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180 P EPA Shorten MPO Expert Depos - D Memo

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					Case 1:07-cv-00026-OWW-TAG
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Mark A. Wasser CA SB #060160 Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 400 Capitol Mall, Suite 2640 Sacramento, California 95814 Sacramento, California 95814 Phone: (916) 444-6400 Phone: (916) 444-6400 Fax: (916) 444-6405 Fax: (916) 444-6405 E-mail: mwasser@markwasser.com E-mail: mwasser@markwasser.com Bernard C. Barmmill, Sr. SB #060508 Bernard C. Barmmill, Sr. SB #060508 KERN COUNTY COUNSEL KERN COUNTY COUNSEL Mark Nations, Chief Deputy SB #101838 Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor 1115 Truxtun Avenue, Fourth Bakersfield, California 93301 Bakersfield, California 93301 Phone: (661) 868-3800 Phone: (661) 868-3800 Fax: (661) 868-3805 Fax: (661) 868-3805 E-mail: mnations@co.kern.ca.us E-mail: mnations@co.kern.ca.us Attorneys for Defendants Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy and William Roy

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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DAVID F. DAVID F. JADWIN, D.O.
Plaintiff,

Case No.: 1:07-cv-00026-0WW-TAG

COUNTY COUNTY OF KERN, et aI.,
Defendants.

DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDER RE: EXPERT DEPOSITIONS
Date Action Filed: January 6, 2007 Trial Date: December 2, 2008

Defendants submit this memorandum in response to Plaintiff s ex parte application for an application for an order shortening time re motion for protective order re expert depositions. Defendants do not object to shortening time for service and hearing on Plaintiffs motion motion and request that it be set for either August 5 or August 6, when the parties have other motions motions pending. Plaintiff has a motion to compel set for August 5 and Defendants have a motion for a for a protective order set for August 6. protective order set for August 6.
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DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR AN DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDER RE: EXPERT DEPOSITIONS ORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDER RE: EXPERT DEPOSITIONS

Case 1:07-cv-00026-OWW-TAG

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Defendants also request that the hearings on August 5 and August 6 be consolidated on Defendants 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 II II 12 12
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whichever of those two dates is better for the Court so that all the matters, including this matter, whichever can be heard at the same time. can be heard Pursuant to Section XVII(1) of the Scheduling Order, the Defendants report to the Court that it appears the schedule set forth in the Scheduling Order cannot be met. On June 30, 2008, that it appears Plaintiff announced his intention to take upwards of25 depositions in the approximately 30 Plaintiff working days left before the discovery cut-off. On July 25,2008, Plaintiff informed Defendants working that Plaintiff s experts were not available for deposition before the discovery cut-off on August that Plaintiff 18. Although Defendants offered to extend the discovery cut-off one week to accommodate 18. Although Plaintiffs experts, Plaintiff refused to stipulate to a one-week extension of discovery. Thus, it Plaintiffs does not appear discovery can be completed before the discovery cut-off. does not There are several additional discovery issues that require the Court's consideration. There These include: These include:
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In the Joint Scheduling Report, Plaintiff announced his intention to use his

attorney attorney to operate the video camera and prepare the videotape of depositions. This has proven unsatisfactory. unsatisfactory. Plaintiff has been unable to provide Defendants with copies of videotapes he has prepared prepared and Defendants understand Plaintiff cannot access or retrieve videotapes of the depositions depositions he videotaped. Because Plaintiff has announced his intention to videotape Defendants' Defendants' counsel at future depositions, it is necessary that videotaped depositions be conducted conducted professionally by competent videographers who are able to prepare and maintain an accurate accurate videotape in accordance with Rule 30.

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Plaintiff has filed a motion to amend the complaint that is set for hearing on

September September 8, 2008. The motion was initially set for hearing before Judge Wanger but was transferred transferred to the Magistrate Judge. Defendants' counsel is on vacation in Mexico from September September 6 through September 14. The vacation plans are prepaid and were scheduled long before Plaintiff before Plaintiff filed his motion. Defendants request the motion be rescheduled to either before September September 6 or after September 14.

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The extent to which the Scheduling Order needs to be amended depends on the

number of depositions Plaintiff will be permitted to take and whether Plaintiff is permitted to number amend his complaint. If the Court allows him to take upwards of 40 depositions and amend his amend his complaint, as he has requested, the Scheduling Order will require substantial revision and the complaint, trial date will need to be continued. Defendants oppose doing so but the issue presents itself. It trial date will be helpful if these issues can be addressed sooner as opposed to later. will be helpful
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Defendants believe the parties require more assistance from the Court in

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scheduling matters and request the Court direct the parties in this regard. Defendants have made scheduling telephone inquiry with Court staff regarding the Court's availability to assist in resolving telephone discovery issues but have not received a reply. discovery Finally, and with respect to Plaintiffs statement that he provided Defendants with Finally,
available available dates for expert depositions "not once but twice," this is true. The first set of dates Plaintiff Plaintiff provided were in mid-July when Defendants' counsel was in depositions and trial in Orange County Orange County Superior Court and the second set of dates were during the week of August 25, 2008, more 2008, more than a week after the discovery cut-off. Defendants' offered to extend the discovery cut-off one cut-off one week and prepared a stipulation for that purpose but Plaintiff refused to approve it. When it When it was evident that the parties' would not resolve the scheduling issue, Defendants noticed the expert the expert depositions for dates before the discovery cut-off to prevent Plaintiff from contending Defendants Defendants had waived the right to depose them by failing to notice the depositions timely. Hence, Hence, the present issue with expert depositions. Plaintiffs Plaintiffs counsel is not candid with this Court about the basis for the parties' discovery difficulties. difficulties. These continuing discovery issues are the result of a complete breakdown in commwlications commwlications between the parties and Plaintiffs persistent gamesmanship over every issue. Defendants Defendants believe the parties would benefit from more assistance from the Court in addressing
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and resolving these issues ffild preventing a continuing series of discovery motions and repeated revisions to the Scheduling Order. Respectfully submitted, Dated: August I, 2008 LAW OFFICES OF MARK A. WASSER

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By:

lsi Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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-4. DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDER RE: EXPERT DEPOSITIONS


				
DOCUMENT INFO
Description: David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.