106 Motion - Kc Mpo Dfj Dec Joint Stmt_080423

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

Document 106

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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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Filed 04/23/2008

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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 Defendants. 13

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

14 15 16

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

17 18

Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a 19 joint statement re discovery disagreement. 20 I, Eugene D. Lee, declare as follows: 21 1.

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

22 below and I could and would competently testify thereto if called as a witness in this matter. 23 2.

On April 2, 2008, defendants filed their Notice of Motion and Motion for a Protective

24 Order re: Further Interrogatories by Plaintiff (Doc. 97). In the motion, defendants stated “Pursuant to 25 Local Rule 37-251, Defendants will prepare, submit to Plaintiff and file a Joint Statement re Discovery 26 Disagreement on or before April 23, 2008.” (Doc. 97, 2:11-12). 27 3. 28

To date, defendants have neither submitted to plaintiff nor filed such a joint statement. As

DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 1

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such, defendants are in clear violation of Local Rule 37-251. In contrast, plaintiff had sent both draft

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joint statements for its pending motion to compel interrogatory responses and for protective order re

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depositions to defendant by both mail and fax a full week prior to today’s deadline. Even so, defense

4

counsel manages to complain that plaintiff has somehow ambushed him. Defendants’ violation of Rule

5

37-251 justifies entry of an order adverse to defendants or their counsel

6

4.

The Scheduling Order issued by Judge Wanger in this action states: “Given the number

7

of Defendants and witnesses and the number and complexity of the issues, Plaintiff anticipates needing

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relief from the discovery limitations of Federal Rule of Civil Procedure 30(a)(2)(A) (10 depositions per

9

side) and Rule 33(a) (no more than 25 interrogatories per party). Defendants do not object to granting

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Plaintiff relief from that limitation.” (Doc. 29, 14:23 – 15:1). So long as plaintiff is not abusive in

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propounding interrogatories, there is no mention in the Scheduling Order that plaintiff will be

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constrained to some arbitrary number of interrogatories.

13

5.

That did not stop defendants from attempting to impose an arbitrary ceiling on plaintiff’s

14

interrogatories, anyway. Finally, in a phone call on February 21, 2008, plaintiff and defendants

15

expressly agreed that “Plaintiff and Defendants will continue to honor the stipulations lifting certain

16

discovery restrictions as explicitly and fully set forth in the Joint Scheduling Order. As such, Plaintiff is

17

not obligated to agree on or observe a limit on the number of interrogatories permitted to be propounded

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unless otherwise expressly agreed to in writing. Likewise, Defendant will be permitted to depose Dr.

19

Jadwin for a total of 21 hours.” (See Exhibit 1 attached hereto). Based on this agreement which was

20

memorialized in Exhibit 1, plaintiff permitted defendants to depose plaintiff for 4 full days, which

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defendants proceeded to do. This is undisputed.

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6.

Immediately after completing their deposition of plaintiff and benefiting from the “quid”

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of the parties’ quid pro quo, defendants then withheld the “quo” from plaintiff and resumed disputing

24

the agreement memorialized in Exhibit 1. Defendants have made a habit of breaking commitments –

25

even written ones – reached with plaintiff as soon as it is to their advantage to do so.

26 27 28

7.

Finally, the parties negotiated a new agreement. On April 21, 2008, plaintiff emailed

defendants a proposed written stipulation which would deem documents produced in discovery DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 2

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authenticated and business records, as well as limit plaintiff’s interrogatories. (See Exhibit 2 attached

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hereto).

3

8.

Defendant then sent a fax to plaintiff on April 23, 2008, claiming to memorialize only the

4

agreement as to limitation of plaintiff’s interrogatories, without mentioning the other agreements which

5

plaintiff sought. (See Exhibit 3 attached hereto). Thus, yet again, defendants sought to circumvent the

6

quid pro quo process by taking the “quid” but not giving the “quo.” This echoed what defendant had

7

done previously when they deposed plaintiff for 4 full days and then reneged on their commitment not to

8

limit plaintiff’s interrogatories.

9

9.

When plaintiff informed defendants that this fax was jumping the gun and requested

10

defendants review and sign the previously-provided stipulation in its entirety, defendants refused. (See

11

Exhibit 4 attached hereto).

12

10.

Plaintiff is an individual with limited resources. As Judge Wanger’s Scheduling Order

13

notes, plaintiff’s complaint comprises 11 causes of action – ranging from defamation to procedural due

14

process violation, whistleblower retaliation, medical leave violation and retaliation, etc. – against 8

15

defendants and spans more 6 years. The discovery required to substantiate these complex causes of

16

action necessitates larger scope than usual. Plaintiff has already attempted to secure discovery via

17

depositions of witnesses. However, after having conducted depositions of more than 13 witnesses,

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plaintiff remains frustrated due to defendants’ obstructive conduct in depositions. Consequently,

19

plaintiff has not been able to efficiently obtain discovery through depositions, though it will continue to

20

attempt to do so.

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11.

However, at this juncture, with only 2 months remaining before the July 7 discovery

22

cutoff, interrogatories represent the most time-efficient and cost-effective means for plaintiff to obtain

23

the evidence needed to prosecute its claims.

24

12.

Defendants now bring a blanket motion for protective order, refusing to respond to

25

plaintiff’s interrogatories, set two, unless and until plaintiff acknowledges an arbitrary limit on the

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number of interrogatories plaintiff may propound, proper or not. Plaintiff challenges defendants to

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make a showing that individual interrogatories which plaintiff has thus far propounded are in any

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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 FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 3

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way improper or abusive. The parties have already met and conferred at length with regard to sets 1

2

and 2 of plaintiff’s interrogatories and successfully reached accord on responding to or withdrawing

3

interrogatories. Such an accord would never have been possible had plaintiff’s interrogatories been in

4

any way abusive. The interrogatories plaintiff has propounded and will propound do not impose an

5

undue burden or expense on defendants.

6

13.

As defendant well knows, plaintiff has NOT propounded 91 interrogatories to date.

7

Plaintiff has explained to defendants numerous times that subparts do not constitute separate

8

interrogatories under FRCP Rule 33 unless they are so logically discrete from the main inquiry as to

9

constitute a separate inquiry. See Safeco of America v. Rawstrom (CD CA 1998) 181 FRD 441, 445

10

(“subparts count as one interrogatory ‘if they are logically or factually subsumed within and necessarily

11

related to’ primary question”). Nevertheless, defendants continue to count sub-parts in plaintiff’s

12

interrogatories as separate interrogatories so as to insinuate that plaintiff is somehow being abusive in

13

propounding “91 interrogatories”. Nothing could be further from the truth.

14

14.

Despite the foregoing, in an earnest attempt to reach a compromise that would avert

15

having to disturb this Court, plaintiff expressed its willingness to stipulate to a limitation in the number

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of interrogatories it may propound in the future, provided defendants also stipulate to deem documents

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thus far produced in discovery to be authentic and business records under the FRE. Defendants agreed

18

but then refused to negotiate or sign the draft stipulation which plaintiff emailed to defendants.

19

Plaintiff’s last email to defendants stated: “Mark, What’s your resistance to the stipulation? I believe it

20

addresses all the concerns in your motion for protective order. I sent it to you previously. I drafted it to

21

be as neutral and fair as possible. If you have revisions, simply make them. True to form, you remain

22

all-too-eager to escalate issues to the Court rather than trying to work them out among ourselves.”

23 24

15.

Plaintiff seeks sanctions in reimbursement of $400 of the costs and fees incurred by

plaintiff in connection with this motion. (See Exhibit 5).

25 26 27 28

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. DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 4

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1 2 Executed on: April 23, 2008 3 4 5

/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 FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 5

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EXHIBIT 1 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 6

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Eugene D. Lee From: Sent: To: Subject:

Eugene D. Lee [[email protected]] Thursday, February 21, 2008 12:30 PM '[email protected]' Jadwin/KC: Followup re DFJ Depo

Follow Up Flag: Flag Status:

Follow up Completed

Mark, It was a pleasure speaking with you this morning. I just wanted to recap what we discussed today. Plaintiff and Defendants will continue to honor the stipulations lifting certain discovery restrictions as explicitly and fully set forth in the Joint Scheduling Order. As such, Plaintiff is not obligated to agree on or observe a limit on the number of interrogatories permitted to be propounded unless otherwise expressly agreed to in writing. Likewise, Defendant will be permitted to depose Dr. Jadwin for a total of 21 hours. We further agreed that Defendants would resume their deposition of Dr. Jadwin beginning March 11, 2008. Dr. Jadwin is getting back to me with his availability for that week. If you have any questions, please feel free to contact me. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : 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.

       

1

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EXHIBIT 2 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 7

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Eugene D. Lee From: Sent: To: Subject: Attachments:

Eugene D. Lee [[email protected]] Monday, April 21, 2008 8:49 PM '[email protected]' Stipulation - Auth-Biz Recs-Rogs_080423 Stipulation - Auth-Biz Recs-Rogs_080423.doc

Mark, Attached is a draft stipulation & order regarding the things we had discussed: authentication, business records hearsay exception and limit on plaintiff’s interrogatories. I’m still revising it so it remains subject to change, but I thought I would get the ball rolling sooner rather than later. Please take a look and let me know your thoughts. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : 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.

       

1

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Eugene D. Lee SB# 236812 LAW OFFICES OF EUGENE LEE 555West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 E-mail: [email protected] Attorneys for Plaintiff DAVID F. JADWIN, D.O.

6 7 8 9

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected]

10 11 12 13 14 15

Bernard C. Barman, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected] Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy

16 17

UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA

19

DAVID F. JADWIN, D.O.

20 21 22 23

Plaintiff, vs. COUNTY OF KERN, et al., Defendants.

24

) ) ) ) ) ) ) ) ) )

Case No.: 1:07-cv-00026 OWW TAG STIPULATION TO AUTHENTICATE DOCUMENTS, DEEM AS BUSINESS RECORDS & TO LIMIT INTERROGATORIES; & ORDER THEREON Complaint Filed: January 5, 2007 Trial Date: December 3, 2008

25 IT IS HEREBY STIPULATED, by and among the parties hereto through their respective 26 counsel, that any and all documents in the Categories specified below which are produced by 27 plaintiff and/or by each of the defendants, or any of them, in the Initial Disclosures, supplemental 28

STIPULATION & ORDER THEREON

1

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disclosures, or pursuant to discovery requests or procedures in this action shall be deemed

2

authentic under Federal Rule of Evidence 901.

3

IT IS HEREBY FURTHER STIPULATED, that any and all documents in the Categories

4

specified below which are produced by plaintiff and/or by each of the defendants, or any of

5

them, in the Initial Disclosures, supplemental disclosures, or pursuant to discovery requests or

6

procedures in this action shall be deemed business records under Federal Rule of Evidence

7

803(6).

8 9

CATEGORIES: •

E-mails to, from and/or carbon-copied to any of plaintiff, defendants and/or any

10

contractor, employee or ex-employee of a defendant, as well as any of their officers,

11

directors, agents, representatives and affiliates (including but not limited to the Kern

12

County Board of Supervisors, UMPK and FPP), etc. (“Witnesses”).

13

•

Internal memoranda to, from and/or carbon-copied to any Witness or Witnesses.

14

•

Executed letters to, from and/or carbon-copied to any Witness or Witnesses.

15

•

Handwritten notes and/or markings by any Witness.

16

•

Pathology reports, placental evaluation reports, surgical reports, operating reports and/or

17 18

other medical records. •

Reports and presentations authored and/or issued by outside consultants and/or experts,

19

including but not limited to Macias Group, Camden Group, David Lieu, William

20

Colburn, Parakrama Chandrasoma, Stacey Garry, ProPay, Jonathan Epstein, Richard

21

Kempson, etc.

22

•

Policies, regulations and statutes, and excerpts thereof, including but not limited to Kern

23

County Civil Service Commission Rules, Kern County Employee Handbook, KMC

24

Bylaws, KMC Organization and Functions Manual, KMC Faculty Practice Board

25

Compensation Policy, KMC Medical Staff Rules & Regulations, KMC Corrective Action

26

and Termination Review Process, KMC Faculty Practice Plan Bylaws, University

27

Multispecialty Physicians of Kern Bylaws, etc.

28

•

Personnel files and/or credential files of any Witness.

STIPULATION & ORDER THEREON

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•

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Executed employment and/or independent contractor agreements by, between or among any Witness.

•

4

Meeting minutes of any committee or sub-committee, division, department or group of any Witness.

5

•

Timesheets of any Witness.

6

•

Forms executed by any Witness, including but not limited to FMLA/CFRA medical leave

7

application forms.

8

IT IS HEREBY FURTHER STIPULATED, that Plaintiff will not propound any

9

additional interrogatories (excluding supplemental interrogatories) after the date hereof.

10

Defendant will fully respond and/or object to plaintiff’s interrogatories, set two, by May 8, 2008.

11

Accordingly, defendant will withdraw their motion for protective order ( Doc. No. 97)

12 13

Dated: April , 2008

LAW OFFICE OF EUGENE LEE

14 By:

15 16

Eugene D. Lee Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.

17 18

Dated: April , 2008

LAW OFFICES OF MARK A. WASSER

19 By:

20 21

Mark A. Wasser (as authorized on ) Mark A. Wasser Attorney for Defendants, County of Kern, et al.

22 23 24 25 26 27 28

STIPULATION & ORDER THEREON

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ORDER The parties having stipulated as hereinabove set forth and good cause appearing therefor;

6

IT IS HEREBY ORDERED, that that any and all documents produced by plaintiff and/or by each of the defendants, or any of them, in the Initial Disclosures, supplemental disclosures or pursuant to discovery requests or procedures in this action shall be deemed authentic under Federal Rule of Evidence 901, provided however that documents generated by third parties shall not be included in this stipulation.

7

Dated: December

4 5

, 2007

UNITED STATES DISTRICT COURT

8 By:

9

The Honorable Theresa A. Goldner United States District Judge

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STIPULATION & ORDER THEREON

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EXHIBIT 3

27 28

DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 8

Apr 23 08 12:39p

p.1

916-444-6405

Mark Wasser

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

Fax To:

Eugene Lee

From: Mark A. 'Wasser

Fax:

(213) 596-0487

Pages: 2 (including cover page)

Phone: (213) 992-3299

Date:

Re:

CC:

Jadwin v. County of Kern

o Urgent

0 For Review

-Comments:

Please see attached letter.

0 Please Comment

4123/08

0 Please Reply

0 Please Recycle

Apr Apr 23 23 08 08 12:39p 12:39p

Mark Wasser

916-444-6405

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

Document 106 Law omces of

Filed 04/23/2008

p.2 p.2

Page 16 of 22

MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, California 95814

Office: 916-444-6400

Fax: 916-444-6405

mwasser@markwasser,com

April 23, 2008

VIA FACSIMILE AND FIRST CLASS MAIL

Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street. Suite 3100 Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et al.

Dear Gene: This will confirm our agreement that the Plaintiff will not serve any more interrogatories and the Defendants will respond to Plaintiff s second set of interrogatories on or before May 8. As we discussed on the telephone, the Defendants may object to specific interrogatories but they will not object to the entire set and will provide good faith responses. In light of this agreement, the Defendants will take their motion for protective order off calendar. Thank you.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via facsimile)

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EXHIBIT 4 DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 1

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Eugene D. Lee From: Sent: To: Subject:

Eugene D. Lee [[email protected]] Wednesday, April 23, 2008 1:24 PM '[email protected]' RE: Limitation on Rogs

Mark, What’s your resistance to the stipulation? I believe it addresses all the concerns in your motion for protective order. I sent it to you previously. I drafted it to be as neutral and fair as possible. If you have revisions, simply make them. True to form, you remain all-too-eager to escalate issues to the Court rather than trying to work them out among ourselves. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : 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.

        From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, April 23, 2008 1:12 PM To: [email protected] Subject: RE: Limitation on Rogs Oh. Well, then our motion for protective order will remain on calendar. Fine.

From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, April 23, 2008 1:05 PM To: [email protected] Subject: Limitation on Rogs

Mark, 1

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I just received your fax of today. We have not reached any such agreement to limit plaintiff’s interrogatories. I emailed you a draft stipulation and order addressing the limitation of rogs, authentication, business records, etc. Until that is negotiated, signed and filed, I regret to say that there is no agreement between us. I believe the solution is for you to sign the stipulation and return it to me immediately. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : 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.

       

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EXHIBIT 5 DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 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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Filed 04/23/2008

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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 Defendants. 13

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER Date: April 28, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA

14 15 16

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

17 18 I, Eugene D. Lee, declare as follows: 19 1.

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

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

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

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

I have spent and anticipate spending substantially in excess of 1.5 hours researching and

26 drafting these moving papers and attending the motion hearing in Bakersfield, CA. 27 4. 28

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

DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 1

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

2

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

3

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

4

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

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

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

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

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

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

10

6.

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

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

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

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

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counsel in this action. Mr. Jones declined.

15 16 17

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.

18 Executed on: April 23, 2008 19 20 21

/s/ Eugene D. Lee

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EUGENE D. LEE Declarant

23 24 25 26 27 28

DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 2