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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasseLcom Bernard C. Barman, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

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

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID F. JADWIN, D.O. Plaintiff,

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Case No.: 1:07-cv-00026-0WW-TAG DECLARATION OF MARKA. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL

vs. COUNTY OF KERN, et aI.,

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Date: August 5, 2008 Time: 9:30 a.m. Place: U.S. Bankruptcy Courthouse, Bakersfield Courtroom 8

Defendants.

21 Date Action Filed: January 6, 2007 Trial Date: December 2, 2008

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I, Mark A. Wasser, declare as follows:

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1 am counsel of record for Defendants and am familiar with this action. The facts

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stated in this declaration are within my own personal knowledge and I can testify competently to

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them if called as a witness.

28 -1DECLARAnON OF MARK A. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL

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Plaintiff has noticed 17 additional depositions on top of the 16 he has already

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taken. He has also indicated the desire to depose at least some of Defendants' experts and

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supplemental experts. This will apparently lead to another 3 or 4 depositions. That would bring

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the total number of depositions by Plaintiff to about 40.

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Nothing about this case justifies the number of depositions Plaintiff has taken.

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When Defendants agreed to give Plaintiff "relief' from the limitation in Rule 30 they were

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merely consenting to reasonable discovery, not unlimited wasteful depositions.

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The depositions Plaintiff wants to take cannot be completed before the discovery

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cut-off. Defendants proposed extending the discovery cut-off one week to accommodate limited

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depositions, however, Plaintiff insisted on an indefinite extension. Extending the discovery cut-

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off indefinitely jeopardizes the Scheduling Order and Defendants are not only unwilling to do

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that, they will not do so without approval by the Court.

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The last deposition Plaintiff took was on April 19, 2008 when he took the

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deposition of Dr. Marvin Kolb - whom the Defendants flew to Los Angeles from Wisconsin at

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the Defendants' expense as an accommodation to Plaintiff - and which Plaintiffs counsel

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adjourned after about 30 minutes and has never attempted to reschedule. For over two months,

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Plaintiff made no efforts to proceed with any deposition discovery. Then, on June 30, Plaintiffs

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counsel sent me an e-mail listing 17 additional depositions he wanted to take during the

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remaining 6 weeks of discovery. These, as noted, were in addition to expert depositions of

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which there would be between 3 and 4 per side, depending on which experts were deposed.

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Trying to fit over 25 depositions into about 30 working days is impossible under

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the best of conditions. Plus, I was scheduled to prepare for and attend 9 depositions during the

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first weeks in July in Orange County and prepare for and attend a three-day court trial in Orange

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County Superior Court on July 29, 30 and 31. I was committed almost every day in July.

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I proposed the few July days I was available as possible dates for the depositions

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Plaintiff wanted to take but Plaintiff rejected all the dates I proposed. He basically took an "all

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or nothing" approach to these 17 depositions by demanding they all be set according to his

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schedule. Plaintiffs counsel has accused the Defendants of imposing a unilateral "stay" on -2DEC LARATION OF MARK A. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL

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depositions. Defendants have not "stayed" anything. I was simply not available to attend

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depositions on the dates Plaintiff selected. Plaintiff never cleared any of the dates with me.

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If we are to adhere to the Scheduling Order, there is insufficient time remaining to

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take 25 more depositions. Additionally, Defendants believe Plaintiff has had more than enough

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opportunity to take depositions and, in fact, has taken more than a reasonable number already.

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The depositions Plaintiff has taken to date have failed to elicit any relevant

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evidence regarding his claims and have been largely a waste oftime. Plaintiff has elected to

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depose witnesses with only the most marginal and remote connection to the case. This

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wastefulness is at least partly demonstrated by the fact that Plaintiff has not even attempted to

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reconvene the two depositions he adjourned - despite asking this Court for relief on one of them -

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because they were both a waste oftime before Plaintiff adjourned them.

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Plaintiff has noticed a motion to amend his complaint but that motion will not be

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heard until September 8. The proposed amendment adds at least two new theories of recovery

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against the County: It expands Plaintiff's civil rights claim to include the County and it adds

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"professional fees" to the monies Plaintiff claims were unlawfully taken from him. Defendants

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have completed Plaintiff's deposition and the parties have completed their disclosure of experts.

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Discovery closes on August 18. Defendants oppose Plaintiff's request to amend his complaint

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but, if is granted, it will require a reopening of the Scheduling Order and a postponement of trial.

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If Plaintiff is permitted to amend his complaint at this late stage of the

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proceedings and expand his theories of recovery against the County then Defendants should be

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given the right to reopen discovery and inquire into the facts Plaintiff believes support his new

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theories. Defendants should also have the opportunity to let their experts review the new

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theories and supplement their previous reports to include any opinions relevant to the new

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theories. Defendants have had no opportunity for their economist, for example, to consider

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Plaintiff's new claim for "professional fees." Amendment ofthe complaint may require an

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extension of the discovery cut-off and a second modification of the expert disclosure deadlines in

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the Scheduling Order. It seems unavoidable that they will impact the trial date.

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Although they are not directly related to this motion for a protective order,

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Defendants believe these issues may effect this Court's consideration of the issues presented by

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Plaintiff's motion to compel. The additional depositions Plaintiff wants to take need to be

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considered in light of this bigger picture. Defendants believe these issues should be considered

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together so they can be handled efficiently and comprehensively.

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Respectfully submitted,

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Dated: August 1,2008

LAW OFFICES OF MARK A. WASSER

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By:

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

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