Case 1:07-cv-00026-OWW-TAG Document 214 Filed 09/01/2008 Page 1 of 12

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: elee@LOEL.com
5 Attorneys for Plaintiff
DAVID F. JADWIN, D.O.
6
UNITED STATES DISTRICT COURT
7
FOR THE EASTERN DISTRICT OF CALIFORNIA
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9
DAVID F. JADWIN, D.O., Case No. 1:07-cv-00026-OWW-TAG
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Plaintiff, PLAINTIFF’S REQUEST FOR
11 RECONSIDERATION BY THE DISTRICT
v. COURT OF MAGISTRATE JUDGE’S
12 RULING ON PLAINTIFF’S REQUEST RE
DISCOVERY DISPUTE
13 COUNTY OF KERN; et al. (Doc. 202, 207)
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 2, 2008
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17
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Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff”) respectfully submits the following points and
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authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldner’s
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August 22, 2008 order (“Order”, Doc. 207) granting in part and denying in part Plaintiff’s letter request
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re: discovery disputes (“Request”). (Doc. 202).
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I. INTRODUCTION
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Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center
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(“KMC”) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint
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alleges, among other things, that Defendants engaged in the following illegal acts: defamation,
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whistleblower retaliation, disability discrimination and failure to accommodate, medical leave
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interference and retaliation, demotion and pay reduction without due process, and Fair Labor Standard
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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 This is the third Request for Reconsideration of Judge Goldner’s rulings which Plaintiff is filing
9 in this action. Plaintiff has been materially prejudiced by the rulings of this Court and Plaintiff intends to
10 pursue appellate remedies at the appropriate time.
11 A. Late Production of Documents
12 On October 11, 2007, Plaintiff David F. Jadwin (“Plaintiff”) served Requests for Production of
13 Documents, Set One (“RPD1”) on Defendant County of Kern (“Defendant”). Defendants’ responses
14 were deficient and Plaintiff moved to compel on December 21, 2007. Judge Goldner did not issue her
15 order, granting in part and denying in part Plaintiff’s motion until May 9, 2008, almost 5 months later.
16 (Doc. 124, Exhibit 2). At that time, the Court took the opportunity to issue a sweeping protective order,
17 sua sponte, re: federal right of privacy against Plaintiff. The federal right of privacy was never discussed
18 in any of the written briefings or even at the motion hearing. The Court conducted the privacy balancing
19 test on its own without affording Plaintiff a due process opportunity to provide input on the balancing
20 test or to be heard on the matter. Negotiating the resulting protective order further delayed production of
21 the documents. (Doc. 137). On June 16, 2008, just weeks before the discovery cutoff, Plaintiff was
22 finally granted access to the thousands of pages of documents which Plaintiff had requested 8 months
23 earlier. Defendants withheld numerous documents pursuant to Judge Goldner’s privacy protective order.
24 For instance, Plaintiff was denied access to any personnel files other than his own.
25 Due to the 8-month delay in gaining access to the documents requested by Plaintiff, Plaintiff was
26 not able to conduct critical depositions. Plaintiff spent the 8-month waiting time conducting depositions
27 which focused on Defendants’ affirmative defenses.
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1 B. Refusal to Produce Deponents

2 On July 3, 2008, Plaintiff – finally in receipt of critical documents – noticed 17 depositions of
3 party deponents and key witnesses to occur over a one month-long period of time spanning from July
4 15, 2008 to August 14, 2008. Defendants sent a fax stating their refusal to produce a single deponent,
5 arguing that the depositions were excessive and abusive. Defendants granted themselves this “stay” in
6 the absence of a court order or even a motion. Defense counsel later mentioned to Plaintiff that he had a
7 trial at the end of July, although defense counsel never notified Plaintiff of his unavailability beforehand,
8 nor did he produce any deponents that had been scheduled for deposition from August 1 to August 17,
9 after his trial had ended. Plaintiff moved to compel the depositions and requested sanctions. (Doc. 183).
10 Plaintiff confirmed Judge Goldner’s availability with the clerk and applied ex parte for an order
11 shortening time, due to the fact that discovery was due to close on August 18 (Doc. 164).
12 Judge Goldner denied Plaintiff’s ex parte application (Doc. 167); moreover, Judge Goldner re-set
13 the hearing on Plaintiff’s motion calendared for August 5, 2008 to coincide with Defendants’ motion for
14 protective order, to be heard one day later on August 6, 2008, further prejudicing Plaintiff by yet another
15 day. Meanwhile, Plaintiff continued to be prejudiced by the fact that Defendants had not yet produced a
16 single deponent and the discovery cutoff was fast approaching. At the hearing, Judge Goldner granted
17 Plaintiff’s motion to compel the depositions and ordered that Plaintiff conduct the 17 requested
18 depositions consecutively over 11 weekdays, with the first deposition to start the very next day on
19 August 7, 2008. (Doc. 194).
20 Judge Goldner also denied Plaintiff’s request for sanctions, finding that defense counsel’s
21 depositions in July and two-day trial at the end of July substantially justified his refusal to produce any
22 of the 17 deponents which Plaintiff had scheduled for depositions from July 15, 2008 through August
23 17, 2008. Judge Goldner’s order did not explain how defense counsel’s trial and deposition schedule in
24 July excused his refusal to produce any deponents scheduled for the month of August. Plaintiff was
25 prejudiced in that the depositions originally scheduled to begin on July 15, 2008, were now scheduled to
26 begin more than 3 weeks later and with the discovery cutoff looming. Moreover, Plaintiff was now
27 effectively denied the opportunity to schedule and conduct followup depositions.
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1 C. Obstruction of Depositions
2 During the first 10 of 17 depositions which Judge Goldner had ordered the parties to begin on
3 August 7, 2008, defense counsel engaged in numerous inappropriate speaking objections and
4 instructions not to answer. At one deposition, defense counsel grabbed Plaintiff’s counsel’s webcam 3
5 times without permission, breaking it on the third instance. The parties requested two telephonic
6 conferences with Judge Goldner.
7 On August 18, 2008, Judge Goldner ruled that defense counsel had made improper instructions
8 not to answer and ordered the re-convening of 4 depositions. (Doc. 200). However, Judge Goldner
9 denied Plaintiff’s request for protective order and for sanctions.
10 On August 21, 2008, Judge Goldner ruled that defense counsel had yet again made an improper
11 instruction not to answer in deposition. She also ruled that defense counsel had engaged in improper
12 speaking objections no less than 11 times in a single deposition based upon her review of an incomplete
13 “dirty” deposition transcript. (Doc. 207). Her ruling contained an “admonition” of defense counsel, but
14 denied Plaintiff’s request for protective order and sanctions. She ordered the parties to re-convene two
15 more depositions, bringing the total to 6 depositions reconvened out of only 10 taken.
16 Despite the fact Judge Goldner had not yet tried issuing sanctions or protective orders against
17 Defendants for their repeated misconduct, she nevertheless found it appropriate to grant Defendants’
18 request and appoint a special master over Plaintiff’s objections. She further ordered the parties to bear
19 the $300 per hour cost on a 50/50 basis. At the hearing, Judge Goldner mentioned a friend of hers in
20 Bakersfield who would be “perfect” for the assignment. Plaintiff objected to appointment of a special
21 master, the additional expense involved, and appointment of a special master from Bakersfield,
22 particularly given that the remaining depositions would be held in the Los Angeles area.
23 On August 27, 2008, Plaintiff filed his formal objections to the appointment of a Special Master.
24 (Doc. 212).
25 D. Issuance of a Protective Order against Plaintiff
26 In her order of August 21, 2008, Judge Goldner granted Plaintiff’s request for protective order
27 against defense counsel’s touching his property without permission in light of the fact that defense
28 counsel had broken Plaintiff’s webcam. (Doc. 207). However, she sua sponte issued a parallel protective

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1 order against Plaintiff, even though Plaintiff had not touched any of defense counsel’s property without
2 permission, much less broken it, and even though defense counsel had not requested it. Moreover, she
3 denied Plaintiff’s request for sanctions.
4 At the hearing, Plaintiff took exception to this ruling and specifically asked Judge Goldner to
5 explain the basis for her ruling so that Plaintiff could pursue a request for reconsideration. Judge
6 Goldner refused to do so. Instead, she issued the written order the very next day, stating grounds which
7 had never been discussed at the hearing. Plaintiff was never afforded a basic due process opportunity to
8 respond to the new factors cited by Judge Goldner in her order, as has been customary throughout this
9 action.
10 III. AUTHORITY FOR MOTION
11 A District Court judge may reconsider pre-trial matters where it has been shown that the
12 magistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Local Rule
13 72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision
14 was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263
15 (9th Cir. 1993).
16 IV. ARGUMENT
17 A. Plaintiff Objects to Appointment of a Special Master
18 A court may appoint a special master to address pretrial and post-trial matters “that cannot be
19 addressed effectively and timely by an available district judge or magistrate judge of the district.” FRCP
20 53(a)(1)(C) (emphasis added); see In re Armco, Inc. (8th Cir. 1985) 770 F2d 103, 105 (decided under
21 former Rule 53). The test for appointment of a pretrial master is whether a judge or magistrate judge is
22 unable to handle the pretrial matter in an effective and timely fashion. See FRCP 53(a)(1)(C). “In
23 appointing a master, the court must consider the fairness of imposing the likely expenses on the parties
24 and must protect against unreasonable expense or delay.” FRCP 53(a)(3).
25 At the court hearing held on August 21, 2008, Defendants requested appointment of a special
26 master for all future depositions. Plaintiff objected to the extra cost as well as the appointment of a
27 special master from Bakersfield due to concerns over bias.
28 Judge Goldner has not demonstrated this Court’s inability to address the parties’ deposition

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1 disputes effectively and timely. She has not once attempted the intermediate measures of issuing
2 protective orders or imposing sanctions on Defendants for their persistent, obstructive conduct. This is
3 despite the fact that the Court has found it necessary to order the re-convening of no less than 6 out of 10
4 depositions because of defense counsel’s numerous improper instructions not to answer and in the case
5 of one deposition alone, at least 11 improper speaking objections. Instead of attempting intermediate
6 remedies such as protective orders and sanctions, Judge Goldner now takes the drastic step of granting
7 Defendants’ request and appointing a special master. This flies in the face of Rule 53.
8 Moreover, appointment of a special master is unfair to and imposes unreasonable expense on
9 Plaintiff. Plaintiff’s conduct did not engender any of the current deposition disputes; Defendants’
10 conduct did. Defendants bears all of the blame for forcing the re-convening of 6 out of 10 depositions
11 due to their speaking objections and improper instructions not to answer.
12 Finally, Plaintiff objects to Judge Goldner’s nomination of her friend, Kenneth Byrum of
13 Bakersfield, as special master. Most of the remaining depositions (9/2/08 to 9/5/08) are to be conducted
14 in Los Angeles, not Bakersfield. If a special master is to be appointed, he should be from the Los
15 Angeles-area so as to avoid even greater unnecessary expense (in the form of hotel and travel expense
16 reimbursements for the special master) for Plaintiff.
17 B. Issuance of a Protective Order against Plaintiff Is Inappropriate
18 Judge Goldner based her sua sponte issuance of a protective order against Plaintiff and denial of
19 sanctions on several alleged behaviors of Plaintiff’s counsel.
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1. Inappropriate Filming of Defense Counsel
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Judge Goldner criticized Plaintiff’s counsel for filming defense counsel during the deposition:
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Plaintiff’s counsel uses two web cameras to film the depositions. One of his web
23 cameras is trained on the deponent, and the other is trained on Defendants’ counsel.
However, neither Defendants nor their counsel have objected to this arrangement.
24 Defendants have also arranged to have most of the depositions videotaped by a
professional videographer.
25 (Doc. 207, 2:3-6).
26 The Court finds it to be wholly inappropriate to train a dedicated web camera on
opposing counsel throughout a deposition, and notes that the presence of such a camera,
27 in and of itself, is likely to annoy one's opposing counsel. Nevertheless, the Court also
notes that Defendants' counsel has not objected to the use of the web camera.
28 (Doc. 6:21-25).

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1
Judge Goldner describes Plaintiff’s counsel as “training” a camera on Defendants’ counsel like a
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weapon, but describes Defendants as having merely “arranged to have most of the depositions
3
videotaped by a professional videographer”. She later suggests Plaintiff’s inappropriate “training” of a
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camera on defense counsel “in and of itself” likely annoyed defense counsel.
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This is a distortion of the facts that clearly came out at the telephone conference. As defense
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counsel admitted at the conference call with Judge Goldner, defense counsel too had hired a
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videographer who had a camera “trained” at Plaintiff’s counsel at the majority of the depositions. The
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filming of opposing counsel was a mutually-arrived at arrangement which defense counsel favorably
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described at the hearing as having created a calmer atmosphere in depositions. Attached hereto as
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Exhibit 1 is a true and correct copy of defense counsel’s email to Plaintiff’s counsel, notifying him that
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Defendants intended to “train” a camera at Plaintiff’s counsel at each deposition.
12
13 2. Escalation of Conflict
14 Judge Goldner criticized Plaintiff’s counsel for escalating the conflict:
15 Plaintiff's counsel should have refrained from escalating the conflict after the witness
denied that she had been coached by "foot tap.” There was no need for either counsel to
16 threaten or insult the other, and no need for Plaintiff's counsel to goad Defendants'
counsel by obtaining possession of his phone and then refusing to return it to him, as a
17 retaliation in kind that only exacerbated the situation.
18 .Plaintiff’s counsel did not “obtain” possession of defense counsel’s phone. Defense counsel
19 handed the phone to Plaintiff’s counsel, saying “Here”. (Doc. 207, 5:3-6). When he asked for it back,
20 Plaintiff’s counsel handed it to him.
21 Judge Goldner described defense counsel as merely “moving” Plaintiff’s counsel’s camera:
22 “Defendants' counsel should have refrained from moving the web camera”.
23 Defense counsel did not “move” Plaintiff’s counsel’s webcams, he grabbed them by their stalks
24 three times and broke one of them. The transcript establishes this:
25 Mr. Lee: Let the record reflect that Mr. Wassser has grabbed the camera by the stalk.
The instructions on the camera specifically state you’re only to grab it by the base. If
26 you’ve damaged that camera, I’m going to ask for - - you to pay for that.
(Doc. 207, 6:2-4).
27
At the hearing, Judge Goldner chided Plaintiff’s counsel for adjourning the deposition after
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1 defense counsel broke his webcam. Plaintiff replied he had little choice given the risk of escalation of
2 the conflict with defense counsel. Judge Goldner was unpersuaded. Yet, at the very next deposition (of
3 Supervisor Barbara Patrick), defense counsel continued to threaten to touch Plaintiff’s counsel’s
4 equipment. Plaintiff’s counsel repeatedly requested an assurance that defense counsel would not break
5 any more of his equipment:
6 MR. LEE: Mr. Wasser, I'm going to ask you again, are you going to give us an
assurance you're not going to be touching my equipment without my permission?
7 MR. WASSER: If I touch your equipment, I'll tell you beforehand.
(Doc. 202-3, 5:7-12).
8
Judge Goldner acted sua sponte when she issued a protective order against Plaintiff’s counsel.
9
Defendants did not request a protective order against Plaintiff’s counsel’s touching of defense counsel’s
10
property without his permission because Plaintiff’s counsel has never done so. She cited grounds in
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support of her order which she refused to divulge to Plaintiff’s counsel at the hearing when requested.
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Had she done so, Plaintiff’s counsel would have vigorously opposed her finding that Plaintiff’s counsel
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“trained” his camera like a weapon on defense counsel potentially irritating him, or “obtained”
14
possession of defense counsel’s phone and refused to hand it back, or that defense counsel merely
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“moved” Plaintiff’s counsel’s cameras. These characterizations of events distort the events as they were
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related to Judge Goldner at the hearing.
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V. CONCLUSION
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Plaintiff must respectfully object that Judge Goldner’s order is clearly erroneous and contrary to
19
law for the foregoing reasons. Plaintiff has been materially prejudiced by Judge Goldner’s rulings in this
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action, of which her order (Doc. 207) is but the latest example. Plaintiff requests that the Court
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reconsider Magistrate Judge Goldner’s order.
22
Defense counsel inappropriately refused to produce any of 17 deponents scheduled for
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depositions over a one-month period from July 15 to August 14, 2008. When the depositions were
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finally underway, defense counsel engaged in numerous improper instructions not to answer and
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speaking objections, ultimately forcing the re-convening of 6 out of 10 depositions. Despite this blatant
26
obstruction, Judge Goldner repeatedly denied Plaintiff’s requests for sanctions and protective orders. In
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contrast, Judge Goldner was quick to issue a protective order against Plaintiff’s counsel, sua sponte and
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1 based on grounds which she refused to divulge at the hearing itself despite Plaintiff’s request. Moreover,
2 she granted Defendants’ request for appointment of a Special Master over Plaintiff’s objections and
3 ruled that the parties should bear the cost 50/50. The appointment of a Special Master is unmerited given
4 Judge Goldner has yet to attempt the intermediate remedies of sanctions and protective orders.
5 Moreover, the extra cost is unfair to Plaintiff given Plaintiff has not engendered the numerous disputes
6 which have arisen in depositions.
7 This is the third request for reconsideration of Judge Goldner’s ruling which Plaintiff has filed in
8 this action. It would come as no surprise to Plaintiff if there were a fourth.
9
10 Respectfully submitted on September 2, 2008.
11
12 /s/ Eugene D. Lee SB# 236812
LAW OFFICE OF EUGENE LEE
13 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
14 Telephone: (213) 992-3299
Facsimile: (213) 596-0487
15 Email: elee@LOEL.com
16 Attorneys for Plaintiff DAVID F. JADWIN, D.O.
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EXHIBITS

EXHIBIT 1. Email from Defendants to Plaintiff noticing intent to videotape

Plaintiff’s counsel
Case 1:07-cv-00026-OWW-TAG Document 214 Filed 09/01/2008 Page 11 of 12

EXHIBIT 1. Email from Defendants to Plaintiff noticing intent to videotape

Plaintiff’s counsel
 Case 1:07-cv-00026-OWW-TAG Document 214 Filed 09/01/2008 Page 12 of 12
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Sunday, August 03, 2008 9:58 AM
To: Eugene Lee
Subject: Videotaped depositions.

Gene,

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

Mark

Law Offices of Mark A. Wasser

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

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