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PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO MOTION TO COMPEL

INITIAL DISCLOSURES AND REQUEST FOR SANCTIONS 2

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I. DEFENDANTS REFUSED IN BAD FAITH TO NEGOTIATE A STIPULATION WITHPLAINTIFF, FORCING PLAINTIFF TO MOTION THE COURT

Plaintiff and Defendants have had numerous meet and confers from August 10 to September 20,

2007.Plaintiff repeatedly stated that it would forego home contact information for Defendants

witnesses if Defendants were willing to sign a written stipulation. On September 5, Plaintiff sent

Defendants just such a draft stipulation. (Doc. 50, 2:23-28). Thereafter, Plaintiff repeatedly sent the draft

stipulation to Defendants and invited comment. (Doc. 50). Plaintiff had also sent the stipulation to

Defendants in MS Word file format to facilitate revisions. (Doc. 50, 3:10-15).

Defendants refused to negotiate the written stipulation. They instead made unilateral,

informal assurances and representations and demanded Plaintiff take them as is. (Doc. 50).

Plaintiff insists on a written stipulation for two reasons. First, USDC EDCA Local Rule 83-143

and FRCP Rule 29 require agreements between counsel which vary discovery procedures and deadlines

be memorialized in a written stipulation and order signed by the Court. Second, given the retaliatory

conduct Defendants have exhibited throughout this action including refusing to return his personal

items to him more than 3 months after he had asked to retrieve them from his office, and being

instructed to go to Kern Medical Center (an over 100-mile drive) at an appointed time to retrieve

personal files from his computer only to then be refused and forced to return home empty-handed

Plaintiff is not able to rely on Defendants assurances and representations. See Lee and Jadwin

declarations.

Finally on September 20, Plaintiff made this final plea:

For the last time, please reconsider Defendants unreasonable refusal to reduce itsagreement to the required stipulation and order required by the rules cited above.Plaintiff has repeatedly provided Defendants with the proposed stipulation and requestedthem to either sign or propose amendments.

(Doc. 51, 2:4-11).Defendants refused:

Apparently, the current dispute revolves around the legitimacy of agreements betweencounsel. I have relied on agreements between counsel for over 30 years and find noauthority that prohibits them. If it is your position that there can be no agreementsbetween counsel that are not reduced to formal stipulation and order, then, perhaps weshould litigate that.(Doc. 51, 2:4-11).

Case 1:07-cv-00026-OWW-TAG Document 65 Filed 10/26/2007 Page 2 of 6

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Defendants refused to produce home contact information for their witnesses; at the same time,

they refused to negotiate a written stipulation with Plaintiff. Plaintiff was left no choice but to bring this

motion to compel seeking fees and costs.Proving their bad faith, Defendants later reversed their position andproposed their own

written stipulation to Plaintiff on October 9, 2007 more than two weeks after Plaintiff had already

filed this Motion. (Lee Decl., 15, 16). That meet and confer process ended after Plaintiff sent

Defendants a revised version of Defendants proposed stipulation, which elicited this response from

Defendants:

Your proposed stipulation is not acceptable [. . . .] Whether our protective order is filedis a matter of timing. It has to be on file by Monday and we will file it Friday in theabsence of an agreement [. . . .](Lee Decl., 18).

This Motion (and Defendants motion for protective order) could have been averted had

Defendants been willing to negotiate a written stipulation with Plaintiff before Plaintiff filed their

Motion. Instead, Defendants refused to do so based on an unreasonable, principled stand against written

stipulations, stating perhaps we should litigate that. Then, after Plaintiff had already filed this Motion,

Defendants proposed their own written stipulation to Plaintiff, revealing their bad faith.

This is bad faith conduct, designed to frustrate Plaintiff and obstruct and delay this action.

Defendants have exhibited this conduct since the beginning of this action. Plaintiff also seeks sanctions

because of the numerous times Defendants counsel insisted on engaging in personal attacks on

Plaintiffs counsel during the meet and confer process, despite being asked on several occasions to

refrain. (Lee Decl., 19).

II. IT IS WELL-SETTLED THAT PLAINTIFF IS ENTITLED TO THE HOME CONTACTINFORMATION OF DEFENDANTS WITNESSES

It is well-settled that FRCP Rule 26(a)(1)(A) entitles Plaintiff to the home contact information of

Defendants disclosed witnesses. Plaintiff has already cited Moores Federal Practice (Furthermore, if

some or all of the identified individuals are employees of the disclosing party, their home addresses and

telephone numbers must be disclosed. The disclosing party does not satisfy its initial disclosure

obligation by providing only its business address and telephone number andDixon v. CertainTeed


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Corp., 164 F.R.D. 685, 688 - 689 (D. Kan. 1996) (CertainTeed shall disclose the addresses and

telephone numbers of all the identified employees. It may not satisfy this obligation by disclosing its

business address and phone number, unless it knows of no other address and number). (Doc. 50).

Defendants disagree with Moores Federal Practice in its interpretation ofDixon v. CertainTeed

Corp. They state: Interestingly, the CertainTeedcourt did not actually order disclosure of home

addresses. (Doc. 54, 3:1-3). However, the Opposition contains not a single legal citation in support of

its contention, other than FRCP Rule 26(a)(1)(A) andDixon v CertainTeeditself. (Doc. 54).

But the requirement to disclose home addresses of witnesses again came before the U.S. District

Court for the District of Kansas in 1999. Not surprisingly, the court sided with Moores Federal

Practices interpretation ofCertainTeed. In Folsom v. Heartland Bank, the court ruled that defendants

have a duty to disclose the home contact information for witnesses under FRCP 26(a)(1) and cited

CertainTeedin support:

The identified former and current employees directly worked on the loan betweenplaintiffs and Heartland which is the subject of this litigation [. . . .] Such individualsappear likely to have discoverable information relevant to disputed facts alleged withparticularity. Fed. R. Civ. P. 26(a)(1)(A) thus requires Heartland to disclose their knownaddresses and telephone numbers, without awaiting a discovery request. It may notsatisfy this obligation by disclosing its business address and phone number, unless itknows 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

address and telephone number of identified individuals.1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).

Defendants had posed the following question in their Opposition: One might ask, Why did

Plaintiff file his motion?. (Doc. 54, 3:21). The answer is that the great weight of legal authority

recognizes Plaintiffs need for and right to home contact information for Defendants witnesses. The

more germane question is, why did Defendants refuse to comply with their obligations under Rule

26(a)(1)(A)?, particularly given that Plaintiff had cited the foregoing legal authorities (including

Folsom) extensively to Defendants during meet and confers. (Lee Decl., 14).

III.PLAINTIFF OBJECTS TO THE DECLARATIONS CITED IN SUPPORT OFDEFENDANTS OPPOSITION

Defendants submit five declarations in support of their Opposition. Putting aside the fact that one

declarant, Dr. Abraham, is a named defendant in this action, Plaintiff objects that two of the declarations


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contain inadmissible testimony as follows:

Declaration of Jennifer Abraham in

Support of Defendants Motion forProtective Order(Doc. 59, 2:3).

Dr. Jadwin is emotional,confrontational and arrogant

Lacks foundation: declarant fails to provide any facts

establishing that declarant has personal knowledge of thesefacts and/or is competent to testify concerning them.

Conclusory and invades the province of the jury: declarantfails to cite any supporting facts.

(Doc. 59, 2:4)

he physically assaulted at least oneother physician at Kern MedicalCenter.

Lacks foundation: declarant fails to provide any factsestablishing that she has personal knowledge of these factsand/or is competent to testify concerning them, includingwhether declarant was a percipient witness to such allegedassault.

Hearsay: declarant presumably relied on written reports andsecond-hand accounts from others; her statement thereforeconstitutes inadmissible hearsay intended to prejudice thehearer.

(Doc. 59, 2:5)

He tries to intimidate people he thinksare weaker than he is

Lacks foundation: declarant fails to provide any factsestablishing that declarant has personal knowledge of thesefacts and/or is competent to testify concerning them.


Speculative: declarant is attributing underlying motives andjudgments to Plaintiffs alleged conduct.

Declaration of Jane Thornton inSupport of Defendants Motion forProtective Order, (Doc. 63, 2:7-8)

Further, having observed Dr. Jadwinsbehavior at Kern Medical Center, Iknow he is a person who can becomeemotional and confrontational [. . . .]

Lacks foundation: declarant fails to provide any factsestablishing that declarant has personal knowledge of thesefacts and/or is competent to testify concerning them.


The remaining declarations cite ordinary privacy concerns. However, FRCP Rule 26(a)(1)(A)

expresses the legislatures intent that Plaintiffs right of access to evidence trump such ordinary privacy

concerns. As the court stated inBell v. Swift & Co., [Rule 26] provides expressly that discovery may be

had concerning the identity and location of persons having knowledge of relevant facts. One of the

purposes of this provision is to allow all parties equal access to the relevant facts. 283 F.2d 407, 409


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(5th Cir. 1960) (emphasis added).

Here, Defendants have access to the home contact information and telephone numbers of the

disclosed witnesses; Plaintiff does not. Under Rule 26, Defendants are required to share this

information with Plaintiff. Defendants refused to do so, forcing Plaintiff to seek relief from this Court.

Plaintiff requests that this Court order Defendants to disclose to Plaintiff any information that they know

regarding the home contact information of each witness.

IV.CONCLUSIONFor the foregoing reasons, Plaintiff respectfully requests that the Court (i) compel Defendants to

serve complete Amended Initial Disclosures which disclose the home addresses and phone numbers of

all witnesses identified therein pursuant to Rule 26(a)(1)(A), and (ii) order Defendants and/or their

counsel to pay Plaintiff $2,700 for attorney fees and costs reasonably incurred in bringing this motion,

pursuant to Rule 37(a), particularly given the personal attacks Defendants counsel has repeatedly

engaged in during the meet and confer process.

Respectfully submitted on October 26, 2007.

/s/ Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]

/s/ Joan Herrington, SB# 178988 (as authorized on 9/24/07)BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614

Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEEAttorneys for Plaintiff DAVID F. JADWIN, D.O.


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