87 declaration re inability to resolve discovery dispute

8/14/2019 87 Declaration Re Inability to Resolve Discovery Dispute

1/21

DECLARATION OF EUGENE D. LEE IN SUPPORT OF S REPLY TO OPPOSITION TOMOTION TO STRIKE 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

Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299

Facsimile: (213) 596-0487Email: [email protected]

Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE

Attorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN; et al.

Defendants.

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

DECLARATION OF EUGENE LEE reINABILITY TO RESOLVE DISCOVERYDISPUTES

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

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 ofCalifornia 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 pursuant to the Order of the Honorable Theresa A. Goldner

Case 1:07-cv-00026-OWW-TAG Document 87 Filed 01/23/2008 Page 1 of 21


2/21


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

to provide the Court with a status update on discussions with Defendants regarding discovery disputes

subsequent to the hearing before the Court on January 14, 2008, on Plaintiffs Motion to Compel

Production and Responses (Doc. 82). 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. The current dispute between the parties apparently involves only the stipulations whichDefendants had requested, and the Court had ordered, the parties enter into at the motion hearing.

Plaintiff is not willing to enter into stipulations with Defendants which exceed or alter what was ordered

and agreed to at the motion hearing.

4. Defendants have not stated any objections to producing documents in response toPlaintiffs requests 11, 26, 32, 33, 40, 43, 55, 57, 70, 71, 72, 78 as narrowed or clarified by Plaintiff at

the motion hearing. Plaintiffs current understanding, based on the phone call of January 22, 2008 (See

7 below), is that Defendants will indeed produce all such responsive documents by January 29, 2008.

Thus, there does not at the moment appear to be any dispute between the parties regarding actual

production in response to Plaintiffs requests.

5. At the hearing, the Court had ordered the parties to submit stipulations and ordersregarding two issues, both at Defendants prompting: 1) that Defendants disclosure of Dr. Royce

Johnsons personnel file in response to Plaintiffs request for production no. 40 would not constitute a

waiver by Defendants of privileges and objections relating to requests for disclosure of the personnel

files of other persons; and 2) that in inspecting and copying unredacted product chart copy (PCC) files at

Kern Medical Centers offices, Plaintiff would preserve and protect the confidentiality of any patient

medical information protected under HIPAA. The parties agreed that Defendants would draft and send

stipulations and orders to Plaintiff for its consideration.

6. On Friday, January 18, 2008, Plaintiff sent an email to Defendants requesting they sendover the draft stipulations and orders, making arrangements to review product chart copy (PCC)

documents at Kern Medical Centers offices, and notifying Defendants that Plaintiff had remitted a

check in reimbursement of Defendants discovery-related photocopy costs, as had been ordered by the

Court. (See Exhibit 1 hereto).

7. On Tuesday, January 22, 2008, Plaintiff and Defendants met and conferred by phone



3/21


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

regarding the outstanding discovery disagreements, pursuant to the Courts order. Defendants confirmed

that they would produce all documents in accordance with the document requests as narrowed down or

clarified by Plaintiff at the motion hearing by January 29, 2008. Plaintiff sent a confirmatory email to

Defendants regarding the phone call. (See Exhibit 2 hereto).

8. Later that day, Defendants sent Plaintiff a draft stipulation. (See Exhibit A to Declarationof Mark A. Wasser re: Inability to File Stipulation Following Discovery Hearing, Doc. 86). The

stipulation substantially exceeded the scope of what had been ordered or agreed to at the motion hearing

The stipulation also attempted, among other things, to narrow Plaintiffs requests for production beyond

what had been agreed to at the motion hearing and reinstituted objections to Request 40, which

Defendants had specifically withdrawn at the motion hearing. Plaintiff so informed Defendants and

asked Defendants to scale back the stipulation to what the Court had ordered. (See Exhibit 3 hereto).

9. On Wednesday, January 23, 2008, Defendants sent Plaintiff a revised draft stipulation(See Exhibit B to Declaration of Mark A. Wasser re: Inability to File Stipulation Following Discovery

Hearing, Doc. 86). The draft included additional language that Defendants were not waiving or

withdrawing objections to Request 40 even though Defendants had agreed to withdraw all

objections to Request 40 at the motion hearing. The draft also neglected to address the PCC-related

HIPAA issues which had been discussed at the motion hearing.

10. Later that day, Plaintiff revised the draft and returned it to Defendants, informingDefendants that the draft continued to exceed the scope of what the Court had ordered. (See Exhibit 4

hereto; see also Exhibit C to Declaration of Mark A. Wasser re: Inability to File Stipulation Following

Discovery Hearing, Doc. 86).

11. Later that day, Defendants returned a revised draft to Plaintiff that again reinstatedDefendants objections to Request 40 (which Defendants had withdrawn at the motion hearing) and

altered the last paragraph so as to make it unilaterally favorable to Defendants and essentially redundant

with the protective order language already agreed to in the Joint Scheduling Report (Doc. 26). (See

Exhibit D to Declaration of Mark A. Wasser re: Inability to File Stipulation Following Discovery

Hearing, Doc. 86)

12. Plaintiff subsequently stated that Defendants draft again did not reflect what had been



4/21


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

ordered and agreed to at the motion hearing. Defendants responded by saying that they would be filing a

Declaration of Inability to File Stipulation. (See Exhibit 5 hereto).

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed on January 23, 2008, at Los Angeles, California.

________________________________________Eugene D. Lee



5/21

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. Meet and confer email from Plaintiffs attorney to Defendantsattorney, dated 1/18/08


EXHIBIT 3. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 1/22/08 to 1/23/08


EXHIBIT 5. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 1/23/08



6/21




7/21

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Friday, January 18, 2008 2:32 PMTo: '[email protected]'Cc: 'Joan Herrington'Subject: RE: Depositions

Follow Up Flag: Follow upFlag Status: Completed

Mark,

Thank you for your email.

By the way, please send over the stipulations you had requested we enter into at the last motion hearing. FYI, Dr.Jadwin, his cousin, his assistant, Joan Herrington and I will be going to KMC at 10 a.m. on Feb 4. to inspect thePCC-related documents. We will have a local bonded copy service. Please let us know to whom at KMC we shouldreport that morning (and subsequent mornings).

Finally, I had overnight expressed the check to you reimbursing KMC for copy costs associated with the seconddocument production installment (as well as Mr. Bryans depo-related expenses). You should have received it onJan. 16. Please let me know if you did not.

Have a pleasant weekend.

Sincerely,

Gene Lee

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

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

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: Friday, January 18, 2008 1:55 PMTo: Eugene LeeSubject: Depositions



8/21




9/21

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Tuesday, January 22, 2008 10:37 AMTo: '[email protected]'Subject: Jadwin/KC: RPD1 Meet and Confer

Follow Up Flag: Follow upFlag Status: Completed

Mark,

It was a pleasure speaking with you just now.

Following is a recap of our discussion:



10/21

2

32ComplaintsagainstCorePhysiciansTOBEPRODUCED1/23/08

(NarrowedtoCorePhysiciansonly)

33EmployeeComplaints TOBEPRODUCED1/23/08

(Narrowedto

complaints

by

past/present

Core

Physicians

only,

but

includes

internal

and

informal

complaints)

(OBJECTIONSWITHDRAWN)

40JohnsonRRemoval TOBEPRODUCED1/23/08YOUWILLSENDSTIPDRAFTLATER

TODAY


55PlacentalBillingAuditTOBEPRODUCED1/23/08

(NarrowedtoDFJ-relatedonly)


57PCCYOUWILLSENDSTIPDRAFTLATERTODAY

70PathPeerReviewTOBEPRODUCED1/23/08

(NarrowedtoDFJ-relatedonly)

71ExceptionalEventLogsTOBEPRODUCED1/23/08

(abouthalf

-inch

thick

pile)

72AccessionLogsTOBEPRODUCED1/23/08

(abouthalf-inchthickpile)



11/21

3

78DFJPlacentalEvaluationsTOBEPRODUCED1/23/08

11Directories -Homeaddressestoberedacted

26DFJFilesTOBEPRODUCEDONCDs1/23/08


43OctoberConfPresentationALREADYPRODUCED


In addition, I had mentioned to you that several bates-numbered pages in the first document production installmenthad been marked Privileged but had not been noted in the privilege log. You said you would look into the issue.

I mentioned to you that Dr. Jadwin needs to schedule long-overdue surgery that will require up to 6 weeks recoverytime but is holding off until his deposition is completed. I asked you to let me know when Defendants wish tocontinue with the deposition of Dr. Jadwin. You suggested February but said you would get back to me with afirmer date.

If theres anything you wish to discuss, please give me a call any time.

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







12/21

EXHIBIT 3. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 1/22/08 to 1/23/08



13/21

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, January 23, 2008 12:22 PMTo: '[email protected]'Subject: RE: Stipulation re Supp Response to Request for Production

Hi Mark,

Unfortunately, this issue appears to be consuming more of both of our time than is warranted.

Judge Goldner ordered the parties to enter into two stipulations and orders. If you want to memorializeDefendants intention to comply with Plaintiffs requests for the exceptional event logs, accession logs, and otherdocuments and information, Defendants are welcome to do that by meet and confer email confirming thatDefendants do indeed intend to produce documents responsive to Plaintiffs requests. Theres no need to stipulateto Defendants compliance. I thought we had already established Defendants decision to comply in yesterdays call,which I then followed up with confirmatory email confirming this understanding. As I recall, on the call, you hadmentioned that the accession logs and exceptional event logs did not seem to bear on patient care issues. Iresponded that they bear on establishing retaliatory intent against Plaintiff (as I had stated at the motion hearing).

You then said Defendants would produce. You also mentioned the placental evaluation documents and thatPlaintiffs interest seemed to be to substantiate billing fraud by Dr. Dutt. I agreed with that. You then saidDefendants would produce. I then went over each of the outstanding document requests and we agreed onDefendants disclosure of those documents. I followed this up with a confirmatory email to memorialize ourdiscussion.

Your draft stip in its current overly broad form changes and narrows Plaintiffs requests in ways which Plaintiffnever agreed to. Just by way of example, the stip states Defendants will only produce Royce Johnsons personnelfiles, in response to Plaintiffs request for all documents relating to Dr. Johnsons removal. We never discussed this,either at the hearing or afterward, and Plaintiff will not agree to such a narrowing of its request.

I would greatly appreciate it if you were to limit the draft stip & order to what Judge Goldner had ordered.

Sincerely,

Gene Lee

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

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



T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7

E - m a i l : [email protected] e b s i t e : www.LOEL.comB l o g : www.CaLaborLaw.com




14/21

2

From: Mark Wasser [mailto:[email protected]]Sent: Wednesday, January 23, 2008 9:33 AMTo: [email protected]: RE: Stipulation re Supp Response to Request for Production

Gene,

I think the stipulation should address the agreements we made at the hearing. There is good reason to memorialize themsomewhere. We are not limited to just two issues. Judge Goldner asked me to inform her no later than today, forexample, if we had been able to reach agreement on the exceptional event logs and accession logs. Including them inthe stipulation makes sense for that reason alone. If you wont sign it, then you wont sign it but I suggest you reconsiderthe draft. It is a good draft.

If I need to narrow it to just two issues, I will but I prefer to leave it the way it is.

Mark

From: Eugene D. Lee [mailto:[email protected]]Sent: Tuesday, January 22, 2008 9:41 PMTo: [email protected]: RE: Stipulation re Supp Response to Request for Production

Hi Mark,

Thank you for your email.

Ive looked at your draft stip. I regret to say Im not comfortable signing it. I feel it goes substantially beyond thescope of what the Judge had ordered. I dont think thats necessary or desirable. As you will recall, Judge Goldnerhad ordered the parties to enter into a Stip & Order regarding two issues only (both at Defendants insistence): (1)

disclosure of Royce Johnsons personnel file does not constitute a waiver by Defendant of Defendants objectionsto producing personnel files in general and (2) stip & protective order re PCC-related HIPAA patient information.

I would add that Plaintiff is not willing to stip that production of Royce Johnsons personnel file alone fulfillsRequest 40 (Plaintiff seeks all removal-related documents) or otherwise narrow any other discovery requests outsideof what was ordered by Judge Goldner.

May I suggest you pare down the stip to the above items only?

If you wish to discuss this, please feel free to contact me at any time. Thank you.

Sincerely,

Gene Lee

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







15/21

3



From: Mark Wasser [mailto:[email protected]]Sent: Tuesday, January 22, 2008 1:53 PMTo: Eugene LeeSubject: Stipulation re Supp Response to Request for Production

Gene,

Here is a draft stipulation for your review.

Mark



16/21




17/21

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, January 23, 2008 1:18 PMTo: '[email protected]'Subject: Jadwin/KC: Stipulation re RPD1Attachments: Stipulation - RPD1_080122.doc

Hi Mark,

Thank you for your email and the draft stip. As you may recall, Defendants had withdrawn objections to Request40. Also, at the hearing, we had discussed including HIPAA in the stip. Ive made the suggested revisions in theattached for your review.

Regarding the Plaintiffs upcoming depositions, Plaintiff will need to postpone them to a later mutually agreeabletime. Please let the deponents know so that they dont incur any charges. I will contact you shortly with new dates.

Yesterday you had mentioned you would be personally serving the latest supplemental document production on meon January 29, day one of the depositions. Since the depositions wont take place, please just deliver them to my

office.

If you have any questions regarding the above, please do not hesitate to contact me.

Thank you.

Sincerely,

Gene Lee









18/21

EXHIBIT 5. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 1/23/08



19/21

1

Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, January 23, 2008 4:39 PMTo: '[email protected]'Subject: RE: Draft stipulation

Hi Mark,

To ensure that there is no misunderstanding, Plaintiff did not ask for any language in the stip regarding objectionsbeing or not being withdrawn. Defendants added that language unilaterally. My understanding is that the stip was toestablish that Defendants disclosure of the Royce Johnson personnel file did not constitute a waiver as to otherpersonnel files. Defendants took it upon themselves to broaden the scope of the stip beyond what was discussedand agreed. It appears we will need to review the transcript of the hearing.

Sincerely,

Gene Lee







From: Mark Wasser [mailto:[email protected]]

Sent: Wednesday, January 23, 2008 2:33 PM

To: [email protected]

Subject: RE: Draft stipulation

Gene,

No. I will not agree to what you ask. You are asking for more than we agreed to in Court.

I will prepare a declaration and report to the Court that we cannot agree to a written version of what we agreed to in opencourt.

Mark



20/21

2

From: Eugene D. Lee [mailto:[email protected]]Sent: Wednesday, January 23, 2008 2:25 PMTo: [email protected]

Subject: RE: Draft stipulation

Mark,

The draft you sent me does NOT reflect what was agreed to at the hearing.

You are on record as saying at the hearing that you withdrew objections to Request 40. You said you wanted a stipthat disclosure of Royce Johnsons personnel file would not represent a waiver of objections as to other personnelfiles. We can review the hearing transcript if you wish.

Also, you already have a protective order in place in the Joint Scheduling Report. Theres no need to deal with itagain here. If you wont agree to the sentence Ive added, then you need to narrow the last paragraph to HIPAA-related confidentiality as to the PCCs only. That is what was decided at the hearing, no more no less.

I wont be available for much longer. If we cant stop bickering over this stip and agree to something soon, wewont be able to file anything today.

Sincerely,

Gene Lee

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





W e b s i t e : www.LOEL.com

B l o g :www.CaLaborLaw.com


From: Mark Wasser [mailto:[email protected]]Sent: Wednesday, January 23, 2008 2:09 PM

To: Eugene LeeSubject: Draft stipulation

Gene,

Here it is again. I do not agree to some of your changes. We are not withdrawing our objections to the RoyceJohnson personnel file. We are producing it subject to the objections. We have never even discussed the sentence youadded that would require us to produce all patient, peer review and personnel records. Where did you come up withthat?



21/21

Mark


87 declaration re inability to resolve discovery dispute

Documents