104 Mpo Perez Depo - Dfj Declaration Re Joint Statement

Case 1:07-cv-00026-OWW-TAG

Document 104

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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected]

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

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Filed 04/23/2008

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

10 v. 11

COUNTY OF KERN, et al., 12 Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG 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

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

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

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Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a joint statement re discovery disagreement.

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I, Eugene D. Lee, declare as follows:

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1.

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

below and I could and would competently testify thereto if called as a witness in this matter. 2.

On February 28, 2008, Plaintiff conducted the deposition in Bakersfield, CA, of Patricia

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Perez, an employee in the HR department at Kern Medical Center, a hospital owned and operated by

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defendant County of Kern. The deposition commenced at 10:40 a.m. In total, the parties were on the

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record for only 93 minutes before plaintiff was forced to adjourn the deposition prematurely at 2:06 p.m.

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During a 68-minute period of time on the record, defense counsel Mark Wasser engaged in obstructive

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

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behavior, including speaking objections, witness coaching, responding on deponent’s behalf to questions

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asked, etc. Defendant engaged in this behavior despite repeated warnings by plaintiff’s counsel to stop.

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Plaintiff seeks to recommence the deposition of Ms. Perez, as well as a protective order against further

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obstructive behavior by Defendant (which has been characteristic at depositions thus far) at future

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depositions, plaintiff’s attorney fees and costs associated with the adjourned depositon and this motion,

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and any other remedy which the court deems proper and just.

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3.

Briefing regarding Plaintiff’s above-referenced contentions is contained in the draft Joint

Statement, attached hereto as Attachment A. 4.

Pursuant to Local Rule 37-251, I attempted to secure the cooperation of Defendants’

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

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Thursday, April 17, 2008, I both mailed (via certified mail with return receipt requested) and faxed

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Defendant a draft version of the Joint Statement re: Discovery Disagreement (with all exhibits attached),

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requesting his input. I explained in the cover letter that the draft was a work in progress and remained

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subject to change. Attached hereto as Attachment A is a true and correct copy of the draft Joint

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Statement which I had prepared.

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5.

In my rush, I unintentionally included the draft Declaration of Inability to Secure

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Cooperation of Defendants’ Counsel which I had prepared ahead of time and was future-dated to April

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23 (today’s date) in the fax to defense counsel. By accusing me of making representations about defense

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counsel’s refusal to cooperate that were “both misleading and false”, defense counsel makes much ado

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over nothing. (Doc. 102, 3:17-20). A simple email exchange would have cleared up this confusion over

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the accidentally included document.

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6.

I sent the draft joint statement to Defendant by both mail and fax a full week prior to

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today in the expectation that he would review it and provide comments to me via email. Most of

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counsels’ communications have taken the form of writing rather than phone calls, and this meet and

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confer over the joint statement was no exception. To date, I did not receive any response from

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Defendant regarding the draft Joint Statement I had sent him a week ago, other than to receive electronic

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notification that he had filed the Declaration of Mark A. Wasser re Inability to Prepare Joint Statement

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

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on Discovery Dispute (Doc. 102), accusing me of failing to “attempt to discuss his proposed joint

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statement with me”. (Doc. 102, 2:27-28).

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7.

Despite Defendant’s accusations to the contrary (Doc. 102, 3:21-26), I did not know that

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defense counsel was unavailable to accept service of filings and documents on April 17 and 18 and

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never received a Notice of Unavailability to that effect. Defense counsel had told me in emails that for

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deposition scheduling purposes only he would not be able to attend full days on April 17 and 18. He

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never once notified me that his office, which includes his assistant Ms. Amy Remly, was not receiving

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faxes, emails and mail during those days. I also had no knowledge of Defendant’s speech and, frankly,

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fail to see its relevance. Presumably, Defendant was aware that the deadline to file the joint statement

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for the instant motion to compel was today and planned his time accordingly as any responsible attorney

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would have.

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8.

Defendant insinuates that I have acted improperly in not providing the deposition

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videotape to him (Doc. 102, 2:20-3:2). I attempted to videotape the deposition myself, rather than hiring

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a videographer, as a cost-saving measure. Unfortunately, I am not proficient at taping and processing

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video. As a result, during the tape-to-hard drive transfer process, the file became “locked” and I have yet

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to figure out how to access it. I contacted www.hollywooddatarecovery.com and they informed me that

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the ballpark estimate for the cost to repair and retrieve the file could be up to $1,000. I relayed this

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information to Defendant in my email to him of April 2, 2008 (Doc. 102-4, 5) and asked how he wished

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to proceed as Plaintiff does not view such a significant expenditure as worthwhile for its own purposes.

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Defendant never responded and now insinuates I have somehow acted improperly.

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9.

As for Defendant’s accusations against me which make heavy use of adjectives such as

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“sarcastic”, “abusive”, “intimidating”, “hostile”, and “repetitious” and accuse me of “badgering”,

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“sarcastically asking”, etc. (Doc. 102), my response is that the deposition transcript speaks for itself. The

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transcript contains not one indication that I engaged in any inappropriate misconduct. There is not a

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single objection from defendant that my questions were argumentative. Had I engaged in anything close

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to the misconduct Defendant accuses me of, Defendant would have almost certainly objected and made

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a record of it. Defendant has never been shy about expressing himself on the record and it is in fact

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

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Defendant’s penchant for engaging in long colloquoys and improper speaking objections on the record

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that is the subject of this motion for protective order against Defendant which plaintiff presently brings.

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10.

In any event, had I engaged in anything close to the misconduct Defendant accuses me

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of, his only proper recourse would have been to adjourn the deposition and seek a motion for protective

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order, as plaintiff is currently doing. The correct response is not self-help, as Defendant insinuates he

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engaged in.

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I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

10 11 Executed on: April 23, 2008 12 13 14

/s/ Eugene D. Lee

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EUGENE D. LEE Declarant

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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 4

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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 5

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Document 104

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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected]

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

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Mark A. Wasser CA SB #06160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]

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Filed 04/23/2008

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Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected]

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Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

19 v. 20

COUNTY OF KERN, et al., 21

Civil Action No. 1:07-cv-00026 OWW TAG JOINT STATEMENT re: DISCOVERY 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 Courtroom 1300 18th St., Bakersfield, CA

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

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advance of the April 28, 2008 hearing on plaintiff’s motion to compel reconvening of the deposition of

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Patricia Perez, as well as a protective order against further obstructive behavior by Defendant (which has

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been characteristic at depositions thus far) at future depositions, plaintiff’s attorney fees and costs

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associated with the adjourned depositon and this motion, and any other remedy which the court deems

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proper and just.

7 I.

DETAILS OF THE PARTIES’ DISCOVERY CONFERENCES

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On February 28, 2008, plaintiff conducted the deposition in Bakersfield, CA, of Patricia Perez,

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an employee in the HR department at Kern Medical Center, a hospital owned and operated by defendant

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County of Kern (“Deposition”). The Deposition commenced at 11:04 a.m. However, plaintiff was forced

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to adjourn the Deposition prematurely at 2:06 p.m. after a 68-minute time period during which defense

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counsel Mark Wasser engaged in obstructive behavior, including speaking objections, witness coaching,

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responding on deponent’s behalf to questions asked, etc. It should be noted that the parties at the

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deposition were on the record for only 93 minutes.

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Plaintiff’s counsel twice attempted to meet and confer in good faith with Defendant at the

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Deposition, stating on the record that his conduct was obstructive and asking him to refrain. Defendant

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refused, continuing to engage in this behavior despite plaintiff’s counsel’s requests to stop.

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A STATEMENT OF THE NATURE OF THE CASE AND FACTUAL DISPUTES

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

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

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

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

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

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

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

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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 PATRICIA 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

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decision to either “buy out” the remaining term of his contract (due to expire on October 4, 2007) or

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simply let the contract “run out”. On October 4, 2007, Defendants did not renew Plaintiff’s employment

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contract.

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

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

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procedural due process.

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Defendants contend that the dispute arose out of Plaintiff’s tenure as a pathologist at Kern

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Medical Center. Plaintiff’s relationship with other members of the medical staff deteriorated to the point

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of intimidation, hostility and antagonism. Defendants contend, to the extent that any hostile work

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environment existed, it was caused by Plaintiff.

12 III.

THE CONTENTION OF EACH PARTY AS TO EACH CONTESTED ISSUE

A.

Defense Counsel’s Conduct at the Deposition Was Obstructive

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1.

Plaintiff’s Position

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Rule 30(c)(2) of the Federal Rules of Civil Procedure states:

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An objection at the time of the examination--whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition--must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). [emphasis added].

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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 of Elec., 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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The parties were on the record for a total of only 93 minutes before plaintiff adjourned. During

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68 of those 93 minutes, from 11:30 a.m. to 2:05 p.m. (excluding a lunch break from 12:02 p.m. to 1:29

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p.m.), defense counsel interposed no less than 33 obstructing statements. Defendant’s 33 statements

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included 1 inappropriate assertion of irrelevancy, 8 statements suggesting answers to the deponent, and 2

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statements instructing the deponent not to answer on invalid grounds. Upon reviewing the entire

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transcript, plaintiff is unable to identify a single instance where defense counsel actually interposed a

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proper objection of any kind.

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Defense counsel coached the deponent to give misleading answers. When plaintiff’s counsel

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asked Ms. Perez for her estimate of how many people were in KMC’s payroll department, she answered

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she didn’t know (Ms. Perez later testified that she is a member of KMC’s 6-person payroll department).

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Plaintiff’s counsel then asked her for her estimate. Deponent began to answer, “My estimate –“, but

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Defendant immediately cut her off and insisted: “If she doesn’t know, she doesn’t know”. Ms. Perez,

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having been told how to answer by Defendant, then changed her answer to “I don’t know.” Perez

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Deposition, 28:23 – 29:14. When plaintiff’s counsel asked again for deponent’s estimate, before

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deponent could answer, Defendant interjected: “She can’t do that. She doesn’t know. Move on.”

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[emphasis added]. Ms. Perez then dutifully testified she had no basis for knowing how many people

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there are in KMC’s payroll department. Perez Deposition, 29:16 – 30:13. None of Defendant’s

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statements in this regard stated any objections or instructions not to answer on privilege grounds. They

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had no proper purpose whatsoever and were intended to coach the witness how to respond.

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As Defendant well knew, his assertion that “She can’t do that. She doesn’t know” was wrong

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

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

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

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

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

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In the payroll department we have an employee named Bobbi Gains. We have Armida Smith. We have April Smith. Myself. Angela Conger. And Christine Tetimas. Perez Deposition, 88:9-12.

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Later, Defendant launched into an extended and improper harangue criticizing the relevance of

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JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 4

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plaintiff’s line of questioning that had impeached Ms. Perez:

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Well, we could debate what it has to do with the lawsuit, counsel. You might explain to us what the size of the human resources office has to do with Dr. Jadwin’s claims, but we’re not even going there because I know you can’t….So we’re going to spend a lot of time. Ask her how big the building is. Ask her. I mean, take your time. Perez Deposition, 86:19-87:2.

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During this harangue, defense counsel failed to state any objections or instructions to the witness not to

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answer. Defendant’s statements therefore had no proper purpose other than to frustrate plaintiff’s

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examination of the witness.

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Defendant’s coaching of the witness continued. When plaintiff’s counsel later asked Ms. Perez

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for her estimate of how many times she has had to calculate county leave for a county employee,

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Defendant immediately interjected “If she doesn’t remember, that’s the answer.” [emphasis added].

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Ms. Perez, having been told what the answer was, then said: “I can’t recall unfortunately.” Perez

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Deposition, 67:3-24.

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Plaintiff’s counsel several times asked defense counsel to stop obstructing the deposition. “Mark,

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you’re not even objecting…. Stop with the speaking objections, please. Okay. If you’ve got an

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objection, just state it.” Perez Deposition, 88:18-22. Defendant ignored the requests, however.

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When Plaintiff’s counsel then asked Ms. Perez whether to her knowledge or understanding it

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would have been one of three certain members of the payroll department who would have processed

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plaintiff’s leave of absence request form in 2006, the deponent answered “It could have been one of

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those.” Defendant then suggested a further response to the witness: “she didn’t work there then.” Ms.

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Perez followed suit, saying, “I didn’t.” Defendant then continued putting words in the witness’s mouth,

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

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never said that “she doesn’t know”. None of Defendant’s statements on the record were stating

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

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

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plaintiff’s examination of the witness.

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

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

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What objections are you stating, Mark? You’re not even stating any objections.” Defense counsel JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 5

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responded “Your questions don’t make sense” –an improper objection – and later “I’ll object the way I

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want.”

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Frustrated by Defendant from conducting an orderly deposition of Ms. Perez, Plaintiff was

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forced to adjourn the deposition to bring this motion. Perez Deposition, 91:1-9. Plaintiff’s counsel

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stated:

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Well, Mark, then we're going to adjourn this deposition right now because you are interfering, and you are coaching, and you're making improper speaking objections, and I will adjourn this right now. Perez Deposition, 91:10-14.

8 Defendants will no doubt allege some imagined misconduct by Plaintiff so as to justify their own 9 conduct. But, Defendant, who has not thus far in this action been shy about expressing himself on the 10 record or making personal attacks on plaintiff’s counsel, never once stated at Ms. Perez’s deposition that 11 plaintiff’s counsel was acting inappropriately. In any case, defendants’ proper recourse would have been 12 to suspend the deposition and seek a protective order under Rule 30(d)(3)(A), not to engage in “self13 help” by obstructing plaintiff’s questioning and coaching the witness. 14 Because Defendant’s conduct has frustrated a “fair examination” and unreasonably prolonged 15 the examination, plaintiff requests that this Court impose an “appropriate sanction” on the persons 16 responsible. FRCP 30(d)(2); see Van Pilsum v. Iowa State Univ. of Science & Technology (S.D. Iowa 17 1993) 152 FRD 179, 180. Such sanctions may include costs resulting from the obstructive tactics, 18 including the opposing party's attorney fees and expenses in adjourning the deposition, obtaining a court 19 order, etc. FRCP 30(d)(2); Adv. Comm. Notes to 1993 Amendments to former FRCP 30(d)(3). 20 Plaintiff is an individual who can ill afford to bear the costs of defendant’s obstructive tactics at 21 depositions and filing the inevitable motions that follow. By comparison, defendant County of Kern has 22 ample resources at its disposal to obstruct plaintiff’s discovery in this action, and has done so, 23 prejudicing plaintiff significantly. 24 Plaintiff asks this Court for an order reconvening the deposition of Patricia Perez, as well as a 25 protective order against further obstructive behavior by Defendant (which has been characteristic at 26 depositions thus far) at future depositions, plaintiff’s attorney fees and costs associated with the 27 adjourned depositon and this motion, and any other remedy which the court deems proper and just. 28 JOINT STATEMENT re: DISCOVERY DISPUTE re: MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY 6

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1. Defendants’ Position [INSERT HERE]

3 IV.

CONCLUSION

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The party who prevails on a motion to compel is entitled to his or her expenses, including

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reasonable attorney fees, unless the losing party was substantially justified in making or opposing the

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motion (or other circumstances make such an award unjust). FRCP 37(a)(5); H. K. Porter Co., Inc. v.

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Goodyear Tire & Rubber Co. (6th Cir. 1976) 536 F2d 1115, 1124–1125.

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Moreover, sanctions to be imposed on party who has obstructed a deposition may include costs

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resulting from the obstructive tactics, including the opposing party's attorney fees and expenses in

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adjourning the deposition, obtaining a court order, etc. FRCP 30(d)(2); Adv. Comm. Notes to 1993

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Amendments to former FRCP 30(d)(3).

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Defense counsel’s conduct at plaintiff’s deposition of Ms. Perez was obstructing and effectively

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frustrated plaintiff’s examination of the deponent. Plaintiff seeks to reconvene the deposition of Ms.

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Perez. Plaintiff further seeks a protective order against further obstructive behavior by Defendant (which

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has been characteristic at many of the depositions thus far) at future depositions. Plaintiff further seeks

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attorney fees in the amount of $4,000 in consideration of 10 of the hours which plaintiff has spent in

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connection with the adjourned deposition and in connection with meeting and conferring and preparing

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this motion and anticipates spending attending the hearing on this motion. Plaintiff further seeks

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reimbursement of the $529.40 the reporter fee and $179.86 reporter hotel charge as well as the $189.36

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

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and just. In total, Plaintiff seeks sanctions of at least $4,718.76.

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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

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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

1 2 3 4 5 Dated: April___, 2008

LAW OFFICE OF EUGENE LEE

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By:__________________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.

10 11 12 13 14 15 16 17 18 19 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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Document 104-2

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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected]

5

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

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Mark A. Wasser CA SB #06160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]

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Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected]

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Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

19 v. 20

Civil Action No. 1:07-cv-00026 OWW TAG EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT re: DEPOSITION OF PATRICIA PEREZ

COUNTY OF KERN, et al., 21 Defendants. 22

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

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

24 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 STATEMENT re: DISCOVERY DISAGREEMENT re: DEPOSITION OF PATRICIA PEREZ 1

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

Page 2 of 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

EXHIBIT 1:

27

Excerpted pages from Transcript of Plaintiff’s Deposition of

28

Patricia Perez on February 28, 2008 EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT re: DEPOSITION OF PATRICIA PEREZ 1

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

Page 3 of 29

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ______________ DAVID F. JADWIN, D.O., Plaintiff, vs. COUNTY OF KERN; et al. Defendants.

)Volume I ) ) ) )No. 1:07-cv-00026-OWW-TAG ) ) ) ) )

VIDEOTAPED DEPOSITION OF PATRICIA VERONICA PEREZ Thursday, February 28, 2008 Bakersfield, California

Reported by:

Darlinda R. Thomason, CSR No. 13094

Case 1:07-cv-00026-OWW-TAG Q.

Document 104-2

Filed 04/23/2008

11:29:20

1

11:29:23

2 recollection about DFJ1157?

11:29:28

3

11:29:30

4 else knows what?

11:29:31

5 BY MR. LEE:

11:29:31

6

Who other than yourself would have the best

11:29:34

7 have a better understanding or better recollection

11:29:37

8 about DFJ1157 other than yourself?

11:29:40

9

A.

I couldn't tell you who.

11:29:41 10

Q.

Okay.

MR. WASSER:

Q.

You're asking her to guess who

I'm asking you who, to your knowledge, would

Name the individuals who would have

11:29:46 11 handled DFJ1157. 11:29:48 12

A.

I can't do that because I don't know.

11:29:52 13

Q.

Okay.

Well, typically if a form came to

11:29:56 14 you, who would the form -- after you determined 11:29:59 15 whether the form has been completed or if it's 11:30:02 16 correct, what happens next? 11:30:03 17

A.

I forward it over to payroll.

11:30:06 18

Q.

Okay.

And is there a particular person in

11:30:09 19 payroll you would normally forward the request for a 11:30:12 20 leave of absence to? 11:30:13 21

A.

28

I put it in a little bin for payroll.

I

11:30:16 22 don't know who handles it afterwards. 11:30:20 23

Q.

How many people were in payroll in 2006?

11:30:27 24

A.

I don't remember.

11:30:28 25

Q.

Was it a hundred people? WOOD & RANDALL (800) 322-4595

Page 4 of 29

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

29

11:30:31

1

A.

No.

11:30:32

2

Q.

Was it one million people?

11:30:33

3

A.

No.

11:30:35

4

Q.

What's your estimate of how many people were

11:30:38

5 in the payroll department in 2006?

11:30:40

6

11:30:41

7

11:30:43

8 doesn't know.

11:30:44

9

A.

My estimate -MR. WASSER:

MR. LEE:

11:30:45 10

If she doesn't know, she

If you don't know, don't answer.

MR. WASSER:

She already did.

She told you

11:30:48 11 she didn't know. 11:30:48 12

MR. LEE:

I'm asking for her estimate, Mark.

11:30:50 13

MR. WASSER:

11:30:50 14

THE WITNESS:

She told you she didn't know. I don't know.

11:30:51 15 BY MR. LEE: 11:30:51 16

Q.

So sitting here now as of today you can't

11:30:51 17 tell me whether there's one million people in the 11:30:55 18 payroll department? 11:30:55 19

MR. WASSER:

Counsel, that's ridiculous.

11:30:57 20 She's not going to respond to that question. 11:31:00 21

MR. LEE:

I'm asking for an estimate, Mark.

11:31:01 22

MR. WASSER:

No, not on none of those terms.

11:31:02 23 That's a ridiculous question. 11:31:02 24

THE WITNESS:

I can give you an answer if

11:31:04 25 you just want an answer. WOOD & RANDALL (800) 322-4595

Page 5 of 29

Case 1:07-cv-00026-OWW-TAG

Document 104-2

11:31:04

1 BY MR. LEE:

11:31:05

2

11:31:08

3 estimate, your best estimate.

11:31:08

4

11:31:12

5 know.

11:31:12

6

11:31:14

7 BY MR. LEE:

11:31:15

8

11:31:17

9

Q.

No, I don't want an answer.

MR. WASSER:

Filed 04/23/2008

30

I want your

She can't do that.

She doesn't

Move on. THE WITNESS:

Q.

Okay.

I don't handle the staffing.

So you have no basis for knowing.

Is that correct?

11:31:17 10

A.

For the staffing in payroll?

11:31:19 11

Q.

No, how many people there are in the payroll

11:31:21 12 department. 11:31:21 13

A.

No.

11:31:24 14

Q.

Okay.

Who do you believe would know how

11:31:27 15 many people there are in the payroll department? 11:31:29 16

A.

The supervisor of payroll.

11:31:30 17

Q.

And who's that?

11:31:32 18

A.

Renita Nunn.

11:31:33 19

Q.

Okay.

So after the leave of absence form

11:31:38 20 goes to the payroll department, what happens next? 11:31:41 21

A.

My understanding is it gets processed.

11:31:45 22 goes for the department head recommendation's 11:31:50 23 signature. 11:31:51 24

Q.

Who's the department head?

11:31:54 25

A.

Of what department? WOOD & RANDALL (800) 322-4595

It

Page 6 of 29

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

11:37:54

1 a document that's been tabbed and marked as

11:37:59

2 Exhibit 241.

11:38:00

3

11:38:01

4 please.

11:38:11

5

A.

Okay.

11:38:14

6

Q.

Okay.

11:38:17

7

A.

That is -- it looks like David Jadwin's

11:38:23

8 certification of health care provider.

11:38:26

9

36

Page 7 of 29

Would you just take a moment to review it,

Q.

Okay.

If you know, what is DFJ726?

Now earlier you were just testifying

11:38:29 10 that the supporting documentation needed for DFJ1157 11:38:34 11 as check boxed as intermittent employee would require 11:38:38 12 some kind of doctor's note or certification. 11:38:41 13

Is that correct?

11:38:41 14

A.

Yes.

11:38:41 15

Q.

Okay.

So is DFJ726 the type of form that

11:38:46 16 you were referring to? 11:38:47 17

A.

Yes.

11:38:47 18

Q.

Okay.

Do you -- have you seen DFJ726

11:38:53 19 before?

Do you recall?

11:38:54 20

A.

I can't remember.

11:39:02 21

Q.

Okay.

Well, take a look at the dates on

11:39:05 22 there and see if it can refresh your recollection. 11:39:09 23 would call your attention to that date on Item 3 of 11:39:13 24 DFJ726, which states March 16, '06, as well as the 11:39:16 25 date in Item 2, which states December 16, '05. WOOD & RANDALL (800) 322-4595

I

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

11:39:19

1

A.

Yes.

11:39:20

2

Q.

Okay.

11:39:23

3 at all?

11:39:23

4

A.

Yes.

11:39:24

5

Q.

Okay.

11:39:27

6 recollection, what do you believe DFJ726 is?

11:39:30

7

A.

I'm sorry, say that again.

11:39:33

8

Q.

Okay.

11:39:37

9 particularly at the dates on Items 2 and 4.

Does that refresh your recollection

So now having refreshed your

Having reviewed DFJ726 and looking

11:39:40 10

A.

Uh-huh.

11:39:41 11

Q.

What do you believe DFJ726 is?

11:39:46 12

A.

Items 2 and 4?

11:39:48 13

MR. WASSER:

She's already told you it's a

11:39:50 14 supporting documentation. 11:39:53 15

THE WITNESS:

What are you asking her?

There's no dates on 4.

11:39:54 16 BY MR. LEE: 11:39:55 17

Q.

I'm sorry, I meant 2 and 3.

11:39:58 18

A.

What was your question again?

11:40:00 19

Q.

Okay.

I'm sorry.

What do you believe the relationship

11:40:04 20 is, if any, between DFJ726 and DFJ1157? 11:40:11 21

A.

I believe they belong together.

11:40:12 22

Q.

Okay.

So in other words, if somebody or if

11:40:18 23 you were to receive DFJ1157 plus DFJ726, would you 11:40:25 24 consider that to be a complete leave request form 11:40:29 25 package?

WOOD & RANDALL (800) 322-4595

37

Page 8 of 29

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

13:38:46

1 county employee?

13:38:48

2

A.

Yes.

13:38:48

3

Q.

Okay.

13:38:51

4 going to ask you to estimate how many times you've

13:38:53

5 done that in the past say -- or actually during the

13:38:57

6 tenure of your employment at KMC.

13:39:00

7

13:39:02

8 county leave for a county employee?

13:39:05

9

A.

Not often.

13:39:07 10

Q.

Would you say it would be under 10?

13:39:10 11

A.

I couldn't tell you.

13:39:18 12

Q.

Well, Ms. Perez, we are entitled to your

67

If you had to estimate -- well, I'm

How many times have you had to calculate the

I don't remember.

13:39:21 13 best estimate. 13:39:22 14

MR. WASSER:

If she doesn't remember, that's

13:39:24 15 the answer. 13:39:24 16

THE WITNESS:

My best estimate.

13:39:26 17 BY MR. LEE: 13:39:26 18

Q.

Would it be under a hundred, a hundred and

13:39:29 19 fifty, ten times a year? 13:39:31 20

A.

I can't recall unfortunately.

13:39:31 21

Q.

That's okay.

13:39:37 22

That's fine.

But anyway, it wasn't all that often.

13:39:42 23 Correct? 13:39:42 24

A.

Correct.

13:39:43 25

Q.

Okay.

So in Dr. Jadwin's case with regard WOOD & RANDALL (800) 322-4595

Page 9 of 29

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

13:56:21

1

A.

Supervisors' signatures.

13:56:23

2

Q.

Okay.

13:56:23

3

A.

That's it.

13:56:25

4

Q.

Okay.

13:56:30

5 detect supervisors' signatures on time sheets, what

13:56:34

6 does that training consist of?

13:56:38

7

A.

Say that again.

13:56:40

8

Q.

Okay.

13:56:42

9 trained.

81

Page 10 of 29

What else?

When you say you're being trained to

You said earlier you're being

13:56:43 10

A.

Yes.

13:56:43 11

Q.

To detect completeness of time sheets.

13:56:47 12

A.

Yes.

13:56:47 13

Q.

Okay.

And then you said that what that

13:56:49 14 means is that you're looking to see if there's a 13:56:52 15 supervisor's signature on every time sheet. 13:56:54 16

A.

Yes.

13:56:55 17

Q.

So I'm asking you, when you say you're being

13:56:57 18 trained to do that, what does that training consist 13:57:00 19 of? 13:57:00 20

A.

Looking at the time sheet to make sure

13:57:02 21 there's a supervisor's signature. 13:57:04 22

Q.

13:57:07 23 that?

Okay.

So is someone teaching you how to do

Is someone training you how to do that?

13:57:09 24

A.

Yes.

13:57:10 25

Q.

Okay.

So I guess what I'm asking is, how WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

13:57:11

1 did that person train you to do that?

13:57:13

2

13:57:16

3 there is a supervisor's signature on the time sheets

13:57:19

4 and that's it.

13:57:20

5

13:57:23

6 figure out?

13:57:23

7

13:57:25

8 she's being trained to do that.

13:57:25

9

A.

Page 11 of 29

They let me know you need to make sure that

MR. WASSER:

MR. LEE:

MR. LEE:

What part of that is hard to

Well, I'm just saying, she said

MR. WASSER:

13:57:26 10

82

Right.

So I'm trying to figure out how

13:57:28 11 much training is required to do that. 13:57:29 12

MR. WASSER:

Look at the time sheet, is

13:57:32 13 there a signature on it.

Well, that's pretty easy.

13:57:35 14 BY MR. LEE: 13:57:35 15

Q.

Okay.

So the training is not exactly what

13:57:37 16 you would call substantial then. 13:57:40 17 pretty much what you just said. 13:57:43 18

A.

Right.

13:57:43 19

Q.

Okay.

Correct?

It's just

Right?

You said you were physically

13:57:50 20 relocated into the payroll department? 13:57:52 21

A.

Yes.

13:57:53 22

Q.

So where were you physically located before

13:57:57 24

A.

At another desk.

13:58:00 25

Q.

Okay.

13:57:56 23 that?

Where was this other desk? WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

13:59:07

1 Medical Center?

13:59:08

2

13:59:11

3 Number 14.

13:59:12

4

13:59:15

5 trailer?

13:59:15

6

A.

Yes.

13:59:16

7

Q.

It is.

13:59:20

8 Medical Center campus contain the entire HR

13:59:22

9 department?

A.

Q.

Okay.

Is your HR department located in a

Okay.

Does this trailer on the Kern

A.

Yes.

13:59:24 11

Q.

Now earlier I asked you how big the payroll

13:59:26 12 department was. 13:59:28 13

A.

Uh-huh.

13:59:29 14

Q.

And you couldn't give me any estimate.

13:59:32 15 Okay. MR. WASSER:

13:59:37 17 worked in payroll.

You asked her how many people That's the question you asked

13:59:38 18 her. 13:59:38 19 BY MR. LEE: 13:59:38 20

Q.

Page 12 of 29

We're south of Mary Kay Shell, Building

13:59:23 10

13:59:32 16

84

Okay.

I'm going to ask you now, how many

13:59:41 21 people would you estimate are in the payroll 13:59:43 22 department? 13:59:43 23

A.

At this time?

13:59:43 24

Q.

Yes.

13:59:44 25

A.

There is six of us. WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG Q.

Okay.

Filed 04/23/2008

14:00:57

1

14:00:59

2 processing leave of absence request forms in the

14:01:02

3 payroll department?

14:01:02

4

A.

I'm sorry, rephrase that.

14:01:10

5

Q.

Ms. Perez, we're going to be here all day

14:01:12

6 just so you know.

14:01:16

7 your depo. is going to have to be a lot longer than

14:01:20

8 necessary if we can't get some kind of simple

14:01:20

9 answers.

14:01:20 10

Correct?

Document 104-2

86

Page 13 of 29

So who is responsible for

I mean, I'm happy to do it, but

MR. WASSER:

14:01:20 11 questions, counsel.

Well, you've got to ask better Don't blame Ms. Perez.

She's

14:01:20 12 doing her best. 14:01:20 13

MR. LEE:

Well, Mark, I'm asking very simple

14:01:22 14 questions. 14:01:22 15

THE WITNESS:

You're asking me how big is a

14:01:26 16 building. 14:01:26 17

MR. LEE:

What's unreasonable about that,

14:01:27 18 Ms. Perez? 14:01:28 19

MR. WASSER:

Well, we could debate what it

14:01:32 20 has to do with the lawsuit, counsel.

You might

14:01:34 21 explain to us what the size of the human resources 14:01:38 22 office has to do with Dr. Jadwin's claims, but we're 14:01:39 23 not even going there because I know you can't. 14:01:39 24

MR. LEE:

No, that's not true, Mark.

14:01:40 25

MR. WASSER:

So we're going to spend a lot WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG

Document 104-2

14:01:41

1 of time.

Ask her how big the building is.

14:01:42

2 I mean, take your time.

14:01:43

3

14:01:46

4 I do have a purpose for it, but that's all right.

14:01:50

5 won't reveal it to you, Mark.

14:01:53

6

MR. WASSER:

14:01:53

7

MR. LEE:

14:01:53

8

MR. WASSER:

14:01:54

9 question now.

MR. LEE:

87

Filed 04/23/2008

Page 14 of 29

Ask her.

Mark, first of all, yeah, actually I

Good.

Yeah. Don't reveal it.

What's your

14:01:55 10 BY MR. LEE: 14:01:55 11

Q.

Ms. Perez, I'm going to ask you one more

14:01:55 13

A.

Yes.

14:01:55 14

Q.

It's a simple question.

14:01:55 12 time.

14:02:00 15

Okay.

Who in the payroll department is responsible

14:02:02 16 for processing leave of absence request forms? 14:02:04 17

A.

The payroll department.

14:02:06 18

Q.

I said who.

14:02:07 19

A.

There's not a direct person responsible.

14:02:09 20

MR. WASSER:

She's told you that I think

14:02:11 21 this is the third time. 14:02:12 22

MR. LEE:

No, there's got --

14:02:13 23

MR. WASSER:

No, there doesn't have to be.

14:02:15 24 BY MR. LEE: 14:02:15 25

Q.

Okay.

Who typically in the payroll WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

14:02:18

1 department processes leave of absence request forms

14:02:20

2 for county employees?

14:02:21

3

14:02:24

4 you they're put in a binder and the binder is

14:02:27

5 processed by whoever is available.

14:02:30

6 answer.

14:02:30

7 BY MR. LEE:

14:02:30

8

Q.

Okay.

14:02:33

9

A.

In the payroll department we have an

MR. WASSER:

She's answered it.

88

Page 15 of 29

She's told

Now that's the

I'd like the names of those people.

14:02:35 10 employee named Bobbi Gains. 14:02:39 11 We have April Smith.

Myself.

We have Armida Smith. Angela Conger.

And

14:02:44 12 Christine Tetimas. 14:02:46 13

Q.

Okay.

That's not the question I asked,

14:02:47 14 Ms. Perez. 14:02:48 15

MR. WASSER:

You just asked for names,

14:02:50 16 counsel. 14:02:50 17

MR. LEE:

No, I said I want the names --

14:02:51 18 Mark, you're not even objecting. 14:02:53 19

MR. WASSER:

14:02:54 20

MR. LEE:

14:02:57 21 please.

Okay.

You just asked for names.

Stop with the speaking objections,

If you've got an objection, just

14:02:58 22 state it. 14:02:58 23 BY MR. LEE: 14:02:58 24

Q.

Ms. Perez.

14:02:58 25

A.

Yes.

WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG Q.

Document 104-2

Filed 04/23/2008

14:02:59

1

I'm going to ask you again.

14:03:01

2

14:03:03

3 payroll department who typically process leave of

14:03:07

4 absence request forms for county employees.

14:03:09

5

14:03:13

6 responsible, but yet we all are.

14:03:16

7

14:03:18

8 responsible.

14:03:18

9

89

Page 16 of 29

Okay.

Please state the names of the people in the

A.

Q.

There are deadlines and no one is

Ms. Perez, I'm not asking who is

MR. WASSER:

You just asked her who was

14:03:18 10 responsible. 14:03:18 11 BY MR. LEE: 14:03:18 12

Q.

I said who typically processes leave of

14:03:22 13 absence request forms in the payroll department. 14:03:25 14 typically does it.

Who

Just name the names, Ms. Perez.

14:03:25 15

A.

It would be Armida Smith --

14:03:28 16

Q.

It's not very difficult.

14:03:28 17

MR. WASSER:

14:03:31 18

THE WITNESS:

There's six names.

You want to stop ask -Christine Tetimas, April

14:03:33 19 Smith. 14:03:33 20 BY MR. LEE: 14:03:33 21

Q.

Okay.

So, I'm sorry, you said -- say their

14:03:37 22 names again because your counsel -14:03:37 23

MR. WASSER:

14:03:38 24

THE WITNESS:

You were talking counsel. Christine Tetimas, April

14:03:33 25 Smith, and Armida Smith. WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

90

Page 17 of 29

14:03:43

1 BY MR. LEE:

14:03:43

2

14:03:46

3 department?

14:03:46

4

A.

Yes.

14:03:49

5

Q.

Okay.

14:03:59

6 your recollection and your understanding, would it

14:04:00

7 have been one of those three people who processed

14:04:04

8 Dr. Jadwin's leave of absence request forms in 2006?

14:04:07

9

A.

Say that again.

14:04:09 10

Q.

According to your knowledge or understanding

Q.

Okay.

So three members of the payroll

Now those three people, based upon

14:04:11 11 who it have been those three people in the payroll 14:04:14 12 department who would have processed Dr. Jadwin's 14:04:17 13 leave of absence request forms in 2006? 14:04:20 14

A.

It could have been one of those.

14:04:21 15

MR. WASSER:

14:04:23 16

THE WITNESS:

14:04:24 17

MR. LEE:

She didn't work there then. I didn't.

Well, I was asking to her

14:04:26 18 knowledge, Mark. 14:04:27 19

MR. WASSER:

She said it could have been,

14:04:29 20 but she doesn't know. 14:04:30 21

MR. LEE:

If you don't know, Ms. Perez, just

14:04:32 22 say you don't know. 14:04:33 23

MR. WASSER:

Well, then you follow up and

14:04:33 24 persist that she's supposed to know something. 14:04:34 25

WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG

Filed 04/23/2008

14:04:35

1

14:04:36

2 this depo. if you continue with this.

14:04:38

3

14:04:40

4 You're not even stating any objections.

14:04:42

5

14:04:44

6 sense.

14:04:44

7

14:04:46

8 ambiguous and then leave it at that.

14:04:48

9

14:04:50 10

MR. LEE:

Document 104-2

91

Page 18 of 29

Mark, I'm going to have to stop

What objections are you stating, Mark?

MR. WASSER:

MR. LEE:

So fine, Mark.

MR. WASSER: MR. LEE:

Your questions don't make

Say vague and

I'll object the way I want.

Well, Mark, then we're going to

14:04:51 11 adjourn this deposition right now because you are 14:04:51 12 interfering, and you are coaching, and you're making 14:04:52 13 improper speaking objections, and I will adjourn this 14:04:55 14 right now. 14:04:55 15

MR. WASSER:

14:04:57 16

MR. LEE:

14:04:57 17

MR. WASSER:

14:04:58 18

MR. LEE:

Whatever you want.

Okay.

Let's adjourn.

Ask your next question.

No, no.

We're going to adjourn

14:04:58 19 and I'm going to do a motion to compel.

We're off

14:05:02 20 the record at 2:06 p.m. 14:05:04 21

Mark, are we off the record?

14:05:05 22

MR. WASSER:

It's your deposition, counsel.

14:05:07 23 We're here. 14:05:07 24 14:05:07 25

WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG 14:05:08

1

MR. LEE:

Document 104-2

No, we're off the record.

2 (2:06 p.m.) 3

--ooOoo--

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Filed 04/23/2008

WOOD & RANDALL (800) 322-4595

92

Page 19 of 29

94

Case 1:07-cv-00026-OWW-TAG 1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Document 104-2

Filed 04/23/2008

Page 20 of 29

I,

ss.

I N

Ix

Darlinda R. Thomason,

a Certified Shorthand

5 1 Reporter in the State of California, 6 I No.

holding Certificate

13094, do hereby certify that PATRICIA VERONICA

7 I PEREZ, the witness named in the foregoing deposition, 8 I was by me duly sworn; that said deposition was taken 9 I Thursday,

February 28,

2008, at the time and place set

10 I forth on the first page hereof. That upon the taking of the deposition,

the

12 I words of the witness were written down by me in stenotypy and thereafter transcribed by computer under 14 I my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness.

16

I further certify that I am neither counsel for

17 I nor in any way related to any party to said action, nor 18 I in any way interested in the result or outcome thereof. 19

Dated this 17th day of March,

2008,

at Fresno,

20 I California. 21 22

a D

3 4

w

wrtA£~

Darlinda R. Thomason, CSR No. 13094 24 25 WOOD & RANDALL (800) 322-4595

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

Page 21 of 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

EXHIBIT 2:

27

Declaration of Eugene Lee in Support of Motion

28 EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT re: DEPOSITION OF PATRICIA PEREZ 2

Case 1:07-cv-00026-OWW-TAG

Document 104-2

4

Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected]

5

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

1 2 3

Filed 04/23/2008

Page 22 of 29

6 7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

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

10 v. 11

COUNTY OF KERN, et al., 12

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY SANCTIONS

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

13 14 15

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

16 17

Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a 18 joint statement re discovery disagreement. 19 I, Eugene D. Lee, declare as follows: 20 1.

I am an attorney at law duly licensed to practice before the Federal and State Courts of

21 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 22 counsel of record for Plaintiff David F. Jadwin in this matter. 23 2.

I am making this declaration in support of plaintiff’s motion to compel responses to

24 interrogatories. I have personal knowledge of the matters set forth below and I could and would 25 competently testify thereto if called as a witness in this matter. 26 3.

I spent 93 minutes on the record conducting plaintiff’s deposition of Patricia Perez, which

27 was held in Bakersfield and adjourned on February 28, 2008. I also spent approximately 4 hours driving 28

DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY SANCTIONS

1

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

Page 23 of 29

1

from Los Angeles to Bakerfield and back (2 hour drive each way), 1 hour setting up exhibits and

2

preparing on the morning of the deposition, and 1.8 hours the day before preparing for the deposition.

3

4.

4

Reporter fee:

$529.40

5

Reporter hotel:

$179.86

6

Plaintiff/counsel hotel:

$189.36

7

TOTAL:

$718.76

8

Receipts for the above are attached hereto as Attachment A.

9

5.

10

Plaintiff incurred the following costs associated with Ms. Perez’s adjourned deposition:

I have spent and anticipate spending substantially in excess of 5 hours researching and

drafting these moving papers and attending the motion hearing in Bakersfield, CA.

11

6.

My regular rate for legal services is $400 per hour.

12

7.

My rate is consistent with those charged in the Los Angeles area by attorneys of similar

13

skill and experience. I received my B.A. with honors from Harvard University in 1991 and my J.D. with

14

honors from the University of Michigan Law School in 1995. I was admitted to the New York State Bar

15

in 1996 and worked as an associate in the New York office of Shearman & Sterling from 1995 to 1996. I

16

worked as an associate in the New York office of Sullivan & Cromwell from 1996 to 1997. After a brief

17

leave of absence from practicing law from 1997 to 1999, I returned to active practice as the General

18

Counsel of Tcom America, Inc., a technology venture in Silicon Valley from 1999 to 2002. From 2002

19

to 2004, I worked as a senior associate for Kim & Chang, a law firm located in Seoul, Korea. In 2005, I

20

was admitted to the California Bar. I have been the principal of Law Office of Eugene Lee since 2005.

21

8.

I attempted several times to secure local counsel to prosecute Plaintiff’s suit but was

22

ultimately unsuccessful. On September 18, 2006, I sent an email to over 600 members of the California

23

Employment Lawyers Association seeking co-counsel. No attorneys from Fresno responded. On

24

February 28, 2007, I called Andrew Jones, Esq. in Fresno, CA, requesting his involvement as local

25

counsel in this action. Mr. Jones declined.

26 27 28

I declare under penalty of perjury under the laws of the State of California and the United States DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY SANCTIONS

2

Case 1:07-cv-00026-OWW-TAG

1

Document 104-2

Filed 04/23/2008

Page 24 of 29

that the foregoing is true and correct.

2 Executed on: April 23, 2008 3 4 5

/s/ Eugene D. Lee

6

EUGENE D. LEE Declarant

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY SANCTIONS

3

Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

Page 25 of 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ATTACHMENT A:

27

Receipts for Expenses Associated with Adjourned Deposition

28

DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF PATRICIA PEREZ, FOR PROTECTIVE ORDER, AND SEEKING MONETARY SANCTIONS

1

Case 1:07-cv-00026-OWW-TAG

Document 104-2

INVOICE

Filed 04/23/2008

Page 26 of 29

WOOD~RANDAll

Invoice No.

Invoice Date

Job No.

6517

3/21/2008

2812

Certified Shorthand Reporters

Job Date

A Professional Corporation

c.seNo.

1:07-CV-00026-OWW-TAG

2/28/2008

(661) 395·1050 • TOLL FREE (BOO) 322·4595

C8seName Jadwin vs. County of Kern Mr. Eugene D. Lee Law Office of Eugene Lee 555 West Rfth Street Suite 3100 Los Angeles, CA 90013

Payment Terms

COD

ORIGINAl AND 1 CERTIFIED COPY OF TRANSCRIPT OF: +-_c ~EcMardJNiRiaJTII~yIQr..LM.[),.tVolume II ORIGINAL AND 1 CERTIFIED COPY OF TRANSCRIPT OF: Patricia Veronica Perez, Volume I Hotel Olarge

417.60

j.-j.. _ _

•.

179.86

TOTAL DUE »>

529.40 179.86 $1,126.86

Thank you. Your business is appreciated. We now aa:ept Visa, MasterCard and American Express.

(-) Payments/Credits: (+) FinalKle OIarges/DebiIs: (=) New BaIaIKle:

Please detach bottom portion and return with payment.

Mr. Eugene D. Lee Law Office of Eugene Lee 555 West Fifth Street Suite 3100 Los Angeles, CA 90013

Remit To: Wood .. Randall certified Shorthand Reporters

A Professional Corporation 423 Truxtun Avenue Bakersfield, CA 93301

Total Due

6517 3/21/2008 $ 0.00

Job No.

2812

BUID Case No. Case Name

1-Main

Invoice No. Invoice Date

1:07-CV-00026-0WW-TAG Jadwin vs. County of Kern

1,126.86 0.00

$0.00

04/17/2008

01:04

JADWIN

8182451405

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Case 1:07-cv-00026-OWW-TAG

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Case 1:07-cv-00026-OWW-TAG

Document 104-2

Filed 04/23/2008

Page 29 of 29

1

CERTIFICATE OF SERVICE

2

I, the undersigned, hereby declare: I am a resident of Los Angeles in the State of California. I am over the age of 18 and not a party to the action described herein. I am employed in the County of Los Angeles, California. My business address is LAW OFFICE OF EUGENE LEE, 555 West Fifth Street, Suite 3100, Los Angeles, CA 90013. On the date of execution of this DOCUMENT, I served the following:

3 4 5 6

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

7 on the following parties in this action by and through their attorneys addressed as follows: 8 9 10 11 12

Mark A. Wasser LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Fax: (916) 444-6405 Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy

13 14 15

BY UNITED STATES MAIL: I enclosed the DOCUMENT(s) listed above in a sealed envelope with postage thereon fully prepaid, addressed to the PERSON(s) listed above, and deposited the sealed envelope with the United States Postal Service at Los Angeles, California. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

16 17

FEDERAL: I declare under penalty of perjury under the laws of the United States of America that the above is true and correct and that I took said actions at the direction of a licensed attorney authorized to practice before this Federal Court.

18 Executed on April 17, 2008, at Los Angeles, California. 19 20 21 Eugene D. Lee

22 23 24 25 26 27 28 CERTIFICATE OF SERVICE