182 D MPO Depos-ROG3 - D Joint STMT

Case 1:07-cv-00026-OWW-TAG Document 182 Filed 08/01/2008 Page 1 of 11
I Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 2640
Sacramento, California 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser@markwasser.com
5 Bernard C. Barman, Sr. CA SB #060508
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy CA SB #101838
1115 TruxtWl Avenue, Fourth Floor
7 Bakersfield, California 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
E-mail: mnations@co.kern.ca.us
9
10 Attorneys for Defendants COW1ty of Kern,

Peter Bryan, Irwin Harris, Eugene Kercher,
II Jennifer Abraham, Scott Ragland, Toni Smith
and William Roy
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID F. JADWIN, D.O. Case No.: I :07-cv-00026-0WW-TAG
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Plaintiff, DECLARATION OF MARK A. WASSER
17 IN LIEU OF JOINT STATEMENT RE:
vs. DISCOVERY DISAGREEMENT RE:
18 DEFENDANTS' MOTION FOR A
COUNTY OF KERN, et a!., PROTECTIVE ORDER
19
Defendants. Date: August 6, 2008
20 Time: 9:30 a.m.
Place: U.S. Bankruptcy Courthouse,
21 Bakersfield Courtroom 8
22 Date Action Filed: January 6, 2007
Trial Date: December 2, 2008
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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 facts
28 stated in this declaration are within my own personal knowledge and I can testify competently to
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DECLARATION OF MARK A. WASSER IN LIEU OF JOINT STATEMENT RE: DISCOVERY
DISAGREEMENT RE: DEFENDANTS' MOTION FOR A PROTECTIVE ORDER
I them if called as a witness.

2 2. Plaintiff has noticed 17 additional depositions on top of the 16 he has already
3 taken. He has also indicated the desire to depose at least some of Defendants' experts and
4 supplemental experts. This will apparently lead to another 3 or 4 depositions. That would bring
5 the total number of depositions by Plaintiff to about 40.
6 3. Defendants have so far responded to two sets of interrogatories, consisting of 91
7 interrogatories, and Plaintiff has now served a third set consisting of 7 interrogatories, the first of
8 which asks Defendants to provide, among other things, all facts upon which Defendants base
9 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 similarly
II 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 Plaintiff would not serve additional
14 interrogatories after Defendants responded to Plaintiffs second set. These new interrogatories
IS are in derogation of that agreement and represent a continuation of Plaintiff s unreasonable
16 discovery demands.
17 5. Nothing about this case justifies the number of depositions and interrogatories
18 Plaintiff has taken and served. When Defendants agreed to give Plaintiff "relief' from the
19 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 the
21 appropriate way to challenge this issue.
22 6. The depositions Plaintiff wants to take cannot be completed before the discovery
23 cut-off. Defendants proposed extending the discovery cut-off one week to accommodate limited
24 depositions, however, Plaintiff insisted on an indefinite extension. Extending the discovery cut-
25 off indefinitely jeopardizes the Scheduling Order and Defendants are not only unwilling to do
26 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 the
28 deposition of Dr. Marvin Kolb - whom the Defendants flew to Los Angeles from Wisconsin at
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I the Defendants' expense as an accommodation to Plaintiff- and which Plaintiffs counsel

2 adjourned after about 30 minutes and has never attempted to reschedule. For over two months,
3 Plaintiff made no efforts to proceed with any deposition discovery. Then, on June 30, Plaintiffs
4 counsel sent me an e-mail listing 17 additional depositions he wanted to take during the
5 remaining 6 weeks of discovery. These, as noted, were in addition to expert depositions of
6 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 under
8 the best of conditions. Plus, I was scheduled to prepare for and attend 9 depositions during the
9 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 depositions
12 Plaintiff wanted to take but Plaintiff rejected all the dates I proposed. He basically took an "all
13 or nothing" approach to these 17 depositions by demanding they all be set according to his
14 schedule. Plaintiff s counsel has accused the Defendants of imposing a unilateral "stay" on
15 depositions. Defendants have not "stayed" anything. I was simply not available to attend
16 depositions on the dates Plaintiff selected. Plaintiff never cleared any of the dates with me.
17 10. . Ifwe are to adhere to the Scheduling Order, there is insufficient time remaining to
18 take 25 more depositions. Additionally, Defendants believe Plaintiff has had more than enough
19 opportunity to take depositions and, in fact, has taken more than a reasonable number already.
20 11. The depositions Plaintiff has taken to date have failed to elicit any relevant
21 evidence regarding his claims and have been largely a waste of time. Plaintiff has elected to
22 depose witnesses with only the most marginal and remote connection to the case. This
23 wastefulness is at least partly demonstrated by the fact that Plaintiff has not even attempted to
24 reconvene the two depositions he adjourned - despite asking this Court for relief on 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 yielded
27 little, if any, information of relevance to issues in the case. The great majority of the
28 interrogatories have focused on medical procedures that have nothing to do with any of
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1 Plaintiffs claims. Plaintiff has noticed the depositions of people Defendants do not believe have
2 any connection with the facts of this case. Under any standard, the sheer number of depositions
3 and interrogatories is unreasonable. Nothing about this case warrants so many depositions or
4 interrogatories.
5 13. Defendants prepared a proposed Joint Statement Re Discovery Dispute, a copy of
6 which is attached hereto as Exhibit A, and forwarded it to Plaintiffs counsel for review and
7 consideration. Defendants received no reply.
8 14. Plaintiff has noticed a motion to amend his complaint but that motion will not be
9 heard until September 8. The proposed amendment adds at least two new theories of recovery
10 against the County: It expands Plaintiff s civil rights claim to include the County and it adds
11 "professional fees" to the monies Plaintiff claims were unlawfully taken from him. Defendants
12 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 complaint
14 but, if is granted, it will require a reopening of the Scheduling Order and a postponement of trial.
15 15. If Plaintiff is permitted to amend his complaint at this late stage of the
16 proceedings and expand his theories of recovery against the County then Defendants should be
17 given the right to reopen discovery and inquire into the facts Plaintiff believes support his new
18 theories. Defendants should also have the opportunity to let their experts review the new
19 theories and supplement their previous reports to include any opinions relevant to the new
20 theories. Defendants have had no opportunity for their economist, for example, to consider
21 Plaintiffs new claim for "professional fees." Amendment of the complaint may require an
22 extension of the discovery cut-off and a second modification of the expert disclosure deadlines in
23 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 by
26 this motion for a protective order. The additional depositions Plaintiff wants to take and the
27 additional interrogatories he has served need to be considered in light of this bigger picture.
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I Defendants believe these issues should be considered together so they can be handled efficiently
2 and comprehensively.
3 Respectfully submitted,
4 Dated: August I, 2008 LAW OFFICES OF MARK A. WASSER

5
6 By: /s/ Mark A. Wasser
Mark A. Wasser
7 Attorney for Defendants, County of Kern, et al.
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EXHIBIT A
Eugene D. Lee SB# 236812

LAW OFFICES OF EUGENE LEE
2 555West Fifth Street, Suite 3100
Los Angeles, CA 90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 E-mail: elee@LOEL.com
5 Attorneys for Plaintiff David F. Jadwin, D.O.
6 Mark A. Wasser CA SB #060160
LAW OFFICES OF MARK A. WASSER
7 400 Capitol Mall, Suite 2640
Sacramento, CA 95814
8 Phone: (916) 444-6400
Fax: (916) 444-6405
9 E-mail: mwasser@markwasser.com
10 Bernard C. Barman, Sr. CA SB#060508
KERN COUNTY COUNSEL
11 Mark Nations, Chief Deputy CA SB#101838
1115 Truxtun Avenue, Fourth Floor
12 Bakersfield, CA 93301
Phone: (661) 868-3800
13 Fax: (661) 868-3805
E-mail: mnations@co.kern.ca.us
14
Attorneys for Defendants County of Kern,
15 Peter Bryan, Irwin Harris, Eugene Kercher,
Jennifer Abraham, Scott Ragland, Toni SmitH
16 and William Roy
17
UNITED STATES DISTRICT COURT
18
EASTERN DISTRICT OF CALIFORNIA
19
20 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026-0WW-TAG
21 Plaintiff, JOINT STATEMENT RE: DISCOVERY
DISAGREEMENT RE: DEFENDANTS'
22 vs. MOTION FOR A PROTECTIVE ORDER
23 COUNTY OF KERN, et aI., Date: August 6, 2008
Time: 9:30 a.m.
24 Defendants. Place: U.S. Bankruptcy Courthouse,
Bakersfield Courtroom 8
25
Date Action Filed: January 6, 2007
26 Trial Date: December 2, 2008
27
28
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JOINT STATEMENT RE: DISCOVERY DISAGREEMENT
1 This joint statement re: discovery disagreement is submitted pursuant to Local Rule 37-
2 251(a) in advance of the August 6, 2008 hearing on Defendants' motion for protective order.
3 I.
4 Statement of Discovery Disagreement
5 Plaintiff has noticed 17 additional depositions on top of the 16 he has already taken. He
6 has also indicated the desire to depose at least some of Defendants' experts and supplemental
7 experts. This will apparently lead to another 5 or 6 depositions. That would bring the total
8 number of depositions by Plaintiff to more than 40.
9 Defendants have so far responded to two sets of interrogatories, consisting of91
10 interrogatories, and Plaintiff has now served another set of 7 interrogatories, the first
11 interrogatory of which asks Defendants to provide, among other things, all facts upon which
12 Defendants base their responses to 290 requests for admission. Thus, the first interrogatory,
13 alone, requires potentially 290 separate responses. Other interrogatories in the third set require
14 similarly compound responses.
15 The parties had an agreement that Plaintiff would not serve any interrogatories after
16 Defendants responded to Plaintiffs second set. These new interrogatories are in derogation of
17 that agreement and represent a continuation of Plaintiffs umeasonable discovery demands.
18 Defendants believe there is nothing about this case that justifies the number of
19 depositions and interrogatories Plaintiff has taken and served. When Defendants agreed to give
20 Plaintiff "relief' from the limitations established in Rules 30 and 33 they did not consent to
21 unlimited depositions and interrogatories, particularly of the wasteful and useless nature Plaintiff
22 has pursued.
23 Further, the depositions Plaintiff wants to take cannot be completed before the discovery
24 cut-off. Plaintiff has asked Defendants to waive the discovery cut-off but Defendants are
25 unwilling to do so. Waiving the discovery cut-off effectively jeopardizes the Scheduling Order
26 and Defendants are unwilling to do that without action by the Court
27 There is another, more significant issue. Plaintiff has noticed a motion to amend his
28 complaint but that motion will not be heard until September 8. The proposed amendment adds at
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1 least two new theories of recovery against the County. It expands Plaintiffs civil rights claim to
2 include the County and it adds "professional fees" to the monies Plaintiff claims were unlawfully
3 taken from him.
4 Defendants have completed Plaintiffs deposition and the parties have completed their
5 disclosure of experts. Discovery closes on August 16.
6 Plaintiff s amendment to his complaint, if granted, will require a reopening of the
7 Scheduling Order. Defendants intend to file a motion to modify the Scheduling Order and will
8 ask that it be set for hearing on September 8, so it can be considered at the same time as
9 Plaintiffs motion to amend.
10 If Plaintiff is permitted to amend his complaint at this late stage of the proceedings and
11 expand his theories of recovery against the County then Defendants must be given the right to
12 reopen discovery and inquire into the facts Plaintiff believes support his new theories. This will
13 require an extension of the discovery cut-off. That may effect this Court's consideration of the
14 deposition issue.
15 Defendants should also have the opportunity to let their experts review the new theories
16 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 new
18 claim for "professional fees." This will require a second modification of the expert disclosure
19 deadlines in the Scheduling Order.
20 The additional depositions Plaintiff wants to take and the additional interrogatories he has
21 served need to be considered in light of this bigger picture. Defendants believe these issues
22 should be considered together so they can be handled efficiently and comprehensively.
23 a
24 Statement of the Nature of the Case.
25 Plaintiff s 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.
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JOINT STATEMENTRE: DISCOVERY DISAGREEMENT
1 The dispute arose out of Plaintiff s tenure as a pathologist at Kern Medical Center.
2 Plaintiff s relationship with other members of the medical staff deteriorated to the point of
3 intimidation, hostility and antagonism. Plaintiff claims Defendants created a hostile work
4 environment and damaged his reputation. Defendants claim, to the extent the workplace was
5 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 injury
7 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 evidence
11 regarding his claims and have been largely a waste of time. Plaintiff has elected to depose
12 witnesses with only the most marginal and remote connection to the case. This wastefulness is at
13 least partly demonstrated by the fact that Plaintiff has not even attempted to reconvene the two
14 depositions he adjourned - despite asking this Court for relief on one of them - because they were
15 both a waste of time before Plaintiff adjourned them.
16 Plaintiff s interrogatories to date have been similarly wasteful and have yielded little, if
17 any, information of relevance to issues in the case. The great majority of the interrogatories have
18 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 Plaintiff disagrees 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 he
24 wants. He reads the language in the Scheduling Order as granting him the right to unlimited
25 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 should
27 submit to the depositions he has noticed and answer all the interrogatories.
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1 IV.
2 Conclusion.
3 This Court's intervention is necessary to resolve the issue.
4 Respectfully submitted,
5
6 Dated: July _ _, 2008 LAW OFFICE OF EUGENE LEE
7
8 By:_-,-:- _
Eugene D. Lee
9 Attorney for Plaintiff, David F. Jadwin, D.O.
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11 Dated: July _ _, 2008 LAW OFFICES OF MARK A. WASSER
12
By:, _
13
Mark A. Wasser
14 Attorney for Defendants, County of Kern, et al.
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Case 1:07-cv-00026-OWW-TAG Document 182 Filed 08/01/2008 Page 1 of 11

I Mark A. Wasser CA SB #060160

10 Attorneys for Defendants COW1ty of Kern,

I them if called as a witness.

I the Defendants' expense as an accommodation to Plaintiff- and which Plaintiffs counsel

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

Eugene D. Lee SB# 236812

9 The Contentions of the Parties.

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