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

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

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, et al., Defendants. Complaint Filed: January 6, 2007 Trial Date: May 14, 2009 Civil Action No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS

Plaintiff DAVID F. JADWIN ("Plaintiff" or "Dr. Jadwin") hereby submits his reply to Defendant Kern County’s objections (Doc. 394) to his bill of costs (Doc. 392).

USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 1

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I.

PROCEDURAL BACKGROUND

On May 14, 2009, Plaintiff submitted 9 causes of action to a trial by jury. On June 5, the jury found unanimously for Plaintiff on all 9 causes of action and against Defendant on its affirmative defense. (Doc. 384). The Court entered partial judgment on verdicts of the trial jury on June 18, 2009 (Doc. 389). On June 29, Plaintiff filed his Bill of Costs and accompanying declaration of Eugene Lee, seeking reimbursement of $261,690.22. Defendant filed its objections on July 14, contending that the amount should be reduced by $190, 453.86, more than 70%. II. A. Bill of Costs Is Not Premature Defendant contends: “Plaintiffs cost bill is premature because final judgment has not yet been entered”. (Objections, 1:24). Defendant requests the Court therefore punish Plaintiff by barring recovery of any additional costs incurred after submission of Plaintiff’s bill of costs. Contrary to Defendant’s contention, Federal Rules of Civil Procedure (“FRCP”) 54 sets no specific time limit for filing a bill of costs. See FRCP 54(a); Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co. (7th Cir. 1988) 854 F2d 219, 220. One must therefore look to Local Rule 42-292(b), which states: “Within ten (10) days after entry of judgment or order under which costs may be claimed, the prevailing party may serve on all other parties and file with the Clerk a bill of costs conforming to 28 U.S.C. § 1924”. (emphasis added). It is somewhat unclear to Plaintiff what constitutes an “order under which costs may be claimed” although it is apparently distinct and separate from entry of a final order. This phrase is conspicuously absent from Local Rule 54-293, which provides: “Motions for awards of attorneys' fees to prevailing parties pursuant to statute shall be filed not later than thirty (30) days after entry of final judgment”. (emphasis added). The partial judgment entered by the Court expressly stated that “Plaintiff shall recover damages of $505,457.00 from Defendant Kern County” (Doc. 389, 2:12.5-13.5). Based on that and the ambiguity in L.R. 54-293, Plaintiff was concerned that the Court’s entry of partial judgment could constitute an “order under which costs may be claimed” and thus filed his bill of costs within 10 days thereafter in order to be preserve his right to recover costs. Plaintiff disagrees that he should be punished for his attempt to comply with LR 54-293. USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 1 ARGUMENT

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B. General Standard for Costs In federal law, there is a strong presumption that a prevailing party is entitled to costs, which the losing party must overcome. FRCP 54(d)(1) provides that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” (emphasis added). “By its terms, the rule creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs.” Ass’n of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000). The district court’s discretion to deny costs to the prevailing party is limited and the court must “specify reasons” for its refusal. Id. (citation omitted). Given the presumption “that costs are to be awarded as a matter of course in the ordinary case,” the court is required to “explain why a case is not ‘ordinary’ and why, in the circumstances, it would be inappropriate or inequitable to award costs.” Id. at 593. C. Defendant’s Misconduct Drove Up Plaintiff’s Costs Defendant’s sole contention, which Defendant repeats throughout its objections, is that Plaintiff’s costs are “excessive and not recoverable”. (Objections, 2:28). Plaintiff disagrees. It was Defendant who engaged in a scorched-earth Stalingrad defense of this action that was calculated to drive up Plaintiff’s costs and fees. Defendant’s abusive conduct during discovery was recidivist, ultimately forcing this Court to impose $3,200 of sanctions on Defendant (Doc. 242, 4:3-7), formally admonish Defendant’s counsel for engaging in no less than 11 speaking objections which had caused the re-convening of 6 out of 10 of Plaintiff’s depositions in late 2008 (all at Plaintiff’s expense) (Doc. 207, 10:10-11), grant Plaintiff’s voluminous motions to compel production and responses from Defendant (Docs. 113, 24, 207, 240), and grant Plaintiff’s motion to quash Defendant’s improper attempts to subpoena psychiatric records in violation of an express stipulation not to do so (Doc. 173). Defendant denied Plaintiff’s requests for admission out of hand and as a matter of course and refused to stipulate to basic facts and ancillary legal elements, burdening Plaintiff with the need to retain experts and engage in costly proofs both before and at trial. By way of example, Defendant refused at the outset to acknowledge that Plaintiff had depression, forcing Plaintiff to retain a forensic psychiatrist. Yet Defendant’s own expert, Dr. Robert Burchuk, later rendered the same exact DSM Axis I diagnosis as Plaintiff’s expert: “major depressive disorder recurrent”. In addition, Defendant buried USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 2

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Plaintiff in over 30,000 pages of unorganized and unidentified documents produced in discovery, which included many redundant and unnecessary copies which were nevertheless charged to Plaintiff. Yet, Defendant did not prevail on a single claim or defense at trial. This was after 11 of Plaintiff’s 13 causes of action successfully survived Defendant’s motion for summary judgment. There is no question that Plaintiff brought meritorious claims. As Defendant’s counsel, Mark Wasser, stated in open court and on the record at the pre-trial conference, it was Defendant who elected to “vigorously” defend itself and to use all means at its disposal to punish Plaintiff because Plaintiff “chose” to sue the County. D. Witness Fees Defendant asserts: “The County does not even know who many of these ‘witnesses’ are”. Objections, 3:12-13. Not so. As was fully disclosed (including job titles) to Defendant in Plaintiff’s Rule 26 initial disclosure of August 6, 2007, the witnesses are, with the exception of one, all Defendant’s former employees. Dr. Soheil Etesham is the former Chief of Anesthesiology. Wafika Fahmy is the former Chief Resident, OB/GYN. Dr. Murali Naidu is former Chief Resident, Surgery. Dr. Leonard Perez is the former Chief of OB/GYN and is currently suing Defendant. Erin Baldwin is a former resident and an eyewitness to the infamous tie-pulling incident. Dr. Jose Perez is former President of the Medical Staff. Dr. Bill Taylor is the former Vice-Chair, Surgery. Defendant contends: “However, witness fees are not recoverable for witnesses who were never called to testify.” Objections, 3:6-7. In support of this proposition, Defendant cites Linneman Construction, Inc. v. Montana-Dakota Utilities, 504 F.2d 1365 (1974 8th Cir.). The case is inapposite and has no holding of any such kind. That case focuses instead on the application of the 100 mile witness rule for expense reimbursement purposes and also notes that a significant portion of requested witness fee reimbursements were duplicative. Moreover, Plaintiff had intended to call the witnesses in question and had included them in his trial witness list for that reason (Doc. 336), but they all either failed to respond to the subpoenas or informed Plaintiff of their refusal to appear at court. Plaintiff will promptly reimburse Defendant if he is able to recover their witness fees and/or mileage costs.

USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 3

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E. Mileage Costs Defendant contends: “First, Plaintiff requests reimbursement for mileage costs without indicating whether those amounts have actually been paid”. Objections, 3:17-19. This is not true. Plaintiff’s counsel states on the very first page of his declaration that the charges indicated were in fact paid. Doc. 392-2, 1:8-10. That includes the mileage costs set forth in paragraph 8. Doc. 392-2, 5:11-6:9. Defendant contends: “Travel expenses are not required to be paid at the time of service of the trial subpoena.” Objections, 3:20. This is not true. FRCP 45(b)(1) requires witness fees for one day's attendance and the mileage allowed by law to be tendered at the time of service. See also, Tedder v. Odel (9th Cir. 1989) 890 F2d 210, 211 (fees must be tendered concurrently with subpoena). In support of its contention, Defendant cites to an inapposite district court case out of New Jersey from 1992. The case discusses a predecessor version of 28 U.S.C. 1921 and its inclusion of the phrase “actual expenses of travel”, a phrase that has long since been amended out of that statute thus ending the controversy. Defendant further acknowledges that Sandra Chester “did appear at trial but the County produced her and she made no request for travel reimbursement”. Objections, 4:1-2. That was not discussed with Plaintiff ahead of time or known to him at the time he served her witness subpoena, especially given Ms. Chester had left the employ of the County years before and Defendant had previously represented that it no longer had control over her. The fact that she made no request for reimbursement is of no consequence given Plaintiff’s duty to tender mileage fees at the time of service in order to effect service. F. Service of Process 1. Non-service Defendant contends: “Those are all charges for the service of trial subpoenas for which Plaintiff changed his mind and canceled the service assignment before the process server attempted service.” Objections, 4:7-9. This is not true. Rather, these were witnesses for whom the addresses were believed or determined to be incorrect. At the beginning of this action, Defendant had refused to provide Plaintiff with the contact information of the witnesses listed in its Rule 26 initial disclosures because of alleged privacy concerns, thus hamstringing Plaintiff’s efforts to locate and serve witnesses and driving up costs USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 4

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in the process. 2. Rush Fees. Defendant contends: “There is no basis for collecting "rush" service of process fees for witnesses who were never called.” Objections, 4: 25-26. Defendant further contends: “. . . they are an unnecessary expense, either because the witness was never called at trial or because the trial subpoena was served in sufficient time for the witness to appear, without a rush order being put on the subpoena”. Objections, 27-5:1. Regarding Dr. Etesham, Fahmy, L. Perez, J. Perez, Naidu, and Taylor, Plaintiff had intended to call the witnesses in question and had included them in his trial witness list for that reason (Doc. 336), but they either failed to respond to the subpoenas or informed Plaintiff of their refusal to appear at court. Likewise, Dr. Hoang, Ms. Moreno, Mr. Martinez and Dr. Sproul could not be located despite multiple attempts to serve them. As for Ms. Figueroa, she was never offered to be produced by Defendant. She had left its employ long before and was no longer controlled by them. After receiving Plaintiff’s subpoena, she dutifully contacted Plaintiff’s counsel and agreed to testify. Plaintiff employed a rush service on certain witnesses because it was not certain until late that trial would proceed as calendared. There have been numerous and substantial continuances granted to Defendant in this action (Plaintiff never requested one). Plaintiff delayed serving witness subpoenas out of a concern that there would be further delays in getting to trial. G. Expert Witness Fees Defendant contends: Whether Plaintiff is reimbursed for his expert witnesses' trial time at $40 per day plus travel, or at their hourly rate for the time they actually spent in trial, his authorized reimbursable expert witness expense are a small fraction of what he had requested. The authorized fees range from a low of $160, plus travel, per expert pursuant to 28 U.S.C. §1821, to a high of about $2,000 each, depending on the expert's hourly rate and time in trial. Objections, 6:2-6. Defendant then requests the Court reduce Plaintiff’s expert witness fees by $125,000, but fail to provide any explanation for how it arrived at this specific amount. Objections, 6:7-8. As to Plaintiff’s supplemental state law claims, state law regarding expert witness fee recovery is USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 5

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deemed substantive and is controlling under the Erie doctrine. The Erie doctrine requires federal courts in diversity actions – and when deciding supplemental state law claims in federal question cases – to apply state law as the “rule of decision”. See 28 USC § 1652; Erie Railroad Co. v. Tompkins (1938) 304 US 64, 78. This is interpreted as requiring application of state law on “substantive ” issues. Federal courts apply their own rules of “procedure.” Id. at 78–79). The award of costs is generally treated as “procedural” because federal statutes and rules (28 USC §§ 1821, 1920, and FRCP 54(d)) expressly govern such awards. Chaparral Resources, Inc. v. Monsanto Co. (10th Cir. 1988) 849 F2d 1286, 1291–1292. Likewise, recovery of expert witness fees as costs is an issue of trial procedure and therefore governed by federal, not state, law. Aceves v. Allstate Ins. Co. (9th Cir. 1995) 68 F3d 1160, 1167–1168; Chaparral Resources, Inc. v. Monsanto Co., 849 F2d at 1291–1292. However, where a state law authorizes recovery of costs as an element of compensatory damages, this creates a “substantive right” under the Erie doctrine, trumping the federal rules. Clausen v. M/V NEW CARISSA (9th Cir. 2003) 339 F3d 1049, 1064 (expert witness fees not recoverable under federal costs statute were recoverable as damages under state law). In the instant case, Plaintiff’s claims relating to disability discrimination and medical retaliation under the California Fair Employment & Housing Act (“FEHA”) and the California Family Rights Act (“CFRA”), which is a part of FEHA, are subject to remedies set forth in Cal. Gov’t. C. § 12965. That section expressly authorizes recovery of costs and expert witness fees by the prevailing party: In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity. Caselaw further establishes that the FEHA (and CFRA) expressly authorize the prevailing party

23 to recovery expert witness fees: 24 25 26 27 28 In Davis, supra, 17 Cal.4th 436, the Supreme Court held that, in the absence of any law expressly authorizing the award of the fees of an expert not ordered by the court, those fees may not be recovered by the prevailing party in an FEHA action. (17 Cal.4th at p. 438.) After the 1998 Davis decision, the Legislature amended the FEHA, so that it now expressly authorizes the award of expert witness fees. (Gov. Code, § 12965, subd. (b) [“[i]n actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees …”].) The words “including expert witness fees” were added by amendment in 1999. (Stats. USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 6

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1999, ch. 591, § 12.) Accordingly, it is evident that the FEHA now expressly authorizes the award of expert fees. Anthony v. City of Los Angeles, 166 Cal. App. 4th 1011, 1017 (Cal. App. 2d Dist. 2008) (footnote omitted) Plaintiff prevailed on his supplemental California FEHA/CFRA claims and is therefore expressly

4 entitled to recover his expert witness fees under the Erie doctrine. 5 H. Deposition Costs 6 When the taking of a deposition was reasonably necessary, even though it may not have been 7 actually used at trial, the costs recoverable by the prevailing party may include the reasonable fee of the 8 officer before whom the deposition was taken, the cost of notarial certificate and postage if the 9 deposition was mailed, reasonable stenographic expense in taking and transcribing the deposition (but 10 not the cost of an extra copy), fees and mileage allowances of witnesses, and, in a proper case, an 11 interpreter's fee. See 6 Moore's Federal Practice ¶ 54.77(4) (2d ed. 1982). 12 Defendant insinuates Plaintiff took too many depositions: “Plaintiff took depositions of 40 13 witnesses, well in excess of the number of depositions allowed by law”. Objections, 6:15-16. Yet, 14 Defendant disclosed an overwhelming number of material witnesses in discovery. For instance, in 15 response to Plaintiff’s interrogatory no. 3 asking for every fact in support of Defendant’s affirmative 16 defense, Defendant cited 19 material witnesses by name (in addition to citing numerous departments and 17 committees at Kern Medical Center which Defendant consistently alleged were offended as a whole by 18 Plaintiff’s alleged misconduct): Chester Lau, Scott Ragland, William Roy, Jennifer Abraham, Eugene 19 Kercher, Irwin Harris, Javad Naderi, Bill Taylor, Bert McBride, Maureen Martin, Elsa Ang, Adam 20 Lang, Fangluo Liu, Savita Shertukde, Peter Bryan, Marvin Kolb, Denise Long, Jane Thornton, 21 Evangeline Gallegos. Defendant’s own trial witness list contained no less than 41 witnesses. (Doc. 31522 3). 23 1. Patricia Perez 24 Defendant contends: “She is a clerical employee with no management responsibilities. All her 25 testimony was duplicative of the testimony of Steve O'Connor and Renita Nunn.” Objections, 6:19-21. 26 Defendant’s contention that certain depositions have duplicative testimony is repeated 27 throughout their Objections. However, this contention is specious: deposition testimony will either 28 USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 7

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corroborate or contradict that of other deponents. Plaintiff cannot know which will be the case until after the deposition is taken. Moreover, while some testimony of Defendant’s witnesses was duplicative, the majority of it contradicted each other. Ms. Perez’s deposition in particular was remarkable for the fact that she contradicted her own testimony numerous times at the same deposition. Both Mr. O’Connor, HR Director, and Ms. Nunn, HR Manager, testified that they did not personally handle and process Plaintiff’s two medical leave requests. Rather, it was Ms. Perez, also in HR, who did so. See e.g., O’Connor Deposition, 26:2-17. They also testified that Ms. Perez was familiar with the California and federal medical leave laws. See e.g., O’Connor Deposition, 84:11-20. And that it was Ms. Perez who was responsible for characterizing requested leaves as medical leaves. See e.g., O’Connor Deposition, 196:1-5. Ms. Perez was a direct percipient witness to Plaintiff’s medical leave requests and her deposition was more than reasonably calculated to lead to admissible evidence. Defendant contends: “Plaintiff commenced her deposition, unilaterally adjourned it over Defendant's objection, obtained an order from Magistrate Goldner that the deposition could be resumed and then never completed it.” Objections, 6:21-23. Plaintiff’s brought a motion to compel further deposition of Ms. Perez because Defendant’s counsel had engaged in abuse of discovery and numerous speaking objections. Magistrate Goldner agreed and granted Plaintiff’s motion. See Doc. 113. When Defendant’s counsel persisted in making speaking objections at deposition, Magistrate Goldner first admonished him (Doc. 207) and when he still refused to comply, finally imposed sanctions of $3,200 (Doc. 242). Plaintiff elected not to resume her deposition because, among other things, Plaintiff’s assessment was that Ms. Perez was coached so as to refuse to cooperate with the process or give responsive answers to Plaintiff’s deposition questions, making the process a wasteful exercise. She even testified that she had no way of knowing the number of employees in the HR department, of which she was a member, but later impeached herself by testifying that the number was six, and then disclosed their full names with ease. 2. Dr. Savita Shertukde Defendant contends: “Her deposition testimony was duplicative of the testimony of Dr. Dutt.” Objections, 6:27-28. See above discussion regarding duplicative testimony. In EEOC v. W&O, Inc., the court noted that costs of depositions of witnesses included in the USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 8

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losing party’s witness list can be taxed: Almost all of the deponents were on W&O's witness list in the PTO…. We have upheld the taxation of a deposition where the losing party listed the deponent on its witness list. Taxation of deposition costs of witnesses on the losing party's witness list is reasonable because the listing of those witnesses indicated both that the plaintiff might need the deposition transcripts to cross-examine the witnesses, see Independence Tube Corp. v. Copperweld Corp., 543 F. Supp. 706 at 717 (N.D.Ill.1982), and that "the information those people had on the subject matter of this suit was not so irrelevant or so unimportant that their depositions were outside the bound of discovery," 213 F.3d 600, 621 (11th Cir. Fla. 2000) (citations omitted) (emphasis added). Defendant included this deponent in its trial witness list. See Doc. 338, page 2; Doc. 315, page 4. This establishes that the information this person had on the subject matter of this action was not so irrelevant or unimportant such that the deposition was outside the bound of discovery. A district court may tax costs "associated with the depositions submitted by the parties in support of their summary judgment motions." EEOC v. W&O, Inc., 213 F.3d 600, 621 (11th Cir. Fla. 2000). Plaintiff submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 4. 3. Dr. Marvin Kolb Defendant makes a generic contention that there was no reasonable basis for the deposition. Defendant included this deponent in its trial witness list. See Doc. 315, page 2. This establishes that the information this person had on the subject matter of this action was not so irrelevant or unimportant such that the deposition was outside the bound of discovery. Plaintiff also submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 3. 4. Dr. Charles Wrobel Defendant contends: “Plaintiff deposed Dr. Wrobel in the context of Plaintiff s whistleblowing claims but there was no legal basis for those claims because the statute in effect at the time did not recognize the claims Plaintiff had filed.” Objections, 7:9-11. Defendant included this deponent in its trial witness list. See Doc. 315, page 4. This establishes that the information this person had on the subject matter of this action was not so irrelevant or unimportant such that the deposition was outside the bound of discovery. Plaintiff also submitted the deposition of this deponent in support of his summary judgment USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 9

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motion. See Doc. 277, page 4. 5. Dr. Naderi Defendant contends: “Plaintiff deposed Dr. Naderi in the context of Plaintiffs FMLA and CFRA claims because Dr. Naderi had, once upon a time, taken time away from Kern Medical Center for a personal emergency. However, Dr. Naderi was not an employee of the County at the time, so he was not covered by either FMLA or CFRA. Discovery other than a deposition would have uncovered this basic fact.” Objections, 7:16-20. Plaintiff submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 4. 6. Dr. Patel Defendant contends: “His deposition was redundant and unnecessary. Everything Plaintiff elicited from Dr. Patel in his deposition testimony was independently available from other deponents and from documents that had been previously produced.” Objections, 7:24-26. Plaintiff submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 4. 7. Dr. Taylor Defendant contends: “Everything Plaintiff elicited from Dr. Taylor in his deposition testimony was independently elicited from other deponents and from documents that had been previously produced. Dr. Taylor's deposition was redundant and unnecessary.” Objections, 8:3-5. Defendant included this deponent in its trial witness list. See Doc. 338, page 2; Doc. 315, page 3. This establishes that the information this person had on the subject matter of this action was not so irrelevant or unimportant such that the deposition was outside the bound of discovery. Plaintiff also submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 4. 8. Tracy Lindsey Defendant makes a generic contention that there was no reasonable basis for the deposition. Defendant included this deponent in its trial witness list. See Doc. 338, page 2; Doc. 315, page 2. This establishes that the information this person had on the subject matter of this action was not so USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 10

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irrelevant or unimportant such that the deposition was outside the bound of discovery. Plaintiff also submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 3. 9. Ms. Lopez Defendant makes a generic contention that there was no reasonable basis for the deposition. Plaintiff submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 3. 10. Dr. George Alkhouri Defendant makes a generic contention that there was no reasonable basis for the deposition. Dr. Alkhouri was a critical percipient witness who was at the epicenter of the much-disputed October 2005 oncology conference, which had led to letters of reprimanding being placed in Plaintiff’s credentials file. He was the resident in charge of moderating Presentation B, including Plaintiff’s presentation, at that conference. Numerous witnesses alleged Plaintiff’s over-long presentation usurped time from Dr. Alkhouri. See e.g., Doc. 278-2, page 166 (Dr. Kercher testifying in deposition that such usurpation was “appalling”), Doc. 266, page 123 (Dr. Taylor’s letter of reprimand against Plaintiff, noting he had spoken with Dr. Alkhouri and confirmed Plaintiff “never warned [Dr. Alkhouri] that all his time would be taken”). 11. Gilbert Martinez Defendant contends: “Plaintiff deposed Mr. Martinez in support of Plaintiff s whistleblowing claims but, as there was no legal basis for those claims, this deposition was unnecessary.” Objections, 8:23-25. Defendant included this deponent in its trial witness list. See Doc. 338, page 2; Doc. 315, page 4. This establishes that the information this person had on the subject matter of this action was not so irrelevant or unimportant such that the deposition was outside the bound of discovery. Plaintiff also submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 2. 12. Dr. Royce Johnson Defendant contends: “Plaintiff did not establish, at the deposition or at any other time, that Dr. USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 11

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Jolmson was a comparator to Plaintiff on any claim.” Objections, 9:1-2. Dr. Johnson was identified by Defendant as having submitted a written complaint against Plaintiff regarding the October 2005 oncology conference. See Doc. 259, page 26 (Defendant Material Fact 108). Irwin Harris, former Chief Medical Officer at Kern Medical Center, had testified in his deposition that Dr. Johnson was one of at least 4 conference complainants against Plaintiff. See Doc. 261-4, page 24. Plaintiff found it necessary to depose Dr. Johnson regarding this complaint in order to rebut Defendant’s fifth affirmative defense. 13. Dr. Maureen Martin Defendant makes a generic contention that there was no reasonable basis for the deposition. Defendant included this deponent in its trial witness list. See Doc. 338, page 2; Doc. 315, page 4. This establishes that the information this person had on the subject matter of this action was not so irrelevant or unimportant such that the deposition was outside the bound of discovery. Plaintiff also submitted the deposition of this deponent in support of his summary judgment motion. See Doc. 277, page 3. I. DME Tape Transcription Costs Defendant contends: “The tape recordings were unconventional and Dr. Burchuk testified they interfered with his interview of Plaintiff. The recordings were prepared by Plaintiff over Defendant's objection. Defendant never received a copy of these transcripts. Plaintiff has made no showing that tape recording the DME sessions was either reasonable or necessary and has not established why the recordings were transcribed. The transcriptions were never produced to Defendant. They were not used at trial and Plaintiff has made no showing they were ever used for anything.” Objections, 9:19-24. Plaintiff disagrees with Defendant’s contentions. Tape recording a DME is not unconventional – it is commonplace at DMEs. Dr. Burchuk never explained why he found the tape recording of his DME so disturbing. He must not have found it all that disturbing considering he too tape recorded the DME. Defendant would not need to request or obtain copy of the transcript from Plaintiff when it had Dr. Burchuk’s tape recording. Plaintiff tape recorded the DME in order to provide additional information to Plaintiff’s forensic psychiatrist, which he then included in his supplemental report. In fact, the first page of Dr. Reading’s supplemental Rule 26 report lists the DME recording as a source of information. USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 12

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J. Other Costs 1. Attorney Travel Expenses Defendant contends: “Attorney travel expenses are generally not allowed.” Objections, 10:5-6. Plaintiff has previously submitted declarations of Plaintiff’s counsel (Doc. 392-2) and of Plaintiff (Doc. 392-6) explaining their extensive – and ultimately unsuccessful – efforts to retain local Fresno or Bakersfield counsel to prosecute this action. Having no other choice, Plaintiff was required to incur substantial travel expenses during the course of this action. 2. Court Transcripts Defendant contends: “Transcripts of court proceedings that were not ordered by the court are not allowable expenses under 28 U.S.C. §1920.” However, the U.S. District Court for the Eastern District of California has ruled: “Section 1920(2) authorizes the taxation of costs for the "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case," which includes the costs of deposition transcripts, and the cost of transcripts from other court proceedings.” Terry v. Allstate Ins. Co., 2007 U.S. Dist. LEXIS 81051 (E.D. Cal. Oct. 31, 2007). The Ninth Circuit has also stated: “there is much support for the proposition that section 1920(2) covers the cost of deposition transcripts, as well as trial transcripts.” Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 176 n.3 (9th Cir. 1990) (emphasis added). The case cited by Defendant is inapposite. In Farmer v. Arabian American Oil Co., the court disallowed daily transcript costs, but only because of the judge's conclusion “based on his personal knowledge that this was not a complicated or extended trial where lawyers were required to submit briefs and proposed findings.” 379 U.S. 227, 234 (1964). In the instant case, trial involved 9 causes of action and lasted 3 weeks. The parties were required to submit closing briefs and proposed findings of fact to the Court. The instant case could not be more different from the trial at issue in Farmer. The testimony of Peter Bryan and Irwin Harris – the key decisionmakers at nearly all critical junctures – and Plaintiff were the most important of the trial and were critical not only to formulation of Plaintiff’s subsequent cross-examination questions and closing argument, but also to drafting of Plaintiff’s closing briefs. It should be noted that, even prior to Plaintiff ordering them, Defendant had ordered these exact same transcripts, no doubt out of recognition of their relevance and importance. As a result, Plaintiff USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 13

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paid a reduced price to the reporter for work already done. 3. Postage, phone, copying Defendant contends: “. . . specialty drafting of discovery responses for trial is not authorized”. Objections, 11:8-9. Defendant contends: “In addition, there is no authority for his item #9 (Document 392-2, page 7) in the amount of $8,242.38 for copying other documents.” Objections, 11:9-10. In EEOC v. W&O, Inc., the court held: Use of information contained in a file is not a prerequisite to finding that it was necessary to copy the file." Cengr, 135 F.3d at 455; see also United States for the Use and Benefit of Evergreen Pipeline Const. Co. v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir.1996) ("Photocopying costs may be recovered even though the underlying document was not admitted at trial."). Rather, like with depositions, in evaluating copying costs, the court should consider whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue. Here, the copies at issue were of documents produced by W&O pursuant to the EEOC's motion to produce. "Copies attributable to discovery" are a category of copies recoverable under § 1920(4). Desisto College, Inc. v. Town of Howey-in-the Hills, 718 F. Supp. 906, 913 (M.D.Fla.1989). 213 F.3d 600, 624 (11th Cir. Fla. 2000) In the instant case, Plaintiff incurred $8,242.38 in copies attributable to discovery. As mentioned

15 earlier, over 30,000 pages of documents were produced in discovery. Magistrate Goldner determined 16 that the full costs of Defendant Kern County’s production should be shifted to individual Plaintiff David 17 Jadwin, which Plaintiff complied with. Plaintiff also incurred significant cost in copying medical records 18 of his treaters which he then produced to Defendant in discovery. Plaintiff also incurred the copy costs 19 associated with preparation of multiple 7-binder sets of exhibits for use by all parties – including 20 Defendant – and the reporter during over 55 deposition sessions. 21 4. Medical Records 22 Defendant contends: “This expense is distinct from the cost of producing those records as 23 exhibits and is not an allowable expense.” Objections, 11:16-17. 24 For the sake of economy, Plaintiff incorporates by reference herein the discussion contained in 25 section II.J.7 above. The medical records were copies attributable to discovery. 26 III. 27 Plaintiff DAVID F. JADWIN had the right to a workplace free from unlawful employment 28 USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 14 CONCLUSION

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practices. The jury unanimously agreed that Defendant discriminated against Dr. Jadwin because he was an individual with disabling chronic depression; failed to engage in an interactive consultation; failed to provide reasonable accommodation; violated his medical/recuperative leave rights; and willfully retaliated against him for opposing violations of his legal rights. Defendant did not prevail on a single claim or defense at trial, despite having engaged in a scorched-earth Stalingrad defense of this action that was calculated to increase Plaintiff’s costs and fees. Now that very same Defendant decries Plaintiff’s bill of costs. Plaintiff respectfully requests that this Court fully award him the substantial costs he reasonably and actually incurred in successfully prosecuting this action.

RESPECTFULLY SUBMITTED on July 23, 2009. LAW OFFICE OF EUGENE LEE

By: __________/s/ Eugene D. Lee__________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013

USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 15


				
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.