Case 1:07-cv-00026-OWW-TAG Document 54 Filed 10/12/2007 Page 1 of 4

1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasserriVmarkwasser.com

5 Bernard C. Barmann, Sr.

KERNCOUNTYCOL~SEL
6 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
7 Bakersfield, CA 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,
II Jennifer Abraham, Scott Ragland, Toni Smith
William
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, ) DEFENDANTS' MEMORANDUM OF

) POINTS AND AUTHORITIES IN
18 , vs. ) OPPOSITION TO MOTION TO COMPEL
" )
KERJ'II, et Date: November 5. 2007

~
19 COUNTY
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: August 26, 2008

23 -------------)
24 Defendants respectfully submit this memorandum in opposition to Plaintiffs motion to

25 compeL

26 I. DEFENDANTS' HAVE FULLY COMPLIED WITH RULE 26(a)(1)(A)

27 Despite having been provided with addresses and telephone numbers for all County
28
DEFENDANTS' MEMORANDUM OF POfNTS AN
AUTHORlTIES IN OPPOSITION TO MOTION TO COMPE

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1 employees who may be witnesses in this case as well as the Defendants' written representations
2 that all employees will be made available to Plaintiff upon request, that Defendants will provide
3 Plaintiff with contact information on all employees who leave County employment during the
4 pendency of this case, and that Defendants' counsel will accept service of all process and notices
5 on behalf of all Defendants and employees and ensure their availability, Plaintiff asserts that
6 Defendants have failed to satisfy the requirements of Rule 26(a)(l)(A). Plaintiffs assertion is so
7 groundless as to call into question Plaintiffs good-faith.
8 The states a must, without awaiting a <i"0nup,'U request, provide to

9 other parties "the name and, known, the address and telephone number of each individual
10 likely to have discoverable information... ".
II The list of individuals that Defendants enclosed their initial disclosures thoroughly
and completely satisfied requirements the Rule. Defendants not provided addresses
13 and telephone numbers for every employee, they provided additional, written, representations, as
14 described above. A copy of the transmittal letter that contained Defendants' representations in
15 this regard is attached to the Declaration of Mark A. Wasser in Opposition to Motion to Compel.
16 The clear policy behind Rule 26(a)(1 )(A) is to inform the opposing party of potential
17 witnesses and provide sufficient information to make them available. Defendants fully satisfied
18 I both the letter and the spirit of the Rule. Plaintiff is presently in possession of the actual,
19 individual, addresses and telephone numbers for each employee who Defendants have initially
20 identified as a potential witness. Plaintiff is also in possession of the Defendants' written
21 promise to provide contact information on employees who leave employment during this case
22 and make each and every employee available upon request and to accept service of all process
23 and notices on their behalf.
24 Not satisfied, Plaintiff insists he is entitled to "home" addresses for the employees. For
25 authority, Plaintiff relies on a 1996 District Court decision from Kansas, Dixon v. Certain Teed

26 Corp., 164 F.R.D. 685. (Plaintiff also cites Moore's Federal Practice but the language in
27 Moore's is supported only by Certain Teed and, thus, is not additional authority. (See 6-26
28 Moore's Federal Practice - Civil § 26.22, fn. 23).
DEFENDANTS' MEMORANDUM OF POlNTS AN
AUTHORITIES IN OPPOSITION TO MOTION TO COMPE

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1 Interestingly, the Certain Teed court did not actually order disclosure of "home"
2 addresses. It simply ordered the employer to "disclose the addresses and telephone numbers of
3 its current employees." Dixon v. Certain Teed Corp., 164 F.R.D. 685, 693. This, of course, is
4 consistent with the language in Rule 26(a)(l)(A) which docs not reference "home" addresses at
5 all. It is doubtful that the CertainTeed decision brings any weight to bear on this issne and,
6 ironically, it actually underscores the absence of support for Plaintiff s position.
7 In Certainteed, the employer refused to provide addresses or telephone numbers for any
refused to make The employer disclosed "its business
9 address and phone number" (ld. at 689) contending that the plaintiff could not contact the
J0 employees any way (ld. at 688) and complaining that disclosing additional addresses would
II increase the employer's discovery costs. Id. at p. 687.
facts here are a world away. the Defendants not only disclosed
13 addresses and telephone numbers of all employees, the addresses and telephone numbers the
J4 Defendants provided are the individual employees' actual work addresses and telephone
15 numbers - not general addresses or telephones for the employer. Those disclosures, alone, fully
J6 satisfy Rule 26. But the Defendants provided more. The Defendants accompanied their
17 disclosures of the employee addresses and telephone numbers with commitments to provide all
18 employees upon request to accept service of all process and notices for all Defendants and
19 employees and to provide updated contact information on departing employees. By any
20 measure, this is several steps beyond what Rule 26 requires.
21 One might ask, "Why did Plaintiff file his motion?"
22 There is another issue. As is more fully explained in Defendants' motion for protective
23 order filed herewith (and set for hearing at the same time as this motion), County employees
24 object to disclosing their home addresses to Plaintiff on grounds of privacy and personal safety.
25 Dr. Jennifer Abraham, for example, does not want Plaintiff to know where she lives. She
26 mentions Plaintiff s physical assault on another physician at Kern Medical Center and his verbal
27 assaults on her and expresses safety concerns for her children and family. See Declaration of
28 Jennifer Abraham in Support of Motion for Protective Order. Other employees do not want
DEFENDANTS' MEMORANDUM OF POINTS AN
AUTHORITIES IN OPPOSITION TO MOTION TO COMPE

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I Plaintiff to know where they live and express their own safety and privacy concerns. See

2 Declarations of Jane Thornton, Denise Long, Toni Smith and Michelle Burris. Defendants could

3 provide many additional declarations to the Court but did not want to burden the Court with

4 multiple, redundant statements.

5 Plaintiff has actual contact information for every employee identified in Defendants'

6 initial disclosures. Plaintiff has Defendants' promise to make them all available on request.

7 Plaintiff even has Defendants' offer to accept service of all notices and process. Defendants'

8 initial disclosures go substantially beyond is required by Rule 26.

9 n. DEFENDANT'S SHOULD RECOVER THEIR RESONABLE ATTORNEY

FEES INCURRED IN OPPOSING THIS MOTION
10

1l PI,,;ntilf's motion is a waste of this Court's time a waste of the Defendants' time and

12 resources. Deterldants OHvmu be awarded reasOfmble attorney m opposmg

I

13 m. CONCLUSION

14 Defendants' request that the Court deny Plaintiffs motion to compel and award

15 Defendants' their reasonable attorney fees.

16 Respectfully submitted,

17

18 I
Dated: October 12. 2007 LAW OFFICES OF MARK WASSER

19
20 By :_-,/""s/~M"-,,,a,,-,rk~A,,-.-'W-"'a"'s"'s"'er'--- _

21 Mark A. Wasser
Attorney for Defendants, County of Kern, et al.
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DEFENDANTS' MEMORANDUM OF POINTS AN
AUTHORITIES IN OPPOSITION TO MOTION TO COMPE