasteful andunnecessary. If there are other issues you would like to discuss, in writ ing, let me know.

Very Truly Yours,

Mark A Wasser

cc: Karen Barnes (via first class mail)Joan Herrington (via first class mail)


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 23 of 600: narl\ wasser e Ib-q&fq-oqro

" Case 1:07.CV-00026-Cttv-TAG Documen158r':j , ,)J..i .VllV; .... fJII

Filed . 212007 Page 14 of 20

This "representation" is too uncertain to meet Plaintiff 's needs. For instance, how soon after anemployee leaves County employment will Defendants provide Plaintiff with that employee'shome contact information? Soon enough to ensure Plaintiff can subpoena them for depositions ortrial? Does "employees" include independent contractors (this became an issue with regard toDavid CoJberson)?Because of these uncertainties, Plaintiffneeds to memorialize Defendants'representations in a negotiated "Written stipulation.Defendants have also stated: "The stipulation you have proposed is not acceptable because it,!ike earlier versions you have sent, proposes terms that modify the normal rules in ways we havenever written or agreed to." Plaintiffwould like clarification on what you consider the"'normal rules "" and Defendants are to offer any modiflcatio:rJS1D the Of{)p(osedst.ipulation.The Fax also stated: "I. All our represenWions t indeed; aH our corruTlunications to you on t . ~ i s topicand all other topics for the past few months have beerL and are, written. thestatements in your letter about oral representations are false," The Fax went on to state: "Plt:asethis letter is not oral, It is \.witten on the p2rfJer you are readjng,"Plaintiffis aware of the difference between oral and viritten representations. However, ::iOUshould recall that, on September 19,2007, you sent me an email regarding the witness home infoissue where you wrote: "I have made consistent representations to you, since our first telephoneconversation over 6 months ago, and have stood by them." Any representations which you madeto me during that call were ora] representations.\Ve look forward to your response. Hopefully, we can avoid the need for a motion fOr protectiveorder by amicably resolving this aUlOng ourselves. Please do not hesitate to contact me with anyquestions.

cc: Joan Herrington, Esq.enc: Proposed Stipula tion

2


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 24 of 60 ase 1 0 7 - C V - 0 0 0 2 6 . M A R ~ X ~ 1 ~ s E : f t ' d . 1 2 / 2 0 0 7400 Capitol Mall, Suire J100Sacramenro, California 95814

Office: 916-444-6400 Fax: 916-444-640)[email protected]

October 3. 2007

Page 15 of 20

Eugene Leeof LeeStreeL 5ui1:t 31

Re,' Jadwin v, COUIl(V ofKern, el al.

Dear I\1r. Lee:Corresponding ~ \ ' i t h you could become 8 full-lime job.

,\eV


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 25 of 60ase 1:07-CV-0002+w-TAGEugene LeeOctober 3, 2007Page 2

Document 58 i le . /12/2007 Page 16 of 20when it is available. This is not a " trick" answer. We have no interest in concealing anyemployee and we will do our best to insure that all employees are kept available totestify, either formally or informally. I am, as usual, surprised that you raise theseconcerns because I would suspect Dr. Jadwin would be the one to want employeesconcealed. Their testimony \Viii hun him, not the Defendants. The employees wili be thesource of information about Dr. Jadv,:in's behavior. They are the ones who know how hedro\'e other people out of the Patholog;-' Department. how he to acted by intin1idation fuldhostility. ho"'y he fbreatened his co-vv'orkers and hO\\i he created stress in the workplace.\\'] 11 to the case and ,,'c'e "\Ni11 do al] in our power to make themavailable' to yct:

':{our eomment about en) Septerno,er 19 Jetter makes my point Yes ,oufrepresentstions have been consiste.nt fer over 6 months. 1 flrst made therrl orally buthav'c been Inade and ie!,c',cc'U mcommtmlcate

since then because :;,"01) and 1 no

a motion to compel and a protective order seems advisabie.

Very Truly Yours,

rvlark A. \Vasser

cc: Karen Barnes {V13 fIrst classJoan Hen-ington (via first class mail)


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 26 of 60O: MarK wasser ' ~ l b - q q q - ~

Case 1:07-cv-00026-0WW-TAG Document 58 Filed 10/12/2007 Page '17 of 20IZ I ~ ) 9 S 1 Z - ~ 2 S 1 S 1T E L E P H O N E LAW OFFICE

EUGENE L O FE E ELE:[email protected](2,1:3) 5 9 6 - 0 4 1 3 7F A C S I M I L EEUGENE D. LEE, ESQPRfNCl"PAL

InA FACSIMILE

555 W E S T ~ I " ' T H S T RE E T, S U IT E := 1 00. L O S A N G E L E S , C A U . , - O R N I A 9 0 0 1 : :. ': 1 - )0 1 0

October 5, 2007

WWW.LOEL .COMW E S S I T E

JOAN E HEIUUNGTQN,ESQ.OF COUNSEL

Mark WasserLaw Offices ofMark Wasser400 Capitol Mall Ste 1]00Sa:oram"nhJ, CA 95814

100011,001

Re: Defendants' Motion lo r Protective OrderJadwin / County of Kern et a1. (USDC EDCA No. 1 : 0 7 - c v - 0 0 0 2 6 ~ O \ V V ! / T A G )

Dear Mr. \Vasscr:I am in receipt of your faxe-d letter ofOctober 3According to the Fax, the employee-declarants state,

that this case arose out of work-related i s s u e s ~ does not involve any of theemployees In their personal or private lives, that they all believe their private livesshould be k.ept separate from the-ir work c a r e e r s ~ that they are aU available at theirwork addresses to be contacted in connection vvith tms case and t he} do no t wantDr, Jadwin to know where they Jive,

In other the dec1arants have ordinary privacy cone-erns.FRCP 26(a)(l) expresses the legislature'S wiE thai parJes be wilnesses' home contactinformation notwithstanding privacy concerns. In FoLsom y HeartlandBank, the court ruled thatdefendants have a duty to disclose the home contact information for witnesses under FRCP26(a)(1):

The identified former and current employees directly worked on the loan betweenplaintiffs and Hear tland which is the subject of this litigation [, . . ,1 Suchindividuals appear likely to have discoverable information relevant to disputedfacts alleged with particularity, Fed, R eiv, p, 26(a)(lXA) thus requiresHeart land to disclose their known addresses and telephone numbers, withoutawaiting a discovery request ' It may no t satisfY this obligation by disclosing itsbusiness address and phone number, unless it knows of no other address andnumber,' DIXOn v, Certaimeed Corp" 164 F,R.D, 685, 689 (D, Kan, 1996), Rule26(a){1){A) contemplates disclosure of the personal address and telephonenumber of identified individuals.1999U.S. DisL LEXIS 7814 (D, Kan, 1999) (emphasis added),


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 27 of 60, I .MevrrHiG VI l . . ~ 1 1 C L=

Case 1:07-cv-00026-0WW-TAG Document 58 Filed 10/12/2007 Page 18 of 20

Ordinary privacy concerns do not trump Plaintiff's right to the witnesses' home contactinformation as expressed by FRep 26(a)(1} If you have caselaw suggesting otherwise, pleaseprovide us such citations as part of your good faith meet and confer.The Fax leaves a number of Plaintiff's questions unanswered. Defendants had stated in their faxofOctober 1: "The stipUlation you have proposed is not acceptable because it, like- earlierversions you have sent, proposes terms that modify the normal rules in ways we have neverwritten about or agreed to." Plaintiff still awaits darlfication on what Defendants consider the"normal rules".Plaintiff's letter of October 1 had also asked: \\Thieh Dfthe 'tvltness2s listed on Defendants"Supplemental" Initial Disclosures are employees of Kern as tv meiopen.,ie!1;contractors [and how can Plaintiffbe sure which are encompassed 'within Defendants''''representations'']? Plaintiffs proposed stipulation addresses this issue.

TIle Fax fi,:giher states "Like you, vve wDutd liketD avoid the need for a o f d e r . ' ~Plaintiff would like 10 take this base of one further and revisit the idea Df av"TItlen stipulation, A \-\-Titten ",,,,,-culd avoid frie need for Defendants' motion forprotective order v/bile accomplishing the goals ofthe parties. Plaintiffhas ahvays been., andremains, wi !ling to negotiate a written stipulation with Defendants which completely o b \ ~ a t e s theneed for such a motion,Plaintiffhas already on numerous occasions provided Defendants with the draft stipulation as astarting point for discussions. Please jetus know jf you require another copy.\Ve look forward to your response. HopefuHYt we can avoid the need for a motion for protectiveorder by amicably resolving this among ourselves. Please do not hesitate 10 contact me with anyquestions.

cc: Joan Herrington, Esq.

2


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 28 of 60 " Law Offices ofCase 10 (-cv-0002o-0WW- I W A R 1 ~ G ) 6 r : ~ S S ERd 10/12/2007400 C",pito! i\1all, Suite 1100S"'"cramemo, California 95814

Office, 9 J6-444-6400 Fax, 9] 6-444-6405mwasser@marl.;:,vasser.com

October 5, 2007

Page 19 of 20

Lav,' of r Cl"CHC Lee

Dear rv1 r. Lee:\\"'hjJe we both apparently \\'anl to avoid the Illotion for a protective order. your

motion 10 compells still pending and the letter ;/OU faxed late last night seenlS to take aneven less llexible position on honK addresses than your earlier correspondence.Comparing it with, for example, the e-"mail and draft stipulation you sent me onSeptember 18, 11 appears your position on home addresses has hardened. Then, you werefocusIng on home addresscs for forrner employees, No""\'. )"on \vant home addresses

e-yer}"onc:. contraCTOrs. You may recalL vv"e ga"ve you theaddress of D,:1'vid Culberson's . o ~ . ~ 1 o . does not ha\iC his h0l11e address.Dr. Roy has relocated to Alabmna. To my k n o \ \ ; l e d g e ~ no one a1 the Count)' >cnrm1Swhere he lives. There are other examples but two suffices to make the point.

1think we just disagree. You believe Rule 26 requires home addresses while webelieve it simply requires addresses that will ensure witness availability. The goal, afterall, is to contact witnesses. I f the address disclosed enables that contact it should notmatter whether it is a "home" address or a business address. We have gone to somelengths to guarantee that we will make all employee witnesses available but you still findour efforts unsatisfactory. As far as a stipulation goes, 1do not know what to propose.You insist on home addresses and we continue to believe we have fully satisfied Rule 26by disclosing individual business addresses and guaranteeing availability of allemployees. As 1wrote several days ago, 1do not understand your concern. Maybe if Idid, we could better meet it.

Admitted to Pracrice in California and Nevada


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 29 of 60ase 1:07-cv-00026-0WW-TAG Document 58Eugene LeeOctober 5. 2007Page 2 iled 10i12i2007 Page 20 of 20As much as I wish it were otherwise. it appears the Court will need to provide

guidance on this. I see no other resolution in sight.

'{ours,

cc: Karen Barnes (via fIrst class mall).,loaf'} Herrington (via first class D1ail)


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October 9, 2007

VIA FACSIMILE & FIRST CLASS MAILEugene LeeOffices555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Jailwin v. Coun,rvDear Lee:

et at.

Our opposition to your motion to compel and our motion for protective order withsupporting declarations are finished and we were going to file them with the Courtyesterday. However, because yesterday was a court holiday we decided to wait and filethem this morning. When I got to my office today, I found your letter that I received atII :23 p.m. last night.

As I have written before, I am tired of corresponding with you about the initialdisclosures. None of the letters either of us has written seem to have had any effect inbringing this matter closer to resolution. You write that the parties agree "in principle".Actually, I believe we disagree in principle. You want addresses and we notprovide them. Nothing we have exchanged indicates agreement. Nevertheless, andagainst my better judgment, I will give it one more try.I have prepared the enclosed stipulation. If it meets with your approval, pleasesign it and return it. I will submit it to the Court for signature.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via first class mail)Joan Herrington (via first class mail)


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1 Eugene D. Lee SB# 236812LAW OFFICES OF EUGENE LEE2 555West Fifth Street. Suite 3100Los Angeles, CA 900133 Phone: (213) 992-3299Fax: (213) 596-04874 E-mail: eleeiWLOEL.com5 Joan Herrington SB# 178988BAY AREA EMPLOYMENT LAW OFFICE6 5032 Woodminister LaneOakland. CA 946027 Phone: (510) 530-4078Fax: (510) 530-47258 ! E-mail: [email protected]. OfCounsef to LAW OFFICE EUGENE9 Attorneys for Plaintiff10 DAVID F. JADWIN, D.O.II Mark A. Wasser CA SB #060160OFFICES MARK12 400 Capitol Mall, Suite 11Sacramento, CA 9581413 Phone: (916) 444-6400Fax: (916) 444-640514 E-mail: [email protected] Bernard C. Barman, Sr.KERN COUNTY COUNSEL16 Mark Nations, ChiefDeputy1115 Truxtun Avenue, Fourth Floor17 Bakersfield, CA 93301

Phone: (661) 868-380018 ,Fax: (661) 868-3805I' E-mail: [email protected] Attorneys for Defendants County ofKern, Peter Bryan, Irwin Harris, Eugene Kercher,20 Jennifer Abraham, Scott Ragland, Toni Smith and William Roy21 UNITED STATES DISTRICT COURT22 EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.

COUNTY OF KERN, et ai.,Defendants.

Plaintiff,vs.

) Case No.: 1:07-cv-26)) STIPULATION RE: ADDRESS) INFORMATION FOR POTENTIAL) WITNESSES LISTED IN THE INITIAL) DISCLOSURES)) Complaint Filed: January 5, 2007) Trial Date: August 26, 2008------------)

2425262728

23

STIPULAnON RE: ADDRESS INFORMAnON FOR POTENTIAL WITNESSESLISTED IN THE PARTIES INITIAL DISCLOSURES

1


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1 It is hereby stipulated by and between the parties hereto through their respective counsel2 as follows:3 1. Defendants shall make all employees identified in Defendants' initial disclosures4 available to Plaintiff for deposition or informal interview on reasonable notice by request to5 Defendants' counseL6 2 Defendants shall provide Plaintiffwith updated address and contact information,7 if known, for any employees who leave County employment during the pendency of this case on89

~ ' 1 " ~ 0 ' by PlfiintitI's counsel toDefendants' counsel shall accept service all process and notices for all

10 employees,lJ 4, home addresses personal contact mtOf!J1at::on for all employees12 shall bc protected and not disclosed to Plaintiffand Defendants shall forebear filing a13 motion for a protective order to protect that information,14 5. Plaintiff shall take his motion to compel, presently set for hearing on November 5,15 2007, off calendar.16

Dated: October __ , 2007

17 Dated: October__ , 20071819202122232425262728

LAW OFFICE OF EUGENE

By: _Eugene D. LeeAttorney for Plaintiff, David F. Jadwin, D.O.

LAW OFFICES OFMARK A. WASSER

By: _Mark A. WasserAttorney for Defendants, County ofKern, et al.

STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL WITNESSESLISTED IN THE PARTIES INITIAL DISCLOSURES

2


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123

ORDERThe parties having stipulated as hereinabove set forth and good cause appearing

therefore;IT IS SO ORDERED.

5678910l l j1213141516171819202122232425262728

Dated: October .2007 lJNlTED STATES DISTRICT COURTBy: _

The Honorable Oliver W. WangerDistrict Court

STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL WITNESSESLISTED IN THE PARTIES INITIAL DISCLOSURES

3


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B


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 35 of 60ase 1:07-cv-00026-0WW-TAG Document 49 iled 09/24/2007 Page 1 of 11

37(a)]November 5, 20079:30 a.m.U.S. District Court, Bankruptcy Courtroom1300 18th St., Bakerstield, CA

.R.C.P. RIB lOs 26(a)(J)

II

Case No. 1:07-cv-00026-0WW-TAG 1PLAINTIFF'S MEMORANDUM OF POINTslAND AUTHORITIES IN SUPPORT OF IIMOTION TO COMPEL COMP L E T E ,INITIAL DISCLOSURES FROM IDEFENDANTS; REQUEST FOR ISANCTIONS I

Date:Time:Place:

UNITEDFOR THE EASTERN DISTRICT OF CALIFOR


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 36 of 60ase 1:07-cv-00026-0WW-TAG Document 49 iled 09/24/2007 Page 2 of 11I Defendants and/or their counsel of fees and expenses incurred by Plaintiffin bringing this motion and2 such other relief as the Court deems appropriate, pursuant to Rule 37(a).

has been ieft noatter.

have resoiv'ed

I. CERTIFICATION OF GOOD FAITH ATTEMPTS TO MEET AND CONFERPlaintiff hereby certifies that he has in good faith conferred or attempted to confer with

Defendants in an effort to secure the required disclosure without court action. Despite meet and confersoccurring from August 10 to September 20, 2007, Defendants have refused to sign or even negotiate a6

I9 II made this final plea:

iI Forthe please reconsider Defendarlts' unreasonable refusal to reduce its101 i agl'ee'ment to the ' stipulation and order bv the rules above.I has provided Defendants the proposed stijJul:aticm r e : q w ~ s t E : d1 I h12' 1.1 t em to

Defendants refused, stating "perhaps we should litigate"

345

13 choice but to bring this motion to compel seeking fees and costs.14 n. BACKGROUND15 Plaintif fDavid Jadwin, D.O., F.CA.P., former Chair of Pathology at Kern Medical Center16

I("KMC") and senior pathologist since 2000, flied a Complaint on January 6, 2007. The Complaint17 11 alleges, among that Defendants engaged in the following illegal acts: whistleblower18 ljII retaliation, discrimination, medical leave and retaliation, and pay19 Ireduction without due process, and Fair Labor Standard Act violations. When Plaintiff began reporting202122232425262718

several patient care quality issues at KMC starting in 2001, Defendants responded by singling out andtargeting Plaintifffor harassment, retaliation and humiliation over the course of the next six years. In2005, Defendants' conduct finally caused Plaintiffto suffer clinical depression. When Plaintiffbeganreduced work schedule sick leave in 2006 to treat his depression, Defendants responded by demotinghim and retaliating against him further, effectively ending Plaintiff's pathology career.

On August 6,2007, the parties served Rule 26(a)(l) Initial Disclosures on each other.On August 10, Plaintiff sent a meet and confer email to Defendants informing them that

Defendants' Initial Disclosures ("Disclosure I") were deficient in several respects. Later that day,

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTiONS 2


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 37 of 60ase 1:07-cv-00026-0WW-TAG Document 49 iled 09/24/2007 Page 4 of 111 Attached to the email was the draft Stipulation. The email requested Defendants serve the signed2 Stipulation and corrected Initial Disclosures by September 20.3 On September 19, Defendants sent two replies to Plaintiffs email of September 18, stating4 Defendants' refusal to sign or even negotiate the Stipulation, and instead offering an informal assurance.5 that Defendants would provide "contact information for all fOl"m,,,employees". Later that day, Plaintiff'6 sent a meet and confer email to Defendants stating "I th ink the name-cal ling is unnecessary" and asking

enoujgh, bring yourtated "ifthat is not

87

9

II to given vagueness of Defendants' informal assurance.II Defendants responded by citing "representations" they had made recently and in emails dating back toI "a t least if not March" They "1 am not going to take the t ime to iook for them because this

10 I is a waste of at refuses to someone it controls H"'''!iiD'''1'I -11 II to you. you can with it Defer,dants at one12 Imotion. Your contentiousness is tiring."13 On September 20, Defendants sent an email to PlaintiffSlating "[t]he Stipulation you have sent14 me is not necessary and nothing in the rules you cite is applicable. 1know you enjoy disagreements but15 cannot find one here. Remind me what the disagreement is. And what it is that needs to be compelled."16 Later that day, Plaintiff sent a meet and confer email to Defendants stating ask you, not17 the first (and probably not the last), please leave the personal insults out of our interactions." The18 then ~ A , ~ W l ! l ! ' U at length USDC LiJ'--r\ Rule 83-143 and FRCP Rule 29 reml;re19 agreements between counsel which vary discovery procedures and deadlines be memorialized in a20 written stipulation and order signed by the Court. Attached to the email was the draft Stipulation. The21 email slated that the deadline of September 20 remained and that Defendants should serve the signed22 Stipulation and corrected Initial Disclosures by the close of business hours that day.23 Plaintiff and Defendants went on to exchange three more meet and confer emails throughout the24 day. Final ly, Plainti ffs tated:25 For the last time, please reconsider Defendants' unreasonable refusal to reduce itsagreement to the required stipulation and order required by the rules cited above.26 Plaintiff has repeatedly provided Defendants with the proposed stipulation and requestedthem to either sign or propose amendments.2728 Attached to the email was the draft Stipulation. Defendants, however, refused to sign or negotiate the

PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 4


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 38 of 60ase 1:07-cv-00026-0WW-TAG Document 49 iled 09/24/2007 Page 5 of 11Stipulation, stating "[i]f it is your position that there can be no agreements between counsel that are not

2 reduced to formal stipulat ion and order, then, perhaps we should litigate that."3 As of the close of business hours on September 20, Defendants had served neither the signed4 Stipulation nor complete Amended Initial Disclosures on Plaintiff.5 HI.ARGUMENT

ENTITLED HOME CONTACT INFORMATION FOR ALLDEFENDANTS' INITIAL DISCLOSURES6

8 Rule 26(a)( I FRep provides that a party must, without awaiting a discovery request,if known, the address and telephone number of each

claims orinformation,"

party may use to supportthe subjects

the9 II to other parties: "the name10 Ilikely to11 Idefenses, unless tor nnnp"rh12 In their Initial Disclosures, Defendants have indicated only the address for Kern Medical Center13 (and in some cases, the work phone number) as the contact information for those witnesses who are14 Lcurrently employees ofDefendant Kern County ("Witnesses') Plaintiff has requested the Witnesses'15 ! home address and phone number, but Defendants have refused, contending that Rule 26 contains no

17 11II18 Isuch requirement.6

19202122232425262728

Idisclosure requirement contained in Rule 26(a)(I)(A) serves several important purposes, As Icourt noted in Biltrite Corp v. World Rd Markings, Inc: IIThe obvious purpose of the disclosure requirement of Rule 26(a)(I)(A), Fed, K eiv, p"is to give the opposing party information as to the identification and location of personswith knowledge so that they can be contacted in connection with the litigation, either forpurposes of serving a proposed amended complaint (as occurred in this case) or forbeing interviewed or for being deposed or for doing background investigation,202 F,RD, 359, 362 (D, Mass, 2001)To facilitate such purposes, Rule 26(a)(l)(A) mandates disclosure oftlie home address and

phone number ofwitnesses, AsMoore's Federal Practice states: "Furthenmore, ifsome or all of theidentified individuals are employees of the disclosing party, their home addresses and telephonenumbers mus t be disclosed. The disclosing party does no t satisfy its initial disclosure obligation byproviding only its business address and telephone number, even for current employees withmanagerial responsibilities, unless the disclosing party knows of no other address or telephone number,"

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 5


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,56

6-26Moore's Federal Practice - Civil 26.22 (emphasis added).Likewise, in Dixon v. CertainTeed Corp., the court expressly held that disclosure of only

business addresses for witnesses does no t satisfy the obligation under Rule 26(a)(l). 164 F.R.D. 685, I688 - 689 (D. Kan. 1996). Defendants have contended in meet and confers that Dixon is distinguishable Ibecause the employer had refused to produce its employees, thereby compelling plaintiffto seek their . Ihome addresses so he could directly contact them. In contrast, Defendants claim they are offering to

Dixon

for employees

aspattern, Defendants misinterpret

as nr0.,,;;:P contact inf()rm

Dixon comi ( pC l lNJ the

In short, FRCP Rule 26(a)(l)(A) entitles Plaintiffto the home addresses and phone numbers of

upon them, informal interviews of them, etc. Defendants' willingness to produce such Witnesses doesthe Witnesses. Doing so facilitates Plaintiff's investigation of such Witnesses, service of documents

not, and should not, bear on Plaintiffs right to such home contact information.

7

14

1213

II procluce emj)lo)'ces uponII who may leave.

9 I In focusing on an ins:igiliticaJ1t facetII court's hoJdmg,11 II i ~ ' ! ~ ~ r ! initially 31 individuals to discoverable information. ithas subsequently identified other such individuals. has not disclosed, however, theaddresses or telephone numbers of current employees. It contends that Rule 26(a) doesnot require such disclosure. In a novel approach it cites correspondence between counselfor the parties as support for such proposition. The cited "authority" consists only of acollection of letters between counsel. They contain no legal citation for the propositionplaintiff asserts.Id at 688.

15 IIAbsent from the court's recitation is any reference to the employer's willingness or unwillingness to16

! produce employees to the plaintiff. In the very next sentences, the court immediately went on to hold:17 11 Identification individuals pursuant to Fed. R. . 26(a)(1) includes providing their18 !/ addresses and telephone numbers, if known. The rule expressly states as much. PursuantI to Rule 26(a)(1), therefore, CertainTeed shail disclose the addresses and telephone19 numbers of ail the identified employees. I t may no t satisfy this obligation bydisclosing its bnsiness address and phone number, unless it knows of no otheraddress and number.164 F.R.D. 685, 688 - 689 (D. Kan. 1996) (emphasis added).20212223242526 B. ALTHOUGH PLAINTIFF IS WILLING TO ENTER INTO A STIPULATION,DEFENDANTS REFUSE TO SIGN, OR EVEN NEGOTIATE, A WRITTEN27 STIPULATION AND ORDERAS IS REQUIRED BY THE FRCP AND LOCALRULES28



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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 42 of 60ase 1:07 -cv-00026-0WW-TAG Document 49 iled 09/24/2007 Page 9 of 11I may include informing the jury of the failure to make the disclosure.2 Moreover, the party who prevails on a motion to compel is entitled to reasonable attorney fees3 and costs, unless the losing party was substantially justified in making or opposing the motion or other4 circumstances make such an award unjust. Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil5

78

6Procedure Before Trial (2007) ] I: 2380, citing PRCP 37(a)(4); H. K. Porter Co., Inc. v. Goodyear Tir1

I & Rubber Co. 536 F2d I I 15, 1124-1125 (6th eiL 1976). III or intent" not shown in s t a n d : ~ r d i\1 is whether there was "substantial justification" for the losing party's conduct. PRep 37(a)(4); Reygo IIII Pac. Corp. v. Johnston Pump Co. 680 647. 649 (9th 1982); Sheppard v. River Valley Fitness .1

1

10 lOne, IP 428 L 1 i ( l 5t Cir. facing the , a UMH Jm has the hllr


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Case 1:07-cv-00026-OWW-TAG Document 69 Filed 10/31/2007 Page 43 of 60ase 1:07-cv-00026-0WW-TAG Document 49 iled 09/24/2007 Page 10 of 11

order Defendants andlor theirnddisclose the home addresses and phone numbers of

26(a)(i

IV. CONCLUSION

therein pursuant to

For the foregoing reasons, Plaintiff respectfully requests that the Court (I) compel Defendants to

IIIIIIIIIIII/11

witnessescounsel to pay Plaintiff $2,700 for attorney fees and costs reasonably incurred in bringing this motion,pursuant to Rule 37(a).

I permission to retrieve his personal belongings, including valuable medical books, which had2 accumulated in his office during the last seven years. After almost 3 months of repeated emails, letters3 and entreaties by Plaintiff, Defendants continue to withhold Plaintiffs personal belongings from him.4 Worst of all, Defendants have refused to give Plaintiff any explanations, despite his numerous requests5 Ior one.6.1 It is In this context that Plaintiffs unwillingness to rely on Defendants' "representations" should7 "be and offers are the latestj'd8 Iexamples of the harassing and retaliatory behavior Defendants have on Plaintiff.9 II requests Court sanction Defendants andlor their counsel award Plaintiffa ttorney10 II fees in the amount of m of I of the hours Mr. Eugene Lee and I ofthe hours11 I, Ms. Joan meeting and to avoid this 2I12 Mr. Lee and 2 ofthe hours Ms. Herrington spent or anticipate spending in bringing this motion. Ms.13 Herrington's and Mr. Lee's regular rates for such services are $500 and $400 per hour, respectively. Lee

Dec!. at 16; Herrington Dec!. at 3.

I17 II serve Wll1 " "CCC18 I]9202122232425262728



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2

ase 1:07 -cv-00026-0WW-TAG Document 49Respectfully submitted on September 24, 2007.

iled 09/24/2007 Page 11 of 11345678 I9 I101I11 !1213141516171819202122232425262728

lsi Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487 I,Email: elee!alLOEL.comJoan SB# 178988 "hn.fn,.,4 on 9/24/07)1

BAY AREA EMPLOYMENT ~ ,nn5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725

[email protected] toAttorneys for nL' , 'C

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTOFMOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 11


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1 Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasserlalmarkwasseLcom5 Bernard C. Barmann, Sf.KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy.\1115 Truxton Avenue, Fourth7 Bakersfield, CA 93301i Phone: (661) 8 6 0 8 - 3 ~ 0 08 I Fax: (661) 8 6 8 - ~ 8 0 )9 II E-mail: [email protected]

Ii Attorneys for Defendants County ofKern,II[ Peter Bryan, Irwin Harris, Eugene Kercher,11 ,Jennifer Abraham, Scott Ragland, Smith12 II andI

1314

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

Date Action Filed: January 6, 2007Trial Date: August 26, 2008

DEFENDANTS' MEMORANDUM OF IPOINTS AND AUTHORITIES INOPPOSITION TO MOTION TO COMPEL!IDate: November 5. 2007 ITime: 9:30 a.m. .Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 8Defendants.

KERN, et aI.,vs.

) Case No.: 1:07-cv-00026-0WW-TAG)))))))))))

------------)

212223

15 I16 I DAVID F. JADWIN, D.O.17 1\ Plaintiff,18 II1911 COUNTY20

24 Defendants respectfully submit this memorandum in opposition to Plaint iff s motion to25 compeL

Despite having been provided with addresses and telephone numbers for all County262728

I. DEFENDANTS' HAVE FULLY COMPLIEDWITH RULE 26(a)(1)(A)

DEFENDANTS' MEMORANDUM OF POINTS ANAUTHORITIES IN OPPOSITION TO MOTION TO COMPE

1


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to

initial disclosures thr .mn

,cc,vel'V request,tates

discoverab Ieoother parties "the name and, if known, the address and telephone number of each individual

employees who may be witnesses in this case as well as the Defendants' writtenrepresentationsthat all employees will be made available to Plaintiffupon request, that Defendants will providePlaintiff with contact information on all employees who leave County employment during thependency of this case, and that Defendants' counsel will accept service of all process and noticeson behalfof all Defendants and employees and ensure their availability, Plaintiffasserts thatDefendants have failed to satisfy the requirements of Rule 26(a)(l)(A), Plaintiffs assertion is so'groundless as to call into question Plaintiffs good-faith,

I23

5467

i8 II

,: II I12 and completely satisfied Rule, Detendants not only nrr1V1i1"ri addresses13 and telephone numbers for every employee, they provided additional, written, representations, as14 described above, A copy of the transmittal letter that contained Defendants' representations in15 this regard is attached to the Declaration ofMark A Wasser in Opposition to Motion to CompeL161 The clear policy behind Rule 26(a)(1 )(A) is to inform the opposing party of potential17 i witnesses and provide sufficlent information to make them available, Defendants fully satisfied18 ,both the Rule, lai'ntiJ'fls pre:selltly in possession ofthe """"ai,19 individual, addresses and telephone numbers for each employee who Defendants have initially20 identified as a potential witness, Plaintiff is also in possession of the Defendants' written21 promise to provide contact information on employees who leave employment during this case22 and make each and every employee available upon request and to accept service of all process23 and notices on their behalf.24 Not satisfied, Plaintiff insists he is entitled to "home" addresses for the employees. For25 authority, Plaintiff relies on a 1996 District Court decision from Kansas, Dixon v, CertainTeed26 Corp" 164 F,R.D, 685, (Plaintiff also cites Moore's Federal Practice but the language in27 Moore's is supported only by CertainTeed and, thus, is not additional authority, (See 6-2628 Moore's Federal Practice - Civil 26,22, fn, 23).


2


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1 Interestingly, the CertainTeed court did not actually order disclosure of "home"2 addresses. It simply ordered the employer to "disclose the addresses and telephone numbers of3 its current employees." Dixon v. CertainTeed Corp., 164 F.R.D. 685, 693. This, of course, is4 I consistent with the language in Rule 26(a)(l)(A) which does not reference "home" addresses at

address and phone number" (Jd. at 689) contending that the plaintiffcould not contact the

all. It is doubtful that the CertainTeed decision brings any weight to bear on this issue and,ironically, it actually underscores the absence of support for Plaintiffs position.

In Certainteed, the employer refused to provide addresses or telephone numbers for anyemployer only ""'ClU'"''

complaining that disclosing additional addresses would

themmployees

employees any way (Id. at 688)

5678 I9110111 Inc:reilse the em.pJ()yer s dis:coVel"Y costs. at p. 687.12 facts are a world away. the ~ ~ , ~ " u u m o not fully disclosed the13 addresses and telephone numbers of all employees, the addresses and telephone numbers the14 Defendants provided are the individual employees' actual work addresses and telephone15 numbers not general addresses or telephones for the employer. Those disclosures, alone, fully16 satisfy Rule 26. But the Defendants provided more. The Defendants accompanied their17 disclosures of the employee addresses and telephone numbers with commitments to provide all18 !employees upon request to accept service of process notices for Defendants19 employees and to provide updated eontact information on departing employees. By any20 measure, this is several steps beyond what Rule 26 requires.21 One might ask, "Why did Plaintiff file his motion?"22 There is another issue. As is more fully explained in Defendants' motion for protective23 order filed herewith (and set for hearing at the same time as this motion), County employees24 object to disclosing their home addresses to Plaintiff on grounds of privacy and personal safety.25 Dr. Jennifer Abraham, for example, does not want Plaintiff to know where she lives. She26 mentions Plaintiff s physical assault on another physician at Kern Medical Center and his verbal27 assaults on her and expresses safety concerns for her children and family. See Declaration of28 Jennifer Abraham in Support ofMotion for Protective Order. Other employees do not want


3


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opposmga waste

reasonable attorney fees ineBr,-pc!Court's

DEFENDANT'S SHOULD RECOVER THEIR RESONABLE ATTORJ'lEYFEES INCURRED IN OPPOSING THISMOnON

Defendants " " JU JU be awardedPI"intiff"ffiotJon is a waste

9

Plaintiffto know where they live and express their own safety and privacy concerns. See2 Declarations of Jane Thornton, Denise Long, Toni Smith and Michelle Burris. Defendants could3 provide many additional declarations to the Court but did not want to burden the Court with4 multiple, redundant statements.5 Plaintiffhas actual contact information for every employee identified in Defendants'6 initial disclosures. Plaintiff has Defendants' promise to make them all available on request.7 II Plaintiff even has Defendants' offer to accept service of all notices and process. Defendants'8 iI disclosures go substantially is Rule 26.

10 1.I'Jl II12 Iresources.

13 m. CONCLUSION14 Defendants' request that the Court deny Plaintiffs motion to compel and award15 Defendants' their reasonable attorney fees.16 Respectfully submitted,1718 I 9,I19202122232425262728

A. WASSER

By: /s/ Mark A. WasserMark A. WasserAttorney for Defendants, County of Kern, et al.

DEFENDANTS' MEMORANDUM OF POINTS ANAUTHORlTIES IN OPPOSITION TO MOTION TO COMPE

4


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1 Mark A. Wasser CA SB #060160LAW OFFlCES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwassenwmarkwasser.com5 Bernard C. Barmann, Sr.KERN COUNTY COUNSEL,6 Mark Nations, Chief Deputy1115 Truxton Avenue, Fourth7 Bakersfield, CA 93301Phone: (661) 868-38008 (661) 868-3805E-mail: [email protected]

11

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEFENDANTS' MOTION FOR APROTECTIVE ORDER RE: HOMEADDRESSESDate: November 5, 2007Time: 9:30 a.m. (date cleared by eRD)Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 8Date Action Filed: January 6, 2007Trial Date: August 26, 2008

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

Defendants.

) Case No.: 1:07-cv-00026-0WW-TAG))))

)))))

))

-------------)

1213141516 DAVIn F. JADWIN, D.O.17 Plaintiff.18 Ys.II,.19 . COUNTY OF KERN, et aL.20212223

242526 Defendants submit this memorandum in support of their motion for a protective order27 preventing the disclosure or discovery of employee home addresses to PlaintiffDavid Jadwin.28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTMOTION FOR PROTECTIVE ORDER REI EMPLOYEES' HOME ADDRESSE

1


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12

I. THIS COURT MAY ISSUE A PROTECTIVE ORDER ON A SHOWINGOF GOOD CAUSE

3 Rule 26(c) of the Federal Rules of Civil Procedure allows issuance of a protective order4 to limit disclosure or discovery, Foltz 11, State Farm Mutual Auto Insurance, 331 F3d 1122,5 1 1130 (9th CiL 2003),6 I The party seeking a protective order has the burden of establishing good cause sufficient7 to justifY' the protection requested, Id , Generally, the party must show that specific prejudice or

GOOD CAUSE EXSISTS FOR ISSUANCE OF A DnVT ' v r ' vORDER

name and, if Knc,wnto have r11Scm'c,endividual

re(mires Defendants to disclose toaddress12

8 II91'

III1314151617

the case, Defendants have done that Defendants have disclosed to Plaintiffthe name, addressand telephone number of each County employee who may be a witness in this case, Theaddresses and telephone numbers that have been disclosed are the employees' actual- individual- work addresses and telephone numbers, All potential witnesses are available at the addressesthat have been provided and through Defendants legal counsel,

written assurancesDefendants will nrr,vlciepon request,vailable to

20

18 II to the disclosures, Defendants have provided PlaintiffII that employees will be19 1Plaintiffwith contact infonnation on any employees who leave County employment during the2122232425

pendency of this case and that Defendants' counsel will accept service of all process and noticeson behalf of all Defendants and employees to ensure their availability to Plaintiff

The disclosures fully comply with Rule 26 and the assurances Defendants have providedgo substantially beyond the requirements ofRule 26, Plaintiff has more than he is entitled tounder the Rule,

262728

Despite this, Plaintiff has filed a motion to compel disclosure of "home" addresses,There is no justification for disclosing home addresses and the Defendants and employees objectto doing so, Hence, Defendants seek a protective order to protect the home addresses,

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTMOTION FOR PROTECTIVE ORDER RE: EMPLOYEES' HOME ADDRESSE2


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1 Filed herewith are the declarations of Jennifer Abraham, Toni Smith, Michelle Burris,2 Denise Long and Jane Thorton. All five individuals are Kern County employees and work at3 Kern Medical Center where Plaintiffused to work. They all know Plaintiff and had substantial4 contact with him during the course of his employment. For reasons of safety and privacy, they5 do not want Plaintiff to know where they live.,6 Jennifer Abraham is a physician. Her declaraiion recites that Plaintiff assaulted her7 verbally several times and physically assaulted another physician at Kern Medical Center. She8 II had several9 . and arrogant and does not t rus t him.

toShe has privacy and safety concerns for children and

hornton IS a '111')prV1


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1 Plaintiffhas alleged a hostile work environment. The Defendants have alleged that, to2 the extent the work environment was hostile, Plaintiff was responsible for it. Emotions continue3 to run strong over Plaintiff s behavior at Kern Medical Center. Several employees remain afraid4 of him. There is no reason to risk taking those emotions from the workplace and injecting them5 into individual, private lives - certainly not when Rule 26 has been fully satisfied through the67

disclosures that have been made. One might ask why Plaintiff is so determined to learn whereindividual employees live when he already has complete information with which to contact them.1

8 Ii II IS UNREASONABLE II: ,ill Although Defendants have attempted to resolve home address dispute through a II ' I

11 I i prolonged eXCII1aJnge of correspondence counsel, issue remains unresolved andjIIPhlintiff's u cmam , o have become more extreme as I

good faith and is entirely unjustified.DEFENDANTS ARE ENTITLED TO THEIR RESONABLEATTORNEYS ""''''0

16 on Defendants that also seeks discovery of home addresses.

: : I

13 unfolded. Plaintiff continues to seek an order compelling disclosure of home addresses as well14 as sanctions against Defendants for refusing to disclose them. Despite the meet-and-confer15 process on the initial disclosures, Plaintiff has just served a request for production of documents

Plaintiffs position is manifestly not I

192021222324

Because Plaintiff is continuing to insist on disclosures and discovery that exceeds what isrequired by Rule 26 or the discovery rules and in light of the concerns that employees at KernMedical Center still harbor over Plaintiff s behavior and their personal safety, Defendants haveno alternative but to seek protection of their home addresses. Defendants should be awardedtheir reasonable attorneys fees incurred in prosecuting this motion.

25262728

IIIIIIIII/II

MEMORANDUM OF POINTS AND AUTHORlTIES IN SUPPORT OF DEFENDANTMOTION FOR PROTECTIVE ORDER REI EMPLOYEES' HOME ADDRESSE

4


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1 Wherefore, Defendants request that this Court grant a protective order protecting the2 home addresses of County employees from disclosure or discovery to Plaintiff.34 Respectfully submitted,

Dated: October 12, 2007

19202122232425262728

LAW OFFICES OF MARK A. WASSER

Mark WasserAttorney for Defendants, County ofKern, et aL

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTMOTION FOR PROTECTIVE ORDER RE: EMPLOYEES' HOME ADDRESSE

5


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ATTACHMENT B


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narK wasser e ~ I b - q q q - . . . , r .J I U I V / LU /U f ..,; 11.1 pm

Hams, Eugene Kercher, JeMuer20

Attorneys for Defendants County of Kern, Peter Bryan,Abraham, Scott Ragland, Toni Smith, and William Roy.UNITED STATES DISTRICT COURT

21222324

DAVID F. JADWIN, D.O.,Plaintiff,v.

EASTERN DISTRICT OF CALIFORNIACivil Action No. 1:07-cv00026 OWW TAGJOINT STATEMENT RE: DISCOVERYDISAGREEMENT

25 COUNTY OF KERN, et ai"26 Defendants.2728

Date: November 5, 2007Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroo1300 18th St., Bakersfield, CAComplaint Filed: January 5, 2007Trial Date: August 26. 2008

USDC, ED Case No. I :07cv00026 OWW TAGJOINT STATEMENT RE: DISCOVERY DISAGREEMENT I


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narK wasser e ~ I b - q q q - b q w o r '11 0 IfJl LOflH ., ; 10 JIRf

I This joint statement rei discovery disagreement is submitted pursuant to Local Rule 37-251(a) in2 advanoe of the November 5, 2007 hearing on Defendants' motion for protective order.3 I. DETAILS OF THE PARTIES' DISCOVERY CONFERENCES.

Pursuant to Local Rule 37-Z51(b), the parties have met lllld conferred by email and letter an5 to elilnil1late the necessity a hearing on Defendants' m01lion to6 eliminate as many of the issues as possible. In spite ofthese efforts, the t o l l l o W l l l ~7 I: unresolved.8 I' to)) I o!sp1J1:eoI aod are atto,ol",d toII statement lle.l1lmd

12 n. A STATEMENTOF THE NATURE OF THE CASE AND FACTUAL DISPUTES.PlalntlffDavid F, JadWi!1, former of Pathology at Medical Center

14 ("KMC") lllld senior pathologist since 2000, filed a Complaint on January 6, Z007. The Compllaitlt

creating a lloiltl!etatient care qualmy

15 alleges whistleblower reUilllall0l0, IlJ,S/"nmy discl'iminatioltl, medical leave and payroll vm,Il""ms,pey reduction w,lhmll due prooess. Plaintiff contends that Defendants ret'aliated against6 demotion

17 III enV'IT01nmilnt. As a

2

PlaintiffWall 011 leave, Defendants demoted him for "unavailability"; refused to reinstate and20 retaliated against him further, effectively ending Plaintiff's pathology career.21 Defendants contend that the dispute arose out of Plaintiff's tenure as a pathologist at Kern22 Medical Center. Plaintiffs relationship with other members ofthe medical staffdeteriorated to the point23 of intimidation, hostility and antagonism. Defendants contend, to the extentthat any hostile work24 environment existed, it was caused by Plaintiff,25 The parties have made their initial disclosures pursuant to Rule 26(a)(l). The Defendants' initial26 disclosures included, among other things, a list of possible witnesses,27 Plaintiff objected to Defendant's initial disclosures under Rule 26(a)(IXA) on the grounds that28 Defendants had failed to disclose the home contact information of certain witnesses. Instead, Defendants

USDC, ED Case No. I:07-cv-00026 OWW TAGJOINT STATEMENT RE: DISCOVERY DISAGREEMENT


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trUII: Law un IGt: or t . U ~ H t : Lt:t: r fI 0 I fJ lLOIfH '1 :10 I-""

I2345678910111213141516

Declaration ofJennifer Abraham inSupport ofDefendants 'Motion forProtective Order (Doc, 59, 2:3),"Dr, Jadwin is emotional,(Doc, 59,2:4)"he physically assaulted at least oneother physician at Kern Nle'CllClUCenter."

(Doc,"Heare weliker

Declaration ofJane Thornton inSupport ofDefendants' MotionforProtective Order, (Doc, 63, 2:78)"Further, having observed Dr, Jadwin'sbehavior at Kern Medical Iknow is II person who Clm become. . . "

ILacks foundation: declarant fails to provide any factsestablishing tha! declarant has persona! knowledge oftbesefacts and/or is competent to testify concerning them,Cc:nclusory and invades the province ofthe jury: declarantLacks foundation: declarant fails to provide any factsestablishing that she lIlIll personal knowledge of theseand!or is competent to testilY concerning them, includingwhether declarant Wllll a percipient witness to such allegedassault

Lacks foundation: declarant fails to any factsestablishing declalant has llersorJ,lll knowledge ~ c , , " ' ~ ~ , ~anclior is competent to

69 mx protective order - inability to file joint statement

Documents