182 D MPO Depos-ROG3 - D Joint Stmt

8/14/2019 182 D MPO Depos-ROG3 - D Joint Stmt

1/11

Case 1:07-cv-00026-OWW-TAG Document 182 Filed 08/01/2008 Page 1 of 11

I Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 2640Sacramento, California 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: [email protected] Bernard C. Barman, Sr. CA SB #060508KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy CA SB #1018381115 TruxtWl Avenue, Fourth Floor7 Bakersfield, California 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected]

10 Attorneys for Defendants COW1ty of Kern,Peter Bryan, Irwin Harris, Eugene Kercher,II Jennifer Abraham, Scott Ragland, Toni Smithand William Roy

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

121314151617181920212223

DAVID F. JADWIN, D.O.Plaintiff,

vs.COUNTYOF KERN, et a!.,

Defendants.

Case No.: I :07-cv-00026-0WW-TAGDECLARATION OF MARK A. WASSERIN LIEU OF JOINT STATEMENT RE:DISCOVERY DISAGREEMENT RE:DEFENDANTS' MOTION FOR APROTECTIVE ORDERDate: August 6, 2008Time: 9:30 a.m.Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 8Date Action Filed: January 6, 2007Trial Date: December 2, 2008

24 This declaration is submitted in lieu of joint statement pursuant to Local Rule 37-251(d)25 in advance of the August 6, 2008 hearing on Defendants' motion for a protective order.26 I, Mark A. Wasser, declare as follows:27 1. I am counsel of record for Defendants and am familiar with this action. The facts28 stated in this declaration are within my own personal knowledge and I can testify competently to

-1-DECLARATION OF MARKA. WASSER IN LIEU OF JOINT STATEMENT RE: DISCOVERYDISAGREEMENT RE: DEFENDANTS' MOTION FOR A PROTECTIVE ORDER


2/11


I them if called as a witness.2 2. Plaintiffhas noticed 17 additional depositions on top of the 16 he has already3 taken. He has also indicated the desire to depose at least some ofDefendants' experts and4 supplemental experts. This will apparently lead to another 3 or 4 depositions. That would bring5 the total number of depositions by Plaintiffto about 40.6 3. Defendants have so far responded to two sets of interrogatories, consisting of 917 interrogatories, and Plaintiff has now served a third set consisting of 7 interrogatories, the first of8 which asks Defendants to provide, among other things, all facts upon which Defendants base9 their responses to 290 requests for admission. Thus, the first interrogatory, alone, requires

10 potentially 290 separate responses. Other interrogatories in the third set require similarlyII compound responses. Plaintiffs third set of interrogatories will require hundreds of responses.12 Further, the information requested will be of no or, at best, minimal relevance to any claim.13 4. The parties had an agreement that Plaintiffwould not serve additional14 interrogatories after Defendants responded to Plaintiffs second set. These new interrogatoriesIS are in derogation of that agreement and represent a continuation of Plaintiff s unreasonable16 discovery demands.17 5. Nothing about this case justifies the number of depositions and interrogatories18 Plaintiff has taken and served. When Defendants agreed to give Plaintiff "relief' from the19 limitations established in Rules 30 and 33 they were merely consenting to reasonable discovery,20 not unlimited wasteful depositions and interrogatories. A motion for a protective order is the21 appropriate way to challenge this issue.22 6. The depositions Plaintiffwants to take cannot be completed before the discovery23 cut-off. Defendants proposed extending the discovery cut-off one week to accommodate limited24 depositions, however, Plaintiff insisted on an indefinite extension. Extending the discovery cut25 off indefinitely jeopardizes the Scheduling Order and Defendants are not only unwilling to do26 that, they will not do so without approval by the Court.27 7. The last deposition Plaintiff took was on April 19, 2008 when he took the28 deposition of Dr. Marvin Kolb - whom the Defendants flew to Los Angeles from Wisconsin at

-2-DECLARATION OF MARK A. WASSER IN LIEU OF JOINT STATEMENT RE: DISCOVERYDISAGREEMENT RE: DEFENDANTS' MOTION FOR A PROTECTIVEORDER


3/11


I the Defendants' expense as an accommodation to Plaintiff- and which Plaintiffs counsel2 adjourned after about 30 minutes and has never attempted to reschedule. For over two months,3 Plaintiffmade no efforts to proceed with any deposition discovery. Then, on June 30, Plaintiffs4 counsel sent me an e-mail listing 17 additional depositions he wanted to take during the5 remaining 6 weeks of discovery. These, as noted, were in addition to expert depositions of6 which there would be between 3 and 4 per side, depending on which experts were deposed.7 8. Trying to fit over 25 depositions into about 30 working days is impossible under8 the best of conditions. Plus, I was scheduled to prepare for and attend 9 depositions during the9 first weeks in July in Orange County and prepare for and attend a three-day court trial in Orange

10 County Superior Court on July 29, 30 and 31. I was committed almost every day in July.11 9. I proposed the few July days I was available as possible dates for the depositions12 Plaintiff wanted to take but Plaintiff rejected all the dates I proposed. He basically took an "all13 or nothing" approach to these 17 depositions by demanding they all be set according to his14 schedule. Plaintiffs counsel has accused the Defendants of imposing a unilateral "stay" on15 depositions. Defendants have not "stayed" anything. I was simply not available to attend16 depositions on the dates Plaintiff selected. Plaintiffnever cleared any of the dates with me.17 10. . Ifwe are to adhere to the Scheduling Order, there is insufficient time remaining to18 take 25 more depositions. Additionally, Defendants believe Plaintiffhas had more than enough19 opportunity to take depositions and, in fact, has taken more than a reasonable number already.20 11. The depositions Plaintiffhas taken to date have failed to elicit any relevant21 evidence regarding his claims and have been largely a waste of time. Plaintiffhas elected to22 depose witnesses with only the most marginal and remote connection to the case. This23 wastefulness is at least partly demonstrated by the fact that Plaintiff has not even attempted to24 reconvene the two depositions he adjourned - despite asking this Court for reliefon one of them 25 because they were both a waste of time before Plaintiff adjourned them.26 12. Plaintiff s interrogatories to date have been similarly wasteful and have yielded27 little, if any, information of relevance to issues in the case. The great majority of the28 interrogatories have focused on medical procedures that have nothing to do with any of

-3-DECLARATION OFMARKA. WASSER IN LIEU OF JOINT STATEMENT RE: DISCOVERYDISAGREEMENT RE: DEFENDANTS' MOTION FOR A PROTECTIVE ORDER


4/11


1 Plaintiffs claims. Plaintiff has noticed the depositions of people Defendants do not believe have2 any connection with the facts of this case. Under any standard, the sheer number of depositions3 and interrogatories is unreasonable. Nothing about this case warrants so many depositions or4 interrogatories.5 13. Defendants prepared a proposed Joint Statement Re Discovery Dispute, a copy of6 which is attached hereto as Exhibit A, and forwarded it to Plaintiffs counsel for review and7 consideration. Defendants received no reply.8 14. Plaintiff has noticed a motion to amend his complaint but that motion will not be9 heard until September 8. The proposed amendment adds at least two new theories of recovery10 against the County: It expands Plaintiffs civil rights claim to include the County and it adds11 "professional fees" to the monies Plaintiff claims were unlawfully taken from him. Defendants12 have completed Plaintiffs deposition and the parties have completed their disclosure of experts.13 Discovery closes on August 18. Defendants oppose Plaintiffs request to amend his complaint14 but, if is granted, it will require a reopening of the Scheduling Order and a postponement of trial.15 15. IfPlaintiffis permitted to amend his complaint at this late stage of the16 proceedings and expand his theories of recovery against the County then Defendants should be17 given the right to reopen discovery and inquire into the facts Plaintiff believes support his new18 theories. Defendants should also have the opportunity to let their experts review the new19 theories and supplement their previous reports to include any opinions relevant to the new20 theories. Defendants have had no opportunity for their economist, for example, to consider21 Plaintiffs new claim for "professional fees." Amendment of the complaint may require an22 extension of the discovery cut-off and a secondmodification of the expert disclosure deadlines in23 the Scheduling Order. It seems unavoidable that they will impact the trial date.24 16. Although they are not directly related to this motion for a protective order,25 Defendants believe these issues may effect this Court's consideration of the issues presented by26 this motion for a protective order. The additional depositions Plaintiff wants to take and the27 additional interrogatories he has served need to be considered in light of this bigger picture.28

-4-DECLARATION OF MARK A. WASSER IN LIEU OF JOINT STATEMENT RE: DISCOVERYDISAGREEMENT RE: DEFENDANTS' MOTION FOR A PROTECTIVE ORDER


5/11


I Defendants believe these issues should be considered together so they can be handled efficiently2 and comprehensively.3 Respectfully submitted,45678910I I1213141516171819202122232425262728

Dated: August I, 2008 LAW OFFICES OF MARK A. WASSER

By: /s/ Mark A. WasserMark A. WasserAttorney for Defendants, County of Kern, et al.

-5-DECLARATION OF MARK A. WASSER IN LIEU OF JOINT STATEMENT RE: DISCOVERYDISAGREEMENT RE: DEFENDANTS' MOTION FOR A PROTECTIVE ORDER


6/11


EXHIBIT A


7/11


Eugene D. Lee SB# 236812LAW OFFICES OF EUGENE LEE2 555West Fifth Street, Suite 3100Los Angeles, CA 900133 Phone: (213) 992-3299Fax: (213) 596-04874 E-mail: [email protected] Attorneys for Plaintiff David F. Jadwin, D.O.6 Mark A. Wasser CA SB #060160LAW OFFICES OFMARK A. WASSER7 400 Capitol Mall, Suite 2640Sacramento, CA 958148 Phone: (916) 444-6400Fax: (916) 444-64059 E-mail: [email protected]

10 Bernard C. Barman, Sr. CA SB#060508KERN COUNTY COUNSEL11 Mark Nations, ChiefDeputy CA SB#1018381115 Truxtun Avenue, Fourth Floor12 Bakersfield, CA 93301Phone: (661) 868-380013 Fax: (661) 868-3805E-mail: [email protected] Attorneys for Defendants County ofKern,15 Peter Bryan, Irwin Harris, Eugene Kercher,Jennifer Abraham, Scott Ragland, Toni SmitH16 and William Roy

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

17181920 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026-0WW-TAG2122 vs.

Plaintiff, JOINT STATEMENT RE: DISCOVERYDISAGREEMENT RE: DEFENDANTS'MOTION FOR A PROTECTIVE ORDER23 COUNTYOF KERN, et aI.,24 Defendants.25262728

-1-

Date: August 6, 2008Time: 9:30 a.m.Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 8Date Action Filed: January 6, 2007Trial Date: December 2, 2008

JOINT STATEMENT RE: DISCOVERY DISAGREEMENT


8/11


9/11


1 least two new theories of recovery against the County. It expands Plaintiffs civil rights claim to2 include the County and it adds "professional fees" to the monies Plaintiff claims were unlawfully3 taken from him.4 Defendants have completed Plainti ffs deposition and the parties have completed their5 disclosure of experts. Discovery closes on August 16.6 Plaintiff s amendment to his complaint, if granted, will require a reopening of the7 Scheduling Order. Defendants intend to file a motion to modify the Scheduling Order and will8 ask that it be set for hearing on September 8, so it can be considered at the same time as9 Plainti ffs motion to amend.10 If Plaintiff is permitted to amend his complaint at this late stage of the proceedings and11 expand his theories of recovery against the County then Defendants must be given the right to12 reopen discovery and inquire into the facts Plaintiff believes support his new theories. This will13 require an extension of the discovery cut-off. That may effect this Court's consideration of the14 deposition issue.15 Defendants should also have the opportunity to let their experts review the new theories16 and supplement their previous reports to include any opinions relevant to the new theories.17 Defendants have had no opportunity for their economist, for example, to consider Plaintiffs new18 claim for "professional fees." This will require a second modification of the expert disclosure19 deadlines in the Scheduling Order.20 The additional depositions Plaintiffwants to take and the additional interrogatories he has21 served need to be considered in light of this bigger picture. Defendants believe these issues22 should be considered together so they can be handled efficiently and comprehensively.23 a24 Statement of the Nature of the Case.25 Plaintiffs complaint alleges 11 claims for relief including violation of civil rights,26 deprivation of due process, retaliation, failure to comply with the Family Medical Leave Act,27 California Family Rights Act and defamation.28

-3-JOINT STATEMENTRE: DISCOVERY DISAGREEMENT


10/11


1 The dispute arose out of Plaintiffs tenure as a pathologist at Kern Medical Center.2 Plaintiffs relationship with other members of the medical staffdeteriorated to the point of3 intimidation, hostility and antagonism. Plaintiff claims Defendants created a hostile work4 environment and damaged his reputation. Defendants claim, to the extent the workplace was5 hostile, the hostility was caused by Plaintiff and, to the extent his reputation was damaged,6 Plaintiff inflicted the damage on himself. Plaintiff seeks unspecified damages for personal injury7 and loss of compensation.8 III.9 The Contentions of the Parties.

10 The depositions Plaintiff has taken to date have failed to elicit any relevant evidence11 regarding his claims and have been largely a waste of time. Plaintiffhas elected to depose12 witnesses with only the most marginal and remote connection to the case. This wastefulness is at13 least partly demonstrated by the fact that Plaintiff has not even attempted to reconvene the two14 depositions he adjourned - despite asking this Court for relief on one of them - because they were15 both a waste of time before Plaintiff adjourned them.16 Plaintiff s interrogatories to date have been similarly wasteful and have yielded little, if17 any, information of relevance to issues in the case. The great majority of the interrogatories have18 focused on medical procedures that have nothing to do with any of Plaintiff s claims.19 Plaintiffs approach to discovery has been burdensome and abusive.20 Under any standard, the sheer number of depositions and interrogatories is unreasonable.21 Nothing about this case warrants so many depositions or interrogatories.22 Plaintiffd isagrees and believes the Defendants have no right to object to his discovery.23 He believes he can take as many depositions as he wants and serve as many interrogatories as he24 wants. He reads the language in the Scheduling Order as granting him the right to unlimited25 depositions and interrogatories. He believes his discovery to-date has been valuable.26 He believes the Defendants' objections are in bad faith and that the Defendants should27 submit to the depositions he has noticed and answer all the interrogatories.28

-4-JOINT STATEMENT RE: DISCOVERY DISAGREEMENT


11/11


1 IV.2 Conclusion.3 This Court's intervention is necessary to resolve the issue.4 Respectfully submitted,56 Dated: July__ , 20087891011 Dated: July__ , 200812131415161718192021222324

25262728

LAW OFFICE OF EUGENE LEE

By:_-,-:- _Eugene D. LeeAttorney for Plaintiff, David F. Jadwin, D.O.

LAW OFFICES OF MARK A. WASSER

By:, _Mark A. WasserAttorney for Defendants, County ofKern, et al.

-5-JOINT STATEMENT RE: DISCOVERY DISAGREEMENT

Documents

182 D MPO Depos-ROG3 - D Joint Stmt