84 MTC KC Declaration Re Joint Statement

8/14/2019 84 MTC KC Declaration Re Joint Statement

1/20

1 Mark A. Wasser CA SB # 60160LA W OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasseriimarkwasser.com5 Bernard C. Barmann, Sr.KERN COUNTY COUNSEL6 Mark Nations, Chief Deputy1115 Truxtun Avenue, Fourth Floor7 Bakersfield, CA 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: mnations wco.kern.ca.us9

10 Attorneys for Defendants County of Kern,Peter Bryan, Irwin Harris, Eugene Kercher,11 Jennifer Abraham, Scott Ragland, Toni Smithand William Roy1213 UNITED STATES DISTRICT COURT14 EASTERN DISTRICT OF CALIFORNIA1516 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026-OWW-TAG17 Plaintift. DECLARATION OF MARK A. WASSERRE: INABILITY TO PREPARE AND18 vs. EXECUTE A JOINT STATEMENT RE:DISCOVERY DISAGREEMENT AN D IN19 COUNTY OF KERN, et al., OPPOSTION TO MOTION TO COMPEL20 Defendants. Date: January 14, 2008Time: 9:30 a.m.21 Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 822) )2Date Action Filed: January 6, 200723 Trial Date: August 26, 200824

Defendants submit this Declaration of Mark A. Wasser pursuant to Local Rule 37-251 (d)25 in lieu of a joint statement re: discovery disagreement and in opposition to Plaintiff's motion to26 compel.2728

DECLARATION OF MARK A. WASSER RE : INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE : DISCOVERY DISAGREEMENT AND

IN OPPOSITION TO MOTION TO COMPEL

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 1 of 20

1 Mark A. Wasser CA SB # 60160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasserialmarkwasser.com5 Bernard C. Barmann, Sr.KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy1115 Truxtun Avenue, Fourth Floor7 Bakersfield, CA 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected] Attorneys for Defendants County ofKern,Peter Bryan, Irwin Harris, Eugene Kercher,11 Jennifer Abraham, Scott Ragland, Toni Smithand William Roy12

Defendants submit this Declaration ofMark A. Wasser pursuant to Local Rule 37-251(d)in lieu of a joint statement rei discovery disagreement and in opposition to Plaintiff s motion tocompel.

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

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

Date: January 14, 2008Time: 9:30 a.m.Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 8

DECLARATION OF MARK A. WASSERRE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE:DISCOVERY DISAGREEMENT AND INOPPOSTION TO MOTION TO COMPEL i

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

)

j

13141516 DAVID F. JADWIN, D.O.

2122232425262728

19 COUNTY OF KERN, et aI.,20 Defendants.

17 Plaintiff,18 vs.

DECLARATION OFMARK A. WASSER RE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT AND

IN OPPOSlTlON TO MOTION TO COMPEL


2/20

1 I, Mark A. Wasser, declare as follows:2 1. 1am counsel of record for Defendants. The facts in this Declaration are true and3 correct of my personal knowledge and I can testify competently to them if called as a witness.4 2. Defendants' opposition to Plaintiff's motion to compel is due tomorrow, January5 9, 2008. Although Plaintiff has prepared a draft proposed joint statement rediscovery6 disagreement as required by Local Rule 37-251, Plaintiff proposes to attach to the draft almost7 200 pages of exhibits that Defendants do not have and have not seen and Defendants are8 unwilling to review, revise or approve the draft without the exhibits. Consequently, Defendants9 have prepared this Declaration to explain their inability to complete the joint statement.

10 3. Attached hereto as Attachment A, is a true and correct copy of the January 4,11 2008 letter from Plaintiffs counsel transmitting a draft of the joint statement and advising12 Defendants' counsel that "almost 200 pages" of exhibits to the draft joint statement are in the13 mail.14 4. Plaintiff's counsel transmitted the letter to Defendants' counsel at 11:00 p.m. on15 January 4. On January 5, a storm disrupted electrical power and telephone service throughout16 Sacramento and Northern California and resulted in the closure of the building where17 Defendants' counsel has his office. Power and telephone service was no t restored until Monday,18 January 7. 1 left Sacramento at noon on January 7 to attend depositions in this case that are19 scheduled for January 8, 9 and 10 in Bakersfield. As of the time I left my office, I had not20 received the exhibits to the draft proposed joint statement. They still have no t arrived. I do not21 know what the exhibits consist of and, as of the date of this Declaration, have not seen them.22 5. The text of the proposed draft joint statement that Plaintiff has prepared is23 misleading and Defendants do no t believe it will be possible to arrive at a mutually acceptable24 joint statement.25 6. Attached hereto as Attachment B are true and correct copies of letters that26 Plaintiff s counsel sent to Defendants' counsel that summarize discussions between the parties27 regarding Defendants' response to Plaintiff's request fo r production of documents. The letters28 2

DECLARATION OF MARK A. WASSER RE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT ANDIN OPPOSITION TO MOTION TO COMPEL


I I, Mark A. Wasser, declare as follows:2 1. I am counsel of record for Defendants. The facts in this Declaration are true and3 correct ofmy personal knowledge and I can testify competently to them if called as a witness.4 2. Defendants' opposition to Plaintiffs motion to compel is due tomorrow, January5 9,2008. Although Plaintiffhas prepared a draft proposedjoint statement re discovery6 disagreement as required by Local Rule 37-251, Plaintiff proposes to attach to the draft almost7 200 pages of exhibits that Defendants do not have and have not seen and Defendants are8 unwilling to review, revise or approve the draft without the exhibits. Consequently, Defendants9 have prepared this Declaration to explain their inability to complete the joint statement.

10 Attached hereto as Attachment A, is a true and correct copy of the January 4,II 2008 letter from Plaintiffs counsel transmitting a draft of the joint statement and advising12 Defendants' counsel that "almost 200 pages" of exhibits to the draft joint statement are in the13 mail.14 4. Plaintiffs counsel transmitted the letter to Defendants' counsel at II :00 p.m. on15 January 4. On January 5, a storm disrupted electrical power and telephone service throughout16 Sacramento and Northern California and resulted in the closure of the building where17 Defendants' counsel has his office. Power and telephone service was not restored until Monday,18 January 7. I left Sacramento at noon on January 7 to attend depositions in this case that are19 scheduled for January 8, 9 and 10 in Bakersfield. As of the time I left my office, I had not20 received the exhibits to the draft proposedjoint statement. They still have not arrived. I do not21 know what the exhibits consist of and, as of the date of this Declaration, have not seen them.22 5. The text of the proposed draft joint statement that Plaintiffhas prepared is23 misleading and Defendants do not believe it will be possible to arrive at a mutually acceptable24 joint statement.

Plaintiffs counsel sent to Defendants' counsel that summarize discussions between the partiesregarding Defendants' response to Plaintiffs request for production of documents. The letters

25262728

6. Attached hereto as Attachment B are true and correct copies of letters that

2DECLARATION OF MARK A. WASSER RE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT AND



3/20

1 memorialize the agreement between the parties that Defendants would produce copies of the2 requested documents by photocopying them and delivering the copies to Plaintiffs counsel. In3 reliance on this agreement, Defendants copied and produced several thousand documents on4 November 20, 2007. Plaintiff did not object to the production and even noted that it was a5 substantial, "good-faith" production. It was understood and agreed that the Defendants would6 not be producing original documents. The documents Plaintiff has requested include thousands7 of original patient records from Kern Medical Center. It is neither feasible, possible no r lawful8 to produce them at the office of Plaintiffs attorney in Los Angeles.9 6. It was also agreed between the parties that Defendants would produce the

10 requested documents in multiple productions. Plaintiffs request for production encompassed11 over 30,000 documents that fill more that 12 boxes. It was no t possible for Defendants to locate,12 assemble, copy and deliver all those documents by November 20. Plaintiff s letters (See13 Attachment B) acknowledge the parties' agreement regarding multiple production dates.14 Defendants originally anticipated three or even four separate productions but, through diligent15 work, were able to produce all documents in only two productions.16 7. Upon informing Plaintiff of the reasonable cost of photocopying the documents to17 be produced, Plaintiff announced his refusal to pay and filed this motion to compel. All the18 documents have been copied onto a CD and are in the office of Defendants' counsel where they19 have been since December 21 awaiting reimbursement from Plaintiff. Defendants remain ready,20 willing and able to deliver the documents to Plaintiff upon reimbursement of the reasonable21 reproduction costs.22 8. Defendants have provided Plaintiff with a privilege log of all documents that have23 been produced to date. Defendants will provide a supplemental privilege log as soon as Plaintiff24 will accept the balance of the documents.25 9. Defendants have copied and are prepared to produce all documents that Plaintiff26 has requested except for about 11,000 pages of blood product chart copy records that relate to27 blood products delivered to patients that have no relation to any issue in this case and records28 3

DECLARATION OF MARK A.WASSER RE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT ANDIN OPPOSITION TO MOTION TO COMPEL


1 memorialize the agreement between the parties that Defendants would produce copies of the2 requested documents by photocopying them and delivering the copies to Plaintiffs counsel. In3 reliance on this agreement, Defendants copied and produced several thousand documents on4 November 20,2007. Plaintiff did not object to the production and even noted that it was a5 substantial, "good-faith" production. It was understood and agreed that the Defendants would6 not be producing original documents. The documents Plaintiffhas requested include thousands7 of original patient records from Kern Medical Center. It is neither feasible, possible nor lawful8 to produce them at the office of Plaintiff s attorney in Los Angeles.9 6. It was also agreed between the parties that Defendants would produce the10 requested documents in multiple productions. Plaintiffs request for production encompassedII over 30,000 documents that fill more that 12 boxes. It was not possible for Defendants to locate,12 assemble, copy and deliver all those documents by November 20. Plaintiffs letters (See13 Attachment B) acknowledge the parties' agreement regarding multiple production dates.14 Defendants originally anticipated three or even four separate productions but, through diligent15 work, were able to produce all documents in only two productions.16 7. Upon inforn1ing Plaintiff of the reasonable cost of photocopying the documents to17 be produced, Plaintiffannounced his refusal to pay and filed this motion to compel. All the18 documents have been copied onto a CD and are in the office ofDefendants' counsel where they19 have been since December 21 awaiting reimbursement from Plaintiff Defendants remain ready,20 willing and able to deliver the documents to Plaintiff upon reimbursement of the reasonable21 reproduction costs.22 8. Defendants have provided Plaintiffwith a privilege log of all documents that have23 been produced to date. Defendants will provide a supplemental privilege log as soon as Plaintiff24 will accept the balance of the documents.25 9. Defendants have copied and are prepared to produce all documents that Plaintiff262728

has requested except for about 11,000 pages of blood product chart copy records that relate toblood products delivered to patients that have no relation to any issue in this case and records

3DECLARAnON OF MARK A. WASSER RE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT AND



4/20

1 that are privileged. Defendants have informed Plaintiff that, if he wants the blood product chart2 copy documents, Defendants will ask this Court for an order cost-shifting the production costs to3 Plaintiff. No other cost-shifting order is anticipated at this time.4 10. Defendants consider the motion to compel to be premature because Plaintiff has5 not even seen the documents Defendants are producing yet is already objecting to them. There is6 no way to evaluate Defendants' production until the documents have been produced.7 11. Plaintiffs complaint states claims that are grounded in both state and federal law.8 State law privileges apply to the state claims and federal law privileges apply to the federal9 claims. (See, e.g, Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 103

10 (3rd Cir. 1982).) Defendants have properly asserted state law privileges to documents that relateII to Plaintiff's state law claims. Plaintiff's contention that only federal privileges apply is12 incorrect.13 12. Defendants are entitled to be paid for the reasonable photocopy expenses of14 copying the documents Plaintiff has requested.15 13 . Plaintiff s motion to compel should be denied. Defendants do not object if it is16 denied without prejudice to being re-filed after the documents have been produced if good cause17 exists for filing it then.18 I certify under penalty of perjury that the foregoing is true and correct.19 Executed this 8th day of January, 2008, in Bakersfield, California.2021 By: /s/ Mark A. Wasser22 Mark A. Wasser232425262728 4

DECLARATION OF MARK A. WASSER RE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT AN DIN OPPOSITION TO MOTION TO COMPEL


1 that are privileged. Defendants have informed Plaintiff that, if he wants the blood product chart2 copy documents, Defendants will ask this Court for an order cost-shifting the production costs to3 Plaintiff. No other cost-shifting order is anticipated at this time.4 10. Defendants consider the motion to compel to be premature because Plaintiffhas5 not even seen the documents Defendants are producing yet is already objecting to them. There is6 no way to evaluate Defendants' production until the documents have been produced.7 11. Plaintiffs complaint states claims that are grounded in both state and federal law.8 State law privileges apply to the state claims and federal law privileges apply to the federal9 claims. (See, e.g., Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 103

10 (3rd Cir. 1982).) Defendants have properly asserted state law privileges to documents that relate11 to Plaintiffs state law claims. Plaintiffs contention that only federal privileges apply is12 incorrect.13 12. Defendants are entitled to be paid for the reasonable photocopy expenses of14 copying the documents Plaintiffhas requested.15 13. Plaintiffs motion to compel should be denied. Defendants do not object if it is16 denied without prejudice to being re-filed after the documents have been produced if good cause17 exists for filing it then.18 I certify under penalty of perjury that the foregoing is true and correct.19 Executed this 8th day of January, 2008, in Bakersfield, California.202122232425262728

By: /s/ Mark A. WasserMark A. Wasser

4DECLARATION OF MARK A. WASSER RE: INABILITY TO PREPARE ANDEXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT AND

IN OPPOSITION TO MOTION TOCOMPEL


5/20

ATTACHMENT A


ATTACHMENT A


6/20

01/09/2008 15:48 FAX Z005To : Mar @IB-44--648 fr: Law Office OF UgeM L" Pg 2/i35/46 16:39 PS

4a,2 ennyL A W O F F IC E 0Fr ELEEOLCi-WmT2L~PHCE EEEMAI6806.043, &06 WUSY PrIFM Y71tle, uNAUIlaY an WWW.L-L.BCMVAOIOMILr LOU A N U E E S CLIPO MdL~el lN AUmt001150WtUI fl

SUCUNE D. L sq. J0A$ )WRSCT0N, SQ.MCIWAL OF COUMELJawary 4, 2008

Mark Wasser 10001 1,001Law Offices of Mark Wasm400 Capitol Mall Ste 1100Sacranmeto, CA 95814Re: Joint Statement rO Discovery DiSaI~reMentjaWM / County of Kern, o al, (USDC EDCA No. 1:07-vw-00026-OWWfAG)

Dear Mark:Enclosed herewith is a complete draft of the proposed Joira Statement Re: ThScoveryDisagreement whichI have prepared pursumntto Local Rule 37-251(a). Itremain$ subjecttoftlther revision but it is substantially complete. Please review it. If you have changes oradditions, please forwad those and Iwill look at themI have sent you the exhibits by first class maril They number almost 200 pages.This nccd to be filed with the Court no later than Janury 9. 2008. Please do not hesitate tocomea=t me with any quetions,

cc: loan Herington, Esq.David F. Jadwin, D.O., F.C.A.P.


01/09/2008 15:48 FAXTo: 1 I i ~ Ilasser @916-4114-6485 frOl: La! Office Of Eugene Lee P9 zrsI ,IJlI4Al8 I':llll pi tal 005

ta 1;1J .ifa-a;, TIt t " ,e"HDHE LAW OFFICEEUGENE L OFE E EL.EE;@ ...gEa_GOMC M " U ~r Z l 3 ' 5 9 8 0"F'ADIlIM1L'f aee we.... ,........"'.. IEI''' ', BUI't'1! !!I ' eeL a . ANPC"', D"""",J lH",, .00' a-, D '" WWW.LClEL.IIDMwe. elOPe:JOANS._croll, iSQ.OF C()\]}ISEL

1anuary 4, 2008VIA FACSIMilEMeritWIISserLaw Offices ofMm Wasser400 Ca.pnol Mall Ste 1100SllCI"lImellto, CA 95814

lOOOIU10l

Re: Joillt Statllmellt re Discovery Disagl'41emelltJadwin I County of Kern, lOt al, (USDC EDCANo. l,Il?.,...'OO026-0WWrrAG)

Deer Muk:E!lC:loSll4lllllfllWitb i lj ; eompl.lInft o f I l I ' l l p ~ ; d Joillt ill!: D i $ ~ ' u vDimlgreemellt wllillh I have pIll'IIlWlt10 LoeaI Rille 37.2'1(1L). h l'


7/20

ATTACHMENT B


ATTACHMENTB


8/20

: !i8!K Id55Cr V uirwro'-4CI ri m: LM urrius ur LuWIU L= r3 LI IIIW 11

9 -99LAW O F F I C E OF [email protected] E-MAILEUGENE LEE(21 3) 596-047 555 WEST FIFTH STREET, SUITE 3100 WWWLOEL.COMFACSIMILE LO S A N E L E S , CALIrORNIA 90013-1010 WEBSITEEUGENE D LEE, ES Q JOAN I-MERRINGTON, ESQPRINCIPAL OF COUNML

November 15, 2007VIA FACSIMILEMark Wasser 100011.001La w Offices of Mark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

Re: Plaintiffs Requests for Production- Set OneJadwin / County of Kern. et al. (USDC EDCA No. 1:07-cv-00026-OWWiTAG)

Dear Mark:It was a pleasure speaking and meeting and conferring with yo u yesterday on Plaintiffis RequestsFor Production, Set One to County of Kern. This letter confirms the content of our discussions.We reviewed my letter to yo u of November 8, 2007, and yo u confirmed that we were inagreement with most of the issues stated therein. Only a few items required further discussion, asfollows:I. TENTATIVE AGREEMENTS / CLARIFICATIONS RE DOCUMENT REQUESTSWe discussed plaintiff's requests for production and agreed that defendants would provide awritten response by November 20 . with the exception of the following requests: 18, 19, 21 , 2728 , 42-45, 54-57, 59, and 61-63, which require further clarification by Defendants. Yo u hadindicated varying expected production dates of November 16, December 7 and December 21. Oncertain requests, we agreed that the production date would be changed from December 21 toDecember 7: 20 , 46 and 47 .In addition, the parties made the tentative agreements and clarifications with respect to thefollowing requests:Doc Req Tentative agreement/clarification

No.26 Defendants may have destroyed some of these files. Defendants will note this inresponse by November 20 .

40 Defendants to respond by November 20 with objection and refusal to produce.Plaintiff intends to file a motion to compel.

54 Plaintiff seeks statistics for both patient "fatalities" and patient "deaths", as eachconsidered alone is not meaningful and must be compared to the other. Defendants


n a r ~ wasser e ~ I O - ~ - ~ ffUII: LdW ur r Il'ti ur t . ~ 1 1 O u:ro r LI'; II/Iv/tJl ' ;; '11'"21;;1) 9 9 2


9/20

: nrw tmser e - r um : L rriuv W LUII t= U t.

are considering objecting to disclosure of "fatalities" statistics due to peer reviewprivilege. Plaintiff stated that this does not fall under peer review privilege.

56 Defendants to produce in redacted form.57 Defendants to produce in redacted form.62 Groupwise archives were destroyed as part of a routine sweep. Defendants will notethis in response by November 20.78 Defendants are reviewing Plaintiffs suggested production procedure. DefendantsSbelieve the initial 120 day estimate may have been too conservative.II. MEDICAL RECORD NOS. / REDACTION IN GENERALDefendants are still considering the issue of disclosing medical record numbers to Plaintiff.Plaintiff explained that the number cannot be linked to a patient name without access to KMC-scomputer, and that Plaintiff requires this number in order to determine which case numbers areassociated with each other.

We look forward to ou r next meet and confer conference call with yo u at 10:00 a&m. on Monda"November 26, 2007. Please do no t hesitate to contact us with any questions or if yo u need to re-schedule.

Very tRnt yours,

&L EN E D. LEEcc: Joan Herrington, Esq.David F. Jadwin, D.O., F.C.ANP.

2


narK wasser e ~ I b - q q q - ~ rn . : LdH orr Il,;t:l' ur [ . ~ 1 0 Lt;t; 78 , Defendants are revlelJ\mg PlamtIff's suggested productIon procedure. DefendantsI believe the initial 120 day estimate may have been too conservative.

are considering objecting to disclosure of "fatalities" statistics due to peer reviewprivilege. Plaintiff stated that this does not fall under peer review privilege.56 Defendants to produce in redacted form.57 Defendants to produce in redacted form.62 Groupwise archives were destroyed as part of a routine sweep. Defendants will notethis in response by November 20.,

II. MEDICAL RECORD NOS. / REDACTION IN GENERAL

Defendants are still considering issue of disclosing medical record toPlaintiff explained that the number cannot be linked tc a patient name without access to KlvlC'scomputer, and that Plaintiff requires this number in order to determine which case numbers areassociated with each other.

We look forward to our next meet and confer conference call with you at 10,00 a.m. on M(md.ayNovember 26, 2007. Please do not hesitate to contact us with any questions or if you need to reoschedule.

v7I;y truly ~ o u r s ,U f\ \cJffi\I \ J I t { / ~ )~ L J P E N E D. LEEee, Joan Herrington, Esq. v

David F. Jadwin, D.O, FeAP.

2


10/20

MIRII HCdWII e r~~fuM: LOH*4 rI IJ V M UJ~ OOI Lt 1 IW JI ov

(212) 99Z-3Z99 L AW O FF I C E OF [email protected] ELMAILEUGENE LEE(213) 596-0487 555 WEST FIFTH STREET, SUITE 3100 WWW.LOEL.COMFACSIMILE LO S ANGELES, CALIFORNIA 90013-1010 WEBSITEEUGENE D LEE, ES Q JOAN W HERINGTON, ESQprICIpAL OF COUNSEL

November 22, 2007VIA FACSIMILEMark Wasser 100011.001Law Offices of Mark Wasser40 0 Capitol Mall Ste 1100Sacramento, CA 9581 4

Re: Defendants Responses to Plaintiff's Requests for Production, Se t On eJadwin / County of Kern, et al. (USDC EDCA No . I:07-cv-00026-OWW/TAG)

Dear Mark:it wa s a pleasure speaking with yo u yesterday regarding my email of Novrember 20.

1. OVERBROAD OBJECTIONAs yo u know, in that email, we had explained that defendants' oft-used objection, "documentsprotected from disclosure by state or federal law", does no t comply with FRCP Rule 34 becauseit (a) is too broadly stated and (b) fails to explain ho w the objection relates to the documentsdemanded. During the call, yo u indicated that defendants would re-state this objection. We lookforward to discussing this further with you on Monday's call.

II. ISSUES RELATED TO SPECIFIC RESPONSESPlaintiff also notes the following issues with defendants written responses to plaintiff requestsfor production, set one:Response Issue

to DoeReq No.23/24 December 21 seems to be an excessively longtime. Also, to what extent are thetimesheets attorney-client privileged?25 To what extent are these documents relating to plaintiff's job performance attorney-client privileged?32 These documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent. We intend to move to compel if we cannot resolvethis.33 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 government


r l VII: LCM urr I ~ ur L ~ l l U Lt;t; r LI" I J ILL /VI "';VI'"ELEE@LOEL .COM

E -MA ILOFLEE

LAW OFFICEEUGENE

(2 1 ::,1) 992 - : : 3 299TELEPHONE

{2 1 31 598-0487FACSIMILE

555 W ES T F IF TH S TR EE T, SU I TE 3100L O S A N GE LE S , C AL IF O RN IA 9001 ; : 1 - 1010

WWW.LOEL .COMWEBS ITE

EUGENE D. LEE, ESQPRINCIPAL

JOAN E. HERRINGTON, ESQOF COUNSEL

November 22,2007VIA FACSIMILEMark WasserLaw Offices ofMark Wasser400 Capitol Mall Ste II 00Sacramento, CA 95814

10001 LOOI

Re: Defendants Responses to Plaintiffs Requests for Production, Set OneJadwin 1County of Kern, et a1. (USDC EDCA No.1 :07-cv-00026-0WW ITAG)

Dear Mark:It was a P",=Ul ,p,,,,,,,.HE;\vith you yeSlcrU2:y n,p8ntino my' email of November 20.

I. OVERBROAD OBJECTIONAs you know, in that email, we had explained that defendants' oft-used objection, "documentsprotected from disclosure by state or federal law", does not comply with FRCP Rule 34 becauseit (a) is too broadly stated and (b) fails to explain how the objection relates to the documentsdemanded. During the call, you indicated that defendants would re-state this objection. We lookforward to discussing this further with you on Monday's call.

n. ISSUES RELATED TO SPECIFIC RESPONSESPlaintiffalso notes the following issues with defendants written responses to plaintiffrequestsfor production, set one:Response Issueto DocReq No. ,

23/24 December 21 seems to be an excessively long time. Also, to what extent are thetimesheets attorney-client privileged?

25 To what extent are these documents relating to plaintiff's job performance attorney-client privileged?

32 These documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent. We intend to move to compel ifwe cannot resolve Ihis.33 In past meet and confer calls, plaintiffhad narrowed this request to complaints orgrievances relating to Kern Medical Center which had been made to a government


11/20

arK wasser L ,ib-qvq-bqM trum: L4 I urrutt ur tUPt L= r 01 9 IULLJVT ;t t4

40 ag e n r court. These documentsare essential to prove disparate

treatment anddiscriminatory/retaliatory intent. We intend to move to compel if we cannot resolvethis.

36 to 39 To what extent are these documents attorney-client privileged?These documents are essential to prove disparate treatment an d69 diWscriminatory/retaliatory intent. We intend to move to compel if we cannot esolvethis.42 To what extent are documents relating to the May 2005 oncology conference

-. presentation attorney-client privileged?69 We still await defendants' response on the patient medical record number issue, bothfor past and for future disclosures. _

% These documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent. January 7, 2008 is an unacceptable length of time toi wait for these documents. We intend to move to compel if we cannot resolve this.

78 Defendants fail to indicate a date of production.

t1o REQUEST 78Regarding Request 78 , as a means to save time, plaintiff proposes defendants produce thefollowing. We can discuss this at ou r next conference if you wish.

1. A printout of a list of all CPT code 88307 reports will produce all placentas.There are less than 4,500 placentas per year. This process should require no morethan four hours.2. A printout of all pathology reports appearing on the above list. At two reports per

minute, this should require approx. 40 hours.3. Redaction of patient names (appearing in 3 places on each report) is a highlyrepetitive task that should require far less than 40 hours. If automated usingscanning and Adobe Acrobat it should take even less time.

These tasks are clerical and do not require a great deal of skill.We look forward to our next meet and confer conference call with you at 10:00 am. on Monday,November 26 , 2007. Please do no t hesitate to contact us with any questions or if you need to re-schedule.

Vey trt yours,

cc: Joan Herrington, Esq.

2


MarK wasser e ~ I b - q q q - ~ HOI: L


12/20

213) 99239 L A W 0 F F I C E 0 F [email protected] E-MAILEUGENE L E E(213) 596-0457 555 WEST FIFTH STREET , SUITE 3100 WWW.LOEL.COMFACSIMILE LOS ANGELES, CALIFORNIA 900 1 31010 WEBSITEFUGUiNE D) LT.H, (mSQ JOAN I, HERRINGI'ON, (SQPRINCIPAL OF COLNSI'L

November 27, 2007VIA U.S. MAIL FIRST CLASS & FACSIMILEMark Wasser 100011.001Law Offices of Mark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

Re: Defendants Responses to Plaintiffs Requests for Production. Set OneJadwin / County of Kern, et al. (USDC EDCA No. 1 07-cv-00026-OWW/TAG)Dear Mark:Swas a pleasure sneaking with vou esterdav and today regardinga m- letter to yo u o01N-overnber22. We are writing this letter in follow-up to ou r discussion.1. OVERBROAD OBJECTIONAs you know, in that email, we had explained that defendants' oft-used objection, "documentsprotected from disclosure by state or federal law", does not comply with FRCP Rule 34 becauseit (a) is too broadly stated and (b) fails to explain how the objection relates to the documentsdemanded. During the call, you indicated that the objection referred to HIPAA and peer reviewprivilege, and that defendants would revise the responses to state the objection accordingly byFriday. November 30.IL PRIVILEGE LOGYou stated that yo u intend to provide us with a privilege log for all requests by Friday,November 30.II1. ISSUES RELATED TO SPECIFIC RESPONSESPlaintiff also notes the following issues with defendants' written responses to plaintiffs requestsfor production, set one:Response Issueto DoeReq No.23/24 You stated that these are probably no t attorney-client privileged and that defendantsmay be able to produce them this week.25 You stated that these are probably no t attorney-client privileged.33 {We reiterated that we have already agreed to narrow this request to documents


( 2 1 3 ) 9 9 2 - : : 3 2 9 9T E L E P H O N E

AW OFFIEUGENE

CELFE E E L E E @ L O E L . C O ME * M A I L

IZ 1 3 ) 5960487F A C S I M I L EELGL;NE D LEI, ESQPRINCIPAL

555 W E S T F IF T H S T R E E T , S U IT E 3100L O S A N G E L E S , C A L I F O R N I A 90013-1010

WWW.LDEL.COMW E B S I T E

JOAN 1"_ HERRINGTON, ESQOF COUNSEL

November 27,2007VIA U.S. MAIL FIRST CLASS & FACSIMILEMark WasserLaw Offices ofMark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

100011.001

Re: Defendants Responses to Plaintiffs Requests for Production,Jadwin 1County ofKem, et aJ. (USDC EDCA No.1 :07-cv-00026-0WW/TAG)Dear ]\lark:11 \\'as a speaking and regarding Hl} ' letter to22. We are writing this letter in follow-up to our discussion.I. OVERBROAD OBJECTIONAs you know, in that email, we had explained that defendants' oft-used objection, "documentsprotected from disclosure by state or federal law", does not comply with FRCP Rule 34 becauseit (a) is too broadly stated and (b) fails to explain how the objection relates to the documentsdemanded. During the call, you indicated that the objection referred to HIPAA and peer reviewprivilege, and that defendants would revise the responses to state the objection accordingly byFriday. November 30.n. PRIVILEGE LOGYou stated that you intend to provide us with a privilege log for all requests by Friday,November 30.III. ISSUES RELATED TO SPECIFIC RESPONSESPlaintiffalso notes the following issues with defendants' written responses to plaintiffs requestsfor production, set one:Response Issueto DocReq No.23/24 You stated that these are probably not attorney-client privileged and that defendantsmay be able to produce them this week.25 You stated that these are probably not attorney-client privileged.33 We reiterated that we have alreadv agreed to narrow this request to documents


13/20

relating to complaints or grievances relating to Kern Medical Center which had beenmade to a government agency or court. We further explained that these documentsare essential to prove disparate treatment and discriminatory/retaliatory intent. Yourequested and we agreed to send you revised response language vvhich 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.Following is the revised language narrowing the request:"COMPLAINTS AGAINST COUNTY. Any and all DOCUMENTS RELATINGTO complaints or grievances made by YOUR past or present employees againstYOU for defamation, retaliation, disability discrimination, failure to accommodate.and/or failure to engage in an interactive process RELATING TO Kern MedicalCenter and/or its officers or staff, including but not limited to any mnbrmaheriternal cemplaints, grievances or charges to any state or federal agency, and_complaints filed in any state or federal court from October 24, 2000 to date."

36 to 39 You explained that some documents will be subject to attorney-client privilege.S40 We explained that these documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent. You maintain your objections that documentsrequested are confidential personnel information and that the request is notreasonably calculated to lead to admissible evidence because Dr. Royce's situation istoo dissimilar to plaintiff s. Therefore you stated that yo u do no t intend to produceany responsive documents. Since we are at an impasse, we will move to compel.Note: because yo u are refusing this request, we are reinstating our request inRequest 16 with respect to Dr. Royce Johnson's personnel file. Previously youhad objected that the personnel files of state employees are privileged officialinformation. Please see this case:Garrettv. San Francisco,818 F.2d 1515, 1518-1519 fn.4 (9th Cir. 1987) ("Thiscourt has held that personnel files are discoverable in federal question cases,including Title VII actions, despite claims of privilege. Guerrav. Boardof Trustees,567 F.2d 352 (9th Cir. 1977); Kerrv. UnitedStatesDistrictCourt, 511 F.2d 192,197 (9th Cir. 1975), affd, 426 U.S. 394, 48 L. Ed . 2d 725, 96 S.Ct. 2119 (1976)).Ibid. (where plaintiff sought personnel records of 16 named firefighters to provedisparate treatment and defendants objected on grounds of privilege, confidentiality,invasion of privacy, and irrelevance, the 9 th Cir. opined "Without passing on themerits of plaintiffs discovery motion (a matter which should be addressed first bythe district court), we note that the motion, on its face, does no t appear to be entirelywithout merit.").

42 You stated that these are probably not attorney-client privileged.69 You indicated that defendants will disclose patient medical record numbers bySDecember 7, and that you will look into the possibility of doing the same for2

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 13 of 20 relating to complaints or grievances relating to Kern Medical Center which had beenmade to a government agency or court. We further explained that these documentsare essential 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.Following is the revised language narrowing the request:

We explained that these documents are essential to prove disparate treatment anddiscriminatory/retaliatorv intent You maintain your objections that documents

"COMPLAINTS AGAINST COUNTY. Any and all DOCUMENTS RELATINGTO complaints or grievances made by YOUR past or present employees againstfor defamation, rctaliation. disability discrimination, failure to accommodate,and/or failure to engage in an interactive process RELATING TO Kern MedicalCenter and/or its officers 01 ' staff, including but not limited to any infoffilal Ofinternal complaints. grievances or charges to any state or federal agency, andcomplaints filed in any state or federal court from October 24, 2000 to date."You explained that some documents will be subject to attorney-client privilege.6 to 39

40-requested are confidential personnel information and that the request is notreasonably calculated to lead to admissible evidence because Dr. Royce's situation istoo dissimilar to plaintiffs. Therefore you stated that you do not intend to produceany responsive documents. Since we are at an impasse, we will move to compel.

Note: because vou are refusing this request, we are reinstating our request inRequest 16 with respect to Dr. Rovce Johnson's personnel file. Previously youhad objected that the personnel files of state employees are privileged officialinformation. Please see this case:Garrett v. San Francisco, 818 F.2d 1515, 1518-1519 fnA (9th Cir. 1987) ("Thiscourt has held that personnel files are discoverable in federal question cases,including Title VII actions, despite claims of privilege. Guerra v. Board ofTrustees,567 F.2d 352 (9th Cir. 1977); Kerr v. United States District Court, 511 F.2d 192,197 (9th Cir. 1975), affd, 426 U.S. 394, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976)).

I Ibid. (where plaintiff sought personnel records of 16 named firefighters to provedisparate treatment and defendants objected on grounds of privilege, confidentiality,invasion of privacy, and irrelevance, the 9th Cir. opined "Without passing on themerits of plaintiffs discovery motion (a matter which should be addressed first bythe district court), we note that the motion, on its face, does not appear to be entirelywithout merit.").

42 You stated that these are probably not attorney-client privileged.69 You indicated that defendants will disclose patient medical record numbers byDecember 7, and that you will look into the possibility of doing the same for

2


14/20

defendants' past Initial Disclosures.70 We explained that these documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent and that January 7, 2008 is an unacceptable lengthI of time to wait for these documents. You asked for legal authority establishing thatstate privilege caselaw does not apply in federal court in cases involving a federal

question. We agreed to provide it. You also indicated that if we are able tosuccessfully meet and confer on this issue, that yo u would be able to produceresponsive documents by December 21Please see these cases:11m. T Thompson Co. v. GeneralNutritionCorp., 671 F.2d 100, 104 (3d Cit. 982)"We hold that when there are federal law claims in a case also presenting state lassclaims, the federal rule favoring admissibility, rather than any state law privilege, isthe controlling rule. The question is one of first impression in this court, but ourI holding is consistent with the legislative history n5 of Rule 50I and the decisions ofa number of trial courts. n6 It is also consistent with the general rule in federalpractice disfavoring privileges not constitutionally based.)Kerr v. UnitedStatesDistrictCourt. 511 F.2d 192, 196-198 (9th Cir.1975), affd,426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); (In federal question cases theclear weight of authority and logic supports reference to federal law on the issue ofthe existence and scope of an asserted privilege; The state's interest is that of alitigant, and not, as in diversity cases, that of a sovereign whose law is being appliedin a foreign forum. Reference to federal law in this case is necessary on the issue ofthe existence and scope of the claimed privilege.).

78 We explained that you failed to indicate a date of production. You said that youwould give us a date of production at ou r next call on November 30 .IV . REQUEST 78Regarding Request 78, we explained that the task of producing these documents is clerical andcould be handled by an hourly-paid temporary hire, in one to two weeks. You said you werediscussing ou r latest suggestions with your clients.V. RELEVANCY OBJECTIONDuring the call, a topic of discussion was defendants' objection that plaintiff s requests were notreasonably calculated to lead to admissible evidence. Following is some caselaw regarding that.In ou r view, defendants are adopting an overly expansive view of what the objection covers:

Royce Johnson is a fair comparator fo r Dr. Jadwin in terms of "seriousness" ofwrongdoing:

3

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 14 of 20defendants' past Initial Disclosures.

70 We explained that these documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent and that January 7, 2008 is an unacceptable length

of time to wait for these documents. You asked for legal authority establishing thatstate privilege caselaw does not apply in federal court in cases involving a federalquestion. We agreed to provide it. You also indicated that if we are able tosuccessfully meet and confer on this issue, that you would be able to produceresponsive documents by December 21.Please see these cases:Wm. T Thompson Co. v. Genera! Nutrition Corp., 671 F.2d 100, 104 (3d 1982)hold that when there are federal law claims in a case also presenting stateclaims, the federal rule favoring admissibility, rather than any state law priviiege, isthe controlling rule. The question is one of first impression in this court, but ourholding is consistent with the legislative history n5 of Rule 501 and the decisions ofa number of tria! courts. n6li is also consistent with the general rule in federalpractice disfavoring privileges not constitutionally based.)Kerr v. United States District Court, 511 F.2d 192, 196-198 (9th Cir.!975), aj}'d,426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); (In federal question cases theclear weight of authority and logic supports reference to federal law on the issue ofthe existence and scope of an asserted privilege; The state's interest is that of alitigant, and not, as in diversity cases, that of a sovereign whose law is being appliedin a foreign forum. Reference to federal law in this case is necessary on the issue ofthe existence and scope of the claimed privilege.).

78 We explained that you failed to indicate a date of production. You said that youwould give us a date of production at our next call on November 30.

IV. REQUEST 78Regarding Request 78, we explained that the task of producing these documents is clerical andcould be handled by an hourly-paid temporary hire, in one to two weeks. You said you werediscussing our latest suggestions with your clients.V. RELEVANCY OBJECTIONDuring the call, a topic of discussion was defendants' objection that plaintiffs requests were notreasonably calculated to lead to admissible evidence. Following is some caselaw regarding that.In our view, defendants are adopting an overly expansive view ofwhat the objection covers:

Royce Johnson is a fair comparator for Dr. Jadwin in terms of "seriousness" ofwrongdoing:

3


15/20

McDonaldv. SantaFe Trail Transp.Co.. 427 U.S. 273. 283 n. 11. 49 L. Ed. 2d 493, 96 S.Ct. 2574 1976) (In a Title VII case, plaintiff can meet its burden by showing that otheremployees (firefighters) who engaged in similar acts of wrongdoing of comparableseriousness.*. were nevertheless retained.)

Relevancy is not a proper objection:United States v. Meyer. 398 F.2d 66, 72 (9th Cir. 1968). (In addition to discoveringinformation pertaining to a party's case in chief, it is entirely proper to obtain information forother purposes such as cross-examination of adverse witnesses)8 Wright & Miller. Federal Practice and Procedure. s 2008 at 41 (1970) (For the questionof relevancy is to be more loosely construed at the discovery stage than at the trial.)Olvmpic Refinine Compan' v. Carter.332 F.2d 260. 266 (9th Cir. 1964) (Thus underFed.R.CivP. 26(1 , it is no ground for objection that information sought in pretrial discover,would not be admissible at trial, if the testimony sought appears reasonably calculated to lead tothe discovery of admissible evidence.).VI. 12/4-12/6 DEPOSITIONSWe explained that we are incurring hotel, travel and court reporter costs in connection with theupcoming depositions. You agreed to confirm with us shortly that the depositions can go forwardas scheduled. You had mentioned that, due to scheduling conflicts, Dr. Wrobel's deposition mayneed to be moved from Tuesday afternoon to possibly Thursday. Please let us know.VII. STIPULATION RE AUTHENTICATION OF DOCUMENTSWe asked if yo u would consider entering into a stipulation mutually authenticating documentsproduced by the parties in discovery. You agreed to do so. A draft stipulation is attached for yourreview.

We look forward to our next meet and confer conference call with you at 10:00 a.m. on Friday,November 30, 2007. Please do not hesitate to contact us with any questions or if you need to re-schedule.

Very t yours,

3ENE D. LEEcc: Joan Herrington, Esq.David F. Jadwin, D.O., F.C.A.P.

4

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 15 of 20 McDonald v Santa Fe Trail Transp. Co .. 427 U.S. 273. 283 n.ll. 49 L. Ed. 2d 493.96 S.Ct. 2574 (1976) (In a Title VII case, plaintiff can meet its burden by showing that otheremployees (firefighters) who engaged in similar acts of wrongdoing of comparable seriousness .

. . were nevertheless retained.)

Relevancy is not a proper objection:United States v. Mever. 398 F.2d 66. 72 (9th Cir. 1968). (In addition to discoveringinformation pertaining to a party's case in chief, it is entirely proper to obtain information forother purposes such as cross-examination of adverse witnesses)8 Wright & Miller. Federal Practice and Procedure. s 2008 at 41 (1970) (For the questionofrelevancy is to be more loosely construed at the discovery stage than at the triaL)OJvmpic Refining Companv v. Carter.332 F.2d 260. 266 (9th Clr. 1964) (Thus underFed.R.Clv.P. 26(b)(1). it is no ground for objection that information sought in pretrial ,hc,,"p"Vwould not be admissible at trial, if the testimony sought appears reasonably calculated to lead tothe discovery of admissible evidence.).

12/4-12/6 DEPOSITIONSWe explained that we are incurring hotel, travel and court reporter costs connection with theupcoming depositions. You agreed to confirm with us shortly that the depositions can go forwardas scheduled. You had mentioned that, due to scheduling conflicts, Dr. Wrobel's deposition mayneed to be moved from Tuesday afternoon to possibly Thursday. Please let us know.VII. STIPULATION RE AUTHENTICATION OF DOCUMENTS

We asked if you would consider entering into a stipulation mutually authenticating documentsproduced by the parties in discovery. You agreed to do so. A draft stipulation is attached for yourrevIew.

We look forward to our next meet and confer conference call with you at 10:00 a.m. on Friday,November 30, 2007. Please do not hesitate to contact us with any questions or if you need to reschedule.

cc: Joan Herrington, Esq.David F. Jadwin, D.O., F.C.A.P.

4


16/20

1 Eugene D. Lee SB# 236812LA W OFFICES OF EUGENE LEE2 555West Fifth Street, Suite 3100Los Angeles, CA 900133 Phone: (213) 992-3299Fax: (213) 596-04874 E-mail: eleeaiLOEL.com5 Joan Herrington SB# 178988BAY AREA EMPLOYMENT LA W OFFICE6 5032 Woodminister LaneOakland, CA 946027 Phone: (510) 530-4078Fax: (510) 530-47258 E-mail: hibaelo.comOf Counse to LA W OFFICE OF EUGENE LEE9 Attorneys for Plaintiff10 DAVIDF. JADWIN, D.O.Mark A. Wasser CA SB #060160.1 LA W OFFICES OF MARK A. WASSER40 0 Capitol Mall. Suite 110012 Sacramento. CA 95814Phone: (916) 444-640013 Fax: (916) 444-6405E-mail: mwasser(chmarkwasser. corn14 Bernard C, Barman, Sr.15 KERN COUNTY COUNSELMark Nations, Chief Deputy16 1115 Truxtun Avenue, Fourth FloorBakersfield, CA 9330117 Phone: (661) 868-3800Fax: (661) 868-380518 E-mail: mnations(&co.kern.ca-us19 Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher.Jennifer Abraham, Scott Ragland, Toni Smith and William Roy2021 UNITED STATES DISTRICT COURT22 EASTERN DISTRICT OF CALIFORNIA23 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026 OWW TA G24

Plaintiff, STIPULATION TO AUTHENTICATE25 DOCUMENTSvs.26 Complaint Filed: January 5, 2007COUNTY OF KERN, et al., Trial Date: December 3, 200827 Defendants.28

STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 16 of 201 Eugene D. Lee SB# 236812LAW OFFICES OF EUGENE LEE2 555Wcst Fifth Street, Suite 3100Los Angeles, CA 900133 Phone: (213) 992-3299Fax: (213) 596-04874 E-mail: eleeiWLOEL.com5 Joan Herrington SB# 178988BAY AREA EMPLOYMENT LAW OFFICE6 5032 Woodminister LaneOakland. CA 946027 Phone: (510) 530-40788 I. ~ ~ ~ a \ I I 8 { d . ~ ~ ~ i ( ; ~ ~ m'I Of Counsef to LAW OFFICE OF9 Attorneys for Plaintiff10 DAVIDF. JADWIN. D.O.Mark A. Wasser CA SB #060160

11 LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 110012 Sacramento. CA 958 J4Phone: (9J6) 444-640013 Fax: (916) 444-6405E-mail: mwasser(cvmarkwasser.comJ4 Bernard C. Barman, Sf.15 KERN COUNTY COUNSELMark Nations. ChiefDeputvJ6 1115 Truxtun'Ayenue, Fourth FloorBakersfield. CA 9330117 Phone: (661) 868-3800Fax: (661) 868-380518 I E-mail: mnationstQJco.kern.ca.us,

19 Attorneys for Defendants County ofKern, Peter Bryan, Irwin Harris, Eugene Kercher,Jennifer Abraham, Scott Ragland, Toni Smith and William RoyUNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

202122232425262728

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

COUNTY OF KERN, et aI.,Defendants.

) Case No.: 1:07-cy-00026 OWW TAG)) STIPULATION TO AUTHENTICATE) DOCUMENTS)) Complaint Filed: January 5, 2007) Trial Date: December 3, 2008)))

STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY 1


17/20

1 IT ISHEREBY STIPULATED, by and among the parties hereto through their respective2 counsel, that any and all documents produced by plaintiff and/or by each of the defendants, or3 any of them, in the Initial Disclosures, supplemental disclosures, or pursuant to discovery4 requests or procedures in this action shall be deemed authentic under Federal Rule of Evidence5 901, provided however that documents generated by third parties shall not be included in this6 stipulation.7

Dated: December T200 LAW OFFICE OF EUGENE LEE9

By: Eugene D. LeeEugene D. Leei1 JIAttorney for Plaintiff, David F. Jadwin, D.O.1213 Dated: December , 2007 LA W OFFICES OF MARK A. WASSER1415 By: Mark A. Wasser (as authorized on_ )_Mark A. Wasser16 Attorney for Defendants, County of Kern, et al.171819202122232425262728

STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 17 of 20 1 1T lS HEREBY ST1PULATED, by and among the parties hereto through their respective2 counsel, tha t any and all documents produced by plaintiff and/or by each of the defendants, or3 any of them, in the 1nitial Disclosures, supplemental disclosures, or pursuant to discovery

4 requests or procedures in this act ion shal l be deemed authentic under Federal Rule of Evidence5 90 1, provided however that documents generated by third parties shall not be included in this6 stipulation.78 Dated: December 20079]0] ]12

B Y : _ - , = E " , U b g e " , 1 , ! , 1 e ~ D " - . 2oL"'e""e --iEugene D. LeeAttorney for Plaintiff David F. 1M]"' ," D.O.

13141516]7]8]9202122232425262728

Dated: December , 2007 LAW OFFICES OF MARK A WASSER

B y : _ ~ M ~ a " ' r k ~ A ' " . _ W " _ " a ~ s s " ' e " ' r _ l . ( a s ~ a u " _ t " ' h ! " o " _ r i " ' z " ' e " d ~ o ' _ 'n ' __L2_Mark A WasserAttorney for Defendants, County of Kern, et aL



18/20

1 ORDER2 The parties having stipulated as hereinabove set forth and good cause appearing therefor;3 IT IS HEREBY ORDERED, that that any and all documents produced by plaintiff and/or4 by each of the defendants, or any of them, in the Initial Disclosures, supplemental disclosures orpursuant to discovery requests or procedures in this action shall be deemed authentic underFederal Rule of Evidence 901, provided however that documents generated by third parties shall6 no t be included in this stipulation.7 Dated: December __ 2007 UNITED STATES DISTRICT COURT

By:____________ _9 The Honorable Theresa A. Goldner

10 HUnited States District Judge111' i13141516171819202122232425262728


Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 18 of 20 . . . ' ORDER

23456

The parties having stipulated as hereinabove set forth and good cause appearing therefor;IT IS HEREBY ORDERED, that that any and all documents produced by plaintiff and/or

by each of the defendants, or any of them, in the Initial Disclosures, supplemental disclosures orpursuant to discovery requests or procedures in this action shall be deemed authentic underFederal Rule of Evidence 901, provided however that documents generated by third parties shallnot be included in this stipulation. I

7 Dated: December_, 2007 UNITED STATES DISTRICT COURTThe Honorable Theresa A. GoldnerUnited States District Judge

By: _

10

89

111213141516171819202122232425262728



19/20

01/09/2008 15:48 FAX Qj002

,131 VZ-3z2 L A W O F F I C O F [email protected] E-MAILEUGENE LEE4-2 3) S96-04aS 555 WEST FIFTH STREET, SUITE 3I DO WWW.LOE".QMFACSMILE LO S ANGELES, CALIFORNIA 90013- "010 ---- WrBSITEoUGINE , 12E, ESQ. JOAN Z.HEIUIN-ONSQ.

PI4NCTPIT'A OFCOUNSELNovember 30, 2007

VIA E-MAILMark Wasser :00011O001Law Offices of Mark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

Re: Defendants Responses to Plaintiffs Requests for Production, Set OneJadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-OWW/TAG)

Dear Mark:It was a pleasure speaking with you today regarding our letter to you of November 27, We werepleased to hear that you expected most if not all documents to be produced before Decembr 21 ,We are writing this letter in follow-up to our discussion,L. OVERBROAD OBJECTIONWe discussed defendants' objection, "documents protected from disclosure by state or federallaw", which is problematic because it (a) is too broadly stated and (b) fails to explain how theobjection relates to the documents demanded. During the call, you agreed to revise the responsesto state the objection accordingly by either today or next Monday,II. PRIVILEGE LOGYou stated that you intend to provide us with a privilege log for all requests by either today ornext Monday,Il. ISSUES RELATED TO SPECIFIC RESPONSESPlaintiff also notes the following issues with defendants' written responses to plaintiff's requestsfor production, set one:Response Issueto DotReq No.23/24 You stated there would not likely be any issue producing these and you would havea more definite idea as to production date by next Monday.33 You confirmed that plaintiff's revised request language is adequate and that you willproduce responsive documents tentatively by December 7, but you would have amore definite idea as to production date by next Monday.40 We discussed McDonaldv. SantaFe Trail Transp. Co.. 427 U.S. 273. 283 n.11, 49L. Ed. 2d 493, 96 S. Ct. 2574 (197 6 ), establishing Dr. Royce is a fair comparator fordisparate treatment. Yo u said you would do some further research and be ready to


01/09/2008 15:48 FAX ~ 0 0 2

ELEE@L1:1EL..CQME-Mol\lL.O FL E E

LAW OFFICEE UG E N E

I.i. 1 31 'if


20/20

01/09/2008 15:48 FAX a003

discuss it with us further by next Monday.Imentioned that if we are unable to resolve this issue, we would reinstate-ourrequest inRequest 16 with respect to Dr. Royce Johnson's personnel file. I furthermentioned Garrett v. San Francisco,supporting our right to disclosure of personnelfiles.42 You stated that these are probably not attorney-client privileged,

679 You stated you would probably have a decision on this by next Monday.We explained that these documents are essential to prove disparate treatment anddiscriminatoryfretaliatory intent. We also cited Win, T Thompson Co. v. GeneralNutrition Corp., 671 F.2d 100, 104 and Kerr v, UnitedStates DistrictCourt,511F.2d 192, 196-198 (9th Cir. 1975), establishing that federal privilege applies infederal question cases.You stated that you would research this further and that if we are able to successfullymeet and confer on this issue, you would be able to produce responsive documents

______pos sibly"by_~~December 21.S78 You stated that you would produce possibly by December 21 , but that this would beSLdecided by next Monday,IV. STIPULATION RE AUTHENTICATION OF DOCUMENTSWe discussed the draft stipulation and mentioned that some language should be added to ensuredocuments generated by KMC hospital staff and employees are covered by the stip (as opposedto third parties outside of KMC). You said you would discuss this with your client and get backto us with an answer by next Monday.V, PRIVACY BALANCING TESTYou requested caselaw regarding the privacy balancing test for disclosure. We cited Tisdale vMatin GeneralHospital,138 FRD 696.If any of the foregoing is inaccurate, please do not hesitate W et us know. We find these lettersserve as a useful way to track ongoing items of discussion.We look forward to our next meet and confer conference call with you at 5:00 p.m. on Monday,December 3, 2007. Please do not hesitate to contact us with any questions or if you need to re-schedule. Have a nice weekend.

Vt y urs,_tENE D. LEE

cc : Joan. Herrington, Esq.David F. Jadwin, D.O., F.C.A.P.

2


01/09/2008 15:48 FAX 1i!J003

discuss it with us further by nextMonday.

You stated ou would babl have a decision on this b next MondaYou stated that these are robabl not attome -client rivile ed.

I mentioned that ifwe are unable to resolve this issue, we would reinstate,ourrequest in Request 16 with respect to Dr. Royce Johnson's personnel file. I furthermentioned Garrett v. San Francisco, supporting our right to disclosure of personnelfiles.

, We explained that these documents are essential to prove disparate treatment anddiscriminatory/retaliatory intent. We also cited Wm. T Thompson Co. v. GeneralNutrition Corp., 671 F.2d 100, 104 and Kerr v. United States District Court. 511F.2d 192, 196-198 (9th Cir.1975), establishing that federal privilege applies infederal question cases. IYou stated that you would research this further lind that ifwe are able to successfully Imeet and confer on this issue, you would be able to produce responsive documents rlssibl b December 21.

70

78 i You stated that you would produce possibly by December 21, but that this be' - - I decided by next Monday. i

69, 42

II

IV. STIPULATION RE AUTHENTICATION OF DOCUMENTSWe discussed the draft stipulation andmentioned that some language should be added. to ensuredocuments generated by KMe hospital staffand employees are covered by the stip (as opposedto third parties outside ofKMe). You said you would discuss this with your client and get backto us with an answer by nextMonday.v, PlUVACY BALANCING TESTYOil requested casclaw regarding the privacy balancing test for disclosure. We cited Tisdale vMarin Gerwral Hospiral, 138 FRO 696.If any oftl1e foregoing is inaccurate, please do not hesitate to usserve as a useful way to track ongoing items of discllssion. We find these !etters

We look forward to our next meet and confer conference call with you at 5:00 p.m. on Monday,December 3, 2007. Please do not hesitate to contact us with llI1y questions or ifyou need to reschedule. Have a nice weekend.

CC: Joan. Herrington, Esq.David F. Jadwin, D.O., F.C.A.P

2

84 MTC KC Declaration Re Joint Statement

Documents

Transcript of 84 MTC KC Declaration Re Joint Statement