Case 1:07-cv-00026-OWW-TAG
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Mark A. A. Wasser Wasser CA CA SB SB # 60160 60160 Mark MARK A. WASSER WASSER LAW OFFICES OF A. MARK OF LAW OFFICES 400 Capitol Capitol Mall, Mall, Suite Suite 1100 1100 400 Sacramento, CA 95814 95814 Sacramento, CA Phone: (916) (916) 444-6400 444-6400 Phone: Fax: (916) (916) 444-6405 444-6405 Fax: E-mail: mwasserialmarkwasser.com E-mail: mwasseriimarkwasser.com Barmann, Sr. Bernard C. Barmann, Bernard C. KERN COUNTY COUNTY COUNSEL COUNSEL Chief Deputy Mark Mark Nations, Chief 1115 Truxtun Truxtun Avenue, Fourth Fourth Floor Floor CA 93301 Bakersfield, Bakersfield, Phone: 868-3800 (661) 868-3800 Phone: (661) Fax: (661) (661) 868-3805 868-3805 E-mail:
[email protected] mnations wco.kern.ca.us Attorneys for Defendants County of Kern, Defendants County Peter Bryan, Irwin Harris, Eugene Kercher, Kercher, Eugene Peter Jennifer Abraham, Smith Abraham, Scott Ragland, Toni Smith and and William Roy
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UNITED COURT DISTRICT COURT STATES DISTRICT UNITED STATES
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EASTERN DISTRICT OF CALIFORNIA CALIFORNIA
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DAVID JADWIN, D.O. DAVID F. JADWIN,
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Plaintiff, Plaintift. vs. vs.
al., COUNTY et aI., OF KERN, et COUNTY OF
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Defendants. Defendants.
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DECLARATION MARK A. WASSER WASSER DECLARATION OF MARK INABILITY TO PREPARE RE: INABILITY PREP ARE AND AND EXECUTE A JOINT STATEMENT STATEMENT RE: DISCOVERY DISAGREEMENT AND AND IN IN DISCOVERY DISAGREEMENT COMPEL TO MOTION OPPOSTION TO MOTION COMPEL
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14, 2008 Date: January 14, Time: 9:30 a.m. Bankruptcy Courthouse, Place: Place: U.S. Bankruptcy Bakersfield Courtroom 88 Bakersfield
Date Action Filed: January 6, 2007 ~)2Date Trial Date: August 26, 2008 Trial
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Case No.: 1:07-cv-00026-0WW-TAG 1:07-cv-00026-OWW-TAG
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37-251 (d) Rule 37-251(d) Local Rule to Local pursuant to of Mark A. Wasser pursuant Declaration of this Declaration submit this Defendants Defendants submit to motion to Plaintiff'ss motion to Plaintiff and in opposition to disagreement and discovery disagreement re: discovery statement rei in joint statement ofaajoint lieu of in lieu compel. compel.
28 28 AND PREPARE AND TO PREPARE INABILITY TO RE: INABILITY WASSER RE: A. WASSER MARK A. OF MARK DECLARATION OF DECLARATION AND DISAGREEMENT AND DISCOVERY DISAGREEMENT RE: DISCOVERY STATEMENT RE: JOINT STATEMENT EXECUTE AA JOINT EXECUTE COMPEL TO COMPEL MOTION TO TO MOTION OPPOSITION TO IN OPPOSlTlON IN
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Case 1:07-cv-00026-OWW-TAG
Document 84
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Mark A. A. Wasser, Wasser, declare declare as as follows: follows: I,I, Mark
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1. 1.
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am counsel counsel of ofrecord record for for Defendants. Defendants. The The facts factsininthis thisDeclaration Declarationare aretrue trueand and 1I am
correct of ofmy my personal personal knowledge knowledge and and II can can testify testify competently competently to to them themififcalled calledasasaawitness. witness. correct
2.2.
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Defendants' opposition opposition to to Plaintiff's Plaintiffs motion motionto to compel compel isis due due tomorrow, tomorrow, January January Defendants'
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9,2008. Although Plaintiff Plaintiffhas has prepared prepared aa draft draft proposed proposedjoint joint statement statementrediscovery re discovery 2008. Although 9,
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disagreement as as required required by by Local Local Rule Rule 37-251, 37-251, Plaintiff Plaintiffproposes proposes to to attach attachto to the the draft draft almost almost disagreement
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of exhibits exhibits that that Defendants Defendants do do not not have have and and have have not not seen seen and and Defendants Defendants are are 200 pages pages of 200
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unwilling to to review, review, revise revise or approve approve the the draft draft without without the the exhibits. exhibits. Consequently, Consequently, Defendants Defendants unwilling
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have prepared this Declaration Declaration to explain explain their their inability inability to to complete complete the the joint joint statement. statement. have prepared
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3.
Attached hereto hereto as Attachment Attachment A, A, is aa true true and and correct correct copy copy of ofthe the January January 4,4, Attached
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2008 Plaintiff s counsel counsel transmitting transmitting a draft draft of of the joint joint statement statement and and advising advising letter from Plaintiffs 2008 letter
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Defendants' "almost 200 200 pages" of exhibits exhibits to the the draft draft joint joint statement statement are are in in the the counsel that "almost Defendants' counsel
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mail.
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4. 4.
Defendants' counsel Plaintiffs counsel at at 11:00 II :00 p.m. p.m. on on Plaintiff's counsel transmitted the letter to Defendants'
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January disrupted electrical power and telephone telephone service service throughout throughout electrical power 5, a storm disrupted January 4. On January 5,
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Sacramento where California and resulted in the closure of the building where Northern California and Northern Sacramento and
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Defendants' his office. Power and telephone service was not restored until Monday, counsel has his Defendants' counsel
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January are noon on January 7 to attend depositions in this case that are left Sacramento at noon 7. I1left January 7.
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had not As of the time II left my office, I had scheduled not Bakersfield. As 10 in Bakersfield. and 10 8, 99 and January 8, for January scheduled for
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do not received not proposed joint statement. They still have not arrived. II do draft proposed the draft to the exhibits to the exhibits received the
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them. seen them. not seen Declaration, have not of this Declaration, date of the date of the as of and, as know ofand, consist of exhibits consist the exhibits what the know what
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5.5.
is prepared is Plaintiff has prepared statement that Plaintiff draft joint statement The proposed draft the proposed of the text of The text
acceptable mutually acceptable at aa mutually arrive at to arrive possible to be possible will be believe itit will not believe do not misleading Defendants do and Defendants misleading and
24 statement. joint statement. 24 joint 25 25
6.6.
that letters that of letters copies of correct copies and correct true and are true Attachment BB are as Attachment Attached hereto as Attached hereto
parties the parties between the discussions between summarize discussions that summarize counsel that Defendants' counsel to Defendants' sent to 26 counsel sent Plaintiff scounsel 26 Plaintiffs letters The letters documents. The ofdocuments. production of for production request for Plaintiff's request response toto Plaintiffs 27 Defendants' response regarding Defendants' 27 regarding 28 28
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AND PREPARE AND TO PREPARE INABILITY TO RE: INABILITY WASSER RE: A. WASSER MARKA. OFMARK DECLARATION DECLARATION OF AND DISAGREEMENT DISCOVERY RE: STATEMENT RE: DISCOVERY DISAGREEMENT AND JOINTSTATEMENT EXECUTE EXECUTEAAJOINT COMPEL TOCOMPEL MOTION TO TOMOTION OPPOSITION TO INOPPOSITION IN
Case 1:07-cv-00026-OWW-TAG
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memorialize the agreement agreement between between the the parties parties that that Defendants Defendants would would produce produce copies copies of ofthe the memorialize
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requested documents by photocopying photocopying them them and and delivering delivering the the copies copies to to Plaintiffs Plaintiffs counsel. counsel. In In requested documents
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reliance on this agreement, agreement, Defendants Defendants copied copied and and produced produced several several thousand thousand documents documents on on
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November Plaintiff did not not object object to the the production production and and even even noted noted that that itit was was aa 20, 2007. Plaintiff November 20,2007.
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substantial, production. It It was was understood understood and and agreed agreed that that the the Defendants Defendants would would "good-faith" production. substantial, "good-faith"
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not documents. The documents documents Plaintiff Plaintiffhas has requested requested include include thousands thousands original documents. producing original be producing not be
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of original patient records records from Kern Medical Center. It It is neither neither feasible, feasible, possible possible nor nor lawful lawful Medical Center.
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to produce produce them at the office of Plaintiffs Plaintiff s attorney attorney in in Los Angeles. Angeles.
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6.
It was also agreed between parties that that Defendants Defendants would would produce produce the the between the parties
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requested Plaintiffs request request for production production encompassed encompassed requested documents in multiple productions. Plaintiffs
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over was not not possible possible for Defendants Defendants to to locate, locate, documents that fill more that 12 boxes. It was over 30,000 documents
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assemble, copy and deliver all those documents November 20. 20. Plaintiff Plaintiffss letters letters (See (See documents by November
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Attachment regarding multiple multiple production production dates. dates. agreement regarding parties' agreement acknowledge the parties' Attachment B) acknowledge
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Defendants productions but, but, through through diligent diligent originally anticipated three or even four separate productions Defendants originally
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work, productions. work, were able to produce all documents in only two productions.
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7. 7.
reasonable cost of photocopying Upon inforn1ing photocopying the the documents documents to to informing Plaintiff of the reasonable
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be compel. All All the the be produced, Plaintiff announced his refusal to pay and filed this motion to compel.
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Defendants' counsel documents counsel where where they they have been copied onto a CD and are in the office of Defendants' documents have
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Defendants remain reimbursement from Plaintiff. have Plaintiff Defendants remain ready, ready, December 21 awaiting reimbursement been since December have been
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reimbursement of the reasonable willing reasonable to deliver the documents to Plaintiff upon reimbursement able to and able willing and
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costs. reproduction costs. reproduction
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8.8.
have that have privilege log of all documents that have provided Plaintiff with aa privilege Defendants Defendants have
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as Plaintiff soon as as soon provide a supplemental privilege log as will provide Defendants will date. Defendants been Plaintiff to date. produced to been produced
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documents. the documents. of the balance of the balance accept the will will accept
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9. 9.
all documents are prepared to produce all have copied and are Defendants have Defendants documents that that Plaintiff Plaintiff
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relate to that relate records that copy records product chart copy blood product pages of blood 11,000 pages about 11,000 for about except for has to requested except has requested
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records and records case and this case in this issue in relation to any issue no relation have no that have patients that to patients delivered to blood products delivered blood products
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AND PREPARE AND TO PREPARE INABILITY TO RE: INABILITY A. WASSER RE: MARK A. OF MARK DECLARATION OF DECLARAnON AND DISAGREEMENT AND DISCOVERY DISAGREEMENT RE: DISCOVERY STATEMENT RE: JOINT STATEMENT EXECUTE AA JOINT EXECUTE COMPEL TO COMPEL MOTION TO TO MOTION OPPOSITION TO IN OPPOSITION IN
Case 1:07-cv-00026-OWW-TAG
Document 84
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that are are privileged. privileged. Defendants Defendants have have informed informed Plaintiff Plaintiffthat, that, if ifhe he wants wants the the blood bloodproduct product chart chart that
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copy documents, documents, Defendants Defendants will will ask ask this this Court Court for for an an order order cost-shifting cost-shifting the the production production costs costs toto copy
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Plaintiff. No No other other cost-shifting cost-shifting order order isis anticipated anticipated at at this this time. time. Plaintiff.
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10. 10.
Defendants consider consider the the motion motion to to compel compel to to be be premature premature because because Plaintiff Plaintiffhas has Defendants
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not even documents Defendants Defendants are are producing producing yet yet isis already already objecting objecting to to them. them. There There isis even seen the documents not
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no way to evaluate Defendants' Defendants' production production until until the the documents documents have have been been produced. produced. to evaluate no way
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11. 11.
Plaintiff s complaint complaint states states claims claims that are are grounded grounded in in both both state state and and federal federal law. law. Plaintiffs
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State privileges apply to the the state state claims claims and federal federal law law privileges privileges apply apply to to the the federal federal law privileges State law
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Thompson Co. v. General General Nutrition Nutrition Corp., Corp., Inc., Inc., 671 671 F.2d F.2d 100, 100, 103 103 claims. e.g, Wm. T. Thompson (See, e.g., claims. (See,
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(3rd Cir. 1982).) properly asserted asserted state state law law privileges privileges to documents documents that that relate relate 1982).) Defendants have properly
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to Plaintiffs Plaintiffs contention contention that only only federal federal privileges privileges apply apply is is Plaintiff's state law claims. Plaintiff's
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incorrect. incorrect.
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12.
Defendants are entitled to be paid paid for the the reasonable reasonable photocopy photocopy expenses expenses of of
copying the documents Plaintiff has requested. copying the 13. 13.
Plaintiffs Defendants do not object object if if it is is Plaintiff s motion to compel should be denied. Defendants
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denied documents have been been produced produced if good good cause cause without prejudice to being re-filed after the documents denied without
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exists filing itit then. for filing exists for
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II certify correct. under penalty of perjury that the foregoing is true and correct. certify under Executed 8th day of January, 2008, in Bakersfield, California. Executed this 8th
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Mark A. Wasser /s/ Mark By: By: /s/
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Mark A. Wasser
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4 4 AND PREPARE AND TO PREPARE INABILITY TO RE: INABILITY WASSER RE: A. WASSER MARK A. OF MARK DECLARATION OF DECLARATION AND DISAGREEMENT DISCOVERY RE: STATEMENT JOINT A EXECUTE EXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT AND COMPEL TO COMPEL MOTION TO TO MOTION OPPOSITION TO IN OPPOSITION IN
Case 1:07-cv-00026-OWW-TAG
Document 84
ATTACHMENT A ATTACHMENT
Filed 01/09/2008
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01/09/2008 15:48 15:48 FAX FAX To:01/09/2008 1Ii~ Ilasser @IB-44--648 @ 916-4114-6485 N Mar To:
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Joillt Statllmellt rO re Discovery Discovery DiSaI~reMent Disagl'41emellt Joint Statement Jadwin /I County County of of Kern, Kern, olOt al, (USDC (USDC EDCA EDCA No. No. 1:07-vw-00026-OWWfAG) l,Il?.,...'OO026-0WWrr AG) jaWM
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Case 1:07-cv-00026-OWW-TAG
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555 WEST WEST FIFTH FIFTH STREET, STREET, SUITE SUITE 3100 3100 555 LOS ANELES, ANGELES, CALIFORNIA 900 1 :3-1 0 I 0 CALIrORNIA 90013-1010 LOS
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EUGENE DD. LEE, LEE, ESQ ESQ EUGENE PRINCIPALPRINCIPAL
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[email protected] [email protected] E-MAIL E-MAIL
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JOAN K I-MERRINGTON, HERRINGTON,ESQ ESQ JOAN OFCOUNML COUNSEL OF
November November 15, 15, 2007 2007 VIA FACSIMILE FACSIMILE VIA Mark Wasser Mark Wasser Law Offices Offices of Mark Wasser 400 Capitol Mall Mall Ste 1100 1100 Sacramento, 95814 Sacramento, CA 95814 Re:
10001 LOOI 100011.001
Plaintiff's Requests for Production, One Production- Set One Plaintiffs Requests Jadwin! Kern, et al. (USDC (USDC EDCA No. No. 1:07-cv-00026-OWWiTAG) I :07-cv-00026-0WW!TAG) Jadwin / County of Kern.
Dear Mark Mark: It was a pleasure speaking conferring with witb you you yesterday yesterday on Plaintiffis Plaintiff's Requests Requests speaking and meeting and conferring
letter confirms confirms the content content of of our our discussions. discussions. For Production, Production, Set One to County of Kern. This letter We confirmed that we were were in 8, 2007, and you confirmed letter to you of November 8,2007, reviewed my letter We reviewed discussion, further required agreement with most discussion, as of the issues stated therein. Only a few items most oftbe follows: follows:
DOCUMENT REQUESTS REQUESTS I.I. TENTATIVE AGREEMENTS! CLARIFICATIONS RE DOCUMENT AGREEMENTS / CLARIFICAnONS defendants would We would provide provide a plaintiff's requests for production and agreed that defendants discussed plaintiffs We discussed 19, 21, 27 18, requests: following the 20. with the exception of written ofthe requests: 18, 19,21,27, response by November 20, written response had require further clarification by Defendants. You had 28,42-45,54-57,59, which require 61-63, which and 61-63, 28, 42-45, 54-57, 59, and 21. 7 November of dates indicated varying expected production dates ofNovember 16, December and December 21. On On indicated varying expected to 21 December the production date would be changed from certain to agreed that the we agreed requests, we certain requests, 47. December and 47. 46 and 20, 46 7: 20, December 7: the to the respect to clarifications with respect agreements and clarifications tentative agreements the tentative made the parties made In the parties addition, tbe In addition, requests: following requests: following agreement/clarification Tentative agreement/clarification Req Tentative Doc Req Doc No. 26No. Defendants may have destroyed some of these files. Defendants will note this in Defendants may have destroyed some of these meso Defendants will note this in 26 20. November 20. by November response by response produce. to produce. and refusal to with objection and 20 with November 20 by November respond by to respond Defendants to Defendants 40 40 compel. to compel. motion to file aa motion to file intends to Plaintiff intends Plaintiff each as eacb "deaths", as patient "deaths", and patient "fatalities" and patient both patient "fatalities" for both statistics for seeks statistics Plaintiff Plaintiffseeks 54 54 Defendants other. the otber. Defendants to the compared to be compared must be and must meaningful and not meaningful alone isis not considered alone considered
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are considering considering objecting objecting to to disclosure disclosure of of"fatalities" "fatalities" statistics statistics due due to to peer peer review review are privilege. Plaintiff stated that this does not fall under peer review privilege. privilege. review peer under privilege. Plaintiff stated that this does not fall Defendants to to produce produce in redacted redacted form. form. Defendants Defendants to produce redacted form. form. redacted in produce Defendants Groupwise archives archives were were destroyed destroyed as as part part of of aa routine routine sweep. sweep. Defendants Defendants will will note note Groupwise this in in response response by November November 20. 20. this , Plaintiffs , Defendants Defendants are are reviewing revlelJ\mg PlamtIff's suggested suggested production productIon procedure. procedure. Defendants Defendants ISbelieve believe the the initial initial 120 120 day day estimate estimate may may have have been been too too conservative. conservative.
II. MEDICAL MEDICAL RECORD RECORD NOS. NOS. / REDACTION REDACTION IN IN GENERAL GENERAL II.
Defendants of disclosing disclosing medical medical record record numbers to to Plaintiff. considering the issue of Defendants are still considering Plaintiff number cannot be linked linked to tc aa patient patient name name without without access access to to KMC-s KlvlC's explained that the number Plaintiff explained are numbers case which computer, and that Plaintiff requires in order determine which case numbers are determine to order in number this Plaintiff computer, and associated with each other. We confer conference conference call call with with you at at 10:00 10,00 a&m. a.m. on on Monda" M(md.ay look forward to our next meet and confer We look November any questions questions or if if you you need need to to rereo contact us with any November 26, 2007. Please do not hesitate to contact schedule. yours, tRnt ~ours, vVery 7I;y truly
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[email protected] [email protected] E-MAIL ELMAIL
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JOAN JOANWE.HERINGTON, HERRINGTON,ESQ ESQ OF OFCOUNSEL COUNSEL
November22, 22,2007 2007 November VIA FACSIMILE FACSIMILE VIA Mark Wasser Wasser Mark Law of Mark Mark Wasser Wasser Law Offices Offices of II 00 400 Capitol Capitol Mall Mall Ste Ste 1100 400 4 9581 Sacramento, 95814 CA Sacramento, Re: Re:
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Defendants Responses Responses to to Plaintiff's Plaintiffs Requests Requests for for Production, Production, Set Set One One Defendants I:07-cv-00026-OWW/TAG) Jadwin 1 County of Kern, et a1. (USDC EDCA No.1 :07-cv-00026-0WW ITAG) No. EDCA Jadwin / County of Kern, et al. (USDC
Dear Mark: Dear Mark:
,p,,,,,,,.HE;\vith yeSlcrU2:y regarding n,p8ntino my my' email email of of Novrember November 20. 20. It P",=Ul speaking with you yesterday it was a pleasure I.1.
OVERBROAD OVERBROAD OBJECTION
As explained that defendants' defendants' oft-used oft-used objection, objection, "documents "documents know, in that email, we had explained you know, As you 34 because Rule FRCP with comply because protected from disclosure by state or federal law", does not comply with FRCP Rule or protected from disclosure documents the to relates objection itit (a) the documents and (b) fails to explain how the stated and broadly stated too broadly is too (a) is We look look demanded. re-state this objection. objection. We defendants would re-state the call, you indicated that defendants demanded. During the Monday's to discussing this further with you on Monday's call. forward further this forward to discussing
n.II.
ISSUES SPECIFIC RESPONSES TO SPECIFIC RELATED TO ISSUES RELATED
responses to plaintiff requests written responses with defendants written Plaintiff requests issues with following issues the following notes the also notes Plaintiff also for one: set one: production, set for production, Issue Response Issue Response to Doe to Doc , Req No. Req No. the are the extent are what extent to what Also, to longtime. excessively long an excessively be an to be 23/24 December time. Also, seems to 21 seems December 21 23/24 privileged? timesheets attorney-client privileged? timesheets attorney-client attorneyperformance attorneyjob performance plaintiff's job to plaintiff's relating to documents relating these documents are these 25 To extent are whatextent Towhat 25 client privileged? client privileged? and treatment and disparate treatment prove disparate to prove essential to are essential documents are 32 These These documents 32 resolve cannot resolve we cannot ifwe compel if to compel move to to move intend to We intend intent. We discriminatory/retaliatory discriminatory/retaliatory intent. this. this. I or complaints or to complaints request to this request narrowed this had narrowed plaintiffhad calls, plaintiff confer calls, andconfer meetand 33 InIn past pastmeet 33 government to aa government made to been made had been which had Center which Medical Center Kern Medical relatingtotoKern grievances grievances relating
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! agency or court. These documents are essential to prove disparate treatment treatment and
disparate provecompel discriminatory/retaliatory intend to move we cannot cannot resolve resolve if we discriminatory/retaliatory intent. We essential to to compel are this. this.e nor court. These documents ag what extent are these documents attorney-client 40 1 36 privileged? attorney-client privileged? To 39 I To to 39 36 to and tThese documents are essential to disparate treatment and . 40 treatment prove These documents iesolve cannot we if compel to i 69 I ~iscriminatorylretaliatory intent. We intend move compel cannot resolve I to intend diWscriminatory/retaliatory this. I I thlS. J To what extent are documents relating to the May 2005 oncology conference 42 I 42 i To what extent are documents relating to the May 2005 oncology conference attorney-client privileged? presentation attorney-client -. • I~.=-_-----t~=.:c::==~~::L;-=;:.:..L:':'==::':-"--.--~--::----;--~-.----C-~ I presentation privileged? await defendants' response on the patient medical record number issue, both still await We still 69 69 ! We defendants' response on the patient medical record number issue, both disclosures. _ ~~~~_.. I for past and for future disclosu~es. 70% I These documents are essential to prove disparate treatment and and disparate treatment These documents length unacceptable an is ! discriminatory/retaliatory intent. January 7,2008 unacceptable length of time to 2008 7, January discriminatory/retaliatory cannot we if ii wait oompel we oannot resolve resolve this. I documents. We intend to move to compel these documents. for these wait for production. I 78 i Defendants fail to indicate a date of production. Defendants fail 78
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78 REQUEST 78
Regarding plaintiff proposes proposes defendants defendants produce produce the the Request 78, as a means to save time, plaintiff Regarding Request conference if you wish. following. following. We can discuss this at our next conference 1. 1.
A 88307 reports will produce produce all placentas. placentas. printout of aa list of all CPT code 88307 A printout require There placentas per year. This process process should require no no more more There are less than 4,500 placentas hours. four than than four
2. 2.
A At two reports reports per per A printout of all pathology reports appearing on the above list. At 40 minute, this should require approx. hours. minute,
3. 3.
Redaction of patient names (appearing (appearing in 3 places places on each each report) report) is is aa highly highly repetitive task that should require far less than 40 hours. If automated automated using using Acrobat it should take even less scanning and Adobe Acrobat, less time. time.
clerical and do not require a great deal deal of of skill. skill. These tasks are clerical These tasks conference call with you at 10:00 10:00 am. on Monday, Monday, We next meet and confer conference our next We look forward to our need you if or questions any with us contact to November questions or if you need to to reredo not hesitate November 26, 2007. Please do schedule. yours,
Vey trt
cc: cc:
Esq. Herrington, Joan Herrington, Joan Esq. 2
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Document 84
C E 0 F F I CE OFFI
LAW L A W
EUGENE EUGENE
555 WEST STREET, FIFTH STREET, WEST FIFTH 555 LOS CALIFORNIA ANGELES, CALIFORNIA LOS ANGELES,
IZ 1 3) 596·0487 596-0457 (213) FACSIMILE FACSIMILE FUGUiNE D) LT.H, (mSQ
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[email protected] [email protected] E*MAIL E-MAIL
LEE E E L SUITE 3100 3100 SUITE 90013-1010 1 31010 900
WWW.LDEL.COM WWW.LOEL.COM WEBSITE WEBSITE
JOAN I, 1"_ HERRINGI'ON, HERRINGTON, (SQ ESQ JOAN OF COLNSI'L COUNSEL OF
ELGL;NE D LEI, ESQ PRINCIPAL PRINCIPAL
November 27, 27,2007 2007 VIA FACSIMILE & FACSIMILE U.S. MAIL FIRST CLASS & VIA U.S. Mark Mark Wasser Law Mark Wasser Law Offices of Mark 400 Mall Ste Ste 1100 1100 400 Capitol Mall Sacramento, CA 95814 95814
100011.001
Production. Set One Requests for Production, Defendants Plaintiffs Requests Responses to Plaintiffs Defendants Responses 1 County ofKem, et aJ. (USDC EDCA No.1 Jadwin :07-cv-00026-OWW/TAG) 1:07-cv-00026-0WW/TAG) No. Jadwin / County of Kern, al.
Re: Re:
Dear Mark: Dear ]\lark:
m- letter 11Swas \\'as aa pleasure speaking regarding Hl}' letter to you o01N-overnber sneaking with vou esterdav and today regardinga 22. this letter in follow-up to our discussion. writing this are writing 22. We are I.1.
OVERBROAD OVERBROAD OBJECTION
defendants' oft-used As oft-used objection, objection, "documents "documents explained that defendants' know, in that email, we had explained you know, As you 34 Rule FRCP with comply not does law", Rule 34 because because protected from disclosure by state or federal comply with protected documents the to objection relates to the documents itit (a) too broadly stated and (b) fails to explain how the objection (a) is too referred that and peer peer review review demanded. During the call, you indicated the objection referred to HIPAA HIPAA and demanded. During accordingly objection the privilege, state objection accordingly by by defendants would revise the responses to state that defendants privilege, and that 30. November 30. Friday. November Friday.
n. IL
PRIVILEGE LOG
You stated requests by by Friday, Friday, intend to provide us with a privilege log for all requests that you intend stated that 30. November 30.
III. II1.
RESPONSES ISSUES RELATED TO SPECIFIC RESPONSES
written responses defendants' written Plaintiff responses to to plaintiffs plaintiffs requests requests following issues with defendants' also notes the following Plaintiff also one: set one: production, set for production, for Issue Response Doe to Doc to Req No. attorney-client privileged You stated that privileged and and that that defendants defendants that these are probably not attorney-client 23/24 week. this them produce to able be may be this week. attorney-client privileged. that these are probably not attorney-client You privileged. You stated that 25 documents to documents this narrow to agreed already have We alreadv agreed to narrow this request request to We reiterated that we 33 33
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relating to complaints complaints or or grievances grievances relating relating to to Kern Kern Medical Medical Center Center which which had had been been relating made to a government agency or court. We further explained that these documents documents these that explained further We made to a government agency court. are essential to prove disparate disparate treatment treatment and and discriminatory/retaliatory discriminatory/retaliatory intent. intent. You You are essential requested and we agreed to send you revised response language which nails down down nails vvhich language response revised requested and we agreed send you exactly what we are are requesting. requesting. You You confirmed confirmed that that the the documents documents are are already already inin the the process of being collected that. once the request language is revised, you will will you revised, is language request the once that, and collected process produce responsive documents documents by December December 7. produce responsive Following is the revised revised language narrowing the the request: request: language narrowing
36 39 36 to 39 40 S40
"COMPLAINTS COUNTY. Any and all DOCUMENTS DOCUMENTS RELATING RELATING AGAINST COUNTY. "COMPLAINTS AGAINST TO complaints complaints or grievances made by YOUR YOUR past past or present present employees employees against against grievances made for defamation, rctaliation. disability discrimination, failure accommodate, accommodate. to retaliation, disability discrimination, failure YOU and/or failure to engage engage in an an interactive process RELATING RELATING TO TO Kern Kern Medical Medical interactive process Center and/or and/or its officers or 01' staff, including including but but not limited limited to to any any mnbrmaher infoffilal Of internal grievances or charges charges to any any state or federal federal agency, agency, and and cemplaints, grievances iternal complaints. date." to 2000 24, complaints filed in any state or federal October 24, to date." October from court •_complaints You to attorney-client attorney-client privilege. privilege. documents will be subject to You explained that some documents We explained that these documents documents are essential essential to prove prove disparate disparate treatment treatment and and discriminatory/retaliatorv your objections objections that that documents documents You maintain your discriminatory/retaliatory intent - intent. is not request the that and requested are confidential confidential personnel information that the request not information personnel reasonably calculated evidence because because Dr. Dr. Royce's situation situation is admissible evidence calculated to lead to admissible produce to intend not do you that stated too dissimilar to plaintiff s. Therefore you stated do intend produce s. Therefore dissimilar any responsive documents. we will move to compel. compel. documents. Since we are at an impasse, we
you are refusing this request, we are reinstating reinstating our our request request in in Note: because vou Royce Johnson's personnel Request personnel file. Previously Previously you you 16 with respect to Dr. Rovce Request 16 had objected that the personnel employees are privileged privileged official personnel files of state employees case: information. information. Please see this case: 1987) ("This 1518-1519 fn.4 1515, 1518-1519 818 F.2d 1515, Garrett fnA (9th Cir. 1987) ("This Francisco,818 San Francisco, Garrettv.v. San cases, question in discoverable court has held that personnel files are discoverable federal question cases, that court has of Trustees, Trustees, VII actions, despite claims of privilege. Guerra including Title VII including Guerra v. Board Board of Court, 511 F.2d 192, United States District Kerr v. United 1977); Kerr 567 District Court, 192, 352 (9th Cir. 1977); 567 F.2d F.2d 352 (1976)). S. Ct. 2119 725, 96 S. 197 2119 (1976)). (9th Cir. 1975), affd, 426 U.S. 394, 48 L. Ed. 2d 725, 197 (9th
I
plaintiff sought personnel records of 16 named firefighters (where plaintiff Ibid. firefighters to prove Ibid.(where confidentiality, privilege, confidentiality, of privilege, defendants objected on grounds of and defendants treatment and disparate treatment disparate th on the passing "Without opined th Cir. the irrelevance, privacy, and irrelevance, of privacy, invasion of invasion 99 Cir. addressed first by ofplaintiffs plaintiffs discovery motion (a matter which should be addressed merits of merits entirely appear not does face, on its motion, the that note we court), district the district the appear to to be be entirely merit."). without merit."). without 42 42 69 69
privileged. attorney-client privileged. not attorney-client are probably not these are that these stated that You stated You by numbers by record numbers medical patient disclose will defendants that indicated that defendants You indicated You for same the same for of doing doing the the possibility of into the look into will look you will that you 7, and and that SDecember December 7, 22
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defendants' past past Initial Initial Disclosures. Disclosures. defendants' We explained explained that that these these documents documents are are essential essential to to prove prove disparate disparatetreatment treatmentand and We is an unacceptable length discriminatory/retaliatory intent and that January 7, 2008 length unacceptable is an discriminatory/retaliatory intent and that January 7, 2008 of time time to to wait wait for for these these documents. documents. You You asked asked for for legal legal authority authorityestablishing establishingthat that I of not apply in federal court in cases involving a federal state privilege caselaw does federal a involving cases in court federal in state privilege caselaw does not apply question. We We agreed agreed to to provide provide it. it. You You also also indicated indicated that that ififwe we are are able able toto question. produce successfully meet and confer on this issue, that you would be able to produce to able be would you that issue, this successfully meet and confer on responsive documents documents by by December December 21 21. responsive Please see see these these cases: cases: Please
982) Wm. T Thompson Co. v. v. General Genera! Nutrition Nutrition Corp., 671 671 F.2d F.2d 100, 100, 104 104 (3d (3d Cit. 1982) 11m. in aa case case also also presenting presenting state state lass when there there are are federal federal law law claims claims in "We hold that when is privilege, law state claims, the federal rule favoring admissibility, rather than any state law priviiege, is favoring admissibility, rather than any claims, one of of first impression impression in in this this court, court, but but our our The question question is one controlling rule. The the controlling of decisions the and 50I Rule of n5 history legislative the with holding is consistent with legislative history n5 of Rule 501 and the decisions of consistent I tria! courts. n6 n6li also consistent consistent with with the the general general rule rule in in federal federal It is also a number of trial practice disfavoring privileges not constitutionally based.) based.) practice disfavoring privileges not constitutionally Kerr District Court. Court, 511 511 F.2d 192, 192, 196-198 196-198 (9th (9th Cir.1975), Cir.!975), affd, aj}'d, United States District Kerr v. United 426 U.S. (1976); (In (In federal federal question question cases cases the the U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); reference to federal federal law law on the the issue issue of of clear weight of authority authority and logic supports reference a of that is interest privilege; The state's the existence state's interest is that of a existence and scope of an asserted privilege; sovereign whose whose law is being being applied applied litigant, and not, as in diversity cases, that of a sovereign issue the on is necessary in aa foreign forum. Reference case necessary on issue of of Reference to federal law in this case privilege.). the claimed privilege.). existence and scope of the claimed the existence 78 78
IV. IV.
We explained you explained that you failed to indicate a date of production. You said that you 30. November on call next at our production would 30. of production us aa date of give us would give
REQUEST 78 REQUEST 78
clerical and of producing these documents is clerical that the task of explained that Regarding we explained 78, we Request 78, Regarding Request to two weeks. You said you were in one to could hourly-paid temporary hire, in an hourly-paid by an handled by be handled could be clients. your clients. with your suggestions with latest suggestions discussing our latest discussing our V. V.
OBJECTION RELEVANCY RELEVANCY OBJECTION
not were not requests were plaintiff s requests objection that plaintiffs defendants' objection was defendants' discussion was of discussion topic of call, aa topic During the call, During the that. regarding that. some caselaw regarding Following isis some evidence. Following admissible evidence. to admissible lead to to lead calculated to reasonably reasonably calculated covers: objection the what of view expansive view of what the overly expansive an overly adopting an are adopting defendants are In covers: view, defendants In our our view, of "seriousness" of of"seriousness" terms of in terms Jadwin in Dr. Jadwin for Dr. comparator for fair comparator Johnson isis aa fair Royce Johnson Royce wrongdoing: wrongdoing:
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96 S. McDonald 273. 283 n. n.ll. 2d 493, 493.96 S. 11. 49 L. Ed. 2d Transp. Co.. 427 U.S. 273. Trail Transp. Fe Trail Santa Fe McDonaldvv. Santa Ct. showing that other other case, plaintiff can meet its burden by showing VII case, Title VII (In aa Title 1976) (In 2574 (1976) Ct. 2574 seriousness. employees (firefighters) who engaged in similar acts wrongdoing of comparable seriousness . comparable wrongdoing of employees (firefighters) who engaged . . were were nevertheless retained.) *.
Relevancy Relevancy is not a proper objection: addition to to discovering discovering United 1968). (In addition 66, 72 (9th Cir. 1968). 398 F.2d 66. Meyer. 398 v. Mever. States v. United States information information proper to obtain information for for to aa party's case in chief, it is entirely proper pertaining to information pertaining as cross-examination of adverse witnesses) other purposes such other purposes such as cross-examination Procedure. s 2008 at 41 (1970) (1970) (For the the question question 88 Wright Practice and Procedure. Miller. Federal Practice & Miller. Wright & ofrelevancy at the trial.) triaL) to be more loosely construed at the discovery stage than at is to of relevancy is (Thus 1964) Cir. v. Carter.332 F.2d 260. 266 Clr. 1964) (Thus under under OJvmpic Refining Companv (9th Olvmpic Refinine Compan' v. Carter.332 Fed.R.Clv.P. pretrial discover, ,hc,,"p"V information sought in pretrial 26(1 , itit is no ground for objection that information Fed.R.CivP. 26(b)(1). to lead calculated would not be admissible at trial, if the testimony sought appears reasonably calculated lead to to would not be admissible the discovery evidence.). discovery of admissible evidence.).
VI.
12/4-12/6 12/4-12/6 DEPOSITIONS
We connection with the hotel, travel and court reporter costs in connection we are incurring hotel, explained that we We explained depositions the that shortly us upcoming depositions can can go go forward forward depositions. You agreed to confirm with upcoming depositions. may deposition Wrobel's conflicts, as scheduled. You had mentioned due to scheduling conflicts, Dr. Wrobel's deposition may scheduling that, as scheduled. know. us let Thursday. possibly need to be moved from Tuesday afternoon to Please let us moved need VII. VII.
STIPULATION DOCUMENTS AUTHENTICATION OF DOCUMENTS STIPULATION RE AUTHENTICATION
We asked mutually authenticating authenticating documents documents you would consider entering into a stipulation mutually asked if you for your attached is stipulation so. produced by the parties in discovery. You agreed to do A draft stipulation is attached your agreed parties the produced review. revIew.
conference call We look forward call with you you at 10:00 10:00 a.m. a.m. on Friday, Friday, to our next meet and confer conference forward to to need you if or questions any with contact November 30, 2007. Please do not hesitate to contact us questions if you need to rereNovember 30, schedule. yours,
Very t
cc: cc:
Herrington, Esq. Joan Herrington, Joan Esq. David F. Jadwin, D.O., F.C.A.P. David
3ENE D. LEE
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Eugene D. D. Lee Lee SB# SB# 236812 236812 Eugene LAW OFFICES OFFICES OF OF EUGENE EUGENE LEE LEE LAW 555Wcst Fifth Street, Suite 3100 555West Fifth Street, Suite 3100 Los Angeles, Angeles, CA CA 90013 90013 Los Phone: (213) 992-3299 Phone: (213) 992-3299 Fax: (213) (213) 596-0487 596-0487 Fax: E-mail: eleeiWLOEL.com E-mail: eleeaiLOEL.com
22
55
Document 84
Joan Herrington Herrington SB# SB# 178988 178988 Joan BAY AREA AREA EMPLOYMENT EMPLOYMENT LAW LA W OFFICE OFFICE BAY 5032 Woodminister Lane 5032 Woodminister Lane Oakland. CA CA 94602 94602 Oakland, Phone: (510) 530-4078 Phone: (510) 530-4078 Fax: (510) 530-4725 ~~~a\II8{d.~~~i(;~~m E-mail: hibaelo.com 'I Of Of Counsef OFFICE OF OF EUGENE LEE Counse to LAW OFFICE
I.
Attorneys Plaintiff Attorneys for Plaintiff DAVIDF. JADWIN, D.O. DAVIDF. JADWIN. Wasser CA SB #060160 #060160 Mark Mark A. Wasser LAW WASSER MARK A. WASSER OFFICES OF MARK LAW OFFICES 400 1100 Mall. Suite 1100 Capitol Mall, 400 Capitol Sacramento. J4 95814 Sacramento. CA 958 Phone: (9J6) 444-6400 Phone: (916) 444-6400 Fax: (916) 444-6405 Fax: (916) E-mail: mwasser(chmarkwasser. corn E-mail: mwasser(cvmarkwasser.com Bernard Sr. C, Barman, Sf. Bernard C. KERN COUNTY COUNSEL KERN COUNTY Mark Chief Deputy Nations, ChiefDeputv Mark Nations. 1115 Truxtun'Ayenue, 1115 Truxtun Avenue, Fourth Floor Bakersfield. CA 93301 Bakersfield, CA Phone: (661) 868-3800 (661) Phone: Fax: (661) 868-3805 Fax: (661) mnations(&co.kern.ca-us E-mail: mnationstQJco.kern.ca.us ,I E-mail: ~
Attorneys Eugene Kercher. Kercher, Kern, Peter Bryan, Irwin Harris, Eugene of Kern, County of Defendants County for Defendants Attorneys for Jennifer Ragland, Toni Smith and William Roy Scott Ragland, Abraham, Scott Jennifer Abraham,
20 20 21 21
UNITED STATES STATES DISTRICT COURT
22 22
CALIFORNIA OF CALIFORNIA EASTERN DISTRICT OF EASTERN DISTRICT
23 23
D.O. DAVID JADWIN, D.O. F. JADWIN, DAVID F.
24 24 25 25 26 26 27 27 28 28
Plaintiff, Plaintiff, ys. vs.
TAG 1:07-cv-00026 OWW TAG Case No.: 1:07-cy-00026 ) Case ) AUTHENTICATE TO AUTHENTICATE STIPULATION TO ) STIPULATION DOCUMENTS ) DOCUMENTS )
al., KERN, etet aI., COUNTY OF KERN, COUNTY OF Defendants. Defendants.
2007 5, 2007 January 5, Filed: January Complaint Filed: ) Complaint 2008 3, December Date: Trial ) Trial Date: December 3, 2008 ) ) )
DISCOVERY IN DISCOVERY PRODUCED IN DOCUMENTS PRODUCED STIPULATION AUTHENTICATE DOCUMENTS TOAUTHENTICATE STIPULATION TO
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1T HEREBY STIPULATED, ST1PULATED, by by and and among among the the parties parties hereto hereto through through their their respective respective IS HEREBY IT lS
22
counsel, that all documents documents produced produced by by plaintiff plaintiff and/or and/or by by each each of of the the defendants, defendants, or or and all any and that any counsel,
33
any the Initial 1nitial Disclosures, Disclosures, supplemental supplemental disclosures, disclosures, or or pursuant pursuant to to discovery discovery in the them, in of them, any of
44
requests or procedures procedures in in this this action action shall shall be deemed deemed authentic authentic under under Federal Federal Rule Rule of of Evidence Evidence requests or
55
90 however that that documents documents generated generated by third third parties parties shall shall not not be be included included in in this this provided however 901,1, provided
66
stipulation. stipulation.
77 8
Dated: December December
T200 2007
LAW OFFICE OF EUGENE LEE
99 BY:_-,=E",Ubge",1,!,1e~D"-. e""e By: Eugene D. 2oL"' Lee
]0 ]i1]
JIAttorney
Eugene Eugene D. D. Lee Lee for Attorney for Plaintiff, Plaintiff David David F. F. Jadwin, 1M]"'," D.O. D.O.
--i
12 12 13
Dated: December 2007 Dated: December ,, 2007
LAW OFFICES OF MARK MARK A. A WASSER WASSER LAW OFFICES
14 14 15 15 16 16
By:_~M~a"'rk~A'"._W"_"a~ss"'e"'r_l.(£as~au"_t"'h!"o"_ri"'z"'e"d~o'_' n'-_ _)_ L2_ Mark A. Wasser (as authorized on_ By:
Mark A. A Wasser Wasser Attorney Defendants, County County of Kern, et al. aL Attorney for Defendants,
]7 17
]8 18 ]9 19
20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28
DISCOVERY IN DISCOVERY PRODUCED IN DOCUMENTS PRODUCED AUTHENTICATE DOCUMENTS TO AUTHENTICATE STIPULATION STIPULATION TO
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ORDER ORDER
1 22
The The parties parties having having stipulated stipulated as as hereinabove hereinabove set set forth forth and and good good cause cause appearing appearing therefor; therefor;
33
66
IT IS IT IS HEREBY HEREBY ORDERED, ORDERED, that that that that any any and and all all documents documents produced produced by by plaintiff plaintiffand/or and/or oror disclosures of the defendants, or any of them, in the Initial Disclosures, supplemental disclosures by each supplemental by each of the defendants, or any of them, in the Initial Disclosures, under pursuant to to discovery discovery requests requests or or procedures procedures in in this this action action shall shall be be deemed deemed authentic authentic under pursuant by Federal Rule of Evidence 901, provided however that documents generated by third third parties parties shall shall generated documents that however provided Federal Rule of Evidence 901, I not be included in in this this stipulation. stipulation.
77
Dated: December __ _ , 2007 2007 Dated: December
44
5
not be included
8
99 10 10
HUnited
COURT UNITED STATES STATES DISTRICT DISTRICT COURT UNITED
By:____________ By: __ Honorable Theresa Theresa A. A. Goldner Goldner The Honorable United States States District District Judge Judge
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1' i
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14 14 15 15
16 16 17 17 18 18
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DISCOVERY IN DISCOVERY PRODUCED IN DOCUMENTS PRODUCED STIPULATION AUTHENTICATE DOCUMENTS TO AUTHENTICATE STIPULATION TO
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01/09/2008 15:48 15:48 FAX FAX 01/09/2008
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Filed 01/09/2008 F O 0OF
I.i. 1 31 VZ-3z2 'if<;J:O'h3ZS";f ,131
LLAW A W
TtLEPHONE
EUGENE EUGENE
l~ 1 '3) S';16-04El7 4•-2 3) S96-04aS
555 WEST W!:ST FIFTH FfF"TH STREET, BTRE;S;T. SUITE liUlTE 3I a 1DO 00 555 LOS AN5&LE5. CALIFORNIA 900 1..:;":;..·':.:C""'-'C'-"010 LOS ANGELES, CALIFORNIA 90013-
T!;;LEPHONE
FACSIMILE
FACSMILE RUGliNE O. 12E, LEE, ESQ. ESQ. oUGINED, NUNCTP'.J\t PI4NCTPIT'A
F F I C OOFFICE
LEE LEE
Page 19 of 20 ELEE@L1:1EL..CQM
[email protected] E-MAIL E-Mol\lL.
WWW.LC&L.CtJM WWW.LOE".Q•M W"-"''''''''-'''''''.!.T''-''' WrBSITE ---JOhNZ.EoHE•IUINJ1~o-fON.£SQ. O•N £SQ. JOAN OFCOUNSEL OFCQUN£n
November 30, 30, 2007 2007 November
VIAE·MAlL E-MAIL VIA
:00011O001 100011.001
Mark Wasser Wasser Mark Offices of Mark Mark Wasser Wasser Law Offices 400 Capitol Mall Mall Ste 1100 1100 400 Sacramento, CA 95814 95814 Sacramento,
Re:
Plaintiffs Requests for Production, Set One Defendants Defendants Responses Responses to to Plaintiff's Requests for Production, One Jadwin I COWlty of Kem, et al (USDC £DCA No. !:07-cv-00026·0WWITAG) Jadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-OWW/TAG)
Dear Marie Mark: It speaking with you today today regarding regarding our oW" letter letter to to you you of ofNovember November 27, 27. We We were were pleasure speaking It was aIi. pleasure 21, Decembr before produced be to pleased 10 hear that you expected most if not all' befo,"" DeCetllbl,r documents all pleased to We are writing this letter in follow-up to our OUr discussion, discussion.
I. L.
OVERBROAD OVERBROAD OBJECTION
We discussed defendants' protected from disclosure disclosure by state state or federal federal "documents protected defendants' objection, "documents how explain to fails (b) and stated (b) explain how the the law", which is problematic because because it (a) is too broadly objection relates to agreed to revise the the responses responses to the documents demanded. During the call, you agreed Monday, today or next Monday. to state objection accordingly by either today the objection state the
LOG PRIVILEGE LOG II. PRIVILEGE You requests by either today today or or you intend to provide us with a privilege log for all requests You stated that you next next Monday. Monday, SPECIFIC RESPONSES III. iSSUES TO SPECIFIC RELATED TO ISSUES RELATED Il. plaintiff's requests responses to plaintiff's defendants' written responses with defendants' Plaintiff requests issues with following issues the following notes the also notes Plaintiffalso one: set one: production, set for for production, Response Response
Issue Issue
Dot toDoc to Rea No. Req No. 23/24 23/24
33 33 40 40
have would have you would and you these and producing these issue producing any issue be any likely be not likely would not there would You stated there You stated Monday.. next Monda by next production date by to production as to idea as definite idea aa more more definite :":':':'==-:_--......,..,...---=--1 will you will that you and that adequate and language isis adequate request language revised request plaintiff'ss revised that plaintiff confirmed that You confinned You a have would you 7, but December by tentatively documents tentatively by December 7, but you would have a responsive documents produce responsive produce Monday. = =:-:::=--::-::::--,-,-,:-:=--I next M~o~n~da=.;.,. by next date by production date to oroduction as to idea lIS definite idea more definite more 49 n.11, 49 283 n.ll. 273. 283 U.S. 273. 427 U.S. Co.. 427 Transp.Co.. TrailTransp. Fe Trail SantaFe McDonald v. Santa discussed McDonaldv. We discussed We for comparator for fair comparator Royce isis aa fair Dr. Royce establishing Dr. (197 6 ),establishing 2574 (976), Ct. 2574 S.g. 96 S. 493, 96 2d493. Ed.2d L. L. Ed.
to ready to be read and be research and further research some further do some would do you would said you You said treatment. You disoarate disparate treatment.
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discuss itit with with us us further further by by next next Monday. Monday. discuss mentioned that ifif we we are are unable unable to resolve resolve this this issue, issue, we we would would reinstate-our reinstate,our I mentioned in Request 16 with respect to Dr. Royce Johnson's personnel file. II further further request file. personnel Johnson's Royce Dr. to request in Request 16 with respect Garrett v. San Francisco, supporting our right to disclosure of personnel mentioned personnel of disclosure to right our Francisco,supporting mentioned Garrett v. files. files. You stated stated that these these are are probably robabl not not attorney-client attome -client privileged, rivile ed. You on this this by b next next Monday. Monda stated you ou would would probably babl have aa decision decision on You stated , We We explained explained that that these documents documents are are essential essential to to prove prove disparate disparate treatment treatmentand and General v. Co. discriminatory/retaliatory intent. We also cited Wm. T Thompson Co. v. General Thompson discriminatoryfretaliatory intent. We also cited Win, 671 F.2d 100, 100, 104 104 and and Kerr Kerr v, v. United States States District District Court, Court. 5511 Nutrition Corp., 671 11 Nutrition F.2d 192, (9th Cir. Cir.1975), establishing that that federal federal privilege privilege applies applies in in 1975), establishing 196-198 (9th 192, 196-198 F.2d federal question question cases.
I I
, 42 42
69 679 70
I You stated that you would research research this this further and lind that that if ifwe we are are able able to to successfully successfully I
rl
would be able able to to produce produce responsive responsive documents documents meet and confer on this issue, you would 21. b~~December by_ sibly" ssibl b December 21. 78 i You stated that you would produce December 21, 21, but that that this would be be produce possibly by December S78 SLdecided Monday, '-I decided by next Monday. i ______pos
IV. STIPULATION DOCUMENTS AUTHENTICATION OF DOCUMENTS STIPULATION RE AUTHENTICATION We language should should be added added. to to ensure ensure mentioned that some language discussed the draft stipulation and mentioned We discussed opposed (as stip by the covered by KMe hospital staff and employees are covered stip (as opposed documents generated employees KMC documents to your client client and and get back back KMC). You said you would discuss this with your parties outside of KMe). to third parties to with an answer by next Monday. to us with
v, V,
BALANCING TEST PlUVACY PRIVACY BALANCING balancing test for disclosure. We cited Tisdale v Oil requested Y regarding the privacy balancing caselaw regarding requested casclaw You FRD 696. Marin Hospital,138 FRO GeneralHospiral, Matin Gerwral If to let us know. We find these letters !etters inaccurate, please do not hesitate W foregoing isis inaccurate, of the foregoing If any oftl1e of discussion. items ongoing track to way useful as a serve discllssion. serve as a useful way to track ongoing
confer conference call with you at 5:00 p.m. on Monday, meet and confer our next meet to our forward to look forward We look We any questions or if you need contact us with llI1y to contact do not hesitate to Please do need to to rereDecember 3, 2007. 2007. Please December 3, nice weekend. Have aa nice schedule. Have schedule.
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cc: CC:
Esq. Herrington, Esq. Joan.Herrington, Joan. F.C.A.P. D.O., F.C.A.P Jadwin, D.O., F. Jadwin, David F. David 22