106 motion - kc mpo dfj dec joint stmt_080423

8/14/2019 106 Motion - KC MPO DFJ Dec Joint Stmt_080423

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DECLARATION OF EUGENE D. LEE re: INABILITY TO SECURE COOPERATION OFDEFENDANTS COUNSEL TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTIONFOR PROTECTIVE ORDER re: FURTHER INTERROGATORIES 1

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Eugene D. Lee SB#: 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299

Fax: (213) 596-0487email: [email protected]

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

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

DECLARATION OF EUGENE D. LEE re:INABILITY TO SECURE COOPERATIONOF DEFENDANTS COUNSEL TOPREPARE AND EXECUTE JOINTSTATEMENT re: MOTION FORPROTECTIVE ORDER re: FURTHERINTERROGATORIES

Date: April 28, 2008Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroom

1300 18th St., Bakersfield, CA

Date Action Filed: January 6, 2007

Date Set for Trial: December 3, 2008

Plaintiff submits this Declaration of Eugene D. Lee pursuant to Local Rule 37-251(d) in lieu of a

joint statement re discovery disagreement.

I, Eugene D. Lee, declare as follows:

1. I am counsel of record for Plaintiff. I have personal knowledge of the matters set forthbelow and I could and would competently testify thereto if called as a witness in this matter.

2. On April 2, 2008, defendants filed their Notice of Motion and Motion for a ProtectiveOrder re: Further Interrogatories by Plaintiff (Doc. 97). In the motion, defendants stated Pursuant to

Local Rule 37-251, Defendants will prepare, submit to Plaintiff and file a Joint Statement re Discovery

Disagreement on or before April 23, 2008. (Doc. 97, 2:11-12).

3. To date, defendants have neither submitted to plaintiff nor filed such a joint statement. As

Case 1:07-cv-00026-OWW-TAG Document 106 Filed 04/23/2008 Page 1 of 22


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such, defendants are in clear violation of Local Rule 37-251. In contrast, plaintiff had sent both draft

joint statements for its pending motion to compel interrogatory responses and for protective order re

depositions to defendant by both mail and fax a full week prior to todays deadline. Even so, defense

counsel manages to complain that plaintiff has somehow ambushed him. Defendants violation of Rule

37-251 justifies entry of an order adverse to defendants or their counsel

4. The Scheduling Order issued by Judge Wanger in this action states: Given the numberof Defendants and witnesses and the number and complexity of the issues, Plaintiff anticipates needing

relief from the discovery limitations of Federal Rule of Civil Procedure 30(a)(2)(A) (10 depositions per

side) and Rule 33(a) (no more than 25 interrogatories per party). Defendants do not object to granting

Plaintiff relief from that limitation. (Doc. 29, 14:23 15:1). So long as plaintiff is not abusive in

propounding interrogatories, there is no mention in the Scheduling Order that plaintiff will be

constrained to some arbitrary number of interrogatories.

5. That did not stop defendants from attempting to impose an arbitrary ceiling on plaintiffsinterrogatories, anyway. Finally, in a phone call on February 21, 2008, plaintiff and defendants

expressly agreed that Plaintiff and Defendants will continue to honor the stipulations lifting certain

discovery restrictions as explicitly and fully set forth in the Joint Scheduling Order. As such, Plaintiff is

not obligated to agree on or observe a limit on the number of interrogatories permitted to be propounded

unless otherwise expressly agreed to in writing. Likewise, Defendant will be permitted to depose Dr.

Jadwin for a total of 21 hours. (See Exhibit 1 attached hereto). Based on this agreement which was

memorialized in Exhibit 1, plaintiff permitted defendants to depose plaintiff for 4 full days, which

defendants proceeded to do. This is undisputed.

6. Immediately after completing their deposition of plaintiff and benefiting from the quidof the parties quid pro quo, defendants then withheld the quo from plaintiff and resumed disputing

the agreement memorialized in Exhibit 1. Defendants have made a habit of breaking commitments

even written ones reached with plaintiff as soon as it is to their advantage to do so.

7. Finally, the parties negotiated a new agreement. On April 21, 2008, plaintiff emaileddefendants a proposed written stipulation which would deem documents produced in discovery



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authenticated and business records, as well as limit plaintiffs interrogatories. (See Exhibit 2 attached

hereto).

8. Defendant then sent a fax to plaintiff on April 23, 2008, claiming to memorialize only theagreement as to limitation of plaintiffs interrogatories, without mentioning the other agreements which

plaintiff sought. (See Exhibit 3 attached hereto). Thus, yet again, defendants sought to circumvent the

quid pro quo process by taking the quid but not giving the quo. This echoed what defendant had

done previously when they deposed plaintiff for 4 full days and then reneged on their commitment not to

limit plaintiffs interrogatories.

9. When plaintiff informed defendants that this fax was jumping the gun and requesteddefendants review and sign the previously-provided stipulation in its entirety, defendants refused. (See

Exhibit 4 attached hereto).

10. Plaintiff is an individual with limited resources. As Judge Wangers Scheduling Ordernotes, plaintiffs complaint comprises 11 causes of action ranging from defamation to procedural due

process violation, whistleblower retaliation, medical leave violation and retaliation, etc. against 8

defendants and spans more 6 years. The discovery required to substantiate these complex causes of

action necessitates larger scope than usual. Plaintiff has already attempted to secure discovery via

depositions of witnesses. However, after having conducted depositions of more than 13 witnesses,

plaintiff remains frustrated due to defendants obstructive conduct in depositions. Consequently,

plaintiff has not been able to efficiently obtain discovery through depositions, though it will continue to

attempt to do so.

11. However, at this juncture, with only 2 months remaining before the July 7 discoverycutoff, interrogatories represent the most time-efficient and cost-effective means for plaintiff to obtain

the evidence needed to prosecute its claims.

12. Defendants now bring a blanket motion for protective order, refusing to respond toplaintiffs interrogatories, set two, unless and until plaintiff acknowledges an arbitrary limit on the

number of interrogatories plaintiff may propound, proper or not. Plaintiff challenges defendants to

make a showing that individual interrogatories which plaintiff has thus far propounded are in any



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Executed on: April 23, 2008

/s/ Eugene D. Lee

EUGENE D. LEEDeclarant



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EXHIBIT 1



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Thursday, February 21, 2008 12:30 PMTo: '[email protected]'Subject: Jadwin/KC: Followup re DFJ Depo

Follow Up Flag: Follow upFlag Status: Completed

Mark,

It was a pleasure speaking with you this morning.

I just wanted to recap what we discussed today. Plaintiff and Defendants will continue to honor the stipulationslifting certain discovery restrictions as explicitly and fully set forth in the Joint Scheduling Order. As such, Plaintiffis not obligated to agree on or observe a limit on the number of interrogatories permitted to be propounded unlessotherwise expressly agreed to in writing. Likewise, Defendant will be permitted to depose Dr. Jadwin for a total of21 hours.

We further agreed that Defendants would resume their deposition of Dr. Jadwin beginning March 11, 2008. Dr.Jadwin is getting back to me with his availability for that week.

If you have any questions, please feel free to contact me.

Sincerely,

Gene Lee

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L A W O F F I C E O F E U G E N E L E E

E M P L O Y M E N T L A W

5 5 5 W E S T F I F T H S T . , S T E . 3 1 0 0L O S A N G E L E S , C A 9 0 0 1 3

T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]

W e b s i t e : www.LOEL.comB 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 thistransmission in error, please notify the sender by reply e-mail and delete the message and any attachments.



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EXHIBIT 2



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Monday, April 21, 2008 8:49 PMTo: '[email protected]'Subject: Stipulation - Auth-Biz Recs-Rogs_080423Attachments: Stipulation - Auth-Biz Recs-Rogs_080423.doc

Mark,

Attached is a draft stipulation & order regarding the things we had discussed: authentication, business records

hearsay exception and limit on plaintiffs interrogatories. Im still revising it so it remains subject to change, but

I thought I would get the ball rolling sooner rather than later.

Please take a look and let me know your thoughts.

Sincerely,

Gene Lee

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STIPULATION & ORDER THEREON 1

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Eugene D. Lee SB# 236812LAW OFFICES OF EUGENE LEE555West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487

E-mail: [email protected] for PlaintiffDAVID F. JADWIN, D.O.

Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (916) 444-6405E-mail: [email protected]

Bernard C. Barman, Sr.

KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxtun Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]

Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher,Jennifer Abraham, Scott Ragland, Toni Smith and William Roy



DAVID F. JADWIN, D.O.

Plaintiff,

vs.


Defendants.

)))))))))

Case No.: 1:07-cv-00026 OWW TAG

STIPULATION TO AUTHENTICATEDOCUMENTS, DEEM AS BUSINESSRECORDS & TO LIMITINTERROGATORIES; & ORDERTHEREON

Complaint Filed: January 5, 2007Trial Date: December 3 2008

IT IS HEREBY STIPULATED, by and among the parties hereto through their respective

counsel, that any and all documents in the Categories specified below which are produced by

plaintiff and/or by each of the defendants, or any of them, in the Initial Disclosures, supplemental



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disclosures, or pursuant to discovery requests or procedures in this action shall be deemed

authentic under Federal Rule of Evidence 901.

IT IS HEREBY FURTHER STIPULATED, that any and all documents in the Categories

specified below which are produced by plaintiff and/or by each of the defendants, or any ofthem, in the Initial Disclosures, supplemental disclosures, or pursuant to discovery requests or

procedures in this action shall be deemed business records under Federal Rule of Evidence

803(6).

CATEGORIES:

E-mails to, from and/or carbon-copied to any of plaintiff, defendants and/or anycontractor, employee or ex-employee of a defendant, as well as any of their officers,

directors, agents, representatives and affiliates (including but not limited to the Kern

County Board of Supervisors, UMPK and FPP), etc. (Witnesses).

Internal memoranda to, from and/or carbon-copied to any Witness or Witnesses. Executed letters to, from and/or carbon-copied to any Witness or Witnesses. Handwritten notes and/or markings by any Witness. Pathology reports, placental evaluation reports, surgical reports, operating reports and/or

other medical records.

Reports and presentations authored and/or issued by outside consultants and/or experts,including but not limited to Macias Group, Camden Group, David Lieu, William

Colburn, Parakrama Chandrasoma, Stacey Garry, ProPay, Jonathan Epstein, Richard

Kempson, etc.

Policies, regulations and statutes, and excerpts thereof, including but not limited to KernCounty Civil Service Commission Rules, Kern County Employee Handbook, KMC

Bylaws, KMC Organization and Functions Manual, KMC Faculty Practice Board

Compensation Policy, KMC Medical Staff Rules & Regulations, KMC Corrective Action

and Termination Review Process, KMC Faculty Practice Plan Bylaws, University

Multispecialty Physicians of Kern Bylaws, etc.

Personnel files and/or credential files of any Witness.



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Executed employment and/or independent contractor agreements by, between or amongany Witness.

Meeting minutes of any committee or sub-committee, division, department or group ofany Witness.

Timesheets of any Witness. Forms executed by any Witness, including but not limited to FMLA/CFRA medical leave

application forms.

IT IS HEREBY FURTHER STIPULATED, that Plaintiff will not propound any

additional interrogatories (excluding supplemental interrogatories) after the date hereof.

Defendant will fully respond and/or object to plaintiffs interrogatories, set two, by May 8, 2008.

Accordingly, defendant will withdraw their motion for protective order ( Doc. No. 97)

Dated: April , 2008 LAW OFFICE OF EUGENE LEE

By: Eugene D. LeeEugene D. Lee

Attorney for Plaintiff, David F. Jadwin, D.O.

Dated: April , 2008 LAW OFFICES OF MARK A. WASSER

By: Mark A. Wasser (as authorized on )

Mark A. WasserAttorney for Defendants, County of Kern, et al.



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ORDER

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 of the defendants, or any of them, in the Initial Disclosures, supplemental disclosures orpursuant to discovery requests or procedures in this action shall be deemed authentic underFederal Rule of Evidence 901, provided however that documents generated by third parties shallnot be included in this stipulation.

Dated: December , 2007 UNITED STATES DISTRICT COURT

By:The Honorable Theresa A. Goldner

United States District Judge



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23 08 12:39p Mark Wasser 916-444-6405 p.1

The Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405

FaxTo: Eugene LeeFax: (213) 596-0487Phone: (213) 992-3299

From: Mark A. 'WasserPages: 2 (including cover page)Date: 4123/08

Re: Jadwin v. County ofKern CC:

o Urgent 0 For Review 0 Please Comment 0 Please Reply 0 Please Recycle-Comments:

Please see attached letter.


23 08 12:39p Mark Wasser 916-444-6405 p.1

The Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405

FaxTo: Eugene LeeFax: (213) 596-0487Phone: (213) 992-3299

From: Mark A. 'WasserPages: 2 (including cover page)Date: 4123/08

Re: Jadwin v. County ofKern CC:

o Urgent 0 For Review 0 Please Comment 0 Please Reply 0 Please Recycle-Comments:

Please see attached letter.


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Apr 23 08 12:39p Mark Wasser 916-444-6405

Law omces ofMARK A. WASSER

400 Capitol Mall, Suite 1100Sacramento, California 95814

Office: 916-444-6400 Fax: 916-444-6405mwasser@markwasser,com

p.2

April 23, 2008

VIA FACSIMILE AND FIRST CLASS MAIL

Eugene LeeLaw Offices ofEugene Lee555 West Fifth Street. Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et al.Dear Gene:

This will confirm our agreement that the Plaintiffwill not serve any moreinterrogatories and the Defendants will respond to Plaintiff s second set of interrogatorieson or before May 8. As we discussed on the telephone, the Defendants may object tospecific interrogatories but they will not object to the entire set and will provide goodfaith responses. In light of this agreement, the Defendants will take their motion forprotective order off calendar.Thank you.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via facsimile)


pr 23 08 12:39p Mark Wasser 916-444-6405

Law omces ofMARK A. WASSER

400 Capitol Mall, Suite 1100Sacramento, California 95814

Office: 916-444-6400 Fax: 916-444-6405mwasser@markwasser,com

p.2

April 23, 2008

VIA FACSIMILE AND FIRST CLASS MAIL

Eugene LeeLawOffices ofEugene Lee555 West Fifth Street. Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, e t al.Dear Gene:

This will confirm our agreement that the Plaintiffwill not serve any moreinterrogatories and the Defendants will respond to Plaintiffs second set of interrogatorieson or before May 8. As we discussed on the telephone, the Defendants may object tospecific interrogatories but they will not object to the entire set and will provide goodfaith responses. In light of this agreement, the Defendants will take their motion forprotective order off calendar.

Thank you.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via facsimile)


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DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TOSECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FORPROTECTIVE ORDER 1

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EXHIBIT 4



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, April 23, 2008 1:24 PMTo: '[email protected]'Subject: RE: Limitation on Rogs

Mark,

Whats your resistance to the stipulation? I believe it addresses all the concerns in your motion for protective

order. I sent it to you previously. I drafted it to be as neutral and fair as possible. If you have revisions, simply

make them.

True to form, you remain all-too-eager to escalate issues to the Court rather than trying to work them out among

ourselves.

Sincerely,

Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~






~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This message is sent by a law firm and may contain information that is privileged or confidential. If you received thistransmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

From: Mark Wasser [mailto:[email protected]]Sent: Wednesday, April 23, 2008 1:12 PMTo: [email protected]

Subject: RE: Limitation on Rogs

Oh. Well, then our motion for protective order will remain on calendar. Fine.

From: Eugene D. Lee [mailto:[email protected]]Sent: Wednesday, April 23, 2008 1:05 PMTo: [email protected]: Limitation on Rogs

Mark,



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2

I just received your fax of today. We have not reached any such agreement to limit plaintiffs interrogatories. I

emailed you a draft stipulation and order addressing the limitation of rogs, authentication, business records, etc.

Until that is negotiated, signed and filed, I regret to say that there is no agreement between us.

I believe the solution is for you to sign the stipulation and return it to me immediately.

Sincerely,

Gene Lee

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EXHIBIT 5



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Eugene D. Lee SB#: 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299

Fax: (213) 596-0487email: [email protected]

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



DAVID F. JADWIN, D.O.,

Plaintiff,v.


Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

DECLARATION OF EUGENE D. LEE IN

SUPPORT OF DECLARATION re:INABILITY TO SECURE COOPERATIONOF DEFENDANTS COUNSEL TOPREPARE AND EXECUTE JOINTSTATEMENT re: MOTION FORPROTECTIVE ORDER

Date: April 28, 2008Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroom

1300 18th St., Bakersfield, CA

Date Action Filed: January 6, 2007

Date Set for Trial: December 3, 2008

I, Eugene D. Lee, declare as follows:

1. I am an attorney at law duly licensed to practice before the Federal and State Courts ofCalifornia and admitted to practice before the U.S.D.C. for the Eastern District of California. I am

counsel of record for Plaintiff David F. Jadwin in this matter.

2. I am making this declaration in support of plaintiffs motion to compel responses tointerrogatories. 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.

3. I have spent and anticipate spending substantially in excess of 1.5 hours researching anddrafting these moving papers and attending the motion hearing in Bakersfield, CA.

4. My regular rate for legal services is $400 per hour.



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5. My rate is consistent with those charged in the Los Angeles area by attorneys of similarskill and experience. I received my B.A. with honors from Harvard University in 1991 and my J.D. with

honors from the University of Michigan Law School in 1995. I was admitted to the New York State Bar

in 1996 and worked as an associate in the New York office of Shearman & Sterling from 1995 to 1996. I

worked as an associate in the New York office of Sullivan & Cromwell from 1996 to 1997. After a brief

leave of absence from practicing law from 1997 to 1999, I returned to active practice as the General

Counsel of Tcom America, Inc., a technology venture in Silicon Valley from 1999 to 2002. From 2002

to 2004, I worked as a senior associate for Kim & Chang, a law firm located in Seoul, Korea. In 2005, I

was admitted to the California Bar. I have been the principal of Law Office of Eugene Lee since 2005.

6. I attempted several times to secure local counsel to prosecute Plaintiffs suit but wasultimately unsuccessful. On September 18, 2006, I sent an email to over 600 members of the California

Employment Lawyers Association seeking co-counsel. No attorneys from Fresno responded. On

February 28, 2007, I called Andrew Jones, Esq. in Fresno, CA, requesting his involvement as local

counsel in this action. Mr. Jones declined.

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.

Executed on: April 23, 2008

/s/ Eugene D. Lee

EUGENE D. LEEDeclarant


106 motion - kc mpo dfj dec joint stmt_080423

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