54 Mtc Id - Opposition

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

Document 54

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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: mwasserriVmarkwasser.com

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Bernard C. Barmann, Sr.

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Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

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Filed 10/12/2007

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KERNCOUNTYCOL~SEL

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

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

15 DAVID F. JADWIN, D.O.

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Plaintiff,

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vs.

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

) DEFENDANTS' MEMORANDUM OF ) POINTS AND AUTHORITIES IN ) OPPOSITION TO MOTION TO COMPEL

)

"

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~

COUNTY

KERJ'II, et

Defendants.

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Date: November 5. 2007 Time: 9:30 a.m. . Place: U.S. Bankruptcy Courthouse, ) Bakersfield Courtroom 8

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)

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

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~ )

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-------------)

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Defendants respectfully submit this memorandum in opposition to Plaintiffs motion to compeL

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DEFENDANTS' HAVE FULLY COMPLIED WITH RULE 26(a)(1)(A)

Despite having been provided with addresses and telephone numbers for all County

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employees who may be witnesses in this case as well as the Defendants' written representations

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that all employees will be made available to Plaintiff upon request, that Defendants will provide

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Plaintiff with contact information on all employees who leave County employment during the

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pendency of this case, and that Defendants' counsel will accept service of all process and notices

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on behalf of all Defendants and employees and ensure their availability, Plaintiff asserts that

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Defendants have failed to satisfy the requirements of Rule 26(a)(l)(A). Plaintiffs assertion is so

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groundless as to call into question Plaintiffs good-faith.

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The

states

a

other parties "the name and,

must, without awaiting a
likely to have discoverable information... ". The list of individuals that Defendants enclosed and completely satisfied

requirements

their initial disclosures thoroughly

the Rule. Defendants not

provided addresses

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and telephone numbers for every employee, they provided additional, written, representations, as

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described above. A copy of the transmittal letter that contained Defendants' representations in

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this regard is attached to the Declaration of Mark A. Wasser in Opposition to Motion to Compel.

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The clear policy behind Rule 26(a)(1 )(A) is to inform the opposing party of potential witnesses and provide sufficient information to make them available. Defendants fully satisfied

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individual, addresses and telephone numbers for each employee who Defendants have initially

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identified as a potential witness. Plaintiff is also in possession of the Defendants' written

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promise to provide contact information on employees who leave employment during this case

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and make each and every employee available upon request and to accept service of all process

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and notices on their behalf.

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Not satisfied, Plaintiff insists he is entitled to "home" addresses for the employees. For

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authority, Plaintiff relies on a 1996 District Court decision from Kansas, Dixon v. Certain Teed

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Corp., 164 F.R.D. 685. (Plaintiff also cites Moore's Federal Practice but the language in

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Moore's is supported only by Certain Teed and, thus, is not additional authority. (See 6-26

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Moore's Federal Practice - Civil § 26.22, fn. 23). DEFENDANTS' MEMORANDUM OF POlNTS AN AUTHORITIES IN OPPOSITION TO MOTION TO COMPE

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Interestingly, the Certain Teed court did not actually order disclosure of "home"

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addresses. It simply ordered the employer to "disclose the addresses and telephone numbers of

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its current employees." Dixon v. Certain Teed Corp., 164 F.R.D. 685, 693. This, of course, is

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consistent with the language in Rule 26(a)(l)(A) which docs not reference "home" addresses at

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all. It is doubtful that the CertainTeed decision brings any weight to bear on this issne and,

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ironically, it actually underscores the absence of support for Plaintiff s position.

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In Certainteed, the employer refused to provide addresses or telephone numbers for any refused to make

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The employer

disclosed "its business

address and phone number" (ld. at 689) contending that the plaintiff could not contact the

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employees any way (ld. at 688) and complaining that disclosing additional addresses would

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increase the employer's discovery costs. Id. at p. 687. facts here are a world away.

the Defendants not only

disclosed

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addresses and telephone numbers of all employees, the addresses and telephone numbers the

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Defendants provided are the individual employees' actual work addresses and telephone

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numbers - not general addresses or telephones for the employer. Those disclosures, alone, fully

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satisfy Rule 26. But the Defendants provided more. The Defendants accompanied their

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disclosures of the employee addresses and telephone numbers with commitments to provide all

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employees upon request

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employees and to provide updated contact information on departing employees. By any

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measure, this is several steps beyond what Rule 26 requires.

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One might ask, "Why did Plaintiff file his motion?"

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There is another issue. As is more fully explained in Defendants' motion for protective

to accept service of all process and notices for all Defendants and

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order filed herewith (and set for hearing at the same time as this motion), County employees

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object to disclosing their home addresses to Plaintiff on grounds of privacy and personal safety.

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Dr. Jennifer Abraham, for example, does not want Plaintiff to know where she lives. She

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mentions Plaintiff s physical assault on another physician at Kern Medical Center and his verbal

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assaults on her and expresses safety concerns for her children and family. See Declaration of

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Jennifer Abraham in Support of Motion for Protective Order. Other employees do not want DEFENDANTS' MEMORANDUM OF POINTS AN AUTHORITIES IN OPPOSITION TO MOTION TO COMPE

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Plaintiff to know where they live and express their own safety and privacy concerns. See

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Declarations of Jane Thornton, Denise Long, Toni Smith and Michelle Burris. Defendants could

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provide many additional declarations to the Court but did not want to burden the Court with

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multiple, redundant statements.

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Plaintiff has actual contact information for every employee identified in Defendants'

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initial disclosures. Plaintiff has Defendants' promise to make them all available on request.

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Plaintiff even has Defendants' offer to accept service of all notices and process. Defendants'

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initial disclosures go substantially beyond

n.

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is required by Rule 26.

DEFENDANT'S SHOULD RECOVER THEIR RESONABLE ATTORNEY FEES INCURRED IN OPPOSING THIS MOTION

PI,,;ntilf's motion is a waste of this Court's time

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resources. Deterldants

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OHvmu

be awarded

a waste of the Defendants' time and m opposmg

reasOfmble attorney

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m.

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CONCLUSION

Defendants' request that the Court deny Plaintiffs motion to compel and award

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Defendants' their reasonable attorney fees.

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Respectfully submitted,

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Dated: October 12. 2007

LAW OFFICES OF MARK

WASSER

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By :_-,/""s/~M"-,,,a,,-,rk~A,,-.-'W-"'a"'s"'s"'er'---

_

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

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28 DEFENDANTS' MEMORANDUM OF POINTS AN AUTHORITIES IN OPPOSITION TO MOTION TO COMPE

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