234 P Mtc Docs Rpd1-3 - P Supp Dec

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

Document 234

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

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

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Filed 09/26/2008

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

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COUNTY OF KERN, et al., 12

Civil Action No. 1:07-cv-00026 OWW TAG SUPPLEMENTAL DECLARATION OF EUGENE D. LEE RE: DISCOVERY DISAGREEMENT RE DOCUMENT PRODUCTION (Doc. 215)

Defendants. Date: September 29, 2008 Time: 9:00 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA

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Date Action Filed: January 6, 2007 Date Set for Trial: n/a

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Plaintiff submits this Supplemental Declaration of Eugene D. Lee in support of Plaintiff’s motion 18 to compel production of documents (Doc. 215). 19 I, Eugene D. Lee, declare as follows: 20 1.

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

21 California and admitted to practice before the United States District Court for the Eastern District of 22 California. I am the attorney representing Plaintiff David F. Jadwin in this matter. 23 2.

I am making this supplemental declaration in support of Plaintiff’s motion to compel

24 production of documents (Doc. 215). The facts stated herein are personally known to me and if called as 25 a witness, I could and would competently testify to the truth of the facts set forth in this declaration. 26 3.

On September 23, 2008, Defendants filed their Declaration of Mark A. Wasser re:

27 Inability to Prepare and Execute a Joint Statement Re: Discovery Disagreement in Opposition to Motion 28

SUPPLEMENTAL DECLARATION OF EUGENE D. LEE RE: DISCOVERY DISAGREEMENT RE DOCUMENT PRODUCTION 1

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

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to Compel (Doc. 229) (“Opposition”).

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The Opposition contains numerous misstatements and misrepresentations.

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Defendants state in the Opposition regarding the Privilege Log: “Defendants have

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produced documents 0010925 and 0010926.” This is not true – Defendants have not produced the

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document noted in the privilege log: “Memorandum from Peter Bryan to Peter Parra and Barbara Patrick

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re Personnel Item – Adam Lang.” Defendants have no excuse or justification for the late production of

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the document. With discovery closed and depositions completed, Defendants’ misconduct has

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prejudiced Plaintiff and they should be sanctioned for it.

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Defendants state in the Opposition regarding the Privilege Log: “Documents 0016683 to

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0016894 are performance evaluations for pathologists in the KMC pathology department and are not

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relevant to any issue in this case. Thus, there is no basis for overcoming their privacy interests.”

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Defendants rely on an incorrect understanding of the FRCP. Relevance is not the standard for producing

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documents under the FRCP. Plaintiff’s request is reasonably calculated to lead to admissible evidence

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regarding Defendants’ continuing allegations that Plaintiff’s was not competent as a pathologist and as

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chair of the department of pathology. That Defendants even attempt to argue lack of relevance is further

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evidence of Defendants’ bad faith obstruction of discovery in this action. In any case, Defendants never

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raised a privacy privilege objection in the first place because there is no legitimate privacy interest at

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issue. Defendants cite only peer review privilege in the privilege log. The privacy objection was never at

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issue and has been waived. Defendants’ misconduct should be sanctioned. Finally, Defendants have no

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excuse or justification for the late production of the document. With discovery closed and depositions

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completed, Defendants’ misconduct has prejudiced Plaintiff and they should be sanctioned for it.

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Defendants state in the Opposition regarding the Privilege Log: “Documents 0016896 to

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0016913 are evaluative comments about the laboratory director and unrelated to any issue in this case.

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Thus, the privacy interest is intact.” The laboratory director and holder of the privacy interest referenced

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in Defendants’ objection is Plaintiff. Defendants’ attempt to assert Plaintiff’s own privacy interests

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against himself is absurd and is further evidence of Defendants’ bad faith obstruction of discovery in this

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action. In any case, Defendants never raised a privacy privilege objection in the first place because there

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is no legitimate privacy interest at issue. Defendants cite only peer review privilege in the privilege log.

SUPPLEMENTAL DECLARATION OF EUGENE D. LEE RE: DISCOVERY DISAGREEMENT RE DOCUMENT PRODUCTION 2

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

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The privacy objection was never at issue and has been waived. Defendants’ misconduct should be

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sanctioned. Finally, Defendants have no excuse or justification for the late production of the document.

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With discovery closed and depositions completed, Defendants’ misconduct has prejudiced Plaintiff and

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they should be sanctioned for it.

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Defendants state in the Opposition regarding Request no. 65: “Plaintiff complains that the

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documents Defendants previously produced are not relevant and Plaintiff is correct. They are not

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relevant.” This is not true. Plaintiff never said this. Defense counsel continues to make

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misrepresentations about things Plaintiff said and did as he has done throughout this action. Plaintiff

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challenges Defendants to substantiate their claim.

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Defendants state in the Opposition regarding Request no. 66 and 67: “Thus, there are no

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documents responsive to this request.” Defendants have the requested data in electronic form in the

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HBO Star System. Under federal e-discovery rules, Defendants have a duty to meet and confer with

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Plaintiff regarding the costs involved to extract that data in usable form and the apportionment of such

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cost among the parties. Defendants’ foregoing response demonstrates their unwillingness to do so.

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Defendants have shown an unwillingness to meet and confer with Plaintiff throughout this action. Given

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Defendants’continuing uncooperativeness, Plaintiff requests the Court’s assistance to resolve this

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dispute. Defendants’ misconduct should be sanctioned for failing to respond to Plaintiff’s request, made

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over a year ago in October of 2007, and failing to apprise Plaintiff and meet and confer on this issue

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during that lengthy time period.

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Defendants state in the Opposition regarding several requests: “Defendants will assemble

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them and make them available to Plaintiff for inspection and copying on October 2,2008 in Room F-114

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of KMC.” Plaintiff is not available on October 2, 2008. In typical fashion, Defendants unilaterally set a

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date without meeting and conferring with Plaintiff or checking Plaintiff’s availability. This is typical of

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Defendants’ conduct in this action. Defendants’ misconduct should be sanctioned. Moreover,

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Defendants have no excuse or justification for the late production of documents. With discovery closed

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and depositions completed, Defendants’ misconduct has prejudiced Plaintiff and they should be

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sanctioned for it.

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Defendants state in the Opposition regarding several requests: “Plaintiff may copy any

SUPPLEMENTAL DECLARATION OF EUGENE D. LEE RE: DISCOVERY DISAGREEMENT RE DOCUMENT PRODUCTION 3

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documents he wants, at his expense, on condition that Defendants receive, at Defendants' expense, a

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copy of any documents Plaintiff copies.” Under the FRCP, Plaintiff is entitled to the requested

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documents. Defendants have no right to attach arbitrary and self-serving conditions to Plaintiff’s right to

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procure copies of documents produced in discovery. Defendants’ request is further evidence of

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Defendants’ bad faith obstruction of discovery in this action. Defendants’ misconduct should be

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sanctioned.

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

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EUGENE D. LEE Declarant

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SUPPLEMENTAL DECLARATION OF EUGENE D. LEE RE: DISCOVERY DISAGREEMENT RE DOCUMENT PRODUCTION 4