214 p request for reconsideration re doc. 207

8/14/2019 214 P Request for Reconsideration Re Doc. 207

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PLAINTIFFS REQUEST FOR RECONSIDERATION BY THE DISTRICT COURT OF MAGISTRATE JUDGES

RULING ON PLAINTIFFS REQUEST RE DISCOVERY DISPUTE 1

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

Facsimile: (213) 596-0487Email: [email protected]

Attorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN; et al.

Defendants.

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

PLAINTIFFS REQUEST FORRECONSIDERATION BY THE DISTRICTCOURT OF MAGISTRATE JUDGESRULING ON PLAINTIFFS REQUEST REDISCOVERY DISPUTE(Doc. 202, 207)

[28 U.S.C. 636(b)(1)(A); Local Rule 72-303]

Date Action Filed: January 6, 2007Date Set for Trial: December 2, 2008

Plaintiff DAVID F. JADWIN, D.O. (Plaintiff) respectfully submits the following points and

authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldners

August 22, 2008 order (Order, Doc. 207) granting in part and denying in part Plaintiffs letter request

re: discovery disputes (Request). (Doc. 202).

I. INTRODUCTIONPlaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center

(KMC) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint

alleges, among other things, that Defendants engaged in the following illegal acts: defamation,

whistleblower retaliation, disability discrimination and failure to accommodate, medical leave

interference and retaliation, demotion and pay reduction without due process, and Fair Labor Standard

Case 1:07-cv-00026-OWW-TAG Document 214 Filed 09/01/2008 Page 1 of 12


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Act violations. When Plaintiff began reporting several patient care quality issues at KMC starting in

2001, Defendants responded by singling out and targeting Plaintiff for harassment, retaliation and

humiliation over the course of the next six years. In 2005, Defendants conduct finally caused Plaintiff

to suffer clinical depression. When Plaintiff began reduced work schedule sick leave in 2006 to treat his

depression, Defendants responded by demoting him and retaliating against him further, effectively

ending Plaintiffs pathology chair career.

II. PROCEDURAL HISTORYThis is the third Request for Reconsideration of Judge Goldners rulings which Plaintiff is filing

in this action. Plaintiff has been materially prejudiced by the rulings of this Court and Plaintiff intends to

pursue appellate remedies at the appropriate time.

A. Late Production of DocumentsOn October 11, 2007, Plaintiff David F. Jadwin (Plaintiff) served Requests for Production of

Documents, Set One (RPD1) on Defendant County of Kern (Defendant). Defendants responses

were deficient and Plaintiff moved to compel on December 21, 2007. Judge Goldner did not issue her

order, granting in part and denying in part Plaintiffs motion until May 9, 2008, almost 5 months later.

(Doc. 124, Exhibit 2). At that time, the Court took the opportunity to issue a sweeping protective order,

sua sponte, re: federal right of privacy against Plaintiff. The federal right of privacy was never discussed

in any of the written briefings or even at the motion hearing. The Court conducted the privacy balancing

test on its own without affording Plaintiff a due process opportunity to provide input on the balancing

test or to be heard on the matter. Negotiating the resulting protective order further delayed production of

the documents. (Doc. 137). On June 16, 2008, just weeks before the discovery cutoff, Plaintiff was

finally granted access to the thousands of pages of documents which Plaintiff had requested 8 months

earlier. Defendants withheld numerous documents pursuant to Judge Goldners privacy protective order.

For instance, Plaintiff was denied access to any personnel files other than his own.

Due to the 8-month delay in gaining access to the documents requested by Plaintiff, Plaintiff was

not able to conduct critical depositions. Plaintiff spent the 8-month waiting time conducting depositions

which focused on Defendants affirmative defenses.



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B. Refusal to Produce DeponentsOn July 3, 2008, Plaintiff finally in receipt of critical documents noticed 17 depositions of

party deponents and key witnesses to occur over a one month-long period of time spanning from July

15, 2008 to August 14, 2008. Defendants sent a fax stating their refusal to produce a single deponent,

arguing that the depositions were excessive and abusive. Defendants granted themselves this stay in

the absence of a court order or even a motion. Defense counsel later mentioned to Plaintiff that he had a

trial at the end of July, although defense counsel never notified Plaintiff of his unavailability beforehand

nor did he produce any deponents that had been scheduled for deposition from August 1 to August 17,

after his trial had ended. Plaintiff moved to compel the depositions and requested sanctions. (Doc. 183).

Plaintiff confirmed Judge Goldners availability with the clerk and applied ex parte for an order

shortening time, due to the fact that discovery was due to close on August 18 (Doc. 164).

Judge Goldner denied Plaintiffs ex parte application (Doc. 167); moreover, Judge Goldner re-set

the hearing on Plaintiffs motion calendared for August 5, 2008 to coincide with Defendants motion for

protective order, to be heard one day later on August 6, 2008, further prejudicing Plaintiff by yet another

day. Meanwhile, Plaintiff continued to be prejudiced by the fact that Defendants had not yet produced a

single deponent and the discovery cutoff was fast approaching. At the hearing, Judge Goldner granted

Plaintiffs motion to compel the depositions and ordered that Plaintiff conduct the 17 requested

depositions consecutively over 11 weekdays, with the first deposition to start the very next day on

August 7, 2008. (Doc. 194).

Judge Goldner also denied Plaintiffs request for sanctions, finding that defense counsels

depositions in July and two-day trial at the end of July substantially justified his refusal to produce any

of the 17 deponents which Plaintiff had scheduled for depositions from July 15, 2008 through August

17, 2008. Judge Goldners order did not explain how defense counsels trial and deposition schedule in

July excused his refusal to produce any deponents scheduled for the month of August. Plaintiff was

prejudiced in that the depositions originally scheduled to begin on July 15, 2008, were now scheduled to

begin more than 3 weeks later and with the discovery cutoff looming. Moreover, Plaintiff was now

effectively denied the opportunity to schedule and conduct followup depositions.



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C. Obstruction of DepositionsDuring the first 10 of 17 depositions which Judge Goldner had ordered the parties to begin on

August 7, 2008, defense counsel engaged in numerous inappropriate speaking objections and

instructions not to answer. At one deposition, defense counsel grabbed Plaintiffs counsels webcam 3

times without permission, breaking it on the third instance. The parties requested two telephonic

conferences with Judge Goldner.

On August 18, 2008, Judge Goldner ruled that defense counsel had made improper instructions

not to answer and ordered the re-convening of 4 depositions. (Doc. 200). However, Judge Goldner

denied Plaintiffs request for protective order and for sanctions.

On August 21, 2008, Judge Goldner ruled that defense counsel had yet again made an improper

instruction not to answer in deposition. She also ruled that defense counsel had engaged in improper

speaking objections no less than 11 times in a single deposition based upon her review of an incomplete

dirty deposition transcript. (Doc. 207). Her ruling contained an admonition of defense counsel, but

denied Plaintiffs request for protective order and sanctions. She ordered the parties to re-convene two

more depositions, bringing the total to 6 depositions reconvened out of only 10 taken.

Despite the fact Judge Goldner had not yet tried issuing sanctions or protective orders against

Defendants for their repeated misconduct, she nevertheless found it appropriate to grant Defendants

request and appoint a special master over Plaintiffs objections. She further ordered the parties to bear

the $300 per hour cost on a 50/50 basis. At the hearing, Judge Goldner mentioned a friend of hers in

Bakersfield who would be perfect for the assignment. Plaintiff objected to appointment of a special

master, the additional expense involved, and appointment of a special master from Bakersfield,

particularly given that the remaining depositions would be held in the Los Angeles area.

On August 27, 2008, Plaintiff filed his formal objections to the appointment of a Special Master.

(Doc. 212).

D. Issuance of a Protective Order against PlaintiffIn her order of August 21, 2008, Judge Goldner granted Plaintiffs request for protective order

against defense counsels touching his property without permission in light of the fact that defense

counsel had broken Plaintiffs webcam. (Doc. 207). However, she sua sponte issued a parallel protective



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order against Plaintiff, even though Plaintiff had not touched any of defense counsels property without

permission, much less broken it, and even though defense counsel had not requested it. Moreover, she

denied Plaintiffs request for sanctions.

At the hearing, Plaintiff took exception to this ruling and specifically asked Judge Goldner to

explain the basis for her ruling so that Plaintiff could pursue a request for reconsideration. Judge

Goldner refused to do so. Instead, she issued the written order the very next day, stating grounds which

had never been discussed at the hearing. Plaintiff was never afforded a basic due process opportunity to

respond to the new factors cited by Judge Goldner in her order, as has been customary throughout this

action.

III.AUTHORITY FOR MOTIONA District Court judge may reconsider pre-trial matters where it has been shown that the

magistrate judges order is clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A); Local Rule

72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision

was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263

(9th Cir. 1993).

IV.ARGUMENTA. Plaintiff Objects to Appointment of a Special MasterA court may appoint a special master to address pretrial and post-trial matters that cannotbe

addressedeffectively and timely by an available district judge or magistrate judge of the district. FRCP

53(a)(1)(C) (emphasis added); see In re Armco, Inc. (8th Cir. 1985) 770 F2d 103, 105 (decided under

former Rule 53). The test for appointment of a pretrial master is whether a judge or magistrate judge is

unable to handle the pretrial matter in an effective and timely fashion. See FRCP 53(a)(1)(C). In

appointing a master, the court must consider the fairness of imposing the likely expenses on the parties

and must protect against unreasonable expense or delay. FRCP 53(a)(3).

At the court hearing held on August 21, 2008, Defendants requested appointment of a special

master for all future depositions. Plaintiff objected to the extra cost as well as the appointment of a

special master from Bakersfield due to concerns over bias.

Judge Goldner has not demonstrated this Courts inability to address the parties deposition



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disputes effectively and timely. She has not once attempted the intermediate measures of issuing

protective orders or imposing sanctions on Defendants for their persistent, obstructive conduct. This is

despite the fact that the Court has found it necessary to order the re-convening of no less than 6 out of 10

depositions because of defense counsels numerous improper instructions not to answer and in the case

of one deposition alone, at least 11 improper speaking objections. Instead of attempting intermediate

remedies such as protective orders and sanctions, Judge Goldner now takes the drastic step of granting

Defendants request and appointing a special master. This flies in the face of Rule 53.

Moreover, appointment of a special master is unfair to and imposes unreasonable expense on

Plaintiff. Plaintiffs conduct did not engender any of the current deposition disputes; Defendants

conduct did. Defendants bears all of the blame for forcing the re-convening of 6 out of 10 depositions

due to their speaking objections and improper instructions not to answer.

Finally, Plaintiff objects to Judge Goldners nomination of her friend, Kenneth Byrum of

Bakersfield, as special master. Most of the remaining depositions (9/2/08 to 9/5/08) are to be conducted

in Los Angeles, not Bakersfield. If a special master is to be appointed, he should be from the Los

Angeles-area so as to avoid even greater unnecessary expense (in the form of hotel and travel expense

reimbursements for the special master) for Plaintiff.

B. Issuance of a Protective Order against Plaintiff Is InappropriateJudge Goldner based her sua sponte issuance of a protective order against Plaintiff and denial of

sanctions on several alleged behaviors of Plaintiffs counsel.

1. Inappropriate Filming of Defense Counsel

Judge Goldner criticized Plaintiffs counsel for filming defense counsel during the deposition:

Plaintiffs counsel uses two web cameras to film the depositions. One of his webcameras is trained on the deponent, and the other is trained on Defendants counsel.

However, neither Defendants nor their counsel have objected to this arrangement.Defendants have also arranged to have most of the depositions videotaped by aprofessional videographer.(Doc. 207, 2:3-6).

The Court finds it to be wholly inappropriate to train a dedicated web camera onopposing counsel throughout a deposition, and notes that the presence of such a camera,in and of itself, is likely to annoy one's opposing counsel. Nevertheless, the Court alsonotes that Defendants' counsel has not objected to the use of the web camera.(Doc. 6:21-25).



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Judge Goldner describes Plaintiffs counsel as training a camera on Defendants counsel like a

weapon, but describes Defendants as having merely arranged to have most of the depositions

videotaped by a professional videographer. She later suggests Plaintiffs inappropriate training of acamera on defense counsel in and of itself likely annoyed defense counsel.

This is a distortion of the facts that clearly came out at the telephone conference. As defense

counsel admitted at the conference call with Judge Goldner, defense counsel too had hired a

videographer who had a camera trained at Plaintiffs counsel at the majority of the depositions. The

filming of opposing counsel was a mutually-arrived at arrangement which defense counsel favorably

described at the hearing as having created a calmer atmosphere in depositions. Attached hereto as

Exhibit 1 is a true and correct copy of defense counsels email to Plaintiffs counsel, notifying him that

Defendants intended to train a camera at Plaintiffs counsel at each deposition.

2. Escalation of Conflict

Judge Goldner criticized Plaintiffs counsel for escalating the conflict:

Plaintiff's counsel should have refrained from escalating the conflict after the witnessdenied that she had been coached by "foot tap. There was no need for either counsel tothreaten or insult the other, and no need for Plaintiff's counsel to goad Defendants'counsel by obtaining possession of his phone and then refusing to return it to him, as a

retaliation in kind that only exacerbated the situation.

.Plaintiffs counsel did not obtain possession of defense counsels phone. Defense counsel

handed the phone to Plaintiffs counsel, saying Here. (Doc. 207, 5:3-6). When he asked for it back,

Plaintiffs counsel handed it to him.

Judge Goldner described defense counsel as merely moving Plaintiffs counsels camera:

Defendants' counsel should have refrained from moving the web camera.

Defense counsel did not move Plaintiffs counsels webcams, he grabbed them by their stalks

three times and broke one of them. The transcript establishes this:

Mr. Lee: Let the record reflect that Mr. Wassser has grabbed the camera by the stalk.The instructions on the camera specifically state youre only to grab it by the base. Ifyouve damaged that camera, Im going to ask for - - you to pay for that.(Doc. 207, 6:2-4).

At the hearing, Judge Goldner chided Plaintiffs counsel for adjourning the deposition after



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defense counsel broke his webcam. Plaintiff replied he had little choice given the risk of escalation of

the conflict with defense counsel. Judge Goldner was unpersuaded. Yet, at the very next deposition (of

Supervisor Barbara Patrick), defense counsel continued to threaten to touch Plaintiffs counsels

equipment. Plaintiffs counsel repeatedly requested an assurance that defense counsel would not break

any more of his equipment:

MR. LEE: Mr. Wasser, I'm going to ask you again, are you going to give us anassurance you're not going to be touching my equipment without my permission?MR. WASSER: If I touch your equipment, I'll tell you beforehand.(Doc. 202-3, 5:7-12).

Judge Goldner acted sua sponte when she issued a protective order against Plaintiffs counsel.

Defendants did not request a protective order against Plaintiffs counsels touching of defense counsels

property without his permission because Plaintiffs counsel has never done so. She cited grounds in

support of her order which she refused to divulge to Plaintiffs counsel at the hearing when requested.

Had she done so, Plaintiffs counsel would have vigorously opposed her finding that Plaintiffs counsel

trained his camera like a weapon on defense counsel potentially irritating him, or obtained

possession of defense counsels phone and refused to hand it back, or that defense counsel merely

moved Plaintiffs counsels cameras. These characterizations of events distort the events as they were

related to Judge Goldner at the hearing.

V. CONCLUSIONPlaintiff must respectfully object that Judge Goldners order is clearly erroneous and contrary to

law for the foregoing reasons. Plaintiff has been materially prejudiced by Judge Goldners rulings in this

action, of which her order (Doc. 207) is but the latest example. Plaintiff requests that the Court

reconsider Magistrate Judge Goldners order.

Defense counsel inappropriately refused to produce any of 17 deponents scheduled for

depositions over a one-month period from July 15 to August 14, 2008. When the depositions werefinally underway, defense counsel engaged in numerous improper instructions not to answer and

speaking objections, ultimately forcing the re-convening of 6 out of 10 depositions. Despite this blatant

obstruction, Judge Goldner repeatedly denied Plaintiffs requests for sanctions and protective orders. In

contrast, Judge Goldner was quick to issue a protective order against Plaintiffs counsel, sua sponte and



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based on grounds which she refused to divulge at the hearing itself despite Plaintiffs request. Moreover,

she granted Defendants request for appointment of a Special Master over Plaintiffs objections and

ruled that the parties should bear the cost 50/50. The appointment of a Special Master is unmerited given

Judge Goldner has yet to attempt the intermediate remedies of sanctions and protective orders.

Moreover, the extra cost is unfair to Plaintiff given Plaintiff has not engendered the numerous disputes

which have arisen in depositions.

This is the third request for reconsideration of Judge Goldners ruling which Plaintiff has filed in

this action. It would come as no surprise to Plaintiff if there were a fourth.

Respectfully submitted on September 2, 2008.

/s/ Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]

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



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EXHIBITS

EXHIBIT 1. Email from Defendants to Plaintiff noticing intent to videotapePlaintiffs counsel



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EXHIBIT 1. Email from Defendants to Plaintiff noticing intent to videotapePlaintiffs counsel



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1

Eugene D. Lee

From: Mark Wasser [[email protected]]Sent: Sunday, August 03, 2008 9:58 AMTo: Eugene LeeSubject: Videotaped depositions.

Gene,

The Defendants will videotape Plaintiffs counsel at all future videotaped depositions.

Mark

Law Offices of Mark A. Wasser400 Capitol Mall, Suite 2640Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405E-mail: [email protected] virus found in this incoming message.Checked by AVG - http://www.avg.comVersion: 8.0.138 / Virus Database: 270.5.12/1589 - Release Date: 8/3/2008 1:00 PM
