134 Request for Reconsideration Re RPD1

8/14/2019 134 Request for Reconsideration Re RPD1

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PLAINTIFFS REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGES RULING ON PLAINTIFFS

MOTION TO COMPEL PRODUCTION AND FURTHER RESPONSES 1

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Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299

Facsimile: (213) 596-0487Email: [email protected]

Attorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN; et al.

Defendants.

Case No. 1:07-cv-00026-OWW-TAG

PLAINTIFFS REQUEST FORRECONSIDERATION BY THE DISTRICTCOURT OF MAGISTRATE JUDGESRULING ON PLAINTIFFS MOTION TOCOMPEL PRODUCTION AND FURTHERRESPONSES

[28 U.S.C. 636(b)(1)(A); Local Rule 72-303]

Date Action Filed: January 6, 2007Date Set for Trial: December 3, 2008

Plaintiff DAVID F. JADWIN, D.O. (Plaintiff) respectfully submits the following points and

authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldners May

9, 2008 order (Order) granting in part and denying in part Plaintiffs motion to compel production and

further responses by Defendant to requests for production, set one (RPD1). (Doc. 124).

I. INTRODUCTIONPlaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center

(KMC) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint

alleges, among other things, that Defendants engaged in the following illegal acts: defamation,

whistleblower retaliation, disability discrimination and failure to accommodate, medical leave

interference and retaliation, demotion and pay reduction without due process, and Fair Labor Standard

Case 1:07-cv-00026-OWW-TAG Document 134 Filed 05/19/2008 Page 1 of 101


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Act violations. When Plaintiff began reporting several patient care quality issues at KMC starting in

2001, Defendants responded by singling out and targeting Plaintiff for harassment, retaliation and

humiliation over the course of the next six years. In 2005, Defendants conduct finally caused Plaintiff

to suffer clinical depression. When Plaintiff began reduced work schedule sick leave in 2006 to treat his

depression, Defendants responded by demoting him and retaliating against him further, effectively

ending Plaintiffs pathology chair career.

II. PROCEDURAL HISTORYOn October 11, 2007, Plaintiff David F. Jadwin (Plaintiff) served Requests for Production of

Documents (RPD1) on Defendant County of Kern (Defendant).

On November 20, 2007, Defendant served initial responses to Plaintiffs RPD1 (Response 1).

Thereafter, Plaintiff met and conferred extensively with Defendant in an attempt to resolve discovery

disputes.

On December 21, 2007, Plaintiff was forced to file a motion to compel production and further

responses to RPD1 (Doc. 82).

On January 14, 2008, Plaintiffs motion was heard by Magistrate Judge Theresa Goldner. At the

hearing, Defendant withdrew objections to Requests 32, 33 and 40, among others. (See Exhibit 1, 6:10-

15 and Exhibit 2, 20:16-19).

On May 9, 2008, Magistrate Judge Goldner issued the Order granting in part and denying in part

Plaintiffs motion to compel production and further responses to RPD1. (Doc. 124, Exhibit 2).

III.AUTHORITY FOR MOTIONA District Court judge may reconsider pre-trial matters where it has been shown that the

magistrate judges order is clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A); Local Rule

72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision

was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263

(9th Cir. 1993).

IV.ARGUMENTPlaintiff contends that the Order with regard to Request Nos. 12, 13, 14, 15, 17, 28, 29, 30, 32,

33, 36, 37, 38, 39, 40, 41, 45, 51, 58, 59, 60, 61, 63, 65, 66, 67, 70, 71, 72, 73, and 78, is clearly



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erroneous and contrary to law.

A. Assertion of Confidential Personnel Privilege under Cal. Ev. C. 1040 Does NotAppear to Support Construing an Assertion of Federal Privacy Privilege

The Court held that wherever Defendant asserted confidential personnel privilege underCalifornia Evidence Code 1040 ( 1157 only pertains to peer review privilege) as an objection, the

Court would sua sponte construe that as an assertion of federal privacy privilege:

Here, nearly all of Defendants discovery responses assert a confidential personnelprivilege without citing a specific source of law for the privilege. At the hearing on themotion, Defendants counsel relied on California Evidence Code 1040 and 1157 asthe source of this privilege. To the extent that Defendants assert a confidentialpersonnel privilege as a state law privilege, it is inapplicable for the same reasons thatthe state law peer review privilege is inapplicable: state law privileges have noapplication in federal question cases. Agster, 433 F. 3d at 838-839. However, given thenature of documents requested and the reasons given for objecting to their disclosure,

the Court construes the assertion of this privilege as also raising a right of privacy.(Order, 5:3-12) (emphasis added).

Using this approach, the Court sua sponte asserted the objection of federal privacy privilege with regard

to a large number of Plaintiffs Requests Request Nos. 12, 13, 14, 15, 17, 28, 29, 30, 32, 33, 36, 37,

38, 39, 40, 41, 45, 51, 58, 59, 60, 61, 63, 65, 66, 67, 70, 71, 72, 73, 78. The Court then engaged in a

balancing test and concluded in every instance that a protective order was required.

However, the confidential personnel privilege under California Evidence Code 1040 does

implicate the constitutional right of privacy recognized by federal law. Cal. Ev. C. 1040 states in

relevant part:

1040. Privilege for official information(a) As used in this section, "official information" means information acquired inconfidence by a public employee in the course of his or her duty and not open, orofficially disclosed, to the public prior to the time the claim of privilege is made.(b) A public entity has a privilege to refuse to disclose official information, and toprevent another from disclosing official information, if the privilege is claimed by aperson authorized by the public entity to do so and:(1) Disclosure is forbidden by an act of the Congress of the United States or a statute ofthis state; or

(2) Disclosure of the information is against the public interest because there is anecessity for preserving the confidentiality of the information that outweighs thenecessity for disclosure in the interest of justice; but no privilege may be claimed underthis paragraph if any person authorized to do so has consented that the information bedisclosed in the proceeding. In determining whether disclosure of the information isagainst the public interest, the interest of the public entity as a party in the outcome ofthe proceeding may not be considered.

Defendants assertion of confidential personnel privilege concerns the conditional



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governmental privilege against disclosure of official information by public entities and public employees

whenever such disclosure is against the public interest. Put another way, it is a privilege that is intended

to enable the government to protect its state secrets.

To the extent the Court is construing Defendants confidential personnel privilege as raising

privacy concerns regarding County personnel records, which are at the center of several of Plaintiffs

requests, it should be noted that federal courts, including the 9th Circuit, routinely order performance and

pay data regarding other employees of a defendant to be produced, over the privacy objections of

employers. SeeGarrett v. City & County of San Francisco, 818 F.2d 1515, 44 FEP Cases 865, 868 (9th

Cir. 1987)(personnel records of 16 other firefighters ordered produced despite privacy objection since

documents are relevant to claim that black firefighters and white firefighters received different

disciplinary sanctions for the same or similar offenses); Fritz v. Communications Test Design, 72 FEP

Cases 1505, 1506 (E.D. Pa. 1997)(performance reviews of plaintiffs co-workers ordered to be

produced where co-workers expected to testify for defendant employer); Peterson v. City College, 70

FEP Cases 259, 261 (S.D. N.Y. 1994)(female professor alleging sex and age discrimination in denial of

tenure entitled to discover personnel files of younger and male professors); Yee v. Multnomah County,

53 FEP Cases 623,623-64(D. Ore. 1990)(employer ordered to produce personnel files for all other

employees in the plaintiffs department).

To the extent any Request requires production of personnel files of other employees of

Defendant, such files are highly relevant to numerous issues in this action, including, but not limited to,

what the real criteria are for punishing arrogant behavior, granting medical/sick leaves, investigating

complaints, etc., whether those criteria were applied to Plaintiff in the same manner as his peers, and

whether Plaintiff was judged unduly harshly compared to others. There exists good cause to produce the

personnel file-type documents that Plaintiff has requested.

B. Neither Plaintiff Nor Defendant Were Able to Provide Input into the Courts PrivacyBalancing Test

Resolution of a privacy objection . . . requires a balancing of the need for theinformation sought against the privacy right asserted." Soto, 162 F.R.D. at 616;Johnsonex rel. Johnson, 971 F.2d at 1497. The privacy objection also "must be evaluated againstthe backdrop of the strong public interest in uncovering civil rights violations. . . ." Soto,162 F.R.D. at 621. Furthermore, "a carefully drafted protective order [can] minimize theimpact of this disclosure." Soto, 162 F.R.D. at 616; Kelly v. City of San Jose, 114 F.R.D.



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653, 662 (N.D. Cal. 1987)Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005).

Upon construing the assertion of federal privacy privilege in the Order, the Court applied a

privacy balancing test to Request Nos. 12, 13, 14, 15, 17, 28, 29, 30, 32, 33, 36, 37, 38, 39, 40, 41, 45,51, 58, 59, 60, 61, 63, 65, 66, 67, 70, 71, 72, 73, and 78 and concluded that a protective order was

required in every case. But with the exception of Request No. 40, input was not permitted to be given by

Plaintiff as to his compelling need for the documents requested by each Request or Defendant as to

the third-party privacy interests at issue in each Request. The outcome of the Courts privacy balancing

test was an a priori conclusion that a protective order was necessary in every case without exception.

The Court then ordered Plaintiff to meet and confer with Defendant on each Request and to negotiate a

federal right of privacy protective order within 5 days of issuance of the Order. However, the parties

have no guidance as to which privacy interests should yield to which pressing discovery needs of

Plaintiff. The parties first attempt at a joint stipulation and protective order (Doc. 128, Exhibit 4) was

rejected by the Court and the parties were ordered to submit a revised stipulation and protective order

(Doc. 131, Exhibit 5).

Defendant did not assert the federal privacy privilege during the meet and confer process, nor in

their motion briefing nor at the hearing, nor was it ever discussed. The Court asserted the federal privacy

privilege sua sponte for the first time in the Order. Plaintiff was not afforded any opportunity to submit

briefing or be heard on the federal privacy privilege or the balancing test as to all of the above Requests,

with the exception of Request No. 40. Even with respect to Request No. 40, Plaintiff is still ignorant of

the privacy concerns which Defendant has been construed to raise since Defendant did not specify any

privacy objections beyond a boilerplate assertion of confidential personnel privilege in meet and

confers, motion briefing and at the hearing itself.

It should be noted that, during the four months preceding the Courts issuance of the Order,

Defendant chose to produce most of the documents responsive to the above Requests. In so doing,

Defendant engaged in little to no redaction of personal identifying information. Nevertheless, Plaintiff

remains concerned about the application of the Courts protective order to future supplemental

productions by Defendant.



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C. The Courts Protective Order with Regard to Request Nos. 32, 33, 63 and 70 IsOverbroad

Request Nos. 32, 33, 63 and 70 are reproduced below, along with Defendants responses:

REQUEST FOR PRODUCTION NO. 32Any and all DOCUMENTS RELATING TO YOUR discipline of any employee againstwhom a complaint or grievance of discrimination, harassment, defamation, retaliation,failure to accommodate, and/or failure to engage in an interactive process in theiremployment was made from October 24, 2000 to date.

RESPONSE TO REQUEST NO. 63[All objections withdrawn by Defendant at hearing. (See Exhibit 1)]

REQUEST FOR PRODUCTION NO. 33Any and all DOCUMENTS RELATING TO complaints or grievances made by YOURpast or present employees against YOU for defamation, retaliation, disabilitydiscrimination, failure to accommodate, and/or failure to engage in an interactiveprocess, including but not limited to any informal or internal complaints, grievances orcharges to any state or federal agency, and complaints filed in any state or federal courtfrom October 24, 2000 to date.

RESPONSE TO REQUEST NO. 63[All objections withdrawn by Defendant at hearing. (See Exhibit 1)]

REQUEST FOR PRODUCTION NO. 63Any and all DOCUMENTS RELATING TO meeting minutes for the following KernMedical Center committees or groups from October 24, 2000 to the present:a) Medical Executive Committeeb) Joint Conference Committee

c) Quality Management Committeed) Cancer Committeee) Second Level Peer Review Committeef) Transfusion Committeeg) Executive Staff Meetings

RESPONSE TO REQUEST NO. 63Defendants object to this request to the extent it requests documents that containconfidential personnel information or information that is protected from disclosure bystate or federal law, including HIPAA and the peer review privilege, or documents thatare subject to the attorney/client privilege. Without waiving these objections, Defendantswill produce documents responsive to this request by December 21, 2007. Defendantswill redact confidential or privileged information as appropriate.

REQUEST FOR PRODUCTION NO. 70Any and all DOCUMENTS RELATING TO peer review RELATING TO Kern MedicalCenters Pathology Department during the time period from January 1, 1995 to thepresent, including but not limited to computer-generated data, monthly peer reviewrecords completed by pathologists, and peer review comment sheets that are completedby pathologists upon discovery of a discrepancy.

RESPONSE TO REQUEST NO. 70



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Defendants object to this request on the ground that it requests privileged peer-reviewinformation. Defendants also object on the ground that it requests information that isconfidential under HIPAA and not reasonably calculated to lead to the discovery ofadmissible evidence. Without waiving these objections, Defendants will producedocuments responsive to this request by January 7, 2008 if it is possible to redact the

confidential and privileged information without rendering the resulting documentuseless.

With regard to Request Nos. 32, 33, 63 and 70, the Court concluded that a protective order was

necessary and took the further step of ordering Defendant to redact all personal identifying information

for all employees of Defendant (other than the Plaintiff). Plaintiff respectfully submits that the protective

order is overbroad and will render the documents requested effectively useless. Moreover, it is difficult

to discern what federal privacy interest is implicated by Plaintiffs knowing the identities of the persons

who, with regard to Request No. 63 for instance, transcribed meeting minutes or attended certain

committee meetings.

D. It was Error to Construe the Assertion of Federal Privacy Privilege WhereConfidential Personnel Privilege under Cal. Ev. C. 1040 Was Not Being Asserted at All

With regard to Request Nos. 32, 33, 40, and 70, Defendant did not assert a confidential personnel

privilege; hence, a federal privacy privilege should not have been construed as to these Requests.

Regarding Requests Nos. 32, 33 and 40, Defendant had withdrawn all objections at the January

14, 2007 hearing. As Defendant stated in the draft stipulation which they proposed to Plaintiff following

the January 14, 2008 hearing:

Plaintiff has amended Request No. 32 to limit it to complaints or grievances of the typespecified against core physicians only. As amended, Defendants have withdrawn theirobjections to this Request.(See Exhibit 1, 2:10-12)

and

Plaintiff has amended Request No. 33 to limit it to complaints or grievances, includinginternal and informal complaints, of the type specified against past and present corephysicians only. As amended, Defendants have withdrawn their objections to this

Request.(See Exhibit 1, 2:13-15).

Regarding Request No. 40, the Order states: At the hearing on this motion, Defendants counsel

withdrew the objections to this request and agreed to produce the documents, without 1) waiving the

personnel privilege or privacy claims as to other persons, and 2) reserving the right to object to their

admissibility at trial. (20:16-19)(emphasis added).



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Thus, Defendant was not asserting confidential personnel privilege regarding Request Nos. 32,

33 or, in effect, 40.

Regarding Request No. 70, Defendant asserted HIPAA, relevancy and peer review objections

only. Defendant did not assert confidential personnel privilege.

Given that Defendant was not asserting any applicable confidential personnel privilege, nor any

privacy privilege, in Request Nos. 32, 33, 40 and 70, Plaintiff respectfully submits that the it was error

to construe Defendant as having raised federal privacy privilege.

V. CONCLUSIONPlaintiff must respectfully object that the Courts order is clearly erroneous and contrary to law

for the foregoing reasons. Plaintiff requests that the Court reconsider Magistrate Judge Goldners Order.

Respectfully submitted on May 19, 2008.

/s/ Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487

Email: [email protected]

Attorneys for Plaintiff DAVID F. JADWIN, D.O.



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EXHIBITS

EXHIBIT 1. Defendant Declaration re Inability to File Stipulation (Doc. 86)

EXHIBIT 2. Order Granting in Part and Denying in Part Plaintiffs Motion toCompel (Doc. 124).

EXHIBIT 3. Defendants Responses to Plaintiffs Request for Production, Set One

EXHIBIT 4. Stipulation & Order re Protective Order (Doc. 128)

EXHIBIT 5. Minute Order Disapproving Stipulation (Doc. 131)



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EXHIBIT 1. Defendant Declaration re Inability to File Stipulation (Doc. 86)



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Case 1:07-cv-00026-OWW-TAG Document 86 Filed 01/23/2008 Page 1 of 19Case 1:07-cv-00026-OWW-TAG Document 134 Filed 05/19/2008 Page 11 of 101

Mark A. Wasser CA SB # 60160LAW OFFlCES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento. CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: [email protected] Bernard C. Barn1ann, Sr.KERN COUNTY COUNSEL6 Mark Nations. ChiefDeputy1115 Truxton Avenue. Fourth Floor7 Bakersfield, CA 93301Phone: (661) 868-38008 (661) 868-3805E-mail: [email protected]

10 Attorneys Defendants o f Kern ..Peter Bryan, Harris, Eugene Kercher,11 Abraham, Scott Ragland, Smith121314

UNITED S T ATE S DI S TRI CT COURTE AS TE RN D IS TR I CT O F C A LI FO RN IA

15

hearing, the parties reached certain agreements regarding Plaintiff s first request for production

stated in this Declaration are within my own personal knowledge and I can testify competently to

I, Mark A. Wasser, declare as follows:I. I am counsel o f record for Defendants and am familiar with this action. The facts

Date Action Filed: January 6, 2007Trial Date: December 3, 2008

Case No.: 1:07-cv-00026-0WW-TAGDECLARATION O F M AR K A. WASSERRE: INABILITY TO FILE STIPULAn O NFOLLOWING DI S COVE RY HE ARING

DAVID JADWIN, D.O. ))Plaintiff. ))vs. ))et ))Defendants. )))

them if called as a witness.2. I attended the January 14, 2008 hearing on Plaintiff s motion to compel. At the

1617

1918

262728

202122232425

1DECLARATION OF MARK A. WASSER RE: INABILITY TO FILE STIPULATION


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of documents. Among other things , the Court asked the parties to submit to the Court, no later2 than today, Wednesday, January 23, 2008 a stipulation and proposed order regarding some of the3 agreements that were reached.4 o., . I prepared a draft stipulation, a copy ofwhich is attached hereto as Exhibit A, and5 forwarded it to Plaintiffs counsel for review. Plaintiff s counsel responded that the stipulation6 included agreements on more topics than he was will ing to include in a stipulation and he asked7 me to revise the stipulation and narrow it so that it covered only the parties ' agreements8 regarding !lp,,;,p


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1 8. The Court also asked the parties to report by today, Wednesday, January 23,2 whether Defendants would be able to produce the exceptional event logs for histology and3 pathology requested in Request No. 71 and the paper accession logs requested in Request No. 72.4 As set forth in the first draft of the proposed stipulation (see Exhibit A), Defendants are able to5 produce those documents.6 I certify under penalty of perjury that the foregoing is true and correct.7 Executed this 23rd day of January, 2008, in Sacramento, California.

et

8910111213141516171819202122232425262728

By:'_ - l ~ 1 i l l : J 5 ~ ~ ~ L -Mark A WasserAtloHlev for lJetendarlts,

3DECLARATION OF MARK A. WASSER RE: INABILITY TO FILE STIPULATION


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EXHIBIT A


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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: mwasser(uJmarkwasscLcom5 Bernard C. Barrnann, Sr.KERN COUNTY COUNSEL6 Mark Nations, ChiefDcputy1115 Truxtun Avenue, Fourth Floor7 Bakersfield, CA 93301Phone: (661) 868-38008 (661) 868-3805E-mail: [email protected]

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

Defendants.

Plaintiff,

KERN, et

JADWIN, D.O.

Defendants ofKern,Harris, Eugene .nrangnn Ragiand,

VS.

) Case No.: 1:07-cv-00026-0WW-TAG)) snpULAnON RE SUPPLEMENTAL) RESPONSE TO REQUEST FOR) PRODUCTION OF DOCUMENTS AND) ORDER))) Action Filed: January 6, 2007) Trial Date: December _ , 2008))))

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

910111213141516 DAVID1718192021222324 WHEREAS, Plaintiff served a Request for Production of Documents and Defendants25 responded in part and objected in part and produced certain documents and a privilege log; and26 WHEREAS, Plaintiff f iled a motion to compel further responses and the parties reached27 certain agreements during the hearing on Plaintiff 's motion to compel; and28

1 NOTICE OF DEPOSITION 0DAVID F. JADWIN


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1 WHEREAS, the parties enter into this Stipulation to recite their agreements and submit2 the same to the Court for approval;3 IT IS HEREBY STIPULATED by and between the parties through their respective4 counsel, as follows:

requested employee directory information but shall redact any horne addresses or telephone567

1.

numbers.

In supplemental response to Request No. I I , Defendants shall produce the

8 2. SUf,plcmental reSjlon:,e to 26, Defendants

spe'citied " C ' W L " core PhVSlClrms

harddrive from the County computer assigned to Plaintiffit to complaints or vrl,evencr', ofthe\

,I

toAs amended,

amem:led Requestcontents o fiscs containing

objectIons to2

91011

13 4. Plaintiffhas amended Request No. 33 to limit it to complaints or grievances,14 including internal and informal complaints, o f the type specified against past and present core15 physicians only. As amended, Defendants have v,ithdravm their objections to the Request.16 5. In response to Request No. 40, Defendants have agreed to produce the personnel17 file o f , Royce Johnson but are neither waiving nor withdrawing their objections to its18 production or conceding1920

6.7.

Plainti:ffhas v,1tli1dnlwnPlain tiflh as amended Request No. 55 to limit it to documents relating to the

2 I review o f Plaintiff David Jadwin's placental evaluations and billing activity as conducted by22 outside consultants. As amended, Defendants have withdrawn their objections to the Request.23 8. In supplemental response to Request No, 57, Defendants will make the product24 chart copy-related documents available to Plaintiff for inspection and copying at Kern Medical25 Center, in a room to be designated, between 10:00 a,m., Monday, February 4 and 5:00 p.m,26 Wednesday, February 6,2728

2 NOTICE OF DEPOSITION 0DAVlD F. JADWIN


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9. Plaintiffhas amended Request No. 70 to limit it to documents relating to peer2 review of Plaintiff, David Jadwin. As amended, Defendants have withdrawn their objeetions to3 the Request4 10. In supplemental response to Request No. 71, Defendants will produce exceptional5 event logs for histology and pathology but are neither waiving nor withdrawing their objections6 to their production or conceding their relevancy.

In supplemental response to Request No. 72, Defendants will produce paperorbl!ecltl0J1S toor wlthclra'wl

11.89 conceding their releVJlnclv

10 12 supplemental Te


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23456789

10111213141516171819202122232425262728

ORDERThe parties having stipulated as hereinabove set forth and good eause appearing,IT IS SO ORDERED,

Honorable Teresa A. GoldnerMagistrate Judge

4 NOTICE OF DEPOSITION 0DAVID F. JADWI


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EXHIBITB


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1 Mark A. WasserCA SB #060160LAW OFFICES OFMARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasser((/)markwasser.com5 .Bernard C. Barmann, Sr.KERN COUNTY COUNSEL6 Mark Nations, Chief Deputy1115 Truxtun Avenue, Fourth Floor7 Bakersfield, CA 93301Phone (661) 868-38008 (661) 868-3805E-mail: mnati.)ns.(ci;(;o ..CUJJ.ca.. u.9

101112

20 Defendants.

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

) Case No.: 1:07-cv-00026-0WW-TAG)) snpULAnON RE SUPPLEMENTAL) RESPONSE TO REQUEST FOR) PRODUCTION OF DOCUMENTS AND) ORDER))) Action Filed: January 6, 2007) Trial Date: December 3, 2008))))

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

13

19 KERN. et18 VS,

212223

141516 DAVIn F. JADWIN, D.O.17

24 WHEREAS, Plaintiff served a Request for Production ofDocuments and Defendants25 responded in part and objected in part and produced certain documents and a privilege log; and26 WHEREAS, Plaintiff f iled a motion to compel further responses and the parties reached27 certain agreements during the hearing on Plaintiffs motion to compel; and28

1STIPULATION RE: SUPPLEMENTAL RESPONSETO REQUEST

FOR PRODUCTION OF DOCUMENTS AND ORDER


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1 WHEREAS, the parties enter into this Stipulation to recite their agreements and submit2 the same to the Court for approval;3 IT IS HEREBY STIPULATED by and between the parties through their respective4 counsel, as follows:5 L In response to Request No. 40, Defendants have agreed to produce the personnel6 tjle of Dr. Royce Johnson but are neither waiving nor withdrawing their objections to its7 production or conceding its relevancy. Defendants' production ofthc personnel file shall not

the product

5

reganl to anyDefendants

confidential pe::sonn,elsupplemental response to Request No..

COIPv,relate,d documents i iV l iHdUl t to Piaintifffor inspection and copying at Kern lV l eUled l

constitute a we" V,,"

Center, in a room to be del31gl1ated, h,' lwF,pn 1

8910I 112 6,13 Dated: January 23, 2008 LAW OFFICES OF MARK A. WASSER14151617

BY:_...JI",s,-1M""",a",rk,,-A'-o-'- , W ~ a s , - " s ~ e r , - - _Mark A. WasserAttorney for Defendants, Counts of Kern, et aL

18 2008 OF192021

By: lsi Eugene D. Lee (as authorized on 1/23/08)Eugene D. LeeAttorney for Plaintiff, David F. Jadwin, D.O.

2223 ORDER2425262728

The parties having stipulated as hereinabove set forth and good cause appearing,IT IS SO ORDERED.


2STIPULATION RE: SUPPLEMENTAL RESPONSETO REQUEST



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EXHIBIT C


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Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite I100Sacramento, CA 958143 Phone: (9 I6) 444-6400Fax: (916) 444-64054 E-mail: nnvasserra)markvvasseLcom5 I Bernard C Barmann. Sf.

KERN COUNTY COUNSEL6 Mark Nations, Chief Deputy1115 Truxtun Avenue, Fourth Floor7 Bakersfield, CA 93301: Phone: (661) 868-38008 ', Fax: (661) 868-3805.I E-mail: [email protected] Attornevs for Defendants County ofKern.10 I Peter Brvan. irwin'I Jennifer"Abraham, Scott "",;"",10,1 i I and \Vi!liam Rov, -12 Ii" I14 ,is i

Deleted: "1

161718

I:19 IIUNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

Action Filed: January 6, 2007Trial Date: December 3, 2008

STIPULATION RE SUPPLEMENTALRESPONSE TO REQUEST FORPRODUCTION OF DOCUMENTS ANDORDER

202122

2425262728

DAVID F. JADWIN, D.O.

VS.COUNTY OF KERN. at aJ.,

Defendants.

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

STIPULATION RE SUPPLEMENTAL RESPONSETO REQUESTFOR PRODUCTION OF DOCUMENTS AND ORDER


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WHEREAS, Plaintiff served a Request for Production of Documents and Defendants2 responded in part and objected in part and produced certain documents and a privilege log; and3 WHEREAS, Plaintiff f iled a motion to compel further responses and the parties reached4 I certain agreements during the hearing on Plaintiffs motion to compel; and5 WHEREAS, the parties enter into this Stipulation to recite their agreements and submit6 the same to the Court for approval;I7 '! IT IS HEREBY STIPULATED and bet'ween the parties through their respective

1. in response to Request No. 40, Defendants haveDeleted: b, t are Iwither w a i v i n ~ no, v i ( h d n \ " i i J ~ ;(' It"PWdHC!ion {)i

toDefendants' prcldliciion oftne personnel file

counsel, as foilaws:

nn,rl,we the personnel file of Dr.0

chart wnv.,elmpc1 documents availab!e 10 Plaintifffof in'mpetinn and nonvnw at Kern Medica!

shaH not constitute a \-valver oftne confidential personnel privilege with regard to any other1 Ii'IIIIn I,: IL)

[4 !I

documents.2. In supplenlcrltal response to Reques t No, 57. Defendants \viH make the product

ii!5 !I CentcL in a room to be16 Wednesday, February 6.l?

between! 0:00 a.m .. Mcrnday. Fe'"onrv 4 and 5:00 p.m.

1819 I2021 i221123 I,,I2425262728

2STIPUl.ATION RE SUPPLEMENTAL RESPONSETO REQUEST


II


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23 Dated: January 23, 200845678 Dated: January 23, 20089

LAW OFFICES OF MARK A, WASSER

By: is/Mark A. WasserMark A. WasserAttorney for Defendants, County of Kern. et a1.

LAW OFFICE OF EUGENE LEE

10

Th e

By : /s/ Eugene D. Lee (as authorized on 1/23/08)LU.ge"u D. LeeAttorney for Plaintiff. David F. D.O.

ORDERstillUlaLted as hereinabove set forth an d cause amleatiDc,

16Ih

:: II20 II21 I:

22\123

11

2 \12) 'I262728

JT IS SO ORDERED.


3STIPULATION RE SUPPLEMENTAL RESPONSETO REQUESTFOR PRODUCTION OF DOCUMENTS AND ORDER


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EXHIBIT D


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Case 1:07-cv-00026-OWW-TAG Document 86 Filed 01/23/2008 Page 17 of 19Case 1:07-cv-00026-OWW-TAG Document 134 Filed 05/19/2008 Page 27 of 101IIMark 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: [email protected]

5 Bernard C. Barmann, Sf.KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy

i I 1115 Truxtun Avenue, Fourth Floor7

1

' Bakersfield. CA 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected][1 Attorneys fO.f Def:ndants County ofKem,10 IPeter Bryan, Invin Kercher.I Jennifer"Abraham, Scott Toni Sn1ith

11 II and William Roy12 I'I

Deleted:

14 1!15 I.i1611718

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNiA

19

I DAVID F. JADWIN, D.O.21 Plaintiff.

Action filed: January 6, 2007Trial Date: December 3, 2008

STIPULATION RE SUPPLEMENTALRESPONSE TO REQUEST FORPRODUCTION OF DOCUMENTS ANDORDER

Defendants.

\IS.COUNTY OF KERN, et al..

) Case No.: l:07-cv-00026-0WW-TAGj)))))))))))~ ~ ~ ~ ~ ~ ~ ~ ~ ~ - )

24 I

28

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2627

25

22



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23456

WHEREAS, Plaintiff served a Request for Production of Documents and Defendantsresponded in part and objected in part and produced certain documents and a privilege log; and

WHEREAS, Plaintifffiled a motion to compel further responses and the parties reachedcertain agreements during the hearing on Plaintiffs motion to compel; and

WHEREAS, the parties enter into this Stipulation to recite their agreements and submitthe same to the COUrt for approval;

1. In response to Request No. 40, Defendants have agreed, among other things, to

IT IS HEREBY STIPULATED by and between the parties through their respectivecounseL as follows:

produce the personnel file ofDT. Johnson but are neither nor withejrawiag their

12objections to its production or conceding its relevanc)!, Defendants' production oftne Derse,nr,eilme shall not constitute a ,,\-'aiver of the confidential personnel privilege \vith regard to any other

chart copy-",Ialled documents available to Plaintiff for inllp"ction and CO,W,'M at Kern MedicalCenter, in a room to be des ignated, between 10:00 a,m., Monday, February 4 and 5:00 p.m,Wednesday, February 6.

Many of the documents Defendants have produced andwill produce contain1718

documents.In leraent'll response to lWyU"" No. Defendants \vilJ make the UHJW.M

Deleted: 15

19 II patient information that is confidential under HIPAA. peer review information that isi20 confidential under California Evidence Code section 1157 or employee information that is

21 confidential under California Evidence Code section 1040. Plaintiff shall not reveal thisIi22 Ii information to anyone other than his legal counsel, any consultants or experts retained to assist!

L ) Plaintiff in the pf(lSccetion of this case. and his and their assistants. At the conclusion of thiscase, Defendants may ask the Court for an order directing Plaintiff to either destro)" aUdocuments that contain confidential information or return them to D e f e n d a n t s . ~

24 I25 I262728

Dated: January 23, 2008 LAW OFFICES OF MARK A. WASSER

By: /s/ Mark A. Wasser2

Deleted: 1n consideration of theforegoing, Defendants agrce to produ~ " " l discovery allY and all documents wDefendants otherwise had or would hvvithheld trom production as plltientinfortnalion that is confidentialllnderHIPA!\. peer review infOllllation that(;on fidcntial tinder Cnlifol'l.1ifl EvidenCode section] 157 or employeeinfonnatioll that is confidential undelCalifomia Evidence Code section 10



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234

Dated: January 23,2008

Mark A. WasserAttorney for Defendants, County of Kern, et al.

LAW OFFICE OF EUGENE LEE

5i67

By: lsi EU2:ene D. Lee (as authorized on l/23/08)Eugene D. LeeAttorney for Plaintiff, David F. Jadwin, D.O.

lT is SO OROERED.

8910 Ii11 II1211II13

11

14 II15 11i6 ii

1718 ,192021

232425262728

The partiesORDER

" j" as hereinabove set forth and good cause 8DJlearine.

Honorable Teresa A. GoldnerMagistrate

3STIPULATION RE SUPPLEMENTAL RLSPONSETO REQUEST



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EXHIBIT 2. Order Granting in Part and Denying in Part Plaintiffs Motion toCompel (Doc. 124).



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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,

vs.

COUNTY OF KERN, et al.,

Defendants.

___________________________________/

Case No. 1:07-cv-0026-OWW-TAG

ORDER GRANTING IN PART ANDDENYING IN PART MOTION TOCOMPEL PRODUCTION AND FURTHER

RESPONSES(Doc. 82)

Plaintiff David F. Jadwin, D.O. moved to compel responses to his request for production

of documents (set one) directed to Defendant County of Kern. (Doc. 82). Defendant opposedthe motion, contending in essence that it has either produced or is prepared to produce all

documents to which Plaintiff is entitled. Counsel for the parties were unable to agree upon a

joint statement regarding their discovery disagreements. Both counsel filed separate declarations

explaining why they were not able to reach an agreement, and attached to their declarations

exhibits outlining their positions, including copies of various emails, letters, draft documents,

and the like. (Docs. 83, 84). At the hearing on the motion, both counsel stipulated to several of

the issues in dispute, and the Court directed them to file a written stipulation with a

corresponding proposed order for the Courts consideration. (Doc. 85). Once the hearing

concluded, counsel were unable to agree upon a written stipulation. (Docs. 86, 87, 88).



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The Court has read and considered the pleadings and the arguments and stipulations of

counsel made at the hearing on the motion to compel, and makes the following ruling.

A. Discovery Overview

The purpose of discovery is to make trial less a game of blind mans bluff and more afair contest with the basic issues and facts disclosed to the fullest extent possible, United States

v. Proctor & Gamble, 356 U.S. 677, 683, 78 S. Ct. 983 (1958), and to narrow and clarify the

issues in dispute, Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385 (1947).

Fed.R. Civ. P. 26(b) establishes the scope of discovery and states in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, that is relevantto the claim or defense of any party, including the existence, description, nature,custody, condition, and location of any books, documents, or other tangible things

and the identity and location of persons having knowledge of any discoverablematter. For good cause, the court may order discovery of any matter relevant tothe subject matter involved in the action. Relevant information need not beadmissible at trial if the discovery appears reasonably calculated to lead to thediscovery of admissible evidence.

The party who resists discovery has the burden to show that discovery should not be

allowed, and has the burden of clarifying, explaining, and supporting its objection. Oakes v.

Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998); Nestle Foods Corp. v. Aetna

Casualty & Surety Co., 135 F.R.D. 101, 104 (D. N.J. 1990).

B. Request for Production of Documents Standards

Fed. R. Civ. P. 34(b) requires a written response to a request for production to state, with

respect to each item or category, that inspection and related activities will be permitted as

requested, unless the request is objected to, in which event the reasons for the objection shall be

stated. A party is obliged to produce all specified relevant and nonprivileged documents or other

things which are in its possession, custody or control on the date specified in the request. Fed.

R, Civ, P. 34(a); Norman Rockwell Intl. Corp. H, Wolfe Iron & Metal Co., 576 F. Supp. 511,512 (W.D. Pa. 1983). The propounding party may seek an order for further disclosure regarding

any objection to or other failure to respond to the request or any part thereof, or any failure to

permit inspection requested. Fed. R. Civ. P. 34(b). Failure to respond to a Rule 34 request



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within the time permitted waives all objections, including privilege and work product.

Richmark Corp. v. Timber Falling Consultants, 959 F. 2d 1468, 1473 (9th Cir. 1992).

C. Peer Review Privilege

The majority of Defendants objections assert a state law peer-review privilege.Defendants fail to cite to a specific statute in their written objections, but reported at the hearing

on the motion that the peer review privilege is contained in California Evidence Code 1047,

1157. Except as otherwise provided by federal law, privileges in federal cases are governed by

federal common law. Fed. R. Evid. 501; United States v. Zolin, 491 U.S. 554, 562, 109 S. Ct.

2619 (1989). The peer review privilege has been addressed and rejected by the Ninth Circuit. In

Agster v. Maricopa County, 422 F. 3d 836 (9th Cir. 2005), the Ninth Circuit refused to recognize

the peer review privilege. 422 F. 3d at 839-840. Here, Defendants have asserted a state law peer

review privilege. However, [w]here there are federal question claims and pendent state law

claims present, the federal law of privilege applies. Agster, 422 F.3d at 840-841(citations

omitted); Jackson v. County of Sacramento, 175 F.R.D. 653, 654 (E.D. Cal. 1997); Burrows v.

Redbud Community Hospital District, 187 F.R.D. 606, 610-611 (N.D. Cal. 1998). Defendants

contend that state privilege law applies to Plaintiffs state law claims and not to his federal

claims. Platypus Wear, Inc. v. R.D. Company, Inc., 905 F. Supp. 808 (N.D.CAL. 1995).Platypus is distinguishable from this case, because it was a diversity case that involved various

state law claims and a single federal claim where the evidence sought went only to state law

theories of liability and the plaintiff advanced no theory under which the evidence could be

relevant to the federal claim. Here, Plaintiff has several federal claims as well as state law claims,

and the evidence sought, which spans Plaintiffs career at the Kern Medical Center, is relevant to

both his federal and state claims. [W]here state law claims overlap with federal claims in a

federal question case such that particular documents are relevant to both the state and the federal

claims, federal privilege law also applies. Boyd v. City and County of San Francisco, 2006 WL

1390423 * 3 (N.D. Cal. 2006)(citing Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671



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F.2d 100, 104 (3rd Cir. 1992)(additional citation omitted)). The Court concludes that federal

privilege law applies, and the state law peer review privilege has no application in this case.

D. HIPAA

The majority of Defendants objections also contend that the requested documents areprotected from disclosure under HIPAA. Defendants fail to cite a specific code section in their

written responses. HIPAA refers to the Health Insurance Portability and Accountability Act of

1996. Pub.L. No. 104-191, 110 Stat. 1936 (1936)(codified primarily in Titles 18, 26, and 42 of

the United States Code). Under HIPAA, a health care provider such as Defendant Kern Medical

Center, may disclose protected patient health information pursuant to a court order, subpoena, or

discovery request when the health care provider receives satisfactory assurance from the party

seeking the information that reasonable efforts have been made to obtain a qualified protective

order that: 1) prohibits the parties from using or disclosing the protected health information for

any purpose other than the subject litigation; and 2) requires the return to the healthcare provider

or destruction of the protected health information (including all copies made) at the end of the

litigation. See Allen v. Woodford, 2007 WL 309485, *5 (E.D. Cal. 2007). Here, the Court is not

satisfied that Defendants received HIPAA assurances from Plaintiff prior to the hearing on the

motion, and the record reflects that no stipulation for a protective order has ben filed. (SeeDocket generally). Accordingly, Defendants objections to disclosure based on HIPAA are well-

taken as to documents that contain protected patient health information.

E. Right of Privacy

Fed. R. Civ. P. 26(b) excludes privileged matters from discovery. Federal courts

generally recognize a constitutionally-based right of privacy that may be asserted response to

discovery requests. Johnson ex rel. Johnson v. Thompson, 971 F. 2d 1487, 1497 (9th Cir. 1992);

Megargee v. Wittman, 2007 WL *2 (E.D.Cal. 2007)(citations omitted). Although the right to

privacy is not a recognized privilege, many courts have considered it in discovery disputes.

Ragge v. MCA.Universal Studios, 165 F. R.D. 601, 604, n. 3 (C.D.Cal. 1995)(citation omitted).



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The right of privacy is not an absolute bar to discovery. Instead, it is subject to a balancing test

that requires courts to balance the need for privacy against the need for disclosure in litigation.

Ragge, 165 F. R.D. at 604 (C.D.Cal. 1995). Here, nearly all of Defendants discovery responses

assert a confidential personnel privilege without citing a specific source of law for theprivilege. At the hearing on the motion, Defendants counsel relied on California Evidence Code

1040 and 1157 as the source of this privilege.

To the extent that Defendants assert a confidential personnel privilege as a state law

privilege, it is inapplicable for the same reasons that the state law peer review privilege is

inapplicable: state law privileges have no application in federal question cases. Agster, 433 F. 3d

at 838-839. However, given the nature of documents requested and the reasons given for

objecting to their disclosure, the Court construes the assertion of this privilege as also raising a

right of privacy. Accordingly, the Court will apply the requisite balancing test in determining

whether the need for disclosure outweighs the privacy issues, and will also consider whether

additional orders are necessary to protect a party or person from annoyance, embarrassment,

oppression, or under expense in connection with any disclosure that may be ordered as to such

documents.

F. Privilege Log

A concomitant requirement with a claim of privilege is an adequate privilege log.

Fed. R. Civ. P. 26 provides in relevant part that:

When a party withholds information otherwise discoverable under theserules by claiming it is privileged or subject to protections as trial preparationmaterial , the party shall make the claim expressly and shall describe the nature ofthe documents, communications or things not produced or disclosed in a mannerthat, without revealing information itself privileged or protected, will enable otherparties to assess the applicability of the privilege or protection.

Fed. R. Civ. P. 26(b)(5) requires parties to provide a log or its equivalent when theywithhold information on grounds of privilege or work product protection. Etienne v. Wolverine

Tube, Inc., 185 F.R.D. 653, 656 (D. Kansas 1999). The Ninth Circuit has held that an adequate

privilege log identifies 1) the persons involved; 2) the nature of the document; 3) all persons or



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entities shown on the documents to have received or sent the documents; 4) all persons or entities

known to have been furnished the document or informed of its substance; and 5) the date the

document was generated, prepared, or dated. In re Grand Jury Investigation, 974 F. 2d 1068,

1071 (9th Cir. 1992).Here, Defendants produced a privilege log, which Plaintiff asserts is inadequate for two

reasons. First, because it is not sufficiently specific. Second, because it pertains only to the first

installment of a two-phased document production. Defendants contend that Plaintiffs requests

for production relate to approximately 30,000 pages of documents, and that due to the large

number of documents, they agreed to produce them in two installments. Defendants produced

the first installment, along with a privilege log that they contend is adequate. Defendants contend

that they were in the process of producing the second installment of documents, with a separate

privilege log as to those documents, when the instant discovery dispute arose over copying costs

and other issues. At the time of the motion hearing, the second installment of documents had not

been produced.

The Court has considered the first privilege log, and at the motion hearing, ordered

Defendants to amend the log to provide additional information. Given the nature of the

documents on the log and the Courts orders made at the hearing, the Court declines to find awaiver of privilege.

The Court next addresses the timing of the privilege log. Fed. R. Civ. P. 25(b)(5) requires

the party asserting privilege to adequately describe the documents withheld, but it does not

specify when the required description must be provided. Jackson v. County of Sacramento, 175

F.R.D. 653, 655 (E.D. Cal. 1997). In Burlington Northern & Sante Fe Railway Co. v. United

States District Court for the District of Montana, 408 F. 3d 1142 (9th Cir. 2005), the Ninth

Circuit held that boilerplate objections or blanket refusals inserted into a response to a Rule 34

request for productions of documents are insufficient to assert a privilege. Id. at 1149.

The Court also held that failure to serve a privilege log within 30 days was not a per se waiver ,



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and directed courts to make waiver determinations on a case-by-case basis, taking into account:

1) the relative specificity of the objection or assertion of privilege; 2) the timeliness of the

objection and accompanying information about the withheld documents; 3) the magnitude of the

document production; and 4) other particular circumstances of the litigation that makeresponding to discovery unusually easy or unusually hard. Id. at 1149. The Ninth Circuit also

cautioned that the above factors should also be applied in the context of a holistic realistic

analysis. Id.

The Court has considered the Burlington factors, and the circumstances surrounding the

submission of Defendants privilege log. Defendants objections were timely, but essentially

boilerplate. Defendants did not produce a privilege log when they objected to the discovery

requests, but submitted one when they produced the first installment of documents. Defendants

produced documents in response to Plaintiffs request, but did not produce them all at once.

Instead, as discussed, Defendants proceeded in accordance with what Defendants counsel

believed was an agreement between him and Plaintiffs counsel. Although the precise details of

the agreement are difficult to divine from the declarations and their approximately 200 pages of

attachments, a task that is made more difficult by the absence of a joint statement regarding this

discovery dispute, the Court concludes there was an agreement that the document productionwould be accomplished in at least two installments. Considering the timing dispute in the

context of a holistic realistic analysis, the Court concludes that the date of service of the first

privilege log and the fact that it addressed only the first installment of documents, does not

warrant a privilege waiver as to either the items on the log or as to documents to be produced in

the second installment. However, with respect to the latter, Defendants will be compelled to

provide an adequate log or face waiving privilege.

G. Reproduction Costs

A dispute has arisen over the cost to reproduce documents produced in discovery.

Plaintiff contends that Defendants refused to produce documents he requested to inspect, until he



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reimbursed them for reproduction costs. He contends that he is not required to pay for the cost to

reproduce the documents and that Defendants cannot unilaterally condition their production upon

payment of such costs. Defendants contend that the substantive and temporal scope of Plaintiffs

document requests are unnecessarily broad, and require production of at least 30,000 pages ofdocuments, many of which have marginal or no relevance to this case. By way of example,

Defendants report that Plaintiffs Document Request No. 57 seeks approximately

11, 000 pages of blood product chart copy records that relate to blood products delivered to

patients, that Plaintiff contends has no relation to any issue in this case. Plaintiffs first

production of documents consisted of approximately 12,000 pages. Defendants served their first

installment of documents on Plaintiff in the form of electronic files copied on CDs. At first,

Defendants demanded that Plaintiff pay $10,000 for reproduction costs, and later reduced that

amount to $2, 932.00

Federal Rule of Civil Procedure 26(b)(1) defines the general scope of discovery, and

provides in relevant part that [p]arties may obtain discovery regarding any nonprivileged matter

that is relevant to any partys claim or defense ... . Rule 26(b)(2) limits the frequency and extent

of discovery, providing in relevant part that:

On motion or on its own, the court must limit the frequency or extent of discoveryotherwise allowed by these rules of by local rule if it determines that: . . . (iii) theburden or expense of the proposed discovery outweighs its likely benefit,considering the needs of the case, the amount in controversy, the partiesresources, the importance of the issues at stake in the action, and the importanceof the discovery in resolving the issues.

Fed.R.Civ.P. 26(b)(2)(C). Under the discovery rules, the presumption is that the responding

party must bear the expense of complying with discovery requests, but may involve the district

courts discretion under Rule 26(c) to grant protective orders protecting him from undue burden

or expense in doing so, including orders conditioning discovery on the requesting partys

payment of the costs of discovery. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98

S.Ct. 2380 (1978); Zubalake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D. N.Y. 2003); OpenTV



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v. Liberate Technologies, 219 F.R.D. 474, 476 (N.D.Cal. 2003). Cost-shifting should only be

ordered when discovery imposes an undue burden or expense that outweighs the likely benefits

of the discovery and after consideration of all relevant factors.

Here, Defendants have not sought a protective order. Defendants have not provided anycase authority to support its position or an analysis of the factors to be considered in determining

whether cost-shifting is appropriate, other than contending that the many of the documents

requested by Plaintiff have little or no relevance to this case and the cost of their production

outweighs any likely benefit. At the hearing on the motion, the parties stipulated to resolve the

dispute as to responsive documents that were copied onto a CD but not delivered to Plaintiff,

agreeing that Plaintiff will pay Defendants counsel the sum of $2, 932, and that Defendants

counsel will reimburse Plaintiff at the rate of 14 cents per page for any duplicate documents

contained on the CD. The Court accepts the parties stipulation and makes it an order of the

Court. As to the remaining documents requested by Plaintiff, the Court concludes that they do

not impose a benefit on Defendants that is sufficient to warrant cost-shifting at this time.

H. Defendants Supplemental Responses

On October 11, 2007, Plaintiff served his request for production of documents on

Defendants. Defendants written responses were due by November 12, 2007 and theirproduction of documents was due by November 16, 2007. Plaintiff and Defendants initially

agreed to extend the deadline for responses to November 20, 2007 as to some of the requests, and

later dates as to others. They also agreed to extend the deadline for production of documents to

December 21, 2007. On November 20, 2007, Defendants served timely written responses.

On December 14, 2007, Plaintiff agreed to extend the time for responses to December 21, 2007.

On December 19, 2007, Defendants served supplemental responses to the requests for

production. The supplemental responses included additional objections and assertions of

privilege, that were not contained in Defendants initial responses. In light of the parties

agreement to extend the time for responses to December 21, 2007, the supplemental responses



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were timely and the objections and assertions of privileges therein will be considered by the

Court. (Doc. 83, pp. 103-169).

I. Requests for Production

The Court summarizes Plaintiffs document requests and Defendants responses, andrules on each request as follows.

Request No. 11

Documents related to Kern Medical Center personnel directories or lists maintained

during Plaintiffs employment with Kern Medical Center.

Defendants Response:

Defendants will produce all nonprivileged documents, redact privileged information, and

produce the documents subject to receipt of reimbursement for reproduction costs.

Ruling:

The motion to compel is GRANTED as to this request. Defendants assertion of

privilege lacks specificity. At the hearing on the motion, both counsel agreed that home

addresses would be redacted. If they have not already done so, Defendants shall produce the

documents for Plaintiffs inspection and copying, within 10 days from the date of this order.

After inspecting the documents, Plaintiff shall decide what documents he wants copied, and payhis own reproduction costs.

Request Nos. 12-14, 15

No. 12: Documents related to personnel policies, guidelines, fact sheets, posters,

employee and/or employer handbooks, training materials, and employee and/or employer

manuals that governed Plaintiffs terms and conditions of employment at any time during the

period from October 1, 2000 to October 4, 2007.

No. 13: Documents related to personnel policies, guidelines, fact sheets, posters,

employee and/or employer handbooks, training materials, and employee and/or employer

manuals that were distributed or made available to employees ,whether management or non-



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management, from October 2000 to the present and the date of such asserted distribution.

No. 14: Documents related to peer review, quality management and quality assurance

policies and procedures at Kern Medical Center, including but not limited to Kern Medical

Centers Quality Management and Performance Improvement Plan, from October 24, 2000 to thepresent, and the effective dates.

No. 15: Documents related to any training provided to officers, directors, agents or

employees on the following subjects: a) disability discrimination, b) accommodation of an

employees disability, c) the interactive process regarding accommodation of an employees

disability; d) medical leave rights; e) whistleblower retaliation, f) medical leave retaliation,

g) due process required for demotion; h) due process required for pay cut, i) due process required

for termination of employment, j) defamation, and k) Fair Labor Standards Act.


Defendants agreed to produce redacted documents, subject to objections that the requests

seek documents that contain confidential personnel information, are protected from disclosure

by HIPAA and the peer review, personnel, and attorney-client privileges, and subject to

reimbursement of reproduction costs.

Ruling:The motion to compel is GRANTED in part and DENIED in part as to these requests.

The peer review and personnel privileges are not applicable. Defendants assertion of HIPAA

protection and the attorney-client privilege is appropriate. To the extent that Defendants assert a

right to privacy, the balancing test weighs in favor of limited disclosure and a protective order.

Defendants shall redact all HIPAA information from the documents. Defendants shall produce

the documents, excluding those that are subject to the attorney-client privilege. Defendants shall

also provide a detailed privilege log as required by Fed. R.Civ.P. 26(b)(5). The documents shall

be produced for Plaintiffs inspection and copying, and the privilege log shall be provided to him,

within 20 days from the date of this order. After inspecting the documents, Plaintiff shall decide



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what documents he wants copied, and pay his own reproduction costs.

Request No. 17

Documents relating to the search, recruitment, application, interviewing, and hiring

process that resulted in Plaintiffs employment.Defendants Response:

Defendants agreed to produce documents, subject to redaction and objections that the

request seeks documents containing confidential personnel information, documents protected

from disclosure by HIPAA and the peer review, personnel, and attorney-client privileges.

Defendants agreed to produce the documents without waiving their objections, upon

reimbursement of reproduction costs.

Ruling:

The motion to compel is GRANTED in part and DENIED in part as to this request.

The peer review and personnel privileges are inapplicable. Defendants assertion of HIPAA

protection and the attorney-client privilege is appropriate. To the extent that Defendants

assertion of a right of privacy to personnel information of candidates is subject to a balancing

test, it weighs in favor of limited disclosure and a protective order. Defendants shall redact from

the documents all HIPAA information and all personal identifying information of candidatesother than Plaintiff. Defendants shall produce the documents, excluding those that are subject to

the attorney-client privilege, and also excluding all letters of reference for candidates other than

Plaintiff and all substantive evaluations of candidates other than Plaintiff. Defendants shall also

provide a detailed privilege log for those documents that are withheld for the attorney-client

privilege. The documents and the privilege log shall be produced within 20 days from the date of

this order. Plaintiff shall inspect the documents, decide what he wants copied, and pay his own

reproduction costs.

Requests Nos. 23-24

No. 23: Documents relating to Dr. Phillip Dutts time sheets, from April 20, 2005 to the



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present.

No. 24: Documents relating to Dr. Savita Shertukdes time sheets, from January 4, 2005

to present.

Defendants Response:Defendants agreed to produce documents redacted for privileged information, subject to

reimbursement for reproduction costs.

Ruling:

The motion to compel is GRANTED as to these requests. The responses fails to specify

the asserted privilege. Defendants shall produce the documents for Plaintiffs inspection and

copying within 10 days from the date of this order. Plaintiff shall inspect the documents, decide

what he wants copied, and pay his own reproduction costs.

Request No. 25

Documents relating to performance reviews, comments, complaints, warnings,

reprimands, counseling, advisory notices or evaluations of Plaintiffs performance of his job

duties throughout his employment, whether formal or informal.


Defendants objected to this request on the ground that it seeks documents containinginformation protected by the attorney-client privilege. Without waiving the objection,

Defendants agreed to produce the documents, subject to redaction and reimbursement of

reproduction costs.

Ruling:

The motion to compel is GRANTED in part and DENIED in part as to this request.

Defendants assertion of the attorney-client privilege is appropriate. Defendants shall produce the

documents, excluding those that are subject to the attorney-client privilege. Defendants shall

also provide a detailed privilege log. The documents shall be produced for Plaintiffs inspection

and copying, and the privilege log shall be provided to him, within 20 days from the date of this



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order. After inspecting the documents, Plaintiff shall decide what documents he wants copied,

and pay his own reproduction costs.

Request No. 26

Documents maintained by Plaintiff at Kern Medical Center during his employment there,including e-mails, Groupwise calendars, memoranda, written materials, and computer files,

stored on Plaintiffs computer at Kern Medical Center.


Defendants objected to producing documents containing confidential personnel

information, documents protected from disclosure by HIPAA, and the peer review, personnel,

and attorney-client privileges. Groupwise calendar information was deleted as part of a routine

90-day software cycling sweep. Defendants agreed to produce redacted material that was

archived by December 21, 2007, provided that Plaintiff pay the reproduction costs.

Ruling:

The motion to compel is GRANTED as to this request. At the hearing on the motion,

Defendants counsel reported that Defendants do not object to this request and will produce the

documents requested. If Defendants have not already done so, they shall produce the documents

for Plaintiffs inspection and copying within 10 days from the date of this order. Plaintiff shalldecide what documents he wants copied, and pay his reproduction costs.

Request No. 27

Documents relating to any meetings relating to Plaintiff or his employment at Kern

Medical Center.


Defendants objected to this request on the ground that it seeks documents protected from

disclosure by the attorney-client privilege. Without waiving their objection, Defendants agreed

to produce nonprivileged documents, subject to redaction and reimbursement of reproduction

costs



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Ruling:

The motion to compel is GRANTED in part and DENIED in part as to these requests.

Defendants assertion of the attorney-client privilege is appropriate. Defendants shall redact all

HIPAA information from the documents. Defendants shall produce the documents, excludingthose that are subject to the attorney-client privilege. Defendants shall also provide a detailed

privilege log. The documents shall be produced for Plaintiffs inspection and copying, and the

privilege log shall be provided to him, within 20 days from the date of this order. After

inspecting the documents, Plaintiff shall decide what documents he wants copied, and pay his

own reproduction costs.

Request No. 28:

Documents relating to performance reviews, comments, complaints, warnings,

reprimands, counseling, advisory notices or evaluations of the Kern Medical Center Pathology

Department, whether formal or informal, from October 24, 1995 to the present.


Defendants objected to this request , contending that it seeks documents that contain

confidential personnel information, and that are protected from disclosure by HIPAA and the

peer review, personnel, and attorney-client privileges. Without waiving their objections,Defendants agreed to produce redacted documents subject to reimbursement of reproduction

costs.

Ruling:

The motion to compel is GRANTED in part and DENIED in part as to this request. The

peer review and personnel privileges are inapplicable. Defendants assertion of HIPAA

protection and the attorney-client privilege is appropriate. To the extent that Defendants

assertion of a right of privacy is subject to a balancing test, it weighs in favor of a protective

order. Defendants shall redact from the documents all HIPAA information. Defendants shall

produce the documents, excluding those that are subject to the attorney-client privilege.



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Defendants shall also produce a detailed privilege log for the documents that are withheld for the

attorney-client privilege. The documents shall be produced for Plaintiffs inspection and

copying, and the privilege log provided to him, within 20 days from the date of this order.

Plaintiff shall inspect the documents, decide what he wants copied, and pay his own reproductioncosts.

Request Nos. 29-30

No. 29: Documents relating to Plaintiffs complaints of a) disability discrimination,

b) failure to accommodate, c) failure to engage in an interactive process, d) violation of medical

leave rights; e) whistleblower retaliation, f) medical leave retaliation, g) deprivation of property

without due process , h) defamations, and i) Fair Labor Standards Act.

No. 30: Documents relating to investigation of Plaintiff s complaints of disability

discrimination, failure to accommodate, failure to engage in an interactive process, violation of

medical leave rights; whistleblower retaliation, medical leave retaliation, defamation, and/or

deprivation of property without due process


Defendants objected to Request Nos. 29 on the ground that it requests documents

containing information protected by the attorney-client privilege, and agreed to produce thedocuments, subject to redaction of confidential peer review and personnel information and

reimbursement for reproduction costs.

Ruling:

The motion to compel is GRANTED in part and DENIED in part as to these requests.

Defendants assertion of the attorney-client privilege is appropriate. The peer review privilege is

inapplicable. The Court construes Defendants confidential personnel information objection to

assert the personnel privilege, and finds the privilege inapplicable. To the extent that

Defendants assertion of a right of privacy to personnel information is subject to a balancing test,

it weighs in favor of a protective order. Defendants shall produce the documents, excluding



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those that are subject to the attorney-client privilege. Defendants shall also provide a detailed

privilege log for the documents that are withheld for the attorney-client privilege. Defendants

shall produce the documents for Plaintiffs inspection and copying, and provide the privilege log,

within 20 days from the date of this order. Plaintiff shall inspect the documents, decide what hewants copied, and pay for his reproduction costs.

Request Nos. 32-33

No. 32: Documents relating to your discipline of any employee against whom a

complaint or grievance of discrimination, harassment, defamation, retaliation, failure to

accommodate, and/or failure to engage in an interactive process in their employment was made

from October 24, 2000 to date.

No. 33: Documents relating to complaints or grievances made by Defendants past or

present employees against Defendants for defamation, retaliation, disability discrimination,

failure to accommodate, and/or failure to engage in an interactive process, including, but not

limited to information or internal complaints, grievances or charges to any state or federal

agency, and complaints filed in any state o

134 Request for Reconsideration Re RPD1

Documents

Transcript of 134 Request for Reconsideration Re RPD1