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Case 1:07-cv-00026-OWW-TAG Document 65 Filed 10/26/2007 Page 1 of 6

1 Eugene D. Lee SB# 236812


LAW OFFICE OF EUGENE LEE
2 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
3 Telephone: (213) 992-3299
Facsimile: (213) 596-0487
4 Email: elee@LOEL.com
5
Joan Herrington, SB# 178988
6 BAY AREA EMPLOYMENT LAW OFFICE
5032 Woodminster Lane
7 Oakland, CA 94602-2614
Telephone: (510) 530-4078
8 Facsimile: (510) 530-4725
Email: jh@baelo.com
9 Of Counsel to LAW OFFICE OF EUGENE LEE
10 Attorneys for Plaintiff
DAVID F. JADWIN, D.O.
11
UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
13
14
DAVID F. JADWIN, D.O., Case No. 1:07-cv-00026-OWW-TAG
15
Plaintiff, PLAINTIFF’S REPLY TO DEFENDANTS’
16 OPPOSITION TO MOTION TO COMPEL
v. INITIAL DISCLOSURES AND REQUEST
17 FOR SANCTIONS
18 COUNTY OF KERN; et al. Date: November 5, 2007
Time: 9:30 a.m.
19 Defendants. Place: U.S. Mag. Judge Theresa A. Goldner
U.S. District Court, Bankruptcy Courtroom
20 1300 18th St., Bakersfield, CA
21 Date Action Filed: January 6, 2007
Date Set for Trial: August 26, 2008
22
23 Plaintiff David F. Jadwin, D.O., F.C.A.P., hereby submits this reply memorandum in support of
24 its motion to compel Defendants County of Kern, Peter Bryan, Eugene Kercher, Irwin Harris, Scott
25 Ragland, Jennifer Abraham, William Roy and Toni Smith to serve complete Initial Disclosures which
26 comply with Federal Rules of Civil Procedure, Rule 26(a)(1), and of its request for an award against
27 Defendants and/or their counsel of fees and expenses incurred by Plaintiff in bringing this motion and
28 such other relief as the Court deems appropriate, pursuant to Rule 37(a).

PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL


INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 1
Case 1:07-cv-00026-OWW-TAG Document 65 Filed 10/26/2007 Page 2 of 6

1 I. DEFENDANTS REFUSED IN BAD FAITH TO NEGOTIATE A STIPULATION WITH


PLAINTIFF, FORCING PLAINTIFF TO MOTION THE COURT
2
Plaintiff and Defendants have had numerous meet and confers from August 10 to September 20,
3
2007.
4
Plaintiff repeatedly stated that it would forego home contact information for Defendants’
5
witnesses if Defendants were willing to sign a written stipulation. On September 5, Plaintiff sent
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Defendants just such a draft stipulation. (Doc. 50, 2:23-28). Thereafter, Plaintiff repeatedly sent the draft
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stipulation to Defendants and invited comment. (Doc. 50). Plaintiff had also sent the stipulation to
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Defendants in MS Word file format to facilitate revisions. (Doc. 50, 3:10-15).
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Defendants refused to negotiate the written stipulation. They instead made unilateral,
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informal “assurances” and “representations” and demanded Plaintiff take them as is. (Doc. 50).
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Plaintiff insists on a written stipulation for two reasons. First, USDC EDCA Local Rule 83-143
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and FRCP Rule 29 require agreements between counsel which vary discovery procedures and deadlines
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be memorialized in a written stipulation and order signed by the Court. Second, given the retaliatory
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conduct Defendants have exhibited throughout this action – including refusing to return his personal
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items to him more than 3 months after he had asked to retrieve them from his office, and being
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instructed to go to Kern Medical Center (an over 100-mile drive) at an appointed time to retrieve
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personal files from his computer only to then be refused and forced to return home empty-handed –
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Plaintiff is not able to rely on Defendants’ “assurances” and “representations”. See Lee and Jadwin
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declarations.
20
Finally on September 20, Plaintiff made this final plea:
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For the last time, please reconsider Defendants’ unreasonable refusal to reduce its
22 agreement to the required stipulation and order required by the rules cited above.
Plaintiff has repeatedly provided Defendants with the proposed stipulation and requested
23 them to either sign or propose amendments.
(Doc. 51, 2:4-11).
24
Defendants refused:
25
Apparently, the current dispute revolves around the legitimacy of agreements between
26 counsel. I have relied on agreements between counsel for over 30 years and find no
authority that prohibits them. If it is your position that there can be no agreements
27 between counsel that are not reduced to formal stipulation and order, then, perhaps we
should litigate that.
28 (Doc. 51, 2:4-11).

PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL


INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 2
Case 1:07-cv-00026-OWW-TAG Document 65 Filed 10/26/2007 Page 3 of 6

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Defendants refused to produce home contact information for their witnesses; at the same time,
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they refused to negotiate a written stipulation with Plaintiff. Plaintiff was left no choice but to bring this
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motion to compel seeking fees and costs.
4
Proving their bad faith, Defendants later reversed their position and proposed their own
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written stipulation to Plaintiff on October 9, 2007 – more than two weeks after Plaintiff had already
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filed this Motion. (Lee Decl., ¶¶ 15, 16). That meet and confer process ended after Plaintiff sent
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Defendants a revised version of Defendants’ proposed stipulation, which elicited this response from
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Defendants:
9
Your proposed stipulation is not acceptable [. . . .] Whether our protective order is filed
10 is a matter of timing. It has to be on file by Monday and we will file it Friday in the
absence of an agreement [. . . .]
11 (Lee Decl., ¶ 18).
12 This Motion (and Defendants’ motion for protective order) could have been averted had
13 Defendants been willing to negotiate a written stipulation with Plaintiff before Plaintiff filed their
14 Motion. Instead, Defendants refused to do so based on an unreasonable, principled stand against written
15 stipulations, stating “perhaps we should litigate that.” Then, after Plaintiff had already filed this Motion,
16 Defendants proposed their own written stipulation to Plaintiff, revealing their bad faith.
17 This is bad faith conduct, designed to frustrate Plaintiff and obstruct and delay this action.
18 Defendants have exhibited this conduct since the beginning of this action. Plaintiff also seeks sanctions
19 because of the numerous times Defendants’ counsel insisted on engaging in personal attacks on
20 Plaintiff’s counsel during the meet and confer process, despite being asked on several occasions to
21 refrain. (Lee Decl., ¶ 19).
22
II. IT IS WELL-SETTLED THAT PLAINTIFF IS ENTITLED TO THE HOME CONTACT
23 INFORMATION OF DEFENDANTS’ WITNESSES
24 It is well-settled that FRCP Rule 26(a)(1)(A) entitles Plaintiff to the home contact information of
25 Defendants’ disclosed witnesses. Plaintiff has already cited Moore’s Federal Practice (“Furthermore, if
26 some or all of the identified individuals are employees of the disclosing party, their home addresses and
27 telephone numbers must be disclosed. The disclosing party does not satisfy its initial disclosure
28 obligation by providing only its business address and telephone number” and Dixon v. CertainTeed

PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL


INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 3
Case 1:07-cv-00026-OWW-TAG Document 65 Filed 10/26/2007 Page 4 of 6

1 Corp., 164 F.R.D. 685, 688 - 689 (D. Kan. 1996) (“CertainTeed shall disclose the addresses and
2 telephone numbers of all the identified employees. It may not satisfy this obligation by disclosing its
3 business address and phone number, unless it knows of no other address and number”). (Doc. 50).
4 Defendants disagree with Moore’s Federal Practice in its interpretation of Dixon v. CertainTeed
5 Corp. They state: “Interestingly, the CertainTeed court did not actually order disclosure of ‘home’
6 addresses.” (Doc. 54, 3:1-3). However, the Opposition contains not a single legal citation in support of
7 its contention, other than FRCP Rule 26(a)(1)(A) and Dixon v CertainTeed itself. (Doc. 54).
8 But the requirement to disclose home addresses of witnesses again came before the U.S. District
9 Court for the District of Kansas in 1999. Not surprisingly, the court sided with Moore’s Federal
10 Practice’s interpretation of CertainTeed. In Folsom v. Heartland Bank, the court ruled that defendants
11 have a duty to disclose the home contact information for witnesses under FRCP 26(a)(1) and cited
12 CertainTeed in support:
13 The identified former and current employees directly worked on the loan between
plaintiffs and Heartland which is the subject of this litigation [. . . .] Such individuals
14 appear likely to have discoverable information relevant to disputed facts alleged with
particularity. Fed. R. Civ. P. 26(a)(1)(A) thus requires Heartland to disclose their known
15 addresses and telephone numbers, without awaiting a discovery request. ‘It may not
satisfy this obligation by disclosing its business address and phone number, unless it
16 knows of no other address and number.’ Dixon v. Certainteed Corp., 164 F.R.D. 685,
689 (D. Kan. 1996). Rule 26(a)(1)(A) contemplates disclosure of the personal
17 address and telephone number of identified individuals.
1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).
18
Defendants had posed the following question in their Opposition: “One might ask, ‘Why did
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Plaintiff file his motion?’”. (Doc. 54, 3:21). The answer is that the great weight of legal authority
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recognizes Plaintiff’s need for and right to home contact information for Defendants’ witnesses. The
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more germane question is, “why did Defendants refuse to comply with their obligations under Rule
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26(a)(1)(A)?”, particularly given that Plaintiff had cited the foregoing legal authorities (including
23
Folsom) extensively to Defendants during meet and confers. (Lee Decl., ¶ 14).
24
25 III. PLAINTIFF OBJECTS TO THE DECLARATIONS CITED IN SUPPORT OF
DEFENDANTS’ OPPOSITION
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Defendants submit five declarations in support of their Opposition. Putting aside the fact that one
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declarant, Dr. Abraham, is a named defendant in this action, Plaintiff objects that two of the declarations
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INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 4
Case 1:07-cv-00026-OWW-TAG Document 65 Filed 10/26/2007 Page 5 of 6

1 contain inadmissible testimony as follows:


2
3 Declaration of Jennifer Abraham in Lacks foundation: declarant fails to provide any facts
Support of Defendants’ Motion for establishing that declarant has personal knowledge of these
4 Protective Order (Doc. 59, 2:3). facts and/or is competent to testify concerning them.
5 “Dr. Jadwin is emotional, Conclusory and invades the province of the jury: declarant
confrontational and arrogant” fails to cite any supporting facts.
6
(Doc. 59, 2:4) Lacks foundation: declarant fails to provide any facts
7 establishing that she has personal knowledge of these facts
“he physically assaulted at least one and/or is competent to testify concerning them, including
8 other physician at Kern Medical whether declarant was a percipient witness to such alleged
Center.” assault.
9
Hearsay: declarant presumably relied on written reports and
10 second-hand accounts from others; her statement therefore
constitutes inadmissible hearsay intended to prejudice the
11 hearer.
12 (Doc. 59, 2:5) Lacks foundation: declarant fails to provide any facts
establishing that declarant has personal knowledge of these
13 “He tries to intimidate people he thinks facts and/or is competent to testify concerning them.
are weaker than he is”
14 Conclusory and invades the province of the jury: declarant
fails to cite any supporting facts.
15
Speculative: declarant is attributing underlying motives and
16 judgments to Plaintiff’s alleged conduct.
17
18 Declaration of Jane Thornton in Lacks foundation: declarant fails to provide any facts
Support of Defendants’ Motion for establishing that declarant has personal knowledge of these
19 Protective Order, (Doc. 63, 2:7-8) facts and/or is competent to testify concerning them.
20 “Further, having observed Dr. Jadwin’s Conclusory and invades the province of the jury: declarant
behavior at Kern Medical Center, I fails to cite any supporting facts.
21 know he is a person who can become
emotional and confrontational [. . . .]”
22
23
The remaining declarations cite ordinary privacy concerns. However, FRCP Rule 26(a)(1)(A)
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expresses the legislature’s intent that Plaintiff’s right of access to evidence trump such ordinary privacy
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concerns. As the court stated in Bell v. Swift & Co., “[Rule 26] provides expressly that discovery may be
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had concerning ‘the identity and location of persons having knowledge of relevant facts’. One of the
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purposes of this provision is to allow all parties equal access to the relevant facts.” 283 F.2d 407, 409
28

PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL


INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 5
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1 (5th Cir. 1960) (emphasis added).


2 Here, Defendants have access to the home contact information and telephone numbers of the
3 disclosed witnesses; Plaintiff does not. Under Rule 26, Defendants are required to share this
4 information with Plaintiff. Defendants refused to do so, forcing Plaintiff to seek relief from this Court.
5 Plaintiff requests that this Court order Defendants to disclose to Plaintiff any information that they know
6 regarding the home contact information of each witness.
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IV. CONCLUSION
8
For the foregoing reasons, Plaintiff respectfully requests that the Court (i) compel Defendants to
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serve complete Amended Initial Disclosures which disclose the home addresses and phone numbers of
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all witnesses identified therein pursuant to Rule 26(a)(1)(A), and (ii) order Defendants and/or their
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counsel to pay Plaintiff $2,700 for attorney fees and costs reasonably incurred in bringing this motion,
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pursuant to Rule 37(a), particularly given the personal attacks Defendants’ counsel has repeatedly
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engaged in during the meet and confer process.
14
15
Respectfully submitted on October 26, 2007.
16
17
/s/ Eugene D. Lee SB# 236812
18 LAW OFFICE OF EUGENE LEE
555 West Fifth Street, Suite 3100
19 Los Angeles, California 90013
Telephone: (213) 992-3299
20 Facsimile: (213) 596-0487
Email: elee@LOEL.com
21
/s/ Joan Herrington, SB# 178988 (as authorized on 9/24/07)
22 BAY AREA EMPLOYMENT LAW OFFICE
5032 Woodminster Lane
23 Oakland, CA 94602-2614
Telephone: (510) 530-4078
24 Facsimile: (510) 530-4725
Email: jh@baelo.com
25 Of Counsel to LAW OFFICE OF EUGENE LEE
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
26
27
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PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL


INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 6

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