180 P EPA Shorten MPO Expert Depos - D Memo

8/14/2019 180 P EPA Shorten MPO Expert Depos - D Memo

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Case 1:07-cv-00026-OWW-TAG Document 180 Filed 08/01/2008 Page 1 of 4

1 Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 2640Sacramento, California 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: [email protected] Bernard C. Barmmill, Sr. SB #060508KERN COUNTY COUNSEL6 Mark Nations, Chief Deputy SB #1018381115 Truxtun Avenue, Fourth Floor7 Bakersfield, California 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected] Attorneys for Defendants County of Kern,Peter Bryan, Irwin Harris, Eugene Kercher,11 Jennifer Abraham, Scott Ragland, Toni Smithand William Roy

19 COUNTYOF KERN, et aI.,

EASTERN DISTRICT OF CALIFORNIA

Date Action Filed: January 6, 2007Trial Date: December 2, 2008

Case No.: 1:07-cv-00026-0WW-TAGDEFENDANTS' MEMORANDUM INRESPONSE TO PLAINTIFF'S EX PARTEAPPLICATION FORAN ORDERSHORTENING TIME RE: MOTION FORPROTECTIVE ORDERRE: EXPERTDEPOSITIONS

UNITED STATES DISTRICT COURT

Defendants.

1213141516 DAVID F. JADWIN, D.O.

202122

17 Plaintiff,18 vs.

23 Defendants submit this memorandum in response to Plaintiffs ex parte application for an24 order shortening time re motion for protective order re expert depositions.25 Defendants do not object to shortening time for service and hearing on Plaintiffs motion26 and request that it be set for either August 5 or August 6, when the parties have other motions27 pending. Plaintiffhas a motion to compel set for August 5 and Defendants have a motion for a28 protective order set for August 6.

-1-DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR ANORDER SHORTENING TIME RE: MOTION FORPROTECTIVE ORDER RE: EXPERTDEPOSITIONS

1 Mark A. Wasser CA SB #060160LAW OFFICES OFMARK A. WASSER2 400 Capitol Mall, Suite 2640Sacramento, California 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: [email protected] Bernard C. Barmmill, Sr. SB #060508KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy SB #1018381115 Truxtun Avenue, Fourth Floor7 Bakersfield, California 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected] Attorneys for Defendants County ofKern,Peter Bryan, Irwin Harris, Eugene Kercher,11 Jennifer Abraham, Scott Ragland, Toni Smithand William Roy

19 COUNTYOF KERN, et aI.,

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

17 Plaintiff,18 vs.

Date Action Filed: January 6, 2007Trial Date: December 2, 2008

Case No.: 1:07-cv-00026-0WW-TAGDEFENDANTS' MEMORANDUM INRESPONSE TO PLAINTIFF'S EX PARTEAPPLICATION FORAN ORDERSHORTENING TIME RE: MOTION FORPROTECTIVE ORDER RE: EXPERTDEPOSITIONSDefendants.0

2122

1213141516 DAVID F. JADWIN, D.O.

23 Defendants submit this memorandum in response to Plaintiff s ex parte application for an24 order shortening time re motion for protective order re expert depositions.25 Defendants do not object to shortening time for service and hearing on Plaintiffs motion26 and request that it be set for either August 5 or August 6, when the parties have other motions27 pending. Plaintiffhas a motion to compel set for August 5 and Defendants have a motion for a28 protective order set for August 6.

-1-DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR ANORDER SHORTENING TIME RE: MOTION FORPROTECTIVE ORDER RE: EXPERT DEPOSITIONS


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Defendants also request that the hearings on August 5 and August 6 be consolidated on2 whichever of those two dates is better for the Court so that all the matters, including this matter,3 can be heard at the same time.4 Pursuant to Section XVII(1) of the Scheduling Order, the Defendants report to the Court5 that it appears the schedule set forth in the Scheduling Order cannot be met. On June 30, 2008,6 Plaintiff announced his intention to take upwards of25 depositions in the approximately 307 working days left before the discovery cut-off. On July 25,2008, Plaintiff informed Defendants8 that Plaintiffs experts were not available for deposition before the discovery cut-off on August9 18. Although Defendants offered to extend the discovery cut-off one week to accommodate

10 Plaintiffs experts, Plaintiff refused to stipulate to a one-week extension of discovery. Thus, itII does not appear discovery can be completed before the discovery cut-off.12 There are several additional discovery issues that require the Court's consideration.13 These include:14 1. In the Joint Scheduling Report, Plaintiff announced his intention to use his15 attorney to operate the video camera and prepare the videotape of depositions. This has proven16 unsatisfactory. Plaintiffhas been unable to provide Defendants with copies of videotapes he has17 prepared and Defendants understand Plaintiff cannot access or retrieve videotapes of the18 depositions he videotaped. Because Plaintiffhas announced his intention to videotape19 Defendants' counsel at future depositions, it is necessary that videotaped depositions be20 conducted professionally by competent videographers who are able to prepare and maintain an21 accurate videotape in accordance with Rule 30.22 2. Plaintiff has filed a motion to amend the complaint that is set for hearing on23 September 8, 2008. The motion was initially set for hearing before Judge Wanger but was24 transferred to the Magistrate Judge. Defendants' counsel is on vacation in Mexico from25 September 6 through September 14. The vacation plans are prepaid and were scheduled long26 before Plaintifffiled his motion. Defendants request the motion be rescheduled to either before27 September 6 or after September 14.28

-2-DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR ANORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDERRE: EXPERT DEPOSITIONS

Defendants also request that the hearings on August 5 and August 6 be consolidated on2 whichever of those two dates is better for the Court so that all the matters, including this matter,3 can be heard at the same time.4 Pursuant to Section XVII(1) of the Scheduling Order, the Defendants report to the Court5 that it appears the schedule set forth in the Scheduling Order cannot be met. On June 30, 2008,6 Plaintiff announced his intention to take upwards of25 depositions in the approximately 307 working days left before the discovery cut-off. On July 25,2008, Plaintiff informed Defendants8 that Plaintiffs experts were not available for deposition before the discovery cut-off on August9 18. Although Defendants offered to extend the discovery cut-offone week to accommodate

10 Plaintiffs experts, Plaintiff refused to stipulate to a one-week extension of discovery. Thus, itII does not appear discovery can be completed before the discovery cut-off.12 There are several additional discovery issues that require the Court's consideration.13 These include:14 1. In the Joint Scheduling Report, Plaintiff announced his intention to use his15 attorney to operate the video camera and prepare the videotape of depositions. This has proven16 unsatisfactory. Plaintiff has been unable to provide Defendants with copies of videotapes he has17 prepared and Defendants understand Plaintiffcannot access or retrieve videotapes of the18 depositions he videotaped. Because Plaintiffhas announced his intention to videotape19 Defendants' counsel at future depositions, it is necessary that videotaped depositions be20 conducted professionally by competent videographers who are able to prepare and maintain an21 accurate videotape in accordance with Rule 30.22 2. Plaintiff has filed a motion to amend the complaint that is set for hearing on23 September 8, 2008. The motion was initially set for hearing before Judge Wanger but was24 transferred to the Magistrate Judge. Defendants' counsel is on vacation in Mexico from25 September 6 through September 14. The vacation plans are prepaid and were scheduled long26 before Plaintifffiled his motion. Defendants request the motion be rescheduled to either before27 September 6 or after September 14.28

-2-DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR ANORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDER RE: EXPERT DEPOSITIONS


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3. The extent to which the Scheduling Order needs to be amended depends on the2 number of depositions Plaintiffwill be permitted to take and whether Plaintiff is permitted to3 amend his complaint. If the Court allows him to take upwards of 40 depositions and amend his4 complaint, as he has requested, the Scheduling Order will require substantial revision and the5 trial date will need to be continued. Defendants oppose doing so but the issue presents itself. It6 will be helpful if these issues can be addressed sooner as opposed to later.7 4. Defendants believe the parties require more assistance from the Court in8 scheduling matters and request the Court direct the parties in this regard. Defendants have made9 telephone inquiry with Court staff regarding the Court's availability to assist in resolving

10 discovery issues but have not received a reply.II Finally, and with respect to Plaintiffs statement that he provided Defendants with12 available dates for expert depositions "not once but twice," this is true. The first set of dates13 Plaintiff provided were in mid-July when Defendants' counsel was in depositions and trial in14 Orange County Superior Court and the second set of dates were during the week of August 25,15 2008, more than a week after the discovery cut-off. Defendants' offered to extend the discovery16 cut-off one week and prepared a stipulation for that purpose but Plaintiff refused to approve it.17 When it was evident that the parties' would not resolve the scheduling issue, Defendants noticed18 the expert depositions for dates before the discovery cut-off to prevent Plaintifffrom contending19 Defendants had waived the right to depose them by failing to notice the depositions timely.20 Hence, the present issue with expert depositions.21 Plaintiffs counsel is not candid with this Court about the basis for the parties' discovery22 difficulties. These continuing discovery issues are the result of a complete breakdown in23 commwlications between the parties and Plaintiffs persistent gamesmanship over every issue.24 Defendants believe the parties would benefit from more assistance from the Court in addressing25 III26 III27 III28 III

-3-DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR ANORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDERRE: EXPERTDEPOSITIONS

3. The extent to which the Scheduling Order needs to be amended depends on the2 number of depositions Plaintiffwill be permitted to take and whether Plaintiff is permitted to3 amend his complaint. If the Court allows him to take upwards of 40 depositions and amend his4 complaint, as he has requested, the Scheduling Order will require substantial revision and the5 trial date will need to be continued. Defendants oppose doing so but the issue presents itself. It6 will be helpful if these issues can be addressed sooner as opposed to later.7 4. Defendants believe the parties require more assistance from the Court in8 scheduling matters and request the Court direct the parties in this regard. Defendants have made9 telephone inquiry with Court staffregarding the Court's availability to assist in resolving

10 discovery issues but have not received a reply.II Finally, and with respect to Plaintiffs statement that he provided Defendants with12 available dates for expert depositions "not once but twice," this is true. The first set of dates13 Plaintiff provided were in mid-July when Defendants' counsel was in depositions and trial in14 Orange County Superior Court and the second set of dates were during the week ofAugust 25,15 2008, more than a week after the discovery cut-off. Defendants' offered to extend the discovery16 cut-off one week and prepared a stipulation for that purpose but Plaintiff refused to approve it.17 When it was evident that the parties' would not resolve the scheduling issue, Defendants noticed18 the expert depositions for dates before the discovery cut-off to prevent Plaintiff from contending19 Defendants had waived the right to depose them by failing to notice the depositions timely.20 Hence, the present issue with expert depositions.21 Plaintiffs counsel is not candid with this Court about the basis for the parties' discovery22 difficulties. These continuing discovery issues are the result of a complete breakdown in23 commwlications between the parties and Plaintiffs persistent gamesmanship over every issue.24 Defendants believe the parties would benefit from more assistance from the Court in addressing25 III26 III27 III28 III

-3-DEFENDANTS' MEMORANDUM IN RESPONSE TO PLAINTIFF'S EX PARTE APPLICATION FOR ANORDER SHORTENING TIME RE: MOTION FOR PROTECTIVE ORDER RE: EXPERT DEPOSITIONS


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I and resolving these issues ffild preventing a continuing series of discovery motions and repeated2 revisions to the Scheduling Order.3 Respectfully submitted,456789

1011121314IS16171819202122232425262728

Dated: August I, 2008 LAW OFFICES OFMARK A. WASSER

By: lsi Mark A. WasserMark A. WasserAttorney for Defendants, County ofKern, et al.

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

I and resolving these issues ffild preventing a continuing series of discovery motions and repeated2 revisions to the Scheduling Order.3 Respectfully submitted,456789

1011121314IS16171819202122232425262728

Dated: August I, 2008 LAW OFFICES OFMARK A. WASSER

By: lsi Mark A. WasserMark A. WasserAttorney for Defendants, County ofKern, et al.

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

180 P EPA Shorten MPO Expert Depos - D Memo

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