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

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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

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v. COUNTY OF KERN, et al., Defendants.

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Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORD SUBPOENAS FOR PLAINTIFF’S PSYCHIATRIC RECORDS; [F.R.C.P. 26 & 45]. Date: May 27, 2008 Time: Place: U.S. District Court, Crtrm. 3 2500 Tulare St, Fresno, CA Complaint Filed: January 5, 2007 Trial Date: December 3, 2008

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Defendants have stipulated to shortened time to hear this motion due to the fact that the second

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session of the defense mental examination is scheduled to take place on May 29, 2008.

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on May 27, 2008, or as soon thereafter as the parties may be heard, that

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pursuant to Federal Rules of Civil Procedure 26 and 45, Plaintiff DAVID F. JADWIN, D.O. will move

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this Court, at the United States Courthouse located at 2500 Tulare Street, Fresno, California 93721

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(Phone: (559) 499-5600), Courtroom 3, for the following:

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1. A protective order prohibiting Defendants, and their experts, from seeking discovery of

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Plaintiff’s psychiatric records in violation of the Scheduling Order dated May 31, 2007;

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2. An order quashing Defendants’ Records Subpoenas for Plaintiff’s psychiatric records kept by Paul Riskin, M.D; 3. An order quashing Defendants’ Records Subpoenas for Plaintiff’s psychiatric records kept by Anoshiravan Taheri-Tafreshi, M.D.; 4. An order requiring Defendants to comply with this Court’s modified schedule regarding Plaintiff’s Rule 35 examination. This motion is based on this Notice of Motion and Motion, the accompanying declarations of

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Eugene D. Lee and David F. Jadwin, D.O., the accompanying Memorandum of Points and Authorities,

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and the pleadings and papers on file in this action.

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RESPECTFULLY SUBMITTED on May 22, 2008. /s/ Eugene D. Lee 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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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

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v. COUNTY OF KERN, et al., Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF; MOTION TO QUASH TWO RECORDS SUBPOENA RE PLAINTIFF’S PSYCHIATRIC RECORDS; MOTION FOR PROTECTIVE ORDER; AND REQUEST FOR SANCTIONS. [F.R.C.P. 26 & 45]. Date: May 27, 2008 Time: 2 p.m. Place: U.S. District Court, Crtrm. 3 2500 Tulare St, Fresno, CA

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Complaint Filed: January 5, 2007 Trial Date: December 3, 2008

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Plaintiff DAVID F. JADWIN, D.O. submits this memorandum of points and authorities in support of his motion for the following relief:

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1. A protective order prohibiting Defendants, and their experts, from seeking discovery of

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Plaintiff’s psychiatric records in violation of the Scheduling Order dated May 31, 2007;

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2. An order quashing Defendants’ Records Subpoenas for Plaintiff’s psychiatric records kept by Paul Riskin, M.D.; USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 1

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3. An order quashing Defendants’ Records Subpoenas for Plaintiff’s psychiatric records kept by

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Anoshiravan Taheri-Tafreshi, M.D.;

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4. An order requiring Defendants to comply with this Court’s modified schedule regarding

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Plaintiff’s Rule 35 examination.

5 I.

BACKGROUND

6 At the outset of this case, the parties met and conferred regarding a discovery plan pursuant to 7 Rule 26. As part of this discovery plan, Parties agreed to strike a balance between Plaintiff’s continuing 8 need for psychotherapy and Defendants need for evidence of Plaintiff’s disabling depression and plea 9 for emotional distress damages. The parties entered into a stipulation that was converted into an order 10 (“Stipulation”). Plaintiff requests that the Court take judicial notice of the stipulation and order 11 contained in the Scheduling Order dated May 31, 2007 (Doc. 29, Lee Decl, Exh. 1). The stipulation 12 stated: 13

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The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion, including raw data of any psychological testing. Plaintiff is willing to undergo psychological examination by Defendants’ qualified expert pursuant to Federal Rule of Civil Procedure Rule 35 subject to a stipulation regarding the timing and scope of the examination, including the specific tests to be performed, and prompt production of the subsequent report and raw data supporting the report to all parties. (Lee Decl, Exh. 1, 14:-19).

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On May 2, 2008, Defendants issued records subpoenas (“Records Subpoenas”) directing

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Plaintiffs’ two treating psychiatrists to produce all patient medical records for Plaintiff. (Lee Decl., Exh.

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2). The Records Subpoenas were served on Plaintiff by regular U.S. mail. Plaintiff received no prior

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notice of the Records Subpoenass. The Records Subpoenas evidenced defense counsel’s intention to

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obtain “All patient records relating to [Plaintiff], regardless of date” from two of Plaintiff’s treating

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psychiatrists, Dr. Paul M. Riskin and Dr. Anoshiravan Taheri-Tafreshi. (Exh. 2, 2-5). They set the

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records production deadline as 10 a.m. on May 21, 2008.

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On May 16, 2008, the parties entered into a stipulation (“Exam Stip”) pursuant to the order of

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this Court whereby Plaintiff would submit to a mental and psychiatric examination by Dr. Robert

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Burchuk for 4 hours on May 19, 2008, from 10 a.m. to 2 p.m., and again for 4 hours on May 29, 2008

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from 1 p.m. to 5 p.m. in “Dr. Burchuk’s office at 23522 Califa Street, Woodland Hills, California.” (Lee

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Decl., Exh. 3).

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On May 19, 2008, at 10:40 a.m., Plaintiff phoned his attorneys to say that he had been waiting

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since 10 a.m. outside the gate at Dr. Burchuk’s office at 23522 Califa Street, Woodland Hills, California,

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as he had been required to do pursuant to the stipulation, but no one was letting him in.

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At 10:43 a.m., Plaintiff’s counsel called defense counsel but he was unavailable, upon which

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Plaintiff’s counsel sent defense counsel an email apprising him of the situation. (Lee Decl., Exh. 4). At

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10:58 a.m., defense counsel emailed Plaintiff’s counsel to say that Plaintiff should go to a different

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address instead. (Lee Decl., Exh. 4).

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Plaintiff’s counsel attempted to call Plaintiff but was unable to get through to him. Plaintiff’s counsel later learned that he was driving his car and was on his way home. Defense counsel and Plaintiff’s counsel then spoke by phone. Defense counsel explained that

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there had been a miscommunication between him and Ms. Karen Barnes, Chief Deputy County Counsel

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for the County of Kern and apologized for giving Plaintiff’s counsel the wrong address for Dr.

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Burchuk’s office. He asked whether Plaintiff’s counsel would agree to extend the May 19 DME to make

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up for the missed time. Plaintiff’s counsel said Plaintiff had other appointments that day and must leave

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at 2 p.m. Plaintiff’s counsel then asked defense counsel to email him additional proposals for making up

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the missed time and he would look at them.

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After hanging up with defense counsel, Plaintiff’s counsel repeatedly called Plaintiff until he got

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through. He told Plaintiff to turn his car around and proceed to the new address which defense counsel

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had emailed him. Plaintiff estimated he would arrive at the new address by 11:45 or so due to traffic.

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At 11:47 a.m., Plaintiff’s counsel emailed defense counsel to notify him Plaintiff’s counsel had successfully gotten through to Plaintiff and that he would be arriving at the new address shortly. (Lee USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 3

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Decl., Exh. 4). Plaintiff arrived at the new address at approximately 12 p.m. upon which Dr. Burchuk began the defense mental examination. Around 2 p.m., as the examination was concluding, Dr. Burchuk presented Plaintiff with two

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HIPPA authorization and release forms (“Releases”) permitting Dr. Burchuk to speak with and obtain

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medical records from Plaintiff’s treating psychiatrists, Dr. Paul Riskin and Dr. Anosh Taheri-Tafreshi.

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(Jadwin Decl., Exh. A). Plaintiff had been instructed that he was not to call his attorneys at any time

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during the examination. He therefore complied with Dr. Burchuk's request and signed the releases.

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After the examination concluded, Plaintiff spoke with my attorneys and was infonned that he

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should not have signed the Releases because there was an agreement among the attorneys that his

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treating psychiatrists were not to produce any documents to Defendants other than written summary

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reports, which had already been provided to Defendants. Upon the advice of his attorneys, Plaintiff then

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immediately revoked the HIPAA releases by calling and emailing Dr. Burchuk, Dr. Riskin and Dr.

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Taheri-Tafreshi.

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At 4:17 p.m., Plaintiff’s counsel sent an email to defense counsel. (Lee Decl., Exh. 5). In the

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email, Plaintiff’s counsel objected to the above-referenced Records Subpoenas to be served on

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Plaintiff’s treating psychiatrists as being in violation of the stipulation contained in the Scheduling

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Order. He requested defense counsel meet and confer with him prior to filing a motion to quash

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subpoena and for protective order.

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Defense counsel sent Plaintiff’s counsel an email stating that he would comply with the

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Scheduling Order only if Plaintiff were willing to agree to an additional 2 hours of defense mental

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examination on May 29, 2008. (Lee Decl., Exh. 5).

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Plaintiff’s counsel replied that the Records Subpoenas and the DME missed time issues were

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separate and distinct and that defense counsel had issued the Records Subpoenas on May 2, 2008 in

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violation of the Scheduling Order, long before the examination wrong address mixup had occurred.

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Plaintiff’s counsel stated that Plaintiff’s counsel refused to “bargain” for Defendants’ compliance with

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the Scheduling Order. (Lee Decl., Exh. 5).

2 II.

ARGUMENT

3 The Stipulation states that Plaintiff will not be required to produce psychotherapy notes and 4 Defendants shall instead receive treatment summary reports. Nevertheless, Defendants’ attempt to 5 breach the Stipulation through the use of the Records Subpoenas and by having Plaintiff sign the 6 Releases while cut off from contact with his attorneys. Plaintiff therefore brings this motion to quash 7 and for a protective order to enforce the Stipulation. 8 Moreover, pursuant to the Exam Stip, Plaintiff was ordered to submit to mental examinations on 9 May 19 from 10 a.m. to 2 p.m. and May 29 from 1 p.m. to 5 p.m. Defendants now seek yet another 10 variance to a Court order by requesting Plaintiff move the second session to June 2 and increase the 11 hours from 4 to 6. Defendants base this request on their own error in providing the wrong address to 12 Plaintiff, which resulted in the loss of 2 hours. 13 Defendants have sought and were granted relief from their stipulated obligation to restrict the 14 scope of their discovery to Plaintiff’s “depression, anxiety, insomnia, and emotional distress”, and are 15 now being allowed to conduct its Rule 35 examination of Plaintiff’s entire mental state without any 16 restriction in scope. Further, Defendants were granted relief from their failure to conduct their Rule 35 17 examination of Plaintiff within the time allowed and submit timely their Rule 26(a)(2)(b) expert reports. 18 This meant that Defendants were also granted the unusual benefit of knowing the contents of Plaintiff’s 19 26(a)(2)(B) forensic psychologist’s report before conducting their Rule 35 examination. Defendants 20 were also granted a full eight hours over two days, 10 days apart, for their Rule 35 examination even 21 though they will not conduct the customary four hours of psychometric testing, but will rely on the raw 22 data of the testing performed by Plaintiff’s forensic psychologist. In addition, Defendants’ have been 23 granted both a 45- and a 90-day continuance of the trial schedule to accommodate their own negligence 24 and needs. 25 This Court has thus far accommodated Defendants to a high degree. Plaintiff asks as a matter of 26 basic fairness that this Court now grant his motions to enforce the Stipulation and also reject 27 28

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Defendants’ request for an additional 2 hours of mental examination on June 2.

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A.

THE COURT MAY QUASH SUBPOENAS AND ISSUE A PROTECTIVE ORDER WITH GOOD CAUSE.

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Rule 45(c)(3)(A)(iii) of the Federal Rules of Civil Procedure authorizes a district court to quash a

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subpoena that “requires disclosure of privileged or other protected matter and no exception or waiver

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applies.”

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Rule 26(c) of the Federal Rules of Civil Procedure authorizes a district court to issue a protective

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order to limit disclosure or discovery. Folz v. State Farm Mutual Auto Insurance, 331 F.3d 1122, 1130

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(9th Cir. 2003). The party seeking a protective order has the burden of showing that good cause exists to

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justify the protection requested. Id. Generally, the moving party must show that specific prejudice

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exists or that harm will result in the absence of a protective order.

12 B. 13

THE COURT SHOULD ENFORCE THE STIPULATION AND ORDER OF MAY 31, 2007, AND PROTECT PLAINTIFF’S PSYCHIATRIST’S ACTUAL TREATING NOTES FROM DISCOVERY.

14 Defendants have twice attempted to breach the Stipulation. First, on May 2, Defendants issued 15 the Records Subpoenas seeking the psychotherapy notes of Dr. Jadwin’s treating psychiatrists. When 16 Plaintiff confronted Defendants about this attempted breach, Defendants opportunistically responded 17 that they would address Plaintiff’s demand for compliance with the Stipulation in consideration of 18 Plaintiff’s agreement to address the loss of 2 hours during the May 19 examination incurred due to 19 Defendants’ address error by agreeing to an additional 2 hours of examination at the second examination 20 session. Plaintiff refused to bargain for Defendants’ compliance with the Stipulation. 21 Second, Defendants’ forensic psychiatrist, Dr. Burchuk, directed Plaintiff to sign the Releases, 22 giving Dr. Burchuk access to the same psychotherapy notes. Dr. Burchuk did so knowing Plaintiff had 23 been ordered not to contact his attorneys at any time during the examination. It is not in the community 24 standard to have litigants sign HIPPA releases during defense mental examinations in the absence of 25 counsel. This was precisely the kind of conduct Plaintiff had sought to head off when previously 26 requesting that Plaintiff be permitted to contact his attorneys during the examination. Plaintiff’s request 27 28

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was expressly denied however.

2 C. 3 4

THE PARTIES HAD ENTERED INTO THE STIPULATION DUE TO THE ABSENCE OF SETTLED FEDERAL LAW REGARDING THE SCOPE OF PLAINTIFF’S WAIVER OF THE FEDERAL PSYCHOTHERAPIST-PATIENT PRIVILEGE.

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There is an absence of settled federal law regarding the scope of Plaintiff’s waiver of the federal

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psychotherapist-patient privilege. As a result, the parties had entered into the Stipulation providing that

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Plaintiff had placed his “depression, anxiety, insomnia, and emotional distress” in controversy, but

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agreed to limit the scope of disclosure and discovery regarding these mental conditions, and converted

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the Stipulation into the Order of this Court of May 31, 2007. By this motion, Plaintiff seeks

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enforcement of this stipulation.

11 1.

Federal Law of Privileges Governs This Case.

12 Plaintiff requests judicial notice that Magistrate Judge Goldner has found herein that because this 13 is a federal question case, federal privilege law governs, even as to the supplemental state claims. See, 14 Order Granting in Part and Denying in Part Motion to Compel Production and Further Responses dated 15 May 9, 2008 at 3:7 – 4:2. This is consistent with the comments of the Advisory Committee who, in 16 enacting Fed.R.Evid. 501 (the federal law of privileges), stressed that federal common law, and not the 17 law of the states, governs federal privilege law. 18 19

2.

Federal Law Recognizes a Psychotherapist-Patient Privilege.

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In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court found that, under Rule 501, there

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exists a psychotherapist-patient privilege under the federal common law. See Id. at 15. The Supreme

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Court observed that, “like the spousal and attorney-client privileges, the psychotherapist-patient

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privilege is rooted in the imperative need for confidence and trust.” Id. at 10 (citation omitted). The

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Supreme Court further noted: “The psychotherapist privilege serves the public interest by facilitating

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the provision of appropriate treatment for individuals suffering the effects of a mental or emotional

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problem. The mental health of our citizenry, no less than its physical health, is a public good of

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transcendent importance.” Id. at 11. “Because the privilege will serve a public good transcending the

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normally predominant principle of utilizing all rational means for ascertaining truth, we hold that

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confidential communications between a licensed psychotherapist and her patients in the course of

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diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of

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Evidence.” Id. at 15 (citation omitted).

6 3. 7 8

Plaintiff Waived The Psychotherapist-Patient Privilege to the Extent that He Placed His Mental State In Controversy.

Under Federal Rule of Evidence 504, a Plaintiff waives his psychotherapist-patient privilege to

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the extent that he places his mental state in controversy. F.R.E. Rule 504. Further, a defendant is

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entitled to a Rule 35 examination regarding Plaintiff’s mental state placed in controversy. F.R.C.P.

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Rule 35.

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Although the Supreme Court noted that the psychotherapist-patient privilege could be waived

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(see Jaffee, supra, 518 U.S. at 15 n. 14), it did not discuss what exactly would constitute a waiver or the

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scope of a waiver. Importantly, however, it rejected the “balancing” approach taken by some federal

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and state courts to determine the applicability of the privilege. It stated: “Making the promise of

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confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s

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interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the

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privilege. . . if the purpose of the privilege is to be served, the participants in the confidential

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conversation “must be able to predict with some degree of certainty whether particular discussions will

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be protected. An uncertain privilege, or one which purports to be certain but results in widely varying

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applications by the courts, is little better than no privilege at all.” Id. at 17-18.

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4.

Parties Stipulated As to the Scope of Plaintiff’s Waiver of His PsychotherapistPatient Privilege.

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There is no direct Ninth Circuit authority on what constitutes a waiver of the psychotherapist-

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patient privilege under Rule 504, and district courts that have addressed the issue have not come to any

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consensus. See Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D. Penn. 1997); Fritsch v. City of

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Chula Vista, 196 F.R.D. 562 (S.D. Cal. 1999) (simple allegation of emotional distress in a complaint

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constitutes waiver); and Vanderbilt v. Town of Chilmark, 174 F.R.D. 225 (D. Mass. 1997); Hucko v. City

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of Oak Forest, 185 F.R.D. 526 (N.D. Ill. 1999) (affirmative reliance on the psychotherapist-patient

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communications required before the privilege will be deemed waived).

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In the absence of federal law, California law provided the parties some guidance as to the scope

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of Plaintiff’s waiver of his psychotherapist-patient privilege. Under California law, a Plaintiff waives

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his right to privacy only as to the specific medical information that he has “tendered at issue,” and courts

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must further restrict even this directly relevant information to a reasonable time frame. [Evid. Code §§

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996, 1016; Britt v. Superior Court (1978) 20 Cal.3d 844, 862, (physical injuries); In re Lifschutz (1970)

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2 Cal. 3d 415, 431, 435, 85 Cal. Rptr. 829, 467 P.2d 557 (psychological injuries)]. In Britt v. Superior

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Court, supra, 20 Cal.3d 844, the California Supreme Court held that “an implicit waiver of a party’s

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constitutional rights encompasses only discovery directly relevant to the Plaintiff’s claim and essential

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to the fair resolution of the lawsuit.” Id. at 859. Thus, “Plaintiffs are ‘not obligated to sacrifice all

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privacy to seek redress for specific [physical,] mental or emotional injury,’” but “they are entitled to

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retain the confidentiality of all unrelated medical or psychological treatment.” Id. The Britt court

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provided a clarifying example of what it meant by “information relating to the medical condition in

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question.” It explained that a Plaintiff who claims that airport operations have damaged to his

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respiratory system must disclose only medical information relating to his respiratory condition.

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However, Plaintiff could not limit discovery of his respiratory condition information to those airport-

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related incidents that have allegedly impaired his respiratory condition. [Id. at 864, fn. 9].

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Alleging general damages does not tender a Plaintiff’s mental state at issue. San Diego Trolley,

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Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1093(“The patient/litigant exception is narrowly

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construed so that patients are not deterred from instituting any general claim for mental suffering and

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damage out of fear of opening up all past communications to discovery.” ) (emphasis added); Vinson v.

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Superior Court (1987) 43 Cal. 3d 833, 840-42 (“We cannot agree that the mere initiation of a sexual

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harassment suit, even with the rather extreme mental and emotional damage Plaintiff claims to have

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suffered, functions to waive all her privacy interests…Plaintiff is not compelled, as a condition to

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entering the courtroom to discard entirely her mantle of privacy.”).

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Nor are fishing trips for other potential stressors that may have contributed to a Plaintiff’s

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emotional distress permitted. Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1388; Roberts v.

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Superior Court of Butte County (West) (1973) 9 Cal. 3d 330, 340, 508 P.2d 309, 107 Cal. Rptr. 309, 340

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(“in every lawsuit involving personal injuries, a mental component may be said to be at issue, in that

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limited sense at least. However, to allow discovery of past psychiatric treatment merely to ascertain

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whether the patient’s past condition may have decreased his tolerance to pain or whether the patient may

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have discussed with his psychotherapist complaints similar to those to be litigated, would defeat the

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purpose of the privilege.”).

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California courts recognize that the right of privacy is especially important when dealing with an

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individual’s personal thoughts and psychological composition: “If there is a quintessential zone of

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human privacy it is the mind. Our ability to exclude others from our mental processes is intrinsic to the

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human personality.” Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937,

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944. When a Plaintiff does tender part of his mental state at issue, disclosure of those aspects of a

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Plaintiff’s personality that are not “directly relevant” is barred “even though they may, in some sense, be

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“relevant” to the substantive issues of litigation.” In Re Lifshutz, supra, 2 Cal. 3d at 435; see also Lantz

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v. Superior Court (1994) 28 Cal.App.4th 1839, 1855 (“if an intrusion on the right of privacy is deemed

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necessary under the circumstances of a particular case, any such intrusion should be the minimum

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intrusion necessary to achieve its objective.”). Just as alleging an injury to a knee does not tender all of

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Plaintiff’s body parts at issue, so tendering a personality disorder does not place all of Plaintiff’s mental

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condition at issue. In Re Lifshutz, supra, 2 Cal. 3d at 435 (“Under section 1016 disclosure can be

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compelled only with respect to those mental conditions the patient-litigant has “disclose[d] ... by

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bringing an action in which they are in issue” (City & County of San Francisco v. Superior Court, supra,

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37 Cal.2d 227, 232); communications which are not directly relevant to those specific conditions do not

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fall within the terms of section 1016’s exception and therefore remain privileged. Disclosure cannot be

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compelled with respect to other aspects of the patient-litigant’s personality even though they may, in

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some sense, be “relevant” to the substantive issues of litigation.”); see also Davis v. Superior Court of

3

Kern County (Williams) (1992) 7 Cal. App. 4th 1008. 9 Cal. Rptr. 2d 331]. As the Lifschulz Court

4

illustrated, a Plaintiff’s aggressive tendencies are not “directly relevant” in an assault claim, although,

5

they are arguably “relevant” under section 210 of the Evidence Code. [Id., Evid. Code § 210].

6 D. 7

THE COURT SHOULD ENFORCE THE STIPULATION AND ORDER RE EXAMINATION OF PLAINTIFF AND DENY DEFENDANTS’ REQUEST FOR AN 6 HOURS OF EXAMINATION ON JUNE 2, 2008.

8 The Stipulation and Order regarding the defense mental examination issued by this Court states: 9

12

PURSUANT TO THE ORDER OF THE COURT, IT IS HEREBY STIPULATED by and between the parties through their respective counsel that Plaintiff, David F. Jadwin, shall submit to a mental and psychiatric examination by Dr. Robert Burchuk on Monday, May 19, 2008 from 10:00 a.m. to 2:00 p.m. and Thursday, May 29 from 1:00 p.m. to 5:00 p.m. in Dr. Burchuk’s office at 23522 Califa Street, Woodland Hills, California. (Doc. 135)

13

Plaintiff fully complied with the Order. He arrived at Dr. Burchuk’s office at 23522 Califa Street,

10 11

14

Woodland Hills, California, at 10 a.m. on May 19, 2008. He waited for 40 minutes waiting to be let into

15

the gate. As it turns out, defense counsel had provided Plaintiff with the wrong address. Plaintiff, under

16

instructions not to contact his attorneys at any time during the defense mental examination, finally called

17

his attorneys at 10:40 a.m. to inform them of the situation. Plaintiff’s counsel then called defense

18

counsel but defense counsel was unavailable. At 10:43 a.m., Plaintiff’s counsel sent an email to defense

19

counsel informing him of the situation. At 10:58 a.m., defense counsel emailed Plaintiff’s counsel with

20

the correct address. They then had a phone call where defense counsel explained that he had given

21

Plaintiff’s counsel the wrong address and then provided him with the correct address. After repeated

22

attempts, Plaintiff’s counsel finally reached Plaintiff, who was in his car on the freeway driving home.

23

He told Plaintiff to immediately turn his car around to proceed to the new address. Plaintiff did so,

24

arriving at the new address at around noon. Plaintiff’s counsel emailed defense counsel informing him

25

that Plaintiff was on his way to the new address. The defense medical examination promptly began at

26

noon and ended at 2 p.m., lasting 2 hours.

27 28

USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 11

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Document 140

Filed 05/22/2008

Page 14 of 15

Defendants now request that the second day of the examination be moved from May 29 to June 2 and be increased from 4 hours to 6 hours in order to accommodate Defendants’ error.

3

There are several incontrovertible facts which Plaintiff submits for the Court’s consideration.

4

1. Plaintiff arrived at the appointed place at the appointed time and fully complied with the

5

Court’s Order.

6

2. Defendants, not Plaintiff, are responsible for the address error and the loss of 2 hours.

7

3. Plaintiff and Plaintiff’s counsel acted expediently to remedy the situation and minimize the

8

time loss due to the address error. Plaintiff spent 40 minutes waiting outside a gate at the

9

wrong address and then 80 minutes on the freeway driving to and then back from his house

10

and finding his way to the new address.

11

4. Defendants already have the unfair advantage of having all of Plaintiff’s Rule 26(a)(2)(b)

12

reports, including the report issued by Plaintiff’s forensic psychologist, prior to conducting

13

their mental examination (Plaintiff is still waiting for Defendants’ reports). This militates in

14

favor of having a shorter, not longer, mental examination since Defendant’s examiner can

15

now skip almost all of the preliminary discussions already covered by Plaintiff’s expert

16

report.

17

5. Despite being busy and overburdened with the demands attendant to starting and running a

18

new business venture, Plaintiff rearranged his travel and business schedule in order to fully

19

accommodate Defendant’s request to have, not one, but two days of examination of 4 hours

20

each held 10 days apart, on the specific dates requested by Defendants. Plaintiff had

21

requested 1 day of 8 hours to minimize the impact on his schedule but Defendants refused.

22

6. After Defendants’ failed to conduct the defense mental examination before the original

23

expert disclosure deadline of May 5, 2008 – an examination which the parties had discussed

24

on multiple occasions since January 22, 2008 – and to timely submit any Rule 26(a)(2)(b)

25

reports, Defendants obtained a 45-day continuance of pre-trial dates that the Court granted

26

over Plaintiff’s objections.

27 28

USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 12

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1

Document 140

Filed 05/22/2008

Page 15 of 15

7. This 45-day continuance is in addition to the 90-day continuance of pre-trial and trial dates

2

which Defendants previously requested and the Court granted.

3

Plaintiff is ready, willing and able to comply with the Court Order and attend the examination on

4

May 29 from 1 p.m. to 5 p.m. Plaintiff opposes the grant to Defendants’ of yet another variance in a

5

Court Order due to yet another error by Defendants. Plaintiff has already been forced to accommodate

6

Defendants’ many requests and errors and been prejudiced in the process. As a matter of basic fairness,

7

Plaintiff asks that the Court accommodate his schedule and deny Defendants’ request.

8 III.

CONCLUSION

9 For the foregoing reasons, the Court should grant the following relief: 10 1. A protective order prohibiting Defendants, and their experts, from seeking discovery of 11 Plaintiff’s psychiatrist’s actual treating notes in violation of the Scheduling Order dated May 12 31, 2007; 13 2. An order quashing Defendants’ record subpoena for Plaintiff’s psychiatric records kept by 14 Paul Riskin, M.D.; 15 3. An order quashing Defendants’ record subpoena for Plaintiff’s psychiatric records kept by 16 Anoshiravan Taheri-Tafreshi, M.D.; 17 4. An order requiring Defendants to comply with this Court’s modified schedule regarding 18 Plaintiff’s Rule 35 examination; 19 Plaintiff further requests any other relief that the Court deems proper. 20 RESPECTFULLY SUBMITTED on May 22, 2008. 21 /s/ Eugene D. Lee 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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

22 23 24 25 26 27 28

USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 13

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

Document 140-2

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 05/22/2008

Page 1 of 50

6 7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

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

10 v. 11

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION

COUNTY OF KERN, et al., 12 Defendants. 13

Date: May 27, 2008 Time: 9:30 a.m. Place: U.S. District Court, Crtrm. 3 2500 Tulare St, Fresno, CA

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

15 16 I, Eugene D. Lee, declare as follows: 17 1.

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

18 below and I could and would competently testify thereto if called as a witness in this matter. 19 2.

On May 31, 2007, the Court issued the Scheduling Order (Doc. 29). A true and correct

20 copy is attached as Exhibit 1. The Scheduling Order contained a stipulation of the parties stating as 21 follows: 22 23 24 25

The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion, including raw data of any psychological testing. (Exh. 1, 14:5-13).

26 3.

On May 2, 2008, defense counsel issued records subpoenas, unsigned copies of which I

27 received for the first time on May 12, 2008. A true and correct copy is attached as Exhibit 2. The 28 DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 1

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

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Page 2 of 50

1

subpoena were served on my office by regular U.S. mail. I received no prior notice of the records

2

subpoenas. The subpoena evidenced defense counsel’s intention to obtain “All patient records relating to

3

[Plaintiff], regardless of date” from two of Plaintiff’s treating psychiatrists, Dr. Paul M. Riskin and Dr.

4

Anoshiravan Taheri-Tafreshi. (Exh. 2, 2-5). They set the records production deadline as 10 a.m. on May

5

21, 2008.

6

4.

On May 16, 2008, the parties entered into a stipulation pursuant to the order of this Court

7

whereby Plaintiff would submit to a mental and psychiatric examination by Dr. Robert Burchuk for 4

8

hours on May 19, 2008, from 10 a.m. to 2 p.m., and again for 4 hours on May 29, 2008 from 1 p.m. to 5

9

p.m. in “Dr. Burchuk’s office at 23522 Califa Street, Woodland Hills, California.” A true and correct

10

copy of the stipulation is attached as Exhibit 3.

11

5.

On May 19, 2008, at 10:40 a.m., Plaintiff phoned me to say that he had been waiting

12

since 10 a.m. outside the gate at Dr. Burchuk’s office at 23522 Califa Street, Woodland Hills, California,

13

as he had been required to do pursuant to the stipulation, but no one was letting him in.

14

6.

At 10:43 a.m., I called defense counsel but he was unavailable, upon which I sent defense

15

counsel an email apprising him of the situation. A true and correct copy of the email is attached as

16

Exhibit 4. At 10:58 a.m., defense counsel emailed me to say that Plaintiff should go to a different

17

address instead. See Exhibit 4.

18 19 20

7.

I attempted to call Plaintiff but was unable to get through to him. I later learned that he

was driving his car and was on his way home. 8.

Defense counsel and I then spoke by phone. Defense counsel explained to me that there

21

had been a miscommunication between him and Ms. Karen Barnes, Chief Deputy County Counsel for

22

the County of Kern and apologized for giving me the wrong address for Dr. Burchuk’s office. He asked

23

me whether I would agree to extend the May 19 DME to make up for the missed time. I said Plaintiff

24

told me he had other appointments that day and must leave at 2 p.m. I then asked defense counsel to

25

email me additional proposals for making up the missed time and I would look at them.

26

9.

After hanging up with defense counsel, I repeatedly called Plaintiff until I got through. I

27

told him to turn his car around and proceed to the new address which defense counsel had emailed me.

28

Plaintiff estimated he would arrive at the new address by 11:45 or so due to traffic. DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 2

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

1 2 3

10.

Document 140-2

Filed 05/22/2008

Page 3 of 50

At 11:47 a.m., I emailed defense counsel to notify him I had successfully gotten through

to Plaintiff and that he would be arriving at the new address shortly. See Exhibit 4. 11.

At 4:17 p.m., I sent an email to defense counsel. A true and correct copy is attached as

4

Exhibit 5. In the email, I objected to the above-referenced records subpoena to be served on Plaintiff’s

5

treating psychiatrists as being in violation of the stipulation contained in the Scheduling Order. I

6

requested defense counsel meet and confer with me prior to my filing a motion to quash subpoena and

7

for protective order.

8

12.

Defense counsel sent me an stating that he would comply with the Scheduling Order only

9

if Plaintiff were willing to agree to an additional 2 hours of defense mental examination on May 29,

10

2008. See Exhibit 5. I replied that the records subpoena and the DME missed time issues were separate

11

and distinct and that defense counsel had issued the records subpoena on May 2, 2008 in violation of the

12

Scheduling Order, long before the DME wrong address mixup had occurred. I stated that I refused to

13

“bargain” for Defendants’ compliance with the Scheduling Order.

14 15 16

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.

17 18 Executed on: May 21, 2008 19 20 21 22

_________________________ EUGENE D. LEE Declarant

23 24 25 26 27 28 DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 3

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

1

Document 140-2

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Page 4 of 50

EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT

2 EXHIBIT 1.

Scheduling Order (Doc. 29)

EXHIBIT 2.

Defendants’ Records Subpoena

EXHIBIT 3.

Stipulation & Order re Defense Mental Examination

EXHIBIT 4.

Emails between Plaintiff’s and Defendants’ counsel, 5/19/08

EXHIBIT 5.

Emails between Plaintiff’s and Defendants’ counsel, 5/19/08

3 4 5 6 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 re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 4

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

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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 27

EXHIBIT 1

28 DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 5

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1 2 3 4 5 6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8 9

DAVID F. JADWIN, D.O.,

10

Plaintiff,

11 12

v. COUNTY OF KERN, et al.,

13

Defendants.

14

) ) ) ) ) ) ) ) ) ) )

15

1:07-cv-0026 OWW TAG SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 4/4/08 Non-Dispositive Motion Filing Deadline: 4/21/08 Dispositive Motion Filing Deadline: 5/5/08 Settlement Conference Date: 2/6/08 10:00 Ctrm. 8

16 17

Pre-Trial Conference Date: 7/14/08 11:00 Ctrm. 3

18

Trial Date: 8/26/08 9:00 Ctrm. 3 (JT-14 days)

19 20 21

I.

22 23 24 25 26

Date of Scheduling Conference. May 31, 2007.

II.

Appearances Of Counsel. Eugene D. Lee, Esq., and Joan Harrington, Esq., appeared on

behalf of Plaintiff. Mark A. Wasser, Esq., appeared on behalf of Defendants

27

County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher,

28

Jennifer Abraham, Scott Ragland, Toni Smith and William Roy. 1

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

1 2

III.

Document 140-2

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Page 7 of 50

Summary of Pleadings. 1.

This is an individual action brought by Plaintiff David

3

F. Jadwin, D.O., a whistleblowing physician with disabilities,

4

against his employer, (i) the County of Kern (“Defendant County”

5

or “the County”), owner and operator of Kern Medical Center

6

(“KMC”) the health facility at which Plaintiff was employed; (ii)

7

individual Defendants Peter Bryan (“Bryan”), Chief Executive

8

Officer of Kern Medical Center (“KMC”); Eugene Kercher, M.D.,

9

President of Medical Staff at KMC (“Kercher”); Jennifer Abraham,

10

M.D., Immediate Past President of Medical Staff at KMC

11

(“Abraham”); Scott Ragland, M.D., President-Elect of Medical

12

Staff at KMC (“Ragland”); and Toni Smith, Chief Nurse Executive

13

of KMC, (“Smith”), both personally and in their official

14

capacities; and (iii) individual Defendants Irwin Harris, M.D.,

15

Chief Medical Officer of KMC (“Harris”); William Roy, M.D., Chief

16

of the Division of Gynecologic Oncology at KMC (“Roy)”; and Does

17

1 through 10.

18

2.

Plaintiff’s claims against his employer, Defendant

19

County, allege violations of section 1278.5 of the Health &

20

Safety Code which prohibits retaliation against a health care

21

provider who reports suspected unsafe care and conditions of

22

patients in a health care facility; section 1102.5 of the Labor

23

Code which prohibits retaliation against an employee or reporting

24

or refusing to participate in suspected violations of the law;

25

the California Family Rights Act (sections 12945.1, et seq., of

26

the Government Code) (“CFRA”) and the Family and Medical Leave

27

Act (sections 2601, et seq. of the United States Code) (“FMLA”)

28

which prohibit interference with an employee’s right to medical 2

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

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Page 8 of 50

1

leave and retaliation for an employee’s exercise of the right to

2

medical leave; and the Fair Employment and Housing Act

3

[subdivisions (a), (m) & (n) of Section 12940 of the Government

4

Code] (“FEHA”) which prohibits discrimination against an employee

5

with a disability, failure to provide reasonable accommodation,

6

and failure to engage in an interactive process; and recovery of

7

wrongfully deducted wages under the Fair Labor Standards Act (29

8

U.S.C. §§ 201, et seq.) (“FLSA”).

9

3.

Plaintiff sues Defendants County, Roy, Harris and Does

10

1 through 10, for defamation; and also sues each of the

11

individual Defendants except for Roy and Harris, both in their

12

personal capacity and in their official capacity as members of

13

the KMC Joint Conference Committee (“JCC”), for violation of

14

Plaintiff’s 14th Amendment of the United States Constitution

15

right to procedural due process pursuant to 42 U.S.C. § 1983

16

(“Due Process”).

17

4.

Plaintiff brings this action for general, compensatory,

18

and punitive damages; prejudgment interest, costs and attorneys’

19

fees; injunctive and declaratory relief; and other appropriate

20

and just relief resulting from Defendants’ unlawful conduct.

21

5.

Plaintiff is not a whistleblower and is not disabled.

22

He was employed by the County of Kern as a staff pathologist at

23

Kern Medical Center, pursuant to a written agreement, and

24

assigned to the position of Chair of the Pathology Department.

25

6.

During his tenure at Kern Medical Center, Plaintiff’s

26

behavior caused several pathologists, technicians and support

27

personnel whom he criticized, intimidated, harassed and

28

retaliated against to quit and seek employment elsewhere. 3

He

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

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Page 9 of 50

1

alienated many of the physicians at Kern Medical Center through

2

criticism, disruptive behavior, disrespect, anger, arrogance and

3

retaliation.

4

at Kern Medical Center and interfered with patient care through

5

obstructionist behavior and secretive practices.

6

reports were characterized by frequent mistakes, changes in

7

opinion and untimely service, all of which compromised patient

8

care.

9

other physicians at Kern Medical Center regarding Plaintiff’s

Plaintiff complained about procedures and policies

His pathology

Disagreements arose between Plaintiff and many of the

10

behavior, his anger and confrontational personal style, his

11

inaccurate and untimely diagnoses, his disruptive behavior, his

12

complaints about medical procedures, his refusal to follow even

13

his own rules, his intimidation of staff and patient management.

14

7.

As a result of the stresses and disagreements that

15

Plaintiff brought into the workplace, his injuries and illnesses,

16

family health issues and outside business interests, Plaintiff

17

requested and received a reduced work schedule and multiple

18

leaves of absence.

19

week and was absent from the hospital for long periods of time.

20

Because he was neither working full-time nor present in the

21

hospital, he was removed from the position of Chair of the

22

Pathology Department and his compensation was adjusted to that of

23

a staff pathologist without departmental administrative

24

responsibilities.

25

8.

He frequently worked only one or two days a

Management at Kern Medical Center counseled Plaintiff

26

about his anger and confrontational style but Plaintiff was not

27

receptive to the counseling and the work environment continued to

28

deteriorate.

Plaintiff was finally placed on paid administrative 4

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Page 10 of 50

1

leave in an effort to allow the work environment to stabilize.

2

IV.

3

Orders Re Amendments To Pleadings. 1.

Plaintiff intends to file a Second Supplemental

4

Complaint to include allegations of continuing discrimination and

5

retaliation that occurred after April 24, 2007.

6

insert the following:

7

Plaintiff that he will remain on paid administrative leave until

8

his contract expires on October 4, 2007; and that, contrary to

9

its prior and customary practice, Defendant County does not

Plaintiff will

On May 1, 2007, Defendant County notified

10

intend to renew his employment contract.

11

no longer restricted to the confines of his home during working

12

hours, he still may not enter KMC’s premises or access his office

13

without prior written permission.

14

paragraphs will be adjusted accordingly.

15

provided Defendants with the draft Second Supplemental Complaint

16

in the form in which Plaintiff intends to file it for Defendants’

17

prior review.

18

supplemental complaint on or before June 14, 2007.

19

2.

Although Plaintiff is

The numbering of the following Plaintiff has already

Plaintiff is hereby ORDERED to file any

Defendants intend to file an Amended Answer that (i)

20

with regard to the third affirmative defense, alleges the

21

specific privileges and immunities relied on with greater

22

particularity, (ii) with regard to the fourth affirmative

23

defense, alleges the specific provisions of Cal. Civ. Code § 47

24

relied on with greater particularity, and (iii) alleges the ninth

25

affirmative defense (qualified immunity) with greater

26

particularity, as well as additional non-material changes.

27

Defendants have already provided Plaintiff with the draft Amended

28

Answer in the form in which Defendants intend to file it for 5

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1

Plaintiff’s prior review.

2

their response to the supplemental complaint on or before June

3

24, 2007.

4

3.

Defendants are hereby ORDERED to file

Based on the foregoing, each of the parties hereby

5

stipulates to the filing of the other’s supplemented/amended

6

pleadings and hereby respectfully request the order of the Court

7

granting the parties leave to file their respective

8

amended/supplemented pleadings.

9

4.

It should be noted that Plaintiff intends to file a

10

motion to strike certain of Defendants’ affirmative defenses

11

contained in the Amended Answer proposed to be filed as having

12

insufficient bases in law.

13

conferred regarding the affirmative defenses at issue but have

14

not been able to reach a resolution.

15

5.

The parties have already met and

Defendants wish to assert, based upon a new Supreme

16

Court decision issued May 30, 2007, the defense of the statute of

17

limitations, if applicable.

18

V.

Factual Summary.

19

A.

Admitted Facts Which Are Deemed Proven Without Further

20

Proceedings.

21

1.

At all material times, Defendant Kern County was a

22

local public entity within the meaning of sections 811.2 and

23

900.4 of the Government Code and is operating in Kern County,

24

California.

25

2.

During the entire course of Plaintiff’s

26

employment, Defendant Kern County has continuously been an

27

employer within the meaning of FMLA [29 C.F.R. § 825.105(C)],

28

CFRA [Gov’t Code § 12945.2(b)(2)] FEHA (Gov’t Code § 12926(d)], 6

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1

and FLSA [29 U.S.C. § 203] engaged in interstate commerce, and

2

regularly employing more than fifty employees within seventy-five

3

miles of Plaintiff’s workplace.

4

3.

Defendant Bryan was Chief Executive Officer of KMC

5

and a resident of California during most of the time alleged in

6

the Complaint.

7

4.

At all material times, Defendant Eugene Kercher

8

was a citizen of California, a resident of Kern County,

9

California, and President of KMC Medical Staff, and a member of

10

the KMC Joint Conference Committee (“JCC”).

11

5.

At all material times, Defendant Irwin Harris was

12

a citizen of California, and a resident of Kern County,

13

California, and Chief Medical Officer at KMC, and a non-voting

14

member of the JCC.

15

6.

At all material times, Defendant Jennifer Abraham

16

was a citizen of California, and a resident of Kern County,

17

California and Immediate Past President of KMC Medical Staff.

18

7.

At all material times, Defendant Scott Ragland was

19

a citizen of California, and a resident of Kern County,

20

California, President-Elect of KMC Medical Staff, and a member of

21

the JCC.

22

8.

At all material times, Defendant Toni Smith was a

23

citizen of California, and a resident of Kern County, California,

24

and Chief Nurse Executive of KMC, and a member of the JCC.

25

9.

At all material times, Defendant William Roy was a

26

citizen of California, and a resident of Kern County, California

27

and Chief of the division of Gynecologic Oncology at KMC.

28

10.

Plaintiff has continuously been an employee of 7

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

1 2

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Page 13 of 50

Defendant Kern County since October 24, 2000. 11.

Plaintiff is a pathologist whom Defendant County

3

hired as a pathologist at KMC and appointed to the position of

4

Chair of the Pathology Department.

5

12.

Plaintiff was compensated and provided with

6

certain benefits pursuant to a written employment agreement, the

7

terms of which speak for themselves.

8

13.

9

salary level at Step C.

10

14.

Defendant Kern County placed Plaintiff’s initial

Defendant expected Plaintiff to be an effective

11

member of the physicians’ staff at KMC and to contribute to the

12

overall improvement of the hospital.

13

15.

Plaintiff requested and received leaves of absence

14

and reduced work schedules, the terms and conditions of and

15

reasons for which are memorialized in writings that speak for

16

themselves.

17

16.

Plaintiff’s former attorney sent a letter to Kern

18

County Counsel Bernard Barmann and Mr. Barmann met with Plaintiff

19

on or about February 9, 2006.

20

17.

Defendant Bryan and Plaintiff exchanged written

21

communications regarding Plaintiff’s reduced work schedule and

22

requests for leaves of absence.

23

Bryan and others to discuss those subjects.

24

18.

Plaintiff met with Defendant

Defendant Bryan and Plaintiff exchanged written

25

correspondence regarding Plaintiff’s tenure and performance as

26

Chair of the Pathology Department at KMC.

27

for themselves.

28

19.

All the writings speak

On or about July 10, 2006, the JCC voted to remove 8

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

Document 140-2

Filed 05/22/2008

Page 14 of 50

1

Plaintiff from his position as Chair of the Pathology Department

2

at Kern Medical Center.

3

20.

Plaintiff was removed from his position as Chair

4

of the Pathology Department in part because he was neither

5

working full-time nor present in the hospital.

6 7

21.

employment agreement to reduce Plaintiff’s base compensation.

8 9

22.

Defendant County appointed Dr. Philip Dutt Acting

Chair of the Pathology Department.

10 11

Defendant County subsequently amended Plaintiff’s

23.

Plaintiff returned to work as a staff pathologist

at KMC on October 4, 2006.

12

24.

Plaintiff exchanged written correspondence with

13

KMC Interim CEO David Culberson and those writings speak for

14

themselves.

15 16

25.

Defendant Kern County placed Plaintiff on paid

administrative leave, which continues to this date.

17

26.

Defendant County has provided Plaintiff with the

18

information he requested from the computer that had been

19

previously assigned to him.

20 21

27.

Plaintiff filed a claim with Defendant Kern County

and the claim was rejected.

22

28.

23

were under color of law.

24 25

B.

Any acts or omissions of the individual Defendants

Contested Facts. 1.

Defendants contest all allegations and averments

26

in the First Supplemented Complaint other than those enumerated

27

in Section A, Uncontested Facts.

28

2.

Plaintiff contests Defendants’ averment that 9

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

Document 140-2

Filed 05/22/2008

Page 15 of 50

1

Plaintiff disrupted the October, 2005, Monthly Oncology

2

Conference and prevented appropriate discussion of case

3

management and that other physicians at Kern Medical Center,

4

including some of the Defendants, were concerned about

5

Plaintiff’s conduct and with his interference with patient care.

6

3.

Plaintiff contests all averments contained in the

7

Anser to the First Supplemented Complaint other than those stated

8

in Section A, Uncontested Facts.

9

VI.

10

Legal Issues. A.

Uncontested.

11

1.

Jurisdiction is disputed.

12

2.

Venue, if jurisdiction exists, is proper under 28

13

U.S.C. § 1392.

14

3.

If jurisdiction is present, the parties agree that

15

the substantive law of the State of California provides the rule

16

of decision for supplemental claims.

17 18

B.

Contested. 1.

Whether this Court has or should exercise

19

supplemental jurisdiction over Plaintiff’s state claims pursuant

20

to 28 U.S.C. § 1367.

21

2.

Whether Defendant Kern County violated Cal. Health

22

& Safety Code § 1278.5, entitling Plaintiff to damages for

23

retaliation for reporting his concerns about the health and

24

safety of patients.

25

3.

Whether Defendant Kern County violated Cal. Lab.

26

Code § 1102.5, entitling Plaintiff to damages for retaliation

27

against him for reporting suspected illegal acts.

28

4.

Whether Defendant Kern County violated Cal. Gov’t 10

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

Document 140-2

Filed 05/22/2008

Page 16 of 50

1

Code §§ 12945.1, et seq., and 2 C.C.R. § 7297.7(a), entitling

2

Plaintiff to damages for retaliation for exercising his right to

3

CFRA medical leave.

4

5.

Whether Defendants Kern County and Bryan violated

5

29 U.S.C. §§ 2601, et seq., entitling Plaintiff to damages for

6

interference with his FMLA rights.

7

6.

Whether Defendant Kern County violated Cal. Gov’t

8

Code §§ 12945.1, et seq., entitling Plaintiff to damages for

9

violation of CFRA rights.

10

7.

Whether Defendant Kern County violated Cal. Gov’t

11

Code § 12940(a) entitling Plaintiff to damages for disability

12

discrimination.

13

8.

Whether Defendant Kern County violated Cal. Gov’t

14

Code § 12940(m) entitling Plaintiff to damages for failure to

15

provide reasonable accommodation, and an injunction requiring

16

compliance.

17

9.

Whether Defendant Kern County violated Cal. Gov’t

18

Code § 12940(n) entitling Plaintiff to damages and injunctive

19

relief for failure to engage in good faith in an interactive

20

process, and an injunction requiring compliance.

21

10.

Pursuant to 42 U.S.C. § 1983, whether Defendants

22

Bryan, Kercher, Ragland, Abraham, and Smith, both personally and

23

in their respective official capacities, violated the 14th

24

Amendment of the U.S. Constitution entitling Plaintiff to damages

25

and injunctive relief for procedural due process violations.

26

11.

Whether Defendants Kern County, Roy, and Harris

27

violated Cal. Civ. Code §§ 45-47 entitling Plaintiff for damages

28

for defamation. 11

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

1

12.

Document 140-2

Filed 05/22/2008

Page 17 of 50

Whether Defendant Kern County violated 29 U.S.C.

2

§ 201 et seq., entitling Plaintiff to damages for wages lost

3

during periods when he was ready, willing, and able to work, but

4

was denied reduced scheduled medical leave, and forced to take

5

full time leave; and an injunction requiring compliance.

6

VII. Consent to Magistrate Judge Jurisdiction.

7

1.

The parties have not consented to transfer the

8

case to the Magistrate Judge for all purposes, including trial.

9

VIII.

10

1.

Corporate Identification Statement. Any nongovernmental corporate party to any action in

11

this court shall file a statement identifying all its parent

12

corporations and listing any entity that owns 10% or more of the

13

party's equity securities.

14

its initial pleading filed in this court and shall supplement the

15

statement within a reasonable time of any change in the

16

information.

17

IX.

18 19 20 21 22

A party shall file the statement with

Discovery Plan and Cut-Off Date. 1.

The parties are ordered to file their Rule 26(a)(1)

initial disclosures on or before August 6, 2007. 2.

The parties are ordered to complete all discovery on

or before April 4, 2008. 3.

The parties are directed to disclose all expert

23

witnesses, in writing, on or before February 4, 2008.

Any

24

rebuttal or supplemental expert disclosures will be made on or

25

before March 4, 2008.

26

provisions of Federal Rule of Civil Procedure 26(a) regarding

27

their expert designations.

28

the written designation of experts shall be made pursuant to F.

The parties will comply with the

Local Rule 16-240(a) notwithstanding,

12

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

Document 140-2

Filed 05/22/2008

Page 18 of 50

1

R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all

2

information required thereunder.

3

compliance with this order may result in the Court excluding the

4

testimony or other evidence offered through such experts that are

5

not disclosed pursuant to this order.

6

4.

Failure to designate experts in

The provisions of F. R. Civ. P. 26(b)(4) shall

7

apply to all discovery relating to experts and their opinions.

8

Experts may be fully prepared to be examined on all subjects and

9

opinions included in the designation.

10 11

Failure to comply will

result in the imposition of sanctions. 5.

Confidentiality Orders.

Documents to be produced

12

include patient medical records that contain confidential patient

13

health care information, medical peer review records that are

14

confidential pursuant to California Evidence Code § 1157, some

15

documents that are protected by the attorney/client privilege and

16

some documents that include attorney work-product and trial

17

preparation materials.

18

confidential patient information before producing any patient

19

records and will do so.

20

Defendants’ production of certain specified peer review records

21

without redaction shall not be construed as a waiver of the peer

22

review privilege in general or a waiver with regard to any other

23

documents or person.

24

production of certain specified relevant memos and e-mails that

25

were sent to legal counsel for the County of Kern, as well as

26

other, non-lawyer, County employees, shall not be construed as a

27

waiver of the attorney/client privilege.

28

agree that Defendants’ production of certain specified documents

The Defendants are required to redact all

The parties hereby agree that

The parties hereby agree that Defendants’

13

The parties hereby

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

Document 140-2

Filed 05/22/2008

Page 19 of 50

1

that include attorney work-product and trial preparation

2

materials shall not constitute a waiver of either the work-

3

product or trial preparation materials privileges as to any other

4

materials.

5

6.

The parties hereby agree that, in order to preserve the

6

confidentiality required for continued effective treatment of

7

Plaintiff’s depression, anxiety, insomnia, and emotional

8

distress, Plaintiff’s treating psychiatrists/psychologists shall

9

not be required to produce their actual treatment notes, but

10

instead shall produce a summary of their treatment of Plaintiff’s

11

depression and emotional distress, including their diagnoses and

12

prognoses, and the basis for their opinion, including raw data of

13

any psychological testing.

14

psychological examination by Defendants’ qualified expert

15

pursuant to Federal Rule of Civil Procedure Rule 34 subject to a

16

stipulation regarding the timing and scope of the examination,

17

including the specific tests to be performed, and prompt

18

production of the subsequent report and raw data supporting the

19

report to all parties.

20

7.

Plaintiff is willing to undergo

The parties are not presently aware of any other issues

21

relating to claims of privilege or of protection as trial-

22

preparation material.

23

8.

Changes in Limitations on Discovery.

Given the number

24

of Defendants and witnesses and the number and complexity of the

25

issues, Plaintiff anticipates needing relief from the discovery

26

limitations of Federal Rule of Civil Procedure 30(a)(2)(A) (10

27

depositions per side) and Rule 33(a) (no more than 25

28

interrogatories per party).

Defendants do not object to granting 14

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

Document 140-2

Filed 05/22/2008

Page 20 of 50

1

Plaintiff relief from that limitation.

2

that the deposition of the Plaintiff will take up to 21 hours

3

because of the quantity of material that needs to be covered.

4

Defendants therefore request relief from FRCP 30(d)(2), (one day

5

of 7 hours per deposition).

6

Defendants’ request; provided, however, that no single day of

7

Plaintiff’s deposition shall exceed 7 hours.

8

presently aware of a need to change any other limitations on

9

discovery.

10

X.

11

Defendants anticipate

Plaintiff does not object to

The parties are not

Pre-Trial Motion Schedule. 1.

All Non-Dispositive Pre-Trial Motions, including any

12

discovery motions, will be filed on or before April 21, 2008, and

13

heard on May 23, 2008, at 9:00 a.m. before Magistrate Judge

14

Theresa A. Goldner in Courtroom 8.

15

2.

In scheduling such motions, the Magistrate

16

Judge may grant applications for an order shortening time

17

pursuant to Local Rule 142(d).

18

obtain an order shortening time, the notice of motion must comply

19

with Local Rule 251.

20

3.

However, if counsel does not

All Dispositive Pre-Trial Motions are to be

21

filed no later than May 5, 2008, and will be heard on June 9,

22

2008, at 10:00 a.m. before the Honorable Oliver W. Wanger, United

23

States District Judge, in Courtroom 3, 7th Floor.

24

such motions, counsel shall comply with Local Rule 230.

25

XI.

26

In scheduling

Pre-Trial Conference Date. 1.

July 14, 2008, at 11:00 a.m. in Courtroom 3, 7th Floor,

27

before the Honorable Oliver W. Wanger, United States District

28

Judge. 15

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

1 2 3

2.

Document 140-2

Filed 05/22/2008

Page 21 of 50

The parties are ordered to file a Joint Pre-

Trial Statement pursuant to Local Rule 281(a)(2). 3.

Counsel's attention is directed to Rules 281

4

and 282 of the Local Rules of Practice for the Eastern District

5

of California, as to the obligations of counsel in preparing for

6

the pre-trial conference.

7

compliance with those rules.

8

XII. Trial Date.

9

1.

The Court will insist upon strict

August 26, 2008, at the hour of 9:00 a.m. in Courtroom

10

3, 7th Floor, before the Honorable Oliver W. Wanger, United

11

States District Judge.

12

2.

This is a jury trial.

13

3.

Counsels' Estimate Of Trial Time:

14 15

a. 4.

14 days.

Counsels' attention is directed to Local Rules

16

of Practice for the Eastern District of California, Rule 285.

17

XIII.

18

1.

Settlement Conference. A Settlement Conference is scheduled for February 6,

19

2008, at 10:00 a.m. in Courtroom 8 before the Honorable Theresa

20

A. Goldner, United States Magistrate Judge.

21

2.

Unless otherwise permitted in advance by the

22

Court, the attorneys who will try the case shall appear at the

23

Settlement Conference with the parties and the person or persons

24

having full authority to negotiate and settle the case on any

25

terms at the conference.

26

3.

Permission for a party [not attorney] to attend

27

by telephone may be granted upon request, by letter, with a copy

28

to the other parties, if the party [not attorney] lives and works 16

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

Document 140-2

Filed 05/22/2008

Page 22 of 50

1

outside the Eastern District of California, and attendance in

2

person would constitute a hardship.

3

allowed, the party must be immediately available throughout the

4

conference until excused regardless of time zone differences.

5

Any other special arrangements desired in cases where settlement

6

authority rests with a governing body, shall also be proposed in

7

advance by letter copied to all other parties.

8 9

4.

If telephone attendance is

Confidential Settlement Conference Statement.

At least five (5) days prior to the Settlement Conference the

10

parties shall submit, directly to the Magistrate Judge's

11

chambers, a confidential settlement conference statement.

12

statement should not be filed with the Clerk of the Court nor

13

served on any other party.

14

marked "confidential" with the date and time of the Settlement

15

Conference indicated prominently thereon.

16

request the return of their statements if settlement is not

17

achieved and if such a request is not made the Court will dispose

18

of the statement.

19 20

5.

23

Each statement shall be clearly

Counsel are urged to

The Confidential Settlement Conference

Statement shall include the following:

21 22

The

a.

A brief statement of the facts of the

b.

A brief statement of the claims and

case.

24

defenses, i.e., statutory or other grounds upon which the claims

25

are founded; a forthright evaluation of the parties' likelihood

26

of prevailing on the claims and defenses; and a description of

27

the major issues in dispute.

28

c.

A summary of the proceedings to date. 17

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

1 2

d.

Document 140-2

Filed 05/22/2008

Page 23 of 50

An estimate of the cost and time to be

expended for further discovery, pre-trial and trial.

3

e.

The relief sought.

4

f.

The parties' position on settlement,

5

including present demands and offers and a history of past

6

settlement discussions, offers and demands.

7

XIV. Request For Bifurcation, Appointment Of Special Master,

8

Or Other Techniques To Shorten Trial.

9 10 11 12 13

1. XV.

None.

Related Matters Pending. 1.

There are no related matters.

XVI. Compliance With Federal Procedure. 1.

The Court requires compliance with the Federal

14

Rules of Civil Procedure and the Local Rules of Practice for the

15

Eastern District of California.

16

efficient administration of this case, all counsel are directed

17

to familiarize themselves with the Federal Rules of Civil

18

Procedure and the Local Rules of Practice of the Eastern District

19

of California, and keep abreast of any amendments thereto.

20

XVII.

21

1.

To aid the court in the

Effect Of This Order. The foregoing order represents the best

22

estimate of the court and counsel as to the agenda most suitable

23

to bring this case to resolution.

24

specifically reserved for this case.

25

any time that the schedule outlined in this order cannot be met,

26

counsel are ordered to notify the court immediately of that fact

27

so that adjustments may be made, either by stipulation or by

28

subsequent scheduling conference. 18

The trial date reserved is If the parties determine at

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

1

2.

Document 140-2

Filed 05/22/2008

Page 24 of 50

Stipulations extending the deadlines contained

2

herein will not be considered unless they are accompanied by

3

affidavits or declarations, and where appropriate attached

4

exhibits, which establish good cause for granting the relief

5

requested.

6 7

3.

Failure to comply with this order may result in

the imposition of sanctions.

8 9 10

IT IS SO ORDERED. Dated: May 31, 2007 emm0d6

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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

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

Document 140-2

Filed 05/22/2008

Page 25 of 50

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 27

EXHIBIT 2

28 DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 6

CopyPage Records Retrieval Systems Document 140-2 Filed 05/22/2008 Page 26 of 50

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

20809 Higgins Court Torrance, CA 90501 Phone: 424-201-4440 Fax: 424-201-4358

Notification of Subpoenaed Records Records Subject: David F. Jadwin Case Number: 1:07-cv00026-0WW-TAG Case Name: David F. Jadwin, D.O. vs. County of Kern, et al.

Eugene D. Lee Law Office of Eugene Lee 555 W. 5th St., Ste 3100 Los Angeles, CA 90013

To Whom It May Concern: Copy Page Records Retrieval Systems is a Professional Photocopying Service and has been chosen by Mark A. Wasser of Law Offices of Mark A. Wasser to obtain records pertaining to David F. Jadwin in the case of David F. Jadwin, D.O. vs. County of Kern, et al.. Any party to this action is entitled to these records. Please mark the box next to the location(s) of records from where you wish to receive a duplicate set and sign your name in the designated space at the bottom of this page. If this form is returned with no boxes marked, it will be assumed that you wish to receive records from all locations. Sincerely,

CopyPage Records Retrieval Systems

1

o

Paul M. Riskin, M.D. Santa Monica, CA 90401 85773

o

Vincent Fortanasce, M.D., Neurology Consultants Arcadia, CA 91007 85776

I

l

Cecilia Kaesler, D.O., Verdugo

D

Anoshiravan Taheri-Tafreshi, M.D. Los Angeles, CA 90024 85774

D Internal Medicine, Inc.

D

Casa Colina Centers for Rehab Pomona, CA 91767 85777

D Center for Wellness & Pain Management

Glendale, CA 91208 85775

j

Ij

Christopher J. Charbonnet, M.D., The Foothill

Glendale, CA 91206

85778

j

o

Michael Cann, M.D. Glendale, CA 91208 85779

Eugene D. Lee Printed Name of Additional Party

Signed Name of Attorney

Date

A088 ~Rev. 12/07) Subpoena in a Civil Case

Case 1:07-cv-00026-OWW-TAGIssued Document by the 140-2

Filed 05/22/2008

Page 27 of 50

UNITED STATES DISTRICT COURT _ _ _ _ _ _ _E_a_s_t_e_r_n David F.

Jadwin,

DISTRICT OF

C_a_l_l._·f_o_r_n_l._'_a

D.O.

SUBPOENA IN A CIVIL CASE 1

CASE NUMBER:

v. County of Kern,

1: 07-cv00026-0WW-TAG

et al.

To Custodian of Records of:

Paul M.

Riskin,

M.D.

530 Wilshire Blvd., Santa Monica,

D

_

CA

Ste 306

90401

YOU ARE COMMANDED to appear in the United States District Court at the place. date, and time specified below to testify in the above case. COURTROOM

PLACE OF TESTIMONY

DATE AND TIME

D

YOU ARE COMMANDED to appear at the place, date. and time specified below to testify at the taking of a deposition in the above case

'L
Q

I_DA_T_E_A_ND_T_IM_E

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects): All patient records relating to the above named records subject, date.

Pertaining to David F.

regardless of

Jadwin

DATE AND TIME

PLACECopyPage Records Retrieval Systems

D

_

20809 Higgins Court

5/21/2008

Torrance,

10:00 AM

CA

90501

YOU ARE COMMANDED

"'"""

to permit inspection of the following premises at the date and time specified below.

IOA" '"0""

Any organization not a party to this suit that is SUbpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6) ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)

DATE May 2,

2008

Attorney for Counsel for Defendant, ISSUING OFFICER'S NAME, ADDRESS, AND TELEPHONE NUMBER Law Offices of Mark A. Wasser

Wasser /

400 Capitol Mall,

1100,

Ste.

Attention:

Sacramento,

Mark A.

(916)

444-6400

CA 95814

(See Rule 45. Federel Rules of Civil Procedure 45 (C), (d), & (e) on Next Pege) Waction is pending in district other than district of issuance, state district under case number.

Ref#: 85773

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

Document 140-2

Filed 05/22/2008

Page 28 of 50

A088 (Rev. 12107) Subpoena in a Civil Case (page 2)

PROOF OF SERVICE

DATE

PLACE

SERVED Personal Service SERVED ON (PRINT NAME)

MANNER OF SERVICE

Process Server SERVED BY (PRINT NAME)

TITLE DECLARATION OF SERVER

I declare under penalty of pe~ury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on

-------------Date

Signature of Server

20809 Higgins Court Address of Server

Torrance, CA

90501

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007: (cl PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue BUfden or Expenlle; Sanctions. A party or attornay rasponsible for issuing and sarving a subpoena must taka raasonable staps to avoid imposing undue burden or expensa on a person subject to the subpoena. The issuing court must enforce this duly and impose an appropriate sanction -which may include lost earnings and reasonable attorney's fees - on a party or attorney who fails to comply. 2) Command to Produce Materials or Parm~ Inspection. A) Appea,ance Not ReqUired. A person commanded to produce documents, electronically stored information, or tangible things, or to perm~ the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a depos~ion, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to perm~ inspection may serve on the party or Btlorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premISes - or to producing electronically stored information in tile form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days alter the subpoena is served. If an objection is mede, the following rules apply: (i) At any lime, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from signifICant expense resulting from compliance. (3) QuaShing or Modifying a SUbpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (il) requires a person who is ne~her a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regUlarly transacts business in person - except that, subject to Rule 45(c)(3)(B)(iii), tha person may be commanded to attend a trial by traveling from any such placa wtlhin the stale where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue bUrden. (B) Vvhen Permitted. To protect a person SUbject to or affected by a subpoena, the iaauing court may, on motion, quash or modify the sUbpoena if ~ requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information that doss not describe specifIC occurrences in dispute and results from the axpert's study that was not requested by a party; or (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial

l

(C) Specifying Corid~ions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the courl may, insteed of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met w~hout undue hardship; and ii) ensures thet the sUbpoeneed person will be raasonably compensated. d DUTIES IN RESPONDING TO A SUBPOENA. Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce tham as they are kept in the ordinary coursa ofbusiness or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce ~ in a form or forms in which ~ is ordinarily maintained or in a reasonably usabla form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery. of electronicelly stored information from sources that the person identifieS as not reasonably accassible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requestirlQ party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify cond~ions for tha discovery. (2) Claiming PriVilege or Protection. (A) Information Withheld, A person w~hholding subpoenaed information under a claim that ~ is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (il) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itseW privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim arid the basis for it. After being notified, a party must promptly retum, sequester, or destroy the specified information and any copies ~ has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrleva the information if the party disclosed ~ before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (e) CONTEMPT. The Issuing court may hold in contemp~a rson who, having been served, fails w~out adequate excuse to obey the subpoena. A nonpa s failure to obey must be excused if the SUbpoena purports to reqUire the nonparty to atle or produce at a place outside the Iim~s of Rule 45(c)(3) (A)(ii).

lII

I

A088 (Rev. 12/07) Subpoena in a Civil Case

Case 1:07-cv-00026-OWW-TAGIssued Document by the 140-2

Filed 05/22/2008

Page 29 of 50

UNITED STATES DISTRICT COURT _______E_a_s_t_e_r_n

C_a_l_i_f_o_r_n_l_·a

DISTRICT OF

David F. Jadwin, D.O.

_

SUBPOENA IN A CIVIL CASE 1

CASE NUMBER: 1: 07-cv00026-0WW-TAG

V. County of Kern, et al.

To Custodian of Records of:

D

Anoshiravan Taheri-Tafreshi, M.D. 921 Westwood Blvd., Ste 232 Los Angeles, CA 90024

YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

COURTROOM

PLACE OF TESTIMONY

DATE AND TIME

D

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case

I"'' '

"'" '"""""m,," ~

NID "'"

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

All patient records relating to the above named records subject, regardless of date. Pertaining to David F. Jadwin

PLACECopyPage Records Retrieval Systems 20809 Higgins Court Torrance, CA 90501

D

, ,", .,

DATE AND TIME 5/21/2008 10:00 AM

I"'' '

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. NID "'"

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30{b){6)

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATIORNEY FOR PLAINTIFF OR DEFENDANT)

DATE May 2, 2008

Attorney for Counsel for Defendant,

ISSUING OFFICER'S NAME, ADDRESS, AND TELEPHONE NUMBER Law Offices of Mark A. Wasser / Attention: Mark A. Wasser 400 Capitol Mall, Ste. 1100, Sacramento, CA 95814

(916) 444-6400

(See Rule 45. Federal Rules of Civil Procedure 45 (e), (d), & (e) on Next Page) ~

action is pending in district other than district of issuance, state district under case number.

Ref#: 85774

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

Document 140-2

Filed 05/22/2008

Page 30 of 50

A088 (Rev. 12/(7) Subpoena in a Civil Case (page 2)

PROOF OF SERVICE

DATE

PLACE

SERVED Personal Service SERVED ON (PRINT NAME)

MANNER OF SERVICE

Process Server TITLE

SERVED BY (PRINT NAME) DECLARATION OF SERVER

I declare under penalty of pe~ury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on

--------------

Signature of Server

Date

20809 Higgins Court Address of Server

Torrance, CA

90501

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007: (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions. A perty or attomey responsible for Issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or axpense on a parson subject to the subpoena. The issuing court must anforce this duty and impose an appropriate sanction ~ich may include lost eamings and reasonable attorney's fees - on a party or attorney who fails to comply. (2) Command to Produce Materials or Perm~ Inspection. (A) Ap~arence Not Required. A person commanded to produce documents. electronically stored Information, or tengible things, or to perm~ the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a depos~ion, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to perm~ inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premIses - or to producing alectronically stored information in tile form or forms requested. The objection must be served befora the earlier of the tima specified for compliance or 14 deys aKer the subpoena is served. If an objection is made, the following rules apply: (i) At any lime, on notica to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (Ii) These acts may be required only as directed in the ordet, and the order must protect a person who is neither a party nor a party's offICer from signiflC8nt expense resuKing from compliance. (3) Quashing or Modifying a Subpoena. (A) When ReqUired. On timaly motion, the issuing court must quash or modify a subpoena that: il feils to allow a reasonable time to comply; iI) requires a person who is neither a party nor a party's officer to traval more than 100 miles from where that person resides, is employed, or regUlarly transacts business in person - except thet, subject to Rule 45{c){3)(B)(iil), the person may be commanded to attend a trial by traveling from any such placa within the stale where the trial is held; (iii) requires disclosure of privilegad or other protected matter, If no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena If ~ requires: (i) disclosing a trede secret or other confidential research, development, or commercial information; (iiI disclosing an unretainad expert's opinion or information that does not describe specific occurrences in dispute and resuKs from the expert's study that was not requested by a party; or (iii) a person who is neither e party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial

l

(C) Specifying Cond~ions as an AKernative. In the circumstances described in Rule 45{c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions If the serving party: (i) shows a substantial need for the testimony or material thet cannot be otherwise met w~hout undue hardship; and ii~ ensures that the subpoeneed person will be reasonably compensated. d DUTIES IN RESPONDING TO A SUBPOENA. 1 Producing Oocuments or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to e subpoena to produce documents must produce them es they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoene does not specify a form for producing electronically stored informetion, the person responding must produce ~ In a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same alectronically stored information in more than one form. (0) Inaccessible Electronically Stored Information. The person responding naad not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible bacause of undue burden or cost. On motion to compel discovery or for a protective ordet, the person responding must show that the information is not reasonably accessible bacause of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources If the requestillQ party shows good cause, considering the Iim~ations of Rule 26{b)(2)(C). The court may specify cond~ions for the discovery. (2) Claiming Privilege or Protection. (A) Informalion Vv1Ihheld, A person withholding subpoeneed information under a claim that ~ is privilegad or subject to protection as trial-pteparation material must: (il expressly make the claim; and (iI) describe the nature of the w~hheld documants, communications, or tangible things in a manner that, without revaaling information "self privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for~. After being notified, a party must promptly retum, sequestar, or destroy the specified information and any copies ~ has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the Information If the party disclosed ~ before being notified; and may promptly prasentthe information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is rasolved. (e) CONTEMPT. tlie issuing court may hold in contempt~rson who, having been served, fails without adequate excuse to obey the subpoena. A nonpa s failure to obey must be excused If the subpoena purports to require the nonparty to atten or produce at a piece outside the Iim~s of Rule 45(c)(3) (A)(i1).

!

A088 (Rev. 12/07) Subpoena in a Civil Case

Case 1:07-cv-00026-OWW-TAGIssued Document by the 140-2

Filed 05/22/2008

Page 31 of 50

UNITED STATES DISTRICT COURT _______E_a_s_t_e_r_n

C_a_l_~_·f_o_r_n_i_a

DISTRICT OF

David F. Jadwin, D.O.

_

SUBPOENA IN A CIVIL CASE 1

CASE NUMBER: 1: 07-cv00026-0WW-TAG

v. County of Kern, et al.

To Custodian of Records of:

D

Cecilia Kaesler, D.O., Verdugo Internal Medicine, Inc. 1890 Verdugo Blvd., Ste 200 Glendale, CA 91208

YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

COURTROOM

PLACE OF TESTIMONY

DATE AND TIME

D

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case

I,."",,,,..,

,CAl:, O,""OSmoN ~

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

All patient records relating to the above named records subject, regardless of date. Pertaining to David F. Jadwin

PLACECopyPage Records Retrieval Systems 20809 Higgins Court Torrance, CA 90501

D

DATE AND TIME 5/21/2008 10:00 AM

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6)

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)

DATE May 2, 2008

Attorney for Counsel for Defendant,

ISSUING OFFICER'S NAME, ADDRESS, AND TELEPHONE NUMBER Law Offices of Mark A. Wasser / Attention: Mark A. Wasser 400 Capitol Mall, Ste. 1100, Sacramento, CA 95814

(916) 444-6400

(See Rule 45. Federal Rules of Civil Procedura 45 (c). (d), & (e) on Next Page) ~

action is pending in district other then district of issuance, state district undar casa number.

Ref#: 85775

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

Document 140-2

Filed 05/22/2008

Page 32 of 50

A088 (Rev. 12/07) Subpoena in a Civil Case (page 2)

PROOF OF SERVICE

DATE

PLACE

SERVED Personal Service SERVED ON (PRINT NAME)

MANNER OF SERVICE

Process Server SERVED BY (PRINT NAME)

TITLE DECLARATION OF SERVER

I declare under penalty of pe~ury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on

- - - - - -Date ------

Signature of Server

20809 Higgins Court Address of Server

Torrance, CA

90501

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007: (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1' Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for Issuing and serving a subpoena must take reasonable steps to evoid imposing undue burden or expense on a person subject to the subpoena. The iSluing court must enforce this duty and impose an eppropriate sanction ~ich may include lost eamings and reasonable attomey's fees - on a party or attorney who feils to comply. (2) Command to Produce Materials or Perm" Inspection. (A) Appearence Not Required. A person commended to produce documents, electronicelly stored information, or tangible things, or to permit the inspection of premises, need not appeer in person at the piece of production or inspection unless also commanded to eppear for a depos"ion. hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to perm" inspection mey serve on the party or attorney designated in the subpoena a written objection to inspecting. copying, testing or sampling any or all of the materials or to inspecting the premISes - or to producing electronically stored information in tile form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days aller the sUbpoene is served. If an objection is mede, the following rules apply: (i) At any lime, on notice to the commended person, the serving party mey move the issuing court for an order compelling production or inspection. (ii) These scts may be required only as directed in the order, and the order must protect a person who is ne"her a party nor a party's officer from signiflC8nt expense resulling from compliance. (3) Quashing or Modifying s Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a raasonable time to comply; (ii) requires a person who is ne"her a party nor e party's offlC8r to trevel more than 100 miles from where that person resides, is employed, or regularly transacts business in person - except that, subject to Rule 45(c)(3)(B)(iil), the person may be commanded to attend e trial by traveling from any such place w"hin the stale where the trial is held; (iii) requires disclosura of privileged or other protected matter, If no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person SUbject to or affected by a subpoene, the issuing court may, on motion, quash or modify the subpoena If it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing en unretained expert's opinion or informetion thet does not describe specific occurrences in dispute and resulls from the expert's study thet was not requested by a perty; or (iii) e person who is ne"her s party nor a party's offlC8r to incur substantial expense to travel more than 100 miles to attend trial

(C) Specifying Cond"ions es an Allemetive. In the circumstances described in Rule 45(c)(3)(B), the court may, insteed of quashing or modifying a subpoena, order appearance or productIOn under specified cond"ions If the serving party: (i) shows a sUbslantial need for the testimony or materielthet cannot be otherwise met without undue hardship; and ii) ensures that the subpoeneed person will be reasonably compensated. dl DUTIES IN RESPONDING TO A SUBPOENA. 1l Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the cetegories in the demand. (B) Form for Producing Electronicelly Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it 'in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) InecceSlible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identiftes as not reasonably eccessible because of undue burden or cosl. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cosl. If that showing is mede, the court may nonetheless order discovery from such sources If the requesting party shows good ceuse, considering the Iimllations of Rule 26(b)(2)(C). The court may specify cond"ions for the discovery. 2) Claiming Privilege or Protection. A) Information Withheld, A person w"hholding subpoenaed information under a claim thet " is privileged or subject to protection as trial-preparetion material must: i, expressly make the claim; and i1) describe the nature of the w"hheld documents, communications, or tangible things in a manner that, wnhoul revealing information "self privileged or protected, will enable the parties to assess the cleim. (B) Information Produced. If information produced in response to e SUbpoena is subject to a claim of privilege or of protection as trial-preparation material, the person meking the claim may notify any party that received the information of the claim and the basis for il. Aller being notified, a party must promptly retum, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the informetion If the party disclosed it before being notified; and may promptly present the information to the court under seal for e determinetion of the claim. The person who produced the information must preserve the information until the claim is resolved. (e) CONTEMPT. the issuing court may hold in contempt ~rson who, having been served, fails without adequate excuse to obey the subpoena. A nonpart s failure to obey must be excused If the SUbpoena purports to require the nonparty to attan or produce at a piece outside the limits of Rule 45(c)(3) (A)(ii).

I

1

I

A088 (Rev. 12/07) Subpoena in a Civil Case

Case 1:07-cv-00026-OWW-TAGIssued Document by the 140-2

Filed 05/22/2008

Page 33 of 50

UNITED STATES DISTRICT COURT _______E_a_s_t_e_r_n

DISTRICT OF

David F. Jadwin, D.O.

C_a_l_i_f_o_r_n_l_'a

_

SUBPOENA IN A CIVIL CASE 1

CASE NUMBER: 1: 07-cv00026-0WW-TAG

v. County of Kern, et al.

To Custodian of Records of:

D

Vincent Fortanasce, M.D., Neurology Consultants 655 W. Naomi Ave., Ste 201 Arcadia, CA 91007

YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

COURTROOM

PLACE OF TESTIMONY

DATE AND TIME

D

~

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

All patient records relating to the above named records subject, regardless of date. Pertaining to David F. Jadwin

PLACECopyPage Records Retrieval Systems 20809 Higgins Court Torrance, CA 90501

D

",.""

DATE AND TIME 5/21/2008 10:00 AM

I"",, ,.,

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

TIM'

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6)

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)

DATE May 2, 2008

Attorney for Counsel for Defendant,

ISSUING OFFICER'S NAME, ADDRESS, AND TELEPHONE NUMBER Law Offices of Mark A. Wasser / Attention: Mark A. Wasser 400 Capitol Mall, Ste. 1100, Sacramento, CA 95814

(916) 444-6400

(See Rule 45. Federal Rules of Civil Procedure 45 (e), (d), & (e) on Next Page) If action is pending in district other than district of issuance, state district under case number.

Ref#: 85776

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

Document 140-2

Filed 05/22/2008

Page 34 of 50

A088 (Rev. 12/07) Subpoena in a Civil Case (page 2)

PROOF OF SERVICE

DATE

PLACE

SERVED Personal Service SERVED ON (PRINT NAME)

MANNER OF SERVICE

Process Server SERVED BY (PRINT NAME)

TITLE DECLARATION OF SERVER

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on Date

Signature of Server

20809 Higgins Court Address of Server

Torrance, CA

90501

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007: (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions, A party or attomey responsible for ISsuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena, The illuing court must enforce this duty and impose an appropriate sanction _hich may include lost eamings and reasonable attomey's fees - on a party or attorney who fails to comply. 2) Command to Produce Materials or Perm" Inspection. A) Appearance Not Required. A person commanded to produce documants, electronically stored information, or tangible things, or to perm" the inspection of premises, need not appear in person at the place of production or inspection unlell also commanded to appear for a depos"ion, heering, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attomey designated in the subpoena a wrillan objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premISes - or to producing alectronically stored information in tile form or forms requested. The objection must be served before the earliet of the time specified for compliance or 14 days aller the subpoena is served. If an objection is made, the following rules apply: (i) At any lime, on notice to the commanded person, the serving perty may move the illulng court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the illuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply: (ii) requires a person who is nellher a party nor a party's officer to travel more than 100 miles from where that person resides, is emp.loyed, or regularly transac18 businell in person - except that, subject to Rule 45(c)(3)(B)(iil), the person may be commanded to attend a trial by traveling from any such place Within the stale where the triel is held; (iii) requires disclosure of privileged or other protected metter, Wno exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permilled. To protect a person sui?ject to or effected by a SUbpoena, the illuing court may, on motion, quash or modify the subpoene if II requires: (i) disclosing a trade secret or other confidential research, development, or commarcial information; (ii) disclosing an unratained expert's opinion or information thet does not describe specific occurrences in dispute and resulls from the expert's stUdy that was not requested by a party; or (iii) a person who is nellher a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial

l

(C) Specifying Condllions as an Allemative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of queshing or modifying a subpoena, order appearance or production under spacifled cond"ions Wthe serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and ii) ensures that the subpoeneed person will be reasonably compensated. d DUTIES IN RESPONDING TO A SUBPOENA. Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of buSinell or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If e subpoena does not specify e form for producing electronically stored information, the person responding must produce II in e form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the seme electronically stored information in more than one form. (D) Ineccellible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sourcas that the person identifies as not reasonably accanible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources Wthe requesti"l! party shows good cause, considering the IIm"ations of Rule 26(b)(2)(C). The court may specify condllions for the discovery. 2) Claiming l'irivllege or Protection. A) Information Withheld, A person wllhholding subpoenaed information under a claim that" is privileged or subject to protection as trial-preparation material must: i1expressly make the claim; and i1) describe the nature of the wllhheld documents, communications, or tangible things in a manner that, wllhout revealing information "self privileged or protected, will enable the parties to assell the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party thet received the information of the claim and the basis for it. After being notified, a party must promptly retum, sequester, or destroy the specified information and any copies" has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information Wthe party disclosed" before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (e) CONTEMPT. the illuing court may hold in contemPt~son who, having been served, fails w"hout adequate excuse to obey the subpoena. A nonpa s failure to obey must be excused Wthe subpoena purports to require the nonparty to atten or produce at a place outside the limlis of Rule 45(c)(3) (A)(ii).

I1l

l l

A088

~Rev.

12/07) Subpoena in a Civil Case

Case 1:07-cv-00026-OWW-TAGIssued Document by the 140-2

Filed 05/22/2008

Page 35 of 50

UNITED STATES DISTRICT COURT _______E_a_s_t_e_r_n

DISTRICT OF

David F. Jadwin, D.O.

C_a_l_i_f_o_r_n_l_'_a

_

SUBPOENA IN A CIVIL CASE 1

CASE NUMBER: 1: 07-cv00026-0WW-TAG

v. County of Kern, et al.

To Custodian of Records of:

D

Casa Colina Centers for Rehab 255 E. Bonita Ave. Pomona, CA 91767

YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case,

COURTROOM

PLACE OF TESTIMONY

DATE AND TIME

D

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case

I,.. ",.,"'"

''''''' O""O"TION

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

All patient records relating to the above named records subject, regardless of date. Pertaining to David F. Jadwin

PLACECopyPage Records Retrieval Systems 20809 Higgins Court Torrance, CA 90501

D

DATE AND TIME 5/21/2008 10:00 AM

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6)

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATIORNEY FOR PLAINTIFF OR DEFENDANT)

DATE May 2, 2008

Attorney for Counsel for Defendant,

ISSUING OFFICER'S NAME, ADDRESS, AND TELEPHONE NUMBER Law Offices of Mark A. Wasser / Attention: Mark A. Wasser 400 Capitol Mall, Ste. 1100, Sacramento, CA 95814

(916) 444-6400

(See Rule 45. Federal Rules of Civil Procedure 45 (c), (d), & <e) on Next Page) If action is pending in district other than district of issuance, state district under case number.

Ref#: 85777

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

Document 140-2

Filed 05/22/2008

Page 36 of 50

A088 (Rev. 12/07) Subpoena in a Civil Case (page 2)

PROOF OF SERVICE

DATE

PLACE

SERVED Personal Service SERVED ON (PRINT NAME)

MANNER OF SERVICE

Process Server SERVED BY (PRINT NAME)

TITLE DECLARATION OF SERVER

I declare under penalty of pe~ury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on Date

Signature of Server

20809 Higgins Court Address of Server

Torrance, CA

90501

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007: (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for Issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction -which may include lost earnings and reasonable attorney's fees - on a party or attorney who fails to comply. 2) Command to Produce Materials or Permit Inspection. A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permil the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposilion, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises - or to producing electronically stored information in tile form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days ailer the subpoena is served. If an objection is made, the following rules apply: (i) At any lime, on notice to the commanded person, the serving party may move the issuing court for an order compellinll production or inspection. (ii) These acts may be required only ss directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resuiling from compliance. (3) Quashing or Modifying a SUbpoena. (A) When Required. On timely motion, the issuing court must quash or modify a SUbpoena thal: i) fails to allow a reasonable time to comply; il) requires a person who is neilher a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularty transacts business in person - except that, subject to Rule 45(c)(3)(B)(iil), the person may be commanded to attend a trial by traveling from any such place wilhin the stale where the trial is held; (iii) requires disclosure of privileged or other protected matter, If no exception or waiver epplies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena If iI requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information thet does not describe specific occurrences in dispute and resuils from the expert's study that was not requested by a party; or (iii) a person who is neilher a perty nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial

l

I

(C) Specifying Condilions as an Ailemative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specifIed condilions If the lerving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met wilhout undue hardship; and ii) enlures that the subpoenaed person will be reasonably compensated. dl DUTIES IN RESPONDING TO A SUBPOENA. 11 Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically Itored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, tha person responding must produce it In a form or forml in which iI is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not prOVide dilcovery of electronically stored information from lources that the person identifies as not reasonably acceslible becaule of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information il not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless ordar discovery from such sources If the requestinll party shows good cause, considering the Iimilations of Rule 26(b)(2)(C). The court may specify condilions for tha discovery. (2) Claiming PriVilege or Protection. (A) Information \lVithheld, A person wilhholding subpoenaed information under a claim that iI is privileged or subject to protection as trial-praparation material musl: (i) expressly make the claim; and (iI) deacribe the nature of tha withheld documants, communications, or tangible things in a manner that, wilhout revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is SUbject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly retum, sequester, or destroy the specifl8d information and any copies iI has; must not usa or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information If the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must presarve the information until the claim is resolved. (e) CONTEMPT. the issuing court may hold in contemPt~rson who, having been served, feils wilhout adequate excule to obey the subpoene. A nonpa s failure to obey must be excused If the subpoene purports to require the nonparty to atten or produce at a place outside the limils of Rule 45(c)(3) (A)(ii).

I

A088 (Rev, 12/07) Subpoena in a Civil Case

Case 1:07-cv-00026-OWW-TAG Document Issued by the 140-2

Filed 05/22/2008

Page 37 of 50

UNITED STATES DISTRICT COURT _______E_a_s_t_e_r_n

C_a_l_i_f_o_r_n_l_'a

DISTRICT OF

David F. Jadwin, D.O.

_

SUBPOENA IN A CIVIL CASE 1

CASE NUMBER: 1: 07-cv00026-0WW-TAG

v. County of Kern, et al.

To Custodian of Records of:

D

Christopher J. Charbonnet, M.D., The Foothill Center for Wellness & Pain Management 1505 Wilson Terrace, Ste 240 Glendale, CA 91206

YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

COURTROOM

PLACE OF TESTIMONY

DATE AND TIME

D

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

All patient records relating to the above named records subject, regardless of date. Pertaining to David F. Jadwin

PLACECopyPage Records Retrieval Systems 20809 Higgins Court Torrance, CA 90501

DATE AND TIME 5/21/2008 10:00 AM

D

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. '""''''' I-DA-T-E-AN-D-T-IM-E-----------

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6)

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATIORNEY FOR PLAINTIFF OR DEFENDANT)

DATE May 2, 2008

Attorney for Counsel for Defendant,

ISSUING OFFICER'S NAME, ADDRESS, AND TELEPHONE NUMBER Law Offices of Mark A. Wasser / Attention: Mark A. Wasser 400 Capitol Mall, Ste. 1100, Sacramento, CA 95814

(916) 444-6400

(See Rule 45, Federal Rules of Civil Prooedure 45 (e), (d), & (e) on Next Page) ~

action is pending in district other than district of issuance, state district under case number,

Ref#: 85778

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

Document 140-2

Filed 05/22/2008

Page 38 of 50

A088 (Rev. 12/07) Subpoena in a Civil Case (page 2)

PROOF OF SERVICE

PLACE

DATE

SERVED Personal Service MANNER OF SERVICE

SERVED ON (PRINT NAME)

Process Server TITLE

SERVED BY (PRINT NAME) DECLARATION OF SERVER

I declare under penalty of pe~ury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on

-------------Date

Signature of Server

20809 Higgins Court Address of Server

Torrance, CA

90501

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1,2007: (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1 ) Avoiding Undue Burden or Expense; Sanctions. A perty or attorney responsible for issuing and serving a subpoena must laka raasonable steps to avoid imposing undue burden or expense on a person subjac:t to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction -which may include lost earnings and reasonable attorney's fees - on a party or attorney who fails to comply. (2) Command to Produce Materials or Permij Inspac:tion. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspac:tion of premises, need not appear in person at the place of production or inspac:tion unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objac:tion to inspec:ling, copying, testing or sampling any or all of the materials or to inspac:tlng the premises - or to producing elec:lronically stored information in tile form or forms requested. The objac:tion must be served before the eartiar of the tima specified for compliance or 14 days aller the subpoena is served. If an objac:tion is made, the following rules epply; (i) At any lime. on notic:a to the commanded person, the serving party may move the issuing court for an order compelling production or inspac:tion. (ii) These acts may be required only as dirac:ted in the order, and the order must protect a person who is neijher a party nor a party's otrJC8f' from signiflC8nt expense resulling from compliance. 3) Quashing or Modifying a Subpoena. A) 'MIen Required. On timely motion, the issuing court must quash or modify a subpoena that (i) fails to allow a reasonable time to comply; (i1) requires a person who is neither a party nor a party's officer to travel more than 100 miles from whare that person resides. is amployed, or regularty transac:ts business in person - except that, subjec:l to Rule 45(c)(3)(B)(iil), the person may be commanded to attend a trial by traveling from any such place Within the stala where the trial is held; (iii) requires disclosure of privileged or other protacted matter, if no exception or waiver applias; or (iv) subjects a person to undue burden. (B) 'MIan Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidantial research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe specific oc:c:urrances in dispute and results from the expert's study that was not requested by a party; or (iii) a person who is neijher a party nor a party's officer to incur substantial expense to travel more than 100 miles to attand trial

1

(C) Specifying Condijions as an Allemative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party; (i) shows a substantial need for the tastimony or material that cannot be otherwise met without undue hardship; and (Ii) ensures thet the subpoeneed person will be raasonably compensated. (d) DUTIES IN RESPONDING TO A SUBPOENA. (1) Producing Documents or Elec:tronic:ally Stored Information. These procedures apply to producing documents or elec:tronic:ally stored information; (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course ofbusinass or must organize and label them to correspond to the categories in the demand. (B) Form for Producing EIec:tronic:a11y Stored Information Not Spec:ifl9d. If a subpoena does not specify a form for producing elec:tronic:ally stored information, the person responding must produce it in a (orm or forms in which" is ordinarily maintained or in a reasonably usable form or forms. (C) Elec:lronically Stored Information Produced in Only One Form. The person responding need not produce the same elec:tronically stored information in more then one form. (D) Inecc:essible Elec:tronic:ally Stored Information. The person responding need not provide discovery of elec:tronically stored information from sources that the person identifies as not reasonably eccessible because of undue burden or cost. On motion to compel diac:overy or for a protective order, the person responding must show thet the information is not reasonably accessible because of undue burden or cost. If thet showing il made, the court may nonetheless order dilcovery from luch SOUrcel if the requestinq party shows good cause, considering the IImijations of Rule 26(b)(2)(C). The court may specify condijions (or the dilcovery. (2) Cleiming Privilege or Protac:tion. (A) Information Withheld, A person withholding subpoenaed information under a claim that it is privileged or subject to protection al trial..preperation material must (il expressly make the claim; and (il) deacribe the nature of the withheld documents, communications, or tangible things in a manner that, w"hout revealing information ijself privileged or protec:led, will enable the parties to assess the claim. (B) Information Produced. If information produced in relponse to a subpoena is subject to a claim of privilege or of protection al trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notifl9d, a party mUlt promptly return, sequelter, or destroy the lpecified information and any copies it has; must not use or diaclose the informetion until the claim is relolved; must take reasonable stepl to retrieve tha informetion if the party dilcloled ij before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim il relolved. (e) CONTEMPT. TIie ilsuing court mey hold in contemPt~rson who, having been served, fails w~out adequate excuse to obey the subpoena. A nonpa s failure to obey must be excused if the subpoena purports to require the nonparty to atten or produce at a place outside the limits of Rule 45(c)(3) (A)(ii).

A088 (Rev. 12/07) Subpoena in a Civil Case

Case 1:07-cv-00026-OWW-TAGIssued Document by the 140-2

Filed 05/22/2008

Page 39 of 50

UNITED STATES DISTRICT COURT _______E_a_s_t_e_r_n

C_a_l_i_f_o_r_n_l_·a

DISTRICT OF

David F. Jadwin, D.O.

_

SUBPOENA IN A CIVIL CASE 1

CASE NUMBER: 1: 07-cv00026-0WW-TAG

v. County of Kern, et al.

To Custodian of Records of:

D

Michael Cann, M.D. 1818 Verdugo Blvd., Ste 201 Glendale, CA 91208

YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

COURTROOM

PLACE OF TESTIMONY

DATE AND TIME

D

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case

""''' 0'

",o,mo, "'o,mo'

I_DA_T_E_A_ND_T_IM_E

_

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

All patient records relating to the above named records subject, regardless of date. Pertaining to David F. Jadwin

PLACECopyPage Records Retrieval Systems 20809 Higgins Court Torrance, CA 90501

D

DATE AND TIME 5/21/2008 10:00 AM

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

"'''"''''

;-DA-T-E-A-ND-T-IM-E-----------

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6)

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)

DATE May 2, 2008

Attorney for Counsel for Defendant,

ISSUING OFFICER'S NAME, ADDRESS, AND TELEPHONE NUMBER Law Offices of Mark A. Wasser / Attention: Mark A. Wasser 400 Capitol Mall, Ste. 1100, Sacramento, CA 95814

(916) 444-6400

(See Rule 45. Federal Rules of Civil Procedure 45 (e), (d), & (e) on Neld Page) If action is pending in district other than district of issuance, stete district under case number.

Ref#: 85779

• Case 1:07-cv-00026-OWW-TAG

Document 140-2

Filed 05/22/2008

Page 40 of 50

A088 (Rev. 12/07) Subpoena in a Civil Case (page 2)

PROOF OF SERVICE

DATE

PLACE

SERVED Personal Service SERVED ON (PRINT NAME)

MANNER OF SERVICE

Process Server TITLE

SERVED BY (PRINT NAME) DECLARATION OF SERVER

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on

-------------Date

Signature of Server

20809 Higgins Court Address of Server

Torrance, CA

90501

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007: (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attomey responsible for Issuing and serving a subpoena must take reasonable staps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction -which may include lost eamings and reasonable attorney's fees - on a party or attorney who fails to comply. (2) Command to Produce Materials or Permillnspection. (A) Appearance Not Required. A person commanded to produce documents, electronicelly stored information, or tangible things, or to permil the inspection of premises. need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commended to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a wrillen objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises - or to producing electronically stored information in tile form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days atter the subpoena is served. Wan objection is made, the following rules apply: (i) At any lime. on notice to the commanded person. the serving perty may move the issuing court for an order compellinp production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neilher a party nor a party's offlC8r from signifICant expense resutting from compliance. 3) Quashing or Modifying a SUbpoena. A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neilher a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularty transacts business in person - except that, subject to Rule 45(c)(3)(B)(ii'), the person may be commanded to attend a trial by traveling from any such place Within the stale where the trial is held; (iii) requires disclosure of privileged or other protected matter, ~ no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena ~ it requires: (i) disclosing a trade secret or other confidential research, development, or commerciel informetion; (ii) disclosing an unretained expert's opinion Or information that does not describe specific occurrences in dispute and resutts from the expert's study that was not requested by a party; or (iii) a person who is neither a perty nor e party's officer to incur substential expense to travel more than 100 miles to attend trial

l

(C) Specifying Condilions as an AAemative. In the circumstances described in Rule 45(c)(3)(B), the court mey, insteed of quashing or modifying a subpoena, order appearance or production under specified condilions nthe serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met wilhout undue hardship; and (i1) ensures that the subpoenaed person will be reasonably compensated. (d) DUTIES IN RESPONDING TO A SUBPOENA. (1) Producing Documants or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoene to produce documents must produce them es they are kapt in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. Wa subpoena does not specify a form for producing electronically stored information, the person responding must produce i1,n a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifl8s as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. Wthat showing is made, the court may nonetheless order discovery from such sources nthe requestinll party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. 2) Claiming Privilege or Protection. A) Information Withheld, A person wilhholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (i1) describe the nature of the wilhheld documents, communications, or tangible things in a manner that, without revealing information itaeW privileged or protected. will enable the parties to assess the claim. (B) Information Produced. Winformation produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly retum, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information nthe party disclosed iI before being notified; end may promptly present the information to the court under seal for e determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (e) CONTEMPT. The issuing court may hold in contempt a n Who, having been served, fails wilhout adequete excuse to obey the subpoena. A nonpa • failure to obey must be excused ~ the subpoene purport. to require the nonparty to alten or produce et a place outside the limils of Rule 45(c)(3) (A)(ii).

1

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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 27

EXHIBIT 3

28 DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 7

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 140-2 132

2 3

Filed Filed 05/22/2008 05/16/2008

Page Page 42 1 ofof350

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

PLAINTIFF AND ORDER 21 22 23

vs. COUNTY OF KERN, et aI.,

Complaint Filed: January 5, 2007 Trial Date: December 3,2008

Defendants.

24 25

PURSUANT TO THE ORDER OF THE COURT, IT IS HEREBY STIPULATED by

26

and between the parties through their respective counsel that Plaintiff, David F. Jadwin, shall

27

submit to a mental and psychiatric examination by Dr. Robert Burchuk on Monday, May 19,

28

2008 from 10:00 a.m. to 2:00 p.m. and Thursday, May 29 from 1:00 p.m. to 5:00 p.m. in Dr.

1 STIPULATION RE EXAMINATION OF PLAINTIFF AND ORDER

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Filed Filed 05/22/2008 05/16/2008

Page Page 43 2 ofof350

1

Burchuk's office at 23522 Califa Street, Woodland Hills, California. Dr. Burchuk's telephone is

2

818-922-4900. The examination shall consist of an oral interview and evaluation and the

3

one

Memory Mallmgermg

test orocedlure

4 raw test scores,

evalua1:ion to be conldm;ted

Rick

~arKaslan,

dIsclosed to PlaJllltltt

on Wednesday, May 28, 2008 at 1

Mark A. Wasser Attorney for Defendants, County of Kern, et al.

21 22 23 24 25

Dated: May 16, 2008

LAW OFFICE OF EUGENE LEE By:

lsi Eugene D. Lee (as authorized on 5/16/08) Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.

26 27 28 2 STIPULATION RE EXAMINATION OF PLAINTIFF AND ORDER

a.m.

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 140-2 132

1

2

Filed Filed 05/22/2008 05/16/2008

Page Page 44 3 ofof350

ORDER

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

3

21

22 23

24 25

26

27 28

3 STIPULATION RE EXAMINATION OF PLAINTIFF AND ORDER

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

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EXHIBIT 4

28 DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 8

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

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Page 46 of 50

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

Eugene D. Lee [[email protected]] Monday, May 19, 2008 11:47 AM '[email protected]' RE: DME

I got through to Dr. Jadwin. He was on his way home. He turned his car around and he should be arriving at Dr.  Burchuk’s office right about now.    You mentioned on the phone that the wrong address was due to a miscommunication between you and Karen Barnes  and that you would email me some kind of proposal for making up the lost time. I’ll be happy to take a look at it.   

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: Monday, May 19, 2008 10:58 AM To: [email protected] Subject: RE: DME

  Gene, Dr. Jadwin should be at 6320 Canoga Ave, Suite 1500, Woodland Hills. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, May 19, 2008 10:43 AM To: [email protected] Subject: DME

  Mark,  1

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

Document 140-2

Filed 05/22/2008

Page 47 of 50

  I just tried calling you but you weren’t available.     Dr. Jadwin called to tell me that he is at Dr. Burchuk’s office at 23522 Califa St., Woodland Hills, California. He’s been  waiting outside the gate for over 30 minutes now but no one seems to be letting him in. Please advise.   

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.

         

2

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Filed 05/22/2008

Page 48 of 50

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 27

EXHIBIT 5

28 DECLARATION OF EUGENE D. LEE re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 9

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

Eugene D. Lee [[email protected]] Monday, May 19, 2008 4:17 PM '[email protected]' RE: Subpoena of Drs. Taheri/Riskin

Mark,    You served the subpoenas (in violation of the Court’s Scheduling Order) prior to the mishap at today’s DME. That is  separate and distinct from the fact that the DME was only 2 hours long today because defendants mistakenly gave  plaintiff the wrong address for the DME. Plaintiff will not bargain to gain your compliance with the Order of the Court.  We will be filing a motion to quash and for protective order.    I also note that Dr. Burchuk had Dr. Jadwin execute HIPAA releases at the DME authorizing his treating therapists to  disclose all patient information to him. Because his attorneys were not present and he was not allowed to contact his  attorneys during the DME, Dr. Jadwin signed the authorizations without the advice of counsel. I have since informed Dr.  Jadwin of the existence of the Scheduling Order (prohibiting disclosure of treater psychotherapy notes, etc.) and he has  revoked the HIPAA releases. It is precisely this kind of conduct that plaintiff sought to prevent in requesting Dr. Jadwin  be permitted to ask his attorneys questions during the DME.   

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: Monday, May 19, 2008 3:09 PM To: [email protected] Subject: RE: Subpoena of Drs. Taheri/Riskin

  Gene, Dr. Jadwin saw Dr. Burchuk, I understand, for about 2 hours today. We propose the May 29 session be moved to June 2 and expanded to 6 hours. That will limit the exam to two sessions and allow Dr. Burchuk to complete it. If we can do that, 1

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

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Page 50 of 50

then the language in the Scheduling Order that you quote in this e-mail will be satisfied and the subpoenas can be limited accordingly. Let me know. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, May 19, 2008 2:34 PM To: [email protected] Subject: Subpoena of Drs. Taheri/Riskin Importance: High

  Mark,    I’ve received your subpoena of medical records from Drs. Taheri and Riskin (plaintiff’s therapists).    I am writing to object to your subpoena. As you recall, in the Scheduling Order (Doc. 29), the parties stipulated as  follows:    “The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of  Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s treating psychiatrists/psychologists shall not  be required to produce their actual treatment notes, but instead shall produce a summary of their treatment of  Plaintiff’s depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion,  including raw data of any psychological testing. Plaintiff is willing to undergo psychological examination by Defendants’  qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding the timing and  scope of the examination, including the specific tests to be performed, and prompt production of the subsequent report  and raw data supporting the report to all parties.” (Scheduling Order, 14:5‐19).    I understand that the subpoena asks for production by 5/21/08. We intend to file a motion to quash subpoena. If you  wish to meet and confer, please let me know.   

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.

        2

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

Document 140-3

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 05/22/2008

Page 1 of 8

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.,

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN, D.O. re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION

12 Defendants. 13 14

Date: April 28, 2008 Time: 9:30 a.m. Place: U.S. District Court, Crtrm. 3 2500 Tulare St, Fresno, CA Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008

15 16 17

I, David F. Jadwin, D.O., declare and say as follows:

18

1.

I am the Plaintiff in the above-captioned action.

19

2.

I am making this declaration in support of Plaintiff’s motion for protective order re

20

defense mental examination. I have personal knowledge of the matters set forth below and I could and

21

would competently testify thereto if called as a witness in this matter.

22 23

3.

On May 19, 2008, I drove the address provided to me by my attorney, Eugene Lee, and

arrived at 10 a.m. I waited outside a gate at the address until 10:40 a.m., but no one let me in.

24

4.

At 10:40 a.m., I called Mr. Lee to tell him of the situation and ask for further instructions.

25

5.

After hanging up the phone, I got back into my car and proceeded to drive home.

26

6.

When I had nearly arrived home, I received a call from Mr. Lee informing me that

27

defense counsel had provided the incorrect address. He instructed me to turn around and drive to a new

28

address. I estimated I would arrive there by 11:45 a.m. or so due to traffic. DECLARATION OF DAVID F. JADWIN re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 1

141 00 1/00 1

OS/21/2008 04.55 FAX

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

7. 2

Document 140-3

Filed 05/22/2008

Page 2 of 8

I arrived at the new address at approximately 12 p.m. upon which Dr. Burchuk began the

defense mental examination.

3

8.

Around 2 p.m., as the examination exwnination was concluding, Dr. Burchuk presented me with two

4

HIPAA authorization and release [OImS [onns permitting Dr. Burchuk to speak with and obtain medical

5

records [rom iatrists, Dr. Paul Riskin and Dr. Anosh Taheri-Tafresh i. A true and from my treating psych psychiatrists, Taheri-Tafreshi.

6

fonns which Dr. Burchuk gave to me are attached as Exhibit A. I had been instructed correct copy ofthe fOIms

7

that I was not to call my attorneys at any time during the examination. IJtherefore complied with Dr.

8

Burohuk's request and signed the releases. Burchuk's

9

9.

ITtape recorded the examination. A true and correct written transcript of a portion of the ofthe

10

ex.amination and the oral statements made by me and by Dr. Burehuk Burchuk is attached hereto as Exhibit oral examination

1)J 1

B.

12

10.

After the examination concluded, I spoke with my attorneys and was infonned that I

13

should not have signed the HIPAA releases because there was an agreement among the attorneys that

14

my treating psychiatrists were not to produce any documents to Defendants other than written summary

15

reports, which had already been provided to Defendants. Upon the advice of my attorneys, I then

16

immediately revoked the HIPAA releases by calling and cmailing emailing Dr. Burchuk, Dr. Riskin and Dr.

17

Taheri-Tafreshi.

18 19

20

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

21 Executed on: May 21,2008 21, 2008 22

23 24 25

JADWIN, D.o. D.O. DAVID F. JADVIIN. Declarant .

26 27 28 DECLARATION OF DAVID F. JADWIN re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 2

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

1

Document 140-3

Filed 05/22/2008

Page 3 of 8

EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT

2 EXHIBIT A.

HIPAA Releases

EXHIBIT B.

DME Transcript Excerpt

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DAVID F. JADWIN re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 1

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

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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 27

EXHIBIT A

28 DECLARATION OF DAVID F. JADWIN re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 2

I

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

Document 140-3

Robert Burchuk, MD

Filed 05/22/2008

Page 5 of 8

Diplomate, American Board of Psychiatry and Neurology

6320 Canoga Avenue Suite 1500 Woodland Hills, California 91367 (818) 340-0821

Request for Release of Outpatient Psychotherapy Medical Information Requesting Individual or Entity: Robert Burchuk, MD ();.

I hereby request that

1I..,'ski

'"?

(Name of the provider of healthcare, the heath care service plan, or contractor)

furnish written and/or verbal out-patient psychotherapy medical information concerning: David Jadwin, MD to the Requesting Individual or Entity. (Patient's name)

This Request includes the release of any and all information pertaining to:

_

Past psychiatric treatment including diagnosis(es), nature and frequency of treatment. knowledge of additional past psychiatric treatment. The information requested will be used for the limited purpose of: Preparation of Forensic Psychiatry Report

Check one:

!

A copy of this Request was provided to the patient on May 19,

2008

o A copy of this Request was NOT sent to the patient, because he/she has signed a written waiver of the form in a signed letter to the Requesting Individual or Entity. Date:

_

Signed:

_

Print Name:

_

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

Document 140-3

Robert Burchuk, MD

Filed 05/22/2008

Page 6 of 8

Diplomate, American Board of Psychiatry and Neurology

6320 Canoga Avenue Suite 1500 Woodland Hills, California 91367 (818) 340-0821

Request for Release of Outpatient Psychotherapy Medical Information Requesting Individual or Enti:t{0bert Burchuk, MD t&1 . I hereby request that

,n

(Name of the provider of healthcare, the heath care service plan, or contractor)

furnish written and/or verbal out-patient psychotherapy medical information concerning: David Jadwin, MD to the Requesting Individual or Entity. (Patient's name)

This Request includes the release of any and all information pertaining to:

_

Past psychiatric treatment including diagnosis(es), nature and frequency of treatment. knowledge of additional past psychiatric treatment. The information requested will be used for the limited purpose of: Preparation of Forensic Psychiatry Report

Check one:

!

A copy of this Request was provided to the patient on May 19,

2008

o A copy of this Request was NOT sent to the patient, because he/she has signed a written waiver of the form in a signed letter to the Requesting Individual or Entity. Date:

_

Signed:

_

Print Name:

_

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

Document 140-3

Filed 05/22/2008

Page 7 of 8

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 27

EXHIBIT B

28 DECLARATION OF DAVID F. JADWIN re MOTION FOR PROTECTIVE ORDER re DEFENSE MENTAL EXAMINATION 3

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

Document 140-3

Filed 05/22/2008

Page 8 of 8

1 DR. BURCHUCK:

Okay.

2 3

EXAMINEE: But yes I was very depressed and the same type of symptoms only it was, you know, there, there just didn’t seem to be anyone around that seemed to care about any of these issues.

4

DR. BURCHUCK:

5

EXAMINEE: Taheri, yeah.

6

DR. BURCHUCK:

7

EXAMINEE: No, no he’s –

8

DR. BURCHUCK:

9

EXAMINEE: He’s a young man, no he’s a young man. He at the University or the VA and he had a small practice on the side.

Okay. I want to get your permission to contact Dr. Taheri?

Taheri. And I, and I know Dr. Riskin has retired.

Or he’s, is he, well he had closed his office?

10 DR. BURCHUCK:

I see.

11 EXAMINEE: And his father became quite ill. 12 DR. BURCHUCK:

Uh huh.

13 EXAMINEE: And he said he had to close his practice – 14 DR. BURCHUCK:

Okay.

15 16

EXAMINEE: – to take care of his father. So I, I know that he’s working, he’s just not working in private practice.

17

DR. BURCHUCK:

18

EXAMINEE: Dr. Taheri had mentioned that he had seen him. He, he’s gotta be like 40 or something like that –

I see.

19 DR. BURCHUCK:

Oh, okay.

20 EXAMINEE: – so he’s really ****. 21 DR. BURCHUCK:

So these are release of information forms and I’m gonna just give you –

22 EXAMINEE: And what’s the date today, I’m sorry? 23 DR. BURCHUCK:

– copies of the forms. Today’s the 19th.

24 EXAMINEE: 19th? Oh. 25 DR. BURCHUCK:

Yeah.

26 EXAMINEE: Do you know how to get a hold of Dr. Taheri? 27 DR. BURCHUCK:

If you have phone numbers, that’d be great.

28

DEFENSE MEDICAL EXAMINATION OF DAVID F. JADWIN, D.O.

46