83 MTC Declaration Re Joint Statement

8/14/2019 83 MTC 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 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]

Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE

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

Date: January 14, 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.

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Case 1:07-cv-00026-OWW-TAG Document 83 Filed 01/09/2008 Page 1 of 207


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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. 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. I had

numerous, extensive meet and confer discussions with Mr. Wasser by phone, email and fax. On Friday,

January 4, 2008, at around 4 p.m., I sent Mr. Wasser a draft version of the Joint Statement re: Discovery

Disagreement by fax, requesting his input. I explained in the cover letter that the draft was a work in

progress and remained subject to change. I also sent to Mr. Wasser, via first-class mail, a copy of the

exhibits which I intended to attach to the Joint Statement. Later that day, at around 11 p.m., I sent Mr.

Wasser another draft of the Joint Statement by fax, again requesting his input.

3. On January 9, 2008, I approached Mr. Wasser at a deposition he was conducting of myclient, Plaintiff David Jadwin, and asked him for his feedback on the Joint Statement. He responded that

he intended to file a Declaration re Joint Statement stating that I had not delivered to him the exhibits to

the Joint Statement for his review. I explained I had mailed the exhibits to him, per my fax of January 4,

2008. I also offered to give him an electronic version of the exhibits right then and there. Mr. Wasser

refused. The exhibits consist exclusively of faxes, letters and emails exchanged between myself and Mr.

Wasser, all of which Mr. Wasser already has in his possession.

4. To date, I have not received any response from Mr. Wasser regarding the Joint Statement5. Attached hereto as Attachment A is a true and correct copy of the draft Joint Statement

which I had prepared.

6. Defendants refuse to produce documents in response to Plaintiffs request for productionset one unless and until Plaintiff reimburses Defendants for copy costs which Defendants incurred

without once consulting with Plaintiff. Plaintiff had requested Defendants produce the documents for

Plaintiffs inspection and copying at its own cost, but Defendants refused, insisting on reimbursement

for the copies which it had unilaterally made. Plaintiff has moved this Court to compel Defendants to

produce the documents.

7. Defendants refuse to produce a privilege log unless and until Plaintiff reimburses



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Defendants for the above-referenced copy costs. Plaintiff contends that the copy costs have nothing to

do with the privilege log and Defendants should have timely produced it.

8. Defendants invoke peer review privilege based upon state law. Plaintiff contends thatstate privilege law does not apply in federal question jurisdiction cases in federal court. Plaintiff also

contends that there is no federal peer review privilege.

9. Defendants invoke numerous other objections and privileges which Plaintiff contends areimproper and/or baseless.

10. Briefing regarding Plaintiffs above-referenced contentions is contained in the draft JointStatement, attached hereto as Attachment A.

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: January 9, 2008

/s/ Eugene D. Lee

EUGENE D. LEEDeclarant



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ATTACHMENT A



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JOINT STATEMENT re: DISCOVERY DISPUTE 1

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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 93301

Phone: (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.




Plaintiff,v.


Defendants.


JOINT STATEMENT RE: DISCOVERYDISAGREEMENT



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



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This joint statement re: discovery disagreement is submitted pursuant to Local Rule 37-251(a) in

advance of the January 14, 2008 hearing on Plaintiffs motion to compel production and further

responses to Plaintiffs requests for production, set one (RPD1).

I. DETAILS OF THE PARTIES DISCOVERY CONFERENCESThe parties engaged in a prolonged meet and confer process that was conducted by letter,

email and phone over the course of several months as shown in the attached Exhibits. Plaintiff David F.

Jadwin (Plaintiff) served RPD1 on Defendant County of Kern (Defendant) on October 11, 2007.

After Defendant served initial responses to Plaintiffs RPD1 (Response 1) on November 20, 2007,

Plaintiff met and conferred extensively with Defendant in an attempt to resolve discovery disputes. As

Defendant has admitted, Plaintiff has tried to be flexible with Defendant in extending deadlines and

narrowing request language. Plaintiff even gave technological advice on optical scanning, OCR

functions, and cost-efficient purchase of Adobe Acrobat 8.0.

On December 17, 2007, four days before the agreed-upon December 21, 2007 deadline to

produce documents, Defendant suddenly demanded Plaintiff pay $10,000 (later reduced to $3,765) in

reimbursement of Kern Countys copy costs. Defendant stated that if it was not in receipt of such

payment, Defendant would not produce any documents at all. Defendant admits it had not previously

raised this issue with Plaintiff.

Plaintiff initially agreed to pay under protest, but after researching case law and upon being

further informed by Defendant for the first time that Many of the documents you have requested have,

at most, a very tenuous connection to any issues in the case, Plaintiff hesitated to pay such a substantial

and possibly wasteful sum for possibly unnecessary copies which Defendant had unilaterally made

without consulting Plaintiff. Unlike Defendant Kern County, Plaintiff is an individual and cannot easily

bear such a cost.

On December 19, 2007, Defendant served supplemental responses (Response 2). As compared

to Response 1, Response 2 raised new objections, contained overbroad objections, contained new

refusals to produce, etc. Despite extensive meet and confers, Response 2 represented a step backward

from Response 1.



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In lieu of paying Defendants demanded sum of $3,765 for copies, Plaintiff requested Defendant

produce originals for inspection and copying at Plaintiffs office, as had been requested in Plaintiffs

RPD1. Defendants refused and, to date, continue to withhold documents and the associated privilege

log.

Following is a brief chronology of relevant events:

October 11, 2007 Plaintiff serves requests for production, set one, on Defendant,requesting written responses by November 12, 2007 andproduction by November 16, 2007.

October 31, 2007 Defendant requests extension of deadlines to December 21,2007.

November 1, 2007 Parties meet and confer by phone.

November 7, 2007 Parties meet and confer by phone. Plaintiff agrees to permitboth responses and production in three separate installmentsdue November 16, December 7 and December 21. Defendantrequests stipulation to delay pre-trial and trial deadlines bythree months to accommodate Defendants documentprocessing requirements. Plaintiff later agrees.

November 14, 2007 Parties meet and confer by phone. Defendant confirmsproduction/response deadlines.

November 15, 2007 Plaintiffs counsel, Eugene Lee, speaks by phone withDefendants counsel, Mark Wasser, and his assistant andguides them through the OCR and redaction functions of

Adobe Acrobat 8.0. In an email, Mr. Lee advises Mr. Wasseron cost-efficient methods to purchase Acrobat.

November 20, 2007 Defendant serves written responses (Response 1) indicatingproduction dates of November 20, December 7 and December21, and the first document production installment (Production1). Production 1 contains up to 8 duplicate sets of the samedocuments. Parties meet and confer by emails.

November 21, 2007 Parties meet and confer by phone regarding Response 1.Defendant agrees that Defendants objection documentsprotected from disclosure by state or federal law is overbroadand intends to revise its responses.

November 26, 2007 Parties meet and confer by phone regarding Response 1.Defendant clarifies that its objection, documents protectedfrom disclosure by state or federal law, refers specifically toHIPAA and peer review privilege. Defendant agrees to reviseResponse 1 accordingly by November 30.

At Defendants request, Plaintiff narrows Request 33 byrevising it to read:



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Any and all DOCUMENTS RELATING TO complaints orgrievances made by YOUR past or present employees againstYOU for defamation, retaliation, disability discrimination,failure to accommodate, and/or failure to engage in aninteractive process RELATING TO Kern Medical Center

and/or its officers or staff, including but not limited to anyinformal or internal complaints, grievances or charges to anystate or federal agency, and complaints filed in any state orfederal court from October 24, 2000 to date.(redlined to show revisions)

November 30, 2007 Parties meet and confer by phone regarding Response 1.

December 3, 2007 Parties meet and confer by phone. Defendant reiteratesproduction deadlines of December 7 and December 21.Defendant states that it will serve privilege log on December 6.

December 7, 2007 Defendant fails to produce second document installment(Production 2) or privilege log.

December 13, 2007 Defendant serves incomplete privilege log relating only toProduction 1 (Log 1).

December 14, 2007 Parties meet and confer by email regarding Response 1.Defendant makes no mention of reimbursement costs andstates I expect to produce the remaining documents beforeDecember 21.

December 17, 2007 Parties meet and confer by phone and emails. Defendant raisesthe issue of copy reimbursement costs for the first time anddemands Plaintiff pay $10,000 in actual and estimatedcopy costs, otherwise, Defendant will not produce Production2.

December 19, 2007 Defendant sends fax to Plaintiff requesting Plaintiffs paymentof $3,765 in reimbursement of Defendants copy costs.Defendant admits You are correct that we did not raise theissue of costs earlier.

Defendant serves supplemental responses (Response 2).Response 2 is deficient in that it:

- raises new objections which were waived in Response1;

- fails to narrow Defendants overly-broad objectiondocuments protected from disclosure by state orfederal law as had been agreed on several occasions;

- adds several new refusals to produce documents,despite agreeing to such production in meet and confer;

- refuses to produce documents based on privilegeinstead of producing redacted versions;

- refuses to produce in response to Request 35 indisregard of Plaintiffs narrowing of Request 35 thatDefendant had requested and agreed to.

- conditions all roduction on recei t of reimbursement



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of its estimated copy costs of $3,765.

December 20, 2007 Plaintiff sends fax to Defendant refusing to pay the demandedreimbursement and requesting Defendant produce originaldocuments for Plaintiffs inspection and copying by December

21.Defendant tells Plaintiff that it is suspending production ofdocuments.

December 21, 2007 Defendant fails to produce second document installment orprivilege log (Log 2).

December 28, 2007 Plaintiff and Defendant exchange meet and confer emailsregarding the cost reimbursement issue.

December 31, 2007 Plaintiff and Defendant meet and confer by phone and emailsregarding the cost reimbursement issue and the numerousdeficiencies in Response 2.

January 2, 2008 Plaintiff and Defendant meet and confer by emails regardingthe cost reimbursement issue. Defendant admits to mis-remembering events.

January 4, 2008 Plaintiff and Defendant meet and confer by emails regardingthe cost reimbursement issue. Defendants states they haveidentified case citations which definitively establish thecorrectness of their position. Defendants ask Plaintiff to sharecase citations in support of Plaintiffs position, but when askedto do the same, they refuse.

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 at KMC. As a result, Plaintiff was forced to

take medical and recuperative leave for disabling 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 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,



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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. Critical to Plaintiffs case is evidence that Plaintiff was treated differently from

other similarly situated individuals at KMC, i.e., so-called comparators, as a result of discrimination

and retaliation by Defendants.

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. Defendants Refusal to Produce Documents or Privilege Log until Plaintiff

Reimburses Defendant for Copy Costs

1. Plaintiffs Positiona. The Privilege LogDuring a meet and confer call of December 31, 2007, Defendants stated that they refused to

produce the final privilege log, Log 2, until the cost reimbursement issue regarding production of

Production 2 has been resolved. Later that day, Plaintiff sent an email to Defendants stating: Contrary

to what you said on the call, production of the privilege log should not be made contingent on actual

production of the documents. Presumably Defendants are not asking Plaintiff to reimburse it for copy

costs associated with Log 2. As such, Defendants should have provided Log 2 to Plaintiff on December

21, 2007. Instead, nearly three months after Plaintiff had first served the requests for production set one,

they continue to withhold it.The Court should deem all privileges asserted by Defendants waived. The Court has discretion to

reject a claim of privilege where an insufficient privilege log is provided. United States v. Construction

Products Research, Inc. (2nd Cir. 1996) 73 F3d 464, 473; United States v. British American Tobacco

(Investments) Ltd. (DC Cir. 2004) 387 F3d 884, 890891.



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b. Defendants Rely upon a Misreading of CaselawDefendants have cited page 11-236, section 11:1937 of the Schwarzer, Tashima and Wagstaffe

handbook on federal practice in meet and confers for the proposition that the requesting party must pay

the producing partys copy costs. Section 11:1937 reads:

Ordinarily, the producing party bears the costs of reviewing and gathering documentswhile the requesting party pays for the costs of the copies only. [Continental Ill. Nat'lBank & Trust Co. of Chicago v. Caton (D KS 1991) 136 FRD 682, 690;Bills v.Kennecott Corp. (D UT 1985) 108 FRD 459, 462]CAFEDCIVP CH. 11(IV)-C.

However, Defendants misconstrue this proposition. The proposition is not that requesting party must pay

any and all copy costs incurred in whatsoever manner, no matter how exorbitant or wasteful, by any

party, with or without prior consultation with the requesting party. This would give responding parties

wide discretion to financially harass, ambush and drain the resources of the requesting party, particularly

where, as here, the requesting party is an individual. That is exactly what Defendants have done by

suddenly demanding Plaintiff Dr. Jadwin pay $10,000 in copy costs just four days before the final

production deadline.

The proposition correctly stated is that the responding party must produce documents to the

requesting party, bearing its own costs of gathering the documents, while the requesting party must be

permitted to inspect the documents and copy documents of Plaintiffs choosing, bearing its own costs of

copying and inspection. The Washington District Court articulates this exact proposition (citing both

Continental and Kennecott) in Fryer v. Brown, 2005 U.S. Dist. LEXIS 20830 (D. Wash. 2005):

Any party may serve on any other party a request to produce and permit the partymaking the request to inspect and copy any designated documents. Fed. R. Civ. P.34(a). Ordinarily, the producing party bears the costs of reviewing and gatheringdocuments while the requesting party pays for the costs and copies only. Continental Ill.Nat'l Bank & Trust Co. Of Chicago v. Caton, 136 FRD 682, 690 (D KS 1991);Bills v.Kennecott Corp., 108 FRD 459, 462 (D UT 1985). [emphasis added].

Plaintiffs requests for production set one had requested Defendants produce and permitinspection and copying of the documents described below [at the office of plaintiff's counsel]. On

December 20, 2007, faced with Defendants sudden last-minute demand for payment of $10,000 in copy

costs (later reduced by Defendants to ~$3,000), Plaintiff had no choice but to reiterate its original

request that Defendants produce the original documents for inspection and copying by Plaintiff at its



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own cost. Defendants refused to comply, citing objections to the manner and place of production despite

having failed to raise, and thereby having waived, those objections in Response 1. Instead, Defendants

continued to insist Plaintiff pay Defendants for copy costs associated with a massive volume of

documents which in Defendants own words have, at most, a very tenuous connection to any issues in

the case, copy costs which Defendants unilaterally incurred without consulting or meeting and

conferring with Plaintiff beforehand.

c. Defendants Had a Duty to Meet and Confer with Plaintiff on Copy CostsEven if the Court determines Defendants are entitled to be reimbursed for their copy costs,

Defendants are under a duty to meet and confer with Plaintiff regarding such costs. In Rodger v.

Electronic Data Sys. Corp., defendant EDS, a large multi-national corporation, argued that plaintiffs

requests for documents relating to multiple reductions in force over a number of years across 26

countries would impose a mind-boggling burden on defendant. 155 F.R.D. 537, 539 (D.N.C. 1994).

TheRodgercourt found it appropriate to tax the costs of production to the plaintiff given the undue

burden imposed on the defendant. However, the court further held that the parties should meet and

confer so as to minimize those costs for the plaintiff:

Defendant's counsel are directed to confer, after consultation with their client, to seek tominimize these costs by: (1) restricting the scope of materials as much as possible, and

(2) using the lowest level employees who have the knowledge and skill required toretrieve the documents. Counsel shall attempt to agree on these expenses and onlyfailing that, file a motion for taxation of these expenses with the court..Id. at 542.

In meet and confers occurring over more than two months, Defendants repeatedly committed to

producing Production 2 by December 21, 2007. It was only on December 17, just four days before the

final production deadline, that Defendants raised the issue of copy costs with Plaintiff. As Defendants

admit, this was the first time Defendants had done so. Defendants demanded Plaintiff pay Defendants

$10,000 or Defendants would not produce Production 2 by December 21, as had been promised.

However, on August 6, 2007, Plaintiff and Defendants had exchanged Rule 26 Initial Disclosures

without either party making any mention of copy costs. Plaintiffs Initial Disclosures were more

voluminous than Defendants Initial Disclosures. On November 20, 2007, Defendants served Production

1 on Plaintiff in the form of electronic files stored on CDs, again without a single mention of copy costs.

Production 1 comprised over 12,000 pages of documents (much of it useless chaff).



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By failing to consult with Plaintiff as to cost, Defendants acted on their own initiative in

incurring processing costs of roughly 14 cents per page. Had Defendants informed Plaintiff earlier of the

substantial costs involved, Plaintiff would definitely have worked with Defendants to narrow requests

and/or suggest other less costly alternatives. As Defendants admit, Plaintiff had already narrowed

numerous production requests in its meet and confers with Defendants in order to expedite Defendants

production.

1. Defendants Position[INSERT HERE]

B. Defendants Objection that Documents are Protected from Disclosure by State orFederal law

1. Plaintiffs PositionIn Response 2, Defendants responses to Plaintiff requests nos. 12-15, 17, 23-30, 32-34, 36-43,

51, 54-58, 63, 65-67, 70-73, and 78 contain the following objection: Defendants also object to this

request to the extent it requests information protected from disclosure by state or federal law . . . .. On

November 20, 2007, Plaintiff sent an email to Defendants explaining why this objection, which was also

contained in Response 1, was overbroad and therefore defective. On a November 21, 2007 call,

Defendants admitted it was overbroad. Plaintiff wrote in followup to the call:

As you know, in that email, we had explained that defendants' oft-used objection,"documents protected from disclosure by state or federal law", does not comply withFRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how theobjection relates to the documents demanded. During the call, you indicated thatdefendants would re-state this objection.

Yet, in Response 2, the objection remains just as overbroad as it had been in Response 1.

The objection does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b)fails to explain how the objection relates to the documents demanded. In Obiajulu v City of Rochester,

Dep't of Law (1996, WD NY) 166 FRD 293, the defendant City of Rochester had objected that each

request seeks information and material protected by the attorney client, work product doctrine or other

privilege. The court held that Such pat, generic, non-specific objections, intoning the same boilerplate



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language, are inconsistent with both the letter and the spirit of the Federal Rules of Civil Procedure.

The court further held:

An objection to a document request must clearly set forth the specifics of the objection

and how that objection relates to the documents being demanded. Roesberg v. Johns-Manville Corp., 85 F.R.D. 292 (E.D. Pa. 1980). The burden is on the party resistingdiscovery to clarify and explain precisely why its objections are proper given the broadand liberal construction of the discovery rules found in the Federal Rules of CivilProcedure.

Other federal courts have reached similar holdings. Pulsecard, Inc. v Discover Card Servs.

(1996, DC Kan) 168 FRD 295 (Although FRCP 34, which governs production of documents and things,

does not provide any language with respect to specificity and waiver of objections, which FRCP 33,

which governs interrogatories, does, no reason exists to distinguish between interrogatories and requests

for production as to these matters);Rivera v Kmart Corp. (2000, DC Puerto Rico) 190 FRD 298, 45 FR

Serv 3d 1349 (asserting general objection to request for production of documents does not comply with

FRCP 34(b)).

InHall v Sullivan, the court held that Rule 34 requires objections to document production

requests be stated with particularity in a timely answer, and that failure to do so may constitute waiver of

grounds not properly raised, including privilege or work product immunity, unless the court excuses this

failure for good cause shown. (2005, DC Md) 231 FRD 468. Defendants bad faith overbroad objection,

which Defendants themselves admitted is overbroad and had agreed to narrow in meet and confer,

should be deemed waived in all responses.


C. Defendants Objection based on State-Law Peer Review Privilege1.

Plaintiffs Position

a. State Privilege Law Does Not ApplyIn Response 2, Defendants invoke the peer-review privilege in response to Plaintiffs requests

no. 12-15, 17, 26, 28, 32, 36-43, 45, 51, 54-58, 60, 61, 63, 65-74 and 78. Defendants state in boilerplate

fashion: Defendants object to this request to the extent it requests . . . documents protected from



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disclosure by state or federal law, including . . . the peer-review privilege.

As Plaintiff has repeatedly made clear to Defendants in meet and confers, state privilege law

does not apply to federal question jurisdiction cases in federal court. This principle is well-settled in

federal law. In the oft-cited case, Wm. T. Thompson, Co. v. Gen. Nutrition Corp., Inc., the court held:

Thus, under Rule 501, it is clear that federal claims asserted in a federal question caseare governed by federal common law. Further, it is been held that where state law claimsoverlap with federal claims in a federal question case such that particular documents arerelevant to both the state and the federal claims, federal privilege law also applies.671 F.2d 100, 104 (3rd Cir.1982).

The 9th Circuit cited Thompson Co. v. Gen. Nutrition Corp. with approval inAgster v. Maricopa County,

holding that Where there are federal question claims and pendent state law claims present, the federal

law of privilege applies. 422 F.3d 836, 839-840 (9th Cir. 2005) (citations omitted).

In the instant case, plaintiff is bringing federal question claims under FMLA, 42 USC 1983

(procedural due process), and FLSA. These federal law claims involve events spanning the entire period

of Plaintiffs employment with Defendant County of Kern. Defendants were on notice of Plaintiffs

depression disability as early as 2000. Plaintiff began raising patient care quality concerns as early as

2001 and the retaliation he suffered was almost immediate. As a result of the ongoing hostile work

environment, Plaintiff required FMLA medical leave in 2006 in response to which the Defendants

demoted him, placed him on 5-months involuntary administrative leave and restriction to his home, and

did not renew his contract. Defendants explain their harsh conduct as being in response to Plaintiffs

arrogance. At a minimum, all these events establish the willful and malicious nature of the individual

Defendants conduct in violation of federal laws.

A single court has held that, where documents sought are relevant only to pendant state law

claims and not to the federal claims in a diversity jurisdiction case, state privilege law applies: Platypus

Wear, Inc. v. K.D. Co., Inc., 905 F. Supp. 808 (S.D. Cal. 1995). However, that case is distinguishable

due to its extreme circumstances. There, plaintiff had brought exclusively state claims in federal court

under diversity, not federal question, jurisdiction. The defendant then brought counter-claims which

included a single federal counter-claim. On the slim basis of the defendants lone federal counter-

claim, plaintiff argued that federal privilege law should apply to its state law claims. The court held in

those extreme circumstances that state privilege law should apply to plaintiffs state law claims.Id. at



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812.

The distinction between diversity and federal question jurisdiction should not be underestimated.

In federal question cases, the state's interest is that of a litigant, and not, as in diversity cases, that of a

sovereign whose law is being applied in a foreign forum. Reference to federal law in this case is

necessary on the issue of the existence and scope of the claimed privilege.Heathman v. United States

District Court, 503 F.2d at 1034; Fears v. Burris Manufacturing Co., 436 F.2d 1357, 1360-1361 (5th

Cir. 1971); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387-389 (5th Cir. 1970); Colton v. United

States, 306 F.2d 633, 636 (2d Cir. 1962).

Even if the Court were inclined to find that state privilege law should apply to Plaintiffs pendent

state law claims, it should be noted that the task of discerning which evidence goes solely to Plaintiffs

state law claims vis--vis federal law claims will be impracticable and will engender unending disputes

between the parties that will ultimately require excessive judicial resources to sort out.

Under the well-settled holding in Thompson, Co. v. Gen. Nutrition Corp, the Court should hold

that state privilege law does not apply.

b. There Is No Federal Peer Review PrivilegeThere is no federal peer review privilege, nor has a single case in the 9th Circuit yet recognized

one. InAgster v. Maricopa County, the 9th

Circuit refused to recognize a federal peer review privilege:

No case in this circuit has recognized the [peer review] privilege. . . . We are constrainedby two considerations, one general and the other particular to this case. We must be"especially reluctant to recognize a privilege in an area where it appears that Congresshas considered the relevant competing concerns but has not provided the privilegeitself." . . . . Congress has twice had occasion and opportunity to consider the [peerreview] privilege and not granted it either explicitly or by implication, there exists ageneral objection to our doing so.422 F.3d 836, 839-840 (9th Cir. 2005) (citations omitted).

The Defendants oft-invoked peer review privilege is baseless. The Court should order

Defendants to produce all documents requested.




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D. Defendants Objection of Personnel Privilege1. Plaintiffs Position

In Response 2, Defendants invoke the personnel privilege in response to Plaintiffs requests

nos. 12-15, 17, 26, 28, 32, 36-39, 41, 51, 54-58, 63, 65-67, 70-73, 78. In Response 2, Defendants state in

boilerplate fashion: Defendants object to this request to the extent it requests . . . documents protected

from disclosure by state or federal law, including . . . the personnel privilege.

Failing to object to a Rule 34 request within the time permitted waives such objections thereto,

including claims of privilege and work product.Hall v Sullivan (2005, DC Md) 231 FRD 468; see also

Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473(Failure to object to

discovery requests within the time required constitutes a waiver of any objection); see also Coregis Ins.

Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.

Defendants failed to raise the personnel privilege in Response 1, and is raising it for the first time

in Response 2. Plaintiff had met and conferred with Defendants in the hopes that Defendants would

remedy the many deficiencies contained in Response 1. Defendants ostensibly served Response 2 as a

product of the meet and confers. In fact, Defendants used Response 2 to make a mockery of the meet

and confer process and raise new objections that had not been raised in Response 1.

Moreover, as stated above, FRCP Rule 34 prohibits objections which (a) are too broadly stated

and (b) fail to explain how the objection relates to the documents demanded. Defendants are under a

duty to clarify and explain precisely why their objections are proper. The mere boilerplate assertion of

personnel privilege with no further explication fails to comply with Rule 34. It fails to put Plaintiff on

notice as to what the privilege is (Plaintiff has no idea), what its basis is, what it covers, etc.

The Court should deem the personnel privilege waived in all responses.

2.

Defendants Position[INSERT HERE]



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E. Defendants Refusal to Produce Due to Marginal Relevancy1. Plaintiffs Position

In Response 2, Defendants refuse to produce any documents in response to Plaintiffs requests

nos. 32, 36, 38, 39, 41, 54-58, 70-73, 78. In Response 2, Defendants state: Defendants have determined

that the burden of redacting privileged information outweighs the marginal relevancy of the remaining

information in the documents. Plaintiff requests the Court conduct an in camera review of the

documents at issue to confirm that Defendants redactions are valid and that their refusal to produce any

documents is justified.


F. Specific Contested Responses and ObjectionsREQUEST FOR PRODUCTION NO. 11

Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories or lists,

including but not limited to names, direct work phone numbers, departments, etc. which were

maintained by YOU during Plaintiffs employment with YOU.

RESPONSE TO REQUEST NO. 11

Defendants will produce all non-privileged documents responsive to this request. Production is

expected to be complete on or about December 21, 2007, depending on receipt of reimbursement for

estimated copy costs. Defendants will redact privileged information as appropriate.

PLAINTIFFS POSITION

FRCP Rule 34 prohibits objections which (a) are too broadly stated and (b) fail to explain how

the objection relates to the documents demanded. Defendants are under a duty to clarify and explain

precisely why their objections are proper. Defendants merely reference privileged personal or

confidential information. This assertion of privilege fails to comply with Rule 34. It fails to put Plaintiff

on notice as to what the privileges are (Plaintiff has no idea), what its basis is, what it covers, etc.

Failing to object to a Rule 34 request within the time permitted waives such objections thereto



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The Court should deem this assertion of privilege waived.

DEFENDANTS POSITION

[INSERT HERE]

REQUEST FOR PRODUCTION NO. 26

Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his

employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, written

materials, and computer files stored on Plaintiffs computer at Kern Medical Centers servers.


Defendants object to this request to the extent it requests documents that contain confidential

personnel information, documents protected from disclosure by state or federal law, including HIPAA,

the peer-review privilege and the personnel privilege, and documents that are subject to the attorney-

client privilege. After diligent search, Defendants believe Groupwise calendar information was deleted

many months ago as part of the routine 90-day cycling of the Groupwise software. Defendants are

continuing to search for materials that were on the computer that was assigned to Plaintiff. Some

material was archived before the computer was reassigned and Defendants will produce copies of the

material that was archived by December 21, 2007, depending on receipt of reimbursement for estimated

copy costs. Defendants will redact privileged information, if any, as appropriate.

PLAINTIFFS POSITION








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Defendants are for the first time raising objections of confidential personnel information,

documents protected by disclosure by state or federal law, including HIPAA, the peer-review privilege

and the personnel privilege, and attorney-client privilege. Defendants did not timely raise these

objections or privileges in Response 1.

The Court should deem these objections waived.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or

present employees against YOU for defamation, retaliation, disability discrimination, failure to

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

informal or internal complaints, grievances or charges to any state or federal agency, and complaints

filed in any state or federal court from October 24, 2000 to date.


Defendants object to this request on the grounds that it calls for the production of documents that

contain confidential personnel information that is not relevant to any issues in this case. Consequently,

this request is not reasonably calculated to lead to the discovery of admissible evidence. Defendants also

object on the ground that the phrase, informal or internal complaints is vague and, depending on

interpretation, could include any off-hand gripe by any employee, to the extent it was memorialized in

writing. Defendant County of Kern employs several thousand employees. In the past seven years, there

could be many documents that fit the description of this request yet none have anything to do with the

issues in this case. This request is, accordingly, overbroad and burdensome. Defendants do not believe

redaction would resolve these objections.

PLAINTIFFS POSITION

During meet and confers, specifically at Defendants request Plaintiff had narrowed Request 33.

In a meet and confer fax of November 22, 2007, memorializing a meet and confer call, Plaintiff stated:



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In past meet and confer calls, plaintiff had narrowed this request to complaints orgrievances relating to Kern Medical Center which had been made to a governmentagency or court. These documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent.

On November 27, 2007, following a meet and confer call, Plaintiff sent another meet and conferfax stating:

We reiterated that we have already agreed to narrow this request [33] to documentsrelating to complaints or grievances relating to Kern Medical Center which had beenmade to a government agency or court. We further explained that these documents areessential to prove disparate treatment and discriminatory/retaliatory intent. Yourequested and we agreed to send you revised response language which nails downexactly what we are requesting. You confirmed that the documents are already in theprocess of being collected and that, once the request language is revised, you willproduce responsive documents by December 7.

In that same fax, Plaintiff revised Request 33 to read:

Any 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 RELATING TO Kern Medical Center and/or its officers or staff, including butnot limited to any informal or internal complaints, grievances or charges to any state orfederal agency, and complaints filed in any state or federal court from October 24, 2000to date.

On November 30, 2007, following a meet and confer call, Plaintiff sent another meet and confer

fax stating:

You confirmed that plaintiffs revised request language is adequate and that you willproduce responsive documents tentatively by December 7, but you would have a moredefinite idea as to production date by next Monday.

Despite this extensive meet and confer process, Defendants chose to disregard the revisions

Plaintiff had made to Request 33. In Response 2, Defendants restated Request 33 in its unrevised form

and restated their same objections. In so doing, Defendants breached the numerous assurances they had

made to Plaintiff that they would produce documents upon receiving a revised version of Request 33.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and evaluation of

candidates for the position of locum tenens pathologist at Kern Medical Center during the period from



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January 1, 2006 to present.



contain confidential personnel information that is not relevant to any issues in this case and is not

reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this

request to the extent it requests information protected from disclosure by state or federal law, including

HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information

protected by the attorney-client privilege. After review of the documents potentially responsive to this

request, Defendants have determined that the burden of redacting privileged information outweighs the

marginal relevancy of the remaining information in the documents.

PLAINTIFFS POSITION

A showing of relevancy may be enough to cause the court to balance the compelling public need

for discovery against the fundamental right of privacy. (Mendez v. Superior Court(1988) 206

Cal.App.3d 557, 567.)

These documents are highly probative to Plaintiffs claim that Defendant County of Kern failed

to reasonably accommodate his depression disability by failing to timely arrange for locum tenens

pathologists who could assist with the Pathology departments workload during Plaintiffs reduced work

schedule medical and recuperative leaves in 2006. During meet and confers, the parties had specifically

discussed Defendants privacy concerns regarding this request. The parties agreed that Defendants need

not produce any third party letters of reference. In exchange, Defendants agreed to produce documents

in response to Request 38. In typical fashion, Defendants now breach the assurances they made to

Plaintiff in meet and confer.

DEFENDANTS POSITION

[INSERT HERE]



candidates for the position of Chair or Chief of OB-GYN at Kern Medical Center during the period from



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January 1, 2006 to present.










PLAINTIFFS POSITION



Cal.App.3d 557, 567.)

An employer's failure to follow its own policies and procedures indicates discrimination. Village

of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977);Duschene v. Pinole Point

Steel Co. (1999) 76 Cal. App. 4th 33 (Departures from the normal procedural sequence also might

afford evidence that improper purposes are playing a role).

Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern

customarily complied with their policies regarding removal and replacement of department chairs and

whether Plaintiff was treated in a disparate manner. The evidence is highly probative to Plaintiffs

claims.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO YOUR removal of Dr. Royce Johnson from the

position of Chair or Chief of Medicine at Kern Medical Center.



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candidates for the position of Chair or Chief of Medicine at Kern Medical Center during the period from

October 24, 2000 to present.










PLAINTIFFS POSITION

See Plaintiffs Position re Request for Production Nos. 39 and 40 above.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO Plaintiffs presentations made at the Kern Medical

Center oncology conference on or about October 12, 2005.






HIPAA and the peer review privilege, and documents that are subject to the attorney-client privilege.



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Without waving these objections, Defendants will produce non-privileged documents responsive to this

request, if any, by December21, 2007. Defendants will redact privileged, if any, information as

appropriate.

PLAINTIFFS POSITION






Defendants are for the first time raising objections of confidential personnel information,

irrelevance and not reasonably calculated to lead to discovery of admissible evidence, documents

protected by disclosure by state or federal law, including HIPAA, the peer-review privilege and the

personnel privilege, and attorney-client privilege. Defendants did not timely raise these objections or

privileges in Response 1.

The Court should deem these objections waived.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO the review of Kern Medical Centers placental

evaluations and billing activity as conducted by outside consultants, including but not limited to ProPay

Physician Services, LLC, from October 24, 2000 to the present.









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PLAINTIFFS POSITION



Cal.App.3d 557, 567.)






customarily complied with their policies and procedures regarding their audit of Plaintiffs placental

evaluations and billing activity in or around 2005 and whether Plaintiff was treated in a disparate

manner. The evidence is highly probative to Plaintiffs claims.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO exceptional event logs for histology and pathology

on Kern Medical Centers Pathology Department from January 1, 2006 to the present.










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PLAINTIFFS POSITION



Cal.App.3d 557, 567.)






customarily complied with their policies and procedures regarding Dr. Jadwins numerous alleged

violations of hospital policy, including the leaving of sharps out at the workstation when not in use, the

taking of a sternal bone biopsy without proctoring, the unauthorized accessioning of tissue samples, etc.

and whether Plaintiff was treated in a disparate manner as compared to others in the Pathology

department or laboratory who engaged in similar conduct. The evidence is highly probative to Plaintiffs

claims.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO paper accession logs at Kern Medical Centers

Pathology Department from January 1, 2006 to present.








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PLAINTIFFS POSITION



Cal.App.3d 557, 567.)

In late 2006, Acting Chair of Pathology Dr. Dutt accused Plaintiff of engaging in unauthorized

accessioning of tissue samples. Dr. Dutt reported this issue to the CEO. The accession logs are directly

relevant to this accusation against Plaintiff.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO tissue disposal records for skull-flaps from January

1, 2006 to the present.






HIPAA. the peer-review privilege and the personnel privilege, and documents that contain information




PLAINTIFFS POSITION




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Cal.App.3d 557, 567.)

In December of 2006, Plaintiff reported to Kern Medical Center CEO David Culberson the

storage of skull flaps in a non-regulation freezer as a possible violation of state and federal regulations.

These documents are directly probative of Plaintiffs California Labor Code 1102.5 claim for

whistleblower retaliation.

DEFENDANTS POSITION

[INSERT HERE]


Any and all DOCUMENTS RELATING TO placental evaluations conducted by Plaintiff from

June 14, 2006 to the present.


Plaintiff has attempted to narrow this request but the revised request is broader, more

burdensome and less calculated to lead to the discovery of admissible evidence than the original request.

Defendants object to this request because it is not reasonably calculated to lead to the discovery of

admissible evidence and is burdensome. Defendants object to this request on the grounds that it calls for

the production of documents that contain confidential personnel information that is not relevant to any

issues in this case and is not reasonably calculated to lead to the discovery of admissible evidence.

Defendants also object to this request to the extent it requests information protected from disclosure by

state or federal law, including HIPAA, the peer-review privilege and the personnel privilege, and

documents that contain information protected by the attorney-client privilege. After review of the

documents potentially responsive to this request. Defendants have determined that the burden of

redacting privileged information outweighs the marginal relevancy of the remaining information in the

documents.

PLAINTIFFS POSITION

Based on newly discovered evidence, Plaintiff has reason to believe that Acting Chair of

Pathology, Dr. Philip Dutt, has defrauded Plaintiff by claiming credit for placental evaluations



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good faith to Defendants during meet and confer discussions in the past. When Plaintiff asked

Defendants to provide its case citations to Plaintiff, stating Mark, I would appreciate the case citations.

I look forward to receiving them, Defendants refused, stating:

No. I am not researching this for you. I have done my research. It is your motion tocompel. I presume you have authority to support your motion. If not, too bad. If so,proceed with your motion.

Regrettably, this exchange fairly characterizes the interactions Plaintiff has had with Defendants

throughout this action.

Respectfully submitted,

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

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

Dated: January___, 2008 LAW OFFICE OF EUGENE LEE

By:__________________________________________Eugene D. LeeAttorney for PlaintiffDAVID F. JADWIN, D.O.



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USDC, ED Case No. 1:07-cv-00026 OWW TAGEXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT 1

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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 93301

Phone: (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.




Plaintiff,v.


Defendants.


EXHIBITS TO JOINT STATEMENT re:DISCOVERY DISAGREEMENT



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



34/207

EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT

EXHIBIT 1. Meet and confer letter faxed by Defendants to Plaintiffs attorney, 10/31/07

EXHIBIT 2. Meet and confer letter faxed by Plaintiffs to Defendants attorney, 11/1/07


EXHIBIT 4. Meet and confer emails between Plaintiffs and Defendants attorney, 11/15/07



EXHIBIT 7. RESPONSES TO PLAINTIFFS REQUESTS FOR PRODUCTION SET ONE(Response 1), 11/20/07





EXHIBIT 12. DEFENDANTS PARTIAL PRIVILEGE LOG, 12/13/07



EXHIBIT 15. SUPPLEMENTED RESPONSES TO PLAINTIFFS REQUESTS FORPRODUCTION SET ONE (Response 2), 12/19/07











35/207

EXHIBIT 1. Meet and confer letter faxed by Defendants to Plaintiffs attorney,10/31/07

MTC000001



36/207

t 31 07 11:21a Mark Wasser 916-444-6405 p.1

The Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405

FaxTo: Eugene LeeFax: (213) 596-0487Phone: (213) 992-3299

From: MarkWasserPages: 2 (including cover page)Date: October 31, 2007

Re: Jadwin v. County ofKern cc:

o Urgent o For Review 0 Please Comment 0 Please Reply D Please Recycle Comments:Please see attached letter.

MTC000002


t 31 07 11:21a Mark Wasser 916-444-6405 p.1

The Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405

FaxTo: Eugene LeeFax: (213) 596-0487Phone: (213) 992-3299

From: MarkWasserPages: 2 (including cover page)Date: October 31, 2007

Re: Jadwin v. County ofKern cc:

o Urgent o For Review 0 Please Comment 0 Please Reply D Please Recycle Comments:Please see attached letter.


37/207

31 07 11:21a Mark WasserLaw Offices ofMARK A. WASSER

400 Capitol Mall, Suite 1100Sacramento, California 95814

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

916-444-6405 p.2

October 31, 2007

VIA FACSIMILE & FIRST CLASS MAILEugene LeeLaw Offices ofEugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et at.DearMr. Lee:

I have reviewed your Request For Production ofDocuments and discussed it withCounty staff. Our best estimate is that it will take until December 21, 2007 to locate,assemble and serve the documents you have requested. Some of the documents mayrequire extensive redaction to remove patient identifiers.We request an extension of time until December 21,2007 to respond to yourRequest.Let me know your position.Thank you.

Very Truly Yours,

Mark A. Wasser

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

Admit ted to Practice in California an d Nevada MTC000003


31 07 11:21a Mark WasserLaw Offices ofMARK A. WASSER

400 Capitol Mall, Suite 1100Sacramento, California 95814

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

916-444-6405 p.2

October 31, 2007

VIA FACSIMILE & FIRST CLASS MAILEugene LeeLaw Offices ofEugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et at.DearMr. Lee:

I have reviewed your Request For Production ofDocuments and discussed it withCounty staff. Our best estimate is that it will take until December 21, 2007 to locate,assemble and serve the documents you have requested. Some of the documents mayrequire extensive redaction to remove patient identifiers.We request an extension of time until December 21,2007 to respond to yourRequest.Let me know your position.Thank you.

Very Truly Yours,

Mark A. Wasser

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

Admit ted to Practice in California an d Nevada


38/207

EXHIBIT 2. Meet and confer letter faxed by Plaintiffs to Defendants attorney,11/1/07

MTC000004



39/207

- - rom: aw ce o ugene ee g : pm

(213) 992 -3299TELEPHONE LAWE U G

OFFICEENE L OFE [email protected]

EMAIL

(213) 596 -0487FACSIMILE

FAX5 5 5 WEST F IFTH STREET SUITE 3 1 0 0Los ANGELES, CALIFORNIA 9001 3-1 01 0 WWW.LOEL.COMWEBSITE

To:Fax Number: 2135960487

Pages: 3 (including cover page)Re: Jadwin/KC:

Comments:Mark,

From: Law Office of Eugene LeeDate: 11/01/2007

Tran sm it te d he rew it h i s a l e t t e r in fol lowup to our meet and confer c a l lo f t h i s morning.Sincere ly .

MTC000005



(213) 992 -3299TELEPHONE LAWE U G

OFFICEENE L OFE [email protected]

EMAIL

(213) 596 -0487FACSIMILE

FAX5 5 5 WEST FIFTH STREET SUITE 3 1 0 0Los ANGELES, CALIFORNIA 9001 3-1 01 0 WWW.LOEL.COMWEBSITE

To:Fax Number: 2135960487

Pages: 3 (including cover page)Re: Jadwin/KC:

Comments:Mark,

From: Law Office of Eugene LeeDate: 11/01/2007

Tran sm it te d he rew it h i s a l e t t e r in fol lowup to our meet and confer c a l lo f t h i s morning.Sincere ly .


40/207


[email protected]

LEELAW OFFICEEUGENE

( 2 13 ) 992-3299TELEPHONE

(Z 1 3 ) 596-0487FACS IM ILE

555 WES T F IF TH S TR EE T, SU I TE 3100L O S A N G E LE S , C A LIF O R NIA 90013-1010

WWW.LOEL .COMWEBS I TE

EUGENE D. LEE, ESQPRINCIPAL

JOAN E. HERRINGTON, ESQOF COUNSEL

November 1, 2007VIA FACSIMILEMark WasserLaw Offices ofMark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

100011.001

Re: Plaintiff's Requests for Production, Set OneJadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)

Dear Mark:It was a pleasure speaking and meeting and conferring with you today on plaintiff 's requests forproduction, set one.In order to facilitate things, we thought we would try to narrow and clarify some of ourdocument requests.DocReq Proposed clarificationNo.

12 Exclude "training materials" from the request13 Exclude "training materials" from the request16 Delete subparts b) through tt)52 Exclude from the request DOCUMENTS which are on file in Superior Court of

California in and for County of Kern59 The request is for DOCUMENTS RELATING TO medical staff sign-in sheets for

Kern Medical Center's Cancer Clinic held pursuant to ACS-CoC standards fromJanuary 1, 2003 to the present.

Also, as we discussed, please let us know your thoughts on providing us with patientidentification numbers, including those which were redacted from defendants' initial disclosures,as well as entering into a stipulation with us whereby plaintiffwould electronically redact anypatient identifying information (other than patient identification numbers) from all documentsproduced by defendants (along with concomitant covenants to strictly preserve theconfidentiality and guard against disclosure of such information). As we stated, plaintiffhas nointerest in jeopardizing anyone's medical information privacy.

MTC000006



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November 1, 2007VIA FACSIMILEMark WasserLaw Offices ofMark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

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Re: Plaintiff's Requests for Production, Set OneJadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)

Dear Mark:It was a pleasure speaking and meeting and conferring with you today on plaintiff 's requests forproduction, set one.In order to facilitate things, we thought we would try to narrow and clarify some of ourdocument requests.DocReq Proposed clarificationNo.

12 Exclude "training materials" from the request13 Exclude "training materials" from the request16 Delete subparts b) through tt)52 Exclude from the request DOCUMENTS which are on file in Superior Court of

California in and for County of Kern59 The request is for DOCUMENTS RELATING TO medical staff sign-in sheets for

Kern Medical Center's Cancer Clinic held pursuant to ACS-CoC standards fromJanuary 1, 2003 to th

83 MTC Declaration Re Joint Statement

Documents

Transcript of 83 MTC Declaration Re Joint Statement