104 MPO Perez Depo - DFJ Declaration Re Joint Statement
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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 1
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Eugene D. Lee SB#: 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299
Fax: (213) 596-0487email: [email protected]
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,v.
COUNTY OF KERN, et al.,
Defendants.
Civil Action No. 1:07-cv-00026 OWW TAG
DECLARATION OF EUGENE D. LEE re:INABILITY TO SECURE COOPERATIONOF DEFENDANTS COUNSEL TOPREPARE AND EXECUTE JOINTSTATEMENT re: MOTION TO COMPELDEPOSITION OF PATRICIA PEREZ
Date: April 28, 2008Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroom
1300 18th St., Bakersfield, CA
Date Action Filed: January 6, 2007Date Set for Trial: December 3, 2008
Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a
joint statement re discovery disagreement.
I, Eugene D. Lee, declare as follows:
1. I am counsel of record for Plaintiff. I have personal knowledge of the matters set forthbelow and I could and would competently testify thereto if called as a witness in this matter.
2. On February 28, 2008, Plaintiff conducted the deposition in Bakersfield, CA, of PatriciaPerez, an employee in the HR department at Kern Medical Center, a hospital owned and operated by
defendant County of Kern. The deposition commenced at 10:40 a.m. In total, the parties were on the
record for only 93 minutes before plaintiff was forced to adjourn the deposition prematurely at 2:06 p.m.
During a 68-minute period of time on the record, defense counsel Mark Wasser engaged in obstructive
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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 2
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behavior, including speaking objections, witness coaching, responding on deponents behalf to questions
asked, etc. Defendant engaged in this behavior despite repeated warnings by plaintiffs counsel to stop.
Plaintiff seeks to recommence the deposition of Ms. Perez, as well as a protective order against further
obstructive behavior by Defendant (which has been characteristic at depositions thus far) at future
depositions, plaintiffs attorney fees and costs associated with the adjourned depositon and this motion,
and any other remedy which the court deems proper and just.
3. Briefing regarding Plaintiffs above-referenced contentions is contained in the draft JointStatement, attached hereto as Attachment A.
4. Pursuant to Local Rule 37-251, I attempted to secure the cooperation of Defendantscounsel, Mark Wasser, to prepare and execute a joint statement re discovery disagreement. On
Thursday, April 17, 2008, I both mailed (via certified mail with return receipt requested) and faxed
Defendant a draft version of the Joint Statement re: Discovery Disagreement (with all exhibits attached),
requesting his input. I explained in the cover letter that the draft was a work in progress and remained
subject to change. Attached hereto as Attachment A is a true and correct copy of the draft Joint
Statement which I had prepared.
5. In my rush, I unintentionally included the draft Declaration of Inability to SecureCooperation of Defendants Counsel which I had prepared ahead of time and was future-dated to April
23 (todays date) in the fax to defense counsel. By accusing me of making representations about defense
counsels refusal to cooperate that were both misleading and false, defense counsel makes much ado
over nothing. (Doc. 102, 3:17-20). A simple email exchange would have cleared up this confusion over
the accidentally included document.
6. I sent the draft joint statement to Defendant by both mail and fax a full week prior totoday in the expectation that he would review it and provide comments to me via email. Most of
counsels communications have taken the form of writing rather than phone calls, and this meet and
confer over the joint statement was no exception. To date, I did not receive any response from
Defendant regarding the draft Joint Statement I had sent him a week ago, other than to receive electronic
notification that he had filed the Declaration of Mark A. Wasser re Inability to Prepare Joint Statement
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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
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on Discovery Dispute (Doc. 102), accusing me of failing to attempt to discuss his proposed joint
statement with me. (Doc. 102, 2:27-28).
7. Despite Defendants accusations to the contrary (Doc. 102, 3:21-26), I did not know thatdefense counsel was unavailable to accept service of filings and documents on April 17 and 18 and
never received a Notice of Unavailability to that effect. Defense counsel had told me in emails that for
deposition scheduling purposes only he would not be able to attend full days on April 17 and 18. He
never once notified me that his office, which includes his assistant Ms. Amy Remly, was not receiving
faxes, emails and mail during those days. I also had no knowledge of Defendants speech and, frankly,
fail to see its relevance. Presumably, Defendant was aware that the deadline to file the joint statement
for the instant motion to compel was today and planned his time accordingly as any responsible attorney
would have.
8. Defendant insinuates that I have acted improperly in not providing the depositionvideotape to him (Doc. 102, 2:20-3:2). I attempted to videotape the deposition myself, rather than hiring
a videographer, as a cost-saving measure. Unfortunately, I am not proficient at taping and processing
video. As a result, during the tape-to-hard drive transfer process, the file became locked and I have yet
to figure out how to access it. I contacted www.hollywooddatarecovery.com and they informed me that
the ballpark estimate for the cost to repair and retrieve the file could be up to $1,000. I relayed this
information to Defendant in my email to him of April 2, 2008 (Doc. 102-4, 5) and asked how he wished
to proceed as Plaintiff does not view such a significant expenditure as worthwhile for its own purposes.
Defendant never responded and now insinuates I have somehow acted improperly.
9. As for Defendants accusations against me which make heavy use of adjectives such assarcastic, abusive, intimidating, hostile, and repetitious and accuse me of badgering,
sarcastically asking, etc. (Doc. 102), my response is that the deposition transcript speaks for itself. The
transcript contains not one indication that I engaged in any inappropriate misconduct. There is not a
single objection from defendant that my questions were argumentative. Had I engaged in anything close
to the misconduct Defendant accuses me of, Defendant would have almost certainly objected and made
a record of it. Defendant has never been shy about expressing himself on the record and it is in fact
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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 4
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Defendants penchant for engaging in long colloquoys and improper speaking objections on the record
that is the subject of this motion for protective order against Defendant which plaintiff presently brings.
10. In any event, had I engaged in anything close to the misconduct Defendant accuses meof, his only proper recourse would have been to adjourn the deposition and seek a motion for protective
order, as plaintiff is currently doing. The correct response is not self-help, as Defendant insinuates he
engaged in.
I declare under penalty of perjury under the laws of the State of California and the United States
that the foregoing is true and correct.
Executed on: April 23, 2008
/s/ Eugene D. Lee
EUGENE D. LEEDeclarant
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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 5
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ATTACHMENT A
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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 1
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Eugene D. Lee SB#: 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299
Fax: (213) 596-0487email: [email protected]
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
Mark A. Wasser CA SB #06160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (916) 444-6405Email: [email protected]
Bernard C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805Email: [email protected]
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, JenniferAbraham, Scott Ragland, Toni Smith, and William Roy.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,v.
COUNTY OF KERN, et al.,
Defendants.
Civil Action No. 1:07-cv-00026 OWW TAG
JOINT STATEMENT re: DISCOVERYDISAGREEMENT re: MOTION TOCOMPEL DEPOSITION OF PATRICIAPEREZ, FOR PROTECTIVE ORDER, ANDSEEKING MONETARY SANCTIONS
Date: April 28, 2008Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroom
1300 18th St., Bakersfield, CADate Action Filed: January 6, 2007Date Set for Trial: December 3, 2008
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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 2
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This joint statement re: discovery disagreement is submitted pursuant to Local Rule 37-251(a) in
advance of the April 28, 2008 hearing on plaintiffs motion to compel reconvening of the deposition of
Patricia Perez, as well as a protective order against further obstructive behavior by Defendant (which has
been characteristic at depositions thus far) at future depositions, plaintiffs attorney fees and costs
associated with the adjourned depositon and this motion, and any other remedy which the court deems
proper and just.
I. DETAILS OF THE PARTIES DISCOVERY CONFERENCESOn February 28, 2008, plaintiff conducted the deposition in Bakersfield, CA, of Patricia Perez,
an employee in the HR department at Kern Medical Center, a hospital owned and operated by defendant
County of Kern (Deposition). The Deposition commenced at 11:04 a.m. However, plaintiff was forced
to adjourn the Deposition prematurely at 2:06 p.m. after a 68-minute time period during which defense
counsel Mark Wasser engaged in obstructive behavior, including speaking objections, witness coaching,
responding on deponents behalf to questions asked, etc. It should be noted that the parties at the
deposition were on the record for only 93 minutes.
Plaintiffs counsel twice attempted to meet and confer in good faith with Defendant at the
Deposition, stating on the record that his conduct was obstructive and asking him to refrain. Defendant
refused, continuing to engage in this behavior despite plaintiffs counsels requests to stop.
II. A STATEMENT OF THE NATURE OF THE CASE AND FACTUAL DISPUTESPlaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center
(KMC) and senior pathologist from October 24, 2000 to October 4, 2007, filed a Complaint with this
Court on January 6, 2007. Plaintiff contends that various defendants retaliated against and defamed him
for reporting his concerns about patient care quality issues and regulatory violations at KMC. As a
result, Plaintiff was forced to take medical and recuperative leave for disabling chronic clinical
depression in early 2006. While Plaintiff was on leave, Defendants demoted him in June 2006 to a staff
pathologist for unavailability and refused to reinstate him upon his return to work on October 4, 2006.
On December 7, 2006, he was placed on involuntary administrative leave and restricted to his home
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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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during working hours until May 1, 2007. Around May 1, 2007, Defendant informed Plaintiff of its
decision to either buy out the remaining term of his contract (due to expire on October 4, 2007) or
simply let the contract run out. On October 4, 2007, Defendants did not renew Plaintiffs employment
contract.
Plaintiffs Complaint alleges whistleblower retaliation, disability discrimination, medical leave
interference and retaliation, defamation and deprivation of compensation and professional fees without
procedural due process.
Defendants contend that the dispute arose out of Plaintiffs tenure as a pathologist at Kern
Medical Center. Plaintiffs relationship with other members of the medical staff deteriorated to the point
of intimidation, hostility and antagonism. Defendants contend, to the extent that any hostile work
environment existed, it was caused by Plaintiff.
III. THE CONTENTION OF EACH PARTY AS TO EACH CONTESTED ISSUEA. Defense Counsels Conduct at the Deposition Was Obstructive
1. Plaintiffs PositionRule 30(c)(2) of the Federal Rules of Civil Procedure states:
An objection at the time of the examination--whether to evidence, to a party's conduct,to the officer's qualifications, to the manner of taking the deposition, or to any otheraspect of the deposition--must be noted on the record, but the examination stillproceeds; the testimony is taken subject to any objection. An objection must be statedconcisely in a nonargumentative and nonsuggestive manner. A person may instruct adeponent not to answer only when necessary to preserve a privilege, to enforce alimitation 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 suggest
answers or warn the witness. SeeHall v. Clifton Precision,Inc. (E.D. Penn. 1993) 150 FRD 525, 530.Rule 30(c)(2) renders relevancy objections meaningless in most depositions. The deponent
must even answer questions calling for blatantly irrelevant information subject to the objection. FRCP
30(c)(2);International Union of Elec., Radio & Machinery Workers, AFLCIO 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 4
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The parties were on the record for a total of only 93 minutes before plaintiff adjourned. During
68 of those 93 minutes, from 11:30 a.m. to 2:05 p.m. (excluding a lunch break from 12:02 p.m. to 1:29
p.m.), defense counsel interposed no less than 33 obstructing statements. Defendants 33 statements
included 1 inappropriate assertion of irrelevancy, 8 statements suggesting answers to the deponent, and 2
statements instructing the deponent not to answer on invalid grounds. Upon reviewing the entire
transcript, plaintiff is unable to identify a single instance where defense counsel actually interposed a
proper objection of any kind.
Defense counsel coached the deponent to give misleading answers. When plaintiffs counsel
asked Ms. Perez for her estimate of how many people were in KMCs payroll department, she answered
she didnt know (Ms. Perez later testified that she is a member of KMCs 6-person payroll department).
Plaintiffs counsel then asked her for her estimate. Deponent began to answer, My estimate , but
Defendant immediately cut her off and insisted: If she doesnt know, she doesnt know. Ms. Perez,
having been told how to answer by Defendant, then changed her answer to I dont know. Perez
Deposition, 28:23 29:14. When plaintiffs counsel asked again for deponents estimate, before
deponent could answer, Defendant interjected: She cant do that. She doesnt know. Move on.
[emphasis added]. Ms. Perez then dutifully testified she had no basis for knowing how many people
there are in KMCs payroll department. Perez Deposition, 29:16 30:13. None of Defendants
statements in this regard stated any objections or instructions not to answer on privilege grounds. They
had no proper purpose whatsoever and were intended to coach the witness how to respond.
As Defendant well knew, his assertion that She cant do that. She doesnt know was wrong
as later proven in the deposition. Ms. Perez not only was able to estimate how many people there were
in KMCs payroll department, of which she is a member, she gave the exact number: six (including Ms.
Perez). Perez Deposition, 84:20-25. She testified that KMCs entire HR department (including the 6-
person payroll department) is housed in a single trailer that sits on the KMC campus. Perez Deposition,
84:4-10. She also recited the names of the other five payroll employees with ease:
In the payroll department we have an employee named Bobbi Gains. We have ArmidaSmith. We have April Smith. Myself. Angela Conger. And Christine Tetimas.Perez Deposition, 88:9-12.
Later, Defendant launched into an extended and improper harangue criticizing the relevance of
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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 5
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plaintiffs line of questioning that had impeached Ms. Perez:
Well, we could debate what it has to do with the lawsuit, counsel. You might explain tous what the size of the human resources office has to do with Dr. Jadwins claims, butwere not even going there because I know you cant.So were going to spend a lot of
time. Ask her how big the building is. Ask her. I mean, take your time.Perez Deposition, 86:19-87:2.
During this harangue, defense counsel failed to state any objections or instructions to the witness not to
answer. Defendants statements therefore had no proper purpose other than to frustrate plaintiffs
examination of the witness.
Defendants coaching of the witness continued. When plaintiffs counsel later asked Ms. Perez
for her estimate of how many times she has had to calculate county leave for a county employee,
Defendant immediately interjected If she doesnt remember, thats the answer. [emphasis added].
Ms. Perez, having been told what the answer was, then said: I cant recall unfortunately. Perez
Deposition, 67:3-24.
Plaintiffs counsel several times asked defense counsel to stop obstructing the deposition. Mark,
youre not even objecting. Stop with the speaking objections, please. Okay. If youve got an
objection, just state it. Perez Deposition, 88:18-22. Defendant ignored the requests, however.
When Plaintiffs counsel then asked Ms. Perez whether to her knowledge or understanding it
would have been one of three certain members of the payroll department who would have processed
plaintiffs leave of absence request form in 2006, the deponent answered It could have been one of
those. Defendant then suggested a further response to the witness: she didnt work there then. Ms.
Perez followed suit, saying, I didnt. Defendant then continued putting words in the witnesss mouth,
stating: She said it could have been, but she doesnt know. Perez Deposition, 90:10-20. Ms. Perez
never said that she doesnt know. None of Defendants statements on the record were stating
objections or instructions not to answer on privilege grounds. They had no proper purpose and were
intended to coach the deponent how specifically to respond to plaintiffs questions and to frustrate
plaintiffs examination of the witness.
Plaintiffs counsel asked defense counsel one last time to stop coaching the witness and
obstructing the deposition, stating Mark, Im going to have to stop this depo if you continue with this.
What objections are you stating, Mark? Youre not even stating any objections. Defense counsel
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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 6
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responded Your questions dont make sense an improper objection and later Ill object the way I
want.
Frustrated by Defendant from conducting an orderly deposition of Ms. Perez, Plaintiff was
forced to adjourn the deposition to bring this motion. Perez Deposition, 91:1-9. Plaintiffs counsel
stated:
Well, Mark, then we're going to adjourn this deposition right now because you areinterfering, and you are coaching, and you're making improper speaking objections, andI will adjourn this right now.Perez Deposition, 91:10-14.
Defendants will no doubt allege some imagined misconduct by Plaintiff so as to justify their own
conduct. But, Defendant, who has not thus far in this action been shy about expressing himself on the
record or making personal attacks on plaintiffs counsel, never once stated at Ms. Perezs deposition that
plaintiffs counsel was acting inappropriately. In any case, defendants proper recourse would have been
to suspend the deposition and seek a protective order under Rule 30(d)(3)(A), not to engage in self-
help by obstructing plaintiffs questioning and coaching the witness.
Because Defendants conduct has frustrated a fair examination and unreasonably prolonged
the examination, plaintiff requests that this Court impose an appropriate sanction on the persons
responsible. FRCP 30(d)(2); seeVan Pilsum v. Iowa State Univ. of Science & Technology (S.D. Iowa
1993) 152 FRD 179, 180. Such sanctions may include costs resulting from the obstructive tactics,
including the opposing party's attorney fees and expenses in adjourning the deposition, obtaining a court
order, etc. FRCP 30(d)(2); Adv. Comm. Notes to 1993 Amendments to former FRCP 30(d)(3).
Plaintiff is an individual who can ill afford to bear the costs of defendants obstructive tactics at
depositions and filing the inevitable motions that follow. By comparison, defendant County of Kern has
ample resources at its disposal to obstruct plaintiffs discovery in this action, and has done so,
prejudicing plaintiff significantly.Plaintiff asks this Court for an order reconvening the deposition of Patricia Perez, as well as a
protective order against further obstructive behavior by Defendant (which has been characteristic at
depositions thus far) at future depositions, plaintiffs attorney fees and costs associated with the
adjourned depositon and this motion, and any other remedy which the court deems proper and just.
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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 7
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1. Defendants Position[INSERT HERE]
IV.
CONCLUSION
The party who prevails on a motion to compel is entitled to his or her expenses, including
reasonable attorney fees, unless the losing party was substantially justified in making or opposing the
motion (or other circumstances make such an award unjust). FRCP 37(a)(5);H. K. Porter Co., Inc. v.
Goodyear Tire & Rubber Co. (6th Cir. 1976) 536 F2d 1115, 11241125.
Moreover, sanctions to be imposed on party who has obstructed a deposition may include costs
resulting from the obstructive tactics, including the opposing party's attorney fees and expenses in
adjourning the deposition, obtaining a court order, etc. FRCP 30(d)(2); Adv. Comm. Notes to 1993
Amendments to former FRCP 30(d)(3).
Defense counsels conduct at plaintiffs deposition of Ms. Perez was obstructing and effectively
frustrated plaintiffs examination of the deponent. Plaintiff seeks to reconvene the deposition of Ms.
Perez. Plaintiff further seeks a protective order against further obstructive behavior by Defendant (which
has been characteristic at many of the depositions thus far) at future depositions. Plaintiff further seeks
attorney fees in the amount of $4,000 in consideration of 10 of the hours which plaintiff has spent in
connection with the adjourned deposition and in connection with meeting and conferring and preparing
this motion and anticipates spending attending the hearing on this motion. Plaintiff further seeks
reimbursement of the $529.40 the reporter fee and $179.86 reporter hotel charge as well as the $189.36
hotel charges for plaintiff. Finally, plaintiff requests whatever other sanctions this court deems proper
and just. In total, Plaintiff seeks sanctions of at least $4,718.76.
Respectfully submitted,
Dated: April __, 2008 LAW OFFICES OF MARK A. WASSER
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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OFPATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 8
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By:__________________________________________Mark A. Wasser,Attorney for DefendantsCOUNTY OF KERN, PETER BRYAN, IRWINHARRIS, EUGENE KERCHER, JENNIFER
ABRAHAM, SCOTT RAGLAND,TONI SMITH,AND WILLIAM ROY
Dated: April___, 2008 LAW OFFICE OF EUGENE LEE
By:__________________________________________Eugene D. LeeAttorney for PlaintiffDAVID F. JADWIN, D.O.
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EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT re: DEPOSITION OFPATRICIA PEREZ 1
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Eugene D. Lee SB#: 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299
Fax: (213) 596-0487email: [email protected]
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
Mark A. Wasser CA SB #06160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (916) 444-6405Email: [email protected]
Bernard C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805Email: [email protected]
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, JenniferAbraham, Scott Ragland, Toni Smith, and William Roy.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,v.
COUNTY OF KERN, et al.,
Defendants.
Civil Action No. 1:07-cv-00026 OWW TAG
EXHIBITS TO JOINT STATEMENT re:DISCOVERY DISAGREEMENT re:DEPOSITION OF PATRICIA PEREZ
Date: April 28, 2008Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroom
1300 18th St., Bakersfield, CA
Date Action Filed: January 6, 2007Date Set for Trial: December 3 2008
EXHIBIT 1: Excerpted pages from Transcript of Plaintiffs Deposition of Patricia Perez on
February 28, 2008
EXHIBIT 2: Declaration of Eugene Lee in Support of Motion
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EXHIBIT 1:
Excerpted pages from Transcript of Plaintiffs Deposition of
Patricia Perez on February 28, 2008
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
______________
DAVID F. JADWIN, D.O., )Volume I)
Plaintiff, ))
vs. )No. 1:07-cv-00026-OWW-TAG)
COUNTY OF KERN; et al. ))
Defendants. ))
VIDEOTAPED DEPOSITION
OF
PATRICIA VERONICA PEREZ
Thursday, February 28, 2008
Bakersfield, California
Reported by: Darlinda R. Thomason, CSR No. 13094
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11:29:20 1 Q. Who other than yourself would have the best
11:29:23 2 recollection about DFJ1157?
11:29:28 3 MR. WASSER: You're asking her to guess who
11:29:30 4 else knows what?
11:29:31 5 BY MR. LEE:
11:29:31 6 Q. I'm asking you who, to your knowledge, would
11:29:34 7 have a better understanding or better recollection
11:29:37 8 about DFJ1157 other than yourself?
11:29:40 9 A. I couldn't tell you who.
11:29:41 10 Q. Okay. Name the individuals who would have
11:29:46 11 handled DFJ1157.
11:29:48 12 A. I can't do that because I don't know.
11:29:52 13 Q. Okay. Well, typically if a form came to
11:29:56 14 you, who would the form -- after you determined
11:29:59 15 whether the form has been completed or if it's
11:30:02 16 correct, what happens next?
11:30:03 17 A. I forward it over to payroll.
11:30:06 18 Q. Okay. And is there a particular person in
11:30:09 19 payroll you would normally forward the request for a
11:30:12 20 leave of absence to?
11:30:13 21 A. I put it in a little bin for payroll. I
11:30:16 22 don't know who handles it afterwards.
11:30:20 23 Q. How many people were in payroll in 2006?
11:30:27 24 A. I don't remember.
11:30:28 25 Q. Was it a hundred people?
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11:30:31 1 A. No.
11:30:32 2 Q. Was it one million people?
11:30:33 3 A. No.
11:30:35 4 Q. What's your estimate of how many people were
11:30:38 5 in the payroll department in 2006?
11:30:40 6 A. My estimate --
11:30:41 7 MR. WASSER: If she doesn't know, she
11:30:43 8 doesn't know.
11:30:44 9 MR. LEE: If you don't know, don't answer.
11:30:45 10 MR. WASSER: She already did. She told you
11:30:48 11 she didn't know.
11:30:48 12 MR. LEE: I'm asking for her estimate, Mark.
11:30:50 13 MR. WASSER: She told you she didn't know.
11:30:50 14 THE WITNESS: I don't know.
11:30:51 15 BY MR. LEE:
11:30:51 16 Q. So sitting here now as of today you can't
11:30:51 17 tell me whether there's one million people in the
11:30:55 18 payroll department?
11:30:55 19 MR. WASSER: Counsel, that's ridiculous.
11:30:57 20 She's not going to respond to that question.
11:31:00 21 MR. LEE: I'm asking for an estimate, Mark.
11:31:01 22 MR. WASSER: No, not on none of those terms.
11:31:02 23 That's a ridiculous question.
11:31:02 24 THE WITNESS: I can give you an answer if
11:31:04 25 you just want an answer.
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11:31:04 1 BY MR. LEE:
11:31:05 2 Q. No, I don't want an answer. I want your
11:31:08 3 estimate, your best estimate.
11:31:08 4 MR. WASSER: She can't do that. She doesn't
11:31:12 5 know. Move on.
11:31:12 6 THE WITNESS: I don't handle the staffing.
11:31:14 7 BY MR. LEE:
11:31:15 8 Q. Okay. So you have no basis for knowing.
11:31:17 9 Is that correct?
11:31:17 10 A. For the staffing in payroll?
11:31:19 11 Q. No, how many people there are in the payroll
11:31:21 12 department.
11:31:21 13 A. No.
11:31:24 14 Q. Okay. Who do you believe would know how
11:31:27 15 many people there are in the payroll department?
11:31:29 16 A. The supervisor of payroll.
11:31:30 17 Q. And who's that?
11:31:32 18 A. Renita Nunn.
11:31:33 19 Q. Okay. So after the leave of absence form
11:31:38 20 goes to the payroll department, what happens next?
11:31:41 21 A. My understanding is it gets processed. It
11:31:45 22 goes for the department head recommendation's
11:31:50 23 signature.
11:31:51 24 Q. Who's the department head?
11:31:54 25 A. Of what department?
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11:37:54 1 a document that's been tabbed and marked as
11:37:59 2 Exhibit 241.
11:38:00 3 Would you just take a moment to review it,
11:38:01 4 please.
11:38:11 5 A. Okay.
11:38:14 6 Q. Okay. If you know, what is DFJ726?
11:38:17 7 A. That is -- it looks like David Jadwin's
11:38:23 8 certification of health care provider.
11:38:26 9 Q. Okay. Now earlier you were just testifying
11:38:29 10 that the supporting documentation needed for DFJ1157
11:38:34 11 as check boxed as intermittent employee would require
11:38:38 12 some kind of doctor's note or certification.
11:38:41 13 Is that correct?
11:38:41 14 A. Yes.
11:38:41 15 Q. Okay. So is DFJ726 the type of form that
11:38:46 16 you were referring to?
11:38:47 17 A. Yes.
11:38:47 18 Q. Okay. Do you -- have you seen DFJ726
11:38:53 19 before? Do you recall?
11:38:54 20 A. I can't remember.
11:39:02 21 Q. Okay. Well, take a look at the dates on
11:39:05 22 there and see if it can refresh your recollection. I
11:39:09 23 would call your attention to that date on Item 3 of
11:39:13 24 DFJ726, which states March 16, '06, as well as the
11:39:16 25 date in Item 2, which states December 16, '05.
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11:39:19 1 A. Yes.
11:39:20 2 Q. Okay. Does that refresh your recollection
11:39:23 3 at all?
11:39:23 4 A. Yes.
11:39:24 5 Q. Okay. So now having refreshed your
11:39:27 6 recollection, what do you believe DFJ726 is?
11:39:30 7 A. I'm sorry, say that again.
11:39:33 8 Q. Okay. Having reviewed DFJ726 and looking
11:39:37 9 particularly at the dates on Items 2 and 4.
11:39:40 10 A. Uh-huh.
11:39:41 11 Q. What do you believe DFJ726 is?
11:39:46 12 A. Items 2 and 4?
11:39:48 13 MR. WASSER: She's already told you it's a
11:39:50 14 supporting documentation. What are you asking her?
11:39:53 15 THE WITNESS: There's no dates on 4.
11:39:54 16 BY MR. LEE:
11:39:55 17 Q. I'm sorry, I meant 2 and 3.
11:39:58 18 A. What was your question again? I'm sorry.
11:40:00 19 Q. Okay. What do you believe the relationship
11:40:04 20 is, if any, between DFJ726 and DFJ1157?
11:40:11 21 A. I believe they belong together.
11:40:12 22 Q. Okay. So in other words, if somebody or if
11:40:18 23 you were to receive DFJ1157 plus DFJ726, would you
11:40:25 24 consider that to be a complete leave request form
11:40:29 25 package?
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13:38:46 1 county employee?
13:38:48 2 A. Yes.
13:38:48 3 Q. Okay. If you had to estimate -- well, I'm
13:38:51 4 going to ask you to estimate how many times you've
13:38:53 5 done that in the past say -- or actually during the
13:38:57 6 tenure of your employment at KMC.
13:39:00 7 How many times have you had to calculate the
13:39:02 8 county leave for a county employee?
13:39:05 9 A. Not often.
13:39:07 10 Q. Would you say it would be under 10?
13:39:10 11 A. I couldn't tell you. I don't remember.
13:39:18 12 Q. Well, Ms. Perez, we are entitled to your
13:39:21 13 best estimate.
13:39:22 14 MR. WASSER: If she doesn't remember, that's
13:39:24 15 the answer.
13:39:24 16 THE WITNESS: My best estimate.
13:39:26 17 BY MR. LEE:
13:39:26 18 Q. Would it be under a hundred, a hundred and
13:39:29 19 fifty, ten times a year?
13:39:31 20 A. I can't recall unfortunately.
13:39:31 21 Q. That's okay. That's fine.
13:39:37 22 But anyway, it wasn't all that often.
13:39:42 23 Correct?
13:39:42 24 A. Correct.
13:39:43 25 Q. Okay. So in Dr. Jadwin's case with regard
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13:56:21 1 A. Supervisors' signatures.
13:56:23 2 Q. Okay. What else?
13:56:23 3 A. That's it.
13:56:25 4 Q. Okay. When you say you're being trained to
13:56:30 5 detect supervisors' signatures on time sheets, what
13:56:34 6 does that training consist of?
13:56:38 7 A. Say that again.
13:56:40 8 Q. Okay. You said earlier you're being
13:56:42 9 trained.
13:56:43 10 A. Yes.
13:56:43 11 Q. To detect completeness of time sheets.
13:56:47 12 A. Yes.
13:56:47 13 Q. Okay. And then you said that what that
13:56:49 14 means is that you're looking to see if there's a
13:56:52 15 supervisor's signature on every time sheet.
13:56:54 16 A. Yes.
13:56:55 17 Q. So I'm asking you, when you say you're being
13:56:57 18 trained to do that, what does that training consist
13:57:00 19 of?
13:57:00 20 A. Looking at the time sheet to make sure
13:57:02 21 there's a supervisor's signature.
13:57:04 22 Q. Okay. So is someone teaching you how to do
13:57:07 23 that? Is someone training you how to do that?
13:57:09 24 A. Yes.
13:57:10 25 Q. Okay. So I guess what I'm asking is, how
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13:57:11 1 did that person train you to do that?
13:57:13 2 A. They let me know you need to make sure that
13:57:16 3 there is a supervisor's signature on the time sheets
13:57:19 4 and that's it.
13:57:20 5 MR. WASSER: What part of that is hard to
13:57:23 6 figure out?
13:57:23 7 MR. LEE: Well, I'm just saying, she said
13:57:25 8 she's being trained to do that.
13:57:25 9 MR. WASSER: Right.
13:57:26 10 MR. LEE: So I'm trying to figure out how
13:57:28 11 much training is required to do that.
13:57:29 12 MR. WASSER: Look at the time sheet, is
13:57:32 13 there a signature on it. Well, that's pretty easy.
13:57:35 14 BY MR. LEE:
13:57:35 15 Q. Okay. So the training is not exactly what
13:57:37 16 you would call substantial then. Correct? It's just
13:57:40 17 pretty much what you just said. Right?
13:57:43 18 A. Right.
13:57:43 19 Q. Okay. You said you were physically
13:57:50 20 relocated into the payroll department?
13:57:52 21 A. Yes.
13:57:53 22 Q. So where were you physically located before
13:57:56 23 that?
13:57:57 24 A. At another desk.
13:58:00 25 Q. Okay. Where was this other desk?
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13:59:07 1 Medical Center?
13:59:08 2 A. We're south of Mary Kay Shell, Building
13:59:11 3 Number 14.
13:59:12 4 Q. Okay. Is your HR department located in a
13:59:15 5 trailer?
13:59:15 6 A. Yes.
13:59:16 7 Q. It is. Okay. Does this trailer on the Kern
13:59:20 8 Medical Center campus contain the entire HR
13:59:22 9 department?
13:59:23 10 A. Yes.
13:59:24 11 Q. Now earlier I asked you how big the payroll
13:59:26 12 department was.
13:59:28 13 A. Uh-huh.
13:59:29 14 Q. And you couldn't give me any estimate.
13:59:32 15 Okay.
13:59:32 16 MR. WASSER: You asked her how many people
13:59:37 17 worked in payroll. That's the question you asked
13:59:38 18 her.
13:59:38 19 BY MR. LEE:
13:59:38 20 Q. Okay. I'm going to ask you now, how many
13:59:41 21 people would you estimate are in the payroll
13:59:43 22 department?
13:59:43 23 A. At this time?
13:59:43 24 Q. Yes.
13:59:44 25 A. There is six of us.
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14:00:57 1 Q. Correct? Okay. So who is responsible for
14:00:59 2 processing leave of absence request forms in the
14:01:02 3 payroll department?
14:01:02 4 A. I'm sorry, rephrase that.
14:01:10 5 Q. Ms. Perez, we're going to be here all day
14:01:12 6 just so you know. I mean, I'm happy to do it, but
14:01:16 7 your depo. is going to have to be a lot longer than
14:01:20 8 necessary if we can't get some kind of simple
14:01:20 9 answers.
14:01:20 10 MR. WASSER: Well, you've got to ask better
14:01:20 11 questions, counsel. Don't blame Ms. Perez. She's
14:01:20 12 doing her best.
14:01:20 13 MR. LEE: Well, Mark, I'm asking very simple
14:01:22 14 questions.
14:01:22 15 THE WITNESS: You're asking me how big is a
14:01:26 16 building.
14:01:26 17 MR. LEE: What's unreasonable about that,
14:01:27 18 Ms. Perez?
14:01:28 19 MR. WASSER: Well, we could debate what it
14:01:32 20 has to do with the lawsuit, counsel. You might
14:01:34 21 explain to us what the size of the human resources
14:01:38 22 office has to do with Dr. Jadwin's claims, but we're
14:01:39 23 not even going there because I know you can't.
14:01:39 24 MR. LEE: No, that's not true, Mark.
14:01:40 25 MR. WASSER: So we're going to spend a lot
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14:01:41 1 of time. Ask her how big the building is. Ask her.
14:01:42 2 I mean, take your time.
14:01:43 3 MR. LEE: Mark, first of all, yeah, actually
14:01:46 4 I do have a purpose for it, but that's all right. I
14:01:50 5 won't reveal it to you, Mark.
14:01:53 6 MR. WASSER: Good.
14:01:53 7 MR. LEE: Yeah.
14:01:53 8 MR. WASSER: Don't reveal it. What's your
14:01:54 9 question now.
14:01:55 10 BY MR. LEE:
14:01:55 11 Q. Ms. Perez, I'm going to ask you one more
14:01:55 12 time.
14:01:55 13 A. Yes.
14:01:55 14 Q. It's a simple question. Okay.
14:02:00 15 Who in the payroll department is responsible
14:02:02 16 for processing leave of absence request forms?
14:02:04 17 A. The payroll department.
14:02:06 18 Q. I said who.
14:02:07 19 A. There's not a direct person responsible.
14:02:09 20 MR. WASSER: She's told you that I think
14:02:11 21 this is the third time.
14:02:12 22 MR. LEE: No, there's got --
14:02:13 23 MR. WASSER: No, there doesn't have to be.
14:02:15 24 BY MR. LEE:
14:02:15 25 Q. Okay. Who typically in the payroll
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14:02:18 1 department processes leave of absence request forms
14:02:20 2 for county employees?
14:02:21 3 MR. WASSER: She's answered it. She's told
14:02:24 4 you they're put in a binder and the binder is
14:02:27 5 processed by whoever is available. Now that's the
14:02:30 6 answer.
14:02:30 7 BY MR. LEE:
14:02:30 8 Q. Okay. I'd like the names of those people.
14:02:33 9 A. In the payroll department we have an
14:02:35 10 employee named Bobbi Gains. We have Armida Smith.
14:02:39 11 We have April Smith. Myself. Angela Conger. And
14:02:44 12 Christine Tetimas.
14:02:46 13 Q. Okay. That's not the question I asked,
14:02:47 14 Ms. Perez.
14:02:48 15 MR. WASSER: You just asked for names,
14:02:50 16 counsel.
14:02:50 17 MR. LEE: No, I said I want the names --
14:02:51 18 Mark, you're not even objecting.
14:02:53 19 MR. WASSER: You just asked for names.
14:02:54 20 MR. LEE: Stop with the speaking objections,
14:02:57 21 please. Okay. If you've got an objection, just
14:02:58 22 state it.
14:02:58 23 BY MR. LEE:
14:02:58 24 Q. Ms. Perez.
14:02:58 25 A. Yes.
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14:02:59 1 Q. I'm going to ask you again. Okay.
14:03:01 2 Please state the names of the people in the
14:03:03 3 payroll department who typically process leave of
14:03:07 4 absence request forms for county employees.
14:03:09 5 A. There are deadlines and no one is
14:03:13 6 responsible, but yet we all are.
14:03:16 7 Q. Ms. Perez, I'm not asking who is
14:03:18 8 responsible.
14:03:18 9 MR. WASSER: You just asked her who was
14:03:18 10 responsible.
14:03:18 11 BY MR. LEE:
14:03:18 12 Q. I said who typically processes leave of
14:03:22 13 absence request forms in the payroll department. Who
14:03:25 14 typically does it. Just name the names, Ms. Perez.
14:03:25 15 A. It would be Armida Smith --
14:03:28 16 Q. It's not very difficult. There's six names.
14:03:28 17 MR. WASSER: You want to stop ask --
14:03:31 18 THE WITNESS: Christine Tetimas, April
14:03:33 19 Smith.
14:03:33 20 BY MR. LEE:
14:03:33 21 Q. Okay. So, I'm sorry, you said -- say their
14:03:37 22 names again because your counsel --
14:03:37 23 MR. WASSER: You were talking counsel.
14:03:38 24 THE WITNESS: Christine Tetimas, April
14:03:33 25 Smith, and Armida Smith.
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14:03:43 1 BY MR. LEE:
14:03:43 2 Q. Okay. So three members of the payroll
14:03:46 3 department?
14:03:46 4 A. Yes.
14:03:49 5 Q. Okay. Now those three people, based upon
14:03:59 6 your recollection and your understanding, would it
14:04:00 7 have been one of those three people who processed
14:04:04 8 Dr. Jadwin's leave of absence request forms in 2006?
14:04:07 9 A. Say that again.
14:04:09 10 Q. According to your knowledge or understanding
14:04:11 11 who it have been those three people in the payroll
14:04:14 12 department who would have processed Dr. Jadwin's
14:04:17 13 leave of absence request forms in 2006?
14:04:20 14 A. It could have been one of those.
14:04:21 15 MR. WASSER: She didn't work there then.
14:04:23 16 THE WITNESS: I didn't.
14:04:24 17 MR. LEE: Well, I was asking to her
14:04:26 18 knowledge, Mark.
14:04:27 19 MR. WASSER: She said it could have been,
14:04:29 20 but she doesn't know.
14:04:30 21 MR. LEE: If you don't know, Ms. Perez, just
14:04:32 22 say you don't know.
14:04:33 23 MR. WASSER: Well, then you follow up and
14:04:33 24 persist that she's supposed to know something.
14:04:34 25
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14:04:35 1 MR. LEE: Mark, I'm going to have to stop
14:04:36 2 this depo. if you continue with this.
14:04:38 3 What objections are you stating, Mark?
14:04:40 4 You're not even stating any objections.
14:04:42 5 MR. WASSER: Your questions don't make
14:04:44 6 sense.
14:04:44 7 MR. LEE: So fine, Mark. Say vague and
14:04:46 8 ambiguous and then leave it at that.
14:04:48 9 MR. WASSER: I'll object the way I want.
14:04:50 10 MR. LEE: Well, Mark, then we're going to
14:04:51 11 adjourn this deposition right now because you are
14:04:51 12 interfering, and you are coaching, and you're making
14:04:52 13 improper speaking objections, and I will adjourn this
14:04:55 14 right now.
14:04:55 15 MR. WASSER: Whatever you want.
14:04:57 16 MR. LEE: Okay. Let's adjourn.
14:04:57 17 MR. WASSER: Ask your next question.
14:04:58 18 MR. LEE: No, no. We're going to adjourn
14:04:58 19 and I'm going to do a motion to compel. We're off
14:05:02 20 the record at 2:06 p.m.
14:05:04 21 Mark, are we off the record?
14:05:05 22 MR. WASSER: It's your deposition, counsel.
14:05:07 23 We're here.
14:05:07 24
14:05:07 25
WOOD & RANDALL(800) 322-4595
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14:05:08 1 MR. LEE: No, we're off the record.
2 (2:06 p.m.)
3 --ooOoo--
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WOOD & RANDALL(800) 322-4595
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10 I fo r t h on th e f i r s t page he reof .
8 I was by me duly sworn; t h a t sa id depos i t i on was t aken
WOOD & RANDALL(800) 322-4595
w r t A ~Dar l inda R. Thomason, CSR No. 13094Dated t h i s 17th day o f March, 2008, a t Fresno ,
I f u r t h e r ce r t i f y t h a t I am ne i t h e r counse l fo r
That upon th e t ak ing o f th e depos i t i on , th e
t r a n s c r i p t of the t e s t imony given by th e w itn ess .
s t eno typy and t h e r e a f t e r t r an s c r i b ed by computer under
s s .
I , Dar l inda R. Thomason, a Cer t i f i e d Shor thand
94
COUNTY OF KERNSTATE OF CALIFORNIA
2524
22
2120 I Ca l i f o rn i a .1918 I in any way i n t e r e s t ed in the r e s u l t o r outcome t h e r eo f .
9 I Thursday , February 28, 2008, a t th e t ime and p l ace s e t
17 I nor in any way r e l a t ed to any par ty to sa id ac t i on , nor
6 I No. 13094, do hereby c e r t i f y t h a t PATRICIA VERONICA
16
7 I PEREZ, th e w itness named in th e fo rego ing depos i t i on ,
14 I my supe rv i s ion ; t h a t th e fo rego ing i s a t r ue and co r r e c t
5 1 Repor te r in th e Sta t e of Ca l i f o rn i a , ho ld ing Ce r t i f i c a t e43
12 I words of th e wi tness were wr i t t en down by me in
21
Case 1:07-cv-00026-OWW-TAG Document 104-2 Filed 04/23/2008 Page 20 of 29
10 fo r t h on th e f i r s t page he reof .
12 words of th e wi tness were wr i t t en down by me in
WOOD & RANDALL(800) 322-4595
w r t A ~Dar l inda R. Thomason, CSR No. 13094Dated t h i s 17th day o f March, 2008, a t Fresno ,
I f u r t h e r ce r t i f y t h a t I am ne i t h e r counse l fo r
That upon th e t ak ing o f th e depos i t i on , th e
Ca l i f o rn i a .
in any way i n t e r e s t ed in the r e s u l t o r outcome t h e r eo f .
t r a n s c r i p t of the te st im o ny giv en by th e w itn ess .
s t eno typy and t h e r e a f t e r t r an s c r i b ed by computer under
s s .
I , Dar l inda R. Thomason, a Cer t i f i e d Shor thand
94
COUNTY OF KERNSTATE OF CALIFORNIA
9 Thursday , February 28, 2008, a t th e t ime and p l ace s e t
17 nor in any way r e l a t ed to any par ty to s a id ac t io n, nor
8 was by me duly sworn; t h a t sa id depos i t i on was t aken
16
7 PEREZ, th e w itness named in th e fo rego ing depos i t i on ,6 No. 13094, do hereby c e r t i f y t h a t PATRICIA VERONICA
14 my supe rv i s ion ; t h a t th e fo rego ing i s a t r ue and co r r e c t
5 Repor te r in th e Sta t e of Ca l i f o rn i a , ho ld ing Ce r t i f i c a t e4
32
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EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT re: DEPOSITION OFPATRICIA PEREZ 2
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EXHIBIT 2:
Declaration of Eugene Lee in Support of Motion
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DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPELDEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, ANDSEEKING MONETARY SANCTIONS 1
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Eugene D. Lee SB#: 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299
Fax: (213) 596-0487email: [email protected]
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,v.
COUNTY OF KERN, et al.,
Defendants.
Civil Action No. 1:07-cv-00026 OWW TAG
DECLARATION OF EUGENE D. LEE IN
SUPPORT OF MOTION TO COMPELDEPOSITION OF PATRICIA PEREZ, FORPROTECTIVE ORDER, AND SEEKINGMONETARY SANCTIONS
Date: April 28, 2008Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroom
1300 18th St., Bakersfield, CA
Date Action Filed: January 6, 2007Date Set for Trial: December 3, 2008
Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a
joint statement re discovery disagreement.
I, Eugene D. Lee, declare as follows:
1. I am an attorney at law duly licensed to practice before the Federal and State Courts ofCalifornia and admitted to practice before the U.S.D.C. for the Eastern District of California. I am
counsel of record for Plaintiff David F. Jadwin in this matter.
2. I am making this declaration in support of plaintiffs motion to compel responses tointerrogatories. I have personal knowledge of the matters set forth below and I could and would
competently testify thereto if called as a witness in this matter.
3. I spent 93 minutes on the record conducting plaintiffs deposition of Patricia Perez, whichwas held in Bakersfield and adjourned on February 28, 2008. I also spent approximately 4 hours driving
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DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPELDEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, ANDSEEKING MONETARY SANCTIONS 2
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from Los Angeles to Bakerfield and back (2 hour drive each way), 1 hour setting up exhibits and
preparing on the morning of the deposition, and 1.8 hours the day before preparing for the deposition.
4. Plaintiff incurred the following costs associated with Ms. Perezs adjourned deposition:Reporter fee: $529.40
Reporter hotel: $179.86
Plaintiff/counsel hotel: $189.36
TOTAL: $718.76
Receipts for the above are attached hereto as Attachment A.
5. I have spent and anticipate spending substantially in excess of 5 hours researching anddrafting these moving papers and attending the motion hearing in Bakersfield, CA.
6. My regular rate for legal services is $400 per hour.7. My rate is consistent with those charged in the Los Angeles area by attorneys of similar
skill and experience. I received my B.A. with honors from Harvard University in 1991 and my J.D. with
honors from the University of Michigan Law School in 1995. I was admitted to the New York State Bar
in 1996 and worked as an associate in the New York office of Shearman & Sterling from 1995 to 1996. I
worked as an associate in the New York office of Sullivan & Cromwell from 1996 to 1997. After a brief
leave of absence from practicing law from 1997 to 1999, I returned to active practice as the General
Counsel of Tcom America, Inc., a technology venture in Silicon Valley from 1999 to 2002. From 2002
to 2004, I worked as a senior associate for Kim & Chang, a law firm located in Seoul, Korea. In 2005, I
was admitted to the California Bar. I have been the principal of Law Office of Eugene Lee since 2005.
8. I attempted several times to secure local counsel to prosecute Plaintiffs suit but wasultimately unsuccessful. On September 18, 2006, I sent an email to over 600 members of the California
Employment Lawyers Association seeking co-counsel. No attorneys from Fresno responded. On
February 28, 2007, I called Andrew Jones, Esq. in Fresno, CA, requesting his involvement as local
counsel in this action. Mr. Jones declined.
I declare under penalty of perjury under the laws of the State of California and the United States
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DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPELDEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, ANDSEEKING MONETARY SANCTIONS 3
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that the foregoing is true and correct.
Executed on: April 23, 2008
/s/ Eugene D. Lee
EUGENE D. LEEDeclarant
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DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPELDEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, ANDSEEKING MONETARY SANCTIONS 1
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ATTACHMENT A:
Receipts for Expenses Associated with Adjourned Deposition
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INVOICEW O O D ~ R A N D A l lCert if i ed Sho rthand Reporters
A Professional Corporation(661) 3951050 TOLL FREE (BOO) 3224595
Mr. Eugene D. LeeLaw Office of Eugene Lee555 West Rfth StreetSuite 3100Los Angeles, CA 90013
Invoice No. Invoice Date Job No.6517 3/21/2008 2812
Job Date c.seNo.2/28/2008 1:07-CV-00026-OWW-TAG
C8seNameJadwin vs. County of Kern
PaymentTermsCOD
ORIGINAl AND 1 CERTIFIED COPY OF TRANSCRIPT OF:_+-_c ~ E c M a r d J N i R i a J T I I ~ y I Q r . . L M . [ ) , . t Volume II
ORIGINAL AND 1 CERTIFIED COPY OF TRANSCRIPT OF:Patricia Veronica Perez, Volume I
Hotel Olarge 179.86
417.60529.40179.86TOTAL DUE >
Thank you. Your business is appreciated. We now aa:ept Visa, MasterCard and American Express.(- ) Payments/Credits:(+) FinalKleOIarges/DebiIs:(=) New BaIaIKle:
Please detach bottom portion and return with payment.
$1,126.86
1,126.860.00$0.00
Mr. Eugene D. LeeLaw Office of Eugene Lee555 West Fifth StreetSuite 3100Los Angeles, CA 90013
Invoice No.Invoice DateTotal Due
65173/21/2008$ 0.00
Remit To: Wood . . Randallcertified Shorthand ReportersAProfessional Corporation423Truxtun AvenueBakersfield, CA 93301
Job No.BUIDCase No.Case Name
28121-Main1:07-CV-00026-0WW-TAGJadwin vs. County of Kern
Case 1:07-cv-00026-OWW-TAG Document 104-2 Filed 04/23/2008 Page 26 of 29INVOICEW O O D ~ R A N D A l lCertified Sho rthand Repor ter s
A Professional Corporation(661) 3951050 TOLL FREE (BOO) 3224595
Mr. Eugene D. LeeLaw Office of Eugene Lee555 West Rfth StreetSuite 3100Los Angeles, CA 90013
Invoice No. Invoice Date Job No.6517 3/21/2008 2812
Job Date c.seNo.2/28/2008 1:07-CV-00026-OWW-TAG
C8seNameJadwin vs. County of Kern
PaymentTermsCOD
ORIGINAl AND 1 CERTIFIED COPY OF TRANSCRIPT OF:_+-_c ~ E c M a r d J N i R i a J T I I ~ y I Q r . . L M . [ ) , . t Volume II
ORIGINAL AND 1 CERTIFIED COPY OF TRANSCRIPT OF:Patricia Veronica Perez, Volume I
Hotel Olarge 179.86
417.60529.40179.86TOTAL DUE >
Thank you. Your business is appreciated. We now aa:ept Visa, MasterCard and American Express.(- ) Payments/Credits:(+) FinalKleOIarges/DebiIs:(=) New BaIaIKle:
Please detach bottom portion and return with payment.
$1,126.86
1,126.860.00$0.00
Mr. Eugene D. LeeLaw Office of Eugene Lee555 West Fifth StreetSuite 3100Los Angeles, CA 90013
Invoice No.Invoice DateTotal Due
65173/21/2008$ 0.00
Remit To: Wood . . Randallcertified Shorthand ReportersAProfessional Corporation423Truxtun AvenueBakersfield, CA 93301
Job No.BUIDCase No.Case Name
28121-Main1:07-CV-00026-0WW-TAGJadwin vs. County of Kern
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Case 1:07-cv-00026-OWW-TAG Document 104-2 Filed 04/23/2008 Page 27 of 29
04/17/2008 01:04 8182451405 JADWIN PAGE 02(
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Case 1:07-cv-00026-OWW-TAG Document 104-2 Filed 04/23/2008 Page 28 of 29
04/17/2008 01:04 8182451405 JADWIN PAGE 03
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CERTIFICATE OF SERVICE
I, the undersigned, hereby declare:I am a resident of Los Angeles in the State of California. I am over the age of 18 and not a party
to the action described herein. I am employed in the County of Los Angeles, California. My business
address is LAW OFFICE OF EUGENE LEE, 555 West Fifth Street, Suite 3100, Los Angeles, CA90013. On the date of execution of this DOCUMENT, I served the following:
JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPELDEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING
MONETARY
on the following parties in this action by and through their attorneys addressed as follows:
Mark A. WasserLAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Fax: (916) 444-6405Attorneys for Defendants County of Kern, PeterBryan, Irwin Harris, Eugene Kercher, JenniferAbraham, Scott Ragland, Toni Smith andWilliam Roy
BY UNITED STATES MAIL: I enclosed the DOCUMENT(s) listed above in a sealed envelopewith postage thereon fully prepaid, addressed to the PERSON(s) listed above, and deposited the sealedenvelope with the United States Postal Service at Los Angeles, California. I am aware that on motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter date is morethan one day after date of deposit for mailing in affidavit.
FEDERAL: I declare under penalty of perjury under the laws of the United States of America
that the above is true and correct and that I took said actions at the direction of a licensed attorneyauthorized to practice before this Federal Court.
Executed on April 17, 2008, at Los Angeles, California.
Eugene D. Lee
Case 1:07-cv-00026-OWW-TAG Document 104-2 Filed 04/23/2008 Page 29 of 29