101 Mtc Rog1 - Kc Declaration Re Joint Statement

1 2 3

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 (916) 444-6400 16) 444-6405

5

a.m. U.S. "R",·... l"·nrrt,,v Bakersfield Courtroom 21

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

22 23 24 25 26 27

I, Mark A. Wasser, declare as follows: 1.

I am counsel of record for the Defendants and am familiar with this case. The

statements in this Declaration are true and correct of my own personal knowledge and I can testify competently to them if called as a witness.

28 -1DECLARAnON OF MARK A. WASSER RE INABILITY TO PREPARE JOINT STATEMENT ON DISCOVERY DISPUTE

1

2

2.

It will come as no surprise to this Court to learn that counsel for the parties do not

enjoy a good working relationship. The behavior of Plaintiffs counsel in preparing his papers

3

mCltlOln to

cOlnpl~l 1trrth<~r

responses to Plamtlt!"

set

COllllsel sent me a

L':J-na~~e

4

5 Uel~lar'atl(m

as Exbllblt PlaJntl1t's cOUllsel, EU12:ene

2

should go wll:holLlt saymg

s repres(~ntaLtiOlls

17

21 22 23

5.

18

At no time did Mr. Lee ever attempt to discuss his proposed joint statement with

me. There has been no communication between the parties about it. 6.

Mr. Lee's proposed joint statement does not accurately reflect the status of the

24

parties' attempts to meet and confer regarding the Defendants' responses to Plaintiffs first set of

25

interrogatories. First, I sent Mr. Lee a letter on March 5 that clarified and explained the

26

Defendants' responses to several of the interrogatories. Mr. Lee has not referenced that letter in

27

his moving papers and, consequently, the responses he attributes to the Defendants are not

28

accurate. Second, as I wrote in my March 5 letter, we agreed to review, again, Plaintiff's initial -2-

DECLARAnON OF MARK A. WASSER RE INABILITY TO PREPARE JOINT STATEMENT ON DISCOVERY DISPUTE

disclosures for privilege even though, as I wrote, that is a strange request. We did not find any 2 3

privileged documents. We remain unsure what Plaintiff wants. A copy of my March 5 letter is as

LJ-"'UH/H

7.

resources to res:ponding to

m01tlon to cornp{:1.

second set.

15

2008,

6

21

22 23 24 25

26 27 28 -3DECLARAnON OF MARK A. WASSER RE INABILITY TO PREPARE JOINT STATEMENT ON DISCOVERY DISPUTE

EXHIBIT A

10:

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WllSser e ::lIll-q'l't-O'tt'Kl

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Eugene D. Lee SB#: 236812 OF

2

LEE

3

4

6

20

I, Eugene D. Lee, declare as follows:

21

1.

22 23

I am counsel of record for Plaintiff. I have personal knowledge ofthe matters set forth

below 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 Defendants'

24

counsel, Mark Wasser, to prepare and execute a joint statement re discovery disagreement. On

25

Thursday, April 17, 2008, I sent Mr. Wasser a draft version of the Joint Statement re: Discovery

26

Disagreement (with all exhibits attached), requesting his input. I explained in the cover letter that the

27

draft was a work in progress and remained subject to change.

28

DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINTSTATEMENTre: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 1

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To date, I have not received any response from Mr. Wasser regarding the Joint :staten1ent.1 as AUacnme:nl

2

is a true

correct copy

Joint Statement

on delendlant

amolLl0n

tonego,mg is true

correct.

20 21

22

23 24 25

26 27 28

DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 2

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AITACHMENT A DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TO COMPEL RESPONSES TO INTERROGATORlES 3

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re:

20

COUNTY OF KERN, et at,

21 Defendants.

22 23 24

COMPEL RESPONSES INTERROGATORIES Date: April 28, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy 1300 18th St., Bakersfield, CA Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008

25

26 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 1

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

1

2008 heaJrmg on Plamtltt

2

m01Jon to cOlnp\~1 responses to mt,err'Dg::llol'les

20

pathologist for "unavailability" and refused to reinstate him upon his return to work on October 4,

21

On December 7, 2006, he was placed on involuntary administrative leave and restricted to his home

22

during working hours until May 1, 2007. Around May 1, 2007, Defendant informed Plaintiff of its

23

decision to either "buyout" the remaining term of his contract (due to expire on October 4, 2007) or

24

simply let the contract "run out". On October 4, 2007, Defendants did not renew Plaintiffs employment

25

contract.

26

Plaintiff's Complaint alleges whistleblower retaliation, disability discrimination, medical leave

27

interference and retaliation, defamation and deprivation of compensation and professional fees without

28

procedural due process. JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 2

1

Defendants contend that the dispute arose out of Plaintiffs tenure as a pathologist at Kern

lVA"'''''''',,'' Center.

deten,oraled to

20

Defendant's refusal to state a single fact responsive to this interrogatory despite numerous meet

21

confer efforts is a violation of discovery rules.

22

Moreover, as plaintiff has already communicated to defendant several times, contention

23

interrogatories are not objectionable on the ground that they encroach on attorney work product. See

24

Security Ins. Co. ofHartford v. Trustmark Ins. Co. (D CT 2003) 218 FRD 29,34; United States v.

25

Boyce, 148 F. Supp. 2d 1069, 1086 (S.D. Cal. 2001) ("Under Rule 33(c), a party can serve an

26

interrogatory the answer to which involves 'an opinion or contention that relates to fact or the

27

application of law to fact. '. The Government's contention interrogatories are not directed to issues of

28

'pure law' that would infringe on the attorney-work product doctrine as codified in Rule 26(b)(3). JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 3

1

Rather, they seek the facts upon which the Boyces' relied for their defense to the Forms 4340. As such, COl1tel1tlC)ll

lrltf'rr{)O~t{)r''''Q

were

permi~;sible and

KO'ice« were reQuin;d to res1PorJld to

"

3 l)eienldaJ11

h,rlhD?

asserts

states:

was

on

a vldleol:aOl;;d

State

20 21

22 23 24

DEFENDANT'S RESPONSE TO INTERROGATORY NO.2 The Fourth Affirmative Defense is a legal defense. Defendants object to it to the extent it seeks information protected under the attorney/client privilege and attorney work product privilege.

PLAINTIFF'S POSITION See "Plaintiff's Position" regarding Interrogatory No.1 above.

25

DEFENDANT'S POSITION

26 [INSERT HERE] 27

28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 4

I

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c.

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State

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INTERROGATORY NO.3 every

YOU

COfltel:1ld
s

3

6

20

by whom, at whose direction, etc., (ii) what physical confrontations Plaintiti allegedly

21

persons and with whom, (iv) to whom plaintiffwas "overbearing and dismissive", (v) which of

22

plaintiff's "interpersonal dealings" were "disrespectful and disagreeable", (vi) which of plaintiff's

23

"working relationships" "steadily eroded and unraveled", with whom, and what behavior by plaintiff

24

allegedly caused that.

25

Discovery in this action has been ongoing for eight months. Defendant has already completed a

26

(4-day long) deposition of plaintiff. Presumably defendant has had ample time to develop facts

27

supporting its affirmative defenses. Defendant's one paragraph response, devoid of any facts, is an

28

hide the ball from plaintiff and surprise plaintiff at trial. JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPELRESPONSES TO INTERROGATORIES 5

1

agreed in meet and confer to supplement its response accordingly. As has

2

states:

RESPONSE

NO.

20 21

INTERROGATORY NO.5

22

State each and every fact that YOU contend supports YOUR Seventh Affirmative Defense.

23

DEFENDANT'S RESPONSE TO INTERROGATORY NO.5 The Seventh Affirmative Defense is a legal defense. Defendants object to it to the extent it seeks

25

information protected under the attorney/client privilege and attorney work product privilege.

26

PLAINTIFF'S POSITION

27

See "Plaintiff's Position" regarding Interrogatory No.1 above.

28

DEFENDANT'S POSITION

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO 6

1

[INSERT HERE]

2 contend sunnorts

7

S 20

[INSERT HERE]

21 H. 22

23

INTERROGATORY NO. 46

IDENTIFY each DOCUMENT or portion thereof contained in PLAINTIFF's FRCP Rule 26 Initial Disclosures that YOU contend is privileged; state the nature of each privilege asserted; and state

24 in detail the factual bases for each such asserted privilege. 25 DEFENDANT'S RESPONSE TO INTERROGATORY NO. 46 26

We do not understand this Interrogatory and are, consequently, unable to answer it. What is

27 privileged about the documents Plaintiff produced?

28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 7

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PLAINTIFF'S POSITION states:

6

20 I. 21

22

23

INTERROGATORY NO. 47

IDENTIFY each DOCUMENT or portion thereof contained

YOUR FRep Rule 26 Initial

Disclosures that YOU contend is privileged; state the nature of each privilege asserted; and state in detail the factual bases for each such asserted privilege.

24 DEFENDANT'S RESPONSE TO INTERROGATORY NO. 47 25

We do not understand this Interrogatory and are, consequently, unable to answer it. What is 26 privileged about the documents Plaintiff produced? 27 PLAINTIFF'S POSITION

28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 8

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See "Plaintiff's Position" regarding Interrogatory No. 46 above.

4

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an answer to an del00S1t!<)nS or

37 states:

20 21

22 23

24

a party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if ... (iii) a party fails to answer an interrogatory submitted under Rule 33 .... For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. [emphasis added]. By giving an evasive and incomplete response to this interrogatory which fails to state any facts, defendant has engaged in behavior which this court is required to sanction pursuant to Rule 37.

25

DEFENDANT'S POSITION

26 [INSERT HERE]

27 28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 9

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CONCLl1SION

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4

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essence to ensure plamtllit

20

21 22

Dated: April_, 2008

LAW OFFICES OF MARK A. WASSER

23 24

25

26 27

By:. - . - - - . - . . , . - - - - - - - - - - - - - - Mark A. Wasser, Attorney for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND,TONI SMITH, AND WILLIAM ROY

28

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 10

1

Dated:

2008

LAW OFFICE OF EUGENE LEE

20 21

22 23 24 25

26 27 28

JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL RESPONSES TO INTERROGATORIES 11

1

Eugene D. Lee SB#: 236812 OF

LU'J!:'l"!:'

4

INTERROGATORIES

20 COUNTY OF KERN, et aI.,

Date: April 28, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy 1300 18th S1., Bakersfield, CA

21 Defendants.

22 23

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

24

25 26 27

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EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT re: INTERROGATORIES

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26 27 28

EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT re: INTERROGATORIES

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6

Date:

20

I, Eugene D. Lee, declare as follows:

21

1.

22 23

I am counsel of record for Plaintiff. I have personal knowledge ofthe matters set forth

below 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 Defendants'

24

counsel, Mark Wasser, to prepare and execute a joint statement re discovery disagreement. On

25

Thursday, April 17, 2008, I sent Mr. Wasser a draft version of the Joint Statement re: Discovery

26

Disagreement (with all exhibits attached), requesting his input. I explained in the cover letter that the

27

draft was a work in progress and remained subject to change.

28

DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ 1

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To date, I have not received any response from Mr. Wasser regarding the j-'UlID:flt:lI

hereto as Atizclun,:;nt

1£

a

correct copy

Statement

3

20 Executed on: April 23, 2008 21

22 23

/s/ Eugene D. Lee

24

EUGENE D. LEE Declarant

25

26 27 28

DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ 2

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20 21 22

23 24 25

26 27 28

ATTACHMENT A DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS' COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ 3

20

COUNTY OF KERN, et al., 21

DISAGREEMENT re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY SANCTIONS

Defendants. 22

23

Date: April 28, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtlroo:m1 1300 18th St., Bakersfield, CA

24 25

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

26 27

28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 1

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statement re: discovery disagreement is submitted pursuant to Local Rule 37-25 1(a) in

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II.

on plamtllt's

NATURE

mCltl0n

to conlpel recornlenmg

THE CASE

20 21

Plaintiff David F. Jadwin, D.O., FC.A.

former Chair of Pathology at Kern Medical Center

22

("KMC") and senior pathologist from October 24, 2000 to October 4, 2007, filed a Complaint with this

23

Court on January 6, 2007. Plaintiff contends that various defendants retaliated against and defamed him

24

for reporting his concerns about patient care quality issues and regulatory violations at KMC. As a

25

result, Plaintiffwas forced to take medical and recuperative leave for disabling chronic clinical

26

depression in early 2006. While Plaintiff was on leave, Defendants demoted him in June 2006 to a staff

27

pathologist for 'unavailability" and refused to reinstate him upon his return to work on October 4, 2006.

28

On December 7, 2006, he was placed on involuntary administrative leave and restricted to his home JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRlCIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 2

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during working hours until May 1,2007. Around May 1,2007, Defendant informed Plaintiff of its

2

deClSlC)fl to

out"

rernalnulg term

contract

to

on

()c1lob~r 4,

A.

20

COJlci~;ely in a nOllarguluell!al;ive deJ)on.ent not to answer necessary a privilege, to a hml1ta1l10n ordered by the court, or to present a motion under Rule 30(d)(3). [emphasis added].

21 Counsel may not use "speaking objections" to "coach" the deponent. For instance, counsel may 22

not interrupt mid-question to ask for a "clarification", or in the course of objecting attempt to suggest

23 answers or warn the witness. See Hall v. Clifton Precision, Inc. (E.D. Penn. 1993) 150 FRD 525,530. 24 Rule 30(c)(2) renders "relevancy" objections meaningless in most depositions. The deponent 25 must even answer questions calling for blatantly irrelevant information "subject to the objection." FRCP

26 30(c)(2); International Union ofElec., Radio & Machinery Workers, AFL----CIO v. Westinghouse Elec. 27

Corp. (D. DC 1981) 91 FRD 277, 278. 28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 3

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space of just 68 minutes, from 11 :30 a.m. to 2:05 p.m. (excluding a lunch break from 12:

:29

deten!;e

C~Jurlsel

mt1erpose,d no

20

as later proven in the deposition. Ms. Perez not only was able to estimate how many people there were

21

in KMC's payroll department, of which she is a member, she gave the exact number: six (including Ms.

22

Perez). Perez Deposition, 84:20-25. She testified that KMC's entire HR department (including the 6-

23

person payroll department) is housed in a single trailer that sits on the KMC campus. Perez Deposition,

24

84:4-10. She also recited the names ofthe other five payroll employees with ease:

25

In the payroll department we have an employee named Bobbi Gains. We have Armida

26

Smith. We have April Smith. Myself. Angela Conger. And Christine Tetimas. Perez Deposition, 88:9-12.

27

Later, Mr. Wasser launched into an extended and improper harangue criticizing the relevance of

28

plaintiff's line of questioning that had impeached Ms. Perez: JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 4

10: narK wasser

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20

stating: "She said it could have been, but she doesn't know." Perez Deposition, 90:10-20. Ms. Perez

21

never said that "she doesn't know". None of Mr. Wasser's statements on the record were stating

22

objections or instructions not to answer on privilege grounds. They had no proper purpose and were

23

intended to coach the deponent how specifically to respond to plaintiff's questions and to frustrate

24

plaintiff's examination of the witness.

25

Plaintiff's counsel asked defense counsel one last time to stop coaching the witness and

26

obstructing the deposition, stating "Mark, I'm going to have to stop this depo if you continue with this.

27

What objections are you stating, Mark? You're not even stating any objections." Defense counsel

28

responded "Your questions don't make sense" -an improper objection - and later "I'll object the way I JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF 5 PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY

want." Wasser

Plamtlt1 was

3

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Because

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can

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to

costs

20 depositions and filing the inevitable motions that follow. By comparison, defendant County of Kern has 21 ample resources at its disposal to obstruct plaintiff's discovery in this action, and has done so,

22 prejudicing plaintiff significantly.

23 Plaintiff asks this Court for an order reconvening of the deposition of Patricia Perez, as well as a

24 protective order against further obstructive behavior by Mr. Wasser (which has been characteristic at 25 depositions thus far) at future depositions, plaintiff's attorney fees and costs associated with the

26 adjourned depositon and this motion, and any other remedy which the court deems proper and just. 27

28 JOINT STATEMENTre: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRlCIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 6

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1. Defendants' Position

2

3

en·tIW~d

to m2lklrlg or 0plposmg

was sut>stantl,a.lI

6

to reconvene

20

seeks reimbursement of the $529.40 the reporter fee and $179.86 reporter hotel charge as well as

21

$189.36 hotel charges for plaintiff. Finally, plaintiff requests whatever other sanctions this court deems

22

proper and just. In total, Plaintiff seeks sanctions of at least $4,718. 76.

23 24

Respectfully submitted,

25 26 Dated: April _' 2008

LAW OFFICES OF MARK A. WASSER

27 28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 7

1

2

20 21 22

23 24 25

26 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 8

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COUNTY OF KERN, et aI.,

Date: April 28, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy 1300 18th S1., Bakersfield, CA

21 Defendants.

22 23 24

11

--1

[;omil"ocyml

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

25 EXHIBIT 1:

Excerpted pages from Transcript of Plaintiff's Deposition of Patricia Perez on

26 February 28,2008 27 EXHIBIT 2:

Declaration of Eugene Lee in Support of Motion

28 EXHIBITS TO JOINT STATEMENTre: DISCOVERY DISAGREEMENT re: DEPOSITION OF PATRICIA PEREZ 1

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EXHIBIT B

Page 1 of 3

Mark Wasser From:

Mark Wasser [[email protected]]

Sent:

Thursday, April 03, 2008 5:06 PM

To:

'[email protected]'

Cc:

Assistant to Mark A. Wasser ([email protected])

Sut>jec:t: RE: Depos

understand 8:00 start a.m. start time for Dr. Kolb's deposition. That is fine.

to

a

Sent: Thursday, 2008 1:06 PM To: [email protected] Sut)jec:t: RE:

FFIC

OF

EMPLOYMENT 555

LAW

WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992 3299 Fax: (213)596-0487 E - ill a i I: elel'@lLQELS.9111 We b sit e: lYWldDELG.om B log: www.CaLaborLaw.com

This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

California Labor & Employment Law Blog

4/21/2008

Page 2 of3

From: Mark Wasser [mailto:[email protected]]

Sent: Thursday, April 03, 2008 12:24 PM To: [email protected] Cc: Assistant to Mark A. Wasser

Subject: RE: Depos

The time slots you propose for and Kolb are 10 hours TO ENSURE WE GET OUR 7 HOURS ON THE RECORD. MANY OF PAST DEPOS HAVE BEEN CUT SHORT UNEXPECTEDLY. BREAKS CUT TIME. DEPOS NOT GO BEYOND 7 HOURS THE RECORD. propos;ing these LA.

Bakersfield?

says

available

With regard to Roy, we have called him and his lawyer several times but have not been able to confirm anything THOUGHT YOU WERE HIS ATTORNEY OF RECORD. WHO IS HIS ATTORNEY? PLEASE PROVIDE ME WITH HIS CONTACT INFO IF NEED TO SERVE THE DEPO NOTICE ON Mark

Mark, If that's the case, please disregard the previously proposed depo schedule for the week of April 12. We'd now like to schedule depos as follows for April 16 to 19: Day 1 (4/16): 8am - 2pm: Gilbert Martinez 2pm - 7pm: Vangie Gallegos Day 2 (4/17): 8am - 6pm: William Roy Day 3 (4/18): 8am - 6pm: Albert McBride

4/21/2008

Page 3 of3

2pm

7pm: Arlene Ramos-Aninion

Day 4 (4/19): Sam 6pm: Marv Kolb

California Labor & Employment Law Blog

From:

Sent:

\f\Ic,rlnt=>c,i::l\l

Lee Cc: Assistant to

Wasser

am told that Kolb is available for 9 at at at Los Anflt=>I~'<: International This information was to have not had any direct contact with Kolb and do not know any more. If you have questions, I will do my best to answer them. Mark

Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405

E-mail: m.wa.$.$eI@maIIs'!'ias$~L~Qm

4/21/2008

Page 1 of3

Mark Wasser From:

Mark Wasser [[email protected]]

Sent:

Tuesday, April 08, 2008 1:40 PM

To:

'elee@LOELcom'

Cc:

Assistant to Mark A. Wasser ([email protected]); Karen Barnes ([email protected].

Subject: RE: Depos

is available on 5. That is not one of the dates it is date he th has for awhile. We could take his deposition on the 15 , Gilbert Martinez and Vangie Gallegos on the 16 th , and 1

To: mV\'as~;er~~markwa~;ser Subject: RE: Depos

F

F

EMPLOYMENT 555

LAW

WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - ill a i I: gI9.G@LQEJ.,<;QtI] Web sit e: 'rYww,LOELsmu

Blog

:'rYWw,CaLilllQILaw,~Qm

This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

California Labor & Employment Law Blog

From: Mark Wasser [mailto:[email protected]] Sent: Thursday, April 03, 2008 12:24 PM

4/21/2008

Page 2 of3

To: [email protected] Cc: Assistant to Mark A. Wasser Subject: RE: Depos Gene, propose for and Kolb are 10 hours long. Why? TO ENSURE WE GET OUR 7 HOURS ON THE n.-r-r"\,..."n MANY OF PAST DEPOS HAVE BEEN CUT SHORT UNEXPECTEDLY. BREAKS ALSO CUT INTO OUR TIME. DEPOS WILL NOT GO BEYOND 7 HOURS ON THE RECORD. Bakersfield? Kolb says he is

do not when Kolb"s will work. PLEASE LET ME KNOW.

available

can start.

YES. WE'LL

do

WITH HIS CONTACT INFO IF I NEED TO SERVE THE DEPO NOTICE ON HIM.

If that's the case, please disregard the previously proposed depo schedule for the week of April 12. We'd now like to schedule depos as follows for April 16 to 19: Day 1 (4/16): 8am - 2pm: Gilbert Martinez 2pm 7pm: Vangie Gallegos Day 2 (4/17): 8am 6pm: William Roy Day 3 (4/18): 8am - 6pm: Albert McBride 2pm - 7pm: Arlene Ramos-Aninion

4/21/2008

Page 3 of3

Day 4 (4/19): Sam - 6pm: Marv Kolb Sincerely, Lee

from: Mark Wasser Sent: Wednesday, April 02, 2008 2:08 PM To:

Lee

Cc: Assistant to Mark Sui)je(:t: Kolb

Wasser

Mark

law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: ill'lf'\,lcl$$er@markwi;lSSeLGQill

4/21/2008

Page 1 of 4

Mark Wasser From:

Mark Wasser [[email protected]]

Sent:

Tuesday, April 08, 2008 3:17 PM

To:

'[email protected]'

Cc:

Assistant to Mark A. Wasser ([email protected])

Sul)jec:t: RE: Depos

and Arlene is available We could set her for Tuesday but assume you want the whole day for Roy.

T S., S OS NGELES, C 90 Tel: (213)992-3299 Fax: (213)596-0487 E - ill a i I: ~t~~@lDEL,gQm Web sit e: 't\i1\i1yJdQE.LsQm B log: www's:;
can squeeze

°

This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

California Labor & Employment Law Blog

From: Mark Wasser [mailto:[email protected]] Sent: Tuesday, April 08, 2008 1:40 PM To: [email protected] Cc: Assistant to Mark A. Wasser; Karen Barnes

4/21/2008

Page 2 of 4

Subject: RE: Depos Gene, Dr. Roy is available on Tuesday, April 15. That is not one of the dates you suggested but it is the only date he has for awhile. We could take his deposition on the 15th , Gilbert Martinez and Vangie Gallegos on the 16th , and Dr. Kolb on the 19th in Los Angeles. am not available on the 17th and 18th and neither is Dr. McBride. The best at his schedule again. What he can do is 3 hours on the 8th We told him we need more time and he is do you think?

Lee

FFI E 555

F PLOYME

WES

00

S

This message is sent a law and may contain information that is or confidential. received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

California Labor & Employment Law 810g

From: Mark Wasser [mailto:[email protected]]

Sent: Thursday, April 03, 2008 12:24 PM To: [email protected] Cc: Assistant to Mark A. Wasser Subject: RE: Depos Gene, The time slots you propose for Roy and Kolb are 10 hours long. Why? TO ENSURE WE GET OUR 7 HOURS ON THE RECORD. MANY OF THE PAST DEPOS HAVE BEEN CUT SHORT UNEXPECTEDLY. BREAKS ALSO CUT INTO OUR TIME. DEPOS WILL NOT GO BEYOND 7 HOURS ON THE RECORD.

4/21/2008

Page 3 of 4

Are you proposing these for the Holiday Inn in Bakersfield? Kolb says he is only available in LA YES. WE'LL DEPOSE KOLB IN LA I do not know when Kolb"s flight will arrive in LAX but I will find out how early we can start. I do not know if 8:00 will work. PLEASE LET ME KNOW. will check with the others and let you know their availability. OK. am attending a conference in Monterey on the 17 th , 18 th and 19th but be able to adjust that 7 - 4/19. PLEASE CONFIRM THAT THIS IS POSSIBLE. DAYS ON are

Sent:

a little. NEED

a

2008

To: [email protected] Cc: 'Assistant to Mark Wasser' SUlbjE!ct: Depos

Day 2 (4/17): 8am - 6pm: William Roy Day 3 (4/18): 8am - 6pm: Albert McBride 2pm - 7pm: Arlene Ramos-Aninion Day 4 (4/19): 8am - 6pm: Marv Kolb Sincerely, Gene Lee

-------------------------------------------------------------------4/21/2008

Page 4 of 4

AW

OFFICE

OF

EUGENE

EMPLOYMENT

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E-mail: c!ee(iiiLOELcom Web s i e :~~w~;;iQEL.Q~;;;] Bog:

This message sent transmission

w.'.Yw.CaLaborLaw.com

contain information that is DrrvIIE10€!d or confidential. sender e-mail delete message and

received attachments.

California Labor & Employment Law Blog

Gene, am told that Dr. Kolb is available for on 9 at 0:00 at the Hilton Hotel at Los J-lInflPlf'S International Airport. This information was relayed to my have not had any direct contact with Kolb and do not know any more. If you have questions, I will do my best to answer them.

Office: 916-444-6400 Fax: 916-444-6405 E-mail: mw,:'tsseJ@m9fKW9SSeLQQill

4/2112008

EXHIBIT C

•

Law Offices of

MARKA. WASSER 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 [email protected]

•

our tel,eptl0TIle cl)nlere:ncles sup'plemeintal resj::>onses to Plaimtij,r

attlrm.ati'7e C1letense states Supplemental Complaint, were furtherance peer rp'l1p"XT nlal1tltemulce quality of care standards, discharge of official duties and performed in the course of official proceedings authorized by law and that, as such, they are privileged under the referenced statutes. In drafting the third affirmative defense, the Defendants had in mind only the facts alleged in the Second Supplemental Complaint. The legal analysis and reasoning why the Defendants believe their actions are privileged is protected under attorney-work product and attorney-client privilege doctrines but the facts have been disclosed. The same is true of the fourth, sixth, seventh, eighth and ninth affirmative defenses. They each reference the factual allegations set forth in the Second Supplemental Complaint. In interposing those defenses the defendants had no facts in mind other than those set forth in the Second Supplemental Complaint.

Admitted to Practice in California and Nevada

Eugene Lee

5,2008 Page 2

• are no adlC11tJlonaJ

• to dis(:;los:e.

Plaintiff s attempt to bootstrap the persons identified in Defendants' disclosures into a list of trial witnesses and then demand employment history information on all of them is burdensome and oppressive and Defendants will not respond further to this interrogatory for that reason. At your request, Defendants will produce all those individuals for deposition and you are free to inquire as to their employment history. As soon as Defendants identify any trial witnesses, we will share that list with you.

Interrogatorv Number 28. It is a small point but the Defendants did not request that Plaintiff narrow this interrogatory from "medical staff' to "core physicians". The Defendants objected to the

Eugene Lee March 5, 2008 Page 3

•

• mtiern)£2ltoI"Y to naITO\vinQ:. to recon:sldl:r our respOIlse.

new selected because it was comparable to that of a core pathologist. There is no explanation required and defendants wiH not respond further to this interrogatory.

AU' ,. . ." ' .

Interrogatory Numbers 46 and 47. Defendants prepared a privilege log that accompanied their initial disclosures. Documents the Defendants believe are privileged are identified in the privilege log. You have asked us to review Plaintiffs Initial Disclosures and let you know if we think any documents Plaintiff disclosed are privileged. As you note, we have discussed it twice. You describe this request as a "housekeeping" issue and that you simply want to know if Defendants intend to object to the admissibility of any documents contained in your Initial Disclosures on the basis of privilege. This stiH strikes me as a strange request but I will review your Initial Disclosures and let you know if we believe any of the documents you disclosed are privileged.

Eugene Lee March 5, 2008 4

•

• to