58 Mx Protective Order - Declarations

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

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Filed 10/12/2007

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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: [email protected]

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Document 58

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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 E-mail: [email protected]

9 Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, 11 Jennifer Abraham, Scott Ragland, Smith land 12 :: 10

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID F. JADWIN, D.O.

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Plaintiff, vs. COUNTY OF KERN, et ai.,

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Defendants.

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

) DECLARATION OF MARK A. WASSER ) IN SUPPORT OF MOTION FOR ) PROTECTIVE ORDER RE: ) EMPLOYEES' HOME ADDRESSES ) ) Date: November 5, 2007 ) Time: 9:30 a.m. (date cleared by CRD)

Place: U.S. Bankruptcy Courthouse, Bakersfield Courtroom 8

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

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------------) I, Mark A. Wasser, declare as follows: I.

I am counsel of record for Defendants herein and am familiar with this action.

The statements in this declaration are true and correct of my own personal knowledge and I can testify competently to them if called as a witness.

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DECLARATION OF MARK A. WASSER IN SUPPORT OF MOTION FOR PROTECTIVE ORDE RE: EMPLOYEES' HOME ADDRESSE

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As is more fully explained in the declarations of Jennifer Abraham; Michelle

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Burris; Jane Thornton; Denise Long and Toni Smith filed herewith, they object to disclosing

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their home addresses to Plaintiff, David Jadwin, on grounds of personal safety and privacy. I

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believe that, if asked, other County employees would submit similar declarations. 3.

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Defendants' have disclosed the individual work addresses and telephone numbers

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for all County employees who have been initially identified as witnesses

this action.

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addition, Defendants have promised to make all employees available to Plaintiff upon request to Defendarlts' counsel, have committed to provide PleLinliffwith up·Galea contact infanna:tiOJJ, if

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9 I known, for any employees who leave County employment during this case and to accept service 10

of all process and notices on behalf of the employees. These representations have all been in

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writing and have been made multiple times.

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II correspondence

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4.

eontains

are repeated here. Copies

representations are attached to

movmg papers.

Attached hereto is a true and correct copy of my letter of September 27, 2007 to

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Plaintiff s counsel offering to meet and confer on the substance of this motion. Although

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additional correspondence was exchanged, no resolution was arrived at and PlaintifT s position

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actually became more extreme as the meet-and-confer process continued. See, for example,

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Eugene Lee's letter of October 5, 2007. Copies of all meet and confer letters are attached hereto

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as Exhibit 1. On October 11, 2007, Plaintiff served a request for production on Defendants that

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also seeks employee home addresses. It is apparent that Plaintiff remains

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employee home addresses despite full disclosure of contact addresses far all employees and

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Defendants' assurances that all employees will be made available and despite Plaintiffs

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representations to the contrary during the meet-and-confer process.

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DECLARATION OF MARK A. WASSER IN SUPPORT OF MOTION FOR PROTECTIVE ORDE REI EMPLOYEES' HOME ADDRESSE

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My standard hourly rate is $350.00 per hour. I have spent approximately sixteen

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hours meeting and conferring with Plaintiffs counsel and preparing this motion and supporting

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papers.

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I certify under penalty of perjury that the foregoing is true and correct.

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Executed this 12'h day of October, 2007, in Sacramento, California.

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Mark A. Wasser

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d

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DECLARATION OF MARK A. WASSER IN SUPPORT OF MOTION FOR PROTECTIVE ORDE RE: EMPLOYEES' HOME ADDRESSE

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

Document 58

Filed 10/12/2007

EXHIBIT 1. Meet and confer letters between Defendant's attorney and Plaintiffs attorney

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Law Offices of Document 58

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Filed 10/12/2007 MARK A WASSER

400 Capitol Mali, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405

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D1wasser@marh:wasser.com

September 27, 2007

Eugene Lee Law Offices of Lee 555 West Street Suite 31 nULg"";', Calif;onlia 9001

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Re.' Jadwin v. County ofKern, et Dear Mr. Lee: We are filing a motion for a protective order on the home address issue. Several County employees object to disclosure of their home addresses to Dr. Jadwin on grounds of personal safety. Since all are available at their work addresses, which have been provided to you, there is no reason to disclose their home addresses. Remaining ever-optimistic that you might want to discuss this issue reasonably, I offer another opportunity to meet and confer on From the tenor of your moving papers, I assume you will refuse. However, if you have any interest in discussing issue further before we file our motion, let me know.

Very Truly Yours,

Mark A Wasser

cc:

Mark Nations (via first class mail) Karen Barnes (via first class mail) Joan Herrington (via first class mail)

Admined

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Practice in California and Nevada

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Case 1:07-cv-00026-OWW-TAG (Z13) 99Z-:3299 TELEPHONE

LAW

Document 58

OFFICE

E U G ENE STREET,

OF

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(213) 596-0487

555 WEST FIFTH

FACSIMILE

LOS ANGELES, CALlF"ORN1A 90013-1010

SUITE 3100

EUGENE D LEE, ESQ

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Filed 10/12/2007

Page 6 of 20 [email protected] E-MAIL

WWW.LOEL.OOM WEBSITE

JOAN E. HERRINGTON, ESQ

PRINCTPAL

OF COUNSEL

October 1, 2007 VIA FACSIMILE & US MAIL Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 11 00 Sacramento, 95814 Re:

100011.001

Motion for Protective Order (USDC EDCA No, 1:07-cv-00026-0WW/TAG) Jadwin I County of Kern, et

I am of your You state as motion the allegation County employees object to disclosure of their home addresses to Dr. Jadwin on grounds of personal safety"

Plaintiff requests an offer of proof Who are these objecting employees? What specifically are they afraid of? On what do they base these alleged fears? In other words, demonstrate that this is not just the latest example ofthe County's attempt to blame the victim for their own illegal actions, Plaintiff has a right to investigate, informally contact and serve documents on the witnesses, As Plaintiff has repeatedly explained, witnesses' availability at work is not the only relevant eonsideration Defendants have orally "represented" that they are willing to accept service on behalf of its "current employees" and to produce them as needed, In exchange, Plaintiff has stated its willingness to forego disclosure of their home contact information, However, Plaintiff has several concerns about relying on Defendants' oral representations, First, what happens when current Kern County employees quit or are terminated before deposition or trial? Plaintiff needs to ensure that it receives their home contact information in a timely manner. The written stipulation which Plaintiff has proposed, attached hereto, addresses this issue, Second, the case of KMC Interim CEO David Culberson - whom Defendants later informed Plaintiff was not an employee but an independent contractor - highlights the ambiguity of Defendants' "representation", Which of the witnesses listed on Defendants' "Supplemental" Initial Disclosures are employees of Kern County as opposed to independent contractors? The written stipulation which Plaintiff has proposed, attached hereto, addresses this issue.

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Finally, FRCP Rule 29 and USDC EDCA Local Rule 83-143 require that Plaintiff and Defendants enter into a written stipulation when varying discovery procedures. Defendants' representati on that they will accept service on behalf of certain witnesses represents a variance of discovery procedures. Plaintiff is willing to enter into a stipulation with Defendants but has requested that the stipulation be memorialized in writing. Defendants have refused. Plaintiff and Defendants appear to agree in principle. What is the basis for Defendants' refusal to negotiate a written stipulation, a copy of which is attached hereto? Both Plaintiff's motion to compel Defendants' proposed motion for protective order could been avoided had Defendants been willing to do so. tOr"wrlrii

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Joan Herrington, Esq. Proposed Stipulation

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LAW OFFICE OF EUGENE LEE Eugene D. Lee (SB#: 236812) 555 West Fifth Street, Suite 3100 Los Angeles, CA90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected]

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Document 58

Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 ele;phcme: (510) 530-4078 I (510) 530-4725 jh@baelocom Of Counsel to LAW A y · m r . p OF

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for

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F A. Wasser CA

OFFICES lVL"''''' 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]

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Bernard C. Barmann, Sr. KERN COUNTY COUNSEL 16 Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor 17 Bilkersfield, 9330 I 'Phone: (661) 868-3800 18 Fax: (661) 868-3805 Email: [email protected] 19 Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer 20 Abraham, Scott Ragland,Toni Smith, and William Roy. 21

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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

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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 a!., 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 Plaintiff's Motion to Compel Initial Disclosures that comply with Rule 26, as well as Defendants' Motion for Protective Order, Plaintiff and Defendants hereby stipulate that:

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1. Defendants shall within 10 days of signing ofthis Stipulation and Order by the Court

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disclose to Plaintiff David F. Jadwin, D.O. the last known home address and phone

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number (or if not known, the last known address and phone number) of any and all

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individuals

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as Wlme"t" 111

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Independent contractors,

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employees.

are not employees of Defendant

of Kern

Defendants

i\mended or Supplemental Disclosures. as

within 10

not

of signing

deemed to be

StipUlation

Order by

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dJsclosc to Plaintiff

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

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Defendants list as witnesses in their Initial and any Amended or Supplemental

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Disclosures.

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3.

known

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

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address and phone number of any and all current employees of Defendant County ofl Kern that Defendants

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as witnesses in their Initial and any Amended or

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Supplemental Disclosures within five days of any termination

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with the County of Kern, or such shorter time as is reasonably necessary so as to

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permit Plaintiff to compel their attendance at depositions andlor trial.

emPloymen1

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

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

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

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compel compliance with either or both of these.

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

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

Document 58

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1 Dated: October_, 2007

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

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Dated: October _' 2007

6 7 Attorney COUNTY OF KERN, PETER BRY AN, HARRIS, EUGENE KERCHER, JENNIFER ABRAHA1\1, SCOTT RAGLAND,TONI en ,n~n WILLIAM ROY

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ORDER

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The parties having stipulated as hereinabove set forth and good cause appearing therefore; IS SO ORDERED

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STATES

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By:_-=---,.,,..----',-:-:=-_---,.-=-,-;-_ _ The Honorable Theresa A Goldner United States Magistrate Judge

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

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Law Offices of Document 58

• Filed 10/12/2007

MARK A. WASSER

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Page 11 of 20

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

October I, 2007

ACSIl',Ul,E & FIRST

Eugene Lee Offices of Eugene Lee Fifth Suite 3I Los California 1010

Re: Jadwin v. County ofKern, et al.

Dear Mr. Lee: This is in response to your letter this morning. The Defendants' representations to yon regarding acceptance of service on behalf of ali parties and County employees and making employees available to you on request have not been "oraL" You and I have had no oral communications for months. our representations, indeed, ail our communications to you on this topic and ail other topics for the past few months have been, and still are, written. Hence, the statements in your letter about oral representations are false. I will not spend any time referring you to the many writings in which I have made the representations. They will be provided to the Court in our motion and you have them. Neither Rule 29 nor Local Rule 83-143 "require" a stipulation. Rule 29 states that parties may by written stipulation provide that depositions "may be taken before any person, at any time and place, upon any notice, and in any manner ... " and "modify other procedures governing or limitations placed on discovery" except for certain enumerated rules that do not apply to our circumstances. As you know, the word "may" is discretionary, not mandatory. Thus, your statement that Rule 29 requires a stipulation is false. Local Rule 83-143 imposes certain requirements on the form of stipulations and requires that stipulations be approved by the Court but does not "require" stipulations. Thus, your statement that it does is also false. Further, even if Rule 29 did apply, we are not proposing to change any of the things Rule 29 addresses. We are not proposing to

Admitted to Practice in California and Nevada

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Case 1:07-cv-00026-OWW-TAG Eugene Lee October I, 2007 Page 2

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vary any terms of discovery. Neither Rule 29 nor Local Rule 83- 143 have any application. As foreign as it may be to your style of practice, we are simply proposing an accommodation to make it easier for you to contact County employees by offering to make them available. It really is that simple. So you are clear, let me write, again, what I have written previously: I will accept service of all process and notices on behalf of all parties and all County employees and, further, will make all parties and employees available to you upon request. I will provide you with all known contact information on any employees who leave County emlD!<wrneJlt aurmg pendency case. This is not to depositions or attendance at It applies to request you have an employee as a request to meet with them or conduct an informal interview. note,

letter is not oraL It is written on the paper you are reading.

As as your questions about who objecting are, are afraid and they base their fears on. I this: I have declarations employees at KMC who all worked with Dr. Jadwin and, on the basis of their observations of his behavior, have safety and privacy concerns about disclosing their home addresses to him. One declarant mentions his physical aggression towards Dr. Lau. On the basis of my interviews to date, I believe every employee I have talked to would sign a similar declaration if asked but I do not believe 20 or 30 declarations are necessary. The evidence will come out at triaL So, I have settled on five. The stipulation you have proposed is not acceptable because it, like earlier versions you have sent, proposes terms that modify the normal rules ways we have never \vritten about or agreed to. Consequently, we are not signing I am not opposed to stipulations but I do not believe one is necessary I do not sign "take··lt-orleave-it" stipulations sent with threats and deadlines. I plan to have our motion for a protective order, along with the supporting declarations, filed within the next few days. As much as I dislike requesting fees from opposing counsel, I will request fees because this entire exercise is wasteful and unnecessary. If there are other issues you would like to discuss, in writing, let me know. Very Truly Yours,

Mark A. Wasser

cc:

Karen Barnes (via first class mail) Joan Herrington (via first class mail)

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OFFICE

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Filed 10/12/2007 OF

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(21:3) 596'0487

555 WEST FIFTH

STREET, SUITE 3100

FACSIMiLE

LOS ANGELES, CALIFORNIA 9001:3-1010

EUGENE D, LEE, ESQ

Page 13 of 20 [email protected] E-MAIL

WWW.LOEL.COM WEBSITE

JOAN E. HERRINGTON, ESQ

PRINCIPAL

OF COUNSEL

October 2, 2007 VlA FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, 95814 Re:

10001 LOOI

Defendants' Motion for Protective Order Jadwin I County of Kern, et aL (USDC EDCA No. 1:07,cv-00026-0WW/TAG)

Dear My. ! am in ree,eipt

faxed letter of October 1 ,"~'-"""

In response to Plaintiff's request for an offer of proof, the Fax mentions the existence of 5 witness declarations. Defendants have a duty to share the declarations with Plaintiff as part of their good faith meet and confer. [Nevada Power Co. v. Monsanio Power Co., 151 F.R.D. 118, 120 (D. Nev. 1993)). Plaintiff requests access to these declarations in order to detennine whether there is a genuine need to withhold the witnesses' home contact info. If Plaintiff is convinced of such a need, then Plaintiff may concede the point and Defendants' motion for protective order will then become unnecessary. However, Plaintiff cannot and will not rely on your "representations" regarding these declarations.

Defenlda:nts have rejected the of negotiating a written stating "I am not opposed to stipulations but I do not believe one is necessary here and I not sign 'take,it-or leave-it' stipulations sent with threats and deadlines." Plaintiff has always been willing to negotiate the written stipulation with Defendants. Plaintiff even emailed the MS Word file to Defendants so as to facilitate any revisions which Defendants might have wished to propose. To date, Defendants have refused. In addition, unlike Defendants, Plaintiff believes a written stipulation is necessary. Defendants made the following "representation" in the fax of October 1: I will accept service of all process and notices on behalf of all parties and all County employees and, further, will make all parties and employees available to you upon request I will provide you with all known contact information on any employees who leave County employment during the pendency of this case. This is not limited to depositions or attendance at triaL It applies to any request you have for an employee witness, such as a request to meet with them or conduct an infonnal interview.

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This "representation" is too uncertain to meet Plaintiffs needs. For instance, how soon after an employee leaves County employment will Defendants provide Plaintiff with that employee's home contact information? Soon enough to ensure Plaintiff can subpoena them for depositions Or trial? Does "employees" include independent contractors (this became an issue with regard to David Culberson)? Because of these uncertainties, Plaintiff needs to memorialize Defendants' representations in a negotiated written stipulation. Defendants have also stated: "The stipulation you have proposed is not acceptable because it, like earlier versions you have sent, proposes terms that modifY the normal rules in ways we have never written about or agreed to." Plaintiff would like clarification on what you consider the "normal rules"; and Defendants are unwilling to offer any modifications to the proposed

The Fax also stated: "All our representations, indeed, all our communications to you on this topic other topics for the past few months have been, and still are, written. Hence, the statements your letter about oral representations are false." went on to state: "Please on the paper you are reading." letter is not oral. It is representations. you Jaliltltl is aware onhe difference between oral should recall that, on September 19,2007, you sent me an email regarding the witness home info issue where you wrote: "I have made consistent representations to you, since our first telephone conversation over 6 months ago, and have stood by them." Any representations which you made to me during that call were oral representations. We look forward to your response. Hopefully, we can avoid the need for a motion for protective order by amicably resolving this among ourselves. Please do not hesitate to contact me with any questions.

cc: enc:

Joan Herrington, Esq. Proposed Stipulation

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Law Offices of Document 58

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

• Filed 10/12/2007

MARK A. WASSER

Page 15 of 20

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

October 3 2007

&

Eugene Lee Law Offices of Eugene Lee StreeL Suite 3100 3-1010

Re: Jadwin v. County ofKern, et af,

Dear

. Lee: Corresponding with you could become a Ji.l!i-time job.

Vel/(w'a Power Co. v. Monsanto Povl'er Co. does not require the Defendants to "share the declarations PlaintitTas part of their good meet and confer." case requires that an "objecting part}" otTer such factual support for position as "vill allow the party seeking discovery to make an informed evaluation of the claim ...". We have done that. To be doubly sure we have done that, let me summarize the declarations again for you.

Five employees have signed declarations objecting to disclosure of their home addresses to Dr. Jadwin on grounds of safety and privacy. The declarations recite that this case arose out of work-related issues, does not involve any of the employees in their personal or private lives, that they all believe their private lives should be kept separate from their work careers, that they are all available at their work addresses to be contacted in connection with this case and they do not want Dr. Jadwin to know where they live. Two of the employees state that Dr. Jadwin is emotional and confrontational and one states that Dr. Jadwin verbally assaulted her several times, physically assaulted another physician at KMC and that she does not trust him. As with your last letter, you pose a series of questions to make this appear more complicated than it is. We will provide contact information on departing employees

Admitted to Practice in California and Nevada

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Case 1:07-cv-00026-OWW-TAG Eugene Lee October 3, 2007 Page 2

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when it is available. This is not a "trick" answer. We have no interest in concealing any employee and we will do our best to insure that all employees are kept available to testify, either formally or informally. I am, as usual surprised that you raise these concerns because I would suspect Dr. Jadwin would be the one to want employees concealed. Their testimony will hurt him, not the Defendants. The employees will be the source of information about Dr. Jadwin's behavior. They are the ones who know how he drove other people out of the Pathology DepartmenL how he to acted by intimidation and hostility, how he threatened his co-workers and how he created stress in the workplace. Their testimony will be central to the case and we will do all in our power to make them to

Your comment about m) September j 9 letter makes poinL our representations have been consistent for over 6 months. I first made them orally but they have been 111ade and repeated in \\Titing since then because you I no longer

Like you, \ve like to the a nrc,tp,-ti"p order a motion to compel and a protective order seems advisable.

Very Truly Yours,

Mark A. Wasser

cc:

Karen Barnes (via first class 111ail) Joan Herrington (via first class mail)

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Page 17 of 20 [email protected] E-MAiL

WWW.LOELCOM WEBSITE:

JOAN E. HERRlNGTON, ESQ

PRINCIPAL

OF COUNSEL

October 5, 2007 vlA FACSIMILE Mark Wasser Law Offices Mark Wasser 400 Capitol Mall Ste 1100 CA 95814 Re:

10001 LOOI

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

Dear ML Wasser: I am in rec:en11 of your faxed letter of October 3 According to the Fax, tbe employee-declarants state: that tbis case arose out of work-related issues, does not involve any of the employees in their personal or private lives, that they all believe their private lives should be kept separate from their work careers, that they are all available at work addresses to be contacted in connection with this case and they do not want Dc Jadwin to know where they live, In other words, the declarants have ordinary privacy concerns, PRCP 26(a)(I) expresses the legislature's will that parties be provided witnesses' home contact information notwithstanding privacy concerns, In Folsom v, Hearlland Bank, the court ruled that defendants have a duty to disclose the horne contact information for witnesses under FRCP 26(a)(l): The identified former and current employees directly worked on the loan between plaintiffs and Heartland which is the subject of this litigation [, , , ,J Such individuals appear likely to have discoverable information relevant to disputed facts alleged with particularity, Fed, R, Civ, P, 26(a)(lXA) thus requires Heartland to disclose their known addresses and telephone numbers, without awaiting a discovery request 'It may not satisfy this obligation by disclosing its business address and phone number, unless it knows of no other address and number: Dixon v, Cerlainleed Corp" 164 F,R,D, 685, 689 (D, Kan, 1996) Rule 26(a)(l)(A) contemplates disclosure of the personal address and telephone number of identified individuals. 1999 Us, Disl LEXlS 7814 (D, Kan, 1999)(emphasis added),

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Ordinary privacy concerns do not trump Plaintiff's right to ilie witnesses' home contact infonuation as expressed by FRCP 26(a)(1). lfyou have caselaw suggesting otherwise, please provide us such citations as part of your good faith meet and confer. The Fax leaves a number of Plaintiff's questions unanswered. Defendants had stated in their fax of October I: "The stipulation you have proposed is not acceptable because it, like earlier versions you have sent, proposes tenus iliat modi!)' the normal rules in ways we have never written or agreed to." Plaintiff still awaits clarification on what Defendants consider "normal rules". Plaintiffs letter of October 1 had also asked: Which of the witnesses listed on Defendants sci'Jsures are as op:pm;ed to i·l1dE'pendent contractors [and how can Plaintiffbe SUTe which are encompassed Defendants' "representations"]? Plaintiffs proposed stipulation addresses this issue. li"~;"'r

states "Like you, we would like to avoid the need for a protective order." like to take this base agreement one step and idea of a written A '.\Titten would avoid the need for motion for protective order while accomplishing the goals Plaintiff has always been, and remains, willing to negotiate a written stipulation with Defendants which completely obviates the need for such a motion. Plaintiff has already on numerous occasions provided Defendants with the draft stipulation as a starting point for discussions. Please let us know if you require another copy. We look forward to your response. Hopefully, we can avoid the need for a motion for protective order by amicably resolving this among ourselves. Please do not hesitate to contact me with any questions.

Very -frilIV y'ours.' N'\ " ,\ ,.I

cc:

....

Joan Herrington, Esq.

2

Law Offices of

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

Document 58 Filed 10/12/2007 MARK A. WASSER

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400 Capirol?Y1all, Suite 1100 Sacramento, California 95814

Office: 916-444-6400 Fax: 916-444-6405 ffi\[email protected]

October 5, 2007

&

Eugene Lee Law OHices 555 Los Ange:les,

1010

Re:

ef al.

Dear M1'. Lee: While we both apparently want to avoid the motion for a protective order, your motion to compel is still pending and the letter you faxed late last night seems to take an even less l1exible position on home addresses than your earlier correspondence, Comparing it with, for example, the e-mail and draft stipulation you sent me on September 18, it appears your position on home addresses has hardened, Then, you were focusing on home addresses for only former employees, Now, you want home addresses for including independent eontractors, may recall. we gave you County does not have his home address, address of David Culberson's 01'. Roy has relocated to Alabama, To my knowledge, no one at the County knows where he lives. There are other examples but two suffices to make the point I think we just disagree, You believe Rule 26 requires home addresses while we believe it simply requires addresses that will ensure witness availability, The goal, after alL is to contact witnesses, If the address disclosed enables that contact it should not matter whether it is a "home" address or a business address, We have gone to some lengths to guarantee that we will make all employee witnesses available but you still find our efforts unsatisfactory, As far as a stipulation goes, I do not know what to propose, You insist on home addresses and we continue to believe we have fully satisfied Rule 26 by disclosing individual business addresses and guaranteeing availability of all employees, As I wrote several days ago, I do not understand your concern, Maybe if I did, we could better meet it

Admitted

to

Practice in California and Nevada

Case 1:07-cv-00026-OWW-TAG Eugene Lee October 5. 2007 Page 2

Document 58

Filed 10/12/2007

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As much as I wish it were otherwise. it appears the Court will need to provide guidance on this. I see no other resolution in sight.

Truly Yours.

cc:

Karen Barnes (via first class mail) Joan Herrington (via first class mail)