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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] Attorneys 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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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 OPPOSITION TO DEFENDANT’S MOTIONS IN LIMINE NOs 113. DATE: May 8, 2009 TIME: 12:00 p.m. CRTM: 3, Hon. Oliver W. Wanger 2500 Tulare St Fresno, CA TRIAL: March 24, 2009

17 Complaint Filed: January 6, 2007 18 19 20 21 22 23 24 25 26 27 28

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Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff” or “Dr. Jadwin”) hereby opposes the

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consolidated motions in limine numbers 1-13 submitted by Defendant County of Kern (“Defendant” or

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“the County”).

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1. Opposition to Motion to Exclude Attorneys as Witnesses The “attorney-client privilege” does not protect independent facts related to a communication,

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i.e., that a communication took place, and the time, date, and participants in the communication, it does

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not protect disclosure of underlying facts which may be referenced within a qualifying communication,

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and it does not extend to individuals who are no more than witnesses to the matter at issue in the

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litigation. 2,022 Ranch, L.L.C. v. Superior Court (App. 4 Dist. 2003) 7 Cal.Rptr.3d 197, 113

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Cal.App.4th 1377, modified on denial of rehearing.

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The attorney-client privilege does not apply to advice given by in-house counsel, including

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county counsel, when they are acting in their capacity as a business advisor or negotiator. In such cases,

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California courts apply the “dominant purpose” test to see if the attorney-client privileges attaches to a

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communication. For example, communications between the employer’s general manager and its

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negotiator, an attorney, relating to conduct of labor negotiations were not privileged under attorney-

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client privilege unless dominant purpose of the particular communication was to secure or render legal

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service or advice, in that employer’s labor negotiations could have been conducted by a nonattorney.

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Montebello Rose Co., Inc. v. Agricultural Labor Relations Bd. (App. 5 Dist. 1981) 173 Cal.Rptr. 856,

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119 Cal.App.3d.

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Knowledge which is not otherwise privileged does not become so merely by being

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communicated to an attorney; the attorney-client privilege does not extend to subject matter or

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documents otherwise unprivileged merely because that subject matter has been communicated or handed

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over to an attorney, even where the parties intend the matter to be confidential. 2,022 Ranch, L.L.C. v.

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Superior Court (App. 4 Dist. 2003) 7 Cal.Rptr.3d 197, 113 Cal.App.4th 1377, modified on denial of

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rehearing.

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Further, in Wellpoint Health Networks, Inc. v. Superior Court, (1997) 59 Cal.App.4th 110, 129,

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the California Supreme Court stated “if defendants’ answer or discovery responses indicate the

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possibility of a defense based on thorough investigation and appropriate corrective response, ... a finding

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of waiver [of the attorney-client privilege can] be made.” Here, Defendant averred that Defendant’s attorneys participated in taking some of the adverse

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employment actions against Plaintiff. For example, Mark Wasser and Mark Nations were the only

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persons named who participated in the decision made on April 27, 2006, to lift the house-arrest

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restriction on Plaintiff during his administrative leave and to offer a buy-out of the remainder of

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Plaintiff’s employment contract term. [Supplementary Response to Interrogatory No. 43 & 44 at 28:10-

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22]. Under Montebello Rose, these attorneys were acting as negotiators rather than attorneys. Indeed,

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since only these attorneys are listed as participants in these decisions, the averred responses indicate that

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these attorneys did not communicate with their client, the County, at all regarding these matters.

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Karen Barnes participated in the decision made on April 28, 2006, to convert Plaintiff’s leave to

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full-time leave. [Supplemental Response to Interrogatory No. 36 at 26:24-27:4]. Barnes participated in

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decisions relating to Amendment 1 to Dr. Jadwin’s employment contract (DFJ1416) approved by the

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Board of Supervisors on October 3, 2006 that contained less favorable terms and conditions than those

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of other regular pathologists at KMC. [Supplementary Response to Interrogatory No. 38 at 27:12-21].

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Barnes participated in the decision made on October 3, 2006, to recommend reducing Plaintiff’s base

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salary. [Supplementary Response to Interrogatory No. 39 at 27:23-28:2]. Barnes and Margo Raison

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participated in the decision made on December 6, 2006, to place Dr. Jadwin on administrative leave.

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[Supplementary Response to Interrogatory No. 42 at 28:3-9]. Ray Watson also testified that Barnes was

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present during discussions regarding the non-renewal of Dr. Jadwin’s contract. Under 2,022 Ranch, both

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Barnes and Raison can testify as to the independent facts related to these decisions.

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Barnes was also responsible for hiring the locum tenens to cover for Dr. Jadwin during his

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medical leave. Under Montebello Rose, while arranging for locum tenens coverage, she was acting more

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as a business agent or negotiator for the County than its attorney. Such was the case in countless other

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instances: Barnes was the sole person and point of contact who contracted with William Colburn, an

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outside pathologist expert, to engage in retaliatory peer review of Plaintiff (peer review is not conducted

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by attorneys, but by medical professional peers); Barnes personally informed Plaintiff in several letters

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that no letters of reprimand were placed into his file; Barnes was the sole recipient of several letters

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requesting preservation of evidence against spoliation that went unheeded; as well as of demand letters

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representing Plaintiff’s opposition activities to violations of FEHA, FMLA and CFRA; Barnes was the

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sole point of contact for arranging Plaintiff’s return to his office to retrieve important computer files and

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personal effects which Dr. Dutt, Plaintiff’s successor as chair, then blocked in a retaliatory manner. The

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list goes on and on; in each such case, Barnes was the sole participant or percipient witness. Denying

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cross-examination of Ms. Barnes would unduly prejudice Plaintiff by preventing him from access to the

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only source of evidence as to these events.

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On February 23, 2006, Bernard Barmann convened a “mediation meeting” among Drs. Jadwin,

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Abraham, Ragland, Harris, Kercher and Peter Bryan. Mr. Barmann, as convenor, can testify as to the

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purpose of the meeting, and his recollection of the events that occurred at that meeting without

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implicating the attorney-client privilege. Under Montebello Rose, Barmann was acting more as a

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mediator than as the County’s attorney. Under 2,022 Ranch, Barmann can testify as to the independent

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facts related to this meeting.

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Michael Young and Robert Woods can testify as to the authenticity of their correspondence

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that is relevant to this case without breaching any attorney-client privilege, and their testimony can

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address any hearsay or other substantive objections which may be raised by Defendant – objections

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which Defendant has already made clear they intend to raise.

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For the foregoing reasons, the Court should deny Defendant’s Motion in limine No. 1. 2. Opposition to Motion to Exclude Evidence of Retaliation Based on Theories Other than FMLA or FEHA.

19 In its Motion in limine No. 7, Defendant acknowledges that Plaintiff’s whistleblowing activities 20 are a fact and evidence of those activities may be admissible for purposes other than establishing 21 Defendant’s liability for retaliation based on protected whistleblowing activity. Doc 323 at 5:23-24. On 22 this ground alone, the Court should deny Defendant’s motion in limine No. 2. 23 During the Pretrial Conference, the Court had ordered Plaintiff to present his continuing 24 objections to the vagueness and viability of the Fifth Affirmative Defense in his motions in limine. 25 Defendant’s Fifth Affirmative Defense appears to place Plaintiff’s interpersonal relationship, 26 particularly with KMC’s leadership, at issue. By this motion, Defendant seeks to exclude evidence that 27 Dr. Jadwin’s strained relations with KMC’s leadership was due to the fact that he was raising legitimate 28

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and important patient safety concerns that they were resisting and refusing to acknowledge and address.

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For example, as part of its Fifth Affirmative Defense, Defendant contends that Dr. Jadwin:

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“…wrote many e-mails and letters, all of which have been produced, falsely alleging that KMC was in violation or non-compliance with state law and accepted health care protocols…” and that “…he dismissed opinions and observations of other members of KMC staff if their opinions and observations did not coincide with his own..: and that “he proposed a change for keeping for blood product chart copies that would have violated state laws on the integrity of patient records and made accusations to several KMC members when it was not adopted…” and that he “…insist[ed] they devote disproportionate time in preparing reports and forms of minimal importance; he created frustration and stress in other members of the staff as a result of the same behaviors, he insisted that staff in the Pathology Department devote extraordinary time to compiling information of minimal importance and dismissed their resulting concerns about workload...Plaintiff frequently became emotional and argumentative over routine hospital management and administration issues and gradually destroyed the collegiality and teamwork essential to effective hospital operation…Plaintiff’s typical response to disagreements was to blame and accuse others, verbally assault them and, ultimately, make complaints against them.” Defendant’s Supplemental Response to Interrogatory No. 3 at 2:25-5:2

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As Blood Bank Director, Dr. Jadwin repeatedly reported his concerns about KMC’s nurses’ non-

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compliance with laws governing blood transfusion records (“PCCs”) to Toni Smith (Nurse Executive)

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and other members of KMC’s leadership. [Jadwin’s emails to Smith from 1/4/06 to 3/23/06 re PCC

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deficiencies (DFJ00753-778); Jadwin’s Memo to Bryan of 4/10/06 (DFJ00784) Smith asserted that

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occasional omissions occurred because the nurses were too overburdened to record all the blood

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transfusion data that the law required them to record. KMC leadership asserted there was no problem

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because JCAHO had surveyed 5 PCCs as part of its inspection, and didn’t find any problems on those

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five. [See, e.g., Jadwin’s notes re 4/13/06 meeting with Bryan - “no problem with PCCs (five charts

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reviewed by JCAHO)” at DFJ00787]. However, the Department of Health Services found that 50% of

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the PCCs were deficient and ordered that 60 PCCs per month should be reviewed as part of a correction

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plan. [DHS Investigative Report of 8/11/08 (DFJ02818)]. Defendant’s denial that KMC was in

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noncompliance with laws regarding PCCs in the face of overwhelming evidence to the contrary, KMC’s

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trivialization of the need for accurate recordkeeping, and their characterization of Jadwin’s insistence on

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the need for effective corrective action regarding KMC’s non-compliance with PCCs as evidence that he

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was “non-collegial” all require that evidence of Plaintiff’s whistleblowing activity must be admitted to

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rebut the Fifth Affirmative Defense.

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In Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, [29 P.3d 175, 178-179, 190; 111

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Cal.Rptr.2d 87, 91-92, 106], the California Supreme Court pointed to delays by plaintiff’s supervisor in

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providing accommodation to Richards, allegedly because he believed that she had lied about her

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disability on her employment application – despite the clear lack of evidence of such misrepresentation

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– as harassing conduct that contributed to Richards’ hostile work environment. Id. at 804-806, 823.

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Similarly here, the County’s refusal to acknowledge that Dr. Jadwin was correct in his evaluation of the

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PCC noncompliance problem despite overwhelming evidence supporting his conclusion, the County’s

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refusal to take adequate corrective action, and the County’s criticism of Dr. Jadwin for continuing to

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raise the PCC non-compliance issue, contributed to the hostility in Dr. Jadwin’s work environment, and

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was an underlying cause of the strain in the relationship between Dr. Jadwin and the medical staff

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leadership that forms the basis of the Fifth Affirmative Defense as described by Defendant in written

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interrogatory responses.

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Defendant continues to assert that the Fifth Affirmative Defense is in fact multiple affirmative

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defenses: contributory negligence, unclean hands, and McDonnell-Douglas business necessity.

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Defendant also contends that the McDonnell-Douglas burden-shifting framework applies at time of trial,

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and allows it to offer evidence that the adverse actions taken against Plaintiff were motivated by a

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“legitimate, non-discriminatory reason”. (Doc 326 at 5:16-6:15 & 8:3-26).

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The California Supreme Court has held that the McDonnell-Douglas framework does not apply at the time of trial. “Based on the foregoing analysis, we offer this advice to those practicing employment law: If you hope to prevail in your discrimination claim, or [*205] choose to defend an employment discrimination case, solely on the basis of the other party’s failure to satisfy one of the elements of McDonnell Douglas’s intermediate burdens (that is, the plaintiff’s prima facie case or the defendant’s legitimate nondiscriminatory reasons), you must seek a determination from the trial court, by means of any of the vehicles at a litigant’s disposal, that you are entitled to judgment as a matter of law. If you do not do so, and the case is submitted to the trier of fact, the intermediate burdens set forth in McDonnell Douglas will fall away, and the fact finder will have only to decide the ultimate issue of whether the employer’s discriminatory intent was a motivating factor in the adverse employment decision.” [Caldwell v. Paramount Unified Sch. Dist., 41 Cal. App. 4th 189, 205 (1994).]

25 Federal law is generally consistent with California law regarding the inapplicability of the 26 McDonnell-Douglas at trial because it is “unhelpful” to the jury. [Costa v. Desert Palace , Inc. (9th Cir. 27 2002) 299 F3d 838, 855 (en banc), aff’d (2003) 539 US 90, 123 S.Ct. 2148 “it is not normally 28

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appropriate to introduce the McDonnell Douglas burden-shifting framework to the jury”]. Further,

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Defendant’s acknowledgment that under McDonnell-Douglas, Defendant only had the burden of

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production rather than the burden of proof indicates that Defendant knows full well that the McDonnell-

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Douglas framework does not provide it with an affirmative defense at trial. To the extent that

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Defendant’s Fifth Affirmative Defense asserts a McDonnell-Douglas “defense”, it should be stricken.

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The business necessity affirmative defense is only available in disparate impact claims, not

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disparate treatment claims, such as Plaintiff’s disability discrimination claim. (Cal. Code Regs., tit. 2 §

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7286.7(b), City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191

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Cal.App.3d 976, 989–990 [236 Cal.Rptr. 716], quoting Robinson v. Lorillard Corp. (4th Cir. 1971) 444

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F.2d 791, 798; see also, 42 U.S.C. § 2000e-2(k)(2) (“[a] demonstration that an employment practice is

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required by business necessity may not be used as a defense against a claim of intentional

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discrimination.”); Griggs v. Duke Power Co., 401 U.S. 424; CACI 2503). There is no disparate impact

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claim at issue in this action. To the extent that Defendant’s Fifth Affirmative Defense asserts business

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necessity, it should be stricken.

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For the third time, Plaintiff is providing briefing showing that an affirmative defense of

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contributory negligence does not apply to Plaintiff’s claims herein. Contributory/comparative

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negligence is only an affirmative defense to a claim sounding in negligence, not one sounding in tort.

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Plaintiff’s claims for medical leave interference are strict liability causes of action. Mora v.

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Chem-Tronics, Inc. 16 F.Supp.2d 1192, 1219 (S.D. Cal. 1998); Bachelder v. America West Airlines 259

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F.3d 1112, 1130 (9th Cir. 2001).

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Plaintiff’s claims for disability discrimination depend on a showing of discriminatory intent.

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Mixon v. Fair Employment & Housing Commission 192 Cal.App.3d 1306, 1317 (1987)(“To prevail

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under the disparate treatment theory, an employee must show that the employer harbored a

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discriminatory intent.”).

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Plaintiff’s claims for “failure to provide reasonable accommodation” and “failure to engage in an

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interactive consultation” under FEHA are strict liability causes of action. See Gov’t. C. § 12940(m);

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Marcano-Rivera v. Pueblo International, Inc. 232 F.3d 245, 256-257 (1st Cir. 2000) (“Hence, an

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employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no

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matter what its intent . . . .”.). Plaintiff’s claim for constitutional due process violation requires a finding of affirmative intent. Daniels v. Williams, 474 U.S. 327, 331 (1986). To the extent that the Fifth Affirmative Defense asserts contributory negligence, it should be stricken.

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The Court should strike the Fifth Affirmative Defense in its entirety.

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3. Opposition to Motion to Exclude Evidence of Plaintiff’s Competence

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Defendant contends that it will not introduce evidence impugning Plaintiff’s competence, so

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evidence showing it should be excluded. In fact, Defendant’s proposed evidence is full of references

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both suggesting Plaintiff’s incompetence and flatly accusing Plaintiff of incompetence. These include,

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but are not limited to, Elsa Ang’s complaint against Dr. Jadwin of 2/20/02 (Doc 328 at 83:9), Elsa Ang’s

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accusation that Jadwin failed a PAP smear test (Doc 328 at 83:10), Dr. Abraham’s accusation in a

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Medical Executive Meeting, apropos of nothing, that “we lack confidence in Dr. Jadwin” (Doc 328 at

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83:21); Dr. Ragland’s and Dr. Lau’s persistent accusations that Dr. Jadwin was incompetent at

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diagnosing FNA slides despite Dr. Lieu’s report that the pathologists were correct in some 200 instances

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(Doc 328 at 83:21-84:3); Dr. Lau’s accusation in a Quality Assurance meeting that Pathology’s reports

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were often tardy (Id.); Dr. Roy’s accusations of errors made by Dr. Jadwin (Doc 328 at 84:7-18, 85:9-

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10, 17); Dr. Dutt’s accusations of errors made by Dr. Jadwin (Doc 328 at 86:18-87:6); etc. Moreover,

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Defendant’s supplemental responses to Plaintiff’s Interrogatory No. 3 asking for facts supporting the

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Fifth Affirmative Defense are replete with accusations of Plaintiff’s incompetence.

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Defendant’s motion should be denied on the grounds that Defendant has demonstrated every

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intention of introducing evidence suggesting Plaintiff’s incompetence. Defendant’s repeated contentions

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of incompetence throughout this entire action have placed Plaintiff’s competence squarely at issue.

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Plaintiff is entitled to rebut these contentions.

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Moreover, in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, [29 P.3d 175, 178-179, 190;

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111 Cal.Rptr.2d 87, 91-92, 106], the California Supreme Court pointed to delays by plaintiff’s

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supervisor in providing accommodation to Richards because he believed that she had lied about her

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disability on her employment application despite the lack of evidence of such misrepresentation, accused

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her of “milking the system” by requesting accommodation, and sought her resignation; and the

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employer’s failure to eliminate a hostile work environment targeting a disabled employee were evidence

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of a continuing violation. Id. at 804-806, 823.

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Similarly here, the County’s refusal to acknowledge that Dr. Jadwin was competent (despite the

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lack of evidence supporting his incompetence, and in face of all the objective evidence establishing his

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competence) contributed to the hostility in his environment. Further, the County’s refusal to take

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adequate steps to rehabilitate Plaintiff’s reputation and that of the Pathology department, in the face of a

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growing chorus of incompetence, contributed to the hostility in Dr. Jadwin’s work environment, and was

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the underlying cause of the strain in the relationship between Dr. Jadwin and the medical staff leadership

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that supposedly forms the basis of the Fifth Affirmative Defense.

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Consequently, evidence of the accusations of Plaintiff’s and other pathologists’ incompetence,

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evidence of their falsity, evidence of KMC’s medical staff leadership’s refusal to prevent these false

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accusations and to rehabilitate Dr. Jadwin’s reputation and that of his Pathology Department, are

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admissible to show how these false accusations and the medical staff leadership’s failure to remedy

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them contributed to the hostility of Plaintiff’s workplace, and strained his relations with the medical staff

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leadership at KMC.

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The court should deny Defendant’s Motion in limine No. 3. 4. Opposition to Motion To Exclude Evidence of Misconduct by any Other Physician at Kern Medical Center

19 Plaintiff contends that evidence of misconduct by other core physicians at KMC, including other 20 Chairs of Departments, is probative to show the kind of misconduct that the medical staff leadership 21 tolerated. See, e.g., Gates v. Caterpillar, Inc., (7’h Cir. 2008) 513 F.3d 4 680,690-691; Harris v. Chand 22 (8th Cir. 2007) 506 F.3d 1135, 1140-1141. 23 Drs. Royce Johnson and Leonard Perez are comparators because they are Chairs of a Department 24 at KMC, and so had the same supervisor as Dr. Jadwin when he was a Chair, and were subject to the 25 same policies and practices that governed Dr. Jadwin’s employment when he was Chair of Pathology at 26 KMC from 10/00 to 7/10/06. Consequently, Dr. Johnson and Perez are comparators. 27 Drs. Abraham, Taylor, and Mansour were “core physicians” at KMC and so under the 28

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supervision of the CMO and CEO at KMC, and were subject to the same policies and practices that

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governed Dr. Jadwin’s employment when he was a core physician at KMC from 7/10/06 onward.

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Consequently, Dr. Abraham, Taylor, and Mansour are comparators.

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Despite the fact that these comparators engaged in “behavior” far worse that Dr. Jadwin is

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accused of, they were not accused of or disciplined for eroding “the collegiality and teamwork essential

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to effective hospital operation.” Because they were not disabled and were not taking medical leaves,

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they were not demoted, placed on administrative leave, nor did they have their contracts not renewed.

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Plaintiff is entitled to show this direct evidence of disparate treatment due to disability and medical

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leaves.

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The Court should deny Defendant’s motion in limine No. 4. 5. Opposition to Motion to Prohibit Evidence From Witnesses Who Were not Disclosed in Discovery

12 Defendant seeks exclusion of testimony from the following witnesses on the grounds that 13 Plaintiff never disclosed the names of many witnesses he has listed on his witness list. 14 15 16 17 18 19

“The following people, listed on Plaintiffs list of witnesses, are unknown to the County: Dennis Arquette, Edward Arsura, Sundee Baker, Patricia Bishop, Raza Bokhari, Dr. Michael Cann, Dr. Christopher Charbonnet, Charles Clayton, Michael Corder, Dr. Michael Costa, Amy Daniels, Dr. Timothy Dutra, Dr. Margaret England, Dr. Vincent Fortanasce, Beverly Gambrell, Deidre Ganople, Dr. Stacy Garry, Diana Hedges, Dr. Sharon Hirshowitz, Chuck Jadwin, Dr. Cecilia Kaesler, 1shaan Kalha, Albert Kapstrom, Dr. Sandy Kolb, Geoffrey Lang, Dr. Martin Lipschulz, Dr. Dennis Maceri, Kay Madden, James Malouf, Kenneth Madey, Robert McCord, Carolyn Mell, Dr. William Meyers, Alan Morrill, Dr. Stephen Owens, Paul Palmeri, Rosemarie Savino, Frances Shambaugh, Dr. Milan Stevanovic, Dr. Reda Tadros, Dr. Paul Toffel, Ken Van Dusen, Elise Walker, Dr. Robert Watkins, Dr. Tom Wheeler, Linda Wilkinson, and Edric Willes.”

20 First, Plaintiff requests judicial notice that the only witnesses in the above list that are on 21 Plaintiff’s witness list are Dennis Arquette, Stacy Garry, and Alan Morrill. 22 Second, Plaintiff had no duty to disclose impeachment or rebuttal witnesses pursuant to Rule 26. 23 Several of the witnesses named were impeachment or rebuttal witnesses. 24 Third, Plaintiff requests judicial notice that he did disclose Dennis Arquette, Alan Morrill, and 25 the other named witnesses in his Rule 26 initial disclosures. Stacy Garry was not included in Plaintiff’s 26 initial disclosure because she did not become involved in this case until several months after Plaintiff 27 issued his initial disclosures. Plaintiff did not learn of the significance of her involvement until after 28

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discovery was closed, and only during depositions that had been delayed by Defendant until after the

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close of discovery.

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Fourth, Defendant conducted absolutely no written discovery in this action; and had they done so

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they would have learned of these potential witnesses. Defendant therefore has no grounds for

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complaining that any of these witnesses are “unknown to the County” due to their own deficient

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discovery efforts.

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Fifth, Defendant’s assertion that these witnesses are “unknown to the County” is unworthy of

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credence since many of these witnesses, including Arquette, Morrill and Gary, formerly worked at KMC

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either as employees or independent contractors. For example, Dr. Sandy Kolb not only worked as an

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internist at KMC, but she was also married to Marvin Kolb, who was Chief Medical Officer of KMC at

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the time of Dr. Jadwin’s hire until September of 2004. [Defendant’s Response to Interrogatory No. 11 at

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9:21].

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The Court should deny Defendant’s motion in limine No. 5. 6. Opposition to Motion To Exclude Evidence of Whistleblowing or Retaliation for Whistleblowing

15 In the interests of efficiency and brevity, Plaintiff incorporates by reference the points and 16 authorities set forth in his opposition to Defendant’s Motion in limine No. 2. 17 Plaintiff opposes this motion to the extent that is would exclude all evidence of Plaintiff’s 18 whistleblowing “…if offered to establish liability.” (Doc. 323 at 5:27-28). Plaintiff has no intention of 19 offering such evidence to establish “whistleblower liability”. (Doc 311 at page 34). However, Plaintiff is 20 entitled to offer such evidence “to establish liability” for his CFRA/FMLA and FEHA claims. 21 Defendant’s response to Interrogatory No. 3 makes clear that Defendant intends to use evidence 22 of Plaintiff’s “whistleblowing” to support its averment that Plaintiff’s behavior eroded “the collegiality 23 and teamwork essential to effective hospital operation.” Given Defendant intent to use such evidence to 24 establish a purported “legitimate” reason for taking the adverse actions against Plaintiff, it is hypocritical 25 of them to contend Plaintiff should not be permitted to introduce rebuttal evidence showing that such 26 reasons are not “legitimate” (i.e., lawful) ones. 27 A limiting jury instruction is not necessary because the jury will be given only verdict forms for 28

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1

Plaintiff’s CFRA/FMLA, FEHA and Due Process claims to fill out. Consequently, there is no danger of

2

the jury using such evidence to consider Defendant’s liability for whistleblower retaliation.

3 4 5

The Court should deny Defendant’s motion in limine No. 6 7. Opposition to Motion to Exclude Evidence of any “Disability” other than Depression Defendant concedes that Plaintiff has placed his disabling chronic depression at issue. However,

6

Plaintiff has also placed his physical disability (nasal surgery, broken foot, and avulsed ankle ligament

7

and resulting limitations) at issue. [Doc. 241 at ¶¶91-92, 21:2-7, Doc 328 at 36:13-19]. Expert testimony

8

is not required to establish a disability. [Head v. Glacier Northwest, Inc. (9th Cir. 2005) 413 F.3d 1053].

9

So the fact that Plaintiff did not designate an expert regarding his physical limitations is irrelevant.

10

Aggregation of protected characteristics is permitted in discrimination suits. [Hicks v. Gates

11

Rubber Co. (10th Cir. 1987) 883 F.2d 1406, 1416 (court may aggregate evidence of racial hostility and

12

sexual hostility in determining the pervasiveness of harassment)]. So, Plaintiff may allege disability

13

based on various physical and mental conditions that are sufficiently limiting in the aggregate. Here,

14

Plaintiff did not require accommodation of the limitations imposed by his physical conditions because

15

Defendant had forced him out onto full time leave during the relevant timeframe.

16 17 18

The Court should deny Defendant’s motion in limine No. 7. 8. Opposition to Motion to Exclude Videotape Depositions Prepared by Plaintiff’s Counsel In early 2007, Mr. Lee and Mr. Wasser, counsel for Defendant, had negotiated and discussed a

19

stipulation to permit the parties to “videotape and/or audio record depositions, and the video camera may

20

be operated by the attorneys or their employees”. (Joint Scheduling Report, Doc. 26, 11:1-2). That

21

stipulation is memorialized in the the Joint Scheduling Report filed on May 21, 2007, of which Plaintiff

22

seeks judicial notice.

23

Prior to the filing of their Pre Trial Statement on April 17, 2009 (Doc. 315), the County never

24

objected to the use of lawyer-prepared deposition videos at trial. Their decision to wait until less than

25

one month before trial has prejudiced Plaintiff, who has already expended significant resources

26

preparing these videos for trial.

27 28

Until the Pretrial Settlement Conference, Defendant did not request copies of the deposition videos, despite Plaintiff’s repeated offers to produce them. On April 13, 2009, Plaintiff had informed

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1

Defendant that he was processing the deposition videos and that some of them were already available if

2

Defendant wished to have copies. Defendant never responded. [See, Lee Decl. at ¶¶ 5 & 6, Exhibit 1,

3

Email from Eugene Lee to Mark Wasser of 4/12/09]. On April 14, 2009, Plaintiff spoke by phone with

4

Defendant and mentioned again that the deposition videos were available for Defendant should he desire

5

any copies. Defendant did not express any wish to obtain any copies. [Lee Decl. at ¶ 7]. On April 20,

6

2009, at the pretrial conference, Defendant for the first time requested copies of all deposition videos

7

from Plaintiff, doing so verbally before Judge Wanger. [Lee Decl. at ¶ 8]. As soon as possible, Plaintiff

8

took steps to provide the requested deposition transcripts to Mr. Wasser. On April 22, 2009, Plaintiff

9

burned deposition videos to 6 DVD discs and immediately sent them via overnight express to

10

Defendant. [Lee Decl. at ¶ 9]. On April 23, 2009, Plaintiff sent an email to Defendant informing him

11

that the first installment of deposition videos was on the way and that a second installment was coming

12

shortly. [Lee Decl. at ¶¶10 & 11, Exhibit 2, Email from Eugene Lee to Mark Wasser of 4/23/09]. Later

13

that same day, Plaintiff sent an email to Defendant informing him that he would send 4 more DVD discs

14

of deposition videos to him via overnight express. [Lee Decl. at ¶ 12].

15 16

The evidence shows that Plaintiff delivered all of the deposition videos to Defendant, and did so gratis, never requesting reimbursement of any associated expenses. [Lee Decl. at ¶ 14]

17

Defendant contends, “There is no table of contents”. (Doc. 323, 6:13). That is incorrect.

18

Plaintiff’s email included a complete inventory of the files contained on all of the DVDs which Plaintiff

19

had sent to Defendant. The inventory used a file-naming convention of “[last name of deponent][first

20

initial of first name of deponent] [day #] [session]. [Lee Decl. at ¶¶ 12 & 13; Email from Eugene Lee to

21

Mark Wasser, of 4/23/09].

22

Defendant contends there is “no indication of when the videos were prepared”. (Doc. 323, 6:13-

23

14). That is not true. Each file is a Windows OS file, containing metadata entitled “Date modified”,

24

which automatically specifies the exact time the video was prepared. That metadata is automatically

25

displayed in the Windows Explorer folder window. [Lee Decl. at ¶ 15]

26

Defendant contends “There is no indication of which depositions are on which disks”. (Doc. 323,

27

6:15). However, the videos were burned to the 10 DVDs in alphabetical order. Defendant fails to point

28

to any authority that Plaintiff is required to provide this information. Plaintiff is unaware that he ever

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1

had a duty to specify which depositions were on each disk, given Defendant can easily ascertain that for

2

itself. [Lee Decl. at ¶ 16]

3

Defendant complains: “There is no indication of how many depositions are on individual disks”.

4

(Doc. 323, 6:15). Defendant fails to point to any authority that Plaintiff is required to provide this

5

information. Plaintiff is unaware that he ever had a duty to count the number of depositions on each

6

disk, given Defendant can easily ascertain that for itself. [Lee Decl. at ¶ 17]

7

Defendant complains: “There is no certification or attestation the videos are complete or accurate

8

depictions of the depositions they purport to record.” (Doc. 323, 6:15-17). All of the depositions were

9

recorded stenographically and oaths administered by a certified court reporter. Defendant is in

10

possession of certified copies of all of the deposition transcripts. The deposition officer for purposes of

11

the FRCP was at all times the certified court reporter, not Eugene Lee. Defendant fails to point to any

12

authority that Plaintiff is required to provide any additional certification or attestation. Plaintiff is

13

unaware that he ever had a duty to provide this certification or attestation under the FRCP. Moreover,

14

Plaintiff himself never received any such certification when ordering and receiving copies of the

15

deposition videos taken by Defendant’s retained videographers, including those taken of Plaintiff’s

16

deposition. [Lee Decl. at ¶ 18].

17

The evidence establishes that Defendant waived any right to object to Plaintiff’s attorney

18

videotaping the depositions. The evidence further establishes that Plaintiff has taken all necessary steps

19

and more to provide Defendant with the deposition videos as soon as possible after it requested copies

20

for the first time at the pretrial conference. Consequently, Defendant has no grounds to move to preclude

21

Plaintiff from using the deposition videos at trial.

22

Plaintiff relied on Defendant’s stipulation that Plaintiff’s counsel could videotape the

23

depositions, and will be substantially prejudiced if the Court precludes Plaintiff from using extracts from

24

these videotaped depositions at trial. Plaintiff planned to use extracts from the videotaped depositions of

25

witnesses who reside more than 100 miles from this Court, and budgeted accordingly. Plaintiff would be

26

substantially prejudiced in having to subpoena all these witnesses to appear at trial at this late date on

27

such short notice.

28

The Court should deny Defendant’s motion in limine No. 8

USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTIONS IN LIMINE NOs. 1-13

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9. Opposition to Motion to Exclude Reference to Abandoned/Dismissed Claims/Parties.

2

Plaintiff does not oppose Defendant’s request that “Plaintiff should not be allowed to reference

3

these abandoned claims and should not be allowed to suggest liability against these defendants”, to the

4

extent this exclusion applies equally to all parties, their attorneys, and all witnesses with regard to

5

abandoned and/or dismissed claims and/or parties.

6

Plaintiff does not see why the Court should be put to the trouble of dismissing Plaintiffs

7

abandoned claims and the individual defendants by a separate order. These claims and parties have

8

already been disposed of by operation of law in that the Second Amended Complaint does not include

9

these claims or parties, and supersedes all other complaints. They do not appear in the Pretrial Order,

10

which supersedes and takes the place of all prior pleadings.

11 12

The Court should deny Defendant’s motion in limine No. 9. 10. Opposition to Motion To Exclude Plaintiff’s Exhibits of Documents Bates-stamped DFJ02633-DFJ02948

13 Defendant asserts that documents Bates-stamped DFJ02633-DFJ02948 should be excluded 14 because Plaintiff failed to provide it with a copy of these documents. 15 These documents were documents that Plaintiff planned to use as impeachments and/or rebuttal 16 documents, and so were not subject to disclosure under Rule 26. Plaintiff learned for the first time of the 17 requirement to produce impeachment/rebuttal documents and witnesses to Defendant at the pretrial 18 conference. 19 Moreover, specifically with regard to the exhibits starting at Bates numbers DFJ02816 and 20 DFJ02818, Plaintiff’s expert Dr. Weiss’s deposition testimony confirms that Plaintiff produced these 21 documents relating to the investigation of Plaintiff’s complaints to the Department of Health to 22 Defendant at the time of his deposition. In fact, defense counsel cross-examined Dr. Weiss on the 23 contents of these documents. [Weiss Depo. at 46:8-47:22; 150:21-152:3]. Plaintiff had intended to use 24 these documents to impeach the testimony of numerous witnesses who were making contrary claims 25 regarding the PCC problem at KMC. 26 The Court should deny Defendant’s motion in limine No. 10 27 28

11. Opposition to Motion to Exclude Evidence of Litigation Between Dr. Rebecca Rivera and the County.

USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTIONS IN LIMINE NOs. 1-13

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1

Defendant has placed Plaintiff’s behavior at issue through its Fifth Affirmative Defense.

2

Consequently, Plaintiff should be permitted to include evidence of the kind of behavior that is tolerated

3

at KMC. Dr. Rivera’s litigation involved numerous documents evidencing the egregious “behavior” of

4

comparator Dr. Joseph Mansour and others at KMC. Defendant should not be permitted to bludgeon

5

Plaintiff with evidence of his “behavior” while barring evidence of far worse “behavior” by

6

comparators.

7

12. Opposition to Motion to Exclude Evidence of an Investigation of Dr. Roy by the Medical Board of California.

8 While Plaintiff agrees that the investigation of Dr. Roy’s conduct by the Medical Board of 9 California involves allegations of an improper relationship with two of his patients, the investigation 10 also contained preliminary findings regarding Dr. Roy’s truthfulness and untruthfulness as a witness. 11 Consequently, this evidence may be relevant and admissible because it pertains to the truthfulness or 12 untruthfulness of Dr. Roy as a witness. The Medical Board is considering its final ruling on May 8, 13 2009, so the Court should delay its finding on this motion in limine until the Board has issued its final 14 order. 15 Moreover, it is hypocritical of Defendant to seek to preclude this evidence when they seek to 16 introduce similar evidence of accusations against Plaintiff, such as Dr. Elsa Ang’s allegations of Dr. 17 Jadwin’s fraud and incompetence which were later conclusively proven unfounded, Dr. Ragland’s 18 allegations of Dr. Jadwin’s fraud in doctoring FNA reports, which he later admitted he had absolutely no 19 evidence of in deposition, etc. 20 13. Opposition to Motion To Limit Damages for Back Pay 21 The County requested that the Court limit any award for back pay under 42 U.S.C. §1983 22 from being calculated beyond October 4, 2007 on the grounds that Dr. Jadwin’s entitlement to 23 professional fees ended on the expiration of his contract. 24 First, all damages are available to Plaintiff under Cal. Govt. C. 12926(b). 2 CCR 7286.9. See 25 also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 (“We have held ‘that, in a civil 26 action under the FEHA, all relief generally available in noncontractual actions . . . may be obtained.’ 27 This includes injunctive relief.”)(internal citations omitted.); Bihun v. AT&T Information 28

USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTIONS IN LIMINE NOs. 1-13

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1

Systems, Inc.,13 Cal. App. 4th 976 (Cal. App. 2d Dist. 1993) (front pay is a permitted remedy for FEHA

2

violations and does not need to be substantiated by expert testimony); Cassino v. Reichold Chemicals,

3

Inc., 817 F.2d 1338. (9th Cir. 1987).

4

Plaintiff is also entitled to back pay, front pay, liquidated damages and compensatory damages

5

on his FMLA claim. 29 USC 2617(a)(1)(A)(iii); Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112,

6

1130 (9th Cir. Ariz. 2001).

7

Second, Defendant’s argument presupposes that even if Defendant had afforded Plaintiff the due

8

process to which he was entitled, Defendant County would still have refused to renew his employment

9

contract.

10 RESPECTFULLY SUBMITTED on May 6, 2009. 11 12 LAW OFFICE OF EUGENE LEE 13 14 15

By: __________/s/ Eugene D. Lee__________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013

16 17 18 19 20 21 22 23 24 25 26 27 28

USDC, ED Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTIONS IN LIMINE NOs. 1-13

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

1 2 3 4 5 6

Document 330-2

Filed 05/06/2009

Page 1 of 18

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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

DAVID F. JADWIN, D.O.,

12 13 14

Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTIONS IN LIMINE (Doc. 323)

COUNTY OF KERN, et al.,

17

DATE: May 8, 2009 TIME: 12:00 p.m. CRTM: 3, Hon. Oliver W. Wanger 2500 Tulare St Fresno, CA TRIAL: March 24, 2009

18

Complaint Filed: January 6, 2007

15

Defendants.

16

19 20 I, Eugene D. Lee, declare as follows: 21 1.

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

22 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 23 counsel of record for Plaintiff David F. Jadwin in this matter. 24 2.

I am making this declaration in support of plaintiff’s opposition to defendant’s motions in

25 limine (Doc. 323). I have personal knowledge of the matters set forth below and I could and would 26 competently testify thereto if called as a witness in this matter. 27 3.

In early 2007, I and Mr. Wasser, counsel for Defendant, had negotiated and discussed a

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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Filed 05/06/2009

Page 2 of 18

1

stipulation to permit the parties to “videotape and/or audio record depositions, and the video camera may

2

be operated by the attorneys or their employees”. (Joint Scheduling Report, Doc. 26, 11:1-2). That

3

stipulation is memorialized in the the Joint Scheduling Report filed on May 21, 2007.

4

4.

Prior to the filing of their Pre Trial Statement on April 17, 2009 (Doc. 315), the Count

5

never objected to the use of lawyer-prepared deposition videos at trial. Their decision to wait until less

6

than one month before trial has prejudiced Plaintiff.

7

5.

On April 13, 2009, Plaintiff had informed Defendant that he was processing the

8

deposition videos and that some of them were already available if Defendant wished to have copies.

9

Defendant never responded.

10 11 12

6.

Attached as Exhibit 1 is a true and correct copy of an email from Eugene Lee to Mark

Wasser, dated April 13, 2009. 7.

On April 14, 2009, Plaintiff spoke by phone with Defendant and mentioned again that the

13

deposition videos were available for Defendant should he desire any copies. Defendant did not express

14

any wish to obtain any copies.

15 16 17 18 19 20 21 22 23

8.

On April 20, 2009, at the pretrial conference, Defendant for the first time requested

copies of all deposition videos from Plaintiff, doing so verbally before Judge Wanger. 9.

On April 22, 2009, Plaintiff burned deposition videos to 6 DVD discs and immediately

sent via overnight express to Defendant. 10.

On April 23, 2009, Plaintiff sent an email to Defendant informing him that the first

installment of deposition videos was on the way and that a second installment was coming shortly. 11.

Attached as Exhibit 2 is a true and correct copy of an email from Eugene Lee to Mark

Wasser, dated April 23, 2009. 12.

Later that same day, Plaintiff sent an email to Defendant informing him that he would

24

send 3 more DVD discs of deposition videos to him via overnight express. Defendant claims “There is

25

no table of contents”. (Doc. 323, 6:13). That is incorrect. Plaintiff’s email included a complete inventory

26

of the files contained on all of the DVDs which Plaintiff had sent to Defendant. The inventory used a

27

file-naming convention of “[last name of deponent][first initial of first name of deponent] [day #]

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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

1

Document 330-2

Filed 05/06/2009

Page 3 of 18

[session #]”:

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

AlkhouriG 2.wmv  AlkhouriG.wmv  NunnR 2.wmv  NunnR 3.wmv  NunnR.wmv  080228 PerezP 2.wmv  080228 PerezP.wmv  080804 BurchukR WasserM  2.wmv  080804 BurchukR WasserM  3.wmv  080804 BurchukR WasserM  4.wmv  080804 BurchukR WasserM  5.wmv  080804 BurchukR WasserM  6.wmv  080804 BurchukR WasserM  7.wmv  080804 BurchukR WasserM.wmv  080807 ShertukdeS BarnesK  1.wmv  080807 ShertukdeS BarnesK  2.wmv  080807 ShertukdeS BarnesK  3.wmv  080813 HarrisI 1.wmv  080813 HarrisI 2.wmv  080813 HarrisI 3.wmv  080813 HarrisI 4.wmv  080813 HarrisI 5.wmv  080813 HarrisI 6.wmv  080814 BryanP 1.wmv 

24 080814 BryanP 2.wmv 

25 26 27

080814 BryanP 3.wmv  080814 BryanP 4.wmv 

AbrahamJ6.wmv  AnionA1.wmv  AnionA2.wmv  AnionA3.wmv  BryanP2‐1.wmv  BryanP2‐2.wmv  BryanP2‐4.wmv  BryanP2‐5.wmv 

HarrisI1‐4.wmv  HarrisI2‐1.wmv  HarrisI2‐10.wmv  HarrisI2‐11.wmv  HarrisI2‐12.wmv  HarrisI2‐2.wmv  HarrisI2‐3.wmv  HarrisI2‐4.wmv 

MartinM2‐2.wmv  MartinM2‐3.wmv  MartinM2‐4.wmv  McAfee1.wmv  McAfee2.wmv  McAfee3.wmv  McAfee4.wmv  McAfee5.wmv 

BryanP2‐6.wmv 

HarrisI2‐5.wmv 

McBrideA1.wmv 

BurchukR 1.wmv 

HarrisI2‐6.wmv 

McBrideA2.wmv 

BurchukR 2.wmv 

HarrisI2‐7.wmv 

BurchukR 3.wmv 

HarrisI2‐8.wmv 

BurchukR 4.wmv 

HarrisI2‐9.wmv 

NunnR PMK 1‐ 1.wmv  NunnR PMK 1‐ 2.wmv  PatrickB1‐1.wmv 

ChesterS1.wmv  ChesterS2.wmv 

JohnsonR1‐1.wmv  JohnsonR1‐2.wmv 

PatrickB1‐2.wmv  PatrickB1‐3.wmv 

ChesterS3.wmv 

JohnsonR1‐3.wmv 

PatrickB1‐4.wmv 

ChesterS4.wmv 

JohnsonR2‐1.wmv 

PatrickB1‐5.wmv 

ChesterS5.wmv  ChesterS6.wmv  CulbersonD1.wmv  CulbersonD2.wmv  CulbersonD3.wmv  DuttP PMK 1‐ 1.wmv  DuttP PMK 1‐ 2.wmv  DuttP PMK 1‐ 3.wmv  DuttP PMK 1‐ 4.wmv  DuttP PMK 2‐ 1.wmv 

JohnsonR2‐2.wmv  JohnsonR2‐3.wmv  JohnsonR2‐4.wmv  JohnsonR2‐5.wmv  JohnsonR2‐6.wmv  JohnsonR2‐7.wmv 

PatrickB2‐1.wmv  RaglandA1.wmv  RaglandA2.wmv  RaglandA3.wmv  RaglandA4.wmv  RaglandA5.wmv 

Kercher1.wmv 

RaglandA6.wmv 

Kercher2.wmv 

Shertukde1.wmv 

Kercher3.wmv 

Shertukde2.wmv 

LindseyT1.wmv 

Shertukde3.wmv 

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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

7

080816 JohnsonR 6.wmv  080816 JohnsonR 7.wmv  080816 JohnsonR.wmv 

DuttP PMK 2‐ 2.wmv  DuttP PMK 2‐ 3.wmv  DuttP PMK 2‐ 4.wmv  DuttP PMK 2‐ 5.wmv  DuttP1.wmv  DuttP2.wmv  DuttP3.wmv 

8

AbrahamJ1.wmv 

DuttP4.wmv 

9

AbrahamJ2.wmv 

DuttP5.wmv 

AbrahamJ3.wmv  AbrahamJ4.wmv  AbrahamJ5.wmv 

HarrisI1‐1.wmv  HarrisI1‐2.wmv  HarrisI1‐3.wmv 

1

080816 JohnsonR 2.wmv 

Document 330-2

2

080816 JohnsonR 3.wmv 

3

080816 JohnsonR 4.wmv 

4

080816 JohnsonR 5.wmv 

5 6

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

13.

Filed 05/06/2009

Page 4 of 18

LindseyT2.wmv 

SmithT1‐1.wmv 

LopezI.wmv 

SmithT1‐2.wmv 

MansourJ1.wmv 

SmithT1‐3.wmv 

MansourJ2.wmv 

SmithT1‐4.wmv 

MansourJ3.wmv  MansourJ4.wmv  MartinezG 1‐ 1.wmv  MartinezG 1‐ 2.wmv  MartinezG 1‐ 3.wmv  MartinM1‐1.wmv  MartinM1‐2.wmv  MartinM2‐1.wmv 

SmithT2‐1.wmv  WatsonR1.wmv  WatsonR2.wmv  WatsonR3.wmv  YooT1.wmv  YooT2.wmv  YooT3.wmv  YooT4.wmv 

Attached as Exhibit 3 is a true and correct copy of that email from Eugene Lee to Mark

Wasser, dated April 23, 2009. 14.

Plaintiff delivered all of the deposition videos to Defendant gratis, never requesting

reimbursement of any associated expenses. 15.

Defendant claims there is “no indication of when the videos were prepared”. (Doc. 323,

6:13-14). That is not true. Each file is a Windows OS file, containing metadata entitled “Date modified”, which automatically specifies the exact time the video was prepared. That metadata is automatically displayed in the Windows Explorer folder window. 16.

Defendant claims “There is no indication of which depositions are on which disks”. (Doc.

323, 6:15). However, the videos were burned to the 10 DVDs in alphabetical order. Plaintiff is unaware that he ever had a duty to specify which depositions were on each disk, given Defendant can easily ascertain that for itself. 17.

Defendant complains: “There is no indication of how many depositions are on individual

disks”. (Doc. 323, 6:15). Plaintiff is unaware that he ever had a duty to count the number of depositions on each disk, given Defendant can easily ascertain that for itself. 18.

Defendant complains: “There is no certification or attestation the videos are complete or

USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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Page 5 of 18

1

accurate depictions of the depositions they purport to record.” (Doc. 323, 6:15-17). All of the

2

depositions were recorded stenographically and oaths administered by a certified court reporter.

3

Defendant is in possession of certified copies of all of the deposition transcripts. The deposition officer

4

for purposes of the FRCP was at all times the certified court reporter, not Eugene Lee. Plaintiff is

5

unaware that he ever had a duty to provide this certification or attestation under the FRCP. Moreover,

6

Plaintiff himself never received any such certification when ordering and receiving copies of the

7

deposition videos taken by Defendant’s retained videographers, including those taken of Plaintiff’s

8

deposition.

9

19.

Attached hereto as Exhibits are true and correct copies of the following documents:

10 11 12 13

Exh. 1 2 3

Date 4/13/09 4/23/09 4/23/09

Description Email Lee-Wasser Depo Video availability Email Lee-Wasser Depo Video delivery status Email Lee-Wasser Depo Video inventory and status

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 6, 2009

19 20 21 22

/s/ Eugene D. Lee EUGENE D. LEE Declarant

23 24 25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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Page 6 of 18

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

EXHIBIT 1

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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

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Page 7 of 18

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

Eugene D. Lee [[email protected]] Monday, April 13, 2009 7:36 PM '[email protected]' 'Joan Herrington' Depo Videos

Some of the depo videos are ready: Bryan, Culberson, etc. More are in the process of being converted into MPEG-1 format and will hopefully be ready soon. Please let me know if Defendant wishes to get a copy of any of them. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

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

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

       

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

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EXHIBIT 2

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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

Eugene D. Lee [[email protected]] Thursday, April 23, 2009 4:28 PM '[email protected]' 'Joan Herrington' RE: Trial/Exh Lists

By the way, you will be getting a second installment of both documents and the remaining depo videos shortly. I am processing them now as we speak. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~ *LAW OFFICE OF EUGENE LEE* *EMPLOYMENT LAW* *555 WEST FIFTH ST., STE. 3100* *LOS ANGELES, CA 90013* *Tel: (213)992-3299* *Fax: (213)596-0487* * E - m a i l : [email protected] * * W e b s i t e : www.LOEL.com * B l o g : www.CALaborLaw.com ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

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

Document 330-2

Filed 05/06/2009

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EXHIBIT 3

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF Π’S OPPOSITION TO ∆s MOTIONS IN LIMINE

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

Mark Wasser [[email protected]] Thursday, April 23, 2009 9:42 PM [email protected] RE: Depo Videos

Okay. I will await their arrival.

________________________________ From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, April 23, 2009 9:40 PM To: [email protected] Cc: 'Joan Herrington' Subject: Depo Videos

Mr. Wasser:

I’ve overnighted the videos to you and you should be receiving them tomorrow morning. Tomorrow I will overnight the remaining videos (DVD Vols 7-10).

When you receive the second installment, you should be in possession of all of the following:

AlkhouriG 2.wmv AlkhouriG.wmv NunnR 2.wmv NunnR 3.wmv NunnR.wmv 080228 PerezP 2.wmv 080228 PerezP.wmv 080804 BurchukR WasserM 2.wmv 080804 BurchukR WasserM 3.wmv 1

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080804 BurchukR WasserM 4.wmv 080804 BurchukR WasserM 5.wmv 080804 BurchukR WasserM 6.wmv 080804 BurchukR WasserM 7.wmv 080804 BurchukR WasserM.wmv 080807 ShertukdeS BarnesK 1.wmv 080807 ShertukdeS BarnesK 2.wmv 080807 ShertukdeS BarnesK 3.wmv 080813 HarrisI 1.wmv 080813 HarrisI 2.wmv 080813 HarrisI 3.wmv 080813 HarrisI 4.wmv 080813 HarrisI 5.wmv 080813 HarrisI 6.wmv 080814 BryanP 1.wmv 080814 BryanP 2.wmv 080814 BryanP 3.wmv 080814 BryanP 4.wmv 080816 JohnsonR 2.wmv 080816 JohnsonR 3.wmv 080816 JohnsonR 4.wmv 080816 JohnsonR 5.wmv 080816 JohnsonR 6.wmv 080816 JohnsonR 7.wmv 080816 JohnsonR.wmv AbrahamJ1.wmv 2

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AbrahamJ2.wmv AbrahamJ3.wmv AbrahamJ4.wmv AbrahamJ5.wmv AbrahamJ6.wmv AnionA1.wmv AnionA2.wmv AnionA3.wmv BryanP2-1.wmv BryanP2-2.wmv BryanP2-4.wmv BryanP2-5.wmv BryanP2-6.wmv BurchukR 1.wmv BurchukR 2.wmv BurchukR 3.wmv BurchukR 4.wmv ChesterS1.wmv ChesterS2.wmv ChesterS3.wmv ChesterS4.wmv ChesterS5.wmv ChesterS6.wmv CulbersonD1.wmv CulbersonD2.wmv CulbersonD3.wmv 3

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DuttP PMK 1-1.wmv DuttP PMK 1-2.wmv DuttP PMK 1-3.wmv DuttP PMK 1-4.wmv DuttP PMK 2-1.wmv DuttP PMK 2-2.wmv DuttP PMK 2-3.wmv DuttP PMK 2-4.wmv DuttP PMK 2-5.wmv DuttP1.wmv DuttP2.wmv DuttP3.wmv DuttP4.wmv DuttP5.wmv HarrisI1-1.wmv HarrisI1-2.wmv HarrisI1-3.wmv HarrisI1-4.wmv HarrisI2-1.wmv HarrisI2-10.wmv HarrisI2-11.wmv HarrisI2-12.wmv HarrisI2-2.wmv HarrisI2-3.wmv HarrisI2-4.wmv HarrisI2-5.wmv 4

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HarrisI2-6.wmv HarrisI2-7.wmv HarrisI2-8.wmv HarrisI2-9.wmv JohnsonR1-1.wmv JohnsonR1-2.wmv JohnsonR1-3.wmv JohnsonR2-1.wmv JohnsonR2-2.wmv JohnsonR2-3.wmv JohnsonR2-4.wmv JohnsonR2-5.wmv JohnsonR2-6.wmv JohnsonR2-7.wmv Kercher1.wmv Kercher2.wmv Kercher3.wmv LindseyT1.wmv LindseyT2.wmv LopezI.wmv MansourJ1.wmv MansourJ2.wmv MansourJ3.wmv MansourJ4.wmv MartinezG 1-1.wmv MartinezG 1-2.wmv 5

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MartinezG 1-3.wmv MartinM1-1.wmv MartinM1-2.wmv MartinM2-1.wmv MartinM2-2.wmv MartinM2-3.wmv MartinM2-4.wmv McAfee1.wmv McAfee2.wmv McAfee3.wmv McAfee4.wmv McAfee5.wmv McBrideA1.wmv McBrideA2.wmv NunnR PMK 1-1.wmv NunnR PMK 1-2.wmv PatrickB1-1.wmv PatrickB1-2.wmv PatrickB1-3.wmv PatrickB1-4.wmv PatrickB1-5.wmv PatrickB2-1.wmv RaglandA1.wmv RaglandA2.wmv RaglandA3.wmv RaglandA4.wmv 6

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RaglandA5.wmv RaglandA6.wmv Shertukde1.wmv Shertukde2.wmv Shertukde3.wmv SmithT1-1.wmv SmithT1-2.wmv SmithT1-3.wmv SmithT1-4.wmv SmithT2-1.wmv WatsonR1.wmv WatsonR2.wmv WatsonR3.wmv YooT1.wmv YooT2.wmv YooT3.wmv YooT4.wmv

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These represent all of the working videos in Plaintiff’s possession. Please let me know if you have any questions.

Sincerely,

Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~ *Law Office of Eugene Lee* *Employment 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] <mailto:[email protected]> * * W e b s i t e : www.LOEL.com * B l o g : www.CALaborLaw.com

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

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