48-52 Motion - Compel Initial Disclosures - Conformed_070924

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

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

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Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O.

11 UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 DAVID F. JADWIN, D.O.,

Case No. 1:07-cv-00026-OWW-TAG

15 Plaintiff, 16 v. 17 18 19

COUNTY OF KERN; et al. Defendants.

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PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES FROM DEFENDANTS; REQUEST FOR SANCTIONS OF $2,700 [F.R.C.P. RULES 26(a)(1) AND 37(a)] Date: November 5, 2007 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA

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January 6, 2007 August 26, 2008

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PLAINTIFF HAS ALREADY CONFIRMED THE MOTION HEARING DATE WITH THE DEPUTY CLERK OF THE COURT.

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PLEASE TAKE NOTICE THAT at 9:30 a.m. on November 5, 2007 or as soon thereafter as may be heard by the Honorable U.S. Magistrate Judge Theresa A. Goldner, in the Bankruptcy Courtroom of

PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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the above-captioned court located at U.S. District Court, 1300 18th Street, Bakersfield, CA, Plaintiff

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David F. Jadwin, D.O. will move the Court for an order pursuant to Rule 37(a) compelling Defendants

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County of Kern, Peter Bryan, Eugene Kercher, Irwin Harris, Scott Ragland, Jennifer Abraham, William

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Roy and Toni Smith to serve complete Initial Disclosures which comply with Federal Rules of Civil

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Procedure, Rule 26(a)(1), and further request an award against Defendants and/or their counsel of fees

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and expenses incurred by Plaintiff in bringing this motion and such other relief as the Court deems

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appropriate.

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This motion is based on this notice, the moving papers, and any opposition and reply papers filed and served herewith; the records on file in this case, and oral arguments of counsel at hearing.

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Respectfully submitted on September 24, 2007.

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/s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] /s/ Joan Herrington, SB# 178988 (as authorized on 9/24/07) BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

21 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 22 23 24 25 26 27 28

PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

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

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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

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v. COUNTY OF KERN; et al.

Case No. 1:07-cv-00026-OWW-TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL COMPLETE INITIAL DISCLOSURES FROM DEFENDANTS; REQUEST FOR SANCTIONS

Defendants. [F.R.C.P. RULES 26(a)(1) AND 37(a)]

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Date: November 5, 2007 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA Date Action Filed: Date Set for Trial:

January 6, 2007 August 26, 2008

23 24 Plaintiff David F. Jadwin, D.O., F.C.A.P., hereby submits this memorandum in support of its 25 motion to compel Defendants County of Kern, Peter Bryan, Eugene Kercher, Irwin Harris, Scott 26 Ragland, Jennifer Abraham, William Roy and Toni Smith to serve complete Initial Disclosures which 27 comply with Federal Rules of Civil Procedure, Rule 26(a)(1), and of its request for an award against 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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Defendants and/or their counsel of fees and expenses incurred by Plaintiff in bringing this motion and

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such other relief as the Court deems appropriate, pursuant to Rule 37(a).

3 I. CERTIFICATION OF GOOD FAITH ATTEMPTS TO MEET AND CONFER 4 Plaintiff hereby certifies that he has in good faith conferred or attempted to confer with 5 Defendants in an effort to secure the required disclosure without court action. Despite meet and confers 6 occurring from August 10 to September 20, 2007, Defendants have refused to sign or even negotiate a 7 written stipulation with Plaintiff which would have resolved this dispute. On September 20, Plaintiff 8 made this final plea: 9

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For the last time, please reconsider Defendants’ unreasonable refusal to reduce its agreement to the required stipulation and order required by the rules cited above. Plaintiff has repeatedly provided Defendants with the proposed stipulation and requested them to either sign or propose amendments.

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Defendants refused, stating “perhaps we should litigate” this matter. Plaintiff has been left no

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choice but to bring this motion to compel seeking fees and costs.

14 II. BACKGROUND 15 Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center 16 (“KMC”) and senior pathologist since 2000, filed a Complaint on January 6, 2007. The Complaint 17 alleges, among other things, that Defendants engaged in the following illegal acts: whistleblower 18 retaliation, disability discrimination, medical leave interference and retaliation, demotion and pay 19 reduction without due process, and Fair Labor Standard Act violations. When Plaintiff began reporting 20 several patient care quality issues at KMC starting in 2001, Defendants responded by singling out and 21 targeting Plaintiff for harassment, retaliation and humiliation over the course of the next six years. In 22 2005, Defendants’ conduct finally caused Plaintiff to suffer clinical depression. When Plaintiff began 23 reduced work schedule sick leave in 2006 to treat his depression, Defendants responded by demoting 24 him and retaliating against him further, effectively ending Plaintiff’s pathology career. 25 On August 6, 2007, the parties served Rule 26(a)(1) Initial Disclosures on each other. 26 On August 10, Plaintiff sent a meet and confer email to Defendants informing them that 27 Defendants’ Initial Disclosures (“Disclosure 1”) were deficient in several respects. Later that day, 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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Defendants re-served corrected Initial Disclosures on Plaintiff (“Disclosure 2”).

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On August 14, Plaintiff sent a meet and confer email to Defendants informing them that

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Disclosure 2 was still deficient in several respects, including that Defendants had failed to provide home

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contact information for numerous disclosed witnesses, instead simply stating “Kern Medical Center”.

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The email requested Defendants serve corrected Initial Disclosures by August 20.

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Later that day, Defendants sent an email to Plaintiff demanding legal authority in support of his position. Shortly thereafter, Plaintiff and Defendants further exchanged emails.

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On August 20, Defendants failed to serve corrected Initial Disclosures on Plaintiff.

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On September 5, Plaintiff faxed and mailed a meet and confer letter to Defendants which re-

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stated the numerous deficiencies contained in Disclosure 2 and provided extensive legal authority in

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support of its position. As a compromise, Plaintiff attached a draft proposed stipulation (“Stipulation”)

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which permitted Defendants to withhold home contact information for current Kern County employees

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subject to certain conditions, such as stipulating to provide Plaintiff with the home contact information

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of any current Kern County employee within 10 days of termination of their employment. The letter

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requested Defendants serve corrected Initial Disclosures and/or the executed Stipulation by September

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20.

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On September 10, Defendants sent an email to Plaintiff questioning why it was “okay” for

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Plaintiff’s to indicate “KMC” as an address for witnesses who are Kern County employees but “not

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okay” for Defendants to do it.

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Later that day, Plaintiff sent a meet and confer email to Defendants, explaining that Plaintiff had

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indicated “KMC” because, unlike Kern County, Plaintiff did not have contact information for Kern

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County employees, and that this was precisely why Plaintiff was requesting Defendants disclose this

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information to him.

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On September 13, Defendants served the “Supplement to Defendants’ Rule 26(a)(1) Initial Disclosures” (“Disclosure 3”) on Plaintiff. On September 18, Plaintiff sent a meet and confer email to Defendants informing them that

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Disclosure 3 was still deficient in several respects, including that Defendants had failed to provide home

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contact information for numerous disclosed witnesses, instead simply stating “Kern Medical Center”. PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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Attached to the email was the draft Stipulation. The email requested Defendants serve the signed

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Stipulation and corrected Initial Disclosures by September 20.

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On September 19, Defendants sent two replies to Plaintiff’s email of September 18, stating

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Defendants’ refusal to sign or even negotiate the Stipulation, and instead offering an informal assurance

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that Defendants would provide “contact information for all former employees”. Later that day, Plaintiff

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sent a meet and confer email to Defendants stating “I think the name-calling is unnecessary” and asking

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Defendants to re-consider the Stipulation given the vagueness of Defendants’ informal assurance.

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Defendants responded by citing “representations” they had made recently and in emails dating back to

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“at least April, if not March.” They noted, “I am not going to take the time to look for them because this

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whole exercise is a waste of time. If the County at anytime refuses to make someone it controls available

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to you, you can deal with it then.” Defendants at one point stated “if that is not good enough, bring your

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motion. Your contentiousness is tiring.”

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On September 20, Defendants sent an email to Plaintiff stating “[t]he Stipulation you have sent

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me is not necessary and nothing in the rules you cite is applicable. I know you enjoy disagreements but I

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cannot find one here. Remind me what the disagreement is. And what it is that needs to be compelled.”

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Later that day, Plaintiff sent a meet and confer email to Defendants stating “I’ll ask you, not for

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the first time (and probably not the last), please leave the personal insults out of our interactions.” The

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email then explained at length why USDC EDCA Local Rule 83-143 and FRCP Rule 29 require

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agreements between counsel which vary discovery procedures and deadlines be memorialized in a

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written stipulation and order signed by the Court. Attached to the email was the draft Stipulation. The

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email stated that the deadline of September 20 remained and that Defendants should serve the signed

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Stipulation and corrected Initial Disclosures by the close of business hours that day.

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Plaintiff and Defendants went on to exchange three more meet and confer emails throughout the day. Finally, Plaintiff stated: For the last time, please reconsider Defendants’ unreasonable refusal to reduce its agreement to the required stipulation and order required by the rules cited above. Plaintiff has repeatedly provided Defendants with the proposed stipulation and requested them to either sign or propose amendments.

27 Attached to the email was the draft Stipulation. Defendants, however, refused to sign or negotiate the 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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Stipulation, stating “[i]f it is your position that there can be no agreements between counsel that are not

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reduced to formal stipulation and order, then, perhaps we should litigate that.”

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As of the close of business hours on September 20, Defendants had served neither the signed Stipulation nor complete Amended Initial Disclosures on Plaintiff.

5 III. ARGUMENT 6 7

A. PLAINTIFF IS ENTITLED TO THE HOME CONTACT INFORMATION FOR ALL WITNESSES DISCLOSED IN DEFENDANTS’ INITIAL DISCLOSURES

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Rule 26(a)(1)(A) of the FRCP provides that a party must, without awaiting a discovery request,

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provide to other parties: “the name and, if known, the address and telephone number of each individual

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likely to have discoverable information that the disclosing party may use to support its claims or

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defenses, unless solely for impeachment, identifying the subjects of the information.”

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In their Initial Disclosures, Defendants have indicated only the address for Kern Medical Center

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(and in some cases, the work phone number) as the contact information for those witnesses who are

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currently employees of Defendant Kern County (“Witnesses”). Plaintiff has requested the Witnesses’

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home address and phone number, but Defendants have refused, contending that Rule 26 contains no

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such requirement.

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The disclosure requirement contained in Rule 26(a)(1)(A) serves several important purposes. As the court noted in Biltrite Corp. v. World Rd. Markings, Inc: The obvious purpose of the disclosure requirement of Rule 26(a)(1)(A), Fed. R. Civ. P., is to give the opposing party information as to the identification and location of persons with knowledge so that they can be contacted in connection with the litigation, either for purposes of serving a proposed amended complaint (as occurred in this case) or for being interviewed or for being deposed or for doing background investigation. 202 F.R.D. 359, 362 (D. Mass. 2001)

22 To facilitate such purposes, Rule 26(a)(1)(A) mandates disclosure of the home address and 23 phone number of witnesses. As Moore’s Federal Practice states: “Furthermore, if some or all of the 24 identified individuals are employees of the disclosing party, their home addresses and telephone 25 numbers must be disclosed. The disclosing party does not satisfy its initial disclosure obligation by 26 providing only its business address and telephone number, even for current employees with 27 managerial responsibilities, unless the disclosing party knows of no other address or telephone number.” 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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6-26 Moore’s Federal Practice - Civil § 26.22 (emphasis added). Likewise, in Dixon v. CertainTeed Corp., the court expressly held that disclosure of only

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business addresses for witnesses does not satisfy the obligation under Rule 26(a)(1). 164 F.R.D. 685,

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688 - 689 (D. Kan. 1996). Defendants have contended in meet and confers that Dixon is distinguishable

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because the employer had refused to produce its employees, thereby compelling plaintiff to seek their

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home addresses so he could directly contact them. In contrast, Defendants claim they are offering to

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produce all employees upon Plaintiff’s request as well as provide contact information for employees

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who may leave.

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In focusing on an insignificant facet of the fact pattern, Defendants misinterpret the Dixon court’s holding. In reaching its holding, the Dixon court recited the relevant facts as follows: CertainTeed initially identified 31 individuals likely to have discoverable information. It has subsequently identified other such individuals. It has not disclosed, however, the addresses or telephone numbers of current employees. It contends that Rule 26(a) does not require such disclosure. In a novel approach it cites correspondence between counsel for the parties as support for such proposition. The cited “authority” consists only of a collection of letters between counsel. They contain no legal citation for the proposition plaintiff asserts. Id at 688.

15 Absent from the court’s recitation is any reference to the employer’s willingness or unwillingness to 16 produce employees to the plaintiff. In the very next sentences, the court immediately went on to hold: 17 18 19 20

Identification of individuals pursuant to Fed. R. Civ. P. 26(a)(1) includes providing their addresses and telephone numbers, if known. The rule expressly states as much. Pursuant to Rule 26(a)(1), therefore, CertainTeed shall disclose the addresses and telephone numbers of all the identified employees. It may not satisfy this obligation by disclosing its business address and phone number, unless it knows of no other address and number. 164 F.R.D. 685, 688 - 689 (D. Kan. 1996) (emphasis added).

21 In short, FRCP Rule 26(a)(1)(A) entitles Plaintiff to the home addresses and phone numbers of 22 the Witnesses. Doing so facilitates Plaintiff’s investigation of such Witnesses, service of documents 23 upon them, informal interviews of them, etc. Defendants’ willingness to produce such Witnesses does 24 not, and should not, bear on Plaintiff’s right to such home contact information. 25 26 27

B. ALTHOUGH PLAINTIFF IS WILLING TO ENTER INTO A STIPULATION, DEFENDANTS REFUSE TO SIGN, OR EVEN NEGOTIATE, A WRITTEN STIPULATION AND ORDER AS IS REQUIRED BY THE FRCP AND LOCAL RULES

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1. Despite Plaintiff’s Right to Obtain the Home Contact Information for the Witnesses, Plaintiff Proposed a Written Stipulation so as to Avert this Motion

2 Although Plaintiff has a right to obtain the home contact information for the Witnesses, Plaintiff 3 attempted compromise by proposing the draft Stipulation early on to Defendants. The Stipulation 4 required Defendants to produce home contact information for Witnesses only when they leave 5 employment with Defendant Kern County. In exchange, Defendants would be obligated to produce 6 Witnesses for deposition and/or trial upon Plaintiff’s request. 7 Defendants agreed in principle by the conclusion of the meet and confer process but refused 8 Plaintiff’s numerous requests to sign or negotiate the written Stipulation, asserting “it is unnecessary”. 9 10

2. Under the Rules, Written Stipulations and Signed Orders are Necessary when Regarding Discovery Procedures

11 However, the rules state otherwise. Rule 29 of the FRCP (“Stipulations Regarding Discovery 12 Procedure”) provides: 13 14 15 16 17

Unless otherwise directed by the court, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify other procedures governing or limitations placed upon discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may, if they would interfere with any time set for completion of discovery, for hearing of a motion, or for trial, be made only with the approval of the court. (Emphasis added).

18 Defendants argued in meet and confers that Rule 29 does not apply because the parties are not 19 varying discovery procedures. However, this is not correct. 20 Rule 30(a) states in relevant part: “The attendance of witnesses may be compelled by subpoena 21 as provided in Rule 45.” Rule 45(b) states in relevant part: “Service of a subpoena shall be made by 22 delivering a copy thereof to such person . . . .”. Defendants’ offer to accept service of deposition 23 subpoenas on behalf of the Witnesses and to compel their attendance at depositions varies the deposition 24 subpoena service procedures set forth in Rules 30(a) and 45(b). Therefore such offer falls under the 25 ambit of Rule 29. 26 Defendants further argued in meet and confers that Rule 29 is permissive rather than mandatory, 27 focusing on the word “may”. However, the Advisory Committee Notes for Rule 29 suggest otherwise: 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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“[i]t is common practice for parties to agree on such variations, and the amendment recognizes such

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agreements and provides a formal mechanism in the rules for giving them effect.” Advisory Com. com.,

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U.S.C.S. Fed. Rules Civ Proc. Rule 29.

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Moreover, at least one leading treatise has stated: “Although counsel may honor oral stipulations,

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discovery procedures and deadlines can be modified only by a stipulation in writing. [FRCP 29].”

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Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial (2007) § 11: 1198

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(emphasis added).

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The local rules of this Court also govern this discussion. In particular the local rule regarding stipulations states in relevant part: Except stipulations entered into during the course of a deposition and set forth in the transcript thereof, stipulations shall be (1) in writing, signed by all attorneys or parties in propria persona who have appeared in the action and are affected by the stipulation, except as otherwise required by Fed. R. Civ. P. 41(a)(1), and filed, or (2) made in open court and noted by the courtroom deputy clerk upon the minutes or by the court reporter in the notes, or (3) recited in a pretrial or other court order. Stipulations not in conformity with these requirements will not be recognized unless necessary to prevent manifest injustice. U.S. Dist. Ct. E.D. Cal., Local Rules, rule 83-143.

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Local rule 83-143 goes on to state that stipulations must be approved by Court or they “are not

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effective”.

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In short, because the parties have proposed a variation in discovery procedure – i.e., the method

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of service of deposition subpoenas on the Witnesses – Rule 29 requires the parties enter into a written

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stipulation. Local rule 83-143 similarly requires stipulations to be in writing and further requires the

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parties to convert the stipulation into a signed court order.

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C. DEFENDANTS AND/OR THEIR COUNSEL SHOULD PAY PLAINTIFF’S ATTORNEY FEES AND COSTS

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F.R.Civ.P. 37(c)(1) makes sanctions mandatory where a party has failed to make initial

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disclosures: A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the sanctions authorized under Rule 37(b)(2)(A), (B), and (C) and PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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may include informing the jury of the failure to make the disclosure.

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Moreover, the party who prevails on a motion to compel is entitled to reasonable attorney fees

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and costs, unless the losing party was substantially justified in making or opposing the motion or other

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circumstances make such an award unjust. Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil

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Procedure Before Trial (2007) § 11: 2380, citing FRCP 37(a)(4); H. K. Porter Co., Inc. v. Goodyear Tire

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& Rubber Co. 536 F2d 1115, 1124–1125 (6th Cir. 1976).

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“Willfulness” or “improper intent” need not be shown in awarding sanctions; rather the standard

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is whether there was “substantial justification” for the losing party's conduct. FRCP 37(a)(4); Reygo

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Pac. Corp. v. Johnston Pump Co. 680 F2d 647, 649 (9th Cir. 1982); Sheppard v. River Valley Fitness

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One, L.P. 428 F3d 1, 11 (1st Cir. 2005). The party facing the sanctions has the burden of proving his

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failure to comply was “substantially justified” or “harmless.” Yeti by Molly, Ltd. v. Deckers Outdoor

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Corp. 259 F. 3d 1101, 1106 (9th Cir.2001); see also Wilson v. Bradlees of New England, Inc. 250 F.3d

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10, 21 (1st Cir. 2001)). Absent such proof, the court should impose sanctions. This “provides a strong

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inducement for disclosure of material that the disclosing party would expect to use as evidence.” Adv.

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Comm. Notes on Amendments to Federal Rules of Civil Procedure (1993) 146 FRD 401, 691.

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This motion would not have been necessary had Defendants simply been willing to negotiate and

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sign the written Stipulation with Plaintiff. Plaintiff can only speculate as to why Defendants were so

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categorically opposed to memorializing agreements in a written stipulation.

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This dispute began with Plaintiff’s offer to enter into a written stipulation. Several times during

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the meet and confer process, Plaintiff sent Defendants the draft written Stipulation for their review and

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signature. Defendants, however, refused to negotiate or sign the Stipulation. Defendants instead issued

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ultimatums, stating their unilateral intention to produce current employees upon Plaintiff’s request but

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refusing to commit to anything beyond that.

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By the same token, Plaintiff has good reason not to rely on Defendants’ unilateral

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“representations”. Since even the beginning of this action, Defendants have continued to bully, ridicule

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and retaliate against Plaintiff, and have repeatedly failed to honor his work-related requests. For

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instance, on July 4, 2007, after Defendants had informed Plaintiff that Defendant Kern County did not

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intend to renew his employment contract (due to expire on October 4, 2007), Plaintiff requested PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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permission to retrieve his personal belongings, including valuable medical books, which had

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accumulated in his office during the last seven years. After almost 3 months of repeated emails, letters

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and entreaties by Plaintiff, Defendants continue to withhold Plaintiff’s personal belongings from him.

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Worst of all, Defendants have refused to give Plaintiff any explanations, despite his numerous requests

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for one.

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It is in this context that Plaintiff’s unwillingness to rely on Defendants’ “representations” should

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be understood. Defendants’ repeated ultimatums and take-it-or-leave-it offers are just the latest

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examples of the harassing and retaliatory behavior Defendants have inflicted on Plaintiff.

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Plaintiff requests the Court sanction Defendants and/or their counsel and award Plaintiff attorney

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fees in the amount of $2,700 in compensation of (a) 1 of the hours Mr. Eugene Lee and 1 of the hours

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Ms. Joan Herrington spent meeting and conferring to avoid bringing this motion; and (b) 2 of the hours

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Mr. Lee and 2 of the hours Ms. Herrington spent or anticipate spending in bringing this motion. Ms.

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Herrington’s and Mr. Lee’s regular rates for such services are $500 and $400 per hour, respectively. Lee

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Decl. at ¶ 16; Herrington Decl. at ¶ 3.

15 IV. CONCLUSION 16 For the foregoing reasons, Plaintiff respectfully requests that the Court (i) compel Defendants to 17 serve complete Amended Initial Disclosures which disclose the home addresses and phone numbers of 18 all witnesses identified therein pursuant to Rule 26(a)(1)(A), and (ii) order Defendants and/or their 19 counsel to pay Plaintiff $2,700 for attorney fees and costs reasonably incurred in bringing this motion, 20 pursuant to Rule 37(a). 21 // 22 // 23 // 24 // 25 // 26 // 27 /// 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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Respectfully submitted on September 24, 2007.

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/s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] /s/ Joan Herrington, SB# 178988 (as authorized on 9/24/07) BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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

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Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O.

11 UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 DAVID F. JADWIN, D.O.,

Case No. 1:07-cv-00026-OWW-TAG

15 Plaintiff,

DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES; REQUEST FOR SANCTIONS

16 v. 17 18

COUNTY OF KERN; et al. Defendants.

19

Date: November 5, 2007 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA

20 Date Action Filed: Date Set for Trial:

21

January 6, 2007 August 26, 2008

22 23 24 25 26 27 28

I, the undersigned, declare and say, as follows: 1.

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

California and admitted to practice before the United States District Court for the Eastern District of California. I am one of the attorneys of record representing Plaintiff David F. Jadwin in this matter. 2.

I am making this declaration in support of Plaintiff Dr. Jadwin’s Motion to Compel Initial

DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

1

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Disclosures and Request for Sanctions. The facts stated herein are personally known to me and if called

2

as a witness, I could and would competently testify to the truth of the facts set forth in this declaration.

3

3.

I have in good faith conferred or attempted to confer with Defendants in an effort to

4

secure the required disclosure without court action. Despite meet and confers occurring from August 10

5

to September 20, 2007, Defendants have refused to sign or even negotiate the written Stipulation with

6

me which would have resolved this dispute. I have been left no choice but to bring this motion to compel

7

seeking fees and costs.

8

4.

On August 6, 2007, the parties served Rule 26(a)(1) Initial Disclosures on each other.

9

5.

On August 10, I sent a meet and confer email to Mark Wasser, counsel of record for

10

Defendants (“Mr. Wasser”) informing him that Defendants’ Initial Disclosures (“Disclosure 1”) were

11

deficient in several respects. A true and correct copy of the email is attached hereto as Exhibit 1.

12 13 14

6.

Later that day, Mr. Wasser re-served corrected Initial Disclosures on me (“Disclosure

2”). A true and correct copy of the corrected Initial Disclosures is attached hereto as Exhibit 2. 7.

On August 14, I sent a meet and confer email to Mr. Wasser informing him that

15

Disclosure 2 was still deficient in several respects, including that Defendants had failed to provide home

16

contact information for numerous disclosed witnesses, instead simply stating “Kern Medical Center”.

17

The email requested Defendants serve corrected Initial Disclosures by August 20. A true and correct

18

copy of the email is attached hereto as Exhibit 3.

19

8.

Later that day, Mr. Wasser sent an email to me demanding legal authority in support of

20

my position. Shortly thereafter, Plaintiff and Defendants further exchanged emails. A true and correct

21

copy of the emails is attached hereto as Exhibit 4.

22

9.

On August 20, Defendants failed to serve corrected Initial Disclosures on me.

23

10.

On September 5, I faxed and mailed a meet and confer letter to Mr. Wasser which re-

24

stated the numerous deficiencies contained in Disclosure 2 and provided extensive legal authority in

25

support of its position. As a compromise, I attached a draft proposed stipulation which permitted

26

Defendants to withhold home contact information for current Kern County employees subject to certain

27

conditions. The letter requested Defendants serve corrected Initial Disclosures and/or the executed

28

stipulation by September 20. A true and correct copy of the letter is attached hereto as Exhibit 5. DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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11.

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On September 10, Mr. Wasser sent an email to me questioning why it was “okay” for

2

Plaintiff to indicate “KMC” as an address for witnesses who are Kern County employees but “not okay”

3

for Defendants to do it. Later that day, I sent a meet and confer email to Mr. Wasser, explaining that

4

Plaintiff had indicated “KMC” because he did not have contact information for Kern County employees,

5

and that this was precisely why I was requesting Defendants disclose it to him. A true and correct copy

6

of the emails is attached hereto as Exhibit 6.

7

12.

On September 13, Mr. Wasser served the “Supplement to Defendants’ Rule 26(a)(1)

8

Initial Disclosures” (“Disclosure 3”) on me. A true and correct copy of the Supplement is attached

9

hereto as Exhibit 7.

10

13.

On September 18, I sent a meet and confer email to Mr. Wasser informing him that

11

Disclosure 3 was still deficient in several respects, including that Defendants had failed to provide home

12

contact information for numerous disclosed witnesses, instead simply stating “Kern Medical Center”.

13

Attached to the email was the draft stipulation. The email requested Defendants serve the signed

14

stipulation and corrected Initial Disclosures by September 20. A true and correct copy of the email is

15

attached hereto as Exhibit 8.

16

14.

On September 19, Mr. Wasser sent two replies to my email of September 18, stating his

17

refusal to sign or even negotiate the Stipulation, and instead giving an informal assurance that

18

Defendants would provide “contact information for all former employees”. Later that day, I sent a meet

19

and confer email to Mr. Wasser stating “I think the name-calling is unnecessary” and asking Defendants

20

to re-consider the Stipulation given the vagueness of Defendants’ informal assurance. Mr. Wasser

21

responded by citing “representations” he had made recently and in emails dating back to “at least April,

22

if not March.” He noted, “I am not going to take the time to look for them because this whole exercise is

23

a waste of time. If the County at anytime refuses to make someone it controls available to you, you can

24

deal with it then.” Mr. Wasser at one point stated “if that is not good enough, bring your motion. Your

25

contentiousness is tiring.” A true and correct copy of the emails is attached hereto as Exhibit 9.

26

15.

On September 20, Mr. Wasser sent an email to me stating “[t]he Stipulation you have

27

sent me is not necessary and nothing in the rules you cite is applicable. I know you enjoy disagreements

28

but I cannot find one here. Remind me what the disagreement is. And what it is that needs to be DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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compelled.” Later that day, I sent a meet and confer email to Mr. Wasser stating “I’ll ask you, not for the

2

first time (and probably not the last), please leave the personal insults out of our interactions.” The email

3

then explained at length why USDC EDCA Local Rule 83-143 and FRCP Rule 29 require agreements

4

between counsel to vary discovery procedures and deadlines must be memorialized in a written

5

stipulation and order signed by the Court. Attached to the email was the draft Stipulation. The email

6

stated that the deadline of September 20 remained and that Defendants should serve the signed

7

Stipulation and corrected Initial Disclosures by the close of business hours that day. Mr. Wasser and I

8

went on to exchange three more meet and confer emails throughout the day, wherein Mr. Wasser

9

rejected my arguments. A true and correct copy of the emails is attached hereto as Exhibit 10.

10 11 12

16.

As of the close of business hours on September 20, Defendants had served neither the

signed Stipulation nor complete Amended Initial Disclosures on Plaintiff. 17.

On July 4, 2007, after Mr. Wasser had informed me that Defendant Kern County did not

13

intend to renew Plaintiff’s contract (due to expire on October 4, 2007), I conveyed to Mr. Wasser

14

Plaintiff’s request for permission to retrieve almost a decade’s worth of valuable personal items which

15

had accumulated in his office. After 3 months of repeated emails, letters and entreaties, Plaintiff’s

16

personal belongings still have yet to be returned to him. When I emailed Mr. Wasser several times

17

asking for an explanation, he simply ignored me. There have been other examples of retaliation and

18

bullying. It is in this context that Plaintiff’s hesitance to accept Defendants’ “representations” should be

19

understood.

20

18.

I have spent substantially in excess of 1 hour meeting and conferring with Mr. Wasser by

21

phone, fax, letter and email, and substantially in excess of 2 hours researching and drafting these moving

22

papers. My regular rate for such services is $400 per hour.

23

19.

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

24

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

25

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

26

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

27

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

28

leave of absence from practicing law from 1997 to 1999, I returned to active practice as the General DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

4

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1

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

2

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

3

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

4 5 6 7 8 9

20.

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

ultimately unsuccessful. 21.

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

Employment Lawyers Association seeking co-counsel. No attorneys from Fresno responded. 22.

On February 28, 2007, I called Andrew Jones, Esq. in Fresno, CA, requesting his

involvement as local counsel in this action. Mr. Jones declined.

10 11 12

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

13 14

Executed on September 24, 2007, at Los Angeles, California.

15 16 17

________________________________________ Eugene D. Lee

18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

5

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EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 8/10/07 EXHIBIT 2. Defendants’ corrected Initial Disclosures, dated 8/10/07 EXHIBIT 3. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 8/14/07 EXHIBIT 4. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 8/14/07 EXHIBIT 5. Meet and confer letter faxed by Plaintiff’s attorney to Defendants’ attorney, dated 9/5/07, with draft stipulation attached EXHIBIT 6. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 9/10/07 EXHIBIT 7. Supplement to Defendants’ Rule 26(a)(1) Initial Disclosures, dated 9/13/07 EXHIBIT 8. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 9/18/07, with draft stipulation attached EXHIBIT 9. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 9/19/07 EXHIBIT 10. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 9/20/07

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EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 8/10/07

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Eugene D. Lee From:

Eugene D. Lee [[email protected]]

Sent:

Friday, August 10, 2007 2:29 PM

To:

'[email protected]'

Cc:

'Joan Herrington'

Subject:

Jadwin/KC: Def Initial Disclosures

Follow Up Flag: Follow up Flag Status:

Completed

Mark, We are in receipt of Defendants’ Initial Disclosures. Although Joan and I are still reviewing them, we thought we would immediately alert you to several aspects in which the Initial Disclosures fail to comply with Rule 26. First, the Initial Disclosures are not certified by counsel’s signature. Second, the Initial Disclosures fail to comply with the last clause of Rule 26(a)(1)(A) which requires Defendants to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information”. The Initial Disclosures fail to disclose the subjects of information for each witness. Moreover, production of a “Partial Witness List” as Defendants have chosen to entitle it, does not comply with Rule 26. The list must be complete as of the date of production. Please deliver to us Initial Disclosures which comply with Rule 26 within 10 days, i.e., no later than August 20, 2007. If Defendants fail to do the foregoing, Plaintiff will ask Magistrate Judge Goldner to schedule an informal CMC to try to resolve these differences. If Defendants comply, Plaintiff will withdraw the informal CMC request. If neither our meet and confer efforts nor the informal CMC resolve this issue, then Plaintiff intends to file a motion to compel compliant Initial Disclosures that seeks monetary and evidentiary sanctions. It is unfortunate that this action is yet again delayed due to the need for Plaintiff to engage in the meet and confer process with Defendants. Plaintiff looks forward to Defendants’ immediate response. Sincerely, Gene Lee / Joan Herrington

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.

9/20/2007

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EXHIBIT 2. Defendants’ corrected Initial Disclosures, dated 8/10/07

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Mark Wasser

916-444-6405

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

Fax To'

Eugene Lee

From:

Fax:

(213) 596-0487

Pages: 10 including cover

Phone: (213) 992-3299 Re:

Date:

Jadwin v. County of Kern, et al

o Urgent

o For Review

Mark A Wasser

8/10/2007

cc,

o Please Comment

D Please Reply

• Comments, See Defendants' Rule 26(a)(1) Initial Disclosures.

p.1

o Please Recycle

Aug Aug 10 10 07 07 05:14p 05:14p

Mark Wasser

916-444-6405 916-444-6405

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

22 33 44

55 66 77

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Mark Mark A. Wasser CA SB #060160 LAW LAW OFFICES OF MARK A. WASSER 400 400 Capitol Mall, Suite 1100 Sacramento, Sacramento, CA 95814 Phone: Phone: (916) 444-6400 Fax: Fax: (916) 444-6405 E-mail: E-mail: mwasser(al.markwasser.com Bernard Bernard C. Barmann, Sr. KERN KERN COUNTY COUNSEL Mark Mark Nations, Chief Deputy 1115 1115 Truxton Avenue, Fourth Floor Bakersfield, Bakersfield, CA 93301 Phone: Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: E-mail: [email protected]

99

10 10 II II

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

12 12 13 13

UNITED STATES DISTRICT COURT

14 14

EASTERN DISTRICT OF CALIFORNIA

15 15 16 16

) Case No.: 1:07-cv-00026-0WW-TAG

DAVID F. JADWIN, D.O.

)

17 17 18 18 19 19 20 20 21 21 22 22

23 23 24 24

25 25 26 26

Plaintiff, vs.

COUNTY OF KERN, et aI., COUNTY Defendants.

~ ~ )

DEFENDANTS' RULE 26(a)(I) INITIAL DISCLOSURES

~) j ~)

Date Action Filed: January 6,2007 Trial Date: August 26, 2008

I. INDIVIDUALS LIKELY TO RAVE DISCOVERABLE INFORMAnON IRA DEFENDANTS' MAY l:SE TO SUPPORT THEIR DEFENSES See Appendix 1 attached hereto.

27 27 28 28

DEFENDANTS' RULE 26(")(1) 1NITIAL DISCLOSURES DISCLOSURES

I

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n. ll.

2

3

DOCUMENTS THAT ARE IN THE POSSESSION COPIES OF ALL DOCUl\iIENTS CUSTODY, OR CONTROL OF THE PARTY AND THAT THE DEFENDANTS' MA USE TO SUPPORT THEIR DEFENSES See documents docwnents produced on August 6, 2007.

4

5 6

Dated: August 10, 2007

LAW OFfiCES OF MARK A. WASSER LA 1JyT OFFiCES \VASSER

7 8

9

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

10 11

12

13 14 IS 15

16 17

18 19 20

21

22 23

24

25

26 27 28

DEFENDANTS' RULE 26(a)(l) INITIAL DISCLOSURES

2

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Filed 09/24/2007

pA

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POTEl'\TIAL WITNESS LIST

NAME & AVAILABLE CONTACT INFORMATION Leonard Perez, MD Kern Yledical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2236

SUBJECT OF INFORMAnON Generallmowledge of issues

Sergio Perticucci, MD No contact information available

Unknown

Adam Lang, MD 10506 Finchley Drive Ball.erstield, CA 9331 I Telephone: (661) 205-2869

General knowledge of issues

Elsa Ang, MD 4200 Sill Place Bakersfield, CA 93306

General knowledge of issues

Fangluo Lin, Liu, MD Fanglno 107 I0 Harpenden Avenue Bakersfield, CA 93311 Telephone: (661) 303-9117

General knowledge of iss~les iss~les

Ellen Bnnyi-Teopengco, Bunyi-Teopengco, MD 10518 Ascot Crossing Street Bakerstle1d, CA 93311 Telephone: (661) 204-5682

General knowledge of issues

Savita Shertukde, MD Kern Medical Center Telephone: (661) 326-2595

General knowledge of issues ofissncs

Gilbert Martinez Kern Medical Center Telephone: (661) 326-246B

General knowledge of issues

Royce Johnson, MD Kern Medical Center

General knowledge of issues

Irwin E. Harris, MD Kern Medical Center

I G,,;neral knowledge ofissucs

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Antoinette (Toni) Smith, MSN, RN,C Kern Medical Cemer Telephone: (661) 326-2688

General knowledge of issues

David K. Culberson The Camden Group 100 N. Sepulveda Blvd., Ste. 600 EI Segundo, CA 90245

General knowledge of issues

Susie Price, RN Kaiser Permauente Medical Group Bakersfield, CA

Cnknown

Evaugeline "Vangie" Gallegos (aka Tolentino) Kern Medical Center

Unknown

Yolauda Figueroa Kern "1edical Center Telephone: (661) 326-2448

Unknown

Tracy Lindsey Kern Medical Center Telephone: (661) 326-2256

Unknown

Katrina Mauuel Kern Medical Center

Unknown

Denise Rhynes Kern Medical Center

Unknown

Tracy Subriar Kern Medical Center

Unknown

Carol Wedding Kern Medical Center

Unkno'wn

Rae McDonald Kern Medical Center

Unknown

Arlene Ramos-Aninion Kern Medical Center

Unknown

Jaue Thornton Kern Medical Center Telephone: (661) 326-2906

General knowledge ofissnes

Kathy Griffith Kern Medical Center Telephone: (661) 326-2441

General knowledge of issues

2

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Michael Costa, MD 1451 W. Willow Street Stockton, CA 95203

Unknown

Juan Felix, :MD LAC-USC Medical Center Director of Surgical Pathology, Women's and Children's Hospital

Limited knowledge of diagnosis

Parakrama Chandrasoma, MD LAC+USC Medical Center Los Angeles, CA 90033 Telephone: 323-226-4600

Limited knowledge of diagnosis

David Hill 7404 Arleta Avenue Bakersfield, CA 93308

Unknown

Bernard C. Barmann, Sr., County Counsel Office of County Counsel IllS Truxtun Ave., 4th Floor Bakersfield, CA 9330 I Telephone: (661) 868-3800

General knowledge of issues

Ravi Patel, MD Comprehensive Blood and Cancer Center 6501 Truxtun Avenue Bakersfield, CA 93309

General knowledge ofissues

David Lieu, MD UCLA Medical Center

Unknown

Marvin Kolb, MD 10708 North Essex Court Mequon, Wisconsin 53092

General knowledge of issues

Nitin Athavale, ::VlD 19620 Scotland Drive Saratoga, CA 95070

General knowledge of issues

Vivek Bhargava, MD lSI Garcia Avenue San Francisco, CA 94127

Unknown

I

3

I

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Margo A. Raison County ofKem County Counsel Chief Deputy County Counsel Administrative Center th IllS Truxtun Ave., 4 Floor Bakersfield, CA 93301 Direct: (661) 86&-3876

Filed 09/24/2007

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Unknmvn

Jennifer J. Abraham, MD Kern Medical Center Telephone: (661) 873-7370

General knowledge of issues

Eugene E. Kercher, MD Kern Medic:al Center Telephone: (661) 326-2159

General knowledge of issues

A. Scott Ragland, DO Kern Medical Center Telephone: (661) &72-8559

General knowledge of issues

Jose Perez, MD Houston, Texas

General knowledge of issues

Peter K. Bryan . 6424 S. Abilene Street Centennial, Colorado 80111

General knowledge of issues

William Roy, J\,ID Mobile, Alabama

General knowledge of issues

Edward (Bill) Taylor, MD Kern Medical Center Telephone: (661) 326-2275

General knowledge of issues

Michelle Burris Kern Medical Center Telephone: (661) 326-2464

General knowledge of issues

Stacy Lynne Garry, J\,ID

Unknown

1500 Cornmanche Drive Las Vegas, Nevada &9109 Javad Naderi, MD Kern Medical Center Pager: (661) 307-2119

. General knowledge of issues

General knowledge of issues

Maureen Martin, MD Kem Medical Center Telephone: (661) 326-2275

..-

4

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Navin Amin, MD Kern Medical Center Telephone: (661) 326-5052

General knowledge of issues

Chester Lau, MD 1061 Dakin Avenue Menlo Park, CA 94025

General knowledge of issues

Steve O'Connor Kern Medical Center

General knowledge of issues

RenitaNmm , Kern Medical Center

General knowledge of issues

Albert McBride, MD Kern Medical Center Telephone: (661) 326-2286

General knowledge of issues

Alice Hevle Kern Medical Center Telephone: (661) 326-2012

General knowledge of issues

Dianne McConnehey, RN Kern Medical Center

General knowledge of issues

Philip Dun, MD Kern Medical Center Telephone: (661) 326-2256

General knowledge of issues

Mary Cortez Kern Medical Center Telephone: (661) 326-2161

Unknown

Karen S, Barnes, Chief Deputy Office of County Counsel IllS Truxtun Ave., 4th Floor Bakersfield, CA 93301 Telephone: (661) 326-2029

General knowledge of issues

Ronald M. Errera County Administrative Officer 1115 T ruxtun Ave, 4th Floor Bakersfield, CA 93301

General knowledge of issues

Jordan Kaufman Assistant Treasurer 1115 Truxtun Ave., 4th floor BalwrsfieJd, Bal<ersfieJd, CA 93301

Unknov..'ll

5

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Jack King Kern Medical Center

Unknown

Cindy Lighthill Kern Medical Center

Limited knowledge of compensation

rai Yoo, MD Kern Medical Center

Unknown

Erin Baldwin, MD Former KMC Medical Student (2003) 18 Lassen Drive Santa Barbara, CA 93111

Knowledge ofLau incident

Linda Nipper Kern County Superior Court

Unknown

Bonnie Quinonez 3434 South Sterling Road Bakersfield, CA 93307

Unknown

Patricia Parada Kern Medical Center

Unknown

Serena Sepulveda-Rini Kern Medical Center

Unknown

David Kanamori, MD Comprehensive Blood and Cancer Center 6501 Truxtun Avenue Bakersfield, CA 93309

Unknown

Jodi Hartsfield Medrium, Inc. 4900 California Ave., Ste. 170-B Bakersfield, CA 93309

Knowledge of compensation issues

Carol Gates Kern Medical Center Telephone: (661) 326-2657

. General knowledge of issues

Martin Lipschultz, MD . 716 Meadow Lane South Minneapolis, Minnesota 55416

Unknown

, General knowledge of issues

Denise Long Kern Medical Center Telephone: (661) 868-3162

6

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EXHIBIT 3. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 8/14/07

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Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Tuesday, August 14, 2007 12:42 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Def Initial Disclosures Mark, Thank you for sending the Defendants’ Initial Disclosures to me on August 10. As you know, I had earlier written you about the various ways in which the Initial Disclosures had been noncompliant with Rule 26. The “Potential Witness List” contained in the Initial Disclosures remains noncompliant in the following ways: -

Indication that a witness’s subject of information is “General Knowledge of issues”: this is insufficient disclosure as it fails to put Plaintiff on sufficient notice as to what information the witness possesses. Just as an example, Dr. Elsa Ang can’t possibly have percipient knowledge about Plaintiff’s sick leaves, demotion, involuntary administrative leave, non-renewal of his contract, etc.

-

Indication that a witness’s subject of information is “Unknown”: If the subject of information is unknown to Defendants, the witness must be removed from the list.

-

Contact information for certain witnesses denoted simply as “Kern Medical Center”: The last known home address of must be provided for each witness.

Again, it is unfortunate that this action continues to be delayed by Defendants’ continuing failure to comply with Rule 26. We look forward to receiving fully compliant Initial Disclosures by no later than August 20, 2007. Otherwise, Plaintiff will consider requesting an informal CMC and/or filing a motion to compel. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.

9/20/2007

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

Document 50

Filed 09/24/2007

Page 22 of 87

EXHIBIT 4. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 8/14/07

Page 1 of 2 Case 1:07-cv-00026-OWW-TAG

Document 50

Filed 09/24/2007

Page 23 of 87

Eugene D. Lee From:

Mark Wasser [[email protected]]

Sent:

Tuesday, August 14, 2007 5:07 PM

To:

[email protected]

Subject:

RE: Jadwin/KC: Def Initial Disclosures

Follow Up Flag: Follow up Flag Status:

Completed

Gene, I am not refusing to modify the witness list. I simply asked you if you have any authority for your position. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Tuesday, August 14, 2007 5:00 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Def Initial Disclosures Mark, I’ll look for authority and you’re welcome to do the same. But I take it from your email that you are refusing to modify the witness list. We will proceed accordingly. Sincerely, Gene

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

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

From: Mark Wasser [mailto:[email protected]] Sent: Tuesday, August 14, 2007 4:51 PM To: [email protected] Subject: RE: Jadwin/KC: Def Initial Disclosures Gene, Do you have any authority that a business address is not adequate for a witness? Same question regarding the reference to “General Knowledge.” What is your authority for that?

9/20/2007

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

Document 50

Filed 09/24/2007

Page 24 of 87

EXHIBIT 5. Meet and confer letter faxed by Plaintiff’s attorney to Defendants’ attorney, dated 9/5/07, with draft stipulation attached

From: Law OFFice of Eugene Lee

To: 213-596-0487

Case 1:07-cv-00026-OWW-TAG (213) 992-3299

LAW

TELEPHONE

Document 50

(213) 596-0487 FACSIMILE

Los

Filed 09/24/2007

OF

OFFICE

E U G ENE 555

Pg 1/ 6 09/05/07 2:27 pm

Page 25 of 87 [email protected] EMAIL

L E E

WEST FIFTH STREET SUITE 3100 ANGELES, CALIFORNIA 9001 3-1 01 0

WWW.LOEL.COM WEBSITE

FAX To: Fax Number: 2135960487

From: Law Office of Eugene Lee Date: 09/05/2007

Pages: 6 (including cover page)

Re: Jadwin/KC: Meet & Confer re Initial Disclosures

Comments:

Mark: Transmitted herewith is a meet and confer letter regarding Defendants' defective Initial Disclosures as well as a proposed stipulation. We look forward to hearing from you shortly. Sincerely.

From: Law OFFice of Eugene Lee

To: 213-596-0487

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

LAW

(213) 992-3299

TELEPH ON E

Pg 2/ 6 09/05/07 2:27 pm

Document 50

Filed 09/24/2007

OFFICE

EUGENE

o

F

555

FACSIMILE

LOS ANGELES, CALIFORNIA 90013-1010

STREET,

E LE [email protected] E-MAIL

LEE

(Z 1 3) 596-0487

WEST FIFTH

Page 26 of 87

SUITE 3 1 0 0

EUGENE D. LEE, ESQ

WWW.LOEL.COM WEBSITE

JOAN E. HERRINGTON, ESQ

PRINCIPAL

OF COUNSEL

September 5, 2007 VIA FACSIMILE & US MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste II 00 Sacramento, CA 95814 Re:

100011.001

Defendants' Initial Disclosures Jadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-0WW/TAG)

Dear Mr. Wasser: On August 14, 2007, we sent you an email notifying Defendants of the following deficiencies in the witness disclosure portion of their Initial Disclosures: Indication that a witness's subject of information is "General Knowledge of issues": Fails to sufficiently identify the subjects of information the witness possesses, particularly when some of these witnesses left KMC many years ago. Indication that a witness's subject of information is "Unknown": If the subject of information is unknown to Defendants, the witness must be removed from the list. Contact information for certain witnesses denoted simply as "Kern Medical Center": The last known home address and phone number of each witness must be disclosed. Later that day, you had replied via email requesting Plaintiff provide case authority supporting the first and third points (presumably, Defendants did not contest the validity of Plaintiffs second point and therefore acknowledge it). No case authority is needed when Defendant clearly has not complied with the plain language of the statute: F.R.C.P. Rule 26(a)(1)(A) requires disclosure of: "the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information." Defendants Must Provide the Topics of Knowledge for Each Witness The purpose of discovery is to make trial "less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent possible," United States v. Procter & Gamble, 356 U.S. 677,683, 78 S.Ct. 983,987, 2 L.Ed.2d 1077 (1958), and to

To: 213-596-0487

From: Law OFFice of Eugene Lee

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

Pg 3/ 6 09/05/07 2:27 pm

Document 50

Filed 09/24/2007

Page 27 of 87

narrow and clarify the issues in dispute, Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947). Initial disclosures are intended to streamline discovery and make it more efficient. Disclosure of "the subjects of information" possessed by each disclosed witness is essential in this case to meet this purpose. A blanket list (of disclosed witnesses), with no identifying information, is close to useless and would require a vast expenditure of resources on the part of TEl to make the disclosure meaningful. EI Dorado Irrigation Dist. v. Traylor Bros., Inc. F.Supp.2d, 2006 WL 191960 E.D.Cal., 2006. Defendant's disclosure that a witness has "general knowledge of the issues" is insufficient to allow Plaintiff to select from among the many, many witnesses so designated only those who possess sufficient pertinent information to warrant deposing. This is particularly true when Defendants have used this all-encompassing designation to describe the subjects of information possessed by witnesses such as Dr. Elsa Ang, who has not been employed by KMC for many years, so must necessarily have a limited scope of knowledge ofthe subject matter of this lawsuit. Defendants Must Provide the Last Known Home Address and Phone Numbers for Each Witness

As the court stated in Bell v. Swift & Co., "[Rule 26], governing the scope of the interrogatories, provides expressly that discovery may be had concerning 'the identity and location of persons having knowledge of relevant facts'. One of the purposes of this provision is to allow all parties equal access to the relevant facts." 283 F.2d 407, 409 (5th Cir. 1960) (emphasis added). In Biltrite Corp. v. World Rd. Markings, Inc., the court noted that there are several specific purposes underlying the requirement that parties disclose the identification and location of witnesses: The obvious purpose of the disclosure requirement of Rule 26(a)(1)(A), Fed. R. Civ. P., is to give the opposing party information as to the identification and location of persons with knowledge so that they can be contacted in connection with the litigation, either for purposes of serving a proposed amended complaint (as occurred in this case) or for being interviewed or for being deposed or for doing background investigation. 202 F.R.D. 359,362 (D. Mass. 2001) Finally, in Dixon v. Certainteed Corp., the court expressly noted that disclosing only business addresses for witnesses does not satisfy the obligation under Rule 26: [Defendant] has not disclosed, however, the addresses or telephone numbers of current employees. It contends that Rule 26(a) does not require such disclosure [.. . .] Identification of individuals pursuant to Fed. R. Civ. P. 26(a)(1) includes providing their addresses and telephone numbers, if known. The rule expressly states as much. Pursuant to Rule 26(a)(I), therefore, CertainTeed shall disclose

2

To: 213-596-0487

From: Law OFFice of Eugene Lee

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

Pg 4/ 6 09/05/07 2:27 pm

Document 50

Filed 09/24/2007

Page 28 of 87

the addresses and telephone numbers of all the identified employees. It may not satisfy this obligation by disclosing its business address and phone number, unless it knows of no other address and number. 164 F.R.D. 685,689 (D. Kan. 1996) (emphasis added). In their Initial Disclosures, Defendants state "Kern Medical Center" - and nothing more - as the contact information for numerous witnesses. This does not constitute a "business address" let alone sufficient disclosure. Defendants fail to provide Plaintiff with the last known home address and phone numbers for each witness, the work number, email address or any other pertinent contact information.

Defendants Must Produce Relevant Insurance Policies In addition, we would like to point out another deficiency in Defendants' Initial Disclosures. Rule 26(a)(I)(D) requires Defendants to provide to Plaintiff "for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment." As the court in Excelsior College v. Frye noted: A plain reading of Rule 26(a)(l)(D), indicates it is clearly designed for parties to produce documentation of any insurance policies that give rise to an insurer's obligation to indemnify or hold its insured harmless for a judgment. Likewise, the legislative history supports this interpretation. 233 F.R.D. 583, 586 (D. Cal. 2006) Defendants' Initial Disclosures contained no such insurance agreements. Although Plaintiff had requested Defendants' re-serve the Initial Disclosures so as to correct the above deficiencies by no later than August 20, Defendants have failed to do so. It is unfortunate that this action continues to be delayed by Defendants' continuing failure to comply with the rules. Enclosed is a proposed stipulation for your signature. In any event, we look forward to receiving compliant Initial Disclosures by no later than September 20,2007. Otherwise, Plaintiff will be forced to consider requesting an informal CMC and/or filing a motion to order Defendants to resubmit their Initial Disclosures.

cc: enc:

Joan Herrington, Esq. Proposed Stipulation 3

From: Law OFFice of Eugene Lee

To: 213-596-0487

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

1 2 3 4 5 6 7 8

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Filed 09/24/2007

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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] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

9

10

Attorneys for Plaintiff DAVID F. JADWIN, D.O. Mark A. Wasser CA SB #06160

11 12 13 14 15 16 17 18

LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 11 00 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected] Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected]

19 20

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

21

UNITED STATES DISTRICT COURT

22

EASTERN DISTRICT OF CALIFORNIA

23

FRESNO DIVISION

24

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

25 v.

Civil Action No. 1:07-cv-00026 OWW TAG STIPULATION RE HOME ADDRESSES OF DISCLOSED KERN COUNTY EMPLOYEES.

26 COUNTY OF KERN, et aI., 27

Complaint Filed: January 5, 2007 Trial Date: August 26,2008

Defendants. 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG STIPULATION RE ADDRESSES OF DISCLOSED WITNESSES

1

From: Law OFFice of Eugene Lee

To: 213-596-0487

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

1 2 3

Document 50

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Filed 09/24/2007

Page 30 of 87

In order to avoid a Motion to Compel Initial Disclosures that comply with Rule 26, Defendants hereby stipulate that: 1. Defendants shall disclose to Plaintiff David F. Jadwin, D.O. the last known address

0

4

any and all Conner employees of Defendant County of Kern that Defendants listed as

5

witnesses in their Initial and Supplemental Disclosures by September 20, 2007.

6

2. Defendants shall disclose to Plaintiff David F. Jadwin, D.O. the last known address

0

7

any and all current employees of Defendant County of Kern that Defendants listed as

8

witnesses in their Initial and any Supplemental Disclosures within ten working days

9

of any termination of their employment with the County of Kern.

10

3. Defense counsel shall accept service by facsimile of Plaintiff's deposition subpoenas

11

and Rule 45 subpoenas on behalf of any and all current employees of Defendant

12

County of Kern, and Defendant County of Kern shall take all necessary steps to

13

compel compliance with either or both ofthese.

14

4. Defendants shall re-serve their Initial Disclosures by September 20, 2007 so as to

15

provide a more precise and substantive description of the "subject of information" of

16

each witness.

17

5. Defendants shall re-serve their Initial Disclosures by no later than September 20,

18

2007 so as to produce insurance agreements as required under Rule 26(a)(l)(D).

19

Dated: September_, 2007

20 Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.

21 22

Dated: September _, 2007 23

24 25 26 27

Mark A. Wasser, Attorney for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND,TONI SMITH, AND WILLIAM ROY

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG STIPULATION RE ADDRESSES OF DISCLOSED WITNESSES

2

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

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EXHIBIT 6. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 9/10/07

Page 1 of 3 Case 1:07-cv-00026-OWW-TAG

Document 50

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Eugene D. Lee From:

Eugene D. Lee [[email protected]]

Sent:

Monday, September 10, 2007 10:27 PM

To:

'[email protected]'

Cc:

'Joan Herrington'

Subject:

Jadwin/KC: MNC re Initial Disclosures

Follow Up Flag: Follow up Flag Status:

Completed

Mark, We wrote “KMC” because we don’t have the contact information for those witnesses. If we did, we would not now be asking the County to provide it to us. Those witnesses are present or past employees of the County so the County should have their contact information, not Dr. Jadwin. We look forward to receiving fully compliant Initial Disclosures from the defendants on September 20, 2007. It would be a patent waste of the Court’s time to hear a motion to compel on a matter such as this, but the Defendants’ dilatory tactics will have left us no choice. If we are not in such receipt by the close of business that day, WE WILL IMMEDIATELY FILE A MOTION TO COMPEL. Please feel free to give me a call at my cellphone at 213-453-1781 if you have any additional questions. I sincerely hope we can reach a reasonable and amicable resolution of this issue without having to resort to a Court hearing. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

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

From: Mark Wasser [mailto:[email protected]] Sent: Monday, September 10, 2007 4:03 PM To: [email protected] Subject: RE: Jadwin's personal property Gene, With regard to our respective initial disclosures and your letter of September 5, explain to me why it is okay for you to indicate “KMC” as an address for witnesses on your list but not okay for me to indicate “Kern Medical Center” as an address for witnesses on mine. Mark

9/20/2007

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

Document 50

Filed 09/24/2007

Page 33 of 87

EXHIBIT 7. Supplement to Defendants’ Rule 26(a)(1) Initial Disclosures, dated 9/13/07

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

Law Offices of Document 50

Filed 09/24/2007 MARK A. WASSER

Page 34 of 87

400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 [email protected]

September 13, 2007

VIA FIRST CLASS MAIL

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

Re: Jadwin v. County ofKern, et ale Dear Mr. Lee: We have revised the witness list we enclosed as part of our initial disclosure so that it describes the subjects of information the various witnesses are believed to have in more detaiL When our own investigation is complete, we may know more about the witnesses' knowledge but these descriptions fairly summarize what we presently know. We deleted the names of witnesses for whom we have no specific subjectinformation, even though doing so seems contrary to Dr. Jadwin's interests. My intent in giving you the names in the first place was to be inclusive but, if you want less, we will give you less. I have always subscribed to the view that it is better to have a witnesses' name than to not have it but I have no interest in convincing you of that. Your suggestion that our initial disclosure was deficient or that we "acknowledge" the baseless position you have taken does not warrant further comment. We are not providing home addresses for any persons who are employed by the County. Unlike Dixon v. Certainteed Corporation, which you cite, the County has not and will not resist making its employees available to you for deposition or informal interview. As I have told you from the outset, (I believe I first represented this to you in March) I will accept service of all papers on behalf of the Defendants and all County employees and will make arrangements to produce any employees you want. Thus, employment addresses afford you complete access to all employees. Also, because of Dr. Jadwin's threatening and intimidating behavior towards his co-workers at Kern Medical Center, many.employees are afraid of him and are unwilling to let him know where they live.

Admitted to Practice in California and Nevada

Case 1:07-cv-00026-OWW-TAG Eugene Lee September 13, 2007 Page 2

Document 50

Filed 09/24/2007

Page 35 of 87

Even though Dr. Jadwin knows the street address of Kern Medical Center, having worked there for several years (and having referred to it as simply "KMC" in his own witness list) we have included it for you. Finally, we are providing a copy of a memorandum of coverage with the CSAC Excess Insurance Authority. It was not included in our first disclosure because the County had not been able to verify its coverage. As you will note, the County has a $2 million self-insured retention before any insurance is available.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes Joan Herrington

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

1 2 3 4 5 6 7

8

Document 50

Filed 09/24/2007

Page 36 of 87

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Bannann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy . 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

9 10 11

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

12 13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA

15 . 16

DAVID F. JADWIN, D.O.

17 18 19

) Case No.: 1:07-cv-00026-0WW-TAG )

) SUPPLEMENT TO DEFENDANTS' RUL ) 26(a)(I) INITIAL DISCLOSURES

Plaintiff, vs.

COUNTY OF KERN, et aI.,

) ) Date Action Filed: January 6, 2007 ) Trial Date: August 26, 2008

) 20 21 22 23 24

Defendants.

) ) ) ) )

) ----------) I. INDIVIDUALS LIKELY TO HAVE DISCOVERABLE INFORMATION THA DEFENDANTS' MAY USE TO SUPPORT THEIR DEFENSES.

25

26

See Appendix 1 attached hereto.

27 28 SUPPLEMENTAL TO DEFENDANTS' RULE 26(a)(l INITIAL DISCLOSURE

1

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

1

2

Document 50

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III. COPIES OF ANY INSURANCE AGREEMENTS THAT MAY APPLY. See Appendix 2 attached hereto.

3

·44

Dated: September 13, 2007

LAW OFFICES OF MARK A. WASSER

5

6 By: 7 8

/J~~~~ Mark A. Wasser of Kem, et al. Attorney for Defendants, County ofKern,

9

10 11 12 13

14 15 16 17

18 19 20 21 22 23 24 25

26 27 28 SUPPLEMENTAL TO DEFENDANTS' RULE 26(a)(l 26(a)(1 INITIAL DISCLOSURE

2

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

1 Re:

Document 50

Filed 09/24/2007

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David F. Jadwin, D. O. v. County ofKern, et ale Case No. 1:07-cv-00026-0WW-TAG

2 PROOF OF SERVICE

3

4

I, Amy Remly, declare:

I am a resident of the State of California and over the a~e of eighteen years and not a party to 5 the within action; my business address is 400 Capitol Mall, SUite SUIte 1100, Sacrament~ CA 95814. On September 13,2007, I served the within documents: SUPPLEMENT TO DEFENDANTS' RULE 6 26(a)(I) INITIAL DISCLOSURES

7

o

D·

8 9

by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth .below. below.

10

11

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

12

13

14

Joan Herrington Bay Area Employment Law Office 5032 Woodminister Lane Oakland, California 94602-2614

15

16 17 18

19

by transmitting via facsimile from (916) 444-6405 the above listed document(s) without error to the fax number(s) set forth below on this date before 5:00 p.m. A copy of the transmittal/confirmation sheet is attached, and

o o

by causing personal delivery by of the document(s) listed above to the person(s) .at at the address (es) set forth below. .by by placing the document(s) listed above in a sealed Overnight Delivery envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a Overnight Delivery agent for delivery. .

20 I am readily familiar with the firm's practice of collection and processing correspondence for 21 mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party 22 served, service is presumed invalid if postal cancellation date or postage meter date is more than one 23 day after date of deposit for mailing in affidavit.

24 24

25 26 27

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

Executed on Sep~ember 13, 2007, at Sacramento,

C~ifornia.

i

\

).

.

~/\:vv

AMY REM

28 PROOF OF SERVICE

.·

.~.

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

Document 50

APPENDIX 1

Filed 09/24/2007

Page 39 of 87

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

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POTENTIAL WITNESS LIST

NAME & AVAILABLE CONTACT INFORMATION

SUBJECT OF INFORMATION

Leonard Perez, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2236

Operation and management of Kern Medical Center and communications and interactions. between hospital staff.

Adam Lang, MD 10506 Finchley Drive Bakersfield, CA 93311 Telephone: (661) 205-2869

Operation and management of pathology department, communications and interactions between hospital staff and diagnosis issues.

ElsaAng, MD 4200 Sill Place Bakersfield, CA 93306

Operation and management of pathology department, communications and interactions between hospital staff, certification tests and diagnosis issues.

Fangluo "Liu, MD 1071 0 Harpende~ Avenue Bakersfield, CA 93311 Telephone: (661) 303-9117

Operation and management of pathology department, communications and interactions between hospital staff, certification tests and diagnosis issues.

Ellen Bunyi-Teopengco, MD 10518 Ascot Crossing Street Bakersfield, CA 93311 Telephone: (661) 204-5682

Operation and management of pathology department, communications and interactions between hospital staff, certification tests and diagnosis Issues.

Savita Shertukde, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2595

Operation and management of pathology department, communications and interactions between hospital staff, certification tests and diagnosis issues.

1

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

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Gilbert Martinez Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2468

Operation and management of pathology department and communications and interactions between hospital staff.

Royce Johnson, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305

Operation and management of Kern Medical Center and communications and interactions between staff.

Irwin E. Harris, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305

Operation and management of Kern Medical Center and communications and interactions between staff.

Antoinette (Toni) Smith, MSN, RN,C Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2688

Blood usage policies and operation and management of Kern Medical Center.

David K. Culberson

Operation and management of Kern Medical Center and communications and interactions between staff.

Jane Thornton Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2906

Plaintiffs management of the pathology department, communications and interactions with staff and practices.

Kathy Griffith Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2441

Plaintiff s management of the pathology department, communications and interactions with hospital staff, blood usage and practices.

Juan Felix, MD LAC-USC Medical Center

Pathology

Bernard C. Barmann, Sr., County Counsel Office of County Counsel 1115 Truxtun Ave., 4th Floor Bakersfield, CA 93301 Telephone: (661) 868-3800

Meetings with plaintiff and operation and management of Kern Medical Center and communications and interactions between staff.

2

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Nitin Athavale, MD 19620 Scotland Drive S8!atoga, CA 95070

Tie-pulling incident

Jennifer J. Abraham, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: '(661) 873-7370

Operation and management of Kern Medical Center and communications and interactions between staff.

Eugene E. Kercher, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2159

Operation and management of Kern Medical Center, communications and interactions between staff and diagnosis Issues.

A. Scott Ragland, DO Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 872-8559

Operation and management of Kern Medical Center communications and interactions between staff and diagnosis issues.

Peter K. Bryan 6424 S. Abilene Street Centennial, Colorado 80111

Operation and management of Kern Medical Center, communications and interactions between staff and leaves and leave policies.

William Roy, MD Mobile, Alabama

Communications and interactions between the parties. Diagnosis issues.

Edward (Bill) Taylor, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2275

Operation and management of Kern Medical Center

Michelle Burris Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2464

Plaintiff s management of the pathology department, communications and interactions between hospital staff, and blood usage policies.

.

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Javad Naderi, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Pager: (661) 307-2119

Plaintiffs management of the pathology department, communications and interactions between hospital staff and practices.

Maureen Martin, MD Kern Medical Center Telephone: (661) 326-2275

Operation and management of Kern Medical Center

Navin Amin, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-5052

Plaintiff s management of the pathology department, communications and interactions between hospital staff and practices.

Chester Lau, MD 1061 Dakin Avenue Menlo Park, CA 94025

Tie pulling incident and communications and interactions between hospital staff

Steve 0' Connor Kern Medical Center 1830 Flower Street Bakersfield, CA 93305

Human resources issues, leaves and leave policies

Albert McBride, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2286

Plaintiff s management of the pathology department, communications and interactions between hospital staff and practices.

Alice Hevle Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2012

Plaintiff s management of the pathology department, communications and interactions between hospital staff, blood usage and practices.

Philip Dutt, MD Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 326-2256

Operation and management of pathology department, communications aild interactions between hospital staff, diagnosis issues, leaves and leave policies..

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. Karen S. Barnes, Chief Deputy Office of County COUlisel 1115 Truxtun Ave., 4th Floor Bakersfield, CA 93301 Telephone: (661) 326-2029

Operation and management of Kern Medical Center, communications and interactions between hospital staff and meetings with plajntiff.

Ronald M. Errera County Administrative Officer 1115 Truxtun Ave., 4th Floor Bakersfield, CA 93301

Operation and management of Kern Medical Center .

Cindy Lighthill Kern Medical· Center 1830 Flower Street Bakersfield, CA 93305

Physician compensation

Erin Baldwin, MD Former KMC Medical Student (2003) 18 Lassen.Drive Santa Barbara, CA 93111

Tie-pulling incident

Carol Gates Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: ,(661) 326-2657

Plaintiff s management of the pathology department, communications and interactions with hospital staff, practices and certification tests.

Denise Long Kern Medical Center 1830 Flower Street Bakersfield, CA 93305 Telephone: (661) 868-3162

Plaintiff s management of the pathology department, communications and interactions with hospital staff and practices.

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CSAC EXCESS INSURANCE "AUTHORITY AUTHORITY (CSAC EIA)

MEMORANDUM OF LIABILITY COVERAGE FOR PUBLIC ENTITIES DECLARATIONS EIA 06 GL2-13

ITEM 1: MEMBER:

Kern County

ITEM 2: MEMORANDUM PERIOD:

1, 2006 to October 1,2007, 12:01 a.m. local From October 1,2006 time of the Member as stated herein.

$2,000,000 ITEM 3: MEMBER'S RETAINED LIMIT: Ultimate net loss as the result of anyone occurrence because of personal injury or property damage or anyone wrongful act because of public officials errors and omissions or unfair employment practices, or any combination thereof. ITEM 4: AUTHORITY'S LIMITS OF LIABILITY:

a.. . $3,487,838 a. Mega Fund Layer: Ultimate net loss excess of the Member's retained limit as the result of anyone occurrence because of personal injury or property damage or anyone wrongful act because of public officials errors and omissions or unfair employment practices, or any combination, combination thereof. Ultimate net loss excess of the Member's retained limit as the result of all occurrences because of pers'onal personal injury or property damage and all wrongful acts because of public officials errors and omissions or unfair employment practices, or any combination thereof for all program members combined.

b. Excess Reinsurance Layer: $13,000,000 Ultimate' net loss excess of the Member's retained limit and Mega Fund Layer as the result of anyone occurrence because of personal injury or property damage or anyone wrongful act because of public officials errors and omissions or unfair employment practices, or any combination thereof. However, if the Mega Fund Layer is exhausted, this layer will apply in excess of the Member's retained limit. Member's As respects completed operations hazard, ultimate net loss excess of the Member's· retained limit and Mega Fund Layer is limited to $13,000,000 as a result of anyone occurrence and as a result of all occurrences occurring during the Memorandum Period. However, if the Mega Fund Layer is exhausted, this layer will apply in excess of the Member's retained limit. ITEM 5: RISK PREMIUM:

$461,181

ATTACHED AT INCEPTION: EIA GLII ITEM 6: FORMS AND ENDORSEMENTS ATIACHED GLiI MOC 10/1/2006, Endorsement No. U-1, 1,2 1, 2

Countersigned by:

Date: March 29, 2007

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CSAC EXCESS INSURANCE AUTHORITY GENERAL LIABILITY II PROGRAM MEMORANDUM OF COVERAGE In-consideration of the payment of the premium, if paid, in reliance upon the statements in the Declarations made a part hereof and ~ubject to all of the terms of this General Liability II Program Memorandum of Coverage (Memorandum), the CSAC Excess" Insurance "Authority (Authority) agrees with the Member as follows:

COVERAGE AGREEMENT The Authority will reimburse the covered party for ultimate net loss in excess of the retained limit hereinafter stated which the covered party" shall become legally obligated to pay as damages by reason of liability" imposed by law or liability assumed by contract because of: . Coverage A. Personal injury or Coverage B. Property" damage to which this Memorandum applies, caused by an occurrence or Coverage C. Public officials errors and omissions liability or Coverage D. Unfair employment practices liability to which this Memorandum applies, caused by a wrongful act.

DEFENSE AND SETTLEMENT COSTS After the amount of the covered party's retained limit has been exhausted by payment of. judgments, settlements and/or defense costs, the Authority will reimburse the covered party for excess defense costs the covered party incurs on covered losses. The Authority's liability for excess defense costs is subject to, and not in addition to, the limit of the Authority's liability. The Authority, at its own expense, shall have the right to associate itself with the covered party in the control, investigation, defense or appeal of any claim or proceeding which, in the opinion of the Authority, is or may be covered by the Memorandum. The covered party shall fully cooperate in all matters pertaining to such claim or proceeding. No claim shall be settled for an amount in excess of the covered party's retained limit without the prior written consent of the Authority.

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RETAINED LIMIT - THE AUTHORITY'S LIMIT OF LIABILITY Regardless of the number of (1) covered parties under this Memorandum, (2) persons or organizations who sustain injury or damage, (3) claims made, or (4) suits brought on account of personal injury, property damage, public officials errors and omissions or unfair employment practices liability, the Authority's liability is limited as follows: A. With respect to persona.1 injury, property damage, public officials errors andomissions, and unfair employment practices liability, or any combination thereof, the Authority's liability shall be only for the ultimate net loss in excess of the covered party's retained limit as specified in the Limits of Liability section of the Declarations as the result of anyone occurrence or wrongful act, and then for an amount not exceeding the amount specified in the Limits of Liability section of the Declarations as the result of anyone occurrence or wrongful act. B. There is no limit of the number of occurrences during the Memorandum Period for which claims may be made, except that the liability of the Authority arising out of the Completed Operation Hazard because of all occurrences shall not exceed the amount 'specified in the Limits of Liability section of the Declarations for each twelve months, commencing with the first day of the Memorandum Period.

c.

Public officials errors and omissions or unfair employment practices taking place over more than one Memorandum Period shall be deemed to have taken place during the last Memorandum Period and only that limit shall apply.

MEMORANDUM PERIOD, TERRITORY This Memorandum applies to personal injury, property damage, public officials errors and omissions' or unfair employment practices which occur anywhere in the world during the Memorandum Period.

COVERED PARTY, COVERED PERSONS OR ENTITIES A. The Member; B. Those individuals who were or are now elected or appointed officials of the Member, whether or not compensated (including volunteers), including members of ·'the . Member's governing body or any other committees, boards, commissions or specia'i districts of the Member, while acting for or on behalf of the Member; C. All special districts governed directly by the Member's governing board and other districts or agencies which are named on the Memorandum;

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D. Past or present employees of the Member or other covered entity, whether or not compensated, (including volunt~ers), while acting for or on behalf of the Member or other covered entity; E. Notwithstanding sub-paragraphs A through 0 above with respect to who is a covered party, the determination and findings made in good faith by the Member pursuant to California Government Code Section 995.2 or any other provision of law shall be . conclusive and binding on the Authority and all other persons for the purposes of coverage under the Memorandum; F. 1937 Act Retirement Association of the Member; As respects the above covered party, this Memorandum does not cover the breach . of fiduciary duty which means: 1. Violation of any of the responsibilities, obligations or duties imposed upon fiduciaries by: a) The Employee Retirement Income Security Act of 1974 (ERISA) or amendments thereto; or b) The common or statutory law of the United States of America, or any state or other jurisdiction therein; and 2. Negligent acts, errors, omissions in administration. Administration as used herein shall mean: a) Giving counsel to participants and beneficiaries with respect to a Plan; b)

I~terpreting

a Plan;

c) Providing or failing to provide benefits under a Plan; d) Handling the records connected with a Plan; e) Effecting enrollment, termination or cancellation of participants under a Plan.

Planas used herein shall mean the written instrument which sets forth specific benefits and eligibility under a named trust.

EXCLUSIONS As respects ultimate net loss, this Memorandum does not apply:

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A. To any obligation for which any covered party or any carrier as its insurer may be held liable under any workers' compensation, unemployment compensation or disability benefits law, or under any similar law; B. To bodily injury to any employee of any covered party arising out of and in the course of his/her employment by such covered party; but this exclusion does not apply to liability assumed by the covered party under any written contract;

c.

To injury to or destruction of (1) property owned by a covered party, or (2) property rented to or leased to the covered party where the covered party has assumed liability for damage to or destruction of such property unless the covered party would . have been liable in the absence of such assumption of liability, or (3) aircraft or watercraft in the care, custody or control of any covered party;

D. As respects liability assumed by the covered party under any contract: 1. To any claim, judgment or agreement from any arbitration proceeding wherein the Authority is not entitled to exercise with· the covered party, the covered party's rights in the choice of arbitrato~s, and in the conduct of such proceedings; 2. To any obligation for the rendering or failure to render professional services for the covered party, if the indemnitee of the covered party is an architect, engineer or surveyor, arising out of: a) The preparation or approval of contracts, maps, plans, drawings, opinions, reports, tests, surveys, change orders, designs or specifications; b) The giving or the failure to give directions pr instructions by the indemnitee, the indemnitee's agents or employees, provided such giving or failure to give is the primary cause of personal injury or property damage; E. To bodily injury and property damage arising out of the ownership, maintenance, loading or unloading, use or operation of any:

1. Aircraft; 2. Airfields; 3. Runways; 4. Hangars; 5. Buildings or other properties in connection with aviation activities. This exclusion shall not apply, however, (1) to liability arising out of the ownership, operation, rental, or loan of vehicles licensed for highway use while being operated

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away from the premises of any airfield owned o~ operated by the covered party; or (2) to Non-Owned Aircraft operated by or on behalf of the covered party. Non-Owned Aircraft means any Aircraft other than:

1.

Aircraft owned in whole or in part by or registered in the name of the covered party;

2.

Aircraft having a seating capacity in excess of forty-five (45) passenger seats; or

3.

Aircraft which are the subject of a lease or service agreement with the covered party for a period in excess of thirty (30) days;

F. To liability arising out of or in connection with the operation of any hO'spitals, clinics, or established health care facilities owned or operated by the Member due to: 1. The rendering of or failure to render: a) Medical, surgical, dental, x-ray or nursing service treatment or the furnishing of food or beverages in connection therewith; b) Any service or treatment related to physical or mental health or of a professional nature; or c) Any cosmetic or tonsorial service or treatment; 2. The furnishing of or dispensing of drugs or medical, dental or surgical supplies or appliances; This exclusion shall not apply, however, to any professional activities arising out of the performance of occupation physical examinations, paramedics, emergency first aid, or preventative health services related to: alcoholism; drug abuse; well. child healthcare; California children services; immunizations; sexually transmitted diseases; tuberculosis; and family planning. Notwithstanding such exceptions to this exclusion as are set forth immediately above, however, if any collectible insurance or other coverage, including but not limited to coverage' afforded by any other CSAC Excess Insurance Authority program, is available to the covered party, for liability for loss, damage or injury arising from the operation of any clinic or other established health care facility (whether on a primary, excess or contingent basis), any coverage afforded hereunder shall apply in excess of,'and shall not contribute with, such insurance or other coverage; provided that this clause does not apply with respect to excess insurance purchased specifically to be in excess of this Memorandum, or to insurance or reinsurance which is intended to provide the rem~inder of the Limit of

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Liability stated in the Declarations of this Memorandum when the coverage afforded under this Memorandum provides less than 100 percent of the limit set forth in the Declarations·. G. To liability arising out of or in connection with the principles of eminent domain, condemnation proceedings by whatever name called, and whether or not liability accrues directly against the covered party or by virtue of any agreement entered into by or on behalf of the covered party; This exclusion shall not apply, however, to any inverse condemnation where any suits or claims for inverse condemnation are a result of negligence proven on the part of a covered party; H. To liability arising out of the failure to supply or provide an adequate supply of fuel or water or electricity when such failure is a result of the inadequacy of the covered party's facilities to supply or produce sufficient fuel or water or electricity to meet the demand; I.

To property damage arising out of subsidence, however, subject to the following special limits of liability, this exclusion shall not apply. As respects property damage arising out of subsidence, the Authority's special limits of liability shall be $10,000,000 ultimate net loss as the result of anyone occurrence and $10,000,000 ultimate net loss 'as the result of all occurrences during each Memorandum Period. The aggregate limit for this coverage is reinstated at each anniversary of the Memorandum Period shown on the Declarations; ,

J. To liability arising out of any transit authority, transit system or public transportation system owned or operated by any covered party; however, this exclusion shall not apply to transit or public transportation systems operating over non-fixed routes such as dial-a-ride, senior citizen transportation, or handicapped persons transportation; K. To liability arising out of the hazardous properties of nuclear material; 'L. To liability imposed upon a covered party (or which is imputed to a covered party) under the "Employment Retirement Income Security Act of 1974" and any law amendatory thereof; M. To liability arising out of the rupture·, bursting, overtopping, .accidental discharge or partial or compete failure of any dam(s); 'N. To any liability for property damage, personal injury, sickness, disease, occupational disease, disability, shock, death, mental anguish and mental injury, or defense costs or other expenses related thereto, at any time arising out of the manufacture of, mining of, use of, sales of, installation of, removal of, distribution of, or exposure to asbestos, asbestos products, asbestos fibers or asbestos dust, or to any obligation of the covered party to indemnify any party because of damages

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arising out of such property damage, bodily inj~ry, sickness, disease, occupational disease, disability, shock, death, mental anguish or mental injury at anytime as a result of the manufacture of, mining of, use of, sales of, installation of, removal of, distribution of, or exposure to asbestos, asbestos products, asbestos fibers or asbestos dust;

o.

1. To liability arising out of the actual or threatene.d discharge, dispersal, seepage, migration, release or escape of pollutants'anywhere in the world; . 2. To ultimate net loss arising out of any governmental direction or request that the Authority, the covered party or any other person or organization test for, monitor, clean-up, remove, contain, treat, detoxify, neutralize or assess the effects of pollutants; or 3. To ultimate net loss, including attorneys' fees, incurred by a organization to test for, monitor, neutralize pollutants;

but not limited to governmental unit clean-up, remove,

costs of investigation or any other person contain, treat, detoxify

or or or

As used in this exclusion, pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste material. Waste material includes materials which are intended to be or . have been recycled, reconditioned or reclaimed. However, this exclusion does not apply to water, whether recycled, reconditioned or reclaimed. However, this exclusion does not apply to liability arising out of: 1. Any discharge, dispersal, seepage, migration, release or escape directly or indirectly caused by fire, explosion, lightning, windstorm~ vandalism or malicious mischief, riot and civil commotion, flood, collision, or upset of a motor vehicle, railroad vehicle, mobile equipment, automatic sprinkler leakage or aircraft; 2. The completed operations hazard; or 3. Any discharge, dispersal, seepage, migration, release or escape of pollutants that meets all of the following conditions; a) It was accidental and neither expected nor intended by the covered party. This condition would not serve to deny coverage for a specific incident where such discharge, dispersal, seepage, migration, release or escape of pollutants was a result of an attempt by the covered party to mitigate or avoid a situation where substantial third party bodily injury, property damage or personal injury could occur; and b) It was demonstrated as having commenced on a specific date during the term of this Memorandum; and

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c) Its commencement became known to the covered ·party within seven (7) calendar days and was furt~er reported to the person responsible for risk management at the Member ~ithin a reasonable time frame; and d) Its commencement was reported in writing to the Authority within twenty-one (21) calendar days of becoming known to the person responsible for risk management at the Member; and e) Reasonable effort was expended by the covered party to terminate the situation as soon as conditions permitted; However, nothing contained in this provision 3, shall operate to provide any coverage with respect to: a) Any site or location principally used by the covered party or by others on the covered party's behalf, for the handling, storage, disposal, dumping, processing or treatment of waste material; b) Any fines or penalties; c) Any clean up costs order~d by the Superfund program, or any. federal, state or local governmental Authority. However, this specific exclusion c) shall not serve to deny coverage for third party clean up costs otherwise covered by this Memorandum simply because of the involvement of a governmental Authority; d) Acid rain; e) Clean up, removal, containment, treatment, detoxification or neutralization of pollutants situated on premises the covered party owns, rents or occupies at the time of the actual discharge, dispersal, seepage, migration, release or escape of said pollutants; or f)

Water pollution caused by oil or its derivatives.

It is further agreed that in the event of a disagreement as to the interpretation of this exclusion, the disagreement shall be submitted to binding arbitration before a panel of three (3) arbitrators. Within thirty (30) days of a written request for arbitration by either the covered party or the Authority, each party will choose an arbitrator. If the two arbitrators are unable to agree within one (1) month upon the third arbitrator, such arbitrator shall at the request of either party be selected by the American Arbitration Association in accordance with its rules and procedures. The parties shall submit their cases to the panel by written and oral evidence at a hearing time and place selected by the third arbitrator. The panel shall be relieved of all judicial formality, shall not be obligated to adhere to the strict rules of law or

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of evidence, shall seek to enforce the intent of the parties hereto and may refer to, but are not limited to relevant legal principles~ The decision of at least two (2) of the three (3) panel members shall be binding and final and not subject to appeal except for grounds of fraud and gross misconduct by the arbitrators. The award will be issued within thirty (30) days of the close of the hearings. Each party shall bear the expenses of its designated arbitrator and shall Jointly and equally share with the other the expense of the third arbitrator and of the arbitration. The arbitration proceedings shall take place in or in California. The procedural rules applicable to this provided otherwise herein, be in accordance with the of the American Arbitration Association;

the vicinity of Sacramento, arbitration shall, except as commercial arbitration rules

P. To liability arising out of the operation or use of any off highway vehicle park or area; Q. To any liability arising out of or in connection with those caus.es of actj<;>n or counts i.n any suit for injunctive relief, declaratory relief, writ of mandate, or which do not contain' demands or prayers for monetary damage;

R. Under Coverage C, Public Officials Errors and Omissions Liability to: 1. Personal injury or property damage or unfair employment practices as defined in the Memorandum; 2. The refund of taxes, fees or assessments; 3. a) Liability of a covered party arising in whole or in part, out of any covered party obtaining remuneration or financial gain to which the cov·eredparty was not legally entitled; b) Liability arising out of the willful violation of a penal statute, code or ordinance committed by or with the knowledge or consent of any covered party; except. that any act for which a covered party is responsible shall not be imputed to any other covered party for purposes of this subpart R.3.; 4. Liability of any covered party arising out of estimates of probable costs or cost estimates being exceeded or for faulty preparation of bid specifications or plans 'or failure to award contracts in accordance with statute or ordinance which under ~aw must be submitted for bids; 5. Injury to, destruction or disappearance of any tangible property (including money) or the loss of use thereof; 6. Failure to perform or breach of, a contractual obligation;

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Nothing contained in this exclusion shall limit the, covered party's rights of recovery, where applicable, under coverages A, B, and D of this Memorandum; S. To benefits payable under an employee benefit plan (whether the plan is voluntarily established by the covered party or mandated by statute) because of unlawful discrimination; T. To any .liability arising out of or in connection with any claim for punitive, exemplary or. , multiples of damages; U. To lia'bility arising out of or by reason of: 1. The purchase, or sale, or offer of sale, or solicitation of any security, debt, bank deposit or financial interest or instrument; 2. Any representation made at any time in relation to the price or value. of any security, debt, bank deposit or financial interest or instrument; 3. Any depreciation or decline in price or value of any security, debt, bank deposit or financia,l interest or instrument; It is further agreed that the Authority has no obligations to defend or pay for the defense of any claim that may allege any of the foregoing;

v.

Under Coverage D, unfair employment practices liability, for:' 1. Strikes and lockouts. This Memorandum does not apply to any claim or claims for loss arising out of a lockout, strike, picket line, replacement or similar actions in connection with labor disputes or labor negotiations; 2. W.A.R.N. Act. This Memorandum does not apply to any claim or claims for loss arising' out 'of the Workers Adjustment and Retraining Notification Act, Public Law 100-379 (1988), or any amendment thereto, or any similar federal, state or local law; . 3. Any cost incurred by the covered party to modify any building or property in order to make said building or property more accessible or accommodating to any disabled person;

W. To liability arising out of (1) the ownership, maintenance, operation, use, loading, or unloading of any mobile equipment or vehicle while being used in any prearranged or organized racing, speed or demolition contest or in any stunting 'activity or in' practice in preparation for any such contest or activity, or (2) the operation or use, of any snowmobile or trailer designed for use herewith when used for recreational, stunting or racing activities.

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DEFINITIONS, The following definitions shall govern the meaning of the defined terms for the purposes of. this Memorandum. The defined terms are set forth in bold face type where used herein.

"Aircraft" means a vehicle designed for the transport of persons or property principally in 'the air. "Completed operations hazard" includes personal injury and property damage arising out of operations ,or reliance upon a representation or warranty made at any time with respect thereto, but only if the personal injury or property damage occurs after such operations have been completed or abandoned and occurs away from' premises ' owned by or rented to the covered party. "Operations" include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times: 1. When all operations to be performed by or on behalf of the covered party under the contract have been completed, or 2. When all operations to be performed by or on behalf of the covered party at the site of the operations have been completed, or 3. When the portion of the work out of which the injury or damage arises has been put to its intended· use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Operations which may require further service or maintenance work,or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete shall be deemed completed. The completed operations hazard does not include liability arising out of: 1. Operations in connection with the transportation of property unless the liability arises out of a condition in or on a vehicle created by the loading or unloading thereof; 2. The existence of tools, uninstalled equipment or abandoned or unused materials.

"Covered party" means any person or organization qualifying as a covered party under the Covered Party, Covered Persons or Entities section of this Memorandum. The coverage afforded applies separately to each covered party against whom claim is made or suit is brought, except with respect to the limits of the Authority's liability. "Dam" means any artificial barrier together with appurtenant works which:

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1. Is 25 feet or more in height from the foot of a natural bed of stream or watercourse; or 2. Has water impounding capacity of 50 acre feet or more. Except that no structure specifi~ally exempted from jurisdiction by the State of California Department of Water Resources, Division of Safety of Dams shall be considered a dam, unless such structure is under the jurisdiction of any agency of the federal government.

"Damages" means monetary compensation: (a) for death 'and for care and loss of services resulting from persona'i injury; (b) for loss of use of property resulting from property damage; (c) resulting from public officials errors and omissions" or (d) unfair employment practices. "Defense costs" means reasonable fees charged by an attorney, including expenses of a claims servicing organization the covered party has engaged, and all other reasonable fees, costs including third-party attorney's fees and costs as authorized by law or un'der contract and 'expenses attributable to the investigation, defense or appeal of a claim within the scope of coverage afforded by this Memorandum. Defense costs shall include any allocated claims expenses incurred by attorneys who are employees of the covered party. "Excess defense costs" means defense costs incurred by the covered party with the written consent of the Authority after the self-insured retention has been exhausted by payment of judgments, settlements and defense costs. "Governed board.

~irectly"

means the special district is governed by the Member's governing

"Nuclear material" means source material, special nuclear material, or byproduct material; "source material", "special nuclear material", and "byproduct material" have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof. "Occurrence" means an accident 'or event, including injurious exposure to conditions, which results, during the Memorandum Period, in personal injury or property damage, neither expected nor intended from the standpoint of the covered party. As respects Coverages A and B, "occurrence" shall apply separately to each Member of the Authority named in this Memorandum. "Off highway vehicle park or area" means any off highway park or area specifically designated for the recreational or sport activities of off road vehicles. Recreational or sport activity is not meant to include access or egress to park areas. "Personal injury" means (a) bodily injury, death, sickness, disease, disability, shock, emotional distress, mental anguish and mental injury resulting from bodily injury; (b) false arrest, detention or imprisonment or malicious prosecution; (c) the publication or utterance of libel or slander, including disparaging statements concerning the condition,

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value, quality or use of real or personal property, or publication or utterance in violation of rights of privacy; (d) wrongful entry or eviction, or other invasion of the right of private occupancy; (e) assault and battery, not committed by, at the direction of or with the consent of the covered party, unless committed or directed for the purpose of protecting persons or property from injury or death; (1) discrimination based upon race, religion, nationality, national origin, color, creed, sex, sexual orientation, age, employment, or disability, but excluding unlawful discrimination intentionally committed by, at the direction of, or with co~sent of the covered. party.

"'Property damage" means (1) physical injury to or destruction of tangible property which occurs during the Memorandum Period, including the loss of use thereof at any time resulting therefrom; or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss 'of use is caused by an occurrence during the Memorandum Period. "Public officials errors and omissions" shall mean any actual or alleged error or misstatement·" or act of omission or neglect or breach of duty including misfeasance, malfeasance or nonfeasance by the .covered parties in the discharge of their duties with the public entity individually or collectively, or any matter claimed against them solely by reason of their .being or having been covered parties. "Subsidence" means any property damage directly or indirectly arising out of, caused by, resulting from, contributed to or aggravated by the settling, sinking, slipping, falling away, caving in, shifting, eroding, mud flow, rising, tilting, or any other movement of land or earth. "Ultimate net loss" means the total sum which the covered party becomes legally liable to pay as damages by reason of judgments or by reason of settlements made with the written consent of the covered party and the Authority, and shall also include defense costs and excess defense costs which are paid as a consequence of any occurrence covered hereunder. "Unfair employment practices" means any circumstance relating to a past, present, or prospective employee of the covered party (and the spouse, child, parent, brother or sister of that person as a consequence of unfair employment practices that person at whom any of the employment-related practices described below is directed) for or arising out of any actual or alleged wrongful dismissal, discharge, or termination, either actual or constructive, of employment, employment related misrepresentation, wrongful failure or refusal to employ or promote, wrongful deprivation of career opportunity or reassignment, wrongful discipline, failure to grant tenure or negligent employee evaluation; or sexual or workplace harassment or humiliation of any kind, including, but not limited to, the alleged operation of a harassing workplace environment, or unlawful discrimination, whether direct, indirect, intentional or unintentional, or failure to provide adequate employee policies and procedures.

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Unfair employment practices shall include actions brought under state, local, or federal law, whether common or statutory, and shall include, but not limited to allegations of violations of the following federal laws, as amended, including regulations promulgated thereunder: 1. Americans with Disabilities Act of 1992 (ADA); 2. Civil Rights Act of 1991 ; 3. Age Discrimination in Employment Act of 1967 (ADEA), including the older workers benefit protection act of 1990; 4. Title VII of the Civil Rights Law of 1964, as amended (1983), including the Pregnancy Discrimination Act of 1978; 5. Civil Rights Act of 1866, section 1981; and 6. Fifth and Fourteenth amendments of the U.S. Constitution.

"Watercraft" means a vehicle designed for the transport of persons or property principally on water. "Wrongful Act" means any actual or alleged negligent act, error or omission arising out of conduct or performance of the covered party in the performance of his or her or their duties or any actual or alleged act in connection with any person's prospective employment, actual employment or termination of employment by a covered party. All damages arising out of a single act, error or omission or a series of related acts, errors . or omissions shall be treated as arising from a single wrongful act. As respects coverages C and D, wrongful act shall apply separately to each Member of the Authority named in this Memorandum.

CONDITIONS 1. INSPECTION The Authority shall be permitted but not obligated to inspect the covered party's property and operations at any time. Neither the Authority's right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the covered party or others, to determine or warrant that such property or operations are safe. The Authority may examine the' covered party's books and records at any time during the Memorandum Period and extensions thereof and within three years after the final termination of this Memorandum, as far as they relate to the subject matter of this coverage.

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2. CLAIMS REPORTING REQUIREMENTS

It is agreed that with respect to claim reporting, the covered party, in addition to the terms set forth in this Memorandum of coverage, must report an occurrence of any injury, death or disease, or wrongful act, paid or reserved, for 50% or more of their individual retained limit. Immediate written notice shall be given by or on behalf of the covered party to the Authority. Immediate notice shall also be given to the Authority for any claims in which this Authority is named as a defendant. 3. COVERED PARTY'S DUTIES IN THE EVENT OF OCCURRENCE, CLAIM OR SUIT

a. In the event of an occurrence or wrongful act reasonably likely to involve the Authority, written notice containing particulars sufficient to ide'ntify the covered party and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the covered party to the Authority or any of 'its authorized agents as soon as practicable, after the individual responsible for the coverage at the covered party, or his/her designee, has knOWledge of the occurrence or wrongful act. b. If claim is made or suit is brought against the covered party which appears likely to involve the Authority, the covered party shall forward to the Authority every demand, notice, summons or other process received by him/her or his/her representative, immediately or within a reasonable amount of time after the individual responsible for coverage at the covered party or his/her designee has knowl,edge'of the claim or ~uit. c. The covered party shall cooperate with the Authority and upon its request, assist in making settlements, in the conduct of suits and in enforcing any right to subrogation, contribution or indemnity against any person or organization who , may be liable to the covered party because of liability with respect to which coverage is afforded under this Memorandum, and the covered party shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The covered party shall not, except at its own costs, voluntarily make any payment, assume any obligation or incur any expense; however, in the event that the amount of ul~imate net loss becomes certain either through trial court judgment, arbitration award, or agreement among the covered party, the claimant and the Authority then the covered party may· pay the amount of ultimate net loss to the claimant to effect settlement and, upon submission of due proof thereof, the Authority shall indemnify the covered party for that part of such payment which is in excess of the retained limit, or shall, upon request of the covered party, timely' make such payment to the claimant on behalf of the covered party. . d. The Authority, at its option, shall have the right at its own expense to investigate any claim and/or negotiate the settlement thereof, as it deems expedient, but the

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Authority shall not commit the covered p~rty to any settlement without the covered party's consent. Should the claimant or plaintiff, as the case might be, tender a bona-fide, good faith, settlement demand which when added to the incurred defense costs is in excess of the covered party's retention, the payment of which would result in the full and final disposition of said claim or suit, then if such settlement demand is acceptable to either (1) the covered party, or (2) the Authority (but not both), then with regard tq that settlem.ent demand: i. If such settlement demand is not acceptable to the Authority and the covered party tenders to the Authority an amount equal to the covered party's retention less incurred defense costs, if any, the Authority shall then reimburse the covered party all sums which the covered party shall be legally obligated to pay as damages, including without limitation, the covered party's retention, plus future investigation, adjustment, appraisal, appeal, post judgment interest and defense costs. However, in no event shall the Authority's agreement to reimburse the covered party exceed the Limit of Liability as stated in the Declarations in addition to such investigation, adjustment, appraisal, appeal, post-judgment interest and defense costs.· Should the full and final disposition of the claim, including judgments, settlements, investigation, adjustment, appraisal, appeal, post-judgment interest and defense costs be less than the amount tendered by the covered party, the unused portion of the tendered amount shall be returned to the. covered party by the Authority. ii. If such settlement demand is not acceptable to the covered party and the Authority tenders to the covered party an amount equal to the· difference between the covered party's retention, less incurred defense costs, and said settlement demand, or the applicable amount specified in the Limits of Liability section of the Declarations, whichever is less, then the Authority's agreement to reimburse the covered party for the ultimate net loss hereunder shall be discharged and terminated and the Authority shall have no further obligations with respect thereto. 4. APPEALS When a lawsuit has proceeded to trial court judgment and neither the covered party nor the Authority have invoked the provisions of condition 3.d.i. or ii. above and the covered party elects ·not to appeal a judgment in excess of the retained limit, the Authority may elect to do so at its own expense, but in no event shall the liability of the Authority for ultimate net loss exceed the applicable amount specified in the Limits of Liability section of the Declarations inclusive of all defense costs necessary and incident to such appeal.

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5. ACTION AGAINST THE AUTHORITY No action shall lie against the Authority with respect to anyone occurrence unless, as a condition precedent thereto, the covered party shall have fully complied with all the terms of this Memorandum, nor until the amount of the covered party's obligation to pay an amount of ultimate net loss in excess of the retained limit shall have been finally determined either by judgment against the covered party after actual trial, arbitration award, or by written agreement of the covered party, the claimant and theAuthority.' Any person or organization or the legal representative thereof who has secured such judgment or written "agreement shall thereafter be entitled to recover " under, this Memorandum the extent of the coverage afforded by this Memorandum. Nothing contained in this Memorandum shall give any person or organization, any right to join the Authority as a co-defendant in any action against the' covered party to determine the covered party's liability. Bankruptcy or insolvency of the covered party shall not relieve the Authority of any of its obligations ,hereunder. 6. OTHER COVERAGE If collectible insurance with an insurer is available to the covered party covering a loss also covered hereunder (whether on a primary, excess or contingent basis), the coverage hereunder shall be in excess of, and shall not contribute with, such insurance; provided that this clause does not apply with respect to excess insurance purchased specifically to be in excess of this Memorandum, or to insurance or reinsurance which is intended to provide the remainder of the Limit of Liability stated in the Declarations of this Memorandum when the coverage afforded under this Memorandum provides less than 100 percent of the limit set forth in the Declarations. If other valid and collectible coverage through any insurer or other pooling arrangement is available to the Member for a loss also covered by the Member's retained Umit and this Memorandum, such other valid and collectible coverage shall apply in lieu of the Member's retained limit. Notwithstanding the foregoing paragraph, if, because of liability arising out of. or in connection with the operation of any clinic or established health care facility, coverage for damages is available under this Memorandum and under a Hospital Professional Liability and General Liability Memorandum of Coverage ("Medical Malpractice M~morandum") also issued by the Authority, it shall be conclusively presumed that the coverage afforded under the Medical Malpractice Memorandum shall be primary "and any coverage available under this Memorandum shall be excess only. For claims to which this provision applies, the exhaustion of the Authority's Limit of Liability under the Medical Malpractice Memorandum will satisfy the covered party's Retained Limit . under this Memorandum of Coverage.

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7. SUBROGATION The Authority shall be subrogated to the extent of any payment hereunder to all the covered party's rights of recovery therefore; and the covered party ~hall .do nothing after loss to prejudice such rights and shall do everything necessary to secure such rights. Any amount so recovered shall be apportioned as follows: Any interest (including the covered party's) having paid an amount in excess of the retained limit plus the limit of liability hereunder shall be reimbursed first to the extent of actual payment. The Authority shall be reimbursed next to the extent of its actual payment hereunder. If any balance then remains unpaid, it shall be applied to reimburse the covered party. The expenses of all such recovery proceedings shall be apportioned in the ratio of respective recoveries. If there' is no recovery in proceedings conducted solely by the Authority, it shall bear the expenses thereof. 8. CHANGES Notice to the Authority or. any agent of the Authority or knowledge possessed by the Authority or any agent of the Authority or by any other person shall not effect a waiver or change in any part· of this Memorandum or stop the Authority from asserting any right under the terms of this Memorandum, nor shall the terms of this Memorandum be waived or changed, except by endorsement issued to form a part of this Memorandum. 9. ASSIGNMENT Assignment of interest under this Memorandum shall not bind the Authority until its consent is endorsed hereon; if, how.ever, the covered party shall die, such coverage as is afforded by this Memorandum shall apply (a) to the covered party's legal representative, as the covered party, but only while, acting within the scope of his/her duties as such, and (b) With respect to the property of the covered party, to the person having proper temporary custody thereof, as covered party, but only until the appointment and qualification of the legal representative. 10. CANCELLATION This Memorandum may be cancelled by the Authority in accordance with Article 21 of the Joint Powers Agreement creating the CSAC Excess Insurance Authority. 11. MEMBER The Member named in the Declarations is authorized to act on behalf of all covered parties with respect to the giving and receiving of notice of cancellation and receiving any return premium that may become payable under this Memorandum. The Member named in the Declarations is responsible for the payment of all premiums but the other covered parties jointly and severally agree to make such premium payments in

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full if the Member fails to· pay the amount due within thirty days after the Authority gives a written demand for payment to the Member. 12. SEVERABILITY OF INTERESTS The term covered party is used severally and not collectively, but the inclusion herein of more than one covered party shall not operate to increase the limits of the Authority'~ liability. 13. NON-RENEWAL In the event of non-renewal by the Authority, notice shall be given to the Member not less than sixty days prior to expiration.

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ENDORSEMENT NO. U-1 CSAC EXCESS INSURANCE AUTHORITY EXCESS LIABILITY ADDITIONAL COVERED PARTY AMENDATORY ENDORSEMENT It .is agreed that the "Covered Party, Covered Persons or Entities" section of the Memorandum is amended to include the person or organization named on the Certificate of Coverage, but only with respect to liability arising out of premises owned by or rented to the Member, or operations performed by or on behalf of the Member or such person or organization so designated. Coverage provided under this endorsement is limited to the lesser of the limits stated on the Certificate of Coverage or the minimum limits required by contract. Additional Covered Party: NAME OF PERSON-OR ORGANIZATION SCHEDULED PER ATTACHED CERTIFICATE OF COVERAGE

As Respects: PER ATTACHED CERTIFICATE OF COVERAGE

It is further agreed that nothing herein shall act to increase the Authority's Limit of Liability. This endorsement is part of the Memorandum of Coverage and takes effect on the effective date of the Memorandum of Coverage unless another effective date is shown below. All other terms and conditions remain unchanged. Effective Date: Issued to: All Members Issue Date: March 29, 2007

Memorandum No.: EIA 06 GL2-00

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ENDORSEMENT NO.1 CSAC EXCESS INSURANCE AUTHORITY EXCESS LIABILITY . AMENDATORY ENDORSEMENT It is understood and agreed that ITEM 1: MEMBER of the Declarations is amended to read: Kern County

It is further agreed that nothing herein shall act to increase the Authority's Limit of Liability. This endorsement is part of the Memorandum and takes effect on the effective date of the Memorandum unless another effective date is shown below. All other terms and conditions remain unchanged.

Effective Date: Issued to:

Kern County

Issue Date: March 29, 2007

Memorandum No.: EIA 06 GL2-13

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ENDORSEMENT NO.2 . '-CSAC EXCESS INSURANCE AUTHORITY EXCESS LIABILITY AMENDATORY ENDORSEMENT It is agreed that exclusion (F) is hereby deleted and the following coverage applies: Except as otherwise noted herein, coverage provided by our Memorandum will follow form coverage provided by the Medical Malpractice Memorandum of Coverage listed in the schedule of underlying insurance. Such coverage is provided to all Members covered under our Memorandum of Coverage, regardless of whether the Member is covered by the Medical Malpractice policy listed in the schedule of underly.ing insurance. The Authority's limit of liability for coverage provided under this endorsement 'is $10,000,000 per event and $10,000,000 Annual Aggregate. The minimum retained limit is $10,000,000 per Occurrence. In any event, the coverage provided by our Memorandum will not be broader than the insurance coverage provided by the policy listed in the schedule of underlying insurance. Schedule of underlying insurance: None on file It is further agreed" if a Covered Party is a participant in the Authority's Medical Malpractice Program, the retroactive date applicable to that Covered Party in the Medical Malpractice Program will apply hereunder. If a Covered Party is not a participant in the Authority's Medical Malpractice· Program, an October 1, 2002 retroactive date will apply hereunder. It is further agreed that nothing herein shall act to increase the Authority's Limit of Liability. This endorsement is part of the Memorandum and takes effect on the effective date of the Memorandum unless another effective date is shown below. All other terms and conditions remain unchanged.

Effective Date: Issued to:

Kern County

Issue Date: March 15, 2007

Memorandum No.: EIA 06 GL2-13

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CSAC EXCESS INSURANCE AUTHORITY (CSAC EIA)

MEMORANDUM OF SPECIFIC EXCESS WORKERS' COMPENSATION INDEMNITY AGREEMENT DECLARATIONS EIA 06 GL2 EWC-13 1:.MEMBER: ITEM 1: MEMBER:

Kern County

ITEM 2: MEMORANDUM PERIOD:

From October 1, 2006 to October 1, 2007, 12:01 a.m. local time of the Memberas Member as stated herein.

ITEM 3: MEMBER'S RETAINED LIMIT:

See Endorsement No.2 NO.2

ITEM 4: AUTHORITY'S LIMITS OF LIABILITY: a. Excess Workers' Compensation $10,000,000 Each accident $10,000,000 Each employee

b.

Excess Employers' Liability $10,000,000 Each accident $10,000,000 Each employee

ITEM 5: RISK P"REMIUM: PREMIUM:

Included in GUI GLII Risk Premium

ITEM 6: Terms and Conditions: a. ·Per Per underlying coverage document on file with CSAC Excess ·Insurance Authority.

b. Limits and retentions apply per participating member. ITEM 7: FORMS AND ENDORSEMENTS ATTACHED AT INCEPTION: Endorsement No.1, 2

Countersigned by:

_4U. __;L

--+_~~

Authorized Repr sentati e CSAC Excess Insu e Authority

Date: March 29, 29. 2007

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ENDORSEMENT NO.1

CSAC EXCESS INSURANCE AUTHORITY SPECIFIC EXCESS WORKERS' COMPENSATION AMENDATORY ENDORSEMENT . It is understood and agreed that ITEM 1: MEMBER of the Declarations is amended to read: Kern County

It is further agreed that nothing herein sh'all act to increase the Authority's Limit of Liability. This endorsement is part of the Memorandum and takes effect on the effective date of the Memorandum unless another effective date is shown below. All other 'terms and conditions remain uncha.nged.

Effective Date: Issued to:

Kern County

Issue Date: March 29, 2007

Memorandum No.: EIA 06 GL2 EWC-13

)

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ENDORSEMENT NO. 2 CSAC EXCESS INSURANCE AUTHORITY SPECIFIC EXCESS WORKERS' COMPENSATION UNDERLYING COVERAGE ENDORSEMENT It is understood and agreed that ITEM 1: MEMBER of the Declarations is amended to read:

COVERAGE

UNDERLYING

Workers' Compensation Limit

$200,000,000 Each Accident $200,000,000 Each Employee

Employers' Liability Limit

$5,000,000 Each Accident $5,000,000 Each Employee

It is further agreed that nothing herein shall act to increase the Authority's Limit of Liability. This endorsement is part of the Memorandum and takes effect on the effective date of the Memorandum unless another effective date is shown below. All other terms and conditions remain unchanged~

Effective Date: Issued to:

Kern County

Issue Date: March 29, 2007

Memorandum No.: EIA 06 GL2 EWC-13

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EXHIBIT 8. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 9/18/07, with draft stipulation attached

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Eugene D. Lee From:

Eugene D. Lee [[email protected]]

Sent:

Tuesday, September 18, 2007 2:01 PM

To:

'[email protected]'

Cc:

'Joan Herrington'

Subject:

Jadwin/KC: Initial Disclosures

Follow Up Flag: Follow up Flag Status:

Completed

Attachments:

Corr OP - Stipulation re Initial Disclosures_070905.doc

Mark We are in receipt of Defendants’ Amended Initial Disclosures. We appreciate the numerous amendments Defendants have made. However, we also note that Kern County remains unwilling to disclose the home contact information for its current employees whom it has listed as witnesses. We do not believe this will generally present any problems, given your stated willingness to accept service on their behalf and to produce them for deposition and/or trial. HOWEVER, the situation may arise whereby current employees later are fired or resign, thereby becoming former employees of the County. Under these circumstances, you will no longer be in a position to accept service on their behalf or compel their attendance at deposition and/or trial. Please review and execute the attached stipulation which provides that, among other things, the County will give Plaintiff the home contact information for current employees who later leave the employ of the County and will do so in a timely manner after such termination of the employment relationship so as to ensure Plaintiff has a reasonable opportunity to compel their attendance at deposition and/or trial. We have attached the Stipulation in MS Word form so that you may make any necessary revisions directly to the document and send it back to us. We also note that there is no contact information provided for David Culberson. Please provide the home contact information for him. We also note that you are entitling the document “Supplement to Defendants’ Rule 26(a)(1) Initial Disclosures”. However, this is a misnomer, the document is an amendment that supersedes and replaces the Initial Disclosures Defendants’ had previously served, it does not “supplement” it in an additive manner. Therefore, please re-serve the document with the reference to “Supplement” removed. Regarding your colloquoy contained in your cover letter that we seek “less” information, not “more”, you are misconstruing our intentions. We are simply interested in full and fair Initial Disclosures that comply with Rule 26. A disclosure that lists a witness’ subject of information as “Unknown” is neither full nor fair and does not comply with the FRCP. Given that the above are matters which require relatively simple action, please re-serve compliant Initial Disclosures and the executed Stipulation by no later than September 20. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013

9/21/2007

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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

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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] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

9 10

Attorneys for Plaintiff DAVID F. JADWIN, D.O. Mark A. Wasser CA SB #06160

11 12 13 14 15 16 17 18

LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected] Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected]

19 20

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

21

UNITED STATES DISTRICT COURT

22

EASTERN DISTRICT OF CALIFORNIA

23

FRESNO DIVISION

24

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

25 v. 26

Civil Action No. 1:07-cv-00026 OWW TAG STIPULATION RE HOME CONTACT INFORMATION OF DISCLOSED KERN COUNTY EMPLOYEES.

COUNTY OF KERN, et al., 27 Defendants.

Complaint Filed: January 5, 2007 Trial Date: August 26, 2008

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG STIPULATION RE ADDRESSES OF DISCLOSED WITNESSES

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In order to avoid a Motion to Compel Initial Disclosures that comply with Rule 26, Defendants hereby stipulate that: 1. Defendants shall disclose to Plaintiff David F. Jadwin, D.O. the last known address

4

and phone number of any and all former employees of Defendant County of Kern

5

that Defendants list as witnesses in their Initial and any Supplemental Disclosures.

6

2. Defendants shall disclose to Plaintiff David F. Jadwin, D.O. the last known address

7

and phone number of any and all current employees of Defendant County of Kern

8

that Defendants list as witnesses in their Initial and any Supplemental Disclosures

9

within five days of any termination of their employment with the County of Kern,

10

or such shorter time as is necessary so as to reasonably permit Plaintiff to compel

11

their attendance at depositions and/or trial.

12

3. Defense counsel shall accept service by facsimile of Plaintiff’s deposition subpoenas

13

and Rule 45 subpoenas on behalf of any and all current employees of Defendant

14

County of Kern, and Defendant County of Kern shall take all necessary steps to

15

compel compliance with either or both of these.

16

Dated: September___, 2007

17 __________________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.

18 19 Dated: September __, 2007 20 21 22 23 24

__________________________________________ Mark A. Wasser, Attorney for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND,TONI SMITH, AND WILLIAM ROY

25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG STIPULATION RE ADDRESSES OF DISCLOSED WITNESSES

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EXHIBIT 9. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 9/19/07

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Eugene D. Lee From:

Mark Wasser [[email protected]]

Sent:

Wednesday, September 19, 2007 5:30 PM

To:

[email protected]

Subject: RE: Jadwin/KC: Initial Disclosures Gene, You love to threaten motions and sanctions. I do not respond to threats. Rule 29 states the parties “may” stipulate. If you actually want to stipulate, then propose something we have actually agreed to. I have never worked with a lawyer who finds disagreement everywhere. The fact is, we are in complete agreement on this issue as far as I can determine. You want witnesses and I have promised to provide them. What is the issue? Why are we even meeting and conferring on an issue about which there is no disagreement. I do not understand. As far as your latest threat, what do you propose sanctions for? That we have agreed to produce witnesses? I am truly lost as to what the issue is. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, September 19, 2007 5:04 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Mark, It is a shame that each time we attempt to meet and confer with you and comply with basic court rules and regulations, you derail the discussion into personal attacks and insults. This is truly regrettable and demonstrative of all that is wrong with the justice system today. Given your emails, I am not sure that you are familiar with USDC EDCA local rule 83-143 and FRPC 29. Hopefully after you have had a chance to familiarize yourself with these rules, you will understand why we insist on having a written stipulation and are unwilling to rely on simply your “word”. The fact that your “word” has changed with every communication only demonstrates why these rules exist in the first place. Your have staunchly and inexplicably refused to execute, or even negotiate, a valid written stipulation with us despite our best efforts and intentions. We therefore have no choice but to bring a motion to compel seeking sanctions. This is unfortunate and does not bode well for our ability to work with each other as this litigation proceeds. Sincerely, Gene

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487

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E - m a i l : [email protected] W e b s i t e : www.LOEL.com

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

From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, September 19, 2007 3:53 PM To: [email protected] Subject: RE: Jadwin/KC: Initial Disclosures Gene, If I trusted you at all, it would make this easier but you have demonstrated repeatedly that you cannot be trusted. Your last e-mail reaffirms my lack of trust: telling me I have somehow agreed to your stipulation when I have not. You may practice law this way with someone else but not with me. Your stipulation contains terms we have never discussed, like 5 days for this and that. I reject your stipulation. I hope that is clear. When you want an employee, let me know. We will produce them. Mark

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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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Eugene D. Lee From:

Mark Wasser [[email protected]]

Sent:

Wednesday, September 19, 2007 4:54 PM

To:

[email protected]

Subject: RE: Jadwin/KC: Initial Disclosures Gene, You may characterize things however you want. Our position has been and remains consistent. The County will produce any employees Dr. Jadwin wants and will keep you advised of contact information on former employees. That is it. That has been our position since you and I first spoke on the telephone over 6 months ago. It has never changed. You want to embellish our representation with additional terms we have not agreed to and blame me for rejecting them. That is contentiousness. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, September 19, 2007 4:09 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Mark, I think the issue is that you keep changing what this “stipulation” says with each email to whatever is convenient for you at any given moment. You also like to engage in personal attacks, as you are doing now. You’ve exhibited these tendencies throughout this litigation (particularly when we’ve spoken on the phone). Given the unprofessional tone you insist on using, it is obvious that this meet and confer has become unproductive and should end now. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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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From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, September 19, 2007 3:42 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Gene, When I say you are contentious, this would be an example. I am not agreeing to your stipulation. If I was, I would sign it. I am representing to you that the County will make available to you, upon reasonable request to me, any employee and that we will keep you current on contact information for former employees. That’s it. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, September 19, 2007 3:19 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Mark, Your representation that the proposed written stipulation memorializes our extant oral stipulation (and so it is unnecessary for you to sign it) will do just fine. Sincerely, Gene

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

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

From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, September 19, 2007 2:33 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Gene, The most recent written record of my representations to you would be today’s e-mails and the letter that

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accompanied our supplemental initial disclosures last week. I believe there are similar representations contained in e-mails that date back to at least April, if not March. I am not going to take the time to look for them because this whole exercise is a waste of time. If the County at anytime refuses to make someone it controls available to you, you can deal with it then. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, September 19, 2007 1:47 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Mark, I think the name-calling is unnecessary. No one’s trying to be contentious. I have to admit I don’t understand your refusal to sign the stipulation we’ve proposed. You mention a vague remembrance of an oral stipulation made long ago that was never formalized in writing and the precise contents of which no one is certain. Why not memorialize the understanding in writing so there’s no confusion or question? If you can point to a written record of this stipulation you keep referencing, I would appreciate it and would feel more comfortable relying on it. We look forward to receiving the contact information for Mr. Culberson. Sincerely, Gene

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

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

From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, September 19, 2007 9:45 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Gene, I do not expect we will sign the stipulation you have forwarded because it is unnecessary. As you have seen, we have provided contact information for all former employees. I have made consistent representations to you, since our first telephone conversation over 6 months ago, and have stood by them. If that is not good enough, bring your motion. Your contentiousness is tiring. As far as David Culberson is concerned, he was never a County employee. He was an independent contractor

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working on a consulting basis. To my knowledge, no one at the County has ever had his personal contact information. I will obtain the contact information for the company that employs him and forward that to you. That is the only contact information we have access to. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Tuesday, September 18, 2007 2:01 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Initial Disclosures Mark We are in receipt of Defendants’ Amended Initial Disclosures. We appreciate the numerous amendments Defendants have made. However, we also note that Kern County remains unwilling to disclose the home contact information for its current employees whom it has listed as witnesses. We do not believe this will generally present any problems, given your stated willingness to accept service on their behalf and to produce them for deposition and/or trial. HOWEVER, the situation may arise whereby current employees later are fired or resign, thereby becoming former employees of the County. Under these circumstances, you will no longer be in a position to accept service on their behalf or compel their attendance at deposition and/or trial. Please review and execute the attached stipulation which provides that, among other things, the County will give Plaintiff the home contact information for current employees who later leave the employ of the County and will do so in a timely manner after such termination of the employment relationship so as to ensure Plaintiff has a reasonable opportunity to compel their attendance at deposition and/or trial. We have attached the Stipulation in MS Word form so that you may make any necessary revisions directly to the document and send it back to us. We also note that there is no contact information provided for David Culberson. Please provide the home contact information for him. We also note that you are entitling the document “Supplement to Defendants’ Rule 26(a)(1) Initial Disclosures”. However, this is a misnomer, the document is an amendment that supersedes and replaces the Initial Disclosures Defendants’ had previously served, it does not “supplement” it in an additive manner. Therefore, please re-serve the document with the reference to “Supplement” removed. Regarding your colloquoy contained in your cover letter that we seek “less” information, not “more”, you are misconstruing our intentions. We are simply interested in full and fair Initial Disclosures that comply with Rule 26. A disclosure that lists a witness’ subject of information as “Unknown” is neither full nor fair and does not comply with the FRCP. Given that the above are matters which require relatively simple action, please re-serve compliant Initial Disclosures and the executed Stipulation by no later than September 20. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

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EXHIBIT 10. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 9/20/07

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Eugene D. Lee From:

Mark Wasser [[email protected]]

Sent:

Thursday, September 20, 2007 11:48 AM

To:

[email protected]

Subject: RE: Jadwin/KC: Initial Disclosures Gene, First, here is the address for The Camden Group, David Culberson’s employer: The Camden Group, 100 N. Sepulveda Blvd., Ste. 600, El Segundo, California 90245. I have been told that David Culberson is in Minnesota on an assignment but have not verified it. Second, I assumed you understood that the witness list we served with the supplemental disclosures was a new list that replaced the previous list. If you were not clear about that, this should clarify it. Why else would we send a new list? I do not understand your confusion or why that would be an issue. I am not reserving the initial disclosures. We covered that yesterday or the day before, I forget. Third, I am honestly lost on this one. You say you are “entitled to contact information for all witnesses”. We agree 100% and we gave you contact information on all witnesses. We even accompanied that with our written representation that we will make all employees available to you on request. We have fully complied with both the spirit and letter of all rules and offered the additional courtesy of providing contact information for any employees that may leave County employment during the pendency of this case. How you can extract a dispute from this is beyond me. No rule requires that all agreements between counsel be reduced to stipulation. In my 30+ years of federal court practice, no opposing attorney has ever suggested they must be. Rule 29 clearly states that the parties “may” prepare stipulations. Having said that, I am not adverse to stipulations but I am not willing to sign the one you sent because it goes beyond what we have discussed and would impose time limits that I find unreasonable. It is also one-sided. The Plaintiff is not the only party who will need discovery. Our agreement is fine the way it is. If you believe it must be reduced to a stipulation, then you will have to explain why and we will have to discuss the terms. I am open to that but don’t send me documents and tell me to sign them by such-andsuch date on threat of sanctions. You opened your e-mail with a request that I “leave the personal insults out of our interactions” but proceed to accuse me of “playing hardball”, being “abusive” and being “ridiculous” (among other things) in an overall tone that is snotty and condescending. If you want the tone of our communications to improve, it will require reciprocity. Your communications invariably come from a position of take-it-or-leave-it that is arrogant and unhelpful. Lighten up. What will you do when we get to issues that actually matter? If you can tell me how we have failed to satisfy the requirements of Rule 26(a)(1), please do so. Otherwise, I suggest we move on to the next issue, whatever that will be. This is the most extreme case of form over substance I have encountered in memory. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, September 20, 2007 10:08 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Mark, No one here enjoys disagreements, least of all me. I’ll ask you, not for the first time (and probably not the last),

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please leave the personal insults out of our interactions. Our disagreements are these:

1. Yesterday, you had written: “I do not expect we will sign the stipulation you have forwarded because it is unnecessary. As you have seen, we have provided contact information for all former employees. I have made consistent representations to you, since our first telephone conversation over 6 months ago, and have stood by them. If that is not good enough, bring your motion. Your contentiousness is tiring.” As you know, Plaintiff is entitled to contact information for all witnesses, BUT as an accommodation to the County, we proposed a written stipulation that would require the County to give us contact information for employees only if they are no longer employed by the County (former or “future former” employees). You refuse to sign or even negotiate the written stipulation. Instead you’re playing hardball with us, stating that you have given us your “word”, though your “word” keeps changing from email to email, and that should be enough for us. I directed you to USDC EDCA local rule 83-143 and FRPC 29, establishing that vague assurances by counsel do not constitute binding stipulations. Apparently, you still do not understand and continue to hurl personal insults and accusations at me. I wonder whether you really read USDC EDCA local rule 83-143, which states: “Stipulations not in conformity with these requirements will not be recognized unless necessary to prevent manifest injustice.” We need a formal written stipulation signed by the Court OR Defendants should give us the contact information for all of the witnesses. We are attempting to compromise to avert a motion and you have responded by absolutely refusing to even negotiate, let alone sign, the proposed written stipulation drafts we have sent you. To top it off, you’ve used this process as an opportunity to insult and malign me continuously, as you have done since the beginning of this litigation. You’ve been abusive and refuse to be reasonable. You leave us no choice but to motion the Court for the contact information for all Defendants’ witnesses. This is unfortunate because a stipulation would have served our purposes while being less burdensome for Defendants. I find it amazing that you are so unreasonably averse to written stipulations that you’re forcing us to engage in this ridiculous meet and confer and, now, file a motion.

2. This raises another issue. Because of Defendants’ insistence on calling the last Initial Disclosure a “supplement”, Plaintiff is not sure which witnesses Defendants have included in the Initial Disclosures. A “supplement” adds to or changes a disclosure based on information that only became available to the disclosing party after the initial disclosure was made. A supplement is therefore APPENDED to the previous disclosure. An “amendment” adds to or changes an initial disclosure based on information that was available to the disclosing party at the time of the initial disclosure but failed to be disclosed for whatever reason. An amendment therefore SUPERSEDES AND REPLACES the previous disclosure. Plaintiff wants to know: which is it? I expect to be in receipt of a signed stipulation and re-served Initial Disclosures (entitled “Amended”, not “Supplemental”) by end of business hours today, the original deadline (please fax or email them to me). If you chose not to sign the stipulation, then please include the home contact info for all witnesses disclosed in Defendants’ Initial Disclosures (Amended, Supplemental or otherwise). If I am not in such receipt, then I believe we have already met and conferred at length to no avail and further attempts will only descend into more abusive personal attacks by you. No one needs that. We will motion the Court and seek sanctions. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W 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

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

From: Mark Wasser [mailto:[email protected]] Sent: Thursday, September 20, 2007 8:13 AM To: [email protected] Subject: RE: Jadwin/KC: Initial Disclosures Gene, I will be out of the office a lot today and tomorrow. I do not know where this stands and, as I wrote last night, do not even know what the issue is. Could you remind me what we are disagreeing about? This recent exchange started with your demand that we rename and reserve the supplemental initial disclosures. I declined your request to do that. The topic then transitioned to providing employees on request, as I recall, and I agreed as I have in the past. Our position on that has never changed. What is the current dispute? The stipulation you have sent me is not necessary and nothing in the rules you cite is applicable. I know you enjoy disagreements but I cannot find one here. Remind me what the disagreement is. And what it is that needs to be compelled. Is this whole tempest simply that you want a stipulation for something we have already agreed to? Also, as I wrote last night, send me whatever CME expenses Dr. Jadwin believes are outstanding. I cannot find any record of them in my files or e-mail. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, September 19, 2007 5:04 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Initial Disclosures Mark, It is a shame that each time we attempt to meet and confer with you and comply with basic court rules and regulations, you derail the discussion into personal attacks and insults. This is truly regrettable and demonstrative of all that is wrong with the justice system today. Given your emails, I am not sure that you are familiar with USDC EDCA local rule 83-143 and FRPC 29. Hopefully after you have had a chance to familiarize yourself with these rules, you will understand why we insist on having a written stipulation and are unwilling to rely on simply your “word”. The fact that your “word” has changed with every communication only demonstrates why these rules exist in the first place. Your have staunchly and inexplicably refused to execute, or even negotiate, a valid written stipulation with us despite our best efforts and intentions. We therefore have no choice but to bring a motion to compel seeking sanctions. This is unfortunate and does not bode well for our ability to work with each other as this litigation proceeds. Sincerely, Gene

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

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

5 6 7 8 9 10

Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O.

11 UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 DAVID F. JADWIN, D.O.,

Case No. 1:07-cv-00026-OWW-TAG

15 Plaintiff,

DECLARATION OF JOAN E. HERRINGTON IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES; REQUEST FOR SANCTIONS

16 v. 17 18

COUNTY OF KERN; et al. Defendants.

19 20

Date: November 5, 2007 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA Date Action Filed: Date Set for Trial:

21

January 6, 2007 August 26, 2008

22 23 24 25 26 27 28

I, the undersigned, declare and say, as follows: 1.

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

California and admitted to practice before the United States District Court for the Eastern District of California. I am one of the attorneys of record representing Plaintiff David F. Jadwin in this matter. 2.

I am making this amended declaration in support of Plaintiff Dr. Jadwin’s Motion to

DECLARATION OF JOAN E. HERRINGTON IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

1

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1

Strike the Fifth Affirmative Defense of the Defendants. The facts stated herein are personally known to

2

me and if called as a witness, I could and would competently testify to the truth of the facts set forth in

3

this declaration.

4

3.

On September 20, I sent an email to Mark Wasser, counsel of record for the Defendants,

5

stating: “[f]or the last time, please reconsider Defendants’ unreasonable refusal to reduce its agreement

6

to the required stipulation and order required by the rules cited above. Plaintiff has repeatedly provided

7

Defendants with the proposed stipulation and requested them to either sign or propose amendments.”

8

Attached to the email was the draft Stipulation. In his reply, Mr. Wasser maintained his refusal to sign or

9

even negotiate the stipulation, stating “[i]f it is your position that there can be no agreements between

10

counsel that are not reduced to formal stipulation and order, then, perhaps we should litigate that.” A

11

true and correct copy of the emails are attached hereto as Exhibit 1.

12

4.

I have spent substantially in excess of 1 hour meeting and conferring with Mr. Wasser by

13

phone, fax, letter and email, and substantially in excess of 2 hours researching and drafting these moving

14

papers. My regular rate for such services is $500 per hour.

15

5.

My rate is consistent with those charged in the San Francisco/Bay Area by attorneys of

16

similar skill and experience. I received my B.A. the University of Auckland in 1974 and my J.D. from

17

the Golden Gate University School of Law in 1995. I was admitted to the California Bar in 1996 and

18

worked as an associate in the Law Office of Cary J. Silberman in 1996; and established my own law

19

practice thereafter.

20

6.

I taught Disability Rights at Golden Gate University of Law in Spring of 2003, speak at

21

law seminars and conferences too often to enumerate them all here, and I am frequently consulted by

22

other attorneys regarding disability and medical leave laws. I routinely volunteer to teach Trial

23

Advocacy Skills at Stanford University School of Law and Appellate Advocacy of Golden Gate

24

University School of Law. I wrote “Your Right to a Smoke-Free Workplace in California Under

25

Disability Laws” published by the Public Health Institute in 2001; and a comprehensive practice guide

26

on “Enforcing an Employee’s Right to a Smoke-Free Workplace” for internal use by the American Lung

27

Association in 2003. I am currently helping to edit Chapter 12 on ‘Leaves of Absence’ in The Rutter

28 DECLARATION OF JOAN E. HERRINGTON IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

2

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1

Group, Employment Litigation Practice Guide. In recognition of my skills and expertise, I was elected

2

as a “SuperLawyer” by my peers for the last two years.

3 4 5

7.

I attempted several times to secure local counsel, including William Smith, Esq., to

prosecute Plaintiff’s suit but was ultimately unsuccessful. 8.

Attached hereto as Exhibit 1, and incorporated by reference herein, is a true and correct

6

copy of the “Laffey Matrix” which appears on the website of the United States Attorney General’s

7

Office for the District of Columbia and which has been relied on by courts in the Bay Area to establish

8

prevailing rates for civil rights cases. On July 11, 2006, at 2:56 p.m., I opened up my internet browser

9

(Mozilla Firefox), and navigated to “http://www.laffeymatrix.com/see.html”. I then produced an Adobe

10

Acrobat PDF copy of the page that was displayed at that address using Adobe Acrobat Professional 8.0.

11

When I created the PDF, the date and time of creation appeared on the PDF in the lower right-hand

12

corner of the PDF. The web address from which I printed the page appeared on the PDF in the upper

13

right-hand corner of the PDF.

14 15

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

16 17

Executed on September 24, 2007, at Los Angeles, California.

18 19

/s/ Joan Herrington, SB# 178988 (as authorized on 9/24/07)

20 21

________________________________________ Joan Herrington

22 23 24 25 26 27 28 DECLARATION OF JOAN E. HERRINGTON IN SUPPORT OF MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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EXHIBIT 1. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 9/20/07

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Eugene D. Lee From:

Mark Wasser [[email protected]]

Sent:

Thursday, September 20, 2007 2:55 PM

To:

'Joan Herrington'

Cc:

'Gene Lee'

Subject:

RE: 070920 Wasser re JadwinKC Initial Disclosures

Follow Up Flag: Follow up Flag Status:

Completed

Joan, 

  We are not trying to evade anything. I am flabbergasted at this dispute.

 

  As I wrote in an e-mail several days ago, the Certainteed case is distinguishable because, there, the employer was refusing to produce its employees so the plaintiff needed home addresses so he could get the employees directly. Here, we are offering to produce all employees upon request as well as provide contact information for employees who may leave. (By the way, that last piece is not new, contrary to what you write. It was first offered well over a week ago.) And, as I wrote earlier, the employees are afraid of Dr. Jadwin and do not want him to know where they live. Nothing in Rule 26 requires production of home addresses. The rule requires name and address, if known. It does not say “home” address. Any contact information that permits production of the witness is sufficient. We have proposed a completely acceptable resolution.  

  To my knowledge, we are not varying the rules of discovery but, even if we were, that is not what Rule 29 says. It says the parties “may by written stipulation” do certain things. I am not aware that we are doing any of the things Rule 29 addresses. Gene’s proposed stipulation would vary the rules on notice and so forth but I object to that. The normal provisions on notice are fine. Hence, I do not think Rule 29 has any application. 

  Apparently, the current dispute revolves around the legitimacy of agreements between counsel. I have relied on agreements between counsel for over 30 years and find no authority that prohibits them. If it is your position that there can be no agreements between counsel that are not reduced to formal stipulation and order, then, perhaps we should litigate that. I doubt any court will hold that counsel of record cannot have any agreements between them that are not reduced to formal stipulation and order. Such a holding would revolutionize practice. There is certainly no authority that says that now. 

  The semantic debate between “amended” and “supplemental” is not useful. We may have amended the witness list but we supplemented the information on insurance. I explained that several days ago. Had I chosen to label the new disclosures “amended,” I imagine Gene would have objected that they were really “supplemental.” I will not engage in a debate over the title of the document. The substance should prevail. Substantively, it contained a new witness list that replaced the former list and new information about insurance.  

  As with many disputes, I suggest the real issue here is something else. Perhaps, if we could get to that we could resolve this. What is your real concern? 

  This does not warrant the time we are spending on it.  

  I am going to a meeting out of the office at 3:00 that will last the rest of the day but will be here tomorrow. 

  Mark 

          From: Joan Herrington [mailto:[email protected]]

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Sent: Thursday, September 20, 2007 2:17 PM To: Mark Wasser Cc: Gene Lee Subject: 070920 Wasser re JadwinKC Initial Disclosures 

   Plaintiff has previously provided you with legal authority showing the following:  1. Rule 26 requires parties to provide the home contact information of each disclosed witness.  See, e.g.,  Dickson v. Certain‐Teed Corp. 164 FRD 685, 689 (1996)  2. Rule 29 require parties to enter into formal stipulations to vary rules of discovery, etc. including those  regarding service of subpoenas on witnesses.  3. Local Rule 83‐143 requires parties to convert such stipulations into a court order.     Defendants have offered to accept service of subpoenas on any current county employees, in exchange for  plaintiff waiving his right to discovery of their home contact information, but refuse to reduce this agreement to  a binding stipulation and order as required by the rules cited above.       Today, for the first time, Defendants have also offered to provide the home contact information of any current  county employee whose employment with the county may cease prior to deposition or trial; but object to the 5‐ 10 day period between the employee’s departure and production of the home contact information to plaintiff  that was proposed by Plaintiff.  Yet Defendants make no counter‐proposal of what period other than 5‐10 days  is reasonable.  Further, Defendants refuse to reduce this agreement to a stipulation and order as required by the  rules cited above.     Defendants assert that their so‐called “Supplemental Initial Disclosures” are in fact “Amended Initial  Disclosures” but are unwilling to re‐serve them with a corrected caption that accurately reflects this.  I propose  that the stipulation be amended to include that parties agree that Defendants “Supplemental Initial Disclosures” dated September __, 2007 replace and supercede its Initial Disclosures dated  __, 2007.”     If Defendants continue to evade compliance with the rules cited above, then Plaintiff will be forced to move to  compel Defendants’ compliance with them, and request sanctions.  For the last time, please reconsider  Defendants’ unreasonable refusal to reduce its agreement to the required stipulation and order required by the  rules cited above.  Plaintiff has repeatedly provided Defendants with the proposed stipulation and requested  them to either sign or propose amendments.        This dispute arose because Defendants failed to comply with Rule 26 in its Initial Disclosures.  The only current  dispute appears to be that Defendants are unwilling to reduce its assertions to the required stipulation and  order.  We have less than three hours to resolve this dispute.     Joan Herrington  Bay Area Employment Law Office  5032 Woodminster Lane  Oakland, CA 94602‐2614  (510) 530‐4078 ext 109  [email protected]    

9/20/2007

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

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Document 52

Filed 09/24/2007

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

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Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O.

11 UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 DAVID F. JADWIN, D.O.,

Case No. 1:07-cv-00026-OWW-TAG

15 Plaintiff, 16 v. 17 18 19

COUNTY OF KERN; et al. Defendants.

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[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES; REQUEST FOR SANCTIONS [F.R.C.P. RULES 26(a)(1) AND 37(a)] Date: November 5, 2007 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA

21 Date Action Filed: Date Set for Trial:

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January 6, 2007 August 26, 2008

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This matter came on regularly for hearing before this Court at 9:30 a.m. on November 5, 2007, in

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the Bakersfield Division of the United States District Court for the Eastern District of California.

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Counsel for each party appeared and the matter was heard. The Court has reviewed the motion,

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declarations and memoranda of the parties.

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IT IS HEREBY ORDERED that the Motion to Compel Initial Disclosures and Request for

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

1

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

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Document 52

Filed 09/24/2007

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Sanctions, brought by Plaintiff DAVID F. JADWIN, D.O., is GRANTED.

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IT IS FURTHER ORDERED that Defendants shall serve complete Amended Initial Disclosures,

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including the home addresses and phone numbers of all witnesses disclosed therein, on Plaintiff no later

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than ____ days from the signing of this Order.

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IT IS FURTHER ORDERED that Defendants and/or Defendants’ counsel of record shall be

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sanctioned, jointly and severally, in the amount of $___________, to be remitted to Plaintiff no later

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than ____ days from the signing of this Order.

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Date: _____________, 2007

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By: ______________________________________ The Honorable Theresa A. Goldner Magistrate Judge of the United States District Court Eastern District of California

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[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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