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214 P Request for Reconsideration re Doc. 207

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

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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: elee@LOEL.com Attorneys for Plaintiff DAVID F. JADWIN, D.O. UNITED STATES DISTRICT COURT

7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID F. JADWIN, D.O., 10 Plaintiff, 11 v. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff”) respectfully submits the following points and authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldner’s August 22, 2008 order (“Order”, Doc. 207) granting in part and denying in part Plaintiff’s letter request re: discovery disputes (“Request”). (Doc. 202). I. INTRODUCTION Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center (“KMC”) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint alleges, among other things, that Defendants engaged in the following illegal acts: defamation, whistleblower retaliation, disability discrimination and failure to accommodate, medical leave interference and retaliation, demotion and pay reduction without due process, and Fair Labor Standard COUNTY OF KERN; et al. Defendants. PLAINTIFF’S REQUEST FOR RECONSIDERATION BY THE DISTRICT COURT OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S REQUEST RE DISCOVERY DISPUTE (Doc. 202, 207) [28 U.S.C. § 636(b)(1)(A); Local Rule 72-303] Date Action Filed: Date Set for Trial: January 6, 2007 December 2, 2008 Case No. 1:07-cv-00026-OWW-TAG

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Act violations. When Plaintiff began reporting several patient care quality issues at KMC starting in 2001, Defendants responded by singling out and targeting Plaintiff for harassment, retaliation and humiliation over the course of the next six years. In 2005, Defendants’ conduct finally caused Plaintiff to suffer clinical depression. When Plaintiff began reduced work schedule sick leave in 2006 to treat his depression, Defendants responded by demoting him and retaliating against him further, effectively ending Plaintiff’s pathology chair career. II. PROCEDURAL HISTORY This is the third Request for Reconsideration of Judge Goldner’s rulings which Plaintiff is filing in this action. Plaintiff has been materially prejudiced by the rulings of this Court and Plaintiff intends to pursue appellate remedies at the appropriate time. A. Late Production of Documents On October 11, 2007, Plaintiff David F. Jadwin (“Plaintiff”) served Requests for Production of Documents, Set One (“RPD1”) on Defendant County of Kern (“Defendant”). Defendants’ responses were deficient and Plaintiff moved to compel on December 21, 2007. Judge Goldner did not issue her order, granting in part and denying in part Plaintiff’s motion until May 9, 2008, almost 5 months later. (Doc. 124, Exhibit 2). At that time, the Court took the opportunity to issue a sweeping protective order, sua sponte, re: federal right of privacy against Plaintiff. The federal right of privacy was never discussed in any of the written briefings or even at the motion hearing. The Court conducted the privacy balancing test on its own without affording Plaintiff a due process opportunity to provide input on the balancing test or to be heard on the matter. Negotiating the resulting protective order further delayed production of the documents. (Doc. 137). On June 16, 2008, just weeks before the discovery cutoff, Plaintiff was finally granted access to the thousands of pages of documents which Plaintiff had requested 8 months earlier. Defendants withheld numerous documents pursuant to Judge Goldner’s privacy protective order. For instance, Plaintiff was denied access to any personnel files other than his own. Due to the 8-month delay in gaining access to the documents requested by Plaintiff, Plaintiff was not able to conduct critical depositions. Plaintiff spent the 8-month waiting time conducting depositions which focused on Defendants’ affirmative defenses.

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B. Refusal to Produce Deponents On July 3, 2008, Plaintiff – finally in receipt of critical documents – noticed 17 depositions of party deponents and key witnesses to occur over a one month-long period of time spanning from July 15, 2008 to August 14, 2008. Defendants sent a fax stating their refusal to produce a single deponent, arguing that the depositions were excessive and abusive. Defendants granted themselves this “stay” in the absence of a court order or even a motion. Defense counsel later mentioned to Plaintiff that he had a trial at the end of July, although defense counsel never notified Plaintiff of his unavailability beforehand, nor did he produce any deponents that had been scheduled for deposition from August 1 to August 17, after his trial had ended. Plaintiff moved to compel the depositions and requested sanctions. (Doc. 183). Plaintiff confirmed Judge Goldner’s availability with the clerk and applied ex parte for an order shortening time, due to the fact that discovery was due to close on August 18 (Doc. 164). Judge Goldner denied Plaintiff’s ex parte application (Doc. 167); moreover, Judge Goldner re-set the hearing on Plaintiff’s motion calendared for August 5, 2008 to coincide with Defendants’ motion for protective order, to be heard one day later on August 6, 2008, further prejudicing Plaintiff by yet another day. Meanwhile, Plaintiff continued to be prejudiced by the fact that Defendants had not yet produced a single deponent and the discovery cutoff was fast approaching. At the hearing, Judge Goldner granted Plaintiff’s motion to compel the depositions and ordered that Plaintiff conduct the 17 requested depositions consecutively over 11 weekdays, with the first deposition to start the very next day on August 7, 2008. (Doc. 194). Judge Goldner also denied Plaintiff’s request for sanctions, finding that defense counsel’s depositions in July and two-day trial at the end of July substantially justified his refusal to produce any of the 17 deponents which Plaintiff had scheduled for depositions from July 15, 2008 through August 17, 2008. Judge Goldner’s order did not explain how defense counsel’s trial and deposition schedule in July excused his refusal to produce any deponents scheduled for the month of August. Plaintiff was prejudiced in that the depositions originally scheduled to begin on July 15, 2008, were now scheduled to begin more than 3 weeks later and with the discovery cutoff looming. Moreover, Plaintiff was now effectively denied the opportunity to schedule and conduct followup depositions.

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C. Obstruction of Depositions During the first 10 of 17 depositions which Judge Goldner had ordered the parties to begin on August 7, 2008, defense counsel engaged in numerous inappropriate speaking objections and instructions not to answer. At one deposition, defense counsel grabbed Plaintiff’s counsel’s webcam 3 times without permission, breaking it on the third instance. The parties requested two telephonic conferences with Judge Goldner. On August 18, 2008, Judge Goldner ruled that defense counsel had made improper instructions not to answer and ordered the re-convening of 4 depositions. (Doc. 200). However, Judge Goldner denied Plaintiff’s request for protective order and for sanctions. On August 21, 2008, Judge Goldner ruled that defense counsel had yet again made an improper instruction not to answer in deposition. She also ruled that defense counsel had engaged in improper speaking objections no less than 11 times in a single deposition based upon her review of an incomplete “dirty” deposition transcript. (Doc. 207). Her ruling contained an “admonition” of defense counsel, but denied Plaintiff’s request for protective order and sanctions. She ordered the parties to re-convene two more depositions, bringing the total to 6 depositions reconvened out of only 10 taken. Despite the fact Judge Goldner had not yet tried issuing sanctions or protective orders against Defendants for their repeated misconduct, she nevertheless found it appropriate to grant Defendants’ request and appoint a special master over Plaintiff’s objections. She further ordered the parties to bear the $300 per hour cost on a 50/50 basis. At the hearing, Judge Goldner mentioned a friend of hers in Bakersfield who would be “perfect” for the assignment. Plaintiff objected to appointment of a special master, the additional expense involved, and appointment of a special master from Bakersfield, particularly given that the remaining depositions would be held in the Los Angeles area. On August 27, 2008, Plaintiff filed his formal objections to the appointment of a Special Master. (Doc. 212). D. Issuance of a Protective Order against Plaintiff In her order of August 21, 2008, Judge Goldner granted Plaintiff’s request for protective order against defense counsel’s touching his property without permission in light of the fact that defense counsel had broken Plaintiff’s webcam. (Doc. 207). However, she sua sponte issued a parallel protective

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order against Plaintiff, even though Plaintiff had not touched any of defense counsel’s property without permission, much less broken it, and even though defense counsel had not requested it. Moreover, she denied Plaintiff’s request for sanctions. At the hearing, Plaintiff took exception to this ruling and specifically asked Judge Goldner to explain the basis for her ruling so that Plaintiff could pursue a request for reconsideration. Judge Goldner refused to do so. Instead, she issued the written order the very next day, stating grounds which had never been discussed at the hearing. Plaintiff was never afforded a basic due process opportunity to respond to the new factors cited by Judge Goldner in her order, as has been customary throughout this action. III. AUTHORITY FOR MOTION A District Court judge may reconsider pre-trial matters where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Local Rule 72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). IV. ARGUMENT A. Plaintiff Objects to Appointment of a Special Master A court may appoint a special master to address pretrial and post-trial matters “that cannot be addressed effectively and timely by an available district judge or magistrate judge of the district.” FRCP 53(a)(1)(C) (emphasis added); see In re Armco, Inc. (8th Cir. 1985) 770 F2d 103, 105 (decided under former Rule 53). The test for appointment of a pretrial master is whether a judge or magistrate judge is unable to handle the pretrial matter in an effective and timely fashion. See FRCP 53(a)(1)(C). “In appointing a master, the court must consider the fairness of imposing the likely expenses on the parties and must protect against unreasonable expense or delay.” FRCP 53(a)(3). At the court hearing held on August 21, 2008, Defendants requested appointment of a special master for all future depositions. Plaintiff objected to the extra cost as well as the appointment of a special master from Bakersfield due to concerns over bias. Judge Goldner has not demonstrated this Court’s inability to address the parties’ deposition

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disputes effectively and timely. She has not once attempted the intermediate measures of issuing protective orders or imposing sanctions on Defendants for their persistent, obstructive conduct. This is despite the fact that the Court has found it necessary to order the re-convening of no less than 6 out of 10 depositions because of defense counsel’s numerous improper instructions not to answer and in the case of one deposition alone, at least 11 improper speaking objections. Instead of attempting intermediate remedies such as protective orders and sanctions, Judge Goldner now takes the drastic step of granting Defendants’ request and appointing a special master. This flies in the face of Rule 53. Moreover, appointment of a special master is unfair to and imposes unreasonable expense on Plaintiff. Plaintiff’s conduct did not engender any of the current deposition disputes; Defendants’ conduct did. Defendants bears all of the blame for forcing the re-convening of 6 out of 10 depositions due to their speaking objections and improper instructions not to answer. Finally, Plaintiff objects to Judge Goldner’s nomination of her friend, Kenneth Byrum of Bakersfield, as special master. Most of the remaining depositions (9/2/08 to 9/5/08) are to be conducted in Los Angeles, not Bakersfield. If a special master is to be appointed, he should be from the Los Angeles-area so as to avoid even greater unnecessary expense (in the form of hotel and travel expense reimbursements for the special master) for Plaintiff. B. Issuance of a Protective Order against Plaintiff Is Inappropriate Judge Goldner based her sua sponte issuance of a protective order against Plaintiff and denial of sanctions on several alleged behaviors of Plaintiff’s counsel. 1. Inappropriate Filming of Defense Counsel

21 Judge Goldner criticized Plaintiff’s counsel for filming defense counsel during the deposition: 22 23 24 25 26 27 28 Plaintiff’s counsel uses two web cameras to film the depositions. One of his web cameras is trained on the deponent, and the other is trained on Defendants’ counsel. However, neither Defendants nor their counsel have objected to this arrangement. Defendants have also arranged to have most of the depositions videotaped by a professional videographer. (Doc. 207, 2:3-6). The Court finds it to be wholly inappropriate to train a dedicated web camera on opposing counsel throughout a deposition, and notes that the presence of such a camera, in and of itself, is likely to annoy one's opposing counsel. Nevertheless, the Court also notes that Defendants' counsel has not objected to the use of the web camera. (Doc. 6:21-25).

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1 Judge Goldner describes Plaintiff’s counsel as “training” a camera on Defendants’ counsel like a 2 weapon, but describes Defendants as having merely “arranged to have most of the depositions 3 videotaped by a professional videographer”. She later suggests Plaintiff’s inappropriate “training” of a 4 camera on defense counsel “in and of itself” likely annoyed defense counsel. 5 This is a distortion of the facts that clearly came out at the telephone conference. As defense 6 counsel admitted at the conference call with Judge Goldner, defense counsel too had hired a 7 videographer who had a camera “trained” at Plaintiff’s counsel at the majority of the depositions. The 8 filming of opposing counsel was a mutually-arrived at arrangement which defense counsel favorably 9 described at the hearing as having created a calmer atmosphere in depositions. Attached hereto as 10 Exhibit 1 is a true and correct copy of defense counsel’s email to Plaintiff’s counsel, notifying him that 11 Defendants intended to “train” a camera at Plaintiff’s counsel at each deposition. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 At the hearing, Judge Goldner chided Plaintiff’s counsel for adjourning the deposition after 28 2. Escalation of Conflict Judge Goldner criticized Plaintiff’s counsel for escalating the conflict: Plaintiff's counsel should have refrained from escalating the conflict after the witness denied that she had been coached by "foot tap.” There was no need for either counsel to threaten or insult the other, and no need for Plaintiff's counsel to goad Defendants' counsel by obtaining possession of his phone and then refusing to return it to him, as a retaliation in kind that only exacerbated the situation. .Plaintiff’s counsel did not “obtain” possession of defense counsel’s phone. Defense counsel handed the phone to Plaintiff’s counsel, saying “Here”. (Doc. 207, 5:3-6). When he asked for it back, Plaintiff’s counsel handed it to him. Judge Goldner described defense counsel as merely “moving” Plaintiff’s counsel’s camera: “Defendants' counsel should have refrained from moving the web camera”. Defense counsel did not “move” Plaintiff’s counsel’s webcams, he grabbed them by their stalks three times and broke one of them. The transcript establishes this: Mr. Lee: Let the record reflect that Mr. Wassser has grabbed the camera by the stalk. The instructions on the camera specifically state you’re only to grab it by the base. If you’ve damaged that camera, I’m going to ask for - - you to pay for that. (Doc. 207, 6:2-4).

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defense counsel broke his webcam. Plaintiff replied he had little choice given the risk of escalation of the conflict with defense counsel. Judge Goldner was unpersuaded. Yet, at the very next deposition (of Supervisor Barbara Patrick), defense counsel continued to threaten to touch Plaintiff’s counsel’s equipment. Plaintiff’s counsel repeatedly requested an assurance that defense counsel would not break any more of his equipment: MR. LEE: Mr. Wasser, I'm going to ask you again, are you going to give us an assurance you're not going to be touching my equipment without my permission? MR. WASSER: If I touch your equipment, I'll tell you beforehand. (Doc. 202-3, 5:7-12). Judge Goldner acted sua sponte when she issued a protective order against Plaintiff’s counsel.

9 Defendants did not request a protective order against Plaintiff’s counsel’s touching of defense counsel’s 10 property without his permission because Plaintiff’s counsel has never done so. She cited grounds in 11 support of her order which she refused to divulge to Plaintiff’s counsel at the hearing when requested. 12 Had she done so, Plaintiff’s counsel would have vigorously opposed her finding that Plaintiff’s counsel 13 “trained” his camera like a weapon on defense counsel potentially irritating him, or “obtained” 14 possession of defense counsel’s phone and refused to hand it back, or that defense counsel merely 15 “moved” Plaintiff’s counsel’s cameras. These characterizations of events distort the events as they were 16 related to Judge Goldner at the hearing. 17 V. CONCLUSION 18 Plaintiff must respectfully object that Judge Goldner’s order is clearly erroneous and contrary to 19 law for the foregoing reasons. Plaintiff has been materially prejudiced by Judge Goldner’s rulings in this 20 action, of which her order (Doc. 207) is but the latest example. Plaintiff requests that the Court 21 reconsider Magistrate Judge Goldner’s order. 22 Defense counsel inappropriately refused to produce any of 17 deponents scheduled for 23 depositions over a one-month period from July 15 to August 14, 2008. When the depositions were 24 finally underway, defense counsel engaged in numerous improper instructions not to answer and 25 speaking objections, ultimately forcing the re-convening of 6 out of 10 depositions. Despite this blatant 26 obstruction, Judge Goldner repeatedly denied Plaintiff’s requests for sanctions and protective orders. In 27 contrast, Judge Goldner was quick to issue a protective order against Plaintiff’s counsel, sua sponte and 28

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based on grounds which she refused to divulge at the hearing itself despite Plaintiff’s request. Moreover, she granted Defendants’ request for appointment of a Special Master over Plaintiff’s objections and ruled that the parties should bear the cost 50/50. The appointment of a Special Master is unmerited given Judge Goldner has yet to attempt the intermediate remedies of sanctions and protective orders. Moreover, the extra cost is unfair to Plaintiff given Plaintiff has not engendered the numerous disputes which have arisen in depositions. This is the third request for reconsideration of Judge Goldner’s ruling which Plaintiff has filed in this action. It would come as no surprise to Plaintiff if there were a fourth.

Respectfully submitted on September 2, 2008.

/s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: elee@LOEL.com Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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EXHIBITS

EXHIBIT 1. Email from Defendants to Plaintiff noticing intent to videotape Plaintiff’s counsel

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EXHIBIT 1. Email from Defendants to Plaintiff noticing intent to videotape Plaintiff’s counsel

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Subject: Gene,

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Mark Wasser [mwasser@markwasser.com] Sunday, August 03, 2008 9:58 AM Eugene Lee Videotaped depositions.

The Defendants will videotape Plaintiff’s counsel at all future videotaped depositions. Mark

Law Offices of Mark A. Wasser
400 Capitol Mall, Suite 2640 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: mwasser@markwasser.com

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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.