"183 P MTC Depos - D Opp"
Case 1:07-cv-00026-OWW-TAG I 2 3 4 Document 183 Filed 08/01/2008 Page 1 of 4 Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasseLcom Bernard C. Barman, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: firstname.lastname@example.org Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DAVID F. JADWIN, D.O. Plaintiff, vs. COUNTY OF KERN, et aI., Defendants. Case No.: 1:07-cv-00026-0WW-TAG DECLARATION OF MARKA. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL Date: August 5, 2008 Time: 9:30 a.m. Place: U.S. Bankruptcy Courthouse, Bakersfield Courtroom 8 Date Action Filed: January 6, 2007 Trial Date: December 2, 2008 23 24 25 26 27 28 -1DECLARAnON OF MARK A. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL I, Mark A. Wasser, declare as follows: 1. 1 am counsel of record for Defendants and am familiar with this action. The facts stated in this declaration are within my own personal knowledge and I can testify competently to them if called as a witness. Case 1:07-cv-00026-OWW-TAG Document 183 Filed 08/01/2008 Page 2 of 4 1 2. Plaintiff has noticed 17 additional depositions on top of the 16 he has already 2 3 4 taken. He has also indicated the desire to depose at least some of Defendants' experts and supplemental experts. This will apparently lead to another 3 or 4 depositions. That would bring the total number of depositions by Plaintiff to about 40. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Nothing about this case justifies the number of depositions Plaintiff has taken. When Defendants agreed to give Plaintiff "relief' from the limitation in Rule 30 they were merely consenting to reasonable discovery, not unlimited wasteful depositions. 4. The depositions Plaintiff wants to take cannot be completed before the discovery cut-off. Defendants proposed extending the discovery cut-off one week to accommodate limited depositions, however, Plaintiff insisted on an indefinite extension. Extending the discovery cutoff indefinitely jeopardizes the Scheduling Order and Defendants are not only unwilling to do that, they will not do so without approval by the Court. 5. The last deposition Plaintiff took was on April 19, 2008 when he took the deposition of Dr. Marvin Kolb - whom the Defendants flew to Los Angeles from Wisconsin at the Defendants' expense as an accommodation to Plaintiff - and which Plaintiffs counsel adjourned after about 30 minutes and has never attempted to reschedule. For over two months, Plaintiff made no efforts to proceed with any deposition discovery. Then, on June 30, Plaintiffs counsel sent me an e-mail listing 17 additional depositions he wanted to take during the remaining 6 weeks of discovery. These, as noted, were in addition to expert depositions of which there would be between 3 and 4 per side, depending on which experts were deposed. 6. Trying to fit over 25 depositions into about 30 working days is impossible under the best of conditions. Plus, I was scheduled to prepare for and attend 9 depositions during the first weeks in July in Orange County and prepare for and attend a three-day court trial in Orange County Superior Court on July 29, 30 and 31. I was committed almost every day in July. 7. I proposed the few July days I was available as possible dates for the depositions Plaintiff wanted to take but Plaintiff rejected all the dates I proposed. He basically took an "all or nothing" approach to these 17 depositions by demanding they all be set according to his schedule. Plaintiffs counsel has accused the Defendants of imposing a unilateral "stay" on -2DEC LARATION OF MARK A. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL Case 1:07-cv-00026-OWW-TAG Document 183 Filed 08/01/2008 Page 3 of 4 1 2 depositions. Defendants have not "stayed" anything. I was simply not available to attend depositions on the dates Plaintiff selected. Plaintiff never cleared any of the dates with me. 8. If we are to adhere to the Scheduling Order, there is insufficient time remaining to 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 take 25 more depositions. Additionally, Defendants believe Plaintiff has had more than enough opportunity to take depositions and, in fact, has taken more than a reasonable number already. 9. The depositions Plaintiff has taken to date have failed to elicit any relevant evidence regarding his claims and have been largely a waste oftime. Plaintiff has elected to depose witnesses with only the most marginal and remote connection to the case. This wastefulness is at least partly demonstrated by the fact that Plaintiff has not even attempted to reconvene the two depositions he adjourned - despite asking this Court for relief on one of them because they were both a waste oftime before Plaintiff adjourned them. 10. Plaintiff has noticed a motion to amend his complaint but that motion will not be heard until September 8. The proposed amendment adds at least two new theories of recovery against the County: It expands Plaintiff's civil rights claim to include the County and it adds "professional fees" to the monies Plaintiff claims were unlawfully taken from him. Defendants have completed Plaintiff's deposition and the parties have completed their disclosure of experts. Discovery closes on August 18. Defendants oppose Plaintiff's request to amend his complaint but, if is granted, it will require a reopening of the Scheduling Order and a postponement of trial. 11. If Plaintiff is permitted to amend his complaint at this late stage of the proceedings and expand his theories of recovery against the County then Defendants should be given the right to reopen discovery and inquire into the facts Plaintiff believes support his new theories. Defendants should also have the opportunity to let their experts review the new theories and supplement their previous reports to include any opinions relevant to the new theories. Defendants have had no opportunity for their economist, for example, to consider Plaintiff's new claim for "professional fees." Amendment ofthe complaint may require an extension of the discovery cut-off and a second modification of the expert disclosure deadlines in the Scheduling Order. It seems unavoidable that they will impact the trial date. 28 -3DECLARATION OF MARK A. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL Case 1:07-cv-00026-OWW-TAG Document 183 Filed 08/01/2008 Page 4 of 4 1 12. Although they are not directly related to this motion for a protective order, 2 3 4 5 6 7 8 9 10 11 Defendants believe these issues may effect this Court's consideration of the issues presented by Plaintiff's motion to compel. The additional depositions Plaintiff wants to take need to be considered in light of this bigger picture. Defendants believe these issues should be considered together so they can be handled efficiently and comprehensively. Respectfully submitted, Dated: August 1,2008 LAW OFFICES OF MARK A. WASSER By: /s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4DECLARATION OF MARK A. WASSER IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL