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Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 1 of 20

11 Mark A.
Mark A. Wasser
Wasser CA SB # 60160
CA SB 60160
LAW OFFICES
LAW OFFICES OF
OF MARK
MARK A. WASSER
A. WASSER
22 400 Capitol
400 Capitol Mall,
Mall, Suite
Suite 1100
1100
Sacramento, CA 95814
Sacramento, CA 95814
33 Phone: (916)
Phone: (916) 444-6400
444-6400
Fax: (916)
Fax: (916) 444-6405
444-6405
44 E-mail: mwasserialmarkwasser.com
E-mail: mwasseriimarkwasser.com
55 Bernard
Bernard C. Barmann, Sr.
C. Barmann,
KERN COUNTY
COUNTY COUNSEL
COUNSEL
66 Mark Chief Deputy
Mark Nations, Chief
1115 Truxtun
Truxtun Avenue, Fourth
Fourth Floor
Floor
77 Bakersfield,
Bakersfield, CA 93301
Phone:
Phone: (661)
(661) 868-3800
868-3800
8 Fax: (661)
(661) 868-3805
868-3805
E-mail: mnations@co.kern.ca.us
mnations wco.kern.ca.us
9
10 Attorneys for Defendants County of Kern,
Defendants County
Peter
Peter Bryan, Irwin Harris, Eugene Kercher,
Eugene Kercher,
11
11 Jennifer Abraham,
Abraham, Scott Ragland, Toni Smith
Smith
and
and William Roy
12
12
13 UNITED
UNITED STATES DISTRICT COURT
STATES DISTRICT COURT

14
14 EASTERN DISTRICT OF CALIFORNIA
CALIFORNIA

15
15
16
16 DAVID
DAVID F. JADWIN,
JADWIN, D.O. ) 1:07-cv-00026-OWW-TAG
Case No.: 1:07-cv-00026-0WW-TAG
)
17
17 Plaintiff,
Plaintift. ) DECLARATION MARK A. WASSER
DECLARATION OF MARK WASSER
) RE: INABILITY PREP ARE AND
INABILITY TO PREPARE AND
18
18 vs.
vs. ) STATEMENT RE:
EXECUTE A JOINT STATEMENT
) DISCOVERY AND IN
DISAGREEMENT AND
DISCOVERY DISAGREEMENT IN
19
19 COUNTY
COUNTY OF al.,
et aI.,
OF KERN, et ) MOTION
OPPOSTION TO MOTION TO COMPEL
COMPEL i

20
20 Defendants.
Defendants. ~ 14, 2008
Date: January 14,

~)
Time: 9:30 a.m.
21
21 Place: Bankruptcy Courthouse,
Place: U.S. Bankruptcy
Bakersfield Courtroom 88
Bakersfield

~)2Date
22)
22
Date Action Filed: January 6, 2007
23
23 Trial Date: August 26, 2008
Trial
j
24
24
submit this
Defendants submit
Defendants of Mark A. Wasser pursuant
Declaration of
this Declaration Local Rule
to Local
pursuant to 37-251 (d)
Rule 37-251(d)
25
25
in ofaajoint
lieu of
in lieu joint statement re: discovery
statement rei disagreement and
discovery disagreement to Plaintiff
and in opposition to to
motion to
Plaintiff'ss motion
26
26
compel.
compel.
27
27
28
28

DECLARATION
DECLARATION OF OF MARK WASSER RE:
A. WASSER
MARK A. TO PREPARE
INABILITY TO
RE: INABILITY AND
PREPARE AND
EXECUTE AA JOINT
EXECUTE STATEMENT RE:
JOINT STATEMENT DISCOVERY DISAGREEMENT
RE: DISCOVERY AND
DISAGREEMENT AND
IN OPPOSlTlON
IN MOTION TO
TO MOTION
OPPOSITION TO COMPEL
TO COMPEL
Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 2 of 20

1I I,I, Mark
Mark A.
A. Wasser,
Wasser, declare
declare as
as follows:
follows:

22 1.
1. 1I am
am counsel
counsel of
ofrecord
record for
for Defendants.
Defendants. The
The facts
factsininthis
thisDeclaration
Declarationare trueand
aretrue and

33 correct of
correct ofmy
my personal
personal knowledge
knowledge and
and II can
can testify
testify competently
competently to
to them calledasasaawitness.
themififcalled witness.

44 2.2. Defendants' opposition


Defendants' opposition to
to Plaintiff's
Plaintiffs motion
motionto
to compel
compel isis due tomorrow, January
due tomorrow, January

55 9,2008.
9, Although Plaintiff
2008. Although Plaintiffhas
has prepared
prepared aa draft
draft proposed
proposedjoint statementrediscovery
joint statement re discovery

66 disagreement as
disagreement as required
required by
by Local
Local Rule
Rule 37-251,
37-251, Plaintiff
Plaintiffproposes to attach
proposes to to the
attachto draft almost
the draft almost

77 200 pages
200 of exhibits
pages of exhibits that
that Defendants
Defendants do
do not
not have
have and have not
and have seen and
not seen Defendants are
and Defendants are

88 unwilling to
unwilling to review,
review, revise
revise or approve
approve the
the draft without the
draft without Consequently, Defendants
exhibits. Consequently,
the exhibits. Defendants

99 have prepared this Declaration


have prepared Declaration to explain
explain their
their inability to complete
inability to joint statement.
the joint
complete the statement.
10
10 3. Attached hereto
Attached hereto as Attachment
Attachment A,
A, is aa true
true and
and correct
correct copy
copy of
ofthe
the January
January 4,4,
II
11 2008
2008 letter
letter from Plaintiffs
Plaintiff s counsel
counsel transmitting
transmitting a draft of the joint
draft of and advising
statement and
joint statement advising
12
12 Defendants'
Defendants' counsel
counsel that "almost
"almost 200
200 pages" of exhibits the draft
exhibits to the joint statement
draft joint in the
are in
statement are the

13
13 mail.
14
14 4.
4. Plaintiffs counsel at
Defendants' counsel
Plaintiff's counsel transmitted the letter to Defendants' p.m. on
II :00 p.m.
at 11:00 on
15
15 January
January 4. On January 5,
5, a storm disrupted
disrupted electrical power and telephone
electrical power service throughout
telephone service throughout

16
16 Sacramento
Sacramento and
and Northern California and resulted in the closure of the building where
Northern California where
17
17 Defendants'
Defendants' counsel his office. Power and telephone service was not restored until Monday,
counsel has his
18
18 January
January 7.
7. I1left noon on January 7 to attend depositions in this case that are
left Sacramento at noon are
19
19 scheduled
scheduled for
for January
January 8,
8, 99 and
and 10
10 in Bakersfield. had not
As of the time II left my office, I had
Bakersfield. As not

20
20 received
received the
the exhibits
exhibits to
to the
the draft
draft proposed do not
proposed joint statement. They still have not arrived. II do not
21
21 know
know what
what the
the exhibits
exhibits consist
consist of and, as
ofand, the date
of the
as of of this Declaration,
date of not seen
Declaration, have not them.
seen them.

22
22 5.5. The
The text
text of
of the proposed draft
the proposed statement that Plaintiff
draft joint statement is
prepared is
Plaintiff has prepared

23
23 misleading
misleading and
and Defendants do not
Defendants do believe itit will
not believe be possible
will be to arrive
possible to at aa mutually
arrive at acceptable
mutually acceptable

24
24 joint
joint statement.
statement.
25
25 6.6. Attached hereto as
Attached hereto Attachment BB are
as Attachment true and
are true correct copies
and correct of letters
copies of that
letters that

26
26 Plaintiffs
Plaintiff scounsel sent to
counsel sent Defendants' counsel
to Defendants' that summarize
counsel that discussions between
summarize discussions parties
the parties
between the

27 regarding
27 regarding Defendants'
Defendants' response request for
Plaintiff's request
response toto Plaintiffs ofdocuments.
production of
for production letters
The letters
documents. The

28
28 2
2

MARKA.
OFMARK
DECLARATION OF
DECLARATION WASSER RE:
A. WASSER TO PREPARE
INABILITY TO
RE: INABILITY AND
PREPARE AND
EXECUTEAAJOINT
EXECUTE RE: DISCOVERY DISAGREEMENT
STATEMENT RE: DISCOVERY DISAGREEMENT AND
JOINTSTATEMENT AND
INOPPOSITION
IN MOTION TO
TOMOTION
OPPOSITION TO COMPEL
TOCOMPEL
Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 3 of 20

11 memorialize the agreement


memorialize agreement between
between the
the parties
parties that
that Defendants
Defendants would
would produce
produce copies ofthe
copies of the

22 requested documents by photocopying


requested documents photocopying them
them and
and delivering
delivering the
the copies
copies to
to Plaintiffs counsel. In
Plaintiffs counsel. In

33 reliance on this agreement,


agreement, Defendants
Defendants copied
copied and
and produced several thousand
produced several documents on
thousand documents on

44 November
November 20,2007. Plaintiff did not
20, 2007. Plaintiff not object
object to the
the production
production and
and even
even noted
noted that was aa
that itit was

55 substantial,
substantial, "good-faith"
"good-faith" production. It was
production. It was understood
understood and
and agreed
agreed that
that the Defendants would
the Defendants would

66 not
not be
be producing
producing original documents. The documents
original documents. documents Plaintiff
Plaintiffhas
has requested include thousands
requested include thousands

77 of original patient records


records from Kern Medical It is neither
Center. It
Medical Center. feasible, possible
neither feasible, nor lawful
possible nor lawful

8 to produce
produce them at the office of Plaintiffs
Plaintiff s attorney in Los Angeles.
attorney in Angeles.

9 6. It was also agreed between parties that


between the parties Defendants would
that Defendants produce the
would produce the

10 requested documents in multiple productions. Plaintiffs


requested production encompassed
request for production
Plaintiffs request encompassed

II
11 over documents that fill more that 12 boxes. It was
over 30,000 documents possible for Defendants
not possible
was not to locate,
Defendants to locate,

12
12 documents by November
assemble, copy and deliver all those documents 20. Plaintiff
November 20. letters (See
Plaintiffss letters (See

13
13 Attachment
Attachment B) acknowledge
acknowledge the parties' regarding multiple
agreement regarding
parties' agreement production dates.
multiple production dates.

14
14 Defendants
Defendants originally productions but,
originally anticipated three or even four separate productions through diligent
but, through diligent

15
15 work, were able to produce all documents in only two productions.
work, productions.

16
16 7.
7. Upon inforn1ing
informing Plaintiff of the reasonable photocopying the
reasonable cost of photocopying documents to
the documents to

17
17 be All the
compel. All
be produced, Plaintiff announced his refusal to pay and filed this motion to compel. the

18
18 documents
documents have Defendants' counsel
have been copied onto a CD and are in the office of Defendants' where they
counsel where they

19
19 have
have been
been since December reimbursement from Plaintiff.
December 21 awaiting reimbursement Plaintiff Defendants remain ready,
Defendants remain ready,

20
20 willing
willing and
and able
able to reimbursement of the reasonable
to deliver the documents to Plaintiff upon reimbursement reasonable

21
21 reproduction costs.
reproduction costs.

22
22 8.8. Defendants have
Defendants privilege log of all documents that
have provided Plaintiff with aa privilege have
that have

23
23 been
been produced to date.
produced to Defendants will
date. Defendants provide a supplemental privilege log as
will provide as Plaintiff
soon as
as soon Plaintiff

24
24 will accept the
will accept of the
balance of
the balance documents.
the documents.
25
25 9.
9. Defendants are prepared to produce all
have copied and are
Defendants have that Plaintiff
documents that
all documents Plaintiff

26
26 has requested
has except for
requested except about 11,000
for about pages of blood
11,000 pages product chart copy
blood product records that
copy records relate to
that relate to

27
27 blood products delivered
blood products to patients
delivered to that have
patients that relation to any issue
no relation
have no in this
issue in case and
this case records
and records

28
28 3
3

DECLARATION OF
DECLARAnON OF MARK A. WASSER RE:
MARK A. TO PREPARE
INABILITY TO
RE: INABILITY AND
PREPARE AND
EXECUTE AA JOINT
EXECUTE STATEMENT RE:
JOINT STATEMENT DISCOVERY DISAGREEMENT
RE: DISCOVERY AND
DISAGREEMENT AND
IN OPPOSITION
IN MOTION TO
TO MOTION
OPPOSITION TO COMPEL
TO COMPEL
Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 4 of 20

11 that are
that are privileged.
privileged. Defendants
Defendants have
have informed
informed Plaintiff
Plaintiffthat,
that, if
ifhe
he wants
wants the
the blood
bloodproduct
product chart
chart

22 copy documents,
copy documents, Defendants
Defendants will
will ask
ask this
this Court
Court for
for an
an order
order cost-shifting
cost-shifting the
the production costs toto
production costs

33 Plaintiff. No
Plaintiff. No other
other cost-shifting
cost-shifting order
order isis anticipated
anticipated at
at this
this time.
time.
44 10.
10. Defendants consider
Defendants consider the
the motion
motion to
to compel
compel to
to be
be premature
premature because Plaintiffhas
because Plaintiff has

55 not even
not documents Defendants
even seen the documents Defendants are
are producing
producing yet
yet isis already objecting to
already objecting There isis
them. There
to them.

66 no way to
no way evaluate Defendants'
to evaluate Defendants' production
production until
until the
the documents
documents have been produced.
have been produced.
77 11.
11. Plaintiff s complaint
Plaintiffs complaint states
states claims
claims that are in both
grounded in
are grounded state and
both state federal law.
and federal law.
88 State
State law privileges apply to the
law privileges the state
state claims
claims and federal
federal law privileges apply
law privileges the federal
to the
apply to federal
99 claims.
claims. (See, e.g, Wm. T. Thompson
(See, e.g., Thompson Co. v. General
General Nutrition
Nutrition Corp., Inc., 671
Corp., Inc., 100, 103
F.2d 100,
671 F.2d 103
10
10 (3rd Cir. 1982).)
1982).) Defendants have properly
properly asserted
asserted state law privileges
state law that relate
documents that
privileges to documents relate
11
II to Plaintiffs
Plaintiff's state law claims. Plaintiff's
Plaintiffs contention federal privileges
only federal
contention that only apply is
privileges apply is
12 incorrect.
incorrect.
13
13 12. Defendants are entitled to be paid reasonable photocopy
the reasonable
paid for the expenses of
photocopy expenses of
14
14 copying
copying the
the documents Plaintiff has requested.
15
15 13.
13. Defendants do not object
Plaintiff s motion to compel should be denied. Defendants
Plaintiffs if it is
object if is
16
16 denied
denied without been produced
documents have been
without prejudice to being re-filed after the documents good cause
produced if good cause
17
17 exists
exists for
for filing
filing itit then.
18
18 II certify under penalty of perjury that the foregoing is true and correct.
certify under correct.
19
19 Executed 8th day of January, 2008, in Bakersfield, California.
Executed this 8th
20
20
21
21 By:
By: /s/ Mark A. Wasser
/s/ Mark
22
22 Mark A. Wasser

23
23
24
24
25
25
26
26
27
27
28
28 4
4
DECLARATION OF
DECLARATION OF MARK WASSER RE:
A. WASSER
MARK A. TO PREPARE
INABILITY TO
RE: INABILITY AND
PREPARE AND
A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT
EXECUTE A JOINT STATEMENT RE: DISCOVERY DISAGREEMENT AND
EXECUTE AND
IN OPPOSITION
IN MOTION TO
TO MOTION
OPPOSITION TO COMPEL
TO COMPEL
Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 5 of 20

ATTACHMENT A
ATTACHMENT
01/09/2008 15:4815:48 FAXFAX tal 005
Z005
To:01/09/2008
To: Mar
N @ 916-4114-6485
1Ii~ Ilasser @IB-44--648 frOl: Law
fr: OfficeOFOf UgeM
La!Office Lee
EugeneL" zrsI ,IJlI4Al816:39
PgP9 2•/i35/46 I':llllPS
pi

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 6 of 20

ta 1;1J .ifa-a;,•• LAW


AW F F IC E
OOFFICE Jr
OF
0F EL.EE;@...gEa_GOM
ELEEOLCi-Wm
T2L~PHCE 4a,2
TItt",e"HDHE ennyL EEEMAI6 C·M"U~

EUGENE L E E
806.043,•"
rZl3'598·0• aee WUSY
&06 we....,........"'..
PrIFM Y•71tle,
IEI'''', BUI't'1!
uNAUIlaY!!I'
Ian ee WWW.L-L.BCM
WWW.LClEL.IIDM
fl•
VAOI•OMILr
F'ADIlIM1L'f ANPC"'• •, CLIPO
La. ANUEES
LOU M IAU••mt
IdL~ellN
D"""",JlH",, 3001150WtUI
.00' a-, D'" we. elOPe:
SUCUNE D.aL sq. J0A$ _croll,ESQ.
JOANS.)WRSCT0N, iSQ.
OFCOUMEL
OF C()\]}ISEL
MCIWAL
1anuary4,
Jawary 4,2008
2008
VIA FACSIMilE

WIISser
Merit Wasser
Mark 10001 1,001
lOOOIU10l
Law Offices
Law Offices of ofMm Wasser
Mark Wasm
400 Ca.pnol Mall Ste
400 Capitol Mall Ste 11001100
SllCI"lImellto, CA
Sacranmeto, CA 95814
95814

Re:
Re: Joillt Statllmellt rO
Joint Statement re Discovery
Discovery DiSaI~reMent
Disagl'41emellt
Jadwin /I County
jaWM County of Kern, olOt al, (USDC
of Kern, EDCA No.
(USDC EDCA l,Il?.,...'OO026-0WWrr AG)
No. 1:07-vw-00026-OWWfAG)

Dear Muk:
Deer Mark:
E!lC:loSll4lllllfllWitb
Enclosed herewith is i~ lj;
a eompl.lInft
complete draft of of~ IlI'llp~;d Joira
the proposed ~ Re:
Joillt Statement Di$~'uv
ill!: ThScovery
Dimlgreemellt wllillh I have ~
Disagreement whichI have prepared pursumntto pIll'IIlWlt 10 LoeaI
Local Rille
Rule 37.2'1(1L).
37-25 1(a). h
It remain$
l'<InIlIiu m~j;el:1to
subjectto
funber
ftlther revision but it is SIlbstantially l:OlIlpl• . Please
substantially complete. Please review
review it. If you
Ifyou have
have changes
clwlges or
additions.
additions, please forward
forwad those md will look
and I will them.
look at them

I have sent you ~


sent yOll exhibits by first class mail.
the eldlibits maril They number
Il\lmber aImDst 200 pages.
almost 200 pages.

This
This Ile;ds
nccd to be filed
filed with the COllI't no later than 1anuery
Court 110 200S, Please
9, 2008.
Jan•ury 9. lle3itate to
11m hesitate
Please do not
oomaet
comea=t me with any questions,
with any quetions,

cc:
cc:
loan Herington, Esq.
Joan Herrington, Esq.
~
ENED. LEE
DIMd
David F.F. Jadwin,
Jadwin, D.O.•
D.O., F.C.AP.
F.C.A.P.
Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 7 of 20

ATTACHMENT B
ATTACHMENTB
10: nar~ wasser V
e uirwro'-4CI ffUII: LdW urr Il'ti ur LuWIU u:ro

• •
~IO-~-~
Io: !i8!K Id55Cr ri m: LM urrius ur t.~11O L= r3
r~
LIL I ' ; II/Iv/tJl
IIIW '11
;;'11'"

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 8 of 20

<21;;1) 992<3299 -99LAW


9 LAW OFFICE
OFFICE OF
OF ELEE@LOEL.CDM
ELEE@LOEL.COM
E-MAIL
TELEPHONE E-MAIL
TELEPHONE
EUGENE
EUGENE LEE
L E E
(213) 596-0487
3) 596-047 555 WEST
555 WEST FIFTH
FIFTH STREET,
STREET, SUITE
SUITE 31003100 WWW.LOEL.COM
WWWLOEL.COM
(21
FACSIMILE LOS ANELES,
LOS ANGELES, CALIFORNIA 900 1 :3-1 0 I 0
CALIrORNIA 90013-1010 WEBSITE
WEBSITE
FACSIMILE
EUGENE DD. LEE,
EUGENE LEE, ESQ
ESQ JOAN K I-MERRINGTON,
JOAN HERRINGTON,ESQ
ESQ
PRINCIPAL- OFCOUNML
OF COUNSEL
PRINCIPAL

November 15,
November 15, 2007
2007
VIA FACSIMILE
VIA FACSIMILE

Mark Wasser
Mark 10001 LOOI
100011.001
Offices of Mark Wasser
Law Offices Wasser
400 Capitol Mall
Mall Ste 1100
1100
Sacramento,
Sacramento, CA 95814
95814

Re: Plaintiff's Requests for Production,


Plaintiffs Requests One
Production- Set One
Jadwin!
Jadwin / County of Kern.
Kern, et al. (USDC
(USDC EDCA No.
No. 1:07-cv-00026-OWWiTAG)
I :07-cv-00026-0WW!TAG)

Dear Mark
Mark:

It was a pleasure speaking


speaking and meeting and conferring
conferring with you yesterday
witb you Plaintiff's Requests
yesterday on Plaintiffis Requests
Production, Set One to County of Kern. This letter
For Production, letter confirms content of
confirms the content our discussions.
of our discussions.

We
We reviewed
reviewed my letter
letter to you of November 8,2007, were in
confirmed that we were
8, 2007, and you confirmed
agreement with most
most oftbe
of the issues stated therein. Only a few items required further discussion, as
discussion,
follows:
follows:

I.I. TENTATIVE AGREEMENTS!


AGREEMENTS / CLARIFICAnONS DOCUMENT REQUESTS
CLARIFICATIONS RE DOCUMENT REQUESTS

We
We discussed
discussed plaintiffs
plaintiff's requests for production and agreed that defendants provide a
would provide
defendants would
written
written response
response by November 20, 20. with the exception of the
ofthe following requests: 18, 19, 21, 27
requests: 18, 19,21,27,
28,42-45,54-57,59,
28, 42-45, 54-57, 59, and
and 61-63,
61-63, which require further clarification by Defendants. You had
which require had
indicated varying expected
indicated varying expected production dates
dates of November
ofNovember 16, December 7 and December 21. On
21. On
certain
certain requests,
requests, we
we agreed the production date would be changed from
agreed that the December 21 to
to
December
December 7: 7: 20,
20, 46
46 and 47.
and 47.

In
In addition, the parties
addition, tbe the tentative
made the
parties made clarifications with respect
agreements and clarifications
tentative agreements the
to the
respect to
requests:
following requests:
following

Req
Doc Req
Doc Tentative agreement/clarification
Tentative agreement/clarification
No.
26No. Defendants may have destroyed some of these
files. Defendants will note this in
26 Defendants may have destroyed some of these meso Defendants will note this in
response by
response November 20.
by November 20.
40
40 Defendants to
Defendants respond by
to respond November 20
by November with objection and
20 with to produce.
and refusal to produce.
intends to
Plaintiff intends
Plaintiff file aa motion
to file motion to compel.
to compel.
54
54 Plaintiffseeks
Plaintiff statistics for
seeks statistics patient "fatalities" and
both patient "fatalities"
for both patient "deaths",
and patient each
as eacb
"deaths", as
considered alone
considered not meaningful
alone isis not must be
and must
meaningful and compared to
be compared other. Defendants
the otber. Defendants
to the I
10: nrw
narK tmser
wasser e
e ~Ib-qqq-~


rrn.: LdH orr Il,;t:l' ur [.~10 Lt;t;


to: - um: L• rriuv W LUII L= t w U t.

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 9 of 20

are considering
are considering objecting
objecting toto disclosure
disclosure ofof"fatalities"
"fatalities" statistics
statistics due
due to
to peer
peer review
review
privilege. Plaintiff stated that this does not
privilege. Plaintiff stated that this does not fall fall under
under peer
peer review
review privilege.
privilege.
56
56 Defendants to
Defendants to produce
produce in redacted
redacted form.
form.
57
57 Defendants
Defendants to produce
produce in redacted
redacted form.
form.
62
62 Groupwise archives
Groupwise archives were
were destroyed
destroyed as as part
part of
of aa routine
routine sweep.
sweep. Defendants
Defendants willwill note
note
this in
this in response
response by November
November 20. 20.
78 , Defendants
Defendants are , Plaintiffs
are reviewing
revlelJ\mg PlamtIff's suggested
suggested production procedure. Defendants
productIon procedure. Defendants
78
ISbelieve
believe the
the initial
initial 120
120 day
day estimate
estimate may
may have
have been
been too
too conservative.
conservative.

II. MEDICAL
II. MEDICAL RECORD
RECORD NOS.
NOS. / REDACTION
REDACTION IN
IN GENERAL
GENERAL

Defendants
Defendants are still considering
considering the issue ofof disclosing medical record
disclosing medical to Plaintiff.
record numbers to
Plaintiff
Plaintiff explained
explained that the number
number cannot be linked
linked to
tc aa patient name without
patient name to KMC-s
access to
without access KlvlC's
computer, and
computer, and that Plaintiff
Plaintiff requires this number in
in order
order to determine
determine which
which case
case numbers
numbers are
are
associated with each other.

We
We look
look forward to our next meet and confer
confer conference
conference call
call with at 10:00
with you at 10,00 a&m. on Monda"
a.m. on M(md.ay
November
November 26, 2007. Please do not hesitate to contact any questions
contact us with any you need
if you
questions or if to re-
need to reo
schedule.

vVery tRnt ~ours,


7I;y truly yours,
U f\ \
cJffi\
I\JIt{/~)
~LJPENE
&L ENE D. LEE
ee,
cc: Joan
Joan Herrington,
Herrington, Esq.
Esq. v
David
David F. Jadwin,
Jadwin, D.O,
D.O., FeAP.
F.C.ANP.

22

I~U ur L~llU


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1 IW JI "';VI'"
ov
IU: MIRII HCdWII e IuM:
r~~f LOH*4 rI IJeV M UJ~L OOI

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 10 of 20

(21
(212) ::,1)
99Z-3Z99
TELEPHONE
992-::3299
AW
LLAW O FF I CE
OFFICE OF
OF ELEE@LOEL.COM
ELEE@LOEL.COM
ELMAIL
E-MAIL
TELEPHONE
EUGENE
EUGENE LEE
LEE
{21 31 598-0487 555 WEST
555 WEST FIFTH
FIFTH STREET,
STREET, SUITE
SUITE 31003100 WWW.LOEL.COM
WWW.LOEL.COM
(213) 596-0487
FACSIMILE LOS ANGELES,
LOS ANGELES, CALIFORNIA
CALIFORNIA 90013-1010
9001;:1-1010 WEBSITE
WEBSITE
FACSIMILE
EUGENE D. LEE, ESQ
EUGENE D LEE, ESQ JOAN HERRINGTON,ESQ
JOANWE.HERINGTON, ESQ
PRINCIPAL OFCOUNSEL
OF COUNSEL
prICIpAL

November22,
November 22,2007
2007
VIA FACSIMILE
VIA FACSIMILE

Mark Wasser
Mark Wasser 100011.001
10001 LOOI
Law
Law Offices of Mark
Offices of Mark Wasser
Wasser
400 Capitol
400 Capitol Mall
Mall Ste II 00
Ste 1100
Sacramento,
Sacramento, CA 9581
958144

Re:
Re: Defendants Responses
Defendants Responses to
to Plaintiff's
Plaintiffs Requests
Requests for
for Production, Set One
Production, Set One
Jadwin 1 County of Kern, et a1. (USDC
Jadwin / County of Kern, et al. (USDC EDCA
EDCA No.
No.1 I:07-cv-00026-OWW/TAG)
:07-cv-00026-0WW ITAG)

Dear Mark:
Dear Mark:

It ,p,,,,,,,.HE;\vith
P",=Ul speaking
it was a pleasure yeSlcrU2:y regarding
with you yesterday n,p8ntino my email of
my' email November 20.
of Novrember 20.

I.1. OVERBROAD
OVERBROAD OBJECTION

As
As you you know,
know, in that email, we had explained defendants' oft-used
explained that defendants' objection, "documents
oft-used objection, "documents
protected from disclosure
protected from disclosure by state or
or federal law", does not comply
comply with
with FRCP
FRCP Rule
Rule 34 because
because
itit (a)
(a) is
is too
too broadly
broadly stated
stated and
and (b) fails to explain how the objection relates to the documents
the documents
demanded.
demanded. During the the call, you indicated that defendants re-state this objection.
defendants would re-state We look
objection. We look
forward to discussing
forward to discussing this
this further
further with you on Monday's
Monday's call.

n.II. ISSUES
ISSUES RELATED
RELATED TO
TO SPECIFIC
SPECIFIC RESPONSES

Plaintiff
Plaintiff also
also notes
notes the
the following
following issues with defendants written
issues with responses to plaintiff requests
written responses requests
for
for production,
production, set
set one:
one:

Response
Response Issue
Issue
to
to Doc
Doe
Req
Req No.
No. ,
23/24
23/24 December
December 21 seems to
21 seems be an
to be longtime.
excessively long
an excessively Also, to
time. Also, to what extent are
what extent the
are the
timesheets
timesheets attorney-client privileged?
attorney-client privileged?
25
25 ToTowhat extent are
whatextent these documents
are these relating to
documents relating plaintiff's job
to plaintiff's attorney-
performance attorney-
job performance
client privileged?
client privileged?
32
32 These documents are
These documents essential to
are essential prove disparate
to prove treatment and
disparate treatment and
discriminatory/retaliatory intent.
discriminatory/retaliatory We intend
intent. We move to
to move
intend to compel if
to compel ifwe resolve
cannot resolve
we cannot
this.
this. I
33
33 InIn past meetand
pastmeet calls, plaintiff
confer calls,
andconfer had narrowed
plaintiffhad request to
this request
narrowed this to complaints or
complaints or
relatingtotoKern
grievances relating
grievances Center which
Medical Center
Kern Medical been made
had been
which had government
to aa government
made to
0
trum: L4I urr
PM


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4
Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 11 of 20

! agency or court. These documents are essential to prove disparate treatment


treatment and
discriminatory/retaliatory disparate
provecompel cannot resolve
we cannot
discriminatory/retaliatory intent. We are
intend to move
essential to to compel if we resolve

40
I
this.e nor court. These documents
this.
ag what extent are these documents attorney-client
36 to
1 36 to 39
39 I To To attorney-client privileged?
privileged?
40 tThese documents
These documents are essential to prove disparate treatment
treatment and
and . I
i 69 I ~iscriminatorylretaliatory
diWscriminatory/retaliatory intent. We intend
intend to move to compel
compel if we cannot
cannot iesolve
resolve I
I this.
I thlS. J
42
I 42 To what extent are documents relating to the May 2005 oncology conference
i To what extent are documents relating to the May 2005 oncology conference
-. • attorney-client privileged?
presentation attorney-client
I presentation
I~.=-_-----t~=.:c::==~~::L;-=;:.:..L:':'==::':-"--.--~--::----;--~-.----C-~
privileged?
await defendants' response on the patient medical record number issue, both
still await
We still
i 69 69 ! We defendants' response on the patient medical record number issue, both
~~~~_.. I for past and for future disclosu~es.disclosures. _
70% I These documents
These documents are essential disparate treatment
to prove disparate treatment andand
! discriminatory/retaliatory
discriminatory/retaliatory intent. January
January 7,2008
7, 2008 is an unacceptable
unacceptable length of time to
length !

ii wait
wait for
for these
these documents.
documents. We intend to move to compel oompel we oannot resolve
if we cannot resolve this. I
I 78
78 i Defendants
Defendants failfail to indicate a date of production.
production.

m,
t1o REQUEST 78
78

Regarding Request 78, as a means to save time, plaintiff


Regarding Request proposes defendants
plaintiff proposes produce the
defendants produce the
following. conference if you wish.
following. We can discuss this at our next conference

1.
1. A
A printout
printout of aa list of all CPT code 88307 produce all placentas.
88307 reports will produce placentas.
There placentas per year. This process
There are less than 4,500 placentas no more
process should require no
require more
four
than four
than hours.

2.
2. A reports per
At two reports
A printout of all pathology reports appearing on the above list. At per
minute,
minute, this should require approx. 40 hours.

3.
3. (appearing in 3 places
Redaction of patient names (appearing each report)
places on each is aa highly
report) is highly
automated using
repetitive task that should require far less than 40 hours. If automated using
scanning and Adobe Acrobat, less time.
Acrobat it should take even less time.

These
These tasks
tasks are clerical of skill.
deal of
clerical and do not require a great deal skill.

We look forward to our


We our next
next meet and confer conference 10:00 am. on Monday,
conference call with you at 10:00 Monday,
November
November 26, 2007. Please do
do not hesitate to contact us with any questions or if you need to re-
questions or if you need to re-
schedule.

Vey trt yours,

Esq.
Herrington,
Joan Herrington,
cc:
cc: Joan Esq.

2
Case 1:07-cv-00026-OWW-TAG
(213) 992-::3299
213) 99239
TELEPHONE
TELEPHONE
• L A W
LAW
EUGENE
EUGENE
555
555 WEST
Document 84
0 F F I CE
OFFI

WEST FIFTH
C E

FIFTH STREET,
STREET,
L E E
LEE
SUITE 3100
SUITE 3100

Filed 01/09/2008
o0 F
Page 12 of 20
ELEE@LOEL.COM
ELEE@LOEL.COM
E*MAIL
E-MAIL

WWW.LDEL.COM
WWW.LOEL.COM
IZ 1 3) 596·0487
(213) 596-0457 WEBSITE
LOS WEBSITE
FACSIMILE
FACSIMILE LOS ANGELES,
ANGELES, CALIFORNIA
CALIFORNIA 90013-1010
900 1 31010
FUGUiNE D) LT.H, (mSQ JOAN I,
JOAN 1"_ HERRINGI'ON,
HERRINGTON, (SQ
ESQ
ELGL;NE D LEI, ESQ COUNSEL
OF COLNSI'L
OF
PRINCIPAL
PRINCIPAL

November 27,
27,2007
2007
VIA U.S. MAIL FIRST CLASS &
VIA U.S. FACSIMILE
& FACSIMILE
100011.001
Mark Wasser
Mark
Law
Law Offices of Mark
Mark Wasser
400
400 Capitol Mall
Mall Ste
Ste 1100
1100
Sacramento, CA 95814
95814

Re:
Re: Defendants
Defendants Responses Plaintiffs Requests
Responses to Plaintiffs Production. Set One
Requests for Production,
Jadwin 1 County ofKem, et aJ.
Jadwin / County of Kern, al. (USDC EDCA No.
No.1 :07-cv-00026-OWW/TAG)
1:07-cv-00026-0WW/TAG)

Dear Mark:
Dear ]\lark:

11Swas sneaking with vou esterdav and today regardinga


\\'as aa pleasure speaking regarding Hl}' letter to you o01N-overnber
m- letter
22.
22. We areare writing this letter in follow-up to our discussion.
writing this

I.1. OVERBROAD
OVERBROAD OBJECTION

As
As you you know,
know, in that email, we had explained defendants' oft-used
explained that defendants' objection, "documents
oft-used objection, "documents
protected
protected from disclosure by state or federal law", does not comply
comply with
with FRCP Rule
Rule 34 because
34 because
itit (a)
(a) is too to the documents
objection relates to the documents
too broadly stated and (b) fails to explain how the objection
demanded.
demanded. DuringDuring the call, you indicated that the objection referred HIPAA and
referred to HIPAA peer review
and peer review
privilege,
privilege, and that defendants would revise the responses to state
that defendants state the objection accordingly by
objection accordingly by
November 30.
Friday. November
Friday. 30.

n.
IL PRIVILEGE LOG

You stated
stated that
that you intend by Friday,
requests by
intend to provide us with a privilege log for all requests Friday,
30.
November 30.

III.
II1. RESPONSES
ISSUES RELATED TO SPECIFIC RESPONSES

Plaintiff
Plaintiff also following issues with defendants'
also notes the following responses to
written responses
defendants' written plaintiffs requests
to plaintiffs requests
production, set
for production,
for one:
set one:

Response Issue
Doe
to Doc
to
Req No.
23/24 You stated that
that these are probably not attorney-client privileged and
attorney-client privileged that defendants
and that defendants
be
may be able to produce them this week.
this week.
25 You attorney-client privileged.
that these are probably not attorney-client
You stated that privileged.
33
33 {
We reiterated that we
We have alreadv agreed to narrow this request
already agreed to narrow this request to documents
to documents
relating

Case 1:07-cv-00026-OWW-TAG

relating to complaints
complaints or
Document 84

or grievances
grievances relating
relating to
to Kern
Kern Medical

Filed 01/09/2008

Medical Center
Center which
Page 13 of 20

which had
had been
been
made to a government agency
made to a government agency court. or court. We
We further
further explained
explained that
that these
these documents
documents
are essential to prove disparate
are essential disparate treatment
treatment and
and discriminatory/retaliatory intent. You
discriminatory/retaliatory intent. You
requested and we agreed to
requested and we agreed send yousend you revised
revised response
response language
language which
vvhich nails
nails down
down
exactly what we areare requesting.
requesting. You
You confirmed
confirmed that
that the
the documents
documents are already inin the
are already the
process
process of being collected
collected and that.
that, once
once the
the request
request language
language is
is revised,
revised, you
you will
will
produce responsive documents
produce responsive documents by December
December 7.

Following is the revised


revised language
language narrowing the request:
narrowing the request:

"COMPLAINTS
"COMPLAINTS AGAINST AGAINST COUNTY.COUNTY. Any and all DOCUMENTSDOCUMENTS RELATING RELATING
TO complaints
complaints or grievances made by YOUR
grievances made YOUR past past or present employees against
present employees against
YOU for defamation, rctaliation. disability discrimination, failure
retaliation, disability discrimination, failure to accommodate,
accommodate.
and/or failure to engage
engage in an an interactive RELATING TO
process RELATING
interactive process Kern Medical
TO Kern Medical
Center and/or
and/or its officers or 01' staff, including
including but limited to
but not limited to any
any mnbrmaher
infoffilal Of
internal
iternal complaints. grievances or charges
cemplaints, grievances any state or federal
charges to any agency, and
federal agency, and
complaints
•_complaints filed in any state or federal court from October
October 24,
24, 2000 to
to date."
date."
36
36 to 39
39 You
You explained that some documents
documents will be subject to attorney-client privilege.
to attorney-client privilege.
40
S40 documents are essential
We explained that these documents prove disparate
essential to prove treatment and
disparate treatment and
discriminatory/retaliatorv
discriminatory/retaliatory intent You maintain your that documents
objections that
your objections documents
requested are confidential
- intent.
confidential personnel
personnel information
information and that
that the
the request
request is not
not
reasonably calculated
calculated to lead to admissible because Dr.
evidence because
admissible evidence situation is
Dr. Royce's situation
too dissimilar
dissimilar to plaintiff s.
s. Therefore
Therefore you stated
stated that you do
do not intend
intend to produce
produce
documents. Since we are at an impasse, we
any responsive documents. we will move to compel. compel.

you are refusing this request, we are reinstating


Note: because vou request in
our request
reinstating our in
Request 16 with respect to Dr. Rovce
Request 16 Previously you
personnel file. Previously
Royce Johnson's personnel you
personnel files of state employees
had objected that the personnel privileged official
employees are privileged
case:
information. Please see this case:
information.

Garrettv.v. San
Garrett Francisco,818
San Francisco, 1518-1519 fn.4
1515, 1518-1519
818 F.2d 1515, 1987) ("This
fnA (9th Cir. 1987) ("This
court has
court has held that
that personnel files are discoverable
discoverable in federal question
question cases,
cases,
including Guerra v. Board
VII actions, despite claims of privilege. Guerra
including Title VII Board ofof Trustees,
Trustees,
567 F.2d
567 F.2d 352 United States District
Kerr v. United
1977); Kerr
352 (9th Cir. 1977); Court, 511 F.2d 192,
District Court, 192,
197 (9th Cir. 1975), affd, 426 U.S. 394, 48 L. Ed. 2d 725,
197 (9th S. Ct. 2119
725, 96 S. (1976)).
2119 (1976)).
I
(where plaintiff
Ibid.(where
Ibid. firefighters to prove
plaintiff sought personnel records of 16 named firefighters
disparate treatment
disparate defendants objected on grounds of
and defendants
treatment and of privilege, confidentiality,
privilege, confidentiality,
th "Without passing on the
invasion of
invasion of privacy, irrelevance,
privacy, and irrelevance, the Cir.
99 Cir.
th opined
ofplaintiffs
merits of
merits plaintiffs discovery motion (a matter which should be addressedaddressed first by
district
the district
the court), we note that the motion, on its face, does not to be
appear to
appear entirely
be entirely
merit.").
without merit.").
without

42
42 You that these
stated that
You stated not attorney-client
are probably not
these are privileged.
attorney-client privileged.
69
69 You indicated
You that defendants
indicated that defendants will disclose patient medical by
numbers by
record numbers
SDecember
December 7, 7, and
and that you will
that you look into
will look of doing
the possibility of
into the doing the same for
the same for

22
Case 1:07-cv-00026-OWW-TAG

defendants' past
defendants'

past Initial
Document 84

Initial Disclosures.
Disclosures.

Filed 01/09/2008 Page 14 of 20

70
70 We explained
We explained that
that these
these documents
documents are are essential
essential to to prove
prove disparate treatmentand
disparatetreatment and
discriminatory/retaliatory intent and that January
discriminatory/retaliatory intent and that January 7, 2008 7, 2008 is
is an
an unacceptable
unacceptable length
length
of time
I of time to
to wait
wait for
for these
these documents.
documents. You You asked
asked forfor legal
legal authority establishingthat
authorityestablishing that
state privilege caselaw does not
state privilege caselaw does not apply apply in
in federal
federal court
court in
in cases
cases involving
involving aa federal
federal
question. We
question. We agreed
agreed to to provide
provide it.
it. You
You also
also indicated that ififwe
indicated that able toto
are able
we are
successfully meet and confer
successfully meet and confer on on this
this issue,
issue, that
that you
you would
would bebe able
able to
to produce
produce
responsive documents
responsive documents by by December
December 21 21.

Please see
Please see these
these cases:
cases:

Wm. T Thompson Co. v.


11m. v. General
Genera! Nutrition
Nutrition Corp., 671 671 F.2d 104 (3d
100, 104
F.2d 100, 982)
(3d Cit. 1982)
"We hold that whenwhen there
there are
are federal
federal law
law claims
claims in case also
in aa case presenting state
also presenting state lass
claims,
claims, the federal rule favoring admissibility, rather than any
favoring admissibility, rather than any state
state law
law privilege,
priviiege, is
is
the controlling The question
controlling rule. The one of
question is one impression in
of first impression in this court, but
this court, but our
our
holding is consistent
consistent with
with the legislative
legislative history
history n5
n5 of
of Rule
Rule 50I
501 and
and the
the decisions
decisions of
of
I
a number of trial
tria! courts. n6
n6li also consistent
It is also with the
consistent with the general rule in
general rule in federal
federal
practice disfavoring privileges not constitutionally
practice disfavoring privileges not constitutionally based.)
based.)

Kerr
Kerr v. United
United States District
District Court.
Court, 511 196-198 (9th
192, 196-198
511 F.2d 192, Cir.!975), affd,
(9th Cir.1975), aj}'d,
426 U.S. (1976); (In
U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); federal question
(In federal cases the
question cases the
clear weight of authority reference to federal
authority and logic supports reference law on the
federal law issue of
the issue of
privilege; The state's
existence and scope of an asserted privilege;
the existence interest is that of
state's interest is that of a a
sovereign whose
litigant, and not, as in diversity cases, that of a sovereign being applied
whose law is being applied
Reference to federal law in this case
in aa foreign forum. Reference is necessary
case necessary on on the issue of
issue of
the
the existence
existence and scope of the claimed privilege.).
claimed privilege.).

78
78 explained that you failed to indicate a date of production. You said that you
We explained you
would
would give
give us production
of production
us aa date of at our next call on November 30.
30.

IV.
IV. REQUEST
REQUEST 78
78

Regarding
Regarding Request
Request 78, we explained
78, we that the task of
explained that clerical and
of producing these documents is clerical
could
could be
be handled
handled byby an hourly-paid temporary hire, in
an hourly-paid to two weeks. You said you were
in one to
discussing
discussing our latest suggestions
our latest with your
suggestions with clients.
your clients.

V.
V. RELEVANCY OBJECTION
RELEVANCY OBJECTION

During
During the call, aa topic
the call, topic of discussion was
of discussion defendants' objection
was defendants' plaintiff s requests
objection that plaintiffs not
were not
requests were
calculated to
reasonably calculated
reasonably to admissible
lead to
to lead Following isis some
evidence. Following
admissible evidence. that.
regarding that.
some caselaw regarding
In
In our defendants are
view, defendants
our view, adopting an
are adopting an overly view of what
expansive view of what the
overly expansive the objection covers:
covers:

Royce Johnson
Royce fair comparator
Johnson isis aa fair Dr. Jadwin
for Dr.
comparator for terms of
in terms
Jadwin in of
"seriousness" of
of"seriousness"
wrongdoing:
wrongdoing:

33
McDonald
McDonaldvv. Santa

Case 1:07-cv-00026-OWW-TAG

Santa Fe
Fe Trail
Trail Transp.
Document 84

Transp. Co.. 427 U.S. 273.


273. 283 n.

Filed 01/09/2008

11. 49 L. Ed. 2d
n.ll.
Page 15 of 20

2d 493, 96 S.
493.96 S.
Ct.
Ct. 2574
2574 (1976)
1976) (In
(In aa Title
Title VII
VII case, showing that other
case, plaintiff can meet its burden by showing other
employees (firefighters) who engaged
employees (firefighters) who engaged in similar acts of wrongdoing
wrongdoing of comparable
comparable seriousness.
seriousness .
. . were
*. were nevertheless retained.)

Relevancy
Relevancy is not a proper objection:
United States v.
United States v. Mever.
Meyer. 398 398 F.2d 66.66, 72 (9th Cir. 1968).
1968). (In addition to discovering
addition to discovering
information
information pertaining
pertaining to proper to obtain information for
to aa party's case in chief, it is entirely proper information for
other purposes such as cross-examination
other purposes such as cross-examination of adverse witnesses)
Wright &
88 Wright & Miller.
Miller. Federal Practice
Practice and Procedure. (1970) (For the
Procedure. s 2008 at 41 (1970) the question
question
ofrelevancy
of relevancy is to be more loosely construed at the discovery stage than at
is to at the trial.)
triaL)
OJvmpic Refining Companv v.
Olvmpic Refinine Compan' v. Carter.332 Carter.332 F.2d 260. 266 (9th Cir.
Clr. 1964)
1964) (Thus under
(Thus under
Fed.R.Clv.P.
Fed.R.CivP. 26(b)(1).
26(1 , itit is no ground for objection that information pretrial discover,
information sought in pretrial ,hc,,"p"V

would not be admissible


would not be admissible at trial, if the testimony sought appears reasonably calculated
calculated lead to
to lead to
evidence.).
discovery of admissible evidence.).
the discovery

VI. 12/4-12/6 DEPOSITIONS


12/4-12/6

We
We explained
explained that we
we are incurring hotel, connection with the
hotel, travel and court reporter costs in connection
upcoming depositions. You agreed to confirm with
upcoming depositions. us shortly that the depositions go forward
can go
depositions can forward
as scheduled.
as scheduled. You had mentioned that, due to scheduling
scheduling conflicts,
conflicts, Dr. Wrobel's
Wrobel's deposition
deposition may
may
need
need to be moved
moved from Tuesday afternoon to possibly Thursday. Please let
let us
us know.

VII.
VII. STIPULATION AUTHENTICATION OF DOCUMENTS
STIPULATION RE AUTHENTICATION DOCUMENTS

We asked
asked if you authenticating documents
mutually authenticating
you would consider entering into a stipulation mutually documents
produced
produced by the
the parties
parties in discovery. You agreed
agreed to do so. A draft stipulation
stipulation is
is attached
attached for your
your
review.
revIew.

We look forward
forward to conference call
to our next meet and confer conference you at 10:00
call with you a.m. on Friday,
10:00 a.m. Friday,
November
November 30,30, 2007. Please do not hesitate to contact
contact us with any questions
questions or if
if you
you need
need to re-
to re-
schedule.

Very t yours,

3ENE D. LEE
cc: Herrington, Esq.
Joan Herrington,
cc: Joan Esq.
David F. Jadwin, D.O., F.C.A.P.
David

44
11
Case 1:07-cv-00026-OWW-TAG

Eugene D.
Eugene D. Lee
Lee SB#
SB# 236812
236812
• Document 84

Filed 01/09/2008 Page 16 of 20

LAW OFFICES
LAW OFFICES OF OF EUGENE
EUGENE LEE LEE
22 555Wcst Fifth Street, Suite 3100
555West Fifth Street, Suite 3100
Los Angeles,
Los Angeles, CACA 90013
90013
33 Phone: (213) 992-3299
Phone: (213) 992-3299
Fax: (213)
Fax: (213) 596-0487
596-0487
44 E-mail: eleeiWLOEL.com
E-mail: eleeaiLOEL.com
55 Joan Herrington
Joan Herrington SB#
SB# 178988
178988
BAY AREA
BAY AREA EMPLOYMENT
EMPLOYMENT LAW LA W OFFICE
OFFICE
66 5032 Woodminister Lane
5032 Woodminister Lane
Oakland. CA
Oakland, CA 94602
94602
77 Phone: (510) 530-4078
Phone: (510) 530-4078
88 I. ~~~a\II8{d.~~~i(;~~m
Fax: (510) 530-4725
E-mail: hibaelo.com
Of Counsef
'I Of Counse to LAW OFFICE OF EUGENE LEE
OFFICE OF
9
Attorneys
Attorneys for Plaintiff
Plaintiff
10
10 DAVIDF.
DAVIDF. JADWIN.
JADWIN, D.O.
Mark A. Wasser
Mark Wasser CA SB #060160
#060160
11.1 LAW
LAW OFFICES
OFFICES OF MARK WASSER
MARK A. WASSER
400
400 Capitol
Capitol Mall,
Mall. Suite 1100
1100
12
12 Sacramento.
Sacramento. CA 958 J4
95814
Phone: (9J6) 444-6400
Phone: (916) 444-6400
13
13 Fax:
Fax: (916)
(916) 444-6405
E-mail:
E-mail: mwasser(cvmarkwasser.com
mwasser(chmarkwasser. corn
J4
14
Bernard C.
Bernard Sr.
C, Barman, Sf.
15
15 KERN
KERN COUNTY
COUNTY COUNSEL
Mark
Mark Nations.
Nations, ChiefDeputv
Chief Deputy
J6
16 1115
1115 Truxtun Avenue, Fourth Floor
Truxtun'Ayenue,
Bakersfield.
Bakersfield, CA
CA 93301
17
17 Phone:
Phone: (661)
(661) 868-3800
Fax:
Fax: (661)
(661) 868-3805
18
18 ,I E-mail:
E-mail: mnationstQJco.kern.ca.us
mnations(&co.kern.ca-us
~

19
19 Attorneys
Attorneys for
for Defendants
Defendants County
County of
of Kern, Eugene Kercher.
Kern, Peter Bryan, Irwin Harris, Eugene Kercher,
Jennifer
Jennifer Abraham,
Abraham, Scott
Scott Ragland,
Ragland, Toni Smith and William Roy
20
20
21
21 UNITED STATES
STATES DISTRICT COURT

22
22 EASTERN
EASTERN DISTRICT
DISTRICT OF CALIFORNIA
OF CALIFORNIA

23
23 TAG
DAVID
DAVID F.
F. JADWIN, D.O.
JADWIN, D.O. ) Case 1:07-cv-00026 OWW TAG
Case No.: 1:07-cy-00026
24
24 )
Plaintiff,
Plaintiff, STIPULATION TO
) STIPULATION AUTHENTICATE
TO AUTHENTICATE
25
25 DOCUMENTS
) DOCUMENTS
ys.
vs. )
26 ) Complaint Filed: January
Complaint Filed: 2007
5, 2007
January 5,
26 Date: December 3, 2008
COUNTY
COUNTY OF al.,
KERN, etet aI.,
OF KERN, Trial
) Trial Date: December 3, 2008
27
27 )
Defendants.
Defendants. )
28 )
28

STIPULATION
STIPULATION TO AUTHENTICATE DOCUMENTS
TOAUTHENTICATE PRODUCED IN
DOCUMENTS PRODUCED DISCOVERY
IN DISCOVERY 1
11
Case 1:07-cv-00026-OWW-TAG

1T
IT lS

HEREBY STIPULATED,
IS HEREBY ST1PULATED, by
by and
and among
Document 84

among the
the parties
parties hereto
hereto through

Filed 01/09/2008

their respective
through their respective
Page 17 of 20

22 counsel, that
counsel, that any
any and all documents
and all documents produced
produced by
by plaintiff
plaintiff and/or
and/or by
by each of the
each of defendants, or
the defendants, or

33 any
any of
of them,
them, in the Initial
in the 1nitial Disclosures,
Disclosures, supplemental disclosures, or
supplemental disclosures, to discovery
pursuant to
or pursuant discovery

44 requests or procedures
requests or procedures in
in this
this action
action shall
shall be deemed authentic under
deemed authentic Federal Rule
under Federal of Evidence
Rule of Evidence

55 90
901,1, provided however that
provided however that documents
documents generated third parties
generated by third shall not
parties shall be included
not be in this
included in this

66 stipulation.
stipulation.
77

8 December
Dated: December 2007
T200 LAW OFFICE OF EUGENE LEE

99
]0 BY:_-,=E",Ubge",1,!,1e~D"-.
By: Eugene D. 2oL"' Lee
e""e --i
Eugene D. Lee
Eugene D. Lee
]i1] JIAttorney Plaintiff David
Attorney for Plaintiff,
for David F. 1M]"'," D.O.
F. Jadwin, D.O.
12
12
Dated: December LAW OFFICES OF MARK A WASSER
MARK A. WASSER
13 Dated: December ,, 2007
2007 LAW OFFICES

14
14
By:_~M~a"'rk~A'"._W"_"a~ss"'e"'r_l.(£as~au"_t"'h!"o"_ri"'z"'e"d~o'_'
By: Mark A. Wasser (as authorized on_ n'-_ _)_
L2_
15
15
A Wasser
Mark A. Wasser
16
16 Attorney County of Kern, et al.
Defendants, County
Attorney for Defendants, aL

17
]7

]8
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]9

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22

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TO AUTHENTICATE
STIPULATION TO
STIPULATION PRODUCED IN
DOCUMENTS PRODUCED
AUTHENTICATE DOCUMENTS DISCOVERY
IN DISCOVERY 2
1
Case 1:07-cv-00026-OWW-TAG
• .
. . ' 84
Document

ORDER
ORDER

Filed 01/09/2008 Page 18 of 20

22 The parties having


The parties stipulated as
having stipulated hereinabove set
as hereinabove forth and
set forth good cause
and good appearing therefor;
cause appearing therefor;
33 IT IS
IT IS HEREBY
HEREBY ORDERED,
ORDERED, that that that
that any
any and
and all
all documents
documents produced
produced by
by plaintiff
plaintiffand/or
and/or
44 by each of the defendants, or any of them, in the Initial Disclosures,
by each of the defendants, or any of them, in the Initial Disclosures, supplemental
supplemental disclosures
disclosures oror
pursuant to
pursuant to discovery
discovery requests
requests or
or procedures
procedures in in this
this action
action shall
shall be deemed authentic
be deemed under
authentic under
5 Federal Rule of Evidence
Federal Rule of Evidence 901, 901, provided
provided however
however that
that documents
documents generated
generated parties shall
third parties
by third
by shall
not be included in in this
this stipulation.
stipulation. I
66 not be included
77 Dated: December __
Dated: December _ , 2007
2007 UNITED STATES
UNITED STATES DISTRICT COURT
DISTRICT COURT

8
By:____________
By: __
99 Theresa A.
Honorable Theresa
The Honorable A. Goldner
Goldner
United States
States District
District Judge
Judge
10
10 HUnited
11
11
1' i
12

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STIPULATION TO AUTHENTICATE
STIPULATION TO DOCUMENTS PRODUCED
AUTHENTICATE DOCUMENTS DISCOVERY
IN DISCOVERY
PRODUCED IN 33
01/09/2008 15:48 FAX
01/09/2008 15:48 FAX ~002
Qj002

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 19 of 20

I.i. 1 31 VZ-3z2
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T!;;LEPHONE
LLAW
A W F F I C
OOFFICE 0OF
O F ELEE@L1:1EL..CQM
ELEE@LDEL.COM
E-Mol\lL.
E-MAIL
TtLEPHONE
EUGENE
EUGENE LEE
LEE
l~ 1 '3) S';16-04El7
4•-2 3) S96-04aS 555 WEST
555 W!:ST FIFTH
FfF"TH STREET,
BTRE;S;T. SUITE
liUlTE 3I a 1DO 00 WWW.LC&L.CtJM
WWW.LOE".Q•M
FACSIMILE LOS AN5&LE5. CALIFORNIA 900 1..:;":;..·':.:C""'-'C'--
LOS ANGELES, CALIFORNIA 90013- "010 ---- W"-"''''''''-'''''''.!.T''-'''
WrBSITE
FACSMILE
RUGliNE O. 12E,
oUGINED, LEE, ESQ.
ESQ. J1~o-fON.£SQ.
JOhNZ.EoHE•IUIN-
JOAN O•N £SQ.
NUNCTP'.J\t
PI4NCTPIT'A OFCOUNSEL
OFCQUN£n

November 30,
November 30, 2007
2007
VIAE·MAlL
VIA E-MAIL

Mark Wasser
Mark Wasser :00011O001
100011.001
Law Offices Mark Wasser
Offices of Mark Wasser
400 Mall Ste 1100
400 Capitol Mall 1100
Sacramento, CA 95814
Sacramento, 95814

Re: Defendants Responses to


Defendants Responses
Plaintiffs Requests for Production, Set One
to Plaintiff's Requests for Production, One
Jadwin I
Jadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-OWW/TAG)
COWlty of Kem, et al (USDC £DCA No. !:07-cv-00026·0WWITAG)

Dear Marie
Mark:

It was aIi. pleasure


It speaking with you today
pleasure speaking today regarding oW" letter
regarding our to you
letter to ofNovember
you of We were
27. We
November 27, were
pleased
pleased to 10 hear that you expected most if not all
all'documents to be produced before
befo,"" Decembr
DeCetllbl,r 21,
OUr discussion,
We are writing this letter in follow-up to our discussion.

I.
L. OVERBROAD
OVERBROAD OBJECTION
We discussed defendants' "documents protected
defendants' objection, "documents state or federal
disclosure by state
protected from disclosure federal
because it (a) is too broadly
law", which is problematic because stated and (b)
(b) fails to explain how the
explain how the
objection relates toto the documents demanded. During the call, you agreed the responses
agreed to revise the responses
to state the objection
state the Monday,
today or next Monday.
objection accordingly by either today
II. PRIVILEGE LOG
PRIVILEGE LOG
You stated that you
You today or
requests by either today
you intend to provide us with a privilege log for all requests or
next Monday.
next Monday,
III.
Il. iSSUES
ISSUES RELATED
RELATED TO SPECIFIC RESPONSES
TO SPECIFIC
Plaintiff
Plaintiffalso the following
notes the
also notes with defendants'
issues with
following issues plaintiff's requests
responses to plaintiff's
defendants' written responses requests
production, set
for production,
for one:
set one:

Response
Response Issue
Issue
Dot
toDoc
to
No.
Req No.
Rea
23/24
23/24 You stated there
You stated would not
there would likely be
not likely issue producing
any issue
be any these and
producing these you would
and you have
would have
aa more idea as
definite idea
more definite production date by
to production
as to by next Monday..
next Monda
:":':':'==-:_--......,..,...---=--1
language isis adequate
request language and that
adequate and will
you will
that you
33
33 confirmed that
You confinned
You that plaintiff revised request
plaintiff'ss revised
produce responsive
produce tentatively by December 7, but you
documents tentatively by December 7, but you would have a
responsive documents would have a
definite idea
more definite
more idea lIS to oroduction
as to next M~o~n~da=.;.,.
by next
date by
production date Monday. = =:-:::=--::-::::--,-,-,:-:=--I
40
40 We McDonald v. Santa
discussed McDonaldv.
We discussed SantaFe TrailTransp.
Fe Trail Co.. 427
Transp.Co.. U.S. 273.
427 U.S. 283 n.ll.
273. 283 49
n.11, 49
Ed.2d
L. Ed.
L. 493, 96
2d493. S.g.
96 S. (197 6 ),establishing
2574 (976),
Ct. 2574 establishing Dr. Royce isis aa fair
Dr. Royce for
comparator for
fair comparator
disparate treatment.
disoarate You said
treatment. You you would
said you do some
would do further research
some further and be
research and to
ready to
be read
01/09/2008 15:48 FAX
01/09/2008 15:48 FAX 1i!J003
a003

Case 1:07-cv-00026-OWW-TAG Document 84 Filed 01/09/2008 Page 20 of 20

discuss itit with


discuss with us
us further
further by
by next
next Monday.
Monday.

mentioned that ifif we


I mentioned we are
are unable
unable to resolve
resolve this
this issue,
issue, we
we would
would reinstate-our
reinstate,our
I request in Request 16 with
request in Request 16 with respectrespect to
to Dr.
Dr. Royce
Royce Johnson's
Johnson's personnel
personnel file. II further
file. further
mentioned Garrett
mentioned Garrett v. v. San Francisco, supporting
Francisco,supporting our
our right
right to
to disclosure
disclosure of
of personnel
personnel
I files.
files.
, 42
42 You stated
You stated that these
these are
are probably
robabl notnot attorney-client
attome -client privileged,
rivile ed.
69
679 stated you
You stated ou would
would probably
babl have aa decision
decision on this by
on this next Monday.
b next Monda
70 , We
We explained
explained that
that these documents
documents are are essential
essential to to prove disparate treatment
prove disparate treatmentand and
discriminatory/retaliatory intent. We also cited
discriminatoryfretaliatory intent. We also cited Win, Wm. T Thompson
Thompson Co.
Co. v.
v. General
General
Nutrition Corp., 671
Nutrition 671 F.2d 100,
100, 104
104 and
and Kerr States District
v. United States
Kerr v, Court. 5511
District Court, 11
F.2d 192,
F.2d 192, 196-198 (9th Cir.
196-198 (9th Cir.1975), establishing that
1975), establishing that federal applies in
privilege applies
federal privilege in
federal question
question cases. I

sibly"
You stated that you would research
by_
b~~December
ssibl b December 21.
______pos 21.
this further and
research this
able to
would be able
meet and confer on this issue, you would
that if
lind that ifwe able to
are able
we are
responsive documents
produce responsive
to produce documents
successfully I
to successfully
rl
78
S78
SLdecided
i You stated that you would produce
produce possibly by December that this would be
21, but that
December 21, be
'-- Monday,
I decided by next Monday. i
IV. STIPULATION AUTHENTICATION OF DOCUMENTS
STIPULATION RE AUTHENTICATION DOCUMENTS
We
We discussed mentioned that some language
discussed the draft stipulation and mentioned added. to
should be added
language should to ensure
ensure
documents
documents generated by KMe
KMC hospital staff and employees
employees are covered
covered by the stip
stip (as
(as opposed
opposed
to KMC). You said you would discuss this with your
parties outside of KMe).
to third parties your client and get back
client and back
to
to us with
with an answer by next Monday.
v,
V, BALANCING TEST
PRIVACY BALANCING
PlUVACY
YOil requested
You requested casclaw
caselaw regarding balancing test for disclosure. We cited Tisdale v
regarding the privacy balancing
Marin GeneralHospiral,
Matin Gerwral FRD 696.
Hospital,138 FRO

If
If any oftl1e
of the foregoing inaccurate, please do not hesitate W
foregoing isis inaccurate, to let us know. We find these letters
!etters
serve as a useful way to track ongoing
serve as a useful way to track ongoing items of discussion.
discllssion.

We look
We forward to
look forward our next meet
to our confer conference call with you at 5:00 p.m. on Monday,
meet and confer
December 3,
December 3, 2007. Please do
2007. Please contact us with llI1y
to contact
do not hesitate to need to
any questions or if you need to re-
re-
Have aa nice
schedule. Have
schedule. nice weekend.

Vt yyurs,_
tENE D. LEE
Esq.
Herrington, Esq.
cc:
CC: Joan.Herrington,
Joan.
F. Jadwin,
David F.
David F.C.A.P.
D.O., F.C.A.P
Jadwin, D.O.,

22