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Case 1:07-cv-00026-OWW-TAG Document 183 Filed 08/01/2008 Page 1 of 4

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@markwasseLcom
5 Bernard C. Barman, Sr. CA SB #060508
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy CA SB #101838
1115 Truxtun 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 County of Kern,


Peter Bryan, Irwin Harris, Eugene Kercher,
11 Jennifer Abraham, Scott Ragland, Toni Smith
and William Roy
12
13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15
16 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026-0WW-TAG
17 Plaintiff, DECLARATION OF MARKA. WASSER
IN OPPOSITION TO PLAINTIFF'S
18 vs. MOTION TO COMPEL
19 COUNTY OF KERN, et aI., Date: August 5, 2008
Time: 9:30 a.m.
20 Defendants. Place: U.S. Bankruptcy Courthouse,
Bakersfield Courtroom 8
21
Date Action Filed: January 6, 2007
22 Trial Date: December 2, 2008
23

24 I, Mark A. Wasser, declare as follows:


25 1. 1 am counsel of record for Defendants and am familiar with this action. The facts
26 stated in this declaration are within my own personal knowledge and I can testify competently to
27 them if called as a witness.
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DECLARAnON OF MARK A. WASSER IN OPPOSITION
TO PLAINTIFF'S MOTION TO COMPEL
Case 1:07-cv-00026-OWW-TAG Document 183 Filed 08/01/2008 Page 2 of 4

1 2. Plaintiff has noticed 17 additional depositions on top of the 16 he has already

2 taken. He has also indicated the desire to depose at least some of Defendants' experts and
3 supplemental experts. This will apparently lead to another 3 or 4 depositions. That would bring
4 the total number of depositions by Plaintiff to about 40.

5 3. Nothing about this case justifies the number of depositions Plaintiff has taken.
6 When Defendants agreed to give Plaintiff "relief' from the limitation in Rule 30 they were

7 merely consenting to reasonable discovery, not unlimited wasteful depositions.


8 4. The depositions Plaintiff wants to take cannot be completed before the discovery

9 cut-off. Defendants proposed extending the discovery cut-off one week to accommodate limited
10 depositions, however, Plaintiff insisted on an indefinite extension. Extending the discovery cut-

11 off indefinitely jeopardizes the Scheduling Order and Defendants are not only unwilling to do
12 that, they will not do so without approval by the Court.
13 5. The last deposition Plaintiff took was on April 19, 2008 when he took the
14 deposition of Dr. Marvin Kolb - whom the Defendants flew to Los Angeles from Wisconsin at
15 the Defendants' expense as an accommodation to Plaintiff - and which Plaintiffs counsel

16 adjourned after about 30 minutes and has never attempted to reschedule. For over two months,
17 Plaintiff made no efforts to proceed with any deposition discovery. Then, on June 30, Plaintiffs

18 counsel sent me an e-mail listing 17 additional depositions he wanted to take during the
19 remaining 6 weeks of discovery. These, as noted, were in addition to expert depositions of
20 which there would be between 3 and 4 per side, depending on which experts were deposed.

21 6. Trying to fit over 25 depositions into about 30 working days is impossible under
22 the best of conditions. Plus, I was scheduled to prepare for and attend 9 depositions during the
23 first weeks in July in Orange County and prepare for and attend a three-day court trial in Orange

24 County Superior Court on July 29, 30 and 31. I was committed almost every day in July.

25 7. I proposed the few July days I was available as possible dates for the depositions
26 Plaintiff wanted to take but Plaintiff rejected all the dates I proposed. He basically took an "all
27 or nothing" approach to these 17 depositions by demanding they all be set according to his

28 schedule. Plaintiffs counsel has accused the Defendants of imposing a unilateral "stay" on

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DEC LARATION OF MARK A. WASSER IN OPPOSITION
TO PLAINTIFF'S MOTION TO COMPEL
Case 1:07-cv-00026-OWW-TAG Document 183 Filed 08/01/2008 Page 3 of 4

1 depositions. Defendants have not "stayed" anything. I was simply not available to attend
2 depositions on the dates Plaintiff selected. Plaintiff never cleared any of the dates with me.
3 8. If we are to adhere to the Scheduling Order, there is insufficient time remaining to
4 take 25 more depositions. Additionally, Defendants believe Plaintiff has had more than enough
5 opportunity to take depositions and, in fact, has taken more than a reasonable number already.
6 9. The depositions Plaintiff has taken to date have failed to elicit any relevant
7 evidence regarding his claims and have been largely a waste oftime. Plaintiff has elected to
8 depose witnesses with only the most marginal and remote connection to the case. This

9 wastefulness is at least partly demonstrated by the fact that Plaintiff has not even attempted to
10 reconvene the two depositions he adjourned - despite asking this Court for relief on one of them -
11 because they were both a waste oftime before Plaintiff adjourned them.
12 10. Plaintiff has noticed a motion to amend his complaint but that motion will not be
13 heard until September 8. The proposed amendment adds at least two new theories of recovery

14 against the County: It expands Plaintiff's civil rights claim to include the County and it adds
15 "professional fees" to the monies Plaintiff claims were unlawfully taken from him. Defendants

16 have completed Plaintiff's deposition and the parties have completed their disclosure of experts.
17 Discovery closes on August 18. Defendants oppose Plaintiff's request to amend his complaint
18 but, if is granted, it will require a reopening of the Scheduling Order and a postponement of trial.

19 11. If Plaintiff is permitted to amend his complaint at this late stage of the
20 proceedings and expand his theories of recovery against the County then Defendants should be
21 given the right to reopen discovery and inquire into the facts Plaintiff believes support his new

22 theories. Defendants should also have the opportunity to let their experts review the new
23 theories and supplement their previous reports to include any opinions relevant to the new

24 theories. Defendants have had no opportunity for their economist, for example, to consider
25 Plaintiff's new claim for "professional fees." Amendment ofthe complaint may require an
26 extension of the discovery cut-off and a second modification of the expert disclosure deadlines in
27 the Scheduling Order. It seems unavoidable that they will impact the trial date.

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DECLARATION OF MARK A. WASSER IN OPPOSITION
TO PLAINTIFF'S MOTION TO COMPEL
Case 1:07-cv-00026-OWW-TAG Document 183 Filed 08/01/2008 Page 4 of 4

1 12. Although they are not directly related to this motion for a protective order,

2 Defendants believe these issues may effect this Court's consideration of the issues presented by

3 Plaintiff's motion to compel. The additional depositions Plaintiff wants to take need to be

4 considered in light of this bigger picture. Defendants believe these issues should be considered

5 together so they can be handled efficiently and comprehensively.

6 Respectfully submitted,

7 Dated: August 1,2008 LAW OFFICES OF MARK A. WASSER


8

9 By: /s/ Mark A. Wasser


Mark A. Wasser
10 Attorney for Defendants, County of Kern, et al.
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DECLARATION OF MARK A. WASSER IN OPPOSITION
TO PLAINTIFF'S MOTION TO COMPEL