66 Mtc Id - Reply - Leee Declaration
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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,
DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES; REQUEST FOR SANCTIONS
16 v. 17 18
COUNTY OF KERN; et al. Defendants.
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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:
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January 6, 2007 August 26, 2008
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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 David F. Jadwin, D.O.’s Motion to
PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
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Compel Initial Disclosures and Request for Sanctions. The facts stated herein are personally known to
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me and if called as a witness, I could and would competently testify to the truth of the facts set forth in
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this declaration.
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3.
On March 8, 2007, I sent an email to Ms. Karen Barnes, Deputy County Counsel for the
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County of Kern, relaying Dr. Jadwin’s request for access to his office in order to obtain materials needed
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to prepare for an upcoming lecture he was to give. A true and correct copy of the email is attached
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hereto as Exhibit 1, page 000002.
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4.
On March 13, 2007, Dr. Philip Dutt, Kern Medical Center (“KMC”) Acting Chair of
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Pathology, sent an email to me asking Dr. Jadwin to specify the materials. A true and correct copy of the
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email is attached hereto as Exhibit 1, page 000001 - 000002.
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5.
On March 21, 2007, I sent an email to Ms. Barnes explaining that Dr. Dutt’s suggestion
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was impractical and that Dr. Jadwin would need physical access to his computer. A true and correct
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copy of the email is attached hereto as Exhibit 1, page 000001.
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6.
On March 22, 2007, Ms. Barnes sent an email to me granting Dr. Jadwin’s request for
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access to his computer and asking for Dr. Jadwin to set a date and time to go to KMC. A true and correct
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copy of the email is attached hereto as Exhibit 1, page 000001.
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7.
On March 25, 2007, I sent an email to Ms. Barnes informing her that Dr. Jadwin
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preferred to go to KMC on March 28, 2007 at 2 p.m. A true and correct copy of the email is attached
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hereto as Exhibit 1, page 000003.
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8.
On March 27, 2007, Ms. Barnes sent an email to me confirming March 28, 2007 at 2 p.m.
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was fine. She asked that Dr. Jadwin report to the “medical staff office” in order to be escorted to the
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pathology department. A true and correct copy of the email is attached hereto as Exhibit 1, page 000003.
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9.
On March 29, 2007, I faxed a letter to Ms. Barnes detailing Dr. Dutt’s refusal to grant Dr.
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Jadwin access to his computer files, thus forcing him to drive over 100 miles back to his home
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essentially empty-handed. A true and correct copy of the email is attached hereto as Exhibit 1, page
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000004-000006.
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10.
On July 4, 2007, I sent an email to Mark Wasser, counsel for Defendants, stating that, in
light of Kern County’s decision not to renew his employment contract, Dr. Jadwin would like to retrieve PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
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all of his personal items from his office at KMC. A true and correct copy of the email is attached hereto
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as Exhibit 2, page 000001.
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11.
On August 15, 2007, I sent an email to Mr. Wasser asking for an explanation why it was
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taking Kern County upwards of six weeks to permit Dr. Jadwin to retrieve his personal items. A true and
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correct copy of the email is attached hereto as Exhibit 2, page 000002.
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12.
On September 10, 2007, I sent an email to Mr. Wasser asking for an explanation why it
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was taking Kern County upwards of 2 months to permit Dr. Jadwin to retrieve his personal items. A true
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and correct copy of the email is attached hereto as Exhibit 2, page 000003.
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13.
On September 29, 2007, I sent an email to Mr. Wasser asking for an explanation why it
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was taking Kern County nearly 3 months to permit Dr. Jadwin to retrieve his personal items. A true and
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correct copy of the email is attached hereto as Exhibit 2, page 000004.
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14.
On October 5, 2007, I faxed a meet and confer letter to Mr. Wasser regarding Defendants
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threatened motion for protective order, citing Folsom v. Heartland Bank, 1999 U.S. Dist. LEXIS 7814 (D.
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Kan. 1999) at length. A true and correct copy of the email is attached hereto as Exhibit 3, page 000001-
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000001-000003.
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15.
On October 9, 2007, more than 2 weeks after Plaintiff had already filed the Motion to
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Compel, Mr. Wasser faxed a letter to me proposing a stipulation that was similar to the stipulation which
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Plaintiff had been proposing for more than a month and which Defendants had refused to even negotiate.
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A true and correct copy of the email is attached hereto as Exhibit 3, page 000004-000008.
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16.
On October 10, 2007, Mr. Wasser sent an email to me asking whether I had had a chance
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to review his “letter and proposed stipulation”. A true and correct copy of the email is attached hereto as
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Exhibit 3, page 000009.
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17.
Later that day, I sent an email to Mr. Wasser proposing revisions to Defendants’
stipulation. A true and correct copy of the email is attached hereto as Exhibit 3, page 000010. 18.
Later that day, Mr. Wasser sent a reply email to me rejecting the proposed revisions. A
true and correct copy of the email is attached hereto as Exhibit 3, page 000010. 19.
On October 26, 2007, Mr. Wasser sent an email to me that was sarcastic and
unprofessional. A true and correct copy of the email is attached hereto as Exhibit 4, page 0000001. PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
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Executed on October 26, 2007, at Los Angeles, California.
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________________________________________ Eugene D. Lee
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
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EXHIBITS TO DECLARATION OF EUGENE D. LEE
EXHIBIT 1. Plaintiff’s counsel’s correspondence with Deputy County Counsel for Kern County regarding Dr. Jadwin’s request for access to computer files EXHIBIT 2. Plaintiff’s counsel’s correspondence with Defendant’s counsel regarding Dr. Jadwin’s request to retrieve his personal items from his office EXHIBIT 3. Defendants’ counsel’s correspondence with Plaintiff’s counsel proposing stipulation EXHIBIT 4. Defendants’ counsel’s email to Plaintiff’s counsel of October 26, 2007
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EXHIBIT 1. Plaintiff’s counsel’s correspondence with Deputy County Counsel for Kern County regarding Dr. Jadwin’s request for access to computer files
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Eugene D. Lee From: Sent: To: Subject:
Karen Barnes [[email protected]] Thursday, March 22, 2007 7:58 AM Eugene D. Lee RE: Jadwin: Access to office
Follow Up Flag: Flag Status:
Follow up Completed
I will need to know a date and time. >>> "Eugene D. Lee" <[email protected]> 03/21/07 3:44 PM >>> Karen: Dr. Jadwin has considered Dr. Dutt's suggested approach at great length, however, he's concluded it would be simpler and easier if he were simply permitted access to his office. It will be very time consuming, not to mention uncomfortable, for Dr. Jadwin to have to inventory the personal items he needs access to. Dr. Jadwin has a lot of personal information – including personal items predating his employment at KMC – stored on his computer in the office. As you know, Dr. Jadwin’s involuntary suspension was abruptly imposed with no prior warning, catching Dr. Jadwin unawares. During the nearly four months since then, Dr. Jadwin has not once been permitted access to his personal items at his office. At this time, Dr. Jadwin would greatly appreciate being permitted momentary access to his office to retrieve the personal items he needs from his office. Your prompt response is appreciated. 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 5 5 5 W e s t F i f t h S t . , S t e . 3 1 0 0 L o s A n g e l e s , C A 9 0 0 1 3 T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9 F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7 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.
-----Original Message----From: Philip Dutt, MD [mailto:[email protected]] Sent: Tuesday, March 13, 2007 4:30 PM To: Karen Barnes; Eugene D. Lee Subject: Re: Jadwin: Access to office Karen et al.: 1
Lee Decl 1 000001
Case 1:07-cv-00026-OWW-TAG Document 66CME Filed 10/26/2007 What materials does he need? Books? Handouts from courses? If Gene Page 8 of 30 Lee will give us specifics, maybe I can help without Dr. Jadwin having to come here. What is the title of the lecture or presentation? Thank You, Philip Dutt Pathologist Lab Kern Medical Center [email protected] * * * * * * * * * * CONFIDENTIALITY STATEMENT * * * * * * * * * * This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of the communication is strictly prohibited. If you received this communication in error, please notify us immediately by telephone and return the original message to us at the E-mail address above. Thank you
>>> "Eugene D. Lee" <[email protected]> 03/08/07 10:40 AM >>> Karen:
Dr. Jadwin asked me to relay to you his request for access to his office. He needs certain materials in order to prepare for a lecture he will be giving soon. Please let me know what KMC's required procedure are.
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 5 L T F E
5 o e a -
5 W e s s A n g l : ( 2 x : ( 2 m a i l :
l a w
t F i f t h S t . , S t e . e l e s , C A 9 0 0 1 3 1 3 ) 9 9 2 - 3 2 9 9 1 3 ) 5 9 6 - 0 4 8 7 [email protected]
W e b s i t e :
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www.LOEL.com
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Lee Decl 1 000002
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Eugene D. Lee From: Sent: To: Subject:
Karen Barnes [[email protected]] Tuesday, March 27, 2007 2:47 PM Eugene D. Lee RE: Jadwin: Access to office
Follow Up Flag: Flag Status:
Follow up Completed
Wednesday, March 28 at 2 p.m. is fine. Please have Dr. Jadwin report to the medical staff office. He should be familiar with its location. From there someone will escort him to the pathology department. >>> "Eugene D. Lee" <[email protected]> 03/25/07 11:34 PM >>> Karen: Dr. Jadwin would prefer Wednesday, March 28, 2007, 2:00 pm. Please confirm by reply email whether this date and time will be acceptable to you. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.
1
Lee Decl 1 000003
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 66
555
FACSIMILE
Los
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OFFICE
E U G ENE (213) 596-0487
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OF
Page 10 of 30 [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: 03/29/2007
Pages: 3 (including cover page) Re: Jadwin/County of Kern et al.
Comments:
Karen: Transmitted herewith is a letter regarding Dr. Jadwin's visit to his office at KMC yesterday and KMC's duty to preserve evidence. Please contact me if you have questions.
Lee Decl 1 000004
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
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Filed 10/26/2007
OFFICE
EUGENE (Z 1 3) 596-0487
555
FACSIMILE
LOS ANGELES, CALIFORNIA
WEST FIFTH
STREET,
OF
Page 11 of 30 [email protected] E-MAIL
LEE 3100
WWW.LOEL.COM
90013-1010
WEBSITE
SUITE
March 29,2007 VIA FACSIMILE & US MAIL Ms. Karen S. Barnes Deputy County Counsel Kern Medical Center 1830 Flower Street Bakersfield, CA 93305-4197 Re:
100011.001
Dr. Jadwin's Access to His Personal Materials at KMC Jadwin / County of Kern (USDC EDCA No. 1:07-cv-00026-0WW/TAG)
Dear Ms. Barnes: Following is brief summary of Dr. Jadwin's trip to KMC yesterday. Dr. Jadwin arrived at KMC at 2:00 p.m. on March 28,2006 and proceeded to go to the Medical Staff Office, as per your instructions. Steve, the KMC Head of Security escorted Dr. Jadwin from there to his office. The locks to Dr. Jadwin's office had apparently been changed during Dr. Jadwin's absence and Steve was therefore unable to open the door. Dr. Dutt then appeared and proceeded to unlock Dr. Jadwin's office. Upon entering his office Dr. Jadwin immediately noticed that his file cabinet and his desktop computer were both missing. Regarding the missing filing cabinet, Dr. Dutt stated that he had "needed it". When Dr. Jadwin said that the cabinet had been filled with his personal items, including his personal scrubs, Dr. Dutt immediately denied it. Dr. Jadwin mentioned that a Bluetooth transmitter for his personal wireless keyboard and mouse had been attached to the back ofthe now-missing desktop computer. Dr. Dutt stated that it was "easy to make a mistake" when personal and county property were mixed. Regarding the missing computer, Dr. Dutt explained that the computer had been taken for use with the microscopy camera. Dr. Jadwin mentioned to Dr. Dutt that the computer had contained the personal and other information which Dr. Jadwin required for his Grand Rounds talk at UCLA next month. Dr. Dutt then interrogated Dr. Jadwin, asking where he was giving the talk, what the subj ect ofthe talk was going to be, what he needed from his computer, etc. Dr. Dutt asserted that neither Dr. Jadwin nor I, his attorney, had been specific about what was needed. As such, he asserted it was "our fault" that the computer files were unavailable. Dr. Jadwin stressed that he was very short of time and needed the materials to prepare for the lecture. When Dr. Jadwin explained that the items he sought were things that he needed to sort
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through on the computer to find, Dr. Dutt replied that this was something "for the attorneys to sort out". Dr. Jadwin then collected several personal items in a box and turned over several items to Dr. Dutt that were County property. Steve escorted Dr. Jadwin off the campus. At this point, Dr. Jadwin has very little time left to prepare for his grand rounds lecture. Dr. Jadwin has irreplaceable case studies and images that he has collected through the years on his computer. He requires immediate access to these and other personal files. As I had previously explained to you in my email of March 21 : It will be very time consuming, not to mention uncomfortable, for Dr. Jadwin to have to inventory the personal items he needs access to. Dr. Jadwin has a lot of personal information - including personal items predating his employment at KMC - stored on his computer in the office.
Put another way, it does not seem reasonable to expect Dr. Jadwin to recall every single personal file contained on his computer and specifY which exact files he requires, not to mention their filenames and folder locations on his computer. This is why I had requested Dr. Jadwin be permitted to personally access his office and retrieve the files from his computer. Apparently, you had agreed in your reply email of March 22, when you requested I provide you with Dr. Jadwin's preferred date and time. Given the shortness of time, unless you have a different proposal in mind, I would request that ALL of Dr. Jadwin's files contained on his computer be mailed to him on CDs by overnight express mail. On a closing note, I would like to remind you that KMC is under a strict legal obligation to preserve and prevent spoliation of electronic evidence relating to Dr. Jadwin's lawsuit against the County of Kern et al. This includes the emails and files contained on Dr. Jadwin's computer. I am very disturbed to hear that Dr. Dutt has expropriated Dr. Jadwin's computer for other use and that, apparently, no measures have been taken to backup or protect any ofthe data contained thereon. Your prompt response is appreciated.
cc:
David F. Jadwin, DO
2 Lee Decl 1 000006
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EXHIBIT 2. Plaintiff’s counsel’s correspondence with Defendant’s counsel regarding Dr. Jadwin’s request to retrieve his personal items from his office
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Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Wednesday, July 04, 2007 12:20 AM '[email protected]' 'Joan Herrington' Dr. Jadwin: NPI issue/access to office
Follow Up Flag: Flag Status:
Follow up Completed
Mark: Please see the below email which I had sent you on April 5, 2007 regarding an HR issue of Dr. Jadwin’s. Dr. Jadwin still needs to know whether KMC has requested an NPI number for him. The request would have been handled by Medrium Billing. Dr. Jadwin would also like to retrieve personal items from his KMC office. Please advise what arrangements, if any, need to be made so that he may access his office. I look forward to hearing from you. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.
Lee Decl 2 000001
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Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Wednesday, August 15, 2007 7:25 PM '[email protected]' 'Joan Herrington' RE: Dr. Jadwin's personal property
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your email states that Dr. Jadwin’s letter was not welcome, but perhaps KMC is also willing to acknowledge that Dr. Jadwin has just cause to be frustrated by KMC’s continuing denial of his access to his personal things. Dr. Jadwin lost access to his office in December of last year when he was abruptly escorted from the campus. He requested access to retrieve his personal items on July 4, more than six weeks ago. He has yet to receive any explanation for the delay. It is welcome news to hear that KMC is now working on Dr. Jadwin’s request, but perhaps KMC can explain what exactly KMC is working on, what KMC is doing with his personal items and why this process has required upwards of six weeks. By all accounts, this should have been a very simple matter of arranging a mutually convenient date and time for Dr. Jadwin to come and retrieve his things. I look forward to your response. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.
Lee Decl 2 000002
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Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Monday, September 10, 2007 2:11 PM '[email protected]' 'Joan Herrington' RE: Jadwin's personal property
Follow Up Flag: Flag Status:
Follow up Completed
Mark, As stated before, given the previous loss of his personal things (of which he notified Dr. Dutt during his last visit), Dr. Jadwin would prefer to be on-site to monitor the inventorying and packing of his personal things by a mover of his choice. If the County had permitted him to do so, he would’ve been able to retrieve his items long ago. Instead, he has had to wait for over two months and still has not been permitted to retrieve his things. It should be noted that Dr. Jadwin lost access to his office in December of last year when he was abruptly escorted from the campus. He requested access to retrieve his personal items on July 4, more than two months ago. He has yet to receive any explanation for the delay. It is welcome news to hear that KMC is now working on Dr. Jadwin’s request, but perhaps KMC can explain what exactly KMC is working on, what KMC is doing with his personal items and why this process has required upwards of two months. By all accounts, this should have been a very simple matter of letting Dr. Jadwin come and retrieve his things. Since the County is not willing to simply let Dr. Jadwin retrieve his things and insists on shipping them to Dr. Jadwin, please have the items sent to David F. Jadwin, Columbia Healthcare Analytics, Inc., 1010 N Central Ave, Ste 480, Glendale, CA 91202 by a full-service moving company which will inventory, pack and transport the items directly to his office. Dr. Jadwin would appreciate receiving his items as soon as possible. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.
Lee Decl 2 000003
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Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Saturday, September 29, 2007 12:20 AM '[email protected]' 'Joan Herrington' Your Unprofessional Emails
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your email is, as usual, full of personal insults and accusations. This is unprofessional. Emails like this not only needlessly increase the attorney fees which Plaintiff will ultimately seek from Defendants, they also demonstrate to the Court why increased plaintiff attorney fees will be justified. I believe you are doing a disservice to your clients by sending emails like this as we proceed toward trial. I fail to see the constructive purpose behind your email. It is not a meet and confer communication. As you know, that process has already ended and we’ve already filed the motion. If it is an attempt to resolve a misunderstanding, it is not very effective. Insults and accusations rarely are. Your email is also deceptive and refuses to take responsibility for the County’s behavior. The only reason the issue of returning Dr. Jadwin’s property to him is “difficult” is because the County has chosen to make it so. The County could have done any number of things to resolve this issue. The first thing that comes to mind is that the County could have said “yes” when Dr. Jadwin asked for permission to come to the office and retrieve his things. But the County decided to retaliate against and bully Dr. Jadwin in every way possible, including withholding his personal things from him. Dr. Jadwin requested permission to retrieve his personal things on July 4, 2007. The County has taken three months to resolve what should have been a simple matter. Dr. Jadwin has repeatedly asked for an explanation for the delay. The County refused to give any. Now the County is telling Dr. Jadwin that it has unilaterally decided to inventory and deliver his items on October 1. Dr. Jadwin is traveling now and I’m having difficulty reaching him. I cannot confirm that October 1 will be a workable date on such unreasonably short notice. As for your accusation that I am to blame for the fact that the County has chosen to take three months to deal with a very simple issue, that’s totally false. All I have done is forward Dr. Jadwin’s requests to you, the County’s lawyer. I have had absolutely no contact with people at the County regarding this issue as you claim. I challenge you to provide proof to back up your accusations. Give me names and emails. Demonstrate that this isn’t just more of the County’s attempts to avoid responsibility for its conduct. Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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. 1
Lee Decl 2 000004
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EXHIBIT 3. Defendants’ counsel’s correspondence with Plaintiff’s counsel proposing stipulation
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 66
555
FACSIMILE
Los
Filed 10/26/2007
OF
OFFICE
E U G ENE (213) 596-0487
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Page 19 of 30 [email protected] EMAIL
L E E
WEST FIFTH STREET SUITE 3100 ANGELES, CALIFORNIA 9001 3-1 01 0
WWW.LOEL.COM WEBSITE
FAX To:
From: Law Office of Eugene Lee
Fax Number: 2135960487
Date: 10/05/2007
Pages: 3 (including cover page)
Re: Jadwin/KC: Protective Order Meet and Confer
Comments:
Mark, Transmitted herewith is Plaintiff's meet and confer letter regarding Defendants' threatened motion for protective order. Please call me at (213) 453-1781 if you wish to discuss this. Sincerely.
Lee Decl 3 000001
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Pg 2/3 10/05/07 11 :37 pm
Document 66
Filed 10/26/2007
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 20 of 30
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
October 5, 2007 VIA FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants' Motion for Protective Order Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mr. Wasser: I am in receipt of your faxed letter of October 3 ("Fax"). According to the Fax, the employee-declarants state: 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. In other words, the declarants have ordinary privacy concerns. FRCP 26(a)(I) expresses the legislature's will that parties be provided witnesses' home contact information notwithstanding privacy concerns. In Folsom v. Heartland Bank, the court ruled that defendants have a duty to disclose the home contact information for witnesses under FRCP 26(a)(I): 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)(l)(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). RnIe 26(a)(l)(A) contemplates disclosure of the personal address and telephone number of identified individuals. 1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).
Lee Decl 3 000002
To: 213-596-0487
From: Law Office of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 3 10/05/07 11 :37 pm
Document 66
Filed 10/26/2007
Page 21 of 30
Ordinary privacy concerns do not trump Plaintiff's right to the witnesses' home contact information as expressed by FRCP 26(a)(l). If you 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 1: "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 still awaits clarification on what Defendants consider the "normal rules". Plaintiff's letter of October 1 had also asked: Which of the witnesses listed on Defendants "Supplemental" Initial Disclosures are employees of Kern County as opposed to independent contractors [and how can Plaintiff be sure which are encompassed within Defendants' "representations"]? Plaintiff's proposed stipulation addresses this issue. The Fax further states "Like you, we would like to avoid the need for a protective order." Plaintiff would like to take this base of agreement one step further and revisit the idea of a written stipulation. A written stipulation would avoid the need for Defendants' motion for protective order while accomplishing the goals ofthe parties. 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.
cc:
Joan Herrington, Esq.
2 Lee Decl 3 000003
Oct 09 07 11 :49a
p.1
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
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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: Mark 'Vasser
Fax:
(213) 596-0487
Pages: 5 (including cover page) Date:
Phone: (213) 992-3299 Re:
Jadwin v. County of Kern
o Urgent
o
For Review
October 9, 2007
CC:
0 Please Comment
0 Please Reply
0 Please Recycle
• Comments:
Please see the attached letter and stipulation. Thank you.
Lee Decl 3 000004
Oct 09 07 11 :49a
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices of Document 66
Filed 10/26/2007
MARK A. WASSER
p.2
Page 23 of 30
400 Capitol Mall, Suite]] 00 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 mwasser@mark\lirasser.com ffiwasser@mark\lirasser.com
October 9, 2007
VIA FACSIMILE & 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 al. Dear Mr. Lee: Our opposition to your motion to compel and our motion for protective order with supporting declarations are finished and we were going to file them with the Coun yesterday. However, because yesterday was a court holiday we decided to "{ait and file them this morning. When I got to my office today, I found your letter that I received at 11 :23 p.m. last night. As I have written before, I am tired of corresponding Vvith you about the initial disclosures. ::-Jone of the letters either of us has written seem to have had any effect in bringing this matter closer to resolution. You write that the parties agree "in principle". Actually, I believe we disagree in principle. You want home addresses and we will not provide them. Nothing we have exchanged indicates agreement. Nevertheless, and against my better judgment, I will give it one more try. I have prepared the enclosed stipulation. If it meets with your approval, please sign it and return it. I will submit it to the Court for signature.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via first class mail) Joan Herrington (via first class mail)
Admitted to Practice in Californla and Nevada
Lee Decl 3 000005
Oct 09 07 11 :49a
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
1 2
3 4 5 6 7 8 9
10 II 12 13 14 15 16 17 18 19 20
Document 66
Filed 10/26/2007
Joan Herrington SB# 178988 BAY AREA EMPLOy:\1ENT LAW OFFICE 5032 Woodminister Lane Oakland, CA 94602 Phone: (510) 530-4078 Fax: (510) 530-4725 E-mail: [email protected] Of Counsef to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O. 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: mwasserrw.markwasser.com Bernard C. Barman, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected] Attorneys for Defendants County of Kem, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
UNITED STATES DISTRICT COURT
22
EASTER."'I DISTRICT OF CALIFORNIA DAVID F. JADWIN, D.O.
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Eugene D. Lee SB# 236812 LAW OFFICES OF EUGENE LEE 555West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 E-mail: eleerGlLOEL.com
21
23
p.3
Plaintiff, vs.
COUNTY OF KERN, et aI., Defendants.
~
Case No.: 1:07-cv-26
~ ~
STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL "lTNESSES LISTED IN THE INITIAL DISCLOSURES
~
Complaint Filed: January 5,2007 Trial Date: August 26, 2008
--------------) STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL WITNESSES LISTED IN THE PARTIES l"lITIAL DISCLOSURES Lee Decl 3 000006
Oct 09 07 11 :50a
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
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pA
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It is hereby stipulated by and between the parties here10 through their respective counsel 2
3
as follows:
1.
Defendants shall make all employees identified in Defendants' initial disclosures
4
available to Plaintiff for deposition or informal interview on reasonable notice by request to
5
Defendants' counsel.
6
2.
Defendants shall provide Plaintiff with updated address and contact information,
7
if known, for any employees who leave County employment during the pendency of this case on
8
request by Plaintiff s counsel to Defendants' counsel.
9 10 11
3.
Defendants' counsel shall accept service of all process and notices for all
employees.
4.
The home addresses and personal contact information for all County employees
12
shall be protected and shall not be disclosed to Plaintiff and Defendants shall forebear filing a
13
motion for a protective order to protect that information.
14 15
5.
Plaintiff shall take his motion to compel, presently set for hearing on November 5,
2007, off calendar.
16 17
Dated: October _ _, 2007
LAW OFFICE OF EUGENE LEE
18
By:
19
Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.
20 21
22
_
Dated: Octoher _ _, 2007
LAWOFFlCES OF MARKA. WASSER
23 24 25
26
By:
_ Mark A. Wasser Attorney for Defendants, County of Kern, et a1.
27
28 STIPULAnON RE: ADDRESS INFORMATION FOR POTENTlAL WITNESSES LISTED IN THE PARTIES lr.'ITlAL DISCLOSURES
2
Lee Decl 3 000007
Oct 09 07 11 :50a
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
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3
4
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ORDER
1
2
Filed 10/26/2007
p.5
The parties having stipulated'as hereinabove set forth and good cause appearing therefore; IT IS SO ORDERED.
5 Dated: October _ _, 2007 6
UNITED STATES DISTRICT COURT By:
_
7 8
The Honorable Oliver W, Wanger United States District Court Judge
9 10 11
12 13 14
15 16 17 18
19
20 21 22 23
24 25
26 27 28 STIPULATION RE: ADDRESS lNFORMATION FOR POTENTIAL WTThESSES LISTED IN THE PARTIES INITIAL DISCLOSURES
3
Lee Decl 3 000008
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Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Wednesday, October 10, 2007 10:10 AM Eugene Lee Good Morning.
Gene, Have you had a chance to review my letter and proposed stipulation from yesterday? Mark
Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: [email protected]
1
Lee Decl 3 000009
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Eugene D. Lee From: Sent: To: Cc: Subject:
Mark Wasser [[email protected]] Wednesday, October 10, 2007 5:39 PM [email protected] Assistant to Mark A. Wasser RE: Jadwin/KC: Protective Order Meet and Confer
Gene, Your proposed stipulation is not acceptable. I do not understand Paragraph 1 and will not agree to it. I wrote you several days ago that the Defendants will not agree to your 5-day proposal. Hence, Paragraph 2 is not acceptable. The FRCP provides for reasonable notice and that is adequate. As to Paragraph 3, if Plaintiff can serve by fax, so can the Defendants. This is not a one-sided affair. Paragraph 4 is okay. 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. I am leaving the office at 2:30 on Friday to out of town over the weekend. I wrote you earlier and said I did not respond to threats and am not making one to you now. I am simply informing you of the schedule. Save the editorial comments about “months of exhausting meet and confers” and “at long last”. Give me a break. I am still waiting for correspondence from you that does not have a soapbox in it. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, October 10, 2007 3:19 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Protective Order Meet and Confer Mark, I am in receipt of your faxed letter of this afternoon. After months of exhausting meet and confers and the filing of Plaintiff’s motion to compel, at long last Defendants have come to the table to begin negotiating a written stipulation with Plaintiff. This is a long overdue turn of events which Plaintiff welcomes. Perhaps Defendants’ motion for protective order will not need to be brought to the Court after all. Because the stipulation you propose was provided in faxed form only, I took the liberty of converting your proposed stipulation into an MS Word document and introducing Plaintiff’s changes to it. I suggest we exchange future drafts of the stipulation in MS Word format so as to facilitate revisions. The revised form is attached hereto. As you can see, Plaintiff is willing to forego disclosure of the home contact information of current Kern County employees subject to certain conditions. We look forward to your comments. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 1
Lee Decl 3 000010
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EXHIBIT 4. Defendants’ counsel’s email to Plaintiff’s counsel of October 26, 2007
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Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Friday, October 26, 2007 8:44 AM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Joint Statement
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your email is unprofessional as usual. The sarcasm is uncalled for. This wouldn’t have been an issue if you hadn’t written such a blatantly one-sided draft of the Joint Statement. You clearly aren’t acting in good faith and cannot be trusted. I look forward to seeing the exhibits, which are part of the Joint Statement. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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: Friday, October 26, 2007 7:25 AM To: [email protected] Subject: RE: Jadwin/KC: Joint Statement Gene, Fine. You have seen it. You wrote about half of it. I wrote the other half. It is attached to the motions already filed. But, I will copy it, again, so you can read it, again. Again. ☺ Mark 1
Lee Decl 4 000001
1 2 3 4
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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 EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S REPLY TO OPPOSITION TO 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 declaration in support of Plaintiff David F. Jadwin, D.O.’s Motion to
PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
1
Case 1:07-cv-00026-OWW-TAG
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1
Compel Initial Disclosures and Request for Sanctions. 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 March 8, 2007, I sent an email to Ms. Karen Barnes, Deputy County Counsel for the
5
County of Kern, relaying Dr. Jadwin’s request for access to his office in order to obtain materials needed
6
to prepare for an upcoming lecture he was to give. A true and correct copy of the email is attached
7
hereto as Exhibit 1, page 000002.
8
4.
On March 13, 2007, Dr. Philip Dutt, Kern Medical Center (“KMC”) Acting Chair of
9
Pathology, sent an email to me asking Dr. Jadwin to specify the materials. A true and correct copy of the
10
email is attached hereto as Exhibit 1, page 000001 - 000002.
11
5.
On March 21, 2007, I sent an email to Ms. Barnes explaining that Dr. Dutt’s suggestion
12
was impractical and that Dr. Jadwin would need physical access to his computer. A true and correct
13
copy of the email is attached hereto as Exhibit 1, page 000001.
14
6.
On March 22, 2007, Ms. Barnes sent an email to me granting Dr. Jadwin’s request for
15
access to his computer and asking for Dr. Jadwin to set a date and time to go to KMC. A true and correct
16
copy of the email is attached hereto as Exhibit 1, page 000001.
17
7.
On March 25, 2007, I sent an email to Ms. Barnes informing her that Dr. Jadwin
18
preferred to go to KMC on March 28, 2007 at 2 p.m. A true and correct copy of the email is attached
19
hereto as Exhibit 1, page 000003.
20
8.
On March 27, 2007, Ms. Barnes sent an email to me confirming March 28, 2007 at 2 p.m.
21
was fine. She asked that Dr. Jadwin report to the “medical staff office” in order to be escorted to the
22
pathology department. A true and correct copy of the email is attached hereto as Exhibit 1, page 000003.
23
9.
On March 29, 2007, I faxed a letter to Ms. Barnes detailing Dr. Dutt’s refusal to grant Dr.
24
Jadwin access to his computer files, thus forcing him to drive over 100 miles back to his home
25
essentially empty-handed. A true and correct copy of the email is attached hereto as Exhibit 1, page
26
000004-000006.
27 28
10.
On July 4, 2007, I sent an email to Mark Wasser, counsel for Defendants, stating that, in
light of Kern County’s decision not to renew his employment contract, Dr. Jadwin would like to retrieve PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
2
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1
all of his personal items from his office at KMC. A true and correct copy of the email is attached hereto
2
as Exhibit 2, page 000001.
3
11.
On August 15, 2007, I sent an email to Mr. Wasser asking for an explanation why it was
4
taking Kern County upwards of six weeks to permit Dr. Jadwin to retrieve his personal items. A true and
5
correct copy of the email is attached hereto as Exhibit 2, page 000002.
6
12.
On September 10, 2007, I sent an email to Mr. Wasser asking for an explanation why it
7
was taking Kern County upwards of 2 months to permit Dr. Jadwin to retrieve his personal items. A true
8
and correct copy of the email is attached hereto as Exhibit 2, page 000003.
9
13.
On September 29, 2007, I sent an email to Mr. Wasser asking for an explanation why it
10
was taking Kern County nearly 3 months to permit Dr. Jadwin to retrieve his personal items. A true and
11
correct copy of the email is attached hereto as Exhibit 2, page 000004.
12
14.
On October 5, 2007, I faxed a meet and confer letter to Mr. Wasser regarding Defendants
13
threatened motion for protective order, citing Folsom v. Heartland Bank, 1999 U.S. Dist. LEXIS 7814 (D.
14
Kan. 1999) at length. A true and correct copy of the email is attached hereto as Exhibit 3, page 000001-
15
000001-000003.
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15.
On October 9, 2007, more than 2 weeks after Plaintiff had already filed the Motion to
17
Compel, Mr. Wasser faxed a letter to me proposing a stipulation that was similar to the stipulation which
18
Plaintiff had been proposing for more than a month and which Defendants had refused to even negotiate.
19
A true and correct copy of the email is attached hereto as Exhibit 3, page 000004-000008.
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16.
On October 10, 2007, Mr. Wasser sent an email to me asking whether I had had a chance
21
to review his “letter and proposed stipulation”. A true and correct copy of the email is attached hereto as
22
Exhibit 3, page 000009.
23 24 25 26 27 28
17.
Later that day, I sent an email to Mr. Wasser proposing revisions to Defendants’
stipulation. A true and correct copy of the email is attached hereto as Exhibit 3, page 000010. 18.
Later that day, Mr. Wasser sent a reply email to me rejecting the proposed revisions. A
true and correct copy of the email is attached hereto as Exhibit 3, page 000010. 19.
On October 26, 2007, Mr. Wasser sent an email to me that was sarcastic and
unprofessional. A true and correct copy of the email is attached hereto as Exhibit 4, page 0000001. PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
3
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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
3 4
Executed on October 26, 2007, at Los Angeles, California.
5 6 7
________________________________________ Eugene D. Lee
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS
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EXHIBITS TO DECLARATION OF EUGENE D. LEE
EXHIBIT 1. Plaintiff’s counsel’s correspondence with Deputy County Counsel for Kern County regarding Dr. Jadwin’s request for access to computer files EXHIBIT 2. Plaintiff’s counsel’s correspondence with Defendant’s counsel regarding Dr. Jadwin’s request to retrieve his personal items from his office EXHIBIT 3. Defendants’ counsel’s correspondence with Plaintiff’s counsel proposing stipulation EXHIBIT 4. Defendants’ counsel’s email to Plaintiff’s counsel of October 26, 2007
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EXHIBIT 1. Plaintiff’s counsel’s correspondence with Deputy County Counsel for Kern County regarding Dr. Jadwin’s request for access to computer files
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Eugene D. Lee From: Sent: To: Subject:
Karen Barnes [[email protected]] Thursday, March 22, 2007 7:58 AM Eugene D. Lee RE: Jadwin: Access to office
Follow Up Flag: Flag Status:
Follow up Completed
I will need to know a date and time. >>> "Eugene D. Lee" <[email protected]> 03/21/07 3:44 PM >>> Karen: Dr. Jadwin has considered Dr. Dutt's suggested approach at great length, however, he's concluded it would be simpler and easier if he were simply permitted access to his office. It will be very time consuming, not to mention uncomfortable, for Dr. Jadwin to have to inventory the personal items he needs access to. Dr. Jadwin has a lot of personal information – including personal items predating his employment at KMC – stored on his computer in the office. As you know, Dr. Jadwin’s involuntary suspension was abruptly imposed with no prior warning, catching Dr. Jadwin unawares. During the nearly four months since then, Dr. Jadwin has not once been permitted access to his personal items at his office. At this time, Dr. Jadwin would greatly appreciate being permitted momentary access to his office to retrieve the personal items he needs from his office. Your prompt response is appreciated. 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 5 5 5 W e s t F i f t h S t . , S t e . 3 1 0 0 L o s A n g e l e s , C A 9 0 0 1 3 T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9 F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7 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.
-----Original Message----From: Philip Dutt, MD [mailto:[email protected]] Sent: Tuesday, March 13, 2007 4:30 PM To: Karen Barnes; Eugene D. Lee Subject: Re: Jadwin: Access to office Karen et al.: 1
Lee Decl 1 000001
Case 1:07-cv-00026-OWW-TAG Document 66CME Filed 10/26/2007 What materials does he need? Books? Handouts from courses? If Gene Page 8 of 30 Lee will give us specifics, maybe I can help without Dr. Jadwin having to come here. What is the title of the lecture or presentation? Thank You, Philip Dutt Pathologist Lab Kern Medical Center [email protected] * * * * * * * * * * CONFIDENTIALITY STATEMENT * * * * * * * * * * This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of the communication is strictly prohibited. If you received this communication in error, please notify us immediately by telephone and return the original message to us at the E-mail address above. Thank you
>>> "Eugene D. Lee" <[email protected]> 03/08/07 10:40 AM >>> Karen:
Dr. Jadwin asked me to relay to you his request for access to his office. He needs certain materials in order to prepare for a lecture he will be giving soon. Please let me know what KMC's required procedure are.
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 5 L T F E
5 o e a -
5 W e s s A n g l : ( 2 x : ( 2 m a i l :
l a w
t F i f t h S t . , S t e . e l e s , C A 9 0 0 1 3 1 3 ) 9 9 2 - 3 2 9 9 1 3 ) 5 9 6 - 0 4 8 7 [email protected]
W e b s i t e :
3 1 0 0
www.LOEL.com
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Lee Decl 1 000002
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 9 of 30
Eugene D. Lee From: Sent: To: Subject:
Karen Barnes [[email protected]] Tuesday, March 27, 2007 2:47 PM Eugene D. Lee RE: Jadwin: Access to office
Follow Up Flag: Flag Status:
Follow up Completed
Wednesday, March 28 at 2 p.m. is fine. Please have Dr. Jadwin report to the medical staff office. He should be familiar with its location. From there someone will escort him to the pathology department. >>> "Eugene D. Lee" <[email protected]> 03/25/07 11:34 PM >>> Karen: Dr. Jadwin would prefer Wednesday, March 28, 2007, 2:00 pm. Please confirm by reply email whether this date and time will be acceptable to you. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
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1
Lee Decl 1 000003
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 66
555
FACSIMILE
Los
Filed 10/26/2007
OFFICE
E U G ENE (213) 596-0487
Pg 1/ 3 03/29/07 4:09 pm
OF
Page 10 of 30 [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: 03/29/2007
Pages: 3 (including cover page) Re: Jadwin/County of Kern et al.
Comments:
Karen: Transmitted herewith is a letter regarding Dr. Jadwin's visit to his office at KMC yesterday and KMC's duty to preserve evidence. Please contact me if you have questions.
Lee Decl 1 000004
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Document 66
Pg 2/ 3 03/29/07 4:09 pm
Filed 10/26/2007
OFFICE
EUGENE (Z 1 3) 596-0487
555
FACSIMILE
LOS ANGELES, CALIFORNIA
WEST FIFTH
STREET,
OF
Page 11 of 30 [email protected] E-MAIL
LEE 3100
WWW.LOEL.COM
90013-1010
WEBSITE
SUITE
March 29,2007 VIA FACSIMILE & US MAIL Ms. Karen S. Barnes Deputy County Counsel Kern Medical Center 1830 Flower Street Bakersfield, CA 93305-4197 Re:
100011.001
Dr. Jadwin's Access to His Personal Materials at KMC Jadwin / County of Kern (USDC EDCA No. 1:07-cv-00026-0WW/TAG)
Dear Ms. Barnes: Following is brief summary of Dr. Jadwin's trip to KMC yesterday. Dr. Jadwin arrived at KMC at 2:00 p.m. on March 28,2006 and proceeded to go to the Medical Staff Office, as per your instructions. Steve, the KMC Head of Security escorted Dr. Jadwin from there to his office. The locks to Dr. Jadwin's office had apparently been changed during Dr. Jadwin's absence and Steve was therefore unable to open the door. Dr. Dutt then appeared and proceeded to unlock Dr. Jadwin's office. Upon entering his office Dr. Jadwin immediately noticed that his file cabinet and his desktop computer were both missing. Regarding the missing filing cabinet, Dr. Dutt stated that he had "needed it". When Dr. Jadwin said that the cabinet had been filled with his personal items, including his personal scrubs, Dr. Dutt immediately denied it. Dr. Jadwin mentioned that a Bluetooth transmitter for his personal wireless keyboard and mouse had been attached to the back ofthe now-missing desktop computer. Dr. Dutt stated that it was "easy to make a mistake" when personal and county property were mixed. Regarding the missing computer, Dr. Dutt explained that the computer had been taken for use with the microscopy camera. Dr. Jadwin mentioned to Dr. Dutt that the computer had contained the personal and other information which Dr. Jadwin required for his Grand Rounds talk at UCLA next month. Dr. Dutt then interrogated Dr. Jadwin, asking where he was giving the talk, what the subj ect ofthe talk was going to be, what he needed from his computer, etc. Dr. Dutt asserted that neither Dr. Jadwin nor I, his attorney, had been specific about what was needed. As such, he asserted it was "our fault" that the computer files were unavailable. Dr. Jadwin stressed that he was very short of time and needed the materials to prepare for the lecture. When Dr. Jadwin explained that the items he sought were things that he needed to sort
Lee Decl 1 000005
To: 213-596-0487
From: Law Office of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 3 03/29/07 4:09 pm
Document 66
Filed 10/26/2007
Page 12 of 30
through on the computer to find, Dr. Dutt replied that this was something "for the attorneys to sort out". Dr. Jadwin then collected several personal items in a box and turned over several items to Dr. Dutt that were County property. Steve escorted Dr. Jadwin off the campus. At this point, Dr. Jadwin has very little time left to prepare for his grand rounds lecture. Dr. Jadwin has irreplaceable case studies and images that he has collected through the years on his computer. He requires immediate access to these and other personal files. As I had previously explained to you in my email of March 21 : It will be very time consuming, not to mention uncomfortable, for Dr. Jadwin to have to inventory the personal items he needs access to. Dr. Jadwin has a lot of personal information - including personal items predating his employment at KMC - stored on his computer in the office.
Put another way, it does not seem reasonable to expect Dr. Jadwin to recall every single personal file contained on his computer and specifY which exact files he requires, not to mention their filenames and folder locations on his computer. This is why I had requested Dr. Jadwin be permitted to personally access his office and retrieve the files from his computer. Apparently, you had agreed in your reply email of March 22, when you requested I provide you with Dr. Jadwin's preferred date and time. Given the shortness of time, unless you have a different proposal in mind, I would request that ALL of Dr. Jadwin's files contained on his computer be mailed to him on CDs by overnight express mail. On a closing note, I would like to remind you that KMC is under a strict legal obligation to preserve and prevent spoliation of electronic evidence relating to Dr. Jadwin's lawsuit against the County of Kern et al. This includes the emails and files contained on Dr. Jadwin's computer. I am very disturbed to hear that Dr. Dutt has expropriated Dr. Jadwin's computer for other use and that, apparently, no measures have been taken to backup or protect any ofthe data contained thereon. Your prompt response is appreciated.
cc:
David F. Jadwin, DO
2 Lee Decl 1 000006
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 13 of 30
EXHIBIT 2. Plaintiff’s counsel’s correspondence with Defendant’s counsel regarding Dr. Jadwin’s request to retrieve his personal items from his office
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 14 of 30
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Wednesday, July 04, 2007 12:20 AM '[email protected]' 'Joan Herrington' Dr. Jadwin: NPI issue/access to office
Follow Up Flag: Flag Status:
Follow up Completed
Mark: Please see the below email which I had sent you on April 5, 2007 regarding an HR issue of Dr. Jadwin’s. Dr. Jadwin still needs to know whether KMC has requested an NPI number for him. The request would have been handled by Medrium Billing. Dr. Jadwin would also like to retrieve personal items from his KMC office. Please advise what arrangements, if any, need to be made so that he may access his office. I look forward to hearing from you. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
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Lee Decl 2 000001
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 15 of 30
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Wednesday, August 15, 2007 7:25 PM '[email protected]' 'Joan Herrington' RE: Dr. Jadwin's personal property
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your email states that Dr. Jadwin’s letter was not welcome, but perhaps KMC is also willing to acknowledge that Dr. Jadwin has just cause to be frustrated by KMC’s continuing denial of his access to his personal things. Dr. Jadwin lost access to his office in December of last year when he was abruptly escorted from the campus. He requested access to retrieve his personal items on July 4, more than six weeks ago. He has yet to receive any explanation for the delay. It is welcome news to hear that KMC is now working on Dr. Jadwin’s request, but perhaps KMC can explain what exactly KMC is working on, what KMC is doing with his personal items and why this process has required upwards of six weeks. By all accounts, this should have been a very simple matter of arranging a mutually convenient date and time for Dr. Jadwin to come and retrieve his things. I look forward to your response. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
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Lee Decl 2 000002
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 16 of 30
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Monday, September 10, 2007 2:11 PM '[email protected]' 'Joan Herrington' RE: Jadwin's personal property
Follow Up Flag: Flag Status:
Follow up Completed
Mark, As stated before, given the previous loss of his personal things (of which he notified Dr. Dutt during his last visit), Dr. Jadwin would prefer to be on-site to monitor the inventorying and packing of his personal things by a mover of his choice. If the County had permitted him to do so, he would’ve been able to retrieve his items long ago. Instead, he has had to wait for over two months and still has not been permitted to retrieve his things. It should be noted that Dr. Jadwin lost access to his office in December of last year when he was abruptly escorted from the campus. He requested access to retrieve his personal items on July 4, more than two months ago. He has yet to receive any explanation for the delay. It is welcome news to hear that KMC is now working on Dr. Jadwin’s request, but perhaps KMC can explain what exactly KMC is working on, what KMC is doing with his personal items and why this process has required upwards of two months. By all accounts, this should have been a very simple matter of letting Dr. Jadwin come and retrieve his things. Since the County is not willing to simply let Dr. Jadwin retrieve his things and insists on shipping them to Dr. Jadwin, please have the items sent to David F. Jadwin, Columbia Healthcare Analytics, Inc., 1010 N Central Ave, Ste 480, Glendale, CA 91202 by a full-service moving company which will inventory, pack and transport the items directly to his office. Dr. Jadwin would appreciate receiving his items as soon as possible. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.
Lee Decl 2 000003
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 17 of 30
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Saturday, September 29, 2007 12:20 AM '[email protected]' 'Joan Herrington' Your Unprofessional Emails
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your email is, as usual, full of personal insults and accusations. This is unprofessional. Emails like this not only needlessly increase the attorney fees which Plaintiff will ultimately seek from Defendants, they also demonstrate to the Court why increased plaintiff attorney fees will be justified. I believe you are doing a disservice to your clients by sending emails like this as we proceed toward trial. I fail to see the constructive purpose behind your email. It is not a meet and confer communication. As you know, that process has already ended and we’ve already filed the motion. If it is an attempt to resolve a misunderstanding, it is not very effective. Insults and accusations rarely are. Your email is also deceptive and refuses to take responsibility for the County’s behavior. The only reason the issue of returning Dr. Jadwin’s property to him is “difficult” is because the County has chosen to make it so. The County could have done any number of things to resolve this issue. The first thing that comes to mind is that the County could have said “yes” when Dr. Jadwin asked for permission to come to the office and retrieve his things. But the County decided to retaliate against and bully Dr. Jadwin in every way possible, including withholding his personal things from him. Dr. Jadwin requested permission to retrieve his personal things on July 4, 2007. The County has taken three months to resolve what should have been a simple matter. Dr. Jadwin has repeatedly asked for an explanation for the delay. The County refused to give any. Now the County is telling Dr. Jadwin that it has unilaterally decided to inventory and deliver his items on October 1. Dr. Jadwin is traveling now and I’m having difficulty reaching him. I cannot confirm that October 1 will be a workable date on such unreasonably short notice. As for your accusation that I am to blame for the fact that the County has chosen to take three months to deal with a very simple issue, that’s totally false. All I have done is forward Dr. Jadwin’s requests to you, the County’s lawyer. I have had absolutely no contact with people at the County regarding this issue as you claim. I challenge you to provide proof to back up your accusations. Give me names and emails. Demonstrate that this isn’t just more of the County’s attempts to avoid responsibility for its conduct. Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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. 1
Lee Decl 2 000004
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 18 of 30
EXHIBIT 3. Defendants’ counsel’s correspondence with Plaintiff’s counsel proposing stipulation
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 66
555
FACSIMILE
Los
Filed 10/26/2007
OF
OFFICE
E U G ENE (213) 596-0487
Pg 1/3 10/05/07 11 :37 pm
Page 19 of 30 [email protected] EMAIL
L E E
WEST FIFTH STREET SUITE 3100 ANGELES, CALIFORNIA 9001 3-1 01 0
WWW.LOEL.COM WEBSITE
FAX To:
From: Law Office of Eugene Lee
Fax Number: 2135960487
Date: 10/05/2007
Pages: 3 (including cover page)
Re: Jadwin/KC: Protective Order Meet and Confer
Comments:
Mark, Transmitted herewith is Plaintiff's meet and confer letter regarding Defendants' threatened motion for protective order. Please call me at (213) 453-1781 if you wish to discuss this. Sincerely.
Lee Decl 3 000001
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Pg 2/3 10/05/07 11 :37 pm
Document 66
Filed 10/26/2007
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 20 of 30
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
October 5, 2007 VIA FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants' Motion for Protective Order Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mr. Wasser: I am in receipt of your faxed letter of October 3 ("Fax"). According to the Fax, the employee-declarants state: 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. In other words, the declarants have ordinary privacy concerns. FRCP 26(a)(I) expresses the legislature's will that parties be provided witnesses' home contact information notwithstanding privacy concerns. In Folsom v. Heartland Bank, the court ruled that defendants have a duty to disclose the home contact information for witnesses under FRCP 26(a)(I): 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)(l)(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). RnIe 26(a)(l)(A) contemplates disclosure of the personal address and telephone number of identified individuals. 1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).
Lee Decl 3 000002
To: 213-596-0487
From: Law Office of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 3 10/05/07 11 :37 pm
Document 66
Filed 10/26/2007
Page 21 of 30
Ordinary privacy concerns do not trump Plaintiff's right to the witnesses' home contact information as expressed by FRCP 26(a)(l). If you 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 1: "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 still awaits clarification on what Defendants consider the "normal rules". Plaintiff's letter of October 1 had also asked: Which of the witnesses listed on Defendants "Supplemental" Initial Disclosures are employees of Kern County as opposed to independent contractors [and how can Plaintiff be sure which are encompassed within Defendants' "representations"]? Plaintiff's proposed stipulation addresses this issue. The Fax further states "Like you, we would like to avoid the need for a protective order." Plaintiff would like to take this base of agreement one step further and revisit the idea of a written stipulation. A written stipulation would avoid the need for Defendants' motion for protective order while accomplishing the goals ofthe parties. 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.
cc:
Joan Herrington, Esq.
2 Lee Decl 3 000003
Oct 09 07 11 :49a
p.1
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 22 of 30
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: Mark 'Vasser
Fax:
(213) 596-0487
Pages: 5 (including cover page) Date:
Phone: (213) 992-3299 Re:
Jadwin v. County of Kern
o Urgent
o
For Review
October 9, 2007
CC:
0 Please Comment
0 Please Reply
0 Please Recycle
• Comments:
Please see the attached letter and stipulation. Thank you.
Lee Decl 3 000004
Oct 09 07 11 :49a
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices of Document 66
Filed 10/26/2007
MARK A. WASSER
p.2
Page 23 of 30
400 Capitol Mall, Suite]] 00 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 mwasser@mark\lirasser.com ffiwasser@mark\lirasser.com
October 9, 2007
VIA FACSIMILE & 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 al. Dear Mr. Lee: Our opposition to your motion to compel and our motion for protective order with supporting declarations are finished and we were going to file them with the Coun yesterday. However, because yesterday was a court holiday we decided to "{ait and file them this morning. When I got to my office today, I found your letter that I received at 11 :23 p.m. last night. As I have written before, I am tired of corresponding Vvith you about the initial disclosures. ::-Jone of the letters either of us has written seem to have had any effect in bringing this matter closer to resolution. You write that the parties agree "in principle". Actually, I believe we disagree in principle. You want home addresses and we will not provide them. Nothing we have exchanged indicates agreement. Nevertheless, and against my better judgment, I will give it one more try. I have prepared the enclosed stipulation. If it meets with your approval, please sign it and return it. I will submit it to the Court for signature.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via first class mail) Joan Herrington (via first class mail)
Admitted to Practice in Californla and Nevada
Lee Decl 3 000005
Oct 09 07 11 :49a
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
1 2
3 4 5 6 7 8 9
10 II 12 13 14 15 16 17 18 19 20
Document 66
Filed 10/26/2007
Joan Herrington SB# 178988 BAY AREA EMPLOy:\1ENT LAW OFFICE 5032 Woodminister Lane Oakland, CA 94602 Phone: (510) 530-4078 Fax: (510) 530-4725 E-mail: [email protected] Of Counsef to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O. 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: mwasserrw.markwasser.com Bernard C. Barman, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected] Attorneys for Defendants County of Kem, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
UNITED STATES DISTRICT COURT
22
EASTER."'I DISTRICT OF CALIFORNIA DAVID F. JADWIN, D.O.
24 25 26 27 28
Page 24 of 30
Eugene D. Lee SB# 236812 LAW OFFICES OF EUGENE LEE 555West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 E-mail: eleerGlLOEL.com
21
23
p.3
Plaintiff, vs.
COUNTY OF KERN, et aI., Defendants.
~
Case No.: 1:07-cv-26
~ ~
STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL "lTNESSES LISTED IN THE INITIAL DISCLOSURES
~
Complaint Filed: January 5,2007 Trial Date: August 26, 2008
--------------) STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL WITNESSES LISTED IN THE PARTIES l"lITIAL DISCLOSURES Lee Decl 3 000006
Oct 09 07 11 :50a
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 66
Filed 10/26/2007
pA
Page 25 of 30
It is hereby stipulated by and between the parties here10 through their respective counsel 2
3
as follows:
1.
Defendants shall make all employees identified in Defendants' initial disclosures
4
available to Plaintiff for deposition or informal interview on reasonable notice by request to
5
Defendants' counsel.
6
2.
Defendants shall provide Plaintiff with updated address and contact information,
7
if known, for any employees who leave County employment during the pendency of this case on
8
request by Plaintiff s counsel to Defendants' counsel.
9 10 11
3.
Defendants' counsel shall accept service of all process and notices for all
employees.
4.
The home addresses and personal contact information for all County employees
12
shall be protected and shall not be disclosed to Plaintiff and Defendants shall forebear filing a
13
motion for a protective order to protect that information.
14 15
5.
Plaintiff shall take his motion to compel, presently set for hearing on November 5,
2007, off calendar.
16 17
Dated: October _ _, 2007
LAW OFFICE OF EUGENE LEE
18
By:
19
Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.
20 21
22
_
Dated: Octoher _ _, 2007
LAWOFFlCES OF MARKA. WASSER
23 24 25
26
By:
_ Mark A. Wasser Attorney for Defendants, County of Kern, et a1.
27
28 STIPULAnON RE: ADDRESS INFORMATION FOR POTENTlAL WITNESSES LISTED IN THE PARTIES lr.'ITlAL DISCLOSURES
2
Lee Decl 3 000007
Oct 09 07 11 :50a
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 66
3
4
Page 26 of 30
ORDER
1
2
Filed 10/26/2007
p.5
The parties having stipulated'as hereinabove set forth and good cause appearing therefore; IT IS SO ORDERED.
5 Dated: October _ _, 2007 6
UNITED STATES DISTRICT COURT By:
_
7 8
The Honorable Oliver W, Wanger United States District Court Judge
9 10 11
12 13 14
15 16 17 18
19
20 21 22 23
24 25
26 27 28 STIPULATION RE: ADDRESS lNFORMATION FOR POTENTIAL WTThESSES LISTED IN THE PARTIES INITIAL DISCLOSURES
3
Lee Decl 3 000008
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 27 of 30
Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Wednesday, October 10, 2007 10:10 AM Eugene Lee Good Morning.
Gene, Have you had a chance to review my letter and proposed stipulation from yesterday? Mark
Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: [email protected]
1
Lee Decl 3 000009
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 28 of 30
Eugene D. Lee From: Sent: To: Cc: Subject:
Mark Wasser [[email protected]] Wednesday, October 10, 2007 5:39 PM [email protected] Assistant to Mark A. Wasser RE: Jadwin/KC: Protective Order Meet and Confer
Gene, Your proposed stipulation is not acceptable. I do not understand Paragraph 1 and will not agree to it. I wrote you several days ago that the Defendants will not agree to your 5-day proposal. Hence, Paragraph 2 is not acceptable. The FRCP provides for reasonable notice and that is adequate. As to Paragraph 3, if Plaintiff can serve by fax, so can the Defendants. This is not a one-sided affair. Paragraph 4 is okay. 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. I am leaving the office at 2:30 on Friday to out of town over the weekend. I wrote you earlier and said I did not respond to threats and am not making one to you now. I am simply informing you of the schedule. Save the editorial comments about “months of exhausting meet and confers” and “at long last”. Give me a break. I am still waiting for correspondence from you that does not have a soapbox in it. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, October 10, 2007 3:19 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Protective Order Meet and Confer Mark, I am in receipt of your faxed letter of this afternoon. After months of exhausting meet and confers and the filing of Plaintiff’s motion to compel, at long last Defendants have come to the table to begin negotiating a written stipulation with Plaintiff. This is a long overdue turn of events which Plaintiff welcomes. Perhaps Defendants’ motion for protective order will not need to be brought to the Court after all. Because the stipulation you propose was provided in faxed form only, I took the liberty of converting your proposed stipulation into an MS Word document and introducing Plaintiff’s changes to it. I suggest we exchange future drafts of the stipulation in MS Word format so as to facilitate revisions. The revised form is attached hereto. As you can see, Plaintiff is willing to forego disclosure of the home contact information of current Kern County employees subject to certain conditions. We look forward to your comments. Sincerely, Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 1
Lee Decl 3 000010
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 29 of 30
EXHIBIT 4. Defendants’ counsel’s email to Plaintiff’s counsel of October 26, 2007
Case 1:07-cv-00026-OWW-TAG
Document 66
Filed 10/26/2007
Page 30 of 30
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Friday, October 26, 2007 8:44 AM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Joint Statement
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your email is unprofessional as usual. The sarcasm is uncalled for. This wouldn’t have been an issue if you hadn’t written such a blatantly one-sided draft of the Joint Statement. You clearly aren’t acting in good faith and cannot be trusted. I look forward to seeing the exhibits, which are part of the Joint Statement. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com
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From: Mark Wasser [mailto:[email protected]] Sent: Friday, October 26, 2007 7:25 AM To: [email protected] Subject: RE: Jadwin/KC: Joint Statement Gene, Fine. You have seen it. You wrote about half of it. I wrote the other half. It is attached to the motions already filed. But, I will copy it, again, so you can read it, again. Again. ☺ Mark 1
Lee Decl 4 000001
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