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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 20 21

COUNTY OF KERN; et al. Defendants.

PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS Date: November 5, 2007 Time: 9:30 a.m. Place: U.S. Mag. Judge Theresa A. Goldner U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA Date Action Filed: Date Set for Trial:

January 6, 2007 August 26, 2008

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Plaintiff David F. Jadwin, D.O., F.C.A.P., hereby submits this reply memorandum in support of

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its motion to compel Defendants County of Kern, Peter Bryan, Eugene Kercher, Irwin Harris, Scott

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Ragland, Jennifer Abraham, William Roy and Toni Smith to serve complete Initial Disclosures which

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comply with Federal Rules of Civil Procedure, Rule 26(a)(1), and of its request for an award against

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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). PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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I. DEFENDANTS REFUSED IN BAD FAITH TO NEGOTIATE A STIPULATION WITH PLAINTIFF, FORCING PLAINTIFF TO MOTION THE COURT

2 Plaintiff and Defendants have had numerous meet and confers from August 10 to September 20, 3 2007. 4 Plaintiff repeatedly stated that it would forego home contact information for Defendants’ 5 witnesses if Defendants were willing to sign a written stipulation. On September 5, Plaintiff sent 6 Defendants just such a draft stipulation. (Doc. 50, 2:23-28). Thereafter, Plaintiff repeatedly sent the draft 7 stipulation to Defendants and invited comment. (Doc. 50). Plaintiff had also sent the stipulation to 8 Defendants in MS Word file format to facilitate revisions. (Doc. 50, 3:10-15). 9 Defendants refused to negotiate the written stipulation. They instead made unilateral, 10 informal “assurances” and “representations” and demanded Plaintiff take them as is. (Doc. 50). 11 Plaintiff insists on a written stipulation for two reasons. First, USDC EDCA Local Rule 83-143 12 and FRCP Rule 29 require agreements between counsel which vary discovery procedures and deadlines 13 be memorialized in a written stipulation and order signed by the Court. Second, given the retaliatory 14 conduct Defendants have exhibited throughout this action – including refusing to return his personal 15 items to him more than 3 months after he had asked to retrieve them from his office, and being 16 instructed to go to Kern Medical Center (an over 100-mile drive) at an appointed time to retrieve 17 personal files from his computer only to then be refused and forced to return home empty-handed – 18 Plaintiff is not able to rely on Defendants’ “assurances” and “representations”. See Lee and Jadwin 19 declarations. 20 Finally on September 20, Plaintiff made this final plea: 21 22 23

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. (Doc. 51, 2:4-11).

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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. (Doc. 51, 2:4-11). PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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1 Defendants refused to produce home contact information for their witnesses; at the same time, 2 they refused to negotiate a written stipulation with Plaintiff. Plaintiff was left no choice but to bring this 3 motion to compel seeking fees and costs. 4 Proving their bad faith, Defendants later reversed their position and proposed their own 5 written stipulation to Plaintiff on October 9, 2007 – more than two weeks after Plaintiff had already 6 filed this Motion. (Lee Decl., ¶¶ 15, 16). That meet and confer process ended after Plaintiff sent 7 Defendants a revised version of Defendants’ proposed stipulation, which elicited this response from 8 Defendants: 9

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Your proposed stipulation is not acceptable [. . . .] Whether our protective order is filed is a matter of timing. It has to be on file by Monday and we will file it Friday in the absence of an agreement [. . . .] (Lee Decl., ¶ 18).

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This Motion (and Defendants’ motion for protective order) could have been averted had

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Defendants been willing to negotiate a written stipulation with Plaintiff before Plaintiff filed their

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Motion. Instead, Defendants refused to do so based on an unreasonable, principled stand against written

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stipulations, stating “perhaps we should litigate that.” Then, after Plaintiff had already filed this Motion,

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Defendants proposed their own written stipulation to Plaintiff, revealing their bad faith.

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This is bad faith conduct, designed to frustrate Plaintiff and obstruct and delay this action.

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Defendants have exhibited this conduct since the beginning of this action. Plaintiff also seeks sanctions

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because of the numerous times Defendants’ counsel insisted on engaging in personal attacks on

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Plaintiff’s counsel during the meet and confer process, despite being asked on several occasions to

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refrain. (Lee Decl., ¶ 19).

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II. IT IS WELL-SETTLED THAT PLAINTIFF IS ENTITLED TO THE HOME CONTACT INFORMATION OF DEFENDANTS’ WITNESSES It is well-settled that FRCP Rule 26(a)(1)(A) entitles Plaintiff to the home contact information of

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Defendants’ disclosed witnesses. Plaintiff has already cited Moore’s Federal Practice (“Furthermore, if

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some or all of the identified individuals are employees of the disclosing party, their home addresses and

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telephone numbers must be disclosed. The disclosing party does not satisfy its initial disclosure

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obligation by providing only its business address and telephone number” and Dixon v. CertainTeed PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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Corp., 164 F.R.D. 685, 688 - 689 (D. Kan. 1996) (“CertainTeed shall disclose the addresses and

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telephone numbers of all the identified employees. It may not satisfy this obligation by disclosing its

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business address and phone number, unless it knows of no other address and number”). (Doc. 50).

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Defendants disagree with Moore’s Federal Practice in its interpretation of Dixon v. CertainTeed

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Corp. They state: “Interestingly, the CertainTeed court did not actually order disclosure of ‘home’

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addresses.” (Doc. 54, 3:1-3). However, the Opposition contains not a single legal citation in support of

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its contention, other than FRCP Rule 26(a)(1)(A) and Dixon v CertainTeed itself. (Doc. 54).

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But the requirement to disclose home addresses of witnesses again came before the U.S. District

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Court for the District of Kansas in 1999. Not surprisingly, the court sided with Moore’s Federal

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Practice’s interpretation of CertainTeed. In Folsom v. Heartland Bank, the court ruled that defendants

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have a duty to disclose the home contact information for witnesses under FRCP 26(a)(1) and cited

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CertainTeed in support:

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The identified former and current employees directly worked on the loan between plaintiffs and Heartland which is the subject of this litigation [. . . .] Such individuals appear likely to have discoverable information relevant to disputed facts alleged with particularity. Fed. R. Civ. P. 26(a)(1)(A) 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. Certainteed Corp., 164 F.R.D. 685, 689 (D. Kan. 1996). Rule 26(a)(1)(A) contemplates disclosure of the personal address and telephone number of identified individuals. 1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).

18 Defendants had posed the following question in their Opposition: “One might ask, ‘Why did 19 Plaintiff file his motion?’”. (Doc. 54, 3:21). The answer is that the great weight of legal authority 20 recognizes Plaintiff’s need for and right to home contact information for Defendants’ witnesses. The 21 more germane question is, “why did Defendants refuse to comply with their obligations under Rule 22 26(a)(1)(A)?”, particularly given that Plaintiff had cited the foregoing legal authorities (including 23 Folsom) extensively to Defendants during meet and confers. (Lee Decl., ¶ 14). 24 25

III. PLAINTIFF OBJECTS TO THE DECLARATIONS CITED IN SUPPORT OF DEFENDANTS’ OPPOSITION

26 Defendants submit five declarations in support of their Opposition. Putting aside the fact that one 27 declarant, Dr. Abraham, is a named defendant in this action, Plaintiff objects that two of the declarations 28 PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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contain inadmissible testimony as follows:

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Declaration of Jennifer Abraham in Support of Defendants’ Motion for Protective Order (Doc. 59, 2:3).

Lacks foundation: declarant fails to provide any facts establishing that declarant has personal knowledge of these facts and/or is competent to testify concerning them.

“Dr. Jadwin is emotional, confrontational and arrogant”

Conclusory and invades the province of the jury: declarant fails to cite any supporting facts.

(Doc. 59, 2:4)

Lacks foundation: declarant fails to provide any facts establishing that she has personal knowledge of these facts and/or is competent to testify concerning them, including whether declarant was a percipient witness to such alleged assault.

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“he physically assaulted at least one other physician at Kern Medical Center.”

Hearsay: declarant presumably relied on written reports and second-hand accounts from others; her statement therefore constitutes inadmissible hearsay intended to prejudice the hearer.

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(Doc. 59, 2:5)

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“He tries to intimidate people he thinks are weaker than he is”

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Lacks foundation: declarant fails to provide any facts establishing that declarant has personal knowledge of these facts and/or is competent to testify concerning them. Conclusory and invades the province of the jury: declarant fails to cite any supporting facts.

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Speculative: declarant is attributing underlying motives and judgments to Plaintiff’s alleged conduct.

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Declaration of Jane Thornton in Support of Defendants’ Motion for Protective Order, (Doc. 63, 2:7-8)

Lacks foundation: declarant fails to provide any facts establishing that declarant has personal knowledge of these facts and/or is competent to testify concerning them.

“Further, having observed Dr. Jadwin’s behavior at Kern Medical Center, I know he is a person who can become emotional and confrontational [. . . .]”

Conclusory and invades the province of the jury: declarant fails to cite any supporting facts.

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The remaining declarations cite ordinary privacy concerns. However, FRCP Rule 26(a)(1)(A) expresses the legislature’s intent that Plaintiff’s right of access to evidence trump such ordinary privacy concerns. As the court stated in Bell v. Swift & Co., “[Rule 26] 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 PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS

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(5th Cir. 1960) (emphasis added). Here, Defendants have access to the home contact information and telephone numbers of the

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disclosed witnesses; Plaintiff does not. Under Rule 26, Defendants are required to share this

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information with Plaintiff. Defendants refused to do so, forcing Plaintiff to seek relief from this Court.

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Plaintiff requests that this Court order Defendants to disclose to Plaintiff any information that they know

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regarding the home contact information of each witness.

7 IV. CONCLUSION 8 For the foregoing reasons, Plaintiff respectfully requests that the Court (i) compel Defendants to 9 serve complete Amended Initial Disclosures which disclose the home addresses and phone numbers of 10 all witnesses identified therein pursuant to Rule 26(a)(1)(A), and (ii) order Defendants and/or their 11 counsel to pay Plaintiff $2,700 for attorney fees and costs reasonably incurred in bringing this motion, 12 pursuant to Rule 37(a), particularly given the personal attacks Defendants’ counsel has repeatedly 13 engaged in during the meet and confer process. 14 15 Respectfully submitted on October 26, 2007. 16 17 18 19 20

/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]

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/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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