163-1 P Ex Parte Shorten Time Re MTC Depos

8/14/2019 163-1 P Ex Parte Shorten Time Re MTC Depos

1/90

PLAINTIFF'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME

re MOTION TO COMPEL DEPOSITIONS & REQUEST FOR SANCTIONS 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

LAW OFFICE OF EUGENE LEEEugene D. Lee (SB#: 236812)555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299

Fax: (213) 596-0487email: [email protected]

Attorney for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

PLAINTIFF'S EX PARTE APPLICATIONFOR ORDER SHORTENING TIME reMOTION TO COMPEL DEPOSITIONS &REQUEST FOR SANCTIONS OF $5,880

Date Action Filed: January 6, 2007Discovery Cut-off: August 17, 2008Date Set for Trial: December 2, 2008

TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLAINTIFF David F. Jadwin hereby moves ex parte for an order shortening time for hearing on

his Motion to Compel Depositions & Request for Sanctions pursuant to FRCP Rules 6 and 30 and Local

Rule 6-144.

Discovery in this action is due to close on August 17, 2008.

Plaintiff properly and reasonably noticed 17 depositions. Just days before the first deposition was

to begin, Defendants objected, stated their intention to file a motion for protective order and stated their

Case 1:07-cv-00026-OWW-TAG Document 163 Filed 07/14/2008 Page 1 of 90


2/90



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

refusal to produce any deponents prior to the Courts hearing of their motion. Defendants have in effect

issued themselves a stay on depositions pending the hearing of their motion in contravention of the

FRCP, a fact which Plaintiff has repeatedly brought to Defendants attention, to no avail.

Plaintiff now seeks to move this Court to compel the depositions and seeks an order shortening

time so as to minimize the ongoing prejudice to Plaintiff given the limited time remaining in discovery.

Plaintiff further seeks sanctions against Defendants for their bad faith conduct as well as the Courts

assistance in re-setting the depositions which Defendants inappropriately stayed.

Pursuant to Local Rule 6-144, Plaintiff asked Defendants for their stipulation to shortened time

on Plaintiffs Motion to Compel Depositions & Request for Sanctions, as well as Defendants Motion

for Protective Order. Plaintiff drafted and sent to Defendants a proposed stipulation. Defendants initially

agreed to stipulate but then refused either to comment on Plaintiffs draft stipulation or to sign the

stipulation. This conduct is but the latest in a long-standing pattern of bad faith obstruction and

antagonism by Defendants, a pattern which has every indication of continuing unless and until it is

addressed. Because Defendants failed to respond to Plaintiffs request for execution of the stipulation by

2 p.m. on Monday, July 14, the deadline set by Plaintiff, Plaintiff was forced to file this Ex Parte

Application.

In order to avert any further prejudice to Plaintiff in light of the number of depositions Plaintiff

seeks to take and the limited time left in discovery, Plaintiff requests that this Court shorten time for the

hearing and service on Plaintiffs Motion to Compel Depositions & Request for Sanctions as follows:

Filing of Motion: July 14, 2008

Defendants Opposition (if any) July 18, 2008

Plaintiffs Reply: Waived

Hearing: July 21, 2008

Plaintiff served this Ex Parte Application and associated declaration and exhibits on Defendants

by facsimile before 5 p.m. on Monday, July 14, 2008.

This Application is based on these moving papers, the declaration of Eugene D. Lee, counsel of

record for Plaintiff, the exhibits attached thereto, and the pleadings and papers on file in this action.



3/90



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

RESPECTFULLY SUBMITTED on July 14, 2008.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100

Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.



4/90



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF EUGENE D. LEE IN SUPPORT OF APPLICATION

I, Eugene D. Lee, declare and say, as follows:

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

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

California. I am the attorney representing Plaintiff David F. Jadwin in this matter.

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

Application for Order Shortening Time re: Motion to Compel Depositions & Request for Sanctions. The

facts stated herein are personally known to me and if called as a witness, I could and would competently

testify to the truth of the facts set forth in this declaration.

3. A true and correct copy of the Motion to Compel Depositions & Request for Sanctions

which Plaintiff seeks to file is attached hereto as Exhibit 1.

4. Discovery in this action is due to close on August 17, 2008.

5. Plaintiff properly and reasonably noticed 17 depositions. Just days before the first

deposition was to begin, Defendants objected, stated their intention to file a motion for protective order

and stated their refusal to produce any deponents prior to the Courts hearing of their motion.

Defendants have in effect issued themselves a stay on depositions pending the hearing of their motion in

contravention of the FRCP, a fact which Plaintiff has repeatedly brought to Defendants attention, to no

avail.

6. Pursuant to Local Rule 6-144, Plaintiff asked Defendants for their stipulation to

shortened time on Plaintiffs Motion to Compel Depositions & Request for Sanctions, as well as

Defendants Motion for Protective Order. Plaintiff drafted and sent to Defendants a proposed stipulation

Defendants initially agreed to stipulate but then refused either to comment on Plaintiffs draft stipulation

or to sign the stipulation. This conduct is but the latest in a long-standing pattern of bad faith obstruction

and antagonism by Defendants, a pattern which has every indication of continuing unless and until it is

addressed. Because Defendants failed to respond to Plaintiffs request for execution of the stipulation by

2 p.m. on Monday, July 14, the deadline set by Plaintiff, Plaintiff was forced to file this Ex Parte

Application.

7. Plaintiff served this Ex Parte Application and associated declaration and exhibits on



5/90


6/90



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Plaintiffs Notice of Motion and Motion to Compel Depositions &Request for Sanctions



7/90



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT 1:Plaintiffs Notice of Motion and Motion to Compel Depositions & Request for Sanctions



8/90

PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITIONS & REQUEST FOR SANCTIONS 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

LAW OFFICE OF EUGENE LEEEugene D. Lee (SB#: 236812)555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299

Fax: (213) 596-0487email: [email protected]

Attorney for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

PLAINTIFF'S NOTICE OF MOTION ANDMOTION TO COMPEL DEPOSITIONS &REQUEST FOR SANCTIONS OF $5,880

Date Action Filed: January 6, 2007Discovery Cut-off: August 17, 2008Date Set for Trial: December 2, 2008

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Please take notice that on __________, 2008, at ______ a.m., or as soon thereafter as the parties

may be heard, Plaintiff DAVID F. JADWIN, D.O. will and hereby does move this Court, at the U.S.

Dist. Ct., Bankr. Crtrm., 1300 18th St., Bakersfield, CA, to compel the taking of depositions as noticed

by Plaintiff.

Plaintiff has met and conferred with Defendants on this dispute, but was unable to resolve it.

This Motion is based on these moving papers, the declaration of Eugene D. Lee, counsel of



9/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

record for Plaintiff, the exhibits attached thereto, and the pleadings and papers on file in this action.


/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.



10/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM OF POINTS & AUTHORITIES

Plaintiffs Opposition to Defendants Motion for Protective Order, to be heard concurrently with

this Motion, is hereby incorporated in its entirety and made a part of this brief.

I. SummaryDefendants have told Plaintiff that no deponent will be attending any of the 17 depositions

noticed by Plaintiff. Defendants have in effect issued themselves a stay on the depositions pending

hearing of their motion for protective order. That is not permissible in the absence of a court order.

Plaintiff seeks to compel the taking of these depositions under Rule 30 and requests sanctions. These

depositions were reasonably and properly noticed. Plaintiff met and conferred with Defendants as to

dates of availability prior to noticing the depositions. Defendants were aware at least by May 5, 2008,

that Plaintiff intended to conduct as many as 20 depositions but voiced no objections until now. Plaintiff

further requests the Courts assistance in re-setting the depositions which Defendants improperly stayed.

II. BackgroundDefendants knew of Plaintiffs intention to depose as many as 20 more deponents as early as

May 5, 2008. In the Declaration of Mark A. Wasser in Support of Defendants Ex Parte Application for

Order Shortening Time re Motion for Permission to Serve Experts Reports After May 5, 2008, filed

May 5, 2008 (Doc. 118), Mr. Wasser stated Also, discovery is not nearly complete. Plaintiff has

announced the intention to take as many as 20 more depositions. (Doc. 118, 2:18-19).

On June 30, 2008, Plaintiff sent an email to Defendants requesting dates of availability for

depositions of 17 party and non-party deponents.

On July 1, Defendants emailed Plaintiff, stating:

I am in trial July 29 to July 31 but will be available after that. I have not yet heard from

Allen but will keep following up. I have a deposition in another case on July 11 and apretrial conference in that same case on July 18. So, those dates do not work for me. Ifwe postpone the July 14 hearing on the motion to transfer then I can do Levison on the14th.

Plaintiff immediately sent a reply email, stating: I still need to hear dates from you on the non-

expert depos and Dr. Allen. I suggest we handle everything at once. Plaintiff then re-sent to Defendants

his email of June 30.



11/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

On July 2, Defendants faxed a letter (which was cut-off) wherein Defendants objected for the

first time to the number and nature of depositions requested as excessive. Defendants refused to provide

any dates of availability for the requested depositions.

Plaintiff immediately sent an email to Defendants stating that Plaintiff will proceed with

noticing the depositions.

On July 3, Plaintiff served 17 deposition subpoenas by fax on Defendants, scheduling them for

every Tuesday, Wednesday and Thursday between July 15 and August 14, 2008.

On July 10, just days before the first deposition was scheduled to take place, Defendants faxed a

letter to Plaintiff stating: You have made no attempt to discuss this issue [of deposition scheduling] or

to meet and confer; I am not available the week of July 14 because I am in Court and in depositions

out of town in other matters. Defendants also stated that No one will be appearing at any of the

depositions you have noticed and the Defendant will file a motion for a protective order tomorrow,

Friday, July 11, 2008. That motion was not filed on July 11.

On July 11, 2008, Plaintiff sent Defendants two emails, one stating: Motioning the court is fine,

but that doesnt mean defendants can deny plaintiff the right to depose defendants and key witnesses

prior to the hearing. The other email stated Plaintiffs request for Defendants stipulation to shorten

time on Plaintiffs motion to compel. Defendants then sent a fax to Plaintiff stating that they agreed to so

stipulate.

On July 13, 2008, Plaintiff sent Defendants a draft stipulation and asked for their signature by no

later than 2 p.m. on July 14, 2008. The deadline was necessary so as to ensure Plaintiff had sufficient

time to file an ex parte application in the event Defendants decided not to sign the stipulation (which is

exactly what transpired). The parties subsequently exchanged emails wherein Defendants reiterated their

intention not to produce any deponents at any of the noticed depositions.

As of July 14, 2008, Defendants had not signed or delivered a signed stipulation to shorten time,

showing their continuing bad faith conduct in this action.

III. ArgumentDefendants are not permitted to issue themselves a stay on depositions pending their motion for



12/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

protective order. They cannot summarily refuse to attend properly-noticed depositions. In Pioche Mines

Consol., Inc. v. Dolman, 1964 U.S. App. LEXIS 5312, 29-30 (9th Cir. Nev. 1964), the Ninth Circuit

considered a trial courts order of default judgment against a defendant who had failed to appear at his

deposition. The defendant there argued that his nonappearance was excused by his earlier filing of a

motion to quash. The Ninth Circuit flatly rejected this contention and upheld the trial courts order of

default judgment:

Counsel's view seems to be that a party need not appear if a motion under Rule 30(b),F.R.Civ.P. is on file, even though it has not been acted upon. Any such rule would be anintolerable clog upon the discovery process. Rule 30(b) places the burden on theproposed deponent to get an order, not just to make a motion. And if there is not time tohave his motion heard, the least that he can be expected to do is to get an orderpostponing the time of the deposition until his motion can be heard. He might alsoappear and seek to adjourn the deposition until an order can be obtained. (Rule 30(d)).But unless he has obtained a court order that postpones or dispenses with his duty toappear, that duty remains. Otherwise, as this case shows, a proposed deponent, bymerely filing motions under Rule 30(b), could evade giving his deposition indefinitely.Under the Rules, it is for the court, not the deponent or his counsel, to relieve him of theduty to appear.

Plaintiff has fulfilled his duties under Rule 30 to notice the depositions; yet, Defendants

response has been to state their refusal to attend any of the depositions just days before the first

deposition was to occur.

Plaintiff long ago gave reasonable notice to Defendants of his intention to conduct the

depositions. Defendants knew of Plaintiffs intentions by at least May 5. At no time did Defendants state

any objections to such depositions. In fact, at one point, Defendants even argued to the Court that

Plaintiffs depositions werestrategically necessary to Defendants so that they might then know the

theories Plaintiff is pursuing before [defense expert] Dr. Olson-Buchanan can complete her report.

(Doc. 118, 2:19-20).

Beginning June 30, Plaintiff met and conferred with Defendants as to specific dates of

availability for depositions. When Defendants refused to provide any such dates and objected to thedepositions, Plaintiff promptly informed Defendant that same day that Plaintiff will proceed with

noticing the depositions.

On July 3, Plaintiff served the deposition subpoenas on Defendants by fax.

Finally, on July 10, just days before the first deposition was to begin, Defendants sent Plaintiff a



13/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

fax stating No one will be appearing at any of the depositions you have noticed and the Defendant will

file a motion for a protective order tomorrow, Friday, July 11, 2008. Defendants fax is notable for the

numerous distortions and false statements it contained. Salient examples are:

The fax stated: You have made no attempt to discuss this issue [of deposition

scheduling] or to meet and confer. In fact, Plaintiff had made several attempts to do so

starting on June 30.

The fax stated: I am not available the week of July 14 because I am in Court and in

depositions out of town in other matters. Yet, in their email of July 1, Defendants had

stated the exact opposite, that they were available: I have a deposition in another case

on July 11 and a pretrial conference in that same case on July 18. So, those dates do not

work for me. If we postpone the July 14 hearing on the motion to transfer then I can do

[Plaintiff expert] Levison on the 14th.

Defendants did not file a motion for protective order on July 11. They have yet to file

one.

Defendants inappropriate delay tactic has prejudiced Plaintiff as intended. Given that discovery

closes on August 17, 2008, Plaintiff had set up a dense schedule of depositions which took up every

Tuesday, Wednesday and Thursday remaining in discovery. The first depositions were scheduled to

occur on July 15, 16 and 17. Plaintiff will now need to find alternate dates for these depositions in an

already tightly-packed deposition schedule.

IV. ConclusionPlaintiff prays that the Court issue an order compelling Defendants to submit to the depositions

as noticed by Plaintiff. Regarding the depositions originally scheduled for July 15, 16 and 17, Plaintiff

requests the Courts assistance in setting up alternate dates. Finally, Plaintiff prays that the Courtsanction Defendants for their inappropriate, bad faith delay tactics in the amount of $5,880.

//

//

///



14/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100

Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.



15/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION

I, Eugene D. Lee, declare and say, as follows:

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

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

California. I am the attorney representing Plaintiff David F. Jadwin in this matter.

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

Compel Depositions & Request for Sanctions. The facts stated herein are personally known to me and if

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

declaration.

3. Defendants knew of Plaintiffs intention to depose as many as 20 more deponents as early

as May 5, 2008. In the Declaration of Mark A. Wasser in Support of Defendants Ex Parte Application

for Order Shortening Time re Motion for Permission to Serve Experts Reports After May 5, 2008, filed

May 5, 2008 (Doc. 118), Mr. Wasser stated Also, discovery is not nearly complete. Plaintiff has

announced the intention to take as many as 20 more depositions. (Doc. 118, 2:18-19). A true and

correct copy of Doc. 118 is attached hereto as Exhibit 1.

4. On June 30, 2008, Plaintiff sent an email to Defendants requesting dates of availability

for depositions of 17 party and non-party deponents. A true and correct copy of the email is attached

hereto as Exhibit 2.

5. On July 1, Defendants emailed Plaintiff, stating:

I am in trial July 29 to July 31 but will be available after that. I have not yet heard fromAllen but will keep following up. I have a deposition in another case on July 11 and apretrial conference in that same case on July 18. So, those dates do not work for me. Ifwe postpone the July 14 hearing on the motion to transfer then I can do Levison on the14th.

A true and correct copy of the email is attached hereto as Exhibit 3.

6. Plaintiff immediately sent a reply email, stating: I still need to hear dates from you on

the non-expert depos and Dr. Allen. I suggest we handle everything at once. Plaintiff then re-sent to

Defendants his email of June 30. A true and correct copy of the emails are attached hereto as Exhibit 3.

7. On July 2, Defendants faxed a letter (which was cut-off) wherein Defendants objected for

the first time to the number and nature of depositions requested as excessive. Defendants refused to



16/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

provide any dates of availability for the requested depositions. A true and correct copy of the fax is

attached hereto as Exhibit 4.

8. Plaintiff immediately sent an email to Defendants stating that Plaintiff will proceed with

noticing the depositions. A true and correct copy of the email is attached hereto as Exhibit 5.

9. On July 3, Plaintiff served 17 deposition subpoenas by fax on Defendants, scheduling

them for every Tuesday, Wednesday and Thursday between July 15 and August 14, 2008. A true and

correct copy of the email is attached hereto as Exhibit 6.

10. On July 10, just days before the first deposition was scheduled to take place, Defendants

faxed a letter to Plaintiff stating: You have made no attempt to discuss this issue [of deposition

scheduling] or to meet and confer; I am not available the week of July 14 because I am in Court and in

depositions out of town in other matters. Defendants also stated that No one will be appearing at any

of the depositions you have noticed and the Defendant will file a motion for a protective order

tomorrow, Friday, July 11, 2008. That motion was not filed on July 11. A true and correct copy of the

fax is attached hereto as Exhibit 7.

11. On July 11, 2008, Plaintiff sent Defendants two emails, one stating: Motioning the court

is fine, but that doesnt mean defendants can deny plaintiff the right to depose defendants and key

witnesses prior to the hearing. The other email stated Plaintiffs request for Defendants stipulation to

shorten time on Plaintiffs motion to compel. Defendants then sent a fax to Plaintiff stating that they

agreed to so stipulate. A true and correct copy of the emails and fax is attached hereto as Exhibit 8.

12. On July 13, 2008, Plaintiff sent Defendants a draft stipulation and asked for their

signature by no later than 2 p.m. on July 14, 2008. The deadline was necessary so as to ensure Plaintiff

had sufficient time to file an ex parte application in the event Defendants decided not to sign the

stipulation (which is exactly what transpired). The parties subsequently exchanged emails wherein

Defendants reiterated their intention not to produce any deponents at any of the noticed depositions. A

true and correct copy of the emails and fax is attached hereto as Exhibit 9.

13. As of July 14, 2008, Defendants had not signed or delivered a signed stipulation to

shorten time, showing their continuing bad faith conduct in this action.

14. Plaintiff has fulfilled his duties under Rule 30 to notice the depositions; yet, Defendants



17/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

response has been to state their refusal to attend any of the depositions just days before the first

deposition was to occur.

15. Plaintiff long ago gave reasonable notice to Defendants of his intention to conduct the

depositions. Defendants knew of Plaintiffs intentions by at least May 5. At no time did Defendants state

any objections to such depositions. In fact, at one point, Defendants even argued to the Court that

Plaintiffs depositions were strategically necessary to Defendants so that they might then know the

theories Plaintiff is pursuing before [defense expert] Dr. Olson-Buchanan can complete her report.

(Doc. 118, 2:19-20). See Exhibit 1.

16. Beginning June 30, Plaintiff met and conferred with Defendants as to specific dates of

availability for depositions. When Defendants refused to provide any such dates and objected to the

depositions, Plaintiff promptly informed Defendant that same day that Plaintiff will proceed with

noticing the depositions. See Exhibit 5.

17. On July 3, Plaintiff served the deposition subpoenas on Defendants by fax. See Exhibit 6.

18. Finally, on July 10, just days before the first deposition was to begin, Defendants sent

Plaintiff a fax stating No one will be appearing at any of the depositions you have noticed and the

Defendant will file a motion for a protective order tomorrow, Friday, July 11, 2008. See Exhibit 7.

Defendants fax is notable for the numerous distortions and false statements it contained. Salient

examples are:

The fax stated: You have made no attempt to discuss this issue [of deposition

scheduling] or to meet and confer. In fact, Plaintiff had made several attempts to do so

starting on June 30.

The fax stated: I am not available the week of July 14 because I am in Court and in

depositions out of town in other matters. Yet, in their email of July 1, Defendants had

stated the exact opposite, that they were available: I have a deposition in another case on

July 11 and a pretrial conference in that same case on July 18. So, those dates do not

work for me. If we postpone the July 14 hearing on the motion to transfer then I can do

[Plaintiff expert] Levison on the 14th.

Defendants did not file a motion for protective order on July 11. They have yet to file



18/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

one.

19. Defendants inappropriate delay tactic has prejudiced Plaintiff as intended. Given that

discovery closes on August 17, 2008, Plaintiff had set up a dense schedule of depositions which took up

every Tuesday, Wednesday and Thursday remaining in discovery. The first depositions were scheduled

to occur on July 15, 16 and 17. Plaintiff will now need to find alternate dates for these depositions in an

already tightly-packed deposition schedule.

20. I spent 10.7 hours thus far in connection with this motion and the underlying dispute, as

follows:

Date Task Billed Time (hrs)

6/30/08 Email to Mr. Wasser re depo scheduling. 0.5

7/1/08 Email to Mr. Wasser re depo scheduling. 0.2

7/2/08 Read fax from Mr. Wasser re deposition abuse.

Email to Mr. Wasser re deposition abuse.

0.5

7/3/08 Emails to/from Mr. Wasser re depo scheduling

and alleged depo abuse.

0.2

7/3/08 Finalize and serve deposition notices on Mr.

Wasser.

2.4

7/10/08 Read fax from Mr. Wasser re depos, Rog3,

RFA1.

0.2

7/11/08 Email to Mr. Wasser re MPO and depositions. 0.5

7/11/08 Read fax from Mr. Wasser re moton for

protective order.

0.2

7/13/08 Read fax from Mr. Wasser re moton for

protective order.

0.2

7/13/08 Draft ex parte application to shorten time and

motion to compel depositions.

5.8



19/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I live in Los Angeles, CA and anticipate spending an additional 3 hours driving to and from

Bakersfield, CA (distance of 97.9 miles per www.maps.google.com), and an additional estimated 1 hour

preparing for and attending the hearing before this Court.

21. My regular rate for legal services is $400 per hour. I have charged, and been paid by,

Plaintiff David F. Jadwin $400 per hour in this action.

22. Plaintiff seeks sanctions totaling $5,880 in compensation for the 10.7 hours charged

($4,280), and 4 hours anticipated to be charged ($1,600), in connection with this motion and underlying

dispute.

23. My rate is reasonable and consistent with those charged in the Los Angeles area by

attorneys of similar skill and experience. I received my B.A. with honors from Harvard University in

1991 and my J.D. with honors from the University of Michigan Law School in 1995. I was admitted to

the New York State Bar in 1996 and worked as an associate in the New York office of Shearman &

Sterling from 1995 to 1996. I worked as an associate in the New York office of Sullivan & Cromwell

from 1996 to 1997. After a brief leave of absence from practicing law from 1997 to 1999, I returned to

active practice as the General Counsel of Tcom America, Inc., a technology venture in Silicon Valley

from 1999 to 2002. From 2002 to 2004, I worked as a senior associate for Kim & Chang, a law firm

located in Seoul, Korea. In 2005, I was admitted to the California Bar. I have been the principal of Law

Office of Eugene Lee since 2005.

24. I attempted several times to secure local counsel to prosecute Plaintiffs suit but was

ultimately unsuccessful. On September 18, 2006, I sent an email to over 600 members of the California

Employment Lawyers Association seeking co-counsel. No attorneys from Fresno responded. On

February 28, 2007, I called Andrew Jones, Esq. in Fresno, CA, requesting his involvement as local

counsel in this action. Mr. Jones declined.

//

//

//

//

///



20/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I declare under penalty of perjury under the laws of the State of California and of the United

States that the foregoing is true and correct.

Dated: July 14, 2008 LAW OFFICE OF EUGENE LEE

By: ____________________________________Eugene D. Lee

Attorney for DefendantDAVID F. JADWIN, D.O.



21/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Doc. 118 Declaration of Mark WasserEXHIBIT 2. Meet and confer email from Plaintiffs attorney to Defendants

attorney, dated 6/30/08

EXHIBIT 3. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 7/1/08

EXHIBIT 4. Meet and confer fax from Defendants attorney to Plaintiffs attorney,dated 7/2/08

EXHIBIT 5. Meet and confer email from Plaintiffs attorney to Defendantsattorney, dated 7/2/08

EXHIBIT 6. Plaintiffs Deposition Subpoenas, served by fax on 7/3/08

EXHIBIT 7. Meet and confer fax from Defendants attorney to Plaintiffs attorney,dated 7/10/08

EXHIBIT 8. Meet and confer email from Plaintiffs attorney to Defendantsattorney, dated 7/11/08

EXHIBIT 9. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 7/13/08

MTC000001



22/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT 1:Doc. 118 Declaration of Mark Wasser

MTC000002



23/90


MTC000003


12

345

202122232425262728

Mark A. Wasser, CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 958146) qqq-OqlJU444-6405

)))))))))))) Date Action Filed: January 6, 2007) Trial Date: December 3, 2008))

I, Mark A. Wasser, declare as follows:1. I am counsel of record for Defendants and I am familiar with this proceeding.

facts in this declaration are true and correct ofmy own personal knowledge and I can testifycompetently to them if called as a witness.

-1-DECLARATION OF MARK A. WASSER IN SUPPORT OFDEFENDANTS' EX PARTE APPLICATION FOR ORDER

SHORTENING TIME REMOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008


24/90


MTC000004


a

names,

5,

to

Clls,ClOsea onw r t n e : s s ( ~ s are to

Olson-Buchanan can cornpJ,ete

2345

1 2. The original scheduling order (filed May 31,2007) was modified by stipulation of2 Court on November 20, 2007 ("Scheduling Order"). A true and correct

4

21 focused on Defendants' affirmative defenses and Plaintiff has done little to develop any evidence22 to support the allegations in his complaint.23 7. Defendants intend to schedule the examination of Plaintiff, either by noticed motion24 under Rule 35 or stipulation, before the Supplemental Disclosure on June 4, 2008. The reports25 should be available shortly after the examinations.26 8. It is not clear that the reports of examining physicians are subject to the disclosure27 requirements ofRule 26(a)(2)(B). Although the Ninth Circuit does not appear to have addressed28

-2-DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FORORDER

SHORTENINGTIME REMOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008


25/90


MTC000005


1 this issue, this District has. In Minnard v. Rotech Healthcare Inc., CIY. NO. S-06-1460 GEB

ex

permiSSJlOn to serve

Honorable Gregory

Wasser

CaL Jan. 15, 2008),JLd'UU 6 - r / ." ,. U

Pursuant to

13. A copy of

3

92021 expert reports after May 5, 2008 is attached hereto as Exhibit B.22 14. Defendants respectfully suggest the following filing, service and hearing dates for the23 motion:2425262728

Filing ofMotion:Plaintiff's Opposition, if any:Defendants' Reply:Hearing on Motion:

May 5, 2008.May 12,2008.WAIVED.

-3-DECLARATION OF MARK A WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER

SHORTENING TIME REMOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTERMAY 5,2008


26/90


MTC000006


1 15. Pursuant to Local Rule 6-144(b), one prior continuance was granted upon stipulation

345

202122232425262728

above.

-4-

Defendants do not propose to modify

were

DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FORORDERSHORTENING TIME REMOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008


27/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT 2:Meet and confer email from Plaintiffs attorney to Defendants attorney, dated 6/30/08

MTC000007



28/90

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Monday, June 30, 2008 2:31 PMTo: '[email protected]'Subject: Depositions

Follow Up Flag: Follow upFlag Status: Flagged

Mark,

IaskedyoufordatesofavailabilitytodeposeyourexpertslastMonday.Oneweeklater,Ivereceivedonedatefromyou

July7 forDr.Burchuk,andnothingmore.AfterIexplainedImnotavailableonJuly7,Ididntbackheardfromyou.

Itshouldnttakethislongtogivemedatesofavailabilityforyourexperts.Iwillgoaheadandnoticetheirdepositions

todaysincemyattempttoworkthedatesoutwithyouhasfailed.

Itisunfortunatethatyouareunwillingtocooperatewithmeonsomethingassimpleasschedulingexpertdepos,butit

comesasnosurprisegivenyourconductinthisactiontodate.

IhaveheardbackfromMs.Rizzardi.Sheisavailabletobedeposedallofnextweek,from7/7to7/11,andalsoon7/14

to7/16.Atthispoint,ImstilltryingtoreachDr.Weiss,whowastravelinglastIheard.Ihopetohearbackfromhim

soonthough.IvealreadysuppliedyoudatesforDr.ReadingandMs.Levisonbuthaventheardbackfromyou.

Also,Plaintiffwouldliketodepose:

SupervisorRayWatson(4hours)

SupervisorBarbaraPatrick(4hours)

PeterBryan(fullday)

DavidCulberson(4hours)

IrwinHarris(fullday)

ScottRagland

(4

hours)

JenniferAbraham(4hours)

RoyceJohnson(4hours)

JosephMansour(4hours)

MaureenMartin(4hours)

AlbertMcBride(4hours)

PhilipDutt(fullday)

SavitaShertudke(4hours)

SandraChester(4hours)

ToniSmith(4hours)

KarenBarnes(fullday)

ArleneRamos

Aninion

(4

hours)

IfitwouldeaseschedulingconflictsforDefendants,Plaintiffiswillingtowaivethestipulationtohavingdeposonlyon

T/W/Thandiswillingtoconsideranydayoftheweek.

PleaseletmeknownolaterthanWednesdaywherethingsstandregardingtheforegoing.Timeisrunningshortand

PlaintiffcannotwaitaweekforDefendantstocomebacktoPlaintiffwithnothingmorethanasingledateforasingle

deponent.

Sincerely,

MTC000008



29/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT 3:Meet and confer emails between Plaintiffs attorney and Defendants attorney, dated 7/1/08

MTC000009



30/90

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Tuesday, July 01, 2008 4:29 PMTo: '[email protected]'Subject: Nonexpert DeposAttachments: Depositions

Mark,

Pleaseseeattachedemail.

Sincerely,

Gene Lee

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

L A W O F F I C E O F E U G E N E L E E

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

5 5 5 W E S T F I F T H S T . , S T E . 3 1 0 0L O S A N G E L E S , C A 9 0 0 1 3T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]

W e b s i t e : www.LOEL.comB l o g : www.CaLaborLaw.com

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~This message is sent by a law firm and may contain information that is privileged or confidential. If you received thistransmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

From: Mark Wasser [mailto:[email protected]]Sent: Tuesday, July 01, 2008 4:24 PMTo: [email protected]: RE: Dr. Reading

Gene,

What non-expert depos?

I agree we should handle everything at once but I do not recall any non-expert depos that you have requested.

Have I missed something?

Mark

From: Eugene D. Lee [mailto:[email protected]]Sent: Tuesday, July 01, 2008 4:12 PMTo: [email protected]: RE: Dr. Reading

MTC000010



31/90

2

Mark,

WeisssaidhesavailablefirstweekofAugust.YounowhavedatesofavailabilityonallofPlaintiffsexperts.

IstillneedtoheardatesfromyouonthenonexpertdeposandDr.Allen.Isuggestwehandleeverythingatonce.

Sincerely,

Gene Lee

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



5 5 5 W E S T F I F T H S T . , S T E . 3 1 0 0L O S A N G E L E S , C A 9 0 0 1 3

T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]



From: Mark Wasser [mailto:[email protected]]Sent: Tuesday, July 01, 2008 2:34 PMTo: [email protected]: RE: Dr. Reading

Gene,

Sarkisian is available July 23 and 24. We can set Burchuk for after his return from vacation. He returns on July 27. I amin trial July 29 to July 31 but will be available after that. I have not yet heard from Allen but will keep following up.

I have a deposition in another case on July 11 and a pretrial conference in that same case on July 18. So, those dates donot work for me. If we postpone the July 14 hearing on the motion to transfer then I can do Levison on the 14

th.

So, we have possible dates for Sarkisian, Levison and Burchuk. We still need dates for Reading, Weiss and Allen.

Mark

From: Eugene D. Lee [mailto:[email protected]]Sent: Monday, June 30, 2008 3:56 PMTo: [email protected]: Dr. Reading

MTC000011



32/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT 4:Meet and confer fax from Defendants attorney to Plaintiffs attorney, dated 7/2/08

MTC000014



33/90

02 08 03:04p Mark Wasser 916-444-6405 p.1

The Law Offices of Mark A. Wasser400 Capitol Mall, Suite 2640Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405

FaxTo: Eugene LeeFax: (213) 596-0487Phone: (213) 992-3299

From: Mark A. WasserPages: 3 (including cover page)Date: 7/2/08

Re: Jadwin v. Connty ofKem CC:

o Urgent 0 For Review 0 PleaseComment 0 Please Reply 0 Please Recycle Comments:Please see attached letter.

MTC000015


l 02 08 03:04p Mark Wasser 916-444-6405 p.1

The Law Offices of MarkA. Wasser400 Capitol Mall, Suite 2640Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405

FaxTo: Eugene LeeFax: (213) 596-0487Phone: (213) 992-3299

From: Mark A. WasserPages: 3 (including cover page)Date: 7/2/08

Re: Jadwin v. Connty ofKem CC:

o Urgent 0 For Review 0 PleaseComment 0 Please Reply 0 Please Recycle Comments:Please see attached letter.


34/90

02 08 03:05p Mark Wasser 916-444-6405

UlwOfflcesofMARKA. WASSER

400 CapitOl Mall, Suite 2640Sacramento, California 95814

Office: 916-444.6400 Fax: [email protected]

p.2

July 2, 2008

VIA FACSIMILE AND FIRST CLASS MAIL

Eugene LeeLaw Offices of Eugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et aJ.Dear Gene:

It appears we have come face-to-face with the discovery limitations again. Asyou know, Rule 30 limits to 10 the number of deposit ions that can be taken in a case. Asyou also know, the Scheduling Order memorializes Defendants' agreement to grantPlaintiff "relief' from that limitation. As we were with the interrogatories a few weeksago, we are now at a point where we need to visit this issue.

By my count, Plaintiffhas taken 16 depositions. Clearly Plaintiff has beengranted "relief' from the 10-deposition limit. Your e-mail of June 30 proposes takinganother 17 depositions and does not reference tbe expert depositions you have asked meto schedule. You have requested to take three expert depositions and, after Defendants'supplemental expert disclosures, I expect you will want to take several more. So, addingall these up, Plaintiff appears to want to schedule more than 20 additional depositions ontop of the 16 already taken. Nothing about this case warrants the taking of 36 depositionsby one side.

The Defendants have so far taken one deposition and anticipate takingapproximately 5 more. Reviewing the list of deponents you included in your June 30 email, I note you are proposing to take the depositions of two County supervisors - onecurrent and one former. Given the extent to which supervisors' testimony is protected bylegislative immunity, it is questionable how useful their depositions will be. Your listalso includes Karen Barnes, who, as you know, is one oftlie Defendants' attorneys. Herdeposition may be oflimited use.

MTC000016


02 08 03:05p Mark Wasser 916-444-6405

UlwOfflcesofMARKA. WASSER

400 CapitOl Mall, Suite 2640Sacramento, California 95814

Office: 916-444.6400 Fax: [email protected]

p.2

July 2, 2008

VIA FACSIMILE AND FIRST CLASS MAIL

Eugene LeeLaw Offices of Eugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et aJ.Dear Gene:

It appears we have come face-to-face with the discovery limitations again. Asyou know, Rule 30 limits to 10 the number of deposit ions that can be taken in a case. Asyou also know, the Scheduling Order memorializes Defendants' agreement to grantPlaintiff "relief' from that limitation. As we were with the interrogatories a few weeksago, we are now at a point where we need to visit this issue.

By my count, Plaintiffhas taken 16 depositions. Clearly Plaintiff has beengranted "relief' from the 10-deposition limit. Your e-mail of June 30 proposes takinganother 17 depositions and does not reference tbe expert depositions you have asked meto schedule. You have requested to take three expert depositions and, after Defendants'supplemental expert disclosures, I expect you will want to take several more. So, addingall these up, Plaintiff appears to want to schedule more than 20 additional depositions ontop of the 16 already taken. Nothing about this case warrants the taking of 36 depositionsby one side.

The Defendants have so far taken one deposition and anticipate takingapproximately 5 more. Reviewing the list of deponents you included in your June 30 email, I note you are proposing to take the depositions of two County supervisors - onecurrent and one former. Given the extent to which supervisors' testimony is protected bylegislative immunity, it is questionable how useful their depositions will be. Your listalso includes Karen Barnes, who, as you know, is one oftlie Defendants' attorneys. Herdeposition may be oflimited use.


35/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT 5:Meet and confer email from Plaintiffs attorney to Defendants attorney, dated 7/2/08

MTC000017



36/90

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, July 02, 2008 10:13 PMTo: '[email protected]'Subject: Depositions

Mark,

Yourfaxoftodaywascutoff.Icouldntreadit.Nevertheless,fromthefragmentthatdidtransmit,IgatheryouarecomplainingthatPlaintiffisrequestingtoomanydepositions.Asyoumayrecall,thatargumentdidntworkwiththeinterrogatoriesanditwontworkwithdepositions.ThenotionthatPlaintiffsrequesttodeposedefendantsissomehowabusivelacksmerit.TheotherdeponentsarekeywitnessesforobviousreasonswhichPlaintiffhasdiscussedwithDefendantsalmostfromthebeginningofdiscovery.IfDefendantswerewillingtostipulatetocertainfacts,thatwouldbeadifferentstory.IfDefendantswerewillingtostipulatetoauthenticationandbusinessrecordsexceptionofdocuments,somedeposmightnotbenecessary.HoweverDefendantshavemadeitapointtobeasuncooperativeandobstructiveaspossible,refusingtostipulatetoeventhesimplestofthings.Asaresult,therehavebeenexceedinglyfewstipulationsinthisaction.ThemostrecentexampleofthisisdefendantsrefusaltostipulatetoPlaintiffsfilingoftheSecondAmendedComplaint.NowDefendantscomplaintPlaintiffisrequestingtoomanydepositions.Defendantscannothaveitbothways.ItisDefendantswhohavechosentomakethisactionascostlyandburdensomeaspossibleforallconcerned.Plaintiffwillproceedwithnoticingthedepositions.Ifthisneedstogotomotionlitigation,thatwouldbeapatentwasteoftheCourtstime.However,itwouldbeentirelyconsistentwithDefendantslongstandingstrategyofpatentlyobstructingandabusingthediscoveryprocessandforcingeventhesmallestdisputestogotomotionlitigation.Inanycase,ifthatiswhatisnecessary,thensobeit.Attheconclusionofthisaction,PlaintifffullyintendstoseekstatutoryattorneyfeesforthetimespentdealingwithDefendantsabusivetacticsandintentionalobstructionism.Sincerely,

Gene Lee

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



5 5 5 W E S T F I F T H S T . , S T E . 3 1 0 0L O S A N G E L E S , C A 9 0 0 1 3

T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]



MTC000018



37/90


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT 6:Plaintiffs Deposition Subpoenas, served by fax on 7/3/08

MTC000019



38/90

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

(213) 992 -3299TELEPHONE LAWE U G

OFFICEENE L OFE [email protected]

EMAIL

(213) 596 -0487FACSIMILE

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

To:Fax Number: 2135960487

Pages: 11 (including cover page)Re: Jadwin/KC: Deposition Subpoenas/Notices

Comments:Mark,

From: Law Office of Eugene LeeDate: 07/03/2008

Attached a re depo subpoenas fo r 17 non-exper t deponents - in four faxi n s t a l lmen t s .Please con t ac t me if you have ques t ions .Have a pleasan t 4th o f Ju ly weekend.

MTC000020



(213) 992 -3299TELEPHONE LAWE U G

OFFICEENE L OFE [email protected]

EMAIL

(213) 596 -0487FACSIMILE

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

To:Fax Number: 2135960487

Pages: 11 (including cover page)Re: Jadwin/KC: Deposition Subpoenas/Notices

Comments:Mark,

From: Law Office of Eugene LeeDate: 07/03/2008

Attached a re depo subpoenas fo r 17 non-exper t deponents - in four faxi n s t a l lmen t s .Please con t ac t me if you have ques t ions .Have a pleasan t 4th o f Ju ly weekend.


39/90


~ A Q 8 8 (Bey 12106) Spbpoena in aGiyj! CaseIssued by the

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

David F. Jadwin, D.O., F.CAP.v.

County of Kern

TO: Royce Johnson, MD.

SUBPOENA IN A CIVIL CASECase Number:' 1:07-cv-26-0WW-TAG

D YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below totestifY in the above case.

PLACE OF TESTIMONY COURTROOM

DATE AND TIME

[i f YOU ARE COMMANDED to appear at the place, date, and time specified below to testifY at the taking of a depositionin the above case.

PLACE OF DEPOSITION Holiday Inn, 801 Truxton Ave, Bakersfield, CA 93301, (661) 323-1900 DATE AND TIME7/24/20089:00 am

D YOU ARE COMMANDED to produce and permit inspection and copying ofthe following documents or objects at theplace, date, and time specified below (list documents or objects):

PLACE I_D_A_TE,..,-AND_I_ME----,.,,--,..,---,- _D YOU ARE COMMANDED to permit inspection ofthe following premises at the date and time specified below.PREMISES I_D_A_TE_AND_I_ME _

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers,directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, thematters onwhich the person will testify. Federal Rules of Civil Procedure, 30(b)(6).I S S U I N P \ ! E ~ l s SIGNATURE AND TITLE ONDICATEIF ATTORNEYFORPLAINTIFF OR DEFENDANT) DATE'Ai(-fjJ 7/3/2008I S S U I ~ OFFICERSNAME, ADDRESS AND PHONE NUMBEREugene D. Lee, Law Office of Eugene Lee, 555West Fifth St., SUite 3100, Los Angeles, CA 90013; (213) 992-3299

(See Rule45, Federal Rules of Qvil Procedure, Subdivisions (c), (d), and (e), on next page)

1 If action is pending in district other than district of issuance, state district under case number.

MTC000021






County of Kern

TO: Royce Johnson, MD.




DATE AND TIME


PLACE OF DEPOSITION Holiday Inn, 801 Truxton Ave, Bakersfield, CA 93301, (661) 323-1900 DATE AND TIME7/24/20089:00 am

D YOU ARE COMMANDED to produce and permit inspection and copying ofthe following documents or objects at theplace, date, and time specified below (list documents or objects):

PLACE I_D_A_TE,..,-AND_I_ME----,.,,--,..,---,- _D YOU ARE COMMANDED to permit inspection ofthe following premises at the date and time specified below.PREMISES I_D_A_TE_AND_I_ME _

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers,directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, thematters onwhich the person will testify. Federal Rules of Civil Procedure, 30(b)(6).I S S U I N P \ ! E ~ l s SIGNATURE AND TITLE ONDICATEIF ATTORNEYFORPLAINTIFF OR DEFENDANT) DATE'Ai(-fjJ 7/3/2008I S S U I ~ OFFICERSNAME, ADDRESS AND PHONE NUMBEREugene D. Lee, Law Office of Eugene Lee, 555West Fifth St., SUite 3100, Los Angeles, CA 90013; (213) 992-3299




40/90

- - rom: aw ce o ugene ee g : pmAgaS (Rey 12/Q) Suhpoena jn a (;jyj! Case

PROOF OF SERVICE

SERVEDSERVED ON (pRINTNAME)

DATE7/3/2008

PLACELaw Offices of Mark Wasser, 400 Capitol Mall, Ste2640, Sacramento, CA 95814MANNER OF SERVICE

Royce Johnson, MD., by and through, MarkWasserSERVED BY (pRINTNAME)Eugene D. Lee

Facsimile & U.S. Mail, First Class to MarkWasser perstipulationTITLE

Principal, Law Office of Eugene Lee

DECLARATION OF SERVERI declare underpenalty ofperjury under the laws oftheUnited States ofAmerica that the foregoing information contained

in the Proof of Service is true and correct.

Executed on 7/3/2008DATE

Eugene D. LeeADDRESS OF SERVER555 W 5th St., Ste. 3100, Los Angeles, CA 90013

Rule 45, Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), as amended on December I, 2006:(c) PROTECTION OFPERSONS SUBJECT TO SUBPOENAS.

(1) Aparty or an attorney responsible for the issuance and service ofa subpoena shall takereasonable steps to avoid imposing tmchie burden or expense on a person subject to thatsubpoena. The court on behalfof which the subpoena wasissued shall enforce this duty andimpose upon the party or attorney in breach of this duty an appropriate sanction, which mayinclude, but is notlimitedto, lost earnings anda reasonable attorney's fee.

(2) (A) A person commanded to prochice and pennit inspection, copying, testing, orsamplingof designatedelectronically storedinformation, books, papers, documentsor tangiblethings, or inspection of premises need not appear in person at the place of production orinspectionunless commandedto appear for deposition, hearing or trial.

(B) Subjectto paragraph (d)(2)ofthismle, aperson commandedto prochice andpermitinspection, copying, testing, or samplingmay,within14 days after service of the subpoena orbeforethe time specifiedfor compliance if such time is lessthan 14 days after seIVice, seIVeupon theparty or attorney designatedin the subpoenawritten oQi ection to prochicing any or allof the designatedmaterialsor inspectionof the premises- orto producing electronically storedinformation in theform orfonns requested. I f oQi ectionis made,the partyseIVingthesubpoenashall not be entitledto inspect, copy, test, or samplethe materialsor inspect the premisesexceptpursuant to an order of the courtbywhichthe subpoenawas issued If objectionhas been made,the party seIVing the subpoena may, upon notice to the person commandedto prochice, moveat any time for an order to compel the prochiction, inspection, copying, testing, or sampling.Such an order to compel shall protectanyperson whois not apartyor anofficerof aparty fromsignificant expense resulting from the inspection, copying, testing, or sampling commanded.

(3) (A) Ontimelymotion, thecourt bywhicha subpoenawas issuedshall quash ormodifythe subpoena if it(i) fails to allow reasonable time for compliance;(ii) requires a personwho isnot a party or an officer of a party to travel to a place

morethan 100milesfrom theplacewhere thatpersonresides, is employedorregulariytransactsbusinessin person, exceptthat, subjectto theprovisionsof clause(c)(3)(B)(iii) of thisrme, sucha person may in order to attend trial be commanded to travel from any such place within thestate in which the trial is held;

(iii) requires disclosureof privileged or other protectedmatter andno exception orwaiver applies; or(iv) subj ects a personto unchie burden.

(B) If a subpoena(i) requires disclosureof atrade secret or other confidential research, development,

or commercial infonnation, or(ii) requires disclosure of an l llue ta ined expert' s opinion or infonna tion not

describing specific eventsor occurrencesin disputeandresuiting from theexpert'sstudy madenot atthe request of any party, or

(ii i) requires a personwho isnot aparty oran officerof apartyto incur substantialexpense to travel more than100 milesto attend trial, the courtmay, to protect aperson subject

to or affectedby the subpoena, quash or modify the subpoena or, if the party in whose behalfthe subpoena is issued shows a substantial need for the testimony or material thatcall1lOt beotherwise met without undue hardship and assures that the person to whom the subpoena isaddressedwill be reasonablycompensated, the court may order appearance or prochiction onlyupon specified conditions.(d) DUTIES IN RESPONDING TO SUBPOENA.

(1) (A) A personrespondingto a subpoena to produce documents shall prochice them asthey arekeptin theusual courseof business or shall organize andlabel them to correspondwiththe categories in the demand

(B) If asubpoenadoes notspecifythefonn orformsfor producing electronically storedinformation, a person responding to a subpoena must produce the infonnation in a fonn orforms in which the person ordinarily maintains itor i n a form or forms that are reasonablyusable.

(C) A person respondingto a subpoenaneednotproducethe same electronically storedinformation in more than oneform.

(D) A person responding to a subpoena neednot provide discoveryof electronicallystored informationfrom sources thatthe person identifiesas not reasonably accessible becauseof undue burden or cost. Onmotion to compel discovery or to quash, the person from whomdiscovery is sought mustshow thatthe information sought is not reasonably accessible becauseof undue burden or cost. If that showing is made, the court may nonetheless order discoveIYfrom suchsources ifthe requestingparty showsgood cause, considering thelimitationsofRule26(b)(2)(C). The court may specify conditions for the discovery.(2) (A)VVllen infonnation suQi ect to a subpoena is withheldon a claimthatit isprivilegedor subject to protection as trial-preparation materials, the claim shall be made expressly andshall be supportedby a description of the nature of the documents, commllllications, or thingsnot producedthat is sufficient to enable the demanding party to contest the claim.

(B) Ifinfonnation is produced in response to a subpoena that is subject to a claim ofprivilege or of protection astrial-preparationmaterial, theperson making the claim may notifyany party that received the infonnationof the claim and the basis for i t. After being notified,a party must promptlyreturn, sequester, or destroy the specifiedinformation andany copiesithas and may not use or disclose theinfonnation until the claimis resolved. A receiving partymay promptly presentthe infonnation to the court llllder seal for a determinationof the claim.If thereceiving party disclosedthe infonnation before being notified, it must take reasonablesteps to retrieve it. The person who prochJced theinformation must preserve theinfonnationuntil the claimis resolved.(e) CONTEMPT. Failure of any person without adequateexcuseto obeya subpoenaseIVedupontha t person may be deemed a contempt of the court from which the subpoena issued Anadequate cause for fai lure to obey exists when a subpoena purports to require a nonparty toattend or produce at a place not within the l imit s provided by clause (ii) of subparagraph(c)(3)(A).

MTC000022


- - rom: aw ce o ugene ee g : pmAgSS (Rey 121062 Suhpoena in aCjyjl cm

PROOF OF SERVICE

SERVEDSERVED ON (pRINT NAME)

DATE7/3/2008

PLACELaw Offices of MarkWasser, 400 Capitol Mall, Ste2640, Sacramento, CA 95814MANNER OF SERVICE

Royce Johnson, M.D., by and through, MarkWasserSERVED BY (pRINT NAME)Eugene D. Lee

Facsimile &U.S. Mail, First Class to MarkWasser perstipulationTITLE


DECLARAnON OF SERVERI declare under penaltyofperjury under the laws ofthe UnitedStates ofAmerica that the foregoing information contained

in the Proof of Service is true and correct.


Eugene D. LeeADDRESS OF SERVER555 W 5th St., Ste. 3100, Los Angeles, CA 90013

Rule 45, Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), as amended on December 1,2006:(c) PROTECTION OFPE-RSONS SUBJE-CTTO SUBPOENAS.

(1) A party or an attorney responsiblefor lbe issuance and service of a subpoenashalltakereasonable steps to avoid imposing nndne burden or expense on a person subject to thatsubpoena. The court on behalf of which lbe subpoena was issued shall enforce this duty andimpose upon the party or attorney in breach of this duty 811 appropriate s 8 1 1 c t i o n ~ which mayinclude, bu t is not limited to, lost earnings and a reasonable attorney's fee.

(2) (A) A per so n commanded to produce and permit inspection, copying, testing, orsampling of designatedelectronicallystored information,books, papers, documents ortangiblethings, or inspection of premises need not appea r i n per son at the place of production orinspection unless commanded to appear for deposition, hearing or trial .

(B) Subjectto paragraph (d)(2) ofthi srule,a person commanded to prodnce andpermitinspection, copying,testing, or samplingmay,within 14 days after service oflbe subpoena orbefore the time specified for compliance if weh time is less than 14 days after service, serveuponlbe party or attorney designated in the subpoena written oQi ection to prodncing any or allof the designatedmaterialsor inspection oflbepremises- or to producing electronically storedinformation in lbeform or forms requested. I foQi ecti onis made, the party setvingthe subpoenashall not be entitled to i n s p e c t ~ copy test l or sample the materials orinspect the premises exceptpursuant to anorder oflbe court bywhichlbe subpoena was issued I fobjection has beenmade,the party serving the subpoena may, upon notice to the person commandedto produce, moveat any t ime for an order to compel the prodnction, inspection, copying, testing, or sampling.Such an order tocompel shall protect any personwho is no t aparty or an officer of a party fromsignificant expense resulting from the inspection, copying,testing, or sampling commanded.

(3) (A) On timely motion, lbe court by whicha subpoenawas issued shall quash or modifylbe subpoena if it(i) fails to allow reasonable time for compliance;(ii) requires a personwho is no t a party or an officer of a party to travelto a piace

more lban100 milesfrom lbe placewherethatpersonresides,is employedorregularly transactsbusiness in person, exceptthat, subjectto theprovisions of clause(c)(3)(B)(iii) of thisrule,sucha personmay in order to attend trial be commanded to t rave l from any such place wilbin thestate in which lbe trial is held;

(iii) requires disclosure of pri vileged or olber protectedmatter andno exception orwaiver applies; or

(iv) subjects a person to undue burden.(B) I f a subpoena(i) requires disclosure of a tradesecretor other confidentialresearch, development,

or commerci al information, or(ii) requires disclosure of an nnretained expert's opiuion or information no t

describing specificevents oroccurrences in dispute and resulting from lbeexpert's studymadenot at the request of any party, or

(iii) requires a person who is not a party or an officer of a party to incur substanti alexpenseto travel more than 100 miles to attend trial, lbe courtmay, to protect a person subject

to or affected bylbe subpoena, qu.sh or modifylbe subpoena or, if the p.rty in whose behalflbe subpoena is issued shows a substantial need for lbe testimony or material lbat cannot beolberwise met without undue hardship and assures lbat the person to whom lbe subpoena isaddressed will be reasonably compensated, lbe court may order appearance or prodnctiononlyupon specified conditions.(d) DUTIES IN RESPONDING TO SUBPOENA.

(1) (A) A personresponding to a subpoena to produce documents shall prodnce lbem astheyare kept inthe usual course of businessor shall organize andIabelthem to correspondwithlbe categories in lbe demand

(B) I f a subpoena does not specify lbe form orforms forproducing electronicallystoredinformation, a person responding to a subpoena must produce lbe information in a form orforms in which the person ord inar ily maintains it or in a form or forms that are reasonablyusable.

(C) A person respondingto a subpoenaneed notproduce lbesame electronically storedinformation in more than one form.

(D) A person responding to a subpoena need not provide discovery of electronicallystored information from sources lbat the person identifies asnot reasonably accessiblebecauseof undue burdenor cost. Onmotion to compel discovery or to quash, the person from whomdiscovery is soughtmust show lbat lbe information sought isnot reasonably accessiblebecauseof undue burden or cost. I f lbat showing is made. lbe courtmay nonelbeless order discoveryfrom such sources ifthe requestingparty showsgood cause,considering lbe limitations ofRul e26(b)(2)(C). The court may specify conditions for the discovery.(2) (A) When information suQi ecllo a subpoenais wilbheld on a claim lbat i t is privilegedor subject to protection as trialpreparationmaterials, lbe claim shall be made expressly andshall be supportedby a description of the nature oflbe documents, communications, or lbingsnotproducedlbat is sufficient to enabl e lbe demanding party to contest lbe claim.

(B) I f information is producedin response to a subpoena that is subject to a claim ofprivilege or of protection as trial-preparation material, lbe personmaking lbe cl aim may notifyany party lbat received lbe information of the claim and the basis for it. After being notified,a partymust promptly return, sequester, or destroy lbe specifiedinformation and any copies ithas andmay not use or disclose the infonnation until the claim is resolved. A receiving partymay promptly presentthe infonnation to the court lll1der seal for a determination of the claim.I f lbe receiving party disclosed lbe information beforebeing notified, it mustlake reasonablesteps to retrieve it. The person who producedlbe informationmust preserve lbe informationuntillbe claim is resolved.(e) CONTEMPT. Failure of any person without adequateexcuseto obey a subpoena setved uponlbat person may be deemed a contempt of lbe court from which the subpoena issued Anadequate cause for failure to obey exists when a subpoena purports to require a nonparty toa tt end o r p roduce at a p la ce no t within lbe l imits provided by clause (ii) of subparagraph(c)(3)(A).


41/90





County of Kern

TO: Jennifer Abraham, MD.




DATE AND TIME


PLACE OF DEPOSITION Holiday Inn, 801 Truxton Ave, Bakersfield, CA 93301, (661) 323-1900 DATE AND TIME8/6/2008 2:00 pmD YOU ARE COMMANDED to produce and permit inspection and copying ofthe following documents or objects at the

place, date, and time specified below (list documents or objects):

PLACE I_D_A_TE,..,-AND_ I_ME----,.,,--,..,---,- _D YOU ARE COMMANDED to permit inspection ofthe following premises at the date and time specified below.PREMISES I_D_A_TE_AND_I_ME _

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers,directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, thematters onwhich the person will testify. Federal Rules of Civil Procedure, 30(b)(6).I S S U I N G O F R ~ F f ; i f , f : N A T U R E AND TITLE ONDICATEIF ATTORNEYFOR PLAINTIFF ORDEFENDANT) DATE

~ O ~ 7/3/2008ISSUING q ' F ~ I C E R S NAME, ADDRESS AND PHONE NUMBEREugene b" Lee, Law Office of Eugene Lee, 555West Fifth St., Suite 3100, Los Angeles, CA 90013; (213) 992-3299



MTC000023






County of Kern

TO: Jennifer Abraham, MD.




DATE AND TIME


PLACE OF DEPOSITION Holiday Inn, 801 Truxton Ave, Bakersfield, CA 93301, (661) 323-1900 DATE AND TIME8/6/2008 2:00 pmD YOU ARE COMMANDED to produce and permit inspection and copying ofthe following documents or objects at the

place, date, and time specified below (list documents or objects):

PLACE I_D_A_TE,..,-AND_ I_ME----,.,,--,..,---,- _D YOU ARE COMMANDED to permit inspection ofthe following premises at the date and time specified below.PREMISES I_D_A_TE_AND_I_ME _

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers,directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, thematters onwhich the person will testify. Federal Rules of Civil Procedure, 30(b)(6).I S S U I N G O F R ~ F f ; i f , f : N A T U R E AND TITLE ONDICATEIF ATTORNEYFOR PLAINTIFF ORDEFENDANT) DATE

~ O ~ 7/3/2008ISSUING q ' F ~ I C E R S NAME, ADDRESS AND PHONE NUMBEREugene b" Lee, Law Office of Eugene Lee, 555West Fifth St., Suite 3100, Los Angeles, CA 90013; (213) 992-3299




42/90

- - rom: aw ce o ugene ee g : pmAgaS (Rey 12/Q) Suhpoena jn a (;jyj! Case

PROOF OF SERVICE

SERVEDSERVED ON (pRINTNAME)

DATE7/3/2008

PLACELaw Offices of Mark Wasser, 400 Capitol Mall, Ste2640, Sacramento, CA 95814MANNER OF SERVICE

Jennifer Abraham, MD., by and through, MarkWasserSERVED BY (pRINTNAME)Eugene D. Lee

Facsimile & U.S. Mail, First Class to MarkWasser perstipulationTITLE


DECLARATION OF SERVERI declare underpenalty ofperjury under the laws oftheUnited States ofAmerica that the foregoing information containedin the Proof of Service is true and correct.


ADDRESS OF SERVER555 W 5th St., Ste. 3100, Los Angeles, CA 90013

Rule 45, Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), as amended on December I, 2006:(c) PROTECTION OFPERSONS SUBJECT TO SUBPOENAS.

(1) Aparty or an attorney responsible for the issuance and service ofa subpoena shall takereasonable steps to avoid imposing tmchie burden or expense on a person subject to thatsubpoena. The court on behalfof which the subpoena wasissued shall enforce this duty andimpose upon the party or attorney in breach of this duty an appropriate sanction, which mayinclude, bu t i s not limited to, lost earnings and a reasonable attorney's fee.

(2) (A) A person commanded to prochice and pennit inspection, copying, testing, orsamplingof designatedelectronically storedinformation, books, papers, documentsor tangiblethings, or inspection of premises need not appear in person at the place of production orinspectionunless commandedto appear for deposition, hearing or trial.

(B) Subjectto paragraph (d)(2)ofthismle, aperson commandedto prochice andpermitinspection, copying, testing, or samplingmay,within14 days after service of the subpoena orbeforethe time specifiedfor compliance if such time is lessthan 14 days after seIVice, seIVeupon theparty or attorney designatedin the subpoenawritten oQi ection to prochicing any or allof the designatedmaterialsor inspectionof the premises- orto producing electronically storedinformation in theform orfonns requested. I f oQi ectionis made,the partyseIVingthesubpoenashall not be entitledto inspect, copy, test, or samplethe materialsor inspect the premisesexceptpursuant to an order of the courtbywhichthe subpoenawas issued If objectionhas been made,the party seIVing the subpoena may, upon notice to the person commandedto prochice, moveat any time for an order to compel the prochiction, inspection, copying, testing, or sampling.Such an order to compel shall protectanyperson whois not apartyor anofficerof aparty fromsignificant expense resulting from the inspection, copying, testing, or sampling commanded.

Documents

163-1 P Ex Parte Shorten Time Re MTC Depos