Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 1 of 20

1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento. CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser@markwasser.com

5 Bernard C. Barmann, Sr.

KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
7 Bakersfield. CA 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
I E-mail: mnations@co.kern.ca.us
9

10 Attorneys for Defendants County of Kern,

Peter Bryan, Irwin Harris, Eugene Kercher,
11 Jennifer Abraham, Scott Ragland, Smith
land
12 ::

13 UNITED STATES DISTRICT COURT

14 EASTERN DISTRICT OF CALIFORNIA

15
16 DAVID F. JADWIN, D.O. ~ Case No.: l:07-cv-00026-0WW-TAG

17 Plaintiff, ) DECLARATION OF MARK A. WASSER

) IN SUPPORT OF MOTION FOR
18 vs. ) PROTECTIVE ORDER RE:
) EMPLOYEES' HOME ADDRESSES
19 COUNTY OF KERN, et ai., )
) Date: November 5, 2007
20 Defendants. ) Time: 9:30 a.m. (date cleared by CRD)
Place: U.S. Bankruptcy Courthouse,
21 ~
)
Bakersfield Courtroom 8

22 ) Date Action Filed: January 6, 2007

) Trial Date: August 26, 2008
23
------------)
24
I, Mark A. Wasser, declare as follows:
25
I. I am counsel of record for Defendants herein and am familiar with this action.
26
The statements in this declaration are true and correct of my own personal knowledge and I can
27
testify competently to them if called as a witness.
28

1 DECLARATION OF MARK A. WASSER IN

SUPPORT OF MOTION FOR PROTECTIVE ORDE
RE: EMPLOYEES' HOME ADDRESSE
 Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 2 of 20

1 2. As is more fully explained in the declarations of Jennifer Abraham; Michelle

2 Burris; Jane Thornton; Denise Long and Toni Smith filed herewith, they object to disclosing

3 their home addresses to Plaintiff, David Jadwin, on grounds of personal safety and privacy. I
4 believe that, if asked, other County employees would submit similar declarations.
5 3. Defendants' have disclosed the individual work addresses and telephone numbers

6 for all County employees who have been initially identified as witnesses this action.
7 addition, Defendants have promised to make all employees available to Plaintiff upon request to
8 Defendarlts' counsel, have committed to provide PleLinliffwith up·Galea contact infanna:tiOJJ, if
I
9 I known, for any employees who leave County employment during this case and to accept service

10 of all process and notices on behalf of the employees. These representations have all been in
!I writing and have been made multiple times. are repeated here. Copies

12 II correspondence eontains representations are attached to movmg papers.

13 4. Attached hereto is a true and correct copy of my letter of September 27, 2007 to
14 Plaintiff s counsel offering to meet and confer on the substance of this motion. Although

15 additional correspondence was exchanged, no resolution was arrived at and PlaintifT s position

16 actually became more extreme as the meet-and-confer process continued. See, for example,
17 Eugene Lee's letter of October 5, 2007. Copies of all meet and confer letters are attached hereto
18 as Exhibit 1. On October 11, 2007, Plaintiff served a request for production on Defendants that
19 also seeks employee home addresses. It is apparent that Plaintiff remains aggressive pursuit 0
20 employee home addresses despite full disclosure of contact addresses far all employees and

21 Defendants' assurances that all employees will be made available and despite Plaintiffs
22 representations to the contrary during the meet-and-confer process.

23 III

24 III

25 III

26 III

27 III

28 III

2 DECLARATION OF MARK A. WASSER IN

SUPPORT OF MOTION FOR PROTECTIVE ORDE
REI EMPLOYEES' HOME ADDRESSE
 Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 3 of 20

1 5. My standard hourly rate is $350.00 per hour. I have spent approximately sixteen

2 hours meeting and conferring with Plaintiffs counsel and preparing this motion and supporting

3 papers.

4 I certify under penalty of perjury that the foregoing is true and correct.

5
6 Executed this 12'h day of October, 2007, in Sacramento, California.

9 Mark A. Wasser

10
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d

12

13

14

IS

16

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22

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3 DECLARATION OF MARK A. WASSER IN

SUPPORT OF MOTION FOR PROTECTIVE ORDE
RE: EMPLOYEES' HOME ADDRESSE
Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 4 of 20

EXHIBIT 1. Meet and confer letters between Defendant's

attorney and Plaintiffs attorney
 •
Case 1:07-cv-00026-OWW-TAG
Law Offices of
Document 58
Filed 10/12/2007
MARK A WASSER
400 Capitol Mali, Suite 1100
Sacramento, California 95814
Office: 916-444-6400 Fax: 916-444-6405
• Page 5 of 20

D1wasser@marh:wasser.com

September 27, 2007

Eugene Lee
Law Offices of Lee
555 West Street Suite 31
nULg"";', Calif;onlia 9001 0

Re.' Jadwin v. County ofKern, et

Dear Mr. Lee:

We are filing a motion for a protective order on the home address issue. Several
County employees object to disclosure of their home addresses to Dr. Jadwin on grounds
of personal safety. Since all are available at their work addresses, which have been
provided to you, there is no reason to disclose their home addresses.

Remaining ever-optimistic that you might want to discuss this issue reasonably, I
offer another opportunity to meet and confer on From the tenor of your moving
papers, I assume you will refuse. However, if you have any interest in discussing
issue further before we file our motion, let me know.

Very Truly Yours,

Mark A Wasser

cc: Mark Nations (via first class mail)

Karen Barnes (via first class mail)
Joan Herrington (via first class mail)

Admined (0 Practice in California and Nevada

•
Case 1:07-cv-00026-OWW-TAG
(Z13) 99Z-:3299
TELEPHONE

(213) 596-0487
• LAW
E U G ENE
Document 58
OFFICE

555 WEST FIFTH STREET,

L E
OF

SUITE 3100
•
Filed 10/12/2007 Page 6 of 20
ELEE@LOEL.GOM
E-MAIL

WWW.LOEL.OOM
FACSIMILE LOS ANGELES, CALlF"ORN1A 90013-1010 WEBSITE
EUGENE D LEE, ESQ JOAN E. HERRINGTON, ESQ
PRINCTPAL OF COUNSEL

October 1, 2007
VIA FACSIMILE & US MAIL

Wasser 100011.001
Law Offices of Mark Wasser
400 Capitol Mall Ste 11 00
Sacramento, 95814

Re: Motion for Protective Order

Jadwin I County of Kern, et (USDC EDCA No, 1:07-cv-00026-0WW/TAG)

I am of your You state as

motion the allegation County employees object to
disclosure of their home addresses to Dr. Jadwin on grounds of personal safety"

Plaintiff requests an offer of proof Who are these objecting employees? What specifically are
they afraid of? On what do they base these alleged fears? In other words, demonstrate that this is
not just the latest example ofthe County's attempt to blame the victim for their own illegal
actions,

Plaintiff has a right to investigate, informally contact and serve documents on the witnesses, As
Plaintiff has repeatedly explained, witnesses' availability at work is not the only relevant
eonsideration

Defendants have orally "represented" that they are willing to accept service on behalf of its
"current employees" and to produce them as needed, In exchange, Plaintiff has stated its
willingness to forego disclosure of their home contact information, However, Plaintiff has
several concerns about relying on Defendants' oral representations,

First, what happens when current Kern County employees quit or are terminated before
deposition or trial? Plaintiff needs to ensure that it receives their home contact information in a
timely manner. The written stipulation which Plaintiff has proposed, attached hereto, addresses
this issue,

Second, the case of KMC Interim CEO David Culberson - whom Defendants later informed
Plaintiff was not an employee but an independent contractor - highlights the ambiguity of
Defendants' "representation", Which of the witnesses listed on Defendants' "Supplemental"
Initial Disclosures are employees of Kern County as opposed to independent contractors? The
written stipulation which Plaintiff has proposed, attached hereto, addresses this issue.
N,
•
Case 1:07-cv-00026-OWW-TAG Document 58
•
Filed 10/12/2007

Finally, FRCP Rule 29 and USDC EDCA Local Rule 83-143 require that Plaintiff and
Page 7 of 20

Defendants enter into a written stipulation when varying discovery procedures. Defendants'
representati on that they will accept service on behalf of certain witnesses represents a variance of
discovery procedures. Plaintiff is willing to enter into a stipulation with Defendants but has
requested that the stipulation be memorialized in writing. Defendants have refused.

Plaintiff and Defendants appear to agree in principle. What is the basis for Defendants' refusal to
negotiate a written stipulation, a copy of which is attached hereto? Both Plaintiff's motion to
compel Defendants' proposed motion for protective order could been avoided had
Defendants been willing to do so.

tOr"wrlrii to

co: Joan Herrington, Esq.

enc: Proposed Stipulation
 Case 1:07-cv-00026-OWW-TAG
• Document 58
•
Filed 10/12/2007 Page 8 of 20

I LAW OFFICE OF EUGENE LEE

Eugene D. Lee (SB#: 236812)
2 555 West Fifth Street, Suite 3100
Los Angeles, CA90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 email: elee@LOEL.com

5 Joan Herrington, SB# 178988

BAY AREA EMPLOYMENT LAW OFFICE
6 5032 Woodminster Lane
Oakland, CA 94602-2614
7 ele;phcme: (510) 530-4078
I (510) 530-4725
8 I jh@baelocom
I Of Counsel to LAW A y · m r . p OF
9
, for ""mUH
10 i F
11 I A. Wasser CA

OFFICES lVL"'''''
12 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
13 Phone: (916) 444-6400
Fax: (916) 444-6405
14 Email: mwasser@markwasser.com

15 Bernard C. Barmann, Sr.

KERN COUNTY COUNSEL
16 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
17 Bilkersfield, 9330 I
'Phone: (661) 868-3800
18 Fax: (661) 868-3805
Email: mnations@co.kem.ca.us
19
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
20 Abraham, Scott Ragland,Toni Smith, and William Roy.

21 UNITED STATES DISTRICT COURT

22 EASTERN DISTRICT OF CALIFORNIA

23 FRESNO DIVISION

24 DAVID F. JADWIN, D.O., Civil Action No.1 :07-cv-00026 OWW TAG

25 Plaintiff, STIPULATION RE HOME CONTACT

v. INFORMATION OF DISCLOSED KERN
26 COUNTY EMPLOYEES.
COUNTY OF KERN, et a!.,
27 Complaint Filed: January 5, 2007
Defendants. Trial Date: August 26, 2008
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
STIPULATION RE ADDRESSES OF DISCLOSED WITNESSES 1
". •
Case 1:07-cv-00026-OWW-TAG Document 58
•
Filed 10/12/2007 Page 9 of 20

1 In order to avoid Plaintiff's Motion to Compel Initial Disclosures that comply with Rule 26, as

2 well as Defendants' Motion for Protective Order, Plaintiff and Defendants hereby stipulate that:

3 1. Defendants shall within 10 days of signing ofthis Stipulation and Order by the Court I
I

4 disclose to Plaintiff David F. Jadwin, D.O. the last known home address and phone I
5 number (or if not known, the last known address and phone number) of any and all 1
6 individuals are not employees of Defendant of Kern Defendants

7 as Wlme"t" 111 i\mended or Supplemental Disclosures.

8 Independent contractors, as not deemed to be

9 employees.

within 10 of signing StipUlation Order by

II dJsclosc to Plaintiff known

12 number of any and all former employees of Defendant County of Kern that

13 Defendants list as witnesses in their Initial and any Amended or Supplemental

14 Disclosures.

15 3. Defendants shall disclose to Plaintiff David F. Jadwin, D.O. the last known home
I
16 address and phone number of any and all current employees of Defendant County ofl

Kern that Defendants as witnesses in their Initial and any Amended or I

18 Supplemental Disclosures within five days of any termination emPloymen1

19 with the County of Kern, or such shorter time as is reasonably necessary so as to

20 permit Plaintiff to compel their attendance at depositions andlor trial.

21 4. Defense counsel shall accept service by facsimile of Plaintiff's deposition subpoenas

22 and Rule 45 subpoenas on behalf of any and all current employees of Defendant

23 County of Kern, and Defendant County of Kern shall take all necessary steps to

24 compel compliance with either or both of these.

25

26

27

28
USDC, ED Case No.1 :07-cv-00026 OWW TAG
STIPULATION RE ADDRESSES OF DISCLOSED WITNESSES 2
 •
Case 1:07-cv-00026-OWW-TAG Document 58
•
Filed 10/12/2007 Page 10 of 20

2 Dated: October_, 2007

3
4 Eugene D. Lee
Attorney for Plaintiff
5 DAVID F JADWIN, D.O
Dated: October _' 2007
6

8 Attorney
COUNTY OF KERN, PETER BRY AN,
9 HARRIS, EUGENE KERCHER, JENNIFER
ABRAHA1\1, SCOTT RAGLAND,TONI en ,n~n
10 WILLIAM ROY

11

12

13
I ORDER
14

15 II The parties having stipulated as hereinabove set forth and good cause appearing therefore;
II IS SO ORDERED
16
II
17 II
I, STATES
18

19
I By:_-=---,.,,..----',-:-:=-_---,.-=-,-;-_ _
The Honorable Theresa A Goldner
United States Magistrate Judge
20

21

22

23

24

25

26

27

28
USDC, ED Case No. l:07-cv-00026 OWW TAG
STIPULATION RE ADDRESSES OF DISCLOSED WITNESSES 3
 • Law Offices of •
Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 11 of 20
MARK A. WASSER
,•• 400 Capitol Mall, Suite 1100
Sacramento" California 95814
Office: 916-444-6400 Fax: 916-444-6405
mwasser@markwasser.com

October I, 2007

ACSIl',Ul,E & FIRST

Eugene Lee
Offices of Eugene Lee
Fifth Suite 3I
Los California 1010

Re: Jadwin v. County ofKern, et al.

Dear Mr. Lee:

This is in response to your letter this morning.

The Defendants' representations to yon regarding acceptance of service on behalf

of ali parties and County employees and making employees available to you on request
have not been "oraL" You and I have had no oral communications for months. our
representations, indeed, ail our communications to you on this topic and ail other topics
for the past few months have been, and still are, written. Hence, the statements in your
letter about oral representations are false. I will not spend any time referring you to the
many writings in which I have made the representations. They will be provided to the
Court in our motion and you have them.

Neither Rule 29 nor Local Rule 83-143 "require" a stipulation. Rule 29 states that
parties may by written stipulation provide that depositions "may be taken before any
person, at any time and place, upon any notice, and in any manner ... " and "modify
other procedures governing or limitations placed on discovery" except for certain
enumerated rules that do not apply to our circumstances. As you know, the word "may"
is discretionary, not mandatory. Thus, your statement that Rule 29 requires a stipulation
is false. Local Rule 83-143 imposes certain requirements on the form of stipulations and
requires that stipulations be approved by the Court but does not "require" stipulations.
Thus, your statement that it does is also false. Further, even if Rule 29 did apply, we are
not proposing to change any of the things Rule 29 addresses. We are not proposing to

Admitted to Practice in California and Nevada

,
0.
Case
Eugene Lee
October I, 2007
Page 2
•
1:07-cv-00026-OWW-TAG Document 58
•
Filed 10/12/2007 Page 12 of 20

vary any terms of discovery. Neither Rule 29 nor Local Rule 83- 143 have any
application. As foreign as it may be to your style of practice, we are simply proposing an
accommodation to make it easier for you to contact County employees by offering to
make them available. It really is that simple.

So you are clear, let me write, again, what I have written previously: I will accept
service of all process and notices on behalf of all parties and all County employees and,
further, will make all parties and employees available to you upon request. I will provide
you with all known contact information on any employees who leave County
emlD!<wrneJlt aurmg pendency case. This is not to depositions or
attendance at It applies to request you have an employee as a
request to meet with them or conduct an informal interview.

note, letter is not oraL It is written on the paper you are reading.

As as your questions about who objecting are, are

afraid and they base their fears on. I this: I have declarations
employees at KMC who all worked with Dr. Jadwin and, on the basis of their
observations of his behavior, have safety and privacy concerns about disclosing their
home addresses to him. One declarant mentions his physical aggression towards Dr. Lau.
On the basis of my interviews to date, I believe every employee I have talked to would
sign a similar declaration if asked but I do not believe 20 or 30 declarations are
necessary. The evidence will come out at triaL So, I have settled on five.

The stipulation you have proposed is not acceptable because it, like earlier
versions you have sent, proposes terms that modify the normal rules ways we have
never \vritten about or agreed to. Consequently, we are not signing I am not opposed
to stipulations but I do not believe one is necessary I do not sign "take··lt-or-
leave-it" stipulations sent with threats and deadlines.

I plan to have our motion for a protective order, along with the supporting
declarations, filed within the next few days. As much as I dislike requesting fees from
opposing counsel, I will request fees because this entire exercise is wasteful and
unnecessary. If there are other issues you would like to discuss, in writing, let me know.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via first class mail)

Joan Herrington (via first class mail)
10: narK wasser e ~Io-qqq-~ urr vr

• •
HUE: LdH 1\ilI ['~Ri Ltro

. ,
Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 13 of 20

(21;3) 992-3299
TELEPHONE
LAW OFFICE OF ELEE@LOEL.COM
E-MAIL

EUGENE L E E
(21:3) 596'0487 555 WEST FIFTH STREET, SUITE 3100 WWW.LOEL.COM
FACSIMiLE LOS ANGELES, CALIFORNIA 9001:3-1010 WEBSITE
EUGENE D, LEE, ESQ JOAN E. HERRINGTON, ESQ
PRINCIPAL OF COUNSEL

October 2, 2007
VlA FACSIMILE

Mark Wasser 10001 LOOI

Law Offices of Mark Wasser
400 Capitol Mall Ste 1100
Sacramento, 95814

Re: Defendants' Motion for Protective Order

Jadwin I County of Kern, et aL (USDC EDCA No. 1:07,cv-00026-0WW/TAG)

Dear My.

! am in ree,eipt faxed letter of October 1 ,"~'-"""

In response to Plaintiff's request for an offer of proof, the Fax mentions the existence of 5
witness declarations. Defendants have a duty to share the declarations with Plaintiff as part of
their good faith meet and confer. [Nevada Power Co. v. Monsanio Power Co., 151 F.R.D. 118,
120 (D. Nev. 1993)). Plaintiff requests access to these declarations in order to detennine
whether there is a genuine need to withhold the witnesses' home contact info. If Plaintiff is
convinced of such a need, then Plaintiff may concede the point and Defendants' motion for
protective order will then become unnecessary. However, Plaintiff cannot and will not rely on
your "representations" regarding these declarations.

Defenlda:nts have rejected the of negotiating a written stating "I am not

opposed to stipulations but I do not believe one is necessary here and I not sign 'take,it-or
leave-it' stipulations sent with threats and deadlines." Plaintiff has always been willing to
negotiate the written stipulation with Defendants. Plaintiff even emailed the MS Word file to
Defendants so as to facilitate any revisions which Defendants might have wished to propose. To
date, Defendants have refused.

In addition, unlike Defendants, Plaintiff believes a written stipulation is necessary. Defendants

made the following "representation" in the fax of October 1:

I will accept service of all process and notices on behalf of all parties and all
County employees and, further, will make all parties and employees available to
you upon request I will provide you with all known contact information on any
employees who leave County employment during the pendency of this case. This
is not limited to depositions or attendance at triaL It applies to any request you
have for an employee witness, such as a request to meet with them or conduct an
infonnal interview.
10: narK wasser e tll tl-qc+q-~

• •
r~ .,)1 .,) I'CH'OLI'OJ 1'0; .... ~

Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 14 of 20

This "representation" is too uncertain to meet Plaintiffs needs. For instance, how soon after an
employee leaves County employment will Defendants provide Plaintiff with that employee's
home contact information? Soon enough to ensure Plaintiff can subpoena them for depositions Or
trial? Does "employees" include independent contractors (this became an issue with regard to
David Culberson)? Because of these uncertainties, Plaintiff needs to memorialize Defendants'
representations in a negotiated written stipulation.

Defendants have also stated: "The stipulation you have proposed is not acceptable because it,
like earlier versions you have sent, proposes terms that modifY the normal rules in ways we have
never written about or agreed to." Plaintiff would like clarification on what you consider the
"normal rules"; and Defendants are unwilling to offer any modifications to the proposed

The Fax also stated: "All our representations, indeed, all our communications to you on this topic
other topics for the past few months have been, and still are, written. Hence, the
statements your letter about oral representations are false." went on to state: "Please
letter is not oral. It is on the paper you are reading."

Jaliltltl is aware onhe difference between oral representations. you

should recall that, on September 19,2007, you sent me an email regarding the witness home info
issue where you wrote: "I have made consistent representations to you, since our first telephone
conversation over 6 months ago, and have stood by them." Any representations which you made
to me during that call were oral representations.

We look forward to your response. Hopefully, we can avoid the need for a motion for protective
order by amicably resolving this among ourselves. Please do not hesitate to contact me with any
questions.

cc: Joan Herrington, Esq.

enc: Proposed Stipulation

2
 •
Case 1:07-cv-00026-OWW-TAG
Law Offices of
Document 58
MARK A. WASSER
400 Capitol Mall, Suite 1100
Sacramemo, Calitornia 95814
•
Filed 10/12/2007

Office: 916-444-6400 Fax: 916-444-6405

Page 15 of 20

ffiwasser@marl-wasser.com

October 3 2007

&

Eugene Lee
Law Offices of Eugene Lee
StreeL Suite 3100
3-1010

Re: Jadwin v. County ofKern, et af,

Dear . Lee:

Corresponding with you could become a Ji.l!i-time job.

Vel/(w'a Power Co. v. Monsanto Povl'er Co. does not require the Defendants to
"share the declarations PlaintitTas part of their good meet and confer."
case requires that an "objecting part}" otTer such factual support for position as "vill
allow the party seeking discovery to make an informed evaluation of the claim ...". We
have done that. To be doubly sure we have done that, let me summarize the declarations
again for you.

Five employees have signed declarations objecting to disclosure of their home

addresses to Dr. Jadwin on grounds of safety and privacy. The declarations recite that
this case arose out of work-related issues, does not involve any of the employees in their
personal or private lives, that they all believe their private lives should be kept separate
from their work careers, that they are all available at their work addresses to be contacted
in connection with this case and they do not want Dr. Jadwin to know where they live.
Two of the employees state that Dr. Jadwin is emotional and confrontational and one
states that Dr. Jadwin verbally assaulted her several times, physically assaulted another
physician at KMC and that she does not trust him.

As with your last letter, you pose a series of questions to make this appear more
complicated than it is. We will provide contact information on departing employees

Admitted to Practice in California and Nevada

 Eugene Lee
October 3, 2007
Page 2
•
Case 1:07-cv-00026-OWW-TAG Document 58
•
Filed 10/12/2007 Page 16 of 20

when it is available. This is not a "trick" answer. We have no interest in concealing any
employee and we will do our best to insure that all employees are kept available to
testify, either formally or informally. I am, as usual surprised that you raise these
concerns because I would suspect Dr. Jadwin would be the one to want employees
concealed. Their testimony will hurt him, not the Defendants. The employees will be the
source of information about Dr. Jadwin's behavior. They are the ones who know how he
drove other people out of the Pathology DepartmenL how he to acted by intimidation and
hostility, how he threatened his co-workers and how he created stress in the workplace.
Their testimony will be central to the case and we will do all in our power to make them
to

Your comment about m) September j 9 letter makes poinL our

representations have been consistent for over 6 months. I first made them orally but they
have been 111ade and repeated in \\Titing since then because you I no longer

Like you, \ve like to the a nrc,tp,-ti"p order

a motion to compel and a protective order seems advisable.

Very Truly Yours,

Mark A. Wasser

cc: Karen Barnes (via first class 111ail)

Joan Herrington (via first class mail)
TO: MarK wasser ~ Mlb-qqq-~ trOll: Law un Ice or t.~llt Lt::t: r~ £/.J IVHNI'Uf I I ;>J! tJIl

Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 17 of 20

(Z 13) 992-3299
TELEPHONE
LAW OFFICE OF ELEE@LOEL.COM
E-MAiL

EUGENE L E E
(213) 596-0487 555 WEST ~IFTH STREET, SUITE 31 DQ WWW.LOELCOM
F'ACSiM1LE LOS ANGELES, CALIFORNIA 90013-1010 WEBSITE:
EUGENE D, L.EE, E$Q JOAN E. HERRlNGTON, ESQ
PRINCIPAL OF COUNSEL

October 5, 2007
vlA FACSIMILE

Mark Wasser 10001 LOOI

Law Offices Mark Wasser
400 Capitol Mall Ste 1100
CA 95814

Re: Defendants' Motion for Protective Order

Jadwin / County of Kern, et al. (USDC EDCA No, 1:07-cv-00026-0WW/TAG)

Dear ML Wasser:

I am in rec:en11 of your faxed letter of October 3

According to the Fax, tbe employee-declarants state:

that tbis case arose out of work-related issues, does not involve any of the
employees in their personal or private lives, that they all believe their private lives
should be kept separate from their work careers, that they are all available at
work addresses to be contacted in connection with this case and they do not want
Dc Jadwin to know where they live,

In other words, the declarants have ordinary privacy concerns,

PRCP 26(a)(I) expresses the legislature's will that parties be provided witnesses' home contact
information notwithstanding privacy concerns, In Folsom v, Hearlland Bank, the court ruled that
defendants have a duty to disclose the horne contact information for witnesses under FRCP
26(a)(l):

The identified former and current employees directly worked on the loan between
plaintiffs and Heartland which is the subject of this litigation [, , , ,J Such
individuals appear likely to have discoverable information relevant to disputed
facts alleged with particularity, Fed, R, Civ, P, 26(a)(lXA) thus requires
Heartland to disclose their known 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 knows of no other address and
number: Dixon v, Cerlainleed Corp" 164 F,R,D, 685, 689 (D, Kan, 1996) Rule
26(a)(l)(A) contemplates disclosure of the personal address and telephone
number of identified individuals.
1999 Us, Disl LEXlS 7814 (D, Kan, 1999)(emphasis added),
 rrUll: LOW vrr I"'G VI UJ~II'V Lt;ti r~ »1 "OJ IU/U>.I/UI ! B ;>.1, P'"

Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 18 of 20

Ordinary privacy concerns do not trump Plaintiff's right to ilie witnesses' home contact
infonuation as expressed by FRCP 26(a)(1). lfyou have caselaw suggesting otherwise, please
provide us such citations as part of your good faith meet and confer.

The Fax leaves a number of Plaintiff's questions unanswered. Defendants had stated in their fax
of October I: "The stipulation you have proposed is not acceptable because it, like earlier
versions you have sent, proposes tenus iliat modi!)' the normal rules in ways we have never
written or agreed to." Plaintiff still awaits clarification on what Defendants consider
"normal rules".

Plaintiffs letter of October 1 had also asked: Which of the witnesses listed on Defendants
sci'Jsures are as op:pm;ed to i·l1dE'pendent
contractors [and how can Plaintiffbe SUTe which are encompassed Defendants'
"representations"]? Plaintiffs proposed stipulation addresses this issue.

li"~;"'rstates "Like you, we would like to avoid the need for a protective order."
like to take this base agreement one step and idea of a
written A '.\Titten would avoid the need for motion for
protective order while accomplishing the goals Plaintiff has always been, and
remains, willing to negotiate a written stipulation with Defendants which completely obviates the
need for such a motion.

Plaintiff has already on numerous occasions provided Defendants with the draft stipulation as a
starting point for discussions. Please let us know if you require another copy.

We look forward to your response. Hopefully, we can avoid the need for a motion for protective
order by amicably resolving this among ourselves. Please do not hesitate to contact me with any
questions.

Very -frilIV
N'\ y'ours.'
"
,.I ....

,\

cc: Joan Herrington, Esq.

2
 Law Offices of
Case 1:07-cv-00026-OWW-TAG Document 58 Filed 10/12/2007 Page 19 of 20
MARK A. WASSER
400 Capirol?Y1all, Suite 1100
Sacramento, California 95814
Office: 916-444-6400 Fax: 916-444-6405
ffi\VaSSer@marlnvasser.com

October 5, 2007

&

Eugene Lee
Law OHices
555
Los Ange:les, 1010

Re: ef al.

Dear M1'. Lee:

While we both apparently want to avoid the motion for a protective order, your
motion to compel is still pending and the letter you faxed late last night seems to take an
even less l1exible position on home addresses than your earlier correspondence,
Comparing it with, for example, the e-mail and draft stipulation you sent me on
September 18, it appears your position on home addresses has hardened, Then, you were
focusing on home addresses for only former employees, Now, you want home addresses
for including independent eontractors, may recall. we gave you
address of David Culberson's County does not have his home address,
01'. Roy has relocated to Alabama, To my knowledge, no one at the County knows
where he lives. There are other examples but two suffices to make the point

I think we just disagree, You believe Rule 26 requires home addresses while we
believe it simply requires addresses that will ensure witness availability, The goal, after
alL is to contact witnesses, If the address disclosed enables that contact it should not
matter whether it is a "home" address or a business address, We have gone to some
lengths to guarantee that we will make all employee witnesses available but you still find
our efforts unsatisfactory, As far as a stipulation goes, I do not know what to propose,
You insist on home addresses and we continue to believe we have fully satisfied Rule 26
by disclosing individual business addresses and guaranteeing availability of all
employees, As I wrote several days ago, I do not understand your concern, Maybe if I
did, we could better meet it

Admitted to Practice in California and Nevada

Case 1:07-cv-00026-OWW-TAG
Eugene Lee Document 58 Filed 10/12/2007 Page 20 of 20
October 5. 2007
Page 2

As much as I wish it were otherwise. it appears the Court will need to provide
guidance on this. I see no other resolution in sight.

Truly Yours.

cc: Karen Barnes (via first class mail)

Joan Herrington (via first class mail)