66 MTC ID - Reply - LeeE Declaration

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PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO MOTION TO COMPEL

INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 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]

Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE

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

DECLARATION OF EUGENE D. LEE INSUPPORT OF PLAINTIFFS REPLY TOOPPOSITION TO MOTION TO COMPEL

INITIAL DISCLOSURES; REQUEST FORSANCTIONS

Date: November 5, 2007Time: 9:30 a.m.Place: U.S. District Court, Bankruptcy Courtroom

1300 18th St., Bakersfield, CA

Date Action Filed: January 6, 2007Date Set for Trial: August 26, 2008

I, the undersigned, declare and say, as follows:

1. I am an attorney at law duly licensed to practice before the Federal and State Courts of

California and admitted to practice before the United States District Court for the Eastern District of

California. I am one of the attorneys of record representing Plaintiff David F. Jadwin in this matter.

2. I am making this declaration in support of Plaintiff David F. Jadwin, D.O.s Motion to

Case 1:07-cv-00026-OWW-TAG Document 66 Filed 10/26/2007 Page 1 of 30


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Compel Initial Disclosures and Request for Sanctions. The facts stated herein are personally known to

me and if called as a witness, I could and would competently testify to the truth of the facts set forth in

this declaration.

3. On March 8, 2007, I sent an email to Ms. Karen Barnes, Deputy County Counsel for the

County of Kern, relaying Dr. Jadwins request for access to his office in order to obtain materials needed

to prepare for an upcoming lecture he was to give. A true and correct copy of the email is attached

hereto as Exhibit 1, page 000002.

4. On March 13, 2007, Dr. Philip Dutt, Kern Medical Center (KMC) Acting Chair of

Pathology, sent an email to me asking Dr. Jadwin to specify the materials. A true and correct copy of the

email is attached hereto as Exhibit 1, page 000001 - 000002.

5. On March 21, 2007, I sent an email to Ms. Barnes explaining that Dr. Dutts suggestion

was impractical and that Dr. Jadwin would need physical access to his computer. A true and correct

copy of the email is attached hereto as Exhibit 1, page 000001.

6. On March 22, 2007, Ms. Barnes sent an email to me granting Dr. Jadwins request for

access to his computer and asking for Dr. Jadwin to set a date and time to go to KMC. A true and correct

copy of the email is attached hereto as Exhibit 1, page 000001.

7. On March 25, 2007, I sent an email to Ms. Barnes informing her that Dr. Jadwin

preferred to go to KMC on March 28, 2007 at 2 p.m. A true and correct copy of the email is attached

hereto as Exhibit 1, page 000003.

8. On March 27, 2007, Ms. Barnes sent an email to me confirming March 28, 2007 at 2 p.m.

was fine. She asked that Dr. Jadwin report to the medical staff office in order to be escorted to the

pathology department. A true and correct copy of the email is attached hereto as Exhibit 1, page 000003.

9. On March 29, 2007, I faxed a letter to Ms. Barnes detailing Dr. Dutts refusal to grant Dr.

Jadwin access to his computer files, thus forcing him to drive over 100 miles back to his home

essentially empty-handed. A true and correct copy of the email is attached hereto as Exhibit 1, page

000004-000006.

10. On July 4, 2007, I sent an email to Mark Wasser, counsel for Defendants, stating that, in

light of Kern Countys decision not to renew his employment contract, Dr. Jadwin would like to retrieve



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all of his personal items from his office at KMC. A true and correct copy of the email is attached hereto

as Exhibit 2, page 000001.

11. On August 15, 2007, I sent an email to Mr. Wasser asking for an explanation why it was

taking Kern County upwards of six weeks to permit Dr. Jadwin to retrieve his personal items. A true and

correct copy of the email is attached hereto as Exhibit 2, page 000002.

12. On September 10, 2007, I sent an email to Mr. Wasser asking for an explanation why it

was taking Kern County upwards of 2 months to permit Dr. Jadwin to retrieve his personal items. A true

and correct copy of the email is attached hereto as Exhibit 2, page 000003.

13. On September 29, 2007, I sent an email to Mr. Wasser asking for an explanation why it

was taking Kern County nearly 3 months to permit Dr. Jadwin to retrieve his personal items. A true and

correct copy of the email is attached hereto as Exhibit 2, page 000004.

14. On October 5, 2007, I faxed a meet and confer letter to Mr. Wasser regarding Defendants

threatened motion for protective order, citing Folsom v. Heartland Bank,1999 U.S. Dist. LEXIS 7814 (D

Kan. 1999) at length. A true and correct copy of the email is attached hereto as Exhibit 3, page 000001-

000001-000003.

15. On October 9, 2007, more than 2 weeks after Plaintiff had already filed the Motion to

Compel, Mr. Wasser faxed a letter to me proposing a stipulation that was similar to the stipulation which

Plaintiff had been proposing for more than a month and which Defendants had refused to even negotiate.

A true and correct copy of the email is attached hereto as Exhibit 3, page 000004-000008.

16. On October 10, 2007, Mr. Wasser sent an email to me asking whether I had had a chance

to review his letter and proposed stipulation. A true and correct copy of the email is attached hereto as

Exhibit 3, page 000009.

17. Later that day, I sent an email to Mr. Wasser proposing revisions to Defendants

stipulation. A true and correct copy of the email is attached hereto as Exhibit 3, page 000010.

18. Later that day, Mr. Wasser sent a reply email to me rejecting the proposed revisions. A

true and correct copy of the email is attached hereto as Exhibit 3, page 000010.

19. On October 26, 2007, Mr. Wasser sent an email to me that was sarcastic and

unprofessional. A true and correct copy of the email is attached hereto as Exhibit 4, page 0000001.



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I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed on October 26, 2007, at Los Angeles, California.

________________________________________Eugene D. Lee



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EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Plaintiffs counsels correspondence with Deputy County Counsel forKern County regarding Dr. Jadwins request for access to computerfiles

EXHIBIT 2. Plaintiffs counsels correspondence with Defendants counselregarding Dr. Jadwins request to retrieve his personal items from hisoffice

EXHIBIT 3. Defendants counsels correspondence with Plaintiffs counselproposing stipulation

EXHIBIT 4. Defendants counsels email to Plaintiffs counsel of October 26, 2007



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EXHIBIT 1. Plaintiffs counsels correspondence with Deputy County Counsel forKern County regarding Dr. Jadwins request for access to computerfiles



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Eugene D. Lee

From: Karen Barnes [[email protected]]Sent: Thursday, March 22, 2007 7:58 AMTo: Eugene D. LeeSubject: RE: Jadwin: Access to office

Follow Up Flag: Follow upFlag Status: Completed

I will need to know a date and time.

>>> "Eugene D. Lee" 03/21/07 3:44 PM >>>Karen:

Dr. Jadwin has considered Dr. Dutt's suggested approach at great length, however, he's

concluded it would be simpler and easier if he were simply permitted access to his

office. It will be very time consuming, not to mention uncomfortable, for Dr. Jadwin to

have to inventory the personal items he needs access to. Dr. Jadwin has a lot of

personal information including personal items predating his employment at KMC stored

on his computer in the office. As you know, Dr. Jadwins involuntary suspension was

abruptly imposed with no prior warning, catching Dr. Jadwin unawares. During the nearly

four months since then, Dr. Jadwin has not once been permitted access to his personal

items at his office.

At this time, Dr. Jadwin would greatly appreciate being permitted momentary access to

his office to retrieve the personal items he needs from his office. Your prompt response

is appreciated.

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 0

L 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 9

F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7

E - m a i l : [email protected]

W e b s i t e : www.LOEL.com

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

This message is sent by a law firm and may contain information that is privileged or

confidential. If you received this transmission in error, please notify the sender by

reply e-mail and delete the message and any attachments.

-----Original Message-----

From: Philip Dutt, MD [mailto:[email protected]]

Sent: Tuesday, March 13, 2007 4:30 PM

To: Karen Barnes; Eugene D. Lee

Subject: Re: Jadwin: Access to office

Karen et al.:

Lee Decl 1 000001



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What materials does he need? Books? Handouts from CME courses? If Gene

Lee will give us specifics, maybe I can help without Dr. Jadwin having

to come here.

What is the title of the lecture or presentation?

Thank You,

Philip Dutt

Pathologist

Lab

Kern Medical [email protected]

* * * * * * * * * * CONFIDENTIALITY STATEMENT * * * * * * * * * *

This message is intended only for the use of the individual or entity

to which it is addressed and may contain information that is privileged,

confidential and exempt from disclosure under applicable law. If the

reader of this message is not the intended recipient, you are hereby

notified that any dissemination, distribution or copying of the

communication is strictly prohibited. If you received this communication

in error, please notify us immediately by telephone and return the

original message to us at the E-mail address above. Thank you

>>> "Eugene D. Lee" 03/08/07 10:40 AM >>>

Karen:

Dr. Jadwin asked me to relay to you his request for access to his

office. He

needs certain materials in order to prepare for a lecture he will be

giving

soon. Please let me know what KMC's required procedure are.

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 0

L 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 9

F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7

E - m a i l : [email protected]


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

This message is sent by a law firm and may contain information that is

Lee Decl 1 000002



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1

Eugene D. Lee

From: Karen Barnes [[email protected]]Sent: Tuesday, March 27, 2007 2:47 PMTo: Eugene D. LeeSubject: RE: Jadwin: Access to office


Wednesday, March 28 at 2 p.m. is fine. Please have Dr. Jadwin report to the medical staff office. He should be familiarwith its location. From there someone will escort him to the pathology department.

>>> "Eugene D. Lee" 03/25/07 11:34 PM >>>Karen:

Dr. Jadwin would prefer Wednesday, March 28, 2007, 2:00 pm. Please confirm by reply email whether this date and timewill be acceptable to you.

Sincerely,

Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~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 W555 WE S T F I F T H S T ., S T E . 3100

L O S AN G E L E S , CA 90013T 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]


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

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.

Lee Decl 1 000003



10/30Lee Decl 1 000004


- - rom: aw ce o ugene ee g : pm

(213) 992 -3299TELEPHONE LAWE U G

OFFICEENE L OFE [email protected]

EMAIL

(213) 596 -0487FACSIMILE

FAX5 5 5 WEST FIFTH STREET SUITE 3 1 0 0Los ANGELES, CALIFORNIA 9001 3-1 01 0 WWW.LOEL.COMWEBSITE

To:Fax Number: 2135960487

Pages: 3 (including cover page)Re: Jadwin/County of Kern et al.

Comments:Karen:

From: Law Office of Eugene LeeDate: 03/29/2007

Tran sm it te d he rew it h i s a l e t t e r regard ing Dr. Jadwin ' s v i s i t to h isoff i ce a t KMC yes terday and KMC's duty to preserve evidence .Please con t ac t me if you have ques t ions .


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( 2 13 ) 992-3299TELEPHONE

(Z 1 3 ) 596-0487FACS IM ILE

LAW OFFICE OFEUGENE LEE555 W ES T F IF TH S TR EE T, SU I TE 3100LO S ANGE LES , CAL I FORN I A 90013-1010

March 29,2007

[email protected]

WWW.LOEL .COMWEBS I TE

VIA FACSIMILE & US MAILMs. Karen S. BarnesDeputy County CounselKern Medical Center1830 Flower StreetBakersfield, CA 93305-4197

100011.001

Re: Dr. Jadwin's Access to His Personal Materials at KMCJadwin / County ofKern (USDC EDCANo. 1:07-cv-00026-0WW/TAG)

Dear Ms. Barnes:Following is brief summary ofDr. Jadwin's trip to KMC yesterday.Dr. Jadwin arrived at KMC at 2:00 p.m. on March 28,2006 and proceeded to go to the MedicalStaffOffice, as per your instructions. Steve, the KMC Head of Security escorted Dr. Jadwinfrom there to his office. The locks to Dr. Jadwin's office had apparently been changed during Dr.Jadwin's absence and Steve was therefore unable to open the door. Dr. Dutt then appeared andproceeded to unlock Dr. Jadwin's office.Upon entering his office Dr. Jadwin immediately noticed that his file cabinet and his desktopcomputer were both missing. Regarding the missing filing cabinet, Dr. Dutt stated that he had"needed it". When Dr. Jadwin said that the cabinet had been filled with his personal items,including his personal scrubs, Dr. Dutt immediately denied it.Dr. Jadwin mentioned that a Bluetooth transmitter for his personal wireless keyboard and mousehad been attached to the back ofthe now-missing desktop computer. Dr. Dutt stated that it was"easy to make a mistake" when personal and county property were mixed.Regarding the missing computer, Dr. Dutt explained that the computer had been taken for usewith the microscopy camera. Dr. Jadwin mentioned to Dr. Dutt that the computer had containedthe personal and other information which Dr. Jadwin required for his Grand Rounds talk atUCLAnext month. Dr. Dutt then interrogated Dr. Jadwin, asking where he was giving the talk,what the subj ect ofthe talk was going to be, what he needed from his computer, etc. Dr. Duttasserted that neither Dr. Jadwin nor I, his attorney, had been specific about what was needed. Assuch, he asserted it was "our fault" that the computer files were unavailable.Dr. Jadwin stressed that he was very short of time and needed the materials to prepare for thelecture. When Dr. Jadwin explained that the items he sought were things that he needed to sort


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through on the computer to find, Dr. Dutt replied that this was something "for the attorneys tosort out".Dr. Jadwin then collected several personal items in a box and turned over several items to Dr.Dutt that were County property. Steve escorted Dr. Jadwin off the campus.At this point, Dr. Jadwin has very little time left to prepare for his grand rounds lecture. Dr.Jadwin has irreplaceable case studies and images that he has collected through the years on hiscomputer. He requires immediate access to these and other personal files. As I had previouslyexplained to you in my email of March 21 :

It will be very time consuming, not to mention uncomfortable, for Dr. Jadwin tohave to inventory the personal items he needs access to. Dr. Jadwin has a lot ofpersonal information - including personal items predating his employment atKMC - stored on his computer in the office.Put another way, it does not seem reasonable to expect Dr. Jadwin to recall every single personalfile contained on his computer and specifY which exact files he requires, not to mention theirfilenames and folder locations on his computer. This is why I had requested Dr. Jadwin bepermitted to personally access his office and retrieve the files from his computer. Apparently,you had agreed in your reply email of March 22, when you requested I provide you with Dr.Jadwin's preferred date and time.Given the shortness of time, unless you have a different proposal in mind, I would request thatALL of Dr. Jadwin's files contained on his computer be mailed to him on CDs by overnightexpress mail.On a closing note, I would like to remind you that KMC is under a strict legal obligation topreserve and prevent spoliation of electronic evidence relating to Dr. Jadwin's lawsuit against theCounty of Kern et al. This includes the emails and files contained on Dr. Jadwin's computer. Iam very disturbed to hear that Dr. Dutt has expropriated Dr. Jadwin's computer for other use andthat, apparently, no measures have been taken to backup or protect any ofthe data containedthereon.Your prompt response is appreciated.

cc: David F. Jadwin, DO

2


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EXHIBIT 2. Plaintiffs counsels correspondence with Defendants counselregarding Dr. Jadwins request to retrieve his personal items from hisoffice



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, July 04, 2007 12:20 AMTo: '[email protected]'Cc: 'Joan Herrington'Subject: Dr. Jadwin: NPI issue/access to office


Mark:

Please see the below email which I had sent you on April 5, 2007 regarding an HR issue of Dr. Jadwins. Dr. Jadwin stillneeds to know whether KMC has requested an NPI number for him. The request would have been handled by MedriumBilling.

Dr. Jadwin would also like to retrieve personal items from his KMC office. Please advise what arrangements, if any, needto be made so that he may access his office.

I look forward to hearing from you.

Sincerely,

Gene Lee





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Lee Decl 2 000001



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, August 15, 2007 7:25 PMTo: '[email protected]'Cc: 'Joan Herrington'Subject: RE: Dr. Jadwin's personal property


Mark,

Your email states that Dr. Jadwins letter was not welcome, but perhaps KMC is also willing to acknowledge that Dr.Jadwin has just cause to be frustrated by KMCs continuing denial of his access to his personal things.

Dr. Jadwin lost access to his office in December of last year when he was abruptly escorted from the campus. Herequested access to retrieve his personal items on July 4, more than six weeks ago. He has yet to receive anyexplanation for the delay. It is welcome news to hear that KMC is now working on Dr. Jadwins request, but perhaps KMCcan explain what exactly KMC is working on, what KMC is doing with his personal items and why this process hasrequired upwards of six weeks. By all accounts, this should have been a very simple matter of arranging a mutually

convenient date and time for Dr. Jadwin to come and retrieve his things.

I look forward to your response.

Sincerely,

Gene Lee





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Lee Decl 2 000002



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Monday, September 10, 2007 2:11 PMTo: '[email protected]'Cc: 'Joan Herrington'Subject: RE: Jadwin's personal property


Mark,

As stated before, given the previous loss of his personal things (of which he notified Dr. Dutt during his last visit), Dr.Jadwin would prefer to be on-site to monitor the inventorying and packing of his personal things by a mover of his choice.If the County had permitted him to do so, he wouldve been able to retrieve his items long ago. Instead, he has had to waitfor over two months and still has not been permitted to retrieve his things.

It should be noted that Dr. Jadwin lost access to his office in December of last year when he was abruptly escorted fromthe campus. He requested access to retrieve his personal items on July 4, more than two months ago. He has yet toreceive any explanation for the delay. It is welcome news to hear that KMC is now working on Dr. Jadwins request, but

perhaps KMC can explain what exactly KMC is working on, what KMC is doing with his personal items and why thisprocess has required upwards of two months. By all accounts, this should have been a very simple matter of letting Dr.Jadwin come and retrieve his things.

Since the County is not willing to simply let Dr. Jadwin retrieve his things and insists on shipping them to Dr. Jadwin,please have the items sent to David F. Jadwin, Columbia Healthcare Analytics, Inc., 1010 N Central Ave, Ste 480,Glendale, CA 91202 by a full-service moving company which will inventory, pack and transport the items directly to hisoffice. Dr. Jadwin would appreciate receiving his items as soon as possible.

Sincerely,

Gene Lee

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

L A W O F F I C E O F E U G E N E L E EE M P L O Y M E N T L A W

555 WE S T F I F T H S T ., S T E . 3100L O S AN G E L E S , CA 90013

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]


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Lee Decl 2 000003



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Saturday, September 29, 2007 12:20 AMTo: '[email protected]'Cc: 'Joan Herrington'Subject: Your Unprofessional Emails


Mark,

Your email is, as usual, full of personal insults and accusations. This is unprofessional. Emails like this not only needlesslyincrease the attorney fees which Plaintiff will ultimately seek from Defendants, they also demonstrate to the Court whyincreased plaintiff attorney fees will be justified. I believe you are doing a disservice to your clients by sending emails likethis as we proceed toward trial.

I fail to see the constructive purpose behind your email. It is not a meet and confer communication. As you know, thatprocess has already ended and weve already filed the motion. If it is an attempt to resolve a misunderstanding, it is notvery effective. Insults and accusations rarely are.

Your email is also deceptive and refuses to take responsibility for the Countys behavior. The only reason the issue ofreturning Dr. Jadwins property to him is difficult is because the County has chosen to make it so. The County couldhave done any number of things to resolve this issue. The first thing that comes to mind is that the County could have saidyes when Dr. Jadwin asked for permission to come to the office and retrieve his things. But the County decided toretaliate against and bully Dr. Jadwin in every way possible, including withholding his personal things from him. Dr. Jadwinrequested permission to retrieve his personal things on July 4, 2007. The County has taken three months to resolve whatshould have been a simple matter. Dr. Jadwin has repeatedly asked for an explanation for the delay. The County refusedto give any.

Now the County is telling Dr. Jadwin that it has unilaterally decided to inventory and deliver his items on October 1. Dr.Jadwin is traveling now and Im having difficulty reaching him. I cannot confirm that October 1 will be a workable date onsuch unreasonably short notice.

As for your accusation that I am to blame for the fact that the County has chosen to take three months to deal with a verysimple issue, thats totally false. All I have done is forward Dr. Jadwins requests to you, the Countys lawyer. I have hadabsolutely no contact with people at the County regarding this issue as you claim. I challenge you to provide proof to backup your accusations. Give me names and emails. Demonstrate that this isnt just more of the Countys attempts to avoidresponsibility for its conduct.

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




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Lee Decl 2 000004



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EXHIBIT 3. Defendants counsels correspondence with Plaintiffs counselproposing stipulation



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EMAIL

(213) 596 -0487FACSIMILE

FAX5 5 5 WEST F IFTH STREET SUITE 3 1 0 0Los ANGELES, CALIFORNIA 9001 3-1 01 0 WWW.LOEL.COMWEBSITE



Pages: 3 (including cover page)Re: Jadwin/KC: Protective Order Meet and Confer

Comments:Mark,Tran sm it te d he rew it h i s P l a i n t i f f ' s meet and confer l e t t e r regard ingDefendants ' th rea tened motion fo r pro tec t ive order . Please c a l l me a t(213) 453-1781 if you wish to discuss t h i s .Sincere ly .

Lee Decl 3 000001





EMAIL

(213) 596 -0487FACSIMILE

FAX5 5 5 WEST FIFTH STREET SUITE 3 1 0 0Los ANGELES, CALIFORNIA 9001 3-1 01 0 WWW.LOEL.COMWEBSITE



Pages: 3 (including cover page)Re: Jadwin/KC: Protective Order Meet and Confer

Comments:Mark,Tran sm it te d he rew it h i s P l a i n t i f f ' s meet and confer l e t t e r regard ingDefendants ' th rea tened motion fo r pro tec t ive order . Please c a l l me a t(213) 453-1781 if you wish to discuss t h i s .Sincere ly .


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ELEE@LOEL .GOME-MAILOF

LEELAW OFFICEEUGENE

( 2 1 3 ) 992-3299TELEPHONE

(Z 1 3 ) 596-0487FACS IM I L E

555 WE S T F IF TH S TR EE T , SU I T E 3100L OS A N GE LE S , C A LIF O RN IA 90013-1010

WWW. LOEL . COMWEBS ITE

EUGENE D. LEE, ESQPRINCIPAL

JOAN E. HERRINGTON, ESQOF COUNSEL

October 5, 2007VIA FACSIMILEMark WasserLaw Offices ofMark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

100011.001

Re: Defendants' Motion for Protective OrderJadwin / County ofKern, et al. (USDC EDCANO.1 :07-cv-00026-0WW/TAG)

Dear Mr. Wasser:I am in receipt ofyour faxed letter ofOctober 3 ("Fax").According to the Fax, the employee-declarants state:

that this case arose out of work-related issues, does not involve any of theemployees in their personal or private lives, that they all believe their private livesshould be kept separate from their work careers, that they are all available at theirwork addresses to be contacted in connection with this case and they do not wantDr. Jadwin to know where they live.

In other words, the declarants have ordinary privacy concerns.FRCP 26(a)(I) expresses the legislature's will that parties be provided witnesses' home contactinformation notwithstanding privacy concerns. In Folsom v. HeartlandBank, the court ruled thatdefendants have a duty to disclose the home contact information for witnesses under FRCP26(a)(I):

The identified former and current employees directly worked on the loan betweenplaintiffs and Heartland which is the subject of this litigation [. . . .J Suchindividuals appear likely to have discoverable information relevant to disputedfacts alleged with particularity. Fed. R. Civ. P. 26(a)(l)(A) thus requiresHeartland to disclose their known addresses and telephone numbers, withoutawaiting a discovery request. 'I t may not satisfy this obligation by disclosing itsbusiness address and phone number, unless it knows of no other address andnumber.' Dixon v. Certainteed Corp., 164 F.R.D. 685, 689 (D . Kan. 1996). RnIe26(a)(l)(A) contemplates disclosure of the personal address and telephonenumber of identified individuals.1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).

Lee Decl 3 000002



ELEE@LOEL .GOME-MAILOF

LEELAW OFFICEEUGENE

( 2 1 3 ) 992-3299TELEPHONE

(Z 1 3 ) 596-0487FACS IM I L E

555 W ES T F IF TH S TR EE T, SU I T E 3100L OS A N GE LE S , C A LIF O RN IA 90013-1010

WWW. LOEL . COMWEBS ITE

EUGENE D. LEE, ESQPRINCIPAL

JOAN E. HERRINGTON, ESQOF COUNSEL

October 5, 2007VIA FACSIMILEMark WasserLaw Offices ofMark Wasser400 Capitol Mall Ste 1100Sacramento, CA 95814

100011.001

Re: Defendants' Motion for Protective OrderJadwin / County ofKern, et al. (USDC EDCANO.1 :07-cv-00026-0WW/TAG)

Dear Mr. Wasser:I am in receipt ofyour faxed letter ofOctober 3 ("Fax").According to the Fax, the employee-declarants state:

that this case arose out of work-related issues, does not involve any of theemployees in their personal or private lives, that they all believe their private livesshould be kept separate from their work careers, that they are all available at theirwork addresses to be contacted in connection with this case and they do not wantDr. Jadwin to know where they live.

In other words, the declarants have ordinary privacy concerns.FRCP 26(a)(I) expresses the legislature's will that parties be provided witnesses' home contactinformation notwithstanding privacy concerns. In Folsom v. HeartlandBank, the court ruled thatdefendants have a duty to disclose the home contact information for witnesses under FRCP26(a)(I):

The identified former and current employees directly worked on the loan betweenplaintiffs and Heartland which is the subject of this litigation [. . . .J Suchindividuals appear likely to have discoverable information relevant to disputedfacts alleged with particularity. Fed. R. Civ. P. 26(a)(l)(A) thus requiresHeartland to disclose their known addresses and telephone numbers, withoutawaiting a discovery request. 'I t may not satisfy this obligation by disclosing itsbusiness address and phone number, unless it knows of no other address andnumber.' Dixon v. Certainteed Corp., 164 F.R.D. 685, 689 (D. Kan. 1996). RnIe26(a)(l)(A) contemplates disclosure of the personal address and telephonenumber of identified individuals.1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).


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Ordinary privacy concerns do not trump Plaintiff's right to the witnesses' home contactinformation as expressed by FRCP 26(a)(l). If you have caselaw suggesting otherwise, pleaseprovide us such citations as part of your good faith meet and confer.

The Fax leaves a number of Plaintiff's questions unanswered. Defendants had stated in their faxofOctober 1: "The stipulation you have proposed is not acceptable because it, like earlierversions you have sent, proposes terms that modify the normal rules in ways we have neverwritten about or agreed to." Plaintiffstill awaits clarification on what Defendants consider the"normal rules".Plaintiff's letter of October 1 had also asked: Which of the witnesses listed on Defendants"Supplemental" Initial Disclosures are employees of Kern County as opposed to independentcontractors [and how can Plaintiff be sure which are encompassed within Defendants'"representations"]? Plaintiff's proposed stipulation addresses this issue.

The Fax further states "Like you, we would like to avoid the need for a protective order."Plaintiffwould like to take this base of agreement one step further and revisit the idea of awritten stipulation. A written stipulation would avoid the need for Defendants' motion forprotective order while accomplishing the goals of the parties. Plaintiff has always been, andremains, willing to negotiate a written stipulation with Defendants which completely obviates theneed for such a motion.Plaintiff has already on numerous occasions provided Defendants with the draft stipulation as astarting point for discussions. Please let us know ifyou require another copy.We look forward to your response. Hopefully, we can avoid the need for a motion for protectiveorder by amicably resolving this among ourselves. Please do not hesitate to contact me with anyquestions.

cc: Joan Herrington, Esq.

2Lee Decl 3 000003



Ordinary privacy concerns do not trump Plaintiff's right to the witnesses' home contactinformation as expressed by FRCP 26(a)(l). If you have caselaw suggesting otherwise, pleaseprovide us such citations as part of your good faith meet and confer.

The Fax leaves a number of Plaintiff's questions unanswered. Defendants had stated in their faxofOctober 1: "The stipulation you have proposed is not acceptable because it, like earlierversions you have sent, proposes terms that modify the normal rules in ways we have neverwritten about or agreed to." Plaintiffstill awaits clarification on what Defendants consider the"normal rules".Plaintiff's letter of October 1 had also asked: Which of the witnesses listed on Defendants"Supplemental" Initial Disclosures are employees of Kern County as opposed to independentcontractors [and how can Plaintiff be sure which are encompassed within Defendants'"representations"]? Plaintiff's proposed stipulation addresses this issue.

The Fax further states "Like you, we would like to avoid the need for a protective order."Plaintiffwould like to take this base of agreement one step further and revisit the idea of awritten stipulation. A written stipulation would avoid the need for Defendants' motion forprotective order while accomplishing the goals of the parties. Plaintiff has always been, andremains, willing to negotiate a written stipulation with Defendants which completely obviates theneed for such a motion.Plaintiff has already on numerous occasions provided Defendants with the draft stipulation as astarting point for discussions. Please let us know ifyou require another copy.We look forward to your response. Hopefully, we can avoid the need for a motion for protectiveorder by amicably resolving this among ourselves. Please do not hesitate to contact me with anyquestions.

cc: Joan Herrington, Esq.

2


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ct 09 07 11 :49a 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 'VasserPages: 5 (including cover page)Date: October 9, 2007

Re: Jadwin v. County ofKern CC:

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

Please see the attached letter and stipulation. Thankyou.

Lee Decl 3 000004


ct 09 07 11 :49a 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 'VasserPages: 5 (including cover page)Date: October 9, 2007

Re: Jadwin v. County ofKern CC:

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

Please see the attached letter and stipulation. Thankyou.


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ct 09 07 11 :49a Mark WasserLaw Offices ofMARK A. WASSER400 Capitol Mall, Suite]] 00

Sacramento, California 95814Office: 916-444-6400 Fax: 916-444-6405

mwasser@mark\lirasser.com

916-444-6405 p.2

October 9, 2007

VIA FACSIMILE & FIRST CLASS MAILEugene LeeLaw Offices ofEugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et al.Dear Mr. Lee:

Our opposition to your motion to compel and our motion for protective order withsupporting declarations are finished and we were going to file them with the Counyesterday. However, because yesterday was a court holiday we decided to "{ait and filethem this morning. When I got to my office today, I found your letter that I received at11:23 p.m. last night.

As I have written before, I am tired of corresponding Vvith you about the initialdisclosures. ::-Jone of the letters either of us has written seem to have had any effect inbringing this matter closer to resolution. You write that the parties agree "in principle".Actually, I believe we disagree in principle. You want home addresses and we will notprovide them. Nothing we have exchanged indicates agreement. Nevertheless, andagainst my better judgment, I will give it one more try.

I have prepared the enclosed stipulation. If it meets with your approval, pleasesign it and return it. I will submit it to the Court for signature.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via first class mail)Joan Herrington (via first class mail)

Admitted to Practice in Californla and Nevada Lee Decl 3 000005


ct 09 07 11 :49a Mark WasserLaw Offices ofMARK A. WASSER400 Capitol Mall, Suite]] 00

Sacramento, California 95814Office: 916-444-6400 Fax: 916-444-6405

ffiwasser@mark\lirasser.com

916-444-6405 p.2

October 9, 2007

VIA FACSIMILE & FIRST CLASS MAILEugene LeeLaw Offices ofEugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et al.Dear Mr. Lee:

Our opposition to your motion to compel and our motion for protective order withsupporting declarations are finished and we were going to file them with the Counyesterday. However, because yesterday was a court holiday we decided to "{ait and filethem this morning. When I got to my office today, I found your letter that I received at11:23 p.m. last night.

As I have written before, I am tired of corresponding Vvith you about the initialdisclosures. ::-Jone of the letters either of us has written seem to have had any effect inbringing this matter closer to resolution. You write that the parties agree "in principle".Actually, I believe we disagree in principle. You want home addresses and we will notprovide them. Nothing we have exchanged indicates agreement. Nevertheless, andagainst my better judgment, I will give it one more try.

I have prepared the enclosed stipulation. If it meets with your approval, pleasesign it and return it. I will submit it to the Court for signature.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via first class mail)Joan Herrington (via first class mail)

Admitted to Practice in Californla and Nevada


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ct 09 07 11 :49a Mark Wasser 916-444-6405 p.3

1 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: eleerGlLOEL.com5 Joan Herrington SB# 178988BAYAREA EMPLOy:\1ENT LAW OFFICE6 5032 Woodminister LaneOakland, CA 946027 Phone: (510) 530-4078Fax: (510) 530-47258 E-mail: [email protected] Counsef to LAW OFFICE OF EUGENE LEE9 Attorneys for Plaintiff

10 DAVID F. JADWIN, D.O.I I Mark A. Wasser CA SB #060160LAW OFFICES OFMARK A. WASSER12 400 Capitol Mall, Suite 1100Sacramento. CA 9581413 Phone: (916) 444-6400Fax: (916) 444-640514 E-mail: mwasserrw.markwasser.com15 Bernard C. Barman, Sr.KERN COUNTY COUNSEL16 Mark Nations, ChiefDeputy1115 Truxtun Avenue, Fourth Floor17 Bakersfield, CA 93301

Phone: (661) 868-380018 Fax: (661) 868-3805E-mail: [email protected] Attorneys for Defendants County ofKem, Peter Bryan, Irwin Harris, Eugene Kercher,20 Jennifer Abraham, Scott Ragland, Toni Smith and William Roy21 UNITED STATES DISTRICT COURT22 EASTER."'I DISTRICT OF CALIFORNIA23

Complaint Filed: January 5,2007Trial Date: August 26, 2008

STIPULATION RE: ADDRESSINFORMATION FOR POTENTIAL"lTNESSES LISTED IN THE INITIALDISCLOSURESPlaintiff,

Defendants.

vs.

DAVID F. JADWIN, D.O.

COUNTY OF KERN, et aI.,

Case No.: 1:07-cv-26

--------------)

2425262728

STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL WITNESSESLISTED IN THE PARTIES l"lITIALDISCLOSURES

Lee Decl 3 000006


ct 09 07 11 :49a Mark Wasser 916-444-6405 p.3

1 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: eleerGlLOEL.com5 Joan Herrington SB# 178988BAYAREA EMPLOy:\1ENT LAW OFFICE6 5032 Woodminister LaneOakland, CA 946027 Phone: (510) 530-4078Fax: (510) 530-47258 E-mail: [email protected] Counsef to LAW OFFICE OF EUGENE LEE9 Attorneys for Plaintiff

10 DAVID F. JADWIN, D.O.I I Mark A. Wasser CA SB #060160LAW OFFICES OFMARK A. WASSER12 400 Capitol Mall, Suite 1100Sacramento. CA 9581413 Phone: (916) 444-6400Fax: (916) 444-640514 E-mail: mwasserrw.markwasser.com15 Bernard C. Barman, Sr.KERN COUNTY COUNSEL16 Mark Nations, ChiefDeputy1115 Truxtun Avenue, Fourth Floor17 Bakersfield, CA 93301

Phone: (661) 868-380018 Fax: (661) 868-3805E-mail: [email protected] Attorneys for Defendants County ofKem, Peter Bryan, Irwin Harris, Eugene Kercher,20 Jennifer Abraham, Scott Ragland, Toni Smith and William Roy21 UNITED STATES DISTRICT COURT22 EASTER."'I DISTRICT OF CALIFORNIA23

Complaint Filed: January 5,2007Trial Date: August 26, 2008

STIPULATION RE: ADDRESSINFORMATION FOR POTENTIAL"lTNESSES LISTED IN THE INITIALDISCLOSURESPlaintiff,

Defendants.

vs.

DAVID F. JADWIN, D.O.

COUNTY OF KERN, et aI.,

Case No.: 1:07-cv-26

--------------)

2425262728

STIPULATION RE: ADDRESS INFORMATION FOR POTENTIAL WITNESSESLISTED IN THE PARTIES l"lITIALDISCLOSURES


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09 07 11 :50a Mark Wasser 916-444-6405 pA

It is hereby stipulated by and between the parties here10 through their respective counsel2 as follows:3 1. Defendants shall make all employees identified in Defendants' initial disclosures4 available to Plaintiff for deposition or informal interview on reasonable notice by request to5 Defendants' counsel.6 2. Defendants shall provide Plaintiffwith updated address and contact information,7 if known, for any employees who leave County employment during the pendency of this case on8 request by Plaintiff s counsel to Defendants' counsel.9 3. Defendants' counsel shall accept service of all process and notices for all

10 employees.11 4. The home addresses and personal contact information for all County employees12 shall be protected and shall not be disclosed to Plainti ff and Defendants shall forebear filing a13 motion for a protective order to protect that information.14 5. Plaintiffshall take his motion to compel, presently set for hearing on November 5,15 2007, off calendar.1617 Dated: October__ , 200718

LAW OFFICE OF EUGENE LEE

19202122232425262728

Dated: Octoher __ , 2007

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

LAWOFFlCES OF MARKA. WASSER

By: _Mark A. WasserAttorney for Defendants, County ofKern, et a1.

STIPULAnON RE: ADDRESS INFORMATION FOR POTENTlAL WITNESSESLISTED IN THE PARTIES lr.'ITlAL DISCLOSURES2

Lee Decl 3 000007


09 07 11 :50a Mark Wasser 916-444-6405 pA

It is hereby stipulated by and between the parties here10 through their respective counsel2 as follows:3 1. Defendants shall make all employees identified in Defendants' initial disclosures4 available to Plaintiff for deposition or informal interview on reasonable notice by request to5 Defendants' counsel.6 2. Defendants shall provide Plaintiffwith updated address and contact information,7 if known, for any employees who leave County employment during the pendency of this case on8 request by Plaintiff s counsel to Defendants' counsel.9 3. Defendants' counsel shall accept service of all process and notices for all

10 employees.11 4. The home addresses and personal contact information for all County employees12 shall be protected and shall not be disclosed to Plainti ff and Defendants shall forebear filing a13 motion for a protective order to protect that information.14 5. Plaintiffshall take his motion to compel, presently set for hearing on November 5,15 2007, off calendar.1617 Dated: October__ , 200718

LAW OFFICE OF EUGENE LEE

19202122232425262728

Dated: Octoher __ , 2007

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

LAWOFFlCES OF MARKA. WASSER

By: _Mark A. WasserAttorney for Defendants, County ofKern, et a1.

STIPULAnON RE: ADDRESS INFORMATION FOR POTENTlAL WITNESSESLISTED IN THE PARTIES lr.'ITlAL DISCLOSURES2


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ct 09 07 11 :50a Mark Wasser 916-444-6405 p.5

The parties having stipulated'as hereinabove set forth and good cause appearingtherefore;

12345678910111213141516171819202122232425262728

IT IS SO ORDERED.Dated: October__ , 2007

ORDER

UNITED STATES DISTRICT COURTBy: _

The Honorable Oliver W, WangerUnited States District Court Judge

STIPULATION RE: ADDRESS lNFORMATION FOR POTENTIAL WTThESSESLISTED IN THE PARTIES INITIAL DISCLOSURES3 Lee Decl 3 000008


ct 09 07 11 :50a Mark Wasser 916-444-6405 p.5

The parties having stipulated'as hereinabove set forth and good cause appearingtherefore;

12345678910111213141516171819202122232425262728

IT IS SO ORDERED.Dated: October__ , 2007

ORDER

UNITED STATES DISTRICT COURTBy: _

The Honorable Oliver W, WangerUnited States District Court Judge

STIPULATION RE: ADDRESS lNFORMATION FOR POTENTIAL WTThESSESLISTED IN THE PARTIES INITIAL DISCLOSURES3


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1

Eugene D. Lee

From: Mark Wasser [[email protected]]Sent: Wednesday, October 10, 2007 10:10 AMTo: Eugene LeeSubject: Good Morning.

Gene,

Have you had a chance to review my letter and proposed stipulation from yesterday?

Mark

Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405E-mail: [email protected]

Lee Decl 3 000009



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1

Eugene D. Lee

From: Mark Wasser [[email protected]]Sent: Wednesday, October 10, 2007 5:39 PMTo: [email protected]: Assistant to Mark A. WasserSubject: RE: Jadwin/KC: Protective Order Meet and Confer

Gene,

Your proposed stipulation is not acceptable. I do not understand Paragraph 1 and will not agree to it. I wrote you severaldays ago that the Defendants will not agree to your 5-day proposal. Hence, Paragraph 2 is not acceptable. The FRCPprovides for reasonable notice and that is adequate. As to Paragraph 3, if Plaintiff can serve by fax, so can theDefendants. This is not a one-sided affair. Paragraph 4 is okay.

Whether our protective order is filed is a matter of timing. It has to be on file by Monday and we will file it Friday in theabsence of an agreement. I am leaving the office at 2:30 on Friday to out of town over the weekend. I wrote you earlierand said I did not respond to threats and am not making one to you now. I am simply informing you of the schedule.

Save the editorial comments about months of exhausting meet and confers and at long last. Give me a break. I amstill waiting for correspondence from you that does not have a soapbox in it.

Mark

From: Eugene D. Lee [mailto:[email protected]]

Sent: Wednesday, October 10, 2007 3:19 PM

To: [email protected]

Cc: 'Joan Herrington'Subject: Jadwin/KC: Protective Order Meet and ConferMark,

I am in receipt of your faxed letter of this afternoon.

After months of exhausting meet and confers and the filing of Plaintiffs motion to compel, at long last Defendants havecome to the table to begin negotiating a written stipulation with Plaintiff. This is a long overdue turn of events whichPlaintiff welcomes. Perhaps Defendants motion for protective order will not need to be brought to the Court after all.

Because the stipulation you propose was provided in faxed form only, I took the liberty of converting your proposedstipulation into an MS Word document and introducing Plaintiffs changes to it. I suggest we exchange future drafts of thestipulation in MS Word format so as to facilitate revisions. The revised form is attached hereto.

As you can see, Plaintiff is willing to forego disclosure of the home contact information of current Kern County employeessubject to certain conditions.

We look forward to your comments.

Sincerely,

Gene Lee


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


T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9

Lee Decl 3 000010



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EXHIBIT 4. Defendants counsels email to Plaintiffs counsel of October 26, 2007



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Friday, October 26, 2007 8:44 AMTo: '[email protected]'Cc: 'Joan Herrington'Subject: RE: Jadwin/KC: Joint Statement


Mark,

Your email is unprofessional as usual. The sarcasm is uncalled for.

This wouldnt have been an issue if you hadnt written such a blatantly one-sided draft of the Joint Statement. Youclearly arent acting in good faith and cannot be trusted.

I look forward to seeing the exhibits, which are part of the Joint Statement.

Sincerely,GeneLee


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




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


From: Mark Wasser [mailto:[email protected]]

Sent: Friday, October 26, 2007 7:25 AM

To: [email protected]: RE: Jadwin/KC: Joint Statement

Gene,

Fine. You have seen it. You wrote about half of it. I wrote the other half. It is attached to the motions already filed. But, will copy it, again, so you can read it, again. Again.


Documents

66 MTC ID - Reply - LeeE Declaration