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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, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 DAVID F. JADWIN, D.O.,
Civil Action No. 1:07-cv-00026 OWW TAG
14 Plaintiff, 15 16
v. COUNTY OF KERN, et al.,
DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
Defendants.
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Date: January 14, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA
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Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008
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Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a joint statement re discovery disagreement.
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/// DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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I, Eugene D. Lee, declare as follows:
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1.
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I am counsel of record for Plaintiff. I have personal knowledge of the matters set forth
below and I could and would competently testify thereto if called as a witness in this matter. 2.
Pursuant to Local Rule 37-251, I attempted to secure the cooperation of Defendants’
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counsel, Mark Wasser, to prepare and execute a joint statement re discovery disagreement. I had
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numerous, extensive meet and confer discussions with Mr. Wasser by phone, email and fax. On Friday,
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January 4, 2008, at around 4 p.m., I sent Mr. Wasser a draft version of the Joint Statement re: Discovery
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Disagreement by fax, requesting his input. I explained in the cover letter that the draft was a work in
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progress and remained subject to change. I also sent to Mr. Wasser, via first-class mail, a copy of the
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exhibits which I intended to attach to the Joint Statement. Later that day, at around 11 p.m., I sent Mr.
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Wasser another draft of the Joint Statement by fax, again requesting his input.
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3.
On January 9, 2008, I approached Mr. Wasser at a deposition he was conducting of my
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client, Plaintiff David Jadwin, and asked him for his feedback on the Joint Statement. He responded that
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he intended to file a Declaration re Joint Statement stating that I had not delivered to him the exhibits to
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the Joint Statement for his review. I explained I had mailed the exhibits to him, per my fax of January 4,
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2008. I also offered to give him an electronic version of the exhibits right then and there. Mr. Wasser
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refused. The exhibits consist exclusively of faxes, letters and emails exchanged between myself and Mr.
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Wasser, all of which Mr. Wasser already has in his possession.
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4.
To date, I have not received any response from Mr. Wasser regarding the Joint Statement.
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5.
Attached hereto as Attachment A is a true and correct copy of the draft Joint Statement
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which I had prepared. 6.
Defendants refuse to produce documents in response to Plaintiff’s request for production
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set one unless and until Plaintiff reimburses Defendants for copy costs which Defendants incurred
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without once consulting with Plaintiff. Plaintiff had requested Defendants produce the documents for
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Plaintiff’s inspection and copying at its own cost, but Defendants’ refused, insisting on reimbursement
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for the copies which it had unilaterally made. Plaintiff has moved this Court to compel Defendants to
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produce the documents.
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7.
Defendants refuse to produce a privilege log unless and until Plaintiff reimburses
DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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Defendants for the above-referenced copy costs. Plaintiff contends that the copy costs have nothing to
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do with the privilege log and Defendants should have timely produced it.
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8.
Defendants invoke peer review privilege based upon state law. Plaintiff contends that
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state privilege law does not apply in federal question jurisdiction cases in federal court. Plaintiff also
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contends that there is no federal peer review privilege.
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9.
Defendants invoke numerous other objections and privileges which Plaintiff contends are
improper and/or baseless. 10.
Briefing regarding Plaintiff’s above-referenced contentions is contained in the draft Joint
Statement, attached hereto as Attachment A.
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I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.
13 Executed on: January 9, 2008 14 15 16
/s/ Eugene D. Lee
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EUGENE D. LEE Declarant
18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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ATTACHMENT A
28 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 10 11 12 13
Mark A. Wasser CA SB #06160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]
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Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected] Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.
20 UNITED STATES DISTRICT COURT 21 EASTERN DISTRICT OF CALIFORNIA 22 DAVID F. JADWIN, D.O.,
Civil Action No. 1:07-cv-00026 OWW TAG
23 Plaintiff, 24 25 26
v. COUNTY OF KERN, et al., Defendants.
JOINT STATEMENT RE: DISCOVERY DISAGREEMENT Date: January 14, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA
27 Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008
28 JOINT STATEMENT re: DISCOVERY DISPUTE
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This joint statement re: discovery disagreement is submitted pursuant to Local Rule 37-251(a) in
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advance of the January 14, 2008 hearing on Plaintiff’s motion to compel production and further
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responses to Plaintiff’s requests for production, set one (“RPD1”).
4 I.
DETAILS OF THE PARTIES’ DISCOVERY CONFERENCES
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The parties engaged in a prolonged “meet and confer” process that was conducted by letter,
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email and phone over the course of several months as shown in the attached Exhibits. Plaintiff David F.
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Jadwin (“Plaintiff”) served RPD1 on Defendant County of Kern (“Defendant”) on October 11, 2007.
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After Defendant served initial responses to Plaintiff’s RPD1 (“Response 1”) on November 20, 2007,
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Plaintiff met and conferred extensively with Defendant in an attempt to resolve discovery disputes. As
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Defendant has admitted, Plaintiff has tried to be “flexible” with Defendant in extending deadlines and
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narrowing request language. Plaintiff even gave technological advice on optical scanning, OCR
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functions, and cost-efficient purchase of Adobe Acrobat 8.0.
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On December 17, 2007, four days before the agreed-upon December 21, 2007 deadline to
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produce documents, Defendant suddenly demanded Plaintiff pay $10,000 (later reduced to $3,765) in
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reimbursement of Kern County’s copy costs. Defendant stated that if it was not in receipt of such
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payment, Defendant would not produce any documents at all. Defendant admits it had not previously
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raised this issue with Plaintiff.
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Plaintiff initially agreed to pay under protest, but after researching case law and upon being
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further informed by Defendant for the first time that “Many of the documents you have requested have,
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at most, a very tenuous connection to any issues in the case”, Plaintiff hesitated to pay such a substantial
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and possibly wasteful sum for possibly unnecessary copies which Defendant had unilaterally made
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without consulting Plaintiff. Unlike Defendant Kern County, Plaintiff is an individual and cannot easily
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bear such a cost.
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On December 19, 2007, Defendant served supplemental responses (“Response 2”). As compared
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to Response 1, Response 2 raised new objections, contained overbroad objections, contained new
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refusals to produce, etc. Despite extensive meet and confers, Response 2 represented a step backward
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from Response 1. JOINT STATEMENT re: DISCOVERY DISPUTE
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In lieu of paying Defendant’s demanded sum of $3,765 for copies, Plaintiff requested Defendant
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produce originals for inspection and copying at Plaintiff’s office, as had been requested in Plaintiff’s
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RPD1. Defendants refused and, to date, continue to withhold documents and the associated privilege
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log.
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Following is a brief chronology of relevant events:
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October 11, 2007
Plaintiff serves requests for production, set one, on Defendant, requesting written responses by November 12, 2007 and production by November 16, 2007.
October 31, 2007
Defendant requests extension of deadlines to December 21, 2007.
November 1, 2007
Parties meet and confer by phone.
November 7, 2007
Parties meet and confer by phone. Plaintiff agrees to permit both responses and production in three separate installments due November 16, December 7 and December 21. Defendant requests stipulation to delay pre-trial and trial deadlines by three months to accommodate Defendant’s document processing requirements. Plaintiff later agrees.
November 14, 2007
Parties meet and confer by phone. Defendant confirms production/response deadlines.
November 15, 2007
Plaintiff’s counsel, Eugene Lee, speaks by phone with Defendant’s counsel, Mark Wasser, and his assistant and guides them through the OCR and redaction functions of Adobe Acrobat 8.0. In an email, Mr. Lee advises Mr. Wasser on cost-efficient methods to purchase Acrobat.
November 20, 2007
Defendant serves written responses (“Response 1”) indicating production dates of November 20, December 7 and December 21, and the first document production installment (“Production 1”). Production 1 contains up to 8 duplicate sets of the same documents. Parties meet and confer by emails.
November 21, 2007
Parties meet and confer by phone regarding Response 1. Defendant agrees that Defendant’s objection “documents protected from disclosure by state or federal law” is overbroad and intends to revise its responses.
November 26, 2007
Parties meet and confer by phone regarding Response 1. Defendant clarifies that its objection, “documents protected from disclosure by state or federal law”, refers specifically to HIPAA and peer review privilege. Defendant agrees to revise Response 1 accordingly by November 30.
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At Defendant’s request, Plaintiff narrows Request 33 by revising it to read: JOINT STATEMENT re: DISCOVERY DISPUTE
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“Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or present employees against YOU for defamation, retaliation, disability discrimination, failure to accommodate, and/or failure to engage in an interactive process RELATING TO Kern Medical Center and/or its officers or staff, including but not limited to any informal or internal complaints, grievances or charges to any state or federal agency, and complaints filed in any state or federal court from October 24, 2000 to date.” (redlined to show revisions)
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November 30, 2007
Parties meet and confer by phone regarding Response 1.
December 3, 2007
Parties meet and confer by phone. Defendant reiterates production deadlines of December 7 and December 21. Defendant states that it will serve privilege log on December 6.
December 7, 2007
Defendant fails to produce second document installment (“Production 2”) or privilege log.
December 13, 2007
Defendant serves incomplete privilege log relating only to Production 1 (“Log 1”).
December 14, 2007
Parties meet and confer by email regarding Response 1. Defendant makes no mention of reimbursement costs and states “I expect to produce the remaining documents before December 21”.
December 17, 2007
Parties meet and confer by phone and emails. Defendant raises the issue of copy reimbursement costs for the first time and demands Plaintiff pay $10,000 in actual and “estimated” copy costs, otherwise, Defendant will not produce Production 2.
December 19, 2007
Defendant sends fax to Plaintiff requesting Plaintiff’s payment of $3,765 in reimbursement of Defendant’s copy costs. Defendant admits “You are correct that we did not raise the issue of costs earlier.”
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Defendant serves supplemental responses (“Response 2”). Response 2 is deficient in that it:
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raises new objections which were waived in Response 1; fails to narrow Defendant’s overly-broad objection “documents protected from disclosure by state or federal law” as had been agreed on several occasions; adds several new refusals to produce documents, despite agreeing to such production in meet and confer; refuses to produce documents based on privilege instead of producing redacted versions; refuses to produce in response to Request 35 in disregard of Plaintiff’s narrowing of Request 35 that Defendant had requested and agreed to. conditions all production on receipt of reimbursement
JOINT STATEMENT re: DISCOVERY DISPUTE
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of its estimated copy costs of $3,765.
2
December 20, 2007
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Plaintiff sends fax to Defendant refusing to pay the demanded reimbursement and requesting Defendant produce original documents for Plaintiff’s inspection and copying by December 21. Defendant tells Plaintiff that it is suspending production of documents.
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December 21, 2007
Defendant fails to produce second document installment or privilege log (“Log 2”).
December 28, 2007
Plaintiff and Defendant exchange meet and confer emails regarding the cost reimbursement issue.
December 31, 2007
Plaintiff and Defendant meet and confer by phone and emails regarding the cost reimbursement issue and the numerous deficiencies in Response 2.
January 2, 2008
Plaintiff and Defendant meet and confer by emails regarding the cost reimbursement issue. Defendant admits to misremembering events.
January 4, 2008
Plaintiff and Defendant meet and confer by emails regarding the cost reimbursement issue. Defendants states they have identified case citations which definitively establish the correctness of their position. Defendants ask Plaintiff to share case citations in support of Plaintiff’s position, but when asked to do the same, they refuse.
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Document 83
II.
A STATEMENT OF THE NATURE OF THE CASE AND FACTUAL DISPUTES
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Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center (“KMC”) and senior pathologist from October 24, 2000 to October 4, 2007, filed a Complaint with this Court on January 6, 2007. Plaintiff contends that various defendants retaliated against and defamed him for reporting his concerns about patient care quality issues at KMC. As a result, Plaintiff was forced to take medical and recuperative leave for disabling clinical depression in early 2006. While Plaintiff was on leave, Defendants demoted him in June 2006 to a staff pathologist for “unavailability” and refused to reinstate him upon his return to work on October 4, 2006. On December 7, 2006, he was placed on involuntary administrative leave and restricted to his home during working hours until May 1, 2007. Around May 1, 2007, Defendant informed Plaintiff of its decision to either “buy out” the remaining term of his contract (due to expire on October 4, 2007) or simply let the contract “run out”. On October 4, JOINT STATEMENT re: DISCOVERY DISPUTE
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2007, Defendants did not renew Plaintiff’s employment contract.
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Plaintiff’s Complaint alleges whistleblower retaliation, disability discrimination, medical leave
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interference and retaliation, defamation and deprivation of compensation and professional fees without
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procedural due process. Critical to Plaintiff’s case is evidence that Plaintiff was treated differently from
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other similarly situated individuals at KMC, i.e., so-called “comparators”, as a result of discrimination
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and retaliation by Defendants.
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Defendants contend that the dispute arose out of Plaintiff’s tenure as a pathologist at Kern
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Medical Center. Plaintiff’s relationship with other members of the medical staff deteriorated to the point
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of intimidation, hostility and antagonism. Defendants contend, to the extent that any hostile work
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environment existed, it was caused by Plaintiff.
11 III.
THE CONTENTION OF EACH PARTY AS TO EACH CONTESTED ISSUE
A.
Defendant’s Refusal to Produce Documents or Privilege Log until Plaintiff Reimburses Defendant for Copy Costs
12 13 14 1.
Plaintiff’s Position
15 a. The Privilege Log 16 During a meet and confer call of December 31, 2007, Defendants stated that they refused to 17 produce the final privilege log, Log 2, until the cost reimbursement issue regarding production of 18 Production 2 has been resolved. Later that day, Plaintiff sent an email to Defendants stating: “Contrary 19 to what you said on the call, production of the privilege log should not be made contingent on actual 20 production of the documents.” Presumably Defendants are not asking Plaintiff to reimburse it for copy 21 costs associated with Log 2. As such, Defendants should have provided Log 2 to Plaintiff on December 22 21, 2007. Instead, nearly three months after Plaintiff had first served the requests for production set one, 23 they continue to withhold it. 24 The Court should deem all privileges asserted by Defendants waived. The Court has discretion to 25 reject a claim of privilege where an insufficient privilege log is provided. United States v. Construction 26 Products Research, Inc. (2nd Cir. 1996) 73 F3d 464, 473; United States v. British American Tobacco 27 (Investments) Ltd. (DC Cir. 2004) 387 F3d 884, 890–891. 28 JOINT STATEMENT re: DISCOVERY DISPUTE
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b. Defendants Rely upon a Misreading of Caselaw
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Defendants have cited “page 11-236, section 11:1937 of the Schwarzer, Tashima and Wagstaffe
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handbook on federal practice” in meet and confers for the proposition that the requesting party must pay
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the producing party’s copy costs. Section 11:1937 reads:
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Ordinarily, the producing party bears the costs of reviewing and gathering documents while the requesting party pays for the costs of the copies only. [Continental Ill. Nat'l Bank & Trust Co. of Chicago v. Caton (D KS 1991) 136 FRD 682, 690; Bills v. Kennecott Corp. (D UT 1985) 108 FRD 459, 462] CAFEDCIVP CH. 11(IV)-C.
8
However, Defendants misconstrue this proposition. The proposition is not that requesting party must pay
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any and all copy costs incurred in whatsoever manner, no matter how exorbitant or wasteful, by any
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party, with or without prior consultation with the requesting party. This would give responding parties
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wide discretion to financially harass, ambush and drain the resources of the requesting party, particularly
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where, as here, the requesting party is an individual. That is exactly what Defendants have done by
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suddenly demanding Plaintiff Dr. Jadwin pay $10,000 in copy costs just four days before the final
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production deadline.
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The proposition correctly stated is that the responding party must produce documents to the
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requesting party, bearing its own costs of gathering the documents, while the requesting party must be
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permitted to inspect the documents and copy documents of Plaintiff’s choosing, bearing its own costs of
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copying and inspection. The Washington District Court articulates this exact proposition (citing both
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Continental and Kennecott) in Fryer v. Brown, 2005 U.S. Dist. LEXIS 20830 (D. Wash. 2005):
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Any party may serve on any other party a request to produce and permit the party making the request to inspect and copy any designated documents. Fed. R. Civ. P. 34(a). Ordinarily, the producing party bears the costs of reviewing and gathering documents while the requesting party pays for the costs and copies only. Continental Ill. Nat'l Bank & Trust Co. Of Chicago v. Caton, 136 FRD 682, 690 (D KS 1991); Bills v. Kennecott Corp., 108 FRD 459, 462 (D UT 1985). [emphasis added].
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Plaintiff’s requests for production set one had requested Defendants “produce and permit 24 inspection and copying of the documents described below [at the office of plaintiff's counsel]”. On 25 December 20, 2007, faced with Defendants’ sudden last-minute demand for payment of $10,000 in copy 26 costs (later reduced by Defendants to ~$3,000), Plaintiff had no choice but to reiterate its original 27 request that Defendants produce the original documents for inspection and copying by Plaintiff at its 28 JOINT STATEMENT re: DISCOVERY DISPUTE
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own cost. Defendants refused to comply, citing objections to the manner and place of production despite
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having failed to raise, and thereby having waived, those objections in Response 1. Instead, Defendants
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continued to insist Plaintiff pay Defendants for copy costs associated with a massive volume of
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documents which in Defendants’ own words “have, at most, a very tenuous connection to any issues in
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the case”, copy costs which Defendants unilaterally incurred without consulting or meeting and
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conferring with Plaintiff beforehand.
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c. Defendants Had a Duty to Meet and Confer with Plaintiff on Copy Costs
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Even if the Court determines Defendants are entitled to be reimbursed for their copy costs,
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Defendants are under a duty to meet and confer with Plaintiff regarding such costs. In Rodger v.
10
Electronic Data Sys. Corp., defendant EDS, a large multi-national corporation, argued that plaintiffs’
11
requests for documents relating to multiple reductions in force over a number of years across 26
12
countries would impose a “mind-boggling burden” on defendant. 155 F.R.D. 537, 539 (D.N.C. 1994).
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The Rodger court found it appropriate to tax the costs of production to the plaintiff given the undue
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burden imposed on the defendant. However, the court further held that the parties should meet and
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confer so as to minimize those costs for the plaintiff:
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Defendant's counsel are directed to confer, after consultation with their client, to seek to minimize these costs by: (1) restricting the scope of materials as much as possible, and (2) using the lowest level employees who have the knowledge and skill required to retrieve the documents. Counsel shall attempt to agree on these expenses and only failing that, file a motion for taxation of these expenses with the court.”. Id. at 542.
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In meet and confers occurring over more than two months, Defendants repeatedly committed to
16 17
20
producing Production 2 by December 21, 2007. It was only on December 17, just four days before the
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final production deadline, that Defendants raised the issue of copy costs with Plaintiff. As Defendants
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admit, this was the first time Defendants had done so. Defendants demanded Plaintiff pay Defendants
23
$10,000 or Defendants would not produce Production 2 by December 21, as had been promised.
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However, on August 6, 2007, Plaintiff and Defendants had exchanged Rule 26 Initial Disclosures
25
without either party making any mention of copy costs. Plaintiff’s Initial Disclosures were more
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voluminous than Defendants’ Initial Disclosures. On November 20, 2007, Defendants served Production
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1 on Plaintiff in the form of electronic files stored on CDs, again without a single mention of copy costs.
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Production 1 comprised over 12,000 pages of documents (much of it useless chaff). JOINT STATEMENT re: DISCOVERY DISPUTE
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1
By failing to consult with Plaintiff as to cost, Defendants acted on their own initiative in
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incurring processing costs of roughly 14 cents per page. Had Defendants informed Plaintiff earlier of the
3
substantial costs involved, Plaintiff would definitely have worked with Defendants to narrow requests
4
and/or suggest other less costly alternatives. As Defendants admit, Plaintiff had already narrowed
5
numerous production requests in its meet and confers with Defendants in order to expedite Defendants’
6
production.
7 1. Defendant’s Position 8 [INSERT HERE] 9 10 11
B.
Defendant’s Objection that Documents are Protected from Disclosure by State or Federal law
12 1.
Plaintiff’s Position
13 In Response 2, Defendants’ responses to Plaintiff requests nos. 12-15, 17, 23-30, 32-34, 36-43, 14 51, 54-58, 63, 65-67, 70-73, and 78 contain the following objection: “Defendants also object to this 15 request to the extent it requests information protected from disclosure by state or federal law . . . .”. On 16 November 20, 2007, Plaintiff sent an email to Defendants explaining why this objection, which was also 17 contained in Response 1, was overbroad and therefore defective. On a November 21, 2007 call, 18 Defendants admitted it was overbroad. Plaintiff wrote in followup to the call: 19 20 21
As you know, in that email, we had explained that defendants' oft-used objection, "documents protected from disclosure by state or federal law", does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you indicated that defendants would re-state this objection.
22 Yet, in Response 2, the objection remains just as overbroad as it had been in Response 1. 23 The objection does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) 24 fails to explain how the objection relates to the documents demanded. In Obiajulu v City of Rochester, 25 Dep't of Law (1996, WD NY) 166 FRD 293, the defendant City of Rochester had objected that each 26 request “seeks information and material protected by the attorney client, work product doctrine or other 27 privilege”. The court held that “Such pat, generic, non-specific objections, intoning the same boilerplate 28 JOINT STATEMENT re: DISCOVERY DISPUTE
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language, are inconsistent with both the letter and the spirit of the Federal Rules of Civil Procedure.”
2
The court further held:
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An objection to a document request must clearly set forth the specifics of the objection and how that objection relates to the documents being demanded. Roesberg v. JohnsManville Corp., 85 F.R.D. 292 (E.D. Pa. 1980). The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the discovery rules found in the Federal Rules of Civil Procedure.
6 Other federal courts have reached similar holdings. Pulsecard, Inc. v Discover Card Servs. 7 (1996, DC Kan) 168 FRD 295 (Although FRCP 34, which governs production of documents and things, 8 does not provide any language with respect to specificity and waiver of objections, which FRCP 33, 9 which governs interrogatories, does, no reason exists to distinguish between interrogatories and requests 10 for production as to these matters); Rivera v Kmart Corp. (2000, DC Puerto Rico) 190 FRD 298, 45 FR 11 Serv 3d 1349 (asserting general objection to request for production of documents does not comply with 12 FRCP 34(b)). 13 In Hall v Sullivan, the court held that Rule 34 requires objections to document production 14 requests be stated with particularity in a timely answer, and that failure to do so may constitute waiver of 15 grounds not properly raised, including privilege or work product immunity, unless the court excuses this 16 failure for good cause shown. (2005, DC Md) 231 FRD 468. Defendants’ bad faith overbroad objection, 17 which Defendants themselves admitted is overbroad and had agreed to narrow in meet and confer, 18 should be deemed waived in all responses. 19 20
2.
Defendant’s Position
21
[INSERT HERE]
22 C.
Defendant’s Objection based on State-Law Peer Review Privilege
23 1.
Plaintiff’s Position
24 a. State Privilege Law Does Not Apply 25 In Response 2, Defendants invoke the “peer-review privilege” in response to Plaintiff’s requests 26 no. 12-15, 17, 26, 28, 32, 36-43, 45, 51, 54-58, 60, 61, 63, 65-74 and 78. Defendants state in boilerplate 27 fashion: “Defendants object to this request to the extent it requests . . . documents protected from 28 JOINT STATEMENT re: DISCOVERY DISPUTE
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disclosure by state or federal law, including . . . the peer-review privilege.”
2
As Plaintiff has repeatedly made clear to Defendants in meet and confers, state privilege law
3
does not apply to federal question jurisdiction cases in federal court. This principle is well-settled in
4
federal law. In the oft-cited case, Wm. T. Thompson, Co. v. Gen. Nutrition Corp., Inc., the court held:
7
Thus, under Rule 501, it is clear that federal claims asserted in a federal question case are governed by federal common law. Further, it is been held that where state law claims overlap with federal claims in a federal question case such that particular documents are relevant to both the state and the federal claims, federal privilege law also applies. 671 F.2d 100, 104 (3rd Cir.1982).
8
The 9th Circuit cited Thompson Co. v. Gen. Nutrition Corp. with approval in Agster v. Maricopa County,
9
holding that “Where there are federal question claims and pendent state law claims present, the federal
10
law of privilege applies.” 422 F.3d 836, 839-840 (9th Cir. 2005) (citations omitted).
5 6
11
In the instant case, plaintiff is bringing federal question claims under FMLA, 42 USC 1983
12
(procedural due process), and FLSA. These federal law claims involve events spanning the entire period
13
of Plaintiff’s employment with Defendant County of Kern. Defendants were on notice of Plaintiff’s
14
depression disability as early as 2000. Plaintiff began raising patient care quality concerns as early as
15
2001 and the retaliation he suffered was almost immediate. As a result of the ongoing hostile work
16
environment, Plaintiff required FMLA medical leave in 2006 in response to which the Defendants
17
demoted him, placed him on 5-months involuntary administrative leave and restriction to his home, and
18
did not renew his contract. Defendants explain their harsh conduct as being in response to Plaintiff’s
19
“arrogance”. At a minimum, all these events establish the willful and malicious nature of the individual
20
Defendants’ conduct in violation of federal laws.
21
A single court has held that, where documents sought are relevant only to pendant state law
22
claims and not to the federal claims in a diversity jurisdiction case, state privilege law applies: Platypus
23
Wear, Inc. v. K.D. Co., Inc., 905 F. Supp. 808 (S.D. Cal. 1995). However, that case is distinguishable
24
due to its extreme circumstances. There, plaintiff had brought exclusively state claims in federal court
25
under diversity, not federal question, jurisdiction. The defendant then brought counter-claims which
26
included a single federal counter-claim. On the slim basis of the defendant’s lone federal counter-
27
claim, plaintiff argued that federal privilege law should apply to its state law claims. The court held in
28
those extreme circumstances that state privilege law should apply to plaintiff’s state law claims. Id. at JOINT STATEMENT re: DISCOVERY DISPUTE
11
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
Page 16 of 207
812. The distinction between diversity and federal question jurisdiction should not be underestimated.
3
In federal question cases, the state's interest is that of a litigant, and not, as in diversity cases, that of a
4
sovereign whose law is being applied in a foreign forum. Reference to federal law in this case is
5
necessary on the issue of the existence and scope of the claimed privilege. Heathman v. United States
6
District Court, 503 F.2d at 1034; Fears v. Burris Manufacturing Co., 436 F.2d 1357, 1360-1361 (5th
7
Cir. 1971); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387-389 (5th Cir. 1970); Colton v. United
8
States, 306 F.2d 633, 636 (2d Cir. 1962).
9
Even if the Court were inclined to find that state privilege law should apply to Plaintiff’s pendent
10
state law claims, it should be noted that the task of discerning which evidence goes solely to Plaintiff’s
11
state law claims vis-à-vis federal law claims will be impracticable and will engender unending disputes
12
between the parties that will ultimately require excessive judicial resources to sort out.
13 14
Under the well-settled holding in Thompson, Co. v. Gen. Nutrition Corp, the Court should hold that state privilege law does not apply.
15
b. There Is No Federal Peer Review Privilege
16
There is no federal peer review privilege, nor has a single case in the 9th Circuit yet recognized
17
one. In Agster v. Maricopa County, the 9th Circuit refused to recognize a federal peer review privilege:
18
No case in this circuit has recognized the [peer review] privilege. . . . We are constrained by two considerations, one general and the other particular to this case. We must be "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself." . . . . Congress has twice had occasion and opportunity to consider the [peer review] privilege and not granted it either explicitly or by implication, there exists a general objection to our doing so. 422 F.3d 836, 839-840 (9th Cir. 2005) (citations omitted).
19 20 21 22
The Defendants oft-invoked peer review privilege is baseless. The Court should order 23 Defendants to produce all documents requested. 24 25 2.
Defendant’s Position
26 [INSERT HERE] 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE
12
Case 1:07-cv-00026-OWW-TAG
1 2 3
D.
Document 83
Filed 01/09/2008
Page 17 of 207
Defendant’s Objection of Personnel Privilege 1.
Plaintiff’s Position
In Response 2, Defendants invoke the “personnel privilege” in response to Plaintiff’s requests
4
nos. 12-15, 17, 26, 28, 32, 36-39, 41, 51, 54-58, 63, 65-67, 70-73, 78. In Response 2, Defendants state in
5
boilerplate fashion: “Defendants object to this request to the extent it requests . . . documents protected
6
from disclosure by state or federal law, including . . . the personnel privilege.”
7
Failing to object to a Rule 34 request within the time permitted waives such objections thereto,
8
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
9
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
10
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
11
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
12
Defendants failed to raise the personnel privilege in Response 1, and is raising it for the first time
13
in Response 2. Plaintiff had met and conferred with Defendants in the hopes that Defendants would
14
remedy the many deficiencies contained in Response 1. Defendants ostensibly served Response 2 as a
15
product of the meet and confers. In fact, Defendants used Response 2 to make a mockery of the meet
16
and confer process and raise new objections that had not been raised in Response 1.
17
Moreover, as stated above, FRCP Rule 34 prohibits objections which (a) are too broadly stated
18
and (b) fail to explain how the objection relates to the documents demanded. Defendants are under a
19
duty to clarify and explain precisely why their objections are proper. The mere boilerplate assertion of
20
“personnel privilege” with no further explication fails to comply with Rule 34. It fails to put Plaintiff on
21
notice as to what the privilege is (Plaintiff has no idea), what its basis is, what it covers, etc.
22
The Court should deem the “personnel privilege” waived in all responses.
23 2.
Defendant’s Position
24 [INSERT HERE] 25 26 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE
13
Case 1:07-cv-00026-OWW-TAG
1
E.
2 3
Document 83
Filed 01/09/2008
Page 18 of 207
Defendant’s Refusal to Produce Due to Marginal Relevancy 1.
Plaintiff’s Position
In Response 2, Defendants refuse to produce any documents in response to Plaintiff’s requests
4
nos. 32, 36, 38, 39, 41, 54-58, 70-73, 78. In Response 2, Defendants state: “Defendants have determined
5
that the burden of redacting privileged information outweighs the marginal relevancy of the remaining
6
information in the documents”. Plaintiff requests the Court conduct an in camera review of the
7
documents at issue to confirm that Defendants’ redactions are valid and that their refusal to produce any
8
documents is justified.
9 2.
Defendant’s Position
10 [INSERT HERE] 11 12 13
F.
14
REQUEST FOR PRODUCTION NO. 11
15
Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories or lists,
Specific Contested Responses and Objections
16
including but not limited to names, direct work phone numbers, departments, etc. which were
17
maintained by YOU during Plaintiff’s employment with YOU.
18
RESPONSE TO REQUEST NO. 11
19
Defendants will produce all non-privileged documents responsive to this request. Production is
20
expected to be complete on or about December 21, 2007, depending on receipt of reimbursement for
21
estimated copy costs. Defendants will redact privileged information as appropriate.
22
PLAINTIFF’S POSITION
23
FRCP Rule 34 prohibits objections which (a) are too broadly stated and (b) fail to explain how
24
the objection relates to the documents demanded. Defendants are under a duty to clarify and explain
25
precisely why their objections are proper. Defendants merely reference “privileged personal or
26
confidential information”. This assertion of privilege fails to comply with Rule 34. It fails to put Plaintiff
27
on notice as to what the privileges are (Plaintiff has no idea), what its basis is, what it covers, etc.
28
Failing to object to a Rule 34 request within the time permitted waives such objections thereto— JOINT STATEMENT re: DISCOVERY DISPUTE
14
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 19 of 207
1
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
2
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
3
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
4
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
5
The Court should deem this assertion of privilege waived.
6
DEFENDANTS’ POSITION
7
[INSERT HERE]
8 9
REQUEST FOR PRODUCTION NO. 26
10
Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his
11
employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, written
12
materials, and computer files stored on Plaintiff’s computer at Kern Medical Center’s servers.
13
RESPONSE TO REQUEST NO. 26
14
Defendants object to this request to the extent it requests documents that contain confidential
15
personnel information, documents protected from disclosure by state or federal law, including HIPAA,
16
the peer-review privilege and the personnel privilege, and documents that are subject to the attorney-
17
client privilege. After diligent search, Defendants believe Groupwise calendar information was deleted
18
many months ago as part of the routine 90-day cycling of the Groupwise software. Defendants are
19
continuing to search for materials that were on the computer that was assigned to Plaintiff. Some
20
material was archived before the computer was reassigned and Defendants will produce copies of the
21
material that was archived by December 21, 2007, depending on receipt of reimbursement for estimated
22
copy costs. Defendants will redact privileged information, if any, as appropriate.
23
PLAINTIFF’S POSITION
24
Failing to object to a Rule 34 request within the time permitted waives such objections thereto—
25
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
26
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
27
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
28
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529. JOINT STATEMENT re: DISCOVERY DISPUTE
15
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 20 of 207
Defendants are for the first time raising objections of “confidential personnel information”,
2
“documents protected by disclosure by state or federal law, including HIPAA, the peer-review privilege
3
and the personnel privilege”, and “attorney-client privilege”. Defendants did not timely raise these
4
objections or privileges in Response 1.
5
The Court should deem these objections waived.
6
DEFENDANTS’ POSITION
7
[INSERT HERE]
8 9
REQUEST FOR PRODUCTION NO. 33
10
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or
11
present employees against YOU for defamation, retaliation, disability discrimination, failure to
12
accommodate, and/or failure to engage in an interactive process, including but not limited to any
13
informal or internal complaints, grievances or charges to any state or federal agency, and complaints
14
filed in any state or federal court from October 24, 2000 to date.
15
RESPONSE TO REQUEST NO. 33
16
Defendants object to this request on the grounds that it calls for the production of documents that
17
contain confidential personnel information that is not relevant to any issues in this case. Consequently,
18
this request is not reasonably calculated to lead to the discovery of admissible evidence. Defendants also
19
object on the ground that the phrase, “informal or internal complaints” is vague and, depending on
20
interpretation, could include any off-hand gripe by any employee, to the extent it was memorialized in
21
writing. Defendant County of Kern employs several thousand employees. In the past seven years, there
22
could be many documents that fit the description of this request yet none have anything to do with the
23
issues in this case. This request is, accordingly, overbroad and burdensome. Defendants do not believe
24
redaction would resolve these objections.
25
PLAINTIFF’S POSITION
26
During meet and confers, specifically at Defendant’s request Plaintiff had narrowed Request 33.
27
In a meet and confer fax of November 22, 2007, memorializing a meet and confer call, Plaintiff stated:
28 JOINT STATEMENT re: DISCOVERY DISPUTE
16
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
Page 21 of 207
In past meet and confer calls, plaintiff had narrowed this request to complaints or grievances relating to Kern Medical Center which had been made to a government agency or court. These documents are essential to prove disparate treatment and discriminatory/retaliatory intent.
3 On November 27, 2007, following a meet and confer call, Plaintiff sent another meet and confer 4 fax stating: 5
9
We reiterated that we have already agreed to narrow this request [33] to documents relating to complaints or grievances relating to Kern Medical Center which had been made to a government agency or court. We further explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. You requested and we agreed to send you revised response language which nails down exactly what we are requesting. You confirmed that the documents are already in the process of being collected and that, once the request language is revised, you will produce responsive documents by December 7.
10
In that same fax, Plaintiff revised Request 33 to read:
11
14
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or present employees against YOU for defamation, retaliation, disability discrimination, failure to accommodate, and/or failure to engage in an interactive process RELATING TO Kern Medical Center and/or its officers or staff, including but not limited to any informal or internal complaints, grievances or charges to any state or federal agency, and complaints filed in any state or federal court from October 24, 2000 to date.”
15
On November 30, 2007, following a meet and confer call, Plaintiff sent another meet and confer
6 7 8
12 13
16
fax stating:
18
You confirmed that plaintiff’s revised request language is adequate and that you will produce responsive documents tentatively by December 7, but you would have a more definite idea as to production date by next Monday.
19
Despite this extensive meet and confer process, Defendants chose to disregard the revisions
17
20
Plaintiff had made to Request 33. In Response 2, Defendants restated Request 33 in its unrevised form
21
and restated their same objections. In so doing, Defendants breached the numerous assurances they had
22
made to Plaintiff that they would produce documents upon receiving a revised version of Request 33.
23
DEFENDANTS’ POSITION
24
[INSERT HERE]
25 26
REQUEST FOR PRODUCTION NO. 38
27
Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and evaluation of
28
candidates for the position of locum tenens pathologist at Kern Medical Center during the period from JOINT STATEMENT re: DISCOVERY DISPUTE
17
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 22 of 207
January 1, 2006 to present.
2
RESPONSE TO REQUEST NO. 38
3
Defendants object to this request on the grounds that it calls for the production of documents that
4
contain confidential personnel information that is not relevant to any issues in this case and is not
5
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
6
request to the extent it requests information protected from disclosure by state or federal law, including
7
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
8
protected by the attorney-client privilege. After review of the documents potentially responsive to this
9
request, Defendants have determined that the burden of redacting privileged information outweighs the
10
marginal relevancy of the remaining information in the documents.
11
PLAINTIFF’S POSITION
12
A showing of relevancy may be enough to cause the court to balance the compelling public need
13
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
14
Cal.App.3d 557, 567.)
15
These documents are highly probative to Plaintiff’s claim that Defendant County of Kern failed
16
to reasonably accommodate his depression disability by failing to timely arrange for locum tenens
17
pathologists who could assist with the Pathology department’s workload during Plaintiff’s reduced work
18
schedule medical and recuperative leaves in 2006. During meet and confers, the parties had specifically
19
discussed Defendants’ privacy concerns regarding this request. The parties agreed that Defendants need
20
not produce any third party letters of reference. In exchange, Defendants agreed to produce documents
21
in response to Request 38. In typical fashion, Defendants now breach the assurances they made to
22
Plaintiff in meet and confer.
23
DEFENDANTS’ POSITION
24
[INSERT HERE]
25 26
REQUEST FOR PRODUCTION NO. 39
27
Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and evaluation of
28
candidates for the position of Chair or Chief of OB-GYN at Kern Medical Center during the period from JOINT STATEMENT re: DISCOVERY DISPUTE
18
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 23 of 207
January 1, 2006 to present.
2
RESPONSE TO REQUEST NO. 39
3
Defendants object to this request on the grounds that it calls for the production of documents that
4
contain confidential personnel information that is not relevant to any issues in this case and is not
5
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
6
request to the extent it requests information protected from disclosure by state or federal law, including
7
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
8
protected by the attorney-client privilege. After review of the documents potentially responsive to this
9
request, Defendants have determined that the burden of redacting privileged information outweighs the
10
marginal relevancy of the remaining information in the documents.
11
PLAINTIFF’S POSITION
12
A showing of relevancy may be enough to cause the court to balance the compelling public need
13
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
14
Cal.App.3d 557, 567.)
15
An employer's failure to follow its own policies and procedures indicates discrimination. Village
16
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
17
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
18
afford evidence that improper purposes are playing a role”).
19
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
20
customarily complied with their policies regarding removal and replacement of department chairs and
21
whether Plaintiff was treated in a disparate manner. The evidence is highly probative to Plaintiff’s
22
claims.
23
DEFENDANTS’ POSITION
24
[INSERT HERE]
25 26
REQUEST FOR PRODUCTION NO. 40
27
Any and all DOCUMENTS RELATING TO YOUR removal of Dr. Royce Johnson from the
28
position of Chair or Chief of Medicine at Kern Medical Center. JOINT STATEMENT re: DISCOVERY DISPUTE
19
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 24 of 207
1
RESPONSE TO REQUEST NO. 40
2
Defendants object to this request on the grounds that it calls for the production of documents that
3
contain confidential personnel information that is not relevant to any issues in this case and is not
4
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
5
request to the extent it requests information protected from disclosure by state or federal law, including
6
HIPAA and the peer review privilege, and documents that are subject to the attorney-client privilege.
7
PLAINTIFF’S POSITION
8
A showing of relevancy may be enough to cause the court to balance the compelling public need
9
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
10
Cal.App.3d 557, 567.)
11
An employer's failure to follow its own policies and procedures indicates discrimination. Village
12
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
13
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
14
afford evidence that improper purposes are playing a role”).
15
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
16
customarily complied with their policies regarding removal and replacement of department chairs and
17
whether Plaintiff, who was removed from Chair of Pathology, was treated in a disparate manner. The
18
evidence is highly probative to Plaintiff’s claims. Although Dr. Royce Johnson’s formal title may have
19
been Acting Chair of Medicine, Dr. Johnson functioned and held himself out as Chair of Medicine for
20
many years. According to recently discovered evidence, some time in or about 2002, Defendant County
21
of Kern undertook a roughly 1 year long process to remove Dr. Johnson and replace him due to his
22
substantial behavioral and management problems.
23
In addition, Dr. Johnson has been described by several deponents as “arrogant” and was the
24
subject of anger management complaints. Given Defendant’s fifth affirmative defense that Plaintiff was
25
“arrogant” and contributed to his own injuries, this evidence is directly probative to Defendant’s
26
defense.
27
DEFENDANTS’ POSITION
28
[INSERT HERE] JOINT STATEMENT re: DISCOVERY DISPUTE
20
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 25 of 207
1 2
REQUEST FOR PRODUCTION NO. 41
3
Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and evaluation of
4
candidates for the position of Chair or Chief of Medicine at Kern Medical Center during the period from
5
October 24, 2000 to present.
6
RESPONSE TO REQUEST NO. 41
7
Defendants object to this request on the grounds that it calls for the production of documents that
8
contain confidential personnel information that is not relevant to any issues in this case and is not
9
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
10
request to the extent it requests information protected from disclosure by state or federal law, including
11
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
12
protected by the attorney-client privilege. After review of the documents potentially responsive to this
13
request, Defendants have determined that the burden of redacting privileged information outweighs the
14
marginal relevancy of the remaining information in the documents.
15
PLAINTIFF’S POSITION
16
See Plaintiff’s Position re Request for Production Nos. 39 and 40 above.
17
DEFENDANTS’ POSITION
18
[INSERT HERE]
19 20
REQUEST FOR PRODUCTION NO. 43
21
Any and all DOCUMENTS RELATING TO Plaintiff’s presentations made at the Kern Medical
22
Center oncology conference on or about October 12, 2005.
23
RESPONSE TO REQUEST NO. 43
24
Defendants object to this request on the grounds that it calls for the production of documents that
25
contain confidential personnel information that is not relevant to any issues in this case and is not
26
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
27
request to the extent it requests information protected from disclosure by state or federal law, including
28
HIPAA and the peer review privilege, and documents that are subject to the attorney-client privilege. JOINT STATEMENT re: DISCOVERY DISPUTE
21
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 26 of 207
1
Without waving these objections, Defendants will produce non-privileged documents responsive to this
2
request, if any, by December21, 2007. Defendants will redact privileged, if any, information as
3
appropriate.
4
PLAINTIFF’S POSITION
5
Failing to object to a Rule 34 request within the time permitted waives such objections thereto—
6
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
7
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
8
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
9
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
10
Defendants are for the first time raising objections of “confidential personnel information”,
11
irrelevance and “not reasonably calculated to lead to discovery of admissible evidence”, “documents
12
protected by disclosure by state or federal law, including HIPAA, the peer-review privilege and the
13
personnel privilege”, and “attorney-client privilege”. Defendants did not timely raise these objections or
14
privileges in Response 1.
15
The Court should deem these objections waived.
16
DEFENDANTS’ POSITION
17
[INSERT HERE]
18 19
REQUEST FOR PRODUCTION NO. 55
20
Any and all DOCUMENTS RELATING TO the review of Kern Medical Center’s placental
21
evaluations and billing activity as conducted by outside consultants, including but not limited to ProPay
22
Physician Services, LLC, from October 24, 2000 to the present.
23
RESPONSE TO REQUEST NO. 55
24
Defendants object to this request on the grounds that it calls for the production of documents that
25
contain confidential personnel information that is not relevant to any issues in this case and is not
26
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
27
request to the extent it requests information protected from disclosure by state or federal law, including
28
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information JOINT STATEMENT re: DISCOVERY DISPUTE
22
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 27 of 207
1
protected by the attorney-client privilege. After review of the documents potentially responsive to this
2
request, Defendants have determined that the burden of redacting privileged information outweighs the
3
marginal relevancy of the remaining information in the documents.
4
PLAINTIFF’S POSITION
5
A showing of relevancy may be enough to cause the court to balance the compelling public need
6
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
7
Cal.App.3d 557, 567.)
8
An employer's failure to follow its own policies and procedures indicates discrimination. Village
9
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
10
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
11
afford evidence that improper purposes are playing a role”).
12
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
13
customarily complied with their policies and procedures regarding their audit of Plaintiff’s placental
14
evaluations and billing activity in or around 2005 and whether Plaintiff was treated in a disparate
15
manner. The evidence is highly probative to Plaintiff’s claims.
16
DEFENDANTS’ POSITION
17
[INSERT HERE]
18 19
REQUEST FOR PRODUCTION NO. 71
20
Any and all DOCUMENTS RELATING TO exceptional event logs for histology and pathology
21
on Kern Medical Center’s Pathology Department from January 1, 2006 to the present.
22
RESPONSE TO REQUEST NO. 71
23
Defendants object to this request on the grounds that it calls for the production of documents that
24
contain confidential personnel information that is not relevant to any issues in this case and is not
25
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
26
request to the extent it requests information protected from disclosure by state or federal law, including
27
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
28
protected by the attorney-client privilege. After review of the documents potentially responsive to this JOINT STATEMENT re: DISCOVERY DISPUTE
23
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 28 of 207
1
request, Defendants have determined that the burden of redacting privileged information outweighs the
2
marginal relevancy of the remaining information in the documents.
3
PLAINTIFF’S POSITION
4
A showing of relevancy may be enough to cause the court to balance the compelling public need
5
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
6
Cal.App.3d 557, 567.)
7
An employer's failure to follow its own policies and procedures indicates discrimination. Village
8
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
9
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
10
afford evidence that improper purposes are playing a role”).
11
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
12
customarily complied with their policies and procedures regarding Dr. Jadwin’s numerous alleged
13
violations of hospital policy, including the leaving of sharps out at the workstation when not in use, the
14
taking of a sternal bone biopsy without proctoring, the unauthorized accessioning of tissue samples, etc.
15
and whether Plaintiff was treated in a disparate manner as compared to others in the Pathology
16
department or laboratory who engaged in similar conduct. The evidence is highly probative to Plaintiff’s
17
claims.
18
DEFENDANTS’ POSITION
19
[INSERT HERE]
20 21
REQUEST FOR PRODUCTION NO. 72
22
Any and all DOCUMENTS RELATING TO paper accession logs at Kern Medical Center’s
23
Pathology Department from January 1, 2006 to present.
24
RESPONSE TO REQUEST NO. 72
25
Defendants object to this request on the grounds that it calls for the production of documents that
26
contain confidential personnel information that is not relevant to any issues in this case and is not
27
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
28
request to the extent it requests information protected from disclosure by state or federal law, including JOINT STATEMENT re: DISCOVERY DISPUTE
24
Case 1:07-cv-00026-OWW-TAG
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1
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
2
protected by the attorney-client privilege. After review of the documents potentially responsive to this
3
request, Defendants have determined that the burden of redacting privileged information outweighs the
4
marginal relevancy of the remaining information in the documents.
5
PLAINTIFF’S POSITION
6
A showing of relevancy may be enough to cause the court to balance the compelling public need
7
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
8
Cal.App.3d 557, 567.)
9
In late 2006, Acting Chair of Pathology Dr. Dutt accused Plaintiff of engaging in unauthorized
10
accessioning of tissue samples. Dr. Dutt reported this issue to the CEO. The accession logs are directly
11
relevant to this accusation against Plaintiff.
12
DEFENDANTS’ POSITION
13
[INSERT HERE]
14 15
REQUEST FOR PRODUCTION NO. 73
16
Any and all DOCUMENTS RELATING TO tissue disposal records for skull-flaps from January
17
1, 2006 to the present.
18
RESPONSE TO REQUEST NO. 73
19
Defendants object to this request on the grounds that it calls for the production of documents that
20
contain confidential personnel information that is not relevant to any issues in this case and is not
21
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
22
request to the extent it requests information protected from disclosure by state or federal law, including
23
HIPAA. the peer-review privilege and the personnel privilege, and documents that contain information
24
protected by the attorney-client privilege. After review of the documents potentially responsive to this
25
request, Defendants have determined that the burden of redacting privileged information outweighs the
26
marginal relevancy of the remaining information in the documents.
27
PLAINTIFF’S POSITION
28
A showing of relevancy may be enough to cause the court to balance the compelling public need JOINT STATEMENT re: DISCOVERY DISPUTE
25
Case 1:07-cv-00026-OWW-TAG
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1
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
2
Cal.App.3d 557, 567.)
3
In December of 2006, Plaintiff reported to Kern Medical Center CEO David Culberson the
4
storage of skull flaps in a non-regulation freezer as a possible violation of state and federal regulations.
5
These documents are directly probative of Plaintiff’s California Labor Code 1102.5 claim for
6
whistleblower retaliation.
7
DEFENDANTS’ POSITION
8
[INSERT HERE]
9 10
REQUEST FOR PRODUCTION NO. 78
11
Any and all DOCUMENTS RELATING TO placental evaluations conducted by Plaintiff from
12
June 14, 2006 to the present.
13
RESPONSE TO REQUEST NO. 78
14
Plaintiff has attempted to narrow this request but the revised request is broader, more
15
burdensome and less calculated to lead to the discovery of admissible evidence than the original request.
16
Defendants object to this request because it is not reasonably calculated to lead to the discovery of
17
admissible evidence and is burdensome. Defendants object to this request on the grounds that it calls for
18
the production of documents that contain confidential personnel information that is not relevant to any
19
issues in this case and is not reasonably calculated to lead to the discovery of admissible evidence.
20
Defendants also object to this request to the extent it requests information protected from disclosure by
21
state or federal law, including HIPAA, the peer-review privilege and the personnel privilege, and
22
documents that contain information protected by the attorney-client privilege. After review of the
23
documents potentially responsive to this request. Defendants have determined that the burden of
24
redacting privileged information outweighs the marginal relevancy of the remaining information in the
25
documents.
26
PLAINTIFF’S POSITION
27
Based on newly discovered evidence, Plaintiff has reason to believe that Acting Chair of
28
Pathology, Dr. Philip Dutt, has defrauded Plaintiff by claiming credit for placental evaluations JOINT STATEMENT re: DISCOVERY DISPUTE
26
Case 1:07-cv-00026-OWW-TAG
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1
conducted by Plaintiff as his own, thereby diverting the associated professional billing fees from
2
Plaintiff to himself. This evidence is highly probative of possible claims for fraud, conversion and
3
breach of fiduciary duty which Plaintiff is investigating bringing against Dr. Dutt.
4
Also, failing to object to a Rule 34 request within the time permitted waives such objections
5
thereto—including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468;
6
see also Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to
7
object to discovery requests within the time required constitutes a waiver of any objection”); see also
8
Coregis Ins. Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
9
Defendants are for the first time raising objections of “confidential personnel information”,
10
“documents protected by disclosure by state or federal law, including . . . the peer-review privilege and
11
the personnel privilege”, and “attorney-client privilege”. Defendants did not timely raise these
12
objections or privileges in Response 1.
13
The Court should deem these objections waived.
14
DEFENDANTS’ POSITION
15
[INSERT HERE]
16 IV.
CONCLUSION
17 18
Despite the extensive correspondence between the parties, it does not appear that this dispute can
19
be resolved without assistance from the Court. Plaintiff has done its utmost to avert this imposition on
20
the Court’s time.
21
In contrast, Defendants have made a mockery of the meet and confer process, breached
22
numerous assurances to Plaintiff and have refused to effectively meet and confer in good faith with
23
Plaintiff. By way of example, on January 4, 2008, Defendants stated that they had identified caselaw
24
which they said definitively proves them right on the issue of unreimbursed copy costs for discovery
25
production: “I have found cases that say the requesting party must pay the cost of photocopying
26
documents. I have found no cases that hold otherwise.” Defendants then requested Plaintiff provide
27
case citations supporting Plaintiff’s position. Plaintiff was still researching the issue and had no citations
28
to share at the time. It should be noted that Plaintiff has provided myriad, detailed case citations in JOINT STATEMENT re: DISCOVERY DISPUTE
27
Case 1:07-cv-00026-OWW-TAG
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1
good faith to Defendants during meet and confer discussions in the past. When Plaintiff asked
2
Defendants to provide its case citations to Plaintiff, stating “Mark, I would appreciate the case citations.
3
I look forward to receiving them”, Defendants refused, stating:
4 5
No. I am not researching this for you. I have done my research. It is your motion to compel. I presume you have authority to support your motion. If not, too bad. If so, proceed with your motion.”
6
Regrettably, this exchange fairly characterizes the interactions Plaintiff has had with Defendants
7
throughout this action.
8 9
Respectfully submitted,
10 11 Dated: January __, 2008
LAW OFFICES OF MARK A. WASSER
12 13 By:__________________________________________ Mark A. Wasser, Attorney for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND,TONI SMITH, AND WILLIAM ROY
14 15 16 17 18
Dated: January___, 2008
LAW OFFICE OF EUGENE LEE
19 20 21
By:__________________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.
22 23 24 25 26 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE
28
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8
Document 83
Filed 01/09/2008
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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 10 11 12 13
Mark A. Wasser CA SB #06160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]
14 15 16 17 18 19
Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected] Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.
20 UNITED STATES DISTRICT COURT 21 EASTERN DISTRICT OF CALIFORNIA 22 DAVID F. JADWIN, D.O.,
Civil Action No. 1:07-cv-00026 OWW TAG
23 Plaintiff, 24 25 26
v. COUNTY OF KERN, et al., Defendants.
EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT Date: January 14, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA
27 28
Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008 USDC, ED Case No. 1:07-cv-00026 OWW TAG EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT
1
Case 1:07-cv-00026-OWW-TAG
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EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT EXHIBIT 1.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 10/31/07
EXHIBIT 2.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/1/07
EXHIBIT 3.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/8/07
EXHIBIT 4.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/15/07
EXHIBIT 5.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/15/07
EXHIBIT 6.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/20/07
EXHIBIT 7.
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 1”), 11/20/07
EXHIBIT 8.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/22/07
EXHIBIT 9.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/27/07
EXHIBIT 10.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/30/07
EXHIBIT 11.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/10/07
EXHIBIT 12.
DEFENDANTS’ PARTIAL PRIVILEGE LOG, 12/13/07
EXHIBIT 13.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/14/07
EXHIBIT 14.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/17/07
EXHIBIT 15.
SUPPLEMENTED RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 2”), 12/19/07
EXHIBIT 16.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/19/07
EXHIBIT 17.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/20/07
EXHIBIT 18.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/20/07
EXHIBIT 19.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/20/07
EXHIBIT 20.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/21/07
EXHIBIT 21.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/31/07
EXHIBIT 22.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/2/08
EXHIBIT 23.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/4/08
Case 1:07-cv-00026-OWW-TAG
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EXHIBIT 1. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 10/31/07
MTC000001
Oct 31 07 11:21a
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1
Page 36 of 207
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 Wasser
Fax:
(213) 596-0487
Pages: 2 (including cover page)
Phone: (213) 992-3299
Date:
Re:
cc:
Jadwin v. County of Kern
o Urgent
o For Review
0 Please Comment
October 31, 2007
0 Please Reply
D Please Recycle
• Comments: Please see attached letter.
MTC000002
Oct 31 07 11:21a
Mark Wasser
916-444-6405 Law Offices of Document 83 Filed 01/09/2008
Case 1:07-cv-00026-OWW-TAG
MARK A. WASSER
p.2
Page 37 of 207
400 Capitol Mall, Suite 1100 Sacramento, California 95814
Office: 916-444-6400 Fax: 916-444-6405 [email protected]
October 31, 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 at. Dear Mr. Lee: I have reviewed your Request For Production of Documents and discussed it with County staff. Our best estimate is that it will take until December 21, 2007 to locate, assemble and serve the documents you have requested. Some of the documents may require extensive redaction to remove patient identifiers.
We request an extension of time until December 21,2007 to respond to your Request. Let me know your position. Thank you.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via first class mail) Joan Herrington (via first class mail)
Admitted to Practice in California and Nevada
MTC000003
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 38 of 207
EXHIBIT 2. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/1/07
MTC000004
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/3 11/01/07 6:26 pm
OF
Page 39 of 207 [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: 11/01/2007
Pages: 3 (including cover page) Re: Jadwin/KC:
Comments:
Mark, Transmitted herewith is a letter in followup to our meet and confer call of this morning. Sincerely.
MTC000005
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 11/01/07 6:26 pm
Document 83
Filed 01/09/2008
OFFICE
EUGENE
OF
555
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
WEST FIFTH
Page 40 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 1, 2007 VIA FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking and meeting and conferring with you today on plaintiff's requests for
production, set one. In order to facilitate things, we thought we would try to narrow and clarify some of our document requests.
DocReq No. 12 13 16 52 59
Proposed clarification
Exclude "training materials" from the request Exclude "training materials" from the request Delete subparts b) through tt) Exclude from the request DOCUMENTS which are on file in Superior Court of California in and for County of Kern The request is for DOCUMENTS RELATING TO medical staff sign-in sheets for Kern Medical Center's Cancer Clinic held pursuant to ACS-CoC standards from January 1, 2003 to the present.
Also, as we discussed, please let us know your thoughts on providing us with patient identification numbers, including those which were redacted from defendants' initial disclosures, as well as entering into a stipulation with us whereby plaintiff would electronically redact any patient identifying information (other than patient identification numbers) from all documents produced by defendants (along with concomitant covenants to strictly preserve the confidentiality and guard against disclosure of such information). As we stated, plaintiff has no interest in jeopardizing anyone's medical information privacy.
MTC000006
To: 213-596-0487
From: Law Office OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 3/33 11/01/07 6:26 pm
Document 83
Filed 01/09/2008
Page 41 of 207
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Wednesday, November 7, 2007. Plaintiff is hoping that Defendant can respond by November 12, 2007, then produce the actual documents according to an adjusted schedule that can be 12,2007, 7,2007. 2007. finalized by Wednesday, November 7, We look forward to your response. Please do not hesitate to contact us with any questions.
cc:
Joan Herrington, Esq.
2 MTC000007
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 42 of 207
EXHIBIT 3. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/8/07
MTC000008
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/4 11/08/07 2:25 pm
OF
Page 43 of 207 [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: 11/08/2007
Pages: 4 (including cover page) Re: Jadwin/KC: RPD1 County of Kern
Comments:
Mark, It was a pleasure speaking with you yesterday. Transmitted herewith is a followup letter. Sincerely.
MTC000009
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Document 83
LAW
(213) 992-3299
TELEPHONE
Pg 2/4 11/08/07 2:25 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 44 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 8, 2007 VIA FACSIMILE 100011.001
Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA No.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking and meeting and conferring with you yesterday on Plaintiff's Requests
For Production, Set One to County of Kern and to Peter Bryan. We confirmed that you did not foresee any difficulties with the Peter Bryan requests. The Kern County requests involved more discussion as follows. I. TENTATIVE AGREEMENTS / CLARIFICATIONS RE DOCUMENT REQUESTS We discussed each of plaintiff's requests for production and, with a few exceptions, you had indicated varying expected production/response dates of November 16, December 7 and December 21. Plaintiff is reviewing the proposed dates. Let's discuss these at our next conference call. In addition, the parties made the following tentative agreements and clarifications with respect to certain Requests: DocReq No. 40
41 52
54 56
Tentative agreement/clarification Defendants to ask Dr. Royce Johnson for consent to disclose the requested information to plaintiff and let plaintiff know by November 14. In the event he refuses consent, defendants expect to give plaintiff a response by November 16. Defendants to redact names of applicants and references. Defendants need not include in defendants' privilege log any protected attorney work product or attorney-client privileged communications which were authored by subject attorneys. Plaintiff seeks statistics for both patient "fatalities" and patient "deaths", as each considered alone is not meaningful and must be compared to the other. Redaction may address defendants' privilege concerns.
MTC000010
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Pg 3/4 11/08/07 2:25 pm
Document 83
Filed 01/09/2008
Page 45 of 207
Redaction may address defendants' privilege concerns. Plaintiff seeks medical staff attendance/sign-in sheet for the weekly Oncology Clinic that meets every Wednesday and partially fulfills AC8-CoC standards. Defendants are looking into retrieving Groupwise archives. 806-73276 relates to Case Nos. 806-495, 806-3511 and 806-4619 (see defendants' initial disclosures, bates no. 778) - please produce the pathology reports associated with those case numbers, with medical record nos. unredacted.
57 59 62 69
II. REQUEST 78 Regarding Request 78, defendants said they would need 120 days to produce. In order to shorten this time, plaintiff proposes defendants instead produce the following. We can discuss this at our next conference if you wish. 1.
A printout from HEO of all surgical pathology cases that lists the case number, the specimen, the date of receipt, the date of completion and the name ofthe pathologist that released the case for June 14, 2006 to the present. This will be a list of a few hundred pages that can be prepared in two or so days.
2.
A printout of all dictation by case number from the medical transcription department for all pathology dictation for June 14, 2006 to the present. This will be a list of similar length that can be prepared in two or so days.
3.
A printout of all pathology reports involving placentas signed out by any pathologist. There are perhaps 2,500 reports per year; two pages per report. These are identified by the list in item (l) above. Each report will need to be hand printed by entering the case number from the list; time to print each report not to exceed 60 seconds. Each page will need to have the patient name redacted (three instances per page).
4.
A printout from HEO of all autopsy pathology reports listing the case number, the date of procedure, the date of completion and the name ofthe pathologist who released the case for June 14, 2006 to the present. This should take one or so days.
5.
A copy of each pathology report listed in item (4) above. There should be less than 50 reports and this should take one or so days.
Hopefully the above would lead to a significantly reduced production time. II. MEDICAL RECORD NOS. / REDACTION IN GENERAL Please let us know your thoughts on providing us with patient medical record nos. (as opposed to patient account numbers), including those which were redacted from defendants' initial disclosures, as well as entering into a stipulation with us whereby plaintiff would electronically redact any patient identifying information (other than patient identification numbers) from all documents produced by defendants (along with concomitant covenants to strictly preserve the
2 MTC000011
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Pg 4/4 11/08/07 2:25 pm
Document 83
Filed 01/09/2008
Page 46 of 207
confidentiality and guard against disclosure of such information). As we stated, plaintiff has no interest in jeopardizing anyone's medical information privacy. If you have alternative suggestions, plaintiff would be interested in discussing them with you. II. AMENDING THE SCHEDULING ORDER You had mentioned the idea of re-visiting the Scheduling Order and pushing back the discovery cut-off date. Let's discuss this further at our next call after you have a more definite idea ofthe production times necessary for plaintiff's discovery requests. We realize the logistical difficulties you must be facing as you coordinate document production with Kern Medical Center and are willing to work with you on this. II. DEPOSITIONS Plaintiff had suggested deposing certain witnesses in early December. Following is the tentative deposition schedule proposed by plaintiff. Please let us know whether the schedule will work for you and the deponents. You had also mentioned that defendants would not object to deposition notices as short as 3 to 5 days, so long as a mutually convenient time could be worked out for all concerned. Plaintiff appreciates defendants' flexibility and cooperation. 4-Dec 0800 1400 1600 S-Dec 0900 1300 6-Dec 0800 1400 -
1300 1600 1800 1200 1700 1300 1800
Steve O'Conner Charles Wrobel Phil Brown (l0) Jane Thornton Ed Taylor Javad Naderi Ravi Patel
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Wednesday, November 14, 2007. Please do not hesitate to contact us with any questions or if you need to re-schedule.
7rp{~urs,
'mttb
cc:
EiVpENE D. LEE Joan Herrington, Esq. V David F. Jadwin, D.O., F.C.A.P.
3 MTC000012
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
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EXHIBIT 4. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/15/07
MTC000013
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 48 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Mark Wasser [[email protected]] Thursday, November 15, 2007 12:30 PM [email protected] Assistant to Mark A. Wasser RE: Jadwin/KC: Discovery Docs
Thank you.
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, November 15, 2007 11:35 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Discovery Docs
Mark, Get Acrobat 8.0 Professional. If you ever plan on going paperless (digitizing paper), it’s the only way to go. If you want to save some money, consider buying Acrobat 6.0 or 7.0 (you can get it cheap on eBay), then buy the 8.0 Professional upgrade (not full version). That’s what I did. My friends have bought software here: www.buycheapsoftware.com. They said it has good prices and were all happy with their purchases. I myself have never bought anything there though. Acrobat is not only a good digital paper handling program, it’s a very powerful OCR (text-recognition) program. You won’t need to buy a separate OCR program. It also has a useful and powerful Bates stamping function – Go to “Advanced” in the menu bar -Æ Document processing in the sub-menu Æ Bates numbering. This is a huge timesaver – you don’t need a separate Bates stamping program. And obviously, you’ll never need to manually bates stamp again. If you screw it up, it’s very simple to re-run the bates stamping program until you get it right. You can also delete the bates stamp if you change your mind. Let me know if you need help with any of this. 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
MTC000014
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 49 of 207
From: Mark Wasser [mailto:[email protected]] Sent: Thursday, November 15, 2007 11:25 AM To: [email protected] Subject: RE: Jadwin/KC: Discovery Docs Gene, Fine. We can do that. There are several versions of Acrobat 8, ranging in price from $300 to over $1,000. Any thoughts as to which one I want? Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, November 15, 2007 11:05 AM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Discovery Docs
Mark, On second thought, if it isn’t too much trouble, could you create multiple discrete PDF files, rather than one mega massive PDF file? I suspect the one file will get far too large in size, it might crash my computer. It would also help us know where one document ends and the next begins. Give me a call if you or your assistant run into trouble OCR’ing or redacting. Thanks. 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.
2
MTC000015
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 50 of 207
EXHIBIT 5. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/15/07
MTC000016
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/3 11/15/07 3:47 pm
OF
Page 51 of 207 [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: 11/15/2007
Pages: 3 (including cover page) Re: Jadwin/KC: Meet and Confer RPD1
Comments:
Mark, Transmitted herewith is a letter in followup to our conference call yesterday. Sincerely.
MTC000017
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Document 83
LAW
(213) 992-3299
TELEPHONE
Pg 2/3 11/15/07 3:47 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 52 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 15, 2007 VIA FACSIMILE 100011.001
Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking and meeting and conferring with you yesterday on Plaintiff's Requests
For Production, Set One to County of Kern. This letter confirms the content of our discussions. We reviewed my letter to you of November 8,2007, and you confirmed that we were in agreement with most ofthe issues stated therein. Only a few items required further discussion, as follows: I. TENTATIVE AGREEMENTS / CLARIFICATIONS RE DOCUMENT REQUESTS We discussed plaintiff's requests for production and agreed that defendants would provide a written response by November 20, with the exception ofthe following requests: 18, 19,21,27, 28,42-45,54-57,59, and 61-63, which require further clarification by Defendants. You had indicated varying expected production dates of November 16, December 7 and December 21. On certain requests, we agreed that the production date would be changed from December 21 to December 7: 20,46 and 47. In addition, the parties made the tentative agreements and clarifications with respect to the following requests: DocReq No. 26 40 54
Tentative agreement/clarification Defendants may have destroyed some ofthese files. Defendants will note this in response by November 20. Defendants to respond by November 20 with objection and refusal to produce. Plaintiff intends to file a motion to compel. Plaintiff seeks statistics for both patient "fatalities" and patient "deaths", as each considered alone is not meaningful and must be compared to the other. Defendants
MTC000018
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
56 57 62 78
Pg 3/3 11/15/07 3:47 pm
Document 83
Filed 01/09/2008
Page 53 of 207
are considering objecting to disclosure of "fatalities" statistics due to peer review privilege. Plaintiff stated that this does not fall under peer review privilege. Defendants to produce in redacted form. Defendants to produce in redacted form. Groupwise archives were destroyed as part of a routine sweep. Defendants will note this in response by November 20. Defendants are reviewing Plaintiff's suggested production procedure. Defendants believe the initial 120 day estimate may have been too conservative.
II. MEDICAL RECORD NOS. / REDACTION IN GENERAL Defendants are still considering the issue of disclosing medical record numbers to Plaintiff. Plaintiff explained that the number cannot be linked to a patient name without access to KMC's computer, and that Plaintiff requires this number in order to determine which case numbers are associated with each other.
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Monday, November 26,2007. Please do not hesitate to contact us with any questions or if you need to reschedule.
7Jt~nurs,
~
1()tt~)
cc:
ENED. LEE
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
2 MTC000019
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 54 of 207
EXHIBIT 6. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/20/07
MTC000020
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 55 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Tuesday, November 20, 2007 10:49 PM '[email protected]' 'Joan Herrington' RE: Response to Plaintiffs RFP 11.9.07
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Thank you for your email and responses to plaintiff’s requests for production. Based upon a cursory review, we’ve noticed that many of Defendants’ responses contain this objection: “documents protected from disclosure by state or federal law”. This objection does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. A great deal of caselaw supports these requirements. See Obiajulu v City of Rochester, Dep't of Law (1996, WD NY) 166 FRD 293 (Objection to document request must clearly set forth specifics of objection and how that objection relates to documents being demanded); Pulsecard, Inc. v Discover Card Servs. (1996, DC Kan) 168 FRD 295 (Although FRCP 34, which governs production of documents and things, does not provide any language with respect to specificity and waiver of objections, which FRCP 33, which governs interrogatories, does, no reason exists to distinguish between interrogatories and requests for production as to these matters); Rivera v Kmart Corp. (2000, DC Puerto Rico) 190 FRD 298, 45 FR Serv 3d 1349 (asserting general objection to request for production of documents does not comply with FRCP 34(b)); Hall v Sullivan (2005, DC Md) 231 FRD 468 (Implicit within Fed. R. Civ. P. 34 is requirement that objections to document production requests must be stated with particularity in timely answer, and that failure to do so may constitute waiver of grounds not properly raised, including privilege or work product immunity, unless court excuses this failure for good cause shown). Please correct this deficiency at your earliest convenience. We’re happy to discuss this further with you tomorrow if you wish. I’m available at my cellphone at 213-453-1781. Thank you. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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
MTC000021
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 56 of 207
CALIFORNIA LABOR & EMPLOYMENT LAW
US Workers: Overworl:ed, Underpaid 8< Left n ..."
""¥ember II, 'II'
'Y "'",," ..
From: Mark Wasser [mailto:[email protected]] Sent: Tuesday, November 20, 2007 5:09 PM To: Eugene Lee; Joan Herrington Subject: Response to Plaintiffs RFP 11.9.07 Gene and Joan, Here is our written response to your first request for production of documents. I am sending you a service copy by FedEx. I am enclosing with the service copy a DVD that has about four boxes of documents on it. We have several thousand more pages to produce as soon as the County can get the documents to me. I will let you know when that will happen as soon as I know. Mark
2
MTC000022
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 57 of 207
EXHIBIT 7. RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 1”), 11/20/07
MTC000023
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 58 of 207
Eugene D. Lee From: Sent: To: Subject: Attachments:
Mark Wasser [[email protected]] Tuesday, November 20, 2007 5:09 PM Eugene Lee; Joan Herrington Response to Plaintiffs RFP 11.9.07 Response to Plaintiffs RFP 11.9.07.doc
Follow Up Flag: Flag Status:
Follow up Completed
Gene and Joan, Here is our written response to your first request for production of documents. I am sending you a service copy by FedEx. I am enclosing with the service copy a DVD that has about four boxes of documents on it. We have several thousand more pages to produce as soon as the County can get the documents to me. I will let you know when that will happen as soon as I know. Mark
1
MTC000024
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8
Document 83
Filed 01/09/2008
Page 59 of 207
Mark A. Wasser CA SB #60160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]
9 10 11
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
12 13
UNITED STATES DISTRICT COURT
14
EASTERN DISTRICT OF CALIFORNIA
15 16
Plaintiff,
17 18 19 20
) ) ) ) ) ) ) ) ) ) ) ) ) ) )
DAVID F. JADWIN, D.O.
vs. COUNTY OF KERN, et al., Defendants.
21 22 23
Case No.: 1:07-cv-00026-OWW-TAG DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) Date Action Filed: January 6, 2007 Trial Date: August 26, 2008
24
PROPOUNDING PARTY:
Plaintiff DAVID F. JADWIN, D.O., F.C.A.P.
25
RESPONDING PARTY:
Defendant COUNTY OF KERN
26
SET NUMBER:
ONE (1)
27 28 1 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000025
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
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Defendants hereby submit these responses to Plaintiff David F. Jadwin’s Request for
2
Production of Documents, Set One. Defendants have not located all the documents that are
3
responsive to this request and, for that reason, many of the production dates set forth herein are
4
estimates. Defendants will supplement or amend this response, if necessary, as additional
5
documents are located and reviewed.
6
REQUEST FOR PRODUCTION NO. 1
7
Any and all DOCUMENTS RELATING TO the First Affirmative Defense listed in
8
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
9
RESPONSE TO REQUEST NO. 1
10
Defendants object to this request on the grounds that it calls for the production of
11
documents that are protected by the attorney-work-product and attorney-client privileges.
12
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
13
any documents that are responsive to this request.
14
REQUEST FOR PRODUCTION NO. 2
15
Any and all DOCUMENTS RELATING TO the Second Affirmative Defense listed in
16
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
17
RESPONSE TO REQUEST NO. 2
18
Defendants object to this request on the grounds that it calls for the production of
19
documents that are protected by the attorney-work-product and attorney-client privileges.
20
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
21
any documents that are responsive to this request.
22
REQUEST FOR PRODUCTION NO. 3
23
Any and all DOCUMENTS RELATING TO the Third Affirmative Defense listed in
24
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
25
RESPONSE TO REQUEST NO. 3
26
Defendants object to this request on the grounds that it calls for the production of
27
documents that are protected by the attorney-work-product and attorney-client privileges.
28 2 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000026
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 61 of 207
1
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
2
any documents that are responsive to this request.
3
REQUEST FOR PRODUCTION NO. 4
4
Any and all DOCUMENTS RELATING TO the Fourth Affirmative Defense listed in
5
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
6
RESPONSE TO REQUEST NO. 4
7
Defendants object to this request on the grounds that it calls for the production of
8
documents that are protected by the attorney-work-product and attorney-client privileges.
9
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
10
any documents that are responsive to this request.
11
REQUEST FOR PRODUCTION NO. 5
12
Any and all DOCUMENTS RELATING TO the Fifth Affirmative Defense listed in
13
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
14
RESPONSE TO REQUEST NO. 5
15
Defendants object to this request on the grounds that it calls for the production of
16
documents that are protected by the attorney-work-product and attorney-client privileges.
17
Without waiving those objections, Defendants will produce all non-privileged documents
18
responsive to this request on or before December 21, 2007. This request is duplicative of other
19
requests contained in Plaintiff’s request for production, set one, and the documents produced in
20
response to this request may refer to the documents produced in response to other requests.
21
REQUEST FOR PRODUCTION NO. 6
22
Any and all DOCUMENTS RELATING TO the Sixth Affirmative Defense listed in
23
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
24
RESPONSE TO REQUEST NO. 6
25
Defendants object to this request on the grounds that it calls for the production of
26
documents that are protected by the attorney-work-product and attorney-client privileges.
27
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
28
any documents that are responsive to this request. 3 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000027
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
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REQUEST FOR PRODUCTION NO. 7 Any and all DOCUMENTS RELATING TO the Seventh Affirmative Defense listed in
3
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
4
RESPONSE TO REQUEST NO. 7
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that are protected by the attorney-work-product and attorney-client privileges.
7
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
8
any documents that are responsive to this request.
9
REQUEST FOR PRODUCTION NO. 8
10
Any and all DOCUMENTS RELATING TO the Eighth Affirmative Defense listed in
11
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
12
RESPONSE TO REQUEST NO. 8
13
Defendants object to this request on the grounds that it calls for the production of
14
documents that are protected by the attorney-work-product and attorney-client privileges.
15
Without waiving those objections, Defendants will produce all non-privileged documents
16
responsive to this request on or before December 21, 2007. This request is duplicative of other
17
requests contained in Plaintiff’s request for production, set one, and the documents produced in
18
response to this request may refer to the documents produced in response to other requests.
19
REQUEST FOR PRODUCTION NO. 9
20
Any and all DOCUMENTS RELATING TO the Ninth Affirmative Defense listed in
21
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
22
RESPONSE TO REQUEST NO. 9
23
Defendants object to this request on the grounds that it calls for the production of
24
documents that are protected by the attorney-work-product and attorney-client privileges.
25
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
26
any documents that are responsive to this request.
27
REQUEST FOR PRODUCTION NO. 10
28 4 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000028
Case 1:07-cv-00026-OWW-TAG
1
Document 83
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Any and all DOCUMENTS RELATING TO YOUR organizational structure during
2
Plaintiff’s employment with YOU, including but not limited to organizational charts, diagrams
3
and drawings.
4
RESPONSE TO REQUEST NO. 10
5
Defendants will produce all documents responsive to this request. Production may occur
6
in stages. The first stage of production will be on November 20, 2007 and may include all
7
responsive documents. If other responsive documents are discovered, they will be produced by
8
December 7, 2007.
9
REQUEST FOR PRODUCTION NO. 11
10
Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories
11
or lists, including but not limited to names, direct work phone numbers, departments, etc. which
12
were maintained by YOU during Plaintiff’s employment with YOU.
13
RESPONSE TO REQUEST NO. 11
14
Defendants will produce all non-privileged documents responsive to this request.
15
Production may occur in stages. The first stage of production will be on November 20, 2007 and
16
may include all responsive documents. If other responsive documents are discovered, they will
17
be produced by December 7, 2007. Defendants will redact personal or confidential information
18
as appropriate.
19
REQUEST FOR PRODUCTION NO. 12
20
Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
21
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or
22
employer manuals maintained by YOU that YOU contend governed Plaintiff’s terms and
23
conditions of employment at any time during the period from October 1, 2000 to October 4,
24
2007. These include but are not limited to YOUR ordinances, Kern Medical Center’s
25
Administrative Procedures Manual, Kern Medical Center’s Policy & Administrative Procedures
26
Manual, policies RELATING TO disability discrimination, reasonable accommodation,
27
interactive process, personal leave, administrative leave, medical leave, retaliation, investigations
28
into complaints of unlawful employment practices, discipline of employees, investigation of 5 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000029
Case 1:07-cv-00026-OWW-TAG
Document 83
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1
employees, appointment of Kern Medical Center acting department chairs, hiring of Kern
2
Medical Center department chairs, demotion of Kern Medical Center department chairs, and
3
policies RELATING TO Kern Medical Center’s Pathology Department.
4
RESPONSE TO REQUEST NO. 12
5
Defendants object to this request to the extent it requests documents that contain
6
confidential personnel information, documents protected from disclosure by state or federal law,
7
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
8
Without waiving these objections, Defendants will produce documents responsive to this request
9
by December 21, 2007. Defendants will redact confidential peer review and personnel
10
information as appropriate.
11
REQUEST FOR PRODUCTION NO. 13
12
Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
13
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or
14
employer manuals maintained by YOU that YOU contend was distributed or made available to
15
YOUR employees, whether management or non-management, from October 24, 200 to the
16
present and the date of such asserted distribution. These include but are not limited to YOUR
17
ordinances, Kern Medical Center’s Administrative Procedures Manual, Kern Medical Center’s
18
Policy & Administrative Procedures Manual, policies RELATING TO disability discrimination,
19
reasonable accommodation, interactive process, personal leave, administrative leave, medical
20
leave, retaliation, investigations into complaints of unlawful employment practices, discipline of
21
employees, investigation of employees, appointment of Kern Medical Center acting department
22
chairs, hiring of Kern Medical Center department chairs, demotion of Kern Medical Center
23
department chairs, and policies RELATING TO Kern Medical Center’s Pathology Department.
24
RESPONSE TO REQUEST NO. 13
25
Defendants object to this request to the extent it requests documents that contain
26
confidential personnel information, documents protected from disclosure by state or federal law,
27
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
28
Without waiving these objections, Defendants will produce documents responsive to this request 6 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000030
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
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1
by December 21, 2007. Defendants will redact confidential peer review and personnel
2
information as appropriate.
3
REQUEST FOR PRODUCTION NO. 14
4
Any and all DOCUMENTS RELATING TO peer review, quality management and
5
quality assurance policies and procedures at Kern Medical Center, included but not limited to
6
Kern Medical Center’s Quality Management and Performance Improvement Plan, from October
7
24, 2000 to the present, and the effective dates.
8
RESPONSE TO REQUEST NO. 14
9
Defendants object to this request to the extent it requests documents that contain
10
confidential personnel information, documents protected from disclosure by state or federal law,
11
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
12
Without waiving these objections, Defendants will produce documents responsive to this request
13
by December 7, 2007.1. Defendants will redact confidential peer review and personnel
14
information as appropriate.
15
REQUEST FOR PRODUCTION NO. 15
16 17
Any and all DOCUMENTS RELATING TO any training provided by YOU to YOUR officers, directors, agents or employees on the following subjects:
18
a) disability discrimination
19
b) accommodation of an employee’s disability
20
c) the interactive process regarding accommodation of an employee’s disability
21
d) medical leave rights
22
e) whistleblower retaliation
23
f) medical leave retaliation
24
g) due process required for demotion
25
h) due process required for pay cut
26
i) due process required for termination of employment
27
j) defamation
28
k) Fair Labor Standards Act 7 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000031
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
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RESPONSE TO REQUEST NO. 15
2
Defendants object to this request to the extent it requests documents that contain
3
confidential personnel information, documents protected from disclosure by state or federal law,
4
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
5
Without waiving these objections, Defendants will produce documents responsive to this request
6
by December 21, 2007.
7
REQUEST FOR PRODUCTION NO. 16 Any and all DOCUMENTS RELATING To the PERSONNEL FILES of the following
8 9
people.
10
a) Plaintiff David F. Jadwin
11
b) Elsa Ang
12
c) Ellen Bunyi-Teopengco
13
d) Philip Dutt
14
e) Carol Gates
15
f) Adam Lang
16
g) Fangluo Liu
17
h) Savita Shertukde
18
i) Navin Amin
19
j) Kathy Griffith
20
k) Alice Hevle
21
l) Denise Long
22
m) Gilbert Martinez
23
n) Albert McBride
24
o) Javad Naderi
25
p) Jane Thornton
26
q) Nitin Athavale
27
r) Chester Lau
28
s) Jennifer J. Abraham 8 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000032
Case 1:07-cv-00026-OWW-TAG
1
t) Bernard C. Barmann
2
u) Karen S. Barnes
3
v) Peter K. Bryan
4
w) David Culberson
5
x) Irwin E. Harris
6
y) Royce Johnson
7
z) Eugene K. Kercher
8
aa) Alan Scott Ragland
9
bb) William Roy
10
cc) Maureen Martin
11
dd) Steven O‘Connor
12
ee) Antoinette Smith
13
ff) Edward Taylor
14
gg) Marvin Kolb
15
hh) Dianne McConnehey
16
ii) Renita Nunn
17
jj) Ravi Patel
18
kk) Jose Perez
19
ll) Evangeline Gallegos
20
mm)
21
nn) Bonnie Quinonez
22
oo) James Sproul
23
pp) Rebecca Rivera
24
qq) Sheldon Freedman
25
rr) Joseph Mansour
26
ss) George Alkouri
27
tt) Nicole Sharkey
28
Document 83
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Sergio Perticucci
RESPONSE TO REQUEST NO. 16 9 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000033
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 68 of 207
Defendants have already produced the personnel file of David F. Jadwin. Defendants
2
will confirm that the personnel file previously produced was complete as of the time of its
3
production and, on or before December 7, 2007, will augment the documents previously
4
produced with any additional materials, if any, that have been added into Mr. Jadwin’s personnel
5
file since the file was produced. Plaintiff has narrowed the scope of this request by eliminating
6
all other documents initially requested.
7
REQUEST FOR PRODUCTION NO. 17
8 9 10
Any and all DOCUMENTS RELATING TO the search, recruitment, application, interviewing, and hiring process that resulted in Plaintiff’s employment by YOU. RESPONSE TO REQUEST NO. 17
11
Defendants object to this request to the extent it requests documents that contain
12
confidential personnel information, documents protected from disclosure by state or federal law,
13
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
14
Without waiving these objections, Defendants will produce all documents responsive to this
15
request by December 21, 2007.
16
REQUEST FOR PRODUCTION NO. 18
17
Any and all DOCUMENTS RELATING TO the terms, conditions and privileges of
18
Plaintiff’s employment with YOU.
19
RESPONSE TO REQUEST NO. 18
20 21 22
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 19 Any and all DOCUMENTS RELATING TO Plaintiff’s job duties and responsibilities for
23
each position held by Plaintiff during this employment with YOU.
24
RESPONSE TO REQUEST NO. 19
25 26 27 28
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 20 Any and all DOCUMENTS RELATING TO Plaintiff’s payroll, compensation, base salary and “professional fee payments”, as that term is defined in Plaintiff’s employment 10 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000034
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 69 of 207
1
contracts with YOU, including but not limited to any and all changes in compensation and the
2
reasons for changes, throughout Plaintiff’s employment with YOU.
3
RESPONSE TO REQUEST NO. 20
4 5 6
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 21 Any and all DOCUMENTS RELATING TO YOUR policies, guidelines and practices
7
regarding base salary steps, salary guidelines, deferred compensation plans, pension plans, health
8
insurance and employment benefits applicable to Plaintiff’s position s held throughout his
9
employment with YOU.
10 11 12 13
RESPONSE TO REQUEST NO. 21 Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 22 Any and all DOCUMENTS RELATING TO Plaintiff’s work schedule and/or removal
14
there from, including but not limited to timesheets, from October 24, 200 to present.
15
RESPONSE TO REQUEST NO. 22
16 17 18
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 23 Any and all DOCUMENTS RELATING TO Dr. Phillip Dutt’s timesheets, from April 20
19
2005 to the present.
20
RESPONSE TO REQUEST NO. 23
21
Defendants object to this request to the extent it requests documents that contain
22
confidential personnel information, documents protected from disclosure by state or federal law,
23
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
24
Without waiving these objections, Defendants will produce all non-privileged documents
25
responsive to this request by December 21, 2007. Defendants will redact confidential
26
information, in any, as appropriate.
27
REQUEST FOR PRODUCTION NO. 24
28 11 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000035
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 70 of 207
Any and all DOCUMENTS RELATING TO Dr. Savita Shertukde’s timesheets, from
2
January 4, 2005 to present.
3
RESPONSE TO REQUEST NO. 24
4
Defendants object to this request to the extent it requests documents that contain
5
confidential personnel information, documents protected from disclosure by state or federal law,
6
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
7
Without waiving these objections, Defendants will produce all non-privileged documents
8
responsive to this request by December 21, 2007. Defendants will redact confidential
9
information, in any, as appropriate.
10 11
REQUEST FOR PRODUCTION NO. 25 Any and all DOCUMENTS RELATING TO performance reviews, comments,
12
complaints, warnings, reprimands, counseling, advisory notices or evaluations of Plaintiff’s
13
performance of his job duties throughout his employment with YOU, whether formal or
14
informal.
15
RESPONSE TO REQUEST NO. 25
16
Defendants object to this request to the extent it requests documents that contain
17
confidential personnel information, documents protected from disclosure by state or federal law,
18
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
19
Without waiving these objections, Defendants will produce all non-privileged documents
20
responsive to this request by December 7, 2007. Defendants will redact confidential
21
information, in any, as appropriate.
22
REQUEST FOR PRODUCTION NO. 26
23
Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his
24
employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, written
25
materials, and computer files stored on Plaintiff’s computer at Kern Medical Center’s servers.
26
RESPONSE TO REQUEST NO. 26
27 28
After diligent search, Defendants believe Groupwise calendar information was deleted many months ago as part of the routine 90-day cycling of the Groupwise software. Defendants 12 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000036
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 71 of 207
1
are continuing to search for other materials that were on the computer that was assigned to
2
Plaintiff. Some material was archived before the computer was reassigned. Defendants have
3
identified about 3,000 pages of documents that appear to be responsive to this request but have
4
not yet concluded their search. Defendants will produce all documents responsive to this request
5
by December 7, 2007.
6
REQUEST FOR PRODUCTION NO. 27
7
Any and all DOCUMENTS RELATING TO any meetings RELATING TO Plaintiff or
8
Plaintiff’s employment at Kern Medical Center.
9
RESPONSE TO REQUEST NO. 27
10
Defendants object to this request to the extent it requests documents that contain
11
confidential personnel information, documents protected from disclosure by state or federal law,
12
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
13
Without waiving these objections, Defendants will produce documents responsive to this request
14
by December 7, 2007. Defendants will redact confidential peer review and personnel
15
information, if any, as appropriate.
16
REQUEST FOR PRODUCTION NO. 28
17
Any and all DOCUMENTS RELATING TO performance reviews, comments,
18
complaints, warnings, reprimands, counseling, advisory notices or evaluations of the Kern
19
Medical Center Pathology Department, whether formal or informal, from October 24, 1995 to
20
the present.
21
RESPONSE TO REQUEST NO. 28
22
Defendants object to this request to the extent it requests documents that contain
23
confidential personnel information, documents protected from disclosure by state or federal law,
24
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
25
Without waiving these objections, Defendants will produce documents responsive to this request
26
by December 7, 2007. Defendants will redact confidential peer review and personnel
27
information as appropriate.
28
REQUEST FOR PRODUCTION NO. 29 13 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000037
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
1
Any and all DOCUMENTS RELATING TO Plaintiff’s complaints of:
2
a) disability discrimination
3
b) failure to accommodate
4
c) failure to engage in an interactive process
5
d) violation of medical leave rights
6
e) whistleblower retaliation
7
f) medical leave retaliation
8
g) deprivation of property without due process
9
h) defamation
10 11
Page 72 of 207
i) Fair Labor Standards Act violations RESPONSE TO REQUEST NO. 29
12
Defendants object to this request to the extent it requests documents that contain
13
confidential personnel information, documents protected from disclosure by state or federal law,
14
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
15
Without waiving these objections, Defendants will produce documents responsive to this request
16
by December 21, 2007. Defendants will redact confidential peer review and personnel
17
information as appropriate.
18
REQUEST FOR PRODUCTION NO. 30
19
Any and all DOCUMENTS RELATING TO any investigation of Plaintiff’s complaints
20
of disability discrimination, failure to accommodate, failure to engage in an interactive process,
21
violation of medical leave rights, whistleblower retaliation, medical leave retaliation, defamation,
22
and/or deprivation of property without due process.
23
RESPONSE TO REQUEST NO. 30
24
Defendants object to this request to the extent it requests documents that contain
25
confidential personnel information, documents protected from disclosure by state or federal law,
26
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
27
Without waiving these objections, Defendants will produce documents responsive to this request
28 14 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000038
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 73 of 207
1
by December 21, 2007. Defendants will redact confidential peer review and personnel
2
information as appropriate.
3
REQUEST FOR PRODUCTION NO. 31
4
Any and all DOCUMENTS RELATING TO any procedures available to YOUR
5
employees to complain of corruption, fraud and other wrongful, illegal or unethical conduct, that
6
YOU contend was distributed or made available to YOUR employees, whether management or
7
non-management, from October 24, 2000 to the present, and the date of such asserted
8
distribution(s).
9
RESPONSE TO REQUEST NO. 31
10 11
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 32
12
Any and all DOCUMENTS RELATING TO YOUR discipline of any employee against
13
whom a complaint or grievance of discrimination, harassment, defamation, retaliation, failure to
14
accommodate, and/or failure to engage in an interactive process in their employment was made
15
from October 24, 2000 to date.
16
RESPONSE TO REQUEST NO. 32
17
Defendants object to this request on the grounds that it requests documents that contain
18
confidential personnel information, documents protected from disclosure by state or federal law,
19
including HIPAA and the peer-review privilege, and documents that contain information that is
20
subject to the attorney-client privilege. Defendants do not believe these objections can be
21
resolved by redaction. Defendants also object on the grounds that the request is not reasonably
22
calculated to lead to the discovery of admissible evidence.
23
REQUEST FOR PRODUCTION NO. 33
24
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR
25
past or present employees against YOU for defamation, retaliation, disability discrimination,
26
failure to accommodate, and/or failure to engage in an interactive process, including but not
27
limited to any informal or internal complaints, grievances or charges to any state or federal
28
agency, and complaints filed in any state or federal court from October 24, 2000 to date. 15 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000039
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
Page 74 of 207
RESPONSE TO REQUEST NO. 33 Defendants object to this request on the grounds that it calls for the production of
3
documents that contain confidential personnel information that is not relevant to any issues in
4
this case. Consequently, this request is not reasonably calculated to lead to the discovery of
5
admissible evidence. Defendants also object on the ground that the phrase, “informal or internal
6
complaints” is vague and, depending on interpretation, could include any off-hand gripe by any
7
employee, to the extent it was memorialized in writing. Defendant County of Kern employs
8
several thousand employees. In the past seven years, there could be many documents that fit the
9
description of this request yet none have anything to do with the issues in this case. This request
10
is, accordingly, overbroad and burdensome. Defendants do not believe redaction would resolve
11
these objections.
12
REQUEST FOR PRODUCTION NO. 34
13
Any and all DOCUMENTS RELATING TO any complaints or grievances made to YOU
14
by Plaintiff.
15
RESPONSE TO REQUEST NO. 34
16
Defendants believe all documents responsive to this request have been previously
17
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
18
necessary, by December 7, 2007.
19
REQUEST FOR PRODUCTION NO. 35
20
Any and all DOCUMENTS RELATING TO Plaintiff which YOU sent to or received
21
from any governmental or regulatory authority, including but not limited to the California
22
Department of Fair Employment and Housing, the California Labor and Workforce Development
23
Agency, and the U.S. Department of Labor.
24
RESPONSE TO REQUEST NO. 35
25
Defendants believe all documents responsive to this request have been previously
26
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
27
necessary, by December 7, 2007.
28
REQUEST FOR PRODUCTION NO. 36 16 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000040
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 75 of 207
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
2
evaluation of candidates for the position of staff pathologist at Kern Medical Center during the
3
period from January 1, 2006 to present.
4
RESPONSE TO REQUEST NO. 36
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA and the peer review privilege, and
10
documents that are subject to the attorney-client privilege. Without waving these objections,
11
Defendants will produce non-privileged documents responsive to this request, if any, by
12
December 7, 2007. Defendants will redact confidential and privileged information as
13
appropriate.
14
REQUEST FOR PRODUCTION NO. 37
15
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
16
evaluation of candidates for the position of Chair or Chief of Pathology at Kern Medical Center
17
during the period from January 1, 2006 to present.
18
RESPONSE TO REQUEST NO. 37
19
Defendants object to this request on the grounds that it calls for the production of
20
documents that contain confidential personnel information that is not relevant to any issues in
21
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
22
Defendants also object to this request to the extent it requests information protected from
23
disclosure by state or federal law, including HIPAA and the peer review privilege, and
24
documents that are subject to the attorney-client privilege. Without waving these objections,
25
Defendants will produce non-privileged documents responsive to this request, if any, by
26
December 7, 2007. Defendants will redact confidential and privileged information as
27
appropriate.
28
REQUEST FOR PRODUCTION NO. 38 17 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000041
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 76 of 207
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
2
evaluation of candidates for the position of locus tenens pathologist at Kern Medical Center
3
during the period from January 1, 2006 to present.
4
RESPONSE TO REQUEST NO. 38
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA and the peer review privilege, and
10
documents that are subject to the attorney-client privilege. Without waving these objections,
11
Defendants will produce non-privileged documents responsive to this request, if any, by
12
December 7, 2007. Defendants will redact confidential and privileged information as
13
appropriate.
14
REQUEST FOR PRODUCTION NO. 39
15
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
16
evaluation of candidates for the position of Chair or Chief of OB-GYN at Kern Medical Center
17
during the period from January 1, 2006 to present.
18
RESPONSE TO REQUEST NO. 39
19
Defendants object to this request on the grounds that it calls for the production of
20
documents that contain confidential personnel information that is not relevant to any issues in
21
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
22
Defendants also object to this request to the extent it requests information protected from
23
disclosure by state or federal law, including HIPAA and the peer review privilege, and
24
documents that are subject to the attorney-client privilege. Without waving these objections,
25
Defendants will produce non-privileged documents responsive to this request, if any, by
26
December 7, 2007. Defendants will redact confidential and privileged information as
27
appropriate.
28
REQUEST FOR PRODUCTION NO. 40 18 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000042
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 77 of 207
Any and all DOCUMENTS RELATING TOYOUR removal of Dr. Royce Johnson from
1 2
the position of Chair or Chief of Medicine at Kern Medical Center.
3
RESPONSE TO REQUEST NO. 40 Defendants object to this request on the grounds that it calls for the production of
4 5
documents that contain confidential personnel information that is not relevant to any issues in
6
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
7
Defendants also object to this request to the extent it requests information protected from
8
disclosure by state or federal law, including HIPAA and the peer review privilege, and
9
documents that are subject to the attorney-client privilege.
10
REQUEST FOR PRODUCTION NO. 41 Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
11 12
evaluation of candidates for the position of Chair or Chief of Medicine at Kern Medical Center
13
during the period from October 24, 2000 to present.
14
RESPONSE TO REQUEST NO. 41 Defendants object to this request on the grounds that it calls for the production of
15 16
documents that contain confidential personnel information that is not relevant to any issues in
17
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIPAA and the peer review privilege, and
20
documents that are subject to the attorney-client privilege. Without waving these objections,
21
Defendants will produce non-privileged documents responsive to this request, if any, by
22
December 21, 2007. Defendants will redact confidential and privileged information as
23
appropriate.
24
REQUEST FOR PRODUCTION NO. 42
25
Any and all DOCUMENTS RELATING TO presentations made at the Kern Medical
26
Center oncology conference in May 2005, including but not limited to participant evaluation
27
forms.
28
RESPONSE TO REQUEST NO. 42 19 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000043
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 78 of 207
Defendants object to this request on the grounds that it calls for the production of
1 2
documents that contain confidential personnel information that is not relevant to any issues in
3
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
4
Defendants also object to this request to the extent it requests information protected from
5
disclosure by state or federal law, including HIPAA and the peer review privilege, and
6
documents that are subject to the attorney-client privilege. Without waving these objections,
7
Defendants will produce non-privileged documents responsive to this request, if any, by
8
December 7, 2007. Defendants will redact confidential and privileged information as
9
appropriate.
10
REQUEST FOR PRODUCTION NO. 43 Any and all DOCUMENTS RELATING TO Plaintiff’s presentations made at the Kern
11 12
Medical Center oncology conference on or about October 12, 2005.
13
RESPONSE TO REQUEST NO. 43 Defendants will produce all documents responsive to this request by December 7, 2007.
14 15
REQUEST FOR PRODUCTION NO. 44 Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from
16 17
Chair of Kern Medical Center’s Pathology Department to staff pathologist.
18
RESPONSE TO REQUEST NO. 44 Defendants object to this request to the extent it requests documents that are privileged
19 20
under the attorney-client privilege. Without waiving this objection Defendants will produce all
21
non-privileged documents responsive to this request by December 7, 2007.
22
REQUEST FOR PRODUCTION NO. 45
23
Any and all DOCUMENTS RELATING To the “packets containing information about
24
Dr. Jadwin” which Peter Bryan collected at the end of Kern Medical Center’s Joint Conference
25
Committee discussion and vote on removal of Plaintiff from Chair of Pathology on July 10,
26
2006.
27
RESPONSE TO REQUEST NO. 45
28 20 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000044
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 79 of 207
Defendants are searching for documents responsive to this request. Because of
2
administrative and management changes at Kern Medical Center, it may not be possible to
3
reconstruct the “packets” requested. Defendants object to this request to the extent it requests
4
information protected by the peer-review or attorney-client privileges. Defendants also object to
5
this request to the extent it seeks documents that contain confidential personnel information.
6
Without waiving these objections, and to the extent that the “packets” can be reconstructed,
7
Defendants will produce all documents responsive to this request, if any, by December 21, 2007.
8
REQUEST FOR PRODUCTION NO. 46
9
Any and all DOCUMENTS RELATING TO YOUR decision to place Plaintiff on
10
administrative leave on or about December 7, 2006.
11
RESPONSE TO REQUEST NO. 46
12
Defendants object to this request to the extent it requests information protected by the
13
attorney-client privilege. Without waiving that objection, Defendants believe all documents
14
responsive to this request have been previously produced to Plaintiff. Defendants will confirm
15
this, or produce additional documents if necessary, by December 7, 2007.
16
REQUEST FOR PRODUCTION NO. 47
17
Any and all DOCUMENTS RELATING TO YOUR decision to restrict Plaintiff to his
18
home during working hours from on or about December 7, 2006 to on or about May 1, 2007
19
while he was on administrative leave.
20
RESPONSE TO REQUEST NO. 47
21
Defendants believe all documents responsive to this request have been previously
22
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
23
necessary, by December 7, 2007.
24
REQUEST FOR PRODUCTION NO. 48
25
Any and all DOCUMENTS RELATING TO YOUR decision to lift the restriction of
26
Plaintiff to his home during working hours from on or about December 7, 2006 to on or about
27
May 1, 2007 while he was on administrative leave.
28
RESPONSE TO REQUEST NO. 48 21 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000045
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 80 of 207
Defendants believe all documents responsive to this request have been previously
2
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
3
necessary, by December 7, 2007.
4
REQUEST FOR PRODUCTION NO. 49
5
Any and all DOCUMENTS RELATING TO YOUR decision not to renew Plaintiff’s
6
employment contract with YOU that was purportedly made on or about May 1, 2007.
7
RESPONSE TO REQUEST NO. 49
8 9
Defendants object to this request to the extent it requests information protected by the attorney-client privilege. Without waiving that objection, Defendants believe all documents
10
responsive to this request have been previously produced to Plaintiff. Defendants will confirm
11
this, or produce additional documents if necessary, by December 7, 2007.
12
REQUEST FOR PRODUCTION NO. 50
13
Any and all DOCUMENTS RELATING TO any discipline, coaching, reprimand or
14
corrective action taken against Plaintiff by YOU.
15
RESPONSE TO REQUEST NO. 50
16
Defendants believe all documents responsive to this request have been previously
17
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
18
necessary, by December 21, 2007.
19
REQUEST FOR PRODUCTION NO. 51
20
Any and all DOCUMENTS RELATING TO Kern Medical Center’s Disruptive Physician
21
Policy, including but not limited to Bylaw Committee meeting minutes.
22
RESPONSE TO REQUEST NO. 51
23
Defendants object to this request to the extent it requests documents that contain
24
confidential personnel information, documents protected from disclosure by state or federal law,
25
including the HIPAA and the peer-review privilege, or documents that are subject to the
26
attorney-client privilege. Without waiving these objections, Defendants will produce documents
27
responsive to this request by December 7, 2007. Defendants will redact confidential peer review
28
and personnel information as appropriate. 22 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000046
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
REQUEST FOR PRODUCTION NO. 52 Any and all DOCUMENTS RELATING TO Dr. Rebecca Rivera’s lawsuit against Kern
3
Medical Center filed in Kern County California Superior Court.
4
RESPONSE TO REQUEST NO. 52
5
Page 81 of 207
Plaintiff has narrowed this request to eliminate any documents that have been filed with
6
the Kern County Superior Court. As so limited, this request seeks documents in the County
7
Counsel’s litigation file, many of which are protected by the attorney work product and attorney-
8
client privileges. To the extent this request seeks information that is protected by the attorney-
9
client privilege, Defendants object to it. Defendants also object to this request on the grounds
10
that it is not reasonably calculated to lead to the discovery of admissible evidence. Defendants
11
are in the process of reviewing documents that are may be responsive to this request and, without
12
waiving these objections, will produce non-privileged documents, if any, by December 21, 2007.
13
Defendants may redact privileged information if appropriate.
14
REQUEST FOR PRODUCTION NO. 53
15
Any and all DOCUMENTS RELATING TO services provided to YOU by the Camden
16
Group RELATING TO Kern Medical Center.
17
RESPONSE TO REQUEST NO. 53
18
Defendants believe all documents responsive to this request have been previously
19
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
20
necessary, by December 7, 2007.
21
REQUEST FOR PRODUCTION NO. 54
22
Any and all DOCUMENTS RELATING TO statistics maintained by YOU RELATING
23
TO patient fatalities at Kern Medical Center from October 24, 2000 to the present.
24
RESPONSE TO REQUEST NO. 54
25
Defendants object to this request on the grounds that it calls for the production of
26
documents that contain confidential personnel information that is not relevant to any issues in
27
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
28
Defendants also object to this request to the extent it requests information protected from 23 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000047
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 82 of 207
1
disclosure by state or federal law, including HIPAA and the peer review privilege, and
2
documents that are subject to the attorney-client privilege. Without waving these objections,
3
Defendants will produce non-privileged documents responsive to this request, if any, by
4
December 21, 2007. Defendants will redact confidential and privileged information as
5
appropriate. If the redaction process renders the resulting document useless, Defendants will
6
inform Plaintiff.
7
REQUEST FOR PRODUCTION NO. 55
8 9
Any and all DOCUMENTS RELATING TO the review of Kern Medical Center’s placental evaluations and billing activity as conducted by outside consultants, including but not
10
limited to ProPay Physician Services, LLC, from October 24, 2000 to the present.
11
RESPONSE TO REQUEST NO. 55
12
Defendants object to this request on the grounds that it calls for the production of
13
documents that contain confidential personnel information that is not relevant to any issues in
14
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
15
Defendants also object to this request to the extent it requests information protected from
16
disclosure by state or federal law, including HIPAA and the peer review privilege, and
17
documents that are subject to the attorney-client privilege. Without waving these objections,
18
Defendants will produce non-privileged documents responsive to this request, if any, by
19
December 21, 2007. Defendants will redact confidential and privileged information as
20
appropriate.
21
REQUEST FOR PRODUCTION NO. 56
22
Any and all DOCUMENTS RELATING TO blood bank monthly reports, included but
23
not limited to reports generated by Michelle Burris, from January 2006 to present.
24
RESPONSE TO REQUEST NO. 56
25
Defendants object to this request on the grounds that it calls for the production of
26
documents that contain confidential personnel information that is not relevant to any issues in
27
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
28
Defendants also object to this request to the extent it requests information protected from 24 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000048
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 83 of 207
1
disclosure by state or federal law, including HIPAA and the peer review privilege, and
2
documents that are subject to the attorney-client privilege. Without waving these objections,
3
Defendants will produce non-privileged documents responsive to this request, if any, by
4
December 21, 2007. Defendants will redact confidential and privileged information as
5
appropriate.
6
REQUEST FOR PRODUCTION NO. 57
7
Any and all DOCUMENTS RELATING TO product chart copy-related quality assurance
8
reports from October 24, 2000 to the present.
9
RESPONSE TO REQUEST NO. 57
10
Defendants object to this request on the grounds that it calls for the production of
11
documents that contain confidential personnel information that is not relevant to any issues in
12
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
13
Defendants also object to this request to the extent it requests information protected from
14
disclosure by state or federal law, including HIPAA and the peer review privilege, and
15
documents that are subject to the attorney-client privilege. Without waving these objections,
16
Defendants will produce non-privileged documents responsive to this request, if any, by
17
December 21, 2007. Defendants will redact confidential and privileged information as
18
appropriate.
19
REQUEST FOR PRODUCTION NO. 58
20
Any and all DOCUMENTS RELATING TO prostate needle biopsy reports produced by
21
Dr. Elsa Ang for which Plaintiff had requested a lookback study in October 2005.
22
RESPONSE TO REQUEST NO. 58
23
Defendants object to this request on the grounds that it calls for the production of
24
documents that contain confidential personnel information that is not relevant to any issues in
25
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
26
Defendants also object to this request to the extent it requests information protected from
27
disclosure by state or federal law, including HIPAA and the peer review privilege, and
28
documents that are subject to the attorney-client privilege. Without waving these objections, 25 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000049
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 84 of 207
1
Defendants will produce non-privileged documents responsive to this request, if any, by
2
December 21, 2007. Defendants will redact confidential and privileged information as
3
appropriate.
4
REQUEST FOR PRODUCTION NO. 59 Any and all DOCUMENTS RELATING TO sign-in sheets for Kern Medical Center’s
5 6
Cancer Clinic from January 1, 2003 to the present.
7
RESPONSE TO REQUEST NO. 59 Defendants will produce all documents responsive to this request by December 21, 2007.
8 9
REQUEST FOR PRODUCTION NO. 60 Any and all DOCUMENTS RELATING TO Workplace Violence or Threat Incident
10 11
Reports for all Kern Medical Center personnel from October 24, 2000 to the present.
12
RESPONSE TO REQUEST NO. 60
13
Defendants object to this request to the extent it seeks documents that contain
14
confidential personnel information or information protected by the attorney-client privilege.
15
Defendants also object to the extent the documents contain information protected by the peer-
16
review privilege and on the grounds that the request is not reasonably calculated to lead to the
17
discovery of admissible evidence. Without waiving these objections, Defendants will produce
18
all documents responsive to this request by December 21, 2007. Defendants will redact
19
confidential or privileged information as appropriate.
20
REQUEST FOR PRODUCTION NO. 61 Any and all DOCUMENTS RELATING TO Fine Needle Aspiration policies at Kern
21 22
Medical Center from October 24, 2000 to the present, including but not limited to
23
DOCUMENTS RELATING TO the outside consultant study conducted by Dr. David Lieu in
24
2004.
25
RESPONSE TO REQUEST NO. 61
26
Defendants object to this request to the extent it seeks documents that contain
27
confidential personnel information or information protected by the attorney-client privilege.
28
Defendants also object to the extent the documents contain information protected by the peer26 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000050
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 85 of 207
1
review privilege and on the grounds that the request is not reasonably calculated to lead to the
2
discovery of admissible evidence. Without waiving these objections, Defendants will produce
3
all documents responsive to this request by December 21, 2007. Defendants will redact
4
confidential or privileged information as appropriate.
5
REQUEST FOR PRODUCTION NO. 62
6
Any and all DOCUMENTS RELATING TO Peter Bryan’s appointment calendar from
7
January 1, 2004 to September 1, 2006.
8
RESPONSE TO REQUEST NO. 62
9 10 11 12
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 63 Any and all DOCUMENTS RELATING TO meeting minutes for the following Kern Medical Center committees or groups from October 24, 2000 to the present:
13
a) Medical Executive Committee
14
b) Joint Conference Committee
15
c) Quality Management Committee
16
d) Cancer Committee
17
e) Second Level Peer Review Committee
18
f) Transfusion Committee
19
g) Executive Staff Meetings
20 21
RESPONSE TO REQUEST NO. 63 Defendants object to this request to the extent it requests documents that contain
22
confidential personnel information or information that is protected from disclosure by state or
23
federal law, including HIPAA and the peer review privilege, or documents that are subject to the
24
attorney/client privilege. Without waiving these objections, Defendants will produce documents
25
responsive to this request by December 21, 2007. Defendants will redact confidential or
26
privileged information as appropriate.
27
REQUEST FOR PRODUCTION NO. 64
28 27 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000051
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Any and all DOCUMENTS RELATING TO policies of Kern Medical Center’s
2
Pathology Department from October 24, 2000 to the present.
3
RESPONSE TO REQUEST NO. 64
4 5
Page 86 of 207
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 65
6
Any and all DOCUMENTS RELATING TO case send-out logs for Kern Medical
7
Center’s Pathology Department from January 1, 1999 to the present, including but not limited to
8
corresponding Kern Medical Center pathology reports and reports from outside consultants.
9
RESPONSE TO REQUEST NO. 65
10
Defendants object to this request to the extent it requests documents that contain
11
confidential personnel information or information that is protected from disclosure by state or
12
federal law, including HIPAA and the peer review privilege, or documents that are subject to the
13
attorney/client privilege. Without waiving these objections, Defendants will produce documents
14
responsive to this request by December 7, 2007. Defendants will redact confidential or
15
privileged information as appropriate.
16
REQUEST FOR PRODUCTION NO. 66
17
Any and all DOCUMENTS RELATING TO monthly turn-around-time reports and logs
18
– by pathologist – for pathology reports processed at Kern Medical Center, including but not
19
limited to Pathology Department Semi-annual Reports to the Medical Staff, for the time period
20
from January 1, 1999 to the present.
21
RESPONSE TO REQUEST NO. 66
22
Defendants object to this request to the extent it requests documents that contain
23
privileged peer review information. Without waiving this objection Defendants will produce all
24
documents responsive to this request by December 7, 2007. Defendants will redact all privileged
25
information as appropriate.
26
REQUEST FOR PRODUCTION NO. 67
27 28
Any and all DOCUMENTS RELATING TO monthly or semi-monthly turn-around-time reports and logs – for Kern Medical Center’s Pathology Department as a whole – for pathology 28 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000052
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 87 of 207
1
reports processed at Kern Medical Center including but not limited to surgical pathology,
2
cytology and bone marrow reports, for the time period from January 1, 1999 to the present.
3
RESPONSE TO REQUEST NO. 67
4
Defendants object to this request to the extent it requests documents that contain
5
privileged peer review information. Without waiving this objection Defendants will produce all
6
documents responsive to this request by December 7, 2007. Defendants will redact all privileged
7
information as appropriate.
8
REQUEST FOR PRODUCTION NO. 68
9
Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS authored,
10
reviewed or approved by Plaintiff which YOU sent to any outside pathologists for outside review
11
from June 14, 2006 to the present.
12
RESPONSE TO REQUEST NO. 68
13
Defendants object to this request to the extent it requests documents that contain
14
privileged peer review information. Without waiving this objection Defendants will produce all
15
documents responsive to this request by December 7, 2007. Defendants will redact all privileged
16
information as appropriate.
17
REQUEST FOR PRODUCTION NO. 69
18
Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS RELATING TO
19
Case Numbers S06-4131, S06-4619, S06-5229, S06-73276.
20
RESPONSE TO REQUEST NO. 69
21
Defendants object to this request to the extent it requests documents that contain
22
information that is confidential under HIPAA. Defendants also object to the extent that it
23
requests documents that contain privileged peer-review information. Without waiving these
24
objections Defendants will produce all documents responsive to this request by December 7,
25
2007. Defendants will redact confidential and privileged information as appropriate.
26
REQUEST FOR PRODUCTION NO. 70
27 28
Any and all DOCUMENTS RELATING TO peer review RELATING TO Kern Medical Center’s Pathology Department during the time period from January 1, 1995 to the present, 29 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000053
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 88 of 207
1
including but not limited to computer-generated data, monthly peer review records completed by
2
pathologists, and peer review comment sheets that are completed by pathologists upon discovery
3
of a discrepancy.
4
RESPONSE TO REQUEST NO. 70
5
Defendants object to this request on the ground that it requests privileged peer-review
6
information. Defendants also object on the ground that it requests information that is
7
confidential under HIPAA and not reasonably calculated to lead to the discovery of admissible
8
evidence. Without waiving these objections, Defendants will produce documents responsive to
9
this request by January 7, 2008 if it is possible to redact the confidential and privileged
10
information without rendering the resulting document useless.
11
REQUEST FOR PRODUCTION NO. 71
12
Any and all DOCUMENTS RELATING TO exceptional event logs for histology and
13
pathology on Kern Medical Center’s Pathology Department from January 1, 2006 to the present.
14
RESPONSE TO REQUEST NO. 71
15
Defendants object to this request to the extent it requests documents that contain
16
information that is confidential under HIPAA. Defendants also object to the extent that it
17
requests documents that contain privileged peer review information. Without waiving these
18
objections Defendants will produce all documents responsive to this request by December 7,
19
2007. Defendants will redact confidential and privileged information as appropriate.
20
REQUEST FOR PRODUCTION NO. 72
21
Any and all DOCUMENTS RELATING TO paper accession logs at Kern Medical
22
Center’s Pathology Department from January 1, 2006 to present.
23
RESPONSE TO REQUEST NO. 72
24
Defendants object to this request to the extent it requests documents that contain
25
information that is confidential under HIPAA. Defendants also object to the extent that it
26
requests documents that contain privileged peer review information. Without waiving these
27
objections Defendants will produce all documents responsive to this request by December 7,
28
2007. Defendants will redact confidential and privileged information as appropriate. 30 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000054
Case 1:07-cv-00026-OWW-TAG
1 2
Filed 01/09/2008
Page 89 of 207
REQUEST FOR PRODUCTION NO. 73 Any and all DOCUMENTS RELATING TO tissue disposal records for skull-flaps from
3
January 1, 2006 to the present.
4
RESPONSE TO REQUEST NO. 73
5
Document 83
Defendants object to this request to the extent it requests documents that contain
6
information that is confidential under HIPAA. Defendants also object to the extent that it
7
requests documents that contain privileged peer review information. Without waiving these
8
objections Defendants will produce all documents responsive to this request by December 7,
9
2007. Defendants will redact confidential and privileged information as appropriate.
10
REQUEST FOR PRODUCTION NO. 74
11
Any and all DOCUMENTS RELATING TO audits of Kern Medical Center’s Pathology
12
Department by outside consultants, including but not limited to Dr. Stacey Garry, from October
13
24, 2000 to the present.
14
RESPONSE TO REQUEST NO. 74
15
Defendants object to this request to the extent it requests documents that contain
16
information that is confidential under HIPAA. Defendants also object to the extent that it
17
requests documents that contain privileged peer review information. Without waiving these
18
objections Defendants will produce all documents responsive to this request by December 7,
19
2007. Defendants will redact confidential and privileged information as appropriate.
20
REQUEST FOR PRODUCTION NO. 75
21
Any and all DOCUMENTS RELATING TO Kern Medical Center laboratory personnel
22
defections from June 14, 2006 to the present, including but not limited to exit interview notes.
23
RESPONSE TO REQUEST NO. 75
24
Defendants object to this request on the grounds that it is vague. Defendants do not know
25
what “personnel defections” means. If Plaintiff intends to request a list of employees who have
26
separated from County employment or transferred out of the laboratory, Defendants can prepare
27
such a list but Defendants believe such a list will need to be redacted to remove confidential
28
personnel information. Defendants will produce a list of employees who have separated from 31 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000055
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 90 of 207
1
County employment or transferred out of the laboratory by December 21, 2007 and will redact
2
the information as appropriate.
3
REQUEST FOR PRODUCTION NO. 76
4
Any and all DOCUMENTS RELATING TO dictation transcription logs for Plaintiff
5
from June 14, 2006 to the present.
6
RESPONSE TO REQUEST NO. 76
7 8 9
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 77 Any and all DOCUMENTS RELATING TO dictation transcription logs for Dr. Philip
10
Dutt from June 14, 2006 to the present.
11
RESPONSE TO REQUEST NO. 77
12 13 14
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 78 Any and all DOCUMENTS RELATING TO placental evaluations conducted by Plaintiff
15
from June 14, 2006 to the present.
16
RESPONSE TO REQUEST NO. 78
17
Plaintiff has attempted to narrow this request but the revised request is broader, more
18
burdensome and less calculated to lead to the discovery of admissible evidence than the original
19
request. Defendants object to it for that reason. Defendants object to this request because it is
20
not reasonably calculated to lead to the discovery of admissible evidence and is burdensome.
21
Defendants also object to this request on the grounds that it seeks information that is shielded
22
from disclosure under HIPAA. There are thousands of placental evaluations for the time period
23
specified and they are not centrally filed or maintained. Locating ones conducted by Plaintiff
24
will require writing a computer program that will sort the files. After the files are sorted, it will
25
require a manual review of each file to find the placental evaluation. It will have to be copied
26
and redacted and copied again. Defendants estimate it will take approximately 90 days to
27
comply with this request. Without waiving these objections, Defendants will attempt to locate,
28
copy and produce the documents requested 32 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000056
Case 1:07-cv-00026-OWW-TAG
1 2 3 4
Document 83
Any and all DOCUMENTS RELATING TO Golden Empire Pathology Associates. RESPONSE TO REQUEST NO. 79 After diligent search, Defendants’ have not been able to locate any documents that are responsive to this request.
6
REQUEST FOR PRODUCTION NO. 80
8 9 10
Page 91 of 207
REQUEST FOR PRODUCTION NO. 79
5
7
Filed 01/09/2008
Any and all DOCUMENTS RELATING TO Golden Empire Medical Group. RESPONSE TO REQUEST NO. 80 After diligent search, Defendants’ have not been able to locate any documents that are responsive to this request.
11 12 13 14
Dated: November 20, 2007
LAW OFFICES OF MARK A. WASSER
15 16 17 18
By:
/s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.
19 20 21 22 23 24 25 26 27 28 33 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000057
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 92 of 207
EXHIBIT 8. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/22/07
MTC000058
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/4 11/22/07 3:07 pm
OF
Page 93 of 207 [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: 11/22/2007
Pages: 4 (including cover page) Re: Jadwin/KC: Meet and Confer re RPD1
Comments:
Mark, Transmitted herewith is a meet and confer letter in regard to defendants' responses to plaintiff's request for production of documents, set one. We look forward to having a meet and confer phone call with you next Monday. As we've mentioned previously, if we are unable to resolve these issues, plaintiff intends to move to compel. Happy Thanksgiving.
MTC000059
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Pg 2/4 11/22/07 3:07 pm
Document 83
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 94 of 207
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 22,2007 VIA FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking with you yesterday regarding my email of November 20.
I.
OVERBROAD OBJECTION
As you know, in that email, we had explained that defendants' oft-used objection, "documents protected from disclosure by state or federal law", does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you indicated that defendants would re-state this objection. We look forward to discussing this further with you on Monday's call.
II.
ISSUES RELATED TO SPECIFIC RESPONSES
Plaintiff also notes the following issues with defendants written responses to plaintiff requests for production, set one: Response Issue to Doc ReqNo. 23/24 December 21 seems to be an excessively long time. Also, to what extent are the timesheets attorney-client privileged? To what extent are these documents relating to plaintiff's job performance attorney25 client privileged? 32 These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We intend to move to compel if we cannot resolve this. 33 In past meet and confer calls, plaintiff had narrowed this request to complaints or grievances relating to Kern Medical Center which had been made to a government
MTC000060
From: Law Office of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
36 to 39 40
42 69 70
78
III.
Pg 3/ 4 11/22/07 3:07 pm
Document 83
Filed 01/09/2008
Page 95 of 207
agency or court. These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We intend to move to compel if we cannot resolve this. To what extent are these documents attorney-client privileged? These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We intend to move to compel if we cannot resolve discriminatorylretaliatory this. To what extent are documents relating to the May 2005 oncology conference presentation attorney-client privileged? We still await defendants' response on the patient medical record number issue, both for past and for future disclosures. These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. January 7, 2008 is an unacceptable length of time to wait for these documents. We intend to move to compel if we cannot resolve this. Defendants fail to indicate a date of production.
REQUEST 78
Regarding Request 78, as a means to save time, plaintiff proposes defendants produce the following. We can discuss this at our next conference if you wish. 1.
A printout of a list of all CPT code 88307 reports will produce all placentas. There are less than 4,500 placentas per year. This process should require no more than four hours.
2.
A printout of all pathology reports appearing on the above list. At two reports per minute, this should require approx. 40 hours.
3.
Redaction of patient names (appearing in 3 places on each report) is a highly repetitive task that should require far less than 40 hours. If automated using scanning and Adobe Acrobat, it should take even less time.
These tasks are clerical and do not require a great deal of skill. We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Monday, November 26,2007. Please do not hesitate to contact us with any questions or if you need to reschedule.
cc:
Joan Herrington, Esq. 2 MTC000061
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 4/4 11/22/07 3:07 pm
Document 83
Filed 01/09/2008
Page 96 of 207
David F. Jadwin, D.O., F.C.A.P.
3 MTC000062
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 97 of 207
EXHIBIT 9. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/27/07
MTC000063
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/8 11/27/07 4:02 pm
OF
Page 98 of 207 [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: 11/27/2007
Pages: 8 (including cover page) Re: Jadwin/KC: Meet and Confer re RPD1
Comments:
Dear Mark, Transmitted herewith is a letter in followup to our meet and confer call yesterday. Also enclosed is a draft stipulation as we discussed. Sincerely.
MTC000064
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Pg 2/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 99 of 207
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 27,2007 VIA U.S. MAIL FIRST CLASS & FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff's Requests for Production, Set One Jadwin 1 County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WWITAG)
Dear Mark: It was a pleasure speaking with you yesterday and today regarding my letter to you of November
22. We are writing this letter in follow-up to our discussion. I.
OVERBROAD OBJECTION
As you know, in that email, we had explained that defendants' oft-used objection, "documents protected from disclosure by state or federal law", does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you indicated that the objection referred to HIPAA and peer review privilege, and that defendants would revise the responses to state the objection accordingly by Friday, November 30. II.
PRIVILEGE LOG
You stated that you intend to provide us with a privilege log for all requests by Friday, November 30. III.
ISSUES RELATED TO SPECIFIC RESPONSES
Plaintiff also notes the following issues with defendants' written responses to plaintiff's requests for production, set one: Response to Doc ReqNo. 23/24
25 33
Issue
You stated that these are probably not attorney-client privileged and that defendants may be able to produce them this week. You stated that these are probably not attorney-client privileged. We reiterated that we have already agreed to narrow this request to documents
MTC000065
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
Page 100 of 207
relating to complaints or grievances relating to Kern Medical Center which had been made to a government agency or court. We further explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. You requested and we agreed to send you revised response language which nails down exactly what we are requesting. You confirmed that the documents are already in the process of being collected and that, once the request language is revised, you will produce responsive documents by December 7. Following is the revised language narrowing the request:
36 to 39 40
"COMPLAINTS AGAINST COUNTY. Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or present employees against YOU for defamation, retaliation, disability discrimination, failure to accommodate, and/or failure to engage in an interactive process RELATING TO Kern Medical Center and/or its officers or staff, including but not limited to any infermal sr internal 6slfljllaints, grievances or charges to any state or federal agency, and complaints filed in any state or federal court from October 24, 2000 to date." You explained that some documents will be subject to attorney-client privilege. We explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. You maintain your objections that documents requested are confidential personnel information and that the request is not reasonably calculated to lead to admissible evidence because Dr. Royce's situation is too dissimilar to plaintiff's. Therefore you stated that you do not intend to produce any responsive documents. Since we are at an impasse, we will move to compel. Note: becanse yon are refnsing this reqnest, we are reinstating onr reqnest in Request 16 with respect to Dr. Royce Johnson's personnel fIle. Previously you had objected that the personnel files of state employees are privileged official information. Please see this case:
Garrett v. San Francisco, 818 F.2d 1515, 1518-1519 fnA (9th Cir. 1987)("This court has held that personnel files are discoverable in federal question cases, including Title VII actions, despite claims of privilege. Guerra v. Board ofTrustees, 567 F.2d 352 (9th Cir. 1977); Kerr v. United States District Court, 511 F.2d 192, 197 (9th Cir. 1975), aff'd, 426 U.S. 394, 48 L. Ed. 2d 725,96 S. Ct. 2119 (1976)). Ibid. (where plaintiff sought personnel records of 16 named firefighters to prove
disparate treatment and defendants objected on grounds of privilege, confidentiality, invasion of privacy, and irrelevance, the 9th Cir. opined "Without passing on the merits of plaintiff's discovery motion (a matter which should be addressed first by the district court), we note that the motion, on its face, does not appear to be entirely without merit."). 42 69
You stated that these are probably not attorney-client privileged. You indicated that defendants will disclose patient medical record numbers by December 7, and that you will look into the possibility of doing the same for 2 MTC000066
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
70
Pg 4/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
Page 101 of 207
defendants' past Initial Disclosures. We explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent and that January 7,2008 is an unacceptable length oftime to wait for these documents. You asked for legal authority establishing that state privilege caselaw does not apply in federal court in cases involving a federal question. We agreed to provide it. You also indicated that if we are able to successfully meet and confer on this issue, that you would be able to produce responsive documents by December 21. Please see these cases:
Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100,104 (3d Cir. 1982) (We hold that when there are federal law claims in a case also presenting state law claims, the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule. The question is one of first impression in this court, but our holding is consistent with the legislative history n5 of Rule SOl and the decisions of a number of trial courts. n6 It is also consistent with the general rule in federal practice disfavoring privileges not constitutionally based.) Kerrv. United States District Court, 511 F.2d 192, 196-198 (9th Cir.1975), affd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); (In federal question cases the clear weight of authority and logic supports reference to federal law on the issue of the existence and scope of an asserted privilege; The state's interest is that of a litigant, and not, as in diversity cases, that of a sovereign whose law is being applied in a foreign forum. Reference to federal law in this case is necessary on the issue of the existence and scope ofthe claimed privilege.). 78
IV.
We explained that you failed to indicate a date of production. You said that you would give us a date of production at our next call on November 30. REQUEST 78
Regarding Request 78, we explained that the task of producing these documents is clerical and could be handled by an hourly-paid temporary hire, in one to two weeks. You said you were discussing our latest suggestions with your clients. V.
RELEVANCY OBJECTION
During the call, a topic of discussion was defendants' objection that plaintiff's requests were not reasonably calculated to lead to admissible evidence. Following is some caselaw regarding that. In our view, defendants are adopting an overly expansive view of what the objection covers: Royce Johnson is a fair comparator for Dr. Jadwin in terms of "seriousness" of wrongdoing:
3 MTC000067
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 5/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
Page 102 of 207
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.ll, 49 L. Ed. 2d 493,96 S. Ct. 2574 (1976) (In a Title VII case, plaintiff can meet its burden by showing that other employees (firefighters) who engaged in similar acts of wrongdoing of comparable seriousness . . . were nevertheless retained.) Relevancy is not a proper objection: United States v. Meyer, 398 F.2d 66, 72 (9th Cir. 1968). (In addition to discovering information pertaining to a party's case in chief, it is entirely proper to obtain information for other purposes such as cross-examination of adverse witnesses) 8 Wright & Miller, Federal Practice and Procedure, s 2008 at 41 (1970) (For the question of relevancy is to be more loosely construed at the discovery stage than at the trial.) Olympic Refining Company v. Carter,332 F.2d 260, 266 (9th Cir. 1964) (Thus under Fed.R.Civ.P. 26(b)(1), it is no ground for objection that information sought in pretrial discovery would not be admissible at trial, ifthe testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.).
VI.
12/4-12/6 DEPOSITIONS
We explained that we are incurring hotel, travel and court reporter costs in connection with the upcoming depositions. You agreed to confirm with us shortly that the depositions can go forward as scheduled. You had mentioned that, due to scheduling conflicts, Dr. Wrobel's deposition may need to be moved from Tuesday afternoon to possibly Thursday. Please let us know.
VII.
STIPULATION RE AUTHENTICATION OF DOCUMENTS
We asked if you would consider entering into a stipulation mutually authenticating documents produced by the parties in discovery. You agreed to do so. A draft stipulation is attached for your review.
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Friday, November 30,2007. Please do not hesitate to contact us with any questions or if you need to reschedule.
Very trul\ yours,
~,,---\-
i$ENE D. LEE cc:
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
V
4 MTC000068
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8
Document 83
Pg 6/8 11/27/07 4:02 pm
Filed 01/09/2008
Page 103 of 207
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: [email protected] Joan Herrington SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminister Lane Oakland, CA 94602 Phone: (510) 530-4078 Fax: (510) 530-4725 E-mail: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9
10 II
12 13 14 15 16 17 18 19
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,CA95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barman, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 9330 I Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected] Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
20 21
UNITED STATES DISTRICT COURT
22
EASTERN DISTRICT OF CALIFORNIA
STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY
I
MTC000069
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Pg 7/8 11/27/07 4:02 pm
Filed 01/09/2008
Page 104 of 207
IT IS HEREBY STIPULATED, by and among the parties hereto through their respective
2
counsel, that any and all documents produced by plaintiff and/or by each of the defendants, or
3
any ofthem, in the Initial Disclosures, supplemental disclosures, or pursuant to discovery
4
requests or procedures in this action shall be deemed authentic under Federal Rule of Evidence
5
90 I, provided however that documents generated by third parties shall not be included in this
6
stipulation.
7
8
Dated: December , 2007
LAW OFFICE OF EUGENE LEE
9 By:_--,E",u=e",n",e-=D,-,.~L=..:e,-"e'-----
10
-----1
Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.
11
12 13
Dated: December , 2007
LAW OFFICES OF MARK A. WASSER
14
IS 16
By: _--,M""",a",rk,,--,-,A,,-.-,-W,-,a",s""se",r--,C."a,,-s",au",t""h",o",ri",,-ze"'d"--""on"----_ _L)_ Mark A. Wasser Attorney for Defendants, County of Kern, et al.
17
18 19 20
21 22
23
24 25 26 27
28
STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY
2
MTC000070
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Document 83
3 4
5 6 7
Filed 01/09/2008
Page 105 of 207
ORDER
1
2
Pg 8/8 11/27/07 4:02 pm
The parties having stipulated as hereinabove set forth and good cause appearing therefor; IT IS HEREBY ORDERED, that that any and all documents produced by plaintiff and/or by each ofthe defendants, or any ofthem, in the Initial Disclosures, supplemental disclosures or pursuant to discovery requests or procedures in this action shall be deemed authentic under Federal Rule of Evidence 901, provided however that documents generated by third parties shall not be included in this stipulation. Dated: December _ , 2007
UNITED STATES DISTRICT COURT
8 By: 9 10
_ The Honorable Theresa A. Goldner United States District Judge
11
12 13 14
IS 16 17
18 19 20 21 22
23 24 25 26 27
28
STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY
3
MTC000071
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 106 of 207
EXHIBIT 10. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/30/07
MTC000072
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
(213) 992-3299 TELEPHONE
L A W
(213) 596-0487 FACSIMILE
555 WEST FIFTH STREET, SUITE 3100 LOS ANGELES, CALIFORNIA 90013-1010
O F F I C E
E U G E N E
EUGENE D. LEE, ESQ. PRINCIPAL
O F
L E E
Page 107 of 207 [email protected] E-MAIL WWW.LOEL.COM WEBSITE JOAN E. HERRINGTON, ESQ. OF COUNSEL
November 30, 2007 VIA E-MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff’s Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-OWW/TAG)
Dear Mark: It was a pleasure speaking with you today regarding our letter to you of November 27. We were pleased to hear that you expected most if not all documents to be produced before December 21. We are writing this letter in follow-up to our discussion. I. OVERBROAD OBJECTION We discussed defendants’ objection, “documents protected from disclosure by state or federal law”, which is problematic because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you agreed to revise the responses to state the objection accordingly by either today or next Monday. II. PRIVILEGE LOG You stated that you intend to provide us with a privilege log for all requests by either today or next Monday. III. ISSUES RELATED TO SPECIFIC RESPONSES Plaintiff also notes the following issues with defendants’ written responses to plaintiff’s requests for production, set one: Response Issue to Doc Req No. 23/24 You stated there would not likely be any issue producing these and you would have a more definite idea as to production date by next Monday. 33 You confirmed that plaintiff’s revised request language is adequate and that you will produce responsive documents tentatively by December 7, but you would have a more definite idea as to production date by next Monday. 40 We discussed McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976), establishing Dr. Royce is a fair comparator for disparate treatment. You said you would do some further research and be ready to
MTC000073
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 108 of 207
discuss it with us further by next Monday.
42 69 70
78
I mentioned that if we are unable to resolve this issue, we would reinstate our request in Request 16 with respect to Dr. Royce Johnson’s personnel file. I further mentioned Garrett v. San Francisco, supporting our right to disclosure of personnel files. You stated that these are probably not attorney-client privileged. You stated you would probably have a decision on this by next Monday. We explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We also cited Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 and Kerr v. United States District Court, 511 F.2d 192, 196-198 (9th Cir.1975), establishing that federal privilege applies in federal question cases. You stated that you would research this further and that if we are able to successfully meet and confer on this issue, you would be able to produce responsive documents possibly by December 21. You stated that you would produce possibly by December 21, but that this would be decided by next Monday.
IV. STIPULATION RE AUTHENTICATION OF DOCUMENTS We discussed the draft stipulation and mentioned that some language should be added to ensure documents generated by KMC hospital staff and employees are covered by the stip (as opposed to third parties outside of KMC). You said you would discuss this with your client and get back to us with an answer by next Monday. V. PRIVACY BALANCING TEST You requested caselaw regarding the privacy balancing test for disclosure. We cited Tisdale v Marin General Hospital, 138 FRD 696. If any of the foregoing is inaccurate, please do not hesitate to let us know. We find these letters serve as a useful way to track ongoing items of discussion. We look forward to our next meet and confer conference call with you at 5:00 p.m. on Monday, December 3, 2007. Please do not hesitate to contact us with any questions or if you need to reschedule. Have a nice weekend.
Very truly yours,
EUGENE D. LEE cc:
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
2 MTC000074
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 109 of 207
EXHIBIT 11. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/10/07
MTC000075
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/ 4 12/10/07 2:52 pm
OF
Page 110 of 207 [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: 12/10/2007
Pages: 4 (including cover page) Re: Jadwin/KC: Deposition Meet and Confer
Comments:
Mark, Transmitted herewith is a meet and confer letter regarding plaintiff's requests for production, set one, upcoming depositions, and depositions of last week. Sincerely.
MTC000076
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Document 83
Pg 2/ 4 12/10/07 2:52 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
555
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
WEST FIFTH
Page 111 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
December 10, 2007 VIA FACSIMILE & US MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants' Instructions to Deponents Not to Answer Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure seeing you at plaintiff's depositions on December 4, 5 and 6, 2007.
I.
UPCOMING DEPOSITIONS
On last Friday, we served deposition notices for Peter Bryan, Irwin Harris, Renita Nunn and Patti Perez on you. As you recall, plaintiff and defendants had stipulated to make every Tuesday, Wednesday and Thursday available for depositions. Please confirm that the depositions as scheduled do not raise any scheduling issues.
II.
PRIVILEGE LOG
Earlier, on December 3, we had had a phone call to discuss our outstanding requests for production of documents, set one. As you will recall, we had agreed that you would provide privilege logs by December 6. At the depositions, you mentioned that your assistant had faxed you the privilege logs, but you failed to give them to us. Please provide the privilege logs immediately to us.
III.
OBSTRUCTION OF PLAINTIFF'S DEPOSITIONS
At each ofthe depositions of Drs. Taylor and Naderi (core physicians at KMC), you improperly instructed the deponent not to answer our questions and thereby obstructed the depositions. With respect to Dr. Taylor, plaintiff had asked him to name the core physician at KMC whom he considered to be "arrogant". This question is reasonably calculated to lead to admissible evidence relating to defendants' fifth affirmative defense, which specifically alleges that plaintiff Dr. Jadwin "was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly". This question also relates to disparate treatment of comparators, which is the gravamen of discrimination claims; hence, the identity ofthis comparator and his or her
MTC000077
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 4 12/10/07 2:52 pm
Document 83
Filed 01/09/2008
Page 112 of 207
treatment by KMC is subject to discovery. You instructed Dr. Taylor not to answer even though no privilege was involved or invoked. This constitutes obstruction of plaintiff's deposition. With respect to Dr. Naderi, plaintiff had asked him to discuss his reduced work schedule at KMC over a roughly 2-month period in connection with his son's car accident in or about 1998. Questions regarding Dr. Naderi's leave of absence are reasonably calculated to lead to admissible evidence relating to plaintiff's claim that plaintiff's right to medical leave under FMLA and CFRA were interfered with and that plaintiff suffered retaliation for exercising his rights under FMLA and CFRA. You instructed Dr. Naderi not to answer this "line of questioning" even though no privilege was involved or invoked. This constitutes obstruction of plaintiff's deposition. In addition, several times at plaintiff's depositions from December 4 to 6, 2007, you improperly coached the deponents. In each instance, you were neither stating an objection nor instructing the witness not to answer. Once the deposition transcripts become available, plaintiff intends to move to compel responses to its questions and seek appropriate sanctions for your obstruction of plaintiff's depositions. If you wish to resolution ofthe above issues, please contact us. We would be open to your suggestions.
IV.
RECESS & CONTINUANCE OF DR. TAYLOR'S DEPOSITION
Despite the fact that plaintiff had scheduled Dr. Taylor's deposition almost one month ago, plaintiff were forced to recess the deposition of Dr. Taylor after only 3 hours because Dr. Taylor needed to return to the hospital. You stipulated to a continuance of Dr. Taylor's deposition to another time. Please let us know when would be mutually convenient for you and Dr. Taylor so that we can avoid having the same problem arising again with Dr. Taylor's schedule.
V.
POSSIBLE BREACH OF RULES OF PROFESSIONAL CONDUCT
During the deposition of Dr. Ravi Patel, you testified on the record that you had entered into an oral agreement to represent Dr. Patel as his attorney mere minutes before he entered the deposition room. As you know, Dr. Patel is not a director, officer or managing agent at KMC and is instead the proprietor of an outside contractor laboratory which does business with KMC. Dr. Patel stated on the record that he had not signed a conflict waiver with you. I direct your attention to California Rules of Professional Conduct Rule 3-31 O(B)(l): (B) A member shall not accept or continue representation of a client without providing written disclosure to the client where: (l) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter
2 MTC000078
To: 213-596-0487
From: Law Office OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 4/ 4 12/10/07 2:52 pm
Document 83
Filed 01/09/2008
Page 113 of 207
Although I am not certain as to the above, I recommend you contact the California Ethics Board Hotline and inquire as to whether you may be in breach of Rule 3-310(B)(l) 3-31 O(B)( 1) and what steps you should undertake if such is the case. If! am incorrect, then I offer you my apologies.
Please do not hesitate to contact us with any questions.
, \j1~ \/1\ ,' I
JJ
~iJpENE D. LEE ~lJpENE cc:
Joan Herrington, Esq. V D.O., F.C.A.P. David F. Jadwin, D.G.,
3 MTC000079
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 114 of 207
EXHIBIT 12. DEFENDANTS’ PARTIAL PRIVILEGE LOG, 12/13/07
MTC000080
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 115 of 207
Eugene D. Lee From: Sent: To: Subject: Attachments:
Mark Wasser [[email protected]] Thursday, December 13, 2007 5:36 PM Eugene Lee Prviilege log Priviledge Log 11.30.07.doc
Gene, Here is the privilege log for the documents produced in the last production. We will update this for the documents we will produce next week. 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
MTC000081
PRIVILEDGE LOG Jadwin v. County of Kern, et al. Documents Produced in Response to Plaintiff’s Request for Production of Documents (Set One)
BATES NO.
DATE
TO
FROM
0005166 – 0005168 0005169
20022003
20022003
0005233 - 0005234 0005257
DOCUMENT TYPE Medical Record Suspension List Intense Analysis Action Plan Completion Medical Record Suspension List Intense Analysis Action Plan Completion Medical Record Suspension List Intense Analysis Action Plan Completion Medical Record Suspension List
0005202 - 0005203 0005204
CC
20022003
0005394
1
REASON FOR WITHOLDING/ REDACTING Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review
MTC000082
BATES NO.
DATE
0007053 - 0007060
11/7/06
0007515 - 007521
3/6/06
0007747 - 0007749
11/7/07
0007837 - 0007841
8/22/07
TO
FROM
CC
DOCUMENT TYPE Deficient Charts by Days Outstanding Deficient Charts by Days Outstanding Proctoring Progress Report
Jennifer Abraham
Robert Wallace
0007930
Letter
Provider License Status
0008718 - 0008722
20002001
0008752 - 0008757
20002001
Summary of Annual Competency Ratings by Classification Summary of Annual Competency Ratings by Classification
2
REASON FOR WITHOLDING/ REDACTING Privileged Peer Review/Confidential Personnel Privileged Peer Review/Confidential Personnel Privileged Peer Review/Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel
MTC000083
BATES NO.
DATE
0008830 - 0008834
20002001
0008982 - 008895
20012002
0009336 - 0009337
7/2001 – 6/2002
0009336 - 009337
2003
0009341-0009342
2003
TO
FROM
CC
DOCUMENT TYPE Summary of Annual Competency Ratings by Classification Summary of Annual Competency Ratings by Classification Summary of Action Plans for Unsatisfactory Annual Performance Reviews Disciplinary Actions and Involuntary Terminations Summary of Annual Competency Ratings by Classification
3
REASON FOR WITHOLDING/ REDACTING Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel Privileged Peer Review/Confidential Personnel
MTC000084
BATES NO.
0010925 - 0010926
DATE
3/3/03
TO
Peter H. Parra Barbara Patrick
0011034 - 0011038
FROM
Peter K. Bryan
CC
Marvin Kolb
Jose Perez
0011039-0011042
3/19/07
Members, Board of Supervisors
David K. Culberson
0011044
1/5/07
Ron Errea Fred Plane
David K. Culberson
0011048 0011049-0011067 Not pulled
12/7/06
0011068
3/16/07
Jon McQuiston David K. Don Maben Culberson Barbara Patrick Ray Watson Michael J. Rubio David K. Culberson Irwin Harris
0011101 - 0011125
8/06
Paul Esselman
0011140
DOCUMENT TYPE Memorandum
Memorandum
Ron Errea Bernie Barmann Karen Barnes Irwin Harris
Memorandum and Handwritten Notes Memorandum
Ron Errea E. Ladd
Memorandum
Email
Candidate Presentation Memorandum re Salary
4
REASON FOR WITHOLDING/ REDACTING Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel
Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel
MTC000085
BATES NO.
DATE
011078 - 11080
Not privileged 0011082 - 0011095
TO
FROM
David K. Culberson
CC
DOCUMENT TYPE Memorandum
1/31/06
Agreement for Professional Services – Independent Contractor
5
REASON FOR WITHOLDING/ REDACTING Privileged Confidential Personnel Privileged Confidential Personnel
MTC000086
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 121 of 207
EXHIBIT 13. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/14/07
MTC000087
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 122 of 207
Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Friday, December 14, 2007 11:10 AM [email protected] RE: Jadwin/KC: Discovery issues
Follow Up Flag: Flag Status:
Follow up Completed
Gene, I expect to produce the remaining documents before December 21, as I have anticipated. Our written response will be either before then or within a day or two after. I should know for sure early next week and will tell you. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 14, 2007 11:04 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Discovery issues
Mark, I understand and respect your position. But I ask your understanding that Plaintiff is under time constraints as well and has a duty to move this action forward. I am merely putting you on notice that Plaintiff will file a motion to compel if the dates previously mentioned are not adhered to. There is no ill will behind it, only increasing urgency driven by defendants’ numerous and endless delays. A motion is a waste of everyone’s time, but plaintiff must do what is necessary to prosecute this case diligently. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law Bl09 The Real Meaning of the Holidays O•••mb.c 25, 'II' From: Mark Wasser [mailto:[email protected]]
" . " " ,y "'''"'"''
Sent: Friday, December 14, 2007 10:16 AM 1
MTC000088
Case 1:07-cv-00026-OWW-TAG
To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Discovery issues
Document 83
Filed 01/09/2008
Page 123 of 207
Gene, The only point I want to respond to is your statement that you must “resort to threats in order to resolve this situation.” I was not aware that of your belief in this regard. Whatever “threats” you believe you are making have nothing to do with our position. You tend to default to a “threat” mode but our production and response will occur as we are able to make them and have nothing to do with whatever “threats” you perceive to be making. You should take whatever action you believe is appropriate. We will produce the documents and serve an updated written response as I have indicated. You have been flexible, yes. We appreciate that but, in a production the magnitude of this one, flexibility is required. It is a big task and will not happen any faster just because you make what you refer to as threats. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 14, 2007 9:55 AM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Discovery issues
Mark, We served our document production requests on Kern County on October 11, 2007, more than 2 months ago. We set a reasonable deadline of November 12, 2007. We have extended that deadline by more than a month to December 21, 2007 in an attempt to accommodate Kern County. We also agreed to forego the partial production deadline on December 5. I hope you will agree that we have tried to be flexible. Now you are saying that you may not be able to give us a response until after Dec. 21. We will extend the deadline for Kern County’s written responses to plaintiff’s production requests, set one to December 21, 2007. If we are not in receipt of the responses (including privilege logs) AND production by December 21, we will file a motion to compel. There will be no further extensions. Today is also the deadline for Peter Bryan’s responses to plaintiff’s document production requests. This represents a 2-week extension of the original deadline. If we are not in receipt of the responses AND production by end of business today, we will file a motion to compel. It is unfortunate that we must resort to threats of a motion in order to resolve this situation. However, we have a duty to prosecute this action diligently and we cannot allow discovery to drag on any more than it already has. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.com 2
MTC000089
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 124 of 207
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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.
California Labor" Emplo,ment Law 0109 Dukes v, Wal-Mart: 9th Circuit Upholds Class December 11, lOll From: Mark Wasser [mailto:[email protected]] n."" ,y " ' ' ' ' ' " ' '
Sent: Friday, December 14, 2007 9:22 AM To: [email protected] Subject: RE: Discovery issues. Gene,
I know you need an updated formal response. I do not want to do two more responses, however, and would like to cover everything in the next response. Since I have not had a chance to look through the 9 new boxes of documents the County sent me, I do not know what our response will be yet. As I have explained, there may be some categories for which there are no documents. I don’t know yet. I will give you a firm date for the next response when I see you on Tuesday. Although it is not conventional, the response may be after the production. I don’t know that yet, either. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 13, 2007 5:59 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Discovery issues.
Mark, Thanks for the email it is helpful. However, we still need formal revised responses to plaintiff’s requests for production, set one. Please let me know when you will provide these responses. We need a firm date. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
California Labor" Emplo,ment Law 0109 Dukes v, Wal-Mart: 9th Circuit Upholds Class December 11, 2111 3
n.""
'Y " ' ' ' ' ' " ' ' MTC000090
Case 1:07-cv-00026-OWW-TAG
Document 83
From: Mark Wasser [mailto:[email protected]] Sent: Thursday, December 13, 2007 4:52 PM To: Eugene Lee; Joan Herrington Subject: Discovery issues.
Filed 01/09/2008
Page 125 of 207
Gene, My assistant is out today and I am not technically proficient enough to send letters in her absence. So, this e-mail will have to suffice until she returns. I can put this in letter format then if you would prefer to have a letter. With regard to your letter of December 10, I anticipate sending you the privilege log this afternoon. There has been no “obstruction” of plaintiff’s depositions and your suggestion that there has been is not worthy of further comment. With regard to the depositions of Dr. Taylor and Dr. Naderi, I disagree with your characterization of what happened but I will review the transcripts when they become available and determine whether there is merit to your position. For example, my recollection of your line of questioning to Dr. Naderi is substantially different than yours. Rather than debate it now, I will look at the transcripts and address it then. Dr. Taylor’s deposition will be reset at a mutually convenient time. As you know, we offered to set it for next week but you decided – and I agreed – that doing so would be too ambitious given the other depositions that are already scheduled. The deposition will be reset when we can agree on a date to reset it. Regarding the objections we have asserted to some of your pending requests for production, I have read the cases you cited. They are good cases but they do not help you very much. The Third Circuit decision in General Nutrition, for example, recites the traditional rule that federal privileges apply to federal questions and state law privileges apply where state law provides the rule of decision. (671 F.2d at 103) Although you have alleged violations of civil rights under 42 U.S.C. 1983 and violations of FMLA and FSLA, you have made no connection between the documents you want and a federal question claim that would entitle you to have them. We find no authority that supports your broad contention that state law privileges do not apply in federal court. The Ninth Circuit’s opinion in Garrett v. City and County of San Francisco holds it is your burden to make the requisite showing. (818 F.2d at 1519) The contents of Royce Johnson’s personnel file, to take one example, is privileged under state law and, since he was never a department chair at KMC, cannot offer “comparator” information for any of your federal claims. The issues cannot be resolved by redaction because the documents in the file are, obviously, personal to Dr. Johnson. We find nothing in the cases you cite that requires disclosure of matters that are protected from disclosure by state-law privileges that apply to state-law claims just because Dr. Jadwin’s complaint contains unrelated federal claims. Although the Defendants will produce some documents in response to your requests No. 28, 32, 33, 36, 37, 38, 39, 40, 41, 52, 54, 60, 66, 67, 70, 71, 72 and 75, all those requests raise issues of state-law privilege and none appear to have any connection to any of Dr. Jadwin’s federal claims. Hence, to the extent there are state-law privileges, we see no reason why we cannot assert them. We are willing to discuss this with you and, if our analysis is incorrect, we will reconsider it. Again, our reading of Garrett indicates it is your burden to make the showing. Requests No. 55, 56, 57, 58, 65, 66, 67, 69, 70, 71, 72 and 78 all involve, at least to some extent, documents that contain information that is confidential under HIPAA, which, as you know, is a federal privilege. In many instances, the confidential information can be redacted and, where it can be, we will produce redacted documents. Where redaction will not adequately protect patient confidentiality, we may have no alternative but to object to the request. I received 8 more boxes of documents today and expect to receive another box tomorrow. I believe we remain on the schedule I have previously described and expect to do a supplemental production next week. It remains my belief that you will have all documents that are being produced before December 21. You have asked the Defendants to clarify the “state and federal laws” they are relying on in their objections. We are relying on California Evidence Code sections 1040 and 1157 and California authorities that establish the confidentiality of personnel records, HIPAA and federal authorities that recognize the physician-patient and peer-review privileges. Our analysis is basically set forth in this letter. I think this sums of where things stand. If you want to discuss this further, let me know. Mark
4
MTC000091
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 126 of 207
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]
5
MTC000092
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 127 of 207
EXHIBIT 14. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/17/07
MTC000093
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 128 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Tuesday, December 18, 2007 1:47 PM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Depo Continuance
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Thank you for speaking with me by phone yesterday. You never notified us in advance of the copy charge, which you have told me by phone is estimated to be $10,000 for copy costs associated with the Initial Disclosure, and the two document production installments. You are springing this issue on us just days before the production is due, which production date was extended numerous times from an original production date in November, and suggesting this as an excuse to hold up production yet again. You never previously raised the issue of copy cost regarding the initial disclosure which was produced back on August 6, 2006 (plaintiff’s Initial Disclosure was larger than defendants and should more than offset any cost incurred regarding defendants’ Initial Disclosure). You never mentioned any copy cost associated with the first production installment before yesterday on the phone (which was provided on CD-ROM – we’ve asked for the second installment on CD-ROM as well). $10,000 itself seems an exorbitant amount. I would also add that plaintiff has readily agreed to narrow the document production requests on numerous occasions to expedite matters for defendants. I fail to understand how defendants could have incurred such a substantial $10,000 copy charge without first meeting and conferring with plaintiff. Yesterday was the first I had heard you mention any cost estimate, let alone $10,000. Plaintiff will pay the copy cost reimbursement you have requested so that the production can proceed, but will do so under protest, reserving the right to bring a motion regarding this issue at a later date. Yesterday, I requested you send me the reimbursement receipts as soon as possible. You had stated you would not produce any documents until you were in receipt of payment. I still have yet to receive them. Please send me the invoice ASAP so we can remit payment immediately. You have repeatedly stated that defendants would produce the documents before Friday, December 21. Let’s ensure that happens. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1
MTC000094
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 129 of 207
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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights? o•• emb.c U, 'II' " ... " ,y ...oo,,".. From: Mark Wasser [mailto:[email protected]]
Sent: Monday, December 17, 2007 10:24 AM To: [email protected] Subject: RE: Jadwin/KC: Depo Continuance Gene, Good point, I forgot that. I feel foolish.
We will produce the remaining 9 boxes of documents as soon as you reimburse the County for the photocopying charges incurred to date. The cost of the reproduction for initial disclosures was $193.76. The cost of the first production, in response to your request for production, which we have already made, was $3557.43. This second production, consisting of 9 boxes, will be more than twice that. We will get an estimate of the reproduction costs of the second production today or tomorrow and forward the estimate to you. Upon receipt of your check for $193.76 plus $3557.43 plus the estimate of the cost of the second production, we will proceed to have the 9 boxes copied and delivered to you. Also, Peter Bryan lives and works in Oakland, as you know. The County agreed to produce him, at the County’s cost, in Bakersfield for his deposition tomorrow. As I told you when we talked on our cellphones over the weekend, Mr. Bryan went to Bakersfield on Friday in anticipation of his deposition. He is there now. Since you did not cancel the depositions until after he had arrived in Bakersfield, there was no way I could stop his trip. The County will not produce Mr. Bryan in Bakersfield at County expense again. When you reset his deposition, it will either have to be in Oakland or the County will require prepayment of his travel expenses to Bakersfield. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Sunday, December 16, 2007 1:22 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Depo Continuance
Mark, We spoke twice yesterday about this, but to remove all doubt – Plaintiff is continuing this week’s depositions to a later date. Kinko’s is already working on creating new sets of deposition exhibits which should be ready by this Friday. The cost of the exhibits is roughly $1,400 for 3 sets of copies. One of those sets is for your use. We’ll send you an invoice separately for roughly $470. Have a good rest of the weekend. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 2
MTC000095
Case 1:07-cv-00026-OWW-TAG
TDocument e l : ( 2 1 3 ) 9 983 2 - 3 2 9Filed 9 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com
01/09/2008
Page 130 of 207
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.
Califocnia Laboc & Emplo,ment Law 0109 Dukes v, Wal-Mart: 9th Circuit Upholds Class
" ..." ,y "'oo,,"..
3
MTC000096
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 131 of 207
EXHIBIT 15. SUPPLEMENTED RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 2”), 12/19/07
MTC000097
Dec Dec 19 19 07 07 02:49p 02:49p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1 p.1
Page 132 of 207
The Law Offices of Mark A. Wasser 400 400 Capitol Mall, Suite 1100 Sacramento, Sacramento, California 95814 Office: Office: 916-444-6400
Fax: Fax: 916-444-6405
Fax To:
Eugene Lee
From: MarkWasser
Fax: Fax:
(213) 596-0487
Pages: 38 (including cover page)
Phone: (213) 992-3299
Date:
Re:
CC:
Jadwin v. County of Kern
D Urgent D
D For Review
D Please Comment
December 19, 2007
0 Please Reply
D Please Recycle
• Conunents: Please see attached Defendants' Supplemental Responses.
MTC000098
Case 1:07-cv-00026-OWW-TAG
2
3
4 5
6
7 8
p.2
916-444-6405
Mark Wasser
Dec 19 07 02:50p
Document 83
Filed 01/09/2008
Page 133 of 207
Mark 1\. Wasser CA S8 #60160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 11 00 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasseLcom Bernard C. Barrnann, 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]
9 10
II
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
12 13
UNITED STATES DISTRICT COURT
14
EASTERN DISTRICT OF CALIFORl\-IA
15 16
I7 18
19 20
) Case No.: 1:07-cv-00026-0WW-TAG ) DEFENDANTS' SUPPLEMENTAL 5 RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) ) ) Date Action Filed: January 6, 2007 Trial Date: August 26, 2008
DAVID F. JADWIN, D.O. Plaintiff, vs.
5
COUNTY OF KERN, et al.,
l
Defendants.
21
) ) )
22 23 24
PROPOUNDING PARTY:
Plaintiff DAVID F. JAD"WIN, D.O., F.C.A.P.
25
RESPONDING PARTY:
Defendant COUNTY OF KER!'i
26
SET NUMBER:
ONE (1)
27 28 I DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000099
Dec Dec 19 19 07 07 02:50p 02:50p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
11
916-444-6405 916-444-6405
Document 83
Filed 01/09/2008
p.3 p.3
Page 134 of 207
Defendants hereby submit these responses to PlaintifTDavid f. Jadwin's Request for
22
Production of Documents, Set One. Defendants have not located all the dlJ~uments that are
33
responsive to this request and, for that reason, many of the production dates set forth herein are
44
estimates. estimates. Defendants will supplement or amend this response, if necessary, as additional
55
documents are located and reviewed.
66
REQUEST FQR PRQDUCTION NO.1
77
Any and all DOCUMEKTS RELATING TO the First Affirmative Defense listed in
88
Defendants' Defendants' Answer to Plaintiffs Second Supplemental Complaint.
99
RESPONSE RESPONSE TO REQUEST NO.1
10 10
Defendants object to this request on the grounds that it calls for the production of
11 11
documents that are protected by the attorney-work-product and attorney-client privileges.
12 12
Without waiving those objections, after diligent search, Defendants have not bcen able to locate
13 13
any documents Lhat are responsive to this request.
14 14
REQUEST FOR PRQDUCTION NO.2 REQUEST
15 15
Any and all DOCUMENTS RELATING TO the Second Affumative Defense listed in
16 16
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
17 17
RESPONSE TO REQUEST NO.2
18 18
Defendants object to this request on the grounds that it calls for the production of
19 19
documents that are protected by the attorney-work-product and attorney-client privileges.
20 20
Without waiving those objections, after diligent search, Defendants have not been able to locate
2I 2I
any doclilllents that arc responsive to this request.
22 22
REQUEST FOR PRODUCTION NO.3 REQUEST
23 23
Any and all DOCUMENTS RELATING TO the Third Affirmative Defense listed in
24 24
Defendants' Answer to Plaintiff s Second Supplemental Complaint. Defendants'
25 25
RESPONSE TO REQUEST NQ. 3 RESPONSE
26 26
Defendants object to this request on the grounds that it calls for the production of
27 27
documents that are protected by the attomey-work-product and attorney-client privileges. documents
28 28
2
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000100
Dec 19 07 02:51 p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
pA
Page 135 of 207
1
Without waiving those objections, after diligent search, Defendants have not been able to locate
2
any documents that arc responsive to this request.
J
REOUEST FOR PRODUCTION NO.4
4
Any and all DOCUMENTS RELATlNG TO the Fourth Affirmative Defense listed in
5
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
6
RESPONSE TO REQUEST NO.4
7
Defendants object to this request on the grounds that it calls for the production of
8
documents that ate protected by the attomey-work-product and attorney-client privileges.
9
Without waiving those objections, after diligent search, Defendants have not been able to locate
10
any documents that are responsive to this request.
11
REOUEST FOR PRODUCTION NO.5
12
Any and all DOCUMENTS RELATING TO the Fifth Affirmative Defense listed in
13
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
14
RESPONSE TO REQUEST NO.5
15
Defendants object to this request on the grounds that it calls for thc production of
16
doclunents that are protected by the attorney-work-product and attorney-client privileges.
17
Without waiving those objections, Defendants will produce all non-privileged documents
18
responsive to this request on or hefore December 21, 2007, depending on receipt of
19
reimbursement for estimated copy costs.. This request is duplicative of other requests contained
20
in Plaintiff's request for production, set one, and thc documents produced in response to this
21
request may refer to the documents produced in response to other requests.
22
REQUEST FOR PRODUCTION NO.6
23
Any and all DOCUMENTS RELATING TO the Sixth Affirmative Defense listed in
24
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
25
RESPONSE TO REQUEST NO.6
26
Defendants object to this request on the grounds that it calls for the production of
27
doclunents that ate protected by the attorney-work-product and attorney-client privileges.
,
28 3
DEFENDANTS' SUPPLEMENTAL RESPOl\SES TO PLAINTIFF'S REQUEST FOR PRODUCT10:-.J OF DOCUMEKTS
MTC000101
Dec Dec 19 19 07 07 02:51 02:51 pp
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.5 p.5
Page 136 of 207
11
Without Without waiving those objections, after diligent search, Defendants have not been able to locate
22
any documents that are responsive to this request.
33
REOUEST FOR PRODUCTIOl'" NO.7
44
Any and all DOCUMENTS RELATING TO the Seventh Affirmative Defense listed in
55
Defendants' Defendants' Answer to Plaintiffs Second Supplemental Complaint.
66
RESPONSE TO REQUEST l'0. 7
77
Defendants object to this request on the grounds that it calls for the production of
88
documents documents that are protected by the attorney-work-product and attorney-client privileges.
99
Without Without waiving those objections, after diligent search, Defendants have not been able to locate
10 10
any any documents that arc responsive to this request.
11 11
REQUEST FOR PRODUCTION NO.8
12 12
Any and all DOCUMENTS RELATIKG TO the Eighth Affinnative Defense listed in
13 13
Defendants' Answer to Plaintiffs Second Supplemental Complaint. Defendants'
14 14
RESPONSE TO REQVEST NO.8
15 15
Defendants object to this request on the grounds that it calls for the production of
16 16
documents that are protected by the attomey-work-product and attomey-client privileges. documents
17 17
Without waiving those objections. Defendants will produce all non-privileged documents Without
18 18
responsive to this request on or before December 21, 2007. depending on receipt of responsive
19 19
reimbursement tor estimated copy costs. This request is duplicative of other requests contained reimbursement
20 20
in Plaintiff s request for production, set one, and the documents produced in response to this in
21 21
request may refl::r to the documents produced in response to other requests, request
22 22
REQUEST FOR PRODUCTION NO.9
23 23
Any and all DOCUMENTS RELATING TO the Nintb Affirmative Defense listed in
24 24
Defendants' Answer to Plaintiff's Second Supplemental Complaint. Defendants'
25 25
RESPONSE TO REQUEST NO.9
26 26
Defendants object to lhis request on the grounds that it calls for the production of
27 27
documents that are protected by the attomey-work-produet and attorney-client privileges. documents
28 28 4
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUME:-lTS
MTC000102
Dec Dec 19 19 07 07 02:51 02:51 pp
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p,6 p,6
Page 137 of 207
11
Without waiving those objections, after diligent search, Defendants' have not been able to locate
22
any any documents that are responsive LO this request
33
REQUEST FOR PRODUCTION NQ. 10
44
Any and all DOCUYlENTS RELATING TO YOUR organizational structure during
55
Plaintiff's employment with YOU, including but not limited to organizational charts, diagrams
66
and drawings.
77
RESPONSE TO REQUEST NO. 10
88 99
Defendants will produce all documents responsive to this request. Production is expected to be complete on or about December 21, 2007. depending on receipt of reimbursement for
10 10
estimated copy costs.
11 11
REQVEST FOR PRODUCTION NO. 11
12 12
Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories
13 13
or lists, including but not limited to names, direct work phone numbers, departments, etc, which
14 14
were maintained by YOU during Plaintiff's employment with YOU.
15 15
RESPO:'llSE TQ REQVEST NO. 11
16 16
Defendants will produce all non-privileged documents responsive to this request.
17 17
Production is expected to be complete on or about December 21, 2007, depending on receipt of Production
11R R reimbursement for estimated copy costs. Defendants will redact privileged information as 19 19
appropriate,
20 20
REQUEST FOR PRODUCTION NO. 12
21 21
Any and all DOCUMENTS RELATING TO YOUR persomlel policies, guidelines, fact
22 22
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or sheets,
23 23
employer manuals maintained by YOU that YOU c.ontend governed Plaintiffs terms and
24 24
conditions of employment at any time during the period from October 1, 2000 to October 4,
25 25
2007. These include but are not limited to YOUR ordinances, Kern Medical Center's
26 26
Administrative Procedures Manual, Kern Medical Center's Policy & & Administrative Procedures
27 27
Manual, policies RELATING TO disabilily discrimination, reasonable accommodation,
28 28
interactive process, personal leave, administrative leave, medical leave, retaliation, investigations
5 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000103
Dec Dec 19 19 07 07 02:52p 02:52p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405 916-444-6405
Document 83
Filed 01/09/2008
p.7 p.7
Page 138 of 207
11
into complaints of un lawful employment practices, discipline of employees, investigation of
22
employees, appointment of Kern Medical Center acting department chairs, hiring of Kern
33
Medical Center department chairs, demotion of Kern Medical Center department chairs, and
44
policies policies RELATING TO Kern Medical Center's Pathology Department.
55
RESPONSE TO REQUEST NO. 12
66
Defendants object to this request to the extent it requests documents that contain
77
confidential confidential personnel infonnation, documents protected from disclosure by state or federal law,
SS
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
99
subject to the attorney-client privilege. Without waiving these objections, Defendants will
10 10
produce produce documents responsive to this request by December 21, 2007, depending on receipt of
11 11
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
12 12
personnel personnel information as appropriate.
13 13
REQUEST FOR PRODUCTION NO. 13
14 14
Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
15 15
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or sheets,
16 16
employer manuals maintained by YOU that YOU contend was distributed or made available to employer
17 17
YOUR employees, whether management or non-management, from October 24,2000 to the YOUR
18 18
present and the date of such asserted distribution. These include but are not limited to YOCR present
19 19
ordinances, Kern Medical Center's Administrative Procedures Manual, Kern Medical Center's ordinances,
20 20
Policy & Administrative Procedures Manual, policies RELATING TO disability discrimination, Policy
21 21
reasonable accommodation, interactive process, personal leave, administrative leave, medical reasonable
22 22
leave, retaliation, investigations into complaints of unlawful employment practices, discipline of leave,
23 23
employees, investigation of employees, appointment of Kern Medical Center acting department employees,
24 24
chairs, hiring of Kern Medical Center department chairs, demotion of Kern Medical Center chairs,
25 25
department chairs, and policies RELATING TO Kern Medical Center's Pathology Departmcnt. department
26 26
RESPONSE TO REQUEST NO. 13 RESPONSE
27 27
Defendants object to this request to the extent it requests documents that contain
28 28
confidential personnel infonnation, documents protected from disclosure by state or federal law, 6 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000104
Dec Dec 19 19 07 07 02:52p 02:52p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.8 p.8
Page 139 of 207
11
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
22
subject to the attorney-clicnt privilege_ Without waiving these objections, Defendants will
33
produce documents responsive to this request by December 21, 2007, depending on receipt of
44
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
55
personnel information as appropriate.
66
REQUEST FQR PRODUCTION NO. 14
77
Any and all DOCU::VrENTS RELATING TO peer review, quality management and
88
quality assurance policies and procedures at Kern Medical Center, included but not limited to
99
Kern Medical Center's Quality Management and Performance Improvement Plan, from October
10 10
24, 2000 to thc present, and the effective dates.
II II
RESPONSE TO REOUEST NO. 14
12 12
Defendants object to this request to the extent it requests documents that contain
13 13
confidential personnel information, documents protected from disclosure by state or federal law,
14 14
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
15 15
subject to the attorney-client privilege. Without waiving these objections, Defendanls will
16 16
produce documents responsive to this request by December 21, 2007, depending on receipt of
17 17
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
18 18
personnel information as appropriate.
19 19
REQUEST FOR PRODUCTION NO. 15
20 20 21 21
Any and all DOCUMENTS RELATING TO any training provided by YOU to YOUR officers, directors, agents or employees on the following subjects: officers,
22 22
a) disability discrimination
23 23
b) accommodation of an employee's disability
24 24
c) the interactive process regarding accommodation of an employee's disability
25 25
d) medical leave rights
26 26
e) whistleblower retaliation
27 27
f)f) l11edicalleavc retaliation
28 28
g) due process required for demotion
7 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000105
Dec 19 07 02:53p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.9
Page 140 of 207
h) due process required for pay cut 2
i) due process required for termination of employment
3
j) defamation
4
k) Fair Labor Standards Act
5
RESPONSE TO REQUEST NO. 15
6
Defendants object to this request to the extent it requests documents that contain
7
confidential personnel information, documents protected from disclosure by state or federal law,
8
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
9
subject to the attorney-client privilege. Without waiving these objections, Defendants will
10
produce documents responsive to this request by December 21, 2007, depending on receipt of
11
reimbursement for estimated copy costs. Defendants will redact privileged information, if any,
12
as appropriate.
13
REQUEST FOR PRODUCTION NO. 16 Any and all DOCUMENTS RELATIKG To the PERSONNEL FILES ofthe following
14
15
people.
16
a) Plaintiff David F. Jadwin
17
b) ElsaAng
18
c) Ellen B1Jllyi-Teopengco
19
d) Philip Dutt
20
e) Carol Gates
21
f) Adam Lang
22
g) Fangluo Liu
23
h) Savita Shertukde
24
i) Navin Amin
25
j) Kathy Griffith
26
k) Alice Hevle
27
I) Denise Long
28
m) Gilbert Martinez 8 DEFENDA~TS'
SUPPLEME'HAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000106
Dee 19 07 02:53p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.10
Page 141 of 207
n) Albert McBride
2
0) Javad Naderi
3
p) Jane Thornton
4
q) Nitin Athavale
5
r) ChesterLau
6
s) Jennifer J. Abraham
7
t) Bernard C. Barmann
8
u) Karen S. Barnes
9
v) Peter K. Bryan
10
w) David Culberson
11
x) Irwin E. Harris
12
y) Royce Johnson
13
z) Eugene K. Kercher
14
aa) Alan Scott Ragland
15
bb) William Roy
16
ee) Maureen Martin
17
dd) Steven O'Connor
18
ee) Antoinette Smith
19
ff) Edward Taylor
20
gg) Marvin Kolb
21
00) Dianne MeConnehey
22
ii) RenitaNunn
23
jj) Ravi Patel
24
kk) Jose Perez
25
11) Evangeline Gallegos
26
nun)
27
illl)
28
00) James Sproul
Sergio Pertieueci
Bonnie Quinonez
9 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000107
Dec 19 07 02:53p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.11
Page 142 of 207
pp) Rebecca Rivera 2
qq) Sheldon Freedman
3
rr) Joseph Mansour
4
ss) George Alkouri
5
tt) Nicole Sharkey
6 7
RESPONSE TO REQUEST
~Q.
16
Defendants have already produced the personnel file of David F. Jadwin. Defendants
8
will confirm 1hat the personnel file previously produced was complete as of the time of its
9
production and, on or before December 21, 2007, will augment the documents previously
10
produced with any additional materials, if any, that have been added into Dr. Jadwin's pcrsonnel
II
file since the file was produced. Plaintiff has narrowed the scope oftrus request by eliminating
12
all other documents initially requested.
13
REQUEST FOR l'RODLTTIQN NQ. 17
14
Any and all DOCUMENTS RELATING TO the search, recruitment, application,
IS
interviewing, and hiring process that resulted in Plaintiffs employment by YOU.
16
RESPONSE TO REOUEST
~O.
17
17
Defendants object to this request to the extent it requests documents that contain
18
confidential personnel information, documents protected from disclosure by state or federal law,
]9
including HIPAA, the peer·rcview privilege and the personnel privilege, and documents that are
20
subject to the attomey·client privilege. Without waiving these objections, Defendants will
21
produce all documents responsive to this request by December 21, 2007, depending on receipt of
22
reimbursement for estimated copy costs. Defendants will redact privileged information, if any,
23
as appropriate.
24
REQUEST FOR PRODUCTION ~O. 18
25
Any and all DOCUMENTS RELATl)lG TO the tem1s, conditions and privileges of
26
Plaintiff's employment with YOU.
27
RESPONSE TO REQUEST NQ. 18
28 10 DEFENDA='fTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000108
Dec 19 07 02:54p
Case 1:07-cv-00026-OWW-TAG
p.12
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Page 143 of 207
Defendants will produce all documents responsive to this request by December 21,2007, 2
depending on receipt of reimbursement for estimated copy costs.
3
REOUEST FOR PRODUCTION NO. 19
4
Any and all DOCUMENTS RELATING TO Plaintiff's job duties and responsibilities for
5
each position held by Plaintiff during this employment with YOU.
6
RESPONSE TO REOUEST NO. 19
7
Defendants will produce all documents responsive to this request by December 21,2007,
8
depending on receipt of reimbursement for estimated copy costs.
9
REQUEST FOR PRODUCTION NO. 20
10
Any and all DOCUMENTS RELATING TO Plaintiffs payroll, compensation, base
11
salary and "professional fee payments", as that term is defined in Plaintiffs employment
12
contracts with YOU, including but not limited to any and all changes in compensation and the
13
reasons for changes, throughout Plaintiffs employment with YOU.
14
RESPONSE TO REQUEST NO. 20
15
Defendants will produce all documents responsive to this request by December 21,2007,
16
depending on receipt of reimbursement for estimated copy costs.
17
REQUEST FOR PRODUCTION NO. 21
18
Any and all DOCUMENTS RELATING TO YOUR policies, guidelines and practices
19
regarding base salary steps, salary guidelines, deferred compensation plans, pension plans, health
20
insurance and employment benefits applicable to Plaintiffs position s held throughout his
21
employment with YOU.
22
RESPONSE TO REQUEST NO. 21
23
Defendants will produce all documents responsive to this request by December 21, 2007,
24
depending all receipt of reimbursement for estimalcd copy costs.
25
REQUEST FOR PRODUCTION NO. 22
26
Any and all DOCUMENTS RELATr:.JG TO Plaintiffs work schedule and/or removal
27
there from, including but not limited to timesheets, from October 24,2000 to present.
28
RESPONSE TO REQUEST NO. 22 11
DEFENDANTS' S1JPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000109
Dec Dec 19 19 07 07 02:54p 02:54p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.13 p.13
Page 144 of 207
Defendants will produce all documents responsive to this request by December 21,2007, 22
depending on receipt of reimbursement for estimated copy costs.
33
REQUEST REQUEST FOR PRODVCTION NO. 23
44
Any and all DOCUMENTS RELATING TO Dr. Phillip Dutt's timesheets, from April 20
55
2005 2005 to the present.
66
RESPONSE RESPONSE TO REOUEST KO. 23
77
Defendants will produce all documents responsive to this request by December 21, 2007,
88
depending depending on receipt of reimbursement for estimated copy costs. Defendants will redact
99
privileged privileged information, if any, as appropriate.
10 10 11 11
REQUEST REQUEST FOR PRODUCTION NO. 24 Any and all DOCUMENTS RELATING TO Dr. Savita Sheltukde's timesheets, from
JJ22
January 4, 2005 to present.
13 13
RESPONSE TO REOUEST NO. 24 RESPONSE
14 14
Defendants will produce all documents responsive to this request by December 21, 2007,
15 15
depending on receipt of reimbursement for estimated copy costs. Defendants will redact depending
16 16
privileged infonnation, if any, as appropriate. privileged
17 17
REOUEST FOR PRODUCTION NO. 25 REOUEST
18 18
Any and all DOCUMENTS RELATING TO performance reviews, comments,
19 19
complaints, warnings, reprimands, counseling, advisory notices or evaluations of Plaintiffs complaints,
20 20
performance of his job duties throughout his employment with YOU, whether formal or performance
21 21
informal. informal.
22 22
RESPONSE TO REOUEST NO. 25 RESPONSE
23 23
Defendants object to this reql~esllo the extent it requests documents that contain
24 24
information protected by the attorney-client privilege. Without waiving that objection, information
25 25
Defendants will produce all documents responsive to this request by December 21,2007, Defendants
26 26
depending on receipt of reimbursement for estimated copy costs. Defendants will redact depending
27 27
privileged infonnation, if any, as appropriate. privileged
28 28 12 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLANTIFF'S REQUEST FOR PRODUCTION OF DOCUYIENTS
MTC000110
Dec 19 07 02:54p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
p.14
916-444-6405
Document 83
Filed 01/09/2008
Page 145 of 207
REOUEST FOR PRODUCTION NO. 26 Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his
3
employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, wrillen
4
materials, and computer files stored on Plaintiffs computer at Kern Medical Center's servers.
5
RESPONSE TO REQUEST NO. 26
6
Defendants object to this request to the extent it requests documents that contain
7
confidential persoIlllel information, documents protected from disclosure by state or federal law,
8
including HIP AA, the peer-review privilege and the persoIlllel privilege, and documents that are
9
subject to the attorney-client privilege. After diligent search, Defendants believe Groupwise
10
calendar information was deleted many months ago as part of the routine 90-day cycling of the
11
Groupwise software. Defendants are continuing to search for matcrials that were on the
12
computer that was assigned to Plaintiff. Some material was archived before the computer was
13
reassigned and Defendants will produce copies of the material that was archived by December
14
21,2007, depending on receipt of reimbursement for estimated copy costs. Defendants ...'ill ""ill
15
redact privileged information, if any, as appropriate.
16
REOUEST FOR PRODUCTION NO. 27
17
Any and all DOCUMENTS RELATII\G TO any meetings RELATING TO Plaintiff or
18
Plaintiff s employment at Kern Medical Center.
19
RESPONSE TO REQUEST NO. 27
20
Defendants object to this request to the extent il requests documents that contain
21
information protected by the attorney-client privilege. Without waiving that objection,
22
Defendants will produce documents responsive to this request by December 21, 2007, depending
23
on receipt of reimbursement for estimated copy costs. Defendants "Will redact privileged
24
information, if any, as appropriate.
25
REQUEST FOR PRODUCTION NO. 28
26 27
Any and all DOCUMENTS RELATING TO perfonnance reviews, comments, complaints, warnings, reprimands, counseling, advisory notices or evaluations of the Kern
28 13 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000111
Dec 19 07 02:55p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.15
Page 146 of 207
Medical Center Pathology Department, whether formal or informal, from October 24, 1995 to 2
the present.
3
RESPONSE TO REQUEST NO. 28
4
Defendants object to this request to the extent it Jequests documents that contain
5
confidential personnel information, documents protected from disclosure by state or federal law,
6
including HIPAi"., the peer-review privilege and the personnel privilege, and documents that are
7
subject to the attorney-client privilege. Without waiving that objection, Defendants will produce
8
documents responsive to this request by December 21, 2007, depending on receipt of
9
reimbursement for estimated copy costs. Defendants will redact privileged information, if any,
10
as appropriate.
II
REQUEST FOR PRODUCTION NO. 29
12
Any and all DOCUMENTS RELATING TO Plaintiff's complaints of:
13
a) disability discrimination
14
b) failure to accommodate
15
c) failure to engage in an interactive process
16
d) violation of medical leave rights
17
e) whistleblower retaliation
18
f) medical leave retaliation
19
g) deprivation of property without due process
20
h) defamation
21
i) Fair Labor Standards Act violations
22 23
RESPONSE TO REQUEST NO. 29 Defendants object to this request to the extent it requests documents that contain
24
information protected by the attorney-client privilege. Without waiving that objection,
25
Defendants will produce documents responsive to this request by December 21, 2007, depending
26
on receipt of reimbursement for estimated copy costs. Defendants will redact confidential peer
27
review and persomlel information as appropriate.
28 14 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000112
Dec 19 07 02:55p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.16
Page 147 of 207
REOUEST FOR PRODUCTION NO. 30 2
Any and all DOCUMENTS RELATING TO any investigation of Plaintiffs complaints
3
of disability discrimination, failure to accommodate, failure to engage in an interactive process,
4
violation of medical leave rights, whistleblower retaliation, medical leave retaliation, defamation,
5
and/or deprivation of property \vithout due process.
6
RESPONSE TO
7
REOL~ST NO.
30
Defendants object to tbis request to the extent it requests documents that contain
8
information protected by the attorney-client privilege. Without waiving that objection,
9
Defendants wiII produce documents responsive to this request by December 21,2007, depending
10
on receipt ofreimbursement for estimated copy costs. Defendants will redact confidential peer
11
review and personnel information as appropriate.
12
REOUEST FOR PRODUCTION NO. 31
13
Any and all DOCUMENTS RELATIKG TO any procedures available to YOUR
14
employees to complain of corruption, fraud and other wrongful, illegal or unethical conduct, that
15
YOU contend was distributed or made available to YOUR employees, whether management or
16
non-management, from October 24,2000 to the present, and the date of such asserted
17
distributi on(s).
18
RESPONSE TO REOUEST NO. 31
19
Defeudants will produce all documents responsive to this request by December 21,2007,
20
depending on receipt ofreimbursement for estimated copy costs.
21
REOUEST FOR PRODUCTION NO. 32
22
Any and all DOCUMENTS RELATING TO YOUR discipline of any employee against
23
whom a complaint or grievance of discrimination, harassment, defamation, retaliation, failure to
24
accommodate, and/or failure to engage in an interactive process in their employment was made
25
from October 24, 2000 to date.
26
RESPONSE TO REQUEST NO. 32
27 28
Defendants objccllo this request all the grounds that it requests documents that contam confidential personnel information, documents protected from disdosure by state or federal law, 15
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000113
Dec 19 07 02:56p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.17
Page 148 of 207
including H[P1\1\, the peer-review privilege and the personnel privilege, and documents that 2
contain information protected by the attorney-client privilege. Defendants do not believe these
3
objections can be resolved by redaction. Defendants also object on the grounds that the request
4
is not reasonably calculated to lead to the discovery of admissible evidence.
5
REOUEST FOR PRODUCTION NO. 33
6
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR
7
past or present employees against YOU for defamation, retaliation, disability discrimination,
S
failure to accommodate, and/or failure to engage in an interactive process, including but not
9
limited to any infonnal or internal complaints, grievances or charges to any state or federal
10
agency, and complaints filed in any state or federal court from October 24,2000 to date.
II
RESPONSE TO REOUEST NO. 33
12
Defendants object to this request on the grounds that it calls for the production of
13
documents that contain confidential personnel information that is not relevant to any issues in
14
this case, Consequently, this request is not reasonably calculated to lcad to the discovery of
15
admissible evidence. Defendants also object on the ground that the phrase, "informal or internal
16
complaints" is vague and, depending on interpretation, could include any off-hand gripe by any
17
employee, to the extent it was memorialized in writing. Defendant County of Kcrn employs
18
several thousand employees. In the past seven years, there could be many documents that fit the
19
description of this request yet none have anything to do with the issues in this case. This request
20
is, accordingly, overbroad and burdensome. Defendants do not believe redaction would resolve
21
these objections.
22
REOUEST FOR PRODUCTION NO. 34
23
Any and all DOCUMENTS RELATI'JG TO any complaints or grievances made to YOU
24
by Plaintiff.
25
RESPONSE TO REQUEST NO. 34
26
Defendants believe all documents responsive to this reques! have been previously
27
produced. Defendants will confirm this or prodnce additional documents, if there arc any, by
28
December 21,2007, depending on receipt of reimbursement for estimated copy costs.
16 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000114
Dec 19 07 02:56p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
p.18
916-444-6405
Document 83
Filed 01/09/2008
Page 149 of 207
REOUEST FOR PRODUCTION NO. 35 Any and all DOCUMENTS RELATING TO Plaintiff which YOU sent to or received
3
from any governmental or regulatory authority, including but not limited to the California
4
Department of Fair Employment and Housing, the California Labor and Workforce Developmen
5
Agency, and the U.S. Department of Labor.
6
RESPONSE TO REOUEST NO. 35
7
Defendants believe all documents responsive to this request have been previously
8
produced. Defendants will confirm this or produce additional documents, if there are any, by
9
December 21, 2007, depending on receipt of reimbursement for estimated copy costs.
10 11
REOUEST FOR PRODUCTION NO. 36 Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
12
evaluation of candidates for the position of staff pathologist at Kern Medical Center during the
13
period from January 1, 2006 to present.
14
RESPONSE TO REQUEST ]\"0. 36
15
Defendants object to tllis request on the grounds that it calls for the production of
16
documents that contain confidential personnel infonl1ation that is not relevant to any issues in
17
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
20
privilege, and documents that contain information protected by tht: attorney-client privilege.
21
After review of the documents potentially responsive to this request, Defendants have
22
detennined that the burden of redacting privileged information outweighs the l11atginal relevancy
23
of the remaining information in the documents.
24
REQUEST FOR PRODUCTION NO. 37
25
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
26
evaluation of candidates for the position of Chair or Chief of Pathology at Kern Medical Center
27
during the period from January 1, 2006 to present.
28
17 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000115
Dec 19 07 02:56p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
916-444-6405
Document 83
Filed 01/09/2008
p.19
Page 150 of 207
RESPONSE TO REQUEST NQ. 37 Defendants object to this request on the grounds that it calls for the production of
3
documents that contain confidential personnel infOlmation that is not relevant to any issues in
4
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
5
Defendants also object to this request to the extent it requests information protected from
6
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
7
privilege, and documents that contain information protected by the attorney-client privilege.
S
\Vithout waiving those objectiono, after diligent scarch, Defendants have not been able to locate
9
any documents that are responsive to this request.
10 11
REQUEST FQR PRODUCTION NO. 38 Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and
12
evaluation of candidates for the position oflocum tenens pathologist at Kern Medical Center
13
during the period from January 1, 2006 to present.
14
RESPONSE TO REQUEST NO. 38
IS
Defendants object to this request on the grounds that it calls for the production of
16
documenlo that contain confidential personnel information that is not relevant to any issues in
17
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
20
privilege, and documents that contain information protected by the attorney-client privilege.
21
After review of the documents potentially responsive to this request, Defendants have
22
determined that the burden of redacting privileged information outweighs the marginal relevancy
23
of the remaining information in the documents.
24
REQUEST FOR PRODUCTION NO. 39
25
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
26
evaluation of candidates for the position of Chair or Chief of OB-G YN at Kern Medical Center
27
during the period trom January 1, 2006 to present.
28 18
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMEKTS
MTC000116
Dec 19 07 02:57p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.20
Page 151 of 207
RESPONSE TO REOUEST NO. 39 2
Defendants object to this request on the grounds that it calls for the production of
3
documents that contain confidential personnel information that is not relevant to any issues in
4
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
5
Defendants also object to this request to the extent it requests information protected from
6
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
7
privilege, and documents that contain infonnation protected by the attorney-client privilege.
S
After review of the documents potentially responsive to this request, Defendants have
9
determined that the burden of redac1ing privileged information outweighs the marginal relevancy
10
of the remaining information in the documents.
11
REOUEST FOR PRODUCTION :\'0.40
12
Any and all DOCUMENTS RELATING TOYOURremoval of Dr. Royce Johnson from
13
the position of Chair or Chief of Medicine at Kern Medical Cmter.
14
RESPONSE TO REQUEST NO. 40
15
Defendants object to this request on the grounds that it calls for the production of
16
documents that contain confidential personnel information Ihat is not relevant to any issues in
l7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIP AA and the peer review privilege, and
20
documents that are subject to the attomey-client privilege.
21
REQUEST FOR PRODUCTION NO. 41
22
Any and all DOCUMENTS RELATL"lG TOYOUR search for, recruitment, of and
23
evaluation of candidates for the position of Chair or Chief of Medicine at Kern Medical Center
24
during the period from October 24, 2000 to present.
25
RESPONSE TO REQUEST NO. 41
26
Defendants object to this request on the grounds that it calls for the production of
27
documents that contain confidential personnel information that is not relevant to any Issues in
2~
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
19 DEFENDA:\iTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000117
Dec 19 07 02:57p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.21
Page 152 of 207
1
Delendants also object to this request to the extent i1 requests information protected from
2
disclosurc by statc or federal law, including HIPAA, the peer-review privilege and the personnel
3
privilege, and documents that contain information protected by the attorney-client privilege.
4
After review of the documents potentially responsive to this request, Defendants have
5
determined that the burden of redacting privileged information outweighs the marginal relevancy
6
of the remaining information in the documents.
7
REOUEST FORPRODlJCTION NO. 42
8
Any and all DOCUMENTS RELATING TO presentations made at the Kern Medical
9
Center oncology conference in May 2005, including but not limited to participant evaluation
10
forms.
II
RESPONSE TO REQUEST NO. 42
12
Defendants object to this request on the grounds that it calls for the production of
13
documents that contain contidential personnel infonnation that is not rclcvant to any issues in
14
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
IS
Defendants also object to this request to the extent it requests information protected from
16
disclosure by state or federal law, including HIPAA and the peer review privilege, and
17
documents that are subject to the attorney-client privilege. Without waving these objections,
18
Defendants will produce non-privileged documents responsive to this request. if any, by
19
December 21, 2007. Defend,mb will redact privileged, ifany, information as appropriate.
20
REQUEST FOR PRODUCTION NO. 43
21
Any and all DOCU.\1EKTS RELATINO TO Plaintiffs presentations made at the Kern
22
Medical Center oncology conference on or about October l2, 2005.
23
RESPQ:'-[SE TQ REQUEST NO. 43
24
Defendants object to this request on the grounds that it calls for the production of
25
documents that contain confidential personnel information that is not relevant to any issues in
26
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
27
Defendants also object to this request to the extent it requests infonnation protected from
28
disclosure by state or federal law, including HIP AA and the peer review privilege, and 20 DEFENDANT~' ~UPPLEMENTAL RESPONSES
TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMEKTS
MTC000118
Dec 19 07 02:58p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.22
Page 153 of 207
documents that are suhject to the attorney-client privilege. Without waving these objeclions, 2
Defendants will produce non-privileged documents responsive to this request, if any, by
3
December 21,2007. Defendants will redact privileged, if any, information as appropriate,
4
REQUEST FOR PRODUCTION NO. 44
5
Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintifffrorn
6
Chair ofKem Medical Center's Pathology Department to staff pathologist.
7
RESPONSE TO REQUEST NO. 44
8 9
Defendants object to this request to the extent it requests documents that are privileged under the attorney-client privilege. Without waiving this objection Defendants will produce all
10
non-privileged documents responsive to this request by December 21,2007, depending on
II
receipt of reimbursement for estimated copy costs.
12
REQUEST FOR PRODUCTION NO. 4S
13
Any and all DOCU:v.lENTS RELATING To the "packets containing information about
14
Dr. Jadwin" which Peter Bryan collected at the end of Kern Medical Center's Joint Conference ofKem
15
Committee discussion and vote on removal of Plaintiff from Chair of Pathology on July 10,
16
2006.
17
RESPONSE TO REQUEST NO. 45
18
Defendants are searching for documents responsive to this request. Because of
19
administrative and management changes at Kern Medical Center, it may not be possible to
20
reconstruct the "packets" requested. Defendants object to this request to the extent it requests
21
information protected by the peer-review or attorney-client privileges, Defendants also object to
22
this request to the extent it seeks documents thal contain confidential persoIUlel information.
23
Without waiving these objections, and to the extent that the "packets" can be reconstructed,
24
Defendants will produce all documents responsive to this request, if any, by December 21,2007,
25
depending on receipt of reimbursement for estimated copy costs.
26
REQUEST FOR PRODUCTION NO. 46
27 28
Any and all DOCUMENTS RELATING TO YOUR decision to place Plaintiff on administrative leave on or about December 7, 2006. 21
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000119
Dec 19 07 02:59p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1
2
916-444-6405
Document 83
Filed 01/09/2008
p.23
Page 154 of 207
RESPONSE TO REQUEST NQ. 46
Defendnnts object to this request to the extent it requests information protected by the
3
attorney-client privilege. Without waiving that objection, Defendants believe all documents
4
responsive to this request have been previously produced. Defendants will confirm this or
5
produce additional documents, if mere are any, by December 21, 2007, depending on receipt of
6
reimbursement for estimated copy costs.
7
REQUEST FOR PRODUCTION NO. 47
8 9
Any and all DOCUMENTS RELATING TO YOUR decision to restrict Plaintiff to his home during working hours from on or about December 7, 2006 to on or about May 1,2007
10
while he was on administrative leave.
11
RESPONSE TO REQUEST NO. 47
12
Defendants believe all documents responsive to this request have been previously
13
produced. Defendants will confinll this or produce additional documents, ifthere are any, by
14
December 21,2007, depending on receipt of rei mbursement for estimated copy costs.
15
REQUEST FOR PRODUCTION NO. 48
16
Any and all DOCUMENTS RELATING TO YOUR decision to lift me restriction of
17
Pillintiffto his home during working hours from on or about December 7, 2006 to on or about
IS
May 1, 2007 while he was on administrative leave.
19
RESPONSE TO REOUEST NO. 48
20
Defendants believe all documents responsive to this request have been previously
21
produced.
22
any, by December 21,2007, depending on receipt of reimbursement for estimated copy costs.
23
REQUEST FOR PRODUCTIOI'I NO. 49
24
to
Plaintiff. Defendants will confirm this or produce additional documents, ifthere arc
Any and all DOCUMENTS RELATING TO YOUR decision not to renew Plaintitf's
25
employment contract with YOU that was purportedly made on or about May 1,2007.
26
RESPONSE TO REQUEST NO. 49
27 28
Defendants object to this request to the extent it requests information protected by thc attorney-client privilege. Without waiving that objection, Defendants believe all documents 22
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000120
Dec 19 07 02:59p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.24
Page 155 of 207
responsive to this request have been previously produced. Dcfcndants v.rill confirm this or 2
produce additioual documents, if there are any, by December 21,2007, depending on receipt of
3
reimbursement for estimated copy costs.
4
REOUEST FOR PRODUCTION NO. 50
5
Any and all DOCUMENTS RELA TING TO any disciplinc, coaching, reprimand or
6
corrective action taken against Plaintiff by YOU.
7
RESPONSE TO REQUEST NO. 50
8 9
Defendants believe all documents responsive to this request have been previously produced. Defendants will confirm this or produce additional documents, if there are any, by
10
December 21, 2007, depending on receipt of reimbmsement for estimated copy costs.
II
REOUEST FOR PRODUCTION NO. 51
12
Any and all DOCUMENTS RELATING TO Kern Medical Center's Disruptive Physician
13
Policy, including but not limited to Bylaw Committee meeting minutes.
14
RESPONSE TO REQUEST NQ. 51
15
Defendants object to this request to the extent it requests documents that contain
16
confidential personnel information, documents protected from disclosure by state or federal law,
17
including HIPAA and the peer-review privilege, and documents protected by the attorney-client
18
privilege. Without waiving these objections, Defendants will produce documents responsive to
19
this request by December 21,2007, depending on receipt ofreimhursement for estimated copy
20
costs. Defendants will redact confidential peer review and personnel information as appropriate.
21
This request is also vague because Defendants are not aware of any connection between the
22
Disruptive Physician Policy and the Bylaw Committee meeting minutes.
23
REQUEST FOR PRODUCTION NO. 52
24
Any and all DOCUME}.'TS RELATING TO Dr. Rebecca Rivera's lawsuit against Kern
25
Medical Center filed in Kern County California Superior Court.
26
RESPQNSE TO REQUEST NO. 52
27 28
Plaintiff has narrowed this request to eliminate any documents that have been filed with the Kern County Superior Court. As so limited, this request seeks documents in the County 23
DEFEiIDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTIOK OF DOCUMENTS
MTC000121
Dec 19 07 03:00p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.25
Page 156 of 207
Counsel's litigation file, many of which are protected by the attorney work-product and attorncy2
client privileges. To the extent this request seeks information that is protected by the attomey-
3
client privilege, Defendants object to it. Defendants also object to this request on the grounds
4
tha1 it is not reasonably calculated to lead to the discovery of admissible evidence. Defendants
5
are in the process of reviewing documents that may be responsive to this request and, without
6
waiviug these objections, 'Will produce non-privileged documents, if any, by December 21, 2007,
7
depending on receipt of reimbursement for estimated copy costs. Defendants may redact
8
privileged information if appropriate.
9
REQUEST FOR PRODUCTION NO. 53
10
Any and all DOCUMENTS RELATING TO services provided to YOU by the Camden
11
Group RELATlNG TO Kern Medical Center.
12
RESPONSE TO REOUEST NO. 53
13
Defcndants believe all documents responsive to this request have been previously
14
produced. Defendants will confirm this or produce additional documents, if there are any, by
15
December 21,2007, depending on receipt of reimbursement for estim
16
REQUEST FOR PRODVCTIOl'l NO. 54
17
Any and all DOCUMENTS RELATING TO statistics maintained by YOU RELATING
18
TO patient fatalities at Kern Medical Center from October 24,2000 to the present.
19
RESPONSE TO REOUEST NO. 54
20
Defendants object to this request on the grounds that it calls for the production of
21
documents that contain confidential personnel information that is not relevant to any issues in
22
this case and is not reasonably calculated to lead to the discovery of
23
Defendants also object to this request to the extent it requests information protected from
24
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
25
privilege, and documents that contain information protected by the attorney-client privilege.
26
After review of the documents potentially responsive to this request, Defendants have
27
determined that the burden of redacting privileged information outweighs the marginal relevancy
28
of the remaining information in the documents. 24 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000122
Dec 19 07 03:00p
Case 1:07-cv-00026-OWW-TAG
p,26
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Page 157 of 207
REQUEST FOR PRODUCTION NO. 55 2
Any and all DOCUMENTS RELATING TO the review of Kern Medical Center's
3
placental evaluations and billing activity as conducted by outside consultants, including but not
4
limited to ProPay Physician Services, LLC, from October 24, 2000 to the present.
5
RESPONSE TO REQUEST NQ. 55
6
Defendants object to this request on the grounds that it calls for the production of
7
documents that contain confidential personnel information that is not relevant to any issues in
8
this case and is not reasonably calculated to lead to the discovery of admissible evidence,
9
Defendants also object to this request to the extent it requests irrformation protected from
10
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
11
privilege, and documents that contain information protected by the attorney-client privilege,
12
After review of thc documents potentially responsive to this request, Defendants have
13
determined that the burden ofredacting privileged information outwt:ighs the marginal relevancy
14
of the remaining irrformation in the documents.
15
REQUEST FQR PRODUCTION NO. 56
16
.Any and all DOCUMENTS RELATING TO blood bank monthly reports, included but
17
not limited to reports generated by Michelle Burris, from January 2006 to present.
18
RESPONSE TO REQUEST NO. 56
19
Defendants object to this request on the grounds that it calls for the production of
20
documents that contain confidential personnel information that is not relevant to anv issues in
21
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
22
Defendants also object to this request to the extent it requests information protected from
23
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
24
privilege, and documents that contain information protected by the attorney-client privilege.
25
After review of the documents potentially responsive to this request, Defendants have
26
determined that the burden of redacting privileged infonnation outweighs the marginal relevancy
27
of the remaining information in the documents.
28 25 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTIOK OF DOCUMENTS
MTC000123
Dec 19 07 03:01 p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.27
Page 158 of 207
REQUEST FOR PRODUCTIOK NO. 57 2
Any and all DOCUMENTS RELATING TO product chart copy-related quality assurance
3
reports from Oc10ber 24,2000 to the present.
4
RESPONSE TO REOUEST NO. 57
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personncl
10
privilege, and documents that contain infonnation protected by the attorney-client privi lege.
II
After review of the documents potentially responsive to this request, Defendants have
12
determined that the burden of redacting privileged information outweighs the marginal relevancy
13
of Ihe remaining information in the documents.
14
REQUEST FQR I'RODUCTION NO. 58
15
Any and all DOCUMENTS RELATING TO prostate needle biopsy reports produced by
16
Dr. Elsa Ang for which Plaintiff had requested a lookback study in Oe1ober 2005.
17
RESPONSE TO REQUEST NO. 58
18
Defendants object to this request {)f1 the grounds that it calls for the production of
19
documents that contain confidential personnel information that is not relevant to any issues in
20
Ihis case and is not reasonably calculated to lead to the discovery of admissible evidence.
21
Defendants also objeelto this request to the extent it requests information protected from
22
disclosure by state or federal law, including HIP AA, the peer-review privilege a11d the personnel
23
privilege, and documents that contain infonnation protected by the attorney-client privilege.
24
After review of the documents potentially responsive to this reques" Defendants have
25
determined that the burden ofredaeting privileged information outweighs the marginal relevancy
26
of the remaining information in thc documents.
27
28 26 DEFENDANTS' SL'PPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000124
Dec 19 07 03:01 p
Case 1:07-cv-00026-OWW-TAG
1
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Any and all DOCUMENTS RELA TING TO sign-in sheets for Kern Medical
3
Cancer Clinic from January 1, 2003 to the present.
4
RESPONSE TQ REQUEST NO. 59
Center'~
Defendants will produce all documents responsive to this request by December 21, 2007,
5 6
depending on receipt of reimbursement for estimated copy costs.
7
REQUEST FOR PRODUCTION NQ. 60
8
10
Page 159 of 207
REQUEST FOR PRODUCTION NO. 59
2
9
p.28
Any and all DOCUMENTS RELATING TO Workplace Violence or Threat Incident Reports for all Kern Medical Center personnel from October 24, 2000 to the present.
RESPONSE TO REQUEST NO. 60
11
Defendants object to this request to 1he extent it seeks documents that contain
12
confidential personnel information or information protected by the attorney-client privilege.
13
Defendants also object to the extent the documents contain information protected by the peer-
14
review privikgc and on the grounds that the request is not reasonably calculated to lead to the
15
discovery of admissible evidence. Without waiving these objections, Defendants will produce
16
all documents responsive to this request by December 21,2007, depending 011 receipt of
17
reimbursement for estimated copy costs. Defendants will redact confidential or privileged
18
information as appropriate.
19
REQUEST FOR PRODUCTION NO. 61
20
Any and all DOCUMENTS RELATING TO Fine Needle Aspiration policies at Kern
21
Medical Center from October 24, 2000 to the present, including but not limited to
22
DOCUMENTS RELATING TO the outside consultant study conducted by Dr. David Lieu in
23
2004.
24
RESPONSE TO REQUEST NO. 61
25
Defendants object to this request to the extent it seeks doemnents that contain
26
confidential personnel infonnation or information protected by the attorney-client privilege.
27
Defendants also object to the extent the documents contain information protected by the peer-
28
review privilege and on the grounus that the request is not reasonably calculated to lead to the
27 DEFENDANTS' SUPPLENlENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000125
Dec 19 07 03:02p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.29
Page 160 of 207
discovery of admissible evidence. Without waiving these objections, Defendants will produce 2
all documents responsive to this request by December 21,2007, depending on receipt of
3
reimbursement for estimated copy costs. Defendants will redact confidential or privileged
4
information as appropriate.
5
REQUEST FOR PRODUCTIOK NO. 62
6
Any and all DOCUMENTS RELATING TO Peter Bryan's appointment calendar from
7
January 1, 2004 to September 1, 2006.
8
RESPONSE TO REQUEST NO. 62
9
After diligent search, Defendants have determined that the Groupwise calendar
10
information was deleted many months ago as part of the routine 90-day cycling of the Groupwise
11
software. Defendants believe there are no documents responsive to this request.
12
REQUEST FOR PRODUCTION NO. 63
13 14
Any and all DOCUMENTS RELATTl\'G TO meeting minutes tor the following Kern Medical Center committees or groups from October 24, 2000 to the present:
15
a) :YIedical Executive Committee
16
b) .Joint Conference Committee
17
c) Quality Management Committee
18
d) C811cer Committee
19
c) Second Level Peer Review Committee
20
f) Transfusion Committee
21
g) Executive Staff Meetings
22
RESPONSE TO REQUEST NO. 63
23
Defendants object to this request to the extcnt it requests documents that contain
24
confidential personnel information, docmnents protected from disclosure by state or federal law,
25
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
26
subject to the attorney-client privilege. Without waiving these objections, DcfcmIanls will
27
produce doemnents responsive to this request by Decemher 21, 2007, depending on receipt of
28 28 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000126
Dec 19 07 03:02p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.30
Page 161 of 207
1
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
2
personnel information as appropriate.
3
REQUEST FQR PRODUCTION NO. 64
4
Any and all DOCUMENTS RELATING TO policies of Kern Medical Center's
5
Pathology Department from October 24, 2000 to the present.
6
RESPO~SE
7
TO REOLEST NO. 64
Defendants will produce all documents responsive to this request by December 21, 2007,
8
depending on receipt of reimbursement for estimated copy costs.
9
REOUEST FOR PRODUCTION NO. 65
10
Any and all DOCU1vfENTS RELATING TO case send-out logs for Kern Medical
II
Center's Pathology Department from January I, 1999 to the present, including but not limited to
12
corresponding Kern Medical Center pathology reports and reports from outside consultants.
13
RESPONSE TO REQUEST NO. 65
14
Defendants object to this request to the extent it requests documents that contain
IS
confidential personnel information, documents protected from disclosure by state or federal law,
16
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
17
subject to the attorney-client privilege. Without waiving these objections, Defendants will
18
produce documents responsive to this request by December 21, 2007, depending on receipt of
19
reimbursement for estimated copy costs. Defendants will redllct confidentilll peer review and
20
personnel information as appropriate.
21
REQUEST FOR PRODUCTION NO. 66
22
Any and all DOCUMENTS RELATING TO monthly turn-arol.lIld-lime reports and logs
23
- by pllthologist - for pathology reports processed lit Kern Medical Center, including but not
24
limited to Pathology Department Semi-annual Reports to the Medical Staff, for thc time pcriod
25
[Tom January 1, 1999 to the present.
26
RESPONSE TO REQUEST NO. 66
27
Defendants object to this request to the extent it requests documents that contain
2~
confidential personnel information, documents protected from disclosure by state or federal law. -------------------~---------------__t
29
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000127
Case 1:07-cv-00026-OWW-TAG
p.31
916-444-6405
Mark Wasser
Dec 19 07 03:03p
Document 83
Filed 01/09/2008
Page 162 of 207
1
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
2
subject to the attorney-client pri vilege. Without waiving these objections, Defendants will
3
produce documents responsive to this request by December 21, 2007, depending on receipt of
4
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
5
personnel information as appropriate.
6
REQUEST FOR PRODUCTION NO. 67
7
Any and all DOCUMENTS RELATING TO monthly or semi-monthly turn-around-time
8
reports and logs - for Kern Medical Center's Pathology Department as a whole - for pathology
9
reports processed at Kern Medical Center including but not limited to surgical pathology,
10
cytology and bone marrow reports, for the time period from January I. 1999 to the present.
11
RESPONSE TO REQUEST NO. 67
12
Defendants object to this request to the extent it requests documents that contain
13
confidential persOlmel information, documents protected from disclosure by state or fcdcrallaw,
14
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
15
subject to the attorney-client privilege. Without waiving these objections, Defendants will
16
produce documents responsive to this request by December 21,2007, depending on receipt of
17
reirnborsement for estimated copy costs. Defendants will redact confidential peer review and
13
personnel information as appropriate.
19
REQUEST FOR PRODUCTION NO_ 68
20
Anv and all DOCUMENTS RELATING TO PATHOLOGY REPORTS authored,
21
reviewed or approved by Plaintiff which YOU sent to any outside pathologists for outside review
22
from June 14, 2006 to the present.
23
RESPONSE TO REQUEST NO. 68
24
Defendants object to this request to the extent it requests documents that contain
25
privileged peer review information. Without waiving this objection Dcf~ndants will produce all
26
documents responsive to this request by December 21,2007, depending on receipt of
27
reimbursement for estimated copy costs. Defendants will redact all privileged information as
211
appropriate. 30 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTlfWS REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000128
Dec
19 07 03:03p
Case 1:07-cv-00026-OWW-TAG
p.32
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Page 163 of 207
REQUEST FOR PRODUCTION NO. 69 2
Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS RELATING TO
3
Case Numbers S06-4131, S06-4619, S06-5229, S06-73276.
4
RESPONSE TO REQ1JEST NO. 69
5
Plaintiff has amended this request by clarifYing that Case No. S06-73276 relates to Case
6
Nos. 806-495, 806-3511 and S06-4619. Defendants renew their objections to this request on the
7
grounds that it requests documents that contain confidential information under HIPAA.
8
Defendants also object to the extent that it requests documents that contain privileged peer-
9
review information. Without waiving these objections Defendants will produce all documents
10
responsive to this request by December 21,2007, depending on receipt of reimbursement for
II
estimated copy costs. Defendants will redact confidential and privileged information as
12
appropriate.
13
REQUEST FOR PRODUCTION NO. 70
14
Any and all DOCU!vIENTS RELATING TO peer review RELATr.-JG TO Kern Medical
15
Center's Pathology Department during the time period from January I, 1995 to the present,
16
including but not limited to computer-generated data, monthly peer review records completed by
17
pathologists, and peer review comment sheets 1hat are completed by pathologists upon discovery
18
of a discrepancy.
19
RESPONSE TO REOUEST NO. 70
20
Defendants object to this request on the grounds that it calls for the production of
21
documents that contain confidential personnel information that is not rdevant to any issues in
22
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
23
Defendants also object to this request to the extent it requests information protectcd from
24
disclosure by state or federal law, including H1PAA, the peer-review privilege and the personnel
25
privilege, and documents that conlain information protected by the attorney-client privilege.
26
After review of lhe documents potentially responsive to this request, Defendants have
27
determined that the burden of redacting privileged infonnation outweighs the marginal relevancy
28
of the remaining information in the documents. 3]
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIff'S REQUEST FOR PRODUCTION OF DOCU.'vIENTS
MTC000129
Dec 19 07 03:04p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.33
Page 164 of 207
REQUEST FOR PRODUCTION NO. 71 2
Any and all DOCUMENTS RELATING TO exceptional event logs for histology and
3
pathology on Kern Medical Center's Pathology Depaltment from January 1, 2006 to the present.
4
RESPONSE TO REQUEST NO. 71
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA, the peer-review privilege and tbe persOImel
10
privilege, and documents that contain information protected by the attorney-client privilege.
11
After review oftbe documents p01entially responsive to this request, Defendants have
12
determined tbat the burden of redacting privileged information outweighs the marginal relevancy
13
of the remaining information in the documents.
14
REQUEST FOR PRODUCTION NO. 72
15
Any and all DOCUMENTS RELATI1\G TO paper accession logs at Kern Medical
16
Center's Pathology Department from January 1,2006 to present.
17
RESPONSE TO REQUEST NO. 72
18
Defendants object to this request on the grounds that it calls for the production of
19
documents that contain confidential personnel information that is not relevant to any issues in
20
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
21
Defendants also object to tbis request to the extent it requests information protected from
22
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
23
privilege, and documents that contain information protected by the attorney-client privilege.
24
After review of the documents potentially responsive to this rcquest, Defendants have
25
deternlined that the burden of redacting privileged information outweighs the marginal relevancy
26
of the remaining information in the docwnents.
27 28
32 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAI::-ITIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000130
Dec 19 07 03:04p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
p.34
Page 165 of 207
REOUEST FOR PRODUCTION NO. 73 i\ny and all DOCUMENTS RELATING TO tissu<;: disposal r<;:cords for skull-flaps from
3
January I, 2006 to the present.
4
RESPONSE TO REQUEST NO. 73
5
916-444-6405
Defendants object to this request on the grounds that it calls for the production of
6
docum<;:nts that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
S
Defendants also object to this request to the extent it requests information prot<;:eted from
9
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
10
privilege, and documents that contain infonnation protected by the attorney-client privilege.
11
After review of the documents potentially responsive to this request, Defendants have
12
determined that the burden of redacting privileged information outweighs the marginal relevancy
13
of the remaining information in the documents.
14
REQUEST FOR PRODUCTION NO. 74
15
Any and all DOCUMENTS RELATING TO audits of Kern Medical Ccnler's Pathology
16
Department by outside consultants, including but not limited to Dr. Stacey Garry, from October
17
24, 2000 to the present.
18
RE81'ONSE TO REOUEST NO. 74
19
Defendants object to this request to the extent it requests docu.ments that contain
20
information that is confidential under HIPAA. Defendants also object to the extent that it
21
requests documents that contain privileged peer·review information. Without waiving these
22
objections Defendants will produce all documents responsive to this request by December 21,
23
2007, depending on receipt of reimbursement for estimated copy costs. Defendants will redact
24
confidential and privileged information as appropriate.
2S
REOUEST FOR PRODUCTION NO. 75
26 27
Any and all DOCUMENTS RELATING TO Kern Medical Center laboratory personnel defections from June 14,2006 to the present, including but not limited to exit interview notes,
2S 33 DEFE0JDANTS' SUPPLEMENTAL RESPO~SES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000131
Dec 19 07 03:05p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1
2
916-444-6405
Document 83
Filed 01/09/2008
p.35
Page 166 of 207
RESPONSE TO REQUEST NO. 75 Defendan1~
object to thi~ request on the
ground~
that it is vague. Defendants do not knO\~
3
what "personnel defections" means. If Plaintiff intends to request a list of employees who have
4
separaled from Counly employment or transferred out of the pathology laboratory. Defendants
5
can prepare such a list but Defendants believe such a list will need to be redacted to remove
6
confidential personnel information. Defendants will produce a list of employees who have
7
separated from County employment or transferred out of the laboratory by December 21, 2007,
& depending on receipt of reimbursement for estimated copy costs, and will redact the confidential 9 10 II
information as appropriate. REOUEST FOR PRODUCTION NO. 76 Any and all DOCUMENTS RELATING TO dictation transcription logs for Plaintiff
12
from June 14,2006 to the present.
13
RESPONSE TO REQUEST NO. 76
14
Defendants will produce all documents responsive to this request by December 21, 2007,
IS
depending on receipt of reimbursement for estimated copy costs. Defendants will redact
16
privileged information, if any, as appropriate.
17
REOUEST FOR PRODUCTION NQ. 77
1&
Any and all DOCUMENTS RELATING TO dictation transcription logs for Dr. Philip
19
Dutt from June 14, 2006 to the present.
20
RESPONSE TO REOUEST NO. 77
21
Defendants will prodnce all documents responsive to this request by December 21, 2007,
22
depending on receipt ofreimbursement for estimated copy costs. Defendants will redact
23
privileged information, if any, as appropriate.
24
REQUEST FOR PRODUCTION NO. 78
25 26
Any and all DOCUMENTS RELATING TO placental evaluations conducted by Pl ai ntitf from June 14, 2006 to the present.
27
28 34
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAI.'JTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000132
Dec 19 07 03:05p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p,36
Page 167 of 207
RESPONSE TO REQUEST i'i0. 78 2
Plaintiff has attempted to narrow this request but the revised request is broader, more
3
burdensome and less calculated to lead to the discovery of admissible evidence than the original
4
request. Defendants object to this request because it is not reasonably calculated to lead to the
5
discovery of admissible evidence and is burdensome. Defendants object to this reques1 on the
6
grounds that it calls for the production of documents that contain confidential personnel
7
information that is not relevant to any issues in this case and is not reasonably calculated to lead
8
to the discovery of admissible evidence. Defendants also object to this request to the extent it
9
requests information protected from disclosure by state or federal law, including HIPAA, the
10
peer-review privilege and the personnel privilege, and documents that contain information
11
protected by the attorney-client privilege. After review of the documents potentially responsive
12
to this request, Defendants have determined that the burden of redacting privileged information
13
outweighs the marginal relevancy of the remaining information in the documents,
14
REQUEST FOR PRODUCTION :\f0. 79
15 16 17
Any and all DOCUMENTS RELATL'lG TO Golden Empire Pathology Associates. RESPONSE TO REQUEST NO. 79 After diligent search, Defendants have not been able to locate any documents responsive
18
to this request.
19
REQUEST FOR PRODUCTION NO. 80
20 21 22 23 24 25
26 27
Any and all DOCUMENTS RELATING TO Golden Empire Medical Group, RESPONSE TO REQUEST NO. 80 After diligent search, Defendants have not been able to locate any documents responsive to this reguest. Dated: December 19, 2007
LAW OFFICES OF MARK A. WASSER
By:,~Z-4£~_OLP~~~"'==-
-----1
'Mark A. Wasser Attorncy for Defendants, County of Kern, et aI.
28 35
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAIKTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000133
916-444-6405
Mark Wasser
Dec 19 07 03:06p
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.37
Page 168 of 207
1 Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 2 400 Capitol Mall, Suite 11 00 Sacramento, CA 95814 3 Phone: (916) 444-6400 Fax: (916) 444-6405 4 E-mail: mwassertg)markwasser.com 5 Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 6 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 7 Phone: (661) 868-3800 Fax: (661) 868-3805 8 E-mail: [email protected]
9
Attorneys for Defendants County of Kern, 10 Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith II and William Roy
12
UNITED STATES DISTRICT COURT
13
EASTERN DISTRICT OF CALIFORNIA
14
15 DAVID F. JADWIN, D.O.
~
Case No.: 1:07-cv-00026-0WW-TAG
16
~ ~ ~ )
PROOF OF SERVICE
17
Plaintiff, vs.
18 COUNTY 0 F KERN, et aI.,
19
Defendants.
) 20 1 1 - - - - - - - - - - - - - )
21 22 23 24 25
26 27
28 PROOF OF SERVICE MTC000134
Mark Wasser
Dec 19 07 03:06p
Case 1:07-cv-00026-OWW-TAG 1
916-444-6405
Document 83
Filed 01/09/2008
p.38
Page 169 of 207
I, Amy Remly, declare:
2
I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 400 Capitol Mall, Suite 1100, Sacramento, CA 95814. On 3 December 19, 2007, 1 served the within documents: Defendants' Snpplemental Responses to Plaintiff's Request for Production of Documents (Set One).
4
by transmitting via facsimile from (916) 444-6405 the above listed document(s) without error to the fax number(s) set forth below on this date before 5:00 p.m. A copy of the transmittal/confirmation sheet is attached, and
5 6
7
o
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below.
o
by causing personal delivery by of the document(s) listed above to the person(s) at the address (es) set forth below.
8 9 10
11
by placing the document(s) listed above in a sealed Federal Express Overnight Delivery envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a Overnight Delivery Federal Express agent for delivery at the address set forth below.
12 13 14
Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013-1010 Facsimile: (213) 596-0487
15 I am readily familiar with the firm's practice of collection and processing correspondence for 16 mailing. Under that practice it would be deposited with the u.s. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. 1 am aware that on motion of the party 17 served, service is presumed invalid if postal cancellation date or postage meter date is more than one 18 day after date of deposit for mailing in affidavit. 19 20
I declare under penalty of perjury under the laws of the State of Califomia that the above is true and correct. Executed on December 19, 2007, at Sacramento, California.
21
()
Uv'N'V-\ 'h,\[Y\J0'v\ AMY REM1(1'
22
'(
~
23 24 25 26 27 28 -2-
PROOF OF SERVICE MTC000135
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 170 of 207
EXHIBIT 16. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/19/07
MTC000136
Dec 19 07 02:24p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1
Page 171 of 207
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 Wasser
Fax:
(213) 596-0487
Pages: 4 (including cover page)
Phone: (213) 992-3299 Re:
Date:
Jadwin v. County ofKem
o Urgent
o For Review
December 19,2007
cc:
0 Please Comment
0 Please Reply
0 Please Recycle
• Comments; Please see attached letter.
MTC000137
Dec 19 07 02:24p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices of Document 83 Filed 01/09/2008
MARKA. WASSER
p.2
Page 172 of 207
400 Capitol Mall, Suite 1100 Sacramento, California 95814
Office: 916-444·6400 Fax; 916-444-6405 [email protected]
December 19, 2007
VIA FACSIMILE AND 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 af.
Dear Gene: This is to follow up on our recent telephone conversations and e-mails regarding the Defendants' continuing efforts to respond to your request for production of documents. You are correct that we did not raise the issue of costs earlier. I was remiss in not raising it earlier and it needs to be raised now. You are also correct that you produced documents as part of the initial disclosures. Although the Defendants ultimately produced many more documents that you did, the County is willing to defer recovery of those costs until the case is resolved. They can be claimed in a cost bill. However, the copy charges incurred in responding to your request for production are substantial and cannot be deferred, The first installment of the Defendants' response consisted of 12,500 pages and your copy cost $1765.00 (12,500 X .14 + 15.00 for the CD). The 14 cents per page charge was for one electronic copy and Bates numbering. Our copy was an additional cost. The number I included in my e-mail to you a couple of days ago was for the entire reproduction and does not represent an amount you should pay. The second installment, which we are preparing now. 'Will be larger than the first. Our copy service has estimated that one electronic copy with Bates numbering will cost about $2,000. The actual cost may be more or less. Please send me a check for $3,765 to cover the cost of the first installment and the estimated cost of the second. If the actual cost of the second installment is less than $2,000, we will refund the surplus to you. If it is more, we will send you a request for the difference. I am glad you recognize the Defendants' right to reimbursement for these costs. Case authority, as you know, is
Admitted to P(actice in California and Nevada
MTC000138
Dec 19 07 02:25p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG Eugene Lee December 19,2007 Page 2
Document 83
Filed 01/09/2008
p.3
Page 173 of 207
clear. Dr. Jadwin has the same right and, were it not for the fact that the County seems to have the bulk of the documents in the case, I am sure Dr. Jadwin would have demanded reimbursement long before your e-mail Monday morning. On the subject of copies at depositions, it has been my practice to supply three copies of any documents that will be marked as exhibits at a deposition as a courtesy to opposing counsel. That is part of the cost of taking a deposition. If you intend to start "billing" the Defendants for the courtesy copy that you give me, you may dispense with my copy. I will get a copy of all the exhibits when I get my copy of the deposition transcript and I see no reason to pay for the documents twice. I will provide you with a courtesy copy of any documents I mark as exhibits at depositions I take without charge. Your statement in yesterday's e-mail that Dr. Jadv,:in "has readily agreed to narrow the document production requests on numerous occasions" requires a response because you have taken it out of context, as you have done before, in an attempt to make your position look more sympathetic than it is. Dr. Jadwin revised a few of the requests in his Request for Production in order to expedite the Defendants' response. For example, without referencing your many letters, I recall that you revised Requests Nos. 33 and 68 in an attempt to address the Defendants' objections and accelerate production. At no time did you ever suggest that the cost of the production was a concern. You may recall, in one letter or e-mail (I forget which), you even suggested how Kern Medical Center should staff the production effort and opined as to how many hours of staff time Dr. Jadwin believed the production should take. Throughout the process, you and Ms. Herrington insisted that all requested documents be produced as quickly as possible, even mentioning in a recent e-mail that you had to "resort to threats" to make Defendants work faster and harder. Do not suggest that Dr. Jadwin was willing to reduce the burden of his production demands to keep costs down. That is a fiction. You cooperated ",i.th us on the dates of our response because, given the magnitude of the task, you had no choice but you never even hinted at any interest in controlling cost. Which brings us to the last point. Many of the documents you have requested have, at most, a very tenuous connection to any issues in the case. The blood product chart copy documents are a good example. It is unclear what relevancy they have or how their production will lead to the discovery of admissible evidence. The County has iden1ified approximately 12,000 pages in this category. The documents consist almost entirely of patient records and will require many hours of tedious redaction to prepare them for production. The redacted documents will be of little, if any, use. The County is unwilling to incur the cost of redacting those documents. As you know, there is authority that the requesting party may be required to bear the financial burden of producing documents where the burden of production outweighs the benefits of the information to be produced. We think this is the case with regard to the blood product chart copy documents. It may be the case with other documents, as well, but the blood product chart copy documents are the most voluminous.
MTC000139
Dec 19 07 02:25p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG Eugene Lee December 19, 2007 Page 3
Document 83
Filed 01/09/2008
pA
Page 174 of 207
We remain on track to produce the final installment of documents on December 21, asswning you can deliver a check in the amount of$3,765 before then. The check should be payable to my office. I have finished drafting a Supplemental Response and will e-mail that to you shortly. We will send a hard, service copy by mail today. Let me know if you want to discuss any of this.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Bames (via facsimile)
MTC000140
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 175 of 207
EXHIBIT 17. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/20/07
MTC000141
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 176 of 207
Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Thursday, December 20, 2007 5:29 PM [email protected] RE: The production
Follow Up Flag: Flag Status:
Follow up Completed
Gene, Only one point warrants response. The documents that I described in my letter yesterday as having a tenuous relationship to the issues in the case are the approximately 12,500 pages of blood product chart copies that we are neither producing nor changing you for. I wrote that we will expect a cost-shift on the production expenses for those. The $3765 expense I quoted only covers the copies we were intending to produce. As far as authority for reimbursement for costs goes, you can start at page 11-236, section 11:1937 of the Schwarzer, Tashima and Wagstaffe handbook on federal practice. The following paragraph discusses cost-shifting. That may bear on the blood product chart copies but they are not the issue today. We are only talking about reimbursement for actual copies produced. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 20, 2007 5:04 PM To: [email protected] Subject: RE: The production
Mark, Your email neglects to mention your faxed letter of yesterday. May I suggest you re-read it and the subsequent communications. The last two “different positions” are not different and reflect another misunderstanding of something I’ve written. Plaintiff’s original request for production, which was served on October 11, 2007, stated that defendants should “produce and permit the inspection and copying of documents”. I did not intend this to involve two “different positions”. If that sentence was confusing for you, my apologies. My understanding is that this is fairly standard language in a production request. Plaintiff still awaits defendants’ caselaw which, as you say, is “clear” in establishing defendants’ right to reimbursement for production and right to condition production on payment of such reimbursement. My reading of the FRCP and related caselaw establishes that defendants have no such rights. As I said before, if the caselaw truly is clear that you are right, plaintiff will be happy to reconsider its position. Otherwise, plaintiff is not willing to pay defendants nearly $4,000 in actual and “estimated” costs for documents which, according to your fax of just yesterday, “have, at most, a very tenuous connection to any issues in the case.” It is unfortunate that this dispute has arisen so late in the day. Had defendants met and conferred with plaintiff on the issue of cost reimbursement earlier than 3 days ago, perhaps this dispute could’ve been averted. Now it appears plaintiff has no choice but to file a motion to compel in order to obtain the discovery which defendants are now withholding based upon a last minute request for $4,000. Sincerely, 1
MTC000142
Case 1:07-cv-00026-OWW-TAG Gene Lee
Document 83
Filed 01/09/2008
Page 177 of 207
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights?
From: Mark Wasser [mailto:[email protected]] Decembec U, 'II' Sent: Thursday, December 20, 2007 4:17 PM To: [email protected] Subject: RE: The production
n ..."
'Y "'",," ..
Gene, In the last few days, you have written that you will send a check for payment as soon as we request it, that you don’t really want the copies after all and just want to inspect the originals, and that you now want the originals in your office tomorrow. By my count, that is three different positions. We were on-track to send you Bates numbered, electronic copies of all the documents tomorrow, as we have been discussing with you, in writing, for weeks. We also relied on your letter earlier in the week that you would pay the reasonable production cost. Today, you have changed your position and want original patient records and other privileged documents produced in your office tomorrow. We will not produce original patient records in your office. That would be a violation of federal law. We remain willing to produce an electronic copy of the redacted records but expect reimbursement for the reasonable copy cost. That is where things sit. If you believe a motion to compel will be more efficient and cost-effective, I suppose you should file it. It is a shame all this has apparently developed over a request for reimbursement for reasonable copy costs. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 20, 2007 4:02 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: The production
Mark, I do not understand what you mean by “discussions with you on your interest in inspection.” What are you requesting? Tomorrow is the deadline for production. Plaintiff awaits production of the documents. Plaintiff will 2
MTC000143
Case 1:07-cv-00026-OWW-TAG Document 83 Filed 01/09/2008 Page 178 of 207 not pay nearly $4,000 for actual and “estimated” costs which were never discussed or brought to plaintiff’s attention until just three days ago. As for objecting to the manner, time and place of production, defendants waived those objections. Since our meet and confer discussions are at an impasse and defendants will not be producing the documents, plaintiff will file a motion to compel tomorrow. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights?
From: Mark Wasser [mailto:[email protected]] Decembec U, 'II' Sent: Thursday, December 20, 2007 3:40 PM To: [email protected] Subject: RE: The production
n ..."
'Y "'",," ..
Gene, I am satisfied, having reviewed our communications, that there was neither miscommunication nor misunderstanding between us regarding the nature of our production. It is sufficiently documented. Your suggestion, today, that we produce documents in your office tomorrow is in response to the recognition that you have to pay for the copies. We are not producing originals in your office. The originals contain thousands of patient records, among other privileged documents. The County will not violate HIPAA in such a flagrant way. We have suspended production, as I wrote earlier, pending discussions with you on your interest in inspection. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 20, 2007 3:02 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: The production
Hi Mark,
3
MTC000144
Case 1:07-cv-00026-OWW-TAG Document 83 Filed 01/09/2008 Page 179 of 207 As stated in our document production request, we’d like to have the original documents produced at my office by Dec. 21, 2007 for inspection and copying. Please refer to the production request if you require further details. Also, please feel free to contact me if you still require further clarification. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights? Decembec U, 'II' " ... " ,y "'oo,,".. From: Mark Wasser [mailto:[email protected]]
Sent: Thursday, December 20, 2007 2:55 PM To: Eugene Lee Subject: The production Gene,
The documents are in my office and we will suspend further production pending discussions with you on inspection. Let me know how you want to proceed. 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]
4
MTC000145
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 180 of 207
EXHIBIT 18. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/20/07
MTC000146
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/ 3 12/20/07 2:47 pm
OF
Page 181 of 207 [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: 12/20/2007
Pages: 3 (including cover page) Re: Jadwin/KC: MNC RFD1
Comments:
Mark, Please see attached.
MTC000147
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG LAW
(213) 992-3299
TELEPHONE
Document 83
Pg 2/ 3 12/20/07 2:47 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 182 of 207
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
December 20, 2007 VIA U.S. MAIL FIRST CLASS & FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: Thank you for your fax of yesterday.
I.
PRODUCTION COST REIMBURSEMENT
I am pleased to see that you admit you did not raise the issue of costs until December 17, just four days before the December 21 document production deadline, which was itself extended from November 16, 2007.
You say "I am glad you recognize the Defendants' right to reimbursement for these costs." Plaintiff has never made any such recognition and in fact disagrees. Plaintiff is unaware ofthe basis for your statement that "Case authority, as you know, is clear". Please provide us with the case authority you refer to and plaintiff will be pleased to consider it. If it truly is "clear", plaintiff will reconsider its position. Pursuant to FRCP Rule 34, Plaintiff's request for production, set one specifically requests defendants "produce and permit inspection and copying ofthe documents described below [at the office of plaintiff's counsel]." Defendants have acted on their own initiative in processing the document production at a cost of 14 cents per page. As you yourself admit, defendants never met and conferred with plaintiff on the cost issue until just a couple of days ago. Had defendants informed plaintiff earlier of the substantial cost involved, plaintiff would certainly have worked with defendants to suggest other less costly alternatives. As it is, plaintiff has no choice but to adhere to its original request that defendants produce the original documents for inspection and copying at the address for the Law Office of Eugene Lee by December 21,2007. Plaintiff is especially hesitant to pay defendants' requested cost reimbursement because, as you say, "Many ofthe documents you have requested have, at most, a very tenuous connection to any issues in the case", Plaintiff is an individual and, unlike the County of Kern, is not in a position to easily absorb $3,765 in document processing costs. It would be far more cost-efficient for
MTC000148
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 3 12/20/07 2:47 pm
Document 83
Filed 01/09/2008
Page 183 of 207
plaintiff to review the originals, discard the chaff, and copy only the pertinent documents at a cost that should ultimately be substantially less than defendants' requested $3,765. II.
CLARIFICATION OF SOME MISUNDERSTANDINGS
I would like to take a moment to clarifY some confusion in your fax. You say I mentioned in an email that I had to "resort to threats". The complete statement I had made was: "It is unfortunate that we must resort to threats of a motion in order to resolve this situation". Leaving out the "of a motion" could be misleading. You say "Do not suggest that Dr. Jadwin was willing to reduce the burden of his production demands to keep costs down. That is a fiction". Again, it appears there has been a misunderstanding. Here is what I had in fact written, "plaintiff has readily agreed to narrow the document production requests on numerous occasions to expedite matters for defendants." I assume you know what the term "expedite" means. I never suggested the narrowing of requests was a method to "keep costs down" because Defendant never raised the issue of costs. You and I seem to suffer these miscommunications from time to time. In the future, if you misunderstand something I write, please pick up the phone and consult me. I would welcome the opportunity to clear up any confusion so that we can avoid more misguided tirades. Please do not hesitate to contact us with any questions. Happy Holidays.
V~ry t~ yours, /
! / ENED. LEE cc:
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
2 MTC000149
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 184 of 207
EXHIBIT 19. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/20/07
MTC000150
Dec Dec 20 20 07 07 04:06p 04:06p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1 p.1
Page 185 of 207
The Law Offices of Mark A. Wasser 400 400 Capitol Capitol Mall, Suite 1100 Sacramento, Sacramento, California 95814 Office: Office: 916-444-6400 Fax: 916-444-6405 916-444-6405
Fax To: To:
Eugene Lee
From: Mark Wasser
Fax: Fax:
(213) 596-0487
Pages: 2 (including cover page)
Phone: (213) 992-3299
Date:
Re:
CC:
Jadwin v. County of Kern
D Urgent
D For Review
D Please Comment
December 20, 2007
D Please Reply
D Please Recycle
• Comments: PIease see attached letter.
MTC000151
Dec 20 07 04:06p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices Document 83 of Filed 01/09/2008
lv1ARKA. WASSER
p.2
Page 186 of 207
400 C'piro! Mall. Suite 1: 00 Sacramento, California 95814
Office: 9] 6-444-6400 Fax, 916-444-6405 m.. .'. ra.sscr@m~.rkv . ,:1s.ser.com
December 20, 2007
VIA FACSIMILE
.~,,{D
FIRST CLASS MAIL
Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 -1 010
Re: Jadwin v. County ofKern, et al. Dear Gene: With regard to your letter of this afternoon, I do not understand the miscommunication you reference. We have already produced electronic copies of the first installment of the production. You complemented us on the "good faith" of that production and we have had several conversations with you about our production of the second instalhnent in the same way. It carne as a surprise to read, in your letter, that you really just want to inspect the documents. You have never suggested that before now. In any event, we have suspended all further production efforts and will await discussions with you regarding inspecting the documents. They are in my office.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via facsimile)
Admitted co Practice in California and Nevada
MTC000152
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 187 of 207
EXHIBIT 20. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/21/07
MTC000153
Dec 21 07 05:10p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1
Page 188 of 207
The Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400
Fax: 916-444~405
Fax To:
Eugene Lee
From: Mark Wasser
Fax:
(213)596-0487
Pages: 4 (including cover page)
Phone: (213) 992-3299 Re:
Date:
Jadwin v. County of Kern
o Urgent
o For Review
December 21, 2007
CC:
0 Please Comment
0 Please Reply
0 Please Recycle
• Comments: Please see attached letter.
MTC000154
Dec 21 07 05:10p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices Document 83 of Filed 01/09/2008
MARKA. WASSER
p.2
Page 189 of 207
400 Capitol Mall, Suite 1100 Sacramento) Californi::;. 95814
Office: 916-444-6400 Fax: 916-444-6405 mwasser@marlo:liasser.com
December 21, 2007
VIA FACSIMILE ONLY Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013-1010
Re: Jadwin v. County ofKern, et ai. Dear Gene: Our copy service has delivered a CD to us that contains electronic, Bates numbered copies of the documents we are producing in the second installment of our production. We also have an invoice for $1,167, which represents the cost of preparing one set of copies for you. This amount is not an estimate. It is the actual cost incurred. Upon receipt of payment in the amount of $2,932, to cover the copy cost of this installment and the first one ($1,167 + $1,765 = $2,932; I am enclosing copies of both invoices for your reference.), we will FedEx the CD to you. That will conclude our produJtion of all documents in response to your Request for Production. If you want to discus~ the 12,500 pages of blood product chart copy reports and patient records, let me know. We are not producing them for the reasons I have explained in my previous emails and letters. I
Let me know if you have any questions.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via facsimile)
Admitted to Practice in California and Nevada
MTC000155
Dec 21 07 05:10p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
400 Capitol Mall, Suite 690 Sacramento, CA 95814 Tel (916) 444-1414 Fax (916) 444-1011
p.3
Page 190 of 207
INVOICE
DATE
INVOICE #
12/21/2007
39724
E3ILL TO
YOUR BIL.L.ING REFERENCE
Mark Wasser 400 Capitol MaJI, 11th Floor
Jadwin v. County of Kern
Sacramento, CA 95814 Attn:
Mark Wasser
DESCRIPTION
QUANTITY
TERMS
DUE DATE
DELIVERY DATe;
Net 10
12/31/2007
12/21/2007 AMOUNT
RATE
7,635 Scan Documents 8NV to PDF
0.12
916.20T
7,635 Electronic Bates Numbering Documents
0.02
152.70T
15.00
15.00T
7.75%
84.00
1 Burn CD CA Sales Tax
$1,167.90 Federal Tax 10 No. 94-33B3741
IPlease Reference Invoice No. with Payment
MTC000156
Dec 21 07 05:11 p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
~IlDFESS IONI\l
Document 83
Filed 01/09/2008
Page 191 of 207
INVOICE
DATE
INVOICE #
11f30/2007
39400
COpy & PRINT SERVICES
400 Capitol Mall, Suite 690 Sacramento, CA 95814 Tel (916) 444-1414 Fax (916) 444-1011
pA
BILL TO
YOUR BILLING REFERENCE
Mark Wasser 400 Capitol Mall, 11th Floor Sacramento, CA 95814
Jadwin v. County of Kern Response to Plaintiffs First Request for Production
Attn:
Amy
TERMS
DUE DATE
DELIVERY DATE
Net 10
12/1012007
11/30f2D07
DESCRIPTION
QUANTITY
RATE
AMOUNT
12,506 Scan Documents 8fW Tiff- Summation/OCR Format
0.14
1,750.84T
12,506 Electronic Bates Numbering Documents
0.02
250. '12T
12,506 Digital Prints from DiskJEmail (B&W)
0.10
1,250.60T
15.00
15.00T
35.00
35.00T 255.87
1 Burn CD 1 Copy DVD CA Sales Tax
7.75%
$3,557.43 Federal Tax 10 No. 94-3383741
I Please Reference Invoice No.
with Payment
MTC000157
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 192 of 207
EXHIBIT 21. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/31/07
MTC000158
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 193 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Monday, December 31, 2007 5:25 PM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Deposition of Dr. Jadwin
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your understanding and our understanding of what was agreed to are in conflict. That’s what I would call a “misunderstanding”. Saying that “there was no misunderstanding” and then to follow that by saying “the misunderstanding had to do with your and Ms. Herrington’s decision…” (besides being contradictory) is just your way of saying “I’m right and you two are wrong”. Our recollection is that we DID discuss the creation of a common set of deposition exhibits for everyone’s use. Just because you claim your recollection to be the definitive one doesn’t make it so. Joan and I recollect differently what was said. The second production was due on December 21, 2007. You were supposed to produce the privilege log then as well. The fact that we are now having a motion dispute over that production does not excuse your obligation to provide us with the final privilege log. I assume you aren’t asking us to pay you for the copy costs associated with printing out the privilege log, correct? We will address this refusal to give us a privilege log in our motion to compel. As for my sending emails to you, I only do so as a means of confirming our oral communications. There appear to be a lot of “misunderstandings” whenever we speak so I feel it is necessary to try to combat that by following up our calls in writing. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law Bl09 The Real Meaning of the Holidays O•••mb.c 25, 'II' From: Mark Wasser [mailto:[email protected]]
" . " " ,y "'''"'"''
Sent: Monday, December 31, 2007 5:00 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin 1
MTC000159
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 194 of 207
Gene, It requires some diligence to keep us on the same page. There was no misunderstanding about our agreement to prepare a common set of deposition exhibits for everyone’s use and I very clearly and repeatedly told you so. We are having the reporter sequentially number all deposition exhibits and put them in a binder for that reason. The misunderstanding had to do with your and Ms. Herrington’s decision to copy all the documents produced in the initial disclosures, put them in binders, tab them and treat THEM as the common set of deposition exhibits. We never discussed that and I see no reason to do that. Now that I understand that is what you are propose to do, I will think about how useful it will be and let you know about paying for one set of the binders. At present, I see no advantage to it. I have no interest in marking all the documents produced at the initial disclosures as deposition exhibits. We have already produced the privilege log and will supplement it to reflect the second production. My reference to our position “evolving” was in the context of Royce Johnson’s personnel file. I told you I have learned of new documents I have not yet seen on Friday. Whether they change our position remains to be seen. I will let you know. I also told you that KMC continues to find documents and send them to me. Some of those may need to be produced. I don’t know yet because I have not seen them. I do not recall saying that I intend to examine Dr. Jadwin on “thousands of documents.” I do not. I will examine him on some documents, maybe dozens, but far less than “thousands.” I am not aware of “thousands” of documents that even interest me in this case. If our past history is any indicator of the future, you will now send me an e-mail thanking me for promising to not ask Dr. Jadwin questions about more than a dozen documents. ☺ Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, December 31, 2007 4:33 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, I think the talk was useful in that at least it established that there was misunderstanding between the parties as to the deposition exhibits that plaintiff was preparing for everyone’s use. I agree we should review the transcript because my co-counsel, Joan Herrington, and I had understood that plaintiff was preparing a set of common deposition exhibits for the use of each party at all depositions, which is why we were asking for defendants to pay for a portion of the costs. You say your understanding was different. In any case, the call also established that there is no misunderstanding regarding numerous other issues which are the subject of plaintiff’s motion to compel. For instance, plaintiff’s review of the caselaw shows that responding party, not requesting party, should bear the costs of copying responsive discovery documents, and that responding party is not permitted to withhold document production pending a demand for reimbursement of copying costs. I’ll look for the caselaw, but I can’t name them off the top of my head. Also, as I had mentioned, defendants were supposed to produce a privilege log to plaintiff but never did. Contrary to what you said on the call, production of the privilege log should not be made contingent on actual production of the documents. I had mentioned to you numerous other issues: 1) defendants’ continued use of an overbroad objection referring generally to “federal and state law”, 2) defendants raising of numerous additional objections which had not 2
MTC000160
Case 1:07-cv-00026-OWW-TAG Document 83 Filed 01/09/2008 Page 195 of 207 appeared in the initial responses and were thus waived, 3) defendants’ inappropriate citation to state privileges in a federal court involving federal question jurisdiction, 4) defendants’ refusal to produce any documents in response to numerous requests, 5) defendants’ refusal to produce any documents relating to Dr. Royce Johnson based upon the erstwhile distinction that he was only an “acting chair” and hence not a comparator for plaintiff (when in fact he had been for many many years, and continues to be, a chair in all but title only), etc. I had also mentioned to you that I am presently drafting the joint statement. You stated that defendants’ position continues to “evolve” and it’s possible defendants may change their stance on some of the above disputed issues. Plaintiff is certainly pleased to hear that, but until defendants actually commits to a change in position, plaintiff has no choice but to go ahead and observe the January 9 filing deadline for the joint statement. On a final note, your email mentions “thousands of documents” on which presumably you intend to examine Dr. Jadwin at his deposition. I would remind you of defendants’ ongoing duty under FRCP R 26 to supplement the initial disclosures on an ongoing basis. This duty is separate and apart from the discovery dispute we are having regarding plaintiff’s requests for production, set one. You should not expect to unfairly surprise plaintiff with documents at Dr. Jadwin’s deposition that you were under an ongoing duty to disclose but did not. If this scenario materializes, we intend to cease defendants’ deposition of Dr. Jadwin and immediately file a motion for protective order. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays o ••emb.c 25, 'II' From: Mark Wasser [mailto:[email protected]] " ..."
Sent: Monday, December 31, 2007 3:19 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
,y ...oo,,"..
Gene, So, we talked, the talk was pleasant although we did not resolve much. We can review the transcript, if you want, but I do not recall any communication when you explained that you were going to copy all the initial disclosures and tab them and put them in binders and make me a set. I had no understanding that you were doing that. Now that we have discussed it, the question arises as to why we would do that with the initial disclosures and not the rest of the thousands of documents that have been produced. There is nothing special about the initial disclosures that I know of. You told me the cases do not support our request that you reimburse the copy costs. Although you did not cite any case, I will look at it further and let you know what I find. 3
MTC000161
Mark
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 196 of 207
From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, December 31, 2007 2:38 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, My view is different from yours. I have always understood that a phone call would clarify where written communications fail. In any case, we will be sending you the joint statement shortly. If you wish to discuss it (via written communications, per your wishes), please do not hesitate to let me know. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' From: Mark Wasser [mailto:[email protected]] n ..." ,y "'",," ..
Sent: Monday, December 31, 2007 2:23 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene,
I think this issue is best left to written communications. I know what I have written to you and you do not read what I have written the same way I do. That miscommunication is enough. I do not want to risk compounding it with an oral conversation. I expect our written communications will be provided to the Court and I have written them with that in mind. I agree with you that this detour is unfortunate and a waste of time but you are the moving party. The documents remain available upon payment of the cost cost. Mark
4
MTC000162
Case 1:07-cv-00026-OWW-TAG
Document 83
From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, December 31, 2007 2:03 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Filed 01/09/2008
Page 197 of 207
Mark, Regarding accommodations for Dr. Jadwin at trial, I suggest we cross that bridge when the time comes. Trial is still a year off and Dr. Jadwin’s condition is subject to change. Are you claiming that the accommodations needed by Dr. Jadwin for a deposition in January 2008 will be exactly the same as those required for a trial in December 2008? I hope you will agree that we should leave those kinds of determinations to the medical professionals. As for your inability to comprehend the issue regarding the copies, please give me a call. I’ve already tried to explain the issue to you on numerous occasions in numerous ways and at this point, I think your confusion would best be remedied by a call. Also, I would kindly ask that you review your own emails to me before asking me to refresh your recollection for you as to your role in the discovery cost dispute. They will be attached to the joint statement. If you still require clarification, please give me a call. I would be happy to try to explain the content of your emails to you. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law Bl09 The Real Meaning of the Holidays O•••mb.c 25, 'II' From: Mark Wasser [mailto:[email protected]]
" . " " ,y "'''"'"''
Sent: Monday, December 31, 2007 1:23 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene,
Be sure you ask Dr. Jadwin’s treating physician to address the accommodations that will be necessary when he testifies in court. I know you won’t request accommodations in his deposition that you won’t also be requesting from Judge Wanger at trial. I expect Dr. Jadwin’s trial testimony will last more than one day, so we should discuss that, as well. The last part of your message does not make sense to me as I understand we are having a common set of deposition exhibits with a consistent numbering system. Have you changed that? Perhaps you can explain what you mean. Also, I do not recall creating a dispute about discovery costs. Clarification on that will be helpful, too. Mark 5
MTC000163
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 198 of 207
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 28, 2007 6:15 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, Thank you for your email. I do not recollect Dr. Jadwin behaving in anything close to the manner you describe. We can get a declaration from the court reporter, if you wish. Also, unless you have a background in disabling depression and its symptoms, I would submit that your clinical observations are in any event irrelevant. I happened to notice you and Ms. Barnes dozing off from time to time during the depositions; perhaps that might explain the discrepancies in your recollection. At other times, you were nearly supine in your chair as you stretched your feet under the table toward the deponent during testimony; perhaps as a result you didn’t have a good vantage point to notice what Dr. Jadwin was doing. I recommend we wait and see what restrictions Dr. Jadwin’s treating psychiatrist prescribes and then we can discuss reasonable accommodations. I just wanted to give you the courtesy of advance notice. I assume you are just as interested as we are in ensuring Dr. Jadwin’s best testimony. Regarding the copies of deposition exhibits, we had agreed to create a single common set of deposition exhibits (comprised of all Rule 26 Initial Disclosures in chronological order) for the use of BOTH plaintiff and defendants, i.e., you would have had the use of this set for your deposition of Dr. Jadwin and any other depositions you choose to conduct in the future. This way, we could’ve ensured a consistent exhibit numbering system and easily avoided duplicates of exhibits, not to mention made things more efficient for all future depositions for all parties. However, you changed your mind about bearing a portion of the photocopy cost (which does not even account for the time spent by plaintiff to create the set, work with Kinko’s and proof it) and decided to turn it into a broader dispute about discovery costs. That’s too bad – I fail to see how this has benefitted anybody. In any case, no hard feelings. I hope you have a good weekend. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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. 6
MTC000164
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' From: Mark Wasser [mailto:[email protected]] " ..."
Sent: Friday, December 28, 2007 5:33 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Page 199 of 207
,y "'oo,,"..
Gene, With regard to Dr. Jadwin’s deposition, his disabling depression did not seem to interfere with his ability to sit through 10 hours of back-to-back depositions in one day that exhausted the reporter a few weeks ago. In fact, he remained quite animated all day as he worked his laptop computer with you. He even left in the middle of one deposition to attend to other business. I am confident we can work something out to allow him to cope with his disabling depression in his deposition. I will not go past 5:00 and we can take more and longer breaks. We will not be going into the evening hours as you did. We will do our best to help him through it. With regard to the cost of deposition exhibits, we will be pleased to reimburse each other for all copies. Wanting us to pay your copy costs while balking at paying ours is not particularly consistent. Let us know what your position on copy costs is going to be. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 28, 2007 5:12 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Deposition of Dr. Jadwin
Mark: With Dr. Jadwin’s deposition coming up, I need to discuss a couple of things with you. As you know, Dr. Jadwin has disabling depression for which he continues to receive medication and treatment. He is consulting his treating psychiatrist but it appears he may have difficulty sitting through more than 3 or 4 hours of deposition in a single day. We will let you know what his psychiatrist determines. If we can’t finish it this time around, it may be necessary as a reasonable accommodation to resume his deposition at a time in the near future. Also, as you know, we have already prepared a set of deposition exhibits that originally had been intended for the use of all parties (but you refused to pay any of the associated cost). Please note that our exhibits run from exhibit no. 27 to exhibit no. 558. Please begin the numbering of your deposition exhibits for the Dr. Jadwin deposition at exhibit no. 559. If you have any questions, please let me know. Otherwise, I hope you have a good weekend. Sincerely, Gene Lee 7
MTC000165
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 200 of 207
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' n ..." ,y "'",," ..
8
MTC000166
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 201 of 207
EXHIBIT 22. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/2/08
MTC000167
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 202 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Wednesday, January 02, 2008 3:53 PM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Deposition of Dr. Jadwin
Follow Up Flag: Flag Status:
Follow up Flagged
Mark, I’m glad to see that you admit that my December 28 email had slipped your mind. But now you say, definitively, “That was the first time”. Again, my recollection is different. We had mentioned the initial disclosures as “common exhibits” to you several times both during the depositions and afterwards. It appears these other instances have slipped your mind as well. As for your confusion about “nondisclosure” of documents, I refer you to FRCP Rule 26 and its attendant caselaw. If you still remain confused about what Rule 26 and its ongoing duty to supplement entails, please feel free to give me a call and I will do my best to explain the issue to you. Given the way in which our written communications tend to get bogged down in mis-recollections of events, I believe a call would be more efficient. My cell is 213-4531781, please call me any time. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' " ..."
,y "'oo,,"..
From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, January 02, 2008 3:35 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene, 1
MTC000168
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
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My mistake, you did mention using the initial disclosures as “common exhibits” on December 28. That was the first time. The issue remains that you did not inform me of your decision to use them earlier. When you write that “it is only natural that we had discussed them,” you lose me. Why is that only natural? The fact is, we did not discuss using the initial disclosures as a common set of exhibits. I am tired of this topic and will not go round and round with you on it any more. It is pointless. As I recall, the discussion originated in your request that I pay for one set of binders. I still do not see their utility. The rest of your message, about the “nondisclosure” of documents to Dr. Jadwin, loses me, again. I have no idea what you are referring to. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, January 02, 2008 12:25 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, Your email states: “At no point before our communications on Monday did either you or Ms. Herrington ever disclose that you had decided to mark all the documents produced at the initial disclosures as deposition exhibits.” By Monday, I assume you are referring to last Monday, December 31, 2007. As has so often been the case, regrettably, your recollections are flawed. I refer you to my email to you of December 28, 2007, where I stated: “Regarding the copies of deposition exhibits, we had agreed to create a single common set of deposition exhibits (comprised of all Rule 26 Initial Disclosures in chronological order) for the use of BOTH plaintiff and defendants, i.e., you would have had the use of this set for your deposition of Dr. Jadwin and any other depositions you choose to conduct in the future.” We had also discussed the above at the last set of depositions and on the phone afterwards. But perhaps you don’t recollect that either. I would also remind you that Rule 26 requires that the parties produce to each other all documents which are relevant to any claims or defenses in the action. Rule 26 also imposes on all parties a continuing duty to supplement their Initial Disclosures. Assuming defendants have complied with Rule 26, it’s only natural that we had discussed and agreed to turn the Initial Disclosures into a common set of deposition exhibits. You say you now disagree. May I ask what documents you intend to examine Dr. Jadwin on at his deposition outside of the Initial Disclosures and whether they have been disclosed to plaintiff as required by Rule 26? If they have not been disclosed, plaintiff intends to file a motion for protective order to ensure Dr. Jadwin is not unfairly surprised at his deposition. I had already mentioned this nondisclosure issue in a previous email, but I remind you again given the difficulties we are having with your ability to comprehend sentences and recollect events accurately. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF 2
EUGENE
LEE MTC000169
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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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays o ••emb.c 25, 'II' " ..."
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From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, January 02, 2008 9:39 AM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene, Why is it so hard to communicate with you? You write in this message, again, that you and Ms. Herrington recall that “we
DID discuss the creation of a common set of deposition exhibits for everyone’s use.” Yes. I know. I agree. There is no disagreement over that. Why do you insist on restating that which we agree on? The disagreement is over your undisclosed decision to make the initial disclosures the common set of exhibits. That is the issue. We have exchanged several e-mails about this and spoken about it but you still do not seem to get it. No one is disputing the wisdom of making a common set of exhibits. The issue is your decision to use the documents produced at the initial disclosures as the common set. I don’t know how to write that more clearly. As I wrote on Monday, I see no utility to marking all the initial disclosures as deposition exhibits. Why does that seem like a good idea? Perhaps you can explain that. Our agreement was to have the reporter prepare a binder with the sequentially marked deposition exhibits. That is the “common set.” She has done that. That is what we agreed to. At no point before our communications on Monday did either you or Ms. Herrington ever disclose that you had decided to mark all the documents produced at the initial disclosures as deposition exhibits. If you can refer to me to any communication where you did, please do so. Mark
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EXHIBIT 23. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/4/08
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Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Friday, January 04, 2008 10:00 AM [email protected] RE: Photocopy costs.
Gene, No. I am not researching this for you. I have done my research. It is your motion to compel. I presume you have authority to support your motion. If not, too bad. If so, proceed with your motion. I am satisfied with my position. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, January 04, 2008 9:53 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Photocopy costs.
Mark, I would appreciate the case citations. I look forward to receiving them. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 Minimum Wage IS Now $8,00 per Hour Janua..... , '00'
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From: Mark Wasser [mailto:[email protected]] Sent: Friday, January 04, 2008 9:30 AM To: Eugene Lee Subject: Photocopy costs. Gene, 1
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I have found cases that say the requesting party must pay the cost of photocopying documents. I have found no cases that hold otherwise. You said you had some. If you do, give me the cites. So far, I find no support for your position. 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]
2
MTC000173
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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 DAVID F. JADWIN, D.O.,
Civil Action No. 1:07-cv-00026 OWW TAG
14 Plaintiff, 15 16
v. COUNTY OF KERN, et al.,
DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
Defendants.
17
Date: January 14, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA
18 19
Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008
20 21 22 23
Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a joint statement re discovery disagreement.
24
//
25
//
26
//
27
//
28
/// DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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I, Eugene D. Lee, declare as follows:
2
1.
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I am counsel of record for Plaintiff. I have personal knowledge of the matters set forth
below and I could and would competently testify thereto if called as a witness in this matter. 2.
Pursuant to Local Rule 37-251, I attempted to secure the cooperation of Defendants’
5
counsel, Mark Wasser, to prepare and execute a joint statement re discovery disagreement. I had
6
numerous, extensive meet and confer discussions with Mr. Wasser by phone, email and fax. On Friday,
7
January 4, 2008, at around 4 p.m., I sent Mr. Wasser a draft version of the Joint Statement re: Discovery
8
Disagreement by fax, requesting his input. I explained in the cover letter that the draft was a work in
9
progress and remained subject to change. I also sent to Mr. Wasser, via first-class mail, a copy of the
10
exhibits which I intended to attach to the Joint Statement. Later that day, at around 11 p.m., I sent Mr.
11
Wasser another draft of the Joint Statement by fax, again requesting his input.
12
3.
On January 9, 2008, I approached Mr. Wasser at a deposition he was conducting of my
13
client, Plaintiff David Jadwin, and asked him for his feedback on the Joint Statement. He responded that
14
he intended to file a Declaration re Joint Statement stating that I had not delivered to him the exhibits to
15
the Joint Statement for his review. I explained I had mailed the exhibits to him, per my fax of January 4,
16
2008. I also offered to give him an electronic version of the exhibits right then and there. Mr. Wasser
17
refused. The exhibits consist exclusively of faxes, letters and emails exchanged between myself and Mr.
18
Wasser, all of which Mr. Wasser already has in his possession.
19
4.
To date, I have not received any response from Mr. Wasser regarding the Joint Statement.
20
5.
Attached hereto as Attachment A is a true and correct copy of the draft Joint Statement
21 22
which I had prepared. 6.
Defendants refuse to produce documents in response to Plaintiff’s request for production
23
set one unless and until Plaintiff reimburses Defendants for copy costs which Defendants incurred
24
without once consulting with Plaintiff. Plaintiff had requested Defendants produce the documents for
25
Plaintiff’s inspection and copying at its own cost, but Defendants’ refused, insisting on reimbursement
26
for the copies which it had unilaterally made. Plaintiff has moved this Court to compel Defendants to
27
produce the documents.
28
7.
Defendants refuse to produce a privilege log unless and until Plaintiff reimburses
DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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1
Defendants for the above-referenced copy costs. Plaintiff contends that the copy costs have nothing to
2
do with the privilege log and Defendants should have timely produced it.
3
8.
Defendants invoke peer review privilege based upon state law. Plaintiff contends that
4
state privilege law does not apply in federal question jurisdiction cases in federal court. Plaintiff also
5
contends that there is no federal peer review privilege.
6 7 8 9
9.
Defendants invoke numerous other objections and privileges which Plaintiff contends are
improper and/or baseless. 10.
Briefing regarding Plaintiff’s above-referenced contentions is contained in the draft Joint
Statement, attached hereto as Attachment A.
10 11 12
I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.
13 Executed on: January 9, 2008 14 15 16
/s/ Eugene D. Lee
17
EUGENE D. LEE Declarant
18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
ATTACHMENT A
28 DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OF DEFENDANTS’ COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT
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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 10 11 12 13
Mark A. Wasser CA SB #06160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]
14 15 16 17 18 19
Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected] Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.
20 UNITED STATES DISTRICT COURT 21 EASTERN DISTRICT OF CALIFORNIA 22 DAVID F. JADWIN, D.O.,
Civil Action No. 1:07-cv-00026 OWW TAG
23 Plaintiff, 24 25 26
v. COUNTY OF KERN, et al., Defendants.
JOINT STATEMENT RE: DISCOVERY DISAGREEMENT Date: January 14, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA
27 Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008
28 JOINT STATEMENT re: DISCOVERY DISPUTE
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This joint statement re: discovery disagreement is submitted pursuant to Local Rule 37-251(a) in
2
advance of the January 14, 2008 hearing on Plaintiff’s motion to compel production and further
3
responses to Plaintiff’s requests for production, set one (“RPD1”).
4 I.
DETAILS OF THE PARTIES’ DISCOVERY CONFERENCES
5 6
The parties engaged in a prolonged “meet and confer” process that was conducted by letter,
7
email and phone over the course of several months as shown in the attached Exhibits. Plaintiff David F.
8
Jadwin (“Plaintiff”) served RPD1 on Defendant County of Kern (“Defendant”) on October 11, 2007.
9
After Defendant served initial responses to Plaintiff’s RPD1 (“Response 1”) on November 20, 2007,
10
Plaintiff met and conferred extensively with Defendant in an attempt to resolve discovery disputes. As
11
Defendant has admitted, Plaintiff has tried to be “flexible” with Defendant in extending deadlines and
12
narrowing request language. Plaintiff even gave technological advice on optical scanning, OCR
13
functions, and cost-efficient purchase of Adobe Acrobat 8.0.
14
On December 17, 2007, four days before the agreed-upon December 21, 2007 deadline to
15
produce documents, Defendant suddenly demanded Plaintiff pay $10,000 (later reduced to $3,765) in
16
reimbursement of Kern County’s copy costs. Defendant stated that if it was not in receipt of such
17
payment, Defendant would not produce any documents at all. Defendant admits it had not previously
18
raised this issue with Plaintiff.
19
Plaintiff initially agreed to pay under protest, but after researching case law and upon being
20
further informed by Defendant for the first time that “Many of the documents you have requested have,
21
at most, a very tenuous connection to any issues in the case”, Plaintiff hesitated to pay such a substantial
22
and possibly wasteful sum for possibly unnecessary copies which Defendant had unilaterally made
23
without consulting Plaintiff. Unlike Defendant Kern County, Plaintiff is an individual and cannot easily
24
bear such a cost.
25
On December 19, 2007, Defendant served supplemental responses (“Response 2”). As compared
26
to Response 1, Response 2 raised new objections, contained overbroad objections, contained new
27
refusals to produce, etc. Despite extensive meet and confers, Response 2 represented a step backward
28
from Response 1. JOINT STATEMENT re: DISCOVERY DISPUTE
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In lieu of paying Defendant’s demanded sum of $3,765 for copies, Plaintiff requested Defendant
2
produce originals for inspection and copying at Plaintiff’s office, as had been requested in Plaintiff’s
3
RPD1. Defendants refused and, to date, continue to withhold documents and the associated privilege
4
log.
5
Following is a brief chronology of relevant events:
6
October 11, 2007
Plaintiff serves requests for production, set one, on Defendant, requesting written responses by November 12, 2007 and production by November 16, 2007.
October 31, 2007
Defendant requests extension of deadlines to December 21, 2007.
November 1, 2007
Parties meet and confer by phone.
November 7, 2007
Parties meet and confer by phone. Plaintiff agrees to permit both responses and production in three separate installments due November 16, December 7 and December 21. Defendant requests stipulation to delay pre-trial and trial deadlines by three months to accommodate Defendant’s document processing requirements. Plaintiff later agrees.
November 14, 2007
Parties meet and confer by phone. Defendant confirms production/response deadlines.
November 15, 2007
Plaintiff’s counsel, Eugene Lee, speaks by phone with Defendant’s counsel, Mark Wasser, and his assistant and guides them through the OCR and redaction functions of Adobe Acrobat 8.0. In an email, Mr. Lee advises Mr. Wasser on cost-efficient methods to purchase Acrobat.
November 20, 2007
Defendant serves written responses (“Response 1”) indicating production dates of November 20, December 7 and December 21, and the first document production installment (“Production 1”). Production 1 contains up to 8 duplicate sets of the same documents. Parties meet and confer by emails.
November 21, 2007
Parties meet and confer by phone regarding Response 1. Defendant agrees that Defendant’s objection “documents protected from disclosure by state or federal law” is overbroad and intends to revise its responses.
November 26, 2007
Parties meet and confer by phone regarding Response 1. Defendant clarifies that its objection, “documents protected from disclosure by state or federal law”, refers specifically to HIPAA and peer review privilege. Defendant agrees to revise Response 1 accordingly by November 30.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
At Defendant’s request, Plaintiff narrows Request 33 by revising it to read: JOINT STATEMENT re: DISCOVERY DISPUTE
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“Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or present employees against YOU for defamation, retaliation, disability discrimination, failure to accommodate, and/or failure to engage in an interactive process RELATING TO Kern Medical Center and/or its officers or staff, including but not limited to any informal or internal complaints, grievances or charges to any state or federal agency, and complaints filed in any state or federal court from October 24, 2000 to date.” (redlined to show revisions)
2 3 4 5 6 7 8
November 30, 2007
Parties meet and confer by phone regarding Response 1.
December 3, 2007
Parties meet and confer by phone. Defendant reiterates production deadlines of December 7 and December 21. Defendant states that it will serve privilege log on December 6.
December 7, 2007
Defendant fails to produce second document installment (“Production 2”) or privilege log.
December 13, 2007
Defendant serves incomplete privilege log relating only to Production 1 (“Log 1”).
December 14, 2007
Parties meet and confer by email regarding Response 1. Defendant makes no mention of reimbursement costs and states “I expect to produce the remaining documents before December 21”.
December 17, 2007
Parties meet and confer by phone and emails. Defendant raises the issue of copy reimbursement costs for the first time and demands Plaintiff pay $10,000 in actual and “estimated” copy costs, otherwise, Defendant will not produce Production 2.
December 19, 2007
Defendant sends fax to Plaintiff requesting Plaintiff’s payment of $3,765 in reimbursement of Defendant’s copy costs. Defendant admits “You are correct that we did not raise the issue of costs earlier.”
9 10 11 12 13 14 15 16 17 18 19 20 21
Defendant serves supplemental responses (“Response 2”). Response 2 is deficient in that it:
22
-
23
-
24 25 26 27 28
-
raises new objections which were waived in Response 1; fails to narrow Defendant’s overly-broad objection “documents protected from disclosure by state or federal law” as had been agreed on several occasions; adds several new refusals to produce documents, despite agreeing to such production in meet and confer; refuses to produce documents based on privilege instead of producing redacted versions; refuses to produce in response to Request 35 in disregard of Plaintiff’s narrowing of Request 35 that Defendant had requested and agreed to. conditions all production on receipt of reimbursement
JOINT STATEMENT re: DISCOVERY DISPUTE
4
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of its estimated copy costs of $3,765.
2
December 20, 2007
3 4
Plaintiff sends fax to Defendant refusing to pay the demanded reimbursement and requesting Defendant produce original documents for Plaintiff’s inspection and copying by December 21. Defendant tells Plaintiff that it is suspending production of documents.
5 6
December 21, 2007
Defendant fails to produce second document installment or privilege log (“Log 2”).
December 28, 2007
Plaintiff and Defendant exchange meet and confer emails regarding the cost reimbursement issue.
December 31, 2007
Plaintiff and Defendant meet and confer by phone and emails regarding the cost reimbursement issue and the numerous deficiencies in Response 2.
January 2, 2008
Plaintiff and Defendant meet and confer by emails regarding the cost reimbursement issue. Defendant admits to misremembering events.
January 4, 2008
Plaintiff and Defendant meet and confer by emails regarding the cost reimbursement issue. Defendants states they have identified case citations which definitively establish the correctness of their position. Defendants ask Plaintiff to share case citations in support of Plaintiff’s position, but when asked to do the same, they refuse.
7 8 9 10 11 12 13 14 15 16 17
Document 83
II.
A STATEMENT OF THE NATURE OF THE CASE AND FACTUAL DISPUTES
18 19 20 21 22 23 24 25 26 27 28
Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center (“KMC”) and senior pathologist from October 24, 2000 to October 4, 2007, filed a Complaint with this Court on January 6, 2007. Plaintiff contends that various defendants retaliated against and defamed him for reporting his concerns about patient care quality issues at KMC. As a result, Plaintiff was forced to take medical and recuperative leave for disabling clinical depression in early 2006. While Plaintiff was on leave, Defendants demoted him in June 2006 to a staff pathologist for “unavailability” and refused to reinstate him upon his return to work on October 4, 2006. On December 7, 2006, he was placed on involuntary administrative leave and restricted to his home during working hours until May 1, 2007. Around May 1, 2007, Defendant informed Plaintiff of its decision to either “buy out” the remaining term of his contract (due to expire on October 4, 2007) or simply let the contract “run out”. On October 4, JOINT STATEMENT re: DISCOVERY DISPUTE
5
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2007, Defendants did not renew Plaintiff’s employment contract.
2
Plaintiff’s Complaint alleges whistleblower retaliation, disability discrimination, medical leave
3
interference and retaliation, defamation and deprivation of compensation and professional fees without
4
procedural due process. Critical to Plaintiff’s case is evidence that Plaintiff was treated differently from
5
other similarly situated individuals at KMC, i.e., so-called “comparators”, as a result of discrimination
6
and retaliation by Defendants.
7
Defendants contend that the dispute arose out of Plaintiff’s tenure as a pathologist at Kern
8
Medical Center. Plaintiff’s relationship with other members of the medical staff deteriorated to the point
9
of intimidation, hostility and antagonism. Defendants contend, to the extent that any hostile work
10
environment existed, it was caused by Plaintiff.
11 III.
THE CONTENTION OF EACH PARTY AS TO EACH CONTESTED ISSUE
A.
Defendant’s Refusal to Produce Documents or Privilege Log until Plaintiff Reimburses Defendant for Copy Costs
12 13 14 1.
Plaintiff’s Position
15 a. The Privilege Log 16 During a meet and confer call of December 31, 2007, Defendants stated that they refused to 17 produce the final privilege log, Log 2, until the cost reimbursement issue regarding production of 18 Production 2 has been resolved. Later that day, Plaintiff sent an email to Defendants stating: “Contrary 19 to what you said on the call, production of the privilege log should not be made contingent on actual 20 production of the documents.” Presumably Defendants are not asking Plaintiff to reimburse it for copy 21 costs associated with Log 2. As such, Defendants should have provided Log 2 to Plaintiff on December 22 21, 2007. Instead, nearly three months after Plaintiff had first served the requests for production set one, 23 they continue to withhold it. 24 The Court should deem all privileges asserted by Defendants waived. The Court has discretion to 25 reject a claim of privilege where an insufficient privilege log is provided. United States v. Construction 26 Products Research, Inc. (2nd Cir. 1996) 73 F3d 464, 473; United States v. British American Tobacco 27 (Investments) Ltd. (DC Cir. 2004) 387 F3d 884, 890–891. 28 JOINT STATEMENT re: DISCOVERY DISPUTE
6
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1
b. Defendants Rely upon a Misreading of Caselaw
2
Defendants have cited “page 11-236, section 11:1937 of the Schwarzer, Tashima and Wagstaffe
3
handbook on federal practice” in meet and confers for the proposition that the requesting party must pay
4
the producing party’s copy costs. Section 11:1937 reads:
5 6 7
Ordinarily, the producing party bears the costs of reviewing and gathering documents while the requesting party pays for the costs of the copies only. [Continental Ill. Nat'l Bank & Trust Co. of Chicago v. Caton (D KS 1991) 136 FRD 682, 690; Bills v. Kennecott Corp. (D UT 1985) 108 FRD 459, 462] CAFEDCIVP CH. 11(IV)-C.
8
However, Defendants misconstrue this proposition. The proposition is not that requesting party must pay
9
any and all copy costs incurred in whatsoever manner, no matter how exorbitant or wasteful, by any
10
party, with or without prior consultation with the requesting party. This would give responding parties
11
wide discretion to financially harass, ambush and drain the resources of the requesting party, particularly
12
where, as here, the requesting party is an individual. That is exactly what Defendants have done by
13
suddenly demanding Plaintiff Dr. Jadwin pay $10,000 in copy costs just four days before the final
14
production deadline.
15
The proposition correctly stated is that the responding party must produce documents to the
16
requesting party, bearing its own costs of gathering the documents, while the requesting party must be
17
permitted to inspect the documents and copy documents of Plaintiff’s choosing, bearing its own costs of
18
copying and inspection. The Washington District Court articulates this exact proposition (citing both
19
Continental and Kennecott) in Fryer v. Brown, 2005 U.S. Dist. LEXIS 20830 (D. Wash. 2005):
20
Any party may serve on any other party a request to produce and permit the party making the request to inspect and copy any designated documents. Fed. R. Civ. P. 34(a). Ordinarily, the producing party bears the costs of reviewing and gathering documents while the requesting party pays for the costs and copies only. Continental Ill. Nat'l Bank & Trust Co. Of Chicago v. Caton, 136 FRD 682, 690 (D KS 1991); Bills v. Kennecott Corp., 108 FRD 459, 462 (D UT 1985). [emphasis added].
21 22 23
Plaintiff’s requests for production set one had requested Defendants “produce and permit 24 inspection and copying of the documents described below [at the office of plaintiff's counsel]”. On 25 December 20, 2007, faced with Defendants’ sudden last-minute demand for payment of $10,000 in copy 26 costs (later reduced by Defendants to ~$3,000), Plaintiff had no choice but to reiterate its original 27 request that Defendants produce the original documents for inspection and copying by Plaintiff at its 28 JOINT STATEMENT re: DISCOVERY DISPUTE
7
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1
own cost. Defendants refused to comply, citing objections to the manner and place of production despite
2
having failed to raise, and thereby having waived, those objections in Response 1. Instead, Defendants
3
continued to insist Plaintiff pay Defendants for copy costs associated with a massive volume of
4
documents which in Defendants’ own words “have, at most, a very tenuous connection to any issues in
5
the case”, copy costs which Defendants unilaterally incurred without consulting or meeting and
6
conferring with Plaintiff beforehand.
7
c. Defendants Had a Duty to Meet and Confer with Plaintiff on Copy Costs
8
Even if the Court determines Defendants are entitled to be reimbursed for their copy costs,
9
Defendants are under a duty to meet and confer with Plaintiff regarding such costs. In Rodger v.
10
Electronic Data Sys. Corp., defendant EDS, a large multi-national corporation, argued that plaintiffs’
11
requests for documents relating to multiple reductions in force over a number of years across 26
12
countries would impose a “mind-boggling burden” on defendant. 155 F.R.D. 537, 539 (D.N.C. 1994).
13
The Rodger court found it appropriate to tax the costs of production to the plaintiff given the undue
14
burden imposed on the defendant. However, the court further held that the parties should meet and
15
confer so as to minimize those costs for the plaintiff:
18
Defendant's counsel are directed to confer, after consultation with their client, to seek to minimize these costs by: (1) restricting the scope of materials as much as possible, and (2) using the lowest level employees who have the knowledge and skill required to retrieve the documents. Counsel shall attempt to agree on these expenses and only failing that, file a motion for taxation of these expenses with the court.”. Id. at 542.
19
In meet and confers occurring over more than two months, Defendants repeatedly committed to
16 17
20
producing Production 2 by December 21, 2007. It was only on December 17, just four days before the
21
final production deadline, that Defendants raised the issue of copy costs with Plaintiff. As Defendants
22
admit, this was the first time Defendants had done so. Defendants demanded Plaintiff pay Defendants
23
$10,000 or Defendants would not produce Production 2 by December 21, as had been promised.
24
However, on August 6, 2007, Plaintiff and Defendants had exchanged Rule 26 Initial Disclosures
25
without either party making any mention of copy costs. Plaintiff’s Initial Disclosures were more
26
voluminous than Defendants’ Initial Disclosures. On November 20, 2007, Defendants served Production
27
1 on Plaintiff in the form of electronic files stored on CDs, again without a single mention of copy costs.
28
Production 1 comprised over 12,000 pages of documents (much of it useless chaff). JOINT STATEMENT re: DISCOVERY DISPUTE
8
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1
By failing to consult with Plaintiff as to cost, Defendants acted on their own initiative in
2
incurring processing costs of roughly 14 cents per page. Had Defendants informed Plaintiff earlier of the
3
substantial costs involved, Plaintiff would definitely have worked with Defendants to narrow requests
4
and/or suggest other less costly alternatives. As Defendants admit, Plaintiff had already narrowed
5
numerous production requests in its meet and confers with Defendants in order to expedite Defendants’
6
production.
7 1. Defendant’s Position 8 [INSERT HERE] 9 10 11
B.
Defendant’s Objection that Documents are Protected from Disclosure by State or Federal law
12 1.
Plaintiff’s Position
13 In Response 2, Defendants’ responses to Plaintiff requests nos. 12-15, 17, 23-30, 32-34, 36-43, 14 51, 54-58, 63, 65-67, 70-73, and 78 contain the following objection: “Defendants also object to this 15 request to the extent it requests information protected from disclosure by state or federal law . . . .”. On 16 November 20, 2007, Plaintiff sent an email to Defendants explaining why this objection, which was also 17 contained in Response 1, was overbroad and therefore defective. On a November 21, 2007 call, 18 Defendants admitted it was overbroad. Plaintiff wrote in followup to the call: 19 20 21
As you know, in that email, we had explained that defendants' oft-used objection, "documents protected from disclosure by state or federal law", does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you indicated that defendants would re-state this objection.
22 Yet, in Response 2, the objection remains just as overbroad as it had been in Response 1. 23 The objection does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) 24 fails to explain how the objection relates to the documents demanded. In Obiajulu v City of Rochester, 25 Dep't of Law (1996, WD NY) 166 FRD 293, the defendant City of Rochester had objected that each 26 request “seeks information and material protected by the attorney client, work product doctrine or other 27 privilege”. The court held that “Such pat, generic, non-specific objections, intoning the same boilerplate 28 JOINT STATEMENT re: DISCOVERY DISPUTE
9
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1
language, are inconsistent with both the letter and the spirit of the Federal Rules of Civil Procedure.”
2
The court further held:
3 4 5
An objection to a document request must clearly set forth the specifics of the objection and how that objection relates to the documents being demanded. Roesberg v. JohnsManville Corp., 85 F.R.D. 292 (E.D. Pa. 1980). The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the discovery rules found in the Federal Rules of Civil Procedure.
6 Other federal courts have reached similar holdings. Pulsecard, Inc. v Discover Card Servs. 7 (1996, DC Kan) 168 FRD 295 (Although FRCP 34, which governs production of documents and things, 8 does not provide any language with respect to specificity and waiver of objections, which FRCP 33, 9 which governs interrogatories, does, no reason exists to distinguish between interrogatories and requests 10 for production as to these matters); Rivera v Kmart Corp. (2000, DC Puerto Rico) 190 FRD 298, 45 FR 11 Serv 3d 1349 (asserting general objection to request for production of documents does not comply with 12 FRCP 34(b)). 13 In Hall v Sullivan, the court held that Rule 34 requires objections to document production 14 requests be stated with particularity in a timely answer, and that failure to do so may constitute waiver of 15 grounds not properly raised, including privilege or work product immunity, unless the court excuses this 16 failure for good cause shown. (2005, DC Md) 231 FRD 468. Defendants’ bad faith overbroad objection, 17 which Defendants themselves admitted is overbroad and had agreed to narrow in meet and confer, 18 should be deemed waived in all responses. 19 20
2.
Defendant’s Position
21
[INSERT HERE]
22 C.
Defendant’s Objection based on State-Law Peer Review Privilege
23 1.
Plaintiff’s Position
24 a. State Privilege Law Does Not Apply 25 In Response 2, Defendants invoke the “peer-review privilege” in response to Plaintiff’s requests 26 no. 12-15, 17, 26, 28, 32, 36-43, 45, 51, 54-58, 60, 61, 63, 65-74 and 78. Defendants state in boilerplate 27 fashion: “Defendants object to this request to the extent it requests . . . documents protected from 28 JOINT STATEMENT re: DISCOVERY DISPUTE
10
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disclosure by state or federal law, including . . . the peer-review privilege.”
2
As Plaintiff has repeatedly made clear to Defendants in meet and confers, state privilege law
3
does not apply to federal question jurisdiction cases in federal court. This principle is well-settled in
4
federal law. In the oft-cited case, Wm. T. Thompson, Co. v. Gen. Nutrition Corp., Inc., the court held:
7
Thus, under Rule 501, it is clear that federal claims asserted in a federal question case are governed by federal common law. Further, it is been held that where state law claims overlap with federal claims in a federal question case such that particular documents are relevant to both the state and the federal claims, federal privilege law also applies. 671 F.2d 100, 104 (3rd Cir.1982).
8
The 9th Circuit cited Thompson Co. v. Gen. Nutrition Corp. with approval in Agster v. Maricopa County,
9
holding that “Where there are federal question claims and pendent state law claims present, the federal
10
law of privilege applies.” 422 F.3d 836, 839-840 (9th Cir. 2005) (citations omitted).
5 6
11
In the instant case, plaintiff is bringing federal question claims under FMLA, 42 USC 1983
12
(procedural due process), and FLSA. These federal law claims involve events spanning the entire period
13
of Plaintiff’s employment with Defendant County of Kern. Defendants were on notice of Plaintiff’s
14
depression disability as early as 2000. Plaintiff began raising patient care quality concerns as early as
15
2001 and the retaliation he suffered was almost immediate. As a result of the ongoing hostile work
16
environment, Plaintiff required FMLA medical leave in 2006 in response to which the Defendants
17
demoted him, placed him on 5-months involuntary administrative leave and restriction to his home, and
18
did not renew his contract. Defendants explain their harsh conduct as being in response to Plaintiff’s
19
“arrogance”. At a minimum, all these events establish the willful and malicious nature of the individual
20
Defendants’ conduct in violation of federal laws.
21
A single court has held that, where documents sought are relevant only to pendant state law
22
claims and not to the federal claims in a diversity jurisdiction case, state privilege law applies: Platypus
23
Wear, Inc. v. K.D. Co., Inc., 905 F. Supp. 808 (S.D. Cal. 1995). However, that case is distinguishable
24
due to its extreme circumstances. There, plaintiff had brought exclusively state claims in federal court
25
under diversity, not federal question, jurisdiction. The defendant then brought counter-claims which
26
included a single federal counter-claim. On the slim basis of the defendant’s lone federal counter-
27
claim, plaintiff argued that federal privilege law should apply to its state law claims. The court held in
28
those extreme circumstances that state privilege law should apply to plaintiff’s state law claims. Id. at JOINT STATEMENT re: DISCOVERY DISPUTE
11
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812. The distinction between diversity and federal question jurisdiction should not be underestimated.
3
In federal question cases, the state's interest is that of a litigant, and not, as in diversity cases, that of a
4
sovereign whose law is being applied in a foreign forum. Reference to federal law in this case is
5
necessary on the issue of the existence and scope of the claimed privilege. Heathman v. United States
6
District Court, 503 F.2d at 1034; Fears v. Burris Manufacturing Co., 436 F.2d 1357, 1360-1361 (5th
7
Cir. 1971); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387-389 (5th Cir. 1970); Colton v. United
8
States, 306 F.2d 633, 636 (2d Cir. 1962).
9
Even if the Court were inclined to find that state privilege law should apply to Plaintiff’s pendent
10
state law claims, it should be noted that the task of discerning which evidence goes solely to Plaintiff’s
11
state law claims vis-à-vis federal law claims will be impracticable and will engender unending disputes
12
between the parties that will ultimately require excessive judicial resources to sort out.
13 14
Under the well-settled holding in Thompson, Co. v. Gen. Nutrition Corp, the Court should hold that state privilege law does not apply.
15
b. There Is No Federal Peer Review Privilege
16
There is no federal peer review privilege, nor has a single case in the 9th Circuit yet recognized
17
one. In Agster v. Maricopa County, the 9th Circuit refused to recognize a federal peer review privilege:
18
No case in this circuit has recognized the [peer review] privilege. . . . We are constrained by two considerations, one general and the other particular to this case. We must be "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself." . . . . Congress has twice had occasion and opportunity to consider the [peer review] privilege and not granted it either explicitly or by implication, there exists a general objection to our doing so. 422 F.3d 836, 839-840 (9th Cir. 2005) (citations omitted).
19 20 21 22
The Defendants oft-invoked peer review privilege is baseless. The Court should order 23 Defendants to produce all documents requested. 24 25 2.
Defendant’s Position
26 [INSERT HERE] 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE
12
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1 2 3
D.
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Defendant’s Objection of Personnel Privilege 1.
Plaintiff’s Position
In Response 2, Defendants invoke the “personnel privilege” in response to Plaintiff’s requests
4
nos. 12-15, 17, 26, 28, 32, 36-39, 41, 51, 54-58, 63, 65-67, 70-73, 78. In Response 2, Defendants state in
5
boilerplate fashion: “Defendants object to this request to the extent it requests . . . documents protected
6
from disclosure by state or federal law, including . . . the personnel privilege.”
7
Failing to object to a Rule 34 request within the time permitted waives such objections thereto,
8
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
9
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
10
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
11
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
12
Defendants failed to raise the personnel privilege in Response 1, and is raising it for the first time
13
in Response 2. Plaintiff had met and conferred with Defendants in the hopes that Defendants would
14
remedy the many deficiencies contained in Response 1. Defendants ostensibly served Response 2 as a
15
product of the meet and confers. In fact, Defendants used Response 2 to make a mockery of the meet
16
and confer process and raise new objections that had not been raised in Response 1.
17
Moreover, as stated above, FRCP Rule 34 prohibits objections which (a) are too broadly stated
18
and (b) fail to explain how the objection relates to the documents demanded. Defendants are under a
19
duty to clarify and explain precisely why their objections are proper. The mere boilerplate assertion of
20
“personnel privilege” with no further explication fails to comply with Rule 34. It fails to put Plaintiff on
21
notice as to what the privilege is (Plaintiff has no idea), what its basis is, what it covers, etc.
22
The Court should deem the “personnel privilege” waived in all responses.
23 2.
Defendant’s Position
24 [INSERT HERE] 25 26 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE
13
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1
E.
2 3
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Defendant’s Refusal to Produce Due to Marginal Relevancy 1.
Plaintiff’s Position
In Response 2, Defendants refuse to produce any documents in response to Plaintiff’s requests
4
nos. 32, 36, 38, 39, 41, 54-58, 70-73, 78. In Response 2, Defendants state: “Defendants have determined
5
that the burden of redacting privileged information outweighs the marginal relevancy of the remaining
6
information in the documents”. Plaintiff requests the Court conduct an in camera review of the
7
documents at issue to confirm that Defendants’ redactions are valid and that their refusal to produce any
8
documents is justified.
9 2.
Defendant’s Position
10 [INSERT HERE] 11 12 13
F.
14
REQUEST FOR PRODUCTION NO. 11
15
Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories or lists,
Specific Contested Responses and Objections
16
including but not limited to names, direct work phone numbers, departments, etc. which were
17
maintained by YOU during Plaintiff’s employment with YOU.
18
RESPONSE TO REQUEST NO. 11
19
Defendants will produce all non-privileged documents responsive to this request. Production is
20
expected to be complete on or about December 21, 2007, depending on receipt of reimbursement for
21
estimated copy costs. Defendants will redact privileged information as appropriate.
22
PLAINTIFF’S POSITION
23
FRCP Rule 34 prohibits objections which (a) are too broadly stated and (b) fail to explain how
24
the objection relates to the documents demanded. Defendants are under a duty to clarify and explain
25
precisely why their objections are proper. Defendants merely reference “privileged personal or
26
confidential information”. This assertion of privilege fails to comply with Rule 34. It fails to put Plaintiff
27
on notice as to what the privileges are (Plaintiff has no idea), what its basis is, what it covers, etc.
28
Failing to object to a Rule 34 request within the time permitted waives such objections thereto— JOINT STATEMENT re: DISCOVERY DISPUTE
14
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1
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
2
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
3
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
4
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
5
The Court should deem this assertion of privilege waived.
6
DEFENDANTS’ POSITION
7
[INSERT HERE]
8 9
REQUEST FOR PRODUCTION NO. 26
10
Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his
11
employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, written
12
materials, and computer files stored on Plaintiff’s computer at Kern Medical Center’s servers.
13
RESPONSE TO REQUEST NO. 26
14
Defendants object to this request to the extent it requests documents that contain confidential
15
personnel information, documents protected from disclosure by state or federal law, including HIPAA,
16
the peer-review privilege and the personnel privilege, and documents that are subject to the attorney-
17
client privilege. After diligent search, Defendants believe Groupwise calendar information was deleted
18
many months ago as part of the routine 90-day cycling of the Groupwise software. Defendants are
19
continuing to search for materials that were on the computer that was assigned to Plaintiff. Some
20
material was archived before the computer was reassigned and Defendants will produce copies of the
21
material that was archived by December 21, 2007, depending on receipt of reimbursement for estimated
22
copy costs. Defendants will redact privileged information, if any, as appropriate.
23
PLAINTIFF’S POSITION
24
Failing to object to a Rule 34 request within the time permitted waives such objections thereto—
25
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
26
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
27
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
28
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529. JOINT STATEMENT re: DISCOVERY DISPUTE
15
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1
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Defendants are for the first time raising objections of “confidential personnel information”,
2
“documents protected by disclosure by state or federal law, including HIPAA, the peer-review privilege
3
and the personnel privilege”, and “attorney-client privilege”. Defendants did not timely raise these
4
objections or privileges in Response 1.
5
The Court should deem these objections waived.
6
DEFENDANTS’ POSITION
7
[INSERT HERE]
8 9
REQUEST FOR PRODUCTION NO. 33
10
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or
11
present employees against YOU for defamation, retaliation, disability discrimination, failure to
12
accommodate, and/or failure to engage in an interactive process, including but not limited to any
13
informal or internal complaints, grievances or charges to any state or federal agency, and complaints
14
filed in any state or federal court from October 24, 2000 to date.
15
RESPONSE TO REQUEST NO. 33
16
Defendants object to this request on the grounds that it calls for the production of documents that
17
contain confidential personnel information that is not relevant to any issues in this case. Consequently,
18
this request is not reasonably calculated to lead to the discovery of admissible evidence. Defendants also
19
object on the ground that the phrase, “informal or internal complaints” is vague and, depending on
20
interpretation, could include any off-hand gripe by any employee, to the extent it was memorialized in
21
writing. Defendant County of Kern employs several thousand employees. In the past seven years, there
22
could be many documents that fit the description of this request yet none have anything to do with the
23
issues in this case. This request is, accordingly, overbroad and burdensome. Defendants do not believe
24
redaction would resolve these objections.
25
PLAINTIFF’S POSITION
26
During meet and confers, specifically at Defendant’s request Plaintiff had narrowed Request 33.
27
In a meet and confer fax of November 22, 2007, memorializing a meet and confer call, Plaintiff stated:
28 JOINT STATEMENT re: DISCOVERY DISPUTE
16
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In past meet and confer calls, plaintiff had narrowed this request to complaints or grievances relating to Kern Medical Center which had been made to a government agency or court. These documents are essential to prove disparate treatment and discriminatory/retaliatory intent.
3 On November 27, 2007, following a meet and confer call, Plaintiff sent another meet and confer 4 fax stating: 5
9
We reiterated that we have already agreed to narrow this request [33] to documents relating to complaints or grievances relating to Kern Medical Center which had been made to a government agency or court. We further explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. You requested and we agreed to send you revised response language which nails down exactly what we are requesting. You confirmed that the documents are already in the process of being collected and that, once the request language is revised, you will produce responsive documents by December 7.
10
In that same fax, Plaintiff revised Request 33 to read:
11
14
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or present employees against YOU for defamation, retaliation, disability discrimination, failure to accommodate, and/or failure to engage in an interactive process RELATING TO Kern Medical Center and/or its officers or staff, including but not limited to any informal or internal complaints, grievances or charges to any state or federal agency, and complaints filed in any state or federal court from October 24, 2000 to date.”
15
On November 30, 2007, following a meet and confer call, Plaintiff sent another meet and confer
6 7 8
12 13
16
fax stating:
18
You confirmed that plaintiff’s revised request language is adequate and that you will produce responsive documents tentatively by December 7, but you would have a more definite idea as to production date by next Monday.
19
Despite this extensive meet and confer process, Defendants chose to disregard the revisions
17
20
Plaintiff had made to Request 33. In Response 2, Defendants restated Request 33 in its unrevised form
21
and restated their same objections. In so doing, Defendants breached the numerous assurances they had
22
made to Plaintiff that they would produce documents upon receiving a revised version of Request 33.
23
DEFENDANTS’ POSITION
24
[INSERT HERE]
25 26
REQUEST FOR PRODUCTION NO. 38
27
Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and evaluation of
28
candidates for the position of locum tenens pathologist at Kern Medical Center during the period from JOINT STATEMENT re: DISCOVERY DISPUTE
17
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January 1, 2006 to present.
2
RESPONSE TO REQUEST NO. 38
3
Defendants object to this request on the grounds that it calls for the production of documents that
4
contain confidential personnel information that is not relevant to any issues in this case and is not
5
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
6
request to the extent it requests information protected from disclosure by state or federal law, including
7
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
8
protected by the attorney-client privilege. After review of the documents potentially responsive to this
9
request, Defendants have determined that the burden of redacting privileged information outweighs the
10
marginal relevancy of the remaining information in the documents.
11
PLAINTIFF’S POSITION
12
A showing of relevancy may be enough to cause the court to balance the compelling public need
13
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
14
Cal.App.3d 557, 567.)
15
These documents are highly probative to Plaintiff’s claim that Defendant County of Kern failed
16
to reasonably accommodate his depression disability by failing to timely arrange for locum tenens
17
pathologists who could assist with the Pathology department’s workload during Plaintiff’s reduced work
18
schedule medical and recuperative leaves in 2006. During meet and confers, the parties had specifically
19
discussed Defendants’ privacy concerns regarding this request. The parties agreed that Defendants need
20
not produce any third party letters of reference. In exchange, Defendants agreed to produce documents
21
in response to Request 38. In typical fashion, Defendants now breach the assurances they made to
22
Plaintiff in meet and confer.
23
DEFENDANTS’ POSITION
24
[INSERT HERE]
25 26
REQUEST FOR PRODUCTION NO. 39
27
Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and evaluation of
28
candidates for the position of Chair or Chief of OB-GYN at Kern Medical Center during the period from JOINT STATEMENT re: DISCOVERY DISPUTE
18
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1
Document 83
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January 1, 2006 to present.
2
RESPONSE TO REQUEST NO. 39
3
Defendants object to this request on the grounds that it calls for the production of documents that
4
contain confidential personnel information that is not relevant to any issues in this case and is not
5
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
6
request to the extent it requests information protected from disclosure by state or federal law, including
7
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
8
protected by the attorney-client privilege. After review of the documents potentially responsive to this
9
request, Defendants have determined that the burden of redacting privileged information outweighs the
10
marginal relevancy of the remaining information in the documents.
11
PLAINTIFF’S POSITION
12
A showing of relevancy may be enough to cause the court to balance the compelling public need
13
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
14
Cal.App.3d 557, 567.)
15
An employer's failure to follow its own policies and procedures indicates discrimination. Village
16
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
17
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
18
afford evidence that improper purposes are playing a role”).
19
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
20
customarily complied with their policies regarding removal and replacement of department chairs and
21
whether Plaintiff was treated in a disparate manner. The evidence is highly probative to Plaintiff’s
22
claims.
23
DEFENDANTS’ POSITION
24
[INSERT HERE]
25 26
REQUEST FOR PRODUCTION NO. 40
27
Any and all DOCUMENTS RELATING TO YOUR removal of Dr. Royce Johnson from the
28
position of Chair or Chief of Medicine at Kern Medical Center. JOINT STATEMENT re: DISCOVERY DISPUTE
19
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1
RESPONSE TO REQUEST NO. 40
2
Defendants object to this request on the grounds that it calls for the production of documents that
3
contain confidential personnel information that is not relevant to any issues in this case and is not
4
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
5
request to the extent it requests information protected from disclosure by state or federal law, including
6
HIPAA and the peer review privilege, and documents that are subject to the attorney-client privilege.
7
PLAINTIFF’S POSITION
8
A showing of relevancy may be enough to cause the court to balance the compelling public need
9
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
10
Cal.App.3d 557, 567.)
11
An employer's failure to follow its own policies and procedures indicates discrimination. Village
12
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
13
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
14
afford evidence that improper purposes are playing a role”).
15
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
16
customarily complied with their policies regarding removal and replacement of department chairs and
17
whether Plaintiff, who was removed from Chair of Pathology, was treated in a disparate manner. The
18
evidence is highly probative to Plaintiff’s claims. Although Dr. Royce Johnson’s formal title may have
19
been Acting Chair of Medicine, Dr. Johnson functioned and held himself out as Chair of Medicine for
20
many years. According to recently discovered evidence, some time in or about 2002, Defendant County
21
of Kern undertook a roughly 1 year long process to remove Dr. Johnson and replace him due to his
22
substantial behavioral and management problems.
23
In addition, Dr. Johnson has been described by several deponents as “arrogant” and was the
24
subject of anger management complaints. Given Defendant’s fifth affirmative defense that Plaintiff was
25
“arrogant” and contributed to his own injuries, this evidence is directly probative to Defendant’s
26
defense.
27
DEFENDANTS’ POSITION
28
[INSERT HERE] JOINT STATEMENT re: DISCOVERY DISPUTE
20
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1 2
REQUEST FOR PRODUCTION NO. 41
3
Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and evaluation of
4
candidates for the position of Chair or Chief of Medicine at Kern Medical Center during the period from
5
October 24, 2000 to present.
6
RESPONSE TO REQUEST NO. 41
7
Defendants object to this request on the grounds that it calls for the production of documents that
8
contain confidential personnel information that is not relevant to any issues in this case and is not
9
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
10
request to the extent it requests information protected from disclosure by state or federal law, including
11
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
12
protected by the attorney-client privilege. After review of the documents potentially responsive to this
13
request, Defendants have determined that the burden of redacting privileged information outweighs the
14
marginal relevancy of the remaining information in the documents.
15
PLAINTIFF’S POSITION
16
See Plaintiff’s Position re Request for Production Nos. 39 and 40 above.
17
DEFENDANTS’ POSITION
18
[INSERT HERE]
19 20
REQUEST FOR PRODUCTION NO. 43
21
Any and all DOCUMENTS RELATING TO Plaintiff’s presentations made at the Kern Medical
22
Center oncology conference on or about October 12, 2005.
23
RESPONSE TO REQUEST NO. 43
24
Defendants object to this request on the grounds that it calls for the production of documents that
25
contain confidential personnel information that is not relevant to any issues in this case and is not
26
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
27
request to the extent it requests information protected from disclosure by state or federal law, including
28
HIPAA and the peer review privilege, and documents that are subject to the attorney-client privilege. JOINT STATEMENT re: DISCOVERY DISPUTE
21
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 26 of 207
1
Without waving these objections, Defendants will produce non-privileged documents responsive to this
2
request, if any, by December21, 2007. Defendants will redact privileged, if any, information as
3
appropriate.
4
PLAINTIFF’S POSITION
5
Failing to object to a Rule 34 request within the time permitted waives such objections thereto—
6
including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468; see also
7
Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to object to
8
discovery requests within the time required constitutes a waiver of any objection”); see also Coregis Ins.
9
Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
10
Defendants are for the first time raising objections of “confidential personnel information”,
11
irrelevance and “not reasonably calculated to lead to discovery of admissible evidence”, “documents
12
protected by disclosure by state or federal law, including HIPAA, the peer-review privilege and the
13
personnel privilege”, and “attorney-client privilege”. Defendants did not timely raise these objections or
14
privileges in Response 1.
15
The Court should deem these objections waived.
16
DEFENDANTS’ POSITION
17
[INSERT HERE]
18 19
REQUEST FOR PRODUCTION NO. 55
20
Any and all DOCUMENTS RELATING TO the review of Kern Medical Center’s placental
21
evaluations and billing activity as conducted by outside consultants, including but not limited to ProPay
22
Physician Services, LLC, from October 24, 2000 to the present.
23
RESPONSE TO REQUEST NO. 55
24
Defendants object to this request on the grounds that it calls for the production of documents that
25
contain confidential personnel information that is not relevant to any issues in this case and is not
26
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
27
request to the extent it requests information protected from disclosure by state or federal law, including
28
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information JOINT STATEMENT re: DISCOVERY DISPUTE
22
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 27 of 207
1
protected by the attorney-client privilege. After review of the documents potentially responsive to this
2
request, Defendants have determined that the burden of redacting privileged information outweighs the
3
marginal relevancy of the remaining information in the documents.
4
PLAINTIFF’S POSITION
5
A showing of relevancy may be enough to cause the court to balance the compelling public need
6
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
7
Cal.App.3d 557, 567.)
8
An employer's failure to follow its own policies and procedures indicates discrimination. Village
9
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
10
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
11
afford evidence that improper purposes are playing a role”).
12
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
13
customarily complied with their policies and procedures regarding their audit of Plaintiff’s placental
14
evaluations and billing activity in or around 2005 and whether Plaintiff was treated in a disparate
15
manner. The evidence is highly probative to Plaintiff’s claims.
16
DEFENDANTS’ POSITION
17
[INSERT HERE]
18 19
REQUEST FOR PRODUCTION NO. 71
20
Any and all DOCUMENTS RELATING TO exceptional event logs for histology and pathology
21
on Kern Medical Center’s Pathology Department from January 1, 2006 to the present.
22
RESPONSE TO REQUEST NO. 71
23
Defendants object to this request on the grounds that it calls for the production of documents that
24
contain confidential personnel information that is not relevant to any issues in this case and is not
25
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
26
request to the extent it requests information protected from disclosure by state or federal law, including
27
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
28
protected by the attorney-client privilege. After review of the documents potentially responsive to this JOINT STATEMENT re: DISCOVERY DISPUTE
23
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 28 of 207
1
request, Defendants have determined that the burden of redacting privileged information outweighs the
2
marginal relevancy of the remaining information in the documents.
3
PLAINTIFF’S POSITION
4
A showing of relevancy may be enough to cause the court to balance the compelling public need
5
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
6
Cal.App.3d 557, 567.)
7
An employer's failure to follow its own policies and procedures indicates discrimination. Village
8
of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Duschene v. Pinole Point
9
Steel Co. (1999) 76 Cal. App. 4th 33 (“Departures from the normal procedural sequence also might
10
afford evidence that improper purposes are playing a role”).
11
Plaintiff has a compelling need for this evidence to establish whether Defendant County of Kern
12
customarily complied with their policies and procedures regarding Dr. Jadwin’s numerous alleged
13
violations of hospital policy, including the leaving of sharps out at the workstation when not in use, the
14
taking of a sternal bone biopsy without proctoring, the unauthorized accessioning of tissue samples, etc.
15
and whether Plaintiff was treated in a disparate manner as compared to others in the Pathology
16
department or laboratory who engaged in similar conduct. The evidence is highly probative to Plaintiff’s
17
claims.
18
DEFENDANTS’ POSITION
19
[INSERT HERE]
20 21
REQUEST FOR PRODUCTION NO. 72
22
Any and all DOCUMENTS RELATING TO paper accession logs at Kern Medical Center’s
23
Pathology Department from January 1, 2006 to present.
24
RESPONSE TO REQUEST NO. 72
25
Defendants object to this request on the grounds that it calls for the production of documents that
26
contain confidential personnel information that is not relevant to any issues in this case and is not
27
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
28
request to the extent it requests information protected from disclosure by state or federal law, including JOINT STATEMENT re: DISCOVERY DISPUTE
24
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 29 of 207
1
HIPAA, the peer-review privilege and the personnel privilege, and documents that contain information
2
protected by the attorney-client privilege. After review of the documents potentially responsive to this
3
request, Defendants have determined that the burden of redacting privileged information outweighs the
4
marginal relevancy of the remaining information in the documents.
5
PLAINTIFF’S POSITION
6
A showing of relevancy may be enough to cause the court to balance the compelling public need
7
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
8
Cal.App.3d 557, 567.)
9
In late 2006, Acting Chair of Pathology Dr. Dutt accused Plaintiff of engaging in unauthorized
10
accessioning of tissue samples. Dr. Dutt reported this issue to the CEO. The accession logs are directly
11
relevant to this accusation against Plaintiff.
12
DEFENDANTS’ POSITION
13
[INSERT HERE]
14 15
REQUEST FOR PRODUCTION NO. 73
16
Any and all DOCUMENTS RELATING TO tissue disposal records for skull-flaps from January
17
1, 2006 to the present.
18
RESPONSE TO REQUEST NO. 73
19
Defendants object to this request on the grounds that it calls for the production of documents that
20
contain confidential personnel information that is not relevant to any issues in this case and is not
21
reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to this
22
request to the extent it requests information protected from disclosure by state or federal law, including
23
HIPAA. the peer-review privilege and the personnel privilege, and documents that contain information
24
protected by the attorney-client privilege. After review of the documents potentially responsive to this
25
request, Defendants have determined that the burden of redacting privileged information outweighs the
26
marginal relevancy of the remaining information in the documents.
27
PLAINTIFF’S POSITION
28
A showing of relevancy may be enough to cause the court to balance the compelling public need JOINT STATEMENT re: DISCOVERY DISPUTE
25
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 30 of 207
1
for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206
2
Cal.App.3d 557, 567.)
3
In December of 2006, Plaintiff reported to Kern Medical Center CEO David Culberson the
4
storage of skull flaps in a non-regulation freezer as a possible violation of state and federal regulations.
5
These documents are directly probative of Plaintiff’s California Labor Code 1102.5 claim for
6
whistleblower retaliation.
7
DEFENDANTS’ POSITION
8
[INSERT HERE]
9 10
REQUEST FOR PRODUCTION NO. 78
11
Any and all DOCUMENTS RELATING TO placental evaluations conducted by Plaintiff from
12
June 14, 2006 to the present.
13
RESPONSE TO REQUEST NO. 78
14
Plaintiff has attempted to narrow this request but the revised request is broader, more
15
burdensome and less calculated to lead to the discovery of admissible evidence than the original request.
16
Defendants object to this request because it is not reasonably calculated to lead to the discovery of
17
admissible evidence and is burdensome. Defendants object to this request on the grounds that it calls for
18
the production of documents that contain confidential personnel information that is not relevant to any
19
issues in this case and is not reasonably calculated to lead to the discovery of admissible evidence.
20
Defendants also object to this request to the extent it requests information protected from disclosure by
21
state or federal law, including HIPAA, the peer-review privilege and the personnel privilege, and
22
documents that contain information protected by the attorney-client privilege. After review of the
23
documents potentially responsive to this request. Defendants have determined that the burden of
24
redacting privileged information outweighs the marginal relevancy of the remaining information in the
25
documents.
26
PLAINTIFF’S POSITION
27
Based on newly discovered evidence, Plaintiff has reason to believe that Acting Chair of
28
Pathology, Dr. Philip Dutt, has defrauded Plaintiff by claiming credit for placental evaluations JOINT STATEMENT re: DISCOVERY DISPUTE
26
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 31 of 207
1
conducted by Plaintiff as his own, thereby diverting the associated professional billing fees from
2
Plaintiff to himself. This evidence is highly probative of possible claims for fraud, conversion and
3
breach of fiduciary duty which Plaintiff is investigating bringing against Dr. Dutt.
4
Also, failing to object to a Rule 34 request within the time permitted waives such objections
5
thereto—including claims of privilege and work product. Hall v Sullivan (2005, DC Md) 231 FRD 468;
6
see also Richmark Corp. v. Timber Falling Consultants (9th Cir. 1992) 959 F2d 1468, 1473 (“Failure to
7
object to discovery requests within the time required constitutes a waiver of any objection”); see also
8
Coregis Ins. Co. v. Baratta & Fenerty, Ltd. (ED PA 1999) 187 FRD 528, 529.
9
Defendants are for the first time raising objections of “confidential personnel information”,
10
“documents protected by disclosure by state or federal law, including . . . the peer-review privilege and
11
the personnel privilege”, and “attorney-client privilege”. Defendants did not timely raise these
12
objections or privileges in Response 1.
13
The Court should deem these objections waived.
14
DEFENDANTS’ POSITION
15
[INSERT HERE]
16 IV.
CONCLUSION
17 18
Despite the extensive correspondence between the parties, it does not appear that this dispute can
19
be resolved without assistance from the Court. Plaintiff has done its utmost to avert this imposition on
20
the Court’s time.
21
In contrast, Defendants have made a mockery of the meet and confer process, breached
22
numerous assurances to Plaintiff and have refused to effectively meet and confer in good faith with
23
Plaintiff. By way of example, on January 4, 2008, Defendants stated that they had identified caselaw
24
which they said definitively proves them right on the issue of unreimbursed copy costs for discovery
25
production: “I have found cases that say the requesting party must pay the cost of photocopying
26
documents. I have found no cases that hold otherwise.” Defendants then requested Plaintiff provide
27
case citations supporting Plaintiff’s position. Plaintiff was still researching the issue and had no citations
28
to share at the time. It should be noted that Plaintiff has provided myriad, detailed case citations in JOINT STATEMENT re: DISCOVERY DISPUTE
27
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 32 of 207
1
good faith to Defendants during meet and confer discussions in the past. When Plaintiff asked
2
Defendants to provide its case citations to Plaintiff, stating “Mark, I would appreciate the case citations.
3
I look forward to receiving them”, Defendants refused, stating:
4 5
No. I am not researching this for you. I have done my research. It is your motion to compel. I presume you have authority to support your motion. If not, too bad. If so, proceed with your motion.”
6
Regrettably, this exchange fairly characterizes the interactions Plaintiff has had with Defendants
7
throughout this action.
8 9
Respectfully submitted,
10 11 Dated: January __, 2008
LAW OFFICES OF MARK A. WASSER
12 13 By:__________________________________________ Mark A. Wasser, Attorney for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND,TONI SMITH, AND WILLIAM ROY
14 15 16 17 18
Dated: January___, 2008
LAW OFFICE OF EUGENE LEE
19 20 21
By:__________________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.
22 23 24 25 26 27 28 JOINT STATEMENT re: DISCOVERY DISPUTE
28
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8
Document 83
Filed 01/09/2008
Page 33 of 207
Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 10 11 12 13
Mark A. Wasser CA SB #06160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]
14 15 16 17 18 19
Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected] Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.
20 UNITED STATES DISTRICT COURT 21 EASTERN DISTRICT OF CALIFORNIA 22 DAVID F. JADWIN, D.O.,
Civil Action No. 1:07-cv-00026 OWW TAG
23 Plaintiff, 24 25 26
v. COUNTY OF KERN, et al., Defendants.
EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT Date: January 14, 2008 Time: 9:30 a.m. Place: U.S. District Court, Bankruptcy Courtroom 1300 18th St., Bakersfield, CA
27 28
Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008 USDC, ED Case No. 1:07-cv-00026 OWW TAG EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT
1
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 34 of 207
EXHIBITS TO JOINT STATEMENT re: DISCOVERY DISAGREEMENT EXHIBIT 1.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 10/31/07
EXHIBIT 2.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/1/07
EXHIBIT 3.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/8/07
EXHIBIT 4.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/15/07
EXHIBIT 5.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/15/07
EXHIBIT 6.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/20/07
EXHIBIT 7.
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 1”), 11/20/07
EXHIBIT 8.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/22/07
EXHIBIT 9.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/27/07
EXHIBIT 10.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/30/07
EXHIBIT 11.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/10/07
EXHIBIT 12.
DEFENDANTS’ PARTIAL PRIVILEGE LOG, 12/13/07
EXHIBIT 13.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/14/07
EXHIBIT 14.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/17/07
EXHIBIT 15.
SUPPLEMENTED RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 2”), 12/19/07
EXHIBIT 16.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/19/07
EXHIBIT 17.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/20/07
EXHIBIT 18.
Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/20/07
EXHIBIT 19.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/20/07
EXHIBIT 20.
Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/21/07
EXHIBIT 21.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/31/07
EXHIBIT 22.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/2/08
EXHIBIT 23.
Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/4/08
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 35 of 207
EXHIBIT 1. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 10/31/07
MTC000001
Oct 31 07 11:21a
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1
Page 36 of 207
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 Wasser
Fax:
(213) 596-0487
Pages: 2 (including cover page)
Phone: (213) 992-3299
Date:
Re:
cc:
Jadwin v. County of Kern
o Urgent
o For Review
0 Please Comment
October 31, 2007
0 Please Reply
D Please Recycle
• Comments: Please see attached letter.
MTC000002
Oct 31 07 11:21a
Mark Wasser
916-444-6405 Law Offices of Document 83 Filed 01/09/2008
Case 1:07-cv-00026-OWW-TAG
MARK A. WASSER
p.2
Page 37 of 207
400 Capitol Mall, Suite 1100 Sacramento, California 95814
Office: 916-444-6400 Fax: 916-444-6405 [email protected]
October 31, 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 at. Dear Mr. Lee: I have reviewed your Request For Production of Documents and discussed it with County staff. Our best estimate is that it will take until December 21, 2007 to locate, assemble and serve the documents you have requested. Some of the documents may require extensive redaction to remove patient identifiers.
We request an extension of time until December 21,2007 to respond to your Request. Let me know your position. Thank you.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via first class mail) Joan Herrington (via first class mail)
Admitted to Practice in California and Nevada
MTC000003
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 38 of 207
EXHIBIT 2. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/1/07
MTC000004
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/3 11/01/07 6:26 pm
OF
Page 39 of 207 [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: 11/01/2007
Pages: 3 (including cover page) Re: Jadwin/KC:
Comments:
Mark, Transmitted herewith is a letter in followup to our meet and confer call of this morning. Sincerely.
MTC000005
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 11/01/07 6:26 pm
Document 83
Filed 01/09/2008
OFFICE
EUGENE
OF
555
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
WEST FIFTH
Page 40 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 1, 2007 VIA FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking and meeting and conferring with you today on plaintiff's requests for
production, set one. In order to facilitate things, we thought we would try to narrow and clarify some of our document requests.
DocReq No. 12 13 16 52 59
Proposed clarification
Exclude "training materials" from the request Exclude "training materials" from the request Delete subparts b) through tt) Exclude from the request DOCUMENTS which are on file in Superior Court of California in and for County of Kern The request is for DOCUMENTS RELATING TO medical staff sign-in sheets for Kern Medical Center's Cancer Clinic held pursuant to ACS-CoC standards from January 1, 2003 to the present.
Also, as we discussed, please let us know your thoughts on providing us with patient identification numbers, including those which were redacted from defendants' initial disclosures, as well as entering into a stipulation with us whereby plaintiff would electronically redact any patient identifying information (other than patient identification numbers) from all documents produced by defendants (along with concomitant covenants to strictly preserve the confidentiality and guard against disclosure of such information). As we stated, plaintiff has no interest in jeopardizing anyone's medical information privacy.
MTC000006
To: 213-596-0487
From: Law Office OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 3/33 11/01/07 6:26 pm
Document 83
Filed 01/09/2008
Page 41 of 207
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Wednesday, November 7, 2007. Plaintiff is hoping that Defendant can respond by November 12, 2007, then produce the actual documents according to an adjusted schedule that can be 12,2007, 7,2007. 2007. finalized by Wednesday, November 7, We look forward to your response. Please do not hesitate to contact us with any questions.
cc:
Joan Herrington, Esq.
2 MTC000007
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 42 of 207
EXHIBIT 3. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/8/07
MTC000008
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/4 11/08/07 2:25 pm
OF
Page 43 of 207 [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: 11/08/2007
Pages: 4 (including cover page) Re: Jadwin/KC: RPD1 County of Kern
Comments:
Mark, It was a pleasure speaking with you yesterday. Transmitted herewith is a followup letter. Sincerely.
MTC000009
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Document 83
LAW
(213) 992-3299
TELEPHONE
Pg 2/4 11/08/07 2:25 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 44 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 8, 2007 VIA FACSIMILE 100011.001
Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA No.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking and meeting and conferring with you yesterday on Plaintiff's Requests
For Production, Set One to County of Kern and to Peter Bryan. We confirmed that you did not foresee any difficulties with the Peter Bryan requests. The Kern County requests involved more discussion as follows. I. TENTATIVE AGREEMENTS / CLARIFICATIONS RE DOCUMENT REQUESTS We discussed each of plaintiff's requests for production and, with a few exceptions, you had indicated varying expected production/response dates of November 16, December 7 and December 21. Plaintiff is reviewing the proposed dates. Let's discuss these at our next conference call. In addition, the parties made the following tentative agreements and clarifications with respect to certain Requests: DocReq No. 40
41 52
54 56
Tentative agreement/clarification Defendants to ask Dr. Royce Johnson for consent to disclose the requested information to plaintiff and let plaintiff know by November 14. In the event he refuses consent, defendants expect to give plaintiff a response by November 16. Defendants to redact names of applicants and references. Defendants need not include in defendants' privilege log any protected attorney work product or attorney-client privileged communications which were authored by subject attorneys. Plaintiff seeks statistics for both patient "fatalities" and patient "deaths", as each considered alone is not meaningful and must be compared to the other. Redaction may address defendants' privilege concerns.
MTC000010
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Pg 3/4 11/08/07 2:25 pm
Document 83
Filed 01/09/2008
Page 45 of 207
Redaction may address defendants' privilege concerns. Plaintiff seeks medical staff attendance/sign-in sheet for the weekly Oncology Clinic that meets every Wednesday and partially fulfills AC8-CoC standards. Defendants are looking into retrieving Groupwise archives. 806-73276 relates to Case Nos. 806-495, 806-3511 and 806-4619 (see defendants' initial disclosures, bates no. 778) - please produce the pathology reports associated with those case numbers, with medical record nos. unredacted.
57 59 62 69
II. REQUEST 78 Regarding Request 78, defendants said they would need 120 days to produce. In order to shorten this time, plaintiff proposes defendants instead produce the following. We can discuss this at our next conference if you wish. 1.
A printout from HEO of all surgical pathology cases that lists the case number, the specimen, the date of receipt, the date of completion and the name ofthe pathologist that released the case for June 14, 2006 to the present. This will be a list of a few hundred pages that can be prepared in two or so days.
2.
A printout of all dictation by case number from the medical transcription department for all pathology dictation for June 14, 2006 to the present. This will be a list of similar length that can be prepared in two or so days.
3.
A printout of all pathology reports involving placentas signed out by any pathologist. There are perhaps 2,500 reports per year; two pages per report. These are identified by the list in item (l) above. Each report will need to be hand printed by entering the case number from the list; time to print each report not to exceed 60 seconds. Each page will need to have the patient name redacted (three instances per page).
4.
A printout from HEO of all autopsy pathology reports listing the case number, the date of procedure, the date of completion and the name ofthe pathologist who released the case for June 14, 2006 to the present. This should take one or so days.
5.
A copy of each pathology report listed in item (4) above. There should be less than 50 reports and this should take one or so days.
Hopefully the above would lead to a significantly reduced production time. II. MEDICAL RECORD NOS. / REDACTION IN GENERAL Please let us know your thoughts on providing us with patient medical record nos. (as opposed to patient account numbers), including those which were redacted from defendants' initial disclosures, as well as entering into a stipulation with us whereby plaintiff would electronically redact any patient identifying information (other than patient identification numbers) from all documents produced by defendants (along with concomitant covenants to strictly preserve the
2 MTC000011
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Pg 4/4 11/08/07 2:25 pm
Document 83
Filed 01/09/2008
Page 46 of 207
confidentiality and guard against disclosure of such information). As we stated, plaintiff has no interest in jeopardizing anyone's medical information privacy. If you have alternative suggestions, plaintiff would be interested in discussing them with you. II. AMENDING THE SCHEDULING ORDER You had mentioned the idea of re-visiting the Scheduling Order and pushing back the discovery cut-off date. Let's discuss this further at our next call after you have a more definite idea ofthe production times necessary for plaintiff's discovery requests. We realize the logistical difficulties you must be facing as you coordinate document production with Kern Medical Center and are willing to work with you on this. II. DEPOSITIONS Plaintiff had suggested deposing certain witnesses in early December. Following is the tentative deposition schedule proposed by plaintiff. Please let us know whether the schedule will work for you and the deponents. You had also mentioned that defendants would not object to deposition notices as short as 3 to 5 days, so long as a mutually convenient time could be worked out for all concerned. Plaintiff appreciates defendants' flexibility and cooperation. 4-Dec 0800 1400 1600 S-Dec 0900 1300 6-Dec 0800 1400 -
1300 1600 1800 1200 1700 1300 1800
Steve O'Conner Charles Wrobel Phil Brown (l0) Jane Thornton Ed Taylor Javad Naderi Ravi Patel
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Wednesday, November 14, 2007. Please do not hesitate to contact us with any questions or if you need to re-schedule.
7rp{~urs,
'mttb
cc:
EiVpENE D. LEE Joan Herrington, Esq. V David F. Jadwin, D.O., F.C.A.P.
3 MTC000012
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 47 of 207
EXHIBIT 4. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/15/07
MTC000013
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 48 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Mark Wasser [[email protected]] Thursday, November 15, 2007 12:30 PM [email protected] Assistant to Mark A. Wasser RE: Jadwin/KC: Discovery Docs
Thank you.
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, November 15, 2007 11:35 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Discovery Docs
Mark, Get Acrobat 8.0 Professional. If you ever plan on going paperless (digitizing paper), it’s the only way to go. If you want to save some money, consider buying Acrobat 6.0 or 7.0 (you can get it cheap on eBay), then buy the 8.0 Professional upgrade (not full version). That’s what I did. My friends have bought software here: www.buycheapsoftware.com. They said it has good prices and were all happy with their purchases. I myself have never bought anything there though. Acrobat is not only a good digital paper handling program, it’s a very powerful OCR (text-recognition) program. You won’t need to buy a separate OCR program. It also has a useful and powerful Bates stamping function – Go to “Advanced” in the menu bar -Æ Document processing in the sub-menu Æ Bates numbering. This is a huge timesaver – you don’t need a separate Bates stamping program. And obviously, you’ll never need to manually bates stamp again. If you screw it up, it’s very simple to re-run the bates stamping program until you get it right. You can also delete the bates stamp if you change your mind. Let me know if you need help with any of this. 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
MTC000014
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 49 of 207
From: Mark Wasser [mailto:[email protected]] Sent: Thursday, November 15, 2007 11:25 AM To: [email protected] Subject: RE: Jadwin/KC: Discovery Docs Gene, Fine. We can do that. There are several versions of Acrobat 8, ranging in price from $300 to over $1,000. Any thoughts as to which one I want? Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, November 15, 2007 11:05 AM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Discovery Docs
Mark, On second thought, if it isn’t too much trouble, could you create multiple discrete PDF files, rather than one mega massive PDF file? I suspect the one file will get far too large in size, it might crash my computer. It would also help us know where one document ends and the next begins. Give me a call if you or your assistant run into trouble OCR’ing or redacting. Thanks. 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.
2
MTC000015
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
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EXHIBIT 5. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/15/07
MTC000016
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/3 11/15/07 3:47 pm
OF
Page 51 of 207 [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: 11/15/2007
Pages: 3 (including cover page) Re: Jadwin/KC: Meet and Confer RPD1
Comments:
Mark, Transmitted herewith is a letter in followup to our conference call yesterday. Sincerely.
MTC000017
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Document 83
LAW
(213) 992-3299
TELEPHONE
Pg 2/3 11/15/07 3:47 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 52 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 15, 2007 VIA FACSIMILE 100011.001
Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking and meeting and conferring with you yesterday on Plaintiff's Requests
For Production, Set One to County of Kern. This letter confirms the content of our discussions. We reviewed my letter to you of November 8,2007, and you confirmed that we were in agreement with most ofthe issues stated therein. Only a few items required further discussion, as follows: I. TENTATIVE AGREEMENTS / CLARIFICATIONS RE DOCUMENT REQUESTS We discussed plaintiff's requests for production and agreed that defendants would provide a written response by November 20, with the exception ofthe following requests: 18, 19,21,27, 28,42-45,54-57,59, and 61-63, which require further clarification by Defendants. You had indicated varying expected production dates of November 16, December 7 and December 21. On certain requests, we agreed that the production date would be changed from December 21 to December 7: 20,46 and 47. In addition, the parties made the tentative agreements and clarifications with respect to the following requests: DocReq No. 26 40 54
Tentative agreement/clarification Defendants may have destroyed some ofthese files. Defendants will note this in response by November 20. Defendants to respond by November 20 with objection and refusal to produce. Plaintiff intends to file a motion to compel. Plaintiff seeks statistics for both patient "fatalities" and patient "deaths", as each considered alone is not meaningful and must be compared to the other. Defendants
MTC000018
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
56 57 62 78
Pg 3/3 11/15/07 3:47 pm
Document 83
Filed 01/09/2008
Page 53 of 207
are considering objecting to disclosure of "fatalities" statistics due to peer review privilege. Plaintiff stated that this does not fall under peer review privilege. Defendants to produce in redacted form. Defendants to produce in redacted form. Groupwise archives were destroyed as part of a routine sweep. Defendants will note this in response by November 20. Defendants are reviewing Plaintiff's suggested production procedure. Defendants believe the initial 120 day estimate may have been too conservative.
II. MEDICAL RECORD NOS. / REDACTION IN GENERAL Defendants are still considering the issue of disclosing medical record numbers to Plaintiff. Plaintiff explained that the number cannot be linked to a patient name without access to KMC's computer, and that Plaintiff requires this number in order to determine which case numbers are associated with each other.
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Monday, November 26,2007. Please do not hesitate to contact us with any questions or if you need to reschedule.
7Jt~nurs,
~
1()tt~)
cc:
ENED. LEE
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
2 MTC000019
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 54 of 207
EXHIBIT 6. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 11/20/07
MTC000020
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 55 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Tuesday, November 20, 2007 10:49 PM '[email protected]' 'Joan Herrington' RE: Response to Plaintiffs RFP 11.9.07
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Thank you for your email and responses to plaintiff’s requests for production. Based upon a cursory review, we’ve noticed that many of Defendants’ responses contain this objection: “documents protected from disclosure by state or federal law”. This objection does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. A great deal of caselaw supports these requirements. See Obiajulu v City of Rochester, Dep't of Law (1996, WD NY) 166 FRD 293 (Objection to document request must clearly set forth specifics of objection and how that objection relates to documents being demanded); Pulsecard, Inc. v Discover Card Servs. (1996, DC Kan) 168 FRD 295 (Although FRCP 34, which governs production of documents and things, does not provide any language with respect to specificity and waiver of objections, which FRCP 33, which governs interrogatories, does, no reason exists to distinguish between interrogatories and requests for production as to these matters); Rivera v Kmart Corp. (2000, DC Puerto Rico) 190 FRD 298, 45 FR Serv 3d 1349 (asserting general objection to request for production of documents does not comply with FRCP 34(b)); Hall v Sullivan (2005, DC Md) 231 FRD 468 (Implicit within Fed. R. Civ. P. 34 is requirement that objections to document production requests must be stated with particularity in timely answer, and that failure to do so may constitute waiver of grounds not properly raised, including privilege or work product immunity, unless court excuses this failure for good cause shown). Please correct this deficiency at your earliest convenience. We’re happy to discuss this further with you tomorrow if you wish. I’m available at my cellphone at 213-453-1781. Thank you. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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
MTC000021
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 56 of 207
CALIFORNIA LABOR & EMPLOYMENT LAW
US Workers: Overworl:ed, Underpaid 8< Left n ..."
""¥ember II, 'II'
'Y "'",," ..
From: Mark Wasser [mailto:[email protected]] Sent: Tuesday, November 20, 2007 5:09 PM To: Eugene Lee; Joan Herrington Subject: Response to Plaintiffs RFP 11.9.07 Gene and Joan, Here is our written response to your first request for production of documents. I am sending you a service copy by FedEx. I am enclosing with the service copy a DVD that has about four boxes of documents on it. We have several thousand more pages to produce as soon as the County can get the documents to me. I will let you know when that will happen as soon as I know. Mark
2
MTC000022
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 57 of 207
EXHIBIT 7. RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 1”), 11/20/07
MTC000023
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 58 of 207
Eugene D. Lee From: Sent: To: Subject: Attachments:
Mark Wasser [[email protected]] Tuesday, November 20, 2007 5:09 PM Eugene Lee; Joan Herrington Response to Plaintiffs RFP 11.9.07 Response to Plaintiffs RFP 11.9.07.doc
Follow Up Flag: Flag Status:
Follow up Completed
Gene and Joan, Here is our written response to your first request for production of documents. I am sending you a service copy by FedEx. I am enclosing with the service copy a DVD that has about four boxes of documents on it. We have several thousand more pages to produce as soon as the County can get the documents to me. I will let you know when that will happen as soon as I know. Mark
1
MTC000024
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8
Document 83
Filed 01/09/2008
Page 59 of 207
Mark A. Wasser CA SB #60160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]
9 10 11
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
12 13
UNITED STATES DISTRICT COURT
14
EASTERN DISTRICT OF CALIFORNIA
15 16
Plaintiff,
17 18 19 20
) ) ) ) ) ) ) ) ) ) ) ) ) ) )
DAVID F. JADWIN, D.O.
vs. COUNTY OF KERN, et al., Defendants.
21 22 23
Case No.: 1:07-cv-00026-OWW-TAG DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) Date Action Filed: January 6, 2007 Trial Date: August 26, 2008
24
PROPOUNDING PARTY:
Plaintiff DAVID F. JADWIN, D.O., F.C.A.P.
25
RESPONDING PARTY:
Defendant COUNTY OF KERN
26
SET NUMBER:
ONE (1)
27 28 1 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000025
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
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Defendants hereby submit these responses to Plaintiff David F. Jadwin’s Request for
2
Production of Documents, Set One. Defendants have not located all the documents that are
3
responsive to this request and, for that reason, many of the production dates set forth herein are
4
estimates. Defendants will supplement or amend this response, if necessary, as additional
5
documents are located and reviewed.
6
REQUEST FOR PRODUCTION NO. 1
7
Any and all DOCUMENTS RELATING TO the First Affirmative Defense listed in
8
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
9
RESPONSE TO REQUEST NO. 1
10
Defendants object to this request on the grounds that it calls for the production of
11
documents that are protected by the attorney-work-product and attorney-client privileges.
12
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
13
any documents that are responsive to this request.
14
REQUEST FOR PRODUCTION NO. 2
15
Any and all DOCUMENTS RELATING TO the Second Affirmative Defense listed in
16
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
17
RESPONSE TO REQUEST NO. 2
18
Defendants object to this request on the grounds that it calls for the production of
19
documents that are protected by the attorney-work-product and attorney-client privileges.
20
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
21
any documents that are responsive to this request.
22
REQUEST FOR PRODUCTION NO. 3
23
Any and all DOCUMENTS RELATING TO the Third Affirmative Defense listed in
24
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
25
RESPONSE TO REQUEST NO. 3
26
Defendants object to this request on the grounds that it calls for the production of
27
documents that are protected by the attorney-work-product and attorney-client privileges.
28 2 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000026
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
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1
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
2
any documents that are responsive to this request.
3
REQUEST FOR PRODUCTION NO. 4
4
Any and all DOCUMENTS RELATING TO the Fourth Affirmative Defense listed in
5
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
6
RESPONSE TO REQUEST NO. 4
7
Defendants object to this request on the grounds that it calls for the production of
8
documents that are protected by the attorney-work-product and attorney-client privileges.
9
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
10
any documents that are responsive to this request.
11
REQUEST FOR PRODUCTION NO. 5
12
Any and all DOCUMENTS RELATING TO the Fifth Affirmative Defense listed in
13
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
14
RESPONSE TO REQUEST NO. 5
15
Defendants object to this request on the grounds that it calls for the production of
16
documents that are protected by the attorney-work-product and attorney-client privileges.
17
Without waiving those objections, Defendants will produce all non-privileged documents
18
responsive to this request on or before December 21, 2007. This request is duplicative of other
19
requests contained in Plaintiff’s request for production, set one, and the documents produced in
20
response to this request may refer to the documents produced in response to other requests.
21
REQUEST FOR PRODUCTION NO. 6
22
Any and all DOCUMENTS RELATING TO the Sixth Affirmative Defense listed in
23
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
24
RESPONSE TO REQUEST NO. 6
25
Defendants object to this request on the grounds that it calls for the production of
26
documents that are protected by the attorney-work-product and attorney-client privileges.
27
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
28
any documents that are responsive to this request. 3 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
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Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
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REQUEST FOR PRODUCTION NO. 7 Any and all DOCUMENTS RELATING TO the Seventh Affirmative Defense listed in
3
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
4
RESPONSE TO REQUEST NO. 7
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that are protected by the attorney-work-product and attorney-client privileges.
7
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
8
any documents that are responsive to this request.
9
REQUEST FOR PRODUCTION NO. 8
10
Any and all DOCUMENTS RELATING TO the Eighth Affirmative Defense listed in
11
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
12
RESPONSE TO REQUEST NO. 8
13
Defendants object to this request on the grounds that it calls for the production of
14
documents that are protected by the attorney-work-product and attorney-client privileges.
15
Without waiving those objections, Defendants will produce all non-privileged documents
16
responsive to this request on or before December 21, 2007. This request is duplicative of other
17
requests contained in Plaintiff’s request for production, set one, and the documents produced in
18
response to this request may refer to the documents produced in response to other requests.
19
REQUEST FOR PRODUCTION NO. 9
20
Any and all DOCUMENTS RELATING TO the Ninth Affirmative Defense listed in
21
Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
22
RESPONSE TO REQUEST NO. 9
23
Defendants object to this request on the grounds that it calls for the production of
24
documents that are protected by the attorney-work-product and attorney-client privileges.
25
Without waiving those objections, after diligent search, Defendants’ have not been able to locate
26
any documents that are responsive to this request.
27
REQUEST FOR PRODUCTION NO. 10
28 4 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000028
Case 1:07-cv-00026-OWW-TAG
1
Document 83
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Any and all DOCUMENTS RELATING TO YOUR organizational structure during
2
Plaintiff’s employment with YOU, including but not limited to organizational charts, diagrams
3
and drawings.
4
RESPONSE TO REQUEST NO. 10
5
Defendants will produce all documents responsive to this request. Production may occur
6
in stages. The first stage of production will be on November 20, 2007 and may include all
7
responsive documents. If other responsive documents are discovered, they will be produced by
8
December 7, 2007.
9
REQUEST FOR PRODUCTION NO. 11
10
Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories
11
or lists, including but not limited to names, direct work phone numbers, departments, etc. which
12
were maintained by YOU during Plaintiff’s employment with YOU.
13
RESPONSE TO REQUEST NO. 11
14
Defendants will produce all non-privileged documents responsive to this request.
15
Production may occur in stages. The first stage of production will be on November 20, 2007 and
16
may include all responsive documents. If other responsive documents are discovered, they will
17
be produced by December 7, 2007. Defendants will redact personal or confidential information
18
as appropriate.
19
REQUEST FOR PRODUCTION NO. 12
20
Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
21
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or
22
employer manuals maintained by YOU that YOU contend governed Plaintiff’s terms and
23
conditions of employment at any time during the period from October 1, 2000 to October 4,
24
2007. These include but are not limited to YOUR ordinances, Kern Medical Center’s
25
Administrative Procedures Manual, Kern Medical Center’s Policy & Administrative Procedures
26
Manual, policies RELATING TO disability discrimination, reasonable accommodation,
27
interactive process, personal leave, administrative leave, medical leave, retaliation, investigations
28
into complaints of unlawful employment practices, discipline of employees, investigation of 5 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000029
Case 1:07-cv-00026-OWW-TAG
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1
employees, appointment of Kern Medical Center acting department chairs, hiring of Kern
2
Medical Center department chairs, demotion of Kern Medical Center department chairs, and
3
policies RELATING TO Kern Medical Center’s Pathology Department.
4
RESPONSE TO REQUEST NO. 12
5
Defendants object to this request to the extent it requests documents that contain
6
confidential personnel information, documents protected from disclosure by state or federal law,
7
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
8
Without waiving these objections, Defendants will produce documents responsive to this request
9
by December 21, 2007. Defendants will redact confidential peer review and personnel
10
information as appropriate.
11
REQUEST FOR PRODUCTION NO. 13
12
Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
13
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or
14
employer manuals maintained by YOU that YOU contend was distributed or made available to
15
YOUR employees, whether management or non-management, from October 24, 200 to the
16
present and the date of such asserted distribution. These include but are not limited to YOUR
17
ordinances, Kern Medical Center’s Administrative Procedures Manual, Kern Medical Center’s
18
Policy & Administrative Procedures Manual, policies RELATING TO disability discrimination,
19
reasonable accommodation, interactive process, personal leave, administrative leave, medical
20
leave, retaliation, investigations into complaints of unlawful employment practices, discipline of
21
employees, investigation of employees, appointment of Kern Medical Center acting department
22
chairs, hiring of Kern Medical Center department chairs, demotion of Kern Medical Center
23
department chairs, and policies RELATING TO Kern Medical Center’s Pathology Department.
24
RESPONSE TO REQUEST NO. 13
25
Defendants object to this request to the extent it requests documents that contain
26
confidential personnel information, documents protected from disclosure by state or federal law,
27
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
28
Without waiving these objections, Defendants will produce documents responsive to this request 6 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000030
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 65 of 207
1
by December 21, 2007. Defendants will redact confidential peer review and personnel
2
information as appropriate.
3
REQUEST FOR PRODUCTION NO. 14
4
Any and all DOCUMENTS RELATING TO peer review, quality management and
5
quality assurance policies and procedures at Kern Medical Center, included but not limited to
6
Kern Medical Center’s Quality Management and Performance Improvement Plan, from October
7
24, 2000 to the present, and the effective dates.
8
RESPONSE TO REQUEST NO. 14
9
Defendants object to this request to the extent it requests documents that contain
10
confidential personnel information, documents protected from disclosure by state or federal law,
11
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
12
Without waiving these objections, Defendants will produce documents responsive to this request
13
by December 7, 2007.1. Defendants will redact confidential peer review and personnel
14
information as appropriate.
15
REQUEST FOR PRODUCTION NO. 15
16 17
Any and all DOCUMENTS RELATING TO any training provided by YOU to YOUR officers, directors, agents or employees on the following subjects:
18
a) disability discrimination
19
b) accommodation of an employee’s disability
20
c) the interactive process regarding accommodation of an employee’s disability
21
d) medical leave rights
22
e) whistleblower retaliation
23
f) medical leave retaliation
24
g) due process required for demotion
25
h) due process required for pay cut
26
i) due process required for termination of employment
27
j) defamation
28
k) Fair Labor Standards Act 7 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000031
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 66 of 207
RESPONSE TO REQUEST NO. 15
2
Defendants object to this request to the extent it requests documents that contain
3
confidential personnel information, documents protected from disclosure by state or federal law,
4
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
5
Without waiving these objections, Defendants will produce documents responsive to this request
6
by December 21, 2007.
7
REQUEST FOR PRODUCTION NO. 16 Any and all DOCUMENTS RELATING To the PERSONNEL FILES of the following
8 9
people.
10
a) Plaintiff David F. Jadwin
11
b) Elsa Ang
12
c) Ellen Bunyi-Teopengco
13
d) Philip Dutt
14
e) Carol Gates
15
f) Adam Lang
16
g) Fangluo Liu
17
h) Savita Shertukde
18
i) Navin Amin
19
j) Kathy Griffith
20
k) Alice Hevle
21
l) Denise Long
22
m) Gilbert Martinez
23
n) Albert McBride
24
o) Javad Naderi
25
p) Jane Thornton
26
q) Nitin Athavale
27
r) Chester Lau
28
s) Jennifer J. Abraham 8 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000032
Case 1:07-cv-00026-OWW-TAG
1
t) Bernard C. Barmann
2
u) Karen S. Barnes
3
v) Peter K. Bryan
4
w) David Culberson
5
x) Irwin E. Harris
6
y) Royce Johnson
7
z) Eugene K. Kercher
8
aa) Alan Scott Ragland
9
bb) William Roy
10
cc) Maureen Martin
11
dd) Steven O‘Connor
12
ee) Antoinette Smith
13
ff) Edward Taylor
14
gg) Marvin Kolb
15
hh) Dianne McConnehey
16
ii) Renita Nunn
17
jj) Ravi Patel
18
kk) Jose Perez
19
ll) Evangeline Gallegos
20
mm)
21
nn) Bonnie Quinonez
22
oo) James Sproul
23
pp) Rebecca Rivera
24
qq) Sheldon Freedman
25
rr) Joseph Mansour
26
ss) George Alkouri
27
tt) Nicole Sharkey
28
Document 83
Filed 01/09/2008
Page 67 of 207
Sergio Perticucci
RESPONSE TO REQUEST NO. 16 9 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000033
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 68 of 207
Defendants have already produced the personnel file of David F. Jadwin. Defendants
2
will confirm that the personnel file previously produced was complete as of the time of its
3
production and, on or before December 7, 2007, will augment the documents previously
4
produced with any additional materials, if any, that have been added into Mr. Jadwin’s personnel
5
file since the file was produced. Plaintiff has narrowed the scope of this request by eliminating
6
all other documents initially requested.
7
REQUEST FOR PRODUCTION NO. 17
8 9 10
Any and all DOCUMENTS RELATING TO the search, recruitment, application, interviewing, and hiring process that resulted in Plaintiff’s employment by YOU. RESPONSE TO REQUEST NO. 17
11
Defendants object to this request to the extent it requests documents that contain
12
confidential personnel information, documents protected from disclosure by state or federal law,
13
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
14
Without waiving these objections, Defendants will produce all documents responsive to this
15
request by December 21, 2007.
16
REQUEST FOR PRODUCTION NO. 18
17
Any and all DOCUMENTS RELATING TO the terms, conditions and privileges of
18
Plaintiff’s employment with YOU.
19
RESPONSE TO REQUEST NO. 18
20 21 22
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 19 Any and all DOCUMENTS RELATING TO Plaintiff’s job duties and responsibilities for
23
each position held by Plaintiff during this employment with YOU.
24
RESPONSE TO REQUEST NO. 19
25 26 27 28
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 20 Any and all DOCUMENTS RELATING TO Plaintiff’s payroll, compensation, base salary and “professional fee payments”, as that term is defined in Plaintiff’s employment 10 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000034
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 69 of 207
1
contracts with YOU, including but not limited to any and all changes in compensation and the
2
reasons for changes, throughout Plaintiff’s employment with YOU.
3
RESPONSE TO REQUEST NO. 20
4 5 6
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 21 Any and all DOCUMENTS RELATING TO YOUR policies, guidelines and practices
7
regarding base salary steps, salary guidelines, deferred compensation plans, pension plans, health
8
insurance and employment benefits applicable to Plaintiff’s position s held throughout his
9
employment with YOU.
10 11 12 13
RESPONSE TO REQUEST NO. 21 Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 22 Any and all DOCUMENTS RELATING TO Plaintiff’s work schedule and/or removal
14
there from, including but not limited to timesheets, from October 24, 200 to present.
15
RESPONSE TO REQUEST NO. 22
16 17 18
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 23 Any and all DOCUMENTS RELATING TO Dr. Phillip Dutt’s timesheets, from April 20
19
2005 to the present.
20
RESPONSE TO REQUEST NO. 23
21
Defendants object to this request to the extent it requests documents that contain
22
confidential personnel information, documents protected from disclosure by state or federal law,
23
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
24
Without waiving these objections, Defendants will produce all non-privileged documents
25
responsive to this request by December 21, 2007. Defendants will redact confidential
26
information, in any, as appropriate.
27
REQUEST FOR PRODUCTION NO. 24
28 11 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000035
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 70 of 207
Any and all DOCUMENTS RELATING TO Dr. Savita Shertukde’s timesheets, from
2
January 4, 2005 to present.
3
RESPONSE TO REQUEST NO. 24
4
Defendants object to this request to the extent it requests documents that contain
5
confidential personnel information, documents protected from disclosure by state or federal law,
6
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
7
Without waiving these objections, Defendants will produce all non-privileged documents
8
responsive to this request by December 21, 2007. Defendants will redact confidential
9
information, in any, as appropriate.
10 11
REQUEST FOR PRODUCTION NO. 25 Any and all DOCUMENTS RELATING TO performance reviews, comments,
12
complaints, warnings, reprimands, counseling, advisory notices or evaluations of Plaintiff’s
13
performance of his job duties throughout his employment with YOU, whether formal or
14
informal.
15
RESPONSE TO REQUEST NO. 25
16
Defendants object to this request to the extent it requests documents that contain
17
confidential personnel information, documents protected from disclosure by state or federal law,
18
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
19
Without waiving these objections, Defendants will produce all non-privileged documents
20
responsive to this request by December 7, 2007. Defendants will redact confidential
21
information, in any, as appropriate.
22
REQUEST FOR PRODUCTION NO. 26
23
Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his
24
employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, written
25
materials, and computer files stored on Plaintiff’s computer at Kern Medical Center’s servers.
26
RESPONSE TO REQUEST NO. 26
27 28
After diligent search, Defendants believe Groupwise calendar information was deleted many months ago as part of the routine 90-day cycling of the Groupwise software. Defendants 12 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000036
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 71 of 207
1
are continuing to search for other materials that were on the computer that was assigned to
2
Plaintiff. Some material was archived before the computer was reassigned. Defendants have
3
identified about 3,000 pages of documents that appear to be responsive to this request but have
4
not yet concluded their search. Defendants will produce all documents responsive to this request
5
by December 7, 2007.
6
REQUEST FOR PRODUCTION NO. 27
7
Any and all DOCUMENTS RELATING TO any meetings RELATING TO Plaintiff or
8
Plaintiff’s employment at Kern Medical Center.
9
RESPONSE TO REQUEST NO. 27
10
Defendants object to this request to the extent it requests documents that contain
11
confidential personnel information, documents protected from disclosure by state or federal law,
12
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
13
Without waiving these objections, Defendants will produce documents responsive to this request
14
by December 7, 2007. Defendants will redact confidential peer review and personnel
15
information, if any, as appropriate.
16
REQUEST FOR PRODUCTION NO. 28
17
Any and all DOCUMENTS RELATING TO performance reviews, comments,
18
complaints, warnings, reprimands, counseling, advisory notices or evaluations of the Kern
19
Medical Center Pathology Department, whether formal or informal, from October 24, 1995 to
20
the present.
21
RESPONSE TO REQUEST NO. 28
22
Defendants object to this request to the extent it requests documents that contain
23
confidential personnel information, documents protected from disclosure by state or federal law,
24
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
25
Without waiving these objections, Defendants will produce documents responsive to this request
26
by December 7, 2007. Defendants will redact confidential peer review and personnel
27
information as appropriate.
28
REQUEST FOR PRODUCTION NO. 29 13 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000037
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
1
Any and all DOCUMENTS RELATING TO Plaintiff’s complaints of:
2
a) disability discrimination
3
b) failure to accommodate
4
c) failure to engage in an interactive process
5
d) violation of medical leave rights
6
e) whistleblower retaliation
7
f) medical leave retaliation
8
g) deprivation of property without due process
9
h) defamation
10 11
Page 72 of 207
i) Fair Labor Standards Act violations RESPONSE TO REQUEST NO. 29
12
Defendants object to this request to the extent it requests documents that contain
13
confidential personnel information, documents protected from disclosure by state or federal law,
14
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
15
Without waiving these objections, Defendants will produce documents responsive to this request
16
by December 21, 2007. Defendants will redact confidential peer review and personnel
17
information as appropriate.
18
REQUEST FOR PRODUCTION NO. 30
19
Any and all DOCUMENTS RELATING TO any investigation of Plaintiff’s complaints
20
of disability discrimination, failure to accommodate, failure to engage in an interactive process,
21
violation of medical leave rights, whistleblower retaliation, medical leave retaliation, defamation,
22
and/or deprivation of property without due process.
23
RESPONSE TO REQUEST NO. 30
24
Defendants object to this request to the extent it requests documents that contain
25
confidential personnel information, documents protected from disclosure by state or federal law,
26
including the peer-review privilege, or documents that are subject to the attorney-client privilege.
27
Without waiving these objections, Defendants will produce documents responsive to this request
28 14 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000038
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 73 of 207
1
by December 21, 2007. Defendants will redact confidential peer review and personnel
2
information as appropriate.
3
REQUEST FOR PRODUCTION NO. 31
4
Any and all DOCUMENTS RELATING TO any procedures available to YOUR
5
employees to complain of corruption, fraud and other wrongful, illegal or unethical conduct, that
6
YOU contend was distributed or made available to YOUR employees, whether management or
7
non-management, from October 24, 2000 to the present, and the date of such asserted
8
distribution(s).
9
RESPONSE TO REQUEST NO. 31
10 11
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 32
12
Any and all DOCUMENTS RELATING TO YOUR discipline of any employee against
13
whom a complaint or grievance of discrimination, harassment, defamation, retaliation, failure to
14
accommodate, and/or failure to engage in an interactive process in their employment was made
15
from October 24, 2000 to date.
16
RESPONSE TO REQUEST NO. 32
17
Defendants object to this request on the grounds that it requests documents that contain
18
confidential personnel information, documents protected from disclosure by state or federal law,
19
including HIPAA and the peer-review privilege, and documents that contain information that is
20
subject to the attorney-client privilege. Defendants do not believe these objections can be
21
resolved by redaction. Defendants also object on the grounds that the request is not reasonably
22
calculated to lead to the discovery of admissible evidence.
23
REQUEST FOR PRODUCTION NO. 33
24
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR
25
past or present employees against YOU for defamation, retaliation, disability discrimination,
26
failure to accommodate, and/or failure to engage in an interactive process, including but not
27
limited to any informal or internal complaints, grievances or charges to any state or federal
28
agency, and complaints filed in any state or federal court from October 24, 2000 to date. 15 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000039
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
Page 74 of 207
RESPONSE TO REQUEST NO. 33 Defendants object to this request on the grounds that it calls for the production of
3
documents that contain confidential personnel information that is not relevant to any issues in
4
this case. Consequently, this request is not reasonably calculated to lead to the discovery of
5
admissible evidence. Defendants also object on the ground that the phrase, “informal or internal
6
complaints” is vague and, depending on interpretation, could include any off-hand gripe by any
7
employee, to the extent it was memorialized in writing. Defendant County of Kern employs
8
several thousand employees. In the past seven years, there could be many documents that fit the
9
description of this request yet none have anything to do with the issues in this case. This request
10
is, accordingly, overbroad and burdensome. Defendants do not believe redaction would resolve
11
these objections.
12
REQUEST FOR PRODUCTION NO. 34
13
Any and all DOCUMENTS RELATING TO any complaints or grievances made to YOU
14
by Plaintiff.
15
RESPONSE TO REQUEST NO. 34
16
Defendants believe all documents responsive to this request have been previously
17
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
18
necessary, by December 7, 2007.
19
REQUEST FOR PRODUCTION NO. 35
20
Any and all DOCUMENTS RELATING TO Plaintiff which YOU sent to or received
21
from any governmental or regulatory authority, including but not limited to the California
22
Department of Fair Employment and Housing, the California Labor and Workforce Development
23
Agency, and the U.S. Department of Labor.
24
RESPONSE TO REQUEST NO. 35
25
Defendants believe all documents responsive to this request have been previously
26
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
27
necessary, by December 7, 2007.
28
REQUEST FOR PRODUCTION NO. 36 16 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000040
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 75 of 207
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
2
evaluation of candidates for the position of staff pathologist at Kern Medical Center during the
3
period from January 1, 2006 to present.
4
RESPONSE TO REQUEST NO. 36
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA and the peer review privilege, and
10
documents that are subject to the attorney-client privilege. Without waving these objections,
11
Defendants will produce non-privileged documents responsive to this request, if any, by
12
December 7, 2007. Defendants will redact confidential and privileged information as
13
appropriate.
14
REQUEST FOR PRODUCTION NO. 37
15
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
16
evaluation of candidates for the position of Chair or Chief of Pathology at Kern Medical Center
17
during the period from January 1, 2006 to present.
18
RESPONSE TO REQUEST NO. 37
19
Defendants object to this request on the grounds that it calls for the production of
20
documents that contain confidential personnel information that is not relevant to any issues in
21
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
22
Defendants also object to this request to the extent it requests information protected from
23
disclosure by state or federal law, including HIPAA and the peer review privilege, and
24
documents that are subject to the attorney-client privilege. Without waving these objections,
25
Defendants will produce non-privileged documents responsive to this request, if any, by
26
December 7, 2007. Defendants will redact confidential and privileged information as
27
appropriate.
28
REQUEST FOR PRODUCTION NO. 38 17 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000041
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 76 of 207
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
2
evaluation of candidates for the position of locus tenens pathologist at Kern Medical Center
3
during the period from January 1, 2006 to present.
4
RESPONSE TO REQUEST NO. 38
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA and the peer review privilege, and
10
documents that are subject to the attorney-client privilege. Without waving these objections,
11
Defendants will produce non-privileged documents responsive to this request, if any, by
12
December 7, 2007. Defendants will redact confidential and privileged information as
13
appropriate.
14
REQUEST FOR PRODUCTION NO. 39
15
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
16
evaluation of candidates for the position of Chair or Chief of OB-GYN at Kern Medical Center
17
during the period from January 1, 2006 to present.
18
RESPONSE TO REQUEST NO. 39
19
Defendants object to this request on the grounds that it calls for the production of
20
documents that contain confidential personnel information that is not relevant to any issues in
21
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
22
Defendants also object to this request to the extent it requests information protected from
23
disclosure by state or federal law, including HIPAA and the peer review privilege, and
24
documents that are subject to the attorney-client privilege. Without waving these objections,
25
Defendants will produce non-privileged documents responsive to this request, if any, by
26
December 7, 2007. Defendants will redact confidential and privileged information as
27
appropriate.
28
REQUEST FOR PRODUCTION NO. 40 18 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000042
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 77 of 207
Any and all DOCUMENTS RELATING TOYOUR removal of Dr. Royce Johnson from
1 2
the position of Chair or Chief of Medicine at Kern Medical Center.
3
RESPONSE TO REQUEST NO. 40 Defendants object to this request on the grounds that it calls for the production of
4 5
documents that contain confidential personnel information that is not relevant to any issues in
6
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
7
Defendants also object to this request to the extent it requests information protected from
8
disclosure by state or federal law, including HIPAA and the peer review privilege, and
9
documents that are subject to the attorney-client privilege.
10
REQUEST FOR PRODUCTION NO. 41 Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
11 12
evaluation of candidates for the position of Chair or Chief of Medicine at Kern Medical Center
13
during the period from October 24, 2000 to present.
14
RESPONSE TO REQUEST NO. 41 Defendants object to this request on the grounds that it calls for the production of
15 16
documents that contain confidential personnel information that is not relevant to any issues in
17
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIPAA and the peer review privilege, and
20
documents that are subject to the attorney-client privilege. Without waving these objections,
21
Defendants will produce non-privileged documents responsive to this request, if any, by
22
December 21, 2007. Defendants will redact confidential and privileged information as
23
appropriate.
24
REQUEST FOR PRODUCTION NO. 42
25
Any and all DOCUMENTS RELATING TO presentations made at the Kern Medical
26
Center oncology conference in May 2005, including but not limited to participant evaluation
27
forms.
28
RESPONSE TO REQUEST NO. 42 19 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000043
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 78 of 207
Defendants object to this request on the grounds that it calls for the production of
1 2
documents that contain confidential personnel information that is not relevant to any issues in
3
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
4
Defendants also object to this request to the extent it requests information protected from
5
disclosure by state or federal law, including HIPAA and the peer review privilege, and
6
documents that are subject to the attorney-client privilege. Without waving these objections,
7
Defendants will produce non-privileged documents responsive to this request, if any, by
8
December 7, 2007. Defendants will redact confidential and privileged information as
9
appropriate.
10
REQUEST FOR PRODUCTION NO. 43 Any and all DOCUMENTS RELATING TO Plaintiff’s presentations made at the Kern
11 12
Medical Center oncology conference on or about October 12, 2005.
13
RESPONSE TO REQUEST NO. 43 Defendants will produce all documents responsive to this request by December 7, 2007.
14 15
REQUEST FOR PRODUCTION NO. 44 Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from
16 17
Chair of Kern Medical Center’s Pathology Department to staff pathologist.
18
RESPONSE TO REQUEST NO. 44 Defendants object to this request to the extent it requests documents that are privileged
19 20
under the attorney-client privilege. Without waiving this objection Defendants will produce all
21
non-privileged documents responsive to this request by December 7, 2007.
22
REQUEST FOR PRODUCTION NO. 45
23
Any and all DOCUMENTS RELATING To the “packets containing information about
24
Dr. Jadwin” which Peter Bryan collected at the end of Kern Medical Center’s Joint Conference
25
Committee discussion and vote on removal of Plaintiff from Chair of Pathology on July 10,
26
2006.
27
RESPONSE TO REQUEST NO. 45
28 20 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000044
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 79 of 207
Defendants are searching for documents responsive to this request. Because of
2
administrative and management changes at Kern Medical Center, it may not be possible to
3
reconstruct the “packets” requested. Defendants object to this request to the extent it requests
4
information protected by the peer-review or attorney-client privileges. Defendants also object to
5
this request to the extent it seeks documents that contain confidential personnel information.
6
Without waiving these objections, and to the extent that the “packets” can be reconstructed,
7
Defendants will produce all documents responsive to this request, if any, by December 21, 2007.
8
REQUEST FOR PRODUCTION NO. 46
9
Any and all DOCUMENTS RELATING TO YOUR decision to place Plaintiff on
10
administrative leave on or about December 7, 2006.
11
RESPONSE TO REQUEST NO. 46
12
Defendants object to this request to the extent it requests information protected by the
13
attorney-client privilege. Without waiving that objection, Defendants believe all documents
14
responsive to this request have been previously produced to Plaintiff. Defendants will confirm
15
this, or produce additional documents if necessary, by December 7, 2007.
16
REQUEST FOR PRODUCTION NO. 47
17
Any and all DOCUMENTS RELATING TO YOUR decision to restrict Plaintiff to his
18
home during working hours from on or about December 7, 2006 to on or about May 1, 2007
19
while he was on administrative leave.
20
RESPONSE TO REQUEST NO. 47
21
Defendants believe all documents responsive to this request have been previously
22
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
23
necessary, by December 7, 2007.
24
REQUEST FOR PRODUCTION NO. 48
25
Any and all DOCUMENTS RELATING TO YOUR decision to lift the restriction of
26
Plaintiff to his home during working hours from on or about December 7, 2006 to on or about
27
May 1, 2007 while he was on administrative leave.
28
RESPONSE TO REQUEST NO. 48 21 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000045
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Page 80 of 207
Defendants believe all documents responsive to this request have been previously
2
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
3
necessary, by December 7, 2007.
4
REQUEST FOR PRODUCTION NO. 49
5
Any and all DOCUMENTS RELATING TO YOUR decision not to renew Plaintiff’s
6
employment contract with YOU that was purportedly made on or about May 1, 2007.
7
RESPONSE TO REQUEST NO. 49
8 9
Defendants object to this request to the extent it requests information protected by the attorney-client privilege. Without waiving that objection, Defendants believe all documents
10
responsive to this request have been previously produced to Plaintiff. Defendants will confirm
11
this, or produce additional documents if necessary, by December 7, 2007.
12
REQUEST FOR PRODUCTION NO. 50
13
Any and all DOCUMENTS RELATING TO any discipline, coaching, reprimand or
14
corrective action taken against Plaintiff by YOU.
15
RESPONSE TO REQUEST NO. 50
16
Defendants believe all documents responsive to this request have been previously
17
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
18
necessary, by December 21, 2007.
19
REQUEST FOR PRODUCTION NO. 51
20
Any and all DOCUMENTS RELATING TO Kern Medical Center’s Disruptive Physician
21
Policy, including but not limited to Bylaw Committee meeting minutes.
22
RESPONSE TO REQUEST NO. 51
23
Defendants object to this request to the extent it requests documents that contain
24
confidential personnel information, documents protected from disclosure by state or federal law,
25
including the HIPAA and the peer-review privilege, or documents that are subject to the
26
attorney-client privilege. Without waiving these objections, Defendants will produce documents
27
responsive to this request by December 7, 2007. Defendants will redact confidential peer review
28
and personnel information as appropriate. 22 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000046
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
REQUEST FOR PRODUCTION NO. 52 Any and all DOCUMENTS RELATING TO Dr. Rebecca Rivera’s lawsuit against Kern
3
Medical Center filed in Kern County California Superior Court.
4
RESPONSE TO REQUEST NO. 52
5
Page 81 of 207
Plaintiff has narrowed this request to eliminate any documents that have been filed with
6
the Kern County Superior Court. As so limited, this request seeks documents in the County
7
Counsel’s litigation file, many of which are protected by the attorney work product and attorney-
8
client privileges. To the extent this request seeks information that is protected by the attorney-
9
client privilege, Defendants object to it. Defendants also object to this request on the grounds
10
that it is not reasonably calculated to lead to the discovery of admissible evidence. Defendants
11
are in the process of reviewing documents that are may be responsive to this request and, without
12
waiving these objections, will produce non-privileged documents, if any, by December 21, 2007.
13
Defendants may redact privileged information if appropriate.
14
REQUEST FOR PRODUCTION NO. 53
15
Any and all DOCUMENTS RELATING TO services provided to YOU by the Camden
16
Group RELATING TO Kern Medical Center.
17
RESPONSE TO REQUEST NO. 53
18
Defendants believe all documents responsive to this request have been previously
19
produced to Plaintiff. Defendants will confirm this, or produce additional documents if
20
necessary, by December 7, 2007.
21
REQUEST FOR PRODUCTION NO. 54
22
Any and all DOCUMENTS RELATING TO statistics maintained by YOU RELATING
23
TO patient fatalities at Kern Medical Center from October 24, 2000 to the present.
24
RESPONSE TO REQUEST NO. 54
25
Defendants object to this request on the grounds that it calls for the production of
26
documents that contain confidential personnel information that is not relevant to any issues in
27
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
28
Defendants also object to this request to the extent it requests information protected from 23 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000047
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 82 of 207
1
disclosure by state or federal law, including HIPAA and the peer review privilege, and
2
documents that are subject to the attorney-client privilege. Without waving these objections,
3
Defendants will produce non-privileged documents responsive to this request, if any, by
4
December 21, 2007. Defendants will redact confidential and privileged information as
5
appropriate. If the redaction process renders the resulting document useless, Defendants will
6
inform Plaintiff.
7
REQUEST FOR PRODUCTION NO. 55
8 9
Any and all DOCUMENTS RELATING TO the review of Kern Medical Center’s placental evaluations and billing activity as conducted by outside consultants, including but not
10
limited to ProPay Physician Services, LLC, from October 24, 2000 to the present.
11
RESPONSE TO REQUEST NO. 55
12
Defendants object to this request on the grounds that it calls for the production of
13
documents that contain confidential personnel information that is not relevant to any issues in
14
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
15
Defendants also object to this request to the extent it requests information protected from
16
disclosure by state or federal law, including HIPAA and the peer review privilege, and
17
documents that are subject to the attorney-client privilege. Without waving these objections,
18
Defendants will produce non-privileged documents responsive to this request, if any, by
19
December 21, 2007. Defendants will redact confidential and privileged information as
20
appropriate.
21
REQUEST FOR PRODUCTION NO. 56
22
Any and all DOCUMENTS RELATING TO blood bank monthly reports, included but
23
not limited to reports generated by Michelle Burris, from January 2006 to present.
24
RESPONSE TO REQUEST NO. 56
25
Defendants object to this request on the grounds that it calls for the production of
26
documents that contain confidential personnel information that is not relevant to any issues in
27
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
28
Defendants also object to this request to the extent it requests information protected from 24 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000048
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 83 of 207
1
disclosure by state or federal law, including HIPAA and the peer review privilege, and
2
documents that are subject to the attorney-client privilege. Without waving these objections,
3
Defendants will produce non-privileged documents responsive to this request, if any, by
4
December 21, 2007. Defendants will redact confidential and privileged information as
5
appropriate.
6
REQUEST FOR PRODUCTION NO. 57
7
Any and all DOCUMENTS RELATING TO product chart copy-related quality assurance
8
reports from October 24, 2000 to the present.
9
RESPONSE TO REQUEST NO. 57
10
Defendants object to this request on the grounds that it calls for the production of
11
documents that contain confidential personnel information that is not relevant to any issues in
12
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
13
Defendants also object to this request to the extent it requests information protected from
14
disclosure by state or federal law, including HIPAA and the peer review privilege, and
15
documents that are subject to the attorney-client privilege. Without waving these objections,
16
Defendants will produce non-privileged documents responsive to this request, if any, by
17
December 21, 2007. Defendants will redact confidential and privileged information as
18
appropriate.
19
REQUEST FOR PRODUCTION NO. 58
20
Any and all DOCUMENTS RELATING TO prostate needle biopsy reports produced by
21
Dr. Elsa Ang for which Plaintiff had requested a lookback study in October 2005.
22
RESPONSE TO REQUEST NO. 58
23
Defendants object to this request on the grounds that it calls for the production of
24
documents that contain confidential personnel information that is not relevant to any issues in
25
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
26
Defendants also object to this request to the extent it requests information protected from
27
disclosure by state or federal law, including HIPAA and the peer review privilege, and
28
documents that are subject to the attorney-client privilege. Without waving these objections, 25 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000049
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 84 of 207
1
Defendants will produce non-privileged documents responsive to this request, if any, by
2
December 21, 2007. Defendants will redact confidential and privileged information as
3
appropriate.
4
REQUEST FOR PRODUCTION NO. 59 Any and all DOCUMENTS RELATING TO sign-in sheets for Kern Medical Center’s
5 6
Cancer Clinic from January 1, 2003 to the present.
7
RESPONSE TO REQUEST NO. 59 Defendants will produce all documents responsive to this request by December 21, 2007.
8 9
REQUEST FOR PRODUCTION NO. 60 Any and all DOCUMENTS RELATING TO Workplace Violence or Threat Incident
10 11
Reports for all Kern Medical Center personnel from October 24, 2000 to the present.
12
RESPONSE TO REQUEST NO. 60
13
Defendants object to this request to the extent it seeks documents that contain
14
confidential personnel information or information protected by the attorney-client privilege.
15
Defendants also object to the extent the documents contain information protected by the peer-
16
review privilege and on the grounds that the request is not reasonably calculated to lead to the
17
discovery of admissible evidence. Without waiving these objections, Defendants will produce
18
all documents responsive to this request by December 21, 2007. Defendants will redact
19
confidential or privileged information as appropriate.
20
REQUEST FOR PRODUCTION NO. 61 Any and all DOCUMENTS RELATING TO Fine Needle Aspiration policies at Kern
21 22
Medical Center from October 24, 2000 to the present, including but not limited to
23
DOCUMENTS RELATING TO the outside consultant study conducted by Dr. David Lieu in
24
2004.
25
RESPONSE TO REQUEST NO. 61
26
Defendants object to this request to the extent it seeks documents that contain
27
confidential personnel information or information protected by the attorney-client privilege.
28
Defendants also object to the extent the documents contain information protected by the peer26 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000050
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 85 of 207
1
review privilege and on the grounds that the request is not reasonably calculated to lead to the
2
discovery of admissible evidence. Without waiving these objections, Defendants will produce
3
all documents responsive to this request by December 21, 2007. Defendants will redact
4
confidential or privileged information as appropriate.
5
REQUEST FOR PRODUCTION NO. 62
6
Any and all DOCUMENTS RELATING TO Peter Bryan’s appointment calendar from
7
January 1, 2004 to September 1, 2006.
8
RESPONSE TO REQUEST NO. 62
9 10 11 12
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 63 Any and all DOCUMENTS RELATING TO meeting minutes for the following Kern Medical Center committees or groups from October 24, 2000 to the present:
13
a) Medical Executive Committee
14
b) Joint Conference Committee
15
c) Quality Management Committee
16
d) Cancer Committee
17
e) Second Level Peer Review Committee
18
f) Transfusion Committee
19
g) Executive Staff Meetings
20 21
RESPONSE TO REQUEST NO. 63 Defendants object to this request to the extent it requests documents that contain
22
confidential personnel information or information that is protected from disclosure by state or
23
federal law, including HIPAA and the peer review privilege, or documents that are subject to the
24
attorney/client privilege. Without waiving these objections, Defendants will produce documents
25
responsive to this request by December 21, 2007. Defendants will redact confidential or
26
privileged information as appropriate.
27
REQUEST FOR PRODUCTION NO. 64
28 27 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000051
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Filed 01/09/2008
Any and all DOCUMENTS RELATING TO policies of Kern Medical Center’s
2
Pathology Department from October 24, 2000 to the present.
3
RESPONSE TO REQUEST NO. 64
4 5
Page 86 of 207
Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 65
6
Any and all DOCUMENTS RELATING TO case send-out logs for Kern Medical
7
Center’s Pathology Department from January 1, 1999 to the present, including but not limited to
8
corresponding Kern Medical Center pathology reports and reports from outside consultants.
9
RESPONSE TO REQUEST NO. 65
10
Defendants object to this request to the extent it requests documents that contain
11
confidential personnel information or information that is protected from disclosure by state or
12
federal law, including HIPAA and the peer review privilege, or documents that are subject to the
13
attorney/client privilege. Without waiving these objections, Defendants will produce documents
14
responsive to this request by December 7, 2007. Defendants will redact confidential or
15
privileged information as appropriate.
16
REQUEST FOR PRODUCTION NO. 66
17
Any and all DOCUMENTS RELATING TO monthly turn-around-time reports and logs
18
– by pathologist – for pathology reports processed at Kern Medical Center, including but not
19
limited to Pathology Department Semi-annual Reports to the Medical Staff, for the time period
20
from January 1, 1999 to the present.
21
RESPONSE TO REQUEST NO. 66
22
Defendants object to this request to the extent it requests documents that contain
23
privileged peer review information. Without waiving this objection Defendants will produce all
24
documents responsive to this request by December 7, 2007. Defendants will redact all privileged
25
information as appropriate.
26
REQUEST FOR PRODUCTION NO. 67
27 28
Any and all DOCUMENTS RELATING TO monthly or semi-monthly turn-around-time reports and logs – for Kern Medical Center’s Pathology Department as a whole – for pathology 28 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000052
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 87 of 207
1
reports processed at Kern Medical Center including but not limited to surgical pathology,
2
cytology and bone marrow reports, for the time period from January 1, 1999 to the present.
3
RESPONSE TO REQUEST NO. 67
4
Defendants object to this request to the extent it requests documents that contain
5
privileged peer review information. Without waiving this objection Defendants will produce all
6
documents responsive to this request by December 7, 2007. Defendants will redact all privileged
7
information as appropriate.
8
REQUEST FOR PRODUCTION NO. 68
9
Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS authored,
10
reviewed or approved by Plaintiff which YOU sent to any outside pathologists for outside review
11
from June 14, 2006 to the present.
12
RESPONSE TO REQUEST NO. 68
13
Defendants object to this request to the extent it requests documents that contain
14
privileged peer review information. Without waiving this objection Defendants will produce all
15
documents responsive to this request by December 7, 2007. Defendants will redact all privileged
16
information as appropriate.
17
REQUEST FOR PRODUCTION NO. 69
18
Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS RELATING TO
19
Case Numbers S06-4131, S06-4619, S06-5229, S06-73276.
20
RESPONSE TO REQUEST NO. 69
21
Defendants object to this request to the extent it requests documents that contain
22
information that is confidential under HIPAA. Defendants also object to the extent that it
23
requests documents that contain privileged peer-review information. Without waiving these
24
objections Defendants will produce all documents responsive to this request by December 7,
25
2007. Defendants will redact confidential and privileged information as appropriate.
26
REQUEST FOR PRODUCTION NO. 70
27 28
Any and all DOCUMENTS RELATING TO peer review RELATING TO Kern Medical Center’s Pathology Department during the time period from January 1, 1995 to the present, 29 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000053
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 88 of 207
1
including but not limited to computer-generated data, monthly peer review records completed by
2
pathologists, and peer review comment sheets that are completed by pathologists upon discovery
3
of a discrepancy.
4
RESPONSE TO REQUEST NO. 70
5
Defendants object to this request on the ground that it requests privileged peer-review
6
information. Defendants also object on the ground that it requests information that is
7
confidential under HIPAA and not reasonably calculated to lead to the discovery of admissible
8
evidence. Without waiving these objections, Defendants will produce documents responsive to
9
this request by January 7, 2008 if it is possible to redact the confidential and privileged
10
information without rendering the resulting document useless.
11
REQUEST FOR PRODUCTION NO. 71
12
Any and all DOCUMENTS RELATING TO exceptional event logs for histology and
13
pathology on Kern Medical Center’s Pathology Department from January 1, 2006 to the present.
14
RESPONSE TO REQUEST NO. 71
15
Defendants object to this request to the extent it requests documents that contain
16
information that is confidential under HIPAA. Defendants also object to the extent that it
17
requests documents that contain privileged peer review information. Without waiving these
18
objections Defendants will produce all documents responsive to this request by December 7,
19
2007. Defendants will redact confidential and privileged information as appropriate.
20
REQUEST FOR PRODUCTION NO. 72
21
Any and all DOCUMENTS RELATING TO paper accession logs at Kern Medical
22
Center’s Pathology Department from January 1, 2006 to present.
23
RESPONSE TO REQUEST NO. 72
24
Defendants object to this request to the extent it requests documents that contain
25
information that is confidential under HIPAA. Defendants also object to the extent that it
26
requests documents that contain privileged peer review information. Without waiving these
27
objections Defendants will produce all documents responsive to this request by December 7,
28
2007. Defendants will redact confidential and privileged information as appropriate. 30 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000054
Case 1:07-cv-00026-OWW-TAG
1 2
Filed 01/09/2008
Page 89 of 207
REQUEST FOR PRODUCTION NO. 73 Any and all DOCUMENTS RELATING TO tissue disposal records for skull-flaps from
3
January 1, 2006 to the present.
4
RESPONSE TO REQUEST NO. 73
5
Document 83
Defendants object to this request to the extent it requests documents that contain
6
information that is confidential under HIPAA. Defendants also object to the extent that it
7
requests documents that contain privileged peer review information. Without waiving these
8
objections Defendants will produce all documents responsive to this request by December 7,
9
2007. Defendants will redact confidential and privileged information as appropriate.
10
REQUEST FOR PRODUCTION NO. 74
11
Any and all DOCUMENTS RELATING TO audits of Kern Medical Center’s Pathology
12
Department by outside consultants, including but not limited to Dr. Stacey Garry, from October
13
24, 2000 to the present.
14
RESPONSE TO REQUEST NO. 74
15
Defendants object to this request to the extent it requests documents that contain
16
information that is confidential under HIPAA. Defendants also object to the extent that it
17
requests documents that contain privileged peer review information. Without waiving these
18
objections Defendants will produce all documents responsive to this request by December 7,
19
2007. Defendants will redact confidential and privileged information as appropriate.
20
REQUEST FOR PRODUCTION NO. 75
21
Any and all DOCUMENTS RELATING TO Kern Medical Center laboratory personnel
22
defections from June 14, 2006 to the present, including but not limited to exit interview notes.
23
RESPONSE TO REQUEST NO. 75
24
Defendants object to this request on the grounds that it is vague. Defendants do not know
25
what “personnel defections” means. If Plaintiff intends to request a list of employees who have
26
separated from County employment or transferred out of the laboratory, Defendants can prepare
27
such a list but Defendants believe such a list will need to be redacted to remove confidential
28
personnel information. Defendants will produce a list of employees who have separated from 31 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000055
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 90 of 207
1
County employment or transferred out of the laboratory by December 21, 2007 and will redact
2
the information as appropriate.
3
REQUEST FOR PRODUCTION NO. 76
4
Any and all DOCUMENTS RELATING TO dictation transcription logs for Plaintiff
5
from June 14, 2006 to the present.
6
RESPONSE TO REQUEST NO. 76
7 8 9
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 77 Any and all DOCUMENTS RELATING TO dictation transcription logs for Dr. Philip
10
Dutt from June 14, 2006 to the present.
11
RESPONSE TO REQUEST NO. 77
12 13 14
Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 78 Any and all DOCUMENTS RELATING TO placental evaluations conducted by Plaintiff
15
from June 14, 2006 to the present.
16
RESPONSE TO REQUEST NO. 78
17
Plaintiff has attempted to narrow this request but the revised request is broader, more
18
burdensome and less calculated to lead to the discovery of admissible evidence than the original
19
request. Defendants object to it for that reason. Defendants object to this request because it is
20
not reasonably calculated to lead to the discovery of admissible evidence and is burdensome.
21
Defendants also object to this request on the grounds that it seeks information that is shielded
22
from disclosure under HIPAA. There are thousands of placental evaluations for the time period
23
specified and they are not centrally filed or maintained. Locating ones conducted by Plaintiff
24
will require writing a computer program that will sort the files. After the files are sorted, it will
25
require a manual review of each file to find the placental evaluation. It will have to be copied
26
and redacted and copied again. Defendants estimate it will take approximately 90 days to
27
comply with this request. Without waiving these objections, Defendants will attempt to locate,
28
copy and produce the documents requested 32 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000056
Case 1:07-cv-00026-OWW-TAG
1 2 3 4
Document 83
Any and all DOCUMENTS RELATING TO Golden Empire Pathology Associates. RESPONSE TO REQUEST NO. 79 After diligent search, Defendants’ have not been able to locate any documents that are responsive to this request.
6
REQUEST FOR PRODUCTION NO. 80
8 9 10
Page 91 of 207
REQUEST FOR PRODUCTION NO. 79
5
7
Filed 01/09/2008
Any and all DOCUMENTS RELATING TO Golden Empire Medical Group. RESPONSE TO REQUEST NO. 80 After diligent search, Defendants’ have not been able to locate any documents that are responsive to this request.
11 12 13 14
Dated: November 20, 2007
LAW OFFICES OF MARK A. WASSER
15 16 17 18
By:
/s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.
19 20 21 22 23 24 25 26 27 28 33 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000057
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 92 of 207
EXHIBIT 8. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/22/07
MTC000058
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/4 11/22/07 3:07 pm
OF
Page 93 of 207 [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: 11/22/2007
Pages: 4 (including cover page) Re: Jadwin/KC: Meet and Confer re RPD1
Comments:
Mark, Transmitted herewith is a meet and confer letter in regard to defendants' responses to plaintiff's request for production of documents, set one. We look forward to having a meet and confer phone call with you next Monday. As we've mentioned previously, if we are unable to resolve these issues, plaintiff intends to move to compel. Happy Thanksgiving.
MTC000059
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Pg 2/4 11/22/07 3:07 pm
Document 83
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 94 of 207
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 22,2007 VIA FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure speaking with you yesterday regarding my email of November 20.
I.
OVERBROAD OBJECTION
As you know, in that email, we had explained that defendants' oft-used objection, "documents protected from disclosure by state or federal law", does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you indicated that defendants would re-state this objection. We look forward to discussing this further with you on Monday's call.
II.
ISSUES RELATED TO SPECIFIC RESPONSES
Plaintiff also notes the following issues with defendants written responses to plaintiff requests for production, set one: Response Issue to Doc ReqNo. 23/24 December 21 seems to be an excessively long time. Also, to what extent are the timesheets attorney-client privileged? To what extent are these documents relating to plaintiff's job performance attorney25 client privileged? 32 These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We intend to move to compel if we cannot resolve this. 33 In past meet and confer calls, plaintiff had narrowed this request to complaints or grievances relating to Kern Medical Center which had been made to a government
MTC000060
From: Law Office of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
36 to 39 40
42 69 70
78
III.
Pg 3/ 4 11/22/07 3:07 pm
Document 83
Filed 01/09/2008
Page 95 of 207
agency or court. These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We intend to move to compel if we cannot resolve this. To what extent are these documents attorney-client privileged? These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We intend to move to compel if we cannot resolve discriminatorylretaliatory this. To what extent are documents relating to the May 2005 oncology conference presentation attorney-client privileged? We still await defendants' response on the patient medical record number issue, both for past and for future disclosures. These documents are essential to prove disparate treatment and discriminatory/retaliatory intent. January 7, 2008 is an unacceptable length of time to wait for these documents. We intend to move to compel if we cannot resolve this. Defendants fail to indicate a date of production.
REQUEST 78
Regarding Request 78, as a means to save time, plaintiff proposes defendants produce the following. We can discuss this at our next conference if you wish. 1.
A printout of a list of all CPT code 88307 reports will produce all placentas. There are less than 4,500 placentas per year. This process should require no more than four hours.
2.
A printout of all pathology reports appearing on the above list. At two reports per minute, this should require approx. 40 hours.
3.
Redaction of patient names (appearing in 3 places on each report) is a highly repetitive task that should require far less than 40 hours. If automated using scanning and Adobe Acrobat, it should take even less time.
These tasks are clerical and do not require a great deal of skill. We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Monday, November 26,2007. Please do not hesitate to contact us with any questions or if you need to reschedule.
cc:
Joan Herrington, Esq. 2 MTC000061
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 4/4 11/22/07 3:07 pm
Document 83
Filed 01/09/2008
Page 96 of 207
David F. Jadwin, D.O., F.C.A.P.
3 MTC000062
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 97 of 207
EXHIBIT 9. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/27/07
MTC000063
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/8 11/27/07 4:02 pm
OF
Page 98 of 207 [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: 11/27/2007
Pages: 8 (including cover page) Re: Jadwin/KC: Meet and Confer re RPD1
Comments:
Dear Mark, Transmitted herewith is a letter in followup to our meet and confer call yesterday. Also enclosed is a draft stipulation as we discussed. Sincerely.
MTC000064
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Pg 2/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 99 of 207
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
November 27,2007 VIA U.S. MAIL FIRST CLASS & FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff's Requests for Production, Set One Jadwin 1 County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WWITAG)
Dear Mark: It was a pleasure speaking with you yesterday and today regarding my letter to you of November
22. We are writing this letter in follow-up to our discussion. I.
OVERBROAD OBJECTION
As you know, in that email, we had explained that defendants' oft-used objection, "documents protected from disclosure by state or federal law", does not comply with FRCP Rule 34 because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you indicated that the objection referred to HIPAA and peer review privilege, and that defendants would revise the responses to state the objection accordingly by Friday, November 30. II.
PRIVILEGE LOG
You stated that you intend to provide us with a privilege log for all requests by Friday, November 30. III.
ISSUES RELATED TO SPECIFIC RESPONSES
Plaintiff also notes the following issues with defendants' written responses to plaintiff's requests for production, set one: Response to Doc ReqNo. 23/24
25 33
Issue
You stated that these are probably not attorney-client privileged and that defendants may be able to produce them this week. You stated that these are probably not attorney-client privileged. We reiterated that we have already agreed to narrow this request to documents
MTC000065
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
Page 100 of 207
relating to complaints or grievances relating to Kern Medical Center which had been made to a government agency or court. We further explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. You requested and we agreed to send you revised response language which nails down exactly what we are requesting. You confirmed that the documents are already in the process of being collected and that, once the request language is revised, you will produce responsive documents by December 7. Following is the revised language narrowing the request:
36 to 39 40
"COMPLAINTS AGAINST COUNTY. Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR past or present employees against YOU for defamation, retaliation, disability discrimination, failure to accommodate, and/or failure to engage in an interactive process RELATING TO Kern Medical Center and/or its officers or staff, including but not limited to any infermal sr internal 6slfljllaints, grievances or charges to any state or federal agency, and complaints filed in any state or federal court from October 24, 2000 to date." You explained that some documents will be subject to attorney-client privilege. We explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. You maintain your objections that documents requested are confidential personnel information and that the request is not reasonably calculated to lead to admissible evidence because Dr. Royce's situation is too dissimilar to plaintiff's. Therefore you stated that you do not intend to produce any responsive documents. Since we are at an impasse, we will move to compel. Note: becanse yon are refnsing this reqnest, we are reinstating onr reqnest in Request 16 with respect to Dr. Royce Johnson's personnel fIle. Previously you had objected that the personnel files of state employees are privileged official information. Please see this case:
Garrett v. San Francisco, 818 F.2d 1515, 1518-1519 fnA (9th Cir. 1987)("This court has held that personnel files are discoverable in federal question cases, including Title VII actions, despite claims of privilege. Guerra v. Board ofTrustees, 567 F.2d 352 (9th Cir. 1977); Kerr v. United States District Court, 511 F.2d 192, 197 (9th Cir. 1975), aff'd, 426 U.S. 394, 48 L. Ed. 2d 725,96 S. Ct. 2119 (1976)). Ibid. (where plaintiff sought personnel records of 16 named firefighters to prove
disparate treatment and defendants objected on grounds of privilege, confidentiality, invasion of privacy, and irrelevance, the 9th Cir. opined "Without passing on the merits of plaintiff's discovery motion (a matter which should be addressed first by the district court), we note that the motion, on its face, does not appear to be entirely without merit."). 42 69
You stated that these are probably not attorney-client privileged. You indicated that defendants will disclose patient medical record numbers by December 7, and that you will look into the possibility of doing the same for 2 MTC000066
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
70
Pg 4/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
Page 101 of 207
defendants' past Initial Disclosures. We explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent and that January 7,2008 is an unacceptable length oftime to wait for these documents. You asked for legal authority establishing that state privilege caselaw does not apply in federal court in cases involving a federal question. We agreed to provide it. You also indicated that if we are able to successfully meet and confer on this issue, that you would be able to produce responsive documents by December 21. Please see these cases:
Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100,104 (3d Cir. 1982) (We hold that when there are federal law claims in a case also presenting state law claims, the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule. The question is one of first impression in this court, but our holding is consistent with the legislative history n5 of Rule SOl and the decisions of a number of trial courts. n6 It is also consistent with the general rule in federal practice disfavoring privileges not constitutionally based.) Kerrv. United States District Court, 511 F.2d 192, 196-198 (9th Cir.1975), affd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); (In federal question cases the clear weight of authority and logic supports reference to federal law on the issue of the existence and scope of an asserted privilege; The state's interest is that of a litigant, and not, as in diversity cases, that of a sovereign whose law is being applied in a foreign forum. Reference to federal law in this case is necessary on the issue of the existence and scope ofthe claimed privilege.). 78
IV.
We explained that you failed to indicate a date of production. You said that you would give us a date of production at our next call on November 30. REQUEST 78
Regarding Request 78, we explained that the task of producing these documents is clerical and could be handled by an hourly-paid temporary hire, in one to two weeks. You said you were discussing our latest suggestions with your clients. V.
RELEVANCY OBJECTION
During the call, a topic of discussion was defendants' objection that plaintiff's requests were not reasonably calculated to lead to admissible evidence. Following is some caselaw regarding that. In our view, defendants are adopting an overly expansive view of what the objection covers: Royce Johnson is a fair comparator for Dr. Jadwin in terms of "seriousness" of wrongdoing:
3 MTC000067
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 5/8 11/27/07 4:02 pm
Document 83
Filed 01/09/2008
Page 102 of 207
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.ll, 49 L. Ed. 2d 493,96 S. Ct. 2574 (1976) (In a Title VII case, plaintiff can meet its burden by showing that other employees (firefighters) who engaged in similar acts of wrongdoing of comparable seriousness . . . were nevertheless retained.) Relevancy is not a proper objection: United States v. Meyer, 398 F.2d 66, 72 (9th Cir. 1968). (In addition to discovering information pertaining to a party's case in chief, it is entirely proper to obtain information for other purposes such as cross-examination of adverse witnesses) 8 Wright & Miller, Federal Practice and Procedure, s 2008 at 41 (1970) (For the question of relevancy is to be more loosely construed at the discovery stage than at the trial.) Olympic Refining Company v. Carter,332 F.2d 260, 266 (9th Cir. 1964) (Thus under Fed.R.Civ.P. 26(b)(1), it is no ground for objection that information sought in pretrial discovery would not be admissible at trial, ifthe testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.).
VI.
12/4-12/6 DEPOSITIONS
We explained that we are incurring hotel, travel and court reporter costs in connection with the upcoming depositions. You agreed to confirm with us shortly that the depositions can go forward as scheduled. You had mentioned that, due to scheduling conflicts, Dr. Wrobel's deposition may need to be moved from Tuesday afternoon to possibly Thursday. Please let us know.
VII.
STIPULATION RE AUTHENTICATION OF DOCUMENTS
We asked if you would consider entering into a stipulation mutually authenticating documents produced by the parties in discovery. You agreed to do so. A draft stipulation is attached for your review.
We look forward to our next meet and confer conference call with you at 10:00 a.ill. on Friday, November 30,2007. Please do not hesitate to contact us with any questions or if you need to reschedule.
Very trul\ yours,
~,,---\-
i$ENE D. LEE cc:
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
V
4 MTC000068
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8
Document 83
Pg 6/8 11/27/07 4:02 pm
Filed 01/09/2008
Page 103 of 207
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: [email protected] Joan Herrington SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminister Lane Oakland, CA 94602 Phone: (510) 530-4078 Fax: (510) 530-4725 E-mail: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE
9
10 II
12 13 14 15 16 17 18 19
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,CA95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barman, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 9330 I Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected] Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
20 21
UNITED STATES DISTRICT COURT
22
EASTERN DISTRICT OF CALIFORNIA
STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY
I
MTC000069
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
1
Document 83
Pg 7/8 11/27/07 4:02 pm
Filed 01/09/2008
Page 104 of 207
IT IS HEREBY STIPULATED, by and among the parties hereto through their respective
2
counsel, that any and all documents produced by plaintiff and/or by each of the defendants, or
3
any ofthem, in the Initial Disclosures, supplemental disclosures, or pursuant to discovery
4
requests or procedures in this action shall be deemed authentic under Federal Rule of Evidence
5
90 I, provided however that documents generated by third parties shall not be included in this
6
stipulation.
7
8
Dated: December , 2007
LAW OFFICE OF EUGENE LEE
9 By:_--,E",u=e",n",e-=D,-,.~L=..:e,-"e'-----
10
-----1
Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.
11
12 13
Dated: December , 2007
LAW OFFICES OF MARK A. WASSER
14
IS 16
By: _--,M""",a",rk,,--,-,A,,-.-,-W,-,a",s""se",r--,C."a,,-s",au",t""h",o",ri",,-ze"'d"--""on"----_ _L)_ Mark A. Wasser Attorney for Defendants, County of Kern, et al.
17
18 19 20
21 22
23
24 25 26 27
28
STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY
2
MTC000070
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Document 83
3 4
5 6 7
Filed 01/09/2008
Page 105 of 207
ORDER
1
2
Pg 8/8 11/27/07 4:02 pm
The parties having stipulated as hereinabove set forth and good cause appearing therefor; IT IS HEREBY ORDERED, that that any and all documents produced by plaintiff and/or by each ofthe defendants, or any ofthem, in the Initial Disclosures, supplemental disclosures or pursuant to discovery requests or procedures in this action shall be deemed authentic under Federal Rule of Evidence 901, provided however that documents generated by third parties shall not be included in this stipulation. Dated: December _ , 2007
UNITED STATES DISTRICT COURT
8 By: 9 10
_ The Honorable Theresa A. Goldner United States District Judge
11
12 13 14
IS 16 17
18 19 20 21 22
23 24 25 26 27
28
STIPULATION TO AUTHENTICATE DOCUMENTS PRODUCED IN DISCOVERY
3
MTC000071
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 106 of 207
EXHIBIT 10. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 11/30/07
MTC000072
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
(213) 992-3299 TELEPHONE
L A W
(213) 596-0487 FACSIMILE
555 WEST FIFTH STREET, SUITE 3100 LOS ANGELES, CALIFORNIA 90013-1010
O F F I C E
E U G E N E
EUGENE D. LEE, ESQ. PRINCIPAL
O F
L E E
Page 107 of 207 [email protected] E-MAIL WWW.LOEL.COM WEBSITE JOAN E. HERRINGTON, ESQ. OF COUNSEL
November 30, 2007 VIA E-MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff’s Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-OWW/TAG)
Dear Mark: It was a pleasure speaking with you today regarding our letter to you of November 27. We were pleased to hear that you expected most if not all documents to be produced before December 21. We are writing this letter in follow-up to our discussion. I. OVERBROAD OBJECTION We discussed defendants’ objection, “documents protected from disclosure by state or federal law”, which is problematic because it (a) is too broadly stated and (b) fails to explain how the objection relates to the documents demanded. During the call, you agreed to revise the responses to state the objection accordingly by either today or next Monday. II. PRIVILEGE LOG You stated that you intend to provide us with a privilege log for all requests by either today or next Monday. III. ISSUES RELATED TO SPECIFIC RESPONSES Plaintiff also notes the following issues with defendants’ written responses to plaintiff’s requests for production, set one: Response Issue to Doc Req No. 23/24 You stated there would not likely be any issue producing these and you would have a more definite idea as to production date by next Monday. 33 You confirmed that plaintiff’s revised request language is adequate and that you will produce responsive documents tentatively by December 7, but you would have a more definite idea as to production date by next Monday. 40 We discussed McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976), establishing Dr. Royce is a fair comparator for disparate treatment. You said you would do some further research and be ready to
MTC000073
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 108 of 207
discuss it with us further by next Monday.
42 69 70
78
I mentioned that if we are unable to resolve this issue, we would reinstate our request in Request 16 with respect to Dr. Royce Johnson’s personnel file. I further mentioned Garrett v. San Francisco, supporting our right to disclosure of personnel files. You stated that these are probably not attorney-client privileged. You stated you would probably have a decision on this by next Monday. We explained that these documents are essential to prove disparate treatment and discriminatory/retaliatory intent. We also cited Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 and Kerr v. United States District Court, 511 F.2d 192, 196-198 (9th Cir.1975), establishing that federal privilege applies in federal question cases. You stated that you would research this further and that if we are able to successfully meet and confer on this issue, you would be able to produce responsive documents possibly by December 21. You stated that you would produce possibly by December 21, but that this would be decided by next Monday.
IV. STIPULATION RE AUTHENTICATION OF DOCUMENTS We discussed the draft stipulation and mentioned that some language should be added to ensure documents generated by KMC hospital staff and employees are covered by the stip (as opposed to third parties outside of KMC). You said you would discuss this with your client and get back to us with an answer by next Monday. V. PRIVACY BALANCING TEST You requested caselaw regarding the privacy balancing test for disclosure. We cited Tisdale v Marin General Hospital, 138 FRD 696. If any of the foregoing is inaccurate, please do not hesitate to let us know. We find these letters serve as a useful way to track ongoing items of discussion. We look forward to our next meet and confer conference call with you at 5:00 p.m. on Monday, December 3, 2007. Please do not hesitate to contact us with any questions or if you need to reschedule. Have a nice weekend.
Very truly yours,
EUGENE D. LEE cc:
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
2 MTC000074
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 109 of 207
EXHIBIT 11. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/10/07
MTC000075
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/ 4 12/10/07 2:52 pm
OF
Page 110 of 207 [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: 12/10/2007
Pages: 4 (including cover page) Re: Jadwin/KC: Deposition Meet and Confer
Comments:
Mark, Transmitted herewith is a meet and confer letter regarding plaintiff's requests for production, set one, upcoming depositions, and depositions of last week. Sincerely.
MTC000076
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
LAW
(213) 992-3299
TELEPHONE
Document 83
Pg 2/ 4 12/10/07 2:52 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
555
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
WEST FIFTH
Page 111 of 207
SUITE
3100
EUGENE D. LEE, ESQ
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
December 10, 2007 VIA FACSIMILE & US MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants' Instructions to Deponents Not to Answer Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: It was a pleasure seeing you at plaintiff's depositions on December 4, 5 and 6, 2007.
I.
UPCOMING DEPOSITIONS
On last Friday, we served deposition notices for Peter Bryan, Irwin Harris, Renita Nunn and Patti Perez on you. As you recall, plaintiff and defendants had stipulated to make every Tuesday, Wednesday and Thursday available for depositions. Please confirm that the depositions as scheduled do not raise any scheduling issues.
II.
PRIVILEGE LOG
Earlier, on December 3, we had had a phone call to discuss our outstanding requests for production of documents, set one. As you will recall, we had agreed that you would provide privilege logs by December 6. At the depositions, you mentioned that your assistant had faxed you the privilege logs, but you failed to give them to us. Please provide the privilege logs immediately to us.
III.
OBSTRUCTION OF PLAINTIFF'S DEPOSITIONS
At each ofthe depositions of Drs. Taylor and Naderi (core physicians at KMC), you improperly instructed the deponent not to answer our questions and thereby obstructed the depositions. With respect to Dr. Taylor, plaintiff had asked him to name the core physician at KMC whom he considered to be "arrogant". This question is reasonably calculated to lead to admissible evidence relating to defendants' fifth affirmative defense, which specifically alleges that plaintiff Dr. Jadwin "was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly". This question also relates to disparate treatment of comparators, which is the gravamen of discrimination claims; hence, the identity ofthis comparator and his or her
MTC000077
To: 213-596-0487
From: Law OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 4 12/10/07 2:52 pm
Document 83
Filed 01/09/2008
Page 112 of 207
treatment by KMC is subject to discovery. You instructed Dr. Taylor not to answer even though no privilege was involved or invoked. This constitutes obstruction of plaintiff's deposition. With respect to Dr. Naderi, plaintiff had asked him to discuss his reduced work schedule at KMC over a roughly 2-month period in connection with his son's car accident in or about 1998. Questions regarding Dr. Naderi's leave of absence are reasonably calculated to lead to admissible evidence relating to plaintiff's claim that plaintiff's right to medical leave under FMLA and CFRA were interfered with and that plaintiff suffered retaliation for exercising his rights under FMLA and CFRA. You instructed Dr. Naderi not to answer this "line of questioning" even though no privilege was involved or invoked. This constitutes obstruction of plaintiff's deposition. In addition, several times at plaintiff's depositions from December 4 to 6, 2007, you improperly coached the deponents. In each instance, you were neither stating an objection nor instructing the witness not to answer. Once the deposition transcripts become available, plaintiff intends to move to compel responses to its questions and seek appropriate sanctions for your obstruction of plaintiff's depositions. If you wish to resolution ofthe above issues, please contact us. We would be open to your suggestions.
IV.
RECESS & CONTINUANCE OF DR. TAYLOR'S DEPOSITION
Despite the fact that plaintiff had scheduled Dr. Taylor's deposition almost one month ago, plaintiff were forced to recess the deposition of Dr. Taylor after only 3 hours because Dr. Taylor needed to return to the hospital. You stipulated to a continuance of Dr. Taylor's deposition to another time. Please let us know when would be mutually convenient for you and Dr. Taylor so that we can avoid having the same problem arising again with Dr. Taylor's schedule.
V.
POSSIBLE BREACH OF RULES OF PROFESSIONAL CONDUCT
During the deposition of Dr. Ravi Patel, you testified on the record that you had entered into an oral agreement to represent Dr. Patel as his attorney mere minutes before he entered the deposition room. As you know, Dr. Patel is not a director, officer or managing agent at KMC and is instead the proprietor of an outside contractor laboratory which does business with KMC. Dr. Patel stated on the record that he had not signed a conflict waiver with you. I direct your attention to California Rules of Professional Conduct Rule 3-31 O(B)(l): (B) A member shall not accept or continue representation of a client without providing written disclosure to the client where: (l) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter
2 MTC000078
To: 213-596-0487
From: Law Office OFFice of Eugene Lee
Case 1:07-cv-00026-OWW-TAG
Pg 4/ 4 12/10/07 2:52 pm
Document 83
Filed 01/09/2008
Page 113 of 207
Although I am not certain as to the above, I recommend you contact the California Ethics Board Hotline and inquire as to whether you may be in breach of Rule 3-310(B)(l) 3-31 O(B)( 1) and what steps you should undertake if such is the case. If! am incorrect, then I offer you my apologies.
Please do not hesitate to contact us with any questions.
, \j1~ \/1\ ,' I
JJ
~iJpENE D. LEE ~lJpENE cc:
Joan Herrington, Esq. V D.O., F.C.A.P. David F. Jadwin, D.G.,
3 MTC000079
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 114 of 207
EXHIBIT 12. DEFENDANTS’ PARTIAL PRIVILEGE LOG, 12/13/07
MTC000080
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 115 of 207
Eugene D. Lee From: Sent: To: Subject: Attachments:
Mark Wasser [[email protected]] Thursday, December 13, 2007 5:36 PM Eugene Lee Prviilege log Priviledge Log 11.30.07.doc
Gene, Here is the privilege log for the documents produced in the last production. We will update this for the documents we will produce next week. 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
MTC000081
PRIVILEDGE LOG Jadwin v. County of Kern, et al. Documents Produced in Response to Plaintiff’s Request for Production of Documents (Set One)
BATES NO.
DATE
TO
FROM
0005166 – 0005168 0005169
20022003
20022003
0005233 - 0005234 0005257
DOCUMENT TYPE Medical Record Suspension List Intense Analysis Action Plan Completion Medical Record Suspension List Intense Analysis Action Plan Completion Medical Record Suspension List Intense Analysis Action Plan Completion Medical Record Suspension List
0005202 - 0005203 0005204
CC
20022003
0005394
1
REASON FOR WITHOLDING/ REDACTING Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review Privileged Peer Review
MTC000082
BATES NO.
DATE
0007053 - 0007060
11/7/06
0007515 - 007521
3/6/06
0007747 - 0007749
11/7/07
0007837 - 0007841
8/22/07
TO
FROM
CC
DOCUMENT TYPE Deficient Charts by Days Outstanding Deficient Charts by Days Outstanding Proctoring Progress Report
Jennifer Abraham
Robert Wallace
0007930
Letter
Provider License Status
0008718 - 0008722
20002001
0008752 - 0008757
20002001
Summary of Annual Competency Ratings by Classification Summary of Annual Competency Ratings by Classification
2
REASON FOR WITHOLDING/ REDACTING Privileged Peer Review/Confidential Personnel Privileged Peer Review/Confidential Personnel Privileged Peer Review/Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel
MTC000083
BATES NO.
DATE
0008830 - 0008834
20002001
0008982 - 008895
20012002
0009336 - 0009337
7/2001 – 6/2002
0009336 - 009337
2003
0009341-0009342
2003
TO
FROM
CC
DOCUMENT TYPE Summary of Annual Competency Ratings by Classification Summary of Annual Competency Ratings by Classification Summary of Action Plans for Unsatisfactory Annual Performance Reviews Disciplinary Actions and Involuntary Terminations Summary of Annual Competency Ratings by Classification
3
REASON FOR WITHOLDING/ REDACTING Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel
Privileged Peer Review/Confidential Personnel Privileged Peer Review/Confidential Personnel
MTC000084
BATES NO.
0010925 - 0010926
DATE
3/3/03
TO
Peter H. Parra Barbara Patrick
0011034 - 0011038
FROM
Peter K. Bryan
CC
Marvin Kolb
Jose Perez
0011039-0011042
3/19/07
Members, Board of Supervisors
David K. Culberson
0011044
1/5/07
Ron Errea Fred Plane
David K. Culberson
0011048 0011049-0011067 Not pulled
12/7/06
0011068
3/16/07
Jon McQuiston David K. Don Maben Culberson Barbara Patrick Ray Watson Michael J. Rubio David K. Culberson Irwin Harris
0011101 - 0011125
8/06
Paul Esselman
0011140
DOCUMENT TYPE Memorandum
Memorandum
Ron Errea Bernie Barmann Karen Barnes Irwin Harris
Memorandum and Handwritten Notes Memorandum
Ron Errea E. Ladd
Memorandum
Candidate Presentation Memorandum re Salary
4
REASON FOR WITHOLDING/ REDACTING Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel
Privileged Confidential Personnel Privileged Confidential Personnel Privileged Confidential Personnel
MTC000085
BATES NO.
DATE
011078 - 11080
Not privileged 0011082 - 0011095
TO
FROM
David K. Culberson
CC
DOCUMENT TYPE Memorandum
1/31/06
Agreement for Professional Services – Independent Contractor
5
REASON FOR WITHOLDING/ REDACTING Privileged Confidential Personnel Privileged Confidential Personnel
MTC000086
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 121 of 207
EXHIBIT 13. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/14/07
MTC000087
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 122 of 207
Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Friday, December 14, 2007 11:10 AM [email protected] RE: Jadwin/KC: Discovery issues
Follow Up Flag: Flag Status:
Follow up Completed
Gene, I expect to produce the remaining documents before December 21, as I have anticipated. Our written response will be either before then or within a day or two after. I should know for sure early next week and will tell you. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 14, 2007 11:04 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Discovery issues
Mark, I understand and respect your position. But I ask your understanding that Plaintiff is under time constraints as well and has a duty to move this action forward. I am merely putting you on notice that Plaintiff will file a motion to compel if the dates previously mentioned are not adhered to. There is no ill will behind it, only increasing urgency driven by defendants’ numerous and endless delays. A motion is a waste of everyone’s time, but plaintiff must do what is necessary to prosecute this case diligently. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law Bl09 The Real Meaning of the Holidays O•••mb.c 25, 'II' From: Mark Wasser [mailto:[email protected]]
" . " " ,y "'''"'"''
Sent: Friday, December 14, 2007 10:16 AM 1
MTC000088
Case 1:07-cv-00026-OWW-TAG
To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Discovery issues
Document 83
Filed 01/09/2008
Page 123 of 207
Gene, The only point I want to respond to is your statement that you must “resort to threats in order to resolve this situation.” I was not aware that of your belief in this regard. Whatever “threats” you believe you are making have nothing to do with our position. You tend to default to a “threat” mode but our production and response will occur as we are able to make them and have nothing to do with whatever “threats” you perceive to be making. You should take whatever action you believe is appropriate. We will produce the documents and serve an updated written response as I have indicated. You have been flexible, yes. We appreciate that but, in a production the magnitude of this one, flexibility is required. It is a big task and will not happen any faster just because you make what you refer to as threats. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 14, 2007 9:55 AM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Discovery issues
Mark, We served our document production requests on Kern County on October 11, 2007, more than 2 months ago. We set a reasonable deadline of November 12, 2007. We have extended that deadline by more than a month to December 21, 2007 in an attempt to accommodate Kern County. We also agreed to forego the partial production deadline on December 5. I hope you will agree that we have tried to be flexible. Now you are saying that you may not be able to give us a response until after Dec. 21. We will extend the deadline for Kern County’s written responses to plaintiff’s production requests, set one to December 21, 2007. If we are not in receipt of the responses (including privilege logs) AND production by December 21, we will file a motion to compel. There will be no further extensions. Today is also the deadline for Peter Bryan’s responses to plaintiff’s document production requests. This represents a 2-week extension of the original deadline. If we are not in receipt of the responses AND production by end of business today, we will file a motion to compel. It is unfortunate that we must resort to threats of a motion in order to resolve this situation. However, we have a duty to prosecute this action diligently and we cannot allow discovery to drag on any more than it already has. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.com 2
MTC000089
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 124 of 207
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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.
California Labor" Emplo,ment Law 0109 Dukes v, Wal-Mart: 9th Circuit Upholds Class December 11, lOll From: Mark Wasser [mailto:[email protected]] n."" ,y " ' ' ' ' ' " ' '
Sent: Friday, December 14, 2007 9:22 AM To: [email protected] Subject: RE: Discovery issues. Gene,
I know you need an updated formal response. I do not want to do two more responses, however, and would like to cover everything in the next response. Since I have not had a chance to look through the 9 new boxes of documents the County sent me, I do not know what our response will be yet. As I have explained, there may be some categories for which there are no documents. I don’t know yet. I will give you a firm date for the next response when I see you on Tuesday. Although it is not conventional, the response may be after the production. I don’t know that yet, either. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 13, 2007 5:59 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Discovery issues.
Mark, Thanks for the email it is helpful. However, we still need formal revised responses to plaintiff’s requests for production, set one. Please let me know when you will provide these responses. We need a firm date. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
California Labor" Emplo,ment Law 0109 Dukes v, Wal-Mart: 9th Circuit Upholds Class December 11, 2111 3
n.""
'Y " ' ' ' ' ' " ' ' MTC000090
Case 1:07-cv-00026-OWW-TAG
Document 83
From: Mark Wasser [mailto:[email protected]] Sent: Thursday, December 13, 2007 4:52 PM To: Eugene Lee; Joan Herrington Subject: Discovery issues.
Filed 01/09/2008
Page 125 of 207
Gene, My assistant is out today and I am not technically proficient enough to send letters in her absence. So, this e-mail will have to suffice until she returns. I can put this in letter format then if you would prefer to have a letter. With regard to your letter of December 10, I anticipate sending you the privilege log this afternoon. There has been no “obstruction” of plaintiff’s depositions and your suggestion that there has been is not worthy of further comment. With regard to the depositions of Dr. Taylor and Dr. Naderi, I disagree with your characterization of what happened but I will review the transcripts when they become available and determine whether there is merit to your position. For example, my recollection of your line of questioning to Dr. Naderi is substantially different than yours. Rather than debate it now, I will look at the transcripts and address it then. Dr. Taylor’s deposition will be reset at a mutually convenient time. As you know, we offered to set it for next week but you decided – and I agreed – that doing so would be too ambitious given the other depositions that are already scheduled. The deposition will be reset when we can agree on a date to reset it. Regarding the objections we have asserted to some of your pending requests for production, I have read the cases you cited. They are good cases but they do not help you very much. The Third Circuit decision in General Nutrition, for example, recites the traditional rule that federal privileges apply to federal questions and state law privileges apply where state law provides the rule of decision. (671 F.2d at 103) Although you have alleged violations of civil rights under 42 U.S.C. 1983 and violations of FMLA and FSLA, you have made no connection between the documents you want and a federal question claim that would entitle you to have them. We find no authority that supports your broad contention that state law privileges do not apply in federal court. The Ninth Circuit’s opinion in Garrett v. City and County of San Francisco holds it is your burden to make the requisite showing. (818 F.2d at 1519) The contents of Royce Johnson’s personnel file, to take one example, is privileged under state law and, since he was never a department chair at KMC, cannot offer “comparator” information for any of your federal claims. The issues cannot be resolved by redaction because the documents in the file are, obviously, personal to Dr. Johnson. We find nothing in the cases you cite that requires disclosure of matters that are protected from disclosure by state-law privileges that apply to state-law claims just because Dr. Jadwin’s complaint contains unrelated federal claims. Although the Defendants will produce some documents in response to your requests No. 28, 32, 33, 36, 37, 38, 39, 40, 41, 52, 54, 60, 66, 67, 70, 71, 72 and 75, all those requests raise issues of state-law privilege and none appear to have any connection to any of Dr. Jadwin’s federal claims. Hence, to the extent there are state-law privileges, we see no reason why we cannot assert them. We are willing to discuss this with you and, if our analysis is incorrect, we will reconsider it. Again, our reading of Garrett indicates it is your burden to make the showing. Requests No. 55, 56, 57, 58, 65, 66, 67, 69, 70, 71, 72 and 78 all involve, at least to some extent, documents that contain information that is confidential under HIPAA, which, as you know, is a federal privilege. In many instances, the confidential information can be redacted and, where it can be, we will produce redacted documents. Where redaction will not adequately protect patient confidentiality, we may have no alternative but to object to the request. I received 8 more boxes of documents today and expect to receive another box tomorrow. I believe we remain on the schedule I have previously described and expect to do a supplemental production next week. It remains my belief that you will have all documents that are being produced before December 21. You have asked the Defendants to clarify the “state and federal laws” they are relying on in their objections. We are relying on California Evidence Code sections 1040 and 1157 and California authorities that establish the confidentiality of personnel records, HIPAA and federal authorities that recognize the physician-patient and peer-review privileges. Our analysis is basically set forth in this letter. I think this sums of where things stand. If you want to discuss this further, let me know. Mark
4
MTC000091
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 126 of 207
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]
5
MTC000092
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 127 of 207
EXHIBIT 14. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/17/07
MTC000093
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 128 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Tuesday, December 18, 2007 1:47 PM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Depo Continuance
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Thank you for speaking with me by phone yesterday. You never notified us in advance of the copy charge, which you have told me by phone is estimated to be $10,000 for copy costs associated with the Initial Disclosure, and the two document production installments. You are springing this issue on us just days before the production is due, which production date was extended numerous times from an original production date in November, and suggesting this as an excuse to hold up production yet again. You never previously raised the issue of copy cost regarding the initial disclosure which was produced back on August 6, 2006 (plaintiff’s Initial Disclosure was larger than defendants and should more than offset any cost incurred regarding defendants’ Initial Disclosure). You never mentioned any copy cost associated with the first production installment before yesterday on the phone (which was provided on CD-ROM – we’ve asked for the second installment on CD-ROM as well). $10,000 itself seems an exorbitant amount. I would also add that plaintiff has readily agreed to narrow the document production requests on numerous occasions to expedite matters for defendants. I fail to understand how defendants could have incurred such a substantial $10,000 copy charge without first meeting and conferring with plaintiff. Yesterday was the first I had heard you mention any cost estimate, let alone $10,000. Plaintiff will pay the copy cost reimbursement you have requested so that the production can proceed, but will do so under protest, reserving the right to bring a motion regarding this issue at a later date. Yesterday, I requested you send me the reimbursement receipts as soon as possible. You had stated you would not produce any documents until you were in receipt of payment. I still have yet to receive them. Please send me the invoice ASAP so we can remit payment immediately. You have repeatedly stated that defendants would produce the documents before Friday, December 21. Let’s ensure that happens. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1
MTC000094
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 129 of 207
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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights? o•• emb.c U, 'II' " ... " ,y ...oo,,".. From: Mark Wasser [mailto:[email protected]]
Sent: Monday, December 17, 2007 10:24 AM To: [email protected] Subject: RE: Jadwin/KC: Depo Continuance Gene, Good point, I forgot that. I feel foolish.
We will produce the remaining 9 boxes of documents as soon as you reimburse the County for the photocopying charges incurred to date. The cost of the reproduction for initial disclosures was $193.76. The cost of the first production, in response to your request for production, which we have already made, was $3557.43. This second production, consisting of 9 boxes, will be more than twice that. We will get an estimate of the reproduction costs of the second production today or tomorrow and forward the estimate to you. Upon receipt of your check for $193.76 plus $3557.43 plus the estimate of the cost of the second production, we will proceed to have the 9 boxes copied and delivered to you. Also, Peter Bryan lives and works in Oakland, as you know. The County agreed to produce him, at the County’s cost, in Bakersfield for his deposition tomorrow. As I told you when we talked on our cellphones over the weekend, Mr. Bryan went to Bakersfield on Friday in anticipation of his deposition. He is there now. Since you did not cancel the depositions until after he had arrived in Bakersfield, there was no way I could stop his trip. The County will not produce Mr. Bryan in Bakersfield at County expense again. When you reset his deposition, it will either have to be in Oakland or the County will require prepayment of his travel expenses to Bakersfield. Mark From: Eugene D. Lee [mailto:[email protected]] Sent: Sunday, December 16, 2007 1:22 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Depo Continuance
Mark, We spoke twice yesterday about this, but to remove all doubt – Plaintiff is continuing this week’s depositions to a later date. Kinko’s is already working on creating new sets of deposition exhibits which should be ready by this Friday. The cost of the exhibits is roughly $1,400 for 3 sets of copies. One of those sets is for your use. We’ll send you an invoice separately for roughly $470. Have a good rest of the weekend. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 2
MTC000095
Case 1:07-cv-00026-OWW-TAG
TDocument e l : ( 2 1 3 ) 9 983 2 - 3 2 9Filed 9 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com
01/09/2008
Page 130 of 207
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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.
Califocnia Laboc & Emplo,ment Law 0109 Dukes v, Wal-Mart: 9th Circuit Upholds Class
" ..." ,y "'oo,,"..
3
MTC000096
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 131 of 207
EXHIBIT 15. SUPPLEMENTED RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION SET ONE (“Response 2”), 12/19/07
MTC000097
Dec Dec 19 19 07 07 02:49p 02:49p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1 p.1
Page 132 of 207
The Law Offices of Mark A. Wasser 400 400 Capitol Mall, Suite 1100 Sacramento, Sacramento, California 95814 Office: Office: 916-444-6400
Fax: Fax: 916-444-6405
Fax To:
Eugene Lee
From: MarkWasser
Fax: Fax:
(213) 596-0487
Pages: 38 (including cover page)
Phone: (213) 992-3299
Date:
Re:
CC:
Jadwin v. County of Kern
D Urgent D
D For Review
D Please Comment
December 19, 2007
0 Please Reply
D Please Recycle
• Conunents: Please see attached Defendants' Supplemental Responses.
MTC000098
Case 1:07-cv-00026-OWW-TAG
2
3
4 5
6
7 8
p.2
916-444-6405
Mark Wasser
Dec 19 07 02:50p
Document 83
Filed 01/09/2008
Page 133 of 207
Mark 1\. Wasser CA S8 #60160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 11 00 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasseLcom Bernard C. Barrnann, 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]
9 10
II
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
12 13
UNITED STATES DISTRICT COURT
14
EASTERN DISTRICT OF CALIFORl\-IA
15 16
I7 18
19 20
) Case No.: 1:07-cv-00026-0WW-TAG ) DEFENDANTS' SUPPLEMENTAL 5 RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) ) ) Date Action Filed: January 6, 2007 Trial Date: August 26, 2008
DAVID F. JADWIN, D.O. Plaintiff, vs.
5
COUNTY OF KERN, et al.,
l
Defendants.
21
) ) )
22 23 24
PROPOUNDING PARTY:
Plaintiff DAVID F. JAD"WIN, D.O., F.C.A.P.
25
RESPONDING PARTY:
Defendant COUNTY OF KER!'i
26
SET NUMBER:
ONE (1)
27 28 I DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000099
Dec Dec 19 19 07 07 02:50p 02:50p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
11
916-444-6405 916-444-6405
Document 83
Filed 01/09/2008
p.3 p.3
Page 134 of 207
Defendants hereby submit these responses to PlaintifTDavid f. Jadwin's Request for
22
Production of Documents, Set One. Defendants have not located all the dlJ~uments that are
33
responsive to this request and, for that reason, many of the production dates set forth herein are
44
estimates. estimates. Defendants will supplement or amend this response, if necessary, as additional
55
documents are located and reviewed.
66
REQUEST FQR PRQDUCTION NO.1
77
Any and all DOCUMEKTS RELATING TO the First Affirmative Defense listed in
88
Defendants' Defendants' Answer to Plaintiffs Second Supplemental Complaint.
99
RESPONSE RESPONSE TO REQUEST NO.1
10 10
Defendants object to this request on the grounds that it calls for the production of
11 11
documents that are protected by the attorney-work-product and attorney-client privileges.
12 12
Without waiving those objections, after diligent search, Defendants have not bcen able to locate
13 13
any documents Lhat are responsive to this request.
14 14
REQUEST FOR PRQDUCTION NO.2 REQUEST
15 15
Any and all DOCUMENTS RELATING TO the Second Affumative Defense listed in
16 16
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
17 17
RESPONSE TO REQUEST NO.2
18 18
Defendants object to this request on the grounds that it calls for the production of
19 19
documents that are protected by the attorney-work-product and attorney-client privileges.
20 20
Without waiving those objections, after diligent search, Defendants have not been able to locate
2I 2I
any doclilllents that arc responsive to this request.
22 22
REQUEST FOR PRODUCTION NO.3 REQUEST
23 23
Any and all DOCUMENTS RELATING TO the Third Affirmative Defense listed in
24 24
Defendants' Answer to Plaintiff s Second Supplemental Complaint. Defendants'
25 25
RESPONSE TO REQUEST NQ. 3 RESPONSE
26 26
Defendants object to this request on the grounds that it calls for the production of
27 27
documents that are protected by the attomey-work-product and attorney-client privileges. documents
28 28
2
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000100
Dec 19 07 02:51 p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
pA
Page 135 of 207
1
Without waiving those objections, after diligent search, Defendants have not been able to locate
2
any documents that arc responsive to this request.
J
REOUEST FOR PRODUCTION NO.4
4
Any and all DOCUMENTS RELATlNG TO the Fourth Affirmative Defense listed in
5
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
6
RESPONSE TO REQUEST NO.4
7
Defendants object to this request on the grounds that it calls for the production of
8
documents that ate protected by the attomey-work-product and attorney-client privileges.
9
Without waiving those objections, after diligent search, Defendants have not been able to locate
10
any documents that are responsive to this request.
11
REOUEST FOR PRODUCTION NO.5
12
Any and all DOCUMENTS RELATING TO the Fifth Affirmative Defense listed in
13
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
14
RESPONSE TO REQUEST NO.5
15
Defendants object to this request on the grounds that it calls for thc production of
16
doclunents that are protected by the attorney-work-product and attorney-client privileges.
17
Without waiving those objections, Defendants will produce all non-privileged documents
18
responsive to this request on or hefore December 21, 2007, depending on receipt of
19
reimbursement for estimated copy costs.. This request is duplicative of other requests contained
20
in Plaintiff's request for production, set one, and thc documents produced in response to this
21
request may refer to the documents produced in response to other requests.
22
REQUEST FOR PRODUCTION NO.6
23
Any and all DOCUMENTS RELATING TO the Sixth Affirmative Defense listed in
24
Defendants' Answer to Plaintiffs Second Supplemental Complaint.
25
RESPONSE TO REQUEST NO.6
26
Defendants object to this request on the grounds that it calls for the production of
27
doclunents that ate protected by the attorney-work-product and attorney-client privileges.
,
28 3
DEFENDANTS' SUPPLEMENTAL RESPOl\SES TO PLAINTIFF'S REQUEST FOR PRODUCT10:-.J OF DOCUMEKTS
MTC000101
Dec Dec 19 19 07 07 02:51 02:51 pp
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.5 p.5
Page 136 of 207
11
Without Without waiving those objections, after diligent search, Defendants have not been able to locate
22
any documents that are responsive to this request.
33
REOUEST FOR PRODUCTIOl'" NO.7
44
Any and all DOCUMENTS RELATING TO the Seventh Affirmative Defense listed in
55
Defendants' Defendants' Answer to Plaintiffs Second Supplemental Complaint.
66
RESPONSE TO REQUEST l'0. 7
77
Defendants object to this request on the grounds that it calls for the production of
88
documents documents that are protected by the attorney-work-product and attorney-client privileges.
99
Without Without waiving those objections, after diligent search, Defendants have not been able to locate
10 10
any any documents that arc responsive to this request.
11 11
REQUEST FOR PRODUCTION NO.8
12 12
Any and all DOCUMENTS RELATIKG TO the Eighth Affinnative Defense listed in
13 13
Defendants' Answer to Plaintiffs Second Supplemental Complaint. Defendants'
14 14
RESPONSE TO REQVEST NO.8
15 15
Defendants object to this request on the grounds that it calls for the production of
16 16
documents that are protected by the attomey-work-product and attomey-client privileges. documents
17 17
Without waiving those objections. Defendants will produce all non-privileged documents Without
18 18
responsive to this request on or before December 21, 2007. depending on receipt of responsive
19 19
reimbursement tor estimated copy costs. This request is duplicative of other requests contained reimbursement
20 20
in Plaintiff s request for production, set one, and the documents produced in response to this in
21 21
request may refl::r to the documents produced in response to other requests, request
22 22
REQUEST FOR PRODUCTION NO.9
23 23
Any and all DOCUMENTS RELATING TO the Nintb Affirmative Defense listed in
24 24
Defendants' Answer to Plaintiff's Second Supplemental Complaint. Defendants'
25 25
RESPONSE TO REQUEST NO.9
26 26
Defendants object to lhis request on the grounds that it calls for the production of
27 27
documents that are protected by the attomey-work-produet and attorney-client privileges. documents
28 28 4
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUME:-lTS
MTC000102
Dec Dec 19 19 07 07 02:51 02:51 pp
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p,6 p,6
Page 137 of 207
11
Without waiving those objections, after diligent search, Defendants' have not been able to locate
22
any any documents that are responsive LO this request
33
REQUEST FOR PRODUCTION NQ. 10
44
Any and all DOCUYlENTS RELATING TO YOUR organizational structure during
55
Plaintiff's employment with YOU, including but not limited to organizational charts, diagrams
66
and drawings.
77
RESPONSE TO REQUEST NO. 10
88 99
Defendants will produce all documents responsive to this request. Production is expected to be complete on or about December 21, 2007. depending on receipt of reimbursement for
10 10
estimated copy costs.
11 11
REQVEST FOR PRODUCTION NO. 11
12 12
Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories
13 13
or lists, including but not limited to names, direct work phone numbers, departments, etc, which
14 14
were maintained by YOU during Plaintiff's employment with YOU.
15 15
RESPO:'llSE TQ REQVEST NO. 11
16 16
Defendants will produce all non-privileged documents responsive to this request.
17 17
Production is expected to be complete on or about December 21, 2007, depending on receipt of Production
11R R reimbursement for estimated copy costs. Defendants will redact privileged information as 19 19
appropriate,
20 20
REQUEST FOR PRODUCTION NO. 12
21 21
Any and all DOCUMENTS RELATING TO YOUR persomlel policies, guidelines, fact
22 22
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or sheets,
23 23
employer manuals maintained by YOU that YOU c.ontend governed Plaintiffs terms and
24 24
conditions of employment at any time during the period from October 1, 2000 to October 4,
25 25
2007. These include but are not limited to YOUR ordinances, Kern Medical Center's
26 26
Administrative Procedures Manual, Kern Medical Center's Policy & & Administrative Procedures
27 27
Manual, policies RELATING TO disabilily discrimination, reasonable accommodation,
28 28
interactive process, personal leave, administrative leave, medical leave, retaliation, investigations
5 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000103
Dec Dec 19 19 07 07 02:52p 02:52p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405 916-444-6405
Document 83
Filed 01/09/2008
p.7 p.7
Page 138 of 207
11
into complaints of un lawful employment practices, discipline of employees, investigation of
22
employees, appointment of Kern Medical Center acting department chairs, hiring of Kern
33
Medical Center department chairs, demotion of Kern Medical Center department chairs, and
44
policies policies RELATING TO Kern Medical Center's Pathology Department.
55
RESPONSE TO REQUEST NO. 12
66
Defendants object to this request to the extent it requests documents that contain
77
confidential confidential personnel infonnation, documents protected from disclosure by state or federal law,
SS
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
99
subject to the attorney-client privilege. Without waiving these objections, Defendants will
10 10
produce produce documents responsive to this request by December 21, 2007, depending on receipt of
11 11
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
12 12
personnel personnel information as appropriate.
13 13
REQUEST FOR PRODUCTION NO. 13
14 14
Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
15 15
sheets, posters, employee and/or employer handbooks, training materials, and employee and/or sheets,
16 16
employer manuals maintained by YOU that YOU contend was distributed or made available to employer
17 17
YOUR employees, whether management or non-management, from October 24,2000 to the YOUR
18 18
present and the date of such asserted distribution. These include but are not limited to YOCR present
19 19
ordinances, Kern Medical Center's Administrative Procedures Manual, Kern Medical Center's ordinances,
20 20
Policy & Administrative Procedures Manual, policies RELATING TO disability discrimination, Policy
21 21
reasonable accommodation, interactive process, personal leave, administrative leave, medical reasonable
22 22
leave, retaliation, investigations into complaints of unlawful employment practices, discipline of leave,
23 23
employees, investigation of employees, appointment of Kern Medical Center acting department employees,
24 24
chairs, hiring of Kern Medical Center department chairs, demotion of Kern Medical Center chairs,
25 25
department chairs, and policies RELATING TO Kern Medical Center's Pathology Departmcnt. department
26 26
RESPONSE TO REQUEST NO. 13 RESPONSE
27 27
Defendants object to this request to the extent it requests documents that contain
28 28
confidential personnel infonnation, documents protected from disclosure by state or federal law, 6 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000104
Dec Dec 19 19 07 07 02:52p 02:52p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.8 p.8
Page 139 of 207
11
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
22
subject to the attorney-clicnt privilege_ Without waiving these objections, Defendants will
33
produce documents responsive to this request by December 21, 2007, depending on receipt of
44
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
55
personnel information as appropriate.
66
REQUEST FQR PRODUCTION NO. 14
77
Any and all DOCU::VrENTS RELATING TO peer review, quality management and
88
quality assurance policies and procedures at Kern Medical Center, included but not limited to
99
Kern Medical Center's Quality Management and Performance Improvement Plan, from October
10 10
24, 2000 to thc present, and the effective dates.
II II
RESPONSE TO REOUEST NO. 14
12 12
Defendants object to this request to the extent it requests documents that contain
13 13
confidential personnel information, documents protected from disclosure by state or federal law,
14 14
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
15 15
subject to the attorney-client privilege. Without waiving these objections, Defendanls will
16 16
produce documents responsive to this request by December 21, 2007, depending on receipt of
17 17
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
18 18
personnel information as appropriate.
19 19
REQUEST FOR PRODUCTION NO. 15
20 20 21 21
Any and all DOCUMENTS RELATING TO any training provided by YOU to YOUR officers, directors, agents or employees on the following subjects: officers,
22 22
a) disability discrimination
23 23
b) accommodation of an employee's disability
24 24
c) the interactive process regarding accommodation of an employee's disability
25 25
d) medical leave rights
26 26
e) whistleblower retaliation
27 27
f)f) l11edicalleavc retaliation
28 28
g) due process required for demotion
7 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000105
Dec 19 07 02:53p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.9
Page 140 of 207
h) due process required for pay cut 2
i) due process required for termination of employment
3
j) defamation
4
k) Fair Labor Standards Act
5
RESPONSE TO REQUEST NO. 15
6
Defendants object to this request to the extent it requests documents that contain
7
confidential personnel information, documents protected from disclosure by state or federal law,
8
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
9
subject to the attorney-client privilege. Without waiving these objections, Defendants will
10
produce documents responsive to this request by December 21, 2007, depending on receipt of
11
reimbursement for estimated copy costs. Defendants will redact privileged information, if any,
12
as appropriate.
13
REQUEST FOR PRODUCTION NO. 16 Any and all DOCUMENTS RELATIKG To the PERSONNEL FILES ofthe following
14
15
people.
16
a) Plaintiff David F. Jadwin
17
b) ElsaAng
18
c) Ellen B1Jllyi-Teopengco
19
d) Philip Dutt
20
e) Carol Gates
21
f) Adam Lang
22
g) Fangluo Liu
23
h) Savita Shertukde
24
i) Navin Amin
25
j) Kathy Griffith
26
k) Alice Hevle
27
I) Denise Long
28
m) Gilbert Martinez 8 DEFENDA~TS'
SUPPLEME'HAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000106
Dee 19 07 02:53p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.10
Page 141 of 207
n) Albert McBride
2
0) Javad Naderi
3
p) Jane Thornton
4
q) Nitin Athavale
5
r) ChesterLau
6
s) Jennifer J. Abraham
7
t) Bernard C. Barmann
8
u) Karen S. Barnes
9
v) Peter K. Bryan
10
w) David Culberson
11
x) Irwin E. Harris
12
y) Royce Johnson
13
z) Eugene K. Kercher
14
aa) Alan Scott Ragland
15
bb) William Roy
16
ee) Maureen Martin
17
dd) Steven O'Connor
18
ee) Antoinette Smith
19
ff) Edward Taylor
20
gg) Marvin Kolb
21
00) Dianne MeConnehey
22
ii) RenitaNunn
23
jj) Ravi Patel
24
kk) Jose Perez
25
11) Evangeline Gallegos
26
nun)
27
illl)
28
00) James Sproul
Sergio Pertieueci
Bonnie Quinonez
9 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000107
Dec 19 07 02:53p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.11
Page 142 of 207
pp) Rebecca Rivera 2
qq) Sheldon Freedman
3
rr) Joseph Mansour
4
ss) George Alkouri
5
tt) Nicole Sharkey
6 7
RESPONSE TO REQUEST
~Q.
16
Defendants have already produced the personnel file of David F. Jadwin. Defendants
8
will confirm 1hat the personnel file previously produced was complete as of the time of its
9
production and, on or before December 21, 2007, will augment the documents previously
10
produced with any additional materials, if any, that have been added into Dr. Jadwin's pcrsonnel
II
file since the file was produced. Plaintiff has narrowed the scope oftrus request by eliminating
12
all other documents initially requested.
13
REQUEST FOR l'RODLTTIQN NQ. 17
14
Any and all DOCUMENTS RELATING TO the search, recruitment, application,
IS
interviewing, and hiring process that resulted in Plaintiffs employment by YOU.
16
RESPONSE TO REOUEST
~O.
17
17
Defendants object to this request to the extent it requests documents that contain
18
confidential personnel information, documents protected from disclosure by state or federal law,
]9
including HIPAA, the peer·rcview privilege and the personnel privilege, and documents that are
20
subject to the attomey·client privilege. Without waiving these objections, Defendants will
21
produce all documents responsive to this request by December 21, 2007, depending on receipt of
22
reimbursement for estimated copy costs. Defendants will redact privileged information, if any,
23
as appropriate.
24
REQUEST FOR PRODUCTION ~O. 18
25
Any and all DOCUMENTS RELATl)lG TO the tem1s, conditions and privileges of
26
Plaintiff's employment with YOU.
27
RESPONSE TO REQUEST NQ. 18
28 10 DEFENDA='fTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000108
Dec 19 07 02:54p
Case 1:07-cv-00026-OWW-TAG
p.12
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Page 143 of 207
Defendants will produce all documents responsive to this request by December 21,2007, 2
depending on receipt of reimbursement for estimated copy costs.
3
REOUEST FOR PRODUCTION NO. 19
4
Any and all DOCUMENTS RELATING TO Plaintiff's job duties and responsibilities for
5
each position held by Plaintiff during this employment with YOU.
6
RESPONSE TO REOUEST NO. 19
7
Defendants will produce all documents responsive to this request by December 21,2007,
8
depending on receipt of reimbursement for estimated copy costs.
9
REQUEST FOR PRODUCTION NO. 20
10
Any and all DOCUMENTS RELATING TO Plaintiffs payroll, compensation, base
11
salary and "professional fee payments", as that term is defined in Plaintiffs employment
12
contracts with YOU, including but not limited to any and all changes in compensation and the
13
reasons for changes, throughout Plaintiffs employment with YOU.
14
RESPONSE TO REQUEST NO. 20
15
Defendants will produce all documents responsive to this request by December 21,2007,
16
depending on receipt of reimbursement for estimated copy costs.
17
REQUEST FOR PRODUCTION NO. 21
18
Any and all DOCUMENTS RELATING TO YOUR policies, guidelines and practices
19
regarding base salary steps, salary guidelines, deferred compensation plans, pension plans, health
20
insurance and employment benefits applicable to Plaintiffs position s held throughout his
21
employment with YOU.
22
RESPONSE TO REQUEST NO. 21
23
Defendants will produce all documents responsive to this request by December 21, 2007,
24
depending all receipt of reimbursement for estimalcd copy costs.
25
REQUEST FOR PRODUCTION NO. 22
26
Any and all DOCUMENTS RELATr:.JG TO Plaintiffs work schedule and/or removal
27
there from, including but not limited to timesheets, from October 24,2000 to present.
28
RESPONSE TO REQUEST NO. 22 11
DEFENDANTS' S1JPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000109
Dec Dec 19 19 07 07 02:54p 02:54p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.13 p.13
Page 144 of 207
Defendants will produce all documents responsive to this request by December 21,2007, 22
depending on receipt of reimbursement for estimated copy costs.
33
REQUEST REQUEST FOR PRODVCTION NO. 23
44
Any and all DOCUMENTS RELATING TO Dr. Phillip Dutt's timesheets, from April 20
55
2005 2005 to the present.
66
RESPONSE RESPONSE TO REOUEST KO. 23
77
Defendants will produce all documents responsive to this request by December 21, 2007,
88
depending depending on receipt of reimbursement for estimated copy costs. Defendants will redact
99
privileged privileged information, if any, as appropriate.
10 10 11 11
REQUEST REQUEST FOR PRODUCTION NO. 24 Any and all DOCUMENTS RELATING TO Dr. Savita Sheltukde's timesheets, from
JJ22
January 4, 2005 to present.
13 13
RESPONSE TO REOUEST NO. 24 RESPONSE
14 14
Defendants will produce all documents responsive to this request by December 21, 2007,
15 15
depending on receipt of reimbursement for estimated copy costs. Defendants will redact depending
16 16
privileged infonnation, if any, as appropriate. privileged
17 17
REOUEST FOR PRODUCTION NO. 25 REOUEST
18 18
Any and all DOCUMENTS RELATING TO performance reviews, comments,
19 19
complaints, warnings, reprimands, counseling, advisory notices or evaluations of Plaintiffs complaints,
20 20
performance of his job duties throughout his employment with YOU, whether formal or performance
21 21
informal. informal.
22 22
RESPONSE TO REOUEST NO. 25 RESPONSE
23 23
Defendants object to this reql~esllo the extent it requests documents that contain
24 24
information protected by the attorney-client privilege. Without waiving that objection, information
25 25
Defendants will produce all documents responsive to this request by December 21,2007, Defendants
26 26
depending on receipt of reimbursement for estimated copy costs. Defendants will redact depending
27 27
privileged infonnation, if any, as appropriate. privileged
28 28 12 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLANTIFF'S REQUEST FOR PRODUCTION OF DOCUYIENTS
MTC000110
Dec 19 07 02:54p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
p.14
916-444-6405
Document 83
Filed 01/09/2008
Page 145 of 207
REOUEST FOR PRODUCTION NO. 26 Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his
3
employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, wrillen
4
materials, and computer files stored on Plaintiffs computer at Kern Medical Center's servers.
5
RESPONSE TO REQUEST NO. 26
6
Defendants object to this request to the extent it requests documents that contain
7
confidential persoIlllel information, documents protected from disclosure by state or federal law,
8
including HIP AA, the peer-review privilege and the persoIlllel privilege, and documents that are
9
subject to the attorney-client privilege. After diligent search, Defendants believe Groupwise
10
calendar information was deleted many months ago as part of the routine 90-day cycling of the
11
Groupwise software. Defendants are continuing to search for matcrials that were on the
12
computer that was assigned to Plaintiff. Some material was archived before the computer was
13
reassigned and Defendants will produce copies of the material that was archived by December
14
21,2007, depending on receipt of reimbursement for estimated copy costs. Defendants ...'ill ""ill
15
redact privileged information, if any, as appropriate.
16
REOUEST FOR PRODUCTION NO. 27
17
Any and all DOCUMENTS RELATII\G TO any meetings RELATING TO Plaintiff or
18
Plaintiff s employment at Kern Medical Center.
19
RESPONSE TO REQUEST NO. 27
20
Defendants object to this request to the extent il requests documents that contain
21
information protected by the attorney-client privilege. Without waiving that objection,
22
Defendants will produce documents responsive to this request by December 21, 2007, depending
23
on receipt of reimbursement for estimated copy costs. Defendants "Will redact privileged
24
information, if any, as appropriate.
25
REQUEST FOR PRODUCTION NO. 28
26 27
Any and all DOCUMENTS RELATING TO perfonnance reviews, comments, complaints, warnings, reprimands, counseling, advisory notices or evaluations of the Kern
28 13 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000111
Dec 19 07 02:55p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.15
Page 146 of 207
Medical Center Pathology Department, whether formal or informal, from October 24, 1995 to 2
the present.
3
RESPONSE TO REQUEST NO. 28
4
Defendants object to this request to the extent it Jequests documents that contain
5
confidential personnel information, documents protected from disclosure by state or federal law,
6
including HIPAi"., the peer-review privilege and the personnel privilege, and documents that are
7
subject to the attorney-client privilege. Without waiving that objection, Defendants will produce
8
documents responsive to this request by December 21, 2007, depending on receipt of
9
reimbursement for estimated copy costs. Defendants will redact privileged information, if any,
10
as appropriate.
II
REQUEST FOR PRODUCTION NO. 29
12
Any and all DOCUMENTS RELATING TO Plaintiff's complaints of:
13
a) disability discrimination
14
b) failure to accommodate
15
c) failure to engage in an interactive process
16
d) violation of medical leave rights
17
e) whistleblower retaliation
18
f) medical leave retaliation
19
g) deprivation of property without due process
20
h) defamation
21
i) Fair Labor Standards Act violations
22 23
RESPONSE TO REQUEST NO. 29 Defendants object to this request to the extent it requests documents that contain
24
information protected by the attorney-client privilege. Without waiving that objection,
25
Defendants will produce documents responsive to this request by December 21, 2007, depending
26
on receipt of reimbursement for estimated copy costs. Defendants will redact confidential peer
27
review and persomlel information as appropriate.
28 14 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000112
Dec 19 07 02:55p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.16
Page 147 of 207
REOUEST FOR PRODUCTION NO. 30 2
Any and all DOCUMENTS RELATING TO any investigation of Plaintiffs complaints
3
of disability discrimination, failure to accommodate, failure to engage in an interactive process,
4
violation of medical leave rights, whistleblower retaliation, medical leave retaliation, defamation,
5
and/or deprivation of property \vithout due process.
6
RESPONSE TO
7
REOL~ST NO.
30
Defendants object to tbis request to the extent it requests documents that contain
8
information protected by the attorney-client privilege. Without waiving that objection,
9
Defendants wiII produce documents responsive to this request by December 21,2007, depending
10
on receipt ofreimbursement for estimated copy costs. Defendants will redact confidential peer
11
review and personnel information as appropriate.
12
REOUEST FOR PRODUCTION NO. 31
13
Any and all DOCUMENTS RELATIKG TO any procedures available to YOUR
14
employees to complain of corruption, fraud and other wrongful, illegal or unethical conduct, that
15
YOU contend was distributed or made available to YOUR employees, whether management or
16
non-management, from October 24,2000 to the present, and the date of such asserted
17
distributi on(s).
18
RESPONSE TO REOUEST NO. 31
19
Defeudants will produce all documents responsive to this request by December 21,2007,
20
depending on receipt ofreimbursement for estimated copy costs.
21
REOUEST FOR PRODUCTION NO. 32
22
Any and all DOCUMENTS RELATING TO YOUR discipline of any employee against
23
whom a complaint or grievance of discrimination, harassment, defamation, retaliation, failure to
24
accommodate, and/or failure to engage in an interactive process in their employment was made
25
from October 24, 2000 to date.
26
RESPONSE TO REQUEST NO. 32
27 28
Defendants objccllo this request all the grounds that it requests documents that contam confidential personnel information, documents protected from disdosure by state or federal law, 15
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000113
Dec 19 07 02:56p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.17
Page 148 of 207
including H[P1\1\, the peer-review privilege and the personnel privilege, and documents that 2
contain information protected by the attorney-client privilege. Defendants do not believe these
3
objections can be resolved by redaction. Defendants also object on the grounds that the request
4
is not reasonably calculated to lead to the discovery of admissible evidence.
5
REOUEST FOR PRODUCTION NO. 33
6
Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR
7
past or present employees against YOU for defamation, retaliation, disability discrimination,
S
failure to accommodate, and/or failure to engage in an interactive process, including but not
9
limited to any infonnal or internal complaints, grievances or charges to any state or federal
10
agency, and complaints filed in any state or federal court from October 24,2000 to date.
II
RESPONSE TO REOUEST NO. 33
12
Defendants object to this request on the grounds that it calls for the production of
13
documents that contain confidential personnel information that is not relevant to any issues in
14
this case, Consequently, this request is not reasonably calculated to lcad to the discovery of
15
admissible evidence. Defendants also object on the ground that the phrase, "informal or internal
16
complaints" is vague and, depending on interpretation, could include any off-hand gripe by any
17
employee, to the extent it was memorialized in writing. Defendant County of Kcrn employs
18
several thousand employees. In the past seven years, there could be many documents that fit the
19
description of this request yet none have anything to do with the issues in this case. This request
20
is, accordingly, overbroad and burdensome. Defendants do not believe redaction would resolve
21
these objections.
22
REOUEST FOR PRODUCTION NO. 34
23
Any and all DOCUMENTS RELATI'JG TO any complaints or grievances made to YOU
24
by Plaintiff.
25
RESPONSE TO REQUEST NO. 34
26
Defendants believe all documents responsive to this reques! have been previously
27
produced. Defendants will confirm this or prodnce additional documents, if there arc any, by
28
December 21,2007, depending on receipt of reimbursement for estimated copy costs.
16 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000114
Dec 19 07 02:56p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
p.18
916-444-6405
Document 83
Filed 01/09/2008
Page 149 of 207
REOUEST FOR PRODUCTION NO. 35 Any and all DOCUMENTS RELATING TO Plaintiff which YOU sent to or received
3
from any governmental or regulatory authority, including but not limited to the California
4
Department of Fair Employment and Housing, the California Labor and Workforce Developmen
5
Agency, and the U.S. Department of Labor.
6
RESPONSE TO REOUEST NO. 35
7
Defendants believe all documents responsive to this request have been previously
8
produced. Defendants will confirm this or produce additional documents, if there are any, by
9
December 21, 2007, depending on receipt of reimbursement for estimated copy costs.
10 11
REOUEST FOR PRODUCTION NO. 36 Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
12
evaluation of candidates for the position of staff pathologist at Kern Medical Center during the
13
period from January 1, 2006 to present.
14
RESPONSE TO REQUEST ]\"0. 36
15
Defendants object to tllis request on the grounds that it calls for the production of
16
documents that contain confidential personnel infonl1ation that is not relevant to any issues in
17
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
20
privilege, and documents that contain information protected by tht: attorney-client privilege.
21
After review of the documents potentially responsive to this request, Defendants have
22
detennined that the burden of redacting privileged information outweighs the l11atginal relevancy
23
of the remaining information in the documents.
24
REQUEST FOR PRODUCTION NO. 37
25
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
26
evaluation of candidates for the position of Chair or Chief of Pathology at Kern Medical Center
27
during the period from January 1, 2006 to present.
28
17 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000115
Dec 19 07 02:56p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
916-444-6405
Document 83
Filed 01/09/2008
p.19
Page 150 of 207
RESPONSE TO REQUEST NQ. 37 Defendants object to this request on the grounds that it calls for the production of
3
documents that contain confidential personnel infOlmation that is not relevant to any issues in
4
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
5
Defendants also object to this request to the extent it requests information protected from
6
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
7
privilege, and documents that contain information protected by the attorney-client privilege.
S
\Vithout waiving those objectiono, after diligent scarch, Defendants have not been able to locate
9
any documents that are responsive to this request.
10 11
REQUEST FQR PRODUCTION NO. 38 Any and all DOCUMENTS RELATING TO YOUR search for, recruitment, of and
12
evaluation of candidates for the position oflocum tenens pathologist at Kern Medical Center
13
during the period from January 1, 2006 to present.
14
RESPONSE TO REQUEST NO. 38
IS
Defendants object to this request on the grounds that it calls for the production of
16
documenlo that contain confidential personnel information that is not relevant to any issues in
17
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
20
privilege, and documents that contain information protected by the attorney-client privilege.
21
After review of the documents potentially responsive to this request, Defendants have
22
determined that the burden of redacting privileged information outweighs the marginal relevancy
23
of the remaining information in the documents.
24
REQUEST FOR PRODUCTION NO. 39
25
Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
26
evaluation of candidates for the position of Chair or Chief of OB-G YN at Kern Medical Center
27
during the period trom January 1, 2006 to present.
28 18
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMEKTS
MTC000116
Dec 19 07 02:57p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.20
Page 151 of 207
RESPONSE TO REOUEST NO. 39 2
Defendants object to this request on the grounds that it calls for the production of
3
documents that contain confidential personnel information that is not relevant to any issues in
4
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
5
Defendants also object to this request to the extent it requests information protected from
6
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
7
privilege, and documents that contain infonnation protected by the attorney-client privilege.
S
After review of the documents potentially responsive to this request, Defendants have
9
determined that the burden of redac1ing privileged information outweighs the marginal relevancy
10
of the remaining information in the documents.
11
REOUEST FOR PRODUCTION :\'0.40
12
Any and all DOCUMENTS RELATING TOYOURremoval of Dr. Royce Johnson from
13
the position of Chair or Chief of Medicine at Kern Medical Cmter.
14
RESPONSE TO REQUEST NO. 40
15
Defendants object to this request on the grounds that it calls for the production of
16
documents that contain confidential personnel information Ihat is not relevant to any issues in
l7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
18
Defendants also object to this request to the extent it requests information protected from
19
disclosure by state or federal law, including HIP AA and the peer review privilege, and
20
documents that are subject to the attomey-client privilege.
21
REQUEST FOR PRODUCTION NO. 41
22
Any and all DOCUMENTS RELATL"lG TOYOUR search for, recruitment, of and
23
evaluation of candidates for the position of Chair or Chief of Medicine at Kern Medical Center
24
during the period from October 24, 2000 to present.
25
RESPONSE TO REQUEST NO. 41
26
Defendants object to this request on the grounds that it calls for the production of
27
documents that contain confidential personnel information that is not relevant to any Issues in
2~
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
19 DEFENDA:\iTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000117
Dec 19 07 02:57p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.21
Page 152 of 207
1
Delendants also object to this request to the extent i1 requests information protected from
2
disclosurc by statc or federal law, including HIPAA, the peer-review privilege and the personnel
3
privilege, and documents that contain information protected by the attorney-client privilege.
4
After review of the documents potentially responsive to this request, Defendants have
5
determined that the burden of redacting privileged information outweighs the marginal relevancy
6
of the remaining information in the documents.
7
REOUEST FORPRODlJCTION NO. 42
8
Any and all DOCUMENTS RELATING TO presentations made at the Kern Medical
9
Center oncology conference in May 2005, including but not limited to participant evaluation
10
forms.
II
RESPONSE TO REQUEST NO. 42
12
Defendants object to this request on the grounds that it calls for the production of
13
documents that contain contidential personnel infonnation that is not rclcvant to any issues in
14
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
IS
Defendants also object to this request to the extent it requests information protected from
16
disclosure by state or federal law, including HIPAA and the peer review privilege, and
17
documents that are subject to the attorney-client privilege. Without waving these objections,
18
Defendants will produce non-privileged documents responsive to this request. if any, by
19
December 21, 2007. Defend,mb will redact privileged, ifany, information as appropriate.
20
REQUEST FOR PRODUCTION NO. 43
21
Any and all DOCU.\1EKTS RELATINO TO Plaintiffs presentations made at the Kern
22
Medical Center oncology conference on or about October l2, 2005.
23
RESPQ:'-[SE TQ REQUEST NO. 43
24
Defendants object to this request on the grounds that it calls for the production of
25
documents that contain confidential personnel information that is not relevant to any issues in
26
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
27
Defendants also object to this request to the extent it requests infonnation protected from
28
disclosure by state or federal law, including HIP AA and the peer review privilege, and 20 DEFENDANT~' ~UPPLEMENTAL RESPONSES
TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMEKTS
MTC000118
Dec 19 07 02:58p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.22
Page 153 of 207
documents that are suhject to the attorney-client privilege. Without waving these objeclions, 2
Defendants will produce non-privileged documents responsive to this request, if any, by
3
December 21,2007. Defendants will redact privileged, if any, information as appropriate,
4
REQUEST FOR PRODUCTION NO. 44
5
Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintifffrorn
6
Chair ofKem Medical Center's Pathology Department to staff pathologist.
7
RESPONSE TO REQUEST NO. 44
8 9
Defendants object to this request to the extent it requests documents that are privileged under the attorney-client privilege. Without waiving this objection Defendants will produce all
10
non-privileged documents responsive to this request by December 21,2007, depending on
II
receipt of reimbursement for estimated copy costs.
12
REQUEST FOR PRODUCTION NO. 4S
13
Any and all DOCU:v.lENTS RELATING To the "packets containing information about
14
Dr. Jadwin" which Peter Bryan collected at the end of Kern Medical Center's Joint Conference ofKem
15
Committee discussion and vote on removal of Plaintiff from Chair of Pathology on July 10,
16
2006.
17
RESPONSE TO REQUEST NO. 45
18
Defendants are searching for documents responsive to this request. Because of
19
administrative and management changes at Kern Medical Center, it may not be possible to
20
reconstruct the "packets" requested. Defendants object to this request to the extent it requests
21
information protected by the peer-review or attorney-client privileges, Defendants also object to
22
this request to the extent it seeks documents thal contain confidential persoIUlel information.
23
Without waiving these objections, and to the extent that the "packets" can be reconstructed,
24
Defendants will produce all documents responsive to this request, if any, by December 21,2007,
25
depending on receipt of reimbursement for estimated copy costs.
26
REQUEST FOR PRODUCTION NO. 46
27 28
Any and all DOCUMENTS RELATING TO YOUR decision to place Plaintiff on administrative leave on or about December 7, 2006. 21
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000119
Dec 19 07 02:59p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1
2
916-444-6405
Document 83
Filed 01/09/2008
p.23
Page 154 of 207
RESPONSE TO REQUEST NQ. 46
Defendnnts object to this request to the extent it requests information protected by the
3
attorney-client privilege. Without waiving that objection, Defendants believe all documents
4
responsive to this request have been previously produced. Defendants will confirm this or
5
produce additional documents, if mere are any, by December 21, 2007, depending on receipt of
6
reimbursement for estimated copy costs.
7
REQUEST FOR PRODUCTION NO. 47
8 9
Any and all DOCUMENTS RELATING TO YOUR decision to restrict Plaintiff to his home during working hours from on or about December 7, 2006 to on or about May 1,2007
10
while he was on administrative leave.
11
RESPONSE TO REQUEST NO. 47
12
Defendants believe all documents responsive to this request have been previously
13
produced. Defendants will confinll this or produce additional documents, ifthere are any, by
14
December 21,2007, depending on receipt of rei mbursement for estimated copy costs.
15
REQUEST FOR PRODUCTION NO. 48
16
Any and all DOCUMENTS RELATING TO YOUR decision to lift me restriction of
17
Pillintiffto his home during working hours from on or about December 7, 2006 to on or about
IS
May 1, 2007 while he was on administrative leave.
19
RESPONSE TO REOUEST NO. 48
20
Defendants believe all documents responsive to this request have been previously
21
produced.
22
any, by December 21,2007, depending on receipt of reimbursement for estimated copy costs.
23
REQUEST FOR PRODUCTIOI'I NO. 49
24
to
Plaintiff. Defendants will confirm this or produce additional documents, ifthere arc
Any and all DOCUMENTS RELATING TO YOUR decision not to renew Plaintitf's
25
employment contract with YOU that was purportedly made on or about May 1,2007.
26
RESPONSE TO REQUEST NO. 49
27 28
Defendants object to this request to the extent it requests information protected by thc attorney-client privilege. Without waiving that objection, Defendants believe all documents 22
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000120
Dec 19 07 02:59p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.24
Page 155 of 207
responsive to this request have been previously produced. Dcfcndants v.rill confirm this or 2
produce additioual documents, if there are any, by December 21,2007, depending on receipt of
3
reimbursement for estimated copy costs.
4
REOUEST FOR PRODUCTION NO. 50
5
Any and all DOCUMENTS RELA TING TO any disciplinc, coaching, reprimand or
6
corrective action taken against Plaintiff by YOU.
7
RESPONSE TO REQUEST NO. 50
8 9
Defendants believe all documents responsive to this request have been previously produced. Defendants will confirm this or produce additional documents, if there are any, by
10
December 21, 2007, depending on receipt of reimbmsement for estimated copy costs.
II
REOUEST FOR PRODUCTION NO. 51
12
Any and all DOCUMENTS RELATING TO Kern Medical Center's Disruptive Physician
13
Policy, including but not limited to Bylaw Committee meeting minutes.
14
RESPONSE TO REQUEST NQ. 51
15
Defendants object to this request to the extent it requests documents that contain
16
confidential personnel information, documents protected from disclosure by state or federal law,
17
including HIPAA and the peer-review privilege, and documents protected by the attorney-client
18
privilege. Without waiving these objections, Defendants will produce documents responsive to
19
this request by December 21,2007, depending on receipt ofreimhursement for estimated copy
20
costs. Defendants will redact confidential peer review and personnel information as appropriate.
21
This request is also vague because Defendants are not aware of any connection between the
22
Disruptive Physician Policy and the Bylaw Committee meeting minutes.
23
REQUEST FOR PRODUCTION NO. 52
24
Any and all DOCUME}.'TS RELATING TO Dr. Rebecca Rivera's lawsuit against Kern
25
Medical Center filed in Kern County California Superior Court.
26
RESPQNSE TO REQUEST NO. 52
27 28
Plaintiff has narrowed this request to eliminate any documents that have been filed with the Kern County Superior Court. As so limited, this request seeks documents in the County 23
DEFEiIDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTIOK OF DOCUMENTS
MTC000121
Dec 19 07 03:00p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.25
Page 156 of 207
Counsel's litigation file, many of which are protected by the attorney work-product and attorncy2
client privileges. To the extent this request seeks information that is protected by the attomey-
3
client privilege, Defendants object to it. Defendants also object to this request on the grounds
4
tha1 it is not reasonably calculated to lead to the discovery of admissible evidence. Defendants
5
are in the process of reviewing documents that may be responsive to this request and, without
6
waiviug these objections, 'Will produce non-privileged documents, if any, by December 21, 2007,
7
depending on receipt of reimbursement for estimated copy costs. Defendants may redact
8
privileged information if appropriate.
9
REQUEST FOR PRODUCTION NO. 53
10
Any and all DOCUMENTS RELATING TO services provided to YOU by the Camden
11
Group RELATlNG TO Kern Medical Center.
12
RESPONSE TO REOUEST NO. 53
13
Defcndants believe all documents responsive to this request have been previously
14
produced. Defendants will confirm this or produce additional documents, if there are any, by
15
December 21,2007, depending on receipt of reimbursement for estim
16
REQUEST FOR PRODVCTIOl'l NO. 54
17
Any and all DOCUMENTS RELATING TO statistics maintained by YOU RELATING
18
TO patient fatalities at Kern Medical Center from October 24,2000 to the present.
19
RESPONSE TO REOUEST NO. 54
20
Defendants object to this request on the grounds that it calls for the production of
21
documents that contain confidential personnel information that is not relevant to any issues in
22
this case and is not reasonably calculated to lead to the discovery of
23
Defendants also object to this request to the extent it requests information protected from
24
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
25
privilege, and documents that contain information protected by the attorney-client privilege.
26
After review of the documents potentially responsive to this request, Defendants have
27
determined that the burden of redacting privileged information outweighs the marginal relevancy
28
of the remaining information in the documents. 24 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000122
Dec 19 07 03:00p
Case 1:07-cv-00026-OWW-TAG
p,26
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Page 157 of 207
REQUEST FOR PRODUCTION NO. 55 2
Any and all DOCUMENTS RELATING TO the review of Kern Medical Center's
3
placental evaluations and billing activity as conducted by outside consultants, including but not
4
limited to ProPay Physician Services, LLC, from October 24, 2000 to the present.
5
RESPONSE TO REQUEST NQ. 55
6
Defendants object to this request on the grounds that it calls for the production of
7
documents that contain confidential personnel information that is not relevant to any issues in
8
this case and is not reasonably calculated to lead to the discovery of admissible evidence,
9
Defendants also object to this request to the extent it requests irrformation protected from
10
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
11
privilege, and documents that contain information protected by the attorney-client privilege,
12
After review of thc documents potentially responsive to this request, Defendants have
13
determined that the burden ofredacting privileged information outwt:ighs the marginal relevancy
14
of the remaining irrformation in the documents.
15
REQUEST FQR PRODUCTION NO. 56
16
.Any and all DOCUMENTS RELATING TO blood bank monthly reports, included but
17
not limited to reports generated by Michelle Burris, from January 2006 to present.
18
RESPONSE TO REQUEST NO. 56
19
Defendants object to this request on the grounds that it calls for the production of
20
documents that contain confidential personnel information that is not relevant to anv issues in
21
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
22
Defendants also object to this request to the extent it requests information protected from
23
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
24
privilege, and documents that contain information protected by the attorney-client privilege.
25
After review of the documents potentially responsive to this request, Defendants have
26
determined that the burden of redacting privileged infonnation outweighs the marginal relevancy
27
of the remaining information in the documents.
28 25 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTIOK OF DOCUMENTS
MTC000123
Dec 19 07 03:01 p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.27
Page 158 of 207
REQUEST FOR PRODUCTIOK NO. 57 2
Any and all DOCUMENTS RELATING TO product chart copy-related quality assurance
3
reports from Oc10ber 24,2000 to the present.
4
RESPONSE TO REOUEST NO. 57
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personncl
10
privilege, and documents that contain infonnation protected by the attorney-client privi lege.
II
After review of the documents potentially responsive to this request, Defendants have
12
determined that the burden of redacting privileged information outweighs the marginal relevancy
13
of Ihe remaining information in the documents.
14
REQUEST FQR I'RODUCTION NO. 58
15
Any and all DOCUMENTS RELATING TO prostate needle biopsy reports produced by
16
Dr. Elsa Ang for which Plaintiff had requested a lookback study in Oe1ober 2005.
17
RESPONSE TO REQUEST NO. 58
18
Defendants object to this request {)f1 the grounds that it calls for the production of
19
documents that contain confidential personnel information that is not relevant to any issues in
20
Ihis case and is not reasonably calculated to lead to the discovery of admissible evidence.
21
Defendants also objeelto this request to the extent it requests information protected from
22
disclosure by state or federal law, including HIP AA, the peer-review privilege a11d the personnel
23
privilege, and documents that contain infonnation protected by the attorney-client privilege.
24
After review of the documents potentially responsive to this reques" Defendants have
25
determined that the burden ofredaeting privileged information outweighs the marginal relevancy
26
of the remaining information in thc documents.
27
28 26 DEFENDANTS' SL'PPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000124
Dec 19 07 03:01 p
Case 1:07-cv-00026-OWW-TAG
1
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Any and all DOCUMENTS RELA TING TO sign-in sheets for Kern Medical
3
Cancer Clinic from January 1, 2003 to the present.
4
RESPONSE TQ REQUEST NO. 59
Center'~
Defendants will produce all documents responsive to this request by December 21, 2007,
5 6
depending on receipt of reimbursement for estimated copy costs.
7
REQUEST FOR PRODUCTION NQ. 60
8
10
Page 159 of 207
REQUEST FOR PRODUCTION NO. 59
2
9
p.28
Any and all DOCUMENTS RELATING TO Workplace Violence or Threat Incident Reports for all Kern Medical Center personnel from October 24, 2000 to the present.
RESPONSE TO REQUEST NO. 60
11
Defendants object to this request to 1he extent it seeks documents that contain
12
confidential personnel information or information protected by the attorney-client privilege.
13
Defendants also object to the extent the documents contain information protected by the peer-
14
review privikgc and on the grounds that the request is not reasonably calculated to lead to the
15
discovery of admissible evidence. Without waiving these objections, Defendants will produce
16
all documents responsive to this request by December 21,2007, depending 011 receipt of
17
reimbursement for estimated copy costs. Defendants will redact confidential or privileged
18
information as appropriate.
19
REQUEST FOR PRODUCTION NO. 61
20
Any and all DOCUMENTS RELATING TO Fine Needle Aspiration policies at Kern
21
Medical Center from October 24, 2000 to the present, including but not limited to
22
DOCUMENTS RELATING TO the outside consultant study conducted by Dr. David Lieu in
23
2004.
24
RESPONSE TO REQUEST NO. 61
25
Defendants object to this request to the extent it seeks doemnents that contain
26
confidential personnel infonnation or information protected by the attorney-client privilege.
27
Defendants also object to the extent the documents contain information protected by the peer-
28
review privilege and on the grounus that the request is not reasonably calculated to lead to the
27 DEFENDANTS' SUPPLENlENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000125
Dec 19 07 03:02p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.29
Page 160 of 207
discovery of admissible evidence. Without waiving these objections, Defendants will produce 2
all documents responsive to this request by December 21,2007, depending on receipt of
3
reimbursement for estimated copy costs. Defendants will redact confidential or privileged
4
information as appropriate.
5
REQUEST FOR PRODUCTIOK NO. 62
6
Any and all DOCUMENTS RELATING TO Peter Bryan's appointment calendar from
7
January 1, 2004 to September 1, 2006.
8
RESPONSE TO REQUEST NO. 62
9
After diligent search, Defendants have determined that the Groupwise calendar
10
information was deleted many months ago as part of the routine 90-day cycling of the Groupwise
11
software. Defendants believe there are no documents responsive to this request.
12
REQUEST FOR PRODUCTION NO. 63
13 14
Any and all DOCUMENTS RELATTl\'G TO meeting minutes tor the following Kern Medical Center committees or groups from October 24, 2000 to the present:
15
a) :YIedical Executive Committee
16
b) .Joint Conference Committee
17
c) Quality Management Committee
18
d) C811cer Committee
19
c) Second Level Peer Review Committee
20
f) Transfusion Committee
21
g) Executive Staff Meetings
22
RESPONSE TO REQUEST NO. 63
23
Defendants object to this request to the extcnt it requests documents that contain
24
confidential personnel information, docmnents protected from disclosure by state or federal law,
25
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
26
subject to the attorney-client privilege. Without waiving these objections, DcfcmIanls will
27
produce doemnents responsive to this request by Decemher 21, 2007, depending on receipt of
28 28 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000126
Dec 19 07 03:02p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.30
Page 161 of 207
1
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
2
personnel information as appropriate.
3
REQUEST FQR PRODUCTION NO. 64
4
Any and all DOCUMENTS RELATING TO policies of Kern Medical Center's
5
Pathology Department from October 24, 2000 to the present.
6
RESPO~SE
7
TO REOLEST NO. 64
Defendants will produce all documents responsive to this request by December 21, 2007,
8
depending on receipt of reimbursement for estimated copy costs.
9
REOUEST FOR PRODUCTION NO. 65
10
Any and all DOCU1vfENTS RELATING TO case send-out logs for Kern Medical
II
Center's Pathology Department from January I, 1999 to the present, including but not limited to
12
corresponding Kern Medical Center pathology reports and reports from outside consultants.
13
RESPONSE TO REQUEST NO. 65
14
Defendants object to this request to the extent it requests documents that contain
IS
confidential personnel information, documents protected from disclosure by state or federal law,
16
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
17
subject to the attorney-client privilege. Without waiving these objections, Defendants will
18
produce documents responsive to this request by December 21, 2007, depending on receipt of
19
reimbursement for estimated copy costs. Defendants will redllct confidentilll peer review and
20
personnel information as appropriate.
21
REQUEST FOR PRODUCTION NO. 66
22
Any and all DOCUMENTS RELATING TO monthly turn-arol.lIld-lime reports and logs
23
- by pllthologist - for pathology reports processed lit Kern Medical Center, including but not
24
limited to Pathology Department Semi-annual Reports to the Medical Staff, for thc time pcriod
25
[Tom January 1, 1999 to the present.
26
RESPONSE TO REQUEST NO. 66
27
Defendants object to this request to the extent it requests documents that contain
2~
confidential personnel information, documents protected from disclosure by state or federal law. -------------------~---------------__t
29
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000127
Case 1:07-cv-00026-OWW-TAG
p.31
916-444-6405
Mark Wasser
Dec 19 07 03:03p
Document 83
Filed 01/09/2008
Page 162 of 207
1
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
2
subject to the attorney-client pri vilege. Without waiving these objections, Defendants will
3
produce documents responsive to this request by December 21, 2007, depending on receipt of
4
reimbursement for estimated copy costs. Defendants will redact confidential peer review and
5
personnel information as appropriate.
6
REQUEST FOR PRODUCTION NO. 67
7
Any and all DOCUMENTS RELATING TO monthly or semi-monthly turn-around-time
8
reports and logs - for Kern Medical Center's Pathology Department as a whole - for pathology
9
reports processed at Kern Medical Center including but not limited to surgical pathology,
10
cytology and bone marrow reports, for the time period from January I. 1999 to the present.
11
RESPONSE TO REQUEST NO. 67
12
Defendants object to this request to the extent it requests documents that contain
13
confidential persOlmel information, documents protected from disclosure by state or fcdcrallaw,
14
including HIPAA, the peer-review privilege and the personnel privilege, and documents that are
15
subject to the attorney-client privilege. Without waiving these objections, Defendants will
16
produce documents responsive to this request by December 21,2007, depending on receipt of
17
reirnborsement for estimated copy costs. Defendants will redact confidential peer review and
13
personnel information as appropriate.
19
REQUEST FOR PRODUCTION NO_ 68
20
Anv and all DOCUMENTS RELATING TO PATHOLOGY REPORTS authored,
21
reviewed or approved by Plaintiff which YOU sent to any outside pathologists for outside review
22
from June 14, 2006 to the present.
23
RESPONSE TO REQUEST NO. 68
24
Defendants object to this request to the extent it requests documents that contain
25
privileged peer review information. Without waiving this objection Dcf~ndants will produce all
26
documents responsive to this request by December 21,2007, depending on receipt of
27
reimbursement for estimated copy costs. Defendants will redact all privileged information as
211
appropriate. 30 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTlfWS REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000128
Dec
19 07 03:03p
Case 1:07-cv-00026-OWW-TAG
p.32
916-444-6405
Mark Wasser
Document 83
Filed 01/09/2008
Page 163 of 207
REQUEST FOR PRODUCTION NO. 69 2
Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS RELATING TO
3
Case Numbers S06-4131, S06-4619, S06-5229, S06-73276.
4
RESPONSE TO REQ1JEST NO. 69
5
Plaintiff has amended this request by clarifYing that Case No. S06-73276 relates to Case
6
Nos. 806-495, 806-3511 and S06-4619. Defendants renew their objections to this request on the
7
grounds that it requests documents that contain confidential information under HIPAA.
8
Defendants also object to the extent that it requests documents that contain privileged peer-
9
review information. Without waiving these objections Defendants will produce all documents
10
responsive to this request by December 21,2007, depending on receipt of reimbursement for
II
estimated copy costs. Defendants will redact confidential and privileged information as
12
appropriate.
13
REQUEST FOR PRODUCTION NO. 70
14
Any and all DOCU!vIENTS RELATING TO peer review RELATr.-JG TO Kern Medical
15
Center's Pathology Department during the time period from January I, 1995 to the present,
16
including but not limited to computer-generated data, monthly peer review records completed by
17
pathologists, and peer review comment sheets 1hat are completed by pathologists upon discovery
18
of a discrepancy.
19
RESPONSE TO REOUEST NO. 70
20
Defendants object to this request on the grounds that it calls for the production of
21
documents that contain confidential personnel information that is not rdevant to any issues in
22
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
23
Defendants also object to this request to the extent it requests information protectcd from
24
disclosure by state or federal law, including H1PAA, the peer-review privilege and the personnel
25
privilege, and documents that conlain information protected by the attorney-client privilege.
26
After review of lhe documents potentially responsive to this request, Defendants have
27
determined that the burden of redacting privileged infonnation outweighs the marginal relevancy
28
of the remaining information in the documents. 3]
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIff'S REQUEST FOR PRODUCTION OF DOCU.'vIENTS
MTC000129
Dec 19 07 03:04p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
916-444-6405
Document 83
Filed 01/09/2008
p.33
Page 164 of 207
REQUEST FOR PRODUCTION NO. 71 2
Any and all DOCUMENTS RELATING TO exceptional event logs for histology and
3
pathology on Kern Medical Center's Pathology Depaltment from January 1, 2006 to the present.
4
RESPONSE TO REQUEST NO. 71
5
Defendants object to this request on the grounds that it calls for the production of
6
documents that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8
Defendants also object to this request to the extent it requests information protected from
9
disclosure by state or federal law, including HIPAA, the peer-review privilege and tbe persOImel
10
privilege, and documents that contain information protected by the attorney-client privilege.
11
After review oftbe documents p01entially responsive to this request, Defendants have
12
determined tbat the burden of redacting privileged information outweighs the marginal relevancy
13
of the remaining information in the documents.
14
REQUEST FOR PRODUCTION NO. 72
15
Any and all DOCUMENTS RELATI1\G TO paper accession logs at Kern Medical
16
Center's Pathology Department from January 1,2006 to present.
17
RESPONSE TO REQUEST NO. 72
18
Defendants object to this request on the grounds that it calls for the production of
19
documents that contain confidential personnel information that is not relevant to any issues in
20
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
21
Defendants also object to tbis request to the extent it requests information protected from
22
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
23
privilege, and documents that contain information protected by the attorney-client privilege.
24
After review of the documents potentially responsive to this rcquest, Defendants have
25
deternlined that the burden of redacting privileged information outweighs the marginal relevancy
26
of the remaining information in the docwnents.
27 28
32 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAI::-ITIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000130
Dec 19 07 03:04p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1 2
Document 83
Filed 01/09/2008
p.34
Page 165 of 207
REOUEST FOR PRODUCTION NO. 73 i\ny and all DOCUMENTS RELATING TO tissu<;: disposal r<;:cords for skull-flaps from
3
January I, 2006 to the present.
4
RESPONSE TO REQUEST NO. 73
5
916-444-6405
Defendants object to this request on the grounds that it calls for the production of
6
docum<;:nts that contain confidential personnel information that is not relevant to any issues in
7
this case and is not reasonably calculated to lead to the discovery of admissible evidence.
S
Defendants also object to this request to the extent it requests information prot<;:eted from
9
disclosure by state or federal law, including HIPAA, the peer-review privilege and the personnel
10
privilege, and documents that contain infonnation protected by the attorney-client privilege.
11
After review of the documents potentially responsive to this request, Defendants have
12
determined that the burden of redacting privileged information outweighs the marginal relevancy
13
of the remaining information in the documents.
14
REQUEST FOR PRODUCTION NO. 74
15
Any and all DOCUMENTS RELATING TO audits of Kern Medical Ccnler's Pathology
16
Department by outside consultants, including but not limited to Dr. Stacey Garry, from October
17
24, 2000 to the present.
18
RE81'ONSE TO REOUEST NO. 74
19
Defendants object to this request to the extent it requests docu.ments that contain
20
information that is confidential under HIPAA. Defendants also object to the extent that it
21
requests documents that contain privileged peer·review information. Without waiving these
22
objections Defendants will produce all documents responsive to this request by December 21,
23
2007, depending on receipt of reimbursement for estimated copy costs. Defendants will redact
24
confidential and privileged information as appropriate.
2S
REOUEST FOR PRODUCTION NO. 75
26 27
Any and all DOCUMENTS RELATING TO Kern Medical Center laboratory personnel defections from June 14,2006 to the present, including but not limited to exit interview notes,
2S 33 DEFE0JDANTS' SUPPLEMENTAL RESPO~SES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000131
Dec 19 07 03:05p
Mark Wasser
Case 1:07-cv-00026-OWW-TAG
1
2
916-444-6405
Document 83
Filed 01/09/2008
p.35
Page 166 of 207
RESPONSE TO REQUEST NO. 75 Defendan1~
object to thi~ request on the
ground~
that it is vague. Defendants do not knO\~
3
what "personnel defections" means. If Plaintiff intends to request a list of employees who have
4
separaled from Counly employment or transferred out of the pathology laboratory. Defendants
5
can prepare such a list but Defendants believe such a list will need to be redacted to remove
6
confidential personnel information. Defendants will produce a list of employees who have
7
separated from County employment or transferred out of the laboratory by December 21, 2007,
& depending on receipt of reimbursement for estimated copy costs, and will redact the confidential 9 10 II
information as appropriate. REOUEST FOR PRODUCTION NO. 76 Any and all DOCUMENTS RELATING TO dictation transcription logs for Plaintiff
12
from June 14,2006 to the present.
13
RESPONSE TO REQUEST NO. 76
14
Defendants will produce all documents responsive to this request by December 21, 2007,
IS
depending on receipt of reimbursement for estimated copy costs. Defendants will redact
16
privileged information, if any, as appropriate.
17
REOUEST FOR PRODUCTION NQ. 77
1&
Any and all DOCUMENTS RELATING TO dictation transcription logs for Dr. Philip
19
Dutt from June 14, 2006 to the present.
20
RESPONSE TO REOUEST NO. 77
21
Defendants will prodnce all documents responsive to this request by December 21, 2007,
22
depending on receipt ofreimbursement for estimated copy costs. Defendants will redact
23
privileged information, if any, as appropriate.
24
REQUEST FOR PRODUCTION NO. 78
25 26
Any and all DOCUMENTS RELATING TO placental evaluations conducted by Pl ai ntitf from June 14, 2006 to the present.
27
28 34
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAI.'JTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000132
Dec 19 07 03:05p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p,36
Page 167 of 207
RESPONSE TO REQUEST i'i0. 78 2
Plaintiff has attempted to narrow this request but the revised request is broader, more
3
burdensome and less calculated to lead to the discovery of admissible evidence than the original
4
request. Defendants object to this request because it is not reasonably calculated to lead to the
5
discovery of admissible evidence and is burdensome. Defendants object to this reques1 on the
6
grounds that it calls for the production of documents that contain confidential personnel
7
information that is not relevant to any issues in this case and is not reasonably calculated to lead
8
to the discovery of admissible evidence. Defendants also object to this request to the extent it
9
requests information protected from disclosure by state or federal law, including HIPAA, the
10
peer-review privilege and the personnel privilege, and documents that contain information
11
protected by the attorney-client privilege. After review of the documents potentially responsive
12
to this request, Defendants have determined that the burden of redacting privileged information
13
outweighs the marginal relevancy of the remaining information in the documents,
14
REQUEST FOR PRODUCTION :\f0. 79
15 16 17
Any and all DOCUMENTS RELATL'lG TO Golden Empire Pathology Associates. RESPONSE TO REQUEST NO. 79 After diligent search, Defendants have not been able to locate any documents responsive
18
to this request.
19
REQUEST FOR PRODUCTION NO. 80
20 21 22 23 24 25
26 27
Any and all DOCUMENTS RELATING TO Golden Empire Medical Group, RESPONSE TO REQUEST NO. 80 After diligent search, Defendants have not been able to locate any documents responsive to this reguest. Dated: December 19, 2007
LAW OFFICES OF MARK A. WASSER
By:,~Z-4£~_OLP~~~"'==-
-----1
'Mark A. Wasser Attorncy for Defendants, County of Kern, et aI.
28 35
DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAIKTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
MTC000133
916-444-6405
Mark Wasser
Dec 19 07 03:06p
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.37
Page 168 of 207
1 Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 2 400 Capitol Mall, Suite 11 00 Sacramento, CA 95814 3 Phone: (916) 444-6400 Fax: (916) 444-6405 4 E-mail: mwassertg)markwasser.com 5 Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 6 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 7 Phone: (661) 868-3800 Fax: (661) 868-3805 8 E-mail: [email protected]
9
Attorneys for Defendants County of Kern, 10 Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith II and William Roy
12
UNITED STATES DISTRICT COURT
13
EASTERN DISTRICT OF CALIFORNIA
14
15 DAVID F. JADWIN, D.O.
~
Case No.: 1:07-cv-00026-0WW-TAG
16
~ ~ ~ )
PROOF OF SERVICE
17
Plaintiff, vs.
18 COUNTY 0 F KERN, et aI.,
19
Defendants.
) 20 1 1 - - - - - - - - - - - - - )
21 22 23 24 25
26 27
28 PROOF OF SERVICE MTC000134
Mark Wasser
Dec 19 07 03:06p
Case 1:07-cv-00026-OWW-TAG 1
916-444-6405
Document 83
Filed 01/09/2008
p.38
Page 169 of 207
I, Amy Remly, declare:
2
I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 400 Capitol Mall, Suite 1100, Sacramento, CA 95814. On 3 December 19, 2007, 1 served the within documents: Defendants' Snpplemental Responses to Plaintiff's Request for Production of Documents (Set One).
4
by transmitting via facsimile from (916) 444-6405 the above listed document(s) without error to the fax number(s) set forth below on this date before 5:00 p.m. A copy of the transmittal/confirmation sheet is attached, and
5 6
7
o
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below.
o
by causing personal delivery by of the document(s) listed above to the person(s) at the address (es) set forth below.
8 9 10
11
by placing the document(s) listed above in a sealed Federal Express Overnight Delivery envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a Overnight Delivery Federal Express agent for delivery at the address set forth below.
12 13 14
Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013-1010 Facsimile: (213) 596-0487
15 I am readily familiar with the firm's practice of collection and processing correspondence for 16 mailing. Under that practice it would be deposited with the u.s. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. 1 am aware that on motion of the party 17 served, service is presumed invalid if postal cancellation date or postage meter date is more than one 18 day after date of deposit for mailing in affidavit. 19 20
I declare under penalty of perjury under the laws of the State of Califomia that the above is true and correct. Executed on December 19, 2007, at Sacramento, California.
21
()
Uv'N'V-\ 'h,\[Y\J0'v\ AMY REM1(1'
22
'(
~
23 24 25 26 27 28 -2-
PROOF OF SERVICE MTC000135
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 170 of 207
EXHIBIT 16. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/19/07
MTC000136
Dec 19 07 02:24p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1
Page 171 of 207
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 Wasser
Fax:
(213) 596-0487
Pages: 4 (including cover page)
Phone: (213) 992-3299 Re:
Date:
Jadwin v. County ofKem
o Urgent
o For Review
December 19,2007
cc:
0 Please Comment
0 Please Reply
0 Please Recycle
• Comments; Please see attached letter.
MTC000137
Dec 19 07 02:24p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices of Document 83 Filed 01/09/2008
MARKA. WASSER
p.2
Page 172 of 207
400 Capitol Mall, Suite 1100 Sacramento, California 95814
Office: 916-444·6400 Fax; 916-444-6405 [email protected]
December 19, 2007
VIA FACSIMILE AND 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 af.
Dear Gene: This is to follow up on our recent telephone conversations and e-mails regarding the Defendants' continuing efforts to respond to your request for production of documents. You are correct that we did not raise the issue of costs earlier. I was remiss in not raising it earlier and it needs to be raised now. You are also correct that you produced documents as part of the initial disclosures. Although the Defendants ultimately produced many more documents that you did, the County is willing to defer recovery of those costs until the case is resolved. They can be claimed in a cost bill. However, the copy charges incurred in responding to your request for production are substantial and cannot be deferred, The first installment of the Defendants' response consisted of 12,500 pages and your copy cost $1765.00 (12,500 X .14 + 15.00 for the CD). The 14 cents per page charge was for one electronic copy and Bates numbering. Our copy was an additional cost. The number I included in my e-mail to you a couple of days ago was for the entire reproduction and does not represent an amount you should pay. The second installment, which we are preparing now. 'Will be larger than the first. Our copy service has estimated that one electronic copy with Bates numbering will cost about $2,000. The actual cost may be more or less. Please send me a check for $3,765 to cover the cost of the first installment and the estimated cost of the second. If the actual cost of the second installment is less than $2,000, we will refund the surplus to you. If it is more, we will send you a request for the difference. I am glad you recognize the Defendants' right to reimbursement for these costs. Case authority, as you know, is
Admitted to P(actice in California and Nevada
MTC000138
Dec 19 07 02:25p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG Eugene Lee December 19,2007 Page 2
Document 83
Filed 01/09/2008
p.3
Page 173 of 207
clear. Dr. Jadwin has the same right and, were it not for the fact that the County seems to have the bulk of the documents in the case, I am sure Dr. Jadwin would have demanded reimbursement long before your e-mail Monday morning. On the subject of copies at depositions, it has been my practice to supply three copies of any documents that will be marked as exhibits at a deposition as a courtesy to opposing counsel. That is part of the cost of taking a deposition. If you intend to start "billing" the Defendants for the courtesy copy that you give me, you may dispense with my copy. I will get a copy of all the exhibits when I get my copy of the deposition transcript and I see no reason to pay for the documents twice. I will provide you with a courtesy copy of any documents I mark as exhibits at depositions I take without charge. Your statement in yesterday's e-mail that Dr. Jadv,:in "has readily agreed to narrow the document production requests on numerous occasions" requires a response because you have taken it out of context, as you have done before, in an attempt to make your position look more sympathetic than it is. Dr. Jadwin revised a few of the requests in his Request for Production in order to expedite the Defendants' response. For example, without referencing your many letters, I recall that you revised Requests Nos. 33 and 68 in an attempt to address the Defendants' objections and accelerate production. At no time did you ever suggest that the cost of the production was a concern. You may recall, in one letter or e-mail (I forget which), you even suggested how Kern Medical Center should staff the production effort and opined as to how many hours of staff time Dr. Jadwin believed the production should take. Throughout the process, you and Ms. Herrington insisted that all requested documents be produced as quickly as possible, even mentioning in a recent e-mail that you had to "resort to threats" to make Defendants work faster and harder. Do not suggest that Dr. Jadwin was willing to reduce the burden of his production demands to keep costs down. That is a fiction. You cooperated ",i.th us on the dates of our response because, given the magnitude of the task, you had no choice but you never even hinted at any interest in controlling cost. Which brings us to the last point. Many of the documents you have requested have, at most, a very tenuous connection to any issues in the case. The blood product chart copy documents are a good example. It is unclear what relevancy they have or how their production will lead to the discovery of admissible evidence. The County has iden1ified approximately 12,000 pages in this category. The documents consist almost entirely of patient records and will require many hours of tedious redaction to prepare them for production. The redacted documents will be of little, if any, use. The County is unwilling to incur the cost of redacting those documents. As you know, there is authority that the requesting party may be required to bear the financial burden of producing documents where the burden of production outweighs the benefits of the information to be produced. We think this is the case with regard to the blood product chart copy documents. It may be the case with other documents, as well, but the blood product chart copy documents are the most voluminous.
MTC000139
Dec 19 07 02:25p
916-444-6405
Mark Wasser
Case 1:07-cv-00026-OWW-TAG Eugene Lee December 19, 2007 Page 3
Document 83
Filed 01/09/2008
pA
Page 174 of 207
We remain on track to produce the final installment of documents on December 21, asswning you can deliver a check in the amount of$3,765 before then. The check should be payable to my office. I have finished drafting a Supplemental Response and will e-mail that to you shortly. We will send a hard, service copy by mail today. Let me know if you want to discuss any of this.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Bames (via facsimile)
MTC000140
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 175 of 207
EXHIBIT 17. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/20/07
MTC000141
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 176 of 207
Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Thursday, December 20, 2007 5:29 PM [email protected] RE: The production
Follow Up Flag: Flag Status:
Follow up Completed
Gene, Only one point warrants response. The documents that I described in my letter yesterday as having a tenuous relationship to the issues in the case are the approximately 12,500 pages of blood product chart copies that we are neither producing nor changing you for. I wrote that we will expect a cost-shift on the production expenses for those. The $3765 expense I quoted only covers the copies we were intending to produce. As far as authority for reimbursement for costs goes, you can start at page 11-236, section 11:1937 of the Schwarzer, Tashima and Wagstaffe handbook on federal practice. The following paragraph discusses cost-shifting. That may bear on the blood product chart copies but they are not the issue today. We are only talking about reimbursement for actual copies produced. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 20, 2007 5:04 PM To: [email protected] Subject: RE: The production
Mark, Your email neglects to mention your faxed letter of yesterday. May I suggest you re-read it and the subsequent communications. The last two “different positions” are not different and reflect another misunderstanding of something I’ve written. Plaintiff’s original request for production, which was served on October 11, 2007, stated that defendants should “produce and permit the inspection and copying of documents”. I did not intend this to involve two “different positions”. If that sentence was confusing for you, my apologies. My understanding is that this is fairly standard language in a production request. Plaintiff still awaits defendants’ caselaw which, as you say, is “clear” in establishing defendants’ right to reimbursement for production and right to condition production on payment of such reimbursement. My reading of the FRCP and related caselaw establishes that defendants have no such rights. As I said before, if the caselaw truly is clear that you are right, plaintiff will be happy to reconsider its position. Otherwise, plaintiff is not willing to pay defendants nearly $4,000 in actual and “estimated” costs for documents which, according to your fax of just yesterday, “have, at most, a very tenuous connection to any issues in the case.” It is unfortunate that this dispute has arisen so late in the day. Had defendants met and conferred with plaintiff on the issue of cost reimbursement earlier than 3 days ago, perhaps this dispute could’ve been averted. Now it appears plaintiff has no choice but to file a motion to compel in order to obtain the discovery which defendants are now withholding based upon a last minute request for $4,000. Sincerely, 1
MTC000142
Case 1:07-cv-00026-OWW-TAG Gene Lee
Document 83
Filed 01/09/2008
Page 177 of 207
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights?
From: Mark Wasser [mailto:[email protected]] Decembec U, 'II' Sent: Thursday, December 20, 2007 4:17 PM To: [email protected] Subject: RE: The production
n ..."
'Y "'",," ..
Gene, In the last few days, you have written that you will send a check for payment as soon as we request it, that you don’t really want the copies after all and just want to inspect the originals, and that you now want the originals in your office tomorrow. By my count, that is three different positions. We were on-track to send you Bates numbered, electronic copies of all the documents tomorrow, as we have been discussing with you, in writing, for weeks. We also relied on your letter earlier in the week that you would pay the reasonable production cost. Today, you have changed your position and want original patient records and other privileged documents produced in your office tomorrow. We will not produce original patient records in your office. That would be a violation of federal law. We remain willing to produce an electronic copy of the redacted records but expect reimbursement for the reasonable copy cost. That is where things sit. If you believe a motion to compel will be more efficient and cost-effective, I suppose you should file it. It is a shame all this has apparently developed over a request for reimbursement for reasonable copy costs. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 20, 2007 4:02 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: The production
Mark, I do not understand what you mean by “discussions with you on your interest in inspection.” What are you requesting? Tomorrow is the deadline for production. Plaintiff awaits production of the documents. Plaintiff will 2
MTC000143
Case 1:07-cv-00026-OWW-TAG Document 83 Filed 01/09/2008 Page 178 of 207 not pay nearly $4,000 for actual and “estimated” costs which were never discussed or brought to plaintiff’s attention until just three days ago. As for objecting to the manner, time and place of production, defendants waived those objections. Since our meet and confer discussions are at an impasse and defendants will not be producing the documents, plaintiff will file a motion to compel tomorrow. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights?
From: Mark Wasser [mailto:[email protected]] Decembec U, 'II' Sent: Thursday, December 20, 2007 3:40 PM To: [email protected] Subject: RE: The production
n ..."
'Y "'",," ..
Gene, I am satisfied, having reviewed our communications, that there was neither miscommunication nor misunderstanding between us regarding the nature of our production. It is sufficiently documented. Your suggestion, today, that we produce documents in your office tomorrow is in response to the recognition that you have to pay for the copies. We are not producing originals in your office. The originals contain thousands of patient records, among other privileged documents. The County will not violate HIPAA in such a flagrant way. We have suspended production, as I wrote earlier, pending discussions with you on your interest in inspection. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, December 20, 2007 3:02 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: The production
Hi Mark,
3
MTC000144
Case 1:07-cv-00026-OWW-TAG Document 83 Filed 01/09/2008 Page 179 of 207 As stated in our document production request, we’d like to have the original documents produced at my office by Dec. 21, 2007 for inspection and copying. Please refer to the production request if you require further details. Also, please feel free to contact me if you still require further clarification. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 Background Checks What Are My Rights? Decembec U, 'II' " ... " ,y "'oo,,".. From: Mark Wasser [mailto:[email protected]]
Sent: Thursday, December 20, 2007 2:55 PM To: Eugene Lee Subject: The production Gene,
The documents are in my office and we will suspend further production pending discussions with you on inspection. Let me know how you want to proceed. 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]
4
MTC000145
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 180 of 207
EXHIBIT 18. Meet and confer letter faxed by Plaintiff’s to Defendants’ attorney, 12/20/07
MTC000146
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE
LAW
Document 83
555
FACSIMILE
Los
Filed 01/09/2008
OFFICE
E U G ENE (213) 596-0487
Pg 1/ 3 12/20/07 2:47 pm
OF
Page 181 of 207 [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: 12/20/2007
Pages: 3 (including cover page) Re: Jadwin/KC: MNC RFD1
Comments:
Mark, Please see attached.
MTC000147
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG LAW
(213) 992-3299
TELEPHONE
Document 83
Pg 2/ 3 12/20/07 2:47 pm
Filed 01/09/2008
OFFICE
EUGENE
OF
[email protected] E-MAIL
LEE
(Z 1 3) 596-0487
555 WEST FIFTH
FACSIMILE
LOS ANGELES, CALIFORNIA 90013-1010
STREET,
Page 182 of 207
SUITE
EUGENE D. LEE, ESQ
3100
WWW.LOEL.COM WEBSITE
JOAN E. HERRINGTON, ESQ
PRINCIPAL
OF COUNSEL
December 20, 2007 VIA U.S. MAIL FIRST CLASS & FACSIMILE Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re:
100011.001
Defendants Responses to Plaintiff's Requests for Production, Set One Jadwin / County of Kern, et al. (USDC EDCA NO.1 :07-cv-00026-0WW/TAG)
Dear Mark: Thank you for your fax of yesterday.
I.
PRODUCTION COST REIMBURSEMENT
I am pleased to see that you admit you did not raise the issue of costs until December 17, just four days before the December 21 document production deadline, which was itself extended from November 16, 2007.
You say "I am glad you recognize the Defendants' right to reimbursement for these costs." Plaintiff has never made any such recognition and in fact disagrees. Plaintiff is unaware ofthe basis for your statement that "Case authority, as you know, is clear". Please provide us with the case authority you refer to and plaintiff will be pleased to consider it. If it truly is "clear", plaintiff will reconsider its position. Pursuant to FRCP Rule 34, Plaintiff's request for production, set one specifically requests defendants "produce and permit inspection and copying ofthe documents described below [at the office of plaintiff's counsel]." Defendants have acted on their own initiative in processing the document production at a cost of 14 cents per page. As you yourself admit, defendants never met and conferred with plaintiff on the cost issue until just a couple of days ago. Had defendants informed plaintiff earlier of the substantial cost involved, plaintiff would certainly have worked with defendants to suggest other less costly alternatives. As it is, plaintiff has no choice but to adhere to its original request that defendants produce the original documents for inspection and copying at the address for the Law Office of Eugene Lee by December 21,2007. Plaintiff is especially hesitant to pay defendants' requested cost reimbursement because, as you say, "Many ofthe documents you have requested have, at most, a very tenuous connection to any issues in the case", Plaintiff is an individual and, unlike the County of Kern, is not in a position to easily absorb $3,765 in document processing costs. It would be far more cost-efficient for
MTC000148
From: Law OFFice of Eugene Lee
To: 213-596-0487
Case 1:07-cv-00026-OWW-TAG
Pg 3/ 3 12/20/07 2:47 pm
Document 83
Filed 01/09/2008
Page 183 of 207
plaintiff to review the originals, discard the chaff, and copy only the pertinent documents at a cost that should ultimately be substantially less than defendants' requested $3,765. II.
CLARIFICATION OF SOME MISUNDERSTANDINGS
I would like to take a moment to clarifY some confusion in your fax. You say I mentioned in an email that I had to "resort to threats". The complete statement I had made was: "It is unfortunate that we must resort to threats of a motion in order to resolve this situation". Leaving out the "of a motion" could be misleading. You say "Do not suggest that Dr. Jadwin was willing to reduce the burden of his production demands to keep costs down. That is a fiction". Again, it appears there has been a misunderstanding. Here is what I had in fact written, "plaintiff has readily agreed to narrow the document production requests on numerous occasions to expedite matters for defendants." I assume you know what the term "expedite" means. I never suggested the narrowing of requests was a method to "keep costs down" because Defendant never raised the issue of costs. You and I seem to suffer these miscommunications from time to time. In the future, if you misunderstand something I write, please pick up the phone and consult me. I would welcome the opportunity to clear up any confusion so that we can avoid more misguided tirades. Please do not hesitate to contact us with any questions. Happy Holidays.
V~ry t~ yours, /
! / ENED. LEE cc:
Joan Herrington, Esq. David F. Jadwin, D.O., F.C.A.P.
2 MTC000149
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 184 of 207
EXHIBIT 19. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/20/07
MTC000150
Dec Dec 20 20 07 07 04:06p 04:06p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1 p.1
Page 185 of 207
The Law Offices of Mark A. Wasser 400 400 Capitol Capitol Mall, Suite 1100 Sacramento, Sacramento, California 95814 Office: Office: 916-444-6400 Fax: 916-444-6405 916-444-6405
Fax To: To:
Eugene Lee
From: Mark Wasser
Fax: Fax:
(213) 596-0487
Pages: 2 (including cover page)
Phone: (213) 992-3299
Date:
Re:
CC:
Jadwin v. County of Kern
D Urgent
D For Review
D Please Comment
December 20, 2007
D Please Reply
D Please Recycle
• Comments: PIease see attached letter.
MTC000151
Dec 20 07 04:06p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices Document 83 of Filed 01/09/2008
lv1ARKA. WASSER
p.2
Page 186 of 207
400 C'piro! Mall. Suite 1: 00 Sacramento, California 95814
Office: 9] 6-444-6400 Fax, 916-444-6405 m.. .'. ra.sscr@m~.rkv . ,:1s.ser.com
December 20, 2007
VIA FACSIMILE
.~,,{D
FIRST CLASS MAIL
Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 -1 010
Re: Jadwin v. County ofKern, et al. Dear Gene: With regard to your letter of this afternoon, I do not understand the miscommunication you reference. We have already produced electronic copies of the first installment of the production. You complemented us on the "good faith" of that production and we have had several conversations with you about our production of the second instalhnent in the same way. It carne as a surprise to read, in your letter, that you really just want to inspect the documents. You have never suggested that before now. In any event, we have suspended all further production efforts and will await discussions with you regarding inspecting the documents. They are in my office.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via facsimile)
Admitted co Practice in California and Nevada
MTC000152
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 187 of 207
EXHIBIT 20. Meet and confer letter faxed by Defendants’ to Plaintiff’s attorney, 12/21/07
MTC000153
Dec 21 07 05:10p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
p.1
Page 188 of 207
The Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400
Fax: 916-444~405
Fax To:
Eugene Lee
From: Mark Wasser
Fax:
(213)596-0487
Pages: 4 (including cover page)
Phone: (213) 992-3299 Re:
Date:
Jadwin v. County of Kern
o Urgent
o For Review
December 21, 2007
CC:
0 Please Comment
0 Please Reply
0 Please Recycle
• Comments: Please see attached letter.
MTC000154
Dec 21 07 05:10p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Law Offices Document 83 of Filed 01/09/2008
MARKA. WASSER
p.2
Page 189 of 207
400 Capitol Mall, Suite 1100 Sacramento) Californi::;. 95814
Office: 916-444-6400 Fax: 916-444-6405 mwasser@marlo:liasser.com
December 21, 2007
VIA FACSIMILE ONLY Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013-1010
Re: Jadwin v. County ofKern, et ai. Dear Gene: Our copy service has delivered a CD to us that contains electronic, Bates numbered copies of the documents we are producing in the second installment of our production. We also have an invoice for $1,167, which represents the cost of preparing one set of copies for you. This amount is not an estimate. It is the actual cost incurred. Upon receipt of payment in the amount of $2,932, to cover the copy cost of this installment and the first one ($1,167 + $1,765 = $2,932; I am enclosing copies of both invoices for your reference.), we will FedEx the CD to you. That will conclude our produJtion of all documents in response to your Request for Production. If you want to discus~ the 12,500 pages of blood product chart copy reports and patient records, let me know. We are not producing them for the reasons I have explained in my previous emails and letters. I
Let me know if you have any questions.
Very Truly Yours,
Mark A. Wasser
cc:
Karen Barnes (via facsimile)
Admitted to Practice in California and Nevada
MTC000155
Dec 21 07 05:10p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
400 Capitol Mall, Suite 690 Sacramento, CA 95814 Tel (916) 444-1414 Fax (916) 444-1011
p.3
Page 190 of 207
INVOICE
DATE
INVOICE #
12/21/2007
39724
E3ILL TO
YOUR BIL.L.ING REFERENCE
Mark Wasser 400 Capitol MaJI, 11th Floor
Jadwin v. County of Kern
Sacramento, CA 95814 Attn:
Mark Wasser
DESCRIPTION
QUANTITY
TERMS
DUE DATE
DELIVERY DATe;
Net 10
12/31/2007
12/21/2007 AMOUNT
RATE
7,635 Scan Documents 8NV to PDF
0.12
916.20T
7,635 Electronic Bates Numbering Documents
0.02
152.70T
15.00
15.00T
7.75%
84.00
1 Burn CD CA Sales Tax
$1,167.90 Federal Tax 10 No. 94-33B3741
IPlease Reference Invoice No. with Payment
MTC000156
Dec 21 07 05:11 p
Mark Wasser
916-444-6405
Case 1:07-cv-00026-OWW-TAG
~IlDFESS IONI\l
Document 83
Filed 01/09/2008
Page 191 of 207
INVOICE
DATE
INVOICE #
11f30/2007
39400
COpy & PRINT SERVICES
400 Capitol Mall, Suite 690 Sacramento, CA 95814 Tel (916) 444-1414 Fax (916) 444-1011
pA
BILL TO
YOUR BILLING REFERENCE
Mark Wasser 400 Capitol Mall, 11th Floor Sacramento, CA 95814
Jadwin v. County of Kern Response to Plaintiffs First Request for Production
Attn:
Amy
TERMS
DUE DATE
DELIVERY DATE
Net 10
12/1012007
11/30f2D07
DESCRIPTION
QUANTITY
RATE
AMOUNT
12,506 Scan Documents 8fW Tiff- Summation/OCR Format
0.14
1,750.84T
12,506 Electronic Bates Numbering Documents
0.02
250. '12T
12,506 Digital Prints from DiskJEmail (B&W)
0.10
1,250.60T
15.00
15.00T
35.00
35.00T 255.87
1 Burn CD 1 Copy DVD CA Sales Tax
7.75%
$3,557.43 Federal Tax 10 No. 94-3383741
I Please Reference Invoice No.
with Payment
MTC000157
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 192 of 207
EXHIBIT 21. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 12/31/07
MTC000158
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 193 of 207
Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Monday, December 31, 2007 5:25 PM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Deposition of Dr. Jadwin
Follow Up Flag: Flag Status:
Follow up Completed
Mark, Your understanding and our understanding of what was agreed to are in conflict. That’s what I would call a “misunderstanding”. Saying that “there was no misunderstanding” and then to follow that by saying “the misunderstanding had to do with your and Ms. Herrington’s decision…” (besides being contradictory) is just your way of saying “I’m right and you two are wrong”. Our recollection is that we DID discuss the creation of a common set of deposition exhibits for everyone’s use. Just because you claim your recollection to be the definitive one doesn’t make it so. Joan and I recollect differently what was said. The second production was due on December 21, 2007. You were supposed to produce the privilege log then as well. The fact that we are now having a motion dispute over that production does not excuse your obligation to provide us with the final privilege log. I assume you aren’t asking us to pay you for the copy costs associated with printing out the privilege log, correct? We will address this refusal to give us a privilege log in our motion to compel. As for my sending emails to you, I only do so as a means of confirming our oral communications. There appear to be a lot of “misunderstandings” whenever we speak so I feel it is necessary to try to combat that by following up our calls in writing. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law Bl09 The Real Meaning of the Holidays O•••mb.c 25, 'II' From: Mark Wasser [mailto:[email protected]]
" . " " ,y "'''"'"''
Sent: Monday, December 31, 2007 5:00 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin 1
MTC000159
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 194 of 207
Gene, It requires some diligence to keep us on the same page. There was no misunderstanding about our agreement to prepare a common set of deposition exhibits for everyone’s use and I very clearly and repeatedly told you so. We are having the reporter sequentially number all deposition exhibits and put them in a binder for that reason. The misunderstanding had to do with your and Ms. Herrington’s decision to copy all the documents produced in the initial disclosures, put them in binders, tab them and treat THEM as the common set of deposition exhibits. We never discussed that and I see no reason to do that. Now that I understand that is what you are propose to do, I will think about how useful it will be and let you know about paying for one set of the binders. At present, I see no advantage to it. I have no interest in marking all the documents produced at the initial disclosures as deposition exhibits. We have already produced the privilege log and will supplement it to reflect the second production. My reference to our position “evolving” was in the context of Royce Johnson’s personnel file. I told you I have learned of new documents I have not yet seen on Friday. Whether they change our position remains to be seen. I will let you know. I also told you that KMC continues to find documents and send them to me. Some of those may need to be produced. I don’t know yet because I have not seen them. I do not recall saying that I intend to examine Dr. Jadwin on “thousands of documents.” I do not. I will examine him on some documents, maybe dozens, but far less than “thousands.” I am not aware of “thousands” of documents that even interest me in this case. If our past history is any indicator of the future, you will now send me an e-mail thanking me for promising to not ask Dr. Jadwin questions about more than a dozen documents. ☺ Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, December 31, 2007 4:33 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, I think the talk was useful in that at least it established that there was misunderstanding between the parties as to the deposition exhibits that plaintiff was preparing for everyone’s use. I agree we should review the transcript because my co-counsel, Joan Herrington, and I had understood that plaintiff was preparing a set of common deposition exhibits for the use of each party at all depositions, which is why we were asking for defendants to pay for a portion of the costs. You say your understanding was different. In any case, the call also established that there is no misunderstanding regarding numerous other issues which are the subject of plaintiff’s motion to compel. For instance, plaintiff’s review of the caselaw shows that responding party, not requesting party, should bear the costs of copying responsive discovery documents, and that responding party is not permitted to withhold document production pending a demand for reimbursement of copying costs. I’ll look for the caselaw, but I can’t name them off the top of my head. Also, as I had mentioned, defendants were supposed to produce a privilege log to plaintiff but never did. Contrary to what you said on the call, production of the privilege log should not be made contingent on actual production of the documents. I had mentioned to you numerous other issues: 1) defendants’ continued use of an overbroad objection referring generally to “federal and state law”, 2) defendants raising of numerous additional objections which had not 2
MTC000160
Case 1:07-cv-00026-OWW-TAG Document 83 Filed 01/09/2008 Page 195 of 207 appeared in the initial responses and were thus waived, 3) defendants’ inappropriate citation to state privileges in a federal court involving federal question jurisdiction, 4) defendants’ refusal to produce any documents in response to numerous requests, 5) defendants’ refusal to produce any documents relating to Dr. Royce Johnson based upon the erstwhile distinction that he was only an “acting chair” and hence not a comparator for plaintiff (when in fact he had been for many many years, and continues to be, a chair in all but title only), etc. I had also mentioned to you that I am presently drafting the joint statement. You stated that defendants’ position continues to “evolve” and it’s possible defendants may change their stance on some of the above disputed issues. Plaintiff is certainly pleased to hear that, but until defendants actually commits to a change in position, plaintiff has no choice but to go ahead and observe the January 9 filing deadline for the joint statement. On a final note, your email mentions “thousands of documents” on which presumably you intend to examine Dr. Jadwin at his deposition. I would remind you of defendants’ ongoing duty under FRCP R 26 to supplement the initial disclosures on an ongoing basis. This duty is separate and apart from the discovery dispute we are having regarding plaintiff’s requests for production, set one. You should not expect to unfairly surprise plaintiff with documents at Dr. Jadwin’s deposition that you were under an ongoing duty to disclose but did not. If this scenario materializes, we intend to cease defendants’ deposition of Dr. Jadwin and immediately file a motion for protective order. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays o ••emb.c 25, 'II' From: Mark Wasser [mailto:[email protected]] " ..."
Sent: Monday, December 31, 2007 3:19 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
,y ...oo,,"..
Gene, So, we talked, the talk was pleasant although we did not resolve much. We can review the transcript, if you want, but I do not recall any communication when you explained that you were going to copy all the initial disclosures and tab them and put them in binders and make me a set. I had no understanding that you were doing that. Now that we have discussed it, the question arises as to why we would do that with the initial disclosures and not the rest of the thousands of documents that have been produced. There is nothing special about the initial disclosures that I know of. You told me the cases do not support our request that you reimburse the copy costs. Although you did not cite any case, I will look at it further and let you know what I find. 3
MTC000161
Mark
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 196 of 207
From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, December 31, 2007 2:38 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, My view is different from yours. I have always understood that a phone call would clarify where written communications fail. In any case, we will be sending you the joint statement shortly. If you wish to discuss it (via written communications, per your wishes), please do not hesitate to let me know. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' From: Mark Wasser [mailto:[email protected]] n ..." ,y "'",," ..
Sent: Monday, December 31, 2007 2:23 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene,
I think this issue is best left to written communications. I know what I have written to you and you do not read what I have written the same way I do. That miscommunication is enough. I do not want to risk compounding it with an oral conversation. I expect our written communications will be provided to the Court and I have written them with that in mind. I agree with you that this detour is unfortunate and a waste of time but you are the moving party. The documents remain available upon payment of the cost cost. Mark
4
MTC000162
Case 1:07-cv-00026-OWW-TAG
Document 83
From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, December 31, 2007 2:03 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Filed 01/09/2008
Page 197 of 207
Mark, Regarding accommodations for Dr. Jadwin at trial, I suggest we cross that bridge when the time comes. Trial is still a year off and Dr. Jadwin’s condition is subject to change. Are you claiming that the accommodations needed by Dr. Jadwin for a deposition in January 2008 will be exactly the same as those required for a trial in December 2008? I hope you will agree that we should leave those kinds of determinations to the medical professionals. As for your inability to comprehend the issue regarding the copies, please give me a call. I’ve already tried to explain the issue to you on numerous occasions in numerous ways and at this point, I think your confusion would best be remedied by a call. Also, I would kindly ask that you review your own emails to me before asking me to refresh your recollection for you as to your role in the discovery cost dispute. They will be attached to the joint statement. If you still require clarification, please give me a call. I would be happy to try to explain the content of your emails to you. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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.
Califocnia Laboc & Emplo,ment Law Bl09 The Real Meaning of the Holidays O•••mb.c 25, 'II' From: Mark Wasser [mailto:[email protected]]
" . " " ,y "'''"'"''
Sent: Monday, December 31, 2007 1:23 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene,
Be sure you ask Dr. Jadwin’s treating physician to address the accommodations that will be necessary when he testifies in court. I know you won’t request accommodations in his deposition that you won’t also be requesting from Judge Wanger at trial. I expect Dr. Jadwin’s trial testimony will last more than one day, so we should discuss that, as well. The last part of your message does not make sense to me as I understand we are having a common set of deposition exhibits with a consistent numbering system. Have you changed that? Perhaps you can explain what you mean. Also, I do not recall creating a dispute about discovery costs. Clarification on that will be helpful, too. Mark 5
MTC000163
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Page 198 of 207
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 28, 2007 6:15 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, Thank you for your email. I do not recollect Dr. Jadwin behaving in anything close to the manner you describe. We can get a declaration from the court reporter, if you wish. Also, unless you have a background in disabling depression and its symptoms, I would submit that your clinical observations are in any event irrelevant. I happened to notice you and Ms. Barnes dozing off from time to time during the depositions; perhaps that might explain the discrepancies in your recollection. At other times, you were nearly supine in your chair as you stretched your feet under the table toward the deponent during testimony; perhaps as a result you didn’t have a good vantage point to notice what Dr. Jadwin was doing. I recommend we wait and see what restrictions Dr. Jadwin’s treating psychiatrist prescribes and then we can discuss reasonable accommodations. I just wanted to give you the courtesy of advance notice. I assume you are just as interested as we are in ensuring Dr. Jadwin’s best testimony. Regarding the copies of deposition exhibits, we had agreed to create a single common set of deposition exhibits (comprised of all Rule 26 Initial Disclosures in chronological order) for the use of BOTH plaintiff and defendants, i.e., you would have had the use of this set for your deposition of Dr. Jadwin and any other depositions you choose to conduct in the future. This way, we could’ve ensured a consistent exhibit numbering system and easily avoided duplicates of exhibits, not to mention made things more efficient for all future depositions for all parties. However, you changed your mind about bearing a portion of the photocopy cost (which does not even account for the time spent by plaintiff to create the set, work with Kinko’s and proof it) and decided to turn it into a broader dispute about discovery costs. That’s too bad – I fail to see how this has benefitted anybody. In any case, no hard feelings. I hope you have a good weekend. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.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. 6
MTC000164
Case 1:07-cv-00026-OWW-TAG
Document 83
Filed 01/09/2008
Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' From: Mark Wasser [mailto:[email protected]] " ..."
Sent: Friday, December 28, 2007 5:33 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Page 199 of 207
,y "'oo,,"..
Gene, With regard to Dr. Jadwin’s deposition, his disabling depression did not seem to interfere with his ability to sit through 10 hours of back-to-back depositions in one day that exhausted the reporter a few weeks ago. In fact, he remained quite animated all day as he worked his laptop computer with you. He even left in the middle of one deposition to attend to other business. I am confident we can work something out to allow him to cope with his disabling depression in his deposition. I will not go past 5:00 and we can take more and longer breaks. We will not be going into the evening hours as you did. We will do our best to help him through it. With regard to the cost of deposition exhibits, we will be pleased to reimburse each other for all copies. Wanting us to pay your copy costs while balking at paying ours is not particularly consistent. Let us know what your position on copy costs is going to be. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, December 28, 2007 5:12 PM To: [email protected] Cc: 'Joan Herrington' Subject: Jadwin/KC: Deposition of Dr. Jadwin
Mark: With Dr. Jadwin’s deposition coming up, I need to discuss a couple of things with you. As you know, Dr. Jadwin has disabling depression for which he continues to receive medication and treatment. He is consulting his treating psychiatrist but it appears he may have difficulty sitting through more than 3 or 4 hours of deposition in a single day. We will let you know what his psychiatrist determines. If we can’t finish it this time around, it may be necessary as a reasonable accommodation to resume his deposition at a time in the near future. Also, as you know, we have already prepared a set of deposition exhibits that originally had been intended for the use of all parties (but you refused to pay any of the associated cost). Please note that our exhibits run from exhibit no. 27 to exhibit no. 558. Please begin the numbering of your deposition exhibits for the Dr. Jadwin deposition at exhibit no. 559. If you have any questions, please let me know. Otherwise, I hope you have a good weekend. Sincerely, Gene Lee 7
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LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.com
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Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' n ..." ,y "'",," ..
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EXHIBIT 22. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/2/08
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Eugene D. Lee From: Sent: To: Cc: Subject:
Eugene D. Lee [[email protected]] Wednesday, January 02, 2008 3:53 PM '[email protected]' 'Joan Herrington' RE: Jadwin/KC: Deposition of Dr. Jadwin
Follow Up Flag: Flag Status:
Follow up Flagged
Mark, I’m glad to see that you admit that my December 28 email had slipped your mind. But now you say, definitively, “That was the first time”. Again, my recollection is different. We had mentioned the initial disclosures as “common exhibits” to you several times both during the depositions and afterwards. It appears these other instances have slipped your mind as well. As for your confusion about “nondisclosure” of documents, I refer you to FRCP Rule 26 and its attendant caselaw. If you still remain confused about what Rule 26 and its ongoing duty to supplement entails, please feel free to give me a call and I will do my best to explain the issue to you. Given the way in which our written communications tend to get bogged down in mis-recollections of events, I believe a call would be more efficient. My cell is 213-4531781, please call me any time. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.com
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Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays Decembec 25, 'II' " ..."
,y "'oo,,"..
From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, January 02, 2008 3:35 PM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene, 1
MTC000168
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My mistake, you did mention using the initial disclosures as “common exhibits” on December 28. That was the first time. The issue remains that you did not inform me of your decision to use them earlier. When you write that “it is only natural that we had discussed them,” you lose me. Why is that only natural? The fact is, we did not discuss using the initial disclosures as a common set of exhibits. I am tired of this topic and will not go round and round with you on it any more. It is pointless. As I recall, the discussion originated in your request that I pay for one set of binders. I still do not see their utility. The rest of your message, about the “nondisclosure” of documents to Dr. Jadwin, loses me, again. I have no idea what you are referring to. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Wednesday, January 02, 2008 12:25 PM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin
Mark, Your email states: “At no point before our communications on Monday did either you or Ms. Herrington ever disclose that you had decided to mark all the documents produced at the initial disclosures as deposition exhibits.” By Monday, I assume you are referring to last Monday, December 31, 2007. As has so often been the case, regrettably, your recollections are flawed. I refer you to my email to you of December 28, 2007, where I stated: “Regarding the copies of deposition exhibits, we had agreed to create a single common set of deposition exhibits (comprised of all Rule 26 Initial Disclosures in chronological order) for the use of BOTH plaintiff and defendants, i.e., you would have had the use of this set for your deposition of Dr. Jadwin and any other depositions you choose to conduct in the future.” We had also discussed the above at the last set of depositions and on the phone afterwards. But perhaps you don’t recollect that either. I would also remind you that Rule 26 requires that the parties produce to each other all documents which are relevant to any claims or defenses in the action. Rule 26 also imposes on all parties a continuing duty to supplement their Initial Disclosures. Assuming defendants have complied with Rule 26, it’s only natural that we had discussed and agreed to turn the Initial Disclosures into a common set of deposition exhibits. You say you now disagree. May I ask what documents you intend to examine Dr. Jadwin on at his deposition outside of the Initial Disclosures and whether they have been disclosed to plaintiff as required by Rule 26? If they have not been disclosed, plaintiff intends to file a motion for protective order to ensure Dr. Jadwin is not unfairly surprised at his deposition. I had already mentioned this nondisclosure issue in a previous email, but I remind you again given the difficulties we are having with your ability to comprehend sentences and recollect events accurately. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF 2
EUGENE
LEE MTC000169
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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 B l o g : www.CaLaborLaw.com
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Califocnia Laboc & Emplo,ment Law 0109 The Real Meaning of the Holidays o ••emb.c 25, 'II' " ..."
,y ...oo,,"..
From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, January 02, 2008 9:39 AM To: [email protected] Subject: RE: Jadwin/KC: Deposition of Dr. Jadwin Gene, Why is it so hard to communicate with you? You write in this message, again, that you and Ms. Herrington recall that “we
DID discuss the creation of a common set of deposition exhibits for everyone’s use.” Yes. I know. I agree. There is no disagreement over that. Why do you insist on restating that which we agree on? The disagreement is over your undisclosed decision to make the initial disclosures the common set of exhibits. That is the issue. We have exchanged several e-mails about this and spoken about it but you still do not seem to get it. No one is disputing the wisdom of making a common set of exhibits. The issue is your decision to use the documents produced at the initial disclosures as the common set. I don’t know how to write that more clearly. As I wrote on Monday, I see no utility to marking all the initial disclosures as deposition exhibits. Why does that seem like a good idea? Perhaps you can explain that. Our agreement was to have the reporter prepare a binder with the sequentially marked deposition exhibits. That is the “common set.” She has done that. That is what we agreed to. At no point before our communications on Monday did either you or Ms. Herrington ever disclose that you had decided to mark all the documents produced at the initial disclosures as deposition exhibits. If you can refer to me to any communication where you did, please do so. Mark
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EXHIBIT 23. Meet and confer emails between Plaintiff’s and Defendants’ attorney, 1/4/08
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Eugene D. Lee From: Sent: To: Subject:
Mark Wasser [[email protected]] Friday, January 04, 2008 10:00 AM [email protected] RE: Photocopy costs.
Gene, No. I am not researching this for you. I have done my research. It is your motion to compel. I presume you have authority to support your motion. If not, too bad. If so, proceed with your motion. I am satisfied with my position. Mark
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, January 04, 2008 9:53 AM To: [email protected] Cc: 'Joan Herrington' Subject: RE: Photocopy costs.
Mark, I would appreciate the case citations. I look forward to receiving them. Sincerely, Gene Lee ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW
OFFICE
OF
EUGENE
EMPLOYMENT
LEE
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 B l o g : www.CaLaborLaw.com
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Califocnia Laboc & Emplo,ment Law 0109 Minimum Wage IS Now $8,00 per Hour Janua..... , '00'
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From: Mark Wasser [mailto:[email protected]] Sent: Friday, January 04, 2008 9:30 AM To: Eugene Lee Subject: Photocopy costs. Gene, 1
MTC000172
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Document 83
Filed 01/09/2008
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I have found cases that say the requesting party must pay the cost of photocopying documents. I have found no cases that hold otherwise. You said you had some. If you do, give me the cites. So far, I find no support for your position. 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]
2
MTC000173
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