134 Request For Reconsideration Re RPD1

Case 1:07-cv-00026-OWW-TAG Document 134 Filed 05/19/2008 Page 1 of 101
1 Eugene D. Lee SB# 236812

LAW OFFICE OF EUGENE LEE
2 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
3 Telephone: (213) 992-3299
Facsimile: (213) 596-0487
4 Email: [email protected]
5 Attorneys for Plaintiff
DAVID F. JADWIN, D.O.
6
UNITED STATES DISTRICT COURT
7
FOR THE EASTERN DISTRICT OF CALIFORNIA
8
9
DAVID F. JADWIN, D.O., Case No. 1:07-cv-00026-OWW-TAG
10
Plaintiff, PLAINTIFF’S REQUEST FOR
11 RECONSIDERATION BY THE DISTRICT
v. COURT OF MAGISTRATE JUDGE’S
12 RULING ON PLAINTIFF’S MOTION TO
COMPEL PRODUCTION AND FURTHER
13 COUNTY OF KERN; et al. RESPONSES
14 Defendants. [28 U.S.C. § 636(b)(1)(A); Local Rule 72-303]
15 Date Action Filed: January 6, 2007
Date Set for Trial: December 3, 2008
16
17
18
Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff”) respectfully submits the following points and
19
authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldner’s May
20
9, 2008 order (“Order”) granting in part and denying in part Plaintiff’s motion to compel production and
21
further responses by Defendant to requests for production, set one (“RPD1”). (Doc. 124).
22
I. INTRODUCTION
23
Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center
24
(“KMC”) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint
25
alleges, among other things, that Defendants engaged in the following illegal acts: defamation,
26
whistleblower retaliation, disability discrimination and failure to accommodate, medical leave
27
interference and retaliation, demotion and pay reduction without due process, and Fair Labor Standard
28
PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

MOTION TO COMPEL PRODUCTION AND FURTHER RESPONSES 1
1 Act violations. When Plaintiff began reporting several patient care quality issues at KMC starting in
2 2001, Defendants responded by singling out and targeting Plaintiff for harassment, retaliation and
3 humiliation over the course of the next six years. In 2005, Defendants’ conduct finally caused Plaintiff
4 to suffer clinical depression. When Plaintiff began reduced work schedule sick leave in 2006 to treat his
5 depression, Defendants responded by demoting him and retaliating against him further, effectively
6 ending Plaintiff’s pathology chair career.
7 II. PROCEDURAL HISTORY
8 On October 11, 2007, Plaintiff David F. Jadwin (“Plaintiff”) served Requests for Production of
9 Documents (“RPD1”) on Defendant County of Kern (“Defendant”).
10 On November 20, 2007, Defendant served initial responses to Plaintiff’s RPD1 (“Response 1”).
11 Thereafter, Plaintiff met and conferred extensively with Defendant in an attempt to resolve discovery
12 disputes.
13 On December 21, 2007, Plaintiff was forced to file a motion to compel production and further
14 responses to RPD1 (Doc. 82).
15 On January 14, 2008, Plaintiff’s motion was heard by Magistrate Judge Theresa Goldner. At the
16 hearing, Defendant withdrew objections to Requests 32, 33 and 40, among others. (See Exhibit 1, 6:10-
17 15 and Exhibit 2, 20:16-19).
18 On May 9, 2008, Magistrate Judge Goldner issued the Order granting in part and denying in part
19 Plaintiff’s motion to compel production and further responses to RPD1. (Doc. 124, Exhibit 2).
20 III. AUTHORITY FOR MOTION
21 A District Court judge may reconsider pre-trial matters where it has been shown that the
22 magistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Local Rule
23 72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision
24 was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263
25 (9th Cir. 1993).
26 IV. ARGUMENT
27 Plaintiff contends that the Order with regard to Request Nos. 12, 13, 14, 15, 17, 28, 29, 30, 32,
28 33, 36, 37, 38, 39, 40, 41, 45, 51, 58, 59, 60, 61, 63, 65, 66, 67, 70, 71, 72, 73, and 78, is clearly

1 erroneous and contrary to law.

2 A. Assertion of “Confidential Personnel Privilege” under Cal. Ev. C. § 1040 Does Not
Appear to Support Construing an Assertion of Federal Privacy Privilege
3
The Court held that wherever Defendant asserted “confidential personnel privilege” under
4
California Evidence Code § 1040 (§ 1157 only pertains to peer review privilege) as an objection, the
5
Court would sua sponte construe that as an assertion of federal privacy privilege:
6
Here, nearly all of Defendants’ discovery responses assert a “confidential personnel
7 privilege” without citing a specific source of law for the privilege. At the hearing on the
motion, Defendants’ counsel relied on California Evidence Code §§ 1040 and 1157 as
8 the source of this privilege. To the extent that Defendants assert a “confidential
personnel privilege” as a state law privilege, it is inapplicable for the same reasons that
9 the state law peer review privilege is inapplicable: state law privileges have no
application in federal question cases. Agster, 433 F. 3d at 838-839. However, given the
10 nature of documents requested and the reasons given for objecting to their disclosure,
the Court construes the assertion of this privilege as also raising a right of privacy.
11 (Order, 5:3-12) (emphasis added).
12 Using this approach, the Court sua sponte asserted the objection of federal privacy privilege with regard
13 to a large number of Plaintiff’s Requests – Request Nos. 12, 13, 14, 15, 17, 28, 29, 30, 32, 33, 36, 37,
14 38, 39, 40, 41, 45, 51, 58, 59, 60, 61, 63, 65, 66, 67, 70, 71, 72, 73, 78. The Court then engaged in a
15 balancing test and concluded in every instance that a protective order was required.
16 However, the “confidential personnel privilege” under California Evidence Code § 1040 does
17 implicate the constitutional right of privacy recognized by federal law. Cal. Ev. C. § 1040 states in
18 relevant part:
19 § 1040. Privilege for official information
(a) As used in this section, "official information" means information acquired in
20 confidence by a public employee in the course of his or her duty and not open, or
officially disclosed, to the public prior to the time the claim of privilege is made.
21 (b) A public entity has a privilege to refuse to disclose official information, and to
prevent another from disclosing official information, if the privilege is claimed by a
22 person authorized by the public entity to do so and:
(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of
23 this state; or
(2) Disclosure of the information is against the public interest because there is a
24 necessity for preserving the confidentiality of the information that outweighs the
necessity for disclosure in the interest of justice; but no privilege may be claimed under
25 this paragraph if any person authorized to do so has consented that the information be
disclosed in the proceeding. In determining whether disclosure of the information is
26 against the public interest, the interest of the public entity as a party in the outcome of
the proceeding may not be considered.
27
Defendant’s assertion of “confidential personnel privilege” concerns the conditional
28

1 governmental privilege against disclosure of official information by public entities and public employees
2 whenever such disclosure is against the public interest. Put another way, it is a privilege that is intended
3 to enable the government to protect its state secrets.
4 To the extent the Court is construing Defendant’s confidential personnel privilege as raising
5 privacy concerns regarding County personnel records, which are at the center of several of Plaintiff’s
6 requests, it should be noted that federal courts, including the 9th Circuit, routinely order performance and
7 pay data regarding other employees of a defendant to be produced, over the privacy objections of
8 employers. See Garrett v. City & County of San Francisco, 818 F.2d 1515, 44 FEP Cases 865, 868 (9th
9 Cir. 1987)(personnel records of 16 other firefighters ordered produced despite privacy objection since
10 documents are relevant to claim that black firefighters and white firefighters received different
11 disciplinary sanctions for the same or similar offenses); Fritz v. Communications Test Design, 72 FEP
12 Cases 1505, 1506 (E.D. Pa. 1997)(performance reviews of plaintiff’s co-workers ordered to be
13 produced where co-workers expected to testify for defendant employer); Peterson v. City College, 70
14 FEP Cases 259, 261 (S.D. N.Y. 1994)(female professor alleging sex and age discrimination in denial of
15 tenure entitled to discover personnel files of younger and male professors); Yee v. Multnomah County,
16 53 FEP Cases 623,623-64(D. Ore. 1990)(employer ordered to produce personnel files for all other
17 employees in the plaintiff’s department).
18 To the extent any Request requires production of personnel files of other employees of
19 Defendant, such files are highly relevant to numerous issues in this action, including, but not limited to,
20 what the real criteria are for punishing “arrogant” behavior, granting medical/sick leaves, investigating
21 complaints, etc., whether those criteria were applied to Plaintiff in the same manner as his peers, and
22 whether Plaintiff was judged unduly harshly compared to others. There exists good cause to produce the
23 personnel file-type documents that Plaintiff has requested.
24 B. Neither Plaintiff Nor Defendant Were Able to Provide Input into the Court’s Privacy
Balancing Test
25
Resolution of a privacy objection . . . requires a balancing of the need for the
26 information sought against the privacy right asserted." Soto, 162 F.R.D. at 616; Johnson
ex rel. Johnson, 971 F.2d at 1497. The privacy objection also "must be evaluated against
27 the backdrop of the strong public interest in uncovering civil rights violations. . . ." Soto,
162 F.R.D. at 621. Furthermore, "a carefully drafted protective order [can] minimize the
28 impact of this disclosure." Soto, 162 F.R.D. at 616; Kelly v. City of San Jose, 114 F.R.D.

1 653, 662 (N.D. Cal. 1987)

Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005).
2
Upon construing the assertion of federal privacy privilege in the Order, the Court applied a
3
privacy balancing test to Request Nos. 12, 13, 14, 15, 17, 28, 29, 30, 32, 33, 36, 37, 38, 39, 40, 41, 45,
4
51, 58, 59, 60, 61, 63, 65, 66, 67, 70, 71, 72, 73, and 78 and concluded that a protective order was
5
required in every case. But with the exception of Request No. 40, input was not permitted to be given by
6
Plaintiff – as to his compelling need for the documents requested by each Request – or Defendant – as to
7
the third-party privacy interests at issue in each Request. The outcome of the Court’s privacy balancing
8
test was an a priori conclusion that a protective order was necessary in every case without exception.
9
The Court then ordered Plaintiff to meet and confer with Defendant on each Request and to negotiate a
10
federal right of privacy protective order within 5 days of issuance of the Order. However, the parties
11
have no guidance as to which privacy interests should yield to which pressing discovery needs of
12
Plaintiff. The parties’ first attempt at a joint stipulation and protective order (Doc. 128, Exhibit 4) was
13
rejected by the Court and the parties were ordered to submit a revised stipulation and protective order
14
(Doc. 131, Exhibit 5).
15
Defendant did not assert the federal privacy privilege during the meet and confer process, nor in
16
their motion briefing nor at the hearing, nor was it ever discussed. The Court asserted the federal privacy
17
privilege sua sponte for the first time in the Order. Plaintiff was not afforded any opportunity to submit
18
briefing or be heard on the federal privacy privilege or the balancing test as to all of the above Requests,
19
with the exception of Request No. 40. Even with respect to Request No. 40, Plaintiff is still ignorant of
20
the privacy concerns which Defendant has been construed to raise since Defendant did not specify any
21
privacy objections beyond a boilerplate assertion of “confidential personnel privilege” in meet and
22
confers, motion briefing and at the hearing itself.
23
It should be noted that, during the four months preceding the Court’s issuance of the Order,
24
Defendant chose to produce most of the documents responsive to the above Requests. In so doing,
25
Defendant engaged in little to no redaction of personal identifying information. Nevertheless, Plaintiff
26
remains concerned about the application of the Court’s protective order to future supplemental
27
productions by Defendant.
28

1 C. The Court’s Protective Order with Regard to Request Nos. 32, 33, 63 and 70 Is
Overbroad
2
Request Nos. 32, 33, 63 and 70 are reproduced below, along with Defendant’s responses:
3
REQUEST FOR PRODUCTION NO. 32
4 Any and all DOCUMENTS RELATING TO YOUR discipline of any employee against
whom a complaint or grievance of discrimination, harassment, defamation, retaliation,
5 failure to accommodate, and/or failure to engage in an interactive process in their
employment was made from October 24, 2000 to date.
6
RESPONSE TO REQUEST NO. 63
7 [All objections withdrawn by Defendant at hearing. (See Exhibit 1)]
8
9 Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR
past or present employees against YOU for defamation, retaliation, disability
10 discrimination, failure to accommodate, and/or failure to engage in an interactive
process, including but not limited to any informal or internal complaints, grievances or
11 charges to any state or federal agency, and complaints filed in any state or federal court
from October 24, 2000 to date.
12
RESPONSE TO REQUEST NO. 63
13 [All objections withdrawn by Defendant at hearing. (See Exhibit 1)]
14
15 Any and all DOCUMENTS RELATING TO meeting minutes for the following Kern
Medical Center committees or groups from October 24, 2000 to the present:
16 a) Medical Executive Committee
b) Joint Conference Committee
17 c) Quality Management Committee
d) Cancer Committee
18 e) Second Level Peer Review Committee
f) Transfusion Committee
19 g) Executive Staff Meetings
20 RESPONSE TO REQUEST NO. 63
Defendants object to this request to the extent it requests documents that contain
21 confidential personnel information or information that is protected from disclosure by
state or federal law, including HIPAA and the peer review privilege, or documents that
22 are subject to the attorney/client privilege. Without waiving these objections, Defendants
will produce documents responsive to this request by December 21, 2007. Defendants
23 will redact confidential or privileged information as appropriate.
24
25 Any and all DOCUMENTS RELATING TO peer review RELATING TO Kern Medical
Center’s Pathology Department during the time period from January 1, 1995 to the
26 present, including but not limited to computer-generated data, monthly peer review
records completed by pathologists, and peer review comment sheets that are completed
27 by pathologists upon discovery of a discrepancy.

1 Defendants object to this request on the ground that it requests privileged peer-review
information. Defendants also object on the ground that it requests information that is
2 confidential under HIPAA and not reasonably calculated to lead to the discovery of
admissible evidence. Without waiving these objections, Defendants will produce
3 documents responsive to this request by January 7, 2008 if it is possible to redact the
confidential and privileged information without rendering the resulting document
4 useless.
5 With regard to Request Nos. 32, 33, 63 and 70, the Court concluded that a protective order was
6 necessary and took the further step of ordering Defendant to redact all personal identifying information
7 for all employees of Defendant (other than the Plaintiff). Plaintiff respectfully submits that the protective
8 order is overbroad and will render the documents requested effectively useless. Moreover, it is difficult
9 to discern what federal privacy interest is implicated by Plaintiff’s knowing the identities of the persons
10 who, with regard to Request No. 63 for instance, transcribed meeting minutes or attended certain
11 committee meetings.
12 D. It was Error to Construe the Assertion of Federal Privacy Privilege Where
“Confidential Personnel Privilege” under Cal. Ev. C. § 1040 Was Not Being Asserted at All
13
With regard to Request Nos. 32, 33, 40, and 70, Defendant did not assert a confidential personnel
14
privilege; hence, a federal privacy privilege should not have been construed as to these Requests.
15
Regarding Requests Nos. 32, 33 and 40, Defendant had withdrawn all objections at the January
16
14, 2007 hearing. As Defendant stated in the draft stipulation which they proposed to Plaintiff following
17
the January 14, 2008 hearing:
18
Plaintiff has amended Request No. 32 to limit it to complaints or grievances of the type
19 specified against core physicians only. As amended, Defendants have withdrawn their
objections to this Request.
20 (See Exhibit 1, 2:10-12)
21 and
22 Plaintiff has amended Request No. 33 to limit it to complaints or grievances, including
internal and informal complaints, of the type specified against past and present core
23 physicians only. As amended, Defendants have withdrawn their objections to this
Request.
24 (See Exhibit 1, 2:13-15).
25 Regarding Request No. 40, the Order states: “At the hearing on this motion, Defendants’ counsel
26 withdrew the objections to this request and agreed to produce the documents, without 1) waiving the
27 personnel privilege or privacy claims as to other persons, and 2) reserving the right to object to their
28 admissibility at trial”. (20:16-19)(emphasis added).

1 Thus, Defendant was not asserting confidential personnel privilege regarding Request Nos. 32,
2 33 or, in effect, 40.
3 Regarding Request No. 70, Defendant asserted HIPAA, relevancy and peer review objections
4 only. Defendant did not assert confidential personnel privilege.
5 Given that Defendant was not asserting any applicable confidential personnel privilege, nor any
6 privacy privilege, in Request Nos. 32, 33, 40 and 70, Plaintiff respectfully submits that the it was error
7 to construe Defendant as having raised federal privacy privilege.
8 V. CONCLUSION
9 Plaintiff must respectfully object that the Court’s order is clearly erroneous and contrary to law
10 for the foregoing reasons. Plaintiff requests that the Court reconsider Magistrate Judge Goldner’s Order.
11
12 Respectfully submitted on May 19, 2008.
13
14 /s/ Eugene D. Lee SB# 236812
LAW OFFICE OF EUGENE LEE
15 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
16 Telephone: (213) 992-3299
Facsimile: (213) 596-0487
17 Email: [email protected]
18 Attorneys for Plaintiff DAVID F. JADWIN, D.O.
19
20
21
22
23
24
25
26
27
28

EXHIBITS
EXHIBIT 1. Defendant Declaration re Inability to File Stipulation (Doc. 86)

EXHIBIT 2. Order Granting in Part and Denying in Part Plaintiff’s Motion to
Compel (Doc. 124).
EXHIBIT 3. Defendants’ Responses to Plaintiff’s Request for Production, Set One
EXHIBIT 4. Stipulation & Order re Protective Order (Doc. 128)
EXHIBIT 5. Minute Order Disapproving Stipulation (Doc. 131)
EXHIBIT 1. Defendant Declaration re Inability to File Stipulation (Doc. 86)

Case
Case1:07-cv-00026-OWW-TAG
1:07-cv-00026-OWW-TAG Document
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page11
1 of
of19
101
Mark A. Wasser CA SB # 60160

LAW OFFlCES 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: [email protected]
5 Bernard C. Barn1ann, Sr.
KERN COUNTY COUNSEL
6 Mark Nations. Chief Deputy
1115 Truxton Avenue. Fourth Floor
7 Bakersfield, CA 93301
Phone: (661) 868-3800
8 (661) 868-3805
E-mail: [email protected]
9
10 Attorneys Defendants of Kern..
Peter Bryan, Harris, Eugene Kercher,
11 Abraham, Scott Ragland, Smith
12
13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15
16 DAVID JADWIN, D.O. ) Case No.: 1:07-cv-00026-0WW-TAG

)
17 Plaintiff. ) DECLARATION OF MARK A. WASSER
) RE: INABILITY TO FILE STIPULAnON
18 vs. ) FOLLOWING DISCOVERY HEARING
)
19 et )
)
20 Defendants. ) Date Action Filed: January 6, 2007
) Trial Date: December 3, 2008
21
)
22
I, Mark A. Wasser, declare as follows:
23
I. I am counsel of record for Defendants and am familiar with this action. The facts
24
stated in this Declaration are within my own personal knowledge and I can testify competently to
25
them if called as a witness.
26
2. I attended the January 14, 2008 hearing on Plaintiff s motion to compel. At the
27
hearing, the parties reached certain agreements regarding Plaintiff s first request for production
28
DECLARATION OF MARK A. WASSER RE: INABILITY TO FILE STIPULATION

Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page12
2 of
of19
101
of documents. Among other things, the Court asked the parties to submit to the Court, no later
2 than today, Wednesday, January 23, 2008 a stipulation and proposed order regarding some of the
3 agreements that were reached.
4 ., .
o
I prepared a draft stipulation, a copy of which is attached hereto as Exhibit A, and
5 forwarded it to Plaintiff s counsel for review. Plaintiff s counsel responded that the stipulation
6 included agreements on more topics than he was willing to include in a stipulation and he asked
7 me to revise the stipulation and narrow it so that it covered only the parties' agreements
8 regarding !lp,,;,p<'No. Request records.
9 4. Upon receipt of the comments from Pla.intiff counsel, I the draft
J0 stipulation to it to the two topics he specified sent it to him that draft
is attached to rlp,-.bntinn as Ex:llibit
responded adding one
13 paragraphs he had asked me to delete from the first draft. He also added new language at the end
14 of the stipulation that would require Defendants to produce all medical, peer review and
15 personnel privileged documents previously withheld. A copy of the draft from Plaintiff s
16 counsel is attached hereto as Exhibit
17 6. I responded to Plaintiff s counsel by accepting some of the changes he proposed
18 but relect!rl\! language at the of stipulation have required the
J9 UClerloams to produce all medical records, personnel records preVlClUSIV
20 withheld. I also restored to the draft language Plaintiff s counsel had deleted that preserved
21 Defendants objections to request number 40. Defendants agreed to produce the Royce Johnson
22 personnel file, subject to their objections. Plaintiff s insistence that those objections be
23 withdrawn or waived goes beyond the scope of the parties' open-Court agreement and would
24 prejudice Defendants right to contest the admissibility of the records at trial. A copy of the final
25 draft I returned to Plaintiffs counsel is attached hereto as Exhibit D.
26 7. Plaintiff s counsel rejected my final draft of the proposed stipulation and I
27 reported to Plaintiff s counsel that I would prepare and file this Declaration relating our inability
28 to execute the stipulation.
DEC LARAnON OF MARK A. WASSER RE: INABILITY TO FILE STIPULATION

Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page13
3 of
of19
101
1 8. The Court also asked the parties to report by today, Wednesday, January 23,
2 whether Defendants would be able to produce the exceptional event logs for histology and
3 pathology requested in Request No. 71 and the paper accession logs requested in Request No. 72.
4 As set forth in the first draft of the proposed stipulation (see Exhibit A), Defendants are able to
5 produce those documents.
6 I certify under penalty of perjury that the foregoing is true and correct.
7 Executed this 23rd day of January, 2008, in Sacramento, California.
9 By:'_-l~1ill:J5~~~L- ~
Mark A Wasser
10 AtloHlev for lJetendarlts, et
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
DECLARATION OF MARK A. WASSER RE: INABILITY TO FILE STIPULATION
Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page14
4 of
of19
101
EXHIBIT A
Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page15
5 of
of19
101
1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
Sacramento, CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser(uJmarkwasscLcom
5 Bernard C. Barrnann, Sr.
KERN COUNTY COUNSEL
6 Mark Nations, Chief Dcputy
1115 Truxtun Avenue, Fourth Floor
Phone: (661) 868-3800
8 (661) 868-3805
9
10 Defendants of Kern,
Harris, Eugene .
11 nrangnn Ragiand,
12

15
16 DAVID JADWIN, D.O. ) Case No.: 1:07-cv-00026-0WW-TAG
)
17 Plaintiff, ) snpULAnON RE SUPPLEMENTAL
) RESPONSE TO REQUEST FOR
18 VS. ) PRODUCTION OF DOCUMENTS AND
) ORDER
19 KERN, et )
)
20 Defendants. ) Action Filed: January 6, 2007
) Trial Date: December _, 2008
21 )
)
22 )
)
23 ------------)
24 WHEREAS, Plaintiff served a Request for Production of Documents and Defendants
25 responded in part and objected in part and produced certain documents and a privilege log; and
26 WHEREAS, Plaintiff filed a motion to compel further responses and the parties reached
27 certain agreements during the hearing on Plaintiff's motion to compel; and
28
1 NOTICE OF DEPOSITION 0
DAVID F. JADWIN
Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page16
6 of
of19
101
1 WHEREAS, the parties enter into this Stipulation to recite their agreements and submit
2 the same to the Court for approval;
3 IT IS HEREB Y STIPULATED by and between the parties through their respective

4 counsel, as follows:
5 1. In supplemental response to Request No. II, Defendants shall produce the
6 requested employee directory information but shall redact any horne addresses or telephone
7 numbers.
8 2. SUf,plcmental reSjlon:,e to 26, Defendants
9 discs containing contents of harddrive from the County computer assigned to Plaintiff
10 amem:led Request to it to complaints or vrl,evencr', ofthe\

,
11 spe'citied "C'WL" core PhVSlClrms As amended,
12 objectIons to
I
13 4. Plaintiff has amended Request No. 33 to limit it to complaints or grievances,
14 including internal and informal complaints, of the type specified against past and present core
15 physicians only. As amended, Defendants have v,ithdravm their objections to the Request.
16 5. In response to Request No. 40, Defendants have agreed to produce the personnel
17 file of , Royce Johnson but are neither waiving nor withdrawing their objections to its
18 production or conceding
19 6. Plainti:ffhas v,1tli1dnlwn
20 7. Plaintiflhas amended Request No. 55 to limit it to documents relating to the
2I review of Plaintiff David Jadwin's placental evaluations and billing activity as conducted by
22 outside consultants. As amended, Defendants have withdrawn their objections to the Request.
23 8. In supplemental response to Request No, 57, Defendants will make the product
24 chart copy-related documents available to Plaintiff for inspection and copying at Kern Medical
25 Center, in a room to be designated, between 10:00 a,m., Monday, February 4 and 5:00 p.m,
26 Wednesday, February 6,
27
28
DAVlD F. JADWIN
Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page17
7 of
of19
101
9. Plaintiff has amended Request No. 70 to limit it to documents relating to peer
2 review of Plaintiff, David Jadwin. As amended, Defendants have withdrawn their objeetions to
3 the Request
4 10. In supplemental response to Request No. 71, Defendants will produce exceptional
5 event logs for histology and pathology but are neither waiving nor withdrawing their objections
6 to their production or conceding their relevancy.
7 11. In supplemental response to Request No. 72, Defendants will produce paper
8 nor wlthclra'wl obl!ecltl0J1S to or

9 conceding their releVJlnclv
10 12 supplemental Te<nn,,<p to Request 78. Defendants jJWUW,C placental
11 nor
o bll eCi.lOflS to or cOJlcedmg
13 13. Defendants will produce all documents to be produced pursuant to this StipUlation
14 by delivering copies of them to Plaintiffs counsel on Tuesday, January 29, 2008 in Bakersfield,
15 California.
16 14. Defendants will prepare and deliver to Plaintiff amended privilege logs for all
17 documents for which the Defendants are asserting prh~lege on or before Tuesday, January
18
19 of produced
20 patient information that is confidential under HlPAA, peer review information that is
21 confidential under California Evidence Code section 1157 or employee information that is
22 confidential under California Evidence Code section 1040. Plaintiff shall not reveal this
23 information to anyone other than his legal counsel, their assistants, and any consultants retained
24 to assist Plaintiff in the prosecution of this case. At the conclusion of this case, Defendants may
25 ask the Court for an order directing Plaintiff to either destroy all documents that contain
26 confidential infonnation or return them to Defendants.
27
[insert signatures and dates for counsel]
28
DAVID F. JADWI
Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page18
8 of
of19
101
ORDER
2 The parties having stipulated as hereinabove set forth and good eause appearing,
3
IT IS SO ORDERED,
4
5 Honorable Teresa A. Goldner

6 Magistrate Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DAVID F. JADWI
Case
Document134
86 Filed
Filed05/19/2008
01/23/2008 Page
Page19
9 of
of19
101
EXHIBITB
Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 10
20 of 19
101
1 Mark A. WasserCA SB #060160

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
Phone (661) 868-3800
8 (661) 868-3805
E-mail: mnati.)ns.(ci;(;o .. CUJJ.ca.. u.
9
10
11
12
15
16 DAVIn F. JADWIN, D.O. ) Case No.: 1:07-cv-00026-0WW-TAG
)
17 ) snpULAnON RE SUPPLEMENTAL
) RESPONSE TO REQUEST FOR
18 VS, ) PRODUCTION OF DOCUMENTS AND
) ORDER
19 KERN. et )
)
20 Defendants. ) Action Filed: January 6, 2007
) Trial Date: December 3, 2008
21 )
)
22 )
)
23 -------------)
24 WHEREAS, Plaintiff served a Request for Production of Documents and Defendants
27 certain agreements during the hearing on Plaintiff s motion to compel; and
28
1
STIPULATION RE: SUPPLEMENTAL RESPONSETO REQUEST

FOR PRODUCTION OF DOCUMENTS AND ORDER
Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 11
21 of 19
101
3 IT IS HEREBY STIPULATED by and between the parties through their respective

4 counsel, as follows:
5 L In response to Request No. 40, Defendants have agreed to produce the personnel
6 tjle of Dr. Royce Johnson but are neither waiving nor withdrawing their objections to its
7 production or conceding its relevancy. Defendants' production ofthc personnel file shall not
8 constitute a we" V,," confidential pe::sonn,el reganl to any
9 2. supplemental response to Request No. Defendants the product
10 COIPv·,relate,d documents iiVliHdUlt to Piaintifffor inspection and copying at Kern lVleUledl
I1 Center, in a room to be del31gl1ated, h,'lwF,pn 1 5

12 6,
13 Dated: January 23, 2008 LAW OFFICES OF MARK A. WASSER
14
15 BY:_...JI",s,-1M""",a",rk,,-£A'-o-'-,W~as,-"s~er,-- _
Mark A. Wasser
16 Attorney for Defendants, Counts of Kern, et aL
17
18 2008 OF
19
20 By: lsi Eugene D. Lee (as authorized on 1/23/08)

Eugene D. Lee
21 Attorney for Plaintiff, David F. Jadwin, D.O.
22
23
ORDER
24
The parties having stipulated as hereinabove set forth and good cause appearing,
25
IT IS SO ORDERED.
26
27
Honorable Teresa A. Goldner
28 Magistrate Judge
2
STIPULATION RE: SUPPLEMENTAL RESPONSETO REQUEST
Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 12
22 of 19
101
EXHIBIT C
Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 13
23 of 19
101
Mark A. Wasser CA SB #060160

2 400 Capitol Mall, Suite I 100
3 Phone: (9 I6) 444-6400
Fax: (916) 444-6405
4 E-mail: nnvasserra)markvvasseLcom
5 I Bernard C Barmann. Sf.

KERN COUNTY COUNSEL
1115 Truxtun A venue, Fourth Floor
: Phone: (661) 868-3800
8', Fax: (661) 868-3805
.I E-mail: [email protected]
91 Deleted: "1
Attornevs for Defendants County of Kern.
10 I Peter Brvan. irwin ~
'IJennifer"Abraham, Scott "",;"",10,
1 i I, and \Vi!liam Rov
-
12 Ii
" I
14
,
is i
16
17
18
I: EASTERN DISTRICT OF CALIFORNIA
19 II
20
DAVID F. JADWIN, D.O. ) Case No.: l:07-cv-00026-0WW-TAG
21 )
) STIPULATION RE SUPPLEMENTAL
22 ) RESPONSE TO REQUEST FOR
VS. ) PRODUCTION OF DOCUMENTS AND
) ORDER
COUNTY OF KERN. at aJ., )
24 )
Action Filed: January 6, 2007
25
Defendants.
l
)
Trial Date: December 3, 2008
26 )
)
27 )
)
28
STIPULATION RE SUPPLEMENTAL RESPONSETO REQUEST

Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 14
24 of 19
101
WHEREAS, Plaintiff served a Request for Production of Documents and Defendants
4 I certain agreements during the hearing on Plaintiffs motion to compel; and

I
7 '! IT IS HEREBY STIPULATED and bet'ween the parties through their respective
counsel, as foilaws:
1. in response to Request No. 40, Defendants have to

Deleted: b,t are Iwither waivin~ nor
10 nn,rl,we the personnel file of Dr. Defendants' prcldliciion oftne personnel file ,vi(hdn\"iiJ~ ;(' It"
PWdHC!ion {)i
11 Ii shaH not constitute a \-valver oftne confidential personnel privilege with regard to any other
'I
II
In I documents.
,: II
L) 2. In supplenlcrltal response to Request No, 57. Defendants \viH make the product
[4 !I chart wnv.,elmp·c1 documents availab!e 10 Plaintifffof in'mpetinn and nonvnw at Kern Medica!
ii
! 5 !I CentcL in a room to be between! 0:00 a.m .. Mcrnday. Fe'"onrv 4 and 5:00 p.m.
16 Wednesday, February 6.
l?
18
19 I
20
21 i
221
1
23 I,
,I
24
25
26
27
28
2
STIPUl.ATION RE SUPPLEMENTAL RESPONSETO REQUEST

II
Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 15
25 of 19
101
3 Dated: January 23, 2008 LA W OFFICES OF MARK A, WASSER
5 By: is/Mark A. Wasser

Mark A. Wasser
6 Attorney for Defendants, County of Kern. et a1.
7
8 Dated: January 23, 2008 LA W OFFICE OF EUGENE LEE
9
10 By: /s/ Eugene D. Lee (as authorized on 1/23/08)
LU.ge"u D. Lee
Attorney for Plaintiff. David F. D.O.
ORDER
The stillUlaLted as hereinabove set forth and cause amleatiDc,
JT IS SO ORDERED.
16
Ih
Honorable Teresa A. Goldner
Magistrate Judge
:: II
20 II
21 I:
22\1
23
11
2~ \1
2) 'I
26
27
28
3

Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 16
26 of 19
101
EXHIBIT D
Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 17
27 of 19
101
II
Mark A. Wasser CA SB #060160
LA W OFFICES OF MARK A. WASSER
3 Phone: (916) 444-6400
Fax: (916) 444-6405
5 Bernard C. Barmann, Sf.

KERN COUNTY COUNSEL
i I 1115 Truxtun Avenue, Fourth Floor
7 ' Bakersfield. CA 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
Deleted: ~
9[1 Attorneys fO.f Def:ndants County ofKem,
10
I
I Jennifer"Abraham,
Peter Bryan, Invin
Scott
Kercher.
Toni Sn1ith
11 II and William Roy
12 I'
I
14 1
!
15 I.i
161
17
18
EASTERN DISTRICT OF CALIFORNiA
19
20
DAVID F. JADWIN, D.O. ) Case No.: l:07-cv-00026-0WW-TAG
21
I Plaintiff. j STIPULATION RE SUPPLEMENTAL
22 ) RESPONSE TO REQUEST FOR
\IS. ) PRODUCTION OF DOCUMENTS AND
23 ) ORDER
COUNTY OF KERN, et al.. )
24 I )
Defendants. ) Action filed: January 6, 2007
25 ) Trial Date: December 3, 2008
)
26 )
)
27 )
~~~~~~~~~~-)
28

Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 18
28 of 19
101
WHEREAS, Plaintiff served a Request for Production of Documents and Defendants
4 certain agreements during the hearing on Plaintiffs motion to compel; and
6 the same to the COUrt for approval;
IT IS HEREBY STIPULATED by and between the parties through their respective

counseL as follows:
1. In response to Request No. 40, Defendants have agreed, among other things, to
produce the personnel file ofDT. Johnson but are neither nor withejrawiag their
objections to its production or conceding its relevanc)!, Defendants' production oftne Derse,nr,eil
12 me shall not constitute a ,,\-'aiver of the confidential personnel privilege \vith regard to any other
documents.
In leraent'll response to lWyU"" No. Defendants \vilJ make the UHJW.M
chart copy-",Ialled documents available to Plaintiff for inllp"ction and CO,W,'M at Kern Medical
Center, in a room to be designated, between 10:00 a,m., Monday, February 4 and 5:00 p.m,
17 Wednesday, February 6.
Deleted: 15
18 Many of the documents Defendants have produced and will produce contain
19 II patient information that is confidential under HIPAA. peer review information that is
i
20 confidential under California Evidence Code section 1157 or employee information that is
21 confidential under California Evidence Code section 1040. Plaintiff shall not reveal this
Ii
22 Ii information to anyone other than his legal counsel, any consultants or experts retained to assist
!
L) Plaintiff in the pf(lSccetion of this case. and his and their assistants. At the conclusion of this
24 case, Defendants may ask the Court for an order directing Plaintiff to either destro)" aU
Deleted: 1n consideration of the
I foregoing, Defendants agrce to produce
25 I documents that contain confidential information or return them to Defendants.~ ~""l discovery allY and all documents ·which
Defendants otherwise had or would have
26 Dated: January 23, 2008 LA W OFFICES OF MARK A. WASSER vvithheld trom production as plltient
infortnalion that is confidentialllnder
HIPA!\. peer review infOllllation that is
27 (;on fidcntial tinder Cnlifol'l.1ifl Evidence
Code section] 157 or employee
28 By: /s/ Mark A. Wasser infonnatioll that is confidential undel
Califomia Evidence Code section 1040
2

Case
Document134
86 Filed 01/23/2008
05/19/2008 Page 19
29 of 19
101
Mark A. Wasser
Attorney for Defendants, County of Kern, et al.
2
3
Dated: January 23,2008 LA W OFFICE OF EUGENE LEE
4
5i By: lsi EU2:ene D. Lee (as authorized on l/23/08)

6 Eugene D. Lee
Attorney for Plaintiff, David F. Jadwin, D.O.
7
8
ORDER
9
10 Ii The parties " •• j••••• " •• as hereinabove set forth and good cause 8DJlearine.
11 II lT is SO OROERED.
1211
II
13 Honorable Teresa A. Goldner
1
Magistrate
14 II
1
15
11
i6 ii
17
18,
19
20
21
23
24
25
26
27
28
3
STIPULATION RE SUPPLEMENTAL RLSPONSETO REQUEST

EXHIBIT 2. Order Granting in Part and Denying in Part Plaintiff’s Motion to

Compel (Doc. 124).
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page31
1 of 31
101
1
2
3
4
5 IN THE UNITED STATES DISTRICT COURT
6 FOR THE EASTERN DISTRICT OF CALIFORNIA
7
8 DAVID F. JADWIN, D.O., Case No. 1:07-cv-0026-OWW-TAG
9 Plaintiff, ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
10 vs. COMPEL PRODUCTION AND FURTHER
RESPONSES
11 COUNTY OF KERN, et al.,
(Doc. 82)
12 Defendants.
13 ___________________________________/
14
15
16 Plaintiff David F. Jadwin, D.O. moved to compel responses to his request for production
17 of documents (set one) directed to Defendant County of Kern. (Doc. 82). Defendant opposed
18 the motion, contending in essence that it has either produced or is prepared to produce all
19 documents to which Plaintiff is entitled. Counsel for the parties were unable to agree upon a
20 joint statement regarding their discovery disagreements. Both counsel filed separate declarations
21 explaining why they were not able to reach an agreement, and attached to their declarations
22 exhibits outlining their positions, including copies of various emails, letters, draft documents,
23 and the like. (Docs. 83, 84). At the hearing on the motion, both counsel stipulated to several of
24 the issues in dispute, and the Court directed them to file a written stipulation with a
25 corresponding proposed order for the Court’s consideration. (Doc. 85). Once the hearing
26 concluded, counsel were unable to agree upon a written stipulation. (Docs. 86, 87, 88).
27
28 -1-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page32
2 of 31
101
1 The Court has read and considered the pleadings and the arguments and stipulations of
2 counsel made at the hearing on the motion to compel, and makes the following ruling.
3 A. Discovery Overview
4 The purpose of discovery is to make trial “less a game of blind man’s bluff and more a
5 fair contest with the basic issues and facts disclosed to the fullest extent possible,” United States
6 v. Proctor & Gamble, 356 U.S. 677, 683, 78 S. Ct. 983 (1958), and to narrow and clarify the
7 issues in dispute, Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385 (1947).
8 Fed.R. Civ. P. 26(b) establishes the scope of discovery and states in pertinent part:
9 Parties may obtain discovery regarding any matter, not privileged, that is relevant
to the claim or defense of any party, including the existence, description, nature,
10 custody, condition, and location of any books, documents, or other tangible things
and the identity and location of persons having knowledge of any discoverable
11 matter. For good cause, the court may order discovery of any matter relevant to
the subject matter involved in the action. Relevant information need not be
12 admissible at trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.
13
“The party who resists discovery has the burden to show that discovery should not be
14
allowed, and has the burden of clarifying, explaining, and supporting its objection.” Oakes v.
15
Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998); Nestle Foods Corp. v. Aetna
16
Casualty & Surety Co., 135 F.R.D. 101, 104 (D. N.J. 1990).
17
B. Request for Production of Documents Standards
18
Fed. R. Civ. P. 34(b) requires a written response to a request for production to state, with
19
respect to each item or category, that inspection and related activities will be permitted as
20
requested, unless the request is objected to, in which event the reasons for the objection shall be
21
stated. A party is obliged to produce all specified relevant and nonprivileged documents or other
22
things which are in its “possession, custody or control” on the date specified in the request. Fed.
23
R, Civ, P. 34(a); Norman Rockwell Int’l. Corp. H, Wolfe Iron & Metal Co., 576 F. Supp. 511,
24
512 (W.D. Pa. 1983). The propounding party may seek an order for further disclosure regarding
25
“any objection to or other failure to respond to the request or any part thereof, or any failure to
26
permit inspection requested.” Fed. R. Civ. P. 34(b). Failure to respond to a Rule 34 request
27
28 -2-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page33
3 of 31
101
1 within the time permitted waives all objections, including privilege and work product.”
2 Richmark Corp. v. Timber Falling Consultants, 959 F. 2d 1468, 1473 (9th Cir. 1992).
3 C. Peer Review Privilege
4 The majority of Defendants’ objections assert a state law peer-review privilege.
5 Defendants fail to cite to a specific statute in their written objections, but reported at the hearing
6 on the motion that the peer review privilege is contained in California Evidence Code §§ 1047,
7 1157. Except as otherwise provided by federal law, privileges in federal cases are governed by
8 federal common law. Fed. R. Evid. 501; United States v. Zolin, 491 U.S. 554, 562, 109 S. Ct.
9 2619 (1989). The peer review privilege has been addressed and rejected by the Ninth Circuit. In
10 Agster v. Maricopa County, 422 F. 3d 836 (9th Cir. 2005), the Ninth Circuit refused to recognize
11 the peer review privilege. 422 F. 3d at 839-840. Here, Defendants have asserted a state law peer
12 review privilege. However, “[w]here there are federal question claims and pendent state law
13 claims present, the federal law of privilege applies.” Agster, 422 F.3d at 840-841(citations
14 omitted); Jackson v. County of Sacramento, 175 F.R.D. 653, 654 (E.D. Cal. 1997); Burrows v.
15 Redbud Community Hospital District, 187 F.R.D. 606, 610-611 (N.D. Cal. 1998). Defendants
16 contend that state privilege law applies to Plaintiff’s state law claims and not to his federal
17 claims. Platypus Wear, Inc. v. R.D. Company, Inc., 905 F. Supp. 808 (N.D.CAL. 1995).
18 Platypus is distinguishable from this case, because it was a diversity case that involved various
19 state law claims and a single federal claim where the evidence sought went only to state law
20 theories of liability and the plaintiff advanced no theory under which the evidence could be
21 relevant to the federal claim. Here, Plaintiff has several federal claims as well as state law claims,
22 and the evidence sought, which spans Plaintiff’s career at the Kern Medical Center, is relevant to
23 both his federal and state claims. “[W]here state law claims overlap with federal claims in a
24 federal question case such that particular documents are relevant to both the state and the federal
25 claims, federal privilege law also applies.” Boyd v. City and County of San Francisco, 2006 WL
26 1390423 * 3 (N.D. Cal. 2006)(citing Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671
27
28 -3-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page34
4 of 31
101
1 F.2d 100, 104 (3rd Cir. 1992)(additional citation omitted)). The Court concludes that federal
2 privilege law applies, and the state law peer review privilege has no application in this case.
3 D. HIPAA
4 The majority of Defendants’ objections also contend that the requested documents are
5 protected from disclosure under HIPAA. Defendants fail to cite a specific code section in their
6 written responses. HIPAA refers to the Health Insurance Portability and Accountability Act of
7 1996. Pub.L. No. 104-191, 110 Stat. 1936 (1936)(codified primarily in Titles 18, 26, and 42 of
8 the United States Code). Under HIPAA, a health care provider such as Defendant Kern Medical
9 Center, may disclose protected patient health information pursuant to a court order, subpoena, or
10 discovery request when the health care provider receives satisfactory assurance from the party
11 seeking the information that reasonable efforts have been made to obtain a qualified protective
12 order that: 1) prohibits the parties from using or disclosing the protected health information for
13 any purpose other than the subject litigation; and 2) requires the return to the healthcare provider
14 or destruction of the protected health information (including all copies made) at the end of the
15 litigation. See Allen v. Woodford, 2007 WL 309485, *5 (E.D. Cal. 2007). Here, the Court is not
16 satisfied that Defendants received HIPAA assurances from Plaintiff prior to the hearing on the
17 motion, and the record reflects that no stipulation for a protective order has ben filed. (See
18 Docket generally). Accordingly, Defendants’ objections to disclosure based on HIPAA are well-
19 taken as to documents that contain protected patient health information.
20 E. Right of Privacy
21 Fed. R. Civ. P. 26(b) excludes privileged matters from discovery. Federal courts
22 generally recognize a constitutionally-based right of privacy that may be asserted response to
23 discovery requests. Johnson ex rel. Johnson v. Thompson, 971 F. 2d 1487, 1497 (9th Cir. 1992);
24 Megargee v. Wittman, 2007 WL *2 (E.D.Cal. 2007)(citations omitted). “Although the right to
25 privacy is not a recognized privilege, many courts have considered it in discovery disputes.”
26 Ragge v. MCA.Universal Studios, 165 F. R.D. 601, 604, n. 3 (C.D.Cal. 1995)(citation omitted).
27
28 -4-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page35
5 of 31
101
1 The right of privacy is not an absolute bar to discovery. Instead, it is subject to a balancing test
2 that requires courts to balance the need for privacy against the need for disclosure in litigation.
3 Ragge, 165 F. R.D. at 604 (C.D.Cal. 1995). Here, nearly all of Defendants’ discovery responses
4 assert a “confidential personnel privilege” without citing a specific source of law for the
5 privilege. At the hearing on the motion, Defendants’ counsel relied on California Evidence Code
6 §§ 1040 and 1157 as the source of this privilege.
7 To the extent that Defendants assert a “confidential personnel privilege” as a state law
8 privilege, it is inapplicable for the same reasons that the state law peer review privilege is
9 inapplicable: state law privileges have no application in federal question cases. Agster, 433 F. 3d
10 at 838-839. However, given the nature of documents requested and the reasons given for
11 objecting to their disclosure, the Court construes the assertion of this privilege as also raising a
12 right of privacy. Accordingly, the Court will apply the requisite balancing test in determining
13 whether the need for disclosure outweighs the privacy issues, and will also consider whether
14 additional orders are necessary to protect a party or person from annoyance, embarrassment,
15 oppression, or under expense in connection with any disclosure that may be ordered as to such
16 documents.
17 F. Privilege Log
18 A concomitant requirement with a claim of privilege is an adequate privilege log.
19 Fed. R. Civ. P. 26 provides in relevant part that:
20 When a party withholds information otherwise discoverable under these
rules by claiming it is privileged or subject to protections as trial preparation
21 material , the party shall make the claim expressly and shall describe the nature of
the documents, communications or things not produced or disclosed in a manner
22 that, without revealing information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection.
23
Fed. R. Civ. P. 26(b)(5) requires parties to provide a log or its equivalent when they
24
withhold information on grounds of privilege or work product protection. Etienne v. Wolverine
25
Tube, Inc., 185 F.R.D. 653, 656 (D. Kansas 1999). The Ninth Circuit has held that an adequate
26
privilege log identifies 1) the persons involved; 2) the nature of the document; 3) all persons or
27
28 -5-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page36
6 of 31
101
1 entities shown on the documents to have received or sent the documents; 4) all persons or entities
2 known to have been furnished the document or informed of its substance; and 5) the date the
3 document was generated, prepared, or dated. In re Grand Jury Investigation, 974 F. 2d 1068,
4 1071 (9th Cir. 1992).
5 Here, Defendants produced a privilege log, which Plaintiff asserts is inadequate for two
6 reasons. First, because it is not sufficiently specific. Second, because it pertains only to the first
7 installment of a two-phased document production. Defendants contend that Plaintiff’s requests
8 for production relate to approximately 30,000 pages of documents, and that due to the large
9 number of documents, they agreed to produce them in two installments. Defendants produced
10 the first installment, along with a privilege log that they contend is adequate. Defendants contend
11 that they were in the process of producing the second installment of documents, with a separate
12 privilege log as to those documents, when the instant discovery dispute arose over copying costs
13 and other issues. At the time of the motion hearing, the second installment of documents had not
14 been produced.
15 The Court has considered the first privilege log, and at the motion hearing, ordered
16 Defendants to amend the log to provide additional information. Given the nature of the
17 documents on the log and the Court’s orders made at the hearing, the Court declines to find a
18 waiver of privilege.
19 The Court next addresses the timing of the privilege log. Fed. R. Civ. P. 25(b)(5) requires
20 the party asserting privilege to adequately describe the documents withheld, but it does not
21 specify when the required description must be provided. Jackson v. County of Sacramento, 175
22 F.R.D. 653, 655 (E.D. Cal. 1997). In Burlington Northern & Sante Fe Railway Co. v. United
23 States District Court for the District of Montana, 408 F. 3d 1142 (9th Cir. 2005), the Ninth
24 Circuit held that “boilerplate objections or blanket refusals inserted into a response to a Rule 34
25 request for productions of documents are insufficient to assert a privilege.” Id. at 1149.
26 The Court also held that failure to serve a privilege log within 30 days was not a per se waiver ,
27
28 -6-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page37
7 of 31
101
1 and directed courts to make waiver determinations on a case-by-case basis, taking into account:
2 1) the relative specificity of the objection or assertion of privilege; 2) the timeliness of the
3 objection and accompanying information about the withheld documents; 3) the magnitude of the
4 document production; and 4) other particular circumstances of the litigation that make
5 responding to discovery unusually easy or unusually hard. Id. at 1149. The Ninth Circuit also
6 cautioned that the above factors should also be applied “in the context of a holistic realistic
7 analysis.” Id.
8 The Court has considered the Burlington factors, and the circumstances surrounding the
9 submission of Defendants’ privilege log. Defendants’ objections were timely, but essentially
10 boilerplate. Defendants did not produce a privilege log when they objected to the discovery
11 requests, but submitted one when they produced the first installment of documents. Defendants
12 produced documents in response to Plaintiff’s request, but did not produce them all at once.
13 Instead, as discussed, Defendants proceeded in accordance with what Defendants’ counsel
14 believed was an agreement between him and Plaintiff’s counsel. Although the precise details of
15 the agreement are difficult to divine from the declarations and their approximately 200 pages of
16 attachments, a task that is made more difficult by the absence of a joint statement regarding this
17 discovery dispute, the Court concludes there was an agreement that the document production
18 would be accomplished in at least two installments. Considering the timing dispute in the
19 context of a holistic realistic analysis, the Court concludes that the date of service of the first
20 privilege log and the fact that it addressed only the first installment of documents, does not
21 warrant a privilege waiver as to either the items on the log or as to documents to be produced in
22 the second installment. However, with respect to the latter, Defendants will be compelled to
23 provide an adequate log or face waiving privilege.
24 G. Reproduction Costs
25 A dispute has arisen over the cost to reproduce documents produced in discovery.
26 Plaintiff contends that Defendants refused to produce documents he requested to inspect, until he
27
28 -7-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page38
8 of 31
101
1 reimbursed them for reproduction costs. He contends that he is not required to pay for the cost to
2 reproduce the documents and that Defendants cannot unilaterally condition their production upon
3 payment of such costs. Defendants contend that the substantive and temporal scope of Plaintiff’s
4 document requests are unnecessarily broad, and require production of at least 30,000 pages of
5 documents, many of which have marginal or no relevance to this case. By way of example,
6 Defendants report that Plaintiff’s Document Request No. 57 seeks approximately
7 11, 000 pages of blood product chart copy records that relate to blood products delivered to
8 patients, that Plaintiff contends has no relation to any issue in this case. Plaintiff’s first
9 production of documents consisted of approximately 12,000 pages. Defendants served their first
10 installment of documents on Plaintiff in the form of electronic files copied on CDs. At first,
11 Defendants demanded that Plaintiff pay $10,000 for reproduction costs, and later reduced that
12 amount to $2, 932.00
13 Federal Rule of Civil Procedure 26(b)(1) defines the general scope of discovery, and
14 provides in relevant part that “[p]arties may obtain discovery regarding any nonprivileged matter
15 that is relevant to any party’s claim or defense ... .” Rule 26(b)(2) limits the frequency and extent
16 of discovery, providing in relevant part that:
17 On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules of by local rule if it determines that: . . . (iii) the
18 burden or expense of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties’
19 resources, the importance of the issues at stake in the action, and the importance
of the discovery in resolving the issues.
20
21 Fed.R.Civ.P. 26(b)(2)(C). Under the discovery rules, “the presumption is that the responding
22 party must bear the expense of complying with discovery requests, but may involve the district
23 court’s discretion under Rule 26(c) to grant protective orders protecting him from ‘undue burden
24 or expense’ in doing so, including orders conditioning discovery on the requesting party’s
25 payment of the costs of discovery.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98
26 S.Ct. 2380 (1978); Zubalake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D. N.Y. 2003); OpenTV
27
28 -8-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page39
9 of 31
101
1 v. Liberate Technologies, 219 F.R.D. 474, 476 (N.D.Cal. 2003). Cost-shifting should only be
2 ordered when discovery imposes an “undue burden or expense” that outweighs the likely benefits
3 of the discovery and after consideration of all relevant factors.
4 Here, Defendants have not sought a protective order. Defendants have not provided any
5 case authority to support its position or an analysis of the factors to be considered in determining
6 whether cost-shifting is appropriate, other than contending that the many of the documents
7 requested by Plaintiff have little or no relevance to this case and the cost of their production
8 outweighs any likely benefit. At the hearing on the motion, the parties stipulated to resolve the
9 dispute as to responsive documents that were copied onto a CD but not delivered to Plaintiff,
10 agreeing that Plaintiff will pay Defendants’ counsel the sum of $2, 932, and that Defendants’
11 counsel will reimburse Plaintiff at the rate of 14 cents per page for any duplicate documents
12 contained on the CD. The Court accepts the parties’ stipulation and makes it an order of the
13 Court. As to the remaining documents requested by Plaintiff, the Court concludes that they do
14 not impose a benefit on Defendants that is sufficient to warrant cost-shifting at this time.
15 H. Defendants’ Supplemental Responses
16 On October 11, 2007, Plaintiff served his request for production of documents on
17 Defendants. Defendants’ written responses were due by November 12, 2007 and their
18 production of documents was due by November 16, 2007. Plaintiff and Defendants initially
19 agreed to extend the deadline for responses to November 20, 2007 as to some of the requests, and
20 later dates as to others. They also agreed to extend the deadline for production of documents to
21 December 21, 2007. On November 20, 2007, Defendants served timely written responses.
22 On December 14, 2007, Plaintiff agreed to extend the time for responses to December 21, 2007.
23 On December 19, 2007, Defendants served supplemental responses to the requests for
24 production. The supplemental responses included additional objections and assertions of
25 privilege, that were not contained in Defendants ’ initial responses. In light of the parties’
26 agreement to extend the time for responses to December 21, 2007, the supplemental responses
27
28 -9-
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page40
10of
of101
31
1 were timely and the objections and assertions of privileges therein will be considered by the
2 Court. (Doc. 83, pp. 103-169).
3 I. Requests for Production
4 The Court summarizes Plaintiff’s document requests and Defendants’ responses, and
5 rules on each request as follows.
6 Request No. 11
7 Documents related to Kern Medical Center personnel directories or lists maintained
8 during Plaintiff’s employment with Kern Medical Center.
9 Defendants’ Response:
10 Defendants will produce all nonprivileged documents, redact privileged information, and
11 produce the documents subject to receipt of reimbursement for reproduction costs.
12 Ruling:
13 The motion to compel is GRANTED as to this request. Defendants’ assertion of
14 privilege lacks specificity. At the hearing on the motion, both counsel agreed that home
15 addresses would be redacted. If they have not already done so, Defendants shall produce the
16 documents for Plaintiff’s inspection and copying, within 10 days from the date of this order.
17 After inspecting the documents, Plaintiff shall decide what documents he wants copied, and pay
18 his own reproduction costs.
19 Request Nos. 12-14, 15
20 No. 12: Documents related to personnel policies, guidelines, fact sheets, posters,
21 employee and/or employer handbooks, training materials, and employee and/or employer
22 manuals that governed Plaintiff’s terms and conditions of employment at any time during the
23 period from October 1, 2000 to October 4, 2007.
24 No. 13: Documents related to personnel policies, guidelines, fact sheets, posters,
25 employee and/or employer handbooks, training materials, and employee and/or employer
26 manuals that were distributed or made available to employees ,whether management or non-
27
28 - 10 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page41
11of
of101
31
1 management, from October 2000 to the present and the date of such asserted distribution.
2 No. 14: Documents related to peer review, quality management and quality assurance
3 policies and procedures at Kern Medical Center, including but not limited to Kern Medical
4 Center’s Quality Management and Performance Improvement Plan, from October 24, 2000 to the
5 present, and the effective dates.
6 No. 15: Documents related to any training provided to officers, directors, agents or
7 employees on the following subjects: a) disability discrimination, b) accommodation of an
8 employee’s disability, c) the interactive process regarding accommodation of an employee’s
9 disability; d) medical leave rights; e) whistleblower retaliation, f) medical leave retaliation,
10 g) due process required for demotion; h) due process required for pay cut, i) due process required
11 for termination of employment, j) defamation, and k) Fair Labor Standards Act.
13 Defendants agreed to produce redacted documents, subject to objections that the requests
14 seek documents that contain confidential personnel information, are protected from disclosure
15 by HIPAA and the peer review, personnel, and attorney-client privileges, and subject to
16 reimbursement of reproduction costs.
17 Ruling:
18 The motion to compel is GRANTED in part and DENIED in part as to these requests.
19 The peer review and personnel privileges are not applicable. Defendants’ assertion of HIPAA
20 protection and the attorney-client privilege is appropriate. To the extent that Defendants assert a
21 right to privacy, the balancing test weighs in favor of limited disclosure and a protective order.
22 Defendants shall redact all HIPAA information from the documents. Defendants shall produce
23 the documents, excluding those that are subject to the attorney-client privilege. Defendants shall
24 also provide a detailed privilege log as required by Fed. R.Civ.P. 26(b)(5). The documents shall
25 be produced for Plaintiff’s inspection and copying, and the privilege log shall be provided to him,
26 within 20 days from the date of this order. After inspecting the documents, Plaintiff shall decide
27
28 - 11 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page42
12of
of101
31
1 what documents he wants copied, and pay his own reproduction costs.
2 Request No. 17
3 Documents relating to the search, recruitment, application, interviewing, and hiring
4 process that resulted in Plaintiff’s employment.
6 Defendants agreed to produce documents, subject to redaction and objections that the
7 request seeks documents containing confidential personnel information, documents protected
8 from disclosure by HIPAA and the peer review, personnel, and attorney-client privileges.
9 Defendants agreed to produce the documents without waiving their objections, upon
10 reimbursement of reproduction costs.
11 Ruling:
12 The motion to compel is GRANTED in part and DENIED in part as to this request.
13 The peer review and personnel privileges are inapplicable. Defendants’ assertion of HIPAA
14 protection and the attorney-client privilege is appropriate. To the extent that Defendants’
15 assertion of a right of privacy to personnel information of candidates is subject to a balancing
16 test, it weighs in favor of limited disclosure and a protective order. Defendants shall redact from
17 the documents all HIPAA information and all personal identifying information of candidates
18 other than Plaintiff. Defendants shall produce the documents, excluding those that are subject to
19 the attorney-client privilege, and also excluding all letters of reference for candidates other than
20 Plaintiff and all substantive evaluations of candidates other than Plaintiff. Defendants shall also
21 provide a detailed privilege log for those documents that are withheld for the attorney-client
22 privilege. The documents and the privilege log shall be produced within 20 days from the date of
23 this order. Plaintiff shall inspect the documents, decide what he wants copied, and pay his own
24 reproduction costs.
25 Requests Nos. 23-24
26 No. 23: Documents relating to Dr. Phillip Dutt’s time sheets, from April 20, 2005 to the
27
28 - 12 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page43
13of
of101
31
1 present.
2 No. 24: Documents relating to Dr. Savita Shertukde’s time sheets, from January 4, 2005
3 to present.
5 Defendants agreed to produce documents redacted for privileged information, subject to
6 reimbursement for reproduction costs.
7 Ruling:
8 The motion to compel is GRANTED as to these requests. The responses fails to specify
9 the asserted privilege. Defendants shall produce the documents for Plaintiff’s inspection and
10 copying within 10 days from the date of this order. Plaintiff shall inspect the documents, decide
11 what he wants copied, and pay his own reproduction costs.
12 Request No. 25
13 Documents relating to performance reviews, comments, complaints, warnings,
14 reprimands, counseling, advisory notices or evaluations of Plaintiff’s performance of his job
15 duties throughout his employment, whether formal or informal.
17 Defendants objected to this request on the ground that it seeks documents containing
18 information protected by the attorney-client privilege. Without waiving the objection,
19 Defendants agreed to produce the documents, subject to redaction and reimbursement of
21 Ruling:
23 Defendants’ assertion of the attorney-client privilege is appropriate. Defendants shall produce the
24 documents, excluding those that are subject to the attorney-client privilege. Defendants shall
25 also provide a detailed privilege log. The documents shall be produced for Plaintiff’s inspection
26 and copying, and the privilege log shall be provided to him, within 20 days from the date of this
27
28 - 13 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page44
14of
of101
31
1 order. After inspecting the documents, Plaintiff shall decide what documents he wants copied,
2 and pay his own reproduction costs.
3 Request No. 26
4 Documents maintained by Plaintiff at Kern Medical Center during his employment there,
5 including e-mails, Groupwise calendars, memoranda, written materials, and computer files,
6 stored on Plaintiff’s computer at Kern Medical Center.
8 Defendants objected to producing documents containing confidential personnel
9 information, documents protected from disclosure by HIPAA, and the peer review, personnel,
10 and attorney-client privileges. Groupwise calendar information was deleted as part of a routine
11 90-day software cycling sweep. Defendants agreed to produce redacted material that was
12 archived by December 21, 2007, provided that Plaintiff pay the reproduction costs.
13 Ruling:
14 The motion to compel is GRANTED as to this request. At the hearing on the motion,
15 Defendants’ counsel reported that Defendants do not object to this request and will produce the
16 documents requested. If Defendants have not already done so, they shall produce the documents
17 for Plaintiff’s inspection and copying within 10 days from the date of this order. Plaintiff shall
18 decide what documents he wants copied, and pay his reproduction costs.
19 Request No. 27
20 Documents relating to any meetings relating to Plaintiff or his employment at Kern
21 Medical Center.
23 Defendants objected to this request on the ground that it seeks documents protected from
24 disclosure by the attorney-client privilege. Without waiving their objection, Defendants agreed
25 to produce nonprivileged documents, subject to redaction and reimbursement of reproduction
26 costs
27
28 - 14 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page45
15of
of101
31
1 Ruling:
3 Defendants’ assertion of the attorney-client privilege is appropriate. Defendants shall redact all
4 HIPAA information from the documents. Defendants shall produce the documents, excluding
5 those that are subject to the attorney-client privilege. Defendants shall also provide a detailed
6 privilege log. The documents shall be produced for Plaintiff’s inspection and copying, and the
7 privilege log shall be provided to him, within 20 days from the date of this order. After
8 inspecting the documents, Plaintiff shall decide what documents he wants copied, and pay his
9 own reproduction costs.
10 Request No. 28:
11 Documents relating to performance reviews, comments, complaints, warnings,
12 reprimands, counseling, advisory notices or evaluations of the Kern Medical Center Pathology
13 Department, whether formal or informal, from October 24, 1995 to the present.
15 Defendants objected to this request , contending that it seeks documents that contain
16 confidential personnel information, and that are protected from disclosure by HIPAA and the
17 peer review, personnel, and attorney-client privileges. Without waiving their objections,
18 Defendants agreed to produce redacted documents subject to reimbursement of reproduction
19 costs.
20 Ruling:
21 The motion to compel is GRANTED in part and DENIED in part as to this request. The
22 peer review and personnel privileges are inapplicable. Defendant’s assertion of HIPAA
23 protection and the attorney-client privilege is appropriate. To the extent that Defendants’
24 assertion of a right of privacy is subject to a balancing test, it weighs in favor of a protective
25 order. Defendants shall redact from the documents all HIPAA information. Defendants shall
26 produce the documents, excluding those that are subject to the attorney-client privilege.
27
28 - 15 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page46
16of
of101
31
1 Defendants shall also produce a detailed privilege log for the documents that are withheld for the
2 attorney-client privilege. The documents shall be produced for Plaintiff’s inspection and
3 copying, and the privilege log provided to him, within 20 days from the date of this order.
4 Plaintiff shall inspect the documents, decide what he wants copied, and pay his own reproduction
5 costs.
6 Request Nos. 29-30
7 No. 29: Documents relating to Plaintiff’s complaints of a) disability discrimination,
8 b) failure to accommodate, c) failure to engage in an interactive process, d) violation of medical
9 leave rights; e) whistleblower retaliation, f) medical leave retaliation, g) deprivation of property
10 without due process , h) defamations, and i) Fair Labor Standards Act.
11 No. 30: Documents relating to investigation of Plaintiff ’s complaints of disability
12 discrimination, failure to accommodate, failure to engage in an interactive process, violation of
13 medical leave rights; whistleblower retaliation, medical leave retaliation, defamation, and/or
14 deprivation of property without due process
16 Defendants objected to Request Nos. 29 on the ground that it requests documents
17 containing information protected by the attorney-client privilege, and agreed to produce the
18 documents, subject to redaction of “confidential peer review and personnel information” and
19 reimbursement for reproduction costs.
20 Ruling:
22 Defendants’ assertion of the attorney-client privilege is appropriate. The peer review privilege is
23 inapplicable. The Court construes Defendants’ “confidential personnel information” objection to
24 assert the personnel privilege, and finds the privilege inapplicable. To the extent that
25 Defendants’ assertion of a right of privacy to personnel information is subject to a balancing test,
26 it weighs in favor of a protective order. Defendants shall produce the documents, excluding
27
28 - 16 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page47
17of
of101
31
1 those that are subject to the attorney-client privilege. Defendants shall also provide a detailed
2 privilege log for the documents that are withheld for the attorney-client privilege. Defendants
3 shall produce the documents for Plaintiff’s inspection and copying, and provide the privilege log,
4 within 20 days from the date of this order. Plaintiff shall inspect the documents, decide what he
5 wants copied, and pay for his reproduction costs.
7 No. 32: Documents relating to your discipline of any employee against whom a
8 complaint or grievance of discrimination, harassment, defamation, retaliation, failure to
9 accommodate, and/or failure to engage in an interactive process in their employment was made
10 from October 24, 2000 to date.
11 No. 33: Documents relating to complaints or grievances made by Defendants’ past or
12 present employees against Defendants for defamation, retaliation, disability discrimination,
13 failure to accommodate, and/or failure to engage in an interactive process, including, but not
14 limited to information or internal complaints, grievances or charges to any state or federal
15 agency, and complaints filed in any state or federal court from October 24, 2004 to date.
17 Defendants objected on the grounds that these requests seek documents containing
18 confidential personnel information and are not reasonably calculated to lead to the discovery of
19 admissible evidence. Defendants also contend that Request No. 33 is vague as to the phrase
20 “informal or internal”, and overbroad and burdensome because Defendant County of Kern
21 employees thousand employees.
22 Ruling:
23 At the hearing on the motion, Plaintiff’s counsel proposed to limit this Request No. 33 to
24 “complaints or grievances made by past or present core physicians at Kern Medical Center for
25 defamation, retaliation, disability discrimination, failure to accommodate, and/or failure to
26 engage in an interactive process, including but not limited to any informal or internal complaints,
27
28 - 17 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page48
18of
of101
31
1 grievances or charges to any state or federal agency, and complaints filed in any state or federal
2 court from October 24, 2000 to date.” The term “core physicians” means physicians at Kern
3 Medical Center who are under contract. Based on that limitation, Defendants’ counsel agreed to
4 produce the documents as to “core physicians” in response to Requests Nos. 32 and 33.
5 The motion to compel is GRANTED as to the limitation to “core physicians” at Kern
6 Medical Center for Requests Nos. 32 and 33, and is DENIED as to employees other than core
7 physicians at Kern Medical Center. To the extent that Defendants’ assertion of a right of privacy
8 is subject to a balancing test, it weighs in favor of limited disclosure and a protective order.
9 Defendants shall redact from the documents all HIPAA information and all personal identifying
10 information as to core physicians at Kern Medical Center other than Plaintiff. Defendants shall
12 Defendants shall also produce a detailed privilege log for those documents that are withheld for
13 the attorney-client privilege. The documents shall be produced for Plaintiff’s inspection and
14 copying, and the privilege log provided to him, within 20 days from the date of this order.
15 Plaintiff shall decide what documents he wants copied, and pay for his own reproduction costs.
16 Request No. 34:
17 Documents related to complaints or grievances made by Plaintiff.
19 Defendants produced documents in response to this request, and indicated they will
20 confirm this or produce any additional documents subject to receipt of reproduction costs.
21 Ruling:
22 The motion to compel is DENIED as to this request.
24 No. 36: Documents relating to Defendants’ search for, recruitment of, and evaluation of
25 candidates for the position of staff pathologist at Kern Medical Center from January 1, 2006 to
26 the present.
27
28 - 18 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page49
19of
of101
31
2 candidates for the position of Chair or Chief of Pathology at Kern Medical Center from January
3 1, 2006 to the present.
5 candidates for the position of locum tenens pathologist at Kern Medical Center from January 1,
6 2006 to the present.
8 candidates for the position of Chair of Chief of OB-GYN at Kern Medical Center during the
9 period from January 1, 2006 to present.
10 No. 41: Documents relating to Defendants’ search for, recruitment, of and evaluation of
11 candidates for the position of Chair or Chief of Medicine at Kern Medical Center during the
12 period from October 24, 2000 to present.
13 Defendants’ Responses:
14 Defendants objected to these requests on the ground that they seek documents containing
15 confidential personnel information that is not reasonably calculated to lead to the discovery of
16 admissible evidence. Defendants also objected based on HIPAA, and asserted the peer review,
17 personnel, and attorney-client privileges.
18 Ruling:
20 The peer review and personnel privileges are inapplicable, and the relevancy objection is
21 overruled. Defendants’ assertion of the attorney-client privilege is appropriate. To the extent
22 that Defendants’ assertion of a right of privacy to personnel information of candidates other than
23 Plaintiff is subject to a balancing test, it weighs in favor of limited disclosure and a protective
24 order. Defendants shall redact from the documents all HIPAA information and all personal
25 identifying information of candidates other than Plaintiff. Defendants shall produce the
26 documents, excluding those that are subject to the attorney-client privilege, and also excluding
27
28 - 19 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page50
20of
of101
31
1 letters of reference for candidates other than Plaintiff and substantive evaluations of candidates
2 other than Plaintiff. Defendants shall also produce a detailed privilege log for those documents
3 that are withheld for the attorney-client privilege. The documents shall be produced for
4 Plaintiff’s inspection and copying, and the privilege log provided to him. within 20 days from the
5 date of this order. Plaintiff shall inspect the documents, decide what he wants copied, and pay
6 for his own reproduction costs.
7 Request No. 40
8 Documents relating to the removal of Dr. Royce Johnson from the position of Chair or
9 Chief of Medicine at Kern Medical Center.
11 Defendants objected on the ground that the requests seeks documents containing
12 confidential personnel information that is not relevant to any issues in the case and is not
13 reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to
14 disclosure based on HIPAA, and the peer review and attorney-client privileges.
15 Ruling:
16 At the hearing on this motion, Defendants’ counsel withdrew the objections to this
17 request and agreed to produce the documents, without 1) waiving the personnel privilege or
18 privacy claims as to other persons, and 2) reserving the right to object to their admissibility at
19 trial. Accordingly, the motion to compel is GRANTED in part and DENIED in part as follows:
20 Defendants shall produce the documents pertaining to the removal of Dr. Royce Johnson as the
21 Chair or Chief of Medicine at Kern Medical Center for Plaintiff’s inspection, but it shall be
22 subject to a protective order. Defendants shall not produce documents that are subject to the
23 attorney-client privilege and provide a detailed privilege log. The documents shall be produced
24 for Plaintiff’s inspection and copying, and the privilege log provided to him, within 20 days from
25 the date of this order. Plaintiff shall inspect the documents, decide what he wants copied, and
26 pay for his own reproduction costs.
27
28 - 20 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page51
21of
of101
31

2 No. 42: Documents relating to Plaintiff’s presentations made at the Kern Medical Center
3 oncology conference in May 2005, including but not limited to participant evaluation forms,.
4 No. 43: Documents relating to Plaintiff’s presentations made at the Kern Medical Center
5 oncology conference on or about October 12, 2005.
7 Defendants objected to these requests on the grounds that they seek documents that
8 contain certain confidential personnel information that is not relevant to any issues in this case
9 and is not reasonably calculated to lead to the discovery of admissible evidence. Defendants also
10 object to this request to the extent that it requests information protected by HIPAA , and the peer
11 review and attorney-client privileges. Defendants agreed to produce non-privileged documents
12 and to redact any privileged information.
13 Ruling:
15 The peer review and personnel privileges are inapplicable. The assertion of the attorney-client
16 privilege is appropriate. Defendants shall redact and produce the nonprivileged documents and
17 provide a detailed privilege log, within 20 days from the date of this order. Plaintiff shall inspect
18 the documents, decide what he wants copied, and pay the reproduction costs.
19 Request No. 45
20 Documents relating to packets containing information about Plaintiff which Peter Bryan
21 collected at the end of Kern Medical Center’s Joint Conference Committee discussion and vote
22 on removal of Plaintiff from Chair of Pathology on July 10, 2006.
24 Defendants asserted the peer review, attorney-client, and confidential personnel
25 privilege. Without waiving these objections, Defendants agreed to produce the documents
26 subject to reimbursement of reproduction costs.
27
28 - 21 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page52
22of
of101
31
1 Ruling:
3 peer review and personnel privileges are inapplicable. Defendants’ assertion of the attorney-
4 client privilege is appropriate. To the extent that Defendants’ assertion of the right of privacy to
5 personnel information is subject to a balancing test, it weighs in favor of a protective order. If
6 they have not already done so, Defendants are required to redact and produce the nonprivileged
7 documents and a detailed privilege log, within ten days from the date of this order. Plaintiff shall
8 inspect the documents, decide what he wants copied, and pay his own reproduction costs.
9 Request Nos. 51 and 54
10 No. 51: Documents relating to Kern Medical Center’s Disruptive Physician Policy,
11 including but not limited to Bylaw Committee meeting minutes.
12 No. 54: Documents relating to statistics relating to patient fatalities at Kern Medical
13 Center from October 24, 2000 to the present.
14 Defendant’s Response:
15 Defendants objected to Request No. 51 on the ground that it is vague, seeks documents
16 that contain confidential personnel information and documents protected from disclosure by
17 HIPAA and the peer review, personnel, and attorney-client privileges. Except for the vagueness
18 objection, Defendants made the same objections as to Request No. 54. Additionally, Defendants
19 objected to No. 54 on the ground that it is not relevant to any issues in this case and is not
20 reasonably calculated to lead to the discovery of admissible evidence. Without waiving these
21 objections, Defendants agreed to produce documents in response to these requests, subject to
22 redaction of peer review and personnel information, and reimbursement for copy costs.
23 Ruling:
24 At the hearing on the motion, Defendants withdrew Request No. 54. The motion to
25 compel is GRANTED in part and DENIED in part as to Request No. 51. The peer review and
26 personnel privileges are inapplicable. Defendants’ assertion of the attorney-client privilege is
27
28 - 22 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page53
23of
of101
31
1 appropriate. To the extent that Defendants’ assertion of a right of privacy of personnel

2 information is subject to a balancing test, it weighs in favor of a protective order. As to Request
3 No. 51, Defendants shall redact from the documents all HIPAA information. Defendants shall
5 Defendant shall produce a detailed privilege log for the documents that are withheld for the
6 attorney-client privilege. The documents and the privilege log shall be produced within 20 days
7 from the date of this order. Plaintiff shall inspect the documents, decide what he wants copied,
8 and pay his own reproduction costs.
9 Request No. 55
10 Documents relating to the review of Kern Medical Center’s placental evaluations and
11 billing activity as conducted by outside consultants, including but not limited to ProPay Physican
12 Services, L.L.C. from October 24, 2000 to the present.
14 Defendants objected to this request on the ground that it seeks documents that contain
15 confidential personnel information that is not relevant to any issue in this case and is not
16 reasonably calculated to lead to the discovery of admissible evidence. Defendants also contend
17 that it requests information protected from disclosure by HIPAA and the peer-review, personnel,
18 and attorney-client privileges.
19 Ruling:
20 At the hearing on this motion, Plaintiff narrowed his request to “documents relating to
21 Kern Medical Center’s review of Plaintiff’s placental evaluations and billing activity as conducted
22 by outside consultants, including, but not limited to, ProPay Physician Services, L.L.C. from
23 October 24, 200 to the present.” In response to that modification, Defendants withdrew their
24 objections, and agreed to produce the documents. There being no objections, Defendants are to
25 produce the documents for Plaintiff’s inspection within 10 days after the date of this order.
26 Plaintiff shall inspect the documents, decide what he wants copied, and pay his own copy costs.
27
28 - 23 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page54
24of
of101
31
1 Request No. 56
2 Documents relating to blood bank monthly reports, including but not limited to reports
3 generated by Michelle Burris, from January 2006 to present.
5 Defendants contend that this request seeks documents that contain confidential personnel
6 information that is not relevant to any issues in this case and is not reasonably calculated to lead to
7 the discovery of admissible evidence. Defendants also contend that it requests information
8 protected from disclosure by HIPAA and the peer review, personnel, and attorney-client
9 privileges.
10 Ruling:
11 The motion to compel is DENIED as to this request. The request seeks information that
12 is not reasonably calculated to lead to the discovery of relevant evidence.
13 Request No. 57
14 Documents relating to product chart copy-related quality assurance reports from October
19 the discovery of admissible evidence. Defendants also contend that the requests seek information
20 protected from disclosure by HIPAA and the peer review, personnel, and attorney-client
21 privileges.
22 Ruling:
23 At the hearing on this motion, Plaintiff’s counsel represented that “it appears that we have
24 worked out a procedure whereby we will review it.” Accordingly, the motion is deemed
25 withdrawn as to this request.
26 ///
27
28 - 24 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page55
25of
of101
31

2 No. 58: Documents relating to prostate needle biopsy reports produced by Dr. Elsa Ang
3 for which Plaintiff had requested a look back study in October 2005.
4 No. 60: Documents relating to Workplace Violence or Threat Incident Reports for all
5 Kern Medical Center personnel from October 24, 2000 to the present.
6 No. 61: Documents relating to Fine Needle Aspiration policies at Kern Medical Center
7 from October 24, 2000 to the present.
9 Defendants contend that these requests seek documents that contain confidential personnel
11 the discovery of admissible evidence. Defendants also contend that these requests seek
12 information protected from disclosure by HIPAA and the peer review, personnel, and attorney-
13 client privileges. Without waiving these objections, Defendants agreed to produce documents in
14 response to Request Nos. 60 and 61, subject to redaction of confidential or privileged information
15 and reimbursement for copy costs.
16 Ruling:
18 The peer review and personnel privileges are inapplicable, and the relevancy objection is
19 overruled. Defendants’ objection to disclosure based on HIPAA is appropriate, as is its assertion
20 of the attorney-client privilege. To the extent that Defendants’ assertion of a right of privacy to
21 personnel information is subject to a balancing test, it weighs in favor of a protective order.
22 Defendants shall redact from the documents all HIPAA information. Defendants shall produce the
23 documents, excluding those that are subject to the attorney-client privilege. Defendants shall also
24 provide a detailed privilege log for the documents that are withheld for the attorney-client
25 privilege. Defendants shall produce the documents and the privilege log within 20 days from the
26 date of this order. Plaintiff shall inspect the documents, decide what he wants copied, and pay his
27
28 - 25 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page56
26of
of101
31
1 own reproduction costs.

2 Request No. 63
3 Documents relating to meeting minutes for the following Kern Medical Center committees
4 or groups from October 24, 2000 to the present: a) Medical Executive Committee, b) Joint
5 Conference Committee, c) Quality Management Committee, d) Cancer Committee, e) Second
6 Level Peer Review Committee, f) Transfusion Committee, and g) Executive Staff Meetings.
9 information, and information protected by HIPAA and the peer review and attorney-client
10 privileges. Without waiving these objections, Defendants agreed to produce responsive documents
11 subject to redaction of confidential or privileged information and reimbursement for copy costs.
12 Ruling:
14 peer review and personnel privileges are inapplicable. However, to the extent that Defendants’
15 assertion of a right of privacy to personnel information is subject to a balancing test, it weighs in
16 favor of limited disclosure and a protective order. Defendant shall redact from the documents all
17 HIPAA information and all personal identifying information of employees other than Plaintiff
18 with respect to personnel matters. Defendants shall produce the documents, excluding those that
19 are subject to the attorney-client privilege and those that are excluded by other provisions of this
20 order. Defendants shall also produce a detailed privilege log for the documents that are withheld
21 for the attorney-client privilege. The documents and the privilege log shall be produced within 20
22 days from the date of this order. Plaintiff shall inspect the documents, decide what he wants
23 copied, and pay his own reproduction costs.
25 No. 65: Documents relating to case send-out logs for Kern Medical Center’s Pathology
26 Department from January 1, 1999 to the present, including but not limited to corresponding Kern
27
28 - 26 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page57
27of
of101
31
1 Medical Center pathology reports and reports from outside consultants.

2 No. 66: Documents relating to case monthly turn-around time reports and logs -
3 by pathologist - for pathology reports processed at Kern Medical Center, including but not limited
4 to Pathology Department semi-annual reports to the Medical Staff, for the time period from
5 January 1, 1999 to the present
6 No. 67: Documents relating to case monthly turn-around time reports and logs - for Kern
7 Medical Center’s Pathology Department as a whole - for pathology reports processed at Kern
8 Medical Center including but not limited to surgical pathology, cytology and bone marrow
9 reports, for the time period from January 1, 1999 to the present.
11 Defendants contend that these requests seek documents that contain confidential personnel
12 information, and seek information protected by HIPAA and the peer review, personnel, and
13 attorney-client privileges. Without waiving these objections, Defendants agreed to produce
14 responsive documents subject to redaction of peer review and personnel information and
15 reimbursement for copy costs.
16 Ruling:
17 The motion to compel is GRANTED in part and DENIED in part as to these requests. The
18 peer review and personnel privileges are inapplicable. Defendants’ assertion of the attorney-client
19 privilege is appropriate. To the extent that Defendants’ assertion of a right of privacy to personnel
20 information is subject to a balancing test, it weighs in favor of a protective order. Defendants
21 shall redact all HIPAA information from the documents. Defendants shall produce the documents
22 and a detailed privilege log, excluding those that are subject to the attorney-client privilege, within
23 20 days from the date of this order. Plaintiff shall inspect the documents, decide what he wants
24 copied, and pay his own reproduction costs.
25 Request No. 68
26 Documents relating to pathology reports authored, reviewed or approved by Plaintiff sent
27
28 - 27 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page58
28of
of101
31
1 to any outside pathologist for outside review from June 14, 2006 to the present.
3 Defendants objected to this request on the ground that it seeks documents containing
4 privileged peer review information. Without waiving this objection, Defendants agreed to
5 produce responsive documents subject to redaction of privileged information.
6 Ruling:
7 The motion to compel is GRANTED as to this request. The peer review privilege is
8 inapplicable. Defendants shall redact any HIPAA information from the documents, and produce
9 the documents for Plaintiff’s inspection within 10 days from the date of this order. Plaintiff shall
11 Request No. 69
12 Documents relating to pathology reports for case numbers S06-4131, S06-4619, S06 -
13 5229, and S06-73276.
15 Defendants contend that this request seeks documents that contain information protected
16 by HIPAA and the peer review privilege. Without waiving these objections, Defendants agreed to
17 produce responsive documents subject to redaction.
18 Ruling:
20 peer review privilege is not applicable. Defendants’ assertion of HIPAA protection is appropriate.
21 Defendants shall redact all HIPAA information from the documents and produce them for
22 Plaintiff’s inspection and copying, within 10 days from the date of this order. Plaintiff shall
24 Request No. 70
25 Documents relating to peer review of Kern Medical Center’s Pathology Department during
26 the time period from January 1, 1995 to the present.
27
28 - 28 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page59
29of
of101
31
4 the discovery of admissible evidence. Defendants also object to disclosure of information
5 protected by HIPAA and the peer review, personnel, and attorney-client privileges.
6 Ruling:
8 peer review and personnel privileges are inapplicable, and the relevancy objection is overruled.
9 Defendants’ objection based on HIPAA is appropriate, as is its assertion of the attorney-client
10 privilege. To the extent that Defendants’ assertion of a right of privacy to personnel information
11 is subject to a balancing test, it weighs in favor of limited disclosure and a protective order.
12 Defendants shall redact from the documents all HIPAA information and all personal identifying
13 information for employees other than Plaintiff. Defendants shall produce a detailed privilege log
14 for all documents that are withheld for the attorney-client privilege. The documents and the
15 privilege log shall be produced within 20 days from the date of this order. Plaintiff shall inspect
16 the documents, decide what he wants copied, and pay his own reproduction costs.
18 No: 71: Documents relating to exceptional event logs for histology and pathology on Kern
19 Medical Center’s Pathology Department from January 1, 2006 to the present.
20 No. 72: Documents related to paper accession logs at Kern Medical Center’s Pathology
21 Department from January 1, 2006 to the present.
22 No. 73: Documents relating to tissue disposal records for skull-flaps from January 1, 2006
23 to the present.
24 No. 78: Documents relating to placental evaluations conducted by Plaintiff from June 14,
26 ///
27
28 - 29 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page60
30of
of101
31
2 Defendants objected to these requests on the grounds that they calls for the production of
3 documents that contain confidential personnel information that is not relevant to any issues in this
4 case and is not reasonably calculated to lead to the discovery of admissible evidence. Defendants
5 also objected on the grounds that the requests seek information protected from disclosure by
6 HIPAA, and the peer review, personnel, and attorney-client privileges.
7 Ruling:
9 peer review privilege and personnel privilege are inapplicable. Defendants’ objection based on
10 HIPAA is appropriate, as is their assertion of the attorney-client privilege. To the extent that
11 Defendants’ assertion of a right of privacy to personnel information is subject to a balancing test,
12 it weighs in favor of a protective order. Defendants shall exclude all HIPAA information from the
13 documents. Defendants shall produce the documents, excluding those that are subject to the
14 attorney-client privilege. Defendants shall also produce a detailed privilege log for the documents
15 that are withheld for the attorney-client privilege. The documents and the privilege log shall be
16 produced for Plaintiff’s inspection and copying within 20 days from the date of this order.
17 Plaintiff shall inspect the documents, decide what he wants copied, and pay his own reproduction
18 costs.
19 Request No. 74
20 Documents relating to audits of Kern Medical Center’s Pathology Department by outside
21 consultants, including but not limited to Dr. Stacy Garry, from October 24, 2000 to the present.
23 Defendants objected to this request on the ground that it seeks documents that contain
24 information that is protected by HIPAA and the peer review privilege. Without waiving these
25 objections, Defendants agreed to produce responsive documents, subject to reimbursement for
27
28 - 30 -
Case
Document134
124 Filed
Filed05/19/2008
05/09/2008 Page
Page61
31of
of101
31
1 Ruling:
3 The peer review privilege is inapplicable. Defendants’ objection based on HIPAA is appropriate.
4 Defendants shall redact all HIPAA information from the documents and produce them for
5 Plaintiff’s inspection and copying within 20 days from the date of this order. Plaintiff shall
6 inspect the documents, decide what he wants copied, and pay for his own reproduction costs.
7 ORDER
8 Based on the foregoing, IT IS HEREBY ORDERED that:
9 1. Plaintiff's motion for an order to compel the production of documents is GRANTED in
10 part and DENIED in part.
11 2. No later than five days from the date of this order, Plaintiff’s counsel and Defendants’
12 counsel shall meet, confer, and stipulate to a mutually acceptable form of protective order. If
13 either party is concerned about the misuse of the documents or the information by either party,
14 they may propose a “counsel only ” protective order. In the event the parties are unable to
15 stipulate to a form of protective order within five days from the date of this order, then each party
16 shall file a proposed form of protective order for the Court’s consideration, to be filed no later
17 than six days from the date of this order. Counsel shall also send digital copies of the proposed
18 protective orders to the Court’s chambers at [email protected].
19
20 IT IS SO ORDERED.
21 Dated: May 8, 2008 /s/ Theresa A. Goldner
j6eb3d UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28 - 31 -
EXHIBIT 3. Defendants’ Responses to Plaintiff’s Request for Production, Set One


3 Phone: (916) 444-6400
Fax: (916) 444-6405
5 Bernard C. Barmann, Sr.
KERN COUNTY COUNSEL
1115 Truxton Avenue, Fourth Floor
Phone: (661) 868-3800
8 Fax: (661) 868-3805
9
10 Attorneys for Defendants County of Kern,
Peter Bryan, Irwin Harris, Eugene Kercher,
11 Jennifer Abraham, Scott Ragland, Toni Smith
and William Roy
12
15
16 DAVID F. JADWIN, D.O. ) Case No.: 1:07-cv-00026-OWW-TAG
)
17 Plaintiff, ) DEFENDANTS’ RESPONSES TO
) PLAINTIFF’S REQUEST FOR
18 vs. ) PRODUCTION OF DOCUMENTS (SET
) ONE)
19 COUNTY OF KERN, et al., )
) Date Action Filed: January 6, 2007
20 Defendants. ) Trial Date: August 26, 2008
)
21 )
)
22 )
)
23 )
24 PROPOUNDING PARTY: Plaintiff DAVID F. JADWIN, D.O., F.C.A.P.
25 RESPONDING PARTY: Defendant COUNTY OF KERN
26 SET NUMBER: ONE (1)
27
28
1
DEFENDANTS’ RESPONSES TO PLAINTIFF’S

REQUEST FOR PRODUCTION OF DOCUMENTS
1 Defendants hereby submit these responses to Plaintiff David F. Jadwin’s Request for
2 Production of Documents, Set One. Defendants have not located all the documents that are
3 responsive to this request and, for that reason, many of the production dates set forth herein are
4 estimates. Defendants will supplement or amend this response, if necessary, as additional
5 documents are located and reviewed.
6 REQUEST FOR PRODUCTION NO. 1
7 Any and all DOCUMENTS RELATING TO the First Affirmative Defense listed in
8 Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.
10 Defendants object to this request on the grounds that it calls for the production of
11 documents that are protected by the attorney-work-product and attorney-client privileges.
12 Without waiving those objections, after diligent search, Defendants’ have not been able to locate
13 any documents that are responsive to this request.
15 Any and all DOCUMENTS RELATING TO the Second Affirmative Defense listed in
23 Any and all DOCUMENTS RELATING TO the Third Affirmative Defense listed in
28
2

4 Any and all DOCUMENTS RELATING TO the Fourth Affirmative Defense listed in
12 Any and all DOCUMENTS RELATING TO the Fifth Affirmative Defense listed in
17 Without waiving those objections, Defendants will produce all non-privileged documents
18 responsive to this request on or before December 21, 2007. This request is duplicative of other
19 requests contained in Plaintiff’s request for production, set one, and the documents produced in
20 response to this request may refer to the documents produced in response to other requests.
22 Any and all DOCUMENTS RELATING TO the Sixth Affirmative Defense listed in

3


2 Any and all DOCUMENTS RELATING TO the Seventh Affirmative Defense listed in
10 Any and all DOCUMENTS RELATING TO the Eighth Affirmative Defense listed in
15 Without waiving those objections, Defendants will produce all non-privileged documents
16 responsive to this request on or before December 21, 2007. This request is duplicative of other
17 requests contained in Plaintiff’s request for production, set one, and the documents produced in
18 response to this request may refer to the documents produced in response to other requests.
20 Any and all DOCUMENTS RELATING TO the Ninth Affirmative Defense listed in
28
4

1 Any and all DOCUMENTS RELATING TO YOUR organizational structure during

2 Plaintiff’s employment with YOU, including but not limited to organizational charts, diagrams
3 and drawings.
5 Defendants will produce all documents responsive to this request. Production may occur
6 in stages. The first stage of production will be on November 20, 2007 and may include all
7 responsive documents. If other responsive documents are discovered, they will be produced by
8 December 7, 2007.
10 Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories
11 or lists, including but not limited to names, direct work phone numbers, departments, etc. which
12 were maintained by YOU during Plaintiff’s employment with YOU.
14 Defendants will produce all non-privileged documents responsive to this request.
15 Production may occur in stages. The first stage of production will be on November 20, 2007 and
16 may include all responsive documents. If other responsive documents are discovered, they will
17 be produced by December 7, 2007. Defendants will redact personal or confidential information
18 as appropriate.
20 Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
21 sheets, posters, employee and/or employer handbooks, training materials, and employee and/or
22 employer manuals maintained by YOU that YOU contend governed Plaintiff’s terms and
23 conditions of employment at any time during the period from October 1, 2000 to October 4,
24 2007. These include but are not limited to YOUR ordinances, Kern Medical Center’s
25 Administrative Procedures Manual, Kern Medical Center’s Policy & Administrative Procedures
26 Manual, policies RELATING TO disability discrimination, reasonable accommodation,
27 interactive process, personal leave, administrative leave, medical leave, retaliation, investigations
28 into complaints of unlawful employment practices, discipline of employees, investigation of

5

1 employees, appointment of Kern Medical Center acting department chairs, hiring of Kern
2 Medical Center department chairs, demotion of Kern Medical Center department chairs, and
3 policies RELATING TO Kern Medical Center’s Pathology Department.
5 Defendants object to this request to the extent it requests documents that contain
6 confidential personnel information, documents protected from disclosure by state or federal law,
7 including the peer-review privilege, or documents that are subject to the attorney-client privilege.
8 Without waiving these objections, Defendants will produce documents responsive to this request
9 by December 21, 2007. Defendants will redact confidential peer review and personnel
10 information as appropriate.
12 Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact
13 sheets, posters, employee and/or employer handbooks, training materials, and employee and/or
14 employer manuals maintained by YOU that YOU contend was distributed or made available to
15 YOUR employees, whether management or non-management, from October 24, 200 to the
16 present and the date of such asserted distribution. These include but are not limited to YOUR
17 ordinances, Kern Medical Center’s Administrative Procedures Manual, Kern Medical Center’s
18 Policy & Administrative Procedures Manual, policies RELATING TO disability discrimination,
19 reasonable accommodation, interactive process, personal leave, administrative leave, medical
20 leave, retaliation, investigations into complaints of unlawful employment practices, discipline of
21 employees, investigation of employees, appointment of Kern Medical Center acting department
22 chairs, hiring of Kern Medical Center department chairs, demotion of Kern Medical Center
23 department chairs, and policies RELATING TO Kern Medical Center’s Pathology Department.
6

4 Any and all DOCUMENTS RELATING TO peer review, quality management and
5 quality assurance policies and procedures at Kern Medical Center, included but not limited to
6 Kern Medical Center’s Quality Management and Performance Improvement Plan, from October
7 24, 2000 to the present, and the effective dates.
13 by December 7, 2007.1. Defendants will redact confidential peer review and personnel
16 Any and all DOCUMENTS RELATING TO any training provided by YOU to YOUR
17 officers, directors, agents or employees on the following subjects:
18 a) disability discrimination
19 b) accommodation of an employee’s disability
20 c) the interactive process regarding accommodation of an employee’s disability
21 d) medical leave rights
22 e) whistleblower retaliation
23 f) medical leave retaliation
24 g) due process required for demotion
25 h) due process required for pay cut
26 i) due process required for termination of employment
27 j) defamation
28 k) Fair Labor Standards Act

7


6 by December 21, 2007.
8 Any and all DOCUMENTS RELATING To the PERSONNEL FILES of the following
9 people.
10 a) Plaintiff David F. Jadwin
11 b) Elsa Ang
12 c) Ellen Bunyi-Teopengco
13 d) Philip Dutt
14 e) Carol Gates
15 f) Adam Lang
16 g) Fangluo Liu
17 h) Savita Shertukde
18 i) Navin Amin
19 j) Kathy Griffith
20 k) Alice Hevle
21 l) Denise Long
22 m) Gilbert Martinez
23 n) Albert McBride
24 o) Javad Naderi
25 p) Jane Thornton
26 q) Nitin Athavale
27 r) Chester Lau
28 s) Jennifer J. Abraham
8

1 t) Bernard C. Barmann
2 u) Karen S. Barnes
3 v) Peter K. Bryan
4 w) David Culberson
5 x) Irwin E. Harris
6 y) Royce Johnson
7 z) Eugene K. Kercher
8 aa) Alan Scott Ragland
9 bb) William Roy
10 cc) Maureen Martin
11 dd) Steven O‘Connor
12 ee) Antoinette Smith
13 ff) Edward Taylor
14 gg) Marvin Kolb
15 hh) Dianne McConnehey
16 ii) Renita Nunn
17 jj) Ravi Patel
18 kk) Jose Perez
19 ll) Evangeline Gallegos
20 mm) Sergio Perticucci
21 nn) Bonnie Quinonez
22 oo) James Sproul
23 pp) Rebecca Rivera
24 qq) Sheldon Freedman
25 rr) Joseph Mansour
26 ss) George Alkouri
27 tt) Nicole Sharkey

9

1 Defendants have already produced the personnel file of David F. Jadwin. Defendants
2 will confirm that the personnel file previously produced was complete as of the time of its
3 production and, on or before December 7, 2007, will augment the documents previously
4 produced with any additional materials, if any, that have been added into Mr. Jadwin’s personnel
5 file since the file was produced. Plaintiff has narrowed the scope of this request by eliminating
6 all other documents initially requested.
8 Any and all DOCUMENTS RELATING TO the search, recruitment, application,
9 interviewing, and hiring process that resulted in Plaintiff’s employment by YOU.
14 Without waiving these objections, Defendants will produce all documents responsive to this
15 request by December 21, 2007.
17 Any and all DOCUMENTS RELATING TO the terms, conditions and privileges of
18 Plaintiff’s employment with YOU.
20 Defendants will produce all documents responsive to this request by December 21, 2007.
22 Any and all DOCUMENTS RELATING TO Plaintiff’s job duties and responsibilities for
23 each position held by Plaintiff during this employment with YOU.
27 Any and all DOCUMENTS RELATING TO Plaintiff’s payroll, compensation, base
28 salary and “professional fee payments”, as that term is defined in Plaintiff’s employment
10

1 contracts with YOU, including but not limited to any and all changes in compensation and the
2 reasons for changes, throughout Plaintiff’s employment with YOU.
6 Any and all DOCUMENTS RELATING TO YOUR policies, guidelines and practices
7 regarding base salary steps, salary guidelines, deferred compensation plans, pension plans, health
8 insurance and employment benefits applicable to Plaintiff’s position s held throughout his
9 employment with YOU.
13 Any and all DOCUMENTS RELATING TO Plaintiff’s work schedule and/or removal
14 there from, including but not limited to timesheets, from October 24, 200 to present.
18 Any and all DOCUMENTS RELATING TO Dr. Phillip Dutt’s timesheets, from April 20
24 Without waiving these objections, Defendants will produce all non-privileged documents
25 responsive to this request by December 21, 2007. Defendants will redact confidential
26 information, in any, as appropriate.
28
11

1 Any and all DOCUMENTS RELATING TO Dr. Savita Shertukde’s timesheets, from
2 January 4, 2005 to present.
11 Any and all DOCUMENTS RELATING TO performance reviews, comments,
12 complaints, warnings, reprimands, counseling, advisory notices or evaluations of Plaintiff’s
13 performance of his job duties throughout his employment with YOU, whether formal or
14 informal.
23 Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his
24 employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, written
25 materials, and computer files stored on Plaintiff’s computer at Kern Medical Center’s servers.
27 After diligent search, Defendants believe Groupwise calendar information was deleted
28 many months ago as part of the routine 90-day cycling of the Groupwise software. Defendants
12

1 are continuing to search for other materials that were on the computer that was assigned to
2 Plaintiff. Some material was archived before the computer was reassigned. Defendants have
3 identified about 3,000 pages of documents that appear to be responsive to this request but have
4 not yet concluded their search. Defendants will produce all documents responsive to this request
5 by December 7, 2007.
7 Any and all DOCUMENTS RELATING TO any meetings RELATING TO Plaintiff or
8 Plaintiff’s employment at Kern Medical Center.
15 information, if any, as appropriate.
17 Any and all DOCUMENTS RELATING TO performance reviews, comments,
18 complaints, warnings, reprimands, counseling, advisory notices or evaluations of the Kern
19 Medical Center Pathology Department, whether formal or informal, from October 24, 1995 to
20 the present.

13

1 Any and all DOCUMENTS RELATING TO Plaintiff’s complaints of:

2 a) disability discrimination
3 b) failure to accommodate
4 c) failure to engage in an interactive process
5 d) violation of medical leave rights
6 e) whistleblower retaliation
7 f) medical leave retaliation
8 g) deprivation of property without due process
9 h) defamation
10 i) Fair Labor Standards Act violations
19 Any and all DOCUMENTS RELATING TO any investigation of Plaintiff’s complaints
20 of disability discrimination, failure to accommodate, failure to engage in an interactive process,
21 violation of medical leave rights, whistleblower retaliation, medical leave retaliation, defamation,
22 and/or deprivation of property without due process.
28
14

4 Any and all DOCUMENTS RELATING TO any procedures available to YOUR
5 employees to complain of corruption, fraud and other wrongful, illegal or unethical conduct, that
6 YOU contend was distributed or made available to YOUR employees, whether management or
7 non-management, from October 24, 2000 to the present, and the date of such asserted
8 distribution(s).
12 Any and all DOCUMENTS RELATING TO YOUR discipline of any employee against
13 whom a complaint or grievance of discrimination, harassment, defamation, retaliation, failure to
14 accommodate, and/or failure to engage in an interactive process in their employment was made
15 from October 24, 2000 to date.
17 Defendants object to this request on the grounds that it requests documents that contain
19 including HIPAA and the peer-review privilege, and documents that contain information that is
20 subject to the attorney-client privilege. Defendants do not believe these objections can be
21 resolved by redaction. Defendants also object on the grounds that the request is not reasonably
22 calculated to lead to the discovery of admissible evidence.
24 Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR
25 past or present employees against YOU for defamation, retaliation, disability discrimination,
26 failure to accommodate, and/or failure to engage in an interactive process, including but not
27 limited to any informal or internal complaints, grievances or charges to any state or federal
28 agency, and complaints filed in any state or federal court from October 24, 2000 to date.
15


3 documents that contain confidential personnel information that is not relevant to any issues in
4 this case. Consequently, this request is not reasonably calculated to lead to the discovery of
5 admissible evidence. Defendants also object on the ground that the phrase, “informal or internal
6 complaints” is vague and, depending on interpretation, could include any off-hand gripe by any
7 employee, to the extent it was memorialized in writing. Defendant County of Kern employs
8 several thousand employees. In the past seven years, there could be many documents that fit the
9 description of this request yet none have anything to do with the issues in this case. This request
10 is, accordingly, overbroad and burdensome. Defendants do not believe redaction would resolve
11 these objections.
13 Any and all DOCUMENTS RELATING TO any complaints or grievances made to YOU
14 by Plaintiff.
16 Defendants believe all documents responsive to this request have been previously
17 produced to Plaintiff. Defendants will confirm this, or produce additional documents if
18 necessary, by December 7, 2007.
20 Any and all DOCUMENTS RELATING TO Plaintiff which YOU sent to or received
21 from any governmental or regulatory authority, including but not limited to the California
22 Department of Fair Employment and Housing, the California Labor and Workforce Development
23 Agency, and the U.S. Department of Labor.

16

1 Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and
2 evaluation of candidates for the position of staff pathologist at Kern Medical Center during the
3 period from January 1, 2006 to present.
7 this case and is not reasonably calculated to lead to the discovery of admissible evidence.
8 Defendants also object to this request to the extent it requests information protected from
9 disclosure by state or federal law, including HIPAA and the peer review privilege, and
10 documents that are subject to the attorney-client privilege. Without waving these objections,
11 Defendants will produce non-privileged documents responsive to this request, if any, by
12 December 7, 2007. Defendants will redact confidential and privileged information as
13 appropriate.

16 evaluation of candidates for the position of Chair or Chief of Pathology at Kern Medical Center
17 during the period from January 1, 2006 to present.
27 appropriate.

17

2 evaluation of candidates for the position of locus tenens pathologist at Kern Medical Center
13 appropriate.

16 evaluation of candidates for the position of Chair or Chief of OB-GYN at Kern Medical Center
27 appropriate.

18

1 Any and all DOCUMENTS RELATING TOYOUR removal of Dr. Royce Johnson from
2 the position of Chair or Chief of Medicine at Kern Medical Center.
9 documents that are subject to the attorney-client privilege.
12 evaluation of candidates for the position of Chair or Chief of Medicine at Kern Medical Center
13 during the period from October 24, 2000 to present.
23 appropriate.
25 Any and all DOCUMENTS RELATING TO presentations made at the Kern Medical
26 Center oncology conference in May 2005, including but not limited to participant evaluation
27 forms.

19

9 appropriate.
11 Any and all DOCUMENTS RELATING TO Plaintiff’s presentations made at the Kern
12 Medical Center oncology conference on or about October 12, 2005.
16 Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from
17 Chair of Kern Medical Center’s Pathology Department to staff pathologist.
19 Defendants object to this request to the extent it requests documents that are privileged
20 under the attorney-client privilege. Without waiving this objection Defendants will produce all
21 non-privileged documents responsive to this request by December 7, 2007.
23 Any and all DOCUMENTS RELATING To the “packets containing information about
24 Dr. Jadwin” which Peter Bryan collected at the end of Kern Medical Center’s Joint Conference
25 Committee discussion and vote on removal of Plaintiff from Chair of Pathology on July 10,
26 2006.
28
20

1 Defendants are searching for documents responsive to this request. Because of

2 administrative and management changes at Kern Medical Center, it may not be possible to
3 reconstruct the “packets” requested. Defendants object to this request to the extent it requests
4 information protected by the peer-review or attorney-client privileges. Defendants also object to
5 this request to the extent it seeks documents that contain confidential personnel information.
6 Without waiving these objections, and to the extent that the “packets” can be reconstructed,
7 Defendants will produce all documents responsive to this request, if any, by December 21, 2007.
9 Any and all DOCUMENTS RELATING TO YOUR decision to place Plaintiff on
10 administrative leave on or about December 7, 2006.
12 Defendants object to this request to the extent it requests information protected by the
13 attorney-client privilege. Without waiving that objection, Defendants believe all documents
14 responsive to this request have been previously produced to Plaintiff. Defendants will confirm
15 this, or produce additional documents if necessary, by December 7, 2007.
17 Any and all DOCUMENTS RELATING TO YOUR decision to restrict Plaintiff to his
18 home during working hours from on or about December 7, 2006 to on or about May 1, 2007
19 while he was on administrative leave.
25 Any and all DOCUMENTS RELATING TO YOUR decision to lift the restriction of
26 Plaintiff to his home during working hours from on or about December 7, 2006 to on or about
27 May 1, 2007 while he was on administrative leave.

21

5 Any and all DOCUMENTS RELATING TO YOUR decision not to renew Plaintiff’s
6 employment contract with YOU that was purportedly made on or about May 1, 2007.
8 Defendants object to this request to the extent it requests information protected by the
9 attorney-client privilege. Without waiving that objection, Defendants believe all documents
10 responsive to this request have been previously produced to Plaintiff. Defendants will confirm
11 this, or produce additional documents if necessary, by December 7, 2007.
13 Any and all DOCUMENTS RELATING TO any discipline, coaching, reprimand or
14 corrective action taken against Plaintiff by YOU.
20 Any and all DOCUMENTS RELATING TO Kern Medical Center’s Disruptive Physician
21 Policy, including but not limited to Bylaw Committee meeting minutes.
25 including the HIPAA and the peer-review privilege, or documents that are subject to the
26 attorney-client privilege. Without waiving these objections, Defendants will produce documents
27 responsive to this request by December 7, 2007. Defendants will redact confidential peer review
28 and personnel information as appropriate.

22


2 Any and all DOCUMENTS RELATING TO Dr. Rebecca Rivera’s lawsuit against Kern
3 Medical Center filed in Kern County California Superior Court.
5 Plaintiff has narrowed this request to eliminate any documents that have been filed with
6 the Kern County Superior Court. As so limited, this request seeks documents in the County
7 Counsel’s litigation file, many of which are protected by the attorney work product and attorney-
8 client privileges. To the extent this request seeks information that is protected by the attorney-
9 client privilege, Defendants object to it. Defendants also object to this request on the grounds
10 that it is not reasonably calculated to lead to the discovery of admissible evidence. Defendants
11 are in the process of reviewing documents that are may be responsive to this request and, without
12 waiving these objections, will produce non-privileged documents, if any, by December 21, 2007.
13 Defendants may redact privileged information if appropriate.

15 Any and all DOCUMENTS RELATING TO services provided to YOU by the Camden
16 Group RELATING TO Kern Medical Center.
22 Any and all DOCUMENTS RELATING TO statistics maintained by YOU RELATING
23 TO patient fatalities at Kern Medical Center from October 24, 2000 to the present.
23

5 appropriate. If the redaction process renders the resulting document useless, Defendants will
6 inform Plaintiff.
8 Any and all DOCUMENTS RELATING TO the review of Kern Medical Center’s
9 placental evaluations and billing activity as conducted by outside consultants, including but not
10 limited to ProPay Physician Services, LLC, from October 24, 2000 to the present.
20 appropriate.
22 Any and all DOCUMENTS RELATING TO blood bank monthly reports, included but
23 not limited to reports generated by Michelle Burris, from January 2006 to present.
24

5 appropriate.
7 Any and all DOCUMENTS RELATING TO product chart copy-related quality assurance
8 reports from October 24, 2000 to the present.
18 appropriate.
20 Any and all DOCUMENTS RELATING TO prostate needle biopsy reports produced by
21 Dr. Elsa Ang for which Plaintiff had requested a lookback study in October 2005.
25


3 appropriate.
5 Any and all DOCUMENTS RELATING TO sign-in sheets for Kern Medical Center’s
6 Cancer Clinic from January 1, 2003 to the present.
10 Any and all DOCUMENTS RELATING TO Workplace Violence or Threat Incident
11 Reports for all Kern Medical Center personnel from October 24, 2000 to the present.
13 Defendants object to this request to the extent it seeks documents that contain
14 confidential personnel information or information protected by the attorney-client privilege.
15 Defendants also object to the extent the documents contain information protected by the peer-
16 review privilege and on the grounds that the request is not reasonably calculated to lead to the
17 discovery of admissible evidence. Without waiving these objections, Defendants will produce
18 all documents responsive to this request by December 21, 2007. Defendants will redact
19 confidential or privileged information as appropriate.
21 Any and all DOCUMENTS RELATING TO Fine Needle Aspiration policies at Kern
22 Medical Center from October 24, 2000 to the present, including but not limited to
23 DOCUMENTS RELATING TO the outside consultant study conducted by Dr. David Lieu in
24 2004.
26 Defendants object to this request to the extent it seeks documents that contain
27 confidential personnel information or information protected by the attorney-client privilege.
28 Defendants also object to the extent the documents contain information protected by the peer-
26

1 review privilege and on the grounds that the request is not reasonably calculated to lead to the
2 discovery of admissible evidence. Without waiving these objections, Defendants will produce
3 all documents responsive to this request by December 21, 2007. Defendants will redact
4 confidential or privileged information as appropriate.
6 Any and all DOCUMENTS RELATING TO Peter Bryan’s appointment calendar from
7 January 1, 2004 to September 1, 2006.
11 Any and all DOCUMENTS RELATING TO meeting minutes for the following Kern
12 Medical Center committees or groups from October 24, 2000 to the present:
13 a) Medical Executive Committee
14 b) Joint Conference Committee
15 c) Quality Management Committee
16 d) Cancer Committee
17 e) Second Level Peer Review Committee
18 f) Transfusion Committee
19 g) Executive Staff Meetings
22 confidential personnel information or information that is protected from disclosure by state or
23 federal law, including HIPAA and the peer review privilege, or documents that are subject to the
24 attorney/client privilege. Without waiving these objections, Defendants will produce documents
25 responsive to this request by December 21, 2007. Defendants will redact confidential or
26 privileged information as appropriate.
28
27

1 Any and all DOCUMENTS RELATING TO policies of Kern Medical Center’s

2 Pathology Department from October 24, 2000 to the present.
6 Any and all DOCUMENTS RELATING TO case send-out logs for Kern Medical
7 Center’s Pathology Department from January 1, 1999 to the present, including but not limited to
8 corresponding Kern Medical Center pathology reports and reports from outside consultants.
11 confidential personnel information or information that is protected from disclosure by state or
12 federal law, including HIPAA and the peer review privilege, or documents that are subject to the
13 attorney/client privilege. Without waiving these objections, Defendants will produce documents
14 responsive to this request by December 7, 2007. Defendants will redact confidential or
15 privileged information as appropriate.
17 Any and all DOCUMENTS RELATING TO monthly turn-around-time reports and logs
18 – by pathologist – for pathology reports processed at Kern Medical Center, including but not
19 limited to Pathology Department Semi-annual Reports to the Medical Staff, for the time period
20 from January 1, 1999 to the present.
23 privileged peer review information. Without waiving this objection Defendants will produce all
24 documents responsive to this request by December 7, 2007. Defendants will redact all privileged
27 Any and all DOCUMENTS RELATING TO monthly or semi-monthly turn-around-time
28 reports and logs – for Kern Medical Center’s Pathology Department as a whole – for pathology
28

1 reports processed at Kern Medical Center including but not limited to surgical pathology,
2 cytology and bone marrow reports, for the time period from January 1, 1999 to the present.
9 Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS authored,
10 reviewed or approved by Plaintiff which YOU sent to any outside pathologists for outside review
11 from June 14, 2006 to the present.
18 Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS RELATING TO
19 Case Numbers S06-4131, S06-4619, S06-5229, S06-73276.
22 information that is confidential under HIPAA. Defendants also object to the extent that it
23 requests documents that contain privileged peer-review information. Without waiving these
24 objections Defendants will produce all documents responsive to this request by December 7,
25 2007. Defendants will redact confidential and privileged information as appropriate.
27 Any and all DOCUMENTS RELATING TO peer review RELATING TO Kern Medical
28 Center’s Pathology Department during the time period from January 1, 1995 to the present,
29

1 including but not limited to computer-generated data, monthly peer review records completed by
2 pathologists, and peer review comment sheets that are completed by pathologists upon discovery
3 of a discrepancy.
5 Defendants object to this request on the ground that it requests privileged peer-review
6 information. Defendants also object on the ground that it requests information that is
7 confidential under HIPAA and not reasonably calculated to lead to the discovery of admissible
8 evidence. Without waiving these objections, Defendants will produce documents responsive to
9 this request by January 7, 2008 if it is possible to redact the confidential and privileged
10 information without rendering the resulting document useless.
12 Any and all DOCUMENTS RELATING TO exceptional event logs for histology and
13 pathology on Kern Medical Center’s Pathology Department from January 1, 2006 to the present.
17 requests documents that contain privileged peer review information. Without waiving these
21 Any and all DOCUMENTS RELATING TO paper accession logs at Kern Medical
22 Center’s Pathology Department from January 1, 2006 to present.

30


2 Any and all DOCUMENTS RELATING TO tissue disposal records for skull-flaps from
3 January 1, 2006 to the present.
11 Any and all DOCUMENTS RELATING TO audits of Kern Medical Center’s Pathology
12 Department by outside consultants, including but not limited to Dr. Stacey Garry, from October
21 Any and all DOCUMENTS RELATING TO Kern Medical Center laboratory personnel
22 defections from June 14, 2006 to the present, including but not limited to exit interview notes.
24 Defendants object to this request on the grounds that it is vague. Defendants do not know
25 what “personnel defections” means. If Plaintiff intends to request a list of employees who have
26 separated from County employment or transferred out of the laboratory, Defendants can prepare
27 such a list but Defendants believe such a list will need to be redacted to remove confidential
28 personnel information. Defendants will produce a list of employees who have separated from
31

1 County employment or transferred out of the laboratory by December 21, 2007 and will redact
2 the information as appropriate.
4 Any and all DOCUMENTS RELATING TO dictation transcription logs for Plaintiff
9 Any and all DOCUMENTS RELATING TO dictation transcription logs for Dr. Philip
10 Dutt from June 14, 2006 to the present.
14 Any and all DOCUMENTS RELATING TO placental evaluations conducted by Plaintiff
17 Plaintiff has attempted to narrow this request but the revised request is broader, more
18 burdensome and less calculated to lead to the discovery of admissible evidence than the original
19 request. Defendants object to it for that reason. Defendants object to this request because it is
20 not reasonably calculated to lead to the discovery of admissible evidence and is burdensome.
21 Defendants also object to this request on the grounds that it seeks information that is shielded
22 from disclosure under HIPAA. There are thousands of placental evaluations for the time period
23 specified and they are not centrally filed or maintained. Locating ones conducted by Plaintiff
24 will require writing a computer program that will sort the files. After the files are sorted, it will
25 require a manual review of each file to find the placental evaluation. It will have to be copied
26 and redacted and copied again. Defendants estimate it will take approximately 90 days to
27 comply with this request. Without waiving these objections, Defendants will attempt to locate,
28 copy and produce the documents requested

32


2 Any and all DOCUMENTS RELATING TO Golden Empire Pathology Associates.
4 After diligent search, Defendants’ have not been able to locate any documents that are
5 responsive to this request.
7 Any and all DOCUMENTS RELATING TO Golden Empire Medical Group.
9 After diligent search, Defendants’ have not been able to locate any documents that are
10 responsive to this request.
11
12
13
14 Dated: November 20, 2007 LAW OFFICES OF MARK A. WASSER
15
16 By: /s/ Mark A. Wasser
17 Mark A. Wasser
Attorney for Defendants, County of Kern, et al.
18
19
20
21
22
23
24
25
26
27
28
33

EXHIBIT 4. Stipulation & Order re Protective Order (Doc. 128)

Case
Document134
128 Filed
Filed
05/19/2008
05/14/2008 Page
Page971of
of101
2

3 Phone: (916) 444-6400
Fax: (916) 444-6405
5 Bernard C. Barman, Sr. CA SB #060508
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy CA SB #101838
Phone: (661) 868-3800
8 Fax: (661) 868-3805
9
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher,
10 Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
11 Eugene D. Lee SB# 236812
LAW OFFICES OF EUGENE LEE
12 555West Fifth Street, Suite 3100
Los Angeles, CA 90013
13 Phone: (213) 992-3299
Fax: (213) 596-0487
15 Attorneys for Plaintiff
DAVID F. JADWIN, D.O.
16
19
DAVID F. JADWIN, D.O. ) Case No.: 1:07-cv-26
20 )
Plaintiff, ) STIPULATION RE: PROTECTIVE
21 ) ORDER RE: BALANCING OF PRIVACY
vs. ) INTERESTS; ORDER THEREON
22 )
COUNTY OF KERN, et al., )
23 )
Defendants. ) Complaint Filed: January 5, 2007
24 ) Trial Date: December 3, 2008
25
Pursuant to the Order of the Court issued by Magistrate Judge Goldner on May 9, 2008
26
(Doc. 124), IT IS HEREBY STIPULATED by and between the parties hereto through their
27
respective counsel that, with regard to balancing the privacy interests of the Defendants against
28
the Plaintiff’s need for disclosure, the Plaintiff’s need for disclosure prevails as to documents
1
STIPULATION RE: PROTECTIVE ORDER RE: BALANCING OF PRIVACY INTERESTS; ORDER THEREON
Case
Document134
128 Filed
Filed
05/19/2008
05/14/2008 Page
Page982of
of101
2
1 that reveal the nature of interpersonal work relationships at KMC between core physicians and
2 others, on-the-job behavior towards other members of KMC staff by core physicians, complaints
3 against core physicians regarding their behavior at KMC and the County’s actions in response.
4 The foregoing notwithstanding, the parties acknowledge that Plaintiff intends to file a motion for
5 reconsideration of the above-referenced Order which may challenge Judge Goldner’s directive to
6 the parties to enter into this privacy-based protective order. Plaintiff’s agreement to this
7 stipulation is therefore conditioned on this challenge. The parties agree that this stipulation does
8 not constitute a waiver of objections at trial to admissibility of any documents to be produced.
9
10 Dated: May 14, 2008 LAW OFFICES OF MARK A. WASSER
11
12 By: /s/ Mark A. Wasser
Mark A. Wasser (as authorized on 5/14/08)
13 Attorney for Defendants, County of Kern, et al.
14
15 Dated: May 14, 2008 LAW OFFICE OF EUGENE LEE
16
17 By: /s/ Eugene D. Lee
Eugene D. Lee
18 Attorney for Plaintiff, David F. Jadwin, D.O.
19
20 ORDER
21 The parties having stipulated as hereinabove set forth and good cause appearing
therefore;
22
23 IT IS SO ORDERED.
24
Dated: May , 2008 UNITED STATES DISTRICT COURT
25
26
By:
27 The Honorable Teresa A. Goldner
United States Magistrate Judge
28
2
STIPULATION RE: PROTECTIVE ORDER RE: BALANCING OF PRIVACY INTERESTS; ORDER THEREON
EXHIBIT 5. Minute Order Disapproving Stipulation (Doc. 131)

Eugene D. Lee
From: [email protected]
Sent: Friday, May 16, 2008 1:19 PM
To: [email protected]
Subject: Activity in Case 1:07-cv-00026-OWW-TAG Jadwin v. County of Kern, et al. Minute Order
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to
this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy each document during this first viewing.
However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.
U.S. District Court
Eastern District of California - Live System
Notice of Electronic Filing
The following transaction was entered on 5/16/2008 at 1:18 PM PDT and filed on 5/16/2008
Case Name: Jadwin v. County of Kern, et al.
Case Number: 1:07-cv-26
Filer:
Document Number: 131(No document attached)
Docket Text:
MINUTE ORDER (TEXT ONLY) by Magistrate Judge Goldner: re [128] Stipulation and Proposed
Order. In its order dated 5/8/08 (Doc 124), the Court directed counsel to submit a stipulated
form of protective order. A protective order prevents the disclosure of sensitive information
except to certain individuals under certain circumstances. The purpose of the Court's order
directing counsel to submit a stipulated form of protective order is for counsel to agree upon
the terms necessary to protect the information to be produced by Defendant in response to
Plaintiff's Request for Production Nos. 12-15, 17, 28-30, 32, 33, 36-41, 45, 51-54, 58-61, 63, 65-
67, 70-73, and 78. The stipulation [128] is not approved as a protective order because it does
not address who will be given access to the information or under what circumstances.
Counsel are to submit a stipulated proposed form of protective order containing those terms
within 5 days from the date of this minute order. If they cannot agree, then each counsel shall
submit their own proposed form of protective order within six days from the date of this order.
(Leon Guerrero, A)
1:07-cv-26 Electronically filed documents will be served electronically to:
Joan Elizabeth Herrington [email protected]
Eugene David Lee [email protected], [email protected]
Mark A Wasser [email protected]

1
1:07-cv-26 Electronically filed documents must be served conventionally by the filer to:
David F. Jadwin
1635 Heather Ridge Dr.
Glendale, CA 91207

134 Request For Reconsideration Re RPD1

Uploaded by

Copyright:

Available Formats

134 Request For Reconsideration Re RPD1

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

134 Request For Reconsideration Re RPD1

Uploaded by

Copyright:

Available Formats

What is the nature of the legal case?

What is the nature of the legal case?

What documents is the plaintiff seeking to compel production of?

What documents is the plaintiff seeking to compel production of?

Case 1:07-cv-00026-OWW-TAG Document 134 Filed 05/19/2008 Page 1 of 101

1 Eugene D. Lee SB# 236812

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

1 erroneous and contrary to law.

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

1 653, 662 (N.D. Cal. 1987)

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S

EXHIBIT 1. Defendant Declaration re Inability to File Stipulation (Doc. 86)

EXHIBIT 1. Defendant Declaration re Inability to File Stipulation (Doc. 86)

Mark A. Wasser CA SB # 60160

13 UNITED STATES DISTRICT COURT

14 EASTERN DISTRICT OF CALIFORNIA

16 DAVID JADWIN, D.O. ) Case No.: 1:07-cv-00026-0WW-TAG

DECLARATION OF MARK A. WASSER RE: INABILITY TO FILE STIPULATION

3 agreements that were reached.

8 regarding !lp,,;,p<'No. Request records.

9 4. Upon receipt of the comments from Pla.intiff counsel, I the draft

J0 stipulation to it to the two topics he specified sent it to him that draft

is attached to rlp,-.bntinn as Ex:llibit

responded adding one

16 counsel is attached hereto as Exhibit

17 6. I responded to Plaintiff s counsel by accepting some of the changes he proposed

18 but relect!rl\! language at the of stipulation have required the

J9 UClerloams to produce all medical records, personnel records preVlClUSIV

25 draft I returned to Plaintiffs counsel is attached hereto as Exhibit D.

26 7. Plaintiff s counsel rejected my final draft of the proposed stipulation and I

28 to execute the stipulation.

DEC LARAnON OF MARK A. WASSER RE: INABILITY TO FILE STIPULATION

5 produce those documents.

1 Mark A. Wasser CA SB #060160

13 UNITED STATES DISTRICT COURT

27 certain agreements during the hearing on Plaintiff's motion to compel; and

2 the same to the Court for approval;

3 IT IS HEREB Y STIPULATED by and between the parties through their respective

5 1. In supplemental response to Request No. II, Defendants shall produce the

8 2. SUf,plcmental reSjlon:,e to 26, Defendants

10 amem:led Request to it to complaints or vrl,evencr', ofthe\

20 7. Plaintiflhas amended Request No. 55 to limit it to documents relating to the

9. Plaintiff has amended Request No. 70 to limit it to documents relating to peer

6 to their production or conceding their relevancy.

8 nor wlthclra'wl obl!ecltl0J1S to or

10 12 supplemental Te<nn,,<p to Request 78. Defendants jJWUW,C placental

26 confidential infonnation or return them to Defendants.

5 Honorable Teresa A. Goldner

1 Mark A. WasserCA SB #060160

5 . Bernard C. Barmann, Sr.

13 UNITED STATES DISTRICT COURT

14 EASTERN DISTRICT OF CALIFORNIA

27 certain agreements during the hearing on Plaintiff s motion to compel; and